*2 BARKETT, Before HILL and KRAVITCH, Judges. Circuit HILL, Judge: Circuit Forty-one years ago, litigation be- gan. original complaint sought County, Flori- desegregation of the Duval system. da school Five district case since judges presided over the and, times, reassignment four two different of students. Mims v. Duval inception, Bd., F.Supp. appeals have been asked Sch. circuit courts of (M.D.Fla.1971). Elementary junior one of their decisions.1 to review high groups schools were clustered into appeal, fifth we must decide whether the grade which were converted to centers to *3 correctly present district court determined produce student bodies with 21% to 34% an litigation that this should come to end black students. Id. at 134-35. Students system because the school has achieved were bussed within each cluster to achieve agree unitary status. We with the district the mandated racial balance. Id. at 130- “yes.” the answer
31.
I.
judgment
appeal,
The
affirmed on
was
(5th Cir.1971) and,
wished “Attachment to the lists 28 C” out- achieving unitary parties expect- schools that the “Stipulation Agreement,” lined identifiably ed to become black with the 18,1990.7 some techni- on June After filed *4 end of the Mims injunction’s mandatory refinements, and the “Cor- cal corrections assignment busing. student and Prior to (the Agreement” and Stipulation rected injunction, thirteen of these schools “CSA”) defining as the was established all-white; all- had been fifteen had been the Du- outlining goals document During years mandatory black. (the “Board”) Board County val School all the Attachment C assignment, student unitary in order to attain must achieve by of both schools were attended status.8 mandatory assign- races. After thus, roadmap replaced to ment was with the CSA’s “local represents a zones,” these schools became judicial supervision of the Duval attendance the end of paragraphs identifiably black because their attendance system. Its 33 schools); (d) elementary paragraph high white majority A the middle and requirements pertaining to Attach- already compliance with the student addresses were (naturally integrated goals CSAwould establish and ment E schools (e) racially integrated housing patterns); identifiable elemen- there were more based on tary require- paragraphs schools. . 21-22 contain additional schools; (f) pertaining specific middle ments require- paragraph 23 contains additional goals mutual was ex- 7. While none of these schools; (g) pertaining specific high Agreement, agree ments to pressly in the we stated surrounding finding paragraph 24 addresses issues the district court’s that all with it, expressed and construction clearly and were also new school site implicit selection requires filed formation of a facilities explicitly in the Pretrial Statement and status, hearing consisting parties prior representatives on to committee arguments community; of counsel and the evidence parties both and members hearing. (h) presented development at the paragraph requires non-discriminatoiy plans achieve detailed to (i) procedures; paragraphs 26-27 operational appeal This seeks a dеtermination that the faculty require and staff the attainment of goals met. of the CSAhave not been injunc- hiring goals forth the Mims as set tion; (j) requires paragraph 28 to length, pages in total includ- 9. The CSA is 25 steps student and fac- take to increased black attachments, containing paragraphs ing (k) gifted program; ulty representation in the (a) roughly paragraphs 1- divided as follows: paragraph requires a re-evaluation of goals, incorporate purposes, broad retarded; mentally black students classified informing the intent of the and time frame (l) paragraphs 30-33 establish the process; parties implementation CSA obligation to “to the (b) affirmative paragraphs requirements 11-17 address (identifi- practicable” that uni- maximum extent pertaining Attachment C schools to schools); (c) tary shall not be achieved until elementary para- ably black years equality three of racial requirements pertain- Board maintains graphs 18-19 address (identifiably operation. ing D in all areas of school to Attachment par- had become 96% black.10 The respect zones With to high middle and ties, therefore, much directed of the CSA specifically designated three mid- C.SA improving the racial balance these schools, which, high dle and four based on schools.11 areas, their attendance expected were racially remain or become identifiable and desegregative
The CSA established “a
directed that
they operate magnet pro-
goal of at least 20% black students and
grams to attract other-race students.
45% white students”12 at
these Attach-
ment C
schools.13 The Board
The CSA
respect
also set
with
required,
community input,
achieving racial equality
faculty
implement
aggressively promote
mag-
hiring
staff
placement;
transportation;
programs14
net
as incentives to attract
activities;
extracurricular
and facilities
white
students to these schools.
addi-
expenditures.
and capital
tion,
required
per-
the Board to
14, 1990,
July
On
the district
ap-
majority minority
mit
transfers
order
proved
adopted
the CSA. It retained
improve
the racial balance at
jurisdiction to
implementation
monitor its
schools.15 The Board was also required to
and to enforce it.
$60,000,000
“renovation,
commit
for the
*5
rehabilitation,
replacement
substantial
or
The CSA
implemented
was
during the
of core
schools.”
year.16
1996,
1991-92 school
declining
understood,
10. A
white
population
"Magnet
student
dur-
generally
ing
years
elementary
the Mims
caused the
public
designed
promote
inte-
formerly
operated
schools that had
been
sole-
gration by voluntarily drawing
away
ly for white students under state-mandated
neighborhoods
from
private
their
and
identifiably
to become
through
high quali-
distinctive curricula and
schools. See discussion in section III. B.
Jenkins,
ty.”
33,
6,
Missouri v.
495 U.S.
40 n.
infra.
1651,
(1990).
110 S.Ct.
the record evidence
formerly oper
School boards
achieving
paragraph’s
each
and success
system, in which black
ated a dual school
district court found
goal,
stated
one set of schools and
students attended
exceptional good
acted in
the Board had
another,
“clearly
have been
white students
comply
with the CSA
faith
its efforts
charged
duty
the affirmative
to take
substantially achieved its
and that it had
*6
necessary to con
steps might
whatever
be
that the Board
goals. The court also held
unitary system
to a
which racial
vert
obligation to
had fulfilled its constitutional
would
eliminated root
discrimination
be
vestiges
jure segrega-
of de
eliminate the
County
Bd.
and branch.” Green v.
Sch.
of
County’s
desegregate Duval
tion and to
430, 437-38,
County,
Kent
391 U.S.
New
extent
faith and to the
good
(1968) (em
1689,
716
S.Ct.
20 L.Ed.2d
88
Accordingly,
district
practicable.
added).
unitary system
A
is one
phasis
district was
court declared that the school
jure racial
presently
there is
no de
which
prior
all
unitary
respects,
in all
vacated
vestiges
of former de
segregation, and
This
injunctions, and dismissed the case.
have been eliminated
jure segregation
appeal followed.
Freeman, 503 U.S.
practicable.
the extent
(“If
494, 112
1430
the unlawful de
at
S.Ct.
the district court’s
review
We
system
has been the
jure policy of
that Duval
has achieved
conclusion
racial
in student
cause of the
imbalance
Manning v.
unitary status for clear error.
attendance,
must be remed
that condition
244
Hillsborough County,
F.3d
Sch. Bd. of
-
ied”).
achieved,
goals are
Until these
(11th Cir.2001)
denied,
927,
cert.
940
district courts
Supreme Court has ordered
-,
61,
122
966 traceable, proxi
To
entitled to the end of fed
is not
in a
areas]
be
supervision,
formerly
dual
way,
prior
eral court
mate
to the
violation.” Free
prove
man,
must
able to
that it
system
493,
be
the extent
Where there is no constitutional vi
obligation,
Board’s fulfillment
*7
olation,
duty
a school board is under no
to
(1)
district court must examine six areas:
remedy racial imbalances.
Id. The Su
(2)
(3)
assignments;
facilities;
fac
preme Court has made clear that:
(4)
(5)
staff;
(6)
ulty;
transportation; and
Racial balance is not to be achieved for
Green,
extracurricular activities.
391 U.S.
pursued
its own sake.
It is to be
when
435,
at
247-48, Manning, 630. See also S.Ct. Assignment B. Student n. 25. F.3d respect assignment, to student With turn to our review of the dis- now We undisputed implemented that the Board the time trict court’s determination voluntary plan, school choice terminated control over its school has come to return 71 schools as busing, designated mass County. system to Duval back required. magnet all as CSA court also found district III. funding for appropriate allocated Faculty and A. The Green staff factors: mag- operation improvement of its transporta- hiring 'placement; operated separate It of- programs. net activities; tion; extracurricular facil- achieving fice with staff dedicated capital expenditures. ities and magnet program de- goals, including *8 The Board aggres- velopment and recruitment. undisputed It is that the Board in substantial and con- engaged staff and has also sively faculty recruited black and ac- only participation in extra-curricular that the Board Since 18. The NAACP contends compliance at voluntary, require, in substantial for has not been tivities the law does not required by establish, years three the CSA. least racial balance nor does the CSA specifically that the Board district court found Eliminating goals Green factor. racial for this compliance since the 1995-96 had been in however, required, and the dis- distinctions is presented evi- year and the NAACP no school correctly found that the evidence trict court Therefore, contrary. finding dence to the has been done. that this clearly is not erroneous. elementary, high to white students to of the 139 tinuing efforts recruit middle elementary racially identifiable black goal schools met its of a population student schools, magnet pro- of which has a each that was more than 20% but less than 55% “Magnet gram. The district conducts (the By year black. the 1996-97 school fair, a cata- Mania” rеcruitment distributes year made for application was sta- telephone maintains a logue parents, to tus), schools, 88 of 138 or 64% of the hotline, directly parents to recruits schools, compliance district’s were in of their chil- encourage magnet enrollment goals. the CSA’s student enrollment One dren. later, 1997-98, year the number of Furthermore, contractually while not compliance again, rose to 91 out to, obligated the Board did use several or 65%. racial balance at other methods increase level, elementary At the the com- schools, including capping certain enroll- (42 100) pliance rate went from 42% at ment,20 majority minority pro- transfer (1991-92 lim- grams,21 inception attendance of the CSA boundaries22 100) at offerings (60 its on curriculum certain year), to 60% of in 1997-98. Mid- schools.23 compliance dle schools went from 59% (13 22), compliance 1991-92 to 77%
The evidence at trial was that (17 22). High 1997-98 schools were substantially achieved Board’s efforts (10 17) compliant 59% 1991-92 In goals. the CSA’s student enrollment (13 17) 1991-92, year compliant the first under the 76% of in 1997-98.24 cap 20. The Board did white enrollment at composi- made little difference in the racial identifiably three one of which was tion of these schools since most of them are in “capped white. Those students who were overwhelmingly city. black core encouraged magnet pro- out” were to attend grams preferred option at one of the not, however, 23. The Board did limit the cur- provided transportation The Board free offerings any racially ricular of the identifi- those students who did so. elementary able schools because it believed it necessary provide every each majority minority 21. The Board has used a elementary complete school with a curricu- desegregating program transfer to assist in view, limiting lum. In the Board’s the curric- black, naturally integrated, identifiably school, ulum at an even in order identifiably transporta- white schools. Free racially to foster movement of students out of transferring providеd tion has been stu- requests dents. The evidence was that identifiable was not consistent with elementary system transfers within the are goals of the CSA or sound educational counterproductive denied if Instead, to the policy. sought to encour- desegregative Board's efforts. age by enhancing student movement the cur- Board mailed transfer letters to more than offerings racially ricular at various identifi- 36,000 parents, resulting 332 transfer through magnet programs. able schools requests. The Board contends that these low attending numbers demonstrate that students Highly magnet pro- successful academic racially doing identifiable schools are do be- grams transforming have succeeded in three parents' preference. cause it is their racially identifiable middle schools and racially high two of the identifiable changed 22. The Board the attendance bound- into schools with diverse student bodies. high aries for one school in order to increase high Two middle and two core black enrollment and that school has been in however, city, identifiably remain black. The compliance with the CSA since *9 magnet programs at these schools have been changes time. No were made in the attend- continuing racially ance modified in a effort to recruit mi- boundaries of the identifiable schools, however, elementary nority because the evi- students. changes dence was that such would have following table County. Duval illus- compli- substantial this overall Despite goals, enrollment the CSA’s ance with trates fact. identifiably black schools
there are earlier, the evidence at As we observed from this table. are clear things Two racially identifiable trial was that all the First, injunction was successful the Mims elementary Attachment C vestiges jure of de dis- eliminating by students of attended core were mandatory student Under its crimination. years. All but during races those two both orders, were as- all students assignment formerly operated fifteen schools racial balance upon signed to schools based what la- solely for students reached black large numbers were bussed then goals and CSA racial balance ter became the time, During this goals. those to achieve three-year period before the for at least racially identifiable schools the number The Board of the CSA.25 implementation reduced. significantly system in the pattern of all-black enroll- had broken the shows, from 1971 to theAs table formerly operated it ment at the schools 75% or more black jure of schools with number de solely for black students successfully and had eliminat- segregation, 21% to 15%. went from jure segregation all vestiges of de
ed schools.26 the Attachment C rejecting pre-CSA events as In all elementary to count! identi- were the These status, "vestiges irrelevant to issue injunction as the fied the Mims thirty years incorrectly ignores first of federal dissent jure segregation.” The dissent de racially sys- supervision of the Duval implies that these schools "remained” years, ended de throughout period During entire tem. identifiable busing also supervision. jure segregation and instituted mass dissent federal jure segrega- incorrectly neighborhoods vestiges of that de maintains that eliminate the now, Then, having the link to the are broken these schools located tion. in which black, been, always began phase when the final of its past, over 90% by entering neighbor- decades-long desegregative effort evidence is that these the record expressly supported all-white a contract which rec- once into the hoods demographic ognized over shifts became 90% aggres- flight precipitated mass an population that was which established the white steps, other busing. magnet as well as program, sive resulting racial designed to ameliorate under efforts imbalances. The Board's analysis, gives no the final dissent compliance rate in a CSA have resulted 65% de- weight at all to the "root branch” Ignoring goals. with its racial jure segregation oc- of de struction context, pretending that thе Board’s busing under the with the massive curred vestiges eliminating success injunction, occur not because didn’t Mims it occurred not count if be- does enough, it occurred too soon but because soon *10 Then, immediately upon the establish- graphically The table illustrates this de- zones, ment of the CSA’s local attendance cline. With the advent 1971 of mass racially the number of identifiable busing, substantial numbers of stu- white parties expected, as the had rebounded began dents to leave public school Although percentage racially 21%.27 system. the Duval County public identifiable schools has now declined to population school student was 72% white. 18%, acknowledges that under By population 59% of that was CSA, experi- the school district has result, white.31 As a percentage enced an increase the total number of black students went from 28% to 40%. racially denies, It identifiable schools. The Board’s racial enrollment statistics however, any this is the result of demonstrate that much of the decline in resegregative policies, either intended or population the white student occurred in unintended. city, schools of the core ultimately leaving it with a school-age population that points
The Board out that 19 of the 26 racially is over 96% black. A operation identifiable schools in former school dis- to- superintendent trict day28 are elementary the Attachment C testified even the formerly city.29 jure schools located the core Testimo- de elementary all-white ny presented persuasively at trial city demon- the core identifiably became identity strated that their racial has been black schools with the busing. end of mass substantially Additionally, caused the decline in jure the de high white school number of white city the core identifiably also became schools.30 black.32 noted, however, only premise upon fore which the It should be that the over- whelming majority dissent can a case that build "the Board did sys- of the schools in the vestiges segregation desegregatеd not eliminate the tem remained in a at its status. formerly jure black schools the CSA 28. The most recent data is for the 1997-98 (This may enforcement term.” be the first year. judicially time that a school district has been much, soon!) achieving chastised for too too respect elementary 29. With to all however, Supreme But racially this is not the law. The Court there has been a decline in that, vestiges has made clear identifiable schools. In the once the of de 1991-92 school year, eliminated,
jure
popu-
schools had a black
have been
By
lation in excess of
the 1997-98
75%.
injunc-
were in Duval
under the Mims
year, only
tion,
these 19 were left.
any re-emergence
racially
identifiable
resulting
demographic changes
from
disputed
30. The NAACP has not
the district
(over
Board,
course,
which the
has no
findings
concerning
court's
of fact
the "white
control) cannot be attributed to the Board’s
flight”
preceded
nor the statisti-
Freeman,
jure segregative
former de
policies.
underlying
cal data
them.
pher’s
have noted
we
agree. As
We
declining in the
population
student
a school district
above, in
cases
such
decline),
families
(6%
as black
city
core
racial imbalances
remedy
duty
no
under
(26%
of the
outlying areas
move to the
demographic factors.
are caused
inner
surrounding the
areas
gain
Freeman,
S.Ct.
U.S.
areas),
outermost
gain
city, and 41%
wrote
Swann:
Supreme Court
theAs
into
move
than white
more black
nor
authorities
district
Neither
outly-
outside and
from
city,
both
the core
constitutionally required
courts are
county.
ing areas of
adjustments
year-by-year
make
once
that:
bodies
concluded
student
composition
racial
The district
has
duty to
the affirmative
di-
School Board’s
response
racial discrimina
accomplished and
been
testimony at-
expert
rect evidence
is eliminated
official action
through
tion
imbalances
present
racial
tributing
designed to reveal
study was
1y. His
district
virtually
street. The
across the
cated
each,
mobility
racial balance
on
impact
of such
zones
the attendance
court revised
totally integrated
produce
expecting to
two
enrollments.
ap-
population of
with a white
high schools
years,
Within two
each.
proximately 40%
certain
agreed in the CSA that
parties
however,
high
were overwhelm-
both
"naturally
were
district
of the schools
).
today.
(90%
They remain so
+
ingly black
implementation
prior to
integrated”
patterns.
CSA due
residential
seven-year
Mueller conducted
33. Dr. Milan
mobility
coun-
in Duval
study
of black
*12
system.
This does not
city’s
from
mean
schools.35 There is no evidence that
power
any
that federal courts are without
policy
contributed to the re
problems;
emergence
deal with future
but in the
of these
or perpetuated
schools
showing
of a
that either
any way.
absence
their existence in
“While those
or
agency
charged
school authorities
some other
desegregation
must not
deliberately attempted
of the State has
shrink from the
flight,
threat of white
fix
demographic patterns
or alter
school officials who have taken effective
composition
affect
the racial
of the
action have no affirmative fourteenth-
schools,
further intervention
a dis-
duty
respond
amendment
to those who
trict
necessary.
court should not be
vote with their feet.” Ross v. Houston
Dist.,
(5th
Indep.
218,
Sch.
699 F.2d
225
31-32,
402
atU.S.
clared
however,
clear,
Constitution does
racially
operation of numerous
continued
to eliminate the
require
school board
e.g., United
schools. See
identifiable
“to
500,
past
vestiges of
discrimination
No.
974
v.
Sch. Dist.
States
Unified
Jenkins,
practicable.”
extent
(D.Kan.1997);
Bd.
maximum
Stell v.
F.Supp.
445-46,
716,
437,
noted,
Indeed,
100 S.Ct.
444 U.S.
once
as Justice Powell
(Powell, J.,
(1980)
dissenting
expect a total absence
one-race
L.Ed.2d
deny
demographic and economic
improv
would
of certiorari as
from dismissal of writ
major
See Estes v.
of most
cities.
realities
idently granted).
NAACP,
Metropolitan
Dallas
Branches
2038; Freeman,
good
115 S.Ct.
mented the
faith.
515 U.S. at
The Board
1430; Dowell,
112 S.Ct.
503 U.S.
has both a contractual
and constitutional
630;
Manning,
111 S.Ct.
498 U.S. at
Dowell,
obligation to do so.
498 U.S. at
expressly
at 942. The Court
244 F.3d
249-50,
Under vigorously encouraging a race neutral throughout distribution final claim app NAACP’s on imple- system. the Board has not eal37 any
37. We find no merit in contention raised the NAACPwhich we do not discuss. imbalances, it is under no con- rent racial compliance the Board’s As with desegregative duty employ stitutional however, views CSA, the NAACP required by the CSA techniques not It con half-empty. glass good-faith factors that are. demographic combat to utilize has faded the Board tends that Furthermore, power to or- we are without techniques “standard Bradley, v. do so. Milliken it to der eliminate in the CSA” mentioned 267, 282, L.Ed.2d 97 S.Ct. U.S. Like schools.38 racially identifiable (“[F]ederal-court (1977) decrees must substantial district is claim and relate to the constitu- directly address however, compliance with ap- ... exceed [and] violation itself tional adop by the NAACP’s is tainted argument at elimi- limits if are aimed propriate See wrong legal standard. tion of violate the a condition that does not nating The Con Manning, 244 F.3d 948-44. Constitution.”). require school board does not stitution by exter racial imbalances caused remedy any merit do we find Nor shifts, factors, demographic such as nal has contention NAACP’s not the result classically segre- which are and omitted “acted Freeman, control. the board’s beyond crux of this com- manners.” gative There S.Ct. 503 U.S. should have built that the Board plaint is employ fore, obligated to Board is not “grey areas” new so-called *15 method because desegregative the white particular a and the black core between imbalances.39 remedy desegregative these racial might This outlying suburbs. 490, 112 helped would have technique, argued, S.Ct. it is Id. desegregation maximum achieve the obligation constitutional The Board’s possible the district. of a constitu- the effects only to eliminate existence was that Board The continued The evidence at trial tional violation. occasions schools with- met on several racially the NAACP a some identifiable itself, a for new schools. not, proof proposed sites to discuss in the district is of the violation, superintendent nor has former The constitutional “grey the use of the proposed that even proof system any. Without NAACP offered new construction. Af- sites for some segregative former present or area” the Board’s however, that study, it was determined cur- cause of ter practices are the policies or a eluding school with "may adopt at least one CSA stated 38. The desegregation in the other race. When body predominantly of techniques to achieve other cap- including, limited to: but are reached one its racial enrollment limits enrollment; re-designing the student school, ping remaining of that race zones; limiting the curricular attendance on assigned to a school based bussed magnet programs.” Al- offering at certain the school. The composition of the racial mandatory, Board has em- though not possi- plan a is the maximum purpose of such techniques at some of these ployed some desegregation a school district without ble discussed above. offending racial regard to the causes Constitution does not This imbalances. contends, the dissent im- NAACP Furthermore, the NAACP concedes require. implement- plies, that the Board should plan in Duval implementation of such that achieve plan to a “controlled choice” ed return to substantial County require a would in the district’s racial balance "maximum” ra- busing the desired of students achieve groups plan, Under such only does not the CSA not cial mix. This pro- student is are clustered each but, fact, imple- specifically was require, prefer- to rank a form with which vided with cluster, avoid. mented to in- within for attendance ences proposed grey each of the sites had serious Board has fulfilled its constitutional and geоgraphical Many deficiencies. were obligation contractual to act in good faith areas, highly commercialized and several in the selection of new school sites pollution Ultimately, had serious issues. way. race-neutral agree. We none of these sites deemed suitable
for new school construction.
rv.
a Desegregation
Board then created
sum,
In
judgment
we conclude that the
Committee in 1995 to consider and recom-
appeal
from which the
is taken is due to be
sites,
mend new school
but the NAACP
affirmed. An
implies
ap-
affirmance
participate.
refused to
The committee
pellants have lost.
In a meaningful way,
recommended the construction of 10 new
however,
implication
justified
is not
schools. These recommendations were in-
here.
judgment
This
means that appel-
corporated
five-year
plan
into a
facilities
accomplished
lants have
they,
what
dec-
that was distributed to the NAACP later
ago,
They
ades
set out to do.
challenged a
year.
The evidence was uncontradict-
maintained,
jure system
rigidly
ed that all but one of these schools were
and sued to bring it
built in
projects
areas for which the Board
compliance
into
with the constitutional re-
strong or
growth
moderate
in student en-
quirement
equal
protection under the
rollment, including black students.40 The
say today
law.
they
We
have suc-
expert
testified that black student
ceeded.
If
judgment
is counted as a
mobility to
naturally
these areas of
inte-
appellants,
loss for
it is so
because
grated housing patterns
eventually
will
in-
have won.
crease the
of the district’s
schools.41
Furthermore, none should read more
into
judgment
than it contains. With
foregoing,
view of the
we conclude
implementation,
Duval
that the NAACP’s mistaken
view
*16
system
school
may be out of the court-
CSA and the
require
Constitution
the
house, but it is not out of the reach of the
employ
Board to
the maximum desegrega-
Constitution,
Rights,
the Bill of
and the
techniques
tive
available has led it
con-
of
Nothing
laws
this land.
in
judg-
this
clude that the Board has acted in
faith
bad
ment authorizes conduct contrary to these
in its site selection for new schools. Nei-
Board,
laws. The
and the people
ther
of Duval
the CSA nor the
require
Constitution
who,
County
end,
in
govern
the
the
Board to build new
in
their
the most
integrated
system,
school
parts
county
must be aware
regardless
that
the
of
through
whether these
door
correspond
sites
to the
leave the court-
areas of maximum population growth.
house is not locked behind them. They
The district court correctly found that
undoubtedly
the will
find that this is
if they
so
exception
was an
evidentiary
that
support
there is no
for either
city
built in
replace
the core
an unsafe
of these contentions. The evidence was that
school.
empty
city
seats
in
core
would in no
way
growth
accommodate the
pppulation
41. The NAACP also contends that the Board
outlying
increasing
areas without
those
guilty
of bad faith because it has not filled
by busing
seats
black students out. The
empty
seats in core
schools with white
superintendent
Board’s facilities
also testified
attempt
an
desegre-
to maximize
portable
classrooms are not used at
gation but
portable
rather has used
class-
schools where student
not with-
keep
rooms to
white students at white
goals.
in the CSA
correctly
schools. The district court
found
order,
second, it must
desegregation
unitary system we
maintain the
fail
it
the ves
demonstrate that
has
today.
exists
eliminated
conclude
“extent
tiges
jure segregation
of de
to the
court is
of
district
judgment
Bd.
Educ.
Okla
practicable.” See
of
of
AFFIRMED.
Dowell,
City
homa
Pub. Sch. v.
498 U.S.
237, 249-50,
630, 112
111 S.Ct.
L.Ed.2d 715
BARKETT,
Judge, concurring
Circuit
(1991);
Muscogee
v. Bd.
Educ.
part:
Lockett
dissenting
part
of
(11th
Dist.,
County Sch.
F.3d
that the
I
the district court
agree with
Cir.1997);
County
Lee v.
Bd.
Etowah
of
Board”)
(“the
Board
Duval
School
(11th Cir.1992).
Educ.,
963 F.2d
unitary
entitled to a declaration
case,
and the Board
In this
the NAACP
fac-
majority
of the Green
status on
ob
agreed
New Kent
v. Sch. Bd.
tors. See Green
negotiated
in a
ligations would be outlined
County, 391 U.S.
88 S.Ct.
agreement,
Stip
the Corrected
settlement
(1968). However, I do not
L.Ed.2d
(“CSA”), instead of
Agreement
ulation and
to a
that the Board was entitled
believe
However,
the dis
a court order.
before
in the area
declaration
it had
approved
agreement,
trict
root of the Duval
assignment, the
a bare
satisfied that
be
(the “District’s”) prior unconsti-
County’s
minimum,
adequately
addressed
system.
jure segregated school
tutional de
obligation
deseg
Board’s constitutional
say that the
Certainly, I
would like to
too
formerly
jure seg
regate the District’s
finally “got
right,”
and end
court con
regated schools. The district
judicial supervision
forty
years
one
addressed
cluded
However,
Supreme
case.
until
obligations
Board’s constitutional
time has
simply
announces
Court
by setting tar
assignment
of student
area
judicial oversight over school
to end
come
for various
get
racial enrollment
status,
districts,
regardless
their
we
However,
in the District.
groups
unitary status
faithfully apply
must
fundamentally at
over
parties are
odds
judi-
determining whether
when
standards
many
which schools were re
how
supervision should be terminated.
cial
enroll
the CSA’s student
reach
quired
case,
required to estab-
the Board was
goals in order to demonstrate
ment
effort to
good
it made a
faith
lish
complied with the
substantially
city the black core
*17
provisions.
student enrollment
CSA’s
in order
jure segregation
de
under
created
unitary
an
status
to merit
award
compliance
majority
the
The
resolves
assignment.
It failed
do
of student
area
of the Board
disputes in this case
favor
and, therefore,
required to re-
we are
so
pro-
magnet
and rules that
Board’s
judicial supervision over this area.
tain
compliance
which achieved a 65%
gram,
with
CSA’s student
rate district-wide
majority explains, when a school
As the
to meet
was sufficient
goals,
subject
desegregation
that
a
board
accepts
It
obligations.
also
judicial
Board’s
bring
seeks to
end
an
order
current
that
argument
it
Board’s
district must
supervision over the school
At-
segregation rate in the District’s
unitary
require-
96%
satisfy the two
status
jure
de
black schools
it has
C former
it must
that
tachment
first
establish
ments:
pattern
flight,1
of white
of a new
controlling the result
complied
good
faith
with
C,
Appendix
identifies 28
a CSA
that
computed
Attach-
ment
figure was
based on
This
by demographic
as shown
evidence reveal-
these schools
neigh-
are located
black
ing a
relative shift in the ratio of
12%
borhoods that have been over 90% black
to white students in the District over
black
jure
since
segregation.
the end of de
twenty
years prior
seven
to the CSA’s
Athough
majority ultimately
con-
agree.
creation.
I cannot
importance
cedes the
of the Attachment C
I
believe
the CSA was crafted to
per-
it excuses the Board’s dismal
injury
address the core constitutional
formance at these
showing
high
segrega-
this case: the
rates of racial
the Board met the CSA’s standards for
formerly
jure
tion in the District’s
de
black
desegregating
prior
these schools
to the
city
core
schools. The record
shows
However,
proper
CSA’s creation.
in a
uni-
these schools had over 90%
enroll-
tary
inquiry,
apply
the court must
jure
ments at
segregation,
the end of de
the relevant
order to the
and have remained
during
90% black
period
designed
it was
to address. The
course of the CSA’s enforcement
term.
proper inquiry in this case is whether the
Aso,
plainly
the record
shows that these
obligations
met its
under the CSA
segregated
schools are not
as a
a
result of
during the
period,
CSA enforcement
pattern
new
flight.
of white
The Board’s
began after 1991.
inquiry,
Under this
demographic evidence shows that
record
that the Board did not elimi-
shows
flight
complains
preceded
white
it
vestiges
nate the
at its for-
and, moreover,
creation of the CSA
merly
during
black schools
adequately accounted for in the
less
term,
CSA enforcement
and it failed to
stringent
goals.2
student enrollment
provide plausible justification
for its fail-
flight
white
did occur
Therefore,
ure to do so.
it was not enti-
term,
CSA’s enforcement
4% decrease
unitary
tled to a declaration of
status in
district-wide,
the number of white students
the area of student assignment.
had little or no effect on the
Further-
ability
more,
the core
applying the CSA standards to
Therefore,
parties recognized
schools that
would
status.
of the Attach-
96%
black student enrollments after the
compliance
75%
ment C schools were not in
such,
busing.
District ended forced
goals.
As
the CSA's student enrollment
primary
schools were the
focus of the CSA.
that,
Review of Attachment C shows
out
Supreme
Court has indicated that it is
listed, only
currently
open.
23 are
improper
for the court
alter
Therefore,
my analysis
I exclude from
the five
desegregation obligations
board's
light
closed;
elementary
namely,
schools that were
district,
demographic
explaining
shifts in the
Forrest, Beal, Lackawanna,
the Sherwood
original
once the Board satisfies its
obli-
Rutherford,
and Scott
I
gations
desegregation agreement,
under a
*18
also exclude Jacksonville Beach from these
required
continually reorganize
cannot be
to
VII,
figures, as the school is located in Zone
changing
its efforts
composi-
to address the
clearly
Pitts,
and Attachment C and the CSA
indi-
tion of the district. See Freeman v.
467, 493-94,
1430,
cate that the Attachment C student enrollment
U.S.
112 S.Ct.
goals
only
(1992);
apply
were
intended to schools
L.Ed.2d 108
Pasadena Bd. Educ. v.
¶
(CSA
4).
424, 434-35,
Zones I-V.
Spangler,
Attachment C & CSA
427 U.S.
96 S.Ct.
remaining
(1976) (same).
Out of the
22 Attachment C
981 Required Compliance Standard standards, the CSA meeting difficulty less students,8 Obligations By the Board’s Constitutional drawing black difficulty i.e., less provisions two CSA are there because interpreted if could be Even the CSA D the Attachment directed specifically the compliance with Board’s the assess ¶¶ the detailed schools, more 18 & and on the goals based student enrollment to en- designed provisions of these two the performance, district-wide D would schools Attachment sure the case still re- injury in this constitutional away white students to draw continue the Attachment C focus on that we quires ¶ 19(a)-(c). schools. C the Attachment from comprehen- the first A schools. review contemplates greater contrast, the CSA in this case entered order sive remedial enroll- the student difficulty meeting in impor- the the court stressed shows schools, as C at the Attachment ment “core eighteen the desegregating tance of and de- numerous contains agreement the schools, majori- historically black city” designed to at- provisions planning tailed Attachment C schools became ty of which to the Attachment C tract white students (estab- ¶¶ Duval 11-12, Mims v. See, CSA.9 under the e.g., CSA schools. (M.D.Fla.1971). program Bd., 123 magnet F.Supp. for line 329 lishing a time Sch. schools, and ar- C explained, “[n]o Attachment one for Court proposals The Mims funding efforts city recruitment identifying core black gues that (dis- ¶¶ schools); 15-17 jure C Attachment a de vestiges but anything renovation role facilities cussing the system. Under dual segregated diversifying the in play would replacement Charlotte- v.] ... [Swann circumstances schools). C at the Attachment S.Ct. U.S. Mecklenburg [402 (1971) commands literally ] L.Ed.2d desegrega- of the CSA’s bulk Since core-city students these integration of C on Attachment focus tion efforts through white students outlying with the need, it greatest schools, schools in Mims, F.Supp. at 130. busing.” to mea- purpose ignore would rule in manner us to now asks Board with the CSA compliance sure the Board’s importance functionally negates the so To do figures. on district-wide based jure formerly de black city core these for success de- the Board credit would However, explained as we schools. Attachment alone” the “stand segregating heart of are at the require did not schools, which B case, we violation constitutional D “majority white” Attachment help, and Therefore, them. simply ignore cannot would schools, anticipated the Board suc- showing of meaningful some without stan- meeting CSA difficulty less the core respect to cess dards. elementary schools Again, the number Zenke, desegrega- Larry the Board's L. 8. Dr. the number higher C is than Attachment superintendent of and the former tion advisor parties Injunction because the Mims that, District, when the was testified remedy required to agreed that created, recognized black stu- expected be- segregation in those into white willingly transfer dents would mass end of identifiably come magnet no there were even when be- "expected to were busing. These schools schools, and even the white programs ei- were majority black because come” resources additional were no when there neighborhoods near black located developed or ther (Vol. 10 Tr. at at the white available consequence aas 87-88). segregation. *21 satisfy the Board cannot its constitutional an agreement party’s based on a behavior obligations. prior agreement’s Also, to the creation. case, this plain terms of the CSA show B. Identifying Proper CSA Enforce- that there is no defensible taking basis for ment Period the CSA’s terms and interpreting them to By 1. The Enforcement Period Required period cover a prior to agree- the time the The Terms CSA’s ment was formed. agreement clearly The states that it was govern intended to things Two are clear from the record ¶4 period (“[T]he after 1991. See CSA (1) this case: the Attachment C schools that, parties agree commencing with the were the focus the CSA and 1991-1992 year, each [in part central of the constitutional violation Zones shall V] have as its desegrega- I— (2) recognized in during this case and goal tive the enrollment of at least 20% (1991-1998) period CSA enforcement students.”). black students and 45% white Board failed to the Attach- facts, ment negate C schools. To Furthermore, I find this interpretive the Board claims that it satisfied the illogical. maneuver majority implicit- goals CSA’s enrollment for the Attachment ly parties concludes that the entered into years prior C schools in the to the CSA’s agreement an in 1991 to goals achieve Specifically, creation. the Board cites en- they already had prior reached to that rollment statistics from 1971 to dur- period. why But would do that? The ing Injunction’s the Mims busing forced reading fair of the CSA’s terms is to program, argues that the Attachment agreement treat guide as a for the desegregated C schools were during this Board’s desegregation goals efforts and period.10 claim, In support of this it notes subsequent majority the number of black as a substitute for the fell from during period 21% to 15% Injunction Mims forced busing program. covered Injunction. the Mims The ma- Therefore, the performance prior jority concludes that this evidence is suffi- period to this is not relevant to this dis- cient to show that the Board eliminated pute under a inquiry. contract “vestiges jure of de segregation” in the 2. The Enforcement Required Period Attachment C schools for a pe- reasonable Under The Constitutional Framework riod, and (Maj. therefore met its burden. 968-69). Op. at In addition running afoul of the CSA’s terms, plain case, majority’s application I have found no surprising- ly points none, the CSA period standards to the which a between party’s assessed a compliance ignores 1971-1990 precedent earlier majority 10. concludes that the implementation Board suc- the CSA. The Board cessfully desegregated the core had pattern broken the of all-Black enroll- because substantial numbers of black students ment at the formerly operated schools it attended the Attachment C schools at what solely for seg- Black students de later goals. Specifically, became the regation, and vestiges had eliminated majority states: jure segregation in all the Attachment C All but two of the formerly fifteen schools operated 968-69). solely (Maj. added). Op. for Black (emphasis students reached As above, what later became explained the CSA racial balance govern the Mims standards three-year and,, thus, for at least a period period prior to 1991 the CSA is before established elementary schools cov decisions the earlier All of case. Mims, Mims. period under time period establish ering this time *22 after obligations majori- desegregation The effect F.Supp. at 130.11 Board’s Injunc Mims by the governed deseg- were the Board’s 1971 to lessen analysis is ty’s order was standards, up and until tion 1971 and obligations between regation Mims, 329 CSA. 1991 the superceded the Board attempt to show in an 1990 Branch Jacksonville 123; F.Supp. obligations dur- its constitutional satisfied Bd., County Sch. Duvall v. NAACP However, already we period. ing this (“NAACP 1989) (11th Cir. F.2d the Mims meet Board did not that the held the effectively overrules 7”). decision This prior to 198612 goals Injunction enrollment to Mims Court established the standards on unitary status the we Board denied efforts desegregation the Board’s assess I, at 953. NAACP 883 F.2d basis. and, impor more 1971 and between case, Board did the to this important More the Board’s tantly, sub silentio reduces goals Mims enrollment meet the not Specifical period. obligations portion of (21%-34%) remaining the under met the that asserts majority ly, (1986-1991), Mims enforcement period obligations between meet the CSA enrollment it failed to perfor Board’s measuring the (20%-55%) became once the CSA rela C Attachment at the mance (1991- standard enforcement governing enroll student the 20%-55% tive 1998). in the made clear facts are These CSA, CSA in the provided goаl ment chart below.13 goal for ¶ 21%-34% using instead static, remained performance peri- Board's to this time wrong apply standard racially identifiable number of od. substantially change from did was denied date goals for the set Injunction also The Mims 11. Exh. 96. Def. NAACPI. See middle schools formerly jure black However, Attachment because high schools. that are only the schools covers graph 13.This fig- only C covers in Mims city” schools identified “core analysis. relevant our ures are not were subset Injunction, and included C schools that Attachment above, majority argues As noted during the CSA time required Attach- goals for the Board met alternatively, the chart period. Stated year requisite three for the Cment originally rec- were schools that those shows I, However, in NAACP period prior to of the constitutional source ognized as the per- that Board's clearly case, indicated specifically this Court des- and were injury in this was insufficient to 1986 enroll- prior subject the CSA’sstudent formance ignated as measure, above, proper none goals. under the As shown satisfy its burden ment previously were regard to C schools that Attachment the Mims standard. Injunction met the Mims my identified in review after performance goals. enrollment shows statistics Board's student *23 summary, there is no basis re- desegregation obligations for when it did not jecting the Mims entirely Court’s standards and its achieve student enrollment and, therefore, conclusions no basis for re- of the good because school board’s visiting reinterpreting the Board’s faith efforts in implementing desegre- its performance during Injunction gation Mims plan). In support claim, of this period under CSA standard. The argues only required CSA inquiry relevant this case is whether it establish fund a network of the Board successfully desegregated the magnet at programs the Attachment C core compliance and, Dand opened since it goals, CSA’s student enrollment which programs them, and funded it met its obli- required that it maintain a black student gations agreement. under the 55%, enrollment between 20% and The argues NAACP thаt the Board did Attachment C schools the CSA en- not make a good faith effort to utilize the period, forcement from 1998. The strategies because so, therefore, Board failed do has it agreement required the Board to im- not met its obligations constitutional plement one or more of the supplemental assignment. area of desegregation techniques outlined in the C. Evidence Good Compliance Faith agreement designed that were trigger During the CSA Period parents to make a desegregative magnet argues Board also if even it did school for choice their children. Specifi- not meet the CSA’s cally, student enrollment argues the NAACP that the Board goals at a sufficient number its knew that a magnet program bare would can forgiven be given good failure its faith fail to racially identifiable implement effort to because, CSA’s desegrega- black schools program unless the techniques. Nucci, tion See Morgan v. provision included some par- directed (1st Cir.1987) 831 F.2d (recogniz- ents towards a desegregative choice school ing that a board discharged children, had its for their parents would majority’s assertions of the supports either racially identi- programs magnet choose issue I address each regard, dif- Recognizing fiable black variety a provided the CSA turn. ficulty, a to make parents encourage
means majority’s First, I cannot endorse the chil- for their choice desegregative We reading CSA. restrictive re-drawing attendance dren, including reading a contract a prefer required to Attachment zones, capping enrollment reasonable, lawful, and effec- “gives offer- limiting curricular D and/or ... an [over] terms to all the meaning tive schools, implement- D at Attachment ings part unreason- that leaves interpretation pro- transfer majority-to-minority ing a Re- unlawful, no effect.” See able, or of resort, re-instituting and, last as a gram 203(a). ¶¶ 19(a)- § (Second) Contracts reassignment. statement mandatory runs argues the contract 15(a)-(b). reading of (c) majority’s The NAACP & or to consider surplus- refused as it makes principle, of this because afoul deseg- supplementary fairly implement three-quarters age of over not fulfill techniques, did *24 regation paragraphs containing 33 25-page contract the CSA. under obligations supplemental the that, it includes when view, be read techniques, could Board’s desegregation adopts the majority The only the indi- require hundred up to to several incorporating the CSA as it reads achieving choice” student at de- a “free targeted of provisions establishment vidual of a network schools. program between assignment in the District’s 967-68). at (Maj. Op. magnet desegrega- schools. supplemental treating the By that, although concludes majority also precato- as mere in the CSA methods tion so, Board the to required do effect, not it was the binding no ry references some to institute effort good faith made a the of nullifies most effectively majority tech- desegregation supplementary of terms.14 adopted explaining niques, of the interpretation reasonable A more program, transfer majority-to-minority a its all of to effect gives that one boundaries, capped attendance redrew to function intended terms, is that D Attachment at some enrollment contract,15 anor as a “best-efforts” either (Id.) the record I do not believe provide agreement to we construe majority’s that also I concerned am beyond establish- obligations additional agreement construes reading the CSA Restate- program. See free choice of a ment dangerously is program a provide for to ("In choosing (Second) § 207 Contracts ment program the voluntary choice to the close promise meanings aof among the reasonable v. New Kent Green rejected in Court Supreme thereof, meaning a agreement or a term 437-40, or Green, 391 U.S. County. See generally interest public that serves desegregating "in (explaining that S.Ct. prefеrred.”). utilizing plan 'freedom system a a dual Green, itself.”). In not end an choice' re- contract efforts "a Specifically, best held that explicitly Supreme Court efforts use best obligor must quires satisfy obligation to cannot board fail- risk of goal, but the particular merely by achieve plan desegregation implement a Dictio- Law obligee. Black's lies with "voluntary” ure or an ineffective implementing enforceable, a best-efforts nary To be at 318. Id. program. attendance choice” "free goal or some kind generally set must term Therefore, interpreted be could if the contract may be the efforts against which guideline bring conflict it in not that would in a manner Murray Contracts On See also Id. measured. obligations, constitutional Board's with the is inter- the standard how (explaining § 58 interpret it in this manner. required to we are context). the commercial preted in case, require that reading would “alternative contract.” Black’s ly Law Dic- (Tr. identifiable black schools. Vol. 10 (1999). tionary 162). at 319 A best-efforts con- that, record also Dr. shows tract is “a contract in Zenke, which a party under- desegregation advisor, takes to use best efforts fulfill indicated that he was aware during the promises made ... the adequacy [and] implementation of plan that when oth- party’s performance [that] is measured er districts had voluntary used magnet the party’s ability to fulfill specified programs to desegregate their obligations.” Id. An “alternative contract” had included methods guide par- is “a contract that provides than more one ents desegregative choices, towards includ- way party for a complete performance, ing capping, balloting measures, and re- ... usually] permits [and party drawing school attendance zones. Dr. choose performance.” the manner of Id. Zenke testified although he conferred Both of these types agreements allow individually with the Board members party obligated who is partic- achieve a about the problems District’s in meeting goal ular under a contract limited discre- the CSA’s student goals, he tion to choose strategy what it will use to never brought for a full Board vote any achieve that goal; however, agree- strategy that would be that, ments require also if a party perceived fails to as constraining parents’ choices meet a goal, contract and it does not uti- in selecting schools for their children. Dr. lize strategies identified under the con- explained Zenke he that made this decision tract, present it must valid reasons for because he did support adoption rejecting the contract’s suggested strate- and, these strategies based on his conver- *25 gies. See 17A Am.Jur.2d § Contracts Board, sations with the he did not believe (discussing contracts); alternative 6 Cor- majority the of the Board would ever bin On § (same); Contracts (Id. Restate- adopt any of 174). them. 161-162, at (1921) ment (same). § Contracts Un- In Dr. words, Zenke’s own the Board’s der reading the agreement, the desegregation effort was “entirely based Board not necessarily was required pur- to on voluntary options and choices” and it sue all of the supplementary desegregation refused to any desegregation consider techniques CSA, in the but it required was strategy that it interpreted limiting par- as present to fairly evidence it consid- ents’ choices to send their children to a ered adding the supplemental techniques particular (Id. 174). school. at in its effort to desegregate the Attachment Consistent with approach, the C rejected and them because they Board persistently refused to implement were impractical. any CSA mechanism that guide par- would view, my the record unequivocally ents’ school choices. It continued with this shows that the Board knew that its purely purely voluntary despite effort substantial voluntary program failing was to reach the evidence that the voluntary program was CSA’s student enrollment goals in the At- not achieving the goals. Also, CSA’s the tachment C but it failed to add record shows that thе Board’s efforts even any of the strategies recommended in the undermined its purely “voluntary ap- CSA as a more aggressive guide means to proach” to desegregating the schools. parents toward a desegregative school Specifically, the Board held a magnet choice for their children. Specifically, fair, the it sent out a letter that record shows that the Board early knew as guaranteed parents transportation for as 1992 that the free-standing magnet pro- their children if they agreed to transfer gram failing was to desegregate the racial- their children from a school they where the to achieve means any other identify to a school group race majority in the were goals. (a “major- CSA’s minority in the they were where transfer). Howev- school matter, into inquiry ity-to-minority” our an additional As the trans- fair magnet the the er, although into account take must faith good encourage supposed to unitary sta- letters were its fer from apart Board’s efforts school desegregative oth- is, to make Board’s parents if the obligations; tus as- children, Board the recklessly for their choice seem decisions administrative er not want did if parents sured problems of the unmindful magnet participate to children their is inconsis- District, behavior such trans- majority-to-minority or the In this faith. program good finding of awith tent to decline simply initiative, they could feder- received sought fer case, the Board by de- programs, participate the Attachment money improve to grant al school. neighborhood in a up by the fault end covered period C surprising Therefore, (Id. 90). it is not effort money in an spent this it Board 36,000 (Id letters that out city schools. the core improve elected only 332 families as to parents, However, sent choices 109). Board’s Par- transferred. children their dollars to have facilities other spend how with permitted, they were Dis- knew that ents trends segregative aggravated desegregative sepa- avoid approval, Board but creating well-funded trict, thus simply their children assignment Specifically, and black rate white Board’s to the respond not declining did Board shows record were incon- actions area integrated letters. its new build made under commitment city, core surrounding sistent immediately ¶ 19. reflects, CSA contained CSA. which, the record highest population, highest student designed Certainly, classrooms, largest portable un- number pursuing into hamstring the schools, and de- overcrowded number achieve in order to solutions workable Instead, facilities.16 clining However, evi- the record goals. *26 new schools thirteen to build chose Board the that Board knew the that shows dence all the almost years in past ten the it over failing, and program magnet bare county.17 the of periphery outlying good in white not it did consider why, but knew ac- its that proposition support In improv- options of CSA’s any the faith discriminatory pur- not have did attempt to tions not it did program, ing the the of (approximately 50% in Area B enrolled Dr. Milan demography expert, The Board’s 16. district), an in the school overall enrollment study documents conducted Mueller was 55% integrated area which Jacksonville divided Mueller problem. A, tab.4. Exh. Def. core See the white. rings, Area 45% three concentric into valid administra- C, argues it made sur- that the successive Board B and city, areas areas choice, building in C as it was the Attachment rings. tive rounding Most pop- significant student trial testified the most experiencing A. Mueller Area fall in 115). Although in Area (Tr. built 3 at were Vol. growth. new schools thirteen ulation that goal, stu- it is which the C, in a laudable indeed of Jacksonville planning a section future white, expense one population it comes 84% when dent not laudable A, city, where viola- core Area in Amendment was built remedying the Fourteenth Def. See black. population is 97% tion. were built new schools 12. No tab. Exh. building new Instead case even This was Area B. planned or city, the core integrated outer newly indi- demographic research though Mueller’s classrooms portable Board used study, that, course of throughout the cated Simultaneously, built it the district. area were of students highest concentration pose, pointed to Milan Mueller’s good faith, the CSA in the Board has report, which showed that the District was satisfied its obligation under the unitary experiencing highest popula- rates of inquiry to desegregate the district growth tion periphery of the county. “to the practicable.” extent Again, I However, almost all of these new schools would not reach this issue I because do not were under-enrolled at the beginning of believe that the Board satisfied its obli- contrast, their tenure. In during the same gation to show that it complied with the period, the Board built no new schools in good CSA in However, faith. I address immediately the area surrounding the core point I because do agree not with the city to meet the needs of naturally majority’s view that the Board met its integrated and overpopulated schools. burden to show that demographic changes impossible made it for it to short, achieve the the record evidence this case CSA’s student a finding goals commands for the Board failed achieve Attachment C schools.18 regard to city’s the core historically black schools Supreme Court has held that when under magnet program, and did a court reviews a school compli- board’s give fair consideration to the CSA’s ance with a desegregation order under the supplementary methods for desegregating unitary status inquiry, it presume must these schools. Simultaneously, the Board any remaining segregation in the started a building program that created a school district is tied to the segregative jure new former de District, trend within the ignored segregated system, the naturally and therefore integrating trends that must be complemented would have remedied before the court ends judicial efforts. supervision of the Keyes district. v. Dist. Colo., Sch. No. Denver 413 U.S. D. Whether The District Was Desegre- 189, 208, 93 S.Ct. 37 L.Ed.2d ” gated To “The Extent Practicable. (1973). A may schoоl board rebut The majority has also that, presumption concluded in its addition to showing it complied with district stems from the former de new schools in predominantly Together white resi- the Board's student enrollment neighborhoods dential the outlying statistics, areas and the demography report pre- city away from the core. The knew pared by the expert, Mueller, Board's Dr. that the Court was concerned about its distri- establish that the core schools had 90% *27 facilities, bution of new separate apart and black jure enrollments segregation, de from the obligation Board's remedy to the the pupil and black enrollments at these poorly funded and inadequate city core schools remained in excess of for 90% the Indeed, held, schools. in NAACP II we that duration of the CSA. The Board submitted the Board's "failure to objective consider the raw data for the period. 1969-1970 time desegregation of in its efforts to alleviate over- report provides Mueller's percentages for the crowding violate[d the Board's] affirmative report later dates. The that the shows core duty desegregate.” to When combined with city schools were black 96.1% between factors, 1989 other we concluded that this coun- and 92.78% between 1993 against seled and a finding. Id. at 1994, and Despite 952-53. 93.45% between warning, 1996 identify made The Board any no effort failed to to consider evidence whether its strate- to gy using portable core, that show the classrooms in the 90% city as core opposed schools, building to any new schools was conflicted traceable to intervening de-
with its duty affirmative desegregate to mographic changed shift that the racial com- District's schools. position of these areas.
989 See flight.” “white experienced has trict pre- system school segregated racially (recognizing 322-23 F.2d at Morgan, 831 temporarily it that evidence senting school beyond a as a factor goals, flight white decree’s desegregation achieved Indep. control); v. Houston in thе dis- Ross changes board’s demographic that but (5th Cir. 225 Distr., to the F.2d unrelated 699 resegregation, Sch. to trict led Board system. 1983) (same). Specifically, segregated jure de original 1430 S.Ct. withdrawn Freeman, have U.S. at that white claims not of sys a product (“Where public school resegregation the Duval from choices, it does private leaving it but private state action attend to tem implications.”); pool constitutional not have cf. white student insufficient with an 435, 96 S.Ct. U.S. Spangler, Board also The goals. the CSA’s achieve had that board a school that (recognizing away from have moved that argues whites order’s desegregation a achieved already the core with associated neighborhoods court by the required be not goals could difficult more it even making to address efforts change its continually Board The these composition demographic changing support evidence pieces three offered recog- ).19 also Courts the district (1) district- flight”: of “white its contention use demo- may board a school that nized a 12% showing statistics enrollment wide cannot it to show that evidence graphic white students the number decrease be- goal decree desegregation a accomplish to the years prior twenty seven over has district demography cause testimony (2) creation; eyewitness CSA’s desegrega- changed, dramatically cur superintendent its former from Dowell, longer workable. is no plan tion advisor, Larry Dr. desegregation rent (discussing 242, 111 S.Ct. 498 U.S.at residen (3) report on black Zenke; court in which the order court district Dr. prepared patterns, migration tial changes made demographic ruled majority agree I cannot Mueller. “unwork- plan district’s post- a new showed this evidence however, are able”). arguments, These transformed flight” of “white trend decree school districts those assist available not school-age awith an area city into the core still neglect, or that, willfulness because thus, and, 96% black population schools sеgregated pool of large contain desegre to further impracticable made supervision, court of federal after decades (Maj. Op. at city schools. the core gate same exact are the and these shows 970). Rather, record initially identified predated flight white District’s segre- the district’s vestiges of accounted adequately and was racial high and the system, gated goals. enrollment student concentrations post-decree on mainly any independent relies argument traceable statistics changes. demographic the District’s 1990, the between showing that evidence demographic cites *28 in of white number proportional desegregation the CSA’s that to show decreased County’s public Duval Dis- because impracticable goals he should segregated some once suggest that appears to majority 19. The gs to demographic the court's in assessment of a included presents evidence a Board district, violation original constitutional this establishes within whether shift How- violation.” constitutional is "no there remedied. been has shows shift ever, demographic proof of They 12%. ask that we rule that Injunction, this Mims parties have been on decrease, suffered over a twenty seven notice that it impossible to desegregate year period, significant enough to ren- the formerly black city core der the under the CSA schools without Mims, mass busing. for the C Attachment schools impractica- F.Supp. at 130. The CSA was simply de- However, ble. the record indisputably es- signed to end busing, and instead forced tablishes the majority of this white encourage parents to volunteer to have flight had occurred the CSA was before their children bused to core city (Dist. 10). created. Op. Ct. During the by subtly either limiting parents’ choices, enforcement term of the CSA the Board by creating group highly and/or at- experienced only a 4% decrease district- city tractive core schools. The rep- in wide the number of white students.20 resents parties’ attempt in 1991 tо es- Because the Board was already aware of tablish a fair equitable standard to the majority of this flight white when it determine whether had negotiated the agreement, it seems likely been light achieved in of the current de- parties accounted for this change, mographic status of the District after the agreed to relax the black student en- implementation of the CSA desegregation figures rollment to 20%-55% at the core program. By allowing the rely Board to city elementary schools, rather than the pre-CSA on the pattern of flight white more stringent figure 21%-34% required evidence that it cannot achieve the CSA’s under the Injunction. Mims Indeed, goals, the majority allows the Board to fundamentally seems unfair to allow the escape its contractual obligations. Board now to argue that the more relaxed enrollment standards under the CSA are CONCLUSION unreachable based on this earlier larger
pattern of flight, white particularly The majority when notes that the Duval Coun- this problem is adequately ty accounted for in School Board been has embroiled in goals. litigation forty for years, one has been subject to orders from five courts, district
Rather,
view,
in my
our inquiry must be
appeared
has
multiple times
confined to
before
white flight
4%
that actu-
seeking
ally
review its
occurred
decisions.
during the term of the
view,
In its
agreement and, thus,
judicial
the time for
supervi-
was not accounted
sion
an
However,
end.
CSA’s goals.
I am
it likewise
unconvinced
that this
noting
4%
bears
district-wide
shift
could
duration
of court
any
had
real
supervision
effect on the
occurs
ability
as a
result
to desegregate
the core
board’s failure to satisfy
deseg-
970).21
(Maj. Op. at
Since the time of
regation
obligations.
I agree that Duval
20. This fact is
corroborated
ple,
Pitts,
Mueller's re-
in Freeman v.
the black student
port, showing
population
that the black
dis-
ratio increased from
5.6% 1969 to
47%
trict-wide increased from
36.5%
40.2%
See
U.S. at
who (Rule 35, Federal itof favor voted in ing Procedure; Eleventh Appellate Rules Re- 35-5), Suggestion Rule Circuit is DENIED. Banc hearing En Concurring in CARNES, Judge, Circuit Banc, in En which Rehearing Denial America, STATES UNITED MARCUS, Circuit BLACK, HULL Plaintiff-Appellee, join: Judges, v. written colleague has dissenting Our with disagreement his expressing much ARDLEY, Defendant- Barry Leon dis- and his case in this opinion panel Appellant. en of the refusal about appointment decision. panel to vacate banc 98-7033. No. much as to write temptation resist We Appeals, briefly. respond Court States United Circuit. Eleventh I. 20, 2001.
Nov. concedes, requir rule theAs dissent opening briefs raised that issues be ing Knight, Christopher Bunin, Alexander v. States United See is well-established. Organiza- Def., Fed. Defenders Pub. Fed. Cir.2001) (11th 989, 990 F.3d Ardley, 242 Defendant-Appellant. AL, Mobile, for tion, valu cases). rule serves That (collecting procedural all of the do purposes, able AL, Plain- Mobile, Kandt, A. Charles regularly why rules, we default tiff-Appellee. v. Presnell generally See them. apply (11th Cir. 1567, 1573-74 F.2d Kemp, 835 dis concern 1988). principal specific applying to be seems sent particular in this rule default procedural doc conflicts somehow context REHEARING FOR ON PETITION are decisions Court Supreme trine BANC EN on direct to cases retroactively applied be conflates concern But appeal. separate They doctrines. two