Free Brief (Combined Opening and Answering) - District Court of Delaware - Delaware

Case 1:88-cv-00263-SLR

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.)

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Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) Only the Westlaw citation is currently available. United States District Court,M.D. Florida. Andrew L. MANNING, et al., Plaintiffs, v. THE SCHOOL BOARD OF HILLSBOROUGH COUNTY, FLORIDA (formerly Board of Public Instruction of Hillsborough County, Florida), et al., Defendants. No. 58-3554-CIV-T-17C. Aug. 26, 1997.

1971 Order particularly as to student assignments within a group or "cluster" of schools. In 1994, plaintiffs filed a motion contending that defendants had violated the terms of the July 1971 Order and 1991 Consent Order by allowing certain schools to become "racially identifiable." The motion was referred for a report and recommendation. Following an evidentiary hearing, the undersigned Magistrate Judge recommended denial of plaintiffs' motion to enforce court order for failure to establish a violation of the Court's orders. On November 17, 1995, this Court deferred ruling on the report and recommendation, noting that the dispute involved in plaintiffs' motion to enforce focused on student assignment. The Court found that the parties' discussion of the issue "demonstrates the need to expand the scope of the inquiry to a full fledged determination of whether the Hillsborough county school system has in fact achieved unitary status." (Order Recommitting Matter to Magistrate, Dkt. 709, at 3) ("Order of Referral") The Court ordered: a showing by Defendants as to whether they have complied with this Court's 1971 Order regarding the factors set forth by the United States Supreme Court in Green v. New Kent County School Bd., 391 U.S. 430 (1968). In addition to student assignments, Green and Freeman require that faculty and staff assignments, transportation, extracurricular activities, facilities and resource allocation all be free from racial discrimination. In each of these areas, the school board bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior constitutional violation of Plaintiffs' rights. Freeman, 503 U.S. at 494. The quality of education being received by all students and the good faith commitment by the School Board must be shown. *2 Following the referral order, the undersigned Magistrate Judge set a hearing on the unitary status determination and thereafter conducted monthly status conferences with counsel for the parties. The parties exchanged discovery and retained expert witnesses. After the evidentiary hearing was transcribed, the parties filed proposed findings of fact and conclusions of law (Dkts. 796 and 797) which were

REPORT AND RECOMMENDATION JENKINS , Magistrate J. *1 Before the Court is the issue of whether the public school system of Hillsborough County has attained unitary status and should be released from court supervision. This issue has been referred to the undersigned Magistrate Judge for evidentiary hearing and a report and recommendation.

BACKGROUND When this lawsuit was filed in 1958 on behalf of black school children, the public school system of Hillsborough County maintained racially segregated schools and black and white pupils were not permitted to attend the same schools. During the next thirteen years various methods were employed to desegregate the schools, at the Court's direction, and appeals from those orders consumed much of that time. In May 1971 the Court found that these methods had failed to desegregate the schools and ordered the School Board to immediately implement a plan to bring the school system in compliance with the Constitution. Since July 1971, the Hillsborough County School Board ("School Board") has operated under this Court's desegregation orders. The desegregation plan implemented by defendants and approved by the court and plaintiffs shifted focus in 1991 when the School Board adopted a middle school plan and the Court, with the consent of the parties, entered a Consent Order which modified the

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.) supplemented after the filing of the 6th Annual Report to the Consent Order. (Dkts. 803 and 805) Closing arguments were presented on May 22, 1997. For the following reasons, it is recommended that this Court find that the public school system of Hillsborough County has attained unitary status in that defendants have eliminated, to the extent practicable, the vestiges of the prior de jure segregated school system and have complied in good faith with this Court's orders. Pursuant to the referral order, the following proposed findings of fact and conclusions of law are submitted. FN1

enjoined the defendants from operating a racially discriminatory school system and allowed them until October 30, 1962, in which to file a comprehensive plan for the desegregation of the schools. 4. For approximately the next nine and one-half years, this Court issued various orders and the School Board devised various desegregation plans, none of which successfully and fully desegregated Hillsborough County's schools. See Mannings v. Board of Public Instruction of Hillsborough County, 306 F.Supp. 497 (M.D.Fla.1969) ("Mannings II" ), rev'd, Mannings v. Board of Public Instruction, 427 F.2d 874, 875 (5th Cir.1970) ("Mannings III" ). 5. On May 11, 1971, the Court entered an order directing the School board to prepare and implement a comprehensive plan for desegregating the Hillsborough County School system. (May 1971 Order, Dkt. 636 at 43) (hereafter "May 1971 order"). 6. The Court's May 1971 Order (at 43-44) directed that: (a) The plan shall have as its primary objective the abolition of segregation in all schools in the county, and in particular it shall aim at desegregation of all schools in the county now having a school population at least 50% black. *3 (b) In preparing the plan the school board shall begin with the proposition that a white-black ratio of 86%/14% in the senior high schools, 80%/20% in the junior high schools, and 79%/21% in the elementary schools would be the most acceptable and desirable form of desegregation. 7. On July 2, 1971, this Court approved for implementation the plan of desegregation developed and submitted by the School Board (hereafter "July 1971 Order") In the July 1971 Order, the Court expressly retained jurisdiction "for such further action as may be necessary and required." 8. The 1971 plan was designed to desegregate student enrollment in grades 1-12, as required by the Court; it did not include kindergarten classes, to which students continue to be assigned on a neighborhood basis, nor did it include pre-school (early childhood education) classes. 9. The 1971 plan required the conversion of twelve formerly all-black elementary schools in the "inner city" area of Tampa FN3 to single-grade attendance centers serving the 6th grade.

FN1. Some of the findings set forth in this Report and Recommendation have been stipulated to by the parties (Dkt.767) or are taken from the prior Report and Recommendation ("prior R and R") dated June 23, 1995 (Dkt.699) which addressed plaintiffs' Amended Motion to Enforce Court Order (Dkts.601, 602). Record cites are not provided for stipulations. FINDINGS OF FACT 1. This action was filed on December 12, 1958 on behalf of plaintiff Andrew Manning FN2 and others alleging that defendants, acting under color of state law, had operated the public schools of Hillsborough County on a racially segregated basis. (Complaint at 3).

FN2. At the unitary status hearing, Mr. Manning revealed that his name had been misspelled as "Mannings" in court documents. 2. The Court initially dismissed the complaint for the plaintiffs' failure to exhaust administrative remedies, but the dismissal was reversed by the court of appeals, which remanded the case for further proceedings. See Mannings v. Board of Public Instruction, 277 F.2d 370, 375 (5th Cir.1960) ("Mannings I" ). 3. Following remand, the Court conducted a non-jury trial, after which, on August 21, 1962, the Court entered an order finding that the defendants were in fact maintaining an unlawfully segregated system of public schools. To remedy the violation, the Court

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.) FN3. Bryan, Carver, College Hill, Cuesta, Dunbar, Jackson Heights, Lomax, Meacham, Orange Grove, Potter, Shore and Williams. 10. Under the 1971 plan, each elementary grade-level (1-5) attendance area of each of these formerly allblack elementary schools was subdivided into between two and five "satellite areas"; students residing in each of these "satellite areas" FN4 were assigned to attend a formerly white school, to which they were transported for grades 1-5. for Cleveland, DeSoto, and Gary Elementary.

15. This Court, by Order of June 3, 1975, directed implementation of the supplemental plan for Lee Elementary School commencing with the 1975-76 school year. 16. The 1975 annual report filed by the defendants reflected no majority black schools. Five out of 128 schools had black student enrollments of 40% or more-Cleveland, Edison, Gary, Graham, and Palm River Elementary. (DX 7) Neither the Court nor the plaintiffs took any action as a result of those racial enrollments. *4 17. The following year, Cleveland experienced an increase to 55% black enrollment. (DX 7) 18. At least since January 14, 1975, the Court has not directed the School Board to prepare a supplemental plan or to take any action with respect to the racial composition of any of its schools, including but not limited to schools whose enrollments were more than 50% black. 19. Subsequent annual reports filed by the defendants reflected increased black enrollment at several schools. These reports were served upon the plaintiffs each year. No motion seeking relief or enforcement of any obligation imposed by the Court was ever filed by the plaintiffs until June 1994. 20. The 1993 annual report for the 151 schools operated by defendants indicated that there were nine elementary schools and one junior high school with black student enrollments of 50% or more; FN5 there were five elementary schools and two junior high schools with black student enrollments of 40% or more. FN6

FN4. A satellite zone is an area which is not contiguous with the main attendance zone for a school. May 11, 1971 Order, p. 29, n. 41. Thus, the references throughout the record to a satellite denotes a group of students within a given geographic area in a school boundary zone who are transported or assigned to a school outside the boundary zone primarily for desegregation purposes. 11. Under the 1971 plan, Lee Elementary School was to serve grades 1-5. The attendance area established for Lee Elementary School in the 1971 plan was not modified by the School Board prior to the 1975-1976 school year. 12. On January 14, 1975, this Court entered an Order which recited that: The latest of [the annual enrollment] reports was filed with the Court December 10, 1974. It indicates that because of changes therein there is a need for, and the Board is directed to file with the Court on or before March 21, 1975, a supplemental plan designed to insure that the requirements of the Court's previous orders insofar as they relate to Lee Elementary School will be complied with as of the beginning of the 1975-76 school year. 13. The Court also directed the defendants' attention to Cleveland, DeSoto, and Gary Elementary Schools "in the event changes for other schools are required...." Edison Elementary, which was 41% black at that time, was not mentioned. 14. On March 21, 1975, the School Board submitted to this Court a supplemental plan. This plan proposed to convert Lee to a 6th-grade center replacing the Meacham facility and to reassign the former attendance area of the Lee School under the 1971 plan among seven different elementary schools for grades 1-5. The plan also projected racial enrollments

FN5. The elementary schools were Cleveland (59%), Edison (74%), Foster (57%), Graham (63%), Meacham (50%), Oak Park (66%), Robles (90%), Sulphur Springs (70%), and Witter (56%). The junior high school was Van Buren (50%). FN6. The elementary schools were Cahoon (47%), Clair Mel (48%), DeSoto (40%), Shaw (48%), and West Tampa (41%). The junior high schools were Dowdell (46%) and Sligh (43%). 21. Each year following initial implementation of the

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.) 1971 plan, the School Board filed at least two reports with the Court, copies of which were served upon counsel for the plaintiffs. The first report (usually submitted in the fall) provided enrollments (by race and grade) and faculty assignments (by race) at each school facility operated for grades 1-12 in the system. The second report enumerated changes in student assignment (if any) proposed to become effective in the following school year. 22. The reports of proposed student assignment modifications included, but were not limited to, boundary changes in response to overcrowding and student assignment modifications necessitated by the construction of new schools. The reports included projections of anticipated enrollments, by race, at schools affected by the proposed changes. 23. At least since January 14, 1975, this Court has not directed the School Board to prepare a supplemental plan or to take any action with respect to the racial composition of any of its schools, including but not limited to those schools in which the percentage of black students attending those schools exceeded 50%. 24. For more than 22 years after the 1971 desegregation plan was implemented, plaintiffs filed no written objections with this Court concerning the actual or projected enrollments of any schools in Hillsborough County, including schools whose enrollments were more than 50% black. In June 1994 plaintiffs filed their first written objections to projected racial enrollments for the 1994-95 school year. 25. Plaintiffs did object in 1980 (for reasons other than anticipated racial composition of enrollments) to the closing of George Washington Junior High School and Glover Elementary School, proposed actions which were approved by this Court after a hearing on plaintiffs' objections. 26. Plaintiffs also objected in 1990 (for reasons other than anticipated racial composition of enrollments) to the proposed conversion of the Blake 7th-grade center to a magnet high school, a proposal which this Court disapproved (without prejudice to its subsequent resubmission as part of a comprehensive restructuring plan) by Order of January 23, 1991. *5 27. In November 1989, Dr. Walter L. Sickles, then Superintendent, appointed a "Task Force to Modify Single Grade Centers" to investigate and make recommendations for reorganizing the Hillsborough County school system to establish middle schools

consistent with the goal of retaining a desegregated school system. 28. Beginning in early 1991 a series of meetings was held between the Superintendent and other School Board representatives and plaintiffs' counsel and desegregation expert, Dr. Leonard Stevens. The purpose was to discuss the proposed middle school plan. 29. In early 1991, then-Assistant Superintendent James D. Randall had an initial meeting with counsel for plaintiffs. A more extensive meeting took place on March 15, 1991, attended by counsel for the parties, Superintendent Sickles, Mr. Randall and other staff members of the school district, as well as by plaintiffs' educational and desegregation consultant, Dr. Stevens. 30. On March 15, 1991 plaintiffs' representatives were furnished a copy of the "Proposed Cluster Plan," which described working concept of middle school reorganization then being considered by the Task Force. 31. Further meetings were held between May and July 1991 regarding the plan. Following the July 16, 1991 meeting, a formal report entitled "Middle School Task Force Report 3, July 1991," was submitted to and approved by the School Board and subsequently transmitted to plaintiffs' counsel on August 20, 1991. 32. The Middle School Task Force Report 3 was attached to and made a part of the Consent Decree executed by counsel for the parties, which was approved and entered by this Court on October 24, 1991 as a Consent Order. 33. The "cluster plan" is currently beginning its sixth and final year of implementation. Of the 17 clusters, eleven have been implemented so far. There are six remaining clusters to be implemented at the beginning of the 1997-1998 school year. FN7

FN7. A more detailed description of the middle school plan and discussions between the parties concerning the proposed plan is contained in the Prior R and R at 29-31. 34. Prior to the Court's 1995 Order of Referral, the School Board had not requested a finding of partial or full unitary status by the Court and/or the vacating, in whole or in part, of the previous Orders of the Court.

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.)

35. The Court has therefore not had occasion to make, nor has it made, a determination whether all vestiges of the prior racially discriminatory dual school system in Hillsborough County have been eliminated to the extent practicable.

41. None of the Court's prior orders have expressly or implicitly FN10 directed defendants to maintain a particular student race ratio at any school, or to take any action in response to increased black enrollments in the schools.

STUDENT ASSIGNMENTS Background

FN10. See Prior R and R at pages 15, 34-38. 42. In determining the degree of racial imbalance in individual schools, both Dr. Stevens, plaintiffs' desegregation expert, as well as Dr. Armor, defendants' desegregation expert, applied a working definition of plus or minus 20 basis points over the district-wide race ratios, using the 80/20 ratio outlined in the May 1971 Order as a benchmark. (DX 1 at 7; PX 1 at 5) FN11

36. The Hillsborough County school system, one of the largest school districts in the country, enrolled approximately 120,000 students in the 1995-1996 school year. FN8 DX 7 at 28. FN9

FN8. Although the Court now has the benefit of the 6th Annual Report filed on April 15, 1997 providing data for the 19961997 school year, this data was not available for the most part at the October 1996 unitary status hearing. The 6th Annual Report is addressed in the parties' supplemental submissions. (Dkts.80, 805) FN9. Reference to the parties' exhibits at the unitary status hearing are indicated by the letters "PX" or "DX" followed by the exhibit number. References to the sevenvolume transcript are indicated by the letter "T" followed by the volume number and page number, e.g., T7 at 107. 37. As of October 30, 1995, there were a total of 148 public schools operated by the School Board: 108 elementary schools, 27 junior high (or middle) schools, and 15 senior high schools. 5th Annual Report, April 15, 1996 at 54-82. 38. There is no dispute that all of the schools in Hillsborough County were desegregated as of the 1971-1972 school year. *6 39. Plaintiffs acknowledge that most of the schools currently operated by defendants reflect the relative percentages of black and white residents in Hillsborough County. (Dkt. 796 at 12) 40. The controversy centers on what factors have caused some of the schools-particularly the elementary schools-to have an increasing number of black students enrolled over the years.

FN11. This Court's 1995 referral order declined to adopt a specific figure in determining racial identifiability and instead stated that the determination is dependent on local conditions. (Order of Referral at 5) This is discussed further in the proposed conclusions of law, infra. However, for the purpose of addressing the evidence, the 20 basis points variance shall be used as both parties' testimony and exhibits use this measure. 43. Plaintiffs' 1994 motion to enforce focused on sixteen schools, mostly elementary, with a black student enrollment of 40% or more. Those schools and the percentage of black students attending those schools as of the 1995-96 school year FN12 are Robles Elementary (90%), Edison Elementary (75%), Sulphur Springs Elementary (74%), Oak Park Elementary (70%), Graham Elementary (67%), Foster Elementary (61%), Cleveland Elementary (57%), Shaw Elementary (56%), Witter Elementary (54%), Cahoon Elementary (52%), Clair Mel Elementary (49%), West Tampa Elementary (47%), DeSoto Elementary (43%), Van Buren Junior High (53%), Sligh Junior High (50%), and Dowdell Junior High (49%). FN13

FN12. Data from the 1995-96 school year was utilized at the evidentiary hearing conducted in October, 1996. FN13. The student population statistics for all of these schools are taken from data set

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.) forth in DX 7, which consists of the annual student assignment reports filed by the School Board. The information about boundary and other attendance changes, discussed in the next section, is taken from data set forth in DX 6, which consists of the annual reports on boundary and other attendance changes filed by the School Board. The information about demographic changes is taken from the report of Dr. William A.V. Clark, the defendants' demographics expert, which report was introduced as DX 2. The data for the boundary and other attendance changes, including their effect on the racial composition of student populations, along with the data on demographic changes, for the sixteen schools about which the plaintiffs complained in 1994 (with the exceptions of DeSoto Elementary and Sligh Junior High) are summarized in Appendix A submitted by the defendants with their proposed findings of fact and conclusions of law. This same data (with the exception of demographic data) is summarized for all other schools (including DeSoto and Sligh) in Appendix B submitted by the defendants. An exhibit introduced at the hearing, the defendants summarized the boundary and other attendance changes made to the sixteen schools about which the plaintiffs complained in 1994 and the projected and actual effects of those changes on student race ratios within the schools. (DX 2; T1-21) 44. Each of the sixteen schools named by the plaintiffs was predominantly white in 1971 following implementation of the desegregation order. (T1 at 33) FN14

Elementary (23%), Graham Elementary (35%), Foster Elementary (21%), Cleveland Elementary (26%), Shaw Elementary (15%), Witter Elementary (18%), Cahoon Elementary (21%), Clair Mel Elementary (18%), West Tampa Elementary (14%), DeSoto Elementary (35%), Van Buren Junior High (17%), Sligh Junior High (20%), and Dowdell Junior High (14%). 47. These sixteen schools were also the primary focus of the testimony at the unitary status hearing.

Boundary Changes In General FN15

FN15. Most of the findings in this section have been stipulated to by the parties. (Dkt. 767 at 18-20). 48. Since the 1977-1978 school year, the School Board has made more than 300 modifications in student assignments to relieve overcrowding, to accommodate the opening of newly constructed facilities, or for other reasons. With a few exceptions, none of these boundary changes were made solely for the purpose of affecting the racial ratio of a school. FN16

FN16. As the record demonstrates, on some occasions the School Board changed student assignments at certain of the schools which now have black student enrollments of 40% or more in order to improve racial balances. (See DX 3) (Dkt.796, App.A) However, these changes were infrequent and were usually made in conjunction with some other factor such as relieving overcrowding or when a new school was opened. *7 49. In addition, the School Board has accommodated enrollment increases, overcrowding, kindergarten classes, and special program needs by locating or relocating portable classrooms on individual school campuses. Between the school years from 1985-1986 through 1993-1994, the number of portable classrooms used in the Hillsborough County school system increased from approximately 800 to approximately 1200. 50. When making assignment changes to relieve overcrowding or to accommodate new construction, the School Board has taken into account the racial enrollments within the new boundary and the effect

FN14. The 1972-73 school year is the earliest year after the 1971 Order for which complete figures are available. 45. In the intervening twenty-five years since the 1972-1973 school year, the percentage of black students attending these schools has increased to 40% or more. 46. The percentage of black students in each school as of the 1972-73 school year was as follows: Robles Elementary (24%), Edison Elementary (36%), Sulphur Springs Elementary (19%), Oak Park

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.) of the boundary changes on the enrollment ratios at the affected schools. 51. In addition, in making assignment changes to deal with problems of overcrowding or with new school construction, the district where practicable reassigned or divided and partially reassigned existing satellite zones (those originally created in 1971) in a manner that moved enrollments toward the system-wide ratio. 52. In particular, when the School Board constructed a new facility in a suburban area having a small resident black student population within the contiguous zone created surrounding the facility, it would utilize the reassignment of pre-existing

satellite zones to increase the number of black students assigned to the new facility. 53. In modifying student assignments to relieve overcrowding or in connection with the opening of a new facility, the School Board has since the 19751976 school year created non-contiguous zones or satellites in at least seven instances. FN17 In most, but not all of these instances, students reassigned on a non-contiguous basis were being transported to their former school of assignment before the change.

FN17. These seven instances, and the schools involved, are:

1977-78 1980-81 1983-84 1984-85 1986-87 1992-93

54. The School Board has never created a new noncontiguous or satellite zone solely for the purpose of altering the racial enrollment ratio at a school, including schools that had majority-black enrollments. FN18

FN18. This stipulation is understood to refer to satellite attendance zones created subsequent to the desegregation of the Hillsborough public schools which was achieved during the school year 1971-1972. Those created for that year were at the express direction of the Court when the formerly black schools were closed and the students attending those schools were reassigned to other schools. 55. Since 1986, the School Board has not initiated boundary changes (not otherwise being considered for reasons such as overcrowding or the opening of a newly constructed school facility) for the purpose of altering the racial enrollment ratio at a school, including at schools that had majority-black enrollments. 56. In summary, the School Board's goal since 1971 has been to maintain a desegregated school system. This goal included having the ratios at individual schools come as close to the district-wide ratios as possible. For those

Cahoon and Temple Terrace Mort and Cahoon Bellamy and Dickenson Dickenson and Bay Crest Dickenson and Town & Country Greco Jr. High and Burns Jr. High Mort/Tampa Palms and Hunter's Green schools which experienced increases in the numbers of black students attending the schools, the School Boards would remove a satellite assigned to those schools if it was no longer necessary to maintain racial balance. However, the School Board did not create new satellites for schools with increasing black enrollment as a way to reduce the racial imbalances because of the disruption that would have on the families and children attending those schools. (T7 at 219-21)

Student Enrollments and Demographics *8 57. Each of the sixteen schools named by the plaintiffs was predominantly white in 1971 following implementation of the July 1971 order. (T1 at 33) 58. The parties have examined demographic data for Hillsborough County to determine whether changes in residential housing patterns may explain why there is a higher percentage of black students at certain schools than existed in the past. 59. The most recent demographic data available for this inquiry is derived from the Decennial United States Census conducted in 1990. Since the Census is conducted only every 10 years and no special census has been taken in the interim, the 1990 Census figures provide the most up-to-date data available.

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.)

60. From 1970 to 1980 the total population of Hillsborough County, Florida, rapidly increased from 490,265 persons in 1970 to 626,960 persons in 1980. The total population in 1990 increased substantially again to 834,054. (DX 2 table 1) The percentage increase of the total county population was approximately 30 percent during 1970-1980; the percentage increase during 19801990 was approximately 26 percent. (T2 at 19) This represents an increase of almost two-thirds of the total population of Hillsborough County between 1970 and 1990. (PX 2 at 8) 61. The percentage of all county residents who were black, regardless of age group, did not change substantially during that time period. In 1970, approximately 17.4% of the county residents in the age group 0 to 17 were black; this percentage increased to approximately 19.4% in 1990. (PX 2 at 3) 62. Although the increase in the general population of Hillsborough County has been fairly constant over the past twenty years, defendant's demographic expert, Dr. W.A.V. Clark, noted significant differences in growth rates among the 0 to 17 age group. 63. Between 1970 and 1980 the number of whites in the 0 to 17 age group increased by approximately 3%; among blacks the increase was 16%. During the next decade, the growth rate of the black population was almost double that of the white population. (T2 at 20-22). 64. Also, the growth in population has not been consistent in all areas of the county. An area identified by Dr. Clark, described as a "reverse L" or "upside-down L" shaped area, exists south of Tampa International Airport, west of Interstate 275, north of 22nd Street between Florida Avenue and 40th Street and south of the Hillsborough River. This area has experienced significant changes in the racial compositions of its neighborhoods. Comprising what Dr. Clark and other witnesses refer to as the "inner city" neighborhoods, this area experienced a loss of about 21,000 white persons and a gain of about 4,000 black persons between 1970 and 1990. (DX 2 at Table 4; T2 at 23) 65. Census data shows that the number of tracts in Hillsborough County with black populations of 95 percent or more decreased substantially from seven in 1970 to two in 1990. At the same time, the number of tracts with populations of 25% to 50% black residents more than doubled from 1970 to 1990. (T4 at 61; PX 2 at 18) Tracts with populations of 50% or more black residents have expanded about 40 percent over the twenty-year period. (T2 at 34)

*9 66. During the period 1971 to the fall of 1995, the percentage of black high school students increased from 14% to 21%. During the same period the percentage of black junior high students increased from 20% to 23%. At the elementary level, the increase was from 21% to 24% black students. (PX 1 at 4-5) 67. Census information for the tracts having public schools with black student enrollments of 40% or more (thirteen elementary schools and three junior high schools) generally shows these schools as located within areas where the number of black residents is increasing relative to the number of white residents of those tracts. (T2 at 56) FN19

FN19. Appendices 1,2 and 3 to this Report and Recommendation incorporate demographic data contained in Dr. Clark's report for Hillsborough County and the sixteen schools with black student enrollment of 40% or more. (DX 2, Tables 1, 4 and 5) 68. While noting that in 1970 it "was possible to maintain a large number of schools with black enrollments of less than 40 percent," Dr. Clark concluded that the increased proportion of black residents "in the neighborhoods north of the Hillsborough River and east of 22nd Street after 1980 and the continuing overall white student losses from inner city areas made it impracticable or impossible to make further attendance zone adjustments in order to maintain racial balance within the plus or minus 20 percent band." (DX 2 at 9) 69. The evidence indicates, among other things, that for the school year 1990-1991 the disparity between census information and enrollment was not substantial at most of the schools identified at the hearing which have black student enrollments of 40% or more. Shown below is the percentage of black enrollment at a school, followed by the 1990 census information of black residents age 0 to 17 living in the attendance zone (shown in bold): Robles Elementary (86%, 71%), Edison Elementary (69%, 70.5%), Sulphur Springs Elementary (62%, 51.6%), Oak Park Elementary (61%, 56.8%), Graham Elementary (68%, 42.9%), Foster Elementary (46%, 52.4%), Cleveland Elementary (52%, 41.4%), Shaw Elementary (38%, 33.8%), Witter Elementary (45%, 41.1%), Cahoon Elementary (38%, 33.5%), Clair Mel Elementary (41%, 55.1%), West Tampa Elementary (44%, 31.6%), Van Buren Junior High, (42%, 39.6%), and Dowdell Junior High (42%, 39.6%). (Dkt.796, App.A) FN20

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.) FN20. DeSoto Elementary and Sligh Junior High School were not included in Dr. Clark's demographic study of 1990 census information. (DX 2) Black student enrollment for the 19901991 school year was 50% at DeSoto Elementary and 35% at Sligh Junior High. (Dkt. 796, App. A and B) 70. Dr. David Armor, a well recognized expert in school desegregation cases, FN21 studied the sixteen schools with a black student population of 40% or more against the background of post-1972 boundary changes effected for those schools and the census data gathered by Dr. Clark. (T3 at 33-48; DX 1) He noted that only a "handful" of schools (15 out of a total of 135 schools) have been or are currently out of balance. (T3 at 54)

75. Despite differing with the conclusions drawn by Dr. Armor, Dr. Shelley was unable to provide an alternate hypothesis for the increased black enrollment at the sixteen schools targeted by plaintiffs and studied by Dr. Armor. (T4 at 95) Dr. Shelley conceded that only ten boundary changes had occurred after the schools became imbalanced. In some of the schools there were no boundary changes for quite a long time. (T4 at 88-89) FN22

FN21. Dr. Armor has always testified in favor of school boards at unitary status hearings. (T3 at 118) 71. None of the current or past racial imbalances in county schools are attributable to school board action, including boundary changes, but rather are attributable to demographic changes, according to Dr. Armor. (T3 at 53) 72. Dr. Armor concluded that defendants have implemented "a highly effective desegregation plan that virtually desegregated the entire district to a very high degree of desegregation, as high as I've seen anywhere in this country but especially in the south, and that it maintained that plan for a very long time." (T3 at 49) *10 73. Dr. Fred Shelley, plaintiffs' demographics expert, did not conduct any demographic studies of his own, but relied on Dr. Clark's data in drawing some differing conclusions. (T4 at 50-56) Dr. Shelley agreed that both the inner-city areas identified by Dr. Clark and the neighborhoods surrounding those areas had experienced an increase in the percentage of black residents over the past twenty years. (T4 at 81-83) But he did not think that demographics could totally explain the dramatic increases in black student enrollment at some schools. (T4 at 51-56; 56-58) 74. Dr. Shelley concluded that "it is perhaps difficult to conclude that increase in racial imbalance is attributable solely to the processes of natural demographic change." (T4 at 56, 66) While agreeing that the most recent demographic data available is from the 1990 census, Dr. Shelley had reservations about drawing conclusions about present student enrollments based on that data. (T4 at 106)

FN22. Defendants' Appendix A and B (Dkt.796) summarize evidence as to boundary changes and the race ratios before and after the boundary changes for each school in Hillsborough County during the period of court supervision. Many of the sixteen schools identified by plaintiffs as racially imbalanced have not had many boundary changes in recent years. For example, Cahoon has had no boundary changes since 1989 when its black student enrollment was 34%. Edison's last boundary change was 1982 when it was 50% black. Foster's last boundary change was in 1984 when it was 29% black. Oak Park has had no changes since 1978 when it was 41% black. Robles last had a boundary change in 1976 when it was 30% black. Shaw and Sulphur Springs have not had boundary changes since 1989 when they were 37% black and 59% black, respectively. (App.A) 76. Also, Dr. Shelley apparently erroneously assumed that Dr. Clark's demographic data included children attending a school as part of a satellite attendance zone. (T4 at 91) The presence of a satellite could cause that school to have a racial balance which might seem disproportionate to the racial balance in the school attendance area. (T4 at 91-92) He also agreed that in a highly segregated area it is more difficult to adjust boundaries or make other changes without substantial disruption including transportation. (T4 at 78) 77. Evidence presented at the hearing by the School Board included the percentage of black students at the schools before each attendance change and the percentage of black students at the schools after the change. However, it is undisputed that whenever the School Board proposed an attendance change, it estimated the projected attendance figures, including the percentage of black and white students for these schools. (DX 3, 7; T1 at 23) In most instances when an attendance change was made, the School Board expected the change to improve the race ratio at the affected school and, those times when the change did not improve the ratio, the School Board expected the ratio to change by only a few percentage

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.) points. (DX 3, DX 7) Occasionally, the projection did not hold because the demographics of the affected area changed unpredictably. (T1-23) 78. If demographic factors explain the racial imbalances at those schools, it is unnecessary to reach the issue of what further desegregative techniques could be employed as this Court has never required defendants to adjust racial enrollments at Hillsborough County schools on an annual basis. *11 79. Notwithstanding the evidence pointing to demographic change as the most likely explanation for the increased black enrollment at thirteen elementary schools and three junior or middle schools, certain factual issues raised by plaintiffs should be addressed. 80. Dr. Shelley examined five of what he called the "long unbalanced" schools-Cleveland, Edison, Graham, Robles, and Oak Park-and noted that the attendance areas for these schools do not adjoin each other. He testified that it was at least "plausible to be able to make some slight adjustments in the boundaries of these attendance areas and reassign some students such that the degree of racial imbalance is lessened in those schools." (T4 at 64) 81. It must be remembered that the disparity in racial enrollments was also present, albeit to a lesser degree, when plaintiffs and the School Board approved the clusters as part of the middle school plan adopted by this Court in the 1991 Consent Order. (Prior Report and Recommendation at 29, 32 and n. 22) Since the implementation of the clusters, actual black enrollment has exceeded projected enrollment for some schools. FN23

in clusters with other schools which have a much lower percentage of black student enrollments. (Dkt. 796 at 1819)

Edison Elementary 84. Edison Elementary School (75% black) FN25 is in a cluster with Morgan Woods (10% black), Town & Country (27% black) and Woodbridge (21% black). (PX 7 at 2)

FN25. The racial enrollments listed in plaintiffs' exhibit are based on the 1995-96 school year. 85. However, these elementary schools are not in the area immediately adjoining the Edison attendance zone. Rather, the schools which immediately adjoin the Edison attendance zone are Foster (64% black), Broward (35% black), and Seminole (40% black). (DX 8 at 4) FN26

FN26. The racial enrollments shown on defendants' exhibit are from the first month attendance figures for the 1996-97 school year and so they differ somewhat from the percentages shown in PX 7 as well as other exhibits which may be in evidence, including the 6th Annual Report which is the most current data in the record for the 1996-1997 school year. Cleveland Elementary 86. Cleveland Elementary School (52% black) is in a cluster with Carrollwood (15% black), Forest Hills (27% black) and Lake Magdalene (12% black). (PX 7 at 2) Forest Hills does adjoin the Cleveland attendance zone at the northwest corner but its boundaries include a portion of Florida Avenue and Busch Boulevard, major city streets. The other schools do not. The other schools surrounding Cleveland are Seminole (40% black), Sulphur Springs (80% black), and Foster (64% black).

FN23. A chart prepared by Dr. Stevens compares the race ratios projected by the 1991 middle school plan and actual race ratios in 1995 for the schools having black student enrollments of 40% or more. (PX 1, Ex. 1e) 82. Testimony received at the 1994 hearing on plaintiffs' motion to enforce court order demonstrated that at least as to West Tampa Elementary, reassignment of students according to suggestions made by plaintiffs' desegregation expert, Dr. Stevens, was not practicable. FN24

Sulphur Springs Elementary 87. Sulphur Springs (74% black) is in a cluster with Twin Lakes (17% black). (PX 7 at 2; DX 7 at 18, 20) FN27 However, Twin Lakes does not adjoin the Sulphur Springs attendance zone. The elementary schools which do adjoin the Sulphur Springs attendance zone are: Shaw (59% black), Cahoon (55% black), Foster (64% black and Cleveland (53% black).

FN24. See Prior R & R at 38-40. 83. Plaintiffs have presented proposed findings addressing some of the sixteen schools which currently have 40% or more black student enrollments in terms of their location

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.)

Shaw Elementary and Witter Elementary FN27. Students who attend Sulphur Springs and Cleveland also attend Adams Middle School. (PX at 7) Graham Elementary and Foster Elementary *12 88. Plaintiffs also point out that Graham (67% black) and Foster (61% black) are in a cluster with Broward (34% black), Egypt Lake (22% black), Mendenhall (30% black), and Seminole (37% black). (PX 7 at 3; DX 7 at 3, 7-9, 13, 17) 89. With the exception of Seminole, which is to the southwest of the Foster attendance zone (divided by 12th Street), none of the other schools which adjoin Foster are under 40% black. Instead, Foster is bordered by Sulphur Springs (80% black), Cahoon (55% black), and Edison (78% black). (DX 8 at 5) Also, the dividing line between the attendance zones for Graham and Broward is Indiana Street. Graham is also divided from Tampa Bay Boulevard Elementary (27% black) by the Hillsborough River. (DX 8 at 6) 92. Shaw (56% black) and Witter (54% black) are in a cluster with Tampa Palms Elementary School and two other elementary schools to be built after the 1995-1996 school year. (PX 7 at 3) Tampa Palms Elementary School is 14% black. (DX 7 at 19) Although a satellite attendance zone for Hunter's Green adjoins both the Shaw and Witter attendance zones (DX 8 at 9, 12), there is no indication that the Hunter's Green attendance zone adjoins either Shaw or Witter and that would be unlikely since, by definition, a satellite attendance zone is a non-contiguous attendance zone.

Oak Park Elementary 93. Plaintiffs' proposed findings do not address Oak Park. Its attendance zone is adjoined by the attendance zones for Palm River, DeSoto, and Kenly, all of which had a black enrollment of 35% or more for the first month of the 1996-1997 school year. (DX 8 at 8)

Robles Elementary 90. Robles (90% black) is in a cluster with Folsom (29% black). (PX 7 at 3; DX 7 at 8). While the Folsom attendance area adjoins Robles to the east, the two zones are separated by a CSX railroad track. Also, the other attendance areas surrounding Robles are Riverhills (45% black) and Cahoon (55% black). (DX 8 at 9) FN28

94. Dr. Stevens testified at the unitary status hearing that he had "not drawn any plan for any particular school" for reducing the percentage of black students at the schools which have a black student enrollment of 40% or more. (T4 at 206) FN29

FN28. In 1975 or 1976 the School Board considered converting Robles to a sixth-grade center as a way to reduce the increased black enrollment at the school. However, after talking to the parents in the Robles neighborhood, the School Board dropped that idea because the parents who lived in that area were opposed to it. (T7 at 220) Cahoon Elementary 91. Cahoon (52% black) is in a cluster with Hunter's Green Elementary School (19% black). (PX 7 at 3; DX 7 at 9) Hunter's Green is not an adjoining school zone, however. Instead, Cahoon is adjacent to Witter (55% black), Temple Terrace (34% black), Riverhills (45% black), Robles (88% black), Foster (64% black), Sulphur Springs (80% black) and Shaw (59% black). (DX 8 at 1)

FN29. Dr. Stevens is also an expert in school desegregation cases. He has never testified on behalf of a school system, however, or in favor of a declaration of unitary status as to student assignment. (T4 at 154) Magnet Schools and Programs 95. Magnet programs are one of the most effective desegregation techniques employed by school boards today. 96. When the Court approved the Consent Order in 1991, a key objective of the Middle School Plan was to locate magnet programs in the inner city schools where the greatest number of black students reside. Today, all ten elementary school programs are located in neighborhoods which consist primarily of black residents. (T1 at 177) *13 97. As suggested by its name, the magnet program or school offers a special curriculum which is designed to attract students based on their special interests. Students who attend magnet programs are provided transportation

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.) if needed. (T1 at 173-74) For the 1996-1997 school year, defendants offered twelve magnet programs. Three additional magnet programs will be offered for the 19971998 school year. (T1 at 143) 98. Mary Ellen Elia, director of the School Board's magnet school program, estimated that by the time the program is fully implemented, almost 90,000 students will be participating in magnet programs in Hillsborough County. (T1 at 170) All of the magnet programs and schools opened so far have been successful. (T1 at 154) 99. The School Board actively markets its magnet programs, including advertising in the media. The staff responsible for the magnet programs also meet with community groups across the county. (T1 at 144-50) 100. As there are more applicants than openings in the programs, lists of students are made by computer random draw. Students are then selected based on gender, ethnicity, and grade level. Gender and ethnicity are used as selection criteria to achieve a balanced population. (DX at 10) Also, applicants living closest to the school are given priority in at least some situations. FN30 (T1 at 162)

103. The percentage figure of 23% for black student enrollment was part of the Middle School Task Force Plan. Plaintiffs and defendants agreed to this figure as part of their negotiations. However, the Plan also provides that if students from other minority groups do not apply for the magnet programs, black students may be accepted into the programs as long as total black enrollment does not exceed 40%. (Elia affidavit at 3-4)

Special Transfer Requests Including Majority to Minority Transfers 104. The Court's July 1971 Order set out specific criteria the School Board was to follow in handling requests to transfer students from one school to another. (July 1971 Order, at 11, Ex. 2) The Court has not altered the School Board's obligations since that time. *14 105. The only grounds authorized for transfers are: (1) majority to minority transfers; (2) transfers recommended by the juvenile court; (3) transfers for exceptional children; (4) transfers for children of School Board teachers and staff to their parents' place of employment; (5) transfers to attend Tampa Bay Vocational-Technical High School; and (6) transfers in cases of severe hardship after determination of each case by the School Board. 106. Transfers under (3),(5), and (6) can be approved by the School Board only after considering recommendations from the BiRacial Committee. They are to be considered without regard to race except transfers are not to be approved if made for the purpose of avoiding desegregation. Transfers under (1) and (4) are to be reported to the Bi-Racial Committee. 107. Majority to minority ("M to M") transfers allow a student to transfer from a school in which his race is in the majority to attend the closest school to his residence in which his race is in the minority. Transportation is to be provided if the school to which a student is transferred is more than two miles from the student's home. 108. It appears that no M to M transfers have ever been sought from the School Board. (T1 at 90-91) Although parents were generally familiar with the special transfer requests, they did not seem familiar with M to M requests. Dr. Miliziano, the Superintendent's Administrative Assistant, testified that not until recently did the School Board start evaluating special assignment requests made on other grounds to determine whether the children seeking the transfer would be eligible for an M to M transfer. The transfer request forms now have a request for the race of the student to be listed. The transfer

FN30. Hillsborough County has both magnet programs and magnet schools. It is not clear from the testimony whether students applying for magnet programs also receive first priority if the live closest to the schools. (T1 at 161-64) 101. In order to obtain federal funding for the magnet school program, the School Board had to establish that it would foster desegregation and attract substantial numbers of students of different racial backgrounds. FN31 Under the School Board's plan, students who are members of a minority group can comprise up to 40% of the students participating in the magnet programs or attending magnet schools. (T1 at 166) That percentage was chosen because it represents the total percentage of students within the school system who belong to a minority group. (Dkt. 808, Affidavit of Mary Ellen Elia) ("Elia affidavit")

FN31. See 34 C.F.R. § 280.1 et. seq. (1996). 102. The magnet school plan also specifies the percentage of particular minority groups within the 40% cap who may be admitted under the plan: 23% Black; 14% Hispanic; 2% Asian Pacific Islanders; and .02% American Indians. (T1 at 166)

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.) requests sought on other grounds are granted if the request would qualify as an M to M request. (T1 at 90-92) 109. The M to M transfer program is now publicized as a result of a recommendation by School Board staff in July 1995. (PX 14) Since the policy has been publicized there have been no specific M to M transfer requests. (T1 at 106) 110. Dr. Stevens, plaintiffs' desegregation expert, would like to see the School Board do more marketing of the M to M transfer program but agreed that use of the M to M transfers would not make a big difference in alleviating racial imbalances. (T4 at 195) 111. Dr. Stevens studied other types of special transfers and concluded that defendants' granting other transfer requests had increased the racial imbalances at seven of the imbalanced elementary schools for the year 1995. His study indicated that the percentage of black students enrolled in those schools (Cahoon, Cleveland, Foster, Graham, Robles, West Tampa, and Witter) experienced increases ranging from five to seven percent as a result of special assignments allowing students to attend those schools who are not really assigned to them. (T 4 at 12930) (PX 1 at 13) 112. This issue was addressed at the prior hearing on plaintiffs' motion to enforce court order. In effect, Dr. Stevens believes the Court should reconsider its prior directive to the School Board to grant transfers for extreme hardship "without regard to race" if the effect of that policy would be to contribute to racial imbalance. (PX 1 at 12-13) For the reasons stated previously, for this Court to order defendants to deny black parents severe hardship transfers for their children because the transfers would adversely impact race ratios is neither practical nor wise. (Prior R and R at 24-26) *15 113. No evidence was presented that the School Board has failed to follow the Court's directives as to special assignments.

FN32. Defendants used district-wide employee data from the 1993-1994 school year at the unitary status hearing. (T2 at 134) 115. According to Marilyn Whittner, Director of Human Resources, the School Board has "a dearth of minority applicants for our teaching positions and we are constantly seeking minority teachers." (T2 at 105) The School Board focuses recruitment efforts at colleges with a substantial percentage of black graduates. 116. Additionally, a mentoring program has been instituted for black teachers who aspire to be administrators. More than one-half of the graduates of that program have been placed in administrative or teacher resource positions. (T2 at 108-09; PX 14) 117. For instructional and non-instructional personnel, the principal at an individual school interviews prospective applicants and is authorized to make offers contingent on approval by School Board and staff. Principals are given criteria for open positions. If Human Resources determines that a new hire would adversely affect the racial ratio at a particular school it will disapprove the offer unless no qualified candidates are available. (T2 at 112-16) 118. Instructional personnel employed by the School Board are represented by a union which negotiates salaries based on the level of service and academic degree held by the employee. These salary levels are applied across-the-board to all teachers. (T2 at 114-15) 119. There are currently no schools in which black teachers or staff constitute a majority at any school nor has that situation existed in the past since the 1971 Order was entered. (DX 7) 120. The parties' experts differ on whether some schools are racially identifiable due to their faculty and staff compositions. Using a 15% deviation standard, Dr. Stevens identified twelve elementary schools which are not in compliance with the district-wide ratio. However, Dr. Armor, defendants' expert, did not find any schools which fit into this category. This is because Dr. Armor used only faculty data; Dr. Stevens used data from the annual reports which aggregate faculty and staff and include non-certified personnel. (T4 at 139) However, the 14% figure cited by defendants referred only to black faculty, not staff. (T2 at 130, 132) 121. None of the Court's Orders have ever required the School Board to provide racial balance at the upper management level. However, plaintiffs note the paucity of

FACULTY AND STAFF ASSIGNMENTS 114. For the 1993-1994 school year, 14% of the teachers in Hillsborough County were black. For the same year, blacks constituted 17% of the principals, 22.2% of the assistant principals, and 7.9% of the district administrators (at the main school board office). Of the noninstructional permanent personnel, 16.1% were black. Black teacher aides comprise 25.3% of the total teacher aides employed by the county. FN32 (T2 at 132-135)

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.) upper-level black administrators during the time the School Board has operated under court supervision. During this period, only one of the six Assistant Superintendent positions has been held by a black individual: Assistant Superintendent of Support Services. (T7 at 145-47) *16 122. Defendants have never been found liable for racial discrimination in employment based on records which have been maintained since at least 1977. Some complaints have been resolved at the administrative stage. (T7 at 199-200) 123. The School Board has in place grievance procedures which can be utilized by parents and students as well as employees and includes various levels of review, including a public hearing before the School Board. Student handbooks distributed to every student at the start of the school year outline these procedures. (T7 at 20104) 124. Dr. Samuel Horton, an educator with the School Board between 1977 and 1991, served as General Director of Secondary Education where he helped develop guidelines for the gifted program among other programs. He noted the absence of any blacks in assistant superintendent positions during that time. Dr. Horton, who is African American, stated that he applied twice for the position of Assistant Superintendent for Instruction but was not selected either time. While he did not file a grievance, Dr. Horton testified that he believed he was not selected due to his race. (T6 at 88-96; 103) 125. Ann Porter, head of the Tampa branch of the NAACP, testified about concerns about black males being denied employment opportunities and other complaints she receives. FN33 Ms. Porter, who is African American, meets with the Superintendent and staff on the average of once or twice a month. This working relationship has become stronger with the current Superintendent, Dr. Earl Lennard. Although she is opposed to a declaration of unitary status at this time, Ms. Porter admitted that many complaints are resolved through these informal meetings. (T6 at 139-41)

126. With regard to transportation of students, the School Board's obligation has been to insure that bus routes and assignment of students to buses "assures the transportation of all eligible students on a non-segregated and otherwise non-discriminatory basis" and to regularly re-examine its transportation system. (July 1971 Order at 10) 127. In 1996, the School Board transported approximately 80,000 students daily. It is the fifth largest school district in the nation in terms of the numbers of students transported. (T1 at 123) For the 1994-95 school year, the School Board received over $17 million in state funding for transportation. (DX 24) 128. As required by Florida law, any student attending a school two or more miles from his residence must be furnished transportation by the school district. (DX 21) The School Board has always complied with this requirement. (T1 at 122-25) 129. The School Board provides transportation for all students who qualify and no distinctions are drawn as to race. (T1 at 131-33) 130. The desegregation technique adopted in the 1971 Order involved closing the formerly all-black schools and assigning them to "satellite" attendance zones. (T4 at 13536) *17 131. The School Board has maintained data on the number of students transported annually and their race. For the 1995-96 school year, approximately 18,400 students were transported for desegregation purposes including students attending magnet schools. (PX 1 at 20) 132. Of this number, more black students than white students were transported at each of the three school levels: elementary, middle, and high school. (PX 1 at 20) FN34

FN33. Ms. Porter was not asked about a venture between the University of South Florida and the School Board launched in August 1995 to place black male teachers with the School Board after graduation. (DX 14, "Project PILOT" documents) TRANSPORTATION

FN34. Of the elementary students transported 23% were black and 10% were white. At the middle school level 26% were black and 18% were white. Of the high school students, 24% were black and 8% were white. (PX 1 at 20) 133. At no time after the 1971 Order was entered did plaintiffs raise any objection about the number of students bused, including when the desegregation plan was modified in the 1991 Consent Order due to implementation of the middle school plan. 134. Part of the reason for adopting the Middle School

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Not Reported in F.Supp. Not Reported in F.Supp., 1997 WL 33479029 (M.D.Fla.) (Cite as: Not Reported in F.Supp.) Plan was to allow students to attend schools close to their homes as much as possible. (T1 at 65) 135. Although the 1971 Order did not require provision of transportation for after-school activities, the School Board provides "activity buses" for after-school activities to afford students living in satellite areas (a non-contiguous attendance zone area) the opportunity to participate in those activities if they were not able to provide their own transportation. Because the junior high schools are being phased into middle schools which are "self-contained" in their activities, the activity buses are primarily used at the high schools. (T1 at 123-30) Activity buses are provided for any students who need to stay after school for any reason, and are not limited to athletics or clubs. (T1 at 138-41) 136. In 1989 the School Board examined whether providing only one activity bus per satellite area met the needs of the students. The Superintendent and his staff determined that more than one activity bus per school might be needed on certain days due to the number of activities and events scheduled at the schools. (DX 23) 137. This policy was implemented and remains in effect today. The School Board supervisor of transportation surveys schools on a weekly or daily basis to determine the number of buses needed. (T 131-36; 138-41)

athletics hopes to provide athletic programs at the middle schools in the future. (T1 at 114-15; 119-20) *18 142. Of total student participation in athletics, approximately 23% of the athletes were black and approximately 77% were white for the school year 199697. Participation varied from school to school and sport to sport. For example, total participation in basketball for black students was 54% (males) and 49% (females). On the other hand, participation by blacks on high s