Manning v. School Board of Hillsborough County, Florida Respondents' Brief in Opposition to Petition for Certiorari

    No. 00-1871

3ftt tlje
Suprem e C o u rt of tfje ?Hntteb States?

Andrew L. Manning, et a l ,
Petitioners,

v.

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

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

On Petition For Writ Of Certiorari 
To The United States Court of Appeals 

For The Eleventh C ircuit

RESPONDENTS' BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

W. Crosby Few 
Few & Ayala 
109 N. Brush Street 
Suite 201 
Tampa, FL 33602 
(813) 229-6401

Thomas M. Gonzalez 
Counsel o f  Record 
Thompson, Sizemore & 

Gonzalez, P.A. 
Tampa, FL 33602 
(813) 273-0050

Counsel fo r  Respondents

BECKER GALLAGHER LEGAL PUBLISHING, INC., 
CINCINNATI, OHIO 800-890-5001



LIST OF PARTIES

Pursuant to Supreme Court Rule 14.1(b), Respondent submits
the following list of parties:*

1. The School Board of Hillsborough County, Florida 
(formerly known as the Board of Public Instruction of 
Hillsborough County, Florida), Respondent.

2. Joe E. Newsome, as Chairman of the School Board of 
Hillsborough County, Florida, Respondent.

3. Doris Ross Reddick, as Vice Chairman of the School 
Board of Hillsborough County, Florida, Respondent.

4. Glenn Barrington, as a Member of the School Board 
of Hillsborough County, Florida, Respondent.

5. Carolyn Bricklemyer, as a Member of the School 
Board of Hillsborough County, Florida, Respondent.

6. Carol W. Kurdell, as a Member of the School Board 
of Hillsborough County, Florida, Respondent.

7. Jack R. Lamb, Ed.D., as a Member of the School 
Board of Hillsborough County, Florida, Respondent.

8. Ann Olson, as a Member of the School Board of 
Hillsborough County, Florida, Respondent.

9. Earl J. Lennard, Ph.D., as the Superintendent of 
Schools for the School Board of Hillsborough County, 
Florida, Respondent.

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10. The class of all African-American minor children who 
are eligible to attend the public schools of 
Hillsborough County, Florida, and their parents 
and/or next friends.

11. Andrew L. Manning, a minor, by his father and next 
friend, Willie Manning, Petitioner.

12. Shayron B. Reed, and Sandra E. Reed, minors, by 
their father and next friend, Sanders B. Reed, 
Petitioner.

13. Nathaniel Cannon, Norman Thomas Cannon, Tyrone 
and Darnel Cannon, minors, by their father and next 
friend, Nathaniel Cannon, Sr., Petitioners.

14. Gail Rene Myers, a minor, by her father and next 
friend, Randolph Myers, Petitioner.

* The individual Petitioners are listed here as they appeared 
in the caption of the original complaint filed in this case in 
1958, at which time the then minor Petitioners, with their 
adult parents, were alleged to be adequate representatives of 
the class. The Petitioners have not included in their petition’s 
List of Parties the next friends who were original parties to 
the complaint, and those Petitioners who were minors in 1958 
obviously have reached majority. The Respondent is without 
knowledge as to what, if any, status any of the original 
Petitioners occupy in the current context of this proceeding, 
or the litigation from which it arises.

it



Page

LIST OF PA RTIES....................................................................i

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

RESPONDENTS’ BRIEF IN OPPOSITION TO 
PETITION FOR CERTIORARI..............................................1

STATEMENT OF THE CASE ........................................  1

ARGUM ENT..................................   12

I. The Decision of the Court of Appeals
Does Not Conflict With This Court’s 
Decisions or Those of Other Circuits 
and it Does Not Improperly Shift the 
Burden of Proof on Unitary Status 
Issues to Plaintiffs ........................................12

II. The Court of Appeals’ Interpretations
of the Good-faith Standard Does Not 
Conflict With the Fram ework 
Established by this Court’s Decisions 
in Freeman and Dowell with the Tenth 
Circuit’s Interpretation ........................... 24

III. The Court of Appeals Did Not 
Misapply Governing Law in its Review 
of the District Court’s Factual Findings

..................................................................... 26

TABLE OF CONTENTS

CONCLUSION 30



TABLE OF AUTHORITIES

Cases Page

Brown v. Board o f Education,
978 F.2d 585 (1992) ...........................  2 1 ,2 2 ,2 3

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

Dowell v. Board o f Education
8 F.3d 1501 (10th Cir. 1994) ................  21, 23, 24

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

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

Keyes vs. School District N o.l, Denver, Colorado
413 U.S. 189 (1973)........................................  14, 17

Lockett v. Board o f Education o f Muscogee County
92 F.3d 1092 (11th Cir. 1996) (Lockett I) . . 12, 13

Lockett v. Board o f Education o f Muscogee County 
111 F.3d 839 (11th Cir. 1997)
(Lockett I I ) ............................. 12, 13, 14, 16, 26, 27

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

Swann v. Charlotte-Mecklenberg Board o f Education,
402 U.S. 1 (1971)........................................ 2, 14, 20

Statutes and Rules

28 U.S.C. § 636 ......................................................................1

IV



RESPONDENTS’ BRIEF IN OPPOSITION TO 
PETITION FOR A WRIT OF CERTIORARI

Respondents, the School Board of Hillsborough 
County, Florida, etal. (“School Board”), respectfully ask the 
Court to deny the petition for writ of certiorari filed by 
Petitioners Andrew Manning, et al., who seek review of the 
decision of the United States Court of Appeals for the 
Eleventh Circuit entered in this case on March 16, 2001. The 
holding for which review is sought is a narrow one, based on 
the specific and unique facts of this case. It does not conflict 
with any decision of this Court or any Court of Appeals. 
Neither does it decide an important federal question, nor 
present any other basis warranting review by this Court.

STATEMENT OF THE CASE

In the case before the Court, the Eleventh Circuit 
declared the public schools of Hillsborough County, Florida, 
to be unitary after nearly forty years of court supervision. It 
reversed the holding of the United States District Court for 
the Middle District of Florida, in which that Court found that 
the schools were not unitary and declined to restore local 
control over the school system. The District Court reached 
this determination after rejecting a contrary conclusion 
contained in the report and recommendation of the Magistrate 
Judge, to whom the District Court had committed the issue of 
unitary status for trial and recommendation pursuant to 28
U.S.C.§ 636(b)(1)(C).

“Proper resolution of any desegregation case turns on 
a careful assessment of its facts. ” Freeman v. Pitts, 503 U.S. 
467, 474 (1992). Therefore, the factual and judicial contexts 
in which the Circuit and District Courts reached their 
decisions was essential to their decision-making, as it is to the

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determination of this petition. Petitioners’ statement of the 
case is inadequate for the last purpose. The statement is 
largely dependent on selectively taken portions of the Court 
of Appeals’ and District Court’s orders, which have been 
taken out of context and argumentatively presented. The 
statement therefore omits much that is relevant and material.

This case began in 1958 with the filing of the 
Petitioners’ complaint, which sought judicial intervention to 
end Respondents’ racially segregated dual system of public 
education and to allow African-American children to “attend 
schools nearer their places of residence. ” Resp. App. lb-7b. 
On August 21, 1962, the District Court held that Respondents 
were in fact operating an unlawfully segregated school system 
and ordered them to file a comprehensive plan for 
desegregation. Pet. App. 191a.1 Over the next nine years 
following that order, Respondents submitted many such plans 
and the District Court entered a number of orders, several of 
which were appealed. Id.

The effectiveness, or lack thereof, of the various plans 
which Respondents submitted and implemented in the period 
between 1962 and 1971, was described at length in the 
District Court’s order of May 11, 1971. Resp. App. 8b-77b. 
That order was entered by the District Court acting sua sponte 
only twenty-one days after this Court, in Swann v. Charlotte- 
Mecklenburg Board o f Education, 402 U.S. 1 (1971), 
described the wide breadth of a district court’s powers, and its *

'References to the appendix to the petition will be made by 
use of the symbol “Pet. App.” and page number(s). References to 
the appendix to this brief will be made through use of the symbol 
“Resp. App. ” and page number(s). References to the petition itself 
will be made through use of the symbol “Pet. ” and page number(s).

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obligation, to end and effectively remedy de jure  racial 
segregation occurring in a public school system. Armed with 
that instruction, the District Court entered an order which 
began with a recitation of the history of Respondents’ 
desegregation efforts, and made clear its dissatisfaction with 
the level of Respondents’ commitment to desegregation as 
well as their lack of success in attaining it.

The District Court then focused its attention on what 
it referred to as “black schools,” i.e., 15 of Respondents’ 
schools having student populations which were all, or at least 
90% African-Americans, and declared simply that 
“[Respondents] must desegregate all [such] schools.” Resp. 
App. 24b, n.13, 64b-65b. Conceding that some of the 
segregation in Respondents’ schools might be de facto  rather 
than de jure, the District Court nevertheless concluded that 
“all of the predominantly black schools must be eliminated.” 
Resp. App., 62b, n.48, emphasis added.

The District Court explained its concerns, and its 
intentions, noting in particular that:

There is no evidence of any substantiality in 
the record supporting the position that 
segregation in Hillsborough County is 
attributable in any measurable degree to 
voluntary housing patterns or other factors 
unaffected by school board activity. As 
indicated earlier, the record makes plain that 
prior to and since 1954 certain schools in 
Hillsborough County have been set aside for 
black students and others for white students.
With exceptions these schools remain racially 
identifiable. Over the years [Respondents] 
have submitted numerous plans for

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desegregation, not one of which has altered the 
naked fact that most blacks attend schools 
which are inordinately black whereas most 
whites attend schools in which there are no 
blacks or only minuscule numbers of blacks.
The Court has been unable to locate a single 
instance where [Respondents] took positive 
steps to end desegregation at a black school 
and thereafter segregation returned 
fortuitously. Indeed, no serious attempt has 
ever been made to eliminate the many black 
schools. Based on experience, the court 
concludes that what resegregation there has 
been is a consequence of the continued 
existence of schools identifiable as white or 
black. Resp. App. 62b-63b.

To remedy this situation, the District Court ordered 
drastic and immediate action, intended to eliminate once and 
for all Respondents’ ability to segregate students according to 
race, by doing away with all of the “black” schools which 
Respondents had used for that unlawful purpose, and, in 
addition, those schools at which African-Americans 
constituted at least 50% of the student population. The Court 
allowed Respondents only slightly more than thirty days in 
which to formulate a plan which was to be effective in the 
next school year, the start of which was then only four months 
away. Resp. App. 67b-68b. The plan was to have as its 
“primary objective” the “abolition of segregation in all 
schools in the county,” and “in particular [those] now having 
a student population at least 50% black” (a requirement which 
involved 28 schools, including the 15 identified as “black” 
under the Court’s 90% standard) Id., 58b, n.45. In 
formulating the plan, Respondents were to:

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begin with the proposition that white black 
ratios of 86%/14% in the senior high schools, 
80%/20% in the junior high schools, and 
79 %/21 % in the elementary schools would be 
the most acceptable and desirable form of 
desegregation. Resp. App. 68b.

While it was left to Respondents to formulate the 
specifics of the desegregation plan, the District Court limited 
their discretion by specifying the particular desegregation 
tools which were to be used (“pairing, grouping, clustering, 
and use of satellite zones”), adding:

In view of what has gone on before, any 
proposed desegregation by use of rezoning or 
gerrymandered zoning shall be supplemental, 
secondary, and alternative to desegregation by 
the techniques mentioned earlier . . . and shall 
not be in lieu thereof. Resp. App. 69b.

Respondents timely responded to the District Court’s 
directive with a plan that would immediately eliminate all 
majority black schools. The plan was approved by the 
District Court on July 6, 1971. Resp. App. 78b-96b, Under 
the plan, which used only the tools favored by the District 
Court, the county’s two “black” high schools would be closed 
and their entire student populations distributed in satellites 
among “white” high schools. Resp. App.82b-83b. All 
“black” junior high schools were closed and converted to 
seventh grade centers. African-American students formerly 
attending “black” junior high schools would attend seventh 
grade in one of these centers, with white students transported 
for that grade. For grades eight and nine, the African- 
American students, with a few exceptions, would be assigned 
in satellites to formerly “white” schools. All “black”

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elementary schools would be closed and their buildings used 
for sixth grade centers, which would be attended by black and 
transported white students in that grade, and all black students 
would be distributed as satellites among “white” schools for 
the remaining elementary grades. Resp. App. 80b-81b.

In approving the plan, the District Court noted that 
although Petitioners “did not question the effectiveness of the 
plan in desegregating the school system,” they did object to 
the fact that the elimination of “black” schools placed a 
disproportionate burden on black children, because no longer 
having the neighborhood schools which had been ordered 
closed, they would be transported in greater percentages than 
white children, who retained their schools. Resp. App. 84b- 
86b. The Court conceded the correctness of this assessment 
of relative burdens, but overruled Petitioners’ objection, 
noting that:

If each of the [majority black] elementary 
schools retained its character as grades one 
through six and each of the junior high schools 
retained its character as grades 7, 8, and 9, 
satellite zones would have to be utilized in 
order to bring whites into the formerly black 
schools. This would provide an invitation to 
either “white flight” or “black flight,”or both.
Resp. App. 84b-85b.

After rejecting Petitioners’ objection, the District 
Court found that the plan submitted by Respondents “fully 
complies with the Court’s [May 11, 1971] order . . . and the 
law and will result in the establishment of a unitary school 
system. . . . ” Resp. App. 89b. In stark contrast to the 
criticism of Respondents contained in its May 1971 order, the 
District Court also wrote:

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The record reflects the procedure followed by 
[Respondents] in developing the plan. At 
hearing the Court commended [Respondents], 
their staff and attorneys for this procedure.... 
Without agreeing to the desirability of the 
Court’s order [Respondents] followed it as 
being law. For the record the Court repeats its 
appreciation and commendation.

As has been emphasized in previous orders, 
the school board has a continuing 
responsibility. [Respondents] represent that the 
plan can and will be effectuated. The Court 
will require that this be done. Resp. App. 
89b-90b.

The plan was in fact fully implemented, at the 
beginning of the 1971-1972 school year. The result of that 
action, as the District Court found in its December 4, 1998, 
order denying unitary status, was that:

In the 1971-1972 school year, [Respondents] 
had desegregated all Hillsborough County 
Schools, with regard to student assignment; no 
majority black school existed in the county.
Pet. App. 62a, emphasis added.

There was no majority black school in operation in 
Hillsborough County in the 1971-1972 school year. No 
school in operation that year had ever been a “black” school, 
(although the buildings used for those schools now housed the 
single grade centers which would be attended by students of 
both races). Resp. App. 57b, n.44.

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

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year following implementation of the desegregation plan, and 
in each year thereafter, Respondents prepared two reports: 
one showing the racial compositions of student and staff 
populations at each county school, the other informing the 
District Court and Petitioners of any and all proposed changes 
to be made in the attendance zone of any school in the 
upcoming year, with the racial mix of students projected to 
result from that change. Each of these reports was filed with 
the District Court and served on Petitioners’ counsel. Id. 
From 1971 until 1994, Petitioners did not file any objections 
to the existence of racially identifiable schools. Pet. App. 
64a, 110a.

After reviewing the reports filed in late 1974 (the 
fourth school year of the plan’s operation), the District Court 
issued on its own initiative an order noting that one of 
Respondents’ 128 schools had become majority black, and 
four others had high percentage black student populations. 
Pet. App. 63a. The Court sua sponte directed Respondents to 
file a supplemental plan to address these situations. Pet. App. 
63a. Id. That supplemental plan projected decreases in the 
percentages of black students at all of the schools in question. 
Those decreases did not occur at two of the schools. Pet. 
App. 64a. The District Court took no further action. At no 
time after the implementation of the supplemental plan, until 
the order of October 26, 1998, did the District Court find that 
Respondents had in any way failed to comply with their 
obligations under the desegregation plan, nor did the District 
Court order the formulation of any additional supplemental 
plan, nor the taking of any action addressed to the racial 
composition of students at any school. Pet. App. 64a.

In 1990, Respondents sought to establish a magnet 
program at Blake Junior High School, to reduce the 
percentage of African-American students attending it.

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Petitioners objected, and the District Court therefore denied 
Respondents’ request. To support of their objection, 
Petitioners, acting through the same counsel who represents 
them here, argued that:

The basic structure of desegregation in
[Respondents’] school system has remained
constant and effective since 1971. Pet. App.
23a, n.21, emphasis added.

Petitioners also argued that the introduction of the 
proposed magnet school would “introduce more uncertainty 
about whether schools would remain desegregated.” Id. 
emphasis added.

In 1991, the parties agreed to a conversion of 
Respondents’ school system from a elementary-junior high- 
high school configuration to one based on elementary-middle- 
high schools “clustered” in geographic divisions of the 
county. Pet. App. 67a-69a. Under the proposal, the single 
grade centers which were in the original plan were to become 
magnet or middle schools. Id. The projected populations of 
each of the schools in these clusters, several of which 
included majority black schools, were agreed to by the parties 
anc. incorporated in the District Court’s consent order. Resp. 
App. lOOb-lOlb.

From the 1977-1978 school year to the time of 
hearing, Respondents made some 300 minor modifications in 
student assignments, for purposes other than racial balance. 
Pet. App. 65a. Each of these modifications was brought to 
the attention of the District Court and Petitioners prior to its 
implementation. None was rejected by the District Court. As 
noted in the Magistrate’s first report and recommendation, 
Petitioners “filed no objection nor otherwise complained to

9



the [District] Court about the existence of ‘racially identifiable 
schools’ even though such schools had existed . . . almost 
continuously since 1971." Pet. App. 299a. The District 
Court, while rejecting the Magistrate’s conclusion of unitary 
status, noted that Petitioners’ failure to object to racial 
enrollments until 1994 “indicate[d] that there were no 
perceived violations of the 1971 Order.” Pet. App. 125a.

In 1994, Petitioners filed an Amended Motion to 
Enforce Court Order and Consent Order and for Further 
Relief, in which they alleged for the first time that 
Respondents were violating the District Court’s original 
desegregation plan and the consent order by operating schools 
with majority or near-majority African-American populations. 
Pet. App. 70a. In the motion, Petitioners pointed to sixteen 
specific schools with student populations in which African- 
Americans comprised at least 40% of the whole. Pet. App. 
70a-71a. None of these schools had ever been a majority 
black school at any time prior to, or at the time of, the 
implementation of the 1971 plan. Each was predominantly 
“white” in 1971, and “immediately after the 1971 plan was 
implemented [became] racially balanced. ” Id . , Pet. App. 15a- 
16a.2

The District Court designated a Magistrate Judge to 
hear Petitioners’ motion. The Magistrate Judge conducted 
bench a trial and on June 23, 1995, issued a report and 
recommendation in which she recommended denial of the 
motion “because there have been no violations of the Court’s

2As the District Court specifically found, the number of 
Respondents’ racially imbalanced schools is “relatively small.” 
Pet. App. 130a. At the time that the motion to enforce was filed, 
Respondents operated 149 schools. Pet. App. 70a.

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orders.” Pet. App. 312a.

On November 17, 1995, the District Court deferred 
ruling on the report and recommendation, citing the need to 
make a “full fledged determination of whether [Respondents 
have] in fact achieved unitary status,” but making no 
comment on the Magistrate’s conclusion that there had been 
no violation of the Court’s orders. Pet. App. 71a. The 
District Court referred the determination of unitary status to 
the same Magistrate Judge who had recommended a finding 
that Respondents had not violated the 1971 plan or consent 
order. The Magistrate Judge held a second trial and on 
August 26, 1997, issued a second report and recommendation, 
which recommended a finding of unitary status. Pet. App. 
188a-314a.

On October 26, 1998, the District Court entered an 
order in which it rejected the Magistrate’s recommended 
finding of unitary status at the same time it accepted virtually 
all of the Magistrate’s subsidiary and other findings. Pet. 
App. 57a-187a. The District Court ruled the 1994 amended 
motion to enforce to be moot. Pet. App. 187a. Respondents 
filed a Motion to Alter or Amend Judgement. On December 
4, 1998, the District Court denied that motion insofar as it 
sought amendment or alteration, but granted it in part as a 
request for clarification. Pet. App. 42a-56a.

Respondents appealed both of the District Court’s 
orders to the Eleventh Circuit Court of Appeals. A three 
judge panel of the Court issued its opinion on March 16, 
2001, in which it reversed the District Court and remanded 
the case with instructions that Respondents be released from 
court supervision. Petitioners did not seek rehearing. 
Neither did they seek to stay the Court of Appeals’ judgment. 
On April 26, 2001, the District Court therefore entered

11



judgment in accordance with the Eleventh Circuit’s mandate, 
and terminated its supervision of Hillsborough County 
schools.

ARGUMENT

Petitioners present three arguments for the granting 
of their petition. Respondents will answer each in the order 
originally presented.

I. The Decision of the Court of Appeals Does Not 
Conflict With This Court’s Decisions or Those of 
Other Circuits and it Does Not Improperly Shift the 
Burden of Proof on Unitary Status Issues to Plaintiffs.

Petitioners misstate the holding for which review is 
sought. The specific, express, and narrow holding of the 
Court of Appeals was that the District Court applied an 
incorrect legal standard to the record before it, and its reliance 
on that standard “tainted and infected” its ultimate conclusion 
that Respondents had not attained unitary status as well as 
certain, specified subsidiary findings. Pet. App. 40a-41a.

Petitioners do not even address the Court of Appeals’ 
holding, much less challenge its correctness. Indeed, they 
cannot, given the irrefutable fact that the District Court based 
its analysis and holding on the Eleventh Circuit’s decision in 
Lockett v. Board o f Education o f Muscogee County, 92 F.3d 
1092 (11th Cir. 1996) (“Lockett / ”). In its opinion, the 
District Court expressly acknowledged that this opinion had 
been vacated, by the same panel which decided it, in Lockett 
v. Board o f Education o f Muscogee County, 111 F.3d 839 
(11th Cir. 1997) (“Lockett 11"), but explained that the 
withdrawn opinion “reiterated established principles of law 
which are applicable to the case at hand.” Pet. App. 128a.

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Petitioners do not contest the Court of Appeals’ rejection of 
that rationale.

Neither do Petitioners challenge the Court of Appeals’ 
description of the fatal impact of the District Court’s 
erroneous reliance on Lockett I. They accept without 
objection the Court of Appeals’ conclusion that the District 
Court incorrectly considered the Magistrate’s report and 
recommendation, and assessed Respondents’ conduct, under 
the standard that school districts seeking release from 
desegregation orders must show fulfillment with their 
obligations to “desegregate to the maximum extent 
practicable,” when the proper measure, quoted in the petition 
itself, is whether “the vestiges of past discrimination [have 
been] eliminated ‘to the extent practicable.'” Pet. App. 32a, 
emphasis in the original.

Petitioners cite Lockett II. They make no mention 
whatsoever of Lockett /, or the District Court’s incorrect use 
of the vacated opinion. That omission, and Petitioners’ 
failure to even acknowledge the actual holding at issue, are 
fatal to their argument of conflict, because Petitioners cite no 
opinion, of any court, with which the true holding of the 
Eleventh Circuit conflicts. Realizing this fact, Petitioners 
avoid what they cannot attack, attributing to the Court of 
Appeals a holding it did not pronounce and attempting to 
focus this Court’s attention on a conflict which does not exist. 
Petitioners complain that the Eleventh Circuit engaged in 
nothing less than a “fundamental reallocation of the burden of 
proof in school desegregation cases. ” Pet. 9. There was no 
such reallocation. The Eleventh Circuit applied the correct 
law to the case at its hand. Its holding was informed by the 
application of that law, not on reallocation of the burden of 
proof, and there is no conflict between the Court of Appeals’ 
ruling and the rulings of this or any other court.

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Petitioners’ arguments are constructed entirely upon 
dicta contained in the Court of Appeals’ opinion. Petitioners 
mischaracterize these words as a holding that once a school 
district, placed under a court’s supervision because of dejure  
racial segregation, demonstrates that demographics are a 
“substantial cause” of currently existing racial imbalances, the 
district no longer carries the ultimate burden of proving that 
the imbalances are not the product of past discrimination. 
The Court of Appeals made no such pronouncement, nor did 
it apply such a principle.

The Eleventh Circuit began its review of the District 
Court’s ruling by enunciating the indisputably correct 
standard to be applied by courts assessing a school district’s 
unitary status:

[u]ntil unitary status is attained, the defendant 
school board has the burden of showing that 
any racial imbalance in the school system is 
not traceable, in a proximate way, to the 
prior de jure segregation. . . . Stated
differently, once a plaintiff shows de jure 
discrimination (as [Petitioners] did here in 
1962 . . .), a presumption arises that all racial 
imbalances in a school district are the result of 
the de jure  segregation. To rebut this 
presumption, ‘a school board must prove that 
the imbalances are not the result of present or 
past discrimination on its part.’ (citing 
Freeman, 503 U.S. at 494; Keyes v. School 
Dist. No. 1, Denver, Col., 413 U.S. 189, 208;
Swann, 402 U.S. at 25; and Lockett II, 111 
F.3d at 843). Pet. App. 30a.

This standard, with the presumption of causation

14



which is a part of it, was applied by the Court of Appeals, 
which found that Respondents had met it. Part of that holding 
was based on demographic evidence offered by Respondents. 
Petitioners do not challenge the findings both of the District 
Court and the Court of Appeals that Respondents proved that 
demographic change was a “substantial” cause of the racial 
imbalance of which Petitioners complain. They complain 
only that the evidence was insufficient to prove that 
demographics alone caused the offending imbalances.

Respondents were not required to prove that 
population shifts caused all of the racial imbalance identified 
by Petitioners. They had to show that the present imbalance 
was not a vestige of their past acts of de jure  discrimination. 
That obligation included the task of overcoming a judicially 
imposed presumption in favor of causation. The Court of 
Appeals found that Respondents defeated the presumption that 
they caused the existing imbalances by presenting proof that 
demographics were a substantial cause of those imbalances. 
That finding did not relieve Respondents of their ultimate 
burden of proving that they did not cause the imbalances. 
The court of Appeals in fact applied that burden and found 
that Respondents had met it.

In reality, Petitioners do not seek the benefit of the 
established and unquestionably appropriate presumption 
described above, but rather want to impose on Respondents a 
different obligation, to rebut the non-existent presumption that 
demographic change, found or conceded by the Court of 
Appeals, the District Court, the Magistrate Judge, and 
Petitioners themselves (Pet. App. 17a), was the result of 
segregative school board action. It is only the imbalance that 
carries the benefit of a presumption. There is no concentric 
presumption that a non-segregative cause of the imbalance 
proffered by a school board to explain the imbalance is itself

15



a vestige of past illegality.

It was in response to Petitioners’ arguments to the 
contrary, and in the specific context of demographic evidence 
proffered by Respondents, that the Court of Appeals wrote the 
dicta on which Petitioners’ assertion of conflict solely 
depends:

Where a defendant school board shows that 
demographic shifts are a substantial cause of 
the racial imbalances, the defendant has 
overcome the presumption of de jure  
segregation. Courts shall not assume that 
demographic shifts are a result of the past de 
jure  segregation. Such an assumption is 
improper because ‘it is simply not always the 
case that demographic forces causing 
population change bear any real and 
substantial relation to a de jure  violation, and 
the law need not proceed on that premise.
Lastly, a plaintiff does not undermine the 
strength of a defendant’s demographic 
evidence  by m erely asserting that 
demographics alone do not explain the racial 
balance. Rather for a plaintiff to preserve the 
presumption of de jure segregation, the 
plaintiff must show that demographic shifts are 
the result of the prior de jure  segregation or 
some other discriminatory conduct. Pet. App. 
35a-36a (citations and footnote omitted, 
emphasis added).

The Court of Appeals’ recitation of controlling legal 
principles is correct in every way. The language used, 
although attributed to Lockett II, has its origins in Freeman,

16



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

The vestiges of segregation that are the 
concern of the law in a school case may be 
subtle and intangible but nonetheless they must 
be so real that they have a causal link to the de 
jure  violation being remedied. It is simply not 
always the case that demographic forces 
causing population change bear any real and 
substantial relation to a de jure  violation. And 
the law need not proceed on that presumption.
As the de jure  violation becomes more remote 
in time and these demographic changes 
intervene, it becomes less likely that a current 
racial imbalance in a school district is a vestige 
of the prior de jure  system.

In order to dispel the presumption of causation applied 
to racial imbalances within its schools, Respondents were not 
limited to the use of demographics. Instead they were 
required to show, as Petitioners correctly observe, “that this 
segregated schooling is not also the result of intentionally 
segregative acts.” Pet. 9, (citing Keyes, 413 U.S. at 208, 
emphasis added). Respondents could use demographics to 
meet this burden. But they could also make use of other 
proof, and they did.

Respondents proved, and the District Court found, that 
the 16 schools (of the 150 operated by Respondents in the 
1995-1996 school year, Pet. App. 15a) of whose racial 
imbalance Petitioners complained had never had African- 
American majorities in their student populations prior to 
implementation of the 1971 desegregation plan, had in fact 
been “white” schools before that year, and were racially 
balanced immediately upon the plan’s implementation.

17



Respondents proved, as the District Court found, that they 
took no action to change the boundaries of any of these 
schools, or any other action, to intentionally cause, or to 
exacerbate, the race ratios of those schools’ student 
populations. App. 125a, 129a. Respondents proved that they 
effected no boundary change, nor did they construct, close, or 
reconfigure any school, or otherwise alter school attendance 
patterns, without prior notice to Petitioners and the Court, and 
the District Court took no action to disapprove the proposed 
changes or alter race ratios, save for its orders of 1975, 
requiring a supplemental plan, and 1990, sustaining 
Petitioners’ objection to the establishment of a magnet 
program to Blake.

To all of this proof Respondents added unrebutted 
evidence that there had been significant and substantial shifts 
in racial demography, not in Hillsborough County as a whole, 
but within the relevant neighborhoods which populated the 
schools in question.’ To this record, the Magistrate and the 
Court of Appeals, but not the District Court, applied the 
proper legal standard and found it had been met.

Petitioners do not attack that narrow holding of the 
Eleventh Circuit, which focused on the District Court’s use of 
an erroneous legal standard. They instead contend, 
erroneously, that the Court of Appeals assigned to Petitioners 
a burden which should have been borne by Respondents, and 3

3As the Magistrate found, and no one challenges, from 
1970 until 1990 (the latter being the year of the most current census 
data available at the time of hearing), the number of Hillsborough 
County census tracts having populations with 25% to 50% black 
residents more than doubled, while tracts with 50% or more blacks 
have increased by 40%. Pet. App. 205a.

18



that this “reallocation” conflicts with the holdings of this 
Court and two other Courts of Appeals. There was no 
reallocation.

Petitioners assertions of conflict between the Court of 
Appeals and this Court’s holdings rely on cases which do not 
address the issue Petitioners argue. Petitioners cite Board o f  
Education v. Dowell, 498 U.S. 237 (1991), for the 
proposition that before a court releases a formerly segregated 
school system from its oversight, it must determine that, to 
the extent that demographics account for any racial imbalance, 
the “change is ‘not attributable to the former de jure  regime 
or any later actions by school officials.’” Pet. 10. This Court 
did not establish a presumption that it was. The Court of 
Appeals did not free Respondents of the burden enunciated in 
Dowell, or impose a contrary burden on Petitioners. The 
District Court did not find, and Petitioners do not assert, that 
actions taken by Respondents caused any of the demographic 
changes proven to have occurred.

There is no conflict between the Court of Appeals’ 
holding and Dowell. The recognition of the presumption 
argued by Petitioners would create conflict, with this Court’s 
holding in Freeman, 503 U.S. at 496-497, discussed above. 
The Court of Appeals’ actual holding does not.4

4 Neither does the Court of Appeals’ comment that a 
plaintiff does not “undermine” a defendant school board’s 
demographic evidence by contending that the proof does not 
explain all of the imbalance at issue demonstrate a reallocation of 
the burden of proof. It is simply a comment on the insufficiency of 
the evidence offered by Petitioners, through their expert witness, 
which could have no intended purpose other than to “undermine” 
Respondent’s offer of proof. It in no way suggests that Petitioners 
had an obligation to rebut, much less to prove.

19



Neither does the language of Swann, 402 U.S. at 21, 
quoted at page 11 of the petition, demonstrate conflict. That 
language speaks to the need for district courts overseeing 
school desegregation to monitor school construction and 
closings. The District Court’s own 1971 order included the 
express direction that “all school construction, school 
consolidation and site selection . . . shall be done in a manner 
which will prevent the recurrence of the dual school 
structure.” Resp. App.69b. The District Court did monitor 
compliance. From the date of its 1971 desegregation order to 
the present Respondents have not constructed, closed, 
consolidated, or reconfigured any school without first 
informing the District Court and Petitioners of their 
intentions.

When Respondents sought to establish a magnet 
program at Blake Junior High School to reduce the percentage 
of African-American students at that school, and Petitioners 
objected, the District Court prevented Respondents from 
proceeding. As the Court of Appeals noted, this ruling 
delayed the implementation of Respondents’ magnet school 
program, the scope of which the District Court later found 
inadequate. Pet. App. 22a.

There has been no finding by the District Court that 
Respondents did not meet their obligations in the areas of 
school construction, or school openings and closings. Indeed, 
in denying unitary status, the District Court expressly found 
that Petitioners’ “opening and closing of schools has generally 
maintained or improved racial balance” and disavowed any 
inclination to become further involved in school siting and 
construction issues. Pet. App. 173a-174a. In its earlier 
orders, the District Court had required approval of school site 
locations. Resp. App. 88b.

20



Petitioners’ remaining arguments alleging conflict with 
this Court’s opinions rely upon the concurring opinion 
authored by Justice Blackmun in Freeman, 503 U.S. at 513, 
not the law pronounced in the majority opinion. Even at that, 
Petitioners provide no evidence of conflict. The words cited 
speak to the need to determine that school board actions did 
not create or contribute to demographic imbalance. They do 
not impose a presumption that they did.

Neither does the Eleventh Circuit’s opinion conflict 
with those of the Tenth Circuit in Brown v. Board o f Educ., 
978 F.2d 585 (10th 1992) and Dowell v. Board, o f Educ., 8 
F.3d 1501 (10th Cir. 1994). Brown merely affirms the burden 
on school districts to demonstrate “the absence of a causal 
connection between any current condition of segregation and 
the prior system.” 978 F.2d. at 590. The Eleventh Circuit 
properly enforced that same burden here. Petitioners assert 
that, under the Tenth Circuit’s “approach,” a school system 
cannot meet its burden through demographic evidence “unless 
the current racial imbalance is ‘only a product of demographic 
changes outside the school district’s control.’” Pet. 14-15. 
In fact, and as the complete portion of the dicta from which 
Petitioners take only a part makes clear, the fundamental 
determination to be made is whether the more condition of 
imbalance is a vestige of the former system. Brown, 978 F.2d 
at 591. Brown does not make use of a presumption that a 
desegregated school system caused the demographics.

Indeed, Brown demonstrates the correctness of the 
Eleventh Circuit’s holding, and its consistency with 
controlling law. In rejecting the district court’s opinion at 
issue in Brown, the Tenth Circuit wrote:

In the present case, the district court did state:
‘Demographic forces, uncontrolled by

21



defendants form the racial composition of the 
schools.’ This comment, however, is in 
considerable tension with the district court’s 
observations that demographics have had a 
desegregative effect on student assignment.... 
Moreover, in light of the school district’s 
failure to ever operate without racially 
identifiable schools, and the district court’s 
failure to apply the appropriate legal standard, 
the court’s conclusion that demographics 
caused segregation simply does not amount to 
a supportable holding that the current condition 
of segregation is wholly unconnected with the 
prior de jure school system. The absence of a 
moment when [the school system] achieved 
compliance with the Constitution is vital 
because it is only ‘[o]nce the racial de jure 
violation has been remedied [that] the school 
district is under no duty to remedy imbalance 
that is caused by demographic factors.’ 978 
F.2d. at 590, n.6.

Respondents not only operated without racially 
identifiable schools, at the District Court’s instruction they did 
so after closing all schools which had been used to segregate 
African-American students. Even as it denied unitary status, 
the District Court found that “a race neutral attendance pattern 
was implemented in the case at hand,” and noted that 
Respondents did desegregate their system. Pet. App. 125a- 
126a, 62a. Demographics in Hillsborough County were not 
desegregative in regard to the schools being examined, and the 
District Court so found. The Tenth Circuit found in Brown 
that the district court opinion which it reviewed was “in 
considerable tension” with the record on which the opinion 
had to be based, and the lower court used an incorrect legal

22



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

Petitioners’ use of the Tenth Circuit’s opinion in 
Dowell is also unavailing. They write in their petition that the 
Tenth Circuit requires a showing that “the school system did 
not play a role in, or contribute in any way to, the 
demographic change. Pet. 14, citing Dowell, 8 F .3dat 1511, 
n.6, emphasis added. In fact, what the Tenth Circuit, relying 
on the concurring opinions in Freeman, required, at the. cited 
part of its holding, was a showing by the board that “its own 
policies did not contribute directly to the racial imbalance of 
the schools. ” Id. emphasis added. And it did so after quoting 
the principle that “[The fact t]hat there was racial imbalance 
in student attendance zones was not tantamount to a showing 
that the school district was in noncompliance with the decree 
or its duties under the law .” Dowell, 8 F.3d at 1511 (citing 
to Freeman, 503 U.S. at 494).

Neither does the Eleventh Circuit’s holding conflict 
with the holding of Jenkins v. Missouri, 122 F.3d 588 (8th Cir. 
1997). The Eighth Circuit upheld the district court’s 
determination that the school board had failed to demonstrate 
that prior inequities in student achievement caused by de jure 
segregation had been remedied and it therefore bore the onus 
of the presumption that its actions had caused the current 
conditions. As in Brown, the court in Jenkins dealt with a 
system unlike Respondents.’ In this case, at the District 
Court’s direction, the racially segregated patterns of student 
assignment were abolished once and for all in 1971. 
Moreover, in Jenkins, the Eighth Circuit noted that the district 
court’s finding was supported by the fact that the school 
district’s expert was unable to explain a third of the gap that 
existed between black and white student achievements. There 
was no unexplained gap in this case.

23



The same expert who testified in Jenkins testified in 
this case, and he opined without qualification that 
demographics did cause the racial inmalances that existed in 
Respondents’ schools, and that none of these imbalances was 
caused by Respondents’ actions. Pet. App. 120a. This 
conclusion was shared by Respondents’ demographic expert. 
Petitioners met that proof by providing their own witness, 
who could say only that the work of Respondents’ 
demographer was “very good” but did not allow him to 
attribute all of the imbalances to demographics. App. He did 
not identify the gap between Respondents’ expert’s data and 
“all.” He did not testify that it was substantial.

Petitioners do not contend that the remaining cases 
they cite conflict with the Eleventh Circuit’s holding, only that 
they do not support it. Pet. 15, n. 15. The cases therefore 
provide no support for the granting of the writ. Petitioners 
have not in any way addressed the actual holding of the Court 
of Appeals. They have not shown any conflict between that 
holding and that of any other Court.

II. The Court of Appeals ’ Interpretation of the Good-faith 
Standard Does Not Conflict With the Framework 
Established by this Court’s Decisions in Freeman and 
Dowell and with the Tenth Circuit’s Interpretation.

Petitioners complain that the Court of Appeals failed 
to apply the proper legal standard in reversing the District 
Court’s finding that Respondents did not demonstrate good 
faith sufficient to warrant a finding of unitary status. 
Specifically, Petitioners, relying on the Tenth Circuit’s 
opinion in Dowell, 8 F.3d 1501, complain that the Court of 
Appeals did not require Respondents to show “future-oriented 
board policies manifesting a continued commitment to 
desegregation.” Pet. 21, citing Dowell, 8 F.3d at 1513. This

24



argument is new to Petitioners’ litigation strategy, appearing 
for the first time in their petition.

In her report and recommendation, the Magistrate 
Judge specifically found that Respondents had demonstrated 
good faith sufficient to support a finding of unitary status.
Pet. App. 265a-266a. The Magistrate reached that conclusion 
by applying the standard enunciated in Freeman, 503 U.S. at 
498, on which Petitioners now rely. In the exceptions they 
filed to the Magistrate’s report and recommendations, 
Petitioners did not raise the contention now argued in support 
of the petition, contending only that Respondents had not 
shown past compliance with the District orders. Resp. App.
112b-l 13b. They did not argue the lack of “future-oriented” 
policies, nor did they challenge the Magistrate’s finding of 1 
Respondents’ future intentions. The District Court treated the 
issue of Respondents’ good faith only as it related to past 
compliance with its orders. While it rejected the Magistrate’s 
finding of good faith, the District Court did not criticize the 
Magistrate’s focus, or reject her determination, based on 
testimony from Respondents’ Superintendent and most School 
Board members which she, but not the District Court had 
observed, that Respondents had “accepted the principle of 
racial equality and will not revert back to a dual system. ” Pet. 
App. 265a-266a.

The Court of Appeals reversed the District Court 
based on its uncontested conclusion that the District Court 
applied an incorrect standard of law which infected and tainted 
the District Court’s determinations. Once the Court of 
Appeals rejected the District Court’s finding that Respondents 
had not fulfilled all of their court imposed obligations, the 
District Court’s ultimate conclusion of a lack of good faith, 
which depended entirely on past noncompliance, could not be 
sustained. Petitioners make no complaint as to these findings.

25



The Tenth, Eleventh, and all other Circuit Courts of 
Appeals look to the post-desegregation order past to predict a 
school board’s future compliance with the Constitution. Both 
are bound by the reality that compliance with a desegregation 
order can be assessed only with reference to that order, which 
must include a “precise statement” of the district’s 
obligations. Missouri v. Jenkins, 515 U.S. 70, 101 (1995). 
Here the Eleventh Circuit applied the proper law to the record 
created by the parties and the District Court. It committed no 
error in doing so.

III. The Court of Appeals Did Not Misapply Governing 
Law in its Review of the District Court’s Factual 
Findings.

Petitioners’ last contention is that the Court of Appeals 
subjected the District Court’s findings to “more stringent 
scrutiny” because the trials which produced the record on 
which it made those findings were conducted by the 
Magistrate Judge. They contend that this heightened analysis 
deprived Petitioners of the benefit of the clearly erroneous 
standard, which should have been used to review the findings 
in question. Once again, Petitioners misstate the true holding 
of the Court of Appeals. The Court held that the District 
Court’s findings were “tainted and infected” by its use of an 
incorrect legal standard. For that dispositive reason, the 
Court of Appeals rejected the District Court’s findings made 
after that misinformed analysis.

If the district court had applied Lockett II, 
rather than Lockett II, her findings of fact 
would have led her to the same conclusion as 
the magistrate judge with respect to student 
assignments. Pet. App. 36a.

26



Additionally, we are persuaded that, if the 
district judge had followed Lockett II, she 
would have concluded that [Respondents] have 
acted in good faith. Pet. App. 38a.

Petitioners’ final point turns on the fact that the Court 
of Appeals noted in dicta that its conclusion of District Court 
error on the issue of good faith were “buttressed” by two 
points. Pet. App. 39a-40a. These were the District Court’s 
discussion of the extent of Respondents’ use of a majority-to- 
minority transfer policy, and the fact that because a judicial 
determination of good faith “is in some respects subjective,” 
deference should have been paid to the Magistrate’s finding of 
it. Id. Tellingly, Petitioners do not complain about the Court 
of Appeals’ discussion of the former. They accept, as did the 
District Court based on Petitioners’ expert’s testimony, that 
Respondents’ more aggressive use of their majority-to- 
minority policy would have had no significant effect on the 
student populations of the schools at issue before it. 
Petitioners take issue with the Court of Appeals findings in the 
areas of statistical demographic evidence and good faith. 
However, the Court of Appeals spoke of deference to theA 
Magistrate’s findings only in the context of the latter, and then 
only as support for a conclusion reached on other grounds. 
The Court did not, as Petitioners incorrectly assert at Pet. 25, 
find the Magistrate’s resolution of credibility “dispositive.”

The Court of Appeals’ holding did not depend on any 
determination that the Magistrate’s findings were entitled to 
more weight than they were due, or the Magistrate’s 
resolutions of credibility. It found only that having applied 
the proper standard of law, the Magistrate’s conclusions were 
correct, while the District Court’s, because they were guided 
by the wrong law, were not.

27



The Court of Appeals did not ignore the clearly 
erroneous doctrine. It expressly noted that the application of 
an incorrect legal principles requires an exception to the 
appellate principle requiring the demonstration of clear error 
before overturing a trial court’s findings of fact. Pet. App. 
26a-27a. Petitioners do not challenge this statement of law, 
or the Court of Appeals’ determinations based on it. They 
sidestep again, relying on more dicta in the Court of Appeals’ 
opinion to reargue the Court of Appeals subsidiary findings.

The District Court noted, despite its findings of a lack 
of good faith, that Respondents had only a “short road to 
travel” to unitary status. App. 185a. It expressly found that 
Respondents had been “relatively successful in implementing 
desegregative techniques. App. 130a. And it concluded that, 
“ [undoubtedly, [Respondents] have been effective in 
desegregating [their] system.” App. 93a. To hold, as the 
Court did, that Respondents nevertheless could not be 
declared unitary, because they did not take unspecified 
additional steps, was error.

In fact, and as the Court of Appeals found, 
Respondents’ demographics data were reliable, and the 
District court used them as a basis for its finding, stated 
several times in its opinion, that demographics were a 
“substantial cause of racial identifiability” in Respondents’ 
schools. Pet. App. 108a. The District Court, using that data, 
expressly found it “probable that these few [schools contested 
by Petitioners] would have become racially imbalanced 
regardless of [Respondents’] efforts.” Pet. App. 110a. It 
found, using the same data, that the schools which were 
racially imbalanced were all located in the vicinity of other 
schools with high black enrolments and making adjustments 
to the attendance zones for the purpose of improving balance, 
“would be the expense of neighboring schools which are on

28



the verge of becoming racially identifiable.” Pet. App. 96a, 
120a. It accepted the opinion of Respondents’ expert, using 
the same data, that “shifts in the inner-city population made 
it very difficult to adjust attendance boundaries to maintain 
[racial balance]. ” Pet. App. 95a.5

Moreover, the District Court’s stated concerns with the 
demographic data were that they included more potential 
students than would be attending the various schools in 
question and reflected black percentages less than those 
reflected in actual school attendance. The concerns are not 
material. The District Court found that the imbalanced 
schools being addressed served attendance areas which were 
largely unchanged for long periods of time. Pet. App. 88a- 
93a. No African-American students were brought to these 
schools from outside the attendance areas. Pet. App. 209a. 
Thus it was undisputed that each and every student attending 
any of the schools in question lived in its attendance zone, 
regardless of whether he or she was accurately recorded by 
census takers. And the unquestioned thrust of the report 
authored by Respondents’ expert was that Hillsborough 
County experienced dramatic black population growth in 
several of its geographical distinct parts. This thesis was not 
challenged by Petitioners, and was accepted by the District 
Court, based on the only data offered at trial.

5The District Court also noted that Petitioners’ expert 
conceded that redrawing boundaries to improve racial balance at 
one school could worsen it at others. Pet. App. 120a. While the 
expert also opined that Hillsborough County was not highly 
segregated and, therefore, redrawing boundaries remained a viable 
option, the District Court noted that this last opinion was reached 
based on consideration of only five schools. Pet. App. 120a-121a.

29



To all of this must be added that facts that the District 
Court, in 1971, specifically rejected the concept of 
transporting large numbers of white students to attain racial 
balance, because of concern for “flight, ” that this concept was 
confirmed in 1998 by the same Court, writing that “bus[ing] 
children across the county to ensure racial compositions that 
comport with the county-wide ratios . . . would not be 
practicable and was not required by the Court’s 1971 Order 
. . . the constitution or governing law ,” the express finding 
that Respondents’ school openings and closings “generally 
maintained or improved racial balance” (Pet. App, 173a), and 
the findings that “ [Respondents] have not “affirmatively 
exacerbated racial imbalances. . . . ” (Pet. App. 129a), and 
“[t]here is no indication that the racial identity of 
[Respondents’] schools has been deliberately caused by 
segregative policies or practices by [Respondents] (Pet. App. 
125a).” In short, Respondents proved all that was required of 
them to demonstrate unitary status, and the Court of Appeals 
properly so found.

CONCLUSION

The holding of the Eleventh Circuit in this case was 
that the District Court applied the incorrect legal standard to 
the record before it, and that error infected and tainted its 
ultimate conclusion to a point that reversal was required. 
Petitioners do not challenge that holding. Their attempts to 
raise issues and matters not decided by the Court of Appeals 
does not warrant a grant of certiorari.

30



Respectfully submitted,

W. Crosby Few 
Few & Ayala 
109 North Brush Street 
Suite 201
Tampa, Florida 33602 
813-229-6401

Thomas M. Gonzalez 
Counsel o f Record 
Thompson, Sizemore 

& Gonzalez, P.A.
109 North Brush Street 
Suite 200
Tampa, Florida 33602 
813-273-0050



APPENDIX 1

IN THE
UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 
TAMPA DIVISION

[Filed December 10, 1958]

Civil Action No. 3554 
Julian A. Blake, Clerk

ANDREW L. MANNING, a "minor, )
by his father and next Friend, WILLIE )
M. MANNINGS; SHAYRON B. REED )
and SANDRA E. REED, minors, by )
their father and next friend, )
SANDERS B. REED; NATHANIEL )
CANNON, NORMAN THOMAS )
CANNON, TYRONE CANNON and )
DARNEL CANNON, minors, by their )
father and next friend, NATHANIEL )
CANNON, SR.; and GAIL RENE )
MYERS, a minor, by her father )
and next friend, RANDOLPH MYERS, )
Plaintiffs, )

)
v. )

)
THE BOARD OF PUBLIC )
INSTRUCTION OF )

lb



HILLSBOROUGH COUNTY, )
FLORIDA and CLYDE McLEOD, )
AL CHIARAMONTE, JOHN COLEMAN ) 
and MARVIN GREEN, Members of the )
Board of Public Instruction of )
Hillsborough County, Florida and )
J. CROCKETT FARNELL, )
Superintendent of Public Instruction in )
Hillsborough County, Florida, )
Defendant. )
__________________________________________)

COMPLAINT

Jurisdiction

1. The jurisdiction of this Court is invoked pursuant to 
title 28, United States Code, §1343(3), this being an action 
which is authorized by law, Title 42, United States Code, 
§1983, to be commenced by any citizen of the United States 
to redress the deprivation under color of state law, statute, 
ordinance, regulation, custom or usage of rights, privileges 
and immunities secured by the Constitution and laws of the 
United States. The rights here sought to be redressed are 
rights guaranteed by the due process and equal protection 
clauses of the Fourteenth Amendment to the Constitution of 
the United States and by Title 42, United States Code, §1981.

Type of Proceeding

2. This is a proceeding for a permanent injunction 
enjoining the defendants herein from continuing to pursue 
their policy, custom and usage of operating the public schools 
of Hillsborough County, Florida on a racially segregated 
basis, in violation of rights secured to the plaintiffs by the due

2b



process and equal protection clauses of the Fourteenth 
Amendment to the Constitution of the United States and by 
Title 42, United States Code, §1981.

3. This proceeding is brought es a class action by the 
plaintiffs on behalf of themselves and on behalf of other 
persons similarly situated, pursuant to the provisions of Rule 
23(a)(3) of the Federal Rules of Civil Procedure, The 
plaintiffs and the members of the class which they represent 
are minor Negro children and their parents, who are citizens 
of the United States and of the State of Florida, residing in the 
City of Tampa, Florae All of the minor children are eligible 
to attend the publi. elementary schools maintained and 
operated by defendants. The minor children are all similarly 
effected by the policy of the defendants which is attacked in 
this complaint in that all the minor plaintiffs are required to 
attend public elementary schools which are maintained and 
operated by defendants for Negro children exclusively and are 
denied the right to attend certain other schools which are more 
conveniently located for them solely because of their race and 
color. The persons which constitute this class are so numerous 
as to make it impracticable to bring each member of the class 
before the court, but there are common questions of law and 
fact involved affecting the several rights of the members of 
the class and a common relief is sought for all of the members 
of the class. The minor plaintiffs and their adult parents 
adequately represent the class.

4. The plaintiffs in this case are Andrew L. Mannings, 
a minor, by his father and next friend, Willie M. Mannings; 
Shayron B. Reed and Sandra E. Reed, minors, by their father 
and next friend, Sanders B. Reed; Nathaniel Cannon, Norman 
Thomas Cannon, Tyrone Cannon and Darnel Cannon,

Complaint - December 10, 1958

3b



minors, by their father and next friend, Nathaniel Cannon, 
Sr.; and Gail Rene Myers, a minor, by her father and next 
friend, Randolph Myers. The minor plaintiffs and their fathers 
are Negro citizens of the United States and of the State of 
Florida, residing in the City of Tampa, Florida, which is 
located in Hillsborough County, Florida. Each minor plaintiff 
is eligible under the laws of the State of Florida to attend the 
public elementary schools operated by he defendants in this 
case. Each minor plaintiff, with the exception of one, Gail 
Rene Myers, is presently enrolled in a Negro elementary 
school under the jurisdiction, management and control of 
defendants. Gail Rene Myers will be eligible to enroll in 
school for the first time in September 1959.

Defendants

Com plaint - December 10, 1958

5. The defendants in this case are The Board of Public 
Instruction of Hillsborough County, Florida and Clyde 
McLeod, A1 Chiaramonte, John Coleman and Marvin Greene, 
members of The Board of Public Instruction of Hillsborough, 
County, Florida and J. Crockett Farnell, Superintendent of 
Public Instruction of Hillsborough County, Florida. The 
Board of Public Instruction maintains and operates the public 
school system of Hillsborough County, Florida, pursuant to 
the laws of the State of Florida. The defendant J. Crockett 
Farnell is the Superintendent of Public Instruction of 
Hillsborough County, Florida and, as such is the chief 
administrative officer of the Board of Public Instruction of 
Hillsborough County, Florida. The individual members of the 
Board of Public Instruction of Hillsborough County, Florida, 
determine the policies of the Board.

4b



Complaint - December 10, 1958 

Policy Of Which The Plaintiffs Complain

6. The plaintiffs herein allege that the defendants, 
acting under color of the authority vested in them by the laws 
of the State of Florida, have pursued and are presently 
pursuing a policy of operating the public school system of 
Hillsborough County, Florida on a racially segregated basis. 
Pursuant to this policy, 72 of the public schools of 
Hillsborough County are limited to attendance by white 
students only and 18 schools are limited to attendance by 
Negro students. Pursuant to this policy, many Negro students, 
including some of the minor plaintiffs, who reside nearer to 
schools limited to white students are required to attend 
schools limited to Negro students which are considerably 
removed from the places of their residences. In some 
instances, some of the minor plaintiffs and other minor 
Negroes similarly situated are required to travel as much as 
ten miles to attend a Negro elementary school, whereas they 
reside only two blocks from a white elementary school.

Defendants' Refusal to Change the Policy

7. On or about August 16, 1955, the defendants were 
formally petitioned by Negro parents of children eligible to 
attend the public schools of Hillsborough County, Florida, to 
abolish the segregation policy complained of herein. This 
formal, petition was followed by several letters on behalf of 
the Negro parents requesting defendants to desegregate the 
public schools of Hillsborough County, Florida. Despite this 
petition and despite the several letters directed to the 
defendants, the defendants have refused to discontinue the 
policy of operating the public schools of Hillsborough 
County, Florida on a racially segregated basis. Defendants'

5b



refusal to change the policy of operating the public schools of 
Hillsborough County on a racially segregated basis operates 
to prevent the plaintiffs from being assigned to white schools 
nearer to their places of residence which they would attend if 
they were white and which they presently desire to attend.

Irreparable Injury

8. As a result of the refusal of the defendants herein to 
discontinue the policy of operating the public school system 
of Hillsborough County, Florida, on a racially segregated 
basis, the minor plaintiffs herein and the other minor Negro 
children similarly situated, have suffered and shall continue 
to suffer injury which is irreparable to them. It is, therefore, 
necessary for this court to issue an injunction enjoining the 
segregation policy in order that this irreparable injury to 
minor plaintiffs herein shall cease. The plaintiffs have no 
other speedy or adequate remedy at law to redress the injury 
complained of herein.

WHEREFORE, plaintiffs respectfully pray that this 
court advance this cause on the docket and order a speedy 
hearing of this case and that after such hearing this court enter 
a permanent injunction forever restraining and enjoining the 
defendants, their agents, employees, attorneys and successors 
and all persons in active concert and participation with them, 
from continuing to pursue the policy of operating the public 
schools of Hillsborough County, Florida on a racially 
segregated basis and enjoining them from refusing to permit 
the minor plaintiffs, and other minor Negro children similarly 
situated, to attend schools nearer their places of residence 
solely because of the race and color of said minor plaintiffs.

Com plaint - December 10, 1958

6b



Complaint - December 10, 1958

Plaintiffs pray that this court will allow them their 
costs herein and grant them such other, additional, or 
alternative relief as may appear, to the court to be equitable 
and just.

Francisco A. Rodriguea 
703 Flarrison/Street 
Tampa 2, Florida

Constance Baker Motley 
Thurgood Marshall 
10 Columbus Circle 
New York 19, N. Y.

Attorneys for Plaintiffs

7b



APPENDIX 2

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FUORIDA 

TAMPA DIVISION

*No. 3554 Civ. T 
Wesley R. Thies, Clerk

[Filed May 11, 1971]

ANDREW L. MANNINGS., et al, )
Plaintiffs, )

)
vs. )

)
THE BOARD OF PUBLIC )
INSTRUCTION OF )
HILLSBOROUGH )
COUNTY, FLORIDA, et al )
Defendants )
__________________________________  )

OPINION AND ORDER

This is a school desegregation case. Named as 
defendants are the Board of Public Instruction of Hillsborough 
County, Florida, the members of the Board, and the

8b



Opinion and Order - May 11, 1971

Superintendent of Public Instruction of Hillsborough County.1 
Hereinafter they will be referred to as "defendants" or "school 
board."

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

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

To obviate any doubt that there is and has been state- 
compelled segregated schools in Hillsborough County, which 
this Court and others have previously found and again so 
finds, this opinion and order will necessarily be in some 
detail.

Some of this may not be known by some or all 
members of the present board, although it should be. To be 
sure that they do know, a copy of this Order and a copy of the

1 Since the institution of this action the boards of public 
instruction have been renamed school boards. Art.9 § 4(a), Fla. 
Const. 1968; Chapter 69-300, Laws of Florida 1969; Section 
230.21, Florida Statutes 1970. County superintendents of public 
instruction have been renamed superintendents of schools. Art.9 § 
5, Fla. Const. 1968; Chapter 69-300, Laws of Florida 1969; 
Section 230.321, Florida Statutes 1970.

Under the provisions of Rule 25(d), F.R.Civ. P. the School 
Board of Hillsborough County, the present members of the School 
Board, and the incumbent Superintendent of Schools of 
Hillsborough County are now the defendants in this action as the 
successors in office of the 1958 defendants.

9b



Opinion and  Order - May 11, 1971

April 20, 1971, Supreme Court Opinion in Swann v.
Charlotte-Mecklenburg Board of Education, ______  U.S.
_____ , 39 U.S.L.W. 4437 (1971) will be sent separately to
each defendant. It is assumed that being informed each will 
fulfill his or her sworn obligation to "support and defend the 
Constitution of the United States," as did the Court. Each 
should remember that he is a defendant, and that the Court 
will uphold its obligation.

On April 14, 1971, the Court.received a letter from 
the Superintendent of Schools of Hillsborough County, Dr. 
Raymond O. Shelton. Part of the letter reads:

In response to a delegation of parents 
representing the Gorrie and Carver Elementary 
Schools in Tampa, the Hillsborough County 
Board of Public Instruction has directed that I 
inform the Court of the Board's desire to 
"unpair" schools in this County. It is the 
strong feeling of the parents from Gorrie and 
Carver Schools, a feeling in which the Board 
concurs, that education in the paired schools is 
deteriorating rather than improving.* * *

The parents have documented many short 
comings in these schools which they attributed 
to pairing and are very concerned about the 
damage that is being done to children and also 
the damage that is being done to the public 
school system by "white flight".

The Court's most recent attempt to persuade and then 
require defendants to operate their school system in

10b



conformity with the United States Constitution occurred in 
August 1970. At that time several orders were issued calling 
for the desegregation of various schools in Hillsborough 
County during the 1970-1971 school year. Since August 1970 
important changes in law and fact affecting this case have 
supervened.

The school board filed a report in November 1970 
which clearly indicated that the Court's desegregation orders 
were not having the intended effect of abolishing the dual 
system of schools in Hillsborough County. Second, the Court 
of Appeals for the Fifth Circuit handed down a string of 
opinions with respect to the disestablishment of 
segregated.school systems. Finally, on April 20, 1971, the 
Supreme Court of the United States in four 9-0 decisions set 
forth with clarity and precision the responsibilities of district 
courts and school boards in achieving an end to state- 
compelled school segregation.

A federal court is bound to consider any change, either 
in law or fact, which has supervened and affects a prior 
judgment. Bell v. Maryland, 378 U.S.226 (1964); Singleton 
v. Jackson Municipal Separate School District. 419 F.2d 1211 
(5 Cir. 1969) . The Ccurt will therefore re-examine the status 
of the Hillsborough County School System from the 
standpoint of all essentials required to convert a dual school 
system into a unitary one.2

Opinion and Order - May 11, 1971

2 The Court will concern itself principally with only one 
of the six essential elements which go to disestablish a dual system- 
student assignment.

l i b



Opinion and Order - May 11, 1971 

HISTORY OF THE CASE 

I

This action was begun in December 1958, over 12 
years ago.3 It is the oldest case on the active docket of the 
Court.4

The original complaint, filed December 10, 1958, 
alleged in part:

* * * the defendants, acting under color of the 
authority vested in them by the law of the State 
of Florida, have pursued and are presently 
pursuing a policy of operating the public 
school system of Hillsborough County, 
Florida, on a racially segregased basis. 
Pursuant to this policy, 72 of the public 
schools of Hillsborough County are limited to 
attendance by white students only and 18 
schools are limited to attendance by Negro 
students. Pursuant to this policy, many Negro 
students including some of the minor plaintiffs, 
who reside nearer to schools limited to white

3 At the time this suit was instituted counsel for plaintiffs 
included Thurgood Marshall, an Associate Justice of the Supreme 
Court since 1967, and Constance Baker Motley, a District Judge in 
the Southern District of New York since 1966.

4 The papers filed in this case, including pleadings, 
motions, exhibits, depositions, orders, and so forth, now weigh a 
total of 62-1/2 pounds and, when stacked on top of each other, rise 
2 feet, 3 inches off the ground.

12b



Opinion and Order - May 11, 1971

students are required to attend schools limited 
to Negro students which are considerably 
removed from the places of their residences. In 
some instances, some of the minor plaintiffs 
and other minor Negroes similarly situated are 
required to travel as much as ten miles to 
attend a Negro elementary school, whereas 
they reside only two blocks from a white 
elementary school.5 6 [Emphasis supplied.]

The complaint was dismissed by a judge of the 
Southern District of Florida, now retired, on August 7, 1959, 
on the ground that plaintiffs had not exhausted their 
administrative remedies available under the Florida Pupil 
Assignment Faw. Section 230.232, Florida Statutes. 
6Plaintiffs appealed, and on April 13, 1960, the Court of 
Appeals reversed. Mannings v. Board of Public Instruction of 
Hillsborough County, 277 F. 2d 370 (5 Cir. 1960) (hereafter 
Mannings I).

The Court of Appeals held:

The Board seems to proceed on the 
assumption that the presence of the 
Assignment laws on the statute books legally 
excludes the possibility of the Board's 
continuing a policy of racial segregation in the

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

6 Judge George Whitehurst. Hillsborough County was in 
the Southern District of Florida until October 28, 1962, when the 
Middle District of Florida was created. See Pub. L. 87-562, 76 
Stat. 247, now codified in 28 U.S.C. § 89.

13b



county schools. It follows, it says, that 
injunctive relief would be inappropriate. This, 
of course, does not follow. Mannings I , 277 
F.2d at 373.

After referring to "[tjhe failure of appellee [i.e., the school 
board] to show any disposition to abandon the segregation 
policy, long pursued, and, since 1954, known to be illegal," 
the Court of Appeals declared:

We conclude that, without being 
required to make application for assignment to 
a particular school, the individual appellants, 
both for themselves and for the class which 
they represent, are entitled to have the trial 
court hear their evidence and pass on their 
contention that the pupil assignment plan has 
not brought an end to the previously existing 
policy of racial segregation. In the event proof 
of this fact is made appellants would be 
entitled to their injunction as Mannings I . 277 
F.2d at 375.

Subsequent to the reversal there were further 
proceedings in this case. Non-jury trial was held December 4- 
6, 1961, before another judge who has since been elevated to 
the Court of Appeals.7

On August 21, 1962, almost four years after the suit 
was commenced, Findings of Fact and Conclusions of Law

Opinion and  Order - May 11, 1971

7 Judge Bryan Simpson

14b



were entered. Based on the evidence the Court found as
matters of fact:

6. Prior to 1954, the public schools of 
Hillsborough County were operated on a 
completely segregated basis, i.e ., certain 
schools were maintained and operated for the 
exclusive attendance of Negro children and 
certain schools were maintained and operated 
for the exclusive attendance of white children.
The Negro schools were staffed by Negro 
personnel and the white schools were staffed 
by white personnel.

7. Prior to September, 1961 there was no 
change in the racial composition of any 
Hillsborouyh County school. On that date one 
seven (7) year old Negro boy (not a plaintiff 
here) was admitted to Bayside School, a school 
for handicapped children in the county.* * * 12

12. At the time of trial there were 
approximately 80,000 children enrolled in the 
114 public schools of Hillsborough County, 20 
of which schools are Negro schools and 94 of 
which are white schools. There are
approximately 3,500 teachers. Attendance 
zone lines are established for each of the 
elementary schools as required by Florida Law 
(Section 230.23 Fla. Stat.) School attendance 
area lines are revised each year for the purpose 
of utilizing each school to its capacity.

Opinion and Order - May 11, 1971

15b



Opinion and Order - May 11, 1971

In numerous instances attendance area 
lines for white and Negro schools overlap 
requiring Negro students to travel a 
considerable distance to attend a racially 
segregated school, when schools limited to 
white students are located within close 
proximity to their residence. Some of the 
minor plaintiffs here attend a Negro 
elementary school ten (10) miles from their 
residence, whereas they reside within two of\r 
three blocks from a white school.

The junior and senior high schools are 
operating on the feeder system. This means 
that graduates of Negro elementary schools are 
customarily promoted to Negro junior high 
schools and in turn to Negro senior high 
schools, and that graduates of white 
elementary schools are promoted to white 
junior high schools and in turn to white senior 
high schools. Thus, the compulsory biracial 
system started with elementary school through 
separate attendance areas carries through the 
final grade of high school.

Plant City is a community of about 
15,000 inhabitants near the eastern edge of 
Hillsborough County, with a white high school 
in the east end of that town and a Negro 
junior-senior high school in the west end of the 
town. There are Negro and white residential 
sections near each high school. However, 
Negro students from the east end of town cross

16b



Opinion and  Order - May 11, 1971

the town to attend the Negro school and white 
students from the west end of town cross the 
town to attend the white high school.8

This pattern of mixed residential areas 
close to school exists in a number of other 
sections of the county. In each instance racially 
segregated attendance is brought about by 
reason of separate, overlapping dual school 
zone lines for white and Negro schools. In 
addition to the Ybor City section, such 
neighborhood areas include Old Port Tampa 
and West Tampa.* * *

13. * * * [The Record] is a clear
demonstration of the way in which the Florida 
Pupil Assignment Law, and the resolutions 
adopted by the defendant Board thereunder, 
has been used as an instrument to balk attempts 
at desegregation, and not as a means to 
accomplish desegregation. Few parents have 
the time and the patience to follow through to 
the unexpected success that Mr. Saunders 
achieved a year and a half after he started

8 At hearing on October 5, 1962, counsel for the school 
board asked the Court to amend its Findings so as to state that the 
evidence also indicated that many white students traveled 
considerable distances to attend white schools despite the existence 
of black schools closer to their homes. The request was denied 
since this is an action to vindicate the rights of black American 
citizens. Certainly however the record is clear that both whites and 
blacks have been obliged to attend schools not nearest their homes 
in order to perpetuate segregation.

17b



Opinion and  Order - May 11, 1971

trying to enter his six year old child in the first 
grade of the elementary school nearest his 
home.

14. Whatever its merits in the abstract, the 
Florida Pupil Assignment Law, has been and 
is being discriminatorily and unconstitutionally 
applied by the defendant Board as a means of 
effectively resisting desegregation of the 
defendant school system. [Emphasis supplied]

Also on the basis of the evidence Judge Simpson concluded as
a matter of law that:

1. On and prior to May 17, 1954, the public 
school system of Hillsborough County was 
operated on a compulsory biracial basis 
pursuant to the Constitution* * *and the laws 
of the State of Florida. * * * Separate schools 
were constructed, operated and maintained, 
staffed by white personnel for white pupils 
only. Separate schools for Negro pupils only 
were constructed, maintained and operated, 
staffed by Negro personnel.

2. Despite the United States Supreme Court 
decisions in Brown v. Board of Education of 
Topeka. Kansas. 347 U.S. 483 (May 17, 1954) 
and 349 U.S.294 (May 31, 1955), and Cooper 
v. Aaron. 358 U .S .l (September 29,1958) 
holding all state laws which either require or 
permit racial segregation in the public schools 
to be unconstitutional under the Fourteenth

18b



Amendment, the defendants have continued to 
operate the Hillsborough County School 
System on a. racially segregated basis as a 
matter of custom, policy and usage. No steps 
have been taken by defendants to reorganize 
this biracial school system into a single, non- 
racial school system.* * *

4. The duty to initiate desegregation of the 
public school system of Hillsborough County, 
is cast upon the defendant school authorities 
under the decision in the instant case by the 
Court of Appeals for the Fifth Circuit.* * *

5. The existence of the Florida Pupil 
Assignment Law and the opportunity to apply 
thereunder for reassignment does not 
automatically and ipso facto relieve the 
defendants of their duty to operate the school 
system under their charge on a non-racial 
basis.* * *

The basic fault inherent in the present 
application of the criteria of the Pupil 
Assignment Law is tkat only after a Negro 
child has first been assigned to a segregated 
school, under the area attendance zone lines 
now in force, is he permitted to seek 
reassignment. * * *to remove discrimination, 
the initial assignment must not be based on 
racial grounds. * * *

Opinion and Order - May 11, 1971

19b



Opinion and  O rder - May 11, 1971

6. The evidence shows that the Florida 
Pupil Assignment Law has been applied by 
these defendants in an unconstitutional manner 
to effect an unconstitutional result, that is to 
say, it has been applied so as to perpetuate and 
maintain racial segregation in the public 
schools of Hillsborough County, and it has 
been applied so as to defeat and evade in a 
racially discriminatory fashion, the attempts of 
parents of Negro children to transfer their 
children to previously all white schools. * * * 
in 1960 and 1961, when Negro parents sought 
reassignment of their children to white 
schools, the law was used to subject these 
pupils to investigation, tests, deliberations and 
determinations not applied to the application of 
white pupils seeking reassignment to white 
schools or to Negro pupils seeking 
reassignment to Negro schools.

In accordance with the Findings of Fact and 
Conclusions of Law of that date, an injunctive decree was 
issued on August 21, 1962. The decree found that the equities 
of the cause were with plaintiffs and permanently enjoined 
defendants and their successors in office from operating a 
racially discriminatory school system in Hillsborough County. 
The school board was given until October 30, 1962, to file a 
comprehensive plan of desegregation.

The plan, filed October 29, 1962, provided for 
integration of one grade a year, beginning with the first grade 
in the 19631964 school year. Under the plan the dual system 
of separate attendance areas for the first grade in each of the

20b



schools wkere dual areas had theretofore existed would be 
abolished and a single attendance area was to be provided for 
attendance therein by first grade students located in such 
attendance area. Every child entering the first grade was to 
have the option of attending either (a) the school nearest his 
residence, or (b) the school nearest his residence wherein 
members of the child's race were numerically predominant. 
This arrangement was to be extended one grade a year each 
successive school year.9

Plaintiffs objected to the plan and submitted their own 
plan. It was their proposal that the school board draw up new 
attendance areas without regard to race for all its elementary- 
schools, with elementary school children being required to 
attend the elementary school within their zone. The school 
board would be required by January 1, 1964, to submit a plan 
for desegregating all other grades.10

By order entered May 8, 1963, Judge Simpson 
approved the school board's plan with minor modifications. 
Judge Simpson wrote:

To the extent that the injunctive 
features of the August 21, 1962 decree are not 
ordered immediately enforced herein, and in 
later orders of the Court, it is emphasized that 
deferment thereof is dictated by practical 
considerations and by the court's firm

Opinion and  Order - May 11, 1971

9 Defendants' Plan, filed October 29, 1962.

10 Plaintiffs' Proposed Plan of Desegregation, filed 
November 16, 1962.

21b



conviction that orderly step by step 
implementation of its August 21, 1962 decree 
is both beneficial and necessary.* * *

Unmodified, the plan as submitted and 
herein approved would require twelve (12) 
years, on a grade a year basis, before complete 
desegregation of Hillsborough County schools 
would be accomplished. It is extremely 
doubtful that the present Board of Public 
Instruction or its successors in office will find 
it necessary or desirable to stretch the process 
out to the fall of 1974 (this year's entering first 
graders will at that time be rising high school 
seniors. The amendment of the plan so as to 
accelerate its grade a year provisions should be 
and will be a matter for recurring
reconsideration by the Court, upon application 
of plaintiffs or defendants, or upon the Court's 
own motion.

Following the order of May 8, 1963, these 
proceedings continued with unabated vigor. Motions and 
pleadings were filed, additional discovery was undertaken, 
exhibits and reports were docketed, hearings were held, and 
orders were entered.

The school board expedited its plan for desegregation 
by one year for the 1965-1966 school year, so that the plan's 
provisions were applied to fourth, as well as first, second, and

O pinion and  Order - May 11, 1971

22b



third graders.11 The plan was again expedited the following 
year: during the 1966-1967 school year it was applicable to 
all students in grades one through six.11 12

Upon Judge Simpson's appointment to the Court of 
Appeals the case was assigned to Judge Joseph P. Lieb in 
early 1967.

On May 15, 1967, Judge Lieb entered an Order on 
Motion for Further Relief which superseded the order of May 
S, 1963, and directed the implementation of a new plan of 
desegregation. Commencing with the 1967-1968 school year, 
a single system of non-racial attendance areas was to be 
established for all Hillsborough County schools. Each student 
was to be assigned to the school or schools in the attendance 
area of his residence. Where there was more than one school 
in such attendance area offering the same grade to which the 
student was eligible, he would have a “free choice” among 
such schools, and no choice was to be denied for any reason 
other than overcrowding.

Transfers to schools outside an attendance area would 
be perm/tted for handicapped students or students with special 
course needs. A majority to minority transfer provision was 
adopted; that is, the school board would on request permit any 
student to transfer from a school where his race was in the 
majority to one where it was in the minority. Finally, the

Opinion and  Order - May 11, 1971

11 See Defendants' Fourth Supplemental Progress Report, 
filed November 30, 1965.

12 See Defendants' Fifth Supplemental Progress Report, 
filed November 8, 1966.

23b



Order required the defendants to take prompt steps to equalize 
facilities at the formerly black schools.

On its face the plan appeared to be a zoning-type 
desegregation plan, but actually it was a type of freedom of 
choice plan. It combined the use of attendance areas with 
freedom of choice, the freedom of choice being limited to the 
schools within the student's attendance area. Most of the 
white schools were placed in attendance areas containing only 
one school. But every school that was black was placed in 
attendance areas with one or more white schools.13 Students 
in these areas were thus given the option of attending a white 
school or a black school. As the school board later phrased it, 
this “enabled the students, without regard to race to have a 
free choice of more than one school where the student's race 
was in the minority.”14

On December 16, 1968, plaintiffs filed a motion for 
further relief. It alleged:

[T]he report on the operation of the Freedom 
of Choice Plan filed with the Court by 
defendants pursuant to the My 15, 1967 Order 
of this Court demonstrates that the Freedom of

Opinion and  O rder - May 11, 1971

13 This Court considers and defines a white school as a 
school that is attended by white students only, or whose student 
body is at least 95% white. A black school is a school with a 
student population that is all black or at least 90% black. See 
Supplemental Findings of Fact, filed March 31, 1970; Singleton v. 
Jackson Municipal Separate School District. 434 F.2d 927, 931 (5 
Cir. 1970).

14 Defendants' Comprehensive Plan for Racially Non- 
Discriminatory School System, filed April 15, 1969, p. 15.

24b



Opinion and  Order - May 11, 1971

Choice-Attendance Areas Plan fails to provide 
a real prospect for dismantling the dual system 
at the earliest practicable date. During the 
choice period for the 1968-69 school year out 
of approximately 7,200 Negro elementary 
school children in Hillsborough County, only 
approximately 1,800 chose to attend white 
elementary schools and cf approximately 2,700 
Negro high school students, only 850 chose to 
attend white high schools, and less than twenty 
(20) white elementary students chose to attend 
formerly all Negro schools, and no white high 
school students chose to attend all Negro high 
schools. * * * in the Junior high schools no 
white students chose to go to formerly all 
Negro junior high schools.

After a hearing on the motion, Judge Lieb entered an 
order on March 5, 1969, directing the school board, no later 
than April 15, 1969, to submit a comprehensive plan for 
establishing a raciall nondiscriminatory school system in 
Hillsborough County. In formulating the plan the school 
board was to consider rezoning, consolidation of schools, 
pairing of schools, or any other method which would 
effectively eliminate the dual system.

With assurance that "the proposed Plan submitted 
herewith promises prompt and meaningful progress toward 
establishing a racially non-discriminatory school system,”15 
the school board filed its new plan on April 15, 1969.

15 Id. atp. l .

25b



According to the school board, the Florida School 
Desegregation Consulting Center at the University of Miami, 
Coral Gables, Florida, had participated in the preparation of 
the plan.

Basically, the April 15, 1969 plan wax a slight 
revision of the plan put into effect by the order of May 15, 
1967. It was not the school board's intention to substantially 
alter the plan already in operation.

The present attendance areas have 
brought about desegregation of schools in 
many neighborhoods. Any further revision of 
the unified attendance areas would not increase 
desegregation with a few exceptions that will 
be discussed [later]. * * *

The shifts in population in some 
formerly predominately white neighborhoods 
have caused these communities to be 
predominately Negro. The Negro pupil 
population in the schools serving these 
c o m m u n i t i e s  has  a l so i n c r e a s e d  
proportionately. To increase the attendance 
area of any predominately Negro school or 
predominately white school to bring about 
more desegregation would cause students so 
assigned, both Negro and white [,] to travel 
unreasonable distances. Some schools will 
always be all Negro and some all white 
because the communities they serve are all of 
one race due to voluntary housing patterns.

Opinion and Order - May 11, 1971

26b



It then becomes necessary to unify the 
attendance areas of these schools to provide 
these students with the opportunity to attend a 
school where their race is in the minority.16

The system whereunder black schools were placed in 
attendance areas also containing white schools with students 
in these areas to choose which school to attend was continued. 
However, some of these attendance areas were unified. 
Boundary changes for the attendance areas of other schools 
were also made, "but the changes will not necessarily affect 
the racial composition of the schools.”17 In all other respects 
the plan of May 15, 1967, would be continued.

Plaintiffs objected to the plan. They complained that 
the plan was simply another free choice system with little 
prospect of successfully accomplishing desegregation:

An analysis of this type of zoning reveals a 
blatant scheme for racial discrimination.
Where Negro students are not involved, the 
defendants have one school attendance area.
Where Negroes are involved, there are two or 
three schools involved, giving a white child18 
the option to continue to attend the white 
school.

Opinion and Order - May 11, 1971

16 Id. at pp. 16-17

17 Id. at p. 18.

18 Plaintiffs’ Objections to Defendants’ Proposed Plan, 
filed May 5, 1969, p. 4.

27b



Concluding that its plan was "inadequate, at the 
present time," Judge Lieb ordered the school board to 
"formulate and adopt a revised comprehensive plan 
specifically considering the use of zoning, pairing “* * *19

The plan was filed May 23, 1969. The attendance 
zones of seven elementary schools were to be revised.20 Ten 
elementary schools were to be paired; that is, these schools 
were placed in five attendance zones with two schools in each 
zone.21 Students would attend one of the two schools in their 
zone and would not have a choice of which school to attend 
because neither of the schools would have the same grades. 
The boundaries of six junior high schools would be altered.22 
Three of the senior high schools—Blake, Middleton, and 
Hillsborough, which under the May 15, 1967, order shared 
one attendance area—were to be given revised and separate 
attendance areas. In all other respects the plan of April 15, 
1969, wculd be adhered to, and the provisions of that plan 
were inccrporated by reference into the present plan.

On June 2, 1969, plaintiffs filed objections tc the new 
plan. On July 18, 1969, the school board filed a motion fcr

Opinion and O rder - May 11, 1971

19 Order of May 9, 1969, pp. 1, 2.

20 Roland Park, Macfarlane, Williams, Burney, Lincoln, 
Jackson Heights, Progress Village.

21 Dunbar was to be paired with Cuesta; Lee with 
Henderson; Edison with College Hill; Orange Grove with Ybor; 
and Springhead with Glover.

22 Just, West Tampa, Booker T. Washington, Young, 
Memorial, George Washington.

28b



leave to amend the May 23, 1969, plan; this motion was 
denied the same date. On July 25, 1969, for the third time that 
year, the school board was ordered by Judge Lieb to submit 
satisfactory plans for desegregation.

The August 1, 1969, plan established attendance zones 
for each of the public schools in Hillsborough County. Each 
school had a separate attendance area except the Macfarlane- 
Cuesta Schocl. The majority to minority transfer policy was 
continued. Any junior or senior high school student needing 
a course of study not offered by the school serving his 
attendance zone would be permitted to transfer to any school 
in the county offering that course of study. There were similar 
transfer provisions for exceptional and handicapped children. 
In certain cases transfers outside attendance areas were 
permissible for elementary school children.

Under the plan there were to be 783 blacks, 90 whites 
at Blake Senior High School, and 993 blacks, 137 whites at 
Middleton High School. There was to be a student population 
of 662 blacks, 36 whites at Just Junior High School; 609 
blacks, 0 whites at Booker T. Washington Junior High 
School; and 1,000 blacks, 90 whites at Young Junior High 
School. Marshall High School in Plant City was to be paired 
with Tomlin Junior High School. Marshall would have the 
seventh and Tomlin the eighth and ninth grades.

Seven elementary schools—Carver, Dunbar,
Henderson, Meacham, Potter, Roland Park, Shore—were to 
remain completely black, and 5 more were to be at least 90% 
black: College Hill, Lincoln, Lomax, Williams, Ybor. There

Opinion and  Order - May 11, 1971

29b



were to be large concentrations of blacks at Glover, Jackson 
Heights, Progress Village, and Simmons.23

Plaintiffs objected to the plan and asserted that 
alternatives existed whereby greater desegregation could be 
achieved.24

On August 18, 1969, Judge Lieb entered a Final Order 
approving the August 1, 1969, plan with minor qualifications. 
Mannings v. Board of Public Instruction of Hillsborough 
County. 306 F.Supp. 497 (M.D.Fla. 1969) (Mannings II).

In September 1969 plaintiffs appealed. On November 
19, 1969, Judge Lieb assigned the case to the undersigned, the 
fourth judge to preside over these proceedings.

II

On March 6, 1970, the Court of Appeals temporarily 
remanded the case for limited purposes. This Court was 
directed to supplement its findings of fact by (a) filing maps 
showing the location of each school and the area served by 
each school so as to reflect student assignments as of October 
24, 1969, and (b) filing a table showing the school population, 
by race, which would result if a neighborhood school 
attendance policy as defined in Ellis v. Board of Public

Opinion and  Order - May 11, 1971

23 These statistics are taken from the maps filed by 
defendants to accompany the August 1, 1969, plan.

24 Plaintiffs' Objections, filed August 11, 1969.

30b



Instruction of Orange County. 423 F.2d 203 (5 Cir.1970), 
were adopted.25

On March 31, 1970, the undersigned filed and 
forwarded to the Court of appeals the maps and table 
requested, together with 17 pages of supplemental findings of 
fact. These findings established that as of October 24, 1969, 
91 of Hillsborough County's 124 public schools were 
identifiable as either black or white. Whites were to be found 
in 10 white schools containing 61,478, or 74%, of all the 
white students in the county. The blacks were concentrated in 
21 schools containing 12,751, or 65%, of the county's black 
students. In particular, these findings demonstrated:

(1) Fifty-two elementary schools with 
36,214, or 82%, of the white elementary 
students were white schools. Sixteen 
elementary schools, with 8,530, or 74%, of the 
black elementary students were black schools.

(2) Eleven junior high schools withal3,515, 
or 68 %, of the white junior high students were 
white schools. Three junior high schools (Just,
Booker T. Washington, Young) with 2,334, or 
48 % of the black junior high school students 
were black schools.

(3) Seven senior high schools with 11,749, 
or 61 %, of the white high school students were 
white schools. Two senior high schools (Blake

Opinion and Order - May 11, 1971

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

31b



and Middleton) with 1, 887, or 58% of the 
black high school students were black 
schools.26

The supplemental findings also demonstrated that a 
neighborhood school attendance system would do little to 
eliminate the dual system. As the undersigned phrased it: 
"The extent of desegregation achieved by the neighborhood 
attendance plan is in effect indistinguishable from that 
achieved under the plan presently in effect27. Although it did 
file the table giving the projected school population resulting 
from neighborhcod attendance zones, the school board did not 
file maps showing these attendance areas, and so the Court's 
reliance on the figures given in the tables was based entirely 
upon representations made by the schcol board. At least with 
regard to attendance at Blake and Middleton Senior High 
Schools, these representations turned out to be highly 
inaccurate.

Opinion and  Order - May 11, 1971

Ill

On May 11, 1970, the Court of Appeals reversed the 
order which had been entered by Judge Lieb. Mannings v. 
Board of Public Instruction of Hillsborough County. 424 F.2d 
874 (5 Cir. 19701 (Mannings III). A panel consisting of 
Judges Bell, Ainsworth and Godbold found "the Hillsborough 
system deficient in student assignment throughout the 
system." 427 F.2d at 876.

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

27 Id a tp . 15.

32b



As to student assignment the Court of Appeals, based 
on the supplemental findings of fact, found "that with the 
exception of the two all Negro high schools, there would be 
no substantial change in the racial composition of the schools 
in Hillsborough County under an Orange County type 
assignment system. For the reasons which follow, we 
conclude that the present assignment system is unacceptable 
as to certain schools. ” 427 F.2d at 876-877.

On the basis of the projections furnished by the school 
board in its table attached, to the supplemental findings, the 
appellate court found that a strict neighborhood assignment 
system would desegregate the two remaining black high 
schools. The school board's figures showed that under such a 
system there would be 877 blacks, 197 whites at Blake, and 
1010 blacks, 250 whites at Middleton. In the alternative, the 
Court was authorized to pair Blake with Plant and Middleton 
with Hillsborough. The Court of Appeals directed that the 
three remaining black junior high schools, Just, Booker T. 
Washington, and Young be paired with Wilson or West 
Tampa, Franklin or Memorial, and Sligh, Memorial, or 
Franklin, respectively. Neighborhood attendance zones for the 
black junior high schools were rejected because according to 
the school board's table the resulting school population would 
have been:

Black Students White Students

Opinion and Order - May 11, 1971

Just

Booker T. Washington 

Young

592 36

624 15

1,118 90

33b



Turning to the elementary schools, th e  C o u r t  o f  
Appeals stated: "There are 14 elementary schools with 
virtually alt Negro student bodies." 427 F.2d at 877. This was 
an error; as the supplemental findings vividly showed, there 
were 16 elementary schools at least 90% white.28 The Court 
of Appeals directed that 6 of these schools be paired- College 
Hill with Edison; Dunbar with Tampa Bay; Henderson with 
Graham; Lincoln with Jackson; Meacham with Gorrie; and 
Simmons with Burney or Wilson.

The Court of Appeals also stated that it was 
"conceivable" that "substantially the same result could be 
achieved in some of the elementary schools by redrawing zone 
lines instead of pairing." This Court was authorized to 
consider and permit rezoning as an alternative to pairing 
where the result would substantially desegregate student 
bodies, or to permit pairing in some instances and rezoning in 
others.

Opinion and Order - May 11, 1971

The majority to minority transfer policy was left intact. 
A biracial committee was ordered set up, The appellate 
opinion was to be implemented by June 6, 1970. Finally, this 
Court was directed to make its own conclusion by the 
standards stated in the opinion as to the system being unitary. 
Once it was found unitary, this Court was to retain 
jurisdiction for a reasonable period of time in order to insure 
unitary operation. By rehearing granted on June 2, 1970, the 
Court of Appeals approved the school board’s request:

28 The omitted schools were Jackson Heights and Progress 
Village. Rounded off to two decimal points each school was exactly 
90% black 10%white.

34b



Opinion and Order - May 11, 1971

to realign the attendance zones for Just, 
Booker T. Washington and Young junior high 
schools as an alternative to pairing Just with 
Wilson or West Tampa, Booker T. Washington 
with Franklin, and Young with Sligh, 
Memorial or Franklin * * * This modification 
is granted on the representation by appellees 
[i.e., the school board] that the stated zone line 
.changes will result in a student population at 
Jusl of 567 Negro and 107 white students; 625 
Negro and 115 white students in Booker T. 
Washington; and 1,075 Negro and 159 white 
students in Young. 427 F. 2d at 878. 
[Emphasis supplied].

IV

On May 13, 1970, this Court ordered defendants to 
comply with the Court of Appeals mandate. On June 6,1970, 
defendants file, a Notice of Compliance, and on June 15, 
1970, a Detailed Report of Compliance. In the Report the 
anticipated attendance figures at the two black high schools 
were different from those given in the table. The attendance 
boundaries of Blake had been altered and the contemplated 
attendance was 650 blacks, 60 whites. At Middleton with the 
same boundaries as before but under a strict neighborhood 
assignment system with no variances allowed, 1,020 blacks 
and 115 whites were expected.

Rather than pairing them, as suggested by the Court of 
Appeals, defendants elected to redraw attendance zone lines 
for certain elementary schools. Of the 6 black elementary 
schools ordered desegregated by the Court of Appeals, 1 was

35b



to be closed (Henderson), 3 were to remain all black (College 
Hills, Dunbar, Meacham), and 2 were to be over 90% black 
(Lincoln, Simmons).

On June 19, 1970, this Court ordered defendants to 
file (a) a plan for pairing Blake with Plant Senior High School 
and Middleton with Hillsborough Senior High School, (b) a 
plan for pairing the 6 black elementary schools, and (c) any 
other plan for modifying atlendance zones at the high school 
and elementary level. In response the school board filed 
figures making it obvious that more desegregation would be 
accomplished at the high school and elementary level by 
pairing than by rezoning.29

Plaintiffs' Proposed Plan of Desegregation was filed 
July 15, 1970. It used a feeder system as the means for 
estaklishing attendance at junior and senior high schools, and 
aimed at desegregating every school in Hillsborough County.

Following a hearing on July 22, 1970, at which 
testimony was heard and evidence received, the Court entered 
an order stated in part:

As directed by the court defendant 
School Board filed a plan of pairing elementary 
schools amd filed population figures by race of 
the aforesaid schools both in its proposed 
rezoning plan and under a pairing plan. Such 
comparative figures and other evidence 
received at hearing clearly establishes and the

Opinion and  Order - May 11, 1971

29 Defendants’ Information Relating to Pairing Certain 
Schools and Modifying Attendance Zones, filed July 10, 1970.

36b



court finds that the rezoning plan for 
elementary schools as proposed by the School 
Board does not substantially accomplish the 
same amount of desegregation as would the 
pairing plan proposed by the School Board at 
the Court's direction.30

Noting that a further rezoning plan or a plan whereby 
several elementary schools were grouped might accomplish 
the desired results, the Court gave the.school board until 
August 21, 1970, to file a revised rezoning plan for 
elementary schools.

Defendants' second rezoning plan was filed August 11, 
1970, At the close of a hearing conducted on August 13, 
1970, the Court ruled from the bench and found that of the 
three plans submitted by the school board the pairing plan was 
the most effective and would be approved. The Court required 
the school board to file additional information relating to 
recommendations as to the specific grade locations at the 
paired schools and further details relating to transfer rules and 
the biracial committee by August 19, 1970.

On August 19, 1970, defendants presented the Court 
with three separate supplemental plans for the elementary 
schools concerned, one of which involved the closing of a 
sckool and distribution of its pupils to three other schools, and 
each of which had two or more alternative plans attached 
thereto.

Opinion and Order - May 11, 1971

30 Order of August 3, 1970, p. 2.

37b



On August 21, 1970, the Court entered an Interim 
Order approving various of the plans filed two days before. 
Henderson was to be closed and its students distributed among 
Grakan, Lee and Meacham Elementary Schools. The 
following schools were paired: Carver and Gorrie; College 
Hill and Edison; Dunbar and Tampa Bay Boulevard; 
Simmons and Burney; Lincoln and Jackson. The Interim 
Order also set out the Transfer Rules governing attendance 
outside assigned schools.

The Interim Order was confirmed and supplemented by 
a Memorandum and Order entered August 25, 1970.

On August 28, 1970, the school board requested that 
a change be made in the bodndaries for Blake High School. 
Preliminary registration of students there indicated that the 
school would be greatly under capacity when it opened on 
August 31, 1970. The school board therefore asked the Court 
to

zone approximately 290 additional students 
into Blake High School who are presently 
residing in the Plant High School district. The 
race of the students in the proposed change 
involved is predominantly black, but the exact 
percentage is not known at the present time.31

Following a hearing the Court denied the request without 
prejudice to its resubmission when more definite fact about 
enrollment at Blake were known.

Opinion and Order - May 11, 1971

31 Defendants' Request for Boundary Change at Blake 
High School, filed August 28, 1970, p. 2.

38b



Opinion and Order - May 11, 1971

Thereafter defendants again requested a boundary 
change for Blake. On September 10, 1970, they stated, 
student population at Blake was 428, far below capacity. It 
was requested that the Court:

consider a change in the attendance 
boundaries for Blake High School which will 
zone into Blake High School approximately 
241 additional students who are presently 
residing in the Plant High Sckool attendance 
area. The race of the students in the proposed 
change of boundaries is predominantly black. 32 33

The second request was denied.13 Defendants' 
suggestion that Blake be repopulated by being further 
resegregated was rejected for several reasons. At hearing on 
the second request it had keen shown that of the 428 students 
in attendance at Blake, 426 were black and 2 were white. It 
had also been shown that all of the students to be zoned into 
Blake were black. The proposed boundary change would have 
qiven Blake the same attendance zone it had at the time this 
case was reversed in May 1970 with the exception of an 
additional attendance area, containing no whites.

The Court also noted that in the table submitted to the 
Court during the limited remand in March 1970 the school 
beard had projected an enrollment of 877 blacks, 197 whites 
at Blake under a neighborhood system; that the Court of

32 Defendants' Second Request for Boundary Change at 
Blake High School, filed September 11, 1970, p. 2.

33 Memorandum and Order, filed September 24, 1970.

39b



Appeals had relied on this representation in directing 
implementation of such a plan at Blake; that in June 1970 the 
school board had revised its figures and predicted 650 blacks 
and 60 whites at Blake; and that at present there were 426 
blacks and 2 whites there.

SUPERVENING FACTS AND LAW

On November 12, 1970, defendants filed a Report 
giving the racial composition of certain schools as of October 
23, 1970. Analyzed in light of data previously furnished the 
Court, the Report demonstrates the ineffectiveness of the 
August 1970 desegregation decrees.

Chart One34 traces for four school years the student 
population by race at 21 schools which were black in 
September 1967. It shows that these schools have remained 
identifiably black despite Judge Lieb's order of August 1,
1969, despite the Court of Appeals' reversal on May 11,
1970, and despite the undersigned’s orders of August 1970. 
Both of the high schools remain black. Three of the four 
junior high schools are black.35 Ten of the 16 elementary

Opinion and Order - May 11, 1971

34 See below, pp. i-iv. All of the charts attached to this 
order are by reference made a part hereof.

35 Marshall was desegregated under the plan approved 
August 1, 1969, when it was paired with Tomlin. The school board 
did not furnish the Court with figures for attendance at Marshall
during the 1970-1971 school year.

40b



schools are still black.36 One has been closed. The remaining 
5 are over 50% black.

Chart Two37 compares the 1969-1970 school year enrollment 
at 10 black schools directed desegregated in August 1970 with 
these schools' projected and actual enrollment for the 1970- 
1971 school year. The figures therein show that both high 
schools and all three junior high schools are still black. The 
5 elementary schools are over 50% black.

The figures also demonstrate that tie school board's 
representations to this Court and the Court of Appeals were 
markedly inaccurate. At the high school and junior high 
school level, there is simply no significant correlation between 
the enrollment projected by the school board if its plan were 
adopted and actual enrollment at present. At the elementary 
school level the percentage of black students at each school is 
higher than was represented to this Court.

In Chart Three38 the school board's estimates of school 
attendance by race at the 5 elementary schools paired with 
black schools for the 1970-1971 school year .are seen to be 
highly erroneous. The school board predicted that 3 of the

Opinion and Order - May 11, 1971

36 The Court has not been informed what the current 
attendance figures are for 8 of the black elementary schools: 
Glover, Jackson Heights, Lomax, Potter, Progress Village, Roland 
Park, Shore, Williams. Since they were not ordered desegregated, 
there can be little doubt that these schools are still black.

37 See below, pp. v-vi.

38 See below, p. vii.

41b



schools would have more white students than black, but it 
turned out that 4 were black.

Opinion and  Order - May 11, 1971

II

In Pate v. Dade County School Board, 434 F.2d 1151 
(5 Cir.1970), the Court of Appeals disapproved a 
desegregation plan for Miami, Florida, under which 22 
schools with 44% of the black student population were all 
black or virtually all black. The Court of Appeals stated that 
"obstacles" such as "traffic hazards, school capacities, 
individual school programs, format and curricula, walking 
distances, natural barriers, and grade levels in each school," 
434 F.2d at 1154, could not justify a plan resulting in 
insubstantial desegregation. Using the techniques cf pairing 
and grouping the Court of Appeals reduced the number of 
blacks attending black schools from 44% to 24%.

In Brown v. Board of Education of City of Bessemer, 
432 F.2d (5 Cir.1970), it was stated:

The restructuring of the grade system in 
the proposed pairing is not, by itself, such an 
indicium of educational unsoundness as to 
render an otherwise feasible alternative 
unacceptable. * * * No particular grade 
structure can be considered inviolate when 
constitutional rights hang in the balance. 432 
F.2d at 23. [Emphasis supplied.]

The Court of Appeals proceeded to desegregate by 
pairing. The Court also updated the majority to minority

42b



transfer provision “so as to provide priority for space to 
transferees.” 432 F.2d at 24.

In Allen v. Board of Public Instruction of Broward 
County, 432 F.2d 362 (5 Cir.1970), the Court of Appeals 
observed:

Opinion and Order - May 11, 1971

In the conversion from dual school 
systems based on race to unitary school 
systems, the continued existence of all black or 
virtually all black schools is unacceptable 
where reasonable alternatives exist. And it is 
clear that one acceptable way to achieve 
reasonable alternatives is by pairing schools.
The tenor of our decisions is unmistakable: 
where all black or virtually all black schools 
remain under a zoning plan, but it is 
practicable to desegregate some or all of the 
black schools by using the tool of pairing, the 
tool must be used. 432 F.2d at 367.

The Court of Appeals directed the pairing and 
clustering of 13 black elementary schools, thereby 
desegregating every one of these schools. The Court then 
said:

In ordering the pairings and groupings 
described above we have not suggested which 
specific grades should be assigned to which 
specific schools. Those decisions are left to the 
district court. * * * However, in deciding 
which grades will attend which schools, the 
district court is ordered to comply with the

43b



following requirements: (1) In every
attendance zone created by the pairing and 
clustering the court must make every 
reasonable effort to avoid "splitting" a grade, 
i.e ., assigning any particular grads to more 
than one schocl. (2) If in some instances it does 
become necessary to split a grade, the court 
will assign the students in that grade in such a 
manner that the degree of desegregation 
ordered by this court for that attendance zone 
will not be diminished. 432 F.2d at 369.

In Singleton v. Jackson Municipal Separate School 
District, 432 F2d. 927 a plan was found unacceptable under 
which "approximately 70% of the Negro elementary students 
will bs in all (or substantially all) Negro elementary schools." 
432 F.2d at 928. In a Supplemental Order the Court of 
Appeals directed the district court's attention to

our recent cases in which this court has 
mandated pairings, clustering, or such other 
equally effective devices to reduce the number 
of all black schools (90% or more black) and 
the percentage and number of blacks in all 
black schools. 432 F.2d at 931.

In Youngblood v. Board of Public Instruction of Bay 
County. 430 F.2d 625, 629 (5 Cir.1970), the Court of 
Appeals noted: "This Court requires school boards to draw 
zone lines sc as to affirmatively promote desegregation of 
racially dual school systems.”

Opinion and Order - May 11, 1971

44b



Opinion and Order - May 11, 1971

In a series of opinions the Court of Appeals clarified 
the attendance system set forth in Ellis v. Board of Public 
Instruction of Orange County, 423 F.2d 203 (5 Cir.1970). In 
Ellis the panel held that under the specific facts of the case 
Orange County, Florida, could desegregate by using a 
neighborhood school attendance system wherein variances 
were not allowed to permit children a choice of not attending 
the.nearest schools to their residences and thereby avoiding 
assignment to a formerly black or formerly white school.

The Court of Appeals noted that a neighborhood 
school assignment system-that is, a system under which a 
student must attend the school nearest his home-could be of 
two types. It might take the form of equidistant assignment. 
"[Zjone lines would be located equidistant between two 
schools and all students within the zone would attend a given 
school without regard to the capacity of the school." 423 F.2d 
at 207. Or a student might attend the school nearest his home 
limited only by the capacity of the school; if the school was 
unable to accommodate him he would attend the next nearest 
school to his residence. The Court of Appeals adopted the 
latter plan for Orange County.

It was also held that the neighborhood school 
assignment system, based on school capacity, must be 
observed without exception. Variations based on traffic 
Conditions or zone lines were impermissible.

Variances by arbitrary zone lines, or 
for reasons of traffic, while reasonable on their 
face, may destroy the integrity and the stability 
of the entire assignment plan. If Orange 
County wishes to maintain a neighborhood

45b



assignment system, then it must do so without 
variances. Each student in the system must be 
assigned to attend the school nearest his or her 
home, limited only by the capacity of the 
school, and then to the next nearest school.
423 F.2d at 208.

An Ellis-type plan was rejected in Henry v. Clarksdale 
Municipal Separate School District, 433 F.2d 387 (5 
C ir. 1970), where the plan

proposed to leave unchanged the totally 
(or nearly so) segregated elementary school 
program under the zoning system already 
disapproved by [previous decisions in the 
case], but now sought to be restored to 
acceptability and brought forward under the 
Ellis neighborhood school or geographical 
proximity or "equal distance zoning" label. No 
change with respect to the elementary schools 
of Clarksdale would occur except the 
nomenclature employed. The racial makeup of 
pupils attending the several elementary schools 
would continue exactly as before. 433 F .2d at 
390.

Pairing was ordered to desegregate, and objections thereto 
raised by the school board were dealt with in these words:

The objections as to children being 
required to walk as much as two miles as 
opposed to an average of 0.5 miles heretofore, 
and of having to travel natural or man-made

Opinion and Order - May 11, 1971

46b



Opinion and Order - May 11, 1971

barriers and the claim that a 2-2-2 grade 
division is somehow less desirable than a 1-6 
division, all fail. * * * Barriers which did not 
prevent enforced segregation will not be held 
to prevent conversion to a full unitary system.
433 F.2d at 394. [Emphasis supplied].

Objections based on lack of "articulation" caused by the 
breakup of grade composition between two or more schools 
under zoning or clustering were also overruled.

In Valley v. Rapides Parish School Board. 434 F.2d 
144 (5 Cir. 1970), the Court of Appeals again rejected an 
Ellis-type plan on the ground that such a plan did not 
substantially abolish segregation. Pairing, rezoning, and 
clustering were ordered. The majority to minority transfer 
provision was modified to require that transferees be given 
priority for space.

In Ross v. Eckels, 434 F.2d 1140 (5 Cir. 1970), all 
parties agreed.that a desegregation plan which had left 77 % of 
Houston's black students in black schools in December 1969 
was defective. The district court thereupon ordered an 
equidistant zoning plan into effect.

The Court of Appeals modified the district court's 
plan. A geographical capacity attendance plan was adopted for 
the secondary schools. At the elementary level the equidistant 
zoning plan was modified in part so that by the technique of 
pairing the number of blacks in black schools was reduced 
from 21,418 to 11,982.

47b



The majority to minority transfer plan was altered so 
that (a) all transferring students were given transportation, and 
(b) transferees were given priority for space at any school 
within the system.39

A final Court of Appeals decision of interest is Bradley 
v. Board of Public Instruction of Pinellas County. 431 F.2d 
1377 (5 C ir. 1970) ,40 Bradley involved a school system in 
close proximity to the Hillsborough system and of great 
similarity. Under the plan in effect 64% of the black students 
attended all black or virtually all black schools. The Court of 
Appeals versed, and, by use of pairing, grouping, and

Opinion and  Order - May 11, 1971

39 Other cases dealing with the Ellis-type assignment plan 
(but decided prior to August 1970) are Lee v. Macon County Board 
of Education. 429 F.2d 1218 (5 Cir. 1970): Hightower v. West. 430 
F.2d 430 F.2d 552 (5 Cir. 1970): and Andrews v. City of Monroe. 
425 F.2d 1017 (5.Cir. 1970).

In Andrews a purported Ellis-type plan was rejected 
because it resulted in 85 % of the black elementary school students 
and 77% of the black high school students being assigned to 
traditionally black schools which would remain black. The panel 
said:

However, we do not reject the School Board's plan 
solely on the ground that it does not fit the Orange 
County definition of a ‘neighborhood’ system.
Even if, as presently constituted, the plan were a 
true neighborhood plan, we would reject it because 
it fails to establish a unitary system. Orange 
County does not say what a "neighborhood" 
system of student assignment per se is a unitary 
system. 425 F.2d at 97 [Emphasis supplied].

40 The Bradley case was decided in July 1970, but because 
of its obvious applicability to the instant case it is discussed here.

48b



rezoning, reduced the percentage of blacks attending black 
schools from 64% to 14.2%.

Further proceedings in the Bradley case were held at 
the district level when the school board failed to desegregate 
the only remaining black high school, Gibbs High School. On 
March 15, 1971, the school board filed its plan for 
desegregating the school. The plan called for the dispersion of 
all Gibbs students among Gibbs and 5 other high schools, with 
the result that each of these 6 facilities would have student 
bodies approximately 83% white and 17% black. A map 
attached to the proposed plan showed that the desegregation 
was accomplished by gerrymandered zoning and the use of 
satellite zones.41

On April 15, 1971, the district court approved the 
school board's plan under this condition proposed by the 
school board, "that the percentage of black students in any St. 
Petersburg high school, to wit, Boca Ciega, Lakewood, St. 
Petersburg, Northeast, Dixie Hollin and Gibbs, shall not 
exceed twenty-two percent (22%) nor be less than twelve 
percent (12%) and that it is further recognized that the area 
zone lines for the respective high schools will have to be 
adjusted from time to time in order to meet the respective 
required ratio between black and white students.42

Opinion and Order - May 11, 1971

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

42 Bradley v. Board of Public Instruction of Pinellas 
County. No. 64-98 Civ. T., Order of April 15, 1971, p. 3.

49b



Opinion and Order - May 11, 1971 

III

On April 20, 1971, the Supreme Court delivered five 
opinions which defined with particularity the responsibilities 
of school authorities and the scope of powers of federal courts 
in eliminating racially separate public schools established and 
maintained by state action. Four of these decisions will be 
discussed here.

In Swann v. Charlotte-Mecklenburg Board of
Education. _____U .S .____ , 39 U.S.L.W. 4437 (1971), the
district court had dealt with a school system conceitedly not 
unitary in t969 and with a school board which refused to 
submit a satisfactory desegregation plan. The district court 
found that certain of the board's actions were discriminatory; 
that residential patterns resulted in part from federal, state, 
and local governmental action; and that the board's actions 
based on these patterns resulted in segregated education.

The desegregation plan adopted by the district court 
and affirmed by the Supreme Court proposed assignment of 
blacks to all ten of the system's high schools. Attendance 
zones for the high schools were shaped like wedges of a pie, 
extending outward from the center of the city. The junior high 
schools were rezoned, and nine "satellite zones" were created. 
Under the satellite plan, inner city blacks were assigned to 9 
outlying predominately white junior high schools. The 76 
elementary schools were desegregated by use of zoning, 
pairing, and grouping; 9 inner city black schools were 
grouped with 24 white suburban schools. The district court 
explained the latter aspects of the plan in these words:

50b



It * * * desegregates all of the rest of 
the elementary schools by the technique of 
grouping two or three outlying schools with 
one inner city school; by transporting black 
students from grades one through four to the 
outlying white schools: and by transporting 
white students from the fifth and sixth grades 
from the outlying white schools to the inner
city black school. Quoted a t_______U.S. at
___39 U.S.L.W . at 4440

The Supreme Court determined that the so-called anti­
busing provisions of the Civil Rights Act of 1964, see 42 
U.S.C. §§ 2000c (b), 2000c-6, do not limit the powers of 
federal courts to use busing as a mode of accomplishing 
desegregation. The Court also delineated "the responsibility 
of local authorities and district courts to see to it that future 
school construction and abandonment is not used and does not
serve to perpetuate or re-establish the dual system." ____
U.S. a t____ , 39 U.S.L.W. at 4443.

The location of schools may thus influence 
the patterns of residential development of a 
metropolitan area and have important impact 
on composition of inner city neighborhoods.

In the past, choices in this respect have been 
used as a potent weapon for creating or 
maintaining a state-segregated school 
system.* * * This was sometimes accompanied 
by building new schools in the areas of white 
suburban expansion farthest from Negro 
population centers in order to maintain the

Opinion and Order - May 11, 1971

51b



Opinion and Order - May 11, 1971

separation of the races with a minimum 
departure from the formal principles of 
"neighborhood zoning." Such a policy does 
more than simply influence the short-run 
composition of the student body of a new 
school. It may well promote segregated 
residential patterns, which when combined 
with "neighborhood zoning," further lock the 
school system into a mod of separation of the 
races. Upon a proper showing a district court
may consider this in fashioning a rem edy.__
_U.S. a t____ , 39 U.S.L.W. at 4443.

Although there is no constitutional right to a particular 
degree of racial balance, racial quotas have a place, in the task 
of desegregation. The district court used a 71% white-29 % 
black ratio in each school as a starting point in-the process of 
shaping a remedy. This was held to be proper because (a) the 
school authorities had maintained a dual system until at least 
1969, and (b) the school board had totally defaulted in its duty 
to come forward with an acceptable plan of its own.

It was the Supreme Court's view that while the 
existence of a small number of one-race schools is not a sure 
mark of a segregated system, in systems with a history of 
discrimination there is "a presumption against schools that are 
substantially disproportionate in their racial composition." _  
_  U.S. a t_____ , 39 U.S.L.W. at 4445.

Where the school authority's proposed plan for 
conversion from a dual to a unitary system 
contemplates the continued existence of some 
schools that are all or predominately of one

52b



race, they have the burden of showing that 
such school assignments are genuinely non-
discriminatory. _______ U.S. at ______, 39
U.S.L.W. at 4445.

Majority to minority transfer arrangements "must 
grant the transferring student free transportation and space 
must be made available in the school to which he desires to 
m ove."____ U.S. a t_____ , 39 U.S.L.W . at 4445.

The Supreme Court recognized that the remedial 
altering of attendance zones-including pairing, clustering, 
grouping, drastic gerrymandering of attendance zones—may be 
required to effectuate a unitary system.

All things being equal, with no history of 
discrimination, it might well be desirable to 
assign pupils to schools nearest their homes.
But all things are not equal in a system that has 
been deliberately constructed and maintained to 
enforce racial segregation. The remedy for 
such segregation may be administratively 
awkward, inconvenient and even bizarre in 
some situations and may impose burdens on 
some; but all awkwardness and inconvenience 
cannot be avoided in the .interim period when 
remedial adjustments are being made to 
eliminate the dual school systems. * * *

Desegregation plans cannot be limited to the
walk-in school.______ U.S. a t ________ , 39
U.S.L.W. at 4445. 4446.

Opinion and Order - May 11, 1971

53b



The district court's "conclusion that assignment of 
children to the school nearest their home serving their grade 
would not produce an effective dismantling of the dual 
system" was found by the Supreme Court to be "supported by
the record." _ _ _ _ _  U.S. a t ________ , 39 U.S.L.W . at
4446.

Opinion and Order - May 11, 1971

In Davis v. Board of School Commissioners of Mobile
County. ______ U.S.______ , 39 U.S.L.W. 447 (1971), the
Supreme Court reviewed a decision of the Court of Appeals 
for the Fifth Circuit.

The metropolitan area of Mobile County, Alabama, is 
divided by a major highway. About 94% of the black students 
in the metropolitan area live on the east side of the highway 
between it and the Mobile River. The Court of Appeals 
treated each side of the highway as distinct, without either 
interlocking zones or transportation across the highway.

The Court of Appeals approved a plan under which 
50% of the black elementary students in the metropolitan area 
were to attend 6 black schools. All 7 secondary schools 
formerly black were to be desegregated. Enrollment figures 
for the 1970-1971 school year made available to the Supreme 
Court showed that the projections on which the Court of 
Appeals had relied were inaccurate.43 Under the Court of

43 That the enrollment figures relied upon by the Court cf 
Appeals turned out to be wrong is not the only similarity of the 
Davis case to the instant one. The panel in Davis consisted cf 
Judges Bell, Ainsworth, and Godbold, who also presided over 
Mannings III and Ellis. In Davis Judge Bell wrote of the similarities 
between that case and the present one. See Davis v. Board of 
School Commissioners of Mobile County. 430 F.2d 883, 886-887

54b



Appeals plan as actually implemented, 64% of the black 
elementary students in the metropolitan area were 
concentrated in 9 black school: and over 50%, instead of 
none, of the black secondary students were attending black 
schools. The Supreme Court commented:

As we have held, "neighborhood school 
zoning,, whether based strictly on home-to- 
school distance or on "unified geographic 
zones" is not the only constitutionally 
permissible remedy: nor is it per se adequate to 
meet the remedial responsibilities of local 
boards. Having once found a violation, the 
district judge or school authorities should make 
every effort to achieve the greatest possible 
degree of actual desegregation, taking into 
account the practicalities of the situation. A 
district court may and should consider the use 
of all available techniques including 
restructuring of attendance zones and both 
contiguous and noncontiguous attendance 
zones. The measure of any desegregation plan 
is its effectiveness.

On the record before us, it is clear that the 
Court of Appeals felt constrained to treat the 
eastern part of Metropolitan Mobile in 
isolation from the rest of the school system, 
and that inadequate consideration was given to 
the possible use of bus transportation and split

Opinion and Order - May 11, 1971

(5 Cir. 1970).

55b



Opinion and Order - May 11, 1971

zoning. _______ U.S. a t_____ , 39 U .S.L .W .
at 4448 (1971)

The Court of Appeals was therefore reversed.

In North Carolina State Board of Education v. Swarm,
____ U .S .___ , 39 U .S.L.W . 4449 (1971), North Carolina's
Anti-busing Law which prohibited assignment of students for 
the purpose of achieving a racial balance and busing of 
students for this purpose was held unconstitutional.

* * *the Constitution does not compel any 
particular degree of racial balance or 
m/mixing, but when past and continuing 
constitutional violations are found, some ratios 
are likely to be useful starting points in shaping 
a remedy.

* * *bus transportation has long been an 
integral part of all public educational systems, 
and it is unlikely that a truly effective remedy 
could be devised without continued reliance
upon it. ___ U.S. a t ____ , 39 U.S.L.W. at
4449,4450.

McDaniel v. B arresi._____ U.S.____ , 39 U.S.L.W.
4450 (1971), involved an attempt by parents to enjoin the 
Clarke County, Georgia Board of Education's voluntary 
desegregation plan. Under the plan geographic zones were 
drawn to achieve a greater racial balance. The students in 5 
heavily black pockets either walked or were transported by 
bus to schools located in white attendance zones. The 
Supreme Court reversed the Supreme Court of Georgia and

56b



Opinion and Order - May 11, 1971

held that neither the equal protection clause of the 14th 
Amendment nor the Civil Rights Act of 1964 prohibited the 
board from implementing such a plan.

STATUS OF THE CASE 

I

In addition to those heretofore made in this order, the 
Court makes the following specific findings of fact:
The Hillsborough System is a Segregated System

The Supplemental Findings of Fact, filed March 31, 
1970, are authority for the proposition that the defendants' 
school system is a racially segregated one. As of October 24, 
1969, 74% of the county's white students were in 70 white 
schools, whereas 65 % of the black students were concentrated 
in 21 black schools.

There has been little improvement during the 1970- 
1971 year. Figures filed by the school board indicate that as 
of October 23, 1970, 9,106, or 46%,of the system's blacks 
were attending 15 black schools.44 Although they comprised 
only 19% of the student population, 13,606, or 69%, were in

44 The 15 schools are: Glover, Jackson Heights, Lomax, 
Meacham, Potter, Progress Village, Roland Park, Shore, Williams, 
Abou, Just, Booker T. Washington, Young, Blake, Middleton. The 
Court of Appeals expected only 21 % of the system’s blacks to be 
in black schools during this school year. Mannings III, 427 F.2d at 
878.

57b



28 schools at least 50% black.45 On the ether hand, 69% of 
the white students—57,869 out of 83,474-attended 65 schools 
either all white or at least 95% white.46

This Segregation Results from State Action

The racially separate system in Hillsborough County 
is a consequence of deliberate policy long pursued on 
defendants' part of separating students solely on account of 
race.

Opinion and Order - May 11, 1971

The State of Florida had constitutional and statutory 
provisions requiring school segregation on the books until 
very recently. See, e.g., Art. 12 § 12, Fla. Const. 1885; 
Section 228.09, Florida Statutes repealed by Chapter 65-239 
§ 4, Laws of Florida 1965.

Almost ten years ago this Court found as a matter of 
fact that prior to and after May 17, 1954, defendants operated, 
maintained and staffed a completely dual school structure. The

45 The 28 schools include, in addition to the 15 mentioned 
in the previous footnote, Bryan, Burney, Carver, College Hill, 
Dunbar, Edison (Gorrie, Jackson, Lee, Lincoln, Orange Grove,
Simmons, Tampa Bay Blvd.)

46 All figures relating to current enrollment in 
Hillsborough County schools may be found in Defendants' Reports, 
filed December 23, 1969, and November 12, 1970, and in the 
Supplemental Findings of Fact, filed March 31, 1970. In making 
its computations the Court has used the December 23, 1969, 
Report's figures as to the total enrollment by race in Hillsborough 
County. The Court has also assumed that enrollment at schools not 
included in the Nov. 12, 1970, Report is the same as it was during 
the 1969-1970 school year.

58b



school board made no attempt whatever to dismantle the 
system until September 1961. In the intervening ten years the 
defendant have at no time taken any steps which have had the 
effect of significantly altering the system's racially biased 
student assignment system.

In October 1956 the State Department of Education 
publish a "School Plant Survey of Hillsborough County 
Schools 1956." This document filed in evidence on December 
5, 1 961, contains an index which lists all of the system's 
schools as of 1956 under the heading of either "White" or 
"Negro." Among the schools marked "Negro are Blake, 
Carver, College Hill, Dunbar, Glover (then having grade 1- 
9), Lomax, Meacham, Middleton, Simmons, and Booker T. 
Washington. Of these 10 schools, all at present are 50% 
black and 6 are at least 90% black.

Of the 79 schools listed as white, 38 are today all 
white or at least 95% white. Seven of the 79 are now at least 
50% black-Burney, Edison, Lee, Orange Grove, Shore, 
Tampa Bay Boulevard, Ybro.

The Survey also describes future school construction; 
the new schools are categorized as "White" or "Negro."

The School Board published a "Personnel Directory 
1958-1959" in early 1959. It was filed in evidence on 
December 4, 1961. Again the schools are classified as 
"White" and "Negro." And again, with a few exceptions, the 
schools listed as "Negro" are still black, and the schools listed 
as "White" are still white.

Opinion and Order - May 11, 1971

59b



In Defendants' Voluntary Proposal to Amend and 
Expedite Plan, filed February 3, 1965, Potter and Roland 
Park are labeled "Predominately Negro."

In their Fourth Supplemental Progress Report, filed 
October 30, 1965, defendants listed 47 elementary schools, 9 
junior high schools, and 4 senior high schools as totally white. 
At present 40 of these elementary schools, 6 of these junior 
high schools, and 2 of these senior high schools are either all 
white or at least white. Among the schools described as 
attended by blacks only were Carver, College Hill, Potter, 
Roland Park, Williams, Dunbar, Fornax, Meacham, Progress 
Village, Blake, Middleton, Just, Booker T. Washington, 
Young, Glover, Simmons, Fincoln.

Space limitations forbid a more exhaustive review of 
the file directed to this point. It is sufficient to observe that of 
the one-race schools in existence 5 and 10 and more years 
ago, nearly all of the ones still in operation are racially 
identifiable. Most of the schools that were white then are still 
white, and most of the black schools remain black. There have 
been changes in the racial makeup of several schools, but on 
the whole these have simply been drastic inflows of blacks and 
outflows of whites resulting in resegregation. Although a 
minority of the formerly white schools has become black, 
none of the black schools has become white. Prior Plans 
Have Failed.

Opinion and Order - May 11, 1971

The record in this case, including the information in 
this order and the charts appended hereto, offers patent and 
undeniable proof that all of the desegregation plans heretofore 
implemented in Hillsborough County have failed to abolish 
the dual structure of student attendance.

60b



The first plan began in 1963, In operation from 1963 
until 1967, it provided for integration at the rate of one grade 
a year and contained a minority to majority transfer provision 
whereby a white student could avoid attendance at a black 
school even though the black school was closer to home.47

From 1967 until 1969 the system operated under an 
equally ineffective variety of freedom of choice plan. During 
the 19691970 school year the school board used the 
attendance zone system disapproved by Mannings III in May 
1970. Under the plan the enrollment figures projected by the 
school board failed to materialize; the black schools which 
were to have small numbers of whites had only token white 
attendance or none at all.

During the 1970-1971 school year the system has 
functioned, under a plan approved by this Court in August 
1970. Once again actual attendance by race has not conformed 
to what was represented to this Court by defendants. The 
black secondary schools remain black, and at the paired 
elementary schools the black enrollment is much higher than 
expected. Numerous other schools remain identably white or 
black. The reasons why the previous plans failed are obvious. 
Too much reliance was placed on free choice, transfer 
provisions other then majority to minority one have been 
extremely liberal, and no attempt was made to eliminate the 
black schools except by the addition of a few whites to the 
black school population.

Opinion and Order - May 11, 1971

47 Minority to majority transfer policies were disapproved 
in Goss v. Board of Education of Knoxville. 473 U.S. 683 (1963), 
and Boston v. Rippy. 285 F.2d 43 (5 Cir. 1960).

61b



Opinion and Order - May 11, 1971 

Defendants Desegregate All Predominately Black School

The Hillsborough County School System is [sic] as a res [sic] 
of defendants unlawful policies. It follows that the school 
board must eliminate all vestiges of the discriminatory actions, 
"root and branch." Green v. School Board of New Kent Count 
[sic] 391 U.S.430, 438 (1968). This obligation remains even 
assuming that the defendants in good faith have submitted 
plans which through no fault of their own failed to accomplish 
desegregation.

It is indisputable that in systems practicing racial 
discrimination the fundamental law of the land—the 
Constitution of the United States—requires the 
disestablishment of schools in which there is a 
disproportionately high percentage of black students. In view 
of the history of this case it is the holding of the Court that 
defendants must desegregate all schools in their school system 
where at least half the students are black.48

There is no evidence of any substantiality in the record 
supporting the position that segregation in Hillsborough 
County is attributable in any measurable degree to voluntary 
patterns or other factors unaffected by school board activity. 
As indicated earlier, the record makes plain that prior to and 
since 1954 certain schools in Hillsborough C6unty have been 
set aside for black students and others for white students.

48 Although there is some language in Mannings II and 
Mannings III which might be interpreted to indicate that some of 
the segregation in Hillsborough County is de facto and not de jure, 
for the reasons that follow the Court finds that all of the 
predominately black schools in the county must be eliminated.

62b



With exceptions these schools remain racially identifiable. 
Over the years defendants have submitted numerous plans for 
desegregation, not one of which has altered the naked fact chat 
most blacks attend schools which are inordinately black 
whereas most whites attend schools in which there are no 
blacks or only minuscule numbers of blacks. The Court has 
been unable to locate a single instance in the record where 
defendants took positive steps to end segregation at a black 
school and thereafter segregation returned fortuitously. 
Indeed, no serious attempt has ever been made to eliminate the 
many black schools. Based on experience, the Court 
concludes that what re-segregation there has been is a 
consequence of the continued existence of schools identifiable 
as white or black.

Since defendants have not taken affirmative steps to 
end their discriminatory student attendance policies, there has 
not been an end to de jure segregation

The posture of this case has been altered by 
superseding caselaw. In Davis the Supreme Court reversed 
the Court of Appeals because insufficient consideration had 
been given to noncontiguous attendance zones and the use of 
busing. The similarities of that case involving Mobile County 
to the instant one have been noted. And in Swann v. 
Charlotte-Mecklenburg Board of Education the high court 
fashioned a presumption against one-race schools in school 
districts with a history of discriminatory practices. The 
defendant have not met this burden of showing that the present 
school assignment system is unconnected with their past and 
present discriminatory actions.

Opinion and Order - May 11, 1971

63b



Opinion and  Order - May 11, 1971

Supervening facts have also affected the .status of the 
case as in Davis the facts upon which the Court of Appeals 
relied in instituting its plan have proved to be erroneous. The 
5 secondary schools directed desegregated remain black. The 
percentage of blacks at the paired elementary schools is higher 
than was represented to the Court at the time pairing was 
directed and the Court knows, based on its experience in this 
and other school cases,49 that the percentage will increase until 
the schools become all black unless remedial action is taken.

Stated differently, the record supports what the Court 
has learned in presiding over school desegregation 
proceedings in this area of Florida: & desegregation plan will 
be unsuccessful and entails desegregation where a few whites 
are added to formerly black schools which otherwise remain 
intact; in short, a plan which anticipates retention of 
identifiably black schools will fail. Partial desegregation 
results in white flight, resort to private schools, and other 
maneuverings which frustrate the course of justice. Successful 
desegregation must extend throughout the school system and 
be done in such a way that the tactics which impede court 
orders are rendered futile.

There is an old equitable maxim that equity delights to 
do justice, and not by halves. It never had greater application 
than here. The Court therefore concludes that in order to

49 The undersigned has presided over these desegregation 
cases: Blalock v. Board of Public Instruction of Lee County. No. 
64-168, Civ. T.; Harvest v. Board of Public Instruction of Manatee 
County. No. 65-12 Civ. T.; Mays v. Board of Public Instruction 
of Sarasota County, No. 4242 Civ. T.

64b



desegregate the Hillsborough County School System all of the 
identifiably black schools must lose that identity.50

II

The applicable legal principles merit reiteration.

Desegregation is an Affirmative Duty of a School Board

Initially it is the duty, not of the Court, not of the 
plaintiffs, but of the school board acting affirmatively and 
positively to end segregation in Hillsborough County. The 
duty is not fulfilled submission of plans which fail to work. 
Hall v. St. Helena Parish Sch Board, 417 F.2d 801 (5 
Cir. 1969); United States v. Board of Education of Bessemer, 
396 F.2d 44 (5 Cir. 1968).

In the past defendants have considered the matter of 
opposing and appealing orders of the Court in school 
desegregation matters sufficiently important to supplement the 
board's legal staff with special attorneys. As this Court noted 
in its order of August 25, 1970:

The many factors involved in operating a 
large school system and the need for long- 
range plans to guide in site selection, 
recruitment and placement of teachers, 
logistics and other things all suggest the

Opinion and Order - May 11, 1971

50 Thus there is no real conflict between this order and any 
previous findings in this case. To the extent that any such conflicts 
are argued it is the view of the Court that it is bound by 
superseding facts and caselaw.

65b



desirability of a good comprehensive plan. The 
record does not indicate that the Board ever 
made use of the desegregation aids available to 
it upon request from the various state and 
federal agencies, or of the expertise in 
desegregation technique, acquired by counsel 
for plaintiffs after participating in many 
desegregation cases.

The board has never employed special consultants .to assist 
the administrative staff of the board. With the help of the 
district court there the board in Mecklenburg County, North 
Carolina recognize such a need and the Supreme Court 
approved the procedure of the employment of an expert as a 
consultant. Swarm v. Charlotte-Mecklenburg Board of 
Education, supra.

As noted, this Court has jurisdiction over school 
desegregation action in the nearby counties of Manatee, 
Sarasota and Lee and is by virtue of residency therein and of 
common knowledge aware of the steps being taken in Pinellas 
County, the plan for which was ordered by a fellow judge of 
this Court.

Like Hillsborough, these counties are all on the west 
coast of Llorida and the school problems in each have much 
in common. Pinellas County, just across the bay has the most 
similar problems. Each of said counties has accomplished a 
degree of desegregation in its schools which far exceeds that 
in Hillsborough. To a considerable extent, and with minor 
exceptions this results from a difference in attitude expressed 
and action taken by school boards, school administrative and 
legal staffs, local newspapers, civic organizations and county

Opinion and  Order - May 11, 1971

66b



and municipal leaders. For example, shortly after this court's 
order directing pairing of certain schools, a news story in a 
local newspaper quoted the Mayor of Tampa as saying that he 
would transfer his children to a private school and recently a 
civic club in Tampa publicly commended the Superintendent 
of Schools and the school board for outstanding service, not 
directly as a result of, but after notice of the extent of 
segregation in local schools and the Supreme Court decision 
in Swan.

The position expressed by counsel for defendants at 
one of the 1970 hearings that the Constitution does not require 
integration but only forbids segregation has long been 
rejected. United States v. Jefferson Board of Education, 372 
F.2d 836 (5 Cir. 1966), aff.en banc 380 F.2d 385 (1967).

Desegregation Must Be Accomplished Now

The time for deliberate speed is over, Griffin v. School 
Board of Prince Edward County, 377 U.S. 218 (1964); that 
doctrine has been sent "to its final resting place." Singleton v. 
Jackson Municipal Separate School District. 419 F.2d 1211, 
1216 (5 Cir. 1969). It is the obligation of school boards to 
terminate their dual systems "at once." Alexander v. Flolmes 
County Board of Education, 396 U.S. 19, 20 (1969).

By reason of the foregoing, it is

ORDERED, ADJUDGED AND DECREED:

1. No later than June 15, 1971, the school board 
shall file with the Court and serve upon plaintiffs a plan or 
plans for desegregating the Flillsborough County School

Opinion and Order - May 11, 1971

67b



System in accordance with this order, said plan to become 
effective with the beginning of the 1971-1972 school year.

2. In formulating the plan, the school board shall 
follow these guidelines:

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

(b) In preparing the plan the school board 
shall begin with the proposition that a white- 
black ratio of 86%/14% in the senior high 
schools, 80%/20% in the junior high schools, 
and 79%/21 % in the elementary schools would 
be the most acceptable and desirable form of 
desegregation.

(c) The plan shall accomplish desegregation by 
pairing, grouping, clustering, and use of 
satellite attendance zones. Where pairing, 
grouping, and clustering are used, every effort 
shall be made to avoid splitting of grades. If in 
some instances it becomes necessary to split a 
grade the school board shall file figures 
showing the extent of desegregation which 
would result if the grades were not split. No 
splitting of grades will be approved unless it 
results in a degree of desegregation equal to 
that which would result if the grades were not

Opinion and  Order - May 11, 1971

68b



Opinion and Order - May 11, 1971

split. In view of what has gone on before, any 
proposed desegregation by use of rezoning or 
gerrymandered zoning shall be supplemental, 
secondary, and alternative to desegregation by 
the techniques mentioned earlier in this sub- 
paragraph (c) and shall not be in lieu thereof.
(d) In formulating the plan the school board 
should consult with experts and authorities in 
the field of desegregation who are unaffiliated 
with the Hillsborough County School System.
(e) In formulating the plan the school board 
shall examine and consider the plans used and 
in effect in Manatee, Sarasota, Lee and 
Pinellas Counties and should consult with 
school officials in those counties. The Clerk of 
the Court is directed to make the files in these 
cases available to defendants.

3. On May 21, 1971, May 28, 1971, and June 4, 
1971, the school board shall file with the Court status reports 
detailing its steps taken in complying with this order.

4. As noted, the location of new school sites is a 
matter directly affecting existing segregation in schools. If the 
board requires court consideration of new school site locations 
or purchases it may submit a request for the same at any time.

5. Should the school board again default on its 
obligation to present a legally acceptable plan the Court will 
direct its attention to the provisions of plaintiffs' proposed 
plan of July 15, 1970. The Court will also then determine 
whether to appoint at defendants' expense an expert or experts

69b



in the field of education for the purpose of obtaining a 
satisfactory desegregation plan.

6. Copies of this order will be sent to each of 
Present members of the school board, as well as the 
superintendent of schools.

7. Jurisdiction is retained.

DONE and ORDERED at Tampa, Florida, this 11th 
day of May, 1971.

is/____________ _________________________
Ben Krentzman
UNITED STATES DISTRICT JUDGE

Opinion and Order - May 11, 1971

70b



Opinion and Order - May 11, 1971

[FOLD-OUT]

CHART ONE
STUDENT POPULATION BY RACE 

AT SELECTED HILLSBOROUGH 
COUNTY SCHOOLS

71b



CHART ONE

STUDENT COPULATION BY RACE AT SELECTED HILLSBOROUGH COUNTY SCHOOLS

1 9 6 7 -1 9 7 0

A. SENIOR HIGH SCHOOLS

1967 -68 S c h o o l  Y r . 1 9 6 8 -6 9  S c h o o l  Y r . 1 9 6 9 -7 0  S c h o o l  Yr. 
a s ' o f  T '- 'lA-c- o

1 9 7 0 -7 1 S c h o o l
SCHOOL a s  o f  9 - 1 5 - 6 7 . 1 a s  o f  9 - 1 7 - 6 8 . 2 a s  o f  10 - 2 3 - 7 0

BLACx  WHITE BLACK WHITE STACK WHITE BLACK WHITE

o„AKE 1122 0 855 0 877 0 526 0

MIDDLE-
TON 1021 0 1029 0 1010 6 1028 5

■'■See D e f e n d a n t s 1 R e p o r t , f i l e d S e p te m b e r 2 0 ,  1 9 6 7 .
2 S ee D e f e n d a n t s  1 R e p o r t , f i l e d S e p te m b e r 2 5 ,  1 9 6 8 .
2 S ee D e f e n d a n t s  1 R e p o ‘ t , f i l e d December 2 3 ,  1 9 6 9 .

s e e D e f e n d a n t s ' R e p o r t , f i l e d November 1 2 ,  1 9 7 0 .



CHART ONE
STUDENT POPULATION BY RACE 

AT SELECTED HILLSBOROUGH 
COUNTY SCHOOLS 

continued

Opinion and Order - May 11, 1971

[FOLD-OUT]

72b



.V I

CHART OKS (CONT.)

B. JUNIOR HIGH SCHOOLS

1 9 6 7 -6 8  S c h o o l  Yr. 1 9 6 8 -6 9  S c h o o l  Yr . 1 9 6 9 -7 0  S c h o o l  Yr. 1 9 7 0 -7 1  S c h o o l  Yr.
SCHOOL a s  o f  9 - 1 5 - 6 7 .  a s  o f  9 - 1 7 - 6 8 .  - a s  o f  1 0 - 2 4 - 6 9 .  a s  o f  1 0 - 2 3 - 7 0 .

BLACK WHITE BLACK WHITE BLACK WHITE BLACK WHITE

JUST 463 0 662 0 592 3 535 9

. BOOKER 
. WASH­

INGTON 683 0 612 0 624 0 591 49

YOUNG 1208 0 1174 0 1144 0 1142 59

MARSHALL5 648 0 666 0 126 429

M a r s h a l l  was a  c o m b i n a t i o n  j u n i o r - s e n i o r  h i g h  s c h o o l  c o n t a i n i n g  g r a d e s  7 th r o u g h  12 
u n t i l  J u n e  1 9 6 9 .  B e g i n n i n g  w i t h  t h e  s c h o o l  y e a r  1 9 6 9 -1 9 7 0  i t  was p a i r e d  w i th  Tomlin  
j u n i o r  H ig h  S c h o o l  a n d  l i m i t e d  t o  t h e  7 t h  g r a d e .  S ee  d e f e n d a n t s '  p l a n  f i l e d  
A u g u s t  1 ,  1 9 6 9 .



CHART ONE
STUDENT POPULATION BY RACE 

AT SELECTED HILLSBOROUGH 
COUNTY SCHOOLS 

continued

Opinion and Order - May 11, 1971

[FOLD-OUT]

73b



CHART ONE (CONT.)

C. ELEMENTARY SCHOOLS 

1967-68 S ch oo l  Y r .  1968-69 Schoo l  Yr.
SCHOOL a s  o f  

BLACK
9 - 1 5 - 6 7 .

WHITE
a s  o f  
BLACK

9 - 1 7 - 6 8
WHITE

CARVER 645 0 645 0

DUNBAR 729 0 773 0

GLOVER 248 0 241 0

JACKSON
HEIGHTS 379 146 488 78

LINCOLN 502 0 508 0

LOMAX 593 0 619 0

MEACHAM 681 0 513 0

POTTER 761 0 783 1

PROGRESS
VILLAGE 517 0 460 0

ROLAND PARK 340 0 322 0

SHORE 384 0 318 0

SIMMONS 205 0 189 0

WILLIAMS 621 12 612 19
YBOR 385 10 372 6

1959-70 S c h o o l  Y r . 1 9 7 0 - 71 S c h o o l
a s  o f  1C1-2 4 -6 9 . a s  o f 1 0 - 2 3 - 7 0
BLACK WHITE BLACK WHITE

7? J 0 339 156

0 440 76

l 0

375 43

5? 5 0 369 132

657 0

550 0 706 7

5-7 0

543 58

367 6

365 0

233 0 174 136

665 20

363 7



CHART ONE
STUDENT POPULATION BY RACE 

AT SELECTED HILLSBOROUGH 
COUNTY SCHOOLS 

continued

Opinion and Order - May 11, 1971

[FOLD-OUT]

74b



CHART ONE (CONT.)

1 9 6 7 -6 8  S c h o o l

C. ELEMENTARY SCHOOLS \

Y r .  1 9 6 8 -6 9  S c h o o l  Y r . 1 9 6 9 -7 0 S c h o o l  Yr. 1970-71 S c h o o l  Yr
SCHOOL a s  o f  9 - 1 5 - 6 7 . a s  o f  9 - 1 7 - 6 8 . a s  o f  10 - 2 4 - 6 9 . a s  o f  1C1-23-70 .

BLACK WHITE BLACK WHITE BLACK WHITE BLACK WHITE

COLLEGE
HILL 860 0 "921 0 998 2 534 119

HENDERSON 441 1 366 2 394 0 CLOSED



CHART TWO
STUDENT POPULATION BY RACE 

AT SCHOOLS DESEGREGATED 
IN AUGUST 1970

Opinion and Order - May 11, 1971

[FOLD-OUT]

75b



V

CHART TOO

STUDENT POPULATION BY RACE AT SCHOOLS ORDERED DESEGREGATED IN AUGUST 1970

P r o j  ec  t ,ed e n r o l l m e n t A c t u a l e n r o I lm e n  t
1969-70 S c h o o l  Y r . 1970-71 S c h o o l  Y r . 1970-71 S c h o o l  Yr

SCHOOL

a s  o f  1 0 - 2 4 - 6 9 . a s  r e p r  
C o u r t  b

o se n  t e d  to  
y s c h o o l  b d .

a s  o f  1 0 - 2 3 - 7 0 .

BLACK WHITE BLACK 'WHITE 13 LACK WHITE
BLAKE 877 0 877 197 526 0

MIDDLETON 1010 6 1010 250 1028 5

JUST 592 3 567 107 535 9

BOOKER T. 624. 0 625 115 591 49

YOUNG 1144 0 1075 159 1142 59

CARVER 721 0 367 287 339 156

COLLEGE HILL 998 2 667 201 534 119

DUNBAR 661 0 ■ 329 325 440 76

LINCOLN 575 0 272 147 369 132

SIMMONS 233 0 66 102 174 136
N, B , H e n d e rs o n  E l e m e n t a r y ,  o r d e r e d  d e s e g r e g a t e d  by  t h e  C o u r t  o f  A p p e a l s ,  was c l o s e d  in  
J i ' i e  1 9 7 0 .  I t s  s t u d e n t s  w e re  d i s t r i b u t e d  among G raham , L e e ,  and  Meacbam. A t . t h e  s c h o o l  

r d ' s  r e q u e s t  t h i s  C o u r t  d i d  n o t  p a i r  Meacham E l e m e n t a r y ,  a l t h o u g h  i t  was o r d e r e d  d e ­
s e g r e g a t e d  by t h e  C o u r t  o f  A p p e a l s .

^ S e e  D e f e n d a n t s ' s  R e p o r t ,  f i l e d  D ecem ber 2 3 ,  1 9 6 9 .
^ S ee  C h a r t  a t t a c h e d  t o  S u p p l e m e n t a l  F i n d i n g s  o f  F a c t ,  f i l e d  M arch 31, 1 9 7 0 ,  and  s u b m i t t e d  

by t h e  s c h o o l  ^ b o a r d ^ s e e  a l s o  ^ D e f e n d a n t s ' I n f o r m a t i o n  R e l a t i n g  to  P a i r i n g  C e r t a i n  S c h o o l s ,



CHART TWO
STUDENT POPULATION BY RACE 

AT SCHOOLS DESEGREGATED 
IN AUGUST 1970 

continued

Opinion and Order - May 11, 1971

[FOLD-OUT]

76b



CHART TWO (CONT.)

v i

1 9 7 0 -1 9 7 1  s c h o o l  y e a r  p o p u l a t i o n  a t  B la k e  w ou ld  b e  650 b l a c k s  
t j i d d l e t o n  w o u ld  b e  1020 b l a c k s ,  115 w h i t e s .

See D e f e n d a n t R e p o r t ,  f i l e d  November 12,  1970.

60 w h i t e s ,  and  a t



Opinion and Order - May 11, 1971

[FOLD-OUT]

CHART THREE
SCHOOL POPULATION BY RACE 

AT SCHOOLS ORDERED PAIRED WITH BLACK 
SCHOOL IN AUGUST 1970

77b



Vll

CHART THREE

SCHOOL POPULATION! BY RACE AT SCHOOLS ORDERED PAIRED WITH BLACK SCHOOLS IN AUGUST 1970

1 9 6 9 -7 0  S c h o o l  Y r .
P r o j e c t e d  e n r o l l m e n t  
1 9 7 0 -7 1  S c h o o l  Y r .  a s

A c t u a l  e n r o l l m e n t  
1 9 7 0 -7 1  S ch o o l  Y r.

SCHOOL a s  o f 1 0 - 2 4 - 6 9 . L r e p r e s e n t e d  to  C o u r t  by a s  r e p r e s e n t e d  to

BLACK WHITE
s c h o o l
BLACK

b o a r d . 1 
WHITE

C o u r t
BLACK

•J
by  s c h o o l  b d .  

WHITE
JACKSON 2 454 225 305 269 259

GORRIE 78 557 374 264 182 436

BDPNEY 72 215 138 194 108 69

EDISON 39 456 323 237 254 168

TAMPA BAY BLVD. 4 690 278 345 304 223

^-See D e f e n d a n t s '  R e p o r t ,  f i l e d  D ecem ber 2 3 ,  1 9 6 9 .
2 S ee  D e f e n d a n t s '  I n f o r m a t i o n  R e l a t i n g  t o  P a i r i n g  C e r t a i n  S c h o o l s ,  f i l e d  
A u g u s t  1 9 ,  1970 .
2 S e e  D e f e n d a n t s ' R e p o r t ,  f i l e d  November 1 2 ,  1 9 7 0 .



APPENDIX 3

IN THE UNITED STATES 
DISTRICT COURT FOR THE MIDDLE DISTRICT 

OF FLORIDA 
TAMPA DIVISION

No. 3554 Civ. T.
[Filed July 6, 1971]

ANDREW L. MANNING, et al, ) 
Plaintiffs, )

)
vs. )

)
THE BOARD OF PUBLIC )
INSTRUCTION )
OF HILLSBOROUGH COUNTY, ) 
FLORIDA, et al, )
Defendants. )
_______________________________ )

OPINION AND ORDER

On May 11, 1971, this Court entered an Opinion and 
Order which among other things directed defendants to file a 
comprehensive plan, or plans, for desegregating the 
Hillsborough County School system effective with the 
beginning of the 1971-1972 school year. The findings and 
conclusions in said order are by reference made a part hereof.

78b



Hearing was noticed for June 24, 1971, and on June 3, 
1971, the Court entered an order outlining the procedure to be 
followed thereat.

The defendants filed the status reports and a plan as 
directed.

On May 18, 1971, plaintiffs filed a motion requesting 
that any order of desegregation to be entered contain faculty 
desegregation and policies and general reporting provisions as 
set out therein and that the Court retain jurisdiction. Plaintiffs 
did not file a written plan of desegregation or written 
objections to the plan filed by the school board. They offered 
verbal objections at the evidentiary hearing but no fact 
witnesses or evidence as such. At hearing defendants 
requested permission to file a responsive memorandum to 
plaintiffs' motion. Plaintiffs indicated that no further 
memoranda would be filed. Defendants’ responsive 
memorandum will be separately discussed hereafter.

THE HEARING

Opinion and Order - July 6, 1971

The procedure at hearing followed that prescribed in 
the Court's order of June 3, 1971. The plans, maps, etc. filed 
by the board fully complied with the Court's order of May 
11th and June 3rd as to form. At hearing they were clearly 
and completely explained and demonstrated through testimony 
with the use of visual aids and maps. Plaintiffs cross-examined 
defendants witnesses. As indicated plaintiffs offered no 
written plan or evidence. A full hearing was accorded all 
parties and thereafter those present as spectators who wished 
to be heard were heard. The hearing was of course attended 
and reported by the official court reporter.

79b



BRIEF DESCRIPTION OF SCHOOL BOARD PLAN

Separate plans are offered for desegregation of 
elementary junior high and senior high schools.

Elementary School Desegregation Plan

There are eighty-nine elementary schools in 
Hillsborough County. Under the plan offered by the school 
board seventy seven of these schools are effectively integrated 
through utilization of seventeen clustering arrangements. In 
each arrangement one formerly predominately black 
elementary school is clustered with from two to five formerly 
predominately white elementary schools. The black 
elementary school becomes a sixth grade center, and all sixth 
graders from the black school and each of the white schools 
attend this sixth grade center. First through fifth graders in 
the black school are distributed among the white schools 
through the use of satellite zones which cover the boundaries 
of the black school. First through fifth graders who reside 
within the boundaries of the white school continue in 
attendance at the school previously attended.

Graham and Gorrie elementary schools are effectively 
integrated through rezoning. All first through sixth graders 
who reside within the new boundaries of each school would 
attend that school.

Tinker elementary school is effectively integrated 
through utilization of satellite zoning from the boundary 
formerly encompassed by Abou elementary school, which 
under the school-board's proposed plan will be closed.

Opinion and Order - July 6, 1971

80b



Four elementary schools within the system were 
effectiuel integrated during the 1970-1971 school year by 
rezoning. These are West Shore, Sulphur Springs, 
Thonotosassa and Wimauma elementar schools, each of which 
is for first through sixth grades. Under the plan proposed by 
the school board, no change would be made in the boundaries 
of these schools.

The plan proposed by the school board calls for the 
closing of only one elementary school. This is formerly 
predominatt black Ybor elementary school. In support of 
closing this school, the school board has presented evidence 
to show that this school plant is not adequate to serve as an 
elementary school.

The defendants' plan for elementary schools is fully 
described in defendants' Exhibit 6-A, which was received in 
evidence is a part of the record and is incorporated herein by 
reference.

Junior High Schools

There are twenty-three junior high schools and three 
junior-senior high schools. Under the plan offered by the 
school board these schools are effectively integrated through 
utilization of clustering and satellite zoning arrangements. 
There are eight cluster arrangements proposed in the school 
board plan, in each arrangement one formerly predominately 
black junior high school is clustered with from one to three 
formerly predominately white junior high schools. The black 
junior high school becomes a seventh grade center, and all 
seventh graders from the black school and each of the white 
schools attend this seventh grade center Eighth and ninth 
graders from the black Junior high school are distributed

Opinion and Order - July 6, 1971

81b



among the white junior high schools through the use of 
satellite zones which cover the boundaries of the black school. 
Eighth and ninth graders who reside within the boundaries of 
the white school continue in attendance at the school 
previously attended.

No junior high schools are closed under the plan 
proposed by the school board. Memorial Junior High School 
would use the facilities formerly utilized by Middleton High 
School which is to be closed.

The defendants' plan for junior high schools is fully 
described in defendants' Exhibit 7-B, which was received in 
evidence, is a part of the record and is incorporated herein by- 
reference.

Opinion and Order - July 6, 1971

Senior High Schools

There are at present fourteen senior high schools in 
Hillsborough County, including three junior-senior high 
schools. Under the plan offered by the school board, the 
formerly black high school, Blake, would no longer exist and 
formerly black Middleton High School would be relocated and 
merged with Hillsborough High School. The facilities of these 
former high schools would be utilized in conjunction with the 
proposed plan for integration of junior high schools, described 
supra. The attendance area formerly served by Blake is 
divided among a new high school, which is not yet completed, 
and Plant and Robinson high schools. The new high school 
designated "High School C", will be housed until it is 
completed at Leto High School, and will be the afternoon 
session at Leto. Satellite zones are utilized to increase the 
percentage of blacks at Plant and Robinson.

82b



The location for new High School C has been 
approved by the school boards the appropriate zoning board 
and this court. The money for its construction is available and 
construction is expected to begin in the near future.

Middleton High School is merged with Hillsborough 
High School, and the resulting amalgamation has been 
designated"Hillsborough-Middleton". Hillsborough-Middleton 
will utilize the Memorial Junior High School facility, which 
is located adjacept to what is now Hillsborough High School. 
As has been stated, the old Middleton facility will become 
Memorial Junior High School. Portions of the attendance zone 
formerly served by Middleton High School will be divided 
into satellite attendance zones for Leto, Chamberlain and 
Brandon High Schools. The percentage of blacks in attendance 
at King High School will be increased through a zoning 
change.

The County's rural high schools are effectively 
integrated under the school board's plan through utilization of 
rezoning and satellite zoning techniques. These schools are 
East Bay, Pinecrest, Plant city, and Turkey Creek high 
schools. One other high school, Tampa Bay Technical High 
School, has no precise boundaries, is presently effectively 
integrated and would be so maintained.

The defendants' plan for senior high schools is fully 
described in defendants' Exhibit 8-B, which was received in 
evidence, is a part of the record and is incorporated herein by 
reference.

Opinion and Order - July 6, 1971

83b



Opinion and Order - July 6, 1971 

PLAINTIFFS' OBJECTIONS

At hearing the plaintiffs did not question the 
effectiveness of the plan in desegregating the school system, 
but objected in part to the way it would be accomplished, and 
contended that it would place an undue and discriminatory 
burden of desegregation upon black pupils for the following 
reasons:

1. That proportionately more black 
students will be bussed than white 
students as a result of the utilization of 
sixth and seventh grade centers and 
their location primarily at formerly 
predominately black schools.

2. That as a result of the closing of Abou 
Elementary School and Blake High 
School and the relocation and merging 
of Middleton with Hillsborough High 
School, the formerly predominately 
black Abou Elementary School and 
Blake and Middleton High Schools will 
lose their identity as "community" 
schools.

Implementation of the plan probably will result in 
proportionately more black students being bussed than white 
students. It certainly will result in the bussing of less students 
over all. If each of the elementary schools retained its 
character as grades one through six and each of the junior 
high schools retained its character as grades 7, 8 and 9, 
satellite zones would have to be utilized in order to bring

84b



whites into the formerly black schools. This would provide an 
invitation to either "white flight" or "black flight", or both.

The evidence indicates that the site and facilities at 
Abou Elementary School are substandard. This school should 
have closed some time ago and the discretion of the school 
board in doing so at this time should not be disturbed. 
Testimony indicates that most of the system's high schools are 
built to serve a capacity of from about 2,000 to 2,500 
students. The capacity of Blake High School is less than 1,000 
and that at Middleton High School is 1,100. The defendants 
urge that Middleton was originally reconstructed to serve as 
a junior high school and that its facilities are only barely 
adequate to serve as a high school. Testimony indicates that 
the facilities at Middleton must ultimately be used to house a 
junior high school and that now is the best time to make the 
transition, particularly where it is an integral part of 
desegregating the entire school system. The Court's order of 
May 11, 1971, outlines previous attempts to desegregate 
Blake High School. The suggestion that the two high schools 
should remain as "community" schools has been considered. 
The Supreme Court has indicated that this is not a criteria to 
be considered in accomplishing school desegregation. The 
school buildings themselves will continue where they are and 
to the extent that they have been previously available for non­
school uses will continue to be so available. Upon 
consideration of the over-all plan, the size and content of the 
prospective school sites and facilities, and the part the 
proposed action of the school board will contribute to the 
success of the desegregation plan, the Court finds that the 
school board has acted in good faith in proposing the closing 
or re-location of the named schools and that such action would 
be a reasonable part of a workable plan of desegregation. The

Opinion and Order - July 6, 1971

85b



Opinion and Order - July 6, 1971

Court further finds that the implementation of the plan would 
not constitute invidious discrimination as proscribed by the 
Fourteenth Amendment.

PLAINTIFFS' MOTION

In Mannings v. Board of Public Instruction of Hillsborough 
County, Florida. Fifth Circuit 1970, 427 F.2d 874 at 876, the 
Court said:

FACULTY AND STAFF

The faculty and staff desegregation 
standard enunciated in Singleton v. Jackson, 
supra, requires assignment on a basis where- 
under the ratio of Negro to white teachers and 
staff members in each school is substantially 
the same as each such ratio is to teachers and 
staff in the entire school system.

The Hillsborough County school system does 
not now meet this standard but has moved in 
large measure in that direction. The faculty 
ratio of the system is 82 per cent white and 18 
per cent Negro. The present faculty ratio in 
schools having white student bodies is 90 per 
cent white and 10 per cent Negro. The faculty 
ratio in schools having Negro student bodies is 
presently 50 per cent white - 50 per cent 
Negro. The plan of the system is to go to the 
Singleton racial ratio in each school beginning 
with the next school term. The district court is

86b



directed to require that this be accomplished 
not later than June 6, 1970."

In its order of August 25, 1970, this Court ordered:

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

In their motion dated May 18, 1971, plaintiffs do not 
suggest that this requirement has not been met, but request a 
continuation of this requirement, together with detailed 
procedure to be followed by the school board in 
constitutionally effectuating the requirement from time to 
time.

Opinion and Order - July 6, 1971

In its reply memorandum defendants represent that 
faculty desegregation was accomplished at every school 
location in the 1970 school year and that it knows of no 
complaints regarding discriminatory practice in the 
effectuation thereof. This Court has not found or held to the 
contrary. It will continue the requirement for faculty 
desegregation but finds no basis for the procedural 
requirements suggested by plaintiffs in advance of the need 
therefore.

87b



In its order of August 25, 1970, this Court required 
the filing of a status report on November 16, 1970. Plaintiffs 
now suggest that reports be filed on August 15th and March 
15th, each report setting forth detailed information as 
contained in Annex B to this motion. The defendants suggest 
one annual report as of April 30th covering both teacher and 
pupil ratios.

The Court will retain jurisdiction of this cause and will 
require the status report to be filed on or before November 
17, 1971. If the need for further reports are thereafter 
suggested or indicated they will be required.

To the extent not otherwise granted in part, plaintiffs 
motion is denied.

MAJORITY TO MINORITY TRANSFER 

OTHER TRANSFER RULES 

BI-RACIAL COMMITTEE 

APPROVAL OF SITE LOCATIONS

Each of these has been required by previous orders of 
this Court. Some of them may not be required if the board's 
plan is effectuated and accomplished.

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

"(a). Should the Desegregation Plan
submitted by Defendants to the Court be

Opinion and Order - July 6, 1971

88b



approved, there would seem no purpose for 
retaining the majority to minority provisions 
for transfer, since such plan should result in a 
black to white ratio of approximately 20% to 
80% in each and every school; accordingly, 
and of necessity, black students would be in a 
minority in schools at all levels......”

The Court is retaining jurisdiction and will require the 
continuation of all of these procedures to be available and 
used as necessary.

THE SUFFICIF.NCY OF THE PLAN

The Court finds that the plan fully complies with the 
Court's order of May 11, 1971, and the law and will result in 
the establishment of a unitary school system in Hillsborough 
County, Florida.

THE CONTINUING RESPONSIBILITY

The record reflects the procedure followed by the 
defendants in developing the plan. At hearing the Court 
commended the defendants, their staff and attorneys for this 
procedure. It involved the entire community and with the 
cooperation of the press, the public was fully informed from 
time to time of the reasons for and diligence of all concerned. 
Without agreeing as to the desirability of the Court's order the 
defendants followed it as being the law. For the record the 
Court repeats its appreciation and commendation.

As has been emphasized in previous orders, the school 
board has a continuing responsibility. The defendants

Opinion and Order - July 6, 1971

89b



represent that the plan can and will be effectuated. The Court 
will require that this be done. To do so will require the same 
type of community involvement, diligence and effectiveness 
as has been recently shown.

Upon consideration of the evidence received, the 
suggestion and arguments of counsel, the cited cases, and 
independent research of the Court, it is:

ORDERED:

1. The comprehensive plan for desegregation 
of the Hillsborough County school system 
effective with the beginning of the 1971-1972 
school year as embodied in defendants' 
Exhibits 6-A, 7-B and 8-B, received in 
evidence in this case, is approved and 
defendants are directed to implement the same.

2. As previously ordered the transportation 
system of the Hillsborough County School 
system, all facilities of the school and all extra­
curricular activities shall be completely re­
examined regularly by the superintendent, his 
staff, and the Board. Bus routes and the 
assignment of students to buses will be 
designed, to assure the transportation of all 
eligible students on a non-segregated and 
otherwise non-discriminatory basis and all 
facilities of the system and extra-curricular 
activities of the students therein shall be so 
maintained and operated.

Opinion and Order - July 6, 1971

90b



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

4. As previously ordered all school 
construction, school consolidation and site 
selection, (including the location of any 
temporary classrooms) in the system shall be 
done in a manner which will prevent the 
recurrence of the dual school structure.

5. On or before August 2, 1971, a Bi-Racial 
Advisory Committee shall be constituted and 
thereafter shall operate in accordance with the 
provisions of Exhibit I hereto attached and by 
reference made a part hereof. This order 
supersedes all previous or orders relating to a 
Bi-Racial Advisory Committee.

6. In effecting transfers of students during the 
operation of the plan the school board shall 
follow the rules and procedure set out in 
Exhibit 2 attached hereto and by reference 
made a part hereof.

Opinion and  Order - July 6, 1971

91b



7. The board is directed to file and serve on or 
before November 17, 1971, a report indicating 
the status of school and faculty population by 
race in each of the schools of Hillsborough 
County, Florida, as of a date to be selected by 
the board, which is between October 15, 1971, 
and the date the report is filed.

8. Jurisdiction is retained in this cause for such 
further action as may be necessary and 
required.

DONE and ORDERED at Tampa, Florida, 
this 2nd day of July, 1971.

Opinion and Order - July 6, 1971

Is/___________________________________
BEN KRENTZMAN
UNITED STATES DISTRICT JUDGE

92b



Opinion and  Order - July 6, 1971 

Exhibit I

HILLSBOROUGH COUNTY, FLORIDA 

SCHOOL BI-RACIAL ADVISORY COMMITTEE

A. Purpose - To serve in an advisory capacity 
to the School Board in the areas of the 
operation of transfer rules including majority 
to minority transfers, the maintenance of zone 
lines, pairing and grouping problems and in 
consideration of location of future school site 
locations; to provide a means for direct access 
and communication with the school 
administration, and ultimately with the School 
Board of Hillsborough County.

B. Structure - This Bi-Racial Advisory 
Committee will consist of ten members who 
shall be residents of Hillsborough County, 
Florida. Five members will be selected by the 
School Board of Hillsborough County, Florida, 
with three of the five members being white and 
two members black. Five members will be 
selected by the attorneys of record for the 
plaintiffs in this action. Of these five 
appointments, three will be black and two 
white. The net results will be a ten-member 
committee with equal racial representation.
Each member will serve for a one-year term. A 
member may be re-appointed. The Chairman 
of the Committee will be selected by the 
committee itself with the chairmanship



alternating each year between a black and a 
white chairman. One or more members of the 
school administrative staff wil be assigned to 
assist the committee.

Exhibit 2

TRANSFER RULE
HILLSBOROUGH. COUNTY SCHOOLS

EFFECTIVE 197L I 972 SCHOOL YEAR

No student will be allowed to transfer from his or her 
assigned school except as follows:

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

Said transfer shall be permitted at the 
beginning of each semester.

If a child is entering the Ninth or higher grade, 
or if the child is sixteen years or older, he may 
make a choice himself. Otherwise, a parent or 
other adult serving as a parent must sign the 
transfer form.

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

Opinion and Order - July 6, 1971

94b



The transfer form shall be completed at least 
fourteen (14) days prior to the beginning of the 
semester.

A choice of transfer once granted cannot be 
changed within the semester.

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

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

2. Transfers may be granted when
recommended by the Juvenile Court.

3. Transfers may be granted for children who 
are exceptional children as defined by State 
Law or regulation.

4. Children of teachers and certified 
instructional staff members who reside in 
Hillsborough County may attend the school 
wherein their parents are employed.

5. Transfers may be granted students attending 
Tampa Bay Vocational-Technical High School 
to the capacity of the building.

Opinion and Order - July 6, 1971

95b



6. Transfers may be allowed in cases of severe 
hardship after determination of each case by 
the Board.

Transfers under 3, 5 and 6 will be approved by 
the board only after consideration of 
recommendations from the school Bi-Racial 
Advisory Committee. They shall be considered 
without regard to race except that special 
attention will be given to insure that transfers 
are not approved which are made for the 
purpose of avoiding desegregation. Transfers 
under 1 and 4 above shall be reported to the 
school Bi-Racial Committee for its 
information.

Opinion and Order - July 6, 1971

96b



APPENDIX 4

THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA 

TAMPA DIVISION

[Filed October 14, 1991] ????

CASE NO. 7 1-3554-CIV-T-17

ANDREW L. MANNINGS, et a l., )
Plaintiffs, )

)
vs. )

)
THE SCHOOL BOARD OF )
HILLSBOROUGH COUNTY, )
FLORIDA (formerly BOARD )

OF PUBLIC INSTRUCTION OF )
HILLSBOROUGH COUNTY, )
FLORIDA), e ta l., )
Defendants. )
__________________________________)

CONSENT ORDER

The parties, by their undersigned counsel, have agreed 
to the entry of this Order modifying the prior Orders of this 
Court concerning the desegregation plan for the public schools 
of Hillsborough County. The provisions of this Consent Order 
result from the school district's comprehensive study of the 
educational advantages of reorganizing its grade structure to

97b



establish "middle schools" serving grades 6-8, and the School 
Board's conclusion, following that study, that implementation 
of the middle school grade structure is desirable. Because this 
change affects not only the curriculum and staffing of school 
facilities but also patterns of student attendance, it necessarily 
requires modification of the Court's Orders in this action. For 
that reason, the school district's administrative staff has had 
extensive discussions with counsel for plaintiffs in this action 
to ensure, if possible, that plans for the implementation of the 
middle school concept were formulated in a manner that 
addressed the interests and concerns of the plaintiff class of 
schoolchildren and their parents in this action. The provisions 
of this Consent Order and the attachment hereto, resulting 
from that process, have been approved by the School Board 
and are supported by both parties. Counsel for the parties have 
represented to the Court that in their opinion, the 
modifications set forth in this Agreed Order meet applicable 
constitutional standards and will continue the progress of the 
Hillsborough County public schools toward a unitary system 
from which all vestiges of past discrimination have been 
eliminated.

The Report of the Middle School Task Force adopted 
by the School Board .of Hillsborough County on July 23, 
1991 is appended hereto as Exhibit "1" and is incorporated 
into this Order. The Task Force Report includes (as Appendix 
1) proposed modifications (projected to be implemented over 
a seven-year period) of grade organization and student 
assignments in the Hillsborough County school system to 
accommodate the establishment of middle schools.

Because a fundamental mechanism for desegregation 
established in the Board's plan approved by this Court's July

Consent Order - October 14, 1991

98b



2, 1971 Order has been the operation of single-grade or two- 
grade school centers in predominantly black neighborhoods of 
Hillsborough County, the creation -  on a uniform basis 
throughout the district -  of three-grade middle schools and 
four-year high schools necessarily requires this Court's 
approval before initial implementation can occur. It is the 
parties' purpose, in submitting this Consent Order, to permit 
the phased implementation process to commence.

At the same time, the parties recognize that the specific 
student attendance proposals contained in Appendix 1 to the 
Task Force Report are based upon projections and are subject 
to appropriate modification prior to actual implementation, in 
order to take account of intervening demographic or other 
changes and in order to carry out the explicitly articulated 
goals of the program,* As the Task Force Report states (at p. 
26):

Consent Order - October 14, 1991

Based on current information, plans through 
1995-1996. can be formulated with some 
degree of assurance. Planning beyond that 
timeframe must be viewed as tentative because 
more information is needed to make accurate 
predictions. It is anticipated that installation of 
the GEO system purchased for the school 
system will be of great assistance in the 
analysis needed to fully develop the following 
long-range plan.

* The Middle School Task Force was charged with the 
development of a plan that would “retain a desegregated school 
system” (Task Force Report, at p. 8 1 1.1.

99b



Therefore, the parties have proposed to submit to the Court, 
no later than April 15 of each year, a report on progress made 
in implementing the long-range plan contained in the Task 
Force Report, as well as a specific listing of student 
attendance changes to become effective in the following school 
year and new construction (not previously approved) to be 
undertaken, subject to the Court's approval.

Further, the student assignment and other changes 
recommended in the Task Force Report will require the 
development and application of specific operational policies 
and procedures, for example for the purpose of implementing 
admissions to magnet schools and programs in a manner that 
assures the desegregated status of the system (see Task Force 
Report, at p. 19 § 2.2.2.6; p. 21 § 2.2.3.6). The parties agree 
that the necessary planning and development of these policies 
and procedures must be completed prior to the initial 
implementation of modifications to the Court's prior Orders 
in this case. The parties expect this work to be completed 
during the 1991-92 school year (see Task Force Report, at p. 
27) and they will report to the Court on such matters no later 
than April 15, 1992 and request approval of the specific 
policies or procedures that are proposed to be implemented.

The Court, upon due consideration of the parties’ 
submission and of the entire record herein, concludes that the 
long-range plan incorporated in the Middle School Task Force 
Report (Exhibit “ 1 ” hereto) should be approved in concept so 
that initial implementation may commence. It is therefore 
ORDERED, ADJUDGED and DECREED as follows: 1

1. The Middle School Task Force Report appended 
hereto as Exhibit" 1," including the projected modifications of

Consent Order - October 14, 1991

100b



Consent Order - October 14, 1991

student assignment proposed in Appendix 1 of that Report and 
in the Magnet Schools Proposal which is Appendix 4 of that 
Report, is hereby approved in principle and in concept, and 
the School Board of Hillsborough County is authorized to 
continue the planning necessary to implement the proposal 
over the seven-year period suggested by the Report (at pp. 27- 
29).

2. The parties shall confer periodically during the 
period of implementing the middle school proposal and Task 
Force Report for the purpose of reaching agreement on 
specific implementation steps. Such discussions shall take 
place at appropriate times and with adequate frequency to 
facilitate the prompt and timely resolution of any insoluble 
differences of position by the Court, as well as the smooth and 
orderly implementation of the middle school proposal. The 
parties shall annually report in writing (jointly or, if necessary 
under the circumstances, separately) to the Court no later than 
April 15 the progress made in implementing the 
recommendations contained in the Task Force Report.

3. The report to be filed annually by April 15 shall also 
include a description of changes in facility utilization, student 
attendance, grade structure, or curriculum, etc. that are 
proposed to be implemented in the succeeding school year, 
and sufficient information relating to such changes to permit 
the Court to determine their impact upon the maintenance of 
desegregated schools in Hillsborough County and the 
elimination of any lingering vestiges of prior discrimination 
from the school system. The Court recognizes and anticipates 
that there will be modifications each year of the projected 
student assignment patterns contained in Appendix 1 to the 
Task Force Report to take account of demographic or other

101b



changes that occur. In making such modifications, the 
school district should seek to minimize (to the extent 
practicable the number of schools which deviate from the 
system-wide student enrollment ratios (see Task Force Report, 
at p. 14). The school district shall not implement changes until 
they have been approved by the Court.

4. The report to be filed annually by April 15 shall also 
include a description of all proposed school construction 
(including substantial renovation and remodeling) that is 
planned and that has not yet been specifically approved by the 
Court (whether or not the construction is described or referred 
to in the Task Force Report) including sufficient information 
about proposed construction projects to permit the Court to 
determine their impact upon the desegregation status of the 
Hillsborough County public schools. In the event an objection 
to any proposed construction project is served upon counsel 
for the school district, then the school district shall not 
undertake any such construction project until it has been 
approved by the Court.

5. The report to be filed no later than April 15, 1997 
shall include, as separate exhibits or appendices, specific 
procedures and adequate policies to support and control 
student assignments, to design school attendance zones, to 
determine the configuration of the clusters, to design and 
monitor magnet school and programs, to monitor 
desegregation equity and to determine the use facilities" (Task 
Force Report, at p. 15 f  1), together with sufficient 
background information to permit the Court to determine the 
adequacy of what is proposed to guide implementation of the 
middle school program in accordance with its goals and the 
requirements of the law.

Consent Order - October 14, 1991

102b



6. Additionally, the report to be filed no later than 
April 15, 1992 shall include, as separate exhibits or 
appendices, adequate descriptive material and policies, 
guidelines, or resolutions adopted by the School Board 
covering the following areas:

a. The process for developing and 
implementing, by the 1993-94 school year, of 
a district-wide multi-cultural curriculum, 
including a general description of how the 
content of the curriculum shall be developed, 
the extent of staff training related to curriculum 
implementation that will be provided, and the 
means of monitoring the results of 
implementation and training (see Task Force 
Report, at p. 15 f  7);

b. The content of, and process for, 
implementing a comprehensive process of in- 
service training for staff on a district-wide 
basis in human relations and instructional 
strategies that are particularly suitable for 
diverse student populations, including the 
method to be used to assess the efficacy of the 
training and its impact on student outcomes 
(see Task Force Report, at p. 15 f  8);

c. The anticipated activities and 
function of, and the process for developing and 
implementing, the proposed district-wide 
center for parent education in accordance with 
the recommendations of the Task Force (see 
Task Force Report, at p. 15 K 9);

Consent Order - October 14, 1991

103b



Consent Order - October 14, 1991

d. The scope and methodology of both 
the initial race equity needs assessment and the 
subsequent regular monitoring of equity issues 
to be carried out by the district, as well as the 
manner in which the district will utilize the 
results of these assessments in making any 
necessary adjustments to, and otherwise 
facilitating, the successful implementation of 
the middle school proposal and the 
desegregation goals of this action (see Task 
Force Report, at p. 15 f  10);

e. Policies and procedures for assuring 
that (i) all schools and programs, including 
those that are geographically located in the 
"core" or "inner city," are treated on the same 
basis with respect to assessing and meeting the 
needs of their pupils; (ii) no schools, 
programs, or students enrolled therein are 
penalized in the distribution of resources or in 
any other manner by virtue of low enrollment 
or other attributes of the schools or programs 
during the initial years of implementing the 
middle school proposal and the Task Force 
Report; and (iii) all decisions about schools, 
programs, and personnel are made so as to 
facilitate the attainment of the goals of the 
middle school proposal and of this action (see 
Task Force Report, at pp. 7 11 12-15, 15-16

12-13).

The Court retains jurisdiction over this action to 
receive the information required above and to enter the further

104b



Orders necessary to effectuate the implementation of the 
middle school plan consistent with the requirements of the 
Constitution. To the extent prior Orders are not modified by 
the terms of this Order, they shall remain in effect.

/S/________________________________ _
ELIZABETH A. KOVACHEVICH 
UNITED STATES DISTRICT JUDGE

Agreed to:

/s / ________________________
WARREN H. DAWSON 
14 67 Tampa Park Plaza 
Tampa, Florida 33605 
(813) 221-1800 
JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Attorneys for Plaintiffs

/s/_________________________
W. CROSBY FEW
109 North Brush Street, Suite 202
Tampa, Florida 33602
(813) 229-6401

Attorney for Defendants

Consent Order - October 14, 1991

105b



APPENDIX 5

UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA 

TAMPA DIVISION

No. 58-3554-CIV-T-17

[Filed October 14, 1997]

ANDREW L. MANNING, et al., )
Plaintiffs, )

)
vs. )

)
THE SCHOOL BOARD OF )
HILLSBOROUGH COUNTY, )
FLORIDA (formerly BOARD OF )
PUBLIC INSTRUCTION OF )
HILLSBOROUGH COUNTY, )
FLORIDA), et al., )
Defendants. )
-__________________________________ )

PLAINTIFFS' OBJECTIONS TO REPORT 
AND RECOMMENDATION

106b



Pursuant to 28 U.S.C. § 636(b)(1), plaintiffs hereby 
respectfully submit the following objections to the Report and  
Recomm endation  issued in the above-captioned matter:1

1. Plaintiffs object to the Report and  
Recomm endation  finding that the attainment of unitary status 
is a material change in circumstance sufficient to justify the 
termination of the 1991 Consent Order. Report and  
Recommendation, dated August 26, at 64-65 (hereinafter 
"Report and Recom m endation"). Plaintiffs contend that there 
is no basis for such a finding and that such a finding clearly 
conflicts with existing law on the modification and/or vacation 
of consent orders pursuant to Rule 60(b) of the Federal Rules 
of Civil Procedure. Under the Supreme Court's ruling in Rufo  
v. Inmates o f  Suffolk County Jail, 502 U.S. 367 (1992), there 
must be a changed factual or legal circumstance, unforeseen 
by the parties at the time they entered into the agreement, in 
order to warrant modifying, much less vacating a consent 
decree. This requirement has not been met and cannot be met 
here. In a school desegregation case, it is inconceivable that a 
ruling seeking a declaration of unitary status was unforeseen 
at the time the parties entered into the 1991 Consent Order.

2. Plaintiffs object to the Report and  
Recommendation  finding that plaintiffs’ To Enforce Court 
Order should be denied. Id. at 63-64. For the same reasons 
that the 1991 Consent Order cannot be prematurely modified 
or vacated, a M otion To Enforce Court Order cannot be 
summarily denied without consideration of all of the potential

Objections to Report & Recomm endation - 10/14/97

1 These objections and the underlying basis for these 
objections are discussed in further detail in the accompanying 
brief in support of the objections.

107b



issues to be resolved regarding a violation or potential 
violation of court orders.

3. Plaintiffs object to the Report and  
Recommendation  finding that there are no remaining vestiges 
of the de ju re  segregated school system. See id. at 65-84; see 
also id. at 12-57. Plaintiffs contend that there is no basis for 
a finding that defendants have met their burden and 
demonstrated that they have eliminated all vestiges of the prior 
dual system. Such a finding is at odds with the applicable case 
law.

Objections to Report & Recommendation  - 10/14/97

a. The Report and Recomm endation  should not have 
found defendants unitary in the area of student 
assignment. Defendants have not eliminated the 
vestiges of the prior de ju re  segregated school system 
to the extent practicable in this area. The Report and  
Recommendation gave insufficient weight to evidence 
demonstrating that defendants failed to fulfill their 
affirmative constitutional obligation to desegregate to 
the extent practicable in the area of student assignment 
after the issuance of the 1971 Order. See id. at 15-34, 
65-75. Demographic change does not account solely 
for racial identifiability in the Hillsborough County 
school system. Demographic change does not account 
for racial identifiability caused by defendants' failure 
to perform acts, such as the selection of school sites 
and the failure to inform parents of the majority-to- 
minority transfer program. Furthermore, demographic 
change cannot be fairly attributed to the differences 
between the projections in population as predicted by 
defendants and the existing population. There is no 
reliable evidence concerning this level of demographic

108b



change and even if there was, the 1991 Consent Order 
required defendants to address any such change as part 
of the Consent Order.

b. The Report and  Recomm endation  should not have 
found defendants unitary in the area of faculty and 
staff assignment. Defendants have not eliminated the 
vestiges of the prior de ju re  segregated school system 
to the extent practicable in this area. The Report and  
Recom m endation's finding does not address the 
significant evidence that patterns consistent with de 
ju re  segregation still exist with respect to this factor. 
The Report and Recommendation finding is not based 
on an analysis of faculty and staff. See id. at 76 
(faulting the analysis of Dr. Stevens for including data 
on staff); see id. at 36 (holding that "[n]one of the 
Court's Orders have ever required the School Board to 
provide racial balance at the upper management 
level"). There is no basis in the law for excluding 
employees, or classes of employees, when evaluating 
defendants' efforts to address this factor. Under the 
proper analysis of both faculty and staff, the evidence 
is clear that there are remaining vestiges. Even 
considering faculty alone, vestiges exist, contrary to a 
finding that defendants have desegregated to the extent 
practicable in this area.

c. The Report and Recomm endation  should not have 
found defendants unitary in the area of facilities. 
Defendants have not eliminated the vestiges to the 
extent practicable in this area. Defendants have not 
provided evidence sufficient to know whether their 
obligations have been properly discharged. The Report

Objections to Report & Recom m endation  - 10/14/97

109b



and Recommendation does not adequately take into 
consideration the lack of evidence explaining 
defendants' decisions about site selection and the fact 
that predominantly black schools are more likely to be 
overcrowded than other schools. See id. at 42-44, 79- 
80. Nor does the record provide evidence sufficient for 
the Court to conclude that resources with respect to 
facilities are fairly distributed and provided, 
irrespective of race. See id. at 46-48, 79-80. Indeed, 
defendants presented no evidence that the vestiges have 
been eliminated, in comparison to the previous de ju re  
school system, so there was no basis for the finding in 
the Report and Recommendation that the vestige of 
providing facilities in a racially discriminatory manner 
had been eliminated to the extent practicable.

d. The Report and Recommendation  should not have 
found defendants unitary in the area of transportation. 
Defendants have not eliminated the vestiges to the 
extent practicable in this area. The Report and  
Recommendation  find that the disproportionate 
transportation burden on black students is not 
inconsistent with defendants' affirmative constitutional 
obligations. See id. at 39 (finding that plaintiffs had to 
object before defendants were obligated to do anything 
about a racially disparate transportation burden). 
However, there is no discussion about the link between 
this disparity and the student assignment and site 
selection policies of the defendants. See id. at 37-40, 
77-78. Defendants presented evidence which was 
insufficient to support the R e p o r t a n d  
Recomm endation's finding that defendants have 
ensured that black students who are bused as a result

Objections to Report & Recommendation  - 10/14/97

110b



of defendants' policies have adequate access to extra­
curricular activities.

e. The Report and  Recomm endation  should not have
found defendants unitary in the area of extra-curricular 
activities. Defendants have not eliminated the vestiges 
to the extent practicable. The Report and
Recomm endation  should not have concluded that the 
system is unitary with respect to extra-curricular 
activities, where defendants have not presented 
evidence sufficiently probative to demonstrate that 
their burden had been met. Id. at 40-42, 77-79.

f. The Report and Recommendation  should not have
found defendants unitary in the area of quality 
education. Defendants have not eliminated the vestiges 
to the extent practicable. The Report and
Recommendation  rely on resource allocation data 
which: (1) fails to address the relationship between the 
school system today and the prior de ju re  segregated 
school system, (2) is not sufficiently reliable to be the 
basis for significant findings of fact and conclusions of 
law, and (3) relies on two years of data, one of which 
was described by defendants' own expert as "atypical." 
Id. at 46-48. Given that this data is taken in the midst 
of a tremendous overhaul of the entire school 
structure, this information is too unreliable to support 
a finding of unitary status with respect to this factor. 
The Report and Recommendation  rely on evidence of 
academic outcomes which: (1) does not make a 
comparison between the current achievement rates of 
black and white students and the achievement rates of 
black and white students in the formerly de ju re

Objections to Report & Recomm endation  - 10/14/97

111b



segregated school system, (2) is not measuring the 
socioeconomic status of actual Hillsborough County 
public school students, (3) illogically relies on racial 
data to explain why race is not a factor in the 
differences in academic outcomes, and (4) does not 
explain fully the impact of racial discrimination in 
differences in student performance. Id. at 48-57, 82- 
84. The Report and Recommendation do not 
adequately take into consideration the alarming racial 
disparities in suspension rates in the Hillsborough 
County school system.

3. Plaintiffs object to the Report and  
Recommendation  finding that defendants have been in good- 
faith compliance with the Court's 1971 Order and the 1991 
Consent Order. See id. at 57-62, 84-86. As a preliminary 
matter, the Report and Recommendation  errs in finding 
defendants in good-faith compliance with an order, the 1991 
Consent Order, that defendants have not yet fulfilled. The 
Report and Recommendation did not give sufficient weight to 
the lay testimony presented by plaintiffs, which indicated that 
not a single black person was willing to testify in favor of 
unitary status, including the lone black defendant in this case. 
See id. at 84-85 (holding that "opinions and the anecdotal 
evidence offered by plaintiffs are outweighed" by defendants' 
evidence). The Report and Recommendation  also gave 
insufficient weight to the facts probative of good-faith 
compliance. First, the defendants exhibited great familiarity 
with the rules for special transfers, yet claimed to have little 
understanding that the majority-to-minority transfer program 
was a viable desegregation option for the school system until 
nearly 25 years after the entering of the 1971 Order. Second, 
defendants took actions inconsistent with statements made in

Objections to Report & Recommendation - 10/14/97

112b



Annual Reports filed with the Court, including a promise to 
take action to address any school with a "race ratio 
significantly deviat[ing] from the desegregation plan." When 
asked about the statement at trial, defendants disavowed the 
statement as representing School Board policy, although it is 
clearly identified as such in the Annual Reports. Third, 
defendants claim that critical school desegregation policy 
decisions were made based on one-time ex parte  conversations 
with the Court, which were not memorialized in writing nor 
explained to plaintiffs, until issues about compliance with this 
Court's orders arose.

4. Plaintiffs do not object to the imposition of a 
transition phase in this case. See id. at 88-89. While the law 
does not generally allow for such a period, given the existence 
of a consent order which has not yet been fulfilled and cannot 
be considered to be complete, such a period will ensure that 
the remainder of the implementation process for the middle 
school plan can be monitored and the rights of the plaintiffs 
adequately protected.

WHEREFORE the reasons stated above and as set 
forth more fully in the accompanying brief, plaintiffs file these 
objections and respectfully request that the Court find the 
Report and Recomm endation  deficient in these respects, not 
uphold any of the findings of fact and conclusions of law upon 
which these deficiencies are based, and thus, find that 
defendants have not eliminated the vestiges of segregation to 
the extent practicable and to have not been in good-faith 
compliance with this Court's orders.

Objections to Report & Recomm endation  - 10/14/97

113b



Objections to Report & Recommendation  - 10/14/97

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Victor A. Bolden 
Jacqueline A. Berrien 
NAACP Legal Defense & 
Educational Fund, Inc.
99 Hudson Street, 16th FI. 
(212) 219-1900

Attorneys for plaintiffs

Warren Hope Dawson 
1467 Tampa Park Plaza 
Tampa, Florida 33605 
(813) 221-1800 
Fla. Bar No. 103926

114b



Objections to Report & Recomm endation - 10/14/97

UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA 

TAMPA DIVISION

No. 58-3554-CIV-T-17 

[Filed October 14, 1997]

ANDREW L. MANNING, et al., )
Plaintiffs, )

)
vs. )

)
THE SCHOOL BOARD OF )
HILLSBOROUGH COUNTY, )
FLORIDA (formerly BOARD OF )
PUBLIC INSTRUCTION OF )
HILLSBOROUGH COUNTY, )
FLORIDA), et al., )
Defendants. )

___  )

BRIEF IN SUPPORT OF PLAINTIFFS' 
OBJECTIONS TO REPORT AND 

R ECOMMENDATION

Introduction

Plaintiffs, Andrew L. Manning, et a l ,  file this brief in 
support of the objections made to the Magistrate Judge's 
Report and Recommendation in the above-captioned action.

115b



Plaintiffs have four basic objections to the ultimate findings 
reached in the Report and Recommendation, which also 
encompass numerous findings of fact and conclusions reached 
by the Magistrate Judge: (1) attainment of unitary status is not 
a "material change in circumstance" sufficient to justify the 
termination of the 1991 Consent Order, (2) plaintiffs' M otion  
To Enforce Court Order should not be denied, (3) vestiges of 
the de ju re  segregated school system remain in the 
Hillsborough County school system, and (4) defendants have 
not demonstrated good-faith compliance with this Court's 
1971 Order and 1991 Consent Order. In addition to these 
objections, plaintiffs do not object to this Court considering 
the imposition of a transition phase in this case.

Factual and Procedural Background

Plaintiffs filed this action in 1958. It was not until 1971 
that any progress toward desegregation began:

Almost ten years ago this Court found as a 
matter of fact that prior to and after May 17,
1954, defendants operated, maintained and 
staffed a completely dual school structure. The 
school board made no attempt whatever to 
dismantle the system until September 1961. In 
the intervening ten years the defendants have at 
no time taken any steps which have had the 
effect o f  significantly altering the system 's  
racially biased student assignment system.

1971 Opinion and Order at 5-8 [hereinafter "1971 Order"} 
(emphasis supplied). As the Court in its 1971 Order stated:

Objections to Report & Recommendation - 10/14/97

116b



To obviate any doubt that there is and has been 
state-compelled segregated schools in 
Hillsborough County, which this Court and 
others have previously found and again, so 
finds, this opinion and order will necessarily be 
in some detail.

Id. at 1 (emphasis supplied). In that Order, the Court set forth 
the scope and nature of relief necessary to ensure the 
protection of the constitutional rights of the plaintiffs in this 
case, blacks schoolchildren in the Hillsborough County school 
system:

Objections to Report & Recomm endation  - 10/14/97

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

(b) In preparing the plan the school board 
shall begin with the proposition that a white- 
black ratio of 86%/14% in the senior high 
schools, 80%/20% in the junior high schools, 
and 19%111 % in the elementary schools would 
be the most acceptable and desirable form of 
desegregation.

Id. at 43-44. The 1971 Order further obligated defendants to 
act affirmatively to address segregation and not passively. 
This Court explicitly rejected the position "that the 
Constitution does not require integration but only forbids 
segregation has long been rejected." Id. at 43 (citing United

117b



States v. Jefferson Board o f Education, 372 F.2d 836 (5th Cir. 
1966), aff. en banc, 380 F.2d 385 (1967)).

In a subsequent order issued on July 2, 1971, this 
Court specifically retained jurisdiction "for such further action 
as may be necessary and required." Opinion and Order, filed 
July 2, 1971, at 10 f  1. It was clear that "the school board has 
a continuing responsibility" to desegregate the public schools 
of Hillsborough County, Florida. Id. The school board has 
acknowledged as much on occasions, including in July 7, 
1972, when defendants submitted to the Court "for 
consideration and approval" a series of attendance zone 
boundary changes that the "school Board has adopted ... to 
continue in compliance with this Court's orders." Report by 
Defendant School Board, filed July 11, 1972, at 1.

Defendants' compliance with Court's order was an 
issue, even after the 1971 Order. On at least one occasion, the 
Court found it necessary to remind defendants of their 
continuing obligations under its decrees. On January 14, 1975, 
having reviewed the previous report of the school board 
setting out school enrollments as of December 2, 1974, the 
Court directed the Board:

to file with the Court on or before March 21,
1975, a supplemental plan designed to insure 
that the requirements of the Court's previous 
orders insofar as they relate to Lee Elementary 
School will be complied with as of the 
beginning of the 1975-76 school year. In the 
event the action proposed in said supplemental 
plan or plans will affect other schools in the 
system, or changes for other schools are

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required, the nature and extent thereof will be 
indicated as part of said plan. In this regard the 
attention of the Board is specifically directed to 
Cleveland. DeSoto and Gary Elementary 
Schools respectively.

Order, filed January 14, 1975, at 1 (emphasis supplied).

The Superintendent of the Hillsborough County school 
system appointed a task force to explore how the school 
district could establish middle schools, modify and restructure 
its existing plan for student assignment for that purpose, and 
(inter alia) maintain desegregation. See Middle School Task 
Force Report 3, appended to October 24, 1991 Consent Order 
at 8 f  1.1 [hereinafter Task Force Report"]. Plaintiffs and 
defendants subsequently entered into negotiations concerning 
that long-term restructuring plan. The negotiations resulted in 
the presentation to the Court of a proposed Consent Order, 
describing the contemplated conversion of the school district, 
to a middle school grade organization through a series of 
modifications of currently existing student assignments. A 
primary feature of the plan was a cluster system, where 
"clusters" would be established, consisting of a group of 
elementary and middle schools and one high school. Task 
Force Report, at 6. The Court subsequently adopted this 
proposed order. 1991 Consent Order [hereinafter, 1991 
Consent Order], filed October 24, 1991.

The 1991 Consent Order modifies, but does not 
replace the 1971 Order. The 1991 Consent Order changed the 
Court's 1971 Order's plan with "the operation of single-grade 
school centers in predominantly black neighborhoods of 
Hillsborough County," Consent Order at 2, to "the creation —

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on a uniform basis throughout the district -  of three-grade 
middle schools and four-year high schools...." Id. The 
agreement recognizes that this change will have a considerable 
impact on the school desegregation plan currently in place: 
"Because this change affects not only the curriculum and 
staffing of school facilities but also patterns of student 
attendance, it necessarily requires modification of the Court's 
Orders in this action." Id. at 1.

The 1991 Consent Order further states that all of the 
contemplated changes and planning for the proposed change 
would take seven years to implement. Id. at 5. During this 
seven-year time period, there will be yearly reporting and 
consultation on the implementation of the plan. Id. "The 
parties shall confer periodically during the period of 
implementing the middle school proposal and Task Force 
Report for the purpose of reaching agreement on specific 
implementation steps." Id. Indeed, the 1991 Consent Order 
clearly states that the agreement has to be considered tentative. 
There can be no clear and final understanding and assessment 
of the nature of all of the changes and implications of the plan 
until the seven-year plan has been fully implemented. There 
are two provisions, clarifying this aspect of the agreement as 
well as committing the defendants to address problems in 
implementation arising from the tentative nature of the plan. 
The first provision reads as follows:

the parties recognize that the specific 
attendance proposals contained in Appendix to 
the Task Force Report are based upon 
projections and are subject to appropriate 
modification prior to actual implementation, in 
order to take account of intervening

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O bjections to  Report & Recom m endation  - 10/14/97

demographic or other changes and in order to 
carry out the explicitly articulated goals of the 
program.

Id. at 3 (footnote omitted). The second provision reads as 
follows:

The Court recognizes and anticipates that there 
will be modifications each year of the projected 
student assignment patterns contained in 
Appendix 1 to the Task Force Report to take 
account of demographic or other changes that 
occur. In making such modifications, the 
school district should seek to minimize (to the 
extent practicable) the number of schools 
which deviate from the system-wide student 
enrollment ratios (see Task Force Report, at p.
14). The school district shall not implement 
changes until they have been approved by the 
Court.

Id. at 5-6. No one will know what the student assignment plan 
in the Flillsborough County school system will be nor whether 
the plan will be effective in meeting its constitutional 
requirements, until at least the completion of this seven-year 
period in 1998.

The 1991 Consent Order further specifies the nature of 
the Court's continued involvement. It makes clear that the 
defendants will remain under court jurisdiction until 
implementation of this plan was completed and that the 1971 
Order is still in effect:

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The Court retains jurisdiction over this action 
to receive the information required above and 
to enter the further Orders necessary to 
effectuate the implementation of the middle 
school plan consistent with the requirements of 
the Constitution. To the extent prior Orders are 
not modified by the terms of this Order, they 
shall remain in effect.

Id. at 9.

In 1994, plaintiffs filed an Amended Motion To Enforce 
Court Order and Consent Order and For Further Relief and 
Memorandum, seeking relief under the 1971 and 1991 Orders. 
Specifically, it was alleged that defendants failed to address 
racial identifiability in the West Tampa Elementary School, 
which at the time of the implementation of the "cluster" 
including the school, had a 48 % black population and 15 other 
schools in the Hillsborough County school system which had 
a black population of more than 40%. Plaintiffs subsequently 
filed their Proposed Findings O f Fact And Conclusions Of 
Law, after a hearing on whether the defendants should be 
required to do more to desegregate the West Tampa 
Elementary School. Defendants' Proposed Findings O f Fact 
And Conclusions O f Law argued that neither the 1971 nor 
1991 Orders placed such obligations on them. Defendants, at 
no time, argued that the 1991 Consent Order should be 
modified.

The Magistrate Judge's Report and Recommendation 
held that the language in the 1971 Order does not "support 
Plaintiffs' reading of the 1971 Order as imposing an ongoing 
duty to maintain a particular racial balance once Defendants

Objections to Report & Recom m endation - 10/14/97

122b



have affected compliance with its terms." Report and 
Recommendation, at 14. The Report and Recommendation 
adopted the defendants' view on the scope of the provisions 
contained in the 1991 Consent Order. "The Consent Order 
clearly provides that in making modifications to the projected 
student attendance patterns, the school district should seek to 
minimize, to the extent practicable, the number of schools 
which deviate from the system-wide student enrollment 
ratios." Plaintiffs objected to the Magistrate's Report and 
Recommendation on the basis that the Magistrate failed to 
require the defendants to fulfill their affirmative constitutional 
obligations.

The Magistrate's Report and Recommendation 
expressed concern that there was substantial change in the 
projections on student enrollment at various schools. Id. at 41 
("For example, Robles was projected to have 76% black 
students and had 90% black students in 1993. Edison (64%) 
had 74%. Sulphur Springs (59%) had 70%. Oak Park (58%) 
had 66%. Graham (58%) had 63%. Cleveland (50%) had 
59%. Foster (39%) had 57%. Whitter (40%) had 56%, and 
Van Buren (27%) had 50%."). The Report and 
Recommendation raised the issue of whether the 1991 Consent 
Order should be modified in order to address the ever-growing 
gap between the defendants' student attendance projections 
and actual student enrollment, where this gap demonstrated a 
marked increase in the degree of racial identifiability in the 
Hillsborough County school system. Id. at 41-42.

This Court's Order Recommitting Matter To 
Magistrate, rather than resolving the issue of compliance, 
recommended instead "that the parties and the Court determine 
whether the Hillsborough County school system has achieved

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123b



unitary status." Order Recommitting Matter To Magistrate, at 
2. The Court asserted that "uncertainty" about the lack of a 
finding of unitary status "effectively complicates the analysis 
of the current controversy and demonstrates the need to 
expand the scope of the inquiry to a full-fledged determination 
of whether the Hillsborough County school system has in fact 
achieved unitary status." Id. at 3.

In accordance with this Order Recommitting Matter To 
Magistrate, an evidentiary hearing was held on October 21-25 
and on October 28-29, 1996. At the evidentiary hearing, both 
sides presented lay and expert testimony. Defendants' lay 
testimony consisted of various school district staff, including 
the Administrative Assistant to the Superintendent, Dr. John 
Miliziano; the current Superintendent, Dr. Earl Lennard; 
several district administration staff members; and current 
School Board members. Plaintiffs' lay testimony consisted of 
the named plaintiff, Andrew Manning; parents of the black 
students currently enrolled in the Hillsborough County school 
system, Mrs. Mae King and Mr. Darrell Daniels; one student, 
Ronnie King II; leaders of local civic organizations, Mrs. 
Joanna Tokley, President of the Tampa Urban League and 
Mrs. Ann Porter, President of the Tampa branch of the 
NAACP; a former school system employees, Dr. Sam Horton, 
Dr. Walter Sickles and Dr. John Heuer; and current School 
Board members.

To present their expert testimony, defendants called 
Drs. David Armor and William A. V. Clark. Dr. Armor, a 
sociologist and currently a research professor at George 
Mason University in Virginia, has been a consultant for a 
number of school boards and government agencies on school

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124b



desegregation. Tr. Ill at 3-5.1 He has worked at the Rand 
Corporation and for the United States Department of Defense. 
Id. at 5. Dr. Armor has also authored articles and/or 
conducted studies on school desegregation and academic 
achievement. Id. at 9. He has testified in unitary status 
hearings in cases, such as DeKalb County, Georgia, 
Savannah, Georgia, Muscogee County (Columbus), Georgia, 
Wilmington, Delaware and Dallas, Texas. Id. at 11-12. In this 
case, Dr. Armor analyzed on student assignment, faculty and 
staff assignment, resource allocation and academic outcomes. 
See generally DX 1. Dr. Clark is a geographer with a Ph.D. 
from the University of Illinois in Champaign-Urbana and 
currently a professor at the University of California at Los 
Angeles. Tr. II at 4-5. He has published in the areas of 
geography and demography. Id. at 5-6. Dr. Clark has testified 
in unitary status hearings in Norfolk, Virginia (Riddick v. 
Norfolk), Oklahoma City (Dowell), DeKalb County, Georgia 
(Freeman v. Pitts), Dallas, Texas (Tasby), Muscogee County, 
Georgia (Lockett) and Kansas City, Missouri (Jenkins v. 
Missouri). Id. at 7. In this case, Dr. Clark has conducted an 
analysis on the impact of demographic change on the 
Hillsborough County school system. See generally DX 2.

Plaintiffs called Drs. Leonard B. Stevens, Fred Shelley 
and Robert Crain as experts. Dr. Leonard B. Stevens is an 
independent consultant on desegregation and other issues 
related to educational equity, who has worked for school 
districts, state education agencies, the United States 
Department of Justice, universities, federally funded 
desegregation assistance centers and plaintiffs in school

O bjections to Report & Recom m endation  - 10/14/97

1 Citations to the evidentiary hearing transcript will be 
abbreviated as "Tr. volume # at page."

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desegregation cases. See PX 1 at 35-36. Dr. Stevens also 
served as a special assistant to the Chancellor of the New 
York City public school system, and as a federal court 
monitor for the United States District Court in Cleveland, 
Ohio for a ten year period. Tr. IV at 110-111. He has 
provided testimony in five unitary status cases, by court 
testimony and deposition. Id. at 117. These cases are 
Wilmington, Delaware, St. Louis, Missouri, Muscogee 
County, Georgia, Midland, Texas and San Jose, California. 
Id. Since 1991, Dr. Stevens has served as an expert to the 
plaintiffs in this case, which included consultation regarding 
the 1991 Consent Order and an annual review of the annual 
reports produced pursuant to that Consent Order.2 Id. at 118. 
For this case, Dr. Stevens provided an analysis of the 
following areas: student assignment, faculty and staff 
assignment, facilities, transportation, extracurricular activities, 
suspension rates, gifted education, dropouts and potential 
remedies. See generally PX I.

Dr. Fred Shelley is a geographer and professor at 
Southwest Texas State University in San Marcos, Texas. Tr. 
IV at 22-23. Dr. Shelley's area of expertise is political 
geography, a field which assesses and identifies the causes of 
a particular phenomenon in a given geographic area, which 
includes analysis of demographic information. See id. at 27- 
29. He has written several books and more than 40 articles in 
his field. Id. at 26, 31. He is a member of the Association of

2 In the course of work conducted on this case, Dr. 
Stevens has visited the school district on a dozen occasions, met 
and consulted with various staff members, visited schools, driven 
through and around various school attendance zones, and met with 
parents. PX 1 at 1.

126b



American Geographers and has received a grant from the 
National Science Foundation for his work. Id. at 30. Dr. 
Shelley called Plaintiffs as a rebuttal expert to examine the 
extent to which increases racial imbalance in the Hillsborough 
County public schools could be attributed to natural 
demographic change, as alleged by Dr. Clark. See id. at 34- 
36; see also PX 2.

Dr. Robert Crain is a professor of sociology and 
education at Teachers College, Columbia University. Tr. VI 
at 148. Dr. Crain's area of expertise is research methodology 
and school desegregation. Id. at 150-156. He previously 
worked at the Rand Corporation and while there, directed the 
design of an extensive study on school desegregation. Id. at 
151. He has published five books on school desegregation, on 
topics ranging containing recommendations on achieving 
effective desegregation of schools to the effects of racism and 
segregation on black adults. Id. at 152. He has published 
several articles on research methodology, including a large 
study on the proper methodology for researching the effects of 
school desegregation. Id. at 152-154; see also PX 65 (Dr. 
Crain's curriculum vitae). Dr. Crain has testified in ten to 
twelve school desegregation cases. Id. at 154-155. Dr. Crain 
testified as a rebuttal expert to the achievement analysis 
conducted by Dr. Armor. Id. at 155-156.

Both parties submitted proposed findings of fact and 
conclusions of law to Magistrate Judge Jenkins on April 10. 
On May 22, closing arguments were held before the 
Magistrate Judge. The Magistrate Judge's Report and 
Recommendation were issued on August 26. Report and 
Recommendation, dated August 26, 1997. The Report and 
Recommendation made four major findings: (1) plaintiffs'

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127b



1994 Motion To Enforce Court Order should be denied as no 
violations have been shown, (2) a finding of unitary status is 
not barred by the 1991 Consent Order, (3) there are no 
remaining vestiges of the de jure  segregated system, and (4) 
defendants have complied in good-faith with the Court's 
orders. Id. at 63-90. The Report and Recommendation also 
asked the parties to respond as to whether continued court 
supervision was necessary for a limited period of time. Id. at 
88-89. The Report and Recommendation ultimately concluded 
that:

Objections to Report & Recom m endation  - 10/14/97

[T]his Court should find that the defendants 
have demonstrated that the public school 
system of Hillsborough County has attained 
unitary status and should be released from 
Court supervision pursuant to such further 
Orders as may be appropriate under the 
circumstances.

Report and Recommendation at 90.

ARGUMENT

I. PLAINTIFFS OBJECT TO THE R E P O R T  A N D  
R E C O M M E N D A T I O N  F IN D IN G  THAT  
ATTAINMENT OF UNITARY STATUS IS A 
CHANGED CIRCUMSTANCE WARRANTING 
VACATION OF THE 1991 C O N S E N T  O R D E R

The Repon and Recommendation found that: 
"Attainment of unitary status is a material change in 
circumstance which could justify termination of court 
supervision over the School Board." Report and

128b



Recommendation at 65. This finding cannot withstand scrutiny 
under the applicable law. Applying the appropriate standard, 
the attainment of unitary status could not be a "changed 
circumstance" warranting modification or vacation of a 
consent order.

This Court must take into consideration the 1991 
Consent Order when determining the future scope of court 
jurisdiction in this case:

A consent decree no doubt embodies an 
agreement of the parties and thus in some 
respects is contractual in nature. But it is an 
agreement that the parties desire and expect 
will be reflected in and be enforceable as a 
judicial decree that is subject to the rules 
generally applicable to other judgments and 
decrees.

Rufo v. Inmates O f Suffolk Jail, 502 U.S. 367, 378 (1992). A 
consent decree "is a final judgment that may be reopened only 
to the extent that equity requires." Id. at 391. While a changed 
circumstance may be the basis for modifying a consent order, 
it is not just any changed circumstance which permits a change 
of the court order. Under the Rufo standard, a "changed 
circumstance" only exists to the extent that such a 
circumstance was not foreseen at the time of the agreement. A 
"significant change in factual conditions" cannot be predicated 
on events actually anticipated at the time of the entering of the 
decree. Rufo, 502 U.S. at 385. There is no evidence -  nor 
could defendants present any plausible evidence — that unitary 
status was an unforeseen circumstance when the parties 
entered into the 1991 Consent Order.

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129b



II. PLAINTIFFS OBJECT TO THE R E P O R T  A N D  
R E C O M M E N D A T I O N  F IN D IN G  THAT  
DEFENDANTS HAVE ELIMINATED THE 
VESTIGES OF THE PRIOR D E  J U R E  
SEGREGATED SCHOOL SYSTEM TO THE 
EXTENT PRACTICABLE

The Report and Recommendation find that defendants 
have eliminated to the extent practicable the vestiges of the 
prior de jure  segregated school system for each of the Green 
factors, student assignment, faculty and staff assignment, 
facilities, transportation, extracurricular activities, and quality 
education, another factor now commonplace in a unitary status 
inquiry.

As a threshold matter, the Report and Recommendation 
does not address the relationships among the many Green 
factors. The significance is that:

[T]he Green factors may be related or 
interdependent. Two or more Green factors 
may be intertwined or synergistic in their 
relation, so that a constitutional violation in 
one area cannot be eliminated unless the 
judicial remedy addresses other matters as 
well.... As a consequence, a continuing 
violation in one area may need to be addressed 
by remedies in another.

Freeman, 503 U.S. at 497. Thus, the failure to make these 
linkages and discuss its impact is problematic. The numerous 
Green factors are inextricably linked to the grade restructuring 
plan being implemented pursuant to the 1991 Consent Order.

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130b



See 1991 Consent Order at 1 ("Because [the grade 
restructuring process] affects not only the curriculum and 
staffing of school facilities but also patterns of student 
attendance, it necessarily requires modification of the Court's 
Orders in this action"). Therefore, the absence of any certainty 
to this plan leaves the status of the Green factors in limbo, 
until at least the full implementation of that plan. Without 
more, a declaration of unitary status cannot be achieved.

In the area of student assignment, the Report and 
Recommendation find defendants unitary in the area of student 
assignment:

On the whole, the School Board has 
demonstrated that its schools are unitary as to 
student assignment policies and practices and 
that the increased black enrollment at about 
10% of the schools which are substantially 
disproportionate to the district-wide racial 
ratios are due to increased number of black 
school-age children residing in those 
neighborhoods.

Report and Recommendation at 75 (citations omitted). In 
reaching this finding and the findings on the other Green 
factors, the Magistrate Judge shifted the burden of proof from 
the defendants to the plaintiffs. A prima facie case of having 
eliminated the vestiges of the prior de jure  segregated school 
system is based on whether the plaintiffs ever raised a problem 
with a Green factor, rather than whether defendants have 
taken steps to eliminate the vestiges. This standard of review, 
however, has little basis in law.

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131b



After this Court's ruling in 1971, the School Board 
was "clearly charged with the affirmative duty to take 
whatever steps might be necessary to convert to a unitary 
system in which racial discrimination would be eliminated root 
and branch." Green v. School Board o f New Kent County, 391 
U.S. 430, 437-438 (1968); see also Freeman v. Pitts, 503 
U.S. 467 (1992); Swann v. Charlotte-Mecklenburg Bd. o f  
Educ., 402 U.S. 1, 15 (1971); Jacksonville Branch, NAACP 
v. Duval Cty. Sch. Bd., 883 F.2d 945, 950-51 (11th Cir. 
1989). The affirmative obligations of the School Board to 
desegregate do not end until it has achieved unitary status. 
Harris v. Crenshaw County Bd. o f Educ., 968 F.2d 1090, 
1094 (11th Cir. 1992).

The Eleventh Circuit has stated:

To fulfill this duty, school officials are 
obligated not only to avoid any official action 
that has the effect of perpetuating or 
reestablishing a dual school system, but also to 
render decisions that further desegregation and 
help to eliminate the effects of the previous 
dual school system.

Id. at 1095. The School Board's duty includes considering the 
construction and abandonment of school facilities, id., and 
drawing "zone lines so as to affirmatively promote 
desegregation of racially dual school systems." 1971 Order at 
26 (quoting Youngblood v. Board o f Public Instruction o f Bay 
County, 430 F.2d 625, 629 (5th Cir. 1970)). Once a school 
district is under a court order to desegregate its schools, mere 
neutrality is not an option. Nor does the responsibility for

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132b



determining how defendants should fulfill their obligations rest 
with the plaintiffs.

This Court made clear in 1971: "Initially it is the duty, 
not of the Court, not of the plaintiffs, but of the school board 
acting affirmatively and positively to end segregation in 
Hillsborough County." 1971 Order at 41. Defendants have 
been on notice long ago that "that the Constitution does not 
require integration but only forbids segregation has long been 
rejected.” 1971 Order at 43 (citing United States v. Jefferson 
Board o f Education, 372 F.2d 836 (5th Cir. 1966), aff. en 
banc, 380 F.2d 385 (1967)). The appropriate inquiry is 
whether defendants have been affirmatively seeking to 
integrate the Hillsborough County school system in all of the 
Green factors. Given the size of this district, minimal evidence 
cannot meet the burden. The Report and Recommendation 
finding on the Green factors is not based on this standard.

The Report and Recommendation failed to address the 
fact that demographics in Hillsborough County are different 
from other localities. The change is far less dramatic and more 
incremental than in Freeman. See Freeman, 503 U.S. at 475 
("The school system that the District Court ordered 
desegregated in 1969 had 5.6% black students; by 1986, the 
percentage of black students was 47%"). In addition, the 
identification of pure demographic change is further 
complicated by the implementation of a middle school plan, 
which requires considerable change, but where the statistical 
information on the precise demographic effect will not be 
discernible until the 2000 Census. Furthermore, given the 
missed opportunities to desegregate in opening and closing 
schools, developing magnet schools, administering m-m and 
special transfer programs and in implementing the middle

Objections to Report & Recom m endation - 10/14/97

133b



school plan, this Court finds defendants' actions contributed 
to, if not directly caused, racial identifiability in the 
Hillsborough County school system.

The issue is whether defendants bear any responsibility 
for the racial identifiability and, if so, the extent to which the 
defendants are responsible. Defendants have acted, or failed 
to act, in a number of ways which contributed to racial 
identifiability of the Hillsborough County Public Schools. 
First, the school district does not have a working definition of 
a desegregated school. Compare 1994 Evidentiary Hearing Tr. 
2 at 145 (testimony of Dr. John Miliziano that 50% black 
school is racially identifiable) with 1994 Evidentiary Hearing 
Tr. at 260 (testimony of Kenneth Allen, Director of Pupil 
Administrative Services that a school isn’t racially identifiable 
until 100% black). Second, defendants have admitted that, 
since the 1977-1978 school year, more than 300 modifications 
in student assignment have been made to relieve 
overcrowding, to accommodate the opening of newly 
constructed facilities, or for other reasons, but not for the 
purpose of affecting the racial ratio of a school. See P X 1 at 8- 
9; see also PX lb. The opening and closing of schools created 
new attendance zones, altered existing attendance zones and 
required the redeployment of inner-city satellite zones from 
school to school. PX 1 at 8-9. These events provided an 
opportunity to address any racial identifiability in the school 
system, but such opportunities were not seized upon by 
defendants. Id. at 9. During this time period from 1977-1995, 
when significant changes in construction and student 
assignment occurred, the attendance zones of twelve of the 
fourteen elementary schools on the list of schools very close 
to, at or more than 20 percentage points above the district­
wide black student ratio were changed only once or not at all.

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134b



Id. at 9. Nevertheless, under the satellite program, a program 
overwhelmingly affecting black students, students were 
redeployed to different schools as the need arose. Tr. 1 at 102.

Despite the existence of majority black schools since 
at least 1977, as of April 19, 1996, there was not one 
majority-to-minority (m-m) transfer granted. Tr. I at 91; see 
PX 14. Indeed, there is no evidence (1) that a m-m transfer 
was ever seriously considered until recently; (2) that 
defendants understood how to operate a m-m program; or (3) 
that defendants made any effort to have an effective m-m 
transfer program. Dr. John Miliziano, the Administrative 
Assistant to the Superintendent, testified not only that he was 
unaware of how m-m transfer programs worked in other 
school districts, but also that he had not read any articles "or 
anything" about m-m programs. Id. at 87-89. The school 
district first gave out information about m-m transfers on July 
18, 1995, nearly twenty years after there were majority black 
schools. See id. at 106. Even today, there are no special 
affirmative marketing efforts with respect to m-m transfers.

In fact, Dr. Miliziano had to be reminded of the 
existence of the m-m transfer program and its applicability to 
majority black schools. This is especially significant because 
no Hillsborough County school system employee has more 
extensive school desegregation responsibilities than Dr. 
Miliziano. Id. at 106-107.3Dr. Miliziano testified that students

O bjections to Report & Recom m endation - 10/14/97

3 Dr. Miliziano testified to the following on this matter:

It wasn't until recently that I, as a person who has 
spent many, many years in dealing with the court 
order, maybe it's stupidity on my part, but I didn't

135b



could have applied for a m-m transfer and been denied because 
the rules for the special assignment program were applied. Tr. 
I at 92-93. This testimony reveals either a profound lack of 
understanding or a lack of familiarity with the July 1971 
Order, which lists rules for all transfers and identifies m-m 
transfers as the first exception to the transfer rule. See July 
1971 Order at Exhibit 2, page 1. Thus, m-m transfers are 
special assignment transfers. See id.

Magnet schools have been used by districts for 
desegregation purposes since the 1970s. PX 1 at 10. The 
federal government has provided special funds for such 
schools since the 1980s. Id. The Hillsborough County school 
system did not create its first magnet schools until 1993. Id. 
By 1997, according to defendants' middle school plan, there 
will be 8 magnet schools and an additional 6 magnet programs 
within certain schools. Id. The Hillsborough County school 
system's Joint Task Force Report #3 states that magnet 
schools may have up to a 40% black population in a magnet 
school. Joint Task Force Report ft3 at 15. This policy would 
facilitate addressing racial identifiability in zoned schools,

Objections to Report & Recom m endation  - 10/14/97

even know that this hidden clause -  this clause, 
not hidden, but this clause in the consent order 
meant really anything.

It wasn't until recently that it was brought to my 
attention that, hey, this thing is supposed to be 
done, and now that you have schools that are 50 
percent black or higher, you're supposed to 
implement this policy.

Tr. I at!07.

136b



considerably above the district-wide black student population. 
PX 1 at 10.

In practice, black student enrollment at magnet schools 
is pegged close to the district-wide average. Id. at 10-11; see 
PX lc  (Appendix) ,4 If the magnet schools were allowed to 
have a 40% black population, then 394 additional black 
students would have access to magnet programs. See 
Appendix. Moreover, there is no additional effort made to 
target black students in high percentage black schools to 
magnet schools to ameliorate racial identifiability. Id. at 11. 
In 1993, Middleton and Lee Elementary schools opened as 
magnet schools and are the oldest magnet schools in the 
district. Id. Middleton and Lee have enrollments of 826 and 
448 respectively. Id. Nevertheless, not one of these schools 
has ever had more than 5 black students attend a 40% or more 
black school in the 1995-96 school year. Id.; see also PX Id  
(Appendix), Tr. IV at 128-1295.

The Hillsborough County school system is in the 
process of implementing a middle school plan. See Tr. IV at 
130-131. In the upcoming 1997-1998 school year, six out of 
seventeen clusters are to be implemented. See Tr. I at 96; see 
generally PX 7. Nine out of the fourteen elementary schools 
with a greater than 40% black student population are to be 
implemented in the 1997-1998 school year. Id. at 96. While 
this process has not been completed, it is clear that this plan

O bjections to Report & Recom m endation  - 10/14/97

4 P X  l c  is incorporated into the appendix attached to this
opinion.

5 P X  I d  has been added to the appendix attached to this
opinion.

137b



has not been effective, in terms of the projections of race 
ratios for schools having a 40% or more black population. PX 
1 at 14; Tr. IV at 130-131. Furthermore, the middle school 
plan provided another opportunity to address any racial 
identifiability in the schools, but, according to current 
projections, there will be no race ratio relief for any of the 
elementary schools which have a 40% or more black student 
population. Id. at 14-15.

In fact, during the implementation of the middle school 
plan, racial identifiability has increased. Id. at 15-16; PX le  
(Appendix) 6 Before the middle school plan, there were six 
schools with a 50% or more black student population. PX le  
(Appendix). The middle school plan projected that, after 
implementation of the plan, this number would reduce to five. 
Id. By the fall of 1995, the number of schools with a 50% or 
more black student population doubled to twelve. Id. Dr. 
Miliziano expects that four more schools could be added to the 
40% or more black population list, apart from those already 
on that identified in school district documents. Tr. I at 98.

None of the measures employed by defendants' expert, 
Dr. David Armor, mitigate the degree of racial identifiability 
in Hillsborough County elementary schools. Dr. Armor's 
dissimilarity index does not measure what's going on in an 
individual school. Tr. Ill at 135. Since the dissimilarity index 
provides no information about an individual school, then this 
measure does not suffice. Id. at 135. 6

Objections to Report & Recom m endation  - 10/14/97

6 P X  l e  has been incorporated into the appendix attached 
to this opinion.

138b



In addition, neither of these measures shed any light as 
to whether there is any classroom segregation in the 
Hillsborough County public schools. The exposure index is 
not intended to detect whether there is segregation in the 
classroom or if school clubs or activities are integrated. Id. 
Nor do defendants provide data from any other source on the 
issue of in-school desegregation. Tr. IV at 17.

By Dr. Armor's own exposure index, the average 
black elementary school student attends a school which is 
37 % black, thirteen points above the district-wide for black 
students at the elementary level. Tr. Ill at 135-136.

Defendants have not put forth any evidence which 
suggests that addressing the degree of racial identifiability in 
any of these 17 schools is not practicable. Indeed, the evidence 
suggests that the middle school plan offers significant 
opportunities for further desegregation. By comparing PX 7 
(chart detailing cluster configurations for the middle school 
plan from Fifth Annual Report) with DX  7 (race ratio report 
for October 30, 1995), it is clear that many elementary schools 
on the racially identifiable list are in a cluster with non racially 
identifiable schools.

Edison Elementary School is in a cluster with Morgan 
Woods (10% black), Town & Country (27% black) and 
Woodbridge (21% black). See PX 7 at 2. While Edison is a 
75% black school, DX  7 at 7, the other schools in the cluster, 
Morgan Woods (10% black), Town & Country (27% black) 
and Woodbridge (21% black), is well below a 40% black 
student population. DX  7 at 14, 20, 22.

Objections to Report & Recom m endation - 10/14/97

139b



Cleveland Elementary School is in a cluster with 
Carrollwood, Forest Hills and Lake Magdalene. PX 7 at 2. 
While Cleveland is 52% black, DX 7 at 5, the other schools, 
Carrollwood (15%), Forest Hills (27%), and Lake Magdalene 
(12%), are well below a 40% black student population. DX 7 
at 4, 8, 10.

Sulphur Springs is in a cluster with Twin Lakes. PX 7 
at 2. While Sulphur Springs is 74% black, Twin Lakes, at 
17% black, is well below a 40% black student population. DX 
7 at 18, 20.7

Objections to Report & Recom m endation - 10/14/97

Graham and Foster are in a cluster with Broward, 
Egypt Lake, Mendenhall, and Seminole. PX 7 at 3. While
Graham and Foster have a black student population of 67 % 
and 61% respectively, DX 7 at 8, 9, Broward (34% black), 
Egypt Lake (22%), Mendenhall (30%), and Seminole (37%
black). DX  7 at 3, 7, 13, 17.

Robles is in a cluster with Folsom. PX 7 at 3. While 
Robles has a 90% black population, DX 7 at 16, Folsom is 
only 29% black. DX 7 at 8.

Cahoon is in a cluster with Hunter's Green Elementary 
School. PX 7 at 3. Cahoon is 52% black, but Hunter's Green 
is only 19% black. DX 7 at 9.

7 Since students who attend Sulphur Springs and Cleveland 
all attend Adams Middle School, arguably, there is room for more 
desegregation for Sulphur Springs than just Twin Lakes. See P X  7 
at 2.

140b



Mort, Shaw and Witter are in a cluster with Tampa 
Palms Elementary School and two other elementary schools to 
be built after the 1995-1996 school year. PX 7 at 3. While no 
data from the 1995-1996 school year is known about the 
schools slated for future construction, Tampa Palms 
Elementary School is only 14% black. DX  7 at 19.8

Defendants cannot rely on natural demographic change 
as an explanation for the increase in racial identrfiability in the
Hillsborough County school system. Once again, the evidence
is to the contrary. The population of Hillsborough County,
Florida increased from 490,265 persons in 1970 to 834,054
persons in 1990 according to the United States Census. PX 2
at 3. While the total population of Hillsborough County grew
considerably between 1970 and 1990, the percentage of county
residents who are African American remained almost constant
between 1970 and 1990. PX 2 at 3.9 As defendants' expert
acknowledged, "[t]he white and black populations [of
Hillsborough County] increased at about the same rate"
between 1970 and 1990. DX 2 at 3.

While there was a slight decline in the percentage of 
African American Hillsborough County residents between

O bjections to Report & Recom m endation - 10/14/97

While the R eport and  R ecom m endation  states that these 
clusters are not the schools closest to each other, this analysis 
misses the point. R eport and  R ecom m endation  at 26-29. The issue 
is that the clusters are an administrative choice made by the school 
district, which should be respected. Once that decision is made, 
defendants are obligated to desegregate to the extent practicable.

9 African Americans comprised 66,648 of the County's 
490,265 residents (or approximately 13.5% of the total county 
population) in 1970, and 110,283 of the County's 834,054 residents 
(or approximately 13.2% of the total county population) in 1990.

141b



1970 and 1990, the percentage of persons ages 0-17 who are 
African American has increased slightly during this period. In 
1970, there were 164,278 persons aged 0-17 in Hillsborough 
County, and 28,527 (or 17.4%) were African American. In 
1990, Hillsborough County' s total population of persons aged 
0-17 was 202,274, and 39,163 (or 19.4%) were African 
American. PX 2 at 3.

Despite these minor changes in the percentage of 
African American residents of Hillsborough County, the 
number of racially unbalanced10 public schools in 
Hillsborough County has increased significantly over the past 
two decades. PX 2 at 3, 6. In addition, the percentage of 
African American students attending racially unbalanced 
schools has also increased since 1971. PX 2 at 6. Only 69 
percent of Hillsborough County elementary school students 
attended racially balanced schools in 1995, compared with 97 
percent of Hillsborough County elementary school students 
who attended such schools in 1971. PX 2 at 6; DX 1, Chart 1. 
Similarly, the percentage of junior high school students 
attending racially balanced schools was above 90 percent for 
all but two years between 1971 and 1988, but has fallen to 
only 75 percent as of 1995. PX 2 at 6; DX 1, at Chart 2.

Plaintiffs' expert, Dr. Fred M. Shelley of the 
Department of Geography and Planning, Southwest Texas 
State University, evaluated whether racial imbalance in the

Objections to Report & Recom m endation - 10/14/97

10 Dr. Shelley considered schools with African American 
student populations above 40 percent to be "racially unbalanced". 
PX 2 at 5. As of 1995, 17 Hillsborough County public schools 
could be identified as racially unbalanced under this definition. Id. 
at 5-6.

142b



Hillsborough County schools can be attributed to natural 
demographic change in the county. See generally PX  2 .11 
Defendants' expert witness, Dr. William A.V. Clark, opined 
that demographic change in Hillsborough County has "made 
it impracticable or impossible to make further attendance zone 
adjustments in order to maintain racial balance [i.e., black 
student enrollments below 40 percent]" in all of 
Hillsborough's public schools. DX 2 at 9 .11 12 Dr. Shelley, who 
was qualified as an expert in the fields of demography and 
political geography,13 concluded that additional factors must 
be "consider[ed] ... before one can conclude without 
ambiguity that [racial] imbalance is caused only be natural 
demographic changes." Shelley, Tr. II at 66.

Half of the boundary changes implemented by the 
Hillsborough County School Board between 1977 and 1995 
maintained or exacerbated racial imbalance in the 
Hillsborough County schools. Tr. IV at 41-42; PX 2; PX 4. 
Dr. Shelley analyzed the changes in attendance boundaries, as

O bjections to Report & Recom m endation  - 10/14/97

11 See also  Tr. II at 34-35 ("1 was retained to consider the 
question of the extent to which increases in identifiable racial 
imbalance in the public schools in Hillsborough County could be 
attributed to natural demographic change").

12 On cross-examination, Dr. Clark admitted that he has 
never testified in a unitary status proceeding for any party other 
than a school system or school board seeking unitary status, Tr. II 
at 71. Dr. Clark also admitted that his conclusion in unitary status 
proceedings concerning the DeKalb County, Georgia; Muscogee 
County, Georgia; Oklahoma City; Oklahoma; and Dallas, Texas 
public school systems was, in every case, that demographic change 
was a greater factor than any action or omission by school officials. 
Id. at 65-72.

13 Tr. Vol. II, at 34.

143b



reported in the Race Ratio Trends reports produced by the 
Hillsborough County School Board (PX 4), for 17 
Hillsborough County schools which have more than 40 percent 
African American student enrollments.14Dr. Shelley was thus 
able to determine whether boundary changes implemented by 
the School Board between 1977 and 1995 in these 17 schools 
resulted in an increase or decrease in the African American 
student enrollment of those schools. Tr. IV at 38-39; PX 2 at 
20. For purposes of this analysis, Dr. Shelley considered 
changes in the boundaries of the school attendance areas for 
the 17 racially identifiable schools which occurred between 
1977 and 1995, as reported by the Hillsborough County 
School Board in the Race Ratio Trends Report. Tr. IV at 38- 
39, 42; PX 2, at 1, 9, 20.

According to Dr. Shelley, only 16 of the 32 boundary 
changes implemented by the defendants in the 17 racially 
unbalanced schools between 1977 and 1995 had the effect of 
alleviating racial imbalance. Tr. IV at 41-42. Dr. Shelley 
found that only one of three boundary changes implemented 
for Cahoon elementary school alleviated racial imbalance in 
that school. Tr. IV at 39; PX 2 at 20. Only two of the four 
boundary changes implemented for the Clair Mel and Witter 
schools, respectively, alleviated racial imbalance in those 
schools. Tr. IV at 40-41; PX 2 at 20. The boundaries for De 
Soto, Edison, and Sulphur Spring schools each changed one 
time during the relevant period, and the change did not reduce

Objections to Report & Recom m endation  - 10/14/97

14 The 17 schools included in Dr. Shelley's analysis were 
Cahoon, Clair Mel, Cleveland, DeSoto, Edison, Foster, Graham, 
Mort, Oak Park, Robles, Shaw, Sulphur Springs, West Tampa, and 
Witter elementary schools, and Dowdell, Sligh, and Van Buren 
junior high schools. P X  2 at 5-6.

144b



racial imbalance in any of the three schools. Tr. IV at 40-41; 
PX 2 at 20. Only two of the five boundary changes 
implemented for Mort elementary school alleviated racial 
imbalance in the student population of the school. Tr. IV at 
40; PX 2 at 20. Shaw Elementary and Dowdell Junior High 
Schools each had two boundary changes during the relevant 
period, and Dr. Shelley found that only one of the changes for 
each school reduced the racial imbalance of their student 
enrollments. Tr. IV at 41; PX 2 at 20. Only one of the three 
boundary changes implemented for Van Buren reduced the 
racial imbalance of the school. Tr. IV at 41; PX2 at 20. In 
only four of 17 schools — Cleveland, Graham, Oak Park, and 
Sligh — did all of the boundary changes implemented by the 
defendants reduce racial imbalance. Tr. IV at pages 40-41 and 
PX 2 at 20.

Special assignments of students to the Hillsborough 
County schools have had the effect of disproportionately 
increasing the percentage of African-American children 
attending racially imbalanced schools. Tr. IV at 37; PX 2 at 
10-11, 21. Dr. Shelley analyzed data included in the Fifth 
Annual Report of the Hillsborough County Schools concerning 
student special assignments (PX 6), and determined that 
"[sjpecial assignments had little impact on race ratios in a 
large majority of Hillsborough County elementary schools." 
PX 2 at 10. The exceptions to this rule, however, were the 
schools with African American student populations in excess 
of 40 percent.

"The result of special assignments as practiced [in 
Hillsborough County] has been an increase in African- 
American percentages in schools that are already unbalanced." 
PX 2 at 11. Seven of the nine schools (or approximately 77

O bjections to Report & Recom m endation  - 10/14/97

145b



percent) were among the 17 racially identifiable Hillsborough 
County schools. Tr. IV at 44-46; PX2  at 10-11, 21; P X 6. "In 
each case, the impact of special assignment was to increase 
that school's African-American student percentage." PX2 at 
10. Defendants did not rebut this testimony by Dr. Shelley.

Plaintiffs demonstrated that racially imbalanced schools 
are far more likely than other schools to be overcrowded in 
relation to their Florida Inventory of Schoolhouse ("FISH") 
capacities. Tr. IV at 37, 46-50; PX 2 at 11-13, 22-23. Every 
elementary school with an African American student 
population of 40 percent or more currently exceeds its FISH 
capacity. Tr. IV at 49-50; PX 2 at 12, 22. Ten of fourteen 
racially identifiable elementary schools -  or 71 percent of 
such schools -  had enrollments 25 percent above FISH 
capacity in 1995/96. Shelley Tr. IV at 48-49; PX 2 at 12, 22- 
23. By comparison in the same year, only 24 percent of the 
racially balanced elementary schools (21 of 88) had 
enrollments 25 percent or more above their FISH capacities. 
Shelley Tr. IV at 49; PX 2 at 22-23. Therefore, "although less 
than 14 percent of all elementary schools in Flillsborough 
County were overcrowded" more than one-third of the 
County's overcrowded schools in the 1995-96 school year 
were racially unbalanced schools. PX 2 at 13.

The most striking example of the relationship between 
racial imbalance and overcrowding in Hillsborough County is 
Edison Elementary School, which currently has an actual 
student enrollment 84 percent above the FISH capacity of the 
school. Tr. IV at 50; PX 2 at 13. In 1977-78, when Edison's 
enrollment was almost evenly divided between Black and 
white students, the school was about 11 percent above its 
FISH capacity. PX 2 at 13. By the 1995-96 school year, the

Objections to Report & Recom m endation  - 10/14/97

146b



percentage of African American students enrolled at Edison 
had risen to 77 percent, and the school was more than 83 
percent above its FISH capacity by 1995-96. PX  2 at 13.

Defendants' expert, Dr. William A.V. Clark, did not 
study whether there were differences between the enrollment 
density of the racially imbalanced schools in the Hillsborough 
County school system and other Hillsborough County schools. 
Tr. II, at 87. Consequently, Dr. Shelley's findings concerning 
the overcrowding of racially imbalanced schools were not 
rebutted by the defendants.

Dr. Shelley found a wide variation between the 
percentage of African American children residing in the 
attendance areas of the 17 racially identifiable schools in 
Hillsborough County and the African American student 
enrollment of these schools. Tr. IV at 50-56; PX 2 at 14-16, 
24-25. Dr. Shelley also found that there was a dramatic 
increase in the range of disparities between the percentage of 
African American children residing in these attendance areas 
and the African American student enrollment of these schools. 
Tr. IV at 57-58; PX 2 at 24-25. According to Dr. Shelley, 
"disparities between the percentage of African-Americans in 
schools and those in the general population [of the school's 
attendance zone] should, be consistent across schools at any 
given point in time absent, clear evidence that birth rates or 
other factors affecting the overall population differs 
substantially from one place to another." PX 2 at 15.

The inconsistent pattern of disparities between school 
enrollment and surrounding attendance zones suggests that 
natural demographic change does not fully account for the 
increasing racial imbalance of the Hillsborough County

O bjections to Report & Recom m endation  - 10/14/97

147b



schools. PX 2 at 16. Immediately after the 1971 Order took 
effect, the disparity between the African American population 
0-17 years of age in the attendance areas of the subject schools 
and the enrollment of those schools ranged from 10 to 17 
percent. By 1980, the disparity ranged from four to 24 
percent, and by 1990, the disparity ranged from -1.5 percent 
to 28 percent. Tr. IV at 57-58; PX 2 at 15-16, 24-25. Dr. 
Shelley concluded that it was difficult to attribute this degree 
of disparity solely to natural demographic change. Tr. IV at 
56; PX 2 at 16, 24-25.15

Hillsborough County is less racially segregated today 
than it was in 1970. Tr. IV at 59-60. The number of Census 
tracts with African American populations of 95 percent or 
more fell from seven in 1970 to two in 1990. Tr. IV at 61; PX 
2 at 18. At the same time, the number of Census tracts with 25 
to 50 percent African American population more than doubled 
between 1970 and 1990. Id. at 61, lines 14-16; PX 2 at 18.

Objections to Report & Recom m endation - 10/14/97

15 Dr. Clark testified that "the most obvious" explanation 
for a disparity between the racial composition of the school-age 
population of an attendance zone and the actual school enrollment 
"is that some of the white children who are living in there ... are 
going to parochial or private schools." Tr. Vol. II, at 55 (Clark). 
See also id. at 45 ("[I]n general we might expect the black 
enrollment to be higher than the proportion in the neighborhood 
because [of], for example, children going to parochial and private 
schools"). Dr. Clark admitted, however, that he does not "know the 
degree of the impact" of private or parochial school enrollments 
upon the disparity between attendance zone populations and school 
enrollments, and he did not conduct an analysis which would allow 
him to quantify or estimate this impact. Tr. Vol. II at 88-89 
(Clark). Consequently, Dr. Clark's opinion on this matter should 
be accorded little or no weight.

148b



The attendance areas for Cleveland, Edison, Graham, 
Robles, and Oak Park elementary schools are not adjacent to 
each another. Rather, these attendance areas are 
geographically dispersed. Tr. IV at 62-63; PX  2 at 18-19.

Based upon the degree of racial integration of 
Hillsborough County's residential areas, the relatively small 
growth of the African American population (including the 
school-aged population) county wide, and the dispersion of the 
attendance zones of the five elementary schools with the 
longest history of student enrollments above 40 percent 
African American, Dr. Shelley concluded that boundary 
adjustments may be able to alleviate the racial imbalance of 
these schools. Tr. IV at 58-64; PX 2 at 18-19.

There is no empirical support for Dr. Clark's 
conclusion that the Hillsborough County School Board could 
not have undertaken additional efforts to counteract the impact 
of demographic change on the racial composition of the 
schools. Tr. II at 60-64. While Dr. Clark referred to an 
analysis of "white flight" which he performed in another case 
during his trial testimony, id. at 63-64, he conceded that he 
did not conduct such an analysis in this case. Id. at 97. Thus, 
Dr. Clark's opinion that further adjustment of attendance zone 
boundaries by the Hillsborough County School Board would 
have deleterious effects system wide is entitled to no weight.

Even Dr. Clark concedes that there is no available data 
which would permit assessment of demographic change after 
1990. Tr. II at 14. Therefore, the impact of the various 
changes made pursuant to the 1991 Consent Order cannot be 
adequately measured for two reasons. First of all, nine of the 
racially identifiable schools have not come on line yet. Tr. I

Objections to Report & Recom m endation  - 10/14/97

149b



at 96. Second, the extent of demographic change cannot be 
determined until after the census in the year 2000. While the 
unavailability of updated population data would not ordinarily 
be given consideration in a school desegregation case, such 
consideration is appropriate here, given the massive change in 
the student assignment system undertaken by the defendants 
since 1991.

The Repon and Recommendation find defendants 
unitary in the area of faculty and staff assignment. The 
evidence suggests defendants have not eliminated the vestiges 
in this area. The July 1971 Order states that:

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

July 1971 Order at 10. This provision of the Order 
contemplates the inclusion of faculty and staff in the analysis 
and staff assignment is expressly listed as a Green factor. See 
Green, 391 U.S. at 435. The evidence on staff deemed 
unreliable in the Report and Recommendation is a critical 
component of desegregation orders in general and this 
desegregation order in particular.

Objections to Report & Recom m endation  - 10/14/97

150b



The Report and Recommendation do not address the 
fact there is a discernible racial pattern which prevails in the 
case of schools with the higher percentages of black faculty 
and staff. Without exception, these schools have one of three 
categories: (1) a high percentage of black student enrollment, 
(2) a historically black school prior to the 1971 Order, or (3) 
a school located in the "inner city." See PX l i  (Appendix)16. 
All of these schools have a 10% or more deviation from the 
district-wide faculty and staff average. Id. Many of these 
schools have a 15% or more deviation from the district-wide 
faculty and staff average.

The Report and Recommendation do address the 
evidence that, at the highest ranks of the Hillsborough County 
school system's hierarchy, blacks have been shut out of key 
policy-making positions.17 However, this evidence is 
dismissed as not relevant to the inquiry at hand. See Report

Objections to Report & Recom m endation  - 10/14/97

16 P X  l i  is included in the appendix to P la in tiffs’ P roposed  
Findings o f  Fact and  Conclusions o f  Law.

17 No black person has ever served as Superintendent, 
Deputy Superintendent, Assistant Superintendent for Instruction, 
Assistant Superintendent for Administration and Operations, and 
Assistant Superintendent for Personnel and Human Resources, 
Assistant Superintendent for Business and Research, Assistant 
Superintendent for Vocational, Technical, Adult and Community 
Education or as Administrative Assistant to the Superintendent in 
the Hillsborough County school system. Tr. VII at 144-145. One 
Assistant Superintendent position — and only one — has ever been 
held by someone black: the position of Assistant Superintendent for 
Supportive Services. Tr. VII at 145-147; see also  Tr. VI at 88-89. 
This position administers federal programs relating to inner-city 
school projects and the human relations program. Tr. VI at 88-89. 
However, none of the black persons who have served in this 
position have ever had the opportunity to serve in any other 
Assistant Superintendent capacity. Tr. VII at 146-147.

151b



and Recommendation at 36 ("None of the Court's Orders have 
ever required the School Board to provide racial balance at the 
upper management level"). Thus, the Report and 
Recommendation deem irrelevant evidence probative of the 
district's treatment of staff and willingness to integrate the 
Hillsborough County school system at every level, contrary to 
the Supreme Court's commandment. See Green, 391 U.S. at 
435 (obligation to ensure that "every facet of schools 
operation" is free of racial identifiability).

The Report and Recommendation find that defendants 
are unitary with respect to facilities. The legal analysis 
undertaken by the Court does not adequately consider the July 
1971 Order. The Court recognized in its May 1971 Order that 
the area of facilities is a critical one:

The location of schools may thus influence the 
patterns of residential development of a 
metropolitan area and have important impact 
on composition of inner city neighborhoods.

In the past, choices in this respect have been 
used as a potent weapon for creating or 
maintaining a state-segregated school system.
This was sometimes accompanied by building 
new schools in the areas of white suburban 
expansion farthest from Negro population 
centers in order to maintain the separation of 
the races with a minimum departure from the 
formal principles of "neighborhood zoning.
Such a policy does more than simply influence 
the short-run composition of the student body 
of a new school. It may well promote

Objections to Report & Recom m endation - 10/14/97

152b



segregated residential patterns, which when 
combined with "neighborhood zoning," further 
lock the school system into a mod [sic] of 
separation of the races. Upon a proper showing 
a district court may consider this in fashioning 
a remedy.

May 1971 Order at 31 (quoting Swann v. Charlotte- 
Mecklenburg Bd. O f Ed., 402 U.S. 1, 20-21 (1971). The 
Court provided clear direction as to how to determine 
compliance with this factor:

As previously ordered all school construction, 
school consolidation and site selection, 
(including the location of any temporary 
classrooms) in the system shall be done in a 
manner which will prevent the recurrence of 
the dual school structure.

July 1971 Order at 11. Nevertheless, the Report and 
Recommendation do not base its finding on whether defendants 
can satisfy its burden, given the information it submitted, 
there is enough information the extent adequate information 
was presented to permit evaluation of motivations for 
defendants' actions, as well as the extent to which 
desegregation was taken into consideration, defendants' site 
selection policies and practices suggest that the placement and 
construction of new facilities have exacerbated racial 
identifiability. See id. at 42-44, 79-80.

Plaintiffs' expert, Dr. Stevens, did not find any district 
documentation of any of the following: reason a school site 
was selected, a summary analysis of the impact of a selected

O bjections to Report & Recom m endation - 10/14/97

153b



site on desegregation, alternative sites considered and rejected 
and reasons for rejection, including consideration of 
alternative sites' impact on desegregation. P X 1 at 19. Nor did 
defendants have not presented any information to the contrary. 
It is clear from the school district's own data that the closing 
and opening of schools did not address racial identifiability. 
From 1977-1995, 24 elementary schools were opened and 8 
elementary schools were closed. PX lb; see also PX 1 at 8. 
Yet, during this same time period, there were 14 elementary 
schools which had a black population of 40% or more black. 
PX 1 at 7. None of the 14 racially identifiable schools were 
further desegregated as a result of the opening and closing of 
schools. Id.

Furthermore, there are serious questions as to whether 
school site selection in Hillsborough County has exacerbated 
any existing segregated residential patterns and hindered 
further desegregation. See PX 1 at 8-10; see also PX 1 at 18- 
19. Rather than simply forgoing opportunities for further 
desegregation, defendants have actively promoted segregation. 
With few exceptions, defendants have opened new schools 
outside areas where there are concentrations of black students. 
PX 1 at 18. Dr. William A.V. Clark, the demographer 
retained by the Hillsborough County School Board, 
acknowledged that the defendants' decision to construct a new 
school "in the far part of the suburbs ... would suggest they 
[defendants] were less concerned about keeping an integrated 
school system" than if defendants decided to build a school in 
"the center city." Tr. II at 85-86. As a consequence of this 
action, defendants rely on students from the satellite zones as 
the primary means of desegregating these schools. Id. Thus, 
the only reason that defendants can state that they have never 
opened a school with an all-white population is related to their

Objections to Report & Recom m endation - 10/14/97

154b



readiness to dispatch satellite students to any school built in a 
nearly all-white geographic area. The end result of this 
practice is to increase the transportation burden on these 
students, the vast majority of whom are black. Id.

Moreover, site selection in predominantly, if not 
exclusively, white neighborhoods, is not the only concern with 
regard to school construction. There is evidence that schools 
20 percentage points or more above the district-wide black 
population are more likely to be overcrow’ded than other 
Hillsborough County schools. Dr. Shelley presented evidence 
that overcrowding in schools with a 40% or more black 
population persisted and was not likely to be addressed by new 
construction or the reassignment of students. PX 2 at 12. In 
the 1977-1978 school year, there were 83 elementary schools 
in Hillsborough County; four of these schools, Cleveland, 
Edison, Graham and Oak Park, had 40% or more black 
student populations Id. Two out of these four schools, Graham 
and Oak Park, had enrollments of more than 25% above its 
Florida Inventory of School Houses (FISH) capacities. Id.; see 
also id. at 23. Of the 79 schools which had a black population 
of less than 40% black, only six schools had enrollments of 
more than 25% above FISH capacity. Id.; see also id. at 23. 
In the 1995-1996 school year, out of a total of 102 elementary 
schools, there are fourteen elementary schools with a 40% or 
more black population. Id. The vast majority of these 40% or 
more black student schools — ten — are overcrowded, with 
half of the ten schools being more than 50% above FISH 
capacity. Id. at 12-13; see also id. at 23. Of the 88 elementary 
schools with less than 40% black student population, only 21 
were overcrowded, with little more than one-third of the 
twenty-one being more than 50% above FISH capacity. Id. at 
12-13; see also id. at 23. In essence, although only 14% of all

Objections to Report & Recom m endation - 10/14/97

155b



elementary schools in Hillsborough County can be considered 
to be overcrowded, according to FISH capacity, more than 
one-third of those schools with a 40% or more black student 
population are overcrowded. Id. at 13; see also id. at 23.

Defendants failed to provide pertinent data necessary 
to meet their burden of demonstrating that the system has been 
successfully rid of all vestiges of discrimination to the extent 
practicable. For example, one indication of whether the school 
district discharged its obligation relating to the satisfaction of 
the Green factor of facilities would certainly be data on capital 
expenditures. As part of an overall analysis on resource 
allocation, Defendant has included an analysis on capital 
expenditures. S e e D X 1 at 19-20. This information is deficient 
in two respects. First, this information does not do an analysis 
of data on capital expenditures prior to the 1971 Order, failing 
to provide a suitable benchmark for this Court to determine 
whether there has been a significant change in the treatment of 
schools predominated by black students. Tr. Ill at 129. 
Second, while defendants' expert, Dr. Armor, conducted an 
analysis between "inner city" schools and other schools, Dr. 
Armor did not compare capital expenditures between schools 
with a greater or less than 40% black student population. Tr. 
Ill at 131. In fact, an overwhelming number of the schools 
included in the capital expenditure study -  eleven1 s out of 
twenty-one elementary schools — are schools which are not 18

Objections to Report & Recom m endation  - 10/14/97

18 The eleven schools are Bryan Tampa, Dunbar, Just, 
Lee, Lomax, Orange Grove, Potter, Progress Village, Shore, 
Williams, and Lincoln.

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close to or a majority black. Id. Indeed, some of these schools 
are magnet schools.19

O bjections to Report & Recom m endation - 10/14/97

The Report and Recommendation made a finding that 
the defendants are unitary in the area of transportation. This
finding is based on the fact that the bus burden has existed
since the 1971 Order and was not considered a violation
then.20 See Report and Recommendation at 39. This analysis
does not take into account whether since the entering of the
1971 Order there is still a need for blacks to bear such a
disproportionate burden of the busing under the school
system's desegregation plan.21 Nor does this address whether

19 The significance of placing magnet schools on the list is 
two-fold. First, magnet schools in the Hillsborough County school 
system receive additional resources, as the defendants readily 
concede. See Tr. I at 151-153. Second, magnet schools at 
Hillsborough County expressly limit black student enrollment to no 
more than 23%. See id. at 166-167; Tr. IV at 126.

20 The July 1971 Order did state that:

Bus routes and the assignment of students to buses 
will be designed to assure the transportation of all 
eligible students on a non-segregated and otherwise 
non-discriminatory basis....

July O rder at 10.

21 Recent data indicate that, at the high school level mean, 
a black student is three times more likely than a white student to be 
bused for desegregation purposes. See P X 1 at 20; see also P X I f .  
When the figures computing which students are bused for 
desegregation purposes, but do not do so voluntarily, i.e., they are 
not participating in a magnet school or program, black students are 
still more likely than white students to be "assigned" to a bus for 
desegregation purposes. See id. P X  1; see a lso  P X  Ig . At the 
elementary school level, black students are nearly two and one-half

157b



there is a link between the student assignment and site 
selection policies of the defendants which are a contributing 
factor to the burden placed on black students. For example, 
the perpetuation of the satellite program places a 
disproportionate transportation burden on black students who 
live in the satellite areas. The logic behind the Report and 
Recommendation's finding suggests that black students can be 
bused at will.

The Report and Recommendation found the defendants 
unitary in the area of extracurricular activities. Report and 
Recommendation at 40-42, 77-79. The July 1971 Order 
required defendants to assure access to, and the maintenance 
of, extracurricular activities on a "non-segregated" and 
"nondiscriminatory" basis. Defendants provided little evidence 
to justify such a finding and the Report and Recommendation 
provides little basis for reaching this result.

In order to form an opinion as to the degree of 
desegregation of extracurricular activities, the following 
information would have to be provided: (1) activities by 
school, (2) sponsors and coaches by school and by race, (3) 
student participation by activity, by race and by school. P X 1 
at 28. These activities should include athletics, clubs and other

Objections to Report & Recom m endation  - 10/14/97

times more likely than white students to be assigned to a bus for 
desegregation purposes. See id .; see also P X  Ig . At the high school 
level, black students are fourteen times as likely as white students 
to be assigned to a bus for desegregation purposes. See id .; see also  
P X  lg .  There is marked increase in terms of the percentage of 
students assigned to a bus for desegregation purposes at the high 
school level. At the high school level, black students comprise 
nearly 80% of the students bused for desegregation purposes. See 
id .; see also P X  lg .

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after-school activities. Id. The availability of transportation to 
and from these activities should also be examined.22

The Hillsborough County school system apparently has 
a broad range of extracurricular activities, including athletics,
music groups (such as bands, orchestras, and choral groups, 
student organizations (such as the National Honor Society, 
drama clubs and the student council). See P X 1 at 27; see also 
Tr. VI at 29-30. At the evidentiary hearing, defendants only 
presented evidence with regard to athletics. See Tr. I at 111- 
116; see also DX 28. Therefore, there is no basis for 
concluding that there are no vestiges of segregation with 
respect to music groups, student organizations and other clubs 
in the Hillsborough County school system, especially in light 
of compelling anecdotal testimony about a reluctance in one 
predominantly white school to do more about black student 
involvement in extracurricular activities. Tr. VI at 17-22, 27- 
28.23

O bjections to Report & Recom m endation  - 10/14/97

The evidence with respect to athletics, which includes 
sports and cheerleading, is limited to one exhibit. D X 28. This

As discussed above, this Court has already found that 
defendants have failed to show that there is adequate access to 
extra-curricular activities for those students -  who are 
disproportionately black — who are bused to school from a satellite 
area.

~3 A black parent, Mrs. Mae King, testified that, when she 
made a suggestion about having an African-American disc jockey 
at a party to increase black student participation in school activities, 
parents walked out of the meeting. Id. at 19-20; see also id. at 52- 
53 (testimony of Ronnie King concerning limited involvement in 
and recruitment of black students for Spanish and Math Honor 
Societies).

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Objections to Report & Recom m endation  - 10/14/97

exhibit provides information for the fall of 1996-1997 school 
year and the winter and springs of the 1995-1996 school year. 
Tr. I at 117. The exhibit does not provide any information 
prior to this time period. Id. at 117-118. Nor does the exhibit 
indicate how many students tried out for the given activity. 
See id.; see DX 28. Therefore, it is impossible to tell whether 
or not any of the figures represent a pattern of discrimination 
or exclusion. For example, for the Bloomingdale High School, 
there were no black cheerleaders during this time period. Id. 
at 117-118. There is no evidence that this is aberrational or 
that it reflects a lack of interest on the part of black girls. See 
id. at 117-118. Likewise, at Brandon High School, there was 
only one black cheerleader. Id. at 118. Again, there is no 
indication from this exhibit whether this is aberrational or 
rather, reflects a pattern of discrimination. Such information 
is crucial to determining whether the vestiges of segregation 
have been eliminated.24Thus, the Report and Recommendation 
should have found that defendants failed to present sufficient 
evidence that extracurricular activities are free of the vestiges 
of segregation.

The inquiry of whether a quality education has been 
provided, regardless of the race of the student, focuses on 
factors related to the prior de jure segregated school system.
See Missouri v. Jenkins, 515 U.S. a t___, 132 L.Ed. 2d at 89
(Court expresses concern about " [insistence upon academic 
goals unrelated to the effects of legal segregation"). If any so-

24 Clearly, black students' opportunity to participate in 
cheerleading squads has been an issue throughout the school 
district. The issue is of such great concern that Mrs. King, testified 
that she got up early in the morning to monitor cheerleading tryouts 
at Armwood High School. Tr. VI at 26-27, 31-32.

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called "external factors" affecting minority student 
achievement are the result of segregation, then these factors 
are relevant and "figure in the remedial calculus." Id. 
Testimony on quality education is in three forms: (1) evidence 
on resource allocation, (2) evidence on academic outcomes, 
and (3) evidence on the disparate impact of defendants' 
practices and policies affecting a student's right to a quality 
education, regardless of race.

On resource allocation, defendants submitted an 
analysis compiled by Dr. Armor. Dr. Armor conducted 
analyses on teacher resources, operational resources and 
capital expenditures. DX 1 at 14-20. The Report and 
Recommendation found that:

The School Board has also established that its 
allocation of funds and teacher resources is free 
from racial discrimination. Much of the budget 
comes from state and federal sources and the 
School Board is regularly audited to determine 
that it is in compliance with standards for use 
of those funds. Individual schools are funded 
on a per-pupil basis and the race of the student 
has no bearing on how funds are spent. Schools 
that are brought into the middle school cluster 
plan receive additional funds for that year. In 
recent years, total per capita expenditures have 
actually been higher at schools with a 40% or 
higher black enrollment.

Report and Recommendation at 79. The evidence upon which 
this finding is based cannot support such a conclusion.

O bjections to Report & Recom m endation  - 10/14/97

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Objections to Report & Recom m endation  - 10/14/97

Overall, the data on resource allocation is so deficient 
that it is of little probative value. This data suffers from three 
major deficiencies: (1) none of the data provided hereto is 
compared with information prior to the issuance of the 1971 
Order, (2) only two years of data are provided and not 
consecutive years and (3) the analysis does not take into 
consideration the impact of the middle school plan. On the 
first matter, there can be no meaningful discussion of 
"vestiges" without a proper understanding of the prior de jure 
segregated school system. On the second, the quantum of data 
provided must be sufficiently reliable in order for this Court 
to provide meaningful findings of fact and issue well-informed 
conclusions of law. On the third and final matter, if as the 
defendants' expert concludes, one of the two years chosen was 
an atypical year, DX 1 at 14, this fact raises a question about 
whether any of this data can be reliable in the midst of a 
tremendous overhaul of the entire school structure, as a result 
of the ongoing implementation of the middle school plan.

The teachers' resources information contains data on 
the following with respect to elementary and middle schools, 
not high schools: (1) the educational background of teachers, 
(2) the average years of professional experience for teachers 
in a school, and (3) pupil teacher ratios. DX 1 at 14-15. 
However, the teachers' resource information includes 
resources, provided as a result of Chapter I funds. Chapter I 
funds bring significant resources based on the socioeconomic 
status of the students. See Tr. VII at 93-95. Therefore, the use 
of resources provided by these sources without an indication 
of how this support affects the amount of resources can be 
misleading and not a sufficiently reliable indicator of how the 
school district, itself, is distributing resources.

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The operational expenditure analysis includes 
information on teacher salaries and benefits, textbooks, 
instructional equipment, maintenance and other categories. DX  
1 at 16-19. As a result of the use of only two years of data, a 
dozen schools were excluded from the analysis on supplies and 
equipment expenditures.25 It is unclear what the impact is of 
this exclusion of data. Nevertheless, defendants chose to 
present a limited sample from which this Court could make 
findings and thus, cannot complain about their 
inconclusiveness.

On academic outcomes, the Report and 
Recommendation found that: "any disparity in achievement 
among students is not due to the effects of the prior segregated 
school system but rather to a myriad of other factors, largely 
socioeconomic." Report and Recommendation at 82-83. This 
finding is not supported by the evidence presented in this case. 
On academic outcomes, defendants once again rely principally 
on the testimony presented by Dr. Armor. Despite the 
existence of these disparities in student achievement between 
black and white students, Dr. Armor suggests that these 
results have no connection with the prior de jure  segregated 
school system, even though Dr. Armor's analysis does not 
compare the current achievement rates of black and white 
students with the achievement rates of black and white 
students in the former de jure  segregated school system. Tr. 
Ill at 119-120. The sum and substance of Dr. Armor’s 
testimony are that the difference between white and black

Objections to Report & Recom m endation - 10/14/97

25 The elementary schools are Boyette Springs, Cannella, 
Colson, Folsom, Hunters Green Lithia Springs, Lowry, and 
Schwartzkopf. DX 1 at 18, n.7. The middle schools are Coleman, 
Madison, Monroe, and Wilson. Id.

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Objections to Report & Recom m endation  - 10/14/97

student achievement levels is "explained" almost entirely by 
the poverty of the students, rather than "vestiges" of the prior 
de jure segregated school system. For the reasons stated 
below, this additional analysis is not compelling. Dr. Armor 
does not analyze any information from the prior de jure  
segregated school system. Thus, this analysis draws a 
conclusion without complete information. This analysis cannot 
inform the Court on how differences in teacher expectations 
affected black student achievement prior to the 1971 Order. 
Id. at 121. Nor can this analysis preclude the possibility that 
part of the gap in black/white achievement explained by 
percentage B.A. is related to the prior de jure  segregated 
school system. Id. at 123. If part of the gap in black/white 
achievement is explained by the percentage of B.A. in black 
families, which is related to the prior de jure  segregated 
school system, then this would help explain the impact on 
average household income. Id. at 123. Thus, Dr. Armor does 
not account for the possibility that the differences between the 
academic outcomes of black and white students may be linked 
to the prior de jure segregated school system. While Dr. 
Armor suggests, such an inquiry is not relevant, Id. at 121, to 
conclude otherwise requires the Court to do something it 
cannot do: ignore the very basis for federal court supervision 
in the first place.

Next, Dr. Armor's use of 1990 United States Census 
variables, same-race percentage of B.A. degrees and the same- 
race average household income, with actual school data, free 
or reduced lunch status and one- or two-parent family status, 
renders suspect his analysis of the impact of socioeconomic 
status of the 1994 and 1995 fifth and eighth grade reading and 
math test-takers. First, the U.S. Census data measures the 
socioeconomic status of neighborhoods, not actual students.

164b



Tr. Ill at 125-126; Tr. VI at 170. Second, Dr. Armor is not 
even measuring the socioeconomic status of the actual 
neighborhoods of the 1994 and 1995 fifth and eighth grade 
reading and math test-takers, because he relies on information 
from 1990, the 1990 Census, not information from 1994 and 
1995. Thus, Dr. Armor is not measuring the socioeconomic 
status of the 1994 and 1995 test-takers.

Finally, the use of the Census data taints Dr. Armor's 
conclusions in another way. Dr. Armor claims to be trying to 
explain whether something other than race "explains" 
differences in test scores between black and white students. 
However, by using only same-race data from the U.S. Census, 
he is using racial data to explain away race. Tr. VI at 170- 
173.26

Objections to Report & Recom m endation  - 10/14/97

26 In his analysis of whether socioeconomic status can 
"explain" the racial gap in test scores, Dr. Armor also 
inappropriately assumed that the relationship between 
socioeconomic status and academic achievement is the same for 
black and white school children. Tr. VI at 176-177. This 
assumption had the effect of overestimating the effects of socio­
economic status. Id. at 177-78. In fact, as plaintiffs’ rebuttal expert, 
Dr. Robert Crain showed, although academic achievement 
generally increases with the level of family resources for both white 
and black students, the relationship between the level of family 
resources and achievement is not the same for black students versus 
for white students. PX 65; Tr. VI at 181-82. In fact, when blacks 
of low family resources are compared to whites of low family 
resources or blacks of high family resources are compared to 
whites of high family resources, there are differences in academic 
achievement levels, with whites scoring higher than blacks. See id. 
Dr. Armor had not himself analyzed the significance of the 
difference between these relationships and thus had no basis to 
conclude that the difference was not significant. Tr VII at 177, 179- 
80.

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For Dr. Armor's analysis to have its intended effect -  
to prove that any differences in academic outcomes between 
black and white students are related solely to socioeconomic 
factors rather than race -  first grade test scores are critical. 
Tr. VII at 182-183. As discussed above and conceded by Dr. 
Armor, the use of the four socioeconomic variables, 
percentage of B.A. degrees, average household income, free 
or reduced lunch status, and one or two parent family 
information, "only explain about half of the difference" 
between the academic outcomes of black and white students. 
Id. at 183. Thus, in Dr. Armor's own words, "first grade 
scores are critical in my opinion." Id.

Like the inclusion of the neighborhood variables, the 
addition of first grade test scores to Dr. Armor's analysis 
compromises the quality of the results obtained. First grade 
test scores are not a purely socioeconomic factor, like free or 
reduced lunch or one or two parent families, or educational 
level or income. Dr. Robert Crain, plaintiffs' expert, argued 
that first grade test scores are an important measure of what a 
student knows about reading at the end of the first grade year, 
particularly since testing occurs in the spring after students 
have already had significant opportunities to develop skills. 
Tr. VI at 283, 253. If the Hillsborough County school system 
wanted to measure the "initial skills" of first graders, then it 
would have tested them upon entry into school, rather than 
after several months of schooling. Even Dr. Armor concedes 
that enough learning occurs in the first grade to increase IQ 
levels and improve cognitive skills, Tr. VII at 186-187. 
Clearly, a measure of how much a child has learned during a 
given period of school attendance is not a pure measure of a 
socioeconomic factor.

Objections to Report & Recom m endation - 10/14/97

166b



In fact, the use of first grade test scores as part of the 
academic achievement analysis begs the ultimate question at 
issue. Dr. Armor claims to be explaining that differences in 
the scores between black and white students are not linked to 
differential treatment of black and white students in the 
Hillsborough County school system. See DX l  at 20 ("other 
qualitative differences in curriculum or in teaching practices" 
may be "responsible for outcome differences such as test 
scores ...."). Nevertheless, by relying on first grade test 
scores from the Hillsborough County school system, Dr. 
Armor relies on factors within the control of the Hillsborough 
County school system to "explain" away whether or not these 
test scores are within the control of the Hillsborough County 
school system. In essence, his analysis leads the Court right 
back to the very question it posed to the parties: whether or 
not the vestiges of de jure  discrimination have been eliminated 
in the Hillsborough County schools. Thus, Dr. Armor's 
analysis of academic outcomes does not demonstrate that any 
difference in academic outcomes between black and white 
students in Hillsborough County is the result of socioeconomic 
status, given the issues raised about the methodology.

On the third area in quality education, the evidence is 
suspension data, participation in the gifted program and drop 
out rates. The factor of suspension rates is included because 
it is an indicator of school treatment of black and white pupils. 
Tr. IV at 146-147. Gifted programs were included because 
these programs are popular programs with parents and, 
therefore, access to these programs for black students would 
be important. Id. at 147. Drop out rates indicate the rate at 
which black students are finishing school in proportion to their 
presence in the school district. Id. at 148.

O bjections to R eport & Recom m endation - 10/14/97

167b



The data indicates that black students are over 
represented in terms of suspensions and drop out rates, but 
under represented in terms of participation in gifted programs. 
See id. at 142-148. The suspension statistics indicate a 
particularly bleak reality for black students in Hillsborough 
County. In the area of suspensions, at all levels of the school 
system, black students are suspended at a far greater rate than 
white students. PX 1 at 28; see also Tr. IV at 143-144. For 
the 1994-1995 school year, half of the black students at the 
middle school level received a suspension of some form. PX 
1 at 29; Tr. IV at 146.27 This figure was twice as much as the 
rate of white students. Id. Of the black middle school students 
who received some form of suspension, the vast majority 
received out-of-school suspension, which means that 
instructional time was lost. PX 1 at 29-30. In short, black 
students in Hillsborough County are losing more instructional 
time than white students as a result of the rate of suspensions. 
Defendants presented no witness to address these alarming 
suspension rates.

As a result of the foregoing, it is clear that the 
evidence in the record did not exist to support a Report and 
Recommendation finding that defendants were unitary with 
respect to quality education. Defendants have not presented 
sufficient data on resource allocation nor have they 
demonstrated that any differences in academic outcomes, such 
as test scores and suspension rates, are not linked to the prior 
de jure  segregated school system. Under these circumstances, 
the elimination of racial discrimination in the area of quality

Objections to Report & Recomm endation - 10/14/97

27 The Hillsborough County school system has two forms 
of suspension, in-school and out-of-school suspension. See P X  1 at
29-30.

168b



education has not been established and a declaration of unitary 
status in this area is not appropriate.

III. PLAINTIFFS OBJECT TO THE REPORT AND 
R E C O M M E N D A T IO N  FIN D IN G  THAT  
DEFENDANTS HAVE COMPLIED IN GOOD- 
FAITH WITH THIS COURT'S ORDERS

Analysis of the Green factors is only one part of a two- 
part test. "The District Court should address itself to whether 
the Board has complied in good faith with the desegregation 
decree since it was entered...." Dowell, 498 U.S. at 249-50. 
See also Freeman, 503 U.S. at 499 (Defendants have "an 
affirmative commitment to comply in good faith with the 
entirety of a desegregation plan"). The Report and 
Recommendation find that:

The School Board has complied in good faith 
with this Court's desegregation orders for quite 
a long period of time. The testimony of the 
[sic] most School Board members, as well as 
the current Superintendent and those 
responsible for various facets of school 
operation demonstrates that defendants have 
accepted the principle of racial equality and 
will not revert back to a dual school system.

Report and Recommendation at 86. This finding is totally at 
odds with the evidence presented in this case. The Report and 
Recommendation cannot measure good-faith compliance when 
the 1991 Consent Order has not yet run its course. Indeed, 
given the applicable law in this area, all the evidence suggests 
that the requirement of good-faith compliance cannot be met.

O bjections to Report & Recom m endation - 10/14/97

169b



"A finding of good faith ... reduces the possibility that 
a school system's compliance with court orders is but a 
temporary constitutional ritual." Morgan v. Nucci, 831 F.2d 
313, 321 (1st Cir. 1987). The defendant school district must 
demonstrate "to the public and to the parents and students of 
the once disfavored race, its good-faith commitment to the 
whole of the court's decree and to those provisions of the law 
and the Constitution that were the predicate for judicial 
intervention in the first instance." Freeman, 503 U.S. at 491. 
There is no basis for a conclusion that defendants have 
demonstrated to the "disfavored race" their good-faith 
commitment. In fact, the record evidence overwhelming 
demonstrates that the black community in Hillsborough 
County has little faith in the defendants.

Plaintiffs called eight black residents of Hillsborough 
County to testify at trial: Mrs. Doris Reddick, a member and 
then-Chair of the Hillsborough County School Board and 
defendant in this case28 *, Mrs. Ann Porter, President of the

Objections to Report & Recom m endation  - 10/14/97

28 Significantly, although she was a defendant in this case, 
Mrs. Reddick testified that the Hillsborough County school system 
was not ready for unitary status. Mrs. Reddick is the only member 
of the Hillsborough County School Board who attended the all- 
Black public schools of the de ju re  segregated Hillsborough County 
school system. She testified about the inadequate and inferior 
facilities and equipment that she encountered as a Black student in 
the Hillsborough County schools. Tr. V at 21-23. "There were no
... kindergartens during that time for black children ... [and] 
sometimes not enough books for the children, and I also remember 
that some of the pages would be torn out, some of the covers or 
backs would be missing from the books.,.. [A] 11 of the teachers ... 
[and] all of the children were black. There was no lunchroom at 
either of the schools that I was in." Tr. V at 21-22. Mrs. Reddick 
attended high school in an elementary school building, which "was 
not equipped with anything that a high school should have had for

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O bjections to Report & Recom m endation  - 10/14/97

Tampa Branch of the National Association for the 
Advancement of Colored People (NAACP29), Mrs. Joanna 
Tokely30 *, President of the Tampa Branch of the Urban

children." Tr. V at 23.

Mrs. Reddick testified that she does not believe that the 
Hillsborough County School system should be released from court 
supervision. Tr. V at 25, 30-31. As she explained:

I am not sure we have actually crossed over the 
wall, and I mean the wall of equal distribution of 
everything that the unitary system calls for.

Also, I know that history has a way of repeating 
itself, and I am reluctant to have us released now,
Your Honor, and any other time that I see in the 
future.

Tr. V at 30.

29 Through the NAACP chapters' Education Committee, 
Mrs. Porter is knowledgeable about complaints filed with the 
organization by black parents with children in the Hillsborough 
County public schools. Mrs. Porter testified that the Tampa Branch 
NAACP has received complaints during the past several years 
concerning various racially discriminatory actions and practices 
within the school system. She specifically identified employment 
discrimination in the school system and discriminatory special 
education placements as issues that have generated complaints to 
the NAACP in recent years. Tr. VI at 139, 141-43.

30 On the basis of her experiences as an employee of the 
Hillsborough County public schools, her work with the Tampa
Hillsborough Urban League, and her involvement as a parent, 
grandparent and godparent of Hillsborough County public schools 
students, Mrs. Tokley opposes the termination of federal court 
supervision of the Hillsborough County public schools. She testified 
about numerous situations or conditions which contribute to her 
feeling that "the school system is not ready" to be declared unitary 
yet. Tr. Ill at 187. See generally id. at 179-81, 188-89, 208-09.

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Objections to Report & Recom m endation - 10/14/97

League, Mrs. Mae King31, a parent, Ronnie King II32, a

One of the more recent (and graphic) examples of this which Mrs. 
Tokley testified about was a 1995 high school basketball game 
where some spectators began to yell racial epithets after her godson 
scored enough points to bring his team into the lead. Tr. Ill at 181, 
208-09. No action was taken to stop this discriminatory conduct. 
Id. at 208-09. In addition, Mrs. Tokley testified that the school 
system's hiring and promotion of African Americans remains a 
matter of great concern and "is always" raised in meetings between 
the Superintendent and African American community 
representatives. Tr. Ill at 192-93.

31 Mrs. Mae King is the mother of two children who attend 
Hillsborough County public schools. Tr. VI at 11. Mrs. King's 
daughter, Veronica, is a fifth-grader at Limona Elementary School 
and'her son, Ronnie, is in the eleventh grade at Armwood High 
School. Tr. VI at 11. Mrs. King testified about several specific 
incidents which have caused her to believe that it is premature to 
terminate federal court supervision and grant unitary status in 
Hillsborough County. Tr. VI at 13-21, 26-28, 30-31, 37-40. For 
example, she described the physical separation of inner-city, black 
children from their classmates as they arrived at Limona each 
morning. Tr. VI at 16-17. Mrs. King also described an incident 
where black children were waiting on a long line to enter Limona's 
cafeteria to eat breakfast, and a "white child came up to the end of 
the line and a teacher escorted th[e] white child to the front of the 
line." Tr. VI at 35, 37. Mrs. King also expressed concerns about 
black students' limited participation in extracurricular activities at 
Armwood, and questioned whether school officials are sufficiently 
responsive to such concerns. Tr. VI at 18-21. Mrs. King was a 
student herself at the beginning of desegregation. Consequently, she 
"has never felt a part of the school" that she attended and has never 
been invited to a class reunion. She testified that she "just cannot 
sit back and allow [her] child to be educated in a system where he 
graduates ... and never feel[s] a part [of the school]." Tr. VI at 28. 32 *

32 Ronnie King, a 16-year-old member of Armwood High 
School's class of 1998 testified concerning his experiences as an 
African American student in the Hillsborough County public school
system. Tr. VI at 41-56. His current courses include gifted level 
mathematics, science, history, and English classes. He is the only

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Objections to Report & Recom m endation - 10/14/97

student, Mr. Darrell Daniels33, a parent, Dr. Sam Horton34,

Black student in each of these classes. Tr. VI at 44. While he 
acknowledges the difficulties of being in such an extreme minority 
in most of his classes and activities, Ronnie nevertheless feels that 
his presence helps to counteract stereotypes:

[I]n my classes they have this image of blacks just 
being ... athletes.... And at least they're able to see 
one face ... [and] they [can] say, Well, you know, 
this is a black student ... that plays sports and has 
good grades, you know.

Tr. VI at 49.

33 Darrell Daniels, an African American parent of two 
children who attend Hillsborough County public schools believes 
that federal court supervision of the desegregation of Hillsborough 
County schools should not be terminated yet. Tr. VI at 57-79. 
Daniels' 10-year-old son, Brandon, is in the fourth grade at Robles 
Elementary School. His 8-year-old son, Dominique, is in the third 
grade at Foster Elementary School. Tr. VI at 57-58. His fiancee's 
children attend Essrig Elementary School. Tr. VI at 59. When 
asked to compare Robles to Essrig, Mr. Daniels stated that the two 
schools were like "night and day." Tr. VI at 59-60. The Robles 
student body is 91 percent African American, while only 16 percent 
of the children enrolled at Essrig are African American. PX 4 at 3,
5. He testified that, "if [he] had a choice", he would prefer for his 
son to attend a different school than Robles. Tr. VI at 60. His 
specific concerns are that fewer resources are available at Robles, 
and that the staff of many inner-city schools discourage parental 
involvement and do not have the same commitment to education as 
the staff of suburban schools and schools with larger white student 
enrollments. Tr. VI at 59-60, 63-67, 70-72, 76-77. 34

34 Dr. Sam J. Horton was employed by the Hillsborough 
County school system for more than 42 years. Tr. VI at 80. He 
retired in 1991 after 14 years of service as General Director of 
Secondary Education for the Hillsborough County schools. Id. 
Between 1950 and 1977, Dr. Horton worked as a teacher, assistant 
principal, or principal in five different Hillsborough public schools. 
Tr. VI at 84. Dr. Horton attended segregated public schools in

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a former Hillsborough County school system employee and 
Minister Andrew Manning35, the named plaintiff in this action.

Objections to Report & Recom m endation - 10/14/97

Hillsborough County. Tr. VI at 95. Dr. Horton was the first — and 
last -- African American to serve as General Director for Secondary 
Education in the Hillsborough County school system. Tr. VI at 88. 
Throughout his 42 years of service with the Hillsborough County 
school system, only one position at the Assistant Superintendent 
level was ever occupied by an African American — the position of 
Assistant Superintendent for Support Services. Tr. VI at 88. In the 
years since Dr. Horton's retirement, Assistant Superintendent for 
Support Services remains the only position at the Assistant 
Superintendent level that is held by an African American. TR. VI 
at 89. Dr. Horton sought the Assistant Superintendent for 
Instruction position twice. Tr. VI at 89. He did not believe that the 
position was ever "advertised in a bulletin or nationally or that kind 
of thing," Tr. VI at 90-91, and he described a very informal hiring 
process where "you know that the vacancy exists", and then simply 
notify the Superintendent of your interest in the position. Id. Both 
times that Dr. Horton sought the Assistant Superintendent for 
Instruction position, he was passed over, and whites were hired 
instead. Tr. VI at 89-94.

On the basis of his experiences as a student and employee 
of the Hillsborough County public schools, and as an educator, Dr. 
Horton has "very serious concerns" about the termination of federal 
court supervision. Tr. VI at 96-97, He is concerned that some 
Hillsborough County schools "have the potential of re-segregating 
themselves ... [or] becoming ... one-race" Tr. 96-97, 99. He fears 
that termination of the desegregation order "might rob 
[Hillsborough County's] children of the chance to enjoy and 
practice the diversity" of the larger society. Tr. VI at 97-98. 
Finally, he is concerned that the current desegregation plan is too 
dependent upon specialized programs, which are more expensive, 
and therefore are easy targets when budgets tighten or shrink. Dr. 
Horton testified that "if history repeats itself, those schools that are 
predominantly black ... will not get adequate resources to maintain 
that program." Tr. VI at 98.

35 Minister Andrew Manning was a fourth grade 
student at Dunbar Elementary School in 1958 when his

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O bjections to Report & Recom m endation - 10/14/97

Each of these witnesses testified that the court- 
monitored school desegregation should continue. Each of these 
witnesses expressed concern about the educational 
opportunities that would be available to black students in the 
Hillsborough County public school system if federal court 
supervision is terminated and unitary status is granted. In 
contrast, defendants failed to call a single black witness in 
support of the proposition that the black community is 
satisfied with the commitment shown by defendants to their 
interests, even one of their own School Board members. This 
evidence undercuts the argument that the "principle of racial 
equality has been accepted by defendants. In fact, it suggests 
a significant degree of racial polarization and isolation 
inconsistent of the type of evidence indicative of a lack of 
good faith. See Green, 391 U.S. at 442 (not a racially divided 
district "but just schools").

mother, Mrs. Willie Mae Manning, began this litigation. Tr. VI at 
104-05. At the time, both the students and faculty of Dunbar were 
all-black. Tr. VI at 106. Dunbar was a "very crowded" school, 
with "limited equipment" and "old" textbooks. Id.

Minister Manning testified that, from his perspective, the 
objective of the litigation was to gain access to "a quality 
education." Tr. VI at 108. Even after his graduation from the 
Hillsborough County public school system, Minister Manning 
remained interested in and involved with the lawsuit. Tr. VI at 112. 
He is concerned that black students have borne most of the burden 
of implementation of the desegregation order. Tr. VI at 114-17. 
Nevertheless, Minister Manning does not believe that federal court 
supervision of the Hillsborough County school system should end 
now. Tr. VI at 115-17. He believes that the schools "have not 
completely eliminated the vestiges of segregation, and he "feel[s] 
that there is a distrust in the black community ... [and] unhappiness 
with the School Board" which must first be addressed. Tr. VI at 
113, 115.

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Objections to Report & Recom m endation - 10/14/97

Other evidence raised questions about how defendants 
carried out their obligations under court decrees. Defendants 
do not engage in an affirmative marketing efforts for the m-m 
program. See Tr. I at 87-93. Yet, defendants clearly know 
how to engage in such a program, given the extensive 
recruiting efforts for magnet schools. Tr. I at 145-150.36 
Defendants know the rules for special transfers, such that they 
deem it inappropriate not to deny special transfers, even 
though special transfers may further segregate a school. See 
PX 6. Yet, Dr. Miliziano, the school official with the most 
significant day-to-day responsibilities for school 
desegregation, testified as to not realizing until recently that 
the m-m transfer program is applicable to the district's current 
situation. Tr. I at 91-92. The magnet program makes special 
efforts to recruit minority students, but then limits the access 
of black students to magnet programs to levels below those 
promised. See PX 1c. Furthermore, defendants have included 
a document entitled "Position Statement" in its reports to the 
Court, which states as follows:

It is the position of the School Board of 
Hillsborough County to maintain as closely as 
possible enrollments at schools within or close 
to the capacity of the school, and to maintain a 
race ratio which is in keeping with the Federal 
desegregation order.

36 Defendants, inter alia, send out letters to every student 
in the Hillsborough County school system who is eligible to 
participate in the magnet program, and place radio and newspaper 
advertisements, paying special attention to media outlets with a 
predominantly black audience. Tr. I at 145-150.

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Objections to Report & Recommendation - 10/14/97 

This is accomplished in one of two ways:

1. When new schools are opening, 
boundaries, are drawn in such a way 
that a sufficient enrollment and race 
ratio is included at the new school and 
surrounding schools which are 
overcrowded or out of balance as to 
race ratios.

2. When overcrowding conditions are 
found at existing schools and/or a race 
ratio significantly deviates from the 
desegregation plan, the School Board is 
asked to make boundary changes to 
accommodate enrollments and race 
ratios.

Before boundaries are approved by the Board, 
community input is sought, and all actions of 
the Board regarding boundaries are reported to 
the Federal District Court.

DX 7 at Appendix A-4 of the First Annual Report. This 
statement clearly indicates that defendants will take action to 
address any school with a "race ratio significantly deviating] 
from the desegregation plan." Id. Having reported this 
position to the Court for four consecutive years, Tr. VII at 
225-226, defendants now take the position that this statement 
was not a real policy of the Hillsborough County school 
system. Id. at 210-214. Defendants also suggest that this 
position was never really Board policy, although it was

177b



reported to this Court as such, but rather was merely the 
personal statement of Dr. John Miliziano. See id. at 224-225.

Unfortunately, one of two things must be true and 
neither are consistent with defendants' good-faith obligation: 
(1) defendants submitted a statement purporting to be the 
position of the Hillsborough County School Board and that 
was not the case or (2) defendants submitted a position 
statement to this Court which was, in fact, the position of the 
Hillsborough County School Board, but now in the midst of 
litigation, have now decided to disavow that position. Either 
way, these statements are not only inconsistent with 
defendants' good-faith obligation, but must be viewed as an 
affirmative act of bad faith.

The testimony of Dr. John Heuer leads to further doubt 
about defendants' representations to this Court. From 1963 to 
1982, Dr. Heuer served as the director of pupil administrative 
services for the Hillsborough County school system. Tr. VII 
at 8. In this capacity, he had the responsibility of 
implementing defendants' school desegregation plan, including 
participating in the submission of plans and annual reports to 
the Court. Id. at 9-10. In carrying out his duties, Dr. Heuer 
testified, that in part, he was guided by an ex parte comment 
made by this Court about what to do about increasing racial 
identifiability. See id. at 17-19 ("we felt that what he 
explained to us is we were not required to go back and make 
a change because we hadn't created the problem initially"). 
Yet, at no time, did he make an effort to make these comments 
known to the public, the Bi-Racial Committee or distributed 
in writing to someone in the school system. Id. at 41-42. 
Despite the existence of two very clear and extensive court 
orders issued in May and July of 1971, it is Dr. Heuer's

Objections to Report & Recom m endation  - 10/14/97

178b



testimony that major decisions about school desegregation are 
based on one-time conversations, which are not clearly 
articulated and memorialized in court orders. Nothing could 
be more inconsistent with defendants' good-faith obligation.

Based on the foregoing, the finding in the Report and 
Recommendation that defendants have complied in good-faith 
with this Court's orders must be rejected.

IV. PLAINTIFFS OBJECT TO THE REPORT AND  
R E C O M M E N D A T I O N  F I N D I N G  T H A T  
PLAINTIFFS' M OTION TO ENFORCE ORDER 
SHOULD BE DENIED

The Report and Recommendation finds that:

Plaintiffs have only once alleged that 
defendants violated this Court's orders, in 
1994. Those allegations were fully addressed in 
the Prior Report and Recommendation dated 
June 23, 1995 and the proposed findings and 
conclusions made therein are incorporated here 
by reference.

Report and Recommendation at 63. Plaintiffs object to this 
finding and the underlying finding in the previous Report and 
Recommendation on the basis that the Court's ruling was 
based on defendants' not having an affirmative constitutional 
obligation to desegregate to the extent practicable. 
Furthermore, this finding suggests that, under the 1991 
Consent Order, plaintiffs have no right to address any problem 
with the implementation of the middle school plan, including 
the basic obligations imposed by this Court's 1971 Order and

O bjections to R eport & Recom m endation - 10/14/97

179b



the Constitution. The law does not provide any support for 
this proposition.

As stated above, where plaintiffs have alleged 
violations under this Court's 1971 Order and the 1991 
Consent Order, the resolution of any alleged violation does 
not turn on whether plaintiffs have complained, but rather, 
whether defendants have acted in a constitutionally appropriate 
manner. To the extent that the Report and Recommendation 
apply a different standard in this inquiry, these findings are 
erroneous. Thus, plaintiffs' motion should not have been 
denied. The Magistrate Judge imposed a standard at odds with 
school desegregation law and such a standard is not entitled to 
any deference from this Court in reviewing the Report and 
Recommendation.

V. PLAINTIFFS DO NOT OBJECT TO THE 
IMPOSITION OF A TRANSITION PHASE IN 
THIS CASE

While ordinarily a transition phase is not necessary, if 
a school system is found to be unitary, plaintiffs contend that 
such a transition period would be appropriate in this case.37 
The existence of the 1991 Consent Order necessitates such a 
transition period. For purposes of this case, a transition phase 
would serve the useful purpose of guaranteeing that the 
protections provided to plaintiffs under this decree remains

Objections to Report & Recom m endation - 10/14/97

37 Obviously, plaintiffs steadfastly maintain that any 
discussion of a transition phase suggests that unitary status is 
appropriate in this case. Plaintiffs do not and cannot agree with this 
proposition. As stated above, there is ample evidence in the record 
to demonstrate that unitary status is not appropriate at this time.

180b



Objections to Report & Recom m endation - 10/14/97

legally in effect in order to permit an orderly resolution to the 
case. However, such a resolution must delineate the nature 
and scope of the rights of the parties under such an 
arrangement. Otherwise, plaintiffs would have a right without 
a remedy.

Conclusion

For the foregoing reasons, plaintiffs object to the 
Report and Recommendation of the Magistrate Judge and urge 
the Court to reject the findings discussed herein.

Respectfully submitted.

Elaine R. Jones 
Director-Counsel 
Victor A. Bolden 
Jacqueline A. Berrien 
NAACP Legal Defense & 
Educational Fund, Inc.
99 Hudson Street, 16th FI. 
(212) 219-1900

Attorneys for plaintiffs

Warren Hope Dawson 
1467 Tampa Park Plaza 
Tampa, Florida 33605 
(813) 221-1800 
Fla. Bar No. 103926

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Objections to Report & Recom m endation  - 10/14/97 

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Plaintiffs' 
O B J E C T I O N S  T O  T H E  R E P O R T  A N D  
RECOMMENDATION AND BRIEF IN SUPPORT OF 
PLAINTIFFS' OBJECTIONS, have been served by depositing 
the same in the United States mail, first class postage prepaid, 
on this October 10, 1997, addressed to the following:

W. CROSBY FEW 
FEW & AYALA 
Suite 202
109 N. Brush Street 
Tampa, Florida 33602

THOMAS M. GONZALEZ 
THOMPSON, SIZEMORE & GONZALEZ 
Suite 200
209 N. Brush Street 
Tampa, Florida 33601

Is/____________________
VICTOR A. BOLDEN

182b



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