Case Information
*1 Before BLACK, FAY and COX, Circuit Judges.
BLACK, Circuit Judge:
Appellants, the School Board of Hillsborough County, Florida, and its officials, appeal two orders
of the district court which subject them to continued supervision under a federal desegregation decree.
See
Manning v. Sch. Bd. of Hillsborough County, Fla.,
I. BACKGROUND
A. Procedural History
Appellants for many years operated a racially-segregated, dual school system. As a result of the
Supreme Court's landmark decision in
Brown v. Board of Education of Topeka,
In 1970, our predecessor court examined whether Appellants had sufficiently eradicated the illegal
dual school system such that it could be found "unitary."
See Mannings v. Bd. of Pub. Instruction of
Hillsborough County, Fla.,
After remand, the Supreme Court, in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. The lawsuit was filed in the Southern District of Florida. In 1962, the Middle District of Florida was created, and the case was transferred to that court's docket on November 2, 1962. In a May 1971 order, the presiding district judge noted that this case was—in 1971—the oldest active case on the docket of the Middle District of Florida. Of course, the same holds true today.
The Honorable Thurgood Marshall, prior to his appointment to the Supreme Court, served as one of the attorneys for Appellees. The lead plaintiff was, and still is, Andrew L. Manning; through the many years of litigation, his surname has frequently, and incorrectly, been spelled "Mannings." The institutional defendant was formerly known as the Board of Public Instruction of Hillsborough County.
The following are the published opinions arising from this case:
Mannings v. Bd. of Pub.
Instruction of Hillsborough County, Fla.
1,
In 1991, Appellants and Appellees entered into a consent decree (1991 Consent Order). The primary reason for the 1991 Consent Order was to enable Appellants to reorganize the school district, so as to eliminate single grade centers and to create middle schools. The 1991 Consent Order, which was to be implemented over a 7-year period, did not annul the July 1971 Order, but merely modified it.
Appellee moved in 1994 to enforce the 1991 Consent Order. The matter was referred to the magistrate judge who recommended denying the motion. The district judge, however, deferred ruling on the motion and sua sponte recommitted the matter to the magistrate judge to consider whether the school district had become unitary, thereby removing the need for federal judicial oversight.
In October 1996, the magistrate judge conducted a 7-day hearing, at which both sides presented
considerable evidence. In August 1997, the magistrate judge issued a detailed report and recommendation
wherein she recommended the district court find that Appellants had achieved unitary status and thus should
be released from federal judicial supervision. Without holding an evidentiary hearing, the district judge in
a 110-page order dated October 26, 1998, rejected in part and adopted in part the magistrate judge's report
and recommendation.
See Manning,
24 F.Supp.2d at 1277-1335. The district judge concluded that
Appellants had not attained unitary status and therefore federal judicial supervision was still warranted.
See
B. Facts
To analyze this case that has endured for over 40 years, we first summarize the contents of the July 1971 Order and the 1991 Consent Order, which, with minor modifications, have served as the guideposts for Appellants' journey toward a unitary school district. Then, we set forth the district court's most recent factual findings with respect to Appellants' unitary status.
1. July 1971 Order
As previously discussed, the district court ordered Appellants in May of 1971 to submit a comprehensive desegregation plan. The district court stated that the "primary objective" of the plan should be the abolition of segregation. In particular, the district court sought to eliminate, at every school, racial balances where black students comprised more than 50% of the student population. The district court further stated that the "most acceptable and desirable" result would be a white/black ratio of 86%/14% in senior high schools, 80%/20% in junior high schools, and 79%/21% in elementary schools.
The July 1971 Order, which ratified Appellants' proposed desegregation plan, dealt primarily with student assignments in grades one through twelve. For elementary schools, the plan clustered each predominately black school with two to five predominantly white schools. The white schools would be used for grades one through five and would be integrated with black children from "satellite zones" who had previously attended the black school in the cluster. The black school in each cluster would be used as a sixth-grade center and would be integrated with white children who had previously attended the white schools in the cluster.
For junior high schools, each black school would be clustered with one to three white schools. The black schools would be used for seventh grade, and the white schools would be used for eighth and ninth grades. Again, the schools would be integrated with students from satellite zones. For senior high schools, the two black schools would be closed, but their facilities would be used for junior high schools. Through a series of re-zoning and satellite busing measures, the white high schools would be integrated.
With regard to faculty and staff, the district court had previously entered an order on August 25, 1970. In the July 1971 Order, the court found that no additional measures were necessary, and it directed Appellants to continue to abide by the August 25, 1970, order. With respect to transportation, facilities, and extracurricular activities, the July 1971 Order directed Appellants to comply with all previous orders. The A satellite zone is an area not contiguous with the main attendance zone for the school. *5 order also mandated that all operations relating to these areas should be conducted in a non-discriminatory manner and should be regularly re-examined by Appellants.
The July 1971 Order also remarked on four other topics: (1) majority to minority transfers, (2) other transfer rules, (3) the bi-racial committee, and (4) approval of site locations. Specifically, the district court stated, "Each of these has been required by previous orders of this Court. Some of them may not be required if [Appellants'] plan is effectuated and accomplished." Nevertheless, the district court stated that it was "retaining jurisdiction and [would] require the continuation of all of these procedures to be available and used as necessary."
Attached to the July 1971 Order were two exhibits which explained the bi-racial committee, majority-to-minority transfers, and other transfer rules. The bi-racial committee was to serve as an advisory body on a number of issues and was to consist of ten members, with Appellants and Appellees each selecting five members. In some instances, the committee was to receive reports about students transferring from their assigned schools. In other instances, Appellants were barred from approving student transfers before considering a recommendation from the committee.
Concerning majority-to-minority transfers, the attached exhibits stated the following: Majority to minority transfer—Any student shall be permitted to transfer from a school in which his race is in the majority in order to attend the closest school to his residence in which his race is in the minority.
. . . .
The transfer forms shall be available at each public school in Hillsborough County and the County School offices.
. . . .
The transferee is to be given priority for space and thus the transfer is not to be dependent on space being available. Transportation will be provided by the School Board in service or in kind to the school to which the transfer is made if that school is more than two miles from the home.
In conclusion, the July 1971 Order stated that Appellants' desegregation plan "fully complie[d] with the [district] [c]ourt's order of May 11, 1971," and that it would "result in the establishment of a unitary school system in Hillsborough County, Florida." The July 1971 Order noted, however, that Appellants had a "continuing responsibility" to ensure the plan would be effectuated. Moreover, each year following the implementation of the July 1971 Order, Appellants filed two reports per year with the district court and provided copies to Appellees. Lastly, the July 1971 Order retained jurisdiction in the district court for "such *6 further action as may be necessary and required."
2. 1991 Consent Order
Between 1971 and 1991, the modifications to the July 1971 Order were minor. [6] By 1991, however, Appellants had determined, based upon a comprehensive study, that the school district would benefit if middle schools (grades 6-8) were established. To accomplish this, the July 1971 Order had to be modified, because that order had relied extensively on single-grade centers (grades 6 and 7) to desegregate the school district. Thus, Appellants entered into negotiations with Appellees, and the product of those negotiations was the 1991 Consent Order.
The centerpiece of the 1991 Consent Order was the Middle School Task Force Report 3 of July 1991 (hereinafter "Task Force Report"), which the district court incorporated into the consent order. The Task Force Report was presented to the school board by a 12-person committee. This committee included Mr. Henry Carley, President of the Tampa Branch of the NAACP. In addition, a legal committee, consisting of, inter alia, Mr. Al Davis of the NAACP, reviewed the Task Force Report, and Appellees' own desegregation expert, Dr. Leonard Stevens, was involved in shaping the Task Force Report. Furthermore, the Task Force Report included two separate position statements prepared by various African-American community groups (Howard W. Blake Alumni Group, Coalition of African American Organizations, Greater Tampa Urban League, Inc., and Beta Sigma Zeta Chapter of Zeta Phi Beta Sorority). In sum, as the 1991 Consent Order explained, the Task Force Report was the result of "extensive discussions" between Appellants and Appellees, and the discussions were designed to "to ensure ... that plans for the implementation of the [Task Force Report] were formulated in a manner that addressed the interests and concerns of [Appellees]."
The Task Force Report proposed substantial changes to the structure of the school system. Under the July 1971 Order, the school system generally had consisted of five tiers: elementary schools (grades K-5), sixth-grade centers, seventh-grade centers, junior high schools (grades 8-9), and high schools (grades 10-12). In contrast, the Task Force Report called for a three-tier school system: elementary schools (grades K-5); The modifications included, inter alia: changes in transfer rules for children of school employees; approval of a new high school site; changes in academic transfer rules; the closure of certain schools; and the creation of magnet schools. Perhaps, the most significant modification dealt with Lee Elementary School, which by 1974 had a black population in excess of 50%. To correct this imbalance, Appellants, pursuant to the district court's order, converted Lee to a sixth-grade center and transferred the former Lee students (first through fifth graders) to seven other elementary schools. The parties and the district court use interchangeably the terms "Task Force Report" and "Middle
School Plan." For the sake of simplicity, we use solely the term Task Force Report.
middle schools (grades 6-8); and high schools (grades 9-12). This new structure would be achieved through a so-called "cluster model," under which 17 clusters would be formed. For each cluster, the high school would serve as the "basic unit" and its students would be drawn from "feeder" middle and elementary schools. The Task Force Report estimated that it would take five to seven years to implement the cluster model.
The cluster model proposed by Task Force Report was undoubtedly the most substantial change to the structure of the school system since the July 1971 Order. The objective of July 1971 Order had been to desegregate the school system. By contrast, one of the primary objectives of the Task Force Report was "to maintain a desegregated school system." (emphasis added). In an apparent attempt to meet this objective, the 1991 Consent Order directed Appellants "to minimize (to the extent practicable) the number of schools which deviate from the system-wide student enrollment [race] ratios." Moreover, the 1991 Consent Order assumed that intervening demographic changes might necessitate future modifications in student assignments in order to maintain a desegregated school district. [8]
To further the goal of maintaining desired race ratios, the Task Force Report attempted to project the race ratios at each school after the cluster plan's implementation. In summary, the Task Force Report predicted:
The number of schools reflecting a ten or higher percent race ratio variance [from the recommended ratio of 20/80%] will increase from 36 to 46. The plan also increases the number of schools from 56 to 72 that will have an almost perfectly balanced race ratio with a student variance of five percent or less from the recommended ratio of 20/80% ratio.
Appendix 1 of the Task Force Report provided more detail as to the projected racial balance at each school.
Fourteen schools were projected to have a 40% or greater black population,
[9]
and an additional four schools
were projected to have a 39% black population.
[10]
These projections, as part of the Task Force Report, were
incorporated into the 1991 Consent Order—a consent decree to which Appellees were parties.
This assumption was wrong as a matter of law. External factors which are not the result of
segregation and are beyond a school board's control should not be part of the remedial calculus when
shaping a federal desegregation decree.
See Missouri v. Jenkins,
Sulphur Springs (59%), Graham (58%), Oak Park (58%), Cleveland (50%), Franklin (47%), Sligh (46%), Lockhart (45%), Palm River (41%), West Tampa (41%), Shaw (41%), B.T. Washington (40%), Witter (40%). The four schools were Foster, Bing, Dowdell, and Just.
Along with projecting race ratios, the Task Force Report instituted a variety of programs designed to maintain a desegregated school system. For example, the report implemented magnet programs, [11] which were designed in part "to reduce minority isolation" and "to promote desegregation in schools." [12] The report also suggested a multi-cultural curriculum for students in all grades and instructional sessions to enable staff to deal with diverse populations.
One omission in the Task Force Report, however, is particularly noteworthy in light of subsequent events: majority-to-minority transfers. Although they had been discussed briefly in the July 1971 Order, majority-to-minority transfers were not mentioned once in the 37-page Task Force Report, nor in the 8 attached appendices, nor in the 1991 Consent Order. Dr. Stevens—Appellees' desegregation expert who helped shape the Task Force Report—admitted at the 1996 evidentiary hearing that majority-to-minority transfers would have been insignificant in alleviating the racial imbalances in the school district. 3. Factual Findings
The magistrate judge, in her 1997 report and recommendation, structured her factual findings around
the six
Green
factors,
[13]
plus a seventh factor, quality of education, which has been used by some courts to
evaluate a school district's unitary status.
See, e.g., Mills v. Freeman,
The district judge found that the magistrate judge's report and recommendation was "comprehensive"
and "agree[d] with a majority of the [m]agistrate [j]udge's analysis."
40% black." Those six factors are student assignments, faculty, staff, transportation, extracurricular activities,
and facilities and resource allocation.
See Green,
With regard to the remaining Green factor (student assignments), the district judge expressed some disagreement with the magistrate judge. The district judge also differed with the magistrate judge's finding on Appellants' good-faith compliance. As we discuss in Part II, the district judge used an incorrect legal standard. As a result, the district judge's legal conclusion, though based mostly upon the magistrate judge's factual findings, was erroneous. To help illuminate our discussion in Part II, we narrate below the magistrate judge's factual findings related to student assignments and Appellants' good faith, and we highlight, when necessary, particular findings adopted by the district judge. We also note those few areas where the district judge rejected the factual findings of the magistrate judge.
a. Student Assignments
As of the 1995-96 school year, the Hillsborough County school district consisted of approximately 120,000 students, 108 elementary schools, 27 junior high schools, and 15 senior high schools. Relying on a standard proposed by Appellees' and Appellants' experts, the magistrate judge designated any school with a black/white ratio varying plus or minus 20 points from a 20/80 ratio as being "racially identifiable" or "racially imbalanced." [15] It was undisputed that, by the 1971-72 school year, all schools were desegregated. Furthermore, the evidence showed that, at the time of the 1996 evidentiary hearing, approximately 90% of the schools were not racially identifiable. Appellees, however, identified 17 schools as racially identifiable and made these schools the focus of the 1996 evidentiary hearing. [16] Ironically, of these 17 schools, 9 were Regarding these six factors, the district judge's order is less than clear. After a thorough review, however, we are convinced that the district judge overruled most, and possibly all, of Appellees' objections to the magistrate judge's report and recommendation. The objections sustained by the district judge, if any, are inconsequential to our ultimate holding in this case. Since the parties agree on what constitutes a racially identifiable school, we shall accept their
definition for purposes of this case and this case only. We pass no judgment on the correctness of this definition. Both the district judge and the magistrate judge referred to 16 schools. A review of the Joint Pre-
Evidentiary Hearing Statement and the report by Appellees' expert reveals that Appellees challenged the racial identifiability of 17 schools. Both the district judge and the magistrate judge omitted Mort Elementary from their findings. This oversight, however, is of no significance. The following are the percentages of black students at each of these 17 challenged schools during the 1972-73 and 1995-96 school years:
among the 14 schools that the Task Force Report projected would have a 40% or greater black population, and two were among the four schools that the Task Force Report projected would have a 39% black population. Immediately after the July 1971 Order was implemented, all of these schools became racially balanced. [18]
The critical factual question at the evidentiary hearing was whether the racial imbalances at the 17 schools were caused by Appellants' past de jure segregation (or other discriminatory conduct), or whether, Percentage of Black Percentage of Black
School Students, 1972-73 Students, 1995-96
Robles 24% 91%
Edison 36% 77%
Sulphur Springs 19% 74%
Oak Park 23% 69%
Graham 35% 67%
Foster 21% 61%
Cleveland 26% 58%
Shaw 15% 57%
Witter 18% 54%
Cahoon 21% 53%
Clair Mel 18% 49%
West Tampa 14% 47%
DeSoto 35% 43%
Mort N/A 43%
Van Buren 17% 53%
Sligh 20% 50%
Dowdell 14% 48% Compare supra notes 9, 10 with supra note 16. One school, Mort, was not listed in the 1971 report submitted by Appellants and thus presumably
did not exist at that time.
instead, the racial imbalances were caused by nondiscriminatory factors and circumstances. In a joint statement submitted prior to the evidentiary hearing, Appellants contended that demographic shifts had caused the schools to become racially identifiable. In the same joint statement, Appellees did not directly rebut Appellants' contention, but instead argued that "[d]emographic change alone does not account for the racial identifiability in the Hillsborough County school system." (emphasis added).
To resolve their factual dispute, the parties presented considerable evidence to the magistrate judge, including, inter alia, reports on attendance boundaries, demographic reports, and expert testimony. We need not repeat all this evidence here, as it is fully set forth in the opinion of the district court. See Manning, 24 F.Supp.2d at 1290-1312. Instead, we compare the findings of the magistrate judge to those of the district judge.
The magistrate judge, in her report and recommendation, recounted the expert testimony of Dr. David Armor, one of Appellants' experts—testimony that the magistrate judge personally observed. Dr. Armor explained that he reviewed the extensive demographic data contained in a report by Dr. W.A.V. Clark, another of Appellants' experts. Based on this evidence, Dr. Armor opined on the witness stand that "none of the schools that were currently imbalanced ... were caused by [Appellants'] action[s,]" but rather such imbalances "were caused by demographics." The magistrate judge also reviewed the testimony of Dr. Fred Shelley, Appellees' demographic expert—once again, testimony that the magistrate judge personally observed. Dr. Shelley did not conduct his own demographic study, but rather relied on the data supplied by Dr. Clark (Appellants' expert). Dr. Shelley opined "that it is perhaps difficult to conclude that [the] increase in racial imbalance is attributable solely to the processes of natural demographic change." In the end, the magistrate judge agreed with Dr. Armor and found that demographic change is the "most likely explanation" for the racial imbalances. The magistrate judge faulted Dr. Shelley for not providing an alternative explanation for the racial imbalances. [19]
In his report, Dr. Shelley did not attempt to link the present racial imbalances with past de jure segregation, but rather merely tried to prove that demographics alone did not cause the upsurge in racially identifiable schools. At the evidentiary hearing, when asked how his report differed from Dr. Clark's report, Dr. Shelley responded:
My reaction to the report was that, while I thought the demographic analysis was very good, what I felt was missing in the report was how to reason from the analysis of the demographic change that was undertaken to a conclusion that demographic change was the sole cause of the observed racial imbalance in the public schools in Hillsborough County.
The district judge, though not observing any of the testimony, agreed for the most part with the
findings of the magistrate judge. In conformity with Dr. Armor's opinion (and the magistrate judge's finding),
the district judge found that "[t]here [was] no indication that the racial identity of the schools in Hillsborough
County has been deliberately caused by segregative policies or practices by [Appellants]" and that "based on
the totality of the evidence, a shift in demographics [was] a substantial cause of the racial identifiability in
Hillsborough County's schools."
Manning,
The district judge seemed to have adopted
in toto
Appellants' theory of the case (and the magistrate
judge's finding). As the district judge stated time and time again, a shift in demographics was a substantial
or significant cause of the racial imbalances, and Appellants did not deliberately cause the racial imbalances.
See id.
at 1293 (stating "that the racial imbalances in the schools [were] not the result of a deliberate attempt
by [Appellants] to affect or alter demographic patterns to affect the racial composition of the schools");
id.
at 1311 (finding "the evidence presented by the parties establishes that a shift in demographics played a
significant role in the racial compositions of the schools" and that Appellants had "not 'affirmatively'
exacerbated racial imbalances");
Manning,
Finally, we note that the district judge's findings were inconsistent and difficult to follow. For Tr. of Evidentiary Hearing on October 24, 1996, Vol. 4, at 66 (emphasis added). Dr. Shelley expressed doubts that "one can conclude without ambiguity that [the racial] imbalance is caused only by natural demographic changes." Id. at 66-67 (emphasis added).
example, the district judge was concerned by Dr. Clark's data, especially with regard to its reliability.
See
Manning,
b. Good-Faith Compliance
The magistrate judge concluded that Appellants had complied in good faith with past federal
desegregation decrees, as required by
Dowell
and its progeny.
Dr. Sickles, who had been an employee of the school board since 1969, testified that he believed the
school district was unitary in the early 1990's. Dr. Sickles did not seek a declaration of unitary status at that
In particular, the district judge noted the following:
[Appellants'] statistics encompass a larger segment of the population than is useful to
explain the deviations in the racial compositions of the unbalanced schools. Specifically,
[Appellants] rely on Dr. Clark's use of school-aged children from ages 0-17 to explain
enrollment ratios at the elementary schools; however, almost one-half of the children
included in this group would not, in fact, be attending an elementary school. Moreover,
while a few blocks in an attendance zone may reflect black school-age populations as
high as 95%, those few blocks only represent a small proportion of the entire attendance
zone. Finally, Dr. Clark's analysis does not address [Appellants'] initial decisions to draw
attendance zones, decisions not to act when it was apparent that those zones were
inappropriate, or other School Board decisions, such as, location of new schools, or
implementation (or lack thereof) of desegregation tools.
time because he believed Appellees would have opposed and impeded his effort to establish middle schools, which was his top priority. Instead, Dr. Sickles sought Appellees' cooperation in establishing middle schools via the Task Force Report and the 1991 Consent Order. Dr. Lennard, an employee of the school board since 1964, testified that he felt a "moral and legal obligation on the school system to continue a desegregated school system." Five school board members "expressed no misgivings about ... the intent and ability of the School Board to continue a desegregated school system while receiving input from all members of the community."
Some witnesses "voice[d] concern about what might happen in the future if [c]ourt supervision ended." For instance, Ms. Reddick, the chair of the school board, testified against a finding of unitary status. Nevertheless, when asked by Appellees' counsel what would happen if the school district were found unitary, Ms. Reddick asserted, "[W]e're going to guarantee that students will receive equal education."
The magistrate judge found that for more than 25 years Appellants had complied with the court's orders to desegregate and that not once had Appellants been found in violation of any court order. In addition, the magistrate judge noted that Appellants had "regularly conferred [with Appellees] ... to ensure that the school system was moving forwards, not backwards, toward compliance with the [c]ourt's orders." Accordingly, "the long history of compliance with the [c]ourt's orders" outweighed the "opinions and the anecdotal evidence offered by [Appellees]." In sum, the magistrate judge concluded, "The testimony of ... most School Board members, as well as the current superintendent and those responsible for various facets of school operation[,] demonstrates that [Appellants] have accepted the principle of racial equality and will not revert back to a dual school system."
The district judge, however, did not adopt this finding of good faith. Since the district judge did not
observe any of the testimony from the evidentiary hearing, naturally she could not evaluate the credibility
of the witnesses. Instead, the district judge's finding of bad faith centered upon two interrelated areas of
concern: Appellants' "apathy" and the lack of a majority-to-minority (MTM) transfer program.
See
The district judge and the magistrate judge also extensively discussed some
ex parte
communications between a previous presiding judge and school officials. During the evidentiary hearing,
Dr. John Heur, a retired school board official who had been responsible for implementing the July 1971
Order, testified that such communications occurred between 1972 and 1974. The magistrate judge found
that "[t]hese
ex parte
conversations, while unfortunate, were not initiated by [Appellants] and do not
demonstrate a lack of good faith." The district judge agreed, finding that, "standing alone, the
ex parte
communications [did] not evidence bad faith."
Additionally, Part II of the October 26, 1998, opinion is titled "Good-Faith" and
*15
Manning,
With regard to Appellants' "apathy," the district judge faulted Appellants for not "utiliz[ing] all
available techniques [to desegregate] to the maximum extent practicable" and for not demonstrating "that they
[were] willing to aggressively desegregate the school district to the maximum extent practicable."
Id.
at 1312,
1335. Additionally, the district judge spoke of missed opportunities and a failure to take "affirmative steps
... to be released from the [c]ourt's supervision."
Id.
at 1312;
Manning
Related to the issue of apathy is the inaction demonstrated by Appellants in their MTM program. As previously noted, the July 1971 Order directed the establishment of an MTM program. See supra Part I.B.1. Under this program, a student who attended a school where his race was the majority would be permitted to transfer to a school where his race was the minority. At the evidentiary hearing, Dr. John Miliziano, who was Appellants' "in-house desegregation expert," expressed ignorance about the requirement to implement an MTM program:
I dealt with the Biracial Committee for many years, and no member of the committee ever brought
that up. And to tell you the truth, I thought it was one of those things that was considered by the
court and it was never meant to apply. It wasn't until recently that I, a person who has spent many,
many years in dealing with the court order, maybe it's stupidity on my part, but I didn't even know
that this hidden clause—this clause, not hidden, but this clause in the [July 1971 Order] meant really
anything.
applied for an MTM transfer, and Appellants had not made any effort to publicize or market the MTM
discusses Appellants' magnet programs.
See id.
at 1314-15. This portion of the opinion is very
confusing. It lists the arguments advanced by Appellees regarding magnet schools, but the
opinion never states whether it is adopting those arguments. In the opinion of December 4, 1998,
the district judge faults Appellants for their failure to develop magnet schools and programs,
except for one program at Tampa Bay Technical High School.
See Manning,
We therefore conclude that the district judge did not base her finding of bad faith upon
Appellants' magnet programs. Even if the district judge did, in fact, base her finding of bad faith
on Appellants' magnet programs, such a finding would be clearly erroneous. In 1990, Appellants
moved to designate a magnet school, but Appellees opposed the motion. In successfully
opposing the motion, Appellees argued that "[t]he basic structure of desegregation in
[Appellants'] school system has remained constant and effective since 1971," and that a magnet
program would "introduce more uncertainty about whether schools will remain desegregated."
*16
program.
See id.
at 1314;
Manning,
While faulting Appellants on the MTM program, the district judge acknowledged that the July 1971
Order "did not specifically direct [Appellants] to market the [MTM] program."
Although the district judge stated that an MTM program is an "indispensable remedy" and a "useful part of every desegregation plan," id. at 1314, the district judge did not explain why this particular MTM program was needed to desegregate the Hillsborough County school district. In fact, as previously mentioned, Dr. Stevens—Appellees' expert who was involved in the negotiations that led to the 1991 Consent Order—conceded that an MTM program would not significantly impact the race ratios at the schools Appellees were challenging as racially imbalanced. Furthermore, the Task Force Report and the 1991 Consent Order (both of which were approved by the district judge) failed to even mention the MTM program. Lastly, notwithstanding the criticism of the MTM program, the district judge spoke favorably of Appellants' overall desegregation efforts. See, e.g., id. at 1287 (stating that "[u]ndoubtedly, [Appellants'] desegregation efforts demonstrate significant success"); id. at 1311 (stating Appellants "deserve acknowledgment for their desegregation efforts thus far"); id. at 1312 (noting Appellants "have been relatively successful in implementing desegregation techniques"); id. at 1325 (finding Appellants had acted in good faith with respect to faculty desegregation and commending Appellants for taking recommendations from the Minority Recruitment Task Force).
II. DISCUSSION
A. Standard of Review
Where the relief sought in the district court is the dissolution of an injunction, the order of the district
The district judge lifted this language from the Supreme Court's opinion in
Swann,
court is subject to a mixed standard of review.
[23]
We review for abuse of discretion the failure to dissolve an
injunction as required by law.
See Wilson v. Minor,
B. Analysis
1. General Principles
Before analyzing the case before us, it is important to recall some general principles. In
Brown I,
the Supreme Court held that
de jure
racial segregation practiced by school districts violates the Fourteenth
We raised
sua sponte
whether appellate jurisdiction existed in this case and requested briefs from
the parties. Since this is an appeal of an interlocutory order of the district court refusing to dissolve an
injunction, we do possess jurisdiction.
See
28 U.S.C. § 1292(a)(1). We also raised
sua sponte
whether
the notice of appeal was timely filed. Appellants timely filed in the district court a motion to alter or
amend judgment under Fed.R.Civ.P. 59(e). As such, Appellants could file their appeal until 30 days after
the district court ruled on the Rule 59(e) motion.
See
Fed.R.App.P. 4(a)(4)(iv). Since the Appellants
complied with this time limit, we conclude Appellants timely filed their notice of appeal. Thus, we may
hear this appeal.
In
Bonner v. City of Prichard,
binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
Amendment.
See Lockett II,
A desegregation order is remedial in nature, for it is the means by which victims of discriminatory
conduct are restored to the position they would have occupied in the absence of such conduct.
See Missouri
v. Jenkins,
The ultimate objective of any desegregation order is the "restoration of state and local authorities to the control of a school system that is operating in compliance with the Constitution." Id. at 89, 115 S.Ct. Local control is complementary, not contradictory, to the goal of eradicating illegal discrimination from our nation's schools. The Supreme Court has spoken to this principle:
Returning schools to the control of local authorities at the earliest practicable date is
essential to restore their true accountability in our governmental system. When the
school district and all state entities participating with it in operating the schools make
decisions in the absence of judicial supervision, they can be held accountable to the
citizenry, to the political process, and to the courts in the ordinary course.... [I]t must be
acknowledged that the potential for discrimination and racial hostility is still present in
*19
at 2049 (internal quotations and citation omitted). To guide district courts in assessing when it is appropriate
to restore local control, the concept of a "unitary" school system has evolved in federal jurisprudence.
See
generally Freeman,
It is not uncommon for plaintiffs in school desegregation cases to allege, as Appellees did here, that
racial imbalances in student assignments, are a "vestige of discrimination." Until unitary status is attained,
the defendant school board has the burden of showing that any racial imbalance in the school system is not
traceable, in a proximate way, to the prior
de jure
segregation.
See Freeman,
2. District Court's Reliance on Lockett I
our country, and its manifestations may emerge in new and subtle forms after the effects of de jure segregation have been eliminated. It is the duty of the State and its subdivisions to ensure that such forces do not shape or control the policies of its school systems. Where control lies, so too does responsibility.
Freeman,
a. Wrong Legal Standard
With the foregoing principles and standards in mind, we turn to the case before us. Appellants argue,
inter alia,
[26]
that the district court committed reversible error by relying upon our opinion in
Lockett v. Board
of Education of Muscogee County,
The district judge, in relying on
Lockett I,
applied the wrong legal standard. The law does not
require, as stated in
Lockett I,
that a school board eliminate the vestiges of past discrimination "to the
maximum
extent practicable."
reliance on Lockett I upon the belief that " Lockett I reiterated established principles of law." 24 F.Supp.2d at 1311. District judges in this circuit, however, are required to adhere to the decisions of this Court and the Supreme Court. See Fishman & Tobin, Inc. v. Tropical Shipping & Constr. Co., 240 F.3d 956, 965-66 n. 14 (11th Cir.2001). The district court in Jenkins stated that its goal was to integrate the school district to the "maximum
extent practicable" and to the "maximum potential."
1335;
Manning,
Accordingly, the critical issue is whether the district judge's repeated use of the wrong legal standard sufficiently tainted or infected the findings of fact so as to strip those findings of the insulation normally accorded under Rule 52(a). See supra Part II.A; Corley, 566 F.2d at 1001. We would not permit an inadvertent use of language by a district court to constitute reversible error. Here, however, we are persuaded that the district judge's mistake is more than mere inadvertence. As we discuss immediately below, the district judge's findings on student assignments and good faith were tainted (and thus stripped of Rule 52(a) protection) because the district judge held Appellants to a higher standard than the law requires.
b.
Application of Wrong Legal Standard to Finding on Student Assignments
In
Lockett,
the critical issue was, as it is here, whether the racial imbalances in student assignments
precluded a finding of unitary status.
See Lockett II,
By contrast,
Lockett I
staked out a position on the law under which school boards would have been
held to a higher standard. Instead of affirming, the
Lockett I
panel would have remanded, so the district court
could have continued supervising the school board "until such time as a reliable body of data exist[ed] to
assure ... that the school district ha[d] desegregated its schools to the
maximum
extent practicable."
Lockett
I,
"demographic shifts are not necessarily independent of prior unconstitutional practices."
[30]
Id.
at 1099 (cited
in
Lockett I,
however, is not the law of this circuit. Rather, the law of the circuit must be distilled from
Lockett II.
We reiterate that, to overcome the presumption that racial imbalances are constitutionally violative,
"a school board must prove that the imbalances are not the result of present or past discrimination on its part."
Lockett II,
111 F.3d at 843.
Lockett II
stands for the proposition that a school board overcomes this
presumption when it shows that some external force, which is not the result of segregation and is beyond the
school board's control, substantially caused the racial imbalances.
See id.
(upholding declaration of unitary
status when district court found demographic shifts caused racial imbalances);
see also Jenkins,
intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior
de jure
system."
Lockett II,
McCormick on Evidence § 338, at 416 (John W. Strong et al. eds., 5th ed. 1999).
conduct.
If the district judge had applied
Lockett II,
rather than
Lockett I,
her findings of fact would have led
her to the same conclusion as the magistrate judge with respect to student assignments. The district judge,
like the magistrate judge, found that demographic shifts were a "substantial" or "significant" reason for the
racial imbalances and that the racial imbalances were inevitable, irrespective of Appellants' efforts.
See supra
Part I.B.3.a;
Manning,
Accordingly, by applying the correct legal standard from Lockett II to the district judge's findings of fact, we reach the same conclusion as the magistrate judge: Appellants have achieved unitary status with respect to student assignments.
c. Application of Wrong Legal Standard to Finding on Good Faith
As discussed previously, the district judge had two interrelated areas of concern which precluded,
in her view, a finding of good faith: Appellants' apathy and the lack of an effective MTM program.
See
supra
Part I.B.3.b. The district judge's reliance on
Lockett I
undoubtedly infected her finding with regard to
Appellants' alleged apathy. The district judge, as noted above, expected Appellants to "desegregate the public
schools in Hillsborough County to the maximum extent practicable."
E.g., Manning,
Further, Appellants' lack of an effective MTM program does not necessarily amount to a finding of
bad faith. For instance, in
Lockett,
the school board did not implement its MTM program until years after
the desegregation decree was entered and ignored other requirements of the desegregation decree.
See Lockett
II,
Additionally, we are persuaded that, if the district judge had followed the law as set forth in
Lockett
II,
she would have concluded that Appellants have acted in good faith. As we explained in
Lockett II,
in
determining whether a school board has acted in good faith, a court should not dwell on isolated
discrepancies, but rather should "consider whether the school board's policies form a consistent pattern of
lawful conduct directed to eliminating earlier violations."
Lockett II,
After evaluating the voluminous record in this case, the Court is convinced that [Appellants] have
a short road to travel [to attain unitary status]. Essentially, Defendants need to demonstrate that they
are willing to aggressively desegregate the school district to the maximum extent practicable.
[34]
duty to desegregate does not require adoption of the most desegregative alternative available." *25 had applied the correct standard, she would have found (as the magistrate judge did) that Appellants acted in good faith, notwithstanding the absence of an effective MTM program and other possible discrepancies.
Our conclusion is buttressed by two other points. First, the MTM program, as conceded by
Appellees' expert, would have been ineffective in desegregating the 17 challenged schools. As such, the
MTM program should have had only marginal relevance in analyzing whether Appellants' "policies form[ed]
a consistent pattern of lawful conduct
directed to eliminating earlier violations.
"
Lockett II,
Second, discerning a school board's good faith is in some respects a subjective finding. Thus, such
a finding depends in part on the judge's personal observation of the witnesses. The magistrate judge, not the
district judge, observed all of the witnesses at the evidentiary hearing. Granted, the district judge was free
under 28 U.S.C. § 636 to make a de novo determination of the magistrate judge's findings. In other contexts,
however, we have cautioned district judges from overruling a magistrate judge's finding where credibility
determinations are dispositive.
See, e.g., Proffitt v. Wainwright,
III. CONCLUSION
The district judge's finding that Appellants have not achieved unitary status was tainted and infected by reliance on an incorrect legal standard. As such, we reverse the district judge's orders of October 26, 1998, and December 4, 1998. Upon remand, the district court shall enter judgment declaring the Hillsborough County school system unitary. Therefore, federal judicial supervision of the Hillsborough County school system shall cease.
REVERSED and REMANDED.
We are by no means suggesting that a desegregation plan cannot, or should not, include an MTM
program. The Supreme Court has spoken favorably of MTM programs.
See Swann,