                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0183p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                   X
 ROBINSON, infant, by Melvin Robinson, their -
 CLAUDE BERNARD ROBINSON and JULIA D.
                                                    -
 father and next friend, et al.,                    -
                             Plaintiffs-Appellees, -
                                                                 Nos. 07-6076/6363

                                                    ,
                                                     >
                                                    -
                  Plaintiff-Intervenor-Appellee/ -
 UNITED STATES OF AMERICA,

                                 Cross-Appellant, -
                                                    -
                                                    -
                                                    -
                                                    -
            v.
                                                    -
                                                    -
 SHELBY COUNTY BOARD OF EDUCATION,
          Defendant-Appellant/Cross-Appellee. N
                         Appeal from the United States District Court
                      for the Western District of Tennessee at Memphis.
                      No. 63-04916—Bernice B. Donald, District Judge.
                                     Argued: July 25, 2008
                              Decided and Filed: May 21, 2009
                                                                                             *
       Before: COOK and GRIFFIN, Circuit Judges; MARBLEY, District Judge.

                                      _________________

                                           COUNSEL
ARGUED: Valerie Barnes Speakman, SHELBY COUNTY SCHOOLS, Memphis,
Tennessee, for Appellant. April J. Anderson, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Valerie Barnes Speakman,
SHELBY COUNTY SCHOOLS, Memphis, Tennessee, for Appellant. April J.
Anderson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees.
    GRIFFIN, J., delivered the opinion of the court, in which COOK, J., joined.
MARBLEY, D. J. (pp. 19-42), delivered a separate dissenting opinion.




        *
           The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                  1
Nos. 07-6076/6363              Robinson, et al. v. Shelby County Bd. of Educ.                         Page 2


                                         _________________

                                                OPINION
                                         _________________

         GRIFFIN, Circuit Judge. This appeal presents the final chapter in the court-
ordered desegregation of the Shelby County, Tennessee, public school system, a process
which began forty-five years ago. In 1963, plaintiff public school students1 filed this
class action against defendant Shelby County Board of Education (“Board”) alleging
unconstitutional racial segregation in the Shelby County schools. In the ensuing period,
the district court issued numerous orders requiring the elimination of all vestiges of
state-imposed public school segregation in accordance with the mandate of Brown v. Bd.
of Educ. of Topeka, 347 U.S. 483 (1954). A court-approved desegregation plan was
implemented and in August 2006, after decades of court supervision, the parties moved
jointly to dissolve all outstanding orders, declare the school district a unitary school
system, and terminate the litigation. The United States, which has participated as an
intervenor since 1966, supported the motion.2

         Despite the parties’ universal agreement that the goals of the desegregation plan
have been satisfactorily fulfilled and that educational parity has been attained, the district
court disagreed that the constitutional requirements for unitary status have been met in
all relevant respects. Consequently, although the court granted the joint motion in regard
to facilities, transportation, and staffing, it denied the motion as it pertained to the areas
of student assignment, faculty integration, and extracurricular activities. The district
court established new “racial ratios” for the racial composition of students and faculty




         1
         At oral argument, counsel asserted that throughout this litigation plaintiffs have been represented
by the NAACP Legal Defense and Education Fund.
         2
           In its response to the joint motion, the United States advised the district court that “[t]he United
States has not received any complaints concerning the district’s compliance with its desegregation
obligations.” Further, after the conclusion of two “fairness hearings,” see generally UAW v. Gen. Motors
Corp., 497 F.3d 615, 635 (6th Cir. 2007), the United States represented: “It would appear on whole that
the defendant has complied in good faith with the deseg[regation] orders and . . . under applicable legal
principles they are entitled to a dismissal.”
Nos. 07-6076/6363               Robinson, et al. v. Shelby County Bd. of Educ.                        Page 3


which it expected to be met no later than October 2012. The court anticipated that if its
new orders were followed, it would end its school supervision by October 2015.3

         Defendant Shelby County Schools now appeals the portion of the district court
order denying the joint motion for unitary status. The intervenor United States appeals
the remedy ordered by the district court for faculty integration.4

         For the reasons stated below, we hold that the district court abused its discretion
by denying the parties’ joint motion for unitary status regarding student assignment,
faculty integration, and extracurricular activities. Accordingly, we reverse, in part, the
order of the district court and remand with instructions to grant in full the parties’ joint
motion for declaration of unitary status, dissolve all outstanding orders and injunctions
as to the Board and its members, and dismiss this action as to all parties and claims.

                                                       I.

         In general, “‘[t]he acceptance of a settlement in a class action suit is discretionary
with the court and will be overturned only by a showing of abuse of discretion.’” Clark
Equip. Co. v. Int’l Union, Allied Indus. Workers of Am., AFL-CIO, 803 F.2d 878, 880
(6th Cir. 1986) (quoting Laskey v. UAW, 638 F.2d 954, 957 (6th Cir. 1981)). See also
Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008) (“We review a district court’s
approval of a settlement as fair, adequate, and reasonable for abuse of discretion.”)
(citation omitted).

         In the specific setting of a school desegregation class action, “[w]here the relief
sought in the district court is the dissolution of a[] [desegregation decree], the order of
the district court is subject to a mixed standard of review.” Manning ex rel. Manning v.
School Bd. of Hillsborough County, 244 F.3d 927, 940 (11th Cir. 2001). We review the
district court’s partial denial of the parties’ joint motion to dissolve the desegregation
decree for an abuse of discretion. Id. (citation omitted); see also Little Rock Sch. Dist.

         3
           On April 24, 2008, a different panel of this court granted defendant’s motion to stay the order
of the district court pending our resolution of the merits of this appeal.
         4
             Plaintiffs moved unsuccessfully to file a late brief in support of the Board’s appeal.
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.             Page 4


v. Pulaski County Special Sch. Dist. No. 1, 921 F.2d 1371, 1391 (8th Cir. 1990)
(reviewing district court’s rejection of settlement plan in school desegregation case for
abuse of discretion); Armstrong v. Bd. of School Directors of City of Milwaukee, 616
F.2d 305, 319 (7th Cir. 1980), overruled in part on other grounds by Felzen v. Andreas,
134 F.3d 873 (7th Cir. 1998) (holding that the abuse of discretion standard “is not
reserved only for purely economic [class action] litigation” and thus “will govern our
review of the district court’s approval of the [desegregation] settlement proposal.”).

       The district court’s application of the law is subject to de novo review, while the
court’s factual findings, including its determination that a school district has not
achieved unitary status, fall under the clearly erroneous standard of Federal Rule of Civil
Procedure 52(a). Manning, 244 F.3d at 940 (citations omitted); Holton v. City of
Thomasville School Dist., 425 F.3d 1325, 1336 (11th Cir. 2005) (citations omitted).
“Courts of appeals view the facts in the light most favorable to the settlement.”
Armstrong, 616 F.2d at 315 (citation omitted).

                                            II.

       The procedural history of this class action, which is set forth in detail in the
district court’s order addressing the parties’ joint motion for a declaration of unitary
status, reflects four decades of slow but steady progress in the removal of all vestiges of
state-imposed public school segregation. The present-day posture of the case finds the
parties at a new crossroads – facing the rare and atypical situation in which a district
court has rejected, in part, a reasonable and good-faith joint motion by plaintiffs and
defendant to declare a school system unitary. See Wendy Parker, The Decline of
Judicial Decisionmaking: School Desegregation and District Court Judges, 81 N.C. L.
REV. 1623, 1636-37 nn.76-80 (2003) (symposium) (collecting cases in which joint
motions for unitary status were approved).

       In applying the abuse-of-discretion review standard to these uncommon
circumstances, we acknowledge as a preliminary matter that a district court’s
“familiarity with the litigants and the litigation [in a long-standing desegregation suit]
is a valuable asset which should not lightly be discarded.” Armstrong, 616 F.2d at 319.
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.               Page 5


Nonetheless, it is also well-established that “[p]ublic policy strongly favors settlement
of disputes without litigation . . . . Settlement agreements should therefore be upheld
whenever equitable and policy considerations so permit.” Ford Motor Co. v. Mustangs
Unlimited, Inc., 487 F.3d 465, 469 (6th Cir. 2007) (quoting Aro Corp. v. Allied Witan
Co., 531 F.2d 1368, 1372 (6th Cir. 1976)). See also Gen. Motors Corp., 497 F.3d at 632
(noting “the federal policy favoring settlement of class actions”) (citation omitted). This
policy applies equally to desegregation cases. See Little Rock Sch. Dist., 921 F.2d at
1388 (noting that “[a] strong public policy favors agreements, and courts should
approach them with a presumption in their favor” in ordering the district court to
approve a desegregation settlement plan.).

        The voluntary settlement of school desegregation controversies is to be
encouraged, even though such litigation implicates the important civil rights of the
plaintiff class:

        [D]espite the importance of the substantive rights of the class members,
        settlement is an appropriate method of arriving at a school desegregation
        remedy. While courts should be extremely sensitive to the possibilities
        for abuse where a compromise of the civil rights of a class is proposed,
        a blanket prohibition of compromise could result, in many cases, in
        abandonment of the substantial benefits which can result from voluntary
        resolution of litigation, without a commensurate increase in the
        protection accorded the civil rights of the class. Indeed, it appears that
        school desegregation is one of the areas in which voluntary resolution is
        preferable to full litigation because the spirit of cooperation inherent in
        good faith settlement is essential to the true long-range success of any
        desegregation remedy. A remedial decree reached through agreement
        between the parties may, because of the community cooperation it
        inspires, more effectively implement the constitutional guarantee of equal
        protection than a seemingly more stringent court-ordered remedy which
        the community views as imposed upon it from the outside.
Armstrong, 616 F.2d at 317-18 (internal citations omitted).

        In Armstrong, the Seventh Circuit Court of Appeals applied the abuse-of-
discretion standard in affirming the district court’s approval of a settlement agreement
terminating a public school desegregation class action. We find its extensive analysis
to be instructive. The Armstrong court held correctly that even “a school desegregation
Nos. 07-6076/6363          Robinson, et al. v. Shelby County Bd. of Educ.              Page 6


plan devised through voluntary means . . . must attain a certain minimum level of
constitutional compliance.” Id. at 319 (citing Liddell v. Caldwell, 546 F.2d 768 (8th Cir.
1976)). Consequently, when a proposed settlement is on the table,

       [a] federal court cannot permit an agreement between counsel for the
       defendants and counsel for the plaintiff class seriously to undercut the
       constitutional policy requiring desegregation of our nation’s schools; this
       is true even where the class members themselves do not oppose a
       particular settlement. At the same time, however, the court cannot
       disregard the desire of the litigants amicably to settle their litigation nor
       can it ignore the substantial benefits which can accrue to both the class
       members and the general public from a fair and adequate settlement of
       a school desegregation controversy.
Armstrong, 616 F.2d at 319.

       Thus, the district court must delicately balance these competing interests before
deciding whether the proposed settlement is fair. The bottom line, as the Armstrong
court explained, is that

       no settlement [should] be approved which either initiates or authorizes
       the continuation of clearly illegal conduct. A school desegregation
       settlement which authorizes clearly unconstitutional behavior is, on its
       face, neither fair, reasonable nor adequate as required by the class action
       standard. In applying this principle, however, the court must not decide
       unsettled legal questions; any illegality or unconstitutionality must
       appear as a legal certainty on the face of the agreement before a
       settlement can be rejected on this basis.
Id. at 319-20 (internal citations omitted).

       Significantly, in assessing whether the settlement is fair, equitable, and
reasonable, “the district court must not forget that it is reviewing a settlement proposal
rather than ordering a remedy in a litigated case.” Id. at 314-15. Accordingly,
“[b]ecause settlement of a class action, like settlement of any litigation, is basically a
bargained for exchange between the litigants, the judiciary’s role is properly limited to
the minimum necessary to protect the interests of the class and the public. Judges
should not substitute their own judgment as to optimal settlement terms for the judgment
of the litigants and their counsel.” Id. at 315 (emphasis added).
Nos. 07-6076/6363         Robinson, et al. v. Shelby County Bd. of Educ.               Page 7


        The Eighth Circuit Court of Appeals echoed these sentiments in Little Rock Sch.
Dist., a case in which it reversed a district court’s rejection of a joint motion to settle the
Little Rock, Arkansas, school desegregation case:

        The most important fact about the present appeals is that they arise out
        of settlements agreed to by all parties in the District Court. We believe
        the District Court erred by failing to give sufficient weight to that fact.
        It treated the case almost as if it were a fully contested matter . . . . We
        respectfully disagree with this approach. The law strongly favors
        settlements. Courts should hospitably receive them. This may be
        especially true in the present context – a protracted, highly divisive . . .
        litigation, any lasting solution to which necessarily depends on the good
        faith and cooperation of all the parties, especially the defendants. As a
        practical matter, a remedy that everyone agrees to is a lot more likely to
        succeed than one to which the defendants must be dragged kicking and
        screaming.
        This does not mean that a court must automatically approve anything the
        parties set before it . . . . [T]his is a class action, and courts are not
        obliged (indeed, they are not permitted) to approve settlements that are
        unfair to class members, or negotiated by inadequate class
        representatives.
                                            ***
        We are bound to respect this factual agreement by the parties. There is
        no evidence in this record to contradict it, and we must believe that
        counsel for the [] intervenors are the best defenders and guardians of the
        interests of their own clients. This is, after all, no ordinary litigation.
        The NAACP Legal Defense and Educational Fund, its lawyers and its
        predecessors, have vigorously prosecuted this case and its ancestors for
        more than 30 years. Absent an extremely good reason – and we have
        been given none – we are reluctant to disregard their judgment as to
        what is best for their own clients.
Little Rock Sch. Dist., 921 F.2d at 1383, 1386 (emphasis added).

        We, too, endorse this approach, which “take[s] into account . . . the special
concerns implicit in [civil rights] class action settlements while still preserving the
essential character of settlement of a lawsuit.” Armstrong, 616 F.2d at 315. Thus, while
the district court should not give “rubber stamp approval” in lieu of independent review
to the parties’ joint unitary status motion, id., it must afford considerable weight to the
Nos. 07-6076/6363         Robinson, et al. v. Shelby County Bd. of Educ.              Page 8


joint motion when it is reasonable, filed in good faith, and demonstrates that the
constitutional mandate requiring desegregation has been satisfied.

                                            III.

        In evaluating the district court’s partial rejection of the parties’ joint motion for
unitary status, it is important that we briefly highlight the legal precedent that forms the
backdrop of this prolonged desegregation litigation.

        The duty and responsibility of a school district once segregated by law
        is to take all steps necessary to eliminate the vestiges of the
        unconstitutional de jure system. This is required in order to ensure that
        the principal wrong of the de jure system, the injuries and stigma
        inflicted upon the race disfavored by the violation, is no longer present.
        This was the rationale and the objective of Brown I [v. Bd. of Educ., 347
        U.S. 483 (1954)] and Brown II [v. Bd. of Educ., 349 U.S. 294 (1955)].
Freeman v. Pitts, 503 U.S. 467, 485 (1992).

        The Supreme Court has held that the “transition to a unitary, nonracial system
of public education was and is the ultimate end” of its desegregation jurisprudence.
Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 436 (1968) (citing Brown
I, 349 U.S. at 299-301). Although “the term ‘unitary’ is not a precise concept,”
Freeman, 503 U.S. at 487, the Supreme Court identified certain features of the school
system that must be freed from racial discrimination before the desegregation process
will be deemed successful and local control will be allowed to resume: student
assignment, faculty assignment, staff assignment, facilities and resources, transportation,
and extracurricular activities. Green, 391 U.S. at 435.

        The Court has since provided guidance for determining whether a school district
has met its obligation under a desegregation decree. “The ultimate inquiry is whether
the [constitutional violator] ha[s] complied in good faith with the desegregation decree
since it was entered, and whether the vestiges of past discrimination ha[ve] been
eliminated to the extent practicable.” Missouri v. Jenkins, 515 U.S. 70, 89 (1995)
(citation and internal quotation marks omitted). The Court has described a number of
factors to consider, including:
Nos. 07-6076/6363         Robinson, et al. v. Shelby County Bd. of Educ.              Page 9


        whether there has been full and satisfactory compliance with the decree
        in those aspects of the system where supervision is to be withdrawn;
        whether retention of judicial control is necessary or practicable to
        achieve compliance with the decree in other facets of the school system;
        and whether the school district has demonstrated, to the public and to the
        parents and students of the once disfavored race, its good-faith
        commitment to the whole of the court’s decree and to those provisions
        of the law and the Constitution that were the predicate for judicial
        intervention in the first instance.
Freeman, 503 U.S. at 491.

        Finally, the Supreme Court has emphasized that the extreme remedy of federal
judicial supervision of local school systems was intended to be a temporary act limited
to curing the effects of prior discrimination. “Returning schools to the control of local
authorities at the earliest practicable date is essential to restore their true accountability
in our governmental system.” Freeman, 503 U.S. at 490. Thus,

        [s]uch decrees, unlike the one in [United States v.] Swift [& Co., 286 U.S.
        106, 119 (1932)], are not intended to operate in perpetuity. Local control
        over the education of children allows citizens to participate in
        decisionmaking, and allows innovation so that school programs can fit
        local needs. Milliken v. Bradley, 418 U.S. 717, 742 (1974) (Milliken I);
        San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 50 (1973). The
        legal justification for displacement of local authority by an injunctive
        decree in a school desegregation case is a violation of the Constitution by
        the local authorities. Dissolving a desegregation decree after the local
        authorities have operated in compliance with it for a reasonable period
        of time properly recognizes that “necessary concern for the important
        values of local control of public school systems dictates that a federal
        court’s regulatory control of such systems not extend beyond the time
        required to remedy the effects of past intentional discrimination.
Bd. of Educ. of Oklahoma City v. Dowell, 498 U.S. 237, 248 (1990) (citations omitted).

                                             IV.

        In the present case, the district court denied unitary status in the areas of student
assignment, faculty integration, and extracurricular activities. As we explain below, the
district court abused its discretion by not affording sufficient weight to the parties’ joint
motion and its factual basis.
Nos. 07-6076/6363       Robinson, et al. v. Shelby County Bd. of Educ.            Page 10


                                A. Student Assignment

       On the issue of student assignment, the district court found that the parties failed
to satisfy an evidentiary burden imposed by the court:

       Applying these principles to the case at hand, the Court finds that the
       County is not presently in compliance with its constitutional obligations
       with regard to student assignment. As explained supra, the racial
       composition of the majority of the County schools is substantially
       disproportionate to that of the district as a whole. The Board has made
       no showing that racial balance is infeasible either generally or with
       regard to certain schools. Furthermore, the record does not indicate that
       the County has at any time accomplished its objectives; in fact, after
       making considerable progress towards desegregation, the County has
       seemingly drifted from any serious focus on desegregation.
       While demographic factors, including those caused by annexation of
       portions of the County by the City of Memphis, have clearly played a
       part in creating the present racial composition of the County schools, the
       County has not met its burden of showing that it would have achieved its
       goal had it not been for these factors. Furthermore, as the Supreme Court
       has articulated, the Board’s decisions with regard to school construction
       and zoning have necessarily played an influential role in those
       demographic shifts. Consequently, the Court must assume that the
       remaining significant disparity in racial composition among the schools
       is a product of past de jure segregation.
(Footnote omitted; emphasis added.)

       During the forty-five years of this litigation, the racial composition of the
students attending the Shelby County Schools has fluctuated widely. Although the
school district’s overall student population and minority enrollment have grown rapidly,
the percentage of African-American students in the Shelby County Schools has varied
significantly: 28 percent in 1969; 30 percent in 1971; 15 percent in 1984; 22 percent in
2001; 32 percent in 2005; and 34 percent in 2007. The district court attributed much of
the racial ratio changes to annexations by the City of Memphis: “In 1984, the percentage
of black students systemwide had dropped precipitously, apparently largely due to
annexation into the City of Memphis of portions of the County . . . .” Further, at the
district court’s January 26, 2007, hearing, Assistant Board Superintendent Maura Black
Nos. 07-6076/6363              Robinson, et al. v. Shelby County Bd. of Educ.                       Page 11


Sullivan testified that if the planned City of Memphis annexations are implemented,
Shelby County Schools’ African-American student ratio will decrease to 7.68 percent.

         It is undisputed that political and social decisions beyond defendant Board’s
control have affected and continue to impact the racial ratio of the Shelby County
students. These influences are not causally related to defendant’s violation of the
Constitution and fall outside of the scope of the court’s equitable powers to restore the
victims of discrimination to the position they would have occupied absent the violation.
As the Supreme Court explained in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1 (1971):

         Neither school authorities nor district courts are constitutionally required
         to make year-by-year adjustments of the racial compositions of student
         bodies once the affirmative duty to desegregate has been accomplished
         and racial discrimination through official action is eliminated from the
         system . . . . [Therefore,] 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.
Id. at 31-32. As we further explained in Reed v. Rhodes, 179 F.3d 453 (6th Cir. 1999):

         That there was racial imbalance in student attendance zones was not
         tantamount to a showing that the school district was in noncompliance
         with the decree or with its duties under the law. 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.
Id. at 466 (quoting Freeman, 503 U.S. at 494) (emphasis added).5

         In granting unitary status in three of six areas, the district court “recognize[d] the
great progress the Board has made in desegregating its schools.” Further, the court

         5
           In Reed, we affirmed the district court’s order holding that the Cleveland City School District
was entitled to a declaration of unitary status with respect to pupil assignments, where the district’s record
of compliance stood as an unequivocal manifestation of good faith and “[t]he demographics of recent years
have reflected rapid population shifts within the city that were not caused by or attributable to the
Cleveland School District.” Reed, 179 F.3d at 467 (citation omitted).
Nos. 07-6076/6363          Robinson, et al. v. Shelby County Bd. of Educ.          Page 12


found “no evidence that there has been racial discrimination by the County in the areas
of facilities, transportation or staffing during the last few decades of this case.”
Although the district judge acknowledged at a status conference that de jure racial
discrimination no longer exists in the school district, she nonetheless continued federal
court supervision of student assignment because, in her opinion, the racial ratio in
individual schools was “uneven.” The district judge cited the school district’s new state-
of-the-art Southwind High School as an example of such unevenness; Southwind was
expected to open in the fall of 2007 with an African-American student population of
approximately 88 percent.

          In determining whether the present racial “unevenness” is properly subject to the
court’s equitable remedies, we must decide if the current conditions are vestiges of the
prior unconstitutional de jure system or the products of other actions or conditions.
Reed, 179 F.3d at 466. Following oral argument and our review of the record and briefs,
we conclude that the lower court clearly erred in finding the former, rather than the
latter.

          In the past decades, the vestiges of the racially segregated Shelby School system
have been dismantled. A new “unitary, nonracial system of public education,” Green,
391 U.S. at 436, has risen in its place for which the parties are justifiably proud. The
record reveals that the racial “unevenness” that currently exists in individual schools is
not the product of defendant’s forty-five- year-old constitutional violation. Rather, with
the passage of time and court intervention, other dynamics have now shaped the district
into its current form. The annexations by the City of Memphis, along with voluntary
housing choices made by the public, have drastically altered the racial composition of
the school district. In addition, school construction and student boundaries (including
the new Southwind High School) approved by the district court over the past few
decades have affected the present racial unevenness. Although the district court now
faults itself for “rubber-stamp[ing]” school construction and zoning requests (JA 116),
its role in managing and shaping the school district cannot be ignored.
Nos. 07-6076/6363         Robinson, et al. v. Shelby County Bd. of Educ.              Page 13


        Finally, the Supreme Court requires that we consider “whether the school district
has demonstrated, to the public and to the parents and students of the once disfavored
race, its good-faith commitment to the whole of the court’s decree and to those
provisions of the law and the Constitution that were the predicate for judicial
intervention in the first instance.” Freeman, 503 U.S. at 491.

        On this issue, we are greatly influenced by the position of plaintiffs. The
plaintiffs fought this battle to desegregate the Shelby County Schools. They are the
students, and now parents or grandparents, who suffered from the constitutional
violation. In their view, the battle has been won. They now ask that we declare the
school district to be a unitary, nonracial system of public education. We afford great
weight to the appraisal of the most interested parties to this litigation, particularly where
the record illustrates defendant’s compliance with the desegregation order through the
creation of remedial programs targeting racial inequities and the construction of state-of-
the-art facilities. See Reed, 179 F.3d at 466-67 (citing the school district’s initiatives
“designed to develop self-esteem and enhance the academic potential of all students
regardless of race” and other corrective measures taken in African American schools “to
involve parents and offset negative socioeconomic factors” as evidence of the district’s
good-faith efforts to desegregate the school system).            Under the circumstances,
defendant has satisfactorily complied with the student assignment portion of the
desegregation decree and therefore is entitled to a declaration of unitary status with
respect to this component.

                                  B. Faculty Integration

        For the reasons previously stated, and those recited below, we also hold that the
district court clearly erred in rejecting unitary status as it pertains to faculty integration.

        In this regard, the district court found that defendant Board was likewise “not in
full compliance” with the law because the African-American teacher ratio varied in
individual schools from five percent to thirty percent. In “hindsight,” the court
acknowledged that its prior “focus on this aspect was ill-conceived.” Although noting
that “a school desegregation plan is not an affirmative action program for teachers,” the
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.            Page 14


court reversed its previous approach by directing that the racial ratio of the faculty match
the racial composition of the student population as a whole:

        On this ground, the Court finds that, rather than tying the racial
        composition of a school’s faculty to that of the population of teachers in
        the system as [a] whole, it should be linked instead to the racial
        composition of the student population. Accordingly, the Court finds it
        necessary to depart from its prior directives and concludes that the
        County’s constitutional obligations require the achievement of a racial
        balance reflective of the systemwide student population, within a margin
        of error to be enumerated below and subject to mitigating circumstances
        and a feasibility requirement, as developed supra.
(Footnote omitted; first emphasis in original, second emphasis added.)

        The intervenor United States appeals this remedy arguing that it is unprecedented
and would result in a “bizarre” and “racially discriminatory hiring and firing” of teachers
to keep pace with the ever-changing racial dynamics of the student population.

        At the hearing of January 26, 2007, Assistant Superintendent of Human
Resources Lois Williams, who is African-American, testified about the Board’s
extensive efforts to recruit minority teachers. Ms. Williams testified that under the
supervision of minority recruiter Eddy Jones, who is also African-American, the Board,
during 2005-2006, visited over fifty-five colleges and universities, including “13
historically black colleges and universities in an effort to recruit minority candidates for
teaching positions in the Shelby County Schools.”

        When asked if her decision-making would change if the case were dismissed, Ms.
Williams responded:

        Q.      [Mr. Winchester] Okay. And you understand that we’re asking
                the court to dismiss the Robinson case and – and be free from
                judicial court scrutiny of our recruiting and hiring practices:
        A.      [Ms. Williams] I do understand that, sir.
        Q.      And if that occurs do – do you have thoughts or opinions as to
                whether any of the efforts that are currently undertaken by the
                school – by the school board to recruit, hire, and retain minority
                faculty and administrators would change in any way whatsoever?
Nos. 07-6076/6363              Robinson, et al. v. Shelby County Bd. of Educ.                        Page 15


         A.        I don’t see that it would change.
                   The superintendent, when Dr. Webb mentioned that he came to
                   the Shelby County schools, he held a meeting with human
                   resources and he asked if that department was equipped to
                   recruit, retain and maintain high quality employees.
                   He asked about the minority recruitment effort which he was well
                   aware of the court order.
                   The superintendent has empowered me to make decisions based
                   upon what’s best for the students in Shelby County schools, and
                   we recognize that our schools need to be reflective of the
                   communities that they live in.
                   The superintendent has also empowered me to make decisions
                   based on the staffing within our schools.
                   And so, as we look to recruit, retain, train and maintain highly
                   qualified teaching staff, we certainly have an emphasis on being
                   inclusive and making certain that our school district is reflective
                   of our student population, the community and the world that we
                   live in to prepare students.
         Without citation to the record, the district court found that the defendant Board
was “not in full compliance with its obligations under the law.” We respectfully
disagree.

         In striking down a similar student-based racial hiring plan in Oliver v.
Kalamazoo Bd. of Educ., 706 F.2d 757 (6th Cir. 1983), we explained that “students
. . . do not have a constitutional right to attend a school with a teaching staff of any
particular racial composition. Rather, with respect to the teaching staff, all that the
students are entitled to is the ‘sustained good faith effort to recruit minority faculty
members so as to remedy the effects of any past discriminatory practices.’” Id. at 762
(quoting Fort Bend Indep. Sch. Dist. v. City of Stafford, 651 F.2d 1133, 1140 (5th Cir.
1981)).6 Instead, the court’s orders should require that “the faculty of each school reflect
the systemwide racial ratio of faculty members. . . .” United States v. DeSoto Parish


         6
           In Fort Bend Indep. Sch. Dist., the court held that “a formerly segregated school system need
not employ a faculty having a racial composition substantially equivalent to that of its student body in
order effectively to desegregate its schools and attain unitary status” and concluded that “[t]he district court
erred in imposing such a requirement.” 651 F.2d at 1138.
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.            Page 16


Sch. Bd., 574 F.2d 804, 816 (5th Cir. 1978); United States v. Montgomery County Bd.
of Educ., 395 U.S. 225, 232 (1969).

        Here, as the United States rightly argues, imposition of the district court’s
proposed faculty hiring goals would “effectively turn the purpose of the desegregation
remedy on its head” through the discriminatory hiring and recruitment of faculty:

        Compliance with the district court’s new faculty assignment plan in this
        case could require racially discriminatory hirings and firings. If, in any
        given year, the Board has too few black faculty to staff each school
        within 15% of the systemwide student body, it must fire non-black
        faculty and hire an equivalent number of black faculty in order to meet
        the court’s requirements. This bizarre and unconstitutional reshuffling
        would be repeated as the student population in Shelby County shifts as
        a result of annexation or changing residential patterns, leaving more
        teachers jobless with every racial recount of the student body.
        As the Supreme Court stated in Swann, “where it is possible to identify a ‘white
school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and
staff,” there is a prima facie constitutional violation. Swann, 402 U.S. at 18; see also
Green, 391 U.S. at 434-35. We find ourselves in agreement with Chief Justice Roberts
that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the
basis of race.” Parents Involved in Cmty. Schools v. Seattle Sch. Dist. No. 1, 551 U.S.
701 (2007) (plurality). Race-based hiring of the sort ordered by the district court
violates the Constitution.

        Moreover, we agree with the United States that the district court’s assertion that
each child is constitutionally entitled to “educational guidance which includes teachers
of the student’s own race” is invalid. The Constitution requires only that schools be
staffed so that no school is racially identifiable based on governmental action.
Montgomery County Bd. of Educ., 395 U.S. at 236. As the United States correctly
contends,

        Taken to heart, the court’s “role model” principle could lead to an
        increase in racially identifiable schools as majority black schools are
        increasingly staffed with black faculty. Conversely, the “role model”
        theory “could be used to escape the obligation to remedy [hiring
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.            Page 17


       discrimination] by justifying the small percentage of black teachers by
       reference to the small percentage of black students.” Wygant v. Jackson
       Bd. of Educ., 476 U.S. 267, 276 (1986).
       In Wygant, the Supreme Court expressly rejected the “role model theory” as a
basis for racially based layoff protections because it “allows the Board to engage in
discriminatory hiring and layoff practices long past the point required by any legitimate
remedial purpose.” Id. at 275. The district court’s ruling in the instant case directly
contradicts this principle.

       Finally, as previously discussed supra, the record clearly shows that the racial
disparity ratio from school to school for teachers is not the product of a constitutional
violation, but of other demographic trends. Therefore, the vestiges of the post-
constitutional violation regarding faculty integration have not been demonstrated. In
light of the abundant evidence of the Board’s good faith efforts to recruit and hire
minority faculty despite a state-wide minority teacher shortage, the district court abused
its discretion in failing to afford greater weight to the factual basis submitted by the
parties on this issue and in denying their joint motion.

                              C. Extracurricular Activities

       The district court also denied the parties’ joint motion for unitary status regarding
extracurricular activities. The only explanation for this ruling is the following footnote:
“The Court determined that the issue of extra-curricular activities requires further
inquiry before declaring unitary status as to that area.”

       We conclude that the district court clearly erred by rejecting, without
explanation, the joint motion of the parties. “[T]he district court must clearly set forth
in the record its reasons for approving [or rejecting] the settlement in order to make
meaningful appellate review possible. This is particularly important in civil rights class
actions.” Armstrong, 616 F.2d at 315 (citations omitted). Absent reasons and evidence
to the contrary, the joint motion was entitled to substantial weight in the exercise of the
court’s discretion. The victims of defendant’s past violation of the Constitution are
satisfied with the commitment and success achieved by the Shelby County Schools in
Nos. 07-6076/6363         Robinson, et al. v. Shelby County Bd. of Educ.              Page 18


the area of extracurricular activities. Absent a reasonable explanation, the district court
abused its discretion in ruling otherwise.

                                             V.

        For these reasons, we reverse in part the order of the district court and remand
with instructions to grant in full the parties’ joint motion for declaration of unitary status,
dissolve all outstanding orders and injunctions as to the Board and its members, and
dismiss this action.
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.            Page 19


                                  _________________

                                        DISSENT
                                  _________________

        ALGENON L. MARBLEY, District Judge, dissenting. In reversing the district
court’s carefully considered judgment denying unitary status to the Shelby County
Schools on the subjects of student desegregation, faculty desegregation, and
extracurricular activities, the majority’s reasoning comes to this: the parties have jointly
stipulated to dismissal and such compromises should be encouraged by the courts,
especially in the divisive realm of school desegregation.

        I have no particular quarrel with this general principle, but I do not believe that
the virtues of compromise can compensate for the lack of evidence substantiating that
the County has in fact eliminated, to the extent practicable, all remaining vestiges of
unlawful discrimination. Nothing—not the agreement of the parties jointly to seek
dissolution of the desegregation decree, not the number of years that this case has been
pending and the general progress in race relations nationwide that has occurred in that
time, and not the eagerness of the courts or school boards to restore local control over
community schools—can substitute for evidence showing the Board’s compliance with
the desegregation decree. The evidence in fact reveals that among the forty-four schools
for which the Board has data, two thirds of them are not in compliance with the flexible
benchmark set forth by the district court for measuring racial balance. Furthermore, the
district court has been managing this case since 1963. Based on the court’s knowledge
and experience with this case, it is in the best position to judge the evidence and
determine whether dissolution of the desegregation decree is appropriate at this time.
Because the parties have not carried their burden of showing that the racial disparities
that continue to plague the County’s schools are not the vestiges of past unlawful
discrimination, I would affirm the district court’s judgment.
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.           Page 20


                                  I. BACKGROUND

                A. The History of Desegregation in Shelby County

       The majority opinion does not recount the history of this lengthy and complicated
case. Because I believe that we must consider the entire record to evaluate properly the
district court’s judgment, I set forth the most important facts of the case below.

                                      1. 1963-1971

       The years between 1963 and 1971 were by far the most active in the case’s
history. This period was marked by the County’s early intransigence in adopting
appropriate measures to de-segregate its schools, the intervention of the Department of
Justice (the “Government”) to pressure the County to take its desegregation obligations
seriously, and ultimately, in 1971, the district court’s approval (following a reversal and
remand by this Court) of a comprehensive plan to eliminate the racial identifiability of
all the County’s schools.

       On June 12, 1963, nine years after Brown v. Board of Education, 347 U.S. 483
(1954) was decided, twenty-one public-school students brought this class action against
the Shelby County Board of Education (the “Board”) seeking a declaratory injunction
that the public schools were unconstitutionally segregated and an injunction requiring
the Board to integrate them. (Joint Appendix (“JA”) 156.) In response to the Plaintiffs’
complaint, the Board denied any wrongdoing, but nonetheless submitted a plan to the
district court, which approved it on March 17, 1964. (JA 156-160.)

       This first effort amounted to no more than a “freedom-of-choice” plan, and it
barely qualified as that. “Freedom-of-choice” plans purported to put an end to
segregated schools by permitting African-American students voluntarily to choose to
attend the all-white schools from which they had long been excluded. The Board’s plan,
however, erected numerous obstacles to exercising free choice. It conditioned the
transfer of African-American students into white schools on a showing of good behavior,
acceptable academic performance, sufficient family income, and psychological stability.
(JA 158.)
Nos. 07-6076/6363         Robinson, et al. v. Shelby County Bd. of Educ.             Page 21


        In 1966, two years after the district court approved the Board’s freedom-of-
choice plan, the Government intervened in the case. (JA 160.) In response to a
Government motion criticizing the Board for lack of progress in desegregating its
schools, the district court entered an order making minor modifications to the decree, but
these changes still did not promise to make the mandate of Brown a reality. (JA 162-63.)
By 1967, four years after the Plaintiffs filed suit, and thirteen years after Brown, 100
percent of white students attended the formerly all-white schools and 98.7 percent of
African-American students attended the formerly all-black schools. (JA 165.)

        On January 19, 1967, in response to another Government motion contending that
the Board was shirking its desegregation obligations, the district court again modified
the decree. (JA 284.) The district court tinkered with the plan to make it slightly easier
for African-American students to transfer to the formerly all-white schools, but the
anemic “freedom-of-choice” approach still ruled the day. Although continuing to fall
short in terms of desegregating the student bodies of the Shelby County Schools, the
district court’s January 19, 1967 order was notable because for the first time it spelled
out precise benchmarks for desegregating the County’s faculties. (JA 284.) The court
held that a faculty would be regarded as desegregated when its racial composition
reflected the County-wide composition within a deviation of ten percentage points. (JA
286.) To that end, the court ordered the Board to fill all faculty vacancies with teachers
whose race was under-represented in the school at issue. (JA 286.) In addition, the
district court ordered the Board to implement a program to recruit white teachers to work
in schools whose faculties were predominantly African-American and African-American
teachers to work in schools with predominantly white faculties. (JA 287.)

        To measure the Board’s compliance with these requirements, the district court
ordered it to file certain reports on a regular basis. First, before filling a faculty vacancy
with a teacher of the over-represented race, the Board was required to notify the Court
of its intention to do so, as well as explain its efforts to transfer or hire a teacher of the
under-represented race and why those efforts failed. (JA 288-89.) In its July 26, 2007
order declining to dissolve the desegregation decree, the district court found that
Nos. 07-6076/6363             Robinson, et al. v. Shelby County Bd. of Educ.       Page 22


throughout this litigation, the Board has never once filed this report before
transferring/hiring a teacher of the over-represented race to fill a vacancy.1

        Second, the Board was instructed to submit, on August 1 of each year, a report
providing data on the racial make-up of the faculty in each school, as well as the number
of vacancies that were filled by faculty of the over-represented race. (JA 289.) The
August 1 report was to be supplemented on October 1 of each year. (JA 289.)

        On August 1, 1967, the Board submitted its first annual report on teacher
desegregation. This report showed that the Board employed 1500 teachers. Pursuant
to the district court’s order that the Board re-assign teachers of the opposite race “in all
cases in which the transfer can be accomplished without seriously impairing the
educational program,” (JA 287), the Board reported that it had re-assigned just 128
teachers, or 8.5 percent of the total number. The Board’s October supplement showed
that of the 200 vacancies filled for the upcoming school year, only twelve of these were
filled by teachers of the under-represented race.

        On May 27, 1968, the Supreme Court decided Green v. County School Board of
New Kent County, 391 U.S. 430 (1968). There, the Court held that “freedom-of-choice”
plans were generally inadequate to satisfy the mandate of Brown. Leaving no doubt
about the gravity of the responsibility facing local school boards, the Green Court stated,
“The burden on a school board today is to come forward with a plan that promises
realistically to work, and promises realistically to work now.” Id. at 439. School boards
were instructed to take whatever remedial steps were required to eliminate racial
discrimination “root and branch.” Id. at 438.

        The district court issued another order on July 17, 1968, clarifying the Board’s
desegregation responsibilities in light of Green. (JA 171.) As to faculty desegregation,
the court reiterated that the ratio of African-American to white teachers in each school
was to reflect the County-wide ratio within a margin of ten percentage points. The court
held that this ratio had to be satisfied in the County’s elementary schools (defined as


        1
            The Board does not dispute this finding.
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.           Page 23


grades one through six) by the start of the 1968-69 school year and that it was to be met
in the remainder of the County’s schools by the start of the 1969-70 school year. (JA
172.) The court further ordered the Board to prepare a new desegregation plan designed
to accomplish these goals and otherwise eliminate the racial identifiability of the
County’s schools. (JA 172.)

       On August 15, 1968, the district court provided additional guidance about the
preparation of the Board’s new desegregation plan. (JA 173.) For the first time, the
district court set a benchmark for desegregating the County’s student bodies. The court
ruled that insofar as feasible, the Board should assign students so that the ratio of
African-American to white students in each school reflected the County-wide ratio,
within a margin of ten percentage points. (JA 173.)

       The Board submitted its post-Green plan for the district court’s review on
January 15, 1969. This plan did not come anywhere close to achieving the student racial
balance that the district court had ordered. (JA 175.) The Board admitted that its plan
did not require the desegregation of high school students, but instead permitted them to
remain in the high schools that they were already attending. (JA 175.) As to faculty
desegregation, the Board sought relief from the obligation of achieving any particular
racial ratio among high school teachers, let alone that specified by the district court (a
black-to-white ratio in each school that reflected the ratio in the County as a whole, plus
or minus ten percentage points). (JA 174.) The Board argued that the work of
desegregating high school faculties was made more difficult by the fact that these
teachers were licensed in particular subject areas.

       The Plaintiffs and the Government opposed the Board’s post-Green plan as
inadequate. (JA 175-78.) The district court nonetheless approved it.

       On April 6, 1970, the district court approved certain modifications to the Board’s
desegregation plan. See Robinson v. Shelby County Bd. of Educ., 311 F. Supp. 97, 104-
05 (W.D. Tenn. 1970). Importantly, the court backed away from its earlier insistence
that the County achieve a student racial composition within each school that reflected
the County racial composition within ten percentage points. Rather, the court held that
Nos. 07-6076/6363         Robinson, et al. v. Shelby County Bd. of Educ.            Page 24


the Board was not required to achieve any particular degree of racial balance among its
students and that the most that could be asked was for the Board to “honestly draw[]
unitary geographical zone lines, that is, zones not gerrymandered to preserve segregation
. . . .” Id. at 102. The court stood by its prior pronouncements with respect to faculty
desegregation but added the caveat that efforts to de-segregate high school teachers
should be tempered by considerations of their qualifications. The court stated, “to the
extent feasible, in the light of the qualifications of the teachers and the need for teachers
of particular qualifications in the [secondary] school, such teachers will be assigned and
transferred so that the ratio of white to Negro teachers in each school will be, within a
tolerance of 10%, the same as in the system as a whole.” Id. at 105.

        On appeal of the district court’s April 6, 1970 order, this Court remanded the
case for further consideration of the County’s desegregation obligations. See Robinson
v. Shelby County Bd. of Education, 442 F.2d 255, 258 (6th Cir. 1971). This Court held
that the district court had misapprehended the extent of the County’s affirmative duty
to undo the effects of its past discriminatory conduct. Id. at 258 (“Where there has been
a history of state-imposed segregation of the schools, it is not sufficient to adopt a plan
which, out of context, might be seen as nondiscriminatory but which does not do as
much to disestablish segregation as an alternative proposal which is feasible and
pedagogically sound.”).

        In response, the district court approved a revised desegregation plan in August
1971. See Robinson v. Shelby County Bd. of Educ., 330 F. Supp. 837, 843-47 (W.D.
Tenn. 1971), aff’d 467 F.2d 1187 (6th Cir. 1972). This plan was largely that advanced
by the Board, but the district court also accepted certain suggestions from the Title IV
Center at the University of Tennessee, as well as the Government. Id. at 843. This latest
effort apparently dealt exclusively with student desegregation. Id.
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.            Page 25


                                      2. 1971-2006

        The Board’s 1971 desegregation plan approved by the district court marked the
last substantial revision to the Board’s desegregation efforts in the history of this case.
It was also virtually the last time that either the Plaintiffs or the Government challenged
any of the Board’s decisions as contrary to its desegregation obligations, or argued that
the Board was not complying with the plan’s requirements. Perhaps due in large part to
the lack of adversarial litigation, the record is rather thin on evidence showing what
progress, if any, the Board made toward dismantling the vestiges of unlawful
discrimination in its schools. It appears that neither the Plaintiffs, the Government, nor
the district court required much in the way of statistical data tracking the racial
composition of the County’s students and faculty over time.

        To begin with, very little can be gleaned from the record about what was
happening with student desegregation. There is almost no evidence documenting the
racial composition of each school from year to year (and comparing that to the County-
wide ratio), the indicators the Board used, if any, to gauge its progress, the obstacles the
Board confronted, or how it made decisions in operating the County’s schools to ensure
its full compliance with the desegregation decree. The definition of “success” and the
Board’s path to arrive there are not clear. For instance, between August 20, 1974 and
August 3, 2004, the district court entered more than fifty consent orders modifying the
decree as to such things as school-attendance zones and new-school construction. (JA
192-234.) It appears that the Board rarely provided information about the impact these
modifications would have on the student racial composition of each of the schools. The
record suggests that the Board often did no more than conclusorily state that the changes
were not expected to have any deleterious effects on the desegregation plan. (See, e.g.,
JA 219-26.)

        Moreover, Plaintiffs rarely interposed any objections to the Board’s plans and the
same was true of the Government. On one of the few occasions that serious opposition
to the Board’s plans was lodged, the district court found that the Board had allowed
improper considerations to trump its desegregation duties. The dispute centered on the
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.             Page 26


Board’s desire in 1985 to add ten new classrooms to an overwhelmingly white
elementary school to alleviate over-crowding. (JA 203.) The Government opposed the
construction project (it does not appear that the Plaintiffs joined the Government),
claiming that the Board impermissibly wanted to avoid utilizing the excess capacity of
nearby elementary schools with significant African-American populations. (JA 203-04.)
On April 8, 1986, the district court denied the Board’s petition to build the extra
classrooms. (JA 209.) The court agreed with the Government that the Board had failed
to give due consideration to its desegregation obligations, and that it had elevated
“community pride” (meaning the community pride of the white elementary school
students and parents) in preserving present enrollment at the over-crowded elementary
school over its duty to eliminate unlawful discrimination. (JA 209-10.)

       The record regarding faculty desegregation between 1971 and 2006 is only
slightly more robust. After the Board’s initial report on August 1, 1967, the record is
silent about the Board’s efforts to re-assign teachers. As noted above, the Board
reported that it had re-assigned 8.5 percent of its teachers, effective during the 1967-68
school year. The record does not disclose whether the Board undertook any more re-
assignment efforts after 1967. Certainly, the Board does not state in its briefing to this
Court that it did so, nor does it point to any evidence of such. Thus, it appears that in
response to the district court’s January 19, 1967 order, the Board had done all the faculty
re-assigning it intended to do by August 1, 1967.

       With respect to teacher transfers to fill vacancies, the district court had instructed
the Board to file annual reports showing the number of openings filled by teachers of the
over-represented and under-represented race. Between 1974 and 1979, the Board’s
reports show that half the time, a majority of vacancies were not filled by teachers of
the under-represented race (as ordered by the district court). (JA 133; 194-95; 198-201.)
It appears that the Board stopped reporting this statistic altogether by 1981. Neither the
Plaintiffs, the Government, nor the district court seems to have taken issue with the
Board’s abandonment of this requirement. In addition, although the Board was supposed
to notify the court before filling a vacancy with a teacher of the over-represented race
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.          Page 27


and justify its inability to employ an opposite-race teacher, the record is bereft of any
evidence that the Board ever did so, and the Board does not dispute that it did not.

       Besides the Board’s lackluster track record as to faculty re-assignment and
vacancies, the record discloses another deeply disturbing trend. Between 1974 and
2006, the total percentage of African-American faculty at the County’s schools declined
markedly. The Board’s 1974 annual report showed that thirty-three percent of the
County’s faculty were African-American, which correlates closely to the fact that around
this same period, thirty percent of the County’s students were African-American. In
2006, only fifteen percent of the County’s faculty were African-American, even though
around this same period, a significantly higher percentage, thirty-four percent, of the
County’s students were African-American.

       In August 1989, the district court was so disturbed by the decline in the Board’s
employment of African-American teachers that it asked the parties to address the
question of whether the Board’s reports “for the reporting period of August 1, 1985, to
August 1, 1989, indicate an employment practice or policy within the Shelby County
Schools which achieves a gradual but definite decline in the number of black teachers
employed by the school system.” (JA 214.) The Board responded that the problem was
attributable to fewer African-American people becoming teachers. (JA 214.) The
Government had a different position, noting that between 1972 and 1989, the number of
white teachers had more than doubled, but the number of African-American teachers had
remained virtually the same, that the Board had “recruited almost 10 times as many
white applicants as black applicants,” and that its offer rate for white candidates was
much higher than for African-American candidates. (JA 215.) The Government also
cited statistics showing that the Memphis City Schools (located within Shelby County,
but not part of the Shelby County school system) did a much better job of recruiting
African-American applicants, even though the starting salary for teachers in Memphis
was slightly less than that offered by the Board. (JA 215-16.) The Government also
argued that the Board was much less proactive than it could have been in its outreach to
colleges and universities, particularly to historically African-American colleges. (JA
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.          Page 28


216.) On July 3, 1990, the district court ordered the Board to submit supplemental
annual reports regarding its minority recruiting practices. (JA 218.)

       The Board filed regular supplemental reports on minority recruiting between
1990 and 2006. These reports both confirm that the Board expanded its outreach to
colleges and universities, including historically African-American colleges, and provide
data on the offer rates for African-American and white candidates. In the early years,
offer rates for African-American candidates sometimes exceeded those for white
candidates; but by 1997, offers to white candidates always outpaced offers to African-
American candidates, sometimes significantly. See, e.g., JA 228 (October 1999 report
showing that twenty-six percent of African-American applicants interviewed through the
central office were given offers, compared to fifty-one percent of white applicants).

       Thus, the extent of the Board’s compliance with the desegregation decree
between 1971 and 2006 is difficult to assess. During that time, the Plaintiffs never
challenged any of the Board’s decisions. Similarly, the Board did not apprise the court
(and the court apparently did not inquire) of any factors that impeded its progress
desegregating as much as practicable or any steps it took to alleviate those impediments.
The Board did not even bother to submit the required reports on faculty desegregation.
Whether the racial disparities that continue to mark the Shelby County Schools are due
to reasons wholly unrelated to the ongoing effects of unlawful discrimination, as the
majority contends, or whether the Board could and should have done more to attain its
desegregation objectives, are not answered by the record as it existed at the time the
parties moved for dissolution of the decree. Moreover, as described below, the parties
did not fill this evidentiary gap at the two hearings conducted by the district court to
consider their motion.

             3. The Joint Motion to Dissolve the Desegregation Decree

       On August 14, 2006, the Plaintiffs and the Board jointly moved for an order
dissolving the desegregation decree and declaring the public schools “unitary.” The
parties asserted that they had fully complied with the decree and that they had met the
standards articulated by the Supreme Court for eliminating the effects of past de jure
Nos. 07-6076/6363         Robinson, et al. v. Shelby County Bd. of Educ.           Page 29


segregation. Despite the joint nature of the application, the district court recognized that
it “ha[d] an obligation to independently evaluate these factors and the evidence to assure
that the system as it exist[s] now is truly unitary and color blind.” (JA 1187.) The court
therefore held evidentiary hearings on January 26, 2007 and July 23, 2007.

        The two hearings consisted largely of anecdotal testimony by school officials and
parents. For example, Superintendent Bobby G. Webb testified that his staff worked
diligently to adjust school attendance zones to make sure that the County has “good
community-based schools and have them as diverse as we possibly can.” (JA 1204.) He
stated, “I can tell you without a doubt that—that all of the staff that I have to work with
. . . certainly love and respect every child regardless of their color, background or
whatever . . . .” (JA 1205.) When asked by the district court what evidence it should
consider in determining whether the Board’s efforts to promote color blindness will
continue in the absence of court monitoring, Webb responded: “I personally can assure
you that as long as I’m superintendent there will be no discrimination in any shape, form,
or fashion.” (JA 1230.)

        Assistant Superintendent of Planning and Student Service Maura Sullivan
testified that she had worked closely with Plaintiffs’ counsel over the years to adjust
attendance zones based on enrollment projections and assess the impact of the
adjustments on school demographics. (JA 1239-40.) Assistant Superintendent Lois
Williams described the County’s efforts to recruit minority teachers. She identified the
biggest barrier to minority-teacher recruitment as the shrinking teaching pool overall and
the shortage among minority candidates in particular. (JA 1315.) The Board’s goal,
according to Williams, is for fourteen percent of the teachers in each of the County’s
schools to be minorities. (JA 1302.)

        During the July 23, 2007 hearing, the Plaintiffs and the Board called two parents
to testify. The first, Ricky Jeans, had himself been a student in the Shelby County
Schools in the late 1960s and had been one of the first African-American students to
attend a formerly all-white school. (JA 1378-79.) Jeans testified in favor of dissolving
the desegregation decree, stating, “I think that it’s time that we—we look backwards and
Nos. 07-6076/6363         Robinson, et al. v. Shelby County Bd. of Educ.             Page 30


see where we started at and look at the improvement of the system and what has gone
on down through the years and support maybe dropping the system from this point on,
but I am a big advocate of the Shelby County school system.” (JA 1379.) The second,
Brenda Gipson, testified that the Shelby County Schools had become more diverse both
in their student bodies and faculties since she had been involved with them through her
children. Gipson testified that school administrators are “for an environment of
inclusiveness—inclusiveness, they go out of their way to make sure that everyone feels
important in the school system.” (JA 1387.) Finally, Gipson testified that some schools
in the County have a largely African-American student body but that “obviously most
of the ones in my area are predominantly white.” (JA 1388.)

        The evidence presented at the two hearings was thus largely anecdotal and based
on the personal views of the interested parties and two parents. Neither the Board nor
Plaintiffs put any school-desegregation experts on the stand to testify about the Board’s
performance since the desegregation decree was imposed. Neither party put any
witnesses on the stand to opine that the Board had achieved desegregation to the extent
feasible or that it had availed itself of all opportunities to desegregate. Finally, there was
no expert testimony about demographic changes in the County or about how such
changes should be interpreted in light of the fact that the Board had formerly practiced
de jure segregation.

                             B. The District Court’s Order

        On July 26, 2007, the district court issued a sixty-two page opinion,
supplemented by a one-hundred-and-sixteen page “Procedural Appendix” of the case.
The district court granted the parties’ joint motion as to facilities, transportation, and
staffing, finding that there was no evidence that the Board had been discriminatory over
the last few decades in managing these aspects of the schools. (JA 115.) A declaration
of unitary status was therefore found to be appropriate as to these three areas. The court,
however, denied the joint motion as to student assignment, faculty assignment, and
extracurricular activities and held that the court would continue to supervise these areas.
(JA 116.)
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.           Page 31


                                 1. Student Assignment

       The district court found that by 1971, the Board had begun to make real progress
toward desegregating the student bodies of its schools. (JA 106.) Still, “at least a
quarter of the schools remained outside the target racial composition range established
by the [court].” (JA 107.) The court also noted that by 1984, the proportion of African-
American students in each school continued to be “uneven,” with three schools out of
thirty-four having fewer than five percent African-American students and three having
between fifty and seventy percent. (JA 108.) These disparities have only widened. The
district court found that by the 2004-05 school year, only seventeen of the County’s
forty-six schools had a racial make-up that reflected, within ten percentage points, the
racial make-up of the County as a whole. (JA 108.) Moreover, the County’s new “state-
of-the-art” high school is expected to have an eighty-eight percent or higher African-
American student population. (JA 108.)

       The district court concluded that “[t]he Board has made no showing that racial
balance is infeasible either generally or with regard to certain schools.” (JA 111.) The
court further found that “the record does not indicate that the County has at any time
accomplished its objectives . . . .” (JA 111.) The racial compositions of the student
bodies of the individual schools relative to the County as a whole are important,
reasoned the court, because such concrete and detailed statistics enable a court to gauge
progress towards eliminating the “racial identifiability” of schools, which is the key to
achieving unitary status. Without a statistical comparison, the court said it would be left
to “rely on anecdotal evidence, gut feelings, and assurances from defendants that they
‘love and respect every child regardless of their color—hardly a proper basis for making
momentous legal decisions.” (JA 110.) At the same time, the court recognized that
“racial balance is not a strict requirement and there may be mitigating circumstances
which would allow a school system to operate one or more schools with a predominance
of one race or another without running afoul of its equal protection obligations . . . .”
(JA 109.)
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.           Page 32


       With these principles in mind, the district court directed the Board to work
toward achieving racial balance in all its schools, which it defined as a student racial
composition in each school that mirrors the County-wide ratio within a margin of fifteen
percentage points. (JA 117.) The court characterized this benchmark as a “flexible
goal” and “a starting point in analyzing the Board’s success in desegregation.” (JA 117.)

                                 2. Faculty Assignment

       The district court declined to grant unitary status as to faculty assignment,
finding that the Board had not exhibited good-faith compliance with the court’s prior
desegregation orders. (JA 102-03.) The court found it “somewhat astonishing” that the
Board reassigned only 128 teachers out of 1500 in response to the order directing that
this be done “in all cases” provided that the educational program was not seriously
impaired. (JA 103.) The court was also troubled by the lack of full compliance with the
requirements for transferring teachers when vacancies arose.           The district court
concluded that

       Strict compliance with the new faculty integration requirement would
       have almost surely effected a very rapid transition to a system where the
       faculty at each school was reflective of the systemwide racial
       composition. This seems apparent because practically any vacancy at a
       school whose faculty was racially disproportionate would have set off a
       chain of intra-system transfers which would only stop when either
       complete racial balance was achieved or a vacancy resulted which was
       impossible to fill from within the system.
(JA 102.) Finally, the district court observed that the Board had “utter[ly] disregard[ed]”
the requirement that it notify the court before filling a faculty opening with a teacher of
the over-represented race. (JA 103.) The district court concluded that the wide gulf
between the proportion of African-American teachers at various schools in the County
today, ranging from a low of five percent to a high of thirty percent, showed that the
Board’s efforts were wanting. (JA 112.)

       When it came to fashioning a remedy, the court disavowed its earlier approach
of aiming to have a percentage of African-American teachers in each school that
mirrored the percentage of African-American teachers in the County. (JA 113.) This
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.          Page 33


approach, said the court, “created the perverse incentive to allow the overall black
faculty representation to slip . . . .” (JA 113.) The court feared that the Board could
reduce the County-wide percentage of African-American teachers by terminating
African-American teachers. As the County-wide percentage fell, so too could the
percentage required in each school, without raising the specter of any disparity between
the two. (JA 113.)

       Having identified what it deemed to be a fatal flaw with its longstanding method
of measuring progress toward faculty desegregation, the district court came up with
another method. It ruled that, henceforth, the proper comparison would be between the
percentage of African-American teachers in a school and the percentage of African-
American students in the County. (JA 114.) Thus, since the County’s African-American
student population stood at thirty-four percent in 2007, each school should endeavor to
achieve that proportion of African-American teachers. The district court ruled that this
approach was consistent with ensuring that African-American students were not
“isolated” in their educational experience as a result of too few African-American
teachers in their classrooms. (JA 114.) The court stated that “if a black child is allowed
to attend a previously all-white school, but is denied educational guidance which
includes teachers of the student’s own race, the student is unacceptably isolated and
deprived of a full educational experience.” (JA 114.) The Court concluded that a
concern about the possible “isolation” of African-American students was an
“unarticulated principle that . . . animates the Supreme Court’s emphasis on the
importance of a diverse faculty.” (JA 114.) Thus, the district court ordered the Board
to work toward a faculty racial balance that would mirror the proportion of African-
American students in the County as a whole, within a margin of fifteen percentage
points. Just as with the student-assignment goal, the court treated this faculty goal as
“flexible” and “a starting point in analyzing the Board’s success . . . .” (JA 117.)
Nos. 07-6076/6363           Robinson, et al. v. Shelby County Bd. of Educ.                  Page 34


                                 3. Extracurricular Activities

        The district court also declined to grant unitary status with respect to the Board’s
sponsorship of student extracurricular activities, but the district court did not separately
explain this decision.2

        Following the January hearing, the district court asked the Board to submit
additional statistical data relating to several different aspects of the County schools. One
of the things the Court requested was “demographic data on students participating in all
extracurricular activities.” (JA 479.) The Board admitted that it has not typically
maintained records tracking this type of information. Owing to a similar request by the
Tennessee Board of Education, however, the Board compiled what information it could,
which turned out to be a chart showing the percentage of African-American and white
students in thirty out of the County’s forty-eight schools that participate in
extracurricular activities. (JA 486.) Thus, data for eighteen schools was completely
omitted. Moreover, the chart provides only the students’ participation rate by race; it
does not explain what the Board or individual schools deem to be extracurricular
activities, or African-American and white students’ participation rates within specific
activities.

                       4. Other Aspects of the District Court’s Order

        The district court acknowledged that its management of the case had not been
optimally tailored to helping the Board achieve unitary status. The court said that its
“failure to adopt clear and unequivocal guidelines for achievement of the [c]ourt’s goals
is in large part responsible for the fact that the County is seeking unitary status some
forty-four years after this suit was first filed . . . .” (JA 116.) Pointing to the fact that the
Plaintiffs and the County had been in “lock step” with one another for much of the last
thirty years and that there had been “few, if any, contested issues, and only nominal
litigation,” the district court acknowledged the need for it to take a more hands-on


        2
           The Board presented minimal evidence on this subject, which may explain the absence of the
district court’s explanation on its decision.
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.            Page 35


approach to supervising the litigation with an eye to bringing it to a conclusion in the
near future. The court stated that it had “largely served to ‘rubber-stamp’ the County’s
unopposed construction and zoning requests with little or no meaningful review of how
such proposals contributed to or detracted from the County’s overall progress toward
unitary status . . . . The joint motion to dismiss compels the [c]ourt to resume a more
substantive role in bringing the County school system’s desegregation process to a
legitimate closure.” (JA 115-16.)

        Besides the “flexible” benchmarks the district court set for evaluating the
Board’s student and faculty desegregation efforts, the district court also set timetables
for achieving them. The court set October 2012 as the target date for full compliance.
(JA 119.) After three years of full compliance, the court said it would dissolve the
desegregation decree. (JA 119.)

        Next, the district court ordered the Board to submit data annually concerning the
racial composition of each school’s students and teachers. The Board was further
instructed to provide information about “mitigating factors, including infeasibility of
further desegregation and shifting demographics, as appropriate.” (JA 118.) The Board
was to continue submitting notices of school construction plans and attendance-zone
modifications to the court until the desegregation decree was dissolved. Contrary to the
perfunctory nature of similar reports filed in the past, the court clarified that all such
plans are to include a comprehensive discussion of what impact the construction and
attendance-zone changes will have on the Board’s desegregation efforts. (JA 119.)

        Finally, pursuant to Federal Rule of Civil Procedure 53, the district court said it
would appoint a special master to consider the statistical data supplied by the parties and
to make annual reports and recommendations to the court. (JA 117-18.) The court
instructed the parties jointly to select a special master with the requisite qualifications,
which the court defined as a “neutral expert in educational research, preferably with
experience in desegregation issues . . . .” (JA 118.)
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.            Page 36


                                     II. ANALYSIS

        The record shows that the district court was both thorough and careful in
considering the petition to declare the Shelby County Schools unitary. As a threshold
matter, the court held two public hearings, both of which involved witness testimony,
argument by counsel, and the opportunity for participation by members of the
community. All parties were allowed to call and cross-examine witnesses, and the court
asked questions as well. Following each hearing, the court asked the parties to provide
specific additional information. Just a few days after the second hearing, the court
issued its opinion which, at sixty-two pages, gave comprehensive consideration to the
entire history of the case, identified and discussed the relevant Supreme Court authority,
and set forth a precise plan designed to eventually eliminate the need for the
desegregation decree and restore local control . The court also appended to its opinion
a 116-page procedural history of the case.

        Before specifically addressing each of the three areas in which the district court
declined to grant unitary status, it is important to clarify what the district court’s order
did and did not do. Contrary to the Board’s argument (repeated throughout its brief), the
district court did not order the Board to comply with a “strict racial quota.” True, the
district court held that the Board should endeavor to achieve a ratio of white to African-
American students in each school that mirrors the racial composition of the County-wide
student population within fifteen percentage points, and that the Board should seek to
achieve the same racial balance with respect to faculty. But the district court plainly
characterized this as a “flexible goal” and “a starting point in analyzing the Board’s
success in desegregation.” Correctly citing applicable Supreme Court precedent, the
district court expressly rejected a rigid approach, saying that “racial balance is not a
strict requirement and there may be mitigating circumstances which would allow a
school system to operate one or more schools with a predominance of one race or
another without running afoul of its equal protection obligations under the Constitution.”
The district court also specifically instructed the Board to submit annually information
Nos. 07-6076/6363              Robinson, et al. v. Shelby County Bd. of Educ.                         Page 37


describing “mitigating factors” that make further progress toward racial balance
infeasible.

         The Board appeals the district court’s order in its entirety. Although the
Government supported a declaration of unitary status below, it does not appeal the
district court’s rulings retaining supervisory control. The Government says that it has
“chosen not to appeal the denial of unitary status in light of the deferential clear error
standard of review that applies to that determination.” (Govt. Br. 29.) With respect to
the district court’s modification of the decree, establishing a “flexible” student-
assignment goal, the Government concedes that it is “hard pressed to argue on appeal
that the district court’s ruling to the contrary was clear error, or that the student
assignment goals that the court put in place to remedy the remaining racial imbalance
in Shelby County’s schools are an abuse of discretion.” (Id.) The Government,
however, is appealing the district court’s teacher-assignment goal on the ground that the
court’s tying of the faculty racial ratio to the student racial ratio was an abuse of
discretion.

        1. The County Has Not Carried Its Burden as to Student Desegregation3

         The Board argues that it has fully complied with the court’s orders regarding
desegregating its students. The record evidence is simply inadequate to support this
assertion.

         As an initial matter, there is no indication that the Board regularly reported to the
Court about the racial make-up of each of its schools relative to the County as a whole.
Statistical data of this sort is largely absent from the record. Consequently, we cannot
know how the Board fared with respect to the court’s original student-desegregation goal
(identical racial ratios in the schools and County within a deviation of ten percentage

         3
            In the specific setting of a school desegregation class action, “[w]here the relief sought in the
district court is the dissolution of a[ ] [desegregation decree], the order of the district court is subject to a
mixed standard of review.” Manning ex rel. Manning v. School Bd. Of Hillsborough County, 244 F.3d
927, 940 (11th Cir. 2001). The district court’s application of the law is subject to de novo review, while
the court’s factual findings, including its determination that a school district has not achieved unitary
status, fall under the clearly erroneous standard of Federal Rule of Civil Procedure 52(a). Id. (citations
omitted); Holton v. City of Thomasville School Dist., 425 F.3d 1325, 1336 (11th Cir. 2005) (citations
omitted).
Nos. 07-6076/6363          Robinson, et al. v. Shelby County Bd. of Educ.               Page 38


points). As to those years for which there is more comprehensive data, the district court
found that the Board’s results were unimpressive. For instance, the court found that in
1974, at least a quarter of the County’s schools had not attained “the target racial
composition range established by the [c]ourt in 1968 and reiterated in . . . 1971 . . . .”
(JA 106-07.) The court went on to note that “[c]uriously missing from the Board’s
submissions was any explanation of why one school had only 2% African-American
students while a handful of others had as much as 71%.” (JA 107.) The district court
found that by 1984, “[t]he racial balance in the schools continued to be uneven, with
three schools out of 34 having fewer than 5% African-American students and three
having between 50% and 72%.” (JA 107-08.) Finally, the district court noted that in the
2004-05 school year, only seventeen of the County’s forty-six schools “had a racial
makeup that was reflective, within ten percentage points, of the 32% African-American
student composition of the district as a whole.” (JA 108.)

        It is also difficult to evaluate the import of what little statistical data is available.
It is impossible to assess whether that data reflects all the desegregation that was feasible
in Shelby County, or whether that data only reflects the desegregation that the County
found comfortable. This is the case because the record is virtually silent about what
obstacles the Board confronted in meeting its desegregation obligations throughout the
1970s and 1980s, how it handled those obstacles, and whether it pursued all practicable
forms of relief or limited itself to only the most convenient ones.

        The Board relies heavily on a chart detailing statistical data about the proportion
of African-American students in each of its schools during the 2002-03 and 2007-08
school years. The Board claims that this evidence shows that County schools have
become more diverse over the last five years. The Board’s data shows, however, that
among the forty-four schools for which it has data (five schools were new), the African-
American student population in 2007-08 still varied widely, from a low of three percent
to a high of ninety percent. If the County-wide African-American student population
was thirty-four percent in 2007, as the Board claims, then only fifteen of the forty-four
schools for which the Board has demographic data would satisfy the district court’s
Nos. 07-6076/6363           Robinson, et al. v. Shelby County Bd. of Educ.                 Page 39


benchmark for measuring racial balance, namely plus or minus fifteen percentage points
from thirty-four percent (racially balanced schools using this metric would be those with
an African-American student population of between nineteen and forty-nine percent).4
Just ten of the County’s forty-four schools would satisfy the district court’s earlier goal
of a school racial composition that mirrored the County’s within a margin of ten
percentage points.

        Finally, the Board insists that any current disparities in the racial composition of
its schools are caused by demographic factors unrelated to its history of segregation and
over which the Board has no control, and the district court has no authority to correct.
The Board also argues that annexations by the City of Memphis have affected, and will
continue to affect, the African-American population within the County, making it a
“moving target.” (Board Br. 9.) This argument may very well have some explanatory
force, but the Board did not put on sufficient evidence to substantiate it. As noted above,
the witness testimony at the two hearings consisted of little more than bare assertions
that the Board had done all it could, that discrimination was not tolerated, and that
parents and administrators were proud of the school system’s accomplishments. The
Board did not present expert testimony about the shifting racial demographics within the
County and how those changes affected the Board’s desegregation efforts. Nor did it
present expert testimony about the impact of the annexations by the City of Memphis.
The Board’s lack of evidentiary support on these issues stands in marked contrast to the
evidence others in the Board’s shoes have presented in petitions to dissolve a
desegregation decree. See, e.g., Freeman, 503 U.S. at 471 (noting presentation of expert
testimony about demographic changes in the school system since the desegregation
decree was entered); Manning, 244 F.3d at 936 (noting presentation of “reports on
attendance boundaries, demographic reports, and expert testimony” to address question
of whether the racial identifiability of seventeen of the school system’s 150 schools was
traceable to the system’s prior discriminatory behavior or to something else). Even the
Government agrees that most of the evidence presented at the July hearing ( in which the

        4
        The Government agrees. It says that “[i]n 2007, about 60% of the schools varied by more than
15% from the system-wide racial ratio, with some as high as 90% black.” (Govt. Br. 37.)
Nos. 07-6076/6363         Robinson, et al. v. Shelby County Bd. of Educ.             Page 40


Government participated) was anecdotal. The Government notes that, “[t]he Board
presented no minutes or other records documenting its decision-making and provided
no demographic statistics or census maps beyond enrollment figures and charted
attendance zones.” (Govt. Br. at 21.)

        For these reasons, I would affirm the district court’s judgment denying unitary
status on the issue of student desegregation.

      2. The County Has Not Carried Its Burden As To Faculty Desegregation

        The Board contends that the district court erred in failing to grant unitary status
pertaining to faculty integration. The Government contends that the district court erred
in correlating the percentage of African-American teachers in each school with the
percentage of African-American students in the County overall. Importantly, neither
party challenges the district court’s factual findings that the County did not fully comply
with the court’s directives to (1) reassign faculty between schools, (2) transfer opposite-
race teachers to fill vacancies, and (3) file the required notices and reports with the court.
The Government even concedes that the racial imbalance among the County’s teachers
“create[s] a presumption against unitary status for faculty” and that “[a]ssignment of
teachers according to flexible guidelines would not be an abuse of discretion.” The
Government’s position—opposing the district court’s particular remedy but not
disagreeing that some type of remedy may be appropriate—implies that it does not
oppose a remand for the district court to re-formulate its faculty-desegregation remedy.

        As described above, the district court modified the desegregation decree to tether
the racial composition of each school’s faculty to the racial composition of the County’s
students. The Government opposes this exercise of the district court’s remedial
authority as an abuse of discretion, arguing that the proper comparison is the one the
district court previously endorsed but has since abandoned: comparing the proportion
of African-American teachers in each school to the proportion of African-American
teachers County-wide.
Nos. 07-6076/6363          Robinson, et al. v. Shelby County Bd. of Educ.              Page 41


        The Supreme Court has never ruled on whether faculty desegregation may be
accomplished as the district court has suggested---through a flexible comparison of the
proportion of African-American teachers in each school to the proportion of African-
American students in the district as a whole. The Government relies on Wygant v.
Jackson Board of Education, 476 U.S. 267 (1986) for the proposition that the Supreme
Court would disapprove of such a comparison. In Wygant, white teachers with more
seniority were laid off ahead of African-American teachers, some of whom were merely
on probationary status. Id. at 272. The school board reasoned that this policy was
justified in order to preserve the gains made in African-American hiring. Id. at 288. The
district court concluded that the layoffs did not violate the Equal Protection Clause, in
part, because it determined that African-American students were entitled to role models
of their own race. Id. at 274. The Supreme Court rejected the district court’s embrace
of “the role model theory,” concluding that “by tying the required percentage of minority
teachers to the percentage of minority students, it requires just the sort of year-to-year
calibration the Court stated was unnecessary in Swann. Id. at 276. Moreover, the
Supreme Court reasoned that “[c]arried to its logical extreme, the idea that black
students are better off with black teachers could lead to the very system the Court
rejected in Brown . . . .” Id. The Court was apparently concerned that if the African-
American student population shrinks over time, that fact could be used to justify hiring
fewer African-American teachers. See id. at 276. Conversely, if the African-American
student population increases over time, that would require hiring more African-American
teachers, which could increase the racial identifiability of the school. See id. Wygant,
however, is distinguishable from this case because the policy imposed resulted in
layoffs, as opposed to faculty integration through transfers and reassignments.

        As the Government indicates, this Court has held that a district court overseeing
a desegregation decree does not have the power to set a racial quota for the hiring of
African-American teachers. In Oliver v. Kalamazoo Education Association, 706 F.2d
757 (6th Cir. 1983), we stated that “students . . . do not have a constitutional right to
attend a school with a teaching staff of any particular racial composition . . . . Rather, . . .
all that the students are entitled to is the sustained good faith effort to recruit minority
Nos. 07-6076/6363        Robinson, et al. v. Shelby County Bd. of Educ.           Page 42


faculty members so as to remedy the effects of any past discriminatory practices.” Id.
at 762 (internal quotation marks and citation omitted).             Oliver, however, is
distinguishable from this case because a rigid racial quota had been imposed for hiring
teaching staff, as opposed to a flexible goal, which is what was imposed in this case.

       Wygant and Oliver are therefore not on all fours with this case. Moreover, there
is no reason to fear that the district court’s formulation will tend to increase the racial
identifiability of schools, or require a year-to-year re-calibration, as the Government
contends. The district court tied its faculty hiring goal to the African-American student
population in the County as a whole, not the African-American student population in
each school. Thus, a school with a student body that is fifty-five percent African-
American need not aim for a faculty that is fifty-five percent African-American. Rather,
using the 2007 County-wide statistic of thirty-four percent African-American students,
such a school would endeavor to attain a faculty that is thirty-four percent African-
American, plus or minus fifteen percentage points.

       For these reasons, I would hold that the district court did not abuse its discretion
in tying the percentage of African-American teachers in each school to the percentage
of African-American students in the County as a whole.

3. The Board Has Not Carried Its Burden With Respect to Extracurricular Activities

       No more need be said about this. There is no basis for reversing as clearly
erroneous the district court’s denial of unitary status as to extracurricular activities in
light of the almost non-existent record on this subject.

                                  III. CONCLUSION

       For the reasons articulated above, I respectfully dissent.
