Lockett v. Bd. of Educ. of Muscogee , 92 F.3d 1092 ( 1996 )


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  •                      United States Court of Appeals,
    
                                Eleventh Circuit.
    
                                    No. 94-9355.
    
                  Jerry LOCKETT, et al., Plaintiffs-Appellants,
    
                                          v.
    
     BOARD OF EDUCATION OF MUSCOGEE COUNTY SCHOOL DISTRICT, GEORGIA,
    et al., Defendants-Appellees.
    
                                    Aug. 28, 1996.
    
    Appeal from the United States District Court for the Middle
    District of Georgia. (No. 64-991-COL), J. Robert Elliott, Judge.
    
    Before COX and BARKETT, Circuit Judges, and MOORE*, Senior District
    Judge.
    
          BARKETT, Circuit Judge:
    
          Plaintiffs-appellants       Jerry    Lockett,   et   al.,   appeal   the
    
    district court's order vacating all outstanding injunctions against
    
    the   Board    of   Education   of   Muscogee   County,    Georgia   ("school
    
    district"), and declaring that the school district had successfully
    
    eliminated all vestiges of its dual education system and had
    
    exhibited good faith in discharging its constitutional duties to
    
    desegregate its schools.
    
                                      Background
    
          Plaintiffs, African-American students attending public school
    
    in Muscogee County, commenced this class action over thirty-one
    
    years ago, seeking to enjoin the Muscogee County school board from
    
    operating a dual education system, and seeking a court-ordered
    
    reorganization of the school system. In 1965 and 1968 the district
    
    court denied Plaintiffs relief and those denials were affirmed on
    
          *
          Honorable John H. Moore II, Senior U.S. District Judge for
    the Middle District of Florida, sitting by designation.
    appeal. Lockett v. Board of Educ. of Muscogee County, 
    391 F.2d 272
    
    (5th Cir.1968);   Lockett v. Board of Educ. of Muscogee County, 
    342 F.2d 225
     (5th Cir.1965). In 1971, however, following the decisions
    
    in Green v. School Bd. of New Kent County, 
    391 U.S. 430
    , 
    88 S. Ct. 1689
    , 
    20 L. Ed. 2d 716
     (1968), and Swann v. Charlotte-Mecklenburg,
    
    
    402 U.S. 1
    , 
    91 S. Ct. 1267
    , 
    28 L. Ed. 2d 554
     (1971), this court
    
    ordered   the   school    district   to   present   and   implement   a
    
    desegregation plan consistent with the principles established in
    
    Swann, Singleton v. Jackson Mun. Sch. Dist., 
    419 F.2d 1211
     (5th
    
    Cir.1969), and Carter v. West Feliciana Parish Sch. Bd., 
    432 F.2d 875
     (5th Cir.1970).      See Lockett v. Board of Educ. of Muscogee
    
    County, 
    442 F.2d 1336
     (5th Cir.1971).     In response to this court's
    
    order, the school district submitted a plan to the district court
    
    to achieve student and faculty racial compositions proportionate to
    
    the   racial    compositions   of    their   respective    populations
    
    county-wide.    That plan reads in pertinent part:
    
       AMENDED PLAN TO DESEGREGATE THE SCHOOLS OF MUSCOGEE COUNTY,
    GEORGIA
    
               The Board of Education of Muscogee County School
          District, in continuation of its effort to unify its schools
          to eliminate every vestige of discrimination because of race
          or color of its students and to maintain a fully desegregated
          system, hereby adopts this Amended plan of Desegregation so as
          to fully comply with the law in such cases made and provided.
          The percentage of white and Negro students attending the
          school in the County are approximately 70% white and 30%
          Negro, and it is the purpose and intent of this Board to
          obtain approximate proportionate representation of each race
          in each school in the most efficient manner;
    
                       NOW, THEREFORE, BE IT RESOLVED:
    
                              STUDENT ASSIGNMENT
    
               All white students, equal in number to 70% of the
          capacity of the school to which they have been assigned,
          living nearest to said school, and all Negro students, equal
         in number to 30% of the capacity of the school to which they
         have been assigned, living nearest to said school, shall
         attend said school for the year beginning in September, 1971.
    
              All other students assigned to said school shall be
         assigned by the Superintendent and his staff to the school
         nearest to the residence of said student which does not then
         have its quota of white or Negro students as above stated.
    
              All students who have not been assigned to any school for
         the current Fall term, or who later enter the School System,
         shall be assigned by the Superintendent and his staff to the
         school nearest the residence of said student which then has
         space available and has less than its quota of white or Negro
         students, as the case may be, then assigned to said school.
    
              There shall be no transfer or assignment of any student
         during the entire school year, except in case, absent the
         consideration of race, a change is educationally called for or
         where compelling hardship or other good reason is shown by the
         student.
    
              In school years after the school year beginning in
         September, 1971, the Board of Education, prior to the end of
         such school year, shall determine the approximate percentage
         of white and Negro students attending the school in this
         District and assignment of students shall be made as above
         provided so that the approximate number of white and Negro
         students in each school shall be substantially the same as the
         percentage of white and Negro students in the entire School
         System.
    
    The approved plan included a provision which created a continuing
    
    obligation   to   make   student   assignments   in   proportion   to   the
    
    county-wide racial composition consistent with the 1971 order. The
    
    school district's proposal was approved by court order on July 14,
    
    1971 ("1971 order"), and accordingly the parties were subject to
    
    the court's supervision until such time as the district court
    
    dismissed the order.1
    
         1
          In 1972 the order was amended to exempt first grade and
    kindergarten students from the plan. The 1972 amendment also
    stated:
    
              The quota or percentage of white and Negro students in
              each school in the next school term shall be
              substantially the same as the percentage of white and
         Throughout the 1970s the school district implemented student
    
    reassignment and attendance zone adjustments in order to achieve
    
    its goal of proportionate student representation, and submitted
    
    annual reports describing its efforts and their effects on the
    
    racial composition of the schools.               By about 1973, 57 of the 64
    
    schools    had     racial     compositions      within     a   10%    range    of   the
    
    county-wide student racial composition, and an additional 5 schools
    
    fell within a 20% range of the county-wide ratio.                          The school
    
    district     maintained        relatively       constant       statistical     racial
    
    compositions within its schools up through the 1976-77 academic
    
    year.     Similarly, the racial compositions of faculty and staff
    
    within    most    of    the   schools    were    within    a    15%    range   of   the
    
    county-wide average from 1972 to 1980. The record does not contain
    
    specific    data    describing     the    relative       quality      of   facilities,
    
    transportation, or extracurricular activities throughout the 1970s
    
    and 1980s.
    
         By the end of the 1970s the school district began reducing the
    
    number of student reassignments and attendance zone adjustments.
    
    During    the    same   period   that    the    district       was    curtailing    its
    
    affirmative desegregation efforts, the demographics of the county
    
    began to shift, which resulted in a decrease in the number of white
    
    students, an increase in the number of black students, and racially
    
    
                Negro students in the entire school system at the end
                of the current school term.
    
         We find unpersuasive the school district's argument that
         under this language, the plan's proportionate representation
         requirement was not applicable to any school year after
         1972-73. Indeed, the school district itself continued to
         submit data on the racial composition within its schools
         well into the 1980s.
    polarized    residential        areas.      By    the     mid-1980s      the   racial
    
    compositions        within    many    schools      again    were        statistically
    
    disproportionate with the county-wide ratios, and indeed, by 1991
    
    a number of racially identifiable schools existed.2                     Similarly, by
    
    the   mid-1980s      the    number   of   schools    with       acceptable     faculty
    
    compositions was declining.          At no time prior to the commencement
    
    of the current proceedings did the school district attempt to
    
    dismiss or modify the 1971 order.
    
          In    1991,    Plaintiffs,      citing      the     increase      in   racially
    
    identifiable schools in the district, filed a motion seeking an
    
    injunction and an order directing the school district to take
    
    whatever action necessary to achieve proportionate representation.
    
    The   district      court    dismissed    the    motion    as    moot    because   the
    
    original class of plaintiffs were no longer students;                     however, in
    
    November of 1992, this court remanded the motion for consideration
    
    on its merits pursuant to Graves v. Walton County Bd. of Educ., 
    686 F.2d 1135
     (5th Cir., Unit B, 1982).              Lockett v. Board of Educ. of
    
    Muscogee County Sch. Dist., 
    976 F.2d 648
     (11th Cir.1992). Prior to
    
    remand, however, the school district implemented a neighborhood
    
    school plan, whereby cross-district busing would be eliminated and
    
    elementary students would be assigned to schools in their local
    
    neighborhoods, thus potentially aggravating the racial imbalances.
    
    On May 21, 1992, Plaintiffs filed a motion seeking to enjoin
    
          2
          According to the school district's expert on desegregation,
    by 1993, 23 of the 33 elementary schools, 3 of the 8 middle
    schools, and 2 of the 7 high schools were no longer within a 20%
    range of the county-wide student racial percentages. Only 15 of
    the 48 schools were within a 15% range of the county-wide racial
    percentage, whereas, 12 schools had student populations that were
    more than 90% of one race.
    implementation of the new neighborhood assignment plan during the
    
    pendency of the appeal;        however, the district court denied the
    
    motion finding no irreparable harm, relying in part on the school
    
    district's     proposal   to   institute     a    magnet    program   and    a
    
    majority-to-minority transfer program.           In 1993, Plaintiffs again
    
    moved to enjoin the district's assignment plan, and again, the
    
    court denied their motion.       Finally, on June 7, 1993, the school
    
    district moved for a final dismissal and a declaration of unitary
    
    status.
    
         On November 18, 1994, following an evidentiary hearing, the
    
    district court granted the school district's motion, finding:               (1)
    
    the school district effectively had disestablished its dual system
    
    in 1963;   (2) the school district effectively had desegregated its
    
    schools in the 1971-72 school year;          (3) the school district had
    
    maintained a high degree of racial balance in student assignments
    
    for a longer period of time than most large counties in the
    
    country;     and (4) the racial imbalance exhibited in the 1980s and
    
    1990s, and present today, resulted from demographic changes over
    
    which the school district had no control.                  Based upon these
    
    findings, the court ruled that the Muscogee County School District
    
    had satisfied its burden of showing that it had successfully
    
    eliminated the vestiges of the old dual system to the maximum
    
    extent practicable, and that the school district had exhibited a
    
    good faith commitment to the discharge of its constitutional
    
    duties.
    
                                    Discussion
    
          In 1954, the Supreme Court recognized that state-compelled
    segregation in education violates the Equal Protection Clause of
    
    the Fourteenth Amendment.                  Brown v. Board of Ed., 
    347 U.S. 483
    ,
    
    495, 
    74 S. Ct. 686
    , 692, 
    98 L. Ed. 873
     (1954) ("Brown I ").                              However,
    
    the     Court        did     not     order       the     immediate         eradication       of
    
    constitutionally violative dual school systems. Instead, the Court
    
    ordered district courts to supervise school systems that had
    
    previously practiced de jure segregation in their efforts to
    
    effectuate      the        constitutional           mandate    of    Brown     I   "with    all
    
    deliberate speed."               Brown v. Board of Ed., 
    349 U.S. 294
    , 301, 
    75 S. Ct. 753
    , 757, 
    99 L. Ed. 1083
     (1955) ("                        Brown II ").         District
    
    courts were instructed to assert jurisdiction over school systems
    
    in order to ensure compliance with the courts' remedial orders and
    
    the Constitution until such time as a district court determined
    
    that the vestiges of past discrimination had been eliminated to the
    
    maximum extent practicable.                    Swann, 402 U.S. at 15, 91 S.Ct. at
    
    1275.     To this end, a school district is obligated to comply in
    
    good faith with the entire desegregation decree throughout the life
    
    of the order, and must "take whatever [affirmative] steps might be
    
    necessary       to    convert        to    a    unitary       system      in   which    racial
    
    discrimination would be eliminated root and branch," Green, 391
    
    U.S.    at   437-38,        88     S.Ct.   at       1693-94.        The   purpose      of   such
    
    remediation,          however,        is       to     eliminate        the     vestiges      of
    
    state-compelled dual systems, and not to remedy racial imbalances
    
    unrelated to de jure segregation.                     Freeman v. Pitts, 
    503 U.S. 467
    ,
    
    494, 
    112 S. Ct. 1430
    , 1447, 
    118 L. Ed. 2d 108
     (1992).
    
            Forty-one years have passed since Brown I and Brown II, yet a
    
    number of school systems, as well as the district courts that
    retain jurisdiction over them, continue to struggle with the scope
    
    and duration of their duties under Brown II and its progeny.                    In
    
    this case the primary issue is whether Muscogee County's school
    
    district fulfilled its obligations under the district court's 1971
    
    desegregation order, and whether the district court correctly
    
    terminated its jurisdiction over the case.
    
           The school district argues, and the district court agreed,
    
    that    unitary   status   had     been    achieved   in    around    1980,   and
    
    therefore, the school district's obligations under the 1971 order
    
    terminated at that time even though unitary status was not actually
    
    declared until 1994.       The school district also contends that the
    
    district court did not err in finding that the racial imbalances
    
    that currently exist are the result of demographic shifts, and are
    
    not the vestiges of its prior dual system.
    
           Plaintiffs argue that the school district's obligation to make
    
    affirmative efforts to desegregate the school system commenced in
    
    1971 and did not end until the district court declared unitary
    
    status in 1994.      During that time, however, the school district
    
    failed to make good faith efforts to desegregate, as exemplified by
    
    the district's curtailment of desegregation programs after 1980,
    
    its refusal to implement majority-to-minority transfer programs,
    
    and    its   implementation   of    a     neighborhood     school    plan,   which
    
    increased racial imbalances.            Thus, according to Plaintiffs, the
    
    district court ignored the school district's failure to satisfy its
    
    duties under the court order between about 1980 and 1994, the year
    
    that the court actually declared unitary status.
    
           Plaintiffs also argue that the school district failed to
    proffer sufficient evidence to rebut the presumption that schools
    
    that     are    racially       identifiable      are    vestiges       of   prior
    
    unconstitutional segregation. Plaintiffs argue that in ruling that
    
    the current imbalances are due primarily to demographic shifts, the
    
    district court failed to consider the adverse actions of the school
    
    district,      including    the    curtailment   of    student   transfers     and
    
    attendance zone adjustments, the siting of schools, and the use of
    
    mobile classrooms.          Moreover, Plaintiffs claim that because the
    
    school district failed to keep statistics on the effects of these
    
    actions, Plaintiffs could not rebut the demographic data that the
    
    school district presented.
    
             Because the Muscogee County School Board did not seek a
    
    declaration of unitary status prior to the current litigation, our
    
    inquiry into whether the school district has attained unitary
    
    status    depends    upon     an   examination   of    the   school    district's
    
    desegregation       efforts    and   their   effects    from    1971   until   the
    
    present.       It is well-established that "persons subject to an
    
    injunctive order issued by a court with jurisdiction are expected
    
    to obey that decree until it is modified or reversed, even if they
    
    have proper grounds to object to the order."                   Celotex Corp. v.
    
    Edwards, --- U.S. ----, ----, 
    115 S. Ct. 1493
    , 1498, 
    131 L. Ed. 2d 403
    
    (1995).     The school district was subject to the 1971 court order
    
    until such time as the district court vacated that order by
    
    declaring that the school district had achieved unitary status and
    
    complied with the order in good faith.           Pasadena City Bd. of Ed. v.
    
    Spangler, 
    427 U.S. 424
    , 439-40, 
    96 S. Ct. 2697
    , 2706, 
    49 L. Ed. 2d 599
    
    (1976).     Thus, to the extent that the district court ignored the
    school district's actions after 1980, while the district was still
    
    subject to the 1971 order, the court erred.
    
            In determining whether a school district has complied with
    
    the constitutional mandate of Brown I and Brown II, a district
    
    court    must   examine    student   assignments,   faculty   and   staff
    
    assignments,     facilities,     extra   curricular   activities,     and
    
    transportation.    Green, 391 U.S. at 437-38, 88 S.Ct. at 1693-94;
    
    Board of Ed. of Oklahoma City Public Sch. v. Dowell, 
    498 U.S. 237
    ,
    
    250, 
    111 S. Ct. 630
    , 638, 
    112 L. Ed. 2d 715
     (1991).         More recently,
    
    courts have also considered the relative quality of education
    
    offered to black and white students.      Freeman, 503 U.S. at 492, 112
    
    S.Ct. at 1446.    Where a school district has a history of practicing
    
    segregation, substantially disproportionate racial compositions
    
    within the schools is presumed to be constitutionally violative,
    
    and the school district bears the burden of proving that the
    
    imbalances are not the result of present or past discriminatory
    
    action on its part.       Swann, 402 U.S. at 25, 91 S.Ct. at 1281.     In
    
    determining whether the school district has satisfied that burden,
    
    a district court should consider (1) whether the racial imbalances
    
    are traceable, in a proximate way, to constitutional violations,
    
    (2) whether the school district has exhibited a record of full and
    
    satisfactory compliance with the decree, and (3) "whether the
    
    school district has demonstrated, to the public and to the parents
    
    and students of the once disfavored race, its good faith commitment
    
    to the whole of the court's decree and to those provisions of the
    
    laws and the constitution that were the predicate for judicial
    
    intervention in the first place."        Freeman, 503 U.S. at 491, 112
    S.Ct. at 1446.
    
         The district court found, and the school district concedes,
    
    that student assignments in the Muscogee County schools currently
    
    are racially unbalanced.       The parties also agree that the school
    
    district previously had operated an unconstitutional dual system.
    
    Thus, the first issue on appeal is whether the district court
    
    clearly erred in ruling that the school district satisfied its
    
    burden of showing that current racial imbalances are not caused by
    
    prior unconstitutional practices, but instead, are the result of
    
    demographic shifts within the county and the student population.
    
         The district court in Freeman was presented with a factually
    
    similar inquiry. 3    In that case, the DeKalb County School System,
    
    which had previously practiced de jure segregation, voluntarily
    
    proposed a plan to desegregate its school system.                 The district
    
    court approved the proposed plan through a 1969 consent order which
    
    called for the closing of all former de jure black schools and the
    
    reassignment of students among the remaining schools.              In 1976 the
    
    district   court     ordered   the     school    system     to    expand   its
    
    majority-to-minority    student      transfer    program,   to    establish   a
    
    bi-racial committee to oversee the transfer program and boundary
    
    line changes, and to reassign faculty to achieve racial balance.
    
    In 1983, the district court again ordered an adjustment to the
    
    majority-to-minority     transfer     program.      In    1986,    the   school
    
    district filed a motion for final dismissal of the court order, and
    
    a declaration that the district had achieved unitary status.
    
    
         3
          For the facts underlying Freeman, and the district court's
    analysis, see Freeman, 503 U.S. at 474-85, 112 S.Ct. at 1437-43.
    Although the motion for dismissal was filed at a time when student
    
    racial compositions in the schools were unbalanced, the school
    
    system argued that the imbalances were due to demographic changes
    
    independent of prior unconstitutional practices.
    
           In analyzing whether the imbalances were attributable to the
    
    dual    system,    or   indeed,      whether   the   prior      de   jure   school
    
    segregation had contributed to the county's demographics, the
    
    district court focused on the interaction between the school
    
    system's policies and the demographic shifts. To determine whether
    
    the    school      district    had       "accomplished    maximum      practical
    
    desegregation," the court examined the specific steps that the
    
    school system had taken to combat the effects of demographic shifts
    
    on the racial composition of the schools, particularly noting its
    
    majority-to-minority transfer program, magnet school program, and
    
    other racially integrated scholastic programs.                  Finding that the
    
    school district's affirmative efforts to desegregate had little or
    
    no    offsetting    effect    on   the    racial   mix,   the    district    court
    
    determined that the racial imbalances resulted almost completely
    
    from the demographic shifts, and thus the imbalances were not due
    
    to the school board's actions or inaction.                      Thus, the court
    
    recognized that the impact of demographics on racial composition
    
    can only be assessed relative to the other factors contributing to
    
    the racial composition in the schools.             In affirming the district
    
    court's findings, the Supreme Court ratified the district court's
    
    approach for analyzing the causes of racial imbalance within
    
    schools.
    
           In this case, the district court found that at least for the
    first half of the 1970s the Muscogee County school district had
    
    attained acceptable statistical racial compositions within its
    
    schools.      Having   made   that   finding,    the   district    court   then
    
    determined that any later imbalances were caused, not by factors
    
    over which the school district had control, but by the demographic
    
    shifts which took place after 1980.             Consequently, the district
    
    court effectively ruled that the school district was under no
    
    obligation to make affirmative desegregation efforts after 1980.
    
    The district court apparently assumed that once a school system has
    
    achieved acceptable racial compositions within its schools, it has
    
    no ongoing obligation to try to offset later imbalances caused by
    
    circumstances over which it has no control.               The district court
    
    also assumed that demographic shifts are necessarily independent of
    
    prior unconstitutional practices.
    
          The district court, however, made some erroneous assumptions.
    
    First, a school district does not escape its obligation to make
    
    affirmative efforts to remedy racial imbalances simply because the
    
    imbalances are caused by circumstances "over which [the school
    
    district] has no control";      instead, while under court supervision
    
    the school district must make efforts to eradicate all imbalances
    
    which are traceable to prior de jure segregation.                 Freeman, 503
    
    U.S. at 491, 112 S.Ct. at 1446.          The school district bears the
    
    burden of showing that no such causal link exists, and absent such
    
    a showing, the district must continue to make affirmative efforts
    
    to   remedy   racial    imbalances    while     subject    to   court   order.
    
    Moreover, in the case of demographic shifts and their resulting
    
    racial imbalances, the Supreme Court has recognized that school
    segregation      is    a    contributing     cause    of    housing     segregation,
    
    Columbus Bd. of Ed. v. Penick, 
    443 U.S. 449
    , 465 n. 13, 
    99 S. Ct. 2941
    , 2950 n. 13, 
    61 L. Ed. 2d 666
     (1979), and thus, demographic
    
    shifts are not necessarily independent of prior unconstitutional
    
    practices.       Finally, in finding unitary status retroactively, the
    
    district     court     failed     to    examine      the    relative    quality    of
    
    facilities, transportation, and extracurricular activities that
    
    existed in the 1970s and 1980s, conditions that must be considered
    
    in conjunction with student assignments in determining unitary
    
    status.    Thus, the district court erred to the extent that it held
    
    (1) that the school district's obligations to make affirmative
    
    efforts under the 1971 order ceased upon achieving statistically
    
    acceptable racial compositions in the 1970s;                      (2) that a school
    
    system     has    no       obligation   to   remedy        imbalances    caused    by
    
    circumstances over which the school district has no control;                      (3)
    
    that demographics shifts are never caused by prior de jure school
    
    segregation;       and (4) that unitary status can be determined on
    
    student and faculty assignments alone.
    
             The proper analysis requires an examination of the various
    
    factors that may have contributed to the current racial imbalance,
    
    and   to   determine whether,           in   spite    of    the    school   system's
    
    affirmative efforts to accomplish maximum practical desegregation,
    
    the impact of demographic shifts still would have resulted in the
    
    imbalance.       Unlike the situation in Freeman, in which the DeKalb
    
    County school district had implemented desegregation programs to
    
    affirmatively combat demographic shifts, the school district in
    
    this case actually reduced the number of student reassignments and
    attendance    zone   changes   just    as   demographic     shifts   began   to
    
    adversely affect the racial composition of the schools, and did not
    
    implement new desegregation initiatives in their place.              Moreover,
    
    because of an absence of data, this court has no basis for
    
    assessing the arguably adverse impact that the school board's
    
    neighborhood assignment plan, grade structure changes, portable
    
    classrooms, and student transfers had on racial composition within
    
    the schools.     Thus, on the record presented, we have no way of
    
    assessing the impact of shifting demographics on the current racial
    
    compositions compared with other variables, including the school
    
    district's actions and inaction, which arguably exacerbated, rather
    
    than alleviated, the racial imbalances during the 1980s and 1990s.
    
    At the very least, we do not believe that the school district
    
    carried its burden of showing that current imbalances, caused by
    
    demographic    shifts     or   otherwise,    are    not    the   vestiges    of
    
    unconstitutional practices.
    
          Under the second factor in Freeman, this court must look at
    
    the degree to which the school district complied with the 1971
    
    order throughout the life of the order.            See Freeman, 503 U.S. at
    
    491, 112 S.Ct. at 1446;        see also Dowell, 498 U.S. at 249, 111
    
    S.Ct. at 637 ("[I]n deciding whether to modify or dissolve a
    
    desegregation decree, a school board's compliance with previous
    
    court orders is obviously relevant.").              The terms of the 1971
    
    order, which the school district itself drafted, obligated the
    
    school   district    to   annually    determine    the    county-wide   racial
    
    composition of the students within the district, and to reassign
    
    students so that the racial composition within the schools would be
    substantially the same as the composition county-wide.                          Moreover,
    
    the explicit purpose of the order was to eliminate every vestige of
    
    discrimination         and   to    maintain      a    fully     desegregated     system.
    
    Although a school district is not constitutionally required to
    
    exhibit    a     particular       racial   mix       at   all    times,    or    to   make
    
    year-by-year adjustments, Swann, 402 U.S. at 24, 32, 91 S.Ct. at
    
    1280, 1284, a school district must make affirmative efforts to
    
    comply with the desegregation decree until a district court has
    
    declared that unitary status has been achieved.
    
         The record in this case shows that the Muscogee County school
    
    district did make annual student reassignments and attendance zone
    
    adjustments for most of the 1970s.                   The statistical data cited in
    
    the district court's order indicates that for at least six years
    
    the district maintained racial compositions within the schools
    
    proportionate to the racial composition of the county's entire
    
    student population.          Thus, the record supports a finding that the
    
    school district complied with the court order with respect to
    
    student and faculty assignments throughout the 1970s. However, the
    
    school district did not request a declaration of unitary status
    
    until 1993, and therefore, it had a continuing obligation to abide
    
    by the order until such time as the district court modified or
    
    vacated the order.           The record reflects, and the district court
    
    found,    that    by    1980      the   school       district    stopped    making    the
    
    adjustments it had made in the 1970s, and that the curtailment of
    
    desegregation efforts may have contributed to the subsequent racial
    
    imbalances.        In    addition,       the   school      district    implemented      a
    
    neighborhood assignment plan, which required elementary students to
    attend local neighborhood schools and eliminated cross-district
    
    busing.    Not only did the neighborhood plan have the potential to
    
    exacerbate segregation, it directly contravened the clear mandate
    
    of the order.   Thus, the record suggests that although the school
    
    district initially complied with the 1971 order, in about 1980 the
    
    district    unilaterally   decided   that   it   had    satisfied   its
    
    obligations, and based upon that decision, it essentially ignored
    
    the desegregation decree for the last fourteen years that it was
    
    under the court's supervision.
    
         Under the third factor in Freeman, before divesting itself of
    
    jurisdiction, a district court must determine whether the school
    
    district has complied in good faith with the desegregation decree
    
    since it was entered and with the constitutional principles it
    
    embraces.    Freeman, 503 U.S. at 497, 112 S.Ct. at 1449.     The good
    
    faith requirement assures parents, students, and the public that
    
    they will be protected against further injuries or stigma, id., by
    
    making "it unlikely that the school district would return to its
    
    former ways," Dowell, 498 U.S. at 247, 111 S.Ct. at 636-37;         see
    
    also Morgan v. Nucci, 
    831 F.2d 313
    , 321 (1st Cir.1987) ("a finding
    
    of good faith ... reduces the possibility that a school system's
    
    compliance with court orders is but a temporary constitutional
    
    ritual"). In addition, if the school district has demonstrated its
    
    good faith, "[t]he causal link between current conditions and the
    
    prior violation is even more attenuated."        Freeman, 503 U.S. at
    
    496, 497, 112 S.Ct. at 1448, 1449.    When a school district has not
    
    demonstrated good faith under a plan to remedy violations, the
    
    Supreme Court has approved ongoing supervision.        Id.
             As noted above, after the school district had achieved
    
    proportionate representation for a number of years, it essentially
    
    stopped reassigning students and rezoning—activities that ensure
    
    racial    balance.   Moreover,   the   district   never   implemented   a
    
    majority-to-minority transfer program, a tool basic to "every"
    
    desegregation program, Swann, 402 U.S. at 26, 91 S.Ct. at 1281.
    
    Indeed, through its neighborhood assignment plan, the district
    
    affirmatively increased racial imbalances.        Finally, "[i]t is for
    
    the court of first instance to determine the question of the
    
    validity of the law, and until its decision is reversed for error
    
    by orderly review, either by itself or by a higher court, its
    
    orders based on its decision are to be respected, and disobedience
    
    of them is contempt of its lawful authority, to be punished."
    
    Spangler, 427 U.S. at 439, 96 S.Ct. at 2706 (quoting           Howat v.
    
    Kansas, 
    258 U.S. 181
    , 190, 
    42 S. Ct. 277
    , 281, 
    66 L. Ed. 550
     (1922)).
    
    Although the school district could have sought modification or
    
    termination of the order at any time, it had no authority to decide
    
    unilaterally that it had achieved unitary status and had complied
    
    with the 1971 order in good faith.      Because the district did not
    
    seek termination of the order through the proper judicial channels,
    
    prior to 1993 the district court never got the opportunity to
    
    contemporaneously review all of the other factors which indicate
    
    the achievement of unitary status. Given the district's failure to
    
    abide by its obligation to make affirmative efforts to desegregate
    
    through much of the 1980s and 1990s, and its disregard for the
    
    judicial decree, we believe the school district did not exhibit
    
    good faith for the last ten to fifteen years that it was subject to
    the 1971 order.
    
          In summary, the school district failed (1) to meet its burden
    
    of   showing   current   imbalances    are    not    vestiges   of    its    prior
    
    unconstitutional practices, (2) to comply with the 1971 order
    
    throughout the 1980s and 1990s, and (3) to evince a good faith
    
    commitment to the court's order and the principles established in
    
    Brown. In light of these deficiencies, it is not clear whether the
    
    school    board's    actions   after   1980    exacerbated,      rather      than
    
    alleviated, school segregation in Muscogee County at a time when
    
    the district was still subject to court order.             Therefore, we hold
    
    that the district court erred in divesting itself of jurisdiction.
    
    Accordingly, the district court must retain jurisdiction in order
    
    to monitor the progress of the school district's desegregation
    
    efforts until such time as a reliable body of data exists to assure
    
    the district court that the school district has desegregated its
    
    schools to the maximum extent practicable.                In particular, the
    
    district court should assess the school district's efforts in, and
    
    commitment     to,   combating    imbalances        by   evaluating    its     new
    
    majority-to-minority transfer program, magnet school program, and
    
    any other programs that can be implemented in order to ensure
    
    long-term desegregation.4        The school district also should begin
    
    compiling statistics comparing the quality of the education between
    
    
          4
          In both its order denying Plaintiffs' 1991 motion to enjoin
    the neighborhood assignment plan and its order vacating
    jurisdiction, the district court relied upon the school board's
    promises to implement an effective majority-to-minority transfer
    program and a magnet school program. However, this court does
    not have any information regarding the scope of those programs,
    and whether they are having any appreciable effect on school
    desegregation efforts.
    those schools with a majority of white students and those schools
    
    with a majority of black students so that upon the district court's
    
    review of the school system's compliance with its desegregation
    
    decree, quality of education can be assessed along with student
    
    assignments.    See generally Freeman, 503 U.S. at 492, 112 S.Ct. at
    
    1446 (It is an appropriate exercise of discretion to address not
    
    only the elements of a unitary system discussed in Green, but to
    
    "inquire whether other elements ought to be identified, and to
    
    determine whether minority students were being disadvantage in ways
    
    that required the formulation of new and further remedies to insure
    
    full compliance with the court's decree.").
    
         Because the parties and the district court agree that unitary
    
    status   has   been   achieved   with   respect    to    faculty   and   staff
    
    assignments,    facilities,      transportation,        and   extracurricular
    
    activities,    the    district   court's   order    divesting      itself   of
    
    jurisdiction over these matters is affirmed.
    
         Accordingly, the judgment of the district court is affirmed in
    
    part, reversed in part, and remanded for the district court to
    
    retain jurisdiction consistent with the principles discussed above.
    
         AFFIRMED in part;     REVERSED in part;       and REMANDED.
    

Document Info

DocketNumber: 94-9355

Citation Numbers: 92 F.3d 1092

Filed Date: 8/28/1996

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (18)

Howat v. Kansas , 258 U.S. 181 ( 1922 )

Brown v. Board of Education , 347 U.S. 483 ( 1954 )

Brown v. Board of Education , 349 U.S. 294 ( 1955 )

Green v. County School Board , 391 U.S. 430 ( 1968 )

Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U.S. 1 ( 1971 )

Pasadena City Bd. of Ed. v. Spangler , 427 U.S. 424 ( 1976 )

Columbus Bd. of Ed. v. Penick , 443 U.S. 449 ( 1979 )

Board of Ed. of Oklahoma City Public Schools v. Dowell , 498 U.S. 237 ( 1991 )

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

Celotex Corp. v. Edwards , 514 U.S. 300 ( 1995 )

jerry-l-lockett-gwendolyn-lockett-and-jim-h-lockett-jr-minors-by , 342 F.2d 225 ( 1965 )

Jerry L. Lockett v. Board of Education, Muscogee County ... , 391 F.2d 272 ( 1968 )

9-fair-emplpraccas-1122-7-empl-prac-dec-p-9412-derek-jerome , 419 F.2d 1211 ( 1970 )

9 Fair empl.prac.cas. 1146, 2 Empl. Prac. Dec. P 10,285 ... , 432 F.2d 875 ( 1970 )

Jerry Lockett v. Board of Education of Muscogee County , 442 F.2d 1336 ( 1971 )

Anson Graves v. Walton County Board of Education, Cross-... , 686 F.2d 1135 ( 1982 )

tallulah-morgan-v-john-a-nucci-tallulah-morgan-v-john-a-nucci-two , 831 F.2d 313 ( 1987 )

Jerry L. Lockett v. Board of Education of Muscogee County ... , 976 F.2d 648 ( 1992 )

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