NAACP, Jacksonville Branch v. Duval County School

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ NOVEMBER 19, 2001
THOMAS K. KAHN
No. 99-12049 CLERK
________________________

D.C. Docket No. 85-00316 CIV-J-10C

NAACP, JACKSONVILLE BRANCH,
Plaintiff-Appellant,

versus

DUVAL COUNTY SCHOOL,
Defendant-Appellee.

__________________________

Appeal from the United States District Court for the
Middle District of Florida
_________________________

(November 19, 2001)

Before BARKETT, HILL and KRAVITCH, Circuit Judges.

HILL, Circuit Judge:
 Forty-one years ago, this litigation began. The original complaint sought the

desegregation of the Duval County, Florida school system. Five district court

judges have presided over the case since its inception, and, four times, two

different circuit courts of appeals have been asked to review one of their

decisions.1 In this fifth appeal, we must decide whether the present district court

correctly determined that this litigation should come to an end because the school

system has achieved unitary status. We agree with the district court that the

answer is “yes.”

I.

The original complaint in this case was filed on December 6, 1960. See

Braxton v. Bd. of Pub. Inst. of Duval County.2 It sought an injunctive order

desegregating the Duval County public schools. In 1963, after a finding that the

county was operating a de jure dual school system, in which black and white

children were required to attend separate schools, the district court began

supervising the desegregation of the county’s schools.

In 1971, after the Supreme Court held that mandatory busing of students to

eliminate racial disparities was a permissible, and sometimes necessary,

1
The appeals filed prior to 1981 were heard by the Court of Appeals for the Fifth Circuit.
After the split in 1981, the appeals have been heard by this court.
2
For a variety of reasons, the case name has changed over time.

2
desegregation remedy, Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1,

22 (1971), the district court ordered the Duval County School Board (the “Board”)

to implement the mandatory reassignment of students. Mims v. Duval County Sch.

Bd., 329 F. Supp. 123 (M.D. Fla. 1971). Elementary and junior high schools were

clustered into groups which were converted to grade centers to produce student

bodies with 21% to 34% black students. Id. at 134-35. Students were bussed

within each cluster to achieve the mandated racial balance. Id. at 130-31.

The judgment was affirmed on appeal, 447 F.2d 1330 (5th Cir. 1971) and, as

amended from time to time, primarily to accommodate the opening of new schools,

the decree governed the parties for the remainder of the 1970's and well into the

1980's.3

During the pendency of the Mims injunction over the next 19 years, every

school in the entire school district, which previously had been all-black or all-

white, had substantial numbers of students of the other race in attendance for one

or more years. By 1989, only 18 of the 142 schools operating in Duval County

3
In 1986, the district court dissolved the Mims injunction because it found that the Duval
County school system had achieved unitary status. On appeal, we found no fault with the district
court’s finding of unitary status with respect to the areas of extra-curricular activities and
transportation, but that further efforts were necessary in administrative staff, teacher and student
assignments. Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F.2d 945 (11th Cir. 1989).

3
were identifiably black.4

By 1990, however, both plaintiffs and the Board had come to the conclusion

that mandatory busing was particularly onerous to the students of Duval County

and not in their best interests.5 After almost thirty years of litigation, the parties

entered into settlement negotiations. They agreed that mass busing should come to

an end. They also agreed that future desegregative efforts by the Board should

focus almost entirely upon the elementary schools.6 Finally, they agreed that they

wished to measure the Board’s success in achieving unitary status by the goals

outlined in the “Stipulation and Agreement,” filed on June 18, 1990.7 After some

technical corrections and refinements, the “Corrected Stipulation and Agreement”

(the “CSA”) was established as the defining document outlining the goals that the

4
By agreement of the parties, an identifiably black school has a student body over 75% black.

5
Duval County operates one of the largest school districts in the nation, consisting of 851
square miles, a geographic region representing two-thirds the size of Rhode Island. Additionally,
the county is separated by a large river and several smaller rivers causing some sections of the city
to be isolated from other parts. The transporting of students over the rivers and the sheer size of the
county significantly increase the difficulty of busing in Duval County.
6
A majority of the middle and high schools were already in compliance with the student
enrollment goals the CSA would establish and there were more racially identifiable elementary
schools.
7
While none of these mutual goals was expressly stated in the Agreement, we agree with the
district court’s finding that all are clearly implicit in it, and were also expressed explicitly in the
Pretrial Statement filed by the parties prior to the hearing on unitary status, the arguments of counsel
and the evidence presented at the hearing.

4
Duval County School Board (the “Board”) must achieve in order to attain unitary

status.8

The CSA, thus, represents a roadmap to the end of judicial supervision of the

Duval County school system. Its 33 paragraphs contain a series of steps which the

Board agreed to undertake to achieve unitary status for the school district.9 Most

of these steps are addressed to attaining greater racial balance in student enrollment

in the county’s schools, especially its elementary schools.

“Attachment C” to the CSA lists 28 elementary schools that the parties

expected to become identifiably black with the end of the Mims injunction’s

mandatory student assignment and bussing. Prior to the injunction, thirteen of

8
This appeal seeks a determination that the goals of the CSA have not been met.
9
The CSA is 25 pages in total length, including attachments, containing 33 paragraphs
roughly divided as follows: (a) paragraphs 1-10 incorporate the broad goals, purposes, and time
frame informing the intent of the parties in the CSA implementation process; (b) paragraphs 11-17
address requirements pertaining to Attachment C schools (identifiably black elementary schools);
(c) paragraphs 18-19 address requirements pertaining to Attachment D schools (identifiably white
elementary schools); (d) paragraph 20 addresses requirements pertaining to Attachment E schools
(naturally integrated schools based on integrated housing patterns); (e) paragraphs 21-22 contain
additional requirements pertaining specific middle schools; (f) paragraph 23 contains additional
requirements pertaining to specific high schools; (g) paragraph 24 addresses issues surrounding new
school site selection and construction and requires the formation of a facilities committee consisting
of representatives of both parties and members of the community; (h) paragraph 25 requires the
development of detailed plans to achieve non-discriminatory operational procedures; (i) paragraphs
26-27 require the attainment of faculty and staff hiring goals as set forth by the Mims injunction; (j)
paragraph 28 requires the Board to take steps to increased black student and faculty representation
in the gifted program; (k) paragraph 29 requires a re-evaluation of black students classified as
mentally retarded; (l) paragraphs 30-33 establish the Board’s affirmative obligation to desegregate
“to the maximum extent practicable” and that unitary status shall not be achieved until the Board
maintains three years of racial equality in all areas of school operation.

5
these schools had been all-white; fifteen had been all-black. During the years of

mandatory student assignment, all the Attachment C schools were attended by

students of both races. After mandatory student assignment was replaced with the

CSA’s “local attendance zones,” these schools became identifiably black because

their attendance zones had become 96% black.10 The parties, therefore, directed

much of the CSA to improving the racial balance at these schools.11

The CSA established “a desegregative goal of at least 20% black students

and 45% white students”12 at these Attachment C elementary schools.13 The Board

was required, with community input, to implement and aggressively promote

magnet programs14 as incentives to attract white students to these schools. In

10
A declining white student population during the Mims years caused the elementary schools
that had formerly been operated solely for white students under state-mandated segregation to
become identifiably black schools. See discussion in section III. B. infra.
11
One school originally listed in Attachment C, is not included in this discussion because it
is located at the beach in a zone that Attachment C was not supposed to include.
12
The NAACP’s expert witness testified that, in practice, this formulation means a black
student enrollment of 20% to 55%. Some schools at the outer geographic areas of the county – the
beaches and the far west – were given a goal of within +/- 10% of the zone-wide racial composition
at its grade organization level.
13
The district court found that the CSA requires only the elementary schools listed in
Attachment C to achieve these numerical goals because they applied only to schools in Zones I-V,
which include only elementary schools. The NAACP argues that these goals apply to all schools
in the district. The issue is really of no moment since both the district court and the Board have used
these benchmarks to measure the racial enrollment effects of the middle and high school magnet
programs.
14
“Magnet schools, as generally understood, are public schools designed to promote
integration by voluntarily drawing students away from their neighborhoods and private schools

6
addition, the CSA required the Board to permit majority to minority transfers in

order to improve the racial balance at these schools.15 The Board was also required

to commit $60,000,000 for the “renovation, substantial rehabilitation, or

replacement of core city schools.”

With respect to middle and high schools, the CSA specifically designated

three middle and four high schools, which, based on their attendance areas, were

expected to remain or become racially identifiable and directed that they operate

magnet programs to attract other-race students.

The CSA also set goals with respect to achieving racial equality in faculty

and staff hiring and placement; transportation; extracurricular activities; and

facilities and capital expenditures.

On July 14, 1990, the district court approved and adopted the CSA. It

retained jurisdiction to monitor its implementation and to enforce it.

The CSA was implemented during the 1991-92 school year.16 In 1996, the

through distinctive curricula and high quality.” Missouri v. Jenkins, 515 U.S. 40 n.6 (1995).
Under the CSA, the Board was required to establish and maintain magnet programs at “racially
identifiable” elementary schools and at several middle and high schools.
15
The CSA required the Board to “intensively recruit” white and black students to attend
opposite race schools and to provide transportation “at no cost” for these students to attend such
schools.
16
Within a year, the NAACP filed a motion to modify the CSA. Among other requests, it
urged the court to require the Board to implement a system of “controlled choice” as an additional
desegregative technique. The district court denied the motion, Jacksonville Branch, NAACP v.

7
Board moved the district court to declare that the Duval County school district had

met the constitutional requirements for unitary status as set forth by the Supreme

Court in Bd. of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237 (1991),

Freeman v. Pitts, 503 U.S. 467(1992), and Missouri v. Jenkins, 515 U.S. 33

(1995), and also that it had fulfilled its contractual obligations under the CSA.

After a three-week evidentiary hearing in 1997, and over a year for the preparation

of briefs, the case was orally argued on August 24, 1998. In a 140 page opinion

that exhaustively catalogued every paragraph of the CSA and carefully evaluated

the record evidence of the Board’s efforts and success in achieving each

paragraph’s stated goal, the district court found that the Board had acted in

exceptional good faith in its efforts to comply with the CSA and that it had

substantially achieved its goals. The court also held that the Board had fulfilled its

constitutional obligation to eliminate the vestiges of de jure segregation and to

desegregate Duval County’s schools in good faith and to the extent practicable.

Accordingly, the district court declared that the school district was unitary in all

respects, vacated all prior injunctions, and dismissed the case. This appeal

followed.

Duval County Sch. Bd., 978 F.2d 1574 (11th Cir. 1992), and, on appeal, we found no error in the
denial as to most of the issues raised, including the refusal to modify the CSA by ordering a
“controlled choice” student enrollment program. On two issues, we remanded for a development
of the record.

8
 We review the district court’s conclusion that Duval County has achieved

unitary status for clear error. Manning v. Sch. Bd. of Hillsborough County, 244

F.3d 927, 940 (11th Cir. 2001) petition for cert. filed, 69 U.S.L.W. 3792 (U.S. June

14, 2001) (No. 00-1871) (unitary status is a finding of fact); Lockett v. Bd. of Educ.

of Muscogee County, 111 F.3d 839, 841-42 (11th Cir. 1997) (Lockett II). Under

this standard of review, a district court’s findings are entitled to substantial

deference. “Where there are two permissible views of the evidence, the [district

court]’s choice between them cannot be clearly erroneous.” Manning, 244 F.3d at

940 (quoting Lockett II, 111 F.3d at 842) (internal quotation and citation omitted)).

Moreover, only in circumstances when “a district court applies an incorrect legal

standard which taints or infects its findings of facts, [do] such findings lose the

insulation of Rule 52(a) and judgment based thereon cannot stand.” Id. at 940-41

(internal quotations and citations omitted). We review the district court’s

interpretation and application of the law de novo. Id.

II.

School boards that formerly operated a dual school system, in which black

students attended one set of schools and white students another, have been “clearly

charged with the affirmative duty to take whatever steps might be necessary to

convert to a unitary system in which racial discrimination would be eliminated root

9
and branch.” Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 437-38

(1968) (emphasis added). A unitary system is one in which there is presently no de

jure racial segregation, and the vestiges of former de jure segregation have been

eliminated to the extent practicable. Freeman, 503 U.S. at 494 (“If the unlawful de

jure policy of a school system has been the cause of the racial imbalance in student

attendance, that condition must be remedied”). Until these goals are achieved, the

Supreme Court has ordered district courts to supervise the desegregative efforts of

school boards that formerly practiced de jure segregation. Lockett II , 111 F.3d at

842 (citing Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955)).

To be entitled to the end of federal court supervision, a formerly dual school

system must be able to prove that it has (1) complied in good faith with the

desegregation decree, and (2) eliminated the vestiges of prior de jure segregation to

the extent practicable. Jenkins, 515 U.S. at 88 (quoting Freeman, 503 U.S. at 492).

See also Manning, 244 F.3d at 942; Lockett II, 111 F.3d at 843. In this case, the

parties and the district court have agreed that the CSA defines the specific goals the

Board must meet and the steps it must take in order to attain unitary status. “For

enforcement purposes, consent agreements are interpreted under the principles of

contract law . . . . [T]he obligations required of each party to a consent decree must

be found ‘within its four corners, and not by reference to what might satisfy the

10
purposes of one of the parties to it.” Jacksonville Branch, NAACP v. Duval County

Sch. Bd., 978 F.2d 1574, 1578 (11th Cir. 1992) (citations omitted).

The Board, of course, must also meet its constitutional obligation to

eliminate the vestiges of de jure segregation to the extent practicable. In

evaluating the Board’s fulfillment of this obligation, the district court must

examine six areas: (1) student assignments; (2) facilities; (3) faculty; (4) staff; (5)

transportation; and (6) extracurricular activities. Green, 391 U.S. at 435.17 Since

the Board operated de jure segregated schools in the past, there is a presumption

that any current racial disparities in these areas are the result of its past unlawful

conduct. Keyes v. School Dist. No. 1, 413 U.S. 189, 208-09 (1973). The Board

“bears the burden of showing that any current imbalance [in these areas] is not

traceable, in a proximate way, to the prior violation.” Freeman, 503 U.S. at 493.

See also Lockett II, 111 F.3d at 843 (district court must presume that substantially

disproportionate racial compositions within the schools is constitutionally

violative) (citing Swann, 402 U.S. at 25).

This presumption may, however, be overcome. The Supreme Court has

recognized that some racial imbalances in our schools today are caused by external

17
The parties have established a very detailed set of specific requirements in the CSA’s
thirty-three paragraphs. The district court carefully analyzed the Board’s achievement of each of
these requirements. See section III infra.

11
forces, such as demographic shifts, which are not the result of segregation and

which are beyond a school board’s control. See Jenkins, 515 U.S. at 102;

Pasadena City Bd. of Ed. v. Spangler, 427 U.S. 424,434 (1976); Swann, 402 U.S.

at 22. If a school board can prove that such factors have substantially caused

current racial imbalances in its schools, it overcomes the presumption that

segregative intent is the cause, and there is no constitutional violation. Id. See also

Manning, 244 F.3d at 944; Lockett II, 111 F.3d at 843.

Where there is no constitutional violation, a school board is under no duty to

remedy racial imbalances. Id. The Supreme Court has made clear that:

Racial balance is not to be achieved for its own sake. It is to be
pursued when racial imbalance has been caused by a constitutional
violation. Once the racial imbalance due to the de jure violation has
been remedied, the school district is under no duty to remedy
imbalance that is caused by demographic factors.

Freeman, 503 U.S. at 494. See also Manning, 244 F.3d at 941.

Furthermore, even when remedying the effects of de jure segregation, the

Constitution does not require rigid racial ratios. “The purpose of federal

supervision is not to maintain a desired racial mix at a school.” Manning, 244

F.3d at 941 (citing Pasadena, 427 U.S. at 434-37 and Freeman, 503 U.S. at 494).

“The constitutional command to desegregate schools does not mean that every

school in every community must always reflect the racial composition of the

12
school system as a whole.” Swann, 402 U.S. at 23-24. Such a goal would require

federal supervision in perpetuity. On the contrary, a complete return to local

control of school systems is the ultimate goal of all judicial supervision because

“[f]rom the very first, federal supervision of local school systems was intended as a

temporary measure to remedy past discrimination,” and desegregation decrees “are

not intended to operate in perpetuity.” Dowell, 498 U.S. at 247-48. See also

Manning, 244 F.3d at 942 n.25.

We turn now to our review of the district court’s determination that the time

has come to return control over its school system back to Duval County.

III.

A. The Green factors: Faculty and staff hiring and placement; transportation;
extracurricular activities; facilities and capital expenditures.

It is undisputed that the Board aggressively recruited black faculty and staff

and has achieved the CSA’s goal of a 70% to 30% faculty racial composition

system-wide.18 Nor is it disputed that the Board provided transportation in a non-

discriminatory fashion or that it transported students to magnet programs far from

their homes at no cost to them. The evidence also supports the district court’s

18
The NAACP contends only that the Board has not been in substantial compliance for at
least three years as required by the CSA. The district court specifically found that the Board had
been in compliance since the 1995-96 school year and the NAACP presented no evidence to the
contrary. Therefore, this finding is not clearly erroneous.

13
finding that the Board made all extra-curricular activities available to all students

throughout the county without regard to race.19 Finally, the district court found

that it is “beyond dispute” that the Board has substantially complied with all of the

requirements contained in the CSA with respect to facilities improvements and

repairs, spending over $60,000,000 to modify and improve existing schools, most

of which were located in inner-city areas. Thus, we conclude that there is no clear

error in the district court’s finding that the Board has achieved unitary status with

respect to five of the six Green factors.

B. Student Assignment

With respect to student assignment, it is undisputed that the Board

implemented a voluntary school choice plan, terminated mass busing, and

designated 71 schools as magnet schools, all as the CSA required. The district

court also found that the Board allocated appropriate funding for the operation and

improvement of its magnet programs. It operated a separate office with staff

dedicated to achieving the CSA goals, including magnet program development and

recruitment. The Board has also engaged in substantial and continuing efforts to

recruit white students to its racially identifiable black elementary schools, each of

19
Since participation in extra-curricular activities is voluntary, the law does not require, nor
does the CSA establish, racial balance goals for this Green factor. Eliminating racial distinctions
is required, however, and the district court correctly found that the evidence is that this has been
done.

14
which has a magnet program. The district conducts a “Magnet Mania” recruitment

fair, distributes a catalogue to parents, maintains a telephone hotline, and directly

recruits parents to encourage magnet enrollment of their children.

Furthermore, while not contractually obligated to, the Board did use several

other methods to increase racial balance at certain schools, including capping

enrollment,20 majority to minority transfer programs,21 attendance boundaries22 and

limits on curriculum offerings at certain schools.23

The evidence at trial was that the Board’s efforts have substantially achieved

20
The Board did cap white enrollment at three schools, one of which was identifiably white.
Those students who were “capped out” were encouraged to attend magnet programs at one of the
preferred option schools. The Board provided free transportation to those students who did so.
21
The Board has used a majority to minority transfer program to assist in desegregating
naturally integrated, identifiably black, and identifiably white schools. Free transportation has been
provided to transferring students. The evidence was that requests for transfers within the elementary
system are denied if they are counterproductive to the Board’s desegregative efforts. In 1996, the
Board mailed transfer letters to more than 36,000 parents, resulting in only 332 transfer requests.
The Board contends that these low numbers demonstrate that students attending racially identifiable
schools are doing do because it is their parents’ preference.
22
The Board changed the attendance boundaries for one high school in order to increase
black enrollement and that school has been in compliance with the CSA goals since that time. No
changes were made in the attendance boundaries of the racially identifiable elementary schools,
however, because the evidence was that such changes would have made little difference in the racial
composition of these schools since most of them are in the overwhelmingly black core city.
23
The Board did not, however, limit the curricular offerings at any of the racially identifiable
elementary schools because it believed it necessary to provide each student at every elementary
school with a complete curriculum. In the Board’s view, limiting the curriculum at an elementary
school, even in order to foster movement of students out of racially identifiable schools, was not
consistent with the goals of the CSA or sound educational policy. Instead, the Board sought to
encourage student movement by enhancing the curricular offerings at various racially identifiable
schools through the magnet programs.

15
the CSA’s student enrollment goals. In 1991-92, the first year under the CSA, 65

of the 139 elementary, middle and high schools met its goal of a student population

that was more than 20% but less than 55% black. By the 1996-97 school year (the

year application was made for unitary status), 88 of 138 schools, or 64% of the

district’s schools, were in compliance with the CSA’s student enrollment goals.

One year later, in 1997-98, the number of schools in compliance rose again, to 91

out of 140, or 65%.

At the elementary school level, the compliance rate went from 42% (42 of

100) at the inception of the CSA (1991-92 school year), to 60% (60 of 100) in

1997-98. Middle schools went from 59% compliance in 1991-92 (13 of 22), to

77% compliance in 1997-98 (17 of 22). High schools were 59% compliant in

1991-92 (10 of 17) and 76% (13 of 17) compliant in 1997-98.24

Despite this overall substantial compliance with the CSA’s enrollment goals,

there are 26 identifiably black schools in Duval County. The following table

illustrates this fact.

24
Highly successful academic magnet programs have succeeded in transforming three of the
racially identifiable middle schools and two of the racially identifiable high schools into schools
with diverse student bodies. Two middle and two high schools in the core city, however, remain
identifiably black. The magnet programs at these schools have been modified in a continuing effort
to recruit minority students.

16
 SCHOOL YEAR TOTAL STUDENT BLACK WHITE TOTAL SCHOOLS

POPULATION STUDENTS STUDENTS SCHOOLS EXCEEDING 75%

BLACK

STUDENTS

1969-70 121,667 28% 72% 135 29 (21%)
1990-91 111,146 37% 63% 139 21 (15%)
1996-97 125,971 40% 60% 141 30 (21%)
1998-99 122,743 41% 59% 144 26 (18%)

Two things are clear from this table. First, the Mims injunction was

successful in eliminating the vestiges of de jure discrimination. Under its

mandatory student assignment orders, all students were assigned to schools based

upon racial balance goals and then large numbers were bussed to achieve those

goals. During this time, the number of racially identifiable schools in the system

was significantly reduced. As the table shows, from 1971 to 1991, the number of

schools with 75% or more black students went from 21% to 15%.

As we observed earlier, the evidence at trial was that all the racially

identifiable Attachment C elementary schools in the core city were attended by

students of both races during those years. All but two of the fifteen schools

formerly operated solely for black students reached what later became the CSA

racial balance goals for at least a three-year period before the implementation of

17
the CSA.25 The Board had broken the pattern of all-black enrollment at the schools

it formerly operated solely for black students during de jure segregation, and had

successfully eliminated the vestiges of de jure segregation in all the Attachment C

schools.26

25
These were the elementary schools identified in the Mims injunction as the “vestiges of de
jure segregation.” The dissent incorrectly implies that these schools “remained” racially identifiable
throughout the entire period of federal court supervision. The dissent also incorrectly maintains that
the neighborhoods in which these schools are located are now, and have always been, over 90%
black, when the record evidence is that these neighborhoods once supported 13 all-white elementary
schools and only became over 90% black with the white flight that was precipitated by mass
bussing.
26
In the final analysis, the dissent gives no weight at all to the “root and branch” destruction
of de jure segregation which occurred with the massive bussing under the Mims injunction, not
because it didn’t occur soon enough, but because it occurred too soon to count! In rejecting all pre-
CSA events as irrelevant to the issue of unitary status, the dissent ignores the first thirty years of
federal supervision of the Duval County school system. During these years, the Board ended de jure
segregation and instituted mass bussing to eliminate the vestiges of that de jure segregation. Then,
having broken the link to the past, the Board began the final phase of its decades-long desegregative
effort by entering into the CSA, a contract which expressly recognized the demographic shifts in the
student population and which established an aggressive magnet program, as well as other steps,
designed to ameliorate the resulting racial imbalances. The Board’s efforts under the CSA have
resulted in a 65% compliance rate with its racial enrollment goals. Ignoring this context, and
pretending that the Board’s success in eliminating the vestiges of de jure segregation does not count
if it occurred before 1991, is the only premise upon which the dissent can build a case that “the
Board did not eliminate the vestiges of segregation at its formerly de jure black schools during the
CSA enforcement term.” (This may be the first time that a school district has been judicially
chastised for achieving too much, too soon!)
But this is not the law. The Supreme Court has made clear that, once the vestiges of de jure
segregation have been eliminated, as they were in Duval County under the Mims injunction, any re-
emergence of racially identifiable schools resulting from demographic changes (over which the
Board, of course, has no control) cannot be attributed to the Board’s former de jure segregative
policies. Freeman, 503 U.S. at 494. Nor does the Board have any constitutional obligation to
combat these factors. Id. On the issue of whether the Board has met its contractual obligation to
ameliorate the impact of these demographic shifts, the district court’s catalogue of findings of fact
attesting to the Board’s good faith and often extraordinary efforts in achieving a 65% compliance
rate with the CSA’s racial enrollment goals overwhelmingly support our conclusion that it has.

18
 Then, immediately upon the establishment of the CSA’s local attendance

zones, the number of racially identifiable schools, as the parties had expected,

rebounded to 21%.27 Although the percentage of racially identifiable schools has

now declined to 18%, the Board acknowledges that under the CSA, the school

district has experienced an increase in the total number of racially identifiable

schools. It denies, however, that this is the result of any resegregative policies,

either intended or unintended.

The Board points out that 19 of the 26 racially identifiable schools in

operation today28 are the Attachment C elementary schools located in the core

city.29 Testimony presented at trial persuasively demonstrated that their racial

identity has been substantially caused by the decline in the number of white

students in these schools.30

The table graphically illustrates this decline. With the advent in 1971 of

mass bussing, substantial numbers of white students began to leave the public

27
It should be noted, however, that the overwhelming majority of the schools in the system
remained in a desegregated status.
28
The most recent data is for the 1997-98 school year.
29
With respect to all elementary schools, however, there has been a decline in racially
identifiable schools. In the 1991-92 school year, 25 elementary schools had a black population in
excess of 75%. By the 1997-98 school year, only these19 were left.
30
The NAACP has not disputed the district court’s findings of fact concerning the “white
flight” that preceded the CSA, nor the statistical data underlying them.

19
school system. In 1969, the Duval County public school student population was

72% white. By 1998, only 59% of that population was white.31 As a result, the

percentage of black students went from 28% to 40%. The Board’s racial

enrollment statistics demonstrate that much of the decline in the white student

population occurred in the schools of the core city, ultimately leaving it with a

school-age population that is over 96% black. A former school district

superintendent testified that even the 13 formerly de jure all-white elementary

schools in the core city became identifiably black schools with the end of mass

bussing. Additionally, the de jure white high school in the core city also became

identifiably black.32

Furthermore, the Board presented evidence that during this same period of

time black student mobility has sometimes caused formerly racially balanced

schools to become racially identifiable black schools.33 For example, the

31
Actually, the table exaggerates the white student population because it puts all non-black
students into the “white” category, including Asians, Hispanics, and Native Americans. The student
population characterized as “white” by the school board was down to 54% in 1997.
32
Under the Mims injunction, the de jure black high school in the core city was paired with
its all-white counterpart, which was located virtually across the street. The district court revised the
attendance zones for each, expecting to produce two totally integrated high schools with a white
population of approximately 40% each. Within two years, however, both high schools were
overwhelmingly black (90%+). They remain so today.
33
Dr. Milan Mueller conducted a seven-year study of black student mobility in Duval county.
His study was designed to reveal the impact of such mobility on racial balance in school
enrollments.

20
residential areas surrounding two naturally integrated elementary schools34

experienced an increase in black students from approximately 20-30% in the 1989-

90 school year to approximately 40-60% in 1996-97. The residential areas

surrounding two additional elementary schools went from 20-30% in the 1989-90

school year to 30-40% in the 1996-97 school year. These dramatic increases in the

number of black school-age children residing in the areas surrounding these

naturally integrated schools persuaded the district court that “the loss of these

naturally integrated schools was the result of housing demographics, and not any

intentional or unintentional policy operated by the Board.”

Finally, the Board’s expert demographer’s evidence was that even though

the black student population is declining in the core city (6% decline), as black

families move to the outlying areas of the city (26% gain in the areas surrounding

the inner city, and 41% gain in the outermost areas), more black than white

students move into the core city, from both outside and outlying areas of the

county.

The district court concluded that:

In response to the School Board’s direct evidence and expert
testimony attributing present racial imbalances in some schools to

34
The parties agreed in the CSA that certain of the schools in the district were “naturally
integrated” prior to implementation of the CSA due to residential patterns.

21
 demographic factors beyond the Board’s control, the NAACP has
failed to present any persuasive evidence that such racial imbalance
existing at any elementary, middle, and senior high school is the result
of anything other than racial isolation in housing patterns and the
continued existence of “white flight” in Duval County. The Board has
simply not contributed to or perpetuated the current imbalance in any
way. To the contrary, the Board has made enormous efforts to
counter the effects of past discrimination and present-day choices by
parents.

Since the NAACP was unable to demonstrate that the continued existence of

identifiably black schools in Duval County is a vestige of prior de jure segregation

rather than the result of these demographic or other non-discriminatory factors, the

district court held that the county was entitled to unitary status on this Green factor

as well.

We agree. As we have noted above, in such cases a school district is under

no duty to remedy racial imbalances that are caused by demographic factors.

Freeman, 503 U.S. at 494. As the Supreme Court wrote in Swann:

Neither school authorities nor district courts are constitutionally
required to make year-by-year adjustments of the racial composition
of student bodies once the affirmative duty to desegregate has been
accomplished and racial discrimination through official action is
eliminated from the system. This does not mean that federal courts
are without power to deal with future problems; but in the absence of
a showing that either the school authorities or some other agency of
the State has deliberately attempted to fix or alter demographic
patterns to affect the racial composition of the schools, further
intervention by a district court should not be necessary.

402 U.S. at 31-32.

22
 In Freeman, the Supreme Court added:

The effect of changing residential patterns on the racial composition
of schools, though not always fortunate, is somewhat predictable.
Studies show a high correlation between residential segregation and
school segregation. . . . Where desegregation is a product not of state
action but of private choices, it does not have constitutional
implications. It is beyond the authority and beyond the practical
ability of the federal courts to try to counteract these kinds of
continuous and massive demographic shifts. To attempt such results
would require ongoing and never-ending supervision by the court of
school districts simply because they were once de jure segregated.
Residential housing choices, and their attendant effects on the racial
composition of schools, present an ever-changing pattern, one difficult
to address through judicial remedies.

503 U.S. at 495.

We believe the district court correctly concluded that this is such a case.

Although the Duval County school district as a whole is undeniably in substantial

compliance with the goals of the CSA, white flight and voluntary residential

patterns have re-segregated a number of the core city’s schools.35 There is no

evidence that any Board policy contributed to the re-emergence of these schools or

perpetuated their existence in any way. “While those charged with desegregation

must not shrink from the threat of white flight, school officials who have taken

effective action have no affirmative fourteenth-amendment duty to respond to

35
Current demographic trends indicate that the school system may become even more racially
balanced as the black student population continues to shift out of the core city. In the interim, the
success of the Board’s magnet school program can be expected to further reduce the number of
racially identifiable schools.

23
those who vote with their feet.” Ross v. Houston Indep. Sch. Dist., 699 F.2d 218,

225 (5th Cir. 1983).

Nor does the existence of racially identifiable schools in Duval County

necessarily trump the Board’s claim to be operating a unitary system. Pasadena,

427 U.S. at 424; Freeman, 503 U.S. at 493-94; Jenkins, 515 U.S. at 116 (Thomas,

J., concurring). Id. In Freeman, for example, the Supreme Court affirmed a

finding of unitary status in a school district in which 50% of the black students

attended schools that were over 90% black in a system where blacks comprised

only 47% of the student body. Furthermore, 5 of the 22 high schools were over

90% black, and another 5 were over 80% white. Finally, 18 of the 74 elementary

schools were over 90% black and 10 were over 90% white. 503 U.S. at 476-77. In

rejecting the argument that such racial imbalances precluded a finding of unitary

status, the Court held that “the school district is under no duty to remedy imbalance

that is caused by demographic factors.” 503 U.S. at 494.

We, too, have had occasion to consider the impact of racially identifiable

schools on a school district’s request for unitary status. In Manning, the district

court denied unitary status to the Hillsborough County school system in which

approximately 90% of the system’s schools were racially balanced, but which also

had 17 racially identifiable schools. In reversing the district court, we held that the

24
existence of these racially identifiable schools did not preclude a finding of unitary

status since the county proved that external forces were a substantial cause of the

racial imbalances. 244 F.3d at 944.

Other courts have also ended federal supervision despite the existence of

racially identifiable schools in a district. The First Circuit Court of Appeals upheld

a finding of unitary status in a school district where 8 schools enrolled a student

body that exceeded 80% black, and 5 schools enrolled a student body that was in

excess of 80% white. Morgan v. Nucci, 831 F.2d 313, 320-22 (1st Cir. 1987). The

court held that “maximum practicable desegregation” is a “practical, not theoretical

standard,” and “[u]nitary status is not simply a mathematical construction.” Id. at

321. Instead of focusing on racial quotas, the court looked to the school district’s

history of good faith in both the operation of the school system and the

implementation of the court’s student assignment orders. Id. Similarly, the Fifth

Circuit affirmed unitary status for a district in which 55 out of 226 schools had

student populations that were 90% or more black, in a district that was 20% white,

38% black, and 42% hispanic. Ross, 699 F.2d at 228.

Several district courts have also declared school districts unitary despite the

continued operation of numerous racially identifiable schools. See e.g., United

States v. Unified Sch. Dist. No. 500, 974 F. Supp. 1367 (D. Kan. 1997); Stell v. Bd.

25
of Pub. Educ., 860 F. Supp. 1563, 1580 (S.D. Ga. 1994); Flax v. Potts, 725 F.

Supp. 322, 328-29 (N.D. Tex. 1989), aff’d and remanded on other grounds, 915

F.2d 155 (5th Cir. 1990).

Even an increase in the number of racially identifiable schools during the

period of federal court supervision does not preclude a finding of unitary status. In

Manning, we affirmed unitary status even though every one of the 17 racially

unbalanced schools in Hillsborough County had become so during the pendency of

the district court’s supervision. Id. In Ross, the Fifth Circuit affirmed unitary

status despite the fact that the number of racially identifiable schools in Houston

had increased by 33 during the district court’s supervision. 699 F.2d at 227-28.

“Constructing a unitary system,” the court said, “does not require a racial balance

in all of the schools. What is required is that every reasonable effort be made to

eradicate segregation and its insidious residue.” Id.36

The NAACP, however, insists that, unlike these other school districts, Duval

County is not entitled to unitary status until it eradicates its racially identifiable

schools. It argues that under the CSA, the Board is obligated to achieve the

"maximum practical desegregation." So long as the district contains racially

36
Indeed, as Justice Powell once noted, to expect a total absence of one-race schools would
deny the demographic and economic realities of most major cities. See Estes v. Metropolitan
Branches of the Dallas NAACP, 444 U.S. 437, 445-46 (1980) (Powell, J., dissenting from dismissal
of writ of certiorari as improvidently granted).

26
identifiable schools, it concludes, the Board is not in substantial compliance with

its contractual duty.

The Supreme Court has made quite clear, however, that the Constitution

does not require a school board to eliminate the vestiges of past discrimination “to

the maximum extent practicable.” Jenkins, 515 U.S. at 90; Freeman, 503 U.S. at

492; Dowell, 498 U.S. at 250; Manning, 244 F.3d at 942. The Court expressly

rejected this test in Jenkins, and held that the proper test was whether the

deficiencies “attributable to prior de jure segregation had been remedied to the

extent practicable.” 515 U.S. at 101 (emphasis added). See also Manning, 244

F.3d at 943 n. 28.

Under the correct constitutional standard, then, Duval County is entitled to

unitary status if it has eliminated the vestiges of de jure segregation to the extent

practicable. It is not responsible for the segregative effects of external forces over

which it has no control. Freeman, 503 U.S. at 494. Since the Board has

demonstrated that white flight and voluntary residential isolation, and not its

policies, substantially caused the racial identifiability of some of its schools, they

are not the vestiges of de jure segregation and the Board is under no constitutional

obligation to combat the demographic factors which produced them. Id.

What then do we make of the CSA’s requirement that the Board “take steps

27
to the maximum extent practicable” to achieve its racial enrollment goals?

Interpreting the contract in its constitutional context, the CSA requires the Board to

implement policies that will desegregate Duval County’s schools to the maximum

extent practicable within the parameters of the county’s particular characteristics.

The district court correctly found that, within this context, the Board has performed

its obligations to the maximum extent practicable.

C. The Board’s Good Faith Performance Under the CSA

The NAACP’s final claim on appeal37 is that the Board has not implemented

the CSA in good faith. The Board has both a contractual and a constitutional

obligation to do so. Dowell, 498 U.S. at 249-50. To be entitled to unitary status,

not only must a school system eliminate the vestiges of de jure segregation to the

extent practicable, but “local authorities [must] have in good faith fully and

satisfactorily complied with, and shown a commitment to, the desegregation plan.”

Id. See also Manning, 244 F.3d at 942. Failure to do so can justify continued

judicial supervision of a desegregation decree. Id.

The CSA was designed to achieve the maximum practicable desegregation

within a system of voluntary choice, which would be guided and molded by the

existence of attractive magnet programs at formerly racially identifiable schools.

37
We find no merit in any contention raised by the NAACP which we do not discuss.

28
The district court found that the Board not only timely implemented its centerpiece

– the magnet program – but that it generously funded and aggressively marketed it.

The court also found that the Board has not only taken the other steps required of it

by the CSA’s 33 paragraphs, but that it has done so in a timely and inclusive

manner. All the evidence indicates that the Board has consulted extensively with

the NAACP in implementing the magnet programs, deciding on new student

assignments and building new schools.

During this time, the Board has never been found to be in violation of any

provision of the CSA. The district court concluded that the Board has exhibited

enormous good faith in performing its agreement to craft a school system which

protects student and parent choice while vigorously encouraging a race neutral

distribution of students throughout the system.

As with the Board’s compliance with the CSA, however, the NAACP views

the good-faith glass as half-empty. It contends that the Board has failed to utilize

“standard school desegregation techniques mentioned in the CSA” to eliminate its

racially identifiable schools.38 Like the claim that the district is not in substantial

38
The CSA stated that the Board “may adopt other techniques to achieve desegregation in
its schools, including, but not limited to: capping the enrollment; re-designing the student attendance
zones; and limiting the curricular offering at certain magnet programs.” Although not mandatory,
the Board has employed some of these techniques at some schools as discussed above.

29
compliance with the CSA, however, this argument is tainted by the NAACP’s

adoption of the wrong legal standard. See Manning, 244 F.3d at 943-44. The

Constitution does not require a school board to remedy racial imbalances caused by

external factors, such as demographic shifts, which are not the result of segregation

and are beyond the board’s control. Freeman, 503 U.S. at 495. Therefore, the

Board is not obligated to employ a particular desegregative method because it

might remedy these racial imbalances.39 Id. at 490.

The Board’s constitutional obligation is only to eliminate the effects of a

constitutional violation. The continued existence of a some racially identifiable

schools within the district is not, by itself, proof of a constitutional violation, nor

has the NAACP offered any. Without proof that the Board’s present or former

segregative policies or practices are the cause of current racial imbalances, it is

under no constitutional duty to employ desegregative techniques not required by

the CSA to combat the demographic factors that are. Furthermore, we are without

39
The NAACP contends, and the dissent implies, that the Board should have implemented
a “controlled choice” plan to achieve “maximum” racial balance in the district’s schools. Under
such a plan, groups of schools are clustered and each student is provided with a form with which to
rank preferences for attendance within the cluster, including at least one school with a student body
predominantly of the other race. When racial enrollment limits are reached at one school, the
remaining students of that race are assigned and bussed to a school based on the racial composition
of the school. The purpose of such a plan is the maximum possible desegregation of a school district
without regard to the causes of the offending racial imbalances. This the Constitution does not
require. Furthermore, the NAACP concedes that implementation of such a plan in Duval County
would require a return to substantial bussing of students to achieve the desired racial mix. This the
CSA not only does not require, but, in fact, was specifically implemented to avoid.

30
power to order it to do so. Milliken v. Bradley, 433 U.S. 267, 282 (1977)

(“[F]ederal-court decrees must directly address and relate to the constitutional

violation itself . . . [and] exceed appropriate limits if they are aimed at eliminating

a condition that does not violate the Constitution.”).

Nor do we find any merit in the NAACP’s contention that the Board has

“acted and omitted in classically segregative manners.” The crux of this complaint

is that the Board should have built new schools in the so-called “grey areas”

between the black core city and the white outlying suburbs. This desegregative

technique, it is argued, would have helped to achieve the maximum desegregation

possible in the district.

The evidence at trial was that the Board and the NAACP met on several

occasions to discuss proposed sites for new schools. The former superintendent of

the school system even proposed the use of the “grey area” sites for some new

construction. After study, however, it was determined that each of the proposed

grey sites had serious geographical deficiencies. Many were in highly

commercialized areas, and several had serious pollution issues. Ultimately, none

of these sites was deemed suitable for new school construction.

The Board then created a Desegregation Committee in 1995 to consider and

recommend new school sites, but the NAACP refused to participate. The

31
committee recommended the construction of 10 new schools. These

recommendations were incorporated into a five-year facilities plan that was

distributed to the NAACP later that year. The evidence was uncontradicted that all

but one of these schools were built in areas for which the Board projects strong or

moderate growth in student enrollment, including black students.40 The Board’s

expert testified that black student mobility to these areas of naturally integrated

housing patterns will eventually increase the desegregation of the district’s

schools.41

In view of the foregoing, we conclude that the NAACP’s mistaken view that

the CSA and the Constitution require the Board to employ the maximum

desegregative techniques available has led it to conclude that the Board has acted

in bad faith in its site selection for new schools. Neither the CSA nor the

Constitution require the Board to build new schools in the most integrated parts of

the county regardless of whether these sites correspond to the areas of maximum

40
The exception was an elementary school built in the core city to replace an unsafe school.
41
The NAACP also contends that the Board is guilty of bad faith because it has not filled
empty seats in core city schools with white students in an attempt to maximize desegregation but
rather has used portable classrooms to keep white students at white schools. The district court
correctly found that there is no evidentiary support for either of these contentions. The evidence was
that the empty seats in the core city would in no way accommodate the population growth in the
outlying areas without increasing those seats by bussing black students out. The Board’s facilities
superintendent also testified that portable classrooms are not used at schools where student
enrollement is not within the CSA goals.

32
population growth. The district court correctly found that the Board has fulfilled

its constitutional and contractual obligation to act in good faith in the selection of

new school sites in a race-neutral way. We agree.

IV.

In sum, we conclude that the judgment from which the appeal is taken is due

to be affirmed. An affirmance implies that appellants have lost. In a meaningful

way, however, that implication is not justified here. This judgment means that

appellants have accomplished what they, decades ago, set out to do. They

challenged a rigidly maintained, de jure system of school segregation and sued to

bring it into compliance with the constitutional requirement of equal protection

under the law. We say today that they have succeeded. If this judgment is counted

as a loss for appellants, it is so because they have won.

Furthermore, none should read more into this judgment than it contains.

With its implementation, the Duval County school system may be out of the

courthouse, but it is not out of the reach of the Constitution, the Bill of Rights, and

the laws of this land. Nothing in this judgment authorizes conduct contrary to

these laws. The Board, and the people of Duval County who, in the end, govern

their school system, must be aware that the door through which they leave the

33
courthouse is not locked behind them. They will undoubtedly find that this is so if

they fail to maintain the unitary system we conclude exists today.

The judgment of the district court is AFFIRMED.

34
BARKETT, Circuit Judge, concurring in part and dissenting in part:

I agree with the district court that the Duval County School Board (“the

Board”) was entitled to a declaration of unitary status on the majority of the Green

factors. See Green v. Sch. Bd. of New Kent County, 391 U.S. 430 (1968).

However, I do not believe that the Board was entitled to a declaration of unitary

status in the area of student assignment, the root of the Duval County’s (the

“District’s”) prior unconstitutional de jure segregated school system. Certainly, I

too would like to say that the Board finally “got it right,” and end the forty one

years of judicial supervision in this case. However, until the Supreme Court

simply announces that the time has come to end judicial oversight over school

districts, regardless of their status, we must faithfully apply the unitary status

standards when determining whether judicial supervision should be terminated. In

this case, the Board was required to establish that it made a good faith effort to

desegregate the black core city schools created under de jure segregation in order

to merit an award of unitary status in the area of student assignment. It failed to do

so and, therefore, we are required to retain judicial supervision over this area.

As the majority explains, when a school board that is subject to a

desegregation order seeks to bring an end to judicial supervision over the school

district it must satisfy the two unitary status requirements: first it must establish

35
that it has complied in good faith with the controlling desegregation order, and

second, it must demonstrate that it has eliminated the vestiges of de jure

segregation to the “extent practicable.” See Bd. of Educ. of Oklahoma City Pub.

Sch. v. Dowell, 498 U.S. 237, 249-50 (1991); Lockett v. Bd. of Educ. Muscogee

County Sch. Dist., 111 F.3d 839, 842 (11th Cir. 1997); Lee v. Etowah County Bd.

of Educ., 963 F.2d 1416, 1425 (11th Cir. 1992). In this case, the NAACP and the

Board agreed that the Board’s desegregation obligations would be outlined in a

negotiated settlement agreement, the Corrected Stipulation and Agreement

(“CSA”), instead of a court order. However, before the district court approved the

agreement, it had to be satisfied that the CSA, at a bare minimum, adequately

addressed the Board’s constitutional obligation to desegregate the District’s

formerly de jure segregated schools. The district court concluded that the CSA

addressed the Board’s constitutional obligations in the area of student assignment

by setting target racial enrollment goals for various school groups in the District.

However, the parties are fundamentally at odds over how many and which schools

were required to reach the CSA’s student enrollment goals in order to demonstrate

that the Board substantially complied with the CSA’s student enrollment

provisions.

The majority resolves the compliance disputes in this case in favor of the

36
Board and rules that the Board’s magnet program, which achieved a 65%

compliance rate district-wide with the CSA’s student enrollment goals, was

sufficient to meet the Board’s obligations. It also accepts the Board’s argument that

the current 96% segregation rate in the District’s Attachment C former de jure black

schools is the result of a new pattern of white flight,1 as shown by demographic

evidence revealing a 12% relative shift in the ratio of black to white students in the

District over the twenty seven years prior to the CSA’s creation. I cannot agree.

I believe that the CSA was crafted to address the core constitutional injury in

this case: the high rates of racial segregation in the District’s formerly de jure black

core city schools. The record shows that these schools had over 90% black

enrollments at the end of de jure segregation, and have remained 90% black during

the course of the CSA’s enforcement term. Also, the record plainly shows that

these schools are not segregated as a result of a new pattern of white flight. The

1
This figure was computed based on Attachment C, a CSA Appendix that identifies 28
schools that the parties recognized would have 75% black student enrollments after the District
ended forced busing. As such, these schools were the primary focus of the CSA. Review of
Attachment C shows that, out of the 28 schools listed, only 23 are currently open. Therefore, I
exclude from my analysis the five elementary schools that were closed; namely, the Sherwood
Forrest, Beal, Lackawanna, Rutherford, and Scott elementary schools. I also exclude Jacksonville
Beach from these figures, as the school is located in Zone VII, and Attachment C and the CSA
clearly indicate that the Attachment C student enrollment goals were only intended to apply to
schools in Zones I-V. (CSA Attachment C & CSA ¶4). Out of the remaining 22 Attachment C
schools, only one (Axson Elementary School) achieved the CSA student enrollment goals in 1998-
99, the year the District was granted unitary status. Therefore, 96% of the Attachment C schools
were not in compliance with the CSA’s student enrollment goals.

37
Board’s demographic evidence shows that the white flight it complains of preceded

the creation of the CSA and, moreover, was adequately accounted for in the CSA’s

less stringent student enrollment goals.2 The white flight that did occur during the

CSA’s enforcement term, a 4% decrease in the number of white students district-

wide, had little or no effect on the Board’s ability to desegregate the core city

schools, as these schools are located in black neighborhoods that have been over

90% black since the end of the de jure segregation.

Although the majority ultimately concedes the importance of the Attachment

C schools, it excuses the Board’s dismal performance at these schools by showing

that the Board met the CSA’s standards for desegregating these schools prior to the

CSA’s creation. However, in a proper unitary status inquiry, the court must apply

the relevant desegregation order to the period it was designed to address. The

proper inquiry in this case is whether the Board met its obligations under the CSA

during the CSA enforcement period, which began after 1991. Under this inquiry,

2
The Supreme Court has indicated that it is improper for the court to alter a school board’s
desegregation obligations in light of demographic shifts in the district, explaining that once the
Board satisfies its original obligations, it cannot be required to continually reorganize its efforts to
address the changing composition of the district. See Freeman v. Pitts, 503 U.S. 467, 493-94 (1992)
(recognizing that a school board that had temporarily achieved the desegregation decree’s goals
could not be required to continually change its efforts to address the changing demographic
composition of the district); Pasedena Bd. of Educ. v. Spangler , 427 U.S. 424, 434-35 (1976)
(same). This rule, however, does not prevent a school board from entering into a desegregation
contract that creates new student enrollment goals that account for these demographic changes.

38
the record shows that the Board did not eliminate the vestiges of segregation at its

formerly de jure black schools during the CSA enforcement term, and it failed to

provide a plausible justification for its failure to do so. Therefore, it was not

entitled to a declaration of unitary status in the area of student assignment.

Furthermore, by applying the CSA standards to assess the Board’s performance

prior to the period the CSA was created, the majority runs afoul of our precedent in

this case, and improperly lowers the Board’s compliance standard below what was

required by the orders governing the pre-CSA period.

A. Identifying The Proper Compliance Standard For The

Student Enrollment Provisions

As the majority explains, the parties’ disputes about the implementation of

the CSA must be resolved under a contract analysis. Therefore, the Court must first

refer to the CSA’s terms to discern the Board’s desegregation obligations.

Jacksonville Branch, NAACP v. Duval County Sch. Bd., 978 F.2d 1574, 1578

(11th Cir. 1992) (“NAACP II”) (citing United States v. Armour & Co., 402 U.S.

673 (1971)). As with all contract disputes, the obligations of the CSA must be

discerned “within its four corners, and not by reference to what might satisfy the

purposes of one of the parties to it.” NAACP II, 978 F.2d at 1578. Also, the

Court’s interpretation must give full effect to both the individual obligations

39
outlined in the agreement, and their collective or overall purpose. See Restatement

(Second) of Contracts § 203 (a) (explaining that in interpreting “a promise or

agreement or a term thereof . . . an interpretation which gives a reasonable, lawful,

and effective meaning to all the terms is preferred to an interpretation which leaves

a part unreasonable, unlawful, or of no effect.”). However, when the CSA is silent

or ambiguous as to the meaning of a particular term, its meaning must be

interpreted based on the constitutional standards that inform all desegregation cases,

because the CSA would have been invalid had it allowed the Board to escape its

desegregation obligations under the Constitution.

1. The Compliance Standard Suggested By The CSA’s Terms

As explained above, the CSA’s student assignment provisions do not

explicitly indicate how to measure compliance under the agreement, apart from

providing general guidelines on the enrollment goals for particular school groups.

Consequently, the Board argues that we should measure its compliance with the

CSA’s student assignment provisions by examining its performance district-wide,

that is, with regard to all of the schools in the District. Using this measure, the

Board argues that it is entitled to a finding that it “complied in good faith” with the

CSA because it achieved a 65% success rate district-wide with the CSA’s student

40
enrollment goals.3 The NAACP argues that the CSA requires the Board’s

compliance to be assessed based on its ability to desegregate the Attachment C

schools – a subset of 28 schools specially highlighted in the CSA as schools that

were “expected to become” racially identifiable black schools at the end of the

Mims Injunction forced busing program. (CSA, Attachment C).4 Using this

measure, the Board’s performance under the CSA was a dismal failure because, in

1998, when the district court granted unitary status in this case, 96% of the

Attachment C schools were not in compliance with the CSA’s student enrollment

goals.5

3
The majority parses this same data several ways, to show that the Board achieved different
rates of success as measured between elementary schools, middle schools, and high schools. The
distinction between elementary, middle, and high schools however, is not relevant to our assessment.
Rather, the focus must be on whether the Board remedied the original constitutional violation in this
case— that is, whether it desegregated the former de jure black schools.
4
Although the parties describe the Attachment C schools as schools that were “expected to
become” racially identifiable black schools , this designation is in some ways a misnomer. Many
of the schools in Attachment C were actually the former de jure black schools in existence at the
start of desegregation, which remained identifiably black during Mims Injunction period and were
still identifiably black when the CSA was negotiated, as they had not reached their student
enrollment goals. The Attachment C group, however, also contains some schools that were expected
to become racially identifiably black at the end of Mims because they were located in or near black
neighborhoods created during the era of the de jure racially segregated school system. (Dist. Ct. Op.
at 13). The Board was permitted to account for these problems as a contractual matter. Also, it was
required to take account of this problem in fulfilling its constitutional obligations. See Freeman, 503
U.S. at 514 (Blackmun, concurring).
5
There is some authority that suggests that a school board may deviate from a desegregation
order’s student enrollment goals by as much as 15-20% and still be considered in compliance. See
Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305 (4th Cir. February 7, 2001 ) (citing
Manning v. School Bd. of Hillsborough County, 244 F.3d 927, 935 (11th Cir. 2001). I offer no
opinion on whether this would be a fair standard for assessing compliance under a desegregation

41
 In my view, the CSA clearly indicates that the parties’ primary focus was on

the Attachment C schools, and any measure of the Board’s success must therefore

prioritize this school group. Indeed, the majority concedes this point, as it

recognizes that the CSA’s main goal was to desegregate the Attachment C schools.

(Maj. Op. at 6). See also Dist. Ct. Op. at 11 (recognizing same). This conclusion

is evidenced by the fact that the vast majority of the CSA’s student assignment

provisions are devoted to this purpose. Specifically, the CSA divided the District

into school groups that were rated based on their need for further desegregation

efforts. CSA ¶¶ 3, 5-14.6 The CSA then identified three sets of elementary schools:

“Attachment B” or “stand alone schools,” which were racially integrated elementary

schools that were not in need of immediate assistance, CSA ¶ 6; “Attachment C” or

“racially identifiable black schools;” and “Attachment D,” or “racially identifiable

white schools,” both of which were in need of immediate desegregation assistance.

CSA ¶ 7. The Attachment C and D schools had, or were expected to develop,

racially imbalanced enrollments, which the CSA defined for Attachment C schools

as a student body composed of 75% or more black students, and defined for

agreement, like the one at issue here. However, even under this more permissive measure, the
Board’s enrollment statistics show that more than half of the Attachment C schools deviated more
than 20% from the CSA’s student enrollment goals, and 85% of the Attachment C schools named
in the Mims Injunction deviated more than 20% from the CSA’s goals.
6
Middle and high schools were treated separately, and were not the main focus of the
agreement. (Dist. Ct. Op. at 4 ).

42
Attachment D schools as a student enrollment of 85% or more white students.

(CSA, Attachments C & D) (Dist. Ct. Op. at 11). The CSA expressly established as

its primary goal that the Board would enroll 20% - 55% black students at the

Attachment C & D schools, and would maintain this enrollment over a three-year

period. CSA ¶¶ 4 & 31.7

Even between the Attachment C and the Attachment D schools, the parties

appeared to recognize that the predominately white schools in Attachment D would

have less difficulty meeting the CSA standards, i.e., less difficulty drawing black

students,8 because there are only two CSA provisions specifically directed to the

Attachment D schools, ¶¶ 18 & 19, and the more detailed of these two provisions is

designed to ensure that the Attachment D schools would not continue to draw white

students away from the Attachment C schools. ¶ 19 (a)-(c). In contrast, the CSA

contemplates greater difficulty in meeting the student enrollment goals at the

Attachment C schools, as the agreement contains numerous and detailed planning

provisions designed to attract white students to the Attachment C schools. See, e.g.,

7
The CSA was created and negotiated between 1989 and 1990 and, because of the need for
minor technical corrections, was reissued in 1991. I use 1991 as the start date of the CSA
enforcement period for the purposes of clarity.
8
Dr. Larry L. Zenke, the Board’s desegregation advisor and the former superintendent of
the District, testified that, when the CSA was created, the Board recognized that black students
would willingly transfer into white schools, even when there were no magnet programs at the white
schools, and even when there were no additional resources available at the white schools. (Vol. 10
Tr. at 87-88).

43
CSA ¶¶ 11-12, (establishing a time line for magnet program proposals for

Attachment C schools, and identifying recruitment and funding efforts for

Attachment C schools); ¶¶ 15-17 (discussing the role facilities renovation and

replacement would play in diversifying the enrollment at the Attachment C

schools).

Since the bulk of the CSA’s desegregation efforts focus on the Attachment C

schools, the schools in the greatest need, it would ignore the CSA’s purpose to

measure the Board’s compliance with the CSA based on district-wide figures. To

do so would credit the Board for success in desegregating the “stand alone”

Attachment B schools, which as of 1990 did not require help, and “majority white”

Attachment D schools, which the Board anticipated would have less difficulty

meeting the CSA standards.

2. The Compliance Standard Required By the Board’s

Constitutional Obligations

Even if the CSA could be interpreted to assess the Board’s compliance with

the student enrollment goals based on the Board’s district-wide performance, the

constitutional injury in this case still requires that we focus on the Attachment C

schools. A review of the first comprehensive remedial order entered in this case

44
shows that the court stressed the importance of desegregating the eighteen “core

city” historically black schools, the majority of which became Attachment C

schools under the CSA.9 Mims v. Duval County Sch. Bd., 329 F. Supp. 123 (M.D.

Fla. 1971). The Mims Court explained, “[n]o one argues that the 18 black core city

schools are anything but the vestiges of a de jure segregated dual school system.

Under the circumstances . . . [Swann v.] Charlotte-Mecklenberg [402 U.S. 1 (1971)]

literally commands the integration of these core-city students with the outlying

white students through busing.” Mims, 329 F. Supp. at 130. The Board now asks

us to rule in a manner that functionally negates the importance of these core city

formerly de jure black schools. However, as we explained in 1971, these schools

are at the heart of the constitutional violation in this case, and we cannot simply

ignore them. Therefore, without some meaningful showing of success with respect

to the core city schools, the Board cannot satisfy its constitutional obligations.

B. Identifying the Proper CSA Enforcement Period

1. The Enforcement Period Required By The CSA’s Terms

Two things are clear from the record in this case: (1) the Attachment C

9
Again, the number of elementary schools in Attachment C is higher than the number in the
Mims Injunction because the parties agreed that the Board was required to remedy segregation in
those schools expected to become identifiably black at the end of mass busing. These schools were
“expected to become” majority black because they were either located in or near black
neighborhoods that developed as a consequence of de jure segregation.

45
schools were the focus of the CSA and are a central part of the constitutional

violation recognized in this case, and (2) during the CSA enforcement period (1991-

1998) the Board failed to desegregate the Attachment C schools. To negate these

facts, the Board claims that it satisfied the CSA’s enrollment goals for the

Attachment C schools in the years prior to the CSA’s creation. Specifically, the

Board cites enrollment statistics from 1971 to 1990, during the Mims Injunction’s

forced busing program, and argues that the Attachment C schools were

desegregated during this period.10 In support of this claim, it notes that the number

of black majority schools fell from 21% to 15% during the period covered by the

Mims Injunction. The majority concludes that this evidence is sufficient to show

that the Board eliminated the “vestiges of de jure segregation” in the Attachment C

schools for a reasonable period, and therefore met its burden. (Maj. Op. at 17-18).

I have found no case, and not suprisingly the Board points to none, in which

a court assessed a party’s compliance with an agreement based on a party’s

10
The majority concludes that the Board successfully desegregated the core city schools
because substantial numbers of black students attended the Attachment C schools at what later
became the CSA’s goals. (Maj. Op. at 18). Specifically, the majority states:
All but two of the fifteen schools formerly operated solely for Black
students reached what later became the CSA racial balance goals
for at least a three-year period before the implementation of the
CSA. The Board had broken the pattern of all-Black enrollment at
the schools it formerly operated solely for Black students during de
jure segregation, and had eliminated the vestiges of de jure
segregation in all the Attachment C schools.
(emphasis added). As explained above, the Mims standards govern the period prior to 1991 and,.
thus, the CSA is the wrong standard to apply to this time period.

46
behavior prior to the agreement’s creation. Also, in this case, the plain terms of the

CSA show that there is no defensible basis for taking the CSA’s terms and

interpreting them to cover a period prior to the time the agreement was formed. The

agreement clearly states that it was intended to govern the period after 1991. See

CSA ¶ 4 (“[T]he parties agree that, commencing with the 1991-1992 school year,

each school [in Zones I - V] shall have as its desegregative goal the enrollment of at

least 20% black students and 45% white students.”).

Furthermore, I find this interpretive maneuver illogical. The majority

implicitly concludes that the parties entered into an agreement in 1991 to achieve

goals that they had already reached prior to that period. But why would they do

that? The only fair reading of the CSA’s terms is to treat the agreement as a guide

for the Board’s desegregation efforts and goals subsequent to 1991, as a substitute

for the Mims Injunction forced busing program. Therefore, the Board’s

performance prior to this period is not relevant to this dispute under a contract

inquiry.

2. The Enforcement Period Required Under The Constitutional

Framework

In addition to running afoul of the CSA’s plain terms, the majority’s

47
application of the CSA standards to the period between 1971-1990 ignores the

earlier precedent in this case. All of the earlier decisions covering this time period

establish that the Board’s desegregation obligations after 1971 were governed by

the Mims Injunction standards, up and until that agreement was superceded in 1991

by the CSA. Mims, 329 F. Supp. 123; NAACP I, 883 F.2d 954. This decision

effectively overrules the standards the Mims Court established to assess the Board’s

desegregation efforts between 1971 and 1991 and, more importantly, sub silentio

reduces the Board’s obligations during this period. Specifically, the majority

asserts the that Board met its desegregation obligations between 1971 and 1990 by

measuring the Board’s performance at the Attachment C schools relative to the 20-

55% black student enrollment goal provided for in the CSA, CSA ¶ 6, instead of

using the 21%-34% goal for elementary schools established for this time period

under Mims. Mims, 329 F. Supp. at 130.11 The effect of the majority’s analysis is

to lessen the Board’s desegregation obligations between 1971 and 1990 in an

attempt to show that the Board satisfied its constitutional obligations during this

period. However, we have already held that the Board did not meet the Mims

11
The Mims Injunction also set goals for the formerly de jure black middle schools and high
schools. However, because Attachment C only covers elementary schools, these figures are not
relevant to our analysis.

48
Injunction enrollment goals prior to 198612 and we denied the Board unitary status

on this basis. Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F.2d

945, 953 (11th Cir. 1989)(“NAACP I”). More important to this case, the Board did

not meet the Mims enrollment goals (21-34%) under the remaining portion of the

Mims enforcement period (1986-1991), and it failed to meet the CSA enrollment

goals (20-55%) once the CSA became the governing enforcement standard (1991-

1998). These facts are made clear in the chart below.13

BLACK STUDENT ENROLLMENT AT THE CORE CITY/ATTACHMENT C SCHOOLS

MIMS INJUNCTION THE CSA PERIOD CSA PERIOD CTD

PERIOD 1998

1990-1991 1996 [UNITARY STATUS

GRANTED]

Black Student Enrollment Goal GOAL: 21-34% GOAL: 20-55% GOAL: 20-55%

12
As noted above, the majority argues that the Board met the CSA goals for the Attachment
C schools for the requisite three year period prior to 1991. However, in NAACP I, this Court clearly
indicated that Board’s performance prior to 1986 was insufficient to satisfy its burden under the
proper measure, the Mims standard. In regard to the Board’s performance after 1986, my review
of the Board’s student enrollment statistics shows that the Board’s performance remained static, and
that the number of racially identifiable schools did not substantially change from 1986, the date it
was denied unitary status in NAACP I. See Def. Exh. 96.
13
This graph only covers the schools that are the “core city” schools identified in the Mims
Injunction, and were included in the subset of Attachment C schools that the Board was required to
desegregate during the CSA time period. Stated alternatively, the chart only shows those schools
that were originally recognized as the source of the constitutional injury in this case, and were
specifically designated as subject to the CSA’s student enrollment goals. As shown above, none of
the Attachment C schools that were previously identified in the Mims Injunction met the CSA’s
student enrollment goals.

49
 Actual Black Enrollment Figures

1. Mary M. Bethune 64% 100% 99%

2. R.L. Brown 66% 64% 96%

3. George Washington Carver 58% 100% 99%

4. R.V. Daniels 56% 94% 61%

5. John E. Ford 83% 81% 73%

6. S.A. Hull 90% 94% 91%

7. S.P. Livingston 44% 97% 94%

8. St. Claire Evans/Moncrief 72% 98% 99%

9. Rufus Payne 47% 93% 94%

10. Pine Forest 21% 65% 59%

11. West Jacksonville 71% 98% 96%

12. Carter Woodson 46% 98% 97%

13. Susie Tolbert 40% 84% 69%

14. Longbranch 62% 97% 95%

In summary, there is no basis for rejecting the Mims Court’s standards and

conclusions and, therefore, no basis for revisiting and reinterpreting the Board’s

performance during the Mims Injunction period under the CSA standard. The only

relevant inquiry in this case is whether the Board successfully desegregated the core

city black schools in compliance with the CSA’s student enrollment goals, which

required that it maintain a black student enrollment between 20% and 55%, at the

Attachment C schools during the CSA enforcement period (from 1991 to 1998).

The Board failed to do so, and therefore, it has not met its constitutional obligations

in the area of student assignment.

C. Evidence of Good Faith Compliance During the CSA Period

50
 The Board also argues that even if it did not meet the CSA’s student

enrollment goals at a sufficient number of schools, its failure can be forgiven given

its good faith effort to implement the CSA’s desegregation techniques. See Morgan

v. Nucci, 831 F.2d 313, 320 (1st Cir. 1987) (recognizing that a school board had

discharged its desegregation obligations when it did not entirely achieve its student

enrollment goals because of the school board’s good faith efforts in implementing

its desegregation plan). In support of this claim, the Board argues that the CSA

only required that it establish and fund a network of magnet programs at the

Attachment C and D schools and, since it opened these programs and funded them,

it met its obligations under the agreement.

The NAACP argues that the Board did not make a good faith effort to utilize

the CSA’s desegregation strategies because the agreement required the Board to

implement one or more of the supplemental desegregation techniques outlined in

the agreement that were designed to trigger parents to make a desegregative magnet

school choice for their children. Specifically, the NAACP argues that the Board

knew that a bare magnet program would fail to desegregate the racially identifiable

black schools because, unless the program included some provision that directed

parents towards a desegregative school choice for their children, parents would not

51
choose magnet programs in racially identifable black schools. Recognizing this

difficulty, the CSA provided for a variety of means to encourage parents to make a

desegregative school choice for their children, including re-drawing attendance

zones, capping enrollment at Attachment D schools, and/or limiting curricular

offerings at Attachment D schools, implementing a majority-to-minority transfer

program and, as a last resort, re-instituting mandatory reassignment. CSA ¶¶ 19(a)-

(c), 15 (a)-(b). The NAACP argues that because the Board refused to consider or

fairly implement the supplementary magnet school techniques, it did not fulfill its

obligations under the CSA.

The majority adopts the Board’s view, as it reads the CSA to require only the

establishment of a “free choice” student assignment program between a network of

magnet schools. (Maj. Op. at 15-16). The majority also concludes that, although it

was not required to do so, the Board made a good faith effort to institute some of

the supplementary magnet program techniques, explaining that the Board adopted a

majority-to-minority transfer program, redrew attendance boundaries, and capped

enrollment at some of the Attachment D schools. (Id.) I do not believe the record

supports either of the majority’s assertions in this regard, and I address each issue in

turn.

First, I cannot endorse the majority’s restrictive reading of the CSA. We are

52
required to prefer a reading of a contract that “gives a reasonable, lawful, and

effective meaning to all the terms . . . [over] an interpretation that leaves a part

unreasonable, unlawful, or of no effect.” See Restatement (Second) of Contracts §

203(a). The majority’s reading of the contract runs afoul of this principle, as it

makes surplusage of over three-quarters of the CSA, a 25-page contract containing

33 paragraphs that, when it includes the supplemental desegregation techniques,

could be read as incorporating up to several hundred individual provisions targeted

at achieving desegregation in the District’s 144 schools. By treating the

supplemental desegregation methods in the CSA as mere precatory references with

no binding effect, the majority effectively nullifies most of the CSA’s terms.14

A more reasonable interpretation of the CSA, one that gives effect to all of its

terms, is that it was intended to function either as a “best-efforts” contract,15 or an

14
I am also concerned that the majority’s reading of the CSA construes the agreement to
provide for a program that is dangerously close to the voluntary choice program the Supreme Court
rejected in Green v. New Kent County. See Green, 391 U.S. at 437-40 (explaining that “in
desegregating a dual system a plan utilizing ‘freedom of choice’ is not an end in itself.”). In Green,
the Supreme Court explicitly held that a school board cannot satisfy its obligation to implement a
desegregation plan merely by implementing an ineffective “voluntary” or “free choice” attendance
program. Id. Therefore, if the contract could be interpreted in a manner that would not bring it in
conflict with the Board’s constitutional obligations, we are required to interpret in this manner. In
this case, that reading would require that we construe the agreement to provide for additional
obligations beyond the establishment of a free choice program. See Restatement (Second)
Contracts § 207, & Appendix at 266 (“In choosing among the reasonable meanings of a promise or
agreement or a term thereof, a meaning that serves the public interest is generally preferred.”).
15
Specifically, “a best efforts contract requires that the obligor must use best efforts to
achieve a particular goal, but the risk of failure lies with the obligee. Black's Law Dictionary at 318.
To be enforceable, a best-efforts term must generally set some kind of goal or guideline against
which the efforts may be measured.” Id. See also Murray On Contracts § 58 (explaining how the

53
“alternative contract.” Black’s Law Dictionary at 319 (1999). A best-efforts

contract is “a contract in which a party undertakes to use best efforts to fulfill the

promises made . . . [and] the adequacy of [that] party’s performance is measured by

the party’s ability to fulfill the specified obligations.” Id. An “alternative contract”

is “a contract that provides more than one way for a party to complete performance,

. . . [and usually] permits that party to choose the manner of performance.” Id.

Both of these types of agreements allow a party who is obligated to achieve a

particular goal under a contract limited discretion to choose what strategy it will use

to achieve that goal; however, the agreements also require that, if a party fails to

meet a contract goal, and it does not utilize the strategies identified under the

contract, it must present valid reasons for rejecting the contract’s suggested

strategies. See 17A Am.Jur.2d Contracts § 682 (discussing alternative contracts); 6

Corbin On Contracts § 1330 (same); Restatement Contracts § 469 (1921) (same).

Under this reading of the agreement, the Board was not necessarily required to

pursue all of the supplementary desegregation techniques in the CSA, but it was

required to present evidence that it fairly considered adding the supplemental

techniques in its effort to desegregate the Attachment C schools, and rejected them

because they were impractical.

standard is interpreted in the commercial context).

54
 In my view, the record unequivocally shows that the Board knew that its

purely voluntary program was failing to reach the CSA’s student enrollment goals

in the Attachment C schools, but it failed to add any of the strategies recommended

in the CSA as a more aggressive means to guide parents toward a desegregative

school choice for their children. Specifically, the record shows that the Board knew

as early as 1992 that the free-standing magnet program was failing to desegregate

the racially identifiable black schools. (Tr. Vol. 10 at 162). The record also shows

that, Dr. Larry Zenke, the Board’s Desegregation Advisor, indicated that he was

aware during the implementation of the plan that when other districts had used

voluntary magnet programs to desegregate their schools, they had included methods

to guide parents towards desegregative choices, including capping, balloting

measures, and re-drawing school attendance zones. Zenke testified that although he

conferred individually with the Board members about the District’s problems in

meeting the CSA’s student enrollment goals, he never brought for a full Board vote

any CSA desegregation strategy that would be perceived as constraining parents’

choices in selecting schools for their children. Zenke explained that he made this

decision because he did not support the adoption of these strategies and, based on

his conversations with the Board, he did not believe that the majority of the Board

would ever adopt any of them. (Id. at 161-162, 174). In Zenke’s own words, the

55
Board’s desegregation effort was “entirely based on voluntary options and choices”

and it refused to consider any desegregation strategy that it interpreted as limiting

parents’ choices to send their children to a particular school. (Id. at 174).

Consistent with this approach, the Board persistently refused to implement

any CSA mechanism that would guide parents’ school choices. It continued with

this purely voluntary effort despite substantial evidence that the voluntary program

was not achieving the CSA’s goals. Also, the record shows that the Board’s efforts

even undermined its purely “voluntary approach” to desegregating the schools.

Specifically, the Board held a magnet schools fair, and it sent out a letter that

guaranteed parents transportation if they agreed to transfer their children from a

school where they were in the majority race group to a school where they were in

the minority (a “majority- to- minority” school transfer). However, although the

magnet fair and the transfer letters were supposed to encourage parents to make a

desegregative school choice for their children, the Board assured parents that if they

did not want their children to participate in the magnet program or the majority-to-

minority transfer initiative, they could simply decline to participate in these

programs, and by default end up in a neighborhood school. (Id. at 90). Therefore,

it is not surprising that out of the 36,000 letters the Board sent to parents, only 332

families elected to have their children transferred. Parents knew that they were

56
permitted, with Board approval, to avoid a desegregative school assignment for

their children simply by declining to respond to the Board’s letters. The Board’s

actions were inconsistent with the commitment it made under the CSA. CSA ¶ 19.

Certainly, the CSA was not designed to hamstring the Board into pursuing

unworkable solutions in order to achieve the CSA’s goals. However, the record

evidence shows that the Board knew that the bare magnet program was failing, and

it knew why, but it did not consider in good faith any of the CSA’s options for

improving the program, and it did not attempt to identify any other means to

achieve the CSA’s student enrollment goals.

As an additional matter, our inquiry into good faith must take into account the

Board’s efforts apart from its unitary status obligations; that is, if the Board’s other

administrative decisions seem recklessly unmindful of the problems of segregation

in the District, such behavior is inconsistent with a finding of good faith. In this

case, the Board sought and received federal grant money to improve the Attachment

C schools during the period covered by the CSA, and it spent this money in an effort

to improve the core city schools. (Id. at 109). However, the Board’s choices as to

how to spend its other facilities dollars aggravated segregative trends in the District,

thus creating well-funded but separate white and black schools. Specifically, the

record shows that the Board did not build its new schools in the integrated area

57
immediately surrounding the core city, which, as the evidence reflects, contained the

highest student population, the highest number of portable classrooms, the largest

number of overcrowded schools, and declining school facilities.16 Instead, the Board

chose to build thirteen new schools over the past ten years in the almost all-white

outlying periphery of the county.17 In support of the proposition that its actions did

not have a discriminatory purpose, the Board pointed to Milan Mueller’s report,

which showed that the District was experiencing the highest rates of population

growth in the periphery of the county. However, almost all of these new schools

16
The Board’s demography expert, Dr. Milan Mueller conducted a study which documents
this problem. Mueller divided Jacksonville into three concentric rings, Area A being the core city,
and areas B and C, being the successive surrounding rings. Most of the Attachment C schools fall
in Area A. Mueller testified at trial that thirteen new schools were built in Area C, a section of the
Jacksonville in which the student population is 84% white, and one school was built in Area A, the
core city, where the student population is 97% black. See Def. Exh. 77, tab.12 . No new schools
were built or planned in Area B. This was the case even though Mueller’s demographic research
indicated that, throughout the course of the study, the highest concentration of students were
enrolled in Area B (approximately 50% of the overall enrollment in the school district), an integrated
area which was 55% black and 45% white. See Def. Exh. 77, tab.4. The Board argues that it made
a valid administrative choice, as it was building schools in areas experiencing the most significant
student population growth.( Tr. Vol. 3 at 115.) Although future planning is indeed a laudable goal,
it is not laudable when it comes at the expense of remedying the Fourteenth Amendment violation.

17
Instead of building new schools in the newly integrated outer core of the city, the Board
used 500 portable classrooms in that area of the district. Simultaneously, it built new schools in the
predominantly white residential neighborhoods in the outlying areas of the city away from the core.
The Board knew that the Court was concerned about its distribution of new facilities, separate and
apart from the Board’s obligation to remedy the poorly funded and inadequate core city schools.
Indeed, in NAACP we held, that the Board “failure to consider the objective of desegregation in its
efforts to alleviate overcrowding violate[d the Board’s] affirmative duty to desegregate.” When
combined with other factors, we concluded that this counseled against a unitary status finding. Id.
at 952-53. Despite this warning, the Board made no effort to consider whether its strategy of using
portable classrooms in the core, as opposed to building new schools, conflicted with its affirmative
duty to desegregate the district’s schools.

58
were under-enrolled at the beginning of their tenure. In contrast, during the same

period, the Board built no new schools in the area immediately surrounding the core

city to meet the needs of the naturally integrated and overpopulated schools.

In short, the record evidence in this case commands a finding that the Board

failed to achieve the CSA’s goals with regard to the core city’s historically black

schools under the magnet program, and that it did not give fair consideration to the

CSA’s supplementary methods for desegregating these schools. Simultaneously,

the Board started a building program that created a new segregative trend within the

District, and ignored the naturally intergrating trends that would have

complemented its desegregation efforts.

D. Whether The District Was Desegregated To “The Extent

Practicable.”

The majority has also concluded that, in addition to showing that it complied

with the CSA in good faith, the Board has satisfied its obligation under the unitary

status inquiry to desegregate the district “to the extent practicable.” Again, I would

not reach this issue because I do not believe that the Board satisfied its obligation to

show that it complied with the CSA in good faith. However, I address this point

because I do not agree with the majority’s view that the Board met its burden to

59
show that demographic changes made it impossible for it to achieve the CSA’s

student enrollment goals for the Attachment C schools.18

The Supreme Court has held that when a court reviews a school board’s

compliance with a desegregation order under the unitary status inquiry, it must

presume that any remaining segregation in the school district is tied to the former de

jure segregated school system, and therefore must be remedied before the court

ends judicial supervision of the district. Keyes v. Sch. Dist. No. 1, Denver Colo.,

413 U.S. 189, 208 (1973). A school board may rebut the presumption that the

segregation in its district stems from the former de jure racially segregated school

system by presenting evidence that it temporarily achieved the desegregation

decree’s goals, but that demographic changes in the district led to resegregation,

unrelated to the original de jure segregated school system. Freeman, 503 U.S. at

494 (“Where resegregation is a product not of state action but of private choices, it

does not have constitutional implications.”); cf. Spangler , 427 U.S. at 435

(recognizing that a school board that had already achieved a desegregation order’s

18
Together the Board’s student enrollment statistics (Def. Exh. 96), and the demography
report prepared by the Board’s expert, Milan Mueller, establish that the core city schools had 90%
black enrollments during de jure segregation, and the black pupil enrollments at these schools
remained in excess of 90% for the duration of the CSA. The Board submitted raw data for the 1969-
1970 time period. Mueller’s report provides percentages for the later dates. The report shows that
the core city schools were 96.1 % black between 1989 and 1990, 92.78% black between 1993 and
1994, and 93.45% between 1996 and 1997. The Board failed to identify any evidence to show that
the 90% segregation in the core city schools was traceable to any intervening demographic shift that
changed the racial composition of these areas.

60
goals could not be required by the court to continually change its efforts to address

the changing demographic composition of the district).19 Courts have also

recognized that a school board may use demographic evidence to show that it

cannot accomplish a desegregation decree goal because the demography of the

district has dramatically changed, and the desegregation plan is no longer workable.

Dowell, 498 U.S.at 242 (discussing a district court order in which the court ruled

that demographic changes made the district’s desegregation plan “unworkable”).

These arguments, however, are not available to assist those school districts that,

because of willfulness or neglect, still contain a large pool of segregated schools

after decades of federal court supervision, and these schools are the exact same

schools that the court initially identified as the vestiges of the district’s de jure

segregated school system, and the high racial concentrations at these schools are not

traceable to any independent post-decree demographic changes.

The Board cites demographic evidence to show that the CSA’s desegregation

goals are impracticable because the District has experienced “white flight.” See

Morgan, 831 F.2d at 322-23 (recognizing white flight as a factor beyond a school

board’s control); Ross v. Houston Indep. Sch., 699 F.2d 218, 225 (5th Cir. 1983)

19
The majority appears to suggest that once a Board presents evidence of demographic shift
within the district, this establishes that there is “no constitutional violation.” However, the proof
of demographic shift shows that some segregated schools should not be included in the court’s
assessment as to whether the original constitutional violation has been remedied.

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(same). Specifically, the Board claims that white students have withdrawn from

the Duval County public school system to attend private schools, leaving it with an

insufficient white student pool to achieve the CSA’s goals. The Board also argues

that whites have moved away from the neighborhoods associated with the core city

schools, making it even more difficult to desegregate these schools. The Board

offered three pieces of evidence to support its contention of “white flight”: (1)

district-wide enrollment statistics showing a 12% decrease in the number of white

students over the twenty seven years prior to the CSA’s creation; (2) eyewitness

testimony from its former superintendent and current Desegregation Advisor, Dr.

Larry Zenke; and (3) a report on black residential migration patterns, prepared by

Dr. Milan Mueller. I cannot agree with the majority that this evidence showed that

a new post-decree trend of “white flight” transformed the core city into an area with

a school-age population that is 96% black and, thus, made it impracticable to further

desegregate the core city schools. (Maj. Op. at 19). Rather, the record shows that

the District’s white flight predated the CSA, and was adequately accounted for in

the CSA’s student enrollment goals.

The Board’s argument mainly relies on the District’s student enrollment

statistics showing that between 1969 and 1990, the proportional number of white

students in the Duval County’s public schools decreased by 12%. They ask that we

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rule that this decrease, suffered over a twenty seven year period, was significant

enough to render the enrollment goals under the CSA for the Attachment C schools

impracticable. However, the record indisputably establishes that the majority of the

white flight had occurred before the CSA was created. (Dist. Ct. Op. at 10).

During the enforcement term of the CSA the Board experienced only a 4% decrease

district-wide in the number of white students.20 Because the Board was already

aware of the majority of this white flight when it negotiated the agreement, it seems

likely that the parties accounted for this change, and agreed to relax the black

student enrollment figures to 20-55% at the core city elementary schools, rather

than the more stringent 21-34% figure required under the Mims Injunction. Indeed,

it seems fundamentally unfair to allow the Board now to argue that the more

relaxed enrollment standards under the CSA are unreachable based on this earlier,

larger pattern of white flight, particularly when this problem is adequately

accounted for in the CSA’s goals.

Rather, in my view, our inquiry must be confined to the 4% white flight that

actually occurred during the term of the agreement and, thus, was not accounted for

in the CSA’s goals. I am unconvinced that this 4% district-wide shift could have

20
This fact is corroborated by Mueller’s report, showing that the black population district-
wide increased from 36.5% to 40.2% over the course of the CSA, and the white population
decreased from 59.5% to 54%. (Mueller Report at 4).

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had any real effect on the Board’s ability to desegregate the core city black schools.

(Maj. Op. at 19).21 Since the time of the Mims Injunction, the parties have been on

notice that it is impossible to desegregate the formerly de jure black core city

schools without mass busing. Mims, 329 F. Supp. at 130. The CSA was simply

designed to end forced busing, and instead to encourage parents to volunteer to

have their children bused to core city schools, either by subtly limiting parents’

choices, and/or by creating a group of highly attractive core city schools. The CSA

represents the parties’ attempt in 1991 to establish a fair and equitable standard to

determine whether desegregation had been achieved in light of the current

demographic status of the District after the implementation of the CSA

desegregation program. By allowing the Board to rely on the pre-CSA pattern of

white flight as evidence that it cannot achieve the CSA’s goals, the majority allows

the Board to escape its contractual obligations.

CONCLUSION

The majority notes that the Duval County School Board has been embroiled

in litigation for forty one years, has been subject to orders from five district courts,

21
Also, a 4% shift in the District’s white student enrollment is hardly the kind of dramatic
demographic change about which the Supreme Court was concerned For example, in Freeman v.
Pitts, the black student ratio increased from 5.6% in 1969 to 47% in 1986. See 503 U.S. at 476.
Also, in Missouri v. Jenkins, 515 U.S. at 95 n.6. , the demographic shift that triggered the district’s
doomed attempt to create an interdistrict remedy was from 18.9% in 1954 to 60% in 1975. Here the
record shows no such dramatic change in the racial make-up of the student population in Duval
County.

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and has appeared multiple times before this court seeking review of its decisions.

In its view, the time for judicial supervision is at an end. However, it likewise

bears noting that the duration of court supervision occurs only as a result of a

school board’s failure to satisfy its desegregation obligations. I agree that Duval

County School Board has made substantial progress in many aspects of its

desegregation mandate; however, the record does not support the view that it met its

obligations in the area of student assignment. Accordingly, I believe that under the

CSA we are required to retain judicial supervision over the District in the area of

student assignment.

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