                                                                    [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                       FOR THE ELEVENTH CIRCUIT          U.S. COURT OF APPEALS
                        ________________________           ELEVENTH CIRCUIT
                                                               MAR 16 2001
                                                            THOMAS K. KAHN
                                No. 99-2049                      CLERK
                         ________________________

                    D. C. Docket No. 58-03554-CIV-T-17C

ANDREW L. MANNING, a minor, by his
father and next friend, Willie Manning,
SHAYRON R. REED, by her father and next
friend, Sanders B. Reed, SANDRA E. REED, et al.,

                                                            Plaintiffs-Appellees,

                                    versus

THE SCHOOL BOARD OF
HILLSBOROUGH COUNTY, FLORIDA
(formerly Board of Public Instruction of
Hillsborough County, Florida), CLYDE
MCLEOD, et al.,

                                                         Defendants-Appellants.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________
                              (March 16, 2001)


Before BLACK, FAY and COX Circuit Judges.
BLACK, Circuit Judge:

      Appellants, the School Board of Hillsborough County, Florida, and its officials,

appeal two orders of the district court which subject them to continued supervision

under a federal desegregation decree. See Manning v. Sch. Bd. of Hillsborough

County, Fla., 24 F.Supp.2d 1277 (M.D. Fla.), mot. to alter or amend den., mot. for

clarification granted in part, 28 F.Supp.2d 1353 (M.D. Fla. 1998). Appellants argue

that they have eliminated the vestiges of past discrimination to the extent practicable

and have fully complied in good faith with the desegregation decree. Accordingly,

Appellants claim their school district should be declared unitary and federal judicial

supervision should cease. Conversely, Appellees, a class of African-American

schoolchildren, contend the school district is not unitary and federal judicial oversight

of Appellants remains necessary. We hold that Appellants have achieved unitary

status. We reverse and remand for the district court to enter judgment, in accordance

with this opinion, declaring the Hillsborough County school system to be unitary.

                                 I. BACKGROUND

A. Procedural History

      Appellants for many years operated a racially-segregated, dual school system.

As a result of the Supreme Court’s landmark decision in Brown v. Board of Education

of Topeka, 347 U.S. 483, 74 S. Ct. 686 (1954) (Brown I), Appellees in 1958 filed this


                                           2
class-action lawsuit on behalf of all “minor Negro children and their parents” residing

in Appellants’ school district.1 In 1962, the district court found that Appellants, by

operating a segregated school system, had violated the Fourteenth Amendment. For

the next eight and half years, the district court issued various orders as part of its

efforts to remedy the harm caused by Appellants’ unconstitutional conduct. See, e.g.,

Mannings v. Bd. of Pub. Instruction of Hillsborough County, Fla., 306 F. Supp. 497

(M.D. Fla. 1969).

       1
           The lawsuit was filed in the Southern District of Florida. In 1962, the Middle District
of Florida was created, and the case was transferred to that court’s docket on November 2, 1962.
In a May 1971 order, the presiding district judge noted that this case was — in 1971 — the
oldest active case on the docket of the Middle District of Florida. Of course, the same holds true
today.
         The Honorable Thurgood Marshall, prior to his appointment to the Supreme Court,
served as one of the attorneys for Appellees. The lead plaintiff was, and still is, Andrew L.
Manning; through the many years of litigation, his surname has frequently, and incorrectly, been
spelled “Mannings.” The institutional defendant was formerly known as the Board of Public
Instruction of Hillsborough County.
         The following are the published opinions arising from this case: Mannings v. Bd. of Pub.
Instruction of Hillsborough County, Fla. 277 F.2d 370 (5th Cir. 1960); Mannings v. Bd. of Pub.
Instruction of Hillsborough County, Fla., 306 F. Supp. 497 (M.D. Fla. 1969); Mannings v. Bd. of
Pub. Instruction of Hillsborough County, Fla., 427 F.2d 874 (5th Cir. 1970); Mannings v. Sch.
Bd. of Hillsborough County, Fla., 796 F.Supp. 1491 (M.D. Fla. 1992); Mannings v. Sch. Bd. of
Hillsborough County, Fla., 816 F.Supp. 714 (M.D. Fla. 1993); Mannings v. Sch. Bd. of
Hillsborough County, Fla., 149 F.R.D. 235 (M.D. Fla. 1993); Mannings v. Sch. Bd. of
Hillsborough County, Fla., 149 F.R.D. 237 (M.D. Fla. 1993); Mannings v. Sch. Bd. of
Hillsborough County, Fla., 1994 WL 151045 (M.D. Fla. 1994); Mannings v. Sch. Bd. of
Hillsborough County, Fla., 851 F.Supp. 436 (M.D. Fla. 1994); Mannings v. Sch. Bd. of
Hillsborough County, Fla., 1994 WL 361994 (M.D. Fla. 1994); Mannings v. Sch. Bd. of
Hillsborough County, Fla., 1995 WL 689341 (M.D. Fla. 1995); Mannings v. Sch. Bd. of
Hillsborough County, Fla., 1995 WL 689348 (M.D. Fla. 1995); Manning v. Sch. Bd. of
Hillsborough County, Fla., 1999 WL 786373 (M.D. Fla. 1999). Additionally, a law review
article is devoted exclusively to this litigation. See Drew S. Days, III, The Other Desegregation
Story: Eradicating the Dual School System in Hillsborough County, Florida, 61 Fordham L.
Rev. 33 (1992).

                                                3
      In 1970, our predecessor court examined whether Appellants had sufficiently

eradicated the illegal dual school system such that it could be found “unitary.” See

Mannings v. Bd. of Pub. Instruction of Hillsborough County, Fla., 427 F.2d 874 (5th

Cir. 1970). Relying upon the six so-called Green2 factors, the former Fifth Circuit

concluded that, with regard to three factors (transportation, extracurricular activities,

and facilities), Appellants had indeed achieved a unitary school district.                See

Mannings, 427 F.2d at 878. Nonetheless, based on its examination of three other

factors (faculty desegregation, staff desegregation, and student assignments), the court

found Appellants had fallen short and had not attained unitary status. See id. The

case was remanded to the district court with instructions to remedy the deficiencies.

See id.

      After remand, the Supreme Court, in Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1, 91 S. Ct. 1267 (1971), gave firm guidance on a district

court’s equitable power to remedy illegal segregation. On May 11, 1971, just 21 days

after Swann was decided, the district court directed Appellants to submit a

comprehensive desegregation plan that conformed with the requirements of Swann.

Thereafter, Appellants submitted such a plan, and the district court adopted the plan

in its order dated July 2, 1971 (the July 1971 Order). From 1971 to 1991, the district


      2
          Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 88 S. Ct. 1689 (1968).

                                               4
court’s supervision of Appellants was governed, with some minor modifications,

exclusively by the July 1971 Order.3

      In 1991, Appellants and Appellees entered into a consent decree (1991 Consent

Order). The primary reason for the 1991 Consent Order was to enable Appellants to

reorganize the school district, so as to eliminate single grade centers and to create

middle schools. The 1991 Consent Order, which was to be implemented over a 7-year

period, did not annul the July 1971 Order, but merely modified it.

      Appellee moved in 1994 to enforce the 1991 Consent Order. The matter was

referred to the magistrate judge who recommended denying the motion. The district

judge, however, deferred ruling on the motion and sua sponte recommitted the matter

to the magistrate judge to consider whether the school district had become unitary,

thereby removing the need for federal judicial oversight.

      In October 1996, the magistrate judge conducted a 7-day hearing, at which both

sides presented considerable evidence. In August 1997, the magistrate judge issued

a detailed report and recommendation wherein she recommended the district court

find that Appellants had achieved unitary status and thus should be released from

federal judicial supervision. Without holding an evidentiary hearing, the district judge

in a 110-page order dated October 26, 1998, rejected in part and adopted in part the


      3
          For a summary of the minor modifications, see infra note 6.

                                                5
magistrate judge’s report and recommendation. See Manning, 24 F.Supp.2d at 1277-

1335. The district judge concluded that Appellants had not attained unitary status and

therefore federal judicial supervision was still warranted.4 See Manning, 24 F.Supp.

2d at 1335. Within ten days of the order dated October 26, 1998, Appellants filed a

motion to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e). The district

court, in a 13-page order, denied the motion on December 4, 1998. See Manning, 28

F.Supp.2d at 1361. Within 30 days, Appellants filed a notice of appeal as to the

district judge’s orders of October 26, 1998, and December 4, 1998.

B. Facts

       To analyze this case that has endured for over 40 years, we first summarize the

contents of the July 1971 Order and the 1991 Consent Order, which, with minor

modifications, have served as the guideposts for Appellants’ journey toward a unitary

school district. Then, we set forth the district court’s most recent factual findings with

respect to Appellants’ unitary status.

       1. July 1971 Order




       4
          Before the district court, Appellees also argued that, even if the school district were
unitary, this status would not constitute a “changed circumstance” warranting a modification or
vacation of the 1991 Consent Order. See Manning, 24 F.Supp.2d at 1287-88 (citing Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367, 112 S. Ct. 748 (1992)). The district court rejected
Appellees’ argument. See id. at 1288. Since Appellees do not contest this ruling on appeal, we
do not address it.

                                                6
      As previously discussed, the district court ordered Appellants in May of 1971

to submit a comprehensive desegregation plan. The district court stated that the

“primary objective” of the plan should be the abolition of segregation. In particular,

the district court sought to eliminate, at every school, racial balances where black

students comprised more than 50% of the student population. The district court

further stated that the “most acceptable and desirable” result would be a white/black

ratio of 86%/14% in senior high schools, 80%/20% in junior high schools, and

79%/21% in elementary schools.

       The July 1971 Order, which ratified Appellants’ proposed desegregation plan,

dealt primarily with student assignments in grades one through twelve.                        For

elementary schools, the plan clustered each predominately black school with two to

five predominantly white schools. The white schools would be used for grades one

through five and would be integrated with black children from “satellite zones”5 who

had previously attended the black school in the cluster. The black school in each

cluster would be used as a sixth-grade center and would be integrated with white

children who had previously attended the white schools in the cluster.

      For junior high schools, each black school would be clustered with one to three

white schools. The black schools would be used for seventh grade, and the white


      5
          A satellite zone is an area not contiguous with the main attendance zone for the school.

                                                7
schools would be used for eighth and ninth grades. Again, the schools would be

integrated with students from satellite zones. For senior high schools, the two black

schools would be closed, but their facilities would be used for junior high schools.

Through a series of re-zoning and satellite busing measures, the white high schools

would be integrated.

       With regard to faculty and staff, the district court had previously entered an

order on August 25, 1970. In the July 1971 Order, the court found that no additional

measures were necessary, and it directed Appellants to continue to abide by the

August 25, 1970, order. With respect to transportation, facilities, and extracurricular

activities, the July 1971 Order directed Appellants to comply with all previous orders.

The order also mandated that all operations relating to these areas should be conducted

in a non-discriminatory manner and should be regularly re-examined by Appellants.

       The July 1971 Order also remarked on four other topics: (1) majority to

minority transfers, (2) other transfer rules, (3) the bi-racial committee, and

(4) approval of site locations. Specifically, the district court stated, “Each of these has

been required by previous orders of this Court. Some of them may not be required if

[Appellants’] plan is effectuated and accomplished.” Nevertheless, the district court

stated that it was “retaining jurisdiction and [would] require the continuation of all of

these procedures to be available and used as necessary.”


                                            8
      Attached to the July 1971 Order were two exhibits which explained the bi-racial

committee, majority-to-minority transfers, and other transfer rules. The bi-racial

committee was to serve as an advisory body on a number of issues and was to consist

of ten members, with Appellants and Appellees each selecting five members. In some

instances, the committee was to receive reports about students transferring from their

assigned schools. In other instances, Appellants were barred from approving student

transfers before considering a recommendation from the committee.

      Concerning majority-to-minority transfers, the attached exhibits stated the

following:

      Majority to minority transfer – Any student shall be permitted to transfer
      from a school in which his race is in the majority in order to attend the
      closest school to his residence in which his race is in the minority.
      ....
      The transfer forms shall be available at each public school in
      Hillsborough County and the County School offices.
      ....
      The transferee is to be given priority for space and thus the transfer is not
      to be dependent on space being available.

      Transportation will be provided by the School Board in service or in
      kind to the school to which the transfer is made if that school is more
      than two miles from the home.

      In conclusion, the July 1971 Order stated that Appellants’ desegregation plan

“fully complie[d] with the [district] [c]ourt’s order of May 11, 1971," and that it

would “result in the establishment of a unitary school system in Hillsborough County,


                                           9
Florida.” The July 1971 Order noted, however, that Appellants had a “continuing

responsibility” to ensure the plan would be effectuated. Moreover, each year

following the implementation of the July 1971 Order, Appellants filed two reports per

year with the district court and provided copies to Appellees. Lastly, the July 1971

Order retained jurisdiction in the district court for “such further action as may be

necessary and required.”

       2. 1991 Consent Order

       Between 1971 and 1991, the modifications to the July 1971 Order were minor.6

By 1991, however, Appellants had determined, based upon a comprehensive study,

that the school district would benefit if middle schools (grades 6-8) were established.

To accomplish this, the July 1971 Order had to be modified, because that order had

relied extensively on single-grade centers (grades 6 and 7) to desegregate the school

district. Thus, Appellants entered into negotiations with Appellees, and the product

of those negotiations was the 1991 Consent Order.




       6
          The modifications included, inter alia: changes in transfer rules for children of school
employees; approval of a new high school site; changes in academic transfer rules; the closure of
certain schools; and the creation of magnet schools. Perhaps, the most significant modification
dealt with Lee Elementary School, which by 1974 had a black population in excess of 50%. To
correct this imbalance, Appellants, pursuant to the district court’s order, converted Lee to a
sixth-grade center and transferred the former Lee students (first through fifth graders) to seven
other elementary schools.

                                               10
       The centerpiece of the 1991 Consent Order was the Middle School Task Force

Report 3 of July 1991 (hereinafter “Task Force Report”), which the district court

incorporated into the consent order.7 The Task Force Report was presented to the

school board by a 12-person committee. This committee included Mr. Henry Carley,

President of the Tampa Branch of the NAACP. In addition, a legal committee,

consisting of, inter alia, Mr. Al Davis of the NAACP, reviewed the Task Force

Report, and Appellees’ own desegregation expert, Dr. Leonard Stevens, was involved

in shaping the Task Force Report. Furthermore, the Task Force Report included two

separate position statements prepared by various African-American community

groups (Howard W. Blake Alumni Group, Coalition of African American

Organizations, Greater Tampa Urban League, Inc., and Beta Sigma Zeta Chapter of

Zeta Phi Beta Sorority). In sum, as the 1991 Consent Order explained, the Task Force

Report was the result of “extensive discussions” between Appellants and Appellees,

and the discussions were designed to “to ensure . . . that plans for the implementation

of the [Task Force Report] were formulated in a manner that addressed the interests

and concerns of [Appellees].”




       7
        The parties and the district court use interchangeably the terms “Task Force Report”
and “Middle School Plan.” For the sake of simplicity, we use solely the term Task Force Report.

                                              11
      The Task Force Report proposed substantial changes to the structure of the

school system. Under the July 1971 Order, the school system generally had consisted

of five tiers: elementary schools (grades K-5), sixth-grade centers, seventh-grade

centers, junior high schools (grades 8-9), and high schools (grades 10-12). In contrast,

the Task Force Report called for a three-tier school system: elementary schools

(grades K-5); middle schools (grades 6-8); and high schools (grades 9-12). This new

structure would be achieved through a so-called “cluster model,” under which 17

clusters would be formed. For each cluster, the high school would serve as the “basic

unit” and its students would be drawn from “feeder” middle and elementary schools.

The Task Force Report estimated that it would take five to seven years to implement

the cluster model.

      The cluster model proposed by Task Force Report was undoubtedly the most

substantial change to the structure of the school system since the July 1971 Order.

The objective of July 1971 Order had been to desegregate the school system. By

contrast, one of the primary objectives of the Task Force Report was “to maintain a

desegregated school system.” (emphasis added). In an apparent attempt to meet this

objective, the 1991 Consent Order directed Appellants “to minimize (to the extent

practicable) the number of schools which deviate from the system-wide student

enrollment [race] ratios.”     Moreover, the 1991 Consent Order assumed that


                                          12
intervening demographic changes might necessitate future modifications in student

assignments in order to maintain a desegregated school district.8

       To further the goal of maintaining desired race ratios, the Task Force Report

attempted to project the race ratios at each school after the cluster plan’s

implementation. In summary, the Task Force Report predicted:

       The number of schools reflecting a ten or higher percent race ratio
       variance [from the recommended ratio of 20/80%] will increase from 36
       to 46. The plan also increases the number of schools from 56 to 72 that
       will have an almost perfectly balanced race ratio with a student variance
       of five percent or less from the recommended ratio of 20/80% ratio.

Appendix 1 of the Task Force Report provided more detail as to the projected racial

balance at each school. Fourteen schools were projected to have a 40% or greater

black population,9 and an additional four schools were projected to have a 39% black

population.10 These projections, as part of the Task Force Report, were incorporated

into the 1991 Consent Order — a consent decree to which Appellees were parties.



       8
           This assumption was wrong as a matter of law. External factors which are not the
result of segregation and are beyond a school board’s control should not be part of the remedial
calculus when shaping a federal desegregation decree. See Missouri v. Jenkins, 515 U.S. 70,
102, 115 S. Ct. 2038, 2055-56 (1995) (citing Pasadena City Bd. of Educ. v. Spangler, 427 U.S.
424, 434, 96 S. Ct. 2697, 2703-04 (1976)); infra Part II.B.1.
       9
         The 14 schools, with their projected race ratios, were as follows: Lomax (94%),
Edison (64%), Sulphur Springs (59%), Graham (58%), Oak Park (58%), Cleveland (50%),
Franklin (47%), Sligh (46%), Lockhart (45%), Palm River (41%), West Tampa (41%), Shaw
(41%), B.T. Washington (40%), Witter (40%).
       10
            The four schools were Foster, Bing, Dowdell, and Just.

                                                13
       Along with projecting race ratios, the Task Force Report instituted a variety of

programs designed to maintain a desegregated school system. For example, the report

implemented magnet programs,11 which were designed in part “to reduce minority

isolation” and “to promote desegregation in schools.”12 The report also suggested a

multi-cultural curriculum for students in all grades and instructional sessions to enable

staff to deal with diverse populations.

       One omission in the Task Force Report, however, is particularly noteworthy in

light of subsequent events: majority-to-minority transfers. Although they had been

discussed briefly in the July 1971 Order, majority-to-minority transfers were not

mentioned once in the 37-page Task Force Report, nor in the 8 attached appendices,

nor in the 1991 Consent Order. Dr. Stevens — Appellees’ desegregation expert who

helped shape the Task Force Report — admitted at the 1996 evidentiary hearing that

majority-to-minority transfers would have been insignificant in alleviating the racial

imbalances in the school district.

       3. Factual Findings




       11
         The magnet programs were intended to supplement a traditional curriculum with a
focus on special “themes”, such as computers and technology or visual and performing arts.
       12
          In addition, the “racial composition targets for magnet school populations [was] not
[to] exceed 40% black.”

                                               14
       The magistrate judge, in her 1997 report and recommendation, structured her

factual findings around the six Green factors,13 plus a seventh factor, quality of

education, which has been used by some courts to evaluate a school district’s unitary

status. See, e.g., Mills v. Freeman, 942 F.Supp. 1449, 1460 (N.D. Ga. 1996), aff’d,

118 F.3d 727 (11th Cir. 1997). In addition, the magistrate judge made factual findings

regarding Appellants’ good-faith compliance with past desegregation decrees, as

required by Board of Education of Oklahoma City v. Dowell, 498 U.S. 237, 250, 111

S. Ct. 630, 638 (1991), and its progeny. Based on all of these findings, the magistrate

judge recommended the school district be declared unitary in all respects and that

federal judicial supervision of the school district be terminated.

       The district judge found that the magistrate judge’s report and recommendation

was “comprehensive” and “agree[d] with a majority of the [m]agistrate [j]udge’s

analysis.” Manning, 24 F.Supp.2d at 1287. For six of the seven factors (faculty, staff,

transportation, extracurricular activities, facilities and resource allocation, and quality

of education), the district judge adopted most, if not all, of the magistrate judge’s

findings.14 See id. at 1316-34. In their brief to this Court, Appellees do not contest


       13
           Those six factors are student assignments, faculty, staff, transportation, extracurricular
activities, and facilities and resource allocation. See Green, 391 U.S. at 435, 88 S. Ct. at 1693.
       14
           Regarding these six factors, the district judge’s order is less than clear. After a
thorough review, however, we are convinced that the district judge overruled most, and possibly
all, of Appellees’ objections to the magistrate judge’s report and recommendation. The

                                                 15
the findings related to these six factors, and thus further elaboration is unnecessary

except to emphasize that the findings support a declaration of unitary status.

       With regard to the remaining Green factor (student assignments), the district

judge expressed some disagreement with the magistrate judge. The district judge also

differed with the magistrate judge’s finding on Appellants’ good-faith compliance.

As we discuss in Part II, the district judge used an incorrect legal standard. As a

result, the district judge’s legal conclusion, though based mostly upon the magistrate

judge’s factual findings, was erroneous. To help illuminate our discussion in Part II,

we narrate below the magistrate judge’s factual findings related to student assignments

and Appellants’ good faith, and we highlight, when necessary, particular findings

adopted by the district judge. We also note those few areas where the district judge

rejected the factual findings of the magistrate judge.

               a. Student Assignments

       As of the 1995-96 school year, the Hillsborough County school district

consisted of approximately 120,000 students, 108 elementary schools, 27 junior high

schools, and 15 senior high schools. Relying on a standard proposed by Appellees’

and Appellants’ experts, the magistrate judge designated any school with a




objections sustained by the district judge, if any, are inconsequential to our ultimate holding in
this case.

                                                 16
black/white ratio varying plus or minus 20 points from a 20/80 ratio as being “racially

identifiable” or “racially imbalanced.”15 It was undisputed that, by the 1971-72 school

year, all schools were desegregated. Furthermore, the evidence showed that, at the

time of the 1996 evidentiary hearing, approximately 90% of the schools were not

racially identifiable. Appellees, however, identified 17 schools as racially identifiable




       15
          Since the parties agree on what constitutes a racially identifiable school, we shall
accept their definition for purposes of this case and this case only. We pass no judgment on the
correctness of this definition.

                                               17
and made these schools the focus of the 1996 evidentiary hearing.16 Ironically, of

these 17 schools, 9 were among the 14 schools that the Task Force Report projected


         16
           Both the district judge and the magistrate judge referred to 16 schools. A review of
the Joint Pre-Evidentiary Hearing Statement and the report by Appellees’ expert reveals that
Appellees challenged the racial identifiability of 17 schools. Both the district judge and the
magistrate judge omitted Mort Elementary from their findings. This oversight, however, is of no
significance. The following are the percentages of black students at each of these 17 challenged
schools during the 1972-73 and 1995-96 school years:

 School                                  Percentage of Black       Percentage of Black
                                         Students, 1972-73         Students, 1995-96
 Robles                                  24%                       91%
 Edison                                  36%                       77%
 Sulphur Springs                         19%                       74%
 Oak Park                                23%                       69%
 Graham                                  35%                       67%
 Foster                                  21%                       61%
 Cleveland                               26%                       58%
 Shaw                                    15%                       57%
 Witter                                  18%                       54%
 Cahoon                                  21%                       53%
 Clair Mel                               18%                       49%
 West Tampa                              14%                       47%
 DeSoto                                  35%                       43%
 Mort                                    N/A                       43%
 Van Buren                               17%                       53%
 Sligh                                   20%                       50%
 Dowdell                                 14%                       48%


                                               18
would have a 40% or greater black population, and two were among the four schools

that the Task Force Report projected would have a 39% black population.17

Immediately after the July 1971 Order was implemented, all of these schools became

racially balanced.18

       The critical factual question at the evidentiary hearing was whether the racial

imbalances at the 17 schools were caused by Appellants’ past de jure segregation (or

other discriminatory conduct), or whether, instead, the racial imbalances were caused

by nondiscriminatory factors and circumstances. In a joint statement submitted prior

to the evidentiary hearing, Appellants contended that demographic shifts had caused

the schools to become racially identifiable. In the same joint statement, Appellees did

not directly rebut Appellants’ contention, but instead argued that “[d]emographic

change alone does not account for the racial identifiability in the Hillsborough County

school system.” (emphasis added).

       To resolve their factual dispute, the parties presented considerable evidence to

the magistrate judge, including, inter alia, reports on attendance boundaries,

demographic reports, and expert testimony. We need not repeat all this evidence here,

as it is fully set forth in the opinion of the district court. See Manning, 24 F.Supp.2d

       17
            Compare supra notes 9, 10 with supra note 16.
       18
         One school, Mort, was not listed in the 1971 report submitted by Appellants and thus
presumably did not exist at that time.

                                               19
at 1290-1312. Instead, we compare the findings of the magistrate judge to those of

the district judge.

       The magistrate judge, in her report and recommendation, recounted the expert

testimony of Dr. David Armor, one of Appellants’ experts — testimony that the

magistrate judge personally observed. Dr. Armor explained that he reviewed the

extensive demographic data contained in a report by Dr. W.A.V. Clark, another of

Appellants’ experts. Based on this evidence, Dr. Armor opined on the witness stand

that “none of the schools that were currently imbalanced . . . were caused by

[Appellants’] action[s,]” but rather such imbalances “were caused by demographics.”

The magistrate judge also reviewed the testimony of Dr. Fred Shelley, Appellees’

demographic expert — once again, testimony that the magistrate judge personally

observed. Dr. Shelley did not conduct his own demographic study, but rather relied

on the data supplied by Dr. Clark (Appellants’ expert). Dr. Shelley opined “that it is

perhaps difficult to conclude that [the] increase in racial imbalance is attributable

solely to the processes of natural demographic change.” In the end, the magistrate

judge agreed with Dr. Armor and found that demographic change is the “most likely




                                         20
explanation” for the racial imbalances. The magistrate judge faulted Dr. Shelley for

not providing an alternative explanation for the racial imbalances.19

       The district judge, though not observing any of the testimony, agreed for the

most part with the findings of the magistrate judge. In conformity with Dr. Armor’s

opinion (and the magistrate judge’s finding), the district judge found that “[t]here

[was] no indication that the racial identity of the schools in Hillsborough County has

been deliberately caused by segregative policies or practices by [Appellants]” and that

“based on the totality of the evidence, a shift in demographics [was] a substantial

cause of the racial identifiability in Hillsborough County’s schools.” Manning, 24

F.Supp.2d at 1303, 1310. The district judge likewise was unable to cite, in either of

her two orders, any independent demographic evidence put forward by Appellees or

an alternative explanation proffered by Dr. Shelley as to the cause of the racial

imbalances.


       19
           In his report, Dr. Shelley did not attempt to link the present racial imbalances with past
de jure segregation, but rather merely tried to prove that demographics alone did not cause the
upsurge in racially identifiable schools. At the evidentiary hearing, when asked how his report
differed from Dr. Clark’s report, Dr. Shelley responded:
        My reaction to the report was that, while I thought the demographic analysis was
        very good, what I felt was missing in the report was how to reason from the
        analysis of the demographic change that was undertaken to a conclusion that
        demographic change was the sole cause of the observed racial imbalance in the
        public schools in Hillsborough County.
Tr. of Evidentiary Hearing on October 24, 1996, Vol. 4, at 66 (emphasis added). Dr. Shelley
expressed doubts that “one can conclude without ambiguity that [the racial] imbalance is caused
only by natural demographic changes.” Id. at 66-67 (emphasis added).

                                                 21
      The district judge seemed to have adopted in toto Appellants’ theory of the case

(and the magistrate judge’s finding). As the district judge stated time and time again,

a shift in demographics was a substantial or significant cause of the racial imbalances,

and Appellants did not deliberately cause the racial imbalances. See id. at 1293

(stating “that the racial imbalances in the schools [were] not the result of a deliberate

attempt by [Appellants] to affect or alter demographic patterns to affect the racial

composition of the schools”); id. at 1311 (finding “the evidence presented by the

parties establishes that a shift in demographics played a significant role in the racial

compositions of the schools” and that Appellants had “not ‘affirmatively’ exacerbated

racial imbalances”); Manning, 28 F.Supp.2d at 1356 (stating that “demographics have

played a significant role in Hillsborough County”). The district judge even agreed

that “[i]t [was] probable that” the 17 challenged “schools would have become racially

imbalanced regardless of [Appellants’] efforts.” Manning, 24 F.Supp.2d at 1303.

Even Appellees’ own expert, according to the district judge, “agreed that

demographics have played a significant role in Hillsborough County.” Id. Despite

all of the evidence showing that demographics, and not de jure segregation, caused

the racial imbalances, the district judge ultimately declined to find the school district

unitary as to student assignments. The district judge declined to so find because she

could not conclude that demographics were the sole cause of the racial imbalances.


                                           22
See id. at 1302. In the district judge’s view, therefore, the legal presumption remained

that any racial imbalances were the result of the prior de jure segregation. See

Manning, 28 F.Supp.2d at 1357.

            Finally, we note that the district judge’s findings were inconsistent and

difficult to follow. For example, the district judge was concerned by Dr. Clark’s data,

especially with regard to its reliability.20 See Manning, 24 F. Supp.2d at 1298-1300.

Nevertheless, the district judge never stated that the data — which both sides relied

upon —        was so unreliable so as to undermine her finding that “a shift in

demographics [was] a substantial cause of the racial identifiability in Hillsborough

County’s schools.” Id. at 1303. Additionally, the district judge remarked that she was

“not convinced that a shift in demographics explain[ed] the racial imbalance in the

Hillsborough County school system.” Manning, 28 F.Supp.2d at 1356; see also



       20
         In particular, the district judge noted the following:
      [Appellants’] statistics encompass a larger segment of the population than is
      useful to explain the deviations in the racial compositions of the unbalanced
      schools. Specifically, [Appellants] rely on Dr. Clark’s use of school-aged children
      from ages 0-17 to explain enrollment ratios at the elementary schools; however,
      almost one-half of the children included in this group would not, in fact, be
      attending an elementary school. Moreover, while a few blocks in an attendance
      zone may reflect black school-age populations as high as 95%, those few blocks
      only represent a small proportion of the entire attendance zone. Finally, Dr.
      Clark's analysis does not address [Appellants'] initial decisions to draw attendance
      zones, decisions not to act when it was apparent that those zones were
      inappropriate, or other School Board decisions, such as, location of new schools,
      or implementation (or lack thereof) of desegregation tools.
Manning, 24 F.Supp.2d at 1298.

                                               23
Manning, 24 F.Supp.2d at 1293. Yet, in the very same sentence, the district judge also

stated that “demographics have played a significant role in Hillsborough County.”

Manning, 28 F.Supp.2d at 1356. In spite of these inconsistencies, we are convinced

that the district judge agreed with the magistrate judge and found that shifting

demographics was a substantial cause of the racial imbalances in Appellants’ student

assignments and that Appellants did not deliberately cause the racial imbalances.

      b. Good-Faith Compliance

      The magistrate judge concluded that Appellants had complied in good faith

with past federal desegregation decrees, as required by Dowell and its progeny. 498

U.S. at 249-50, 111 S. Ct. at 638. The magistrate judge’s conclusion was based

largely on the testimony given during the 7-day evidentiary hearing by a variety of

witnesses, including inter alia: Dr. Walter Sickles, the school superintendent from

1989 to 1996; Dr. Earl Lennard, the school superintendent as of 1996; five members

of the school board; Doris Reddick, the chair of the school board; Andrew Manning,

the lead plaintiff in the case since its inception; and Joanna Tokley, the president and

CEO of the Urban League.

      Dr. Sickles, who had been an employee of the school board since 1969, testified

that he believed the school district was unitary in the early 1990's. Dr. Sickles did not

seek a declaration of unitary status at that time because he believed Appellees would


                                           24
have opposed and impeded his effort to establish middle schools, which was his top

priority. Instead, Dr. Sickles sought Appellees’ cooperation in establishing middle

schools via the Task Force Report and the 1991 Consent Order. Dr. Lennard, an

employee of the school board since 1964, testified that he felt a “moral and legal

obligation on the school system to continue a desegregated school system.” Five

school board members “expressed no misgivings about . . . the intent and ability of the

School Board to continue a desegregated school system while receiving input from all

members of the community.”

      Some witnesses “voice[d] concern about what might happen in the future if

[c]ourt supervision ended.” For instance, Ms. Reddick, the chair of the school board,

testified against a finding of unitary status. Nevertheless, when asked by Appellees’

counsel what would happen if the school district were found unitary, Ms. Reddick

asserted, “[W]e’re going to guarantee that students will receive equal education.”

      The magistrate judge found that for more than 25 years Appellants had

complied with the court’s orders to desegregate and that not once had Appellants been

found in violation of any court order. In addition, the magistrate judge noted that

Appellants had “regularly conferred [with Appellees] . . . to ensure that the school

system was moving forwards, not backwards, toward compliance with the [c]ourt’s

orders.” Accordingly, “the long history of compliance with the [c]ourt’s orders”


                                          25
outweighed the “opinions and the anecdotal evidence offered by [Appellees].” In

sum, the magistrate judge concluded, “The testimony of . . . most School Board

members, as well as the current superintendent and those responsible for various

facets of school operation[,] demonstrates that [Appellants] have accepted the

principle of racial equality and will not revert back to a dual school system.”

      The district judge, however, did not adopt this finding of good faith. Since the

district judge did not observe any of the testimony from the evidentiary hearing,

naturally she could not evaluate the credibility of the witnesses. Instead, the district

judge’s finding of bad faith centered upon two interrelated areas of concern:




                                          26
Appellants’ “apathy” and the lack of a majority-to-minority (MTM) transfer

program.21 See Manning, 24 F.Supp.2d at 1293, 1312-14.

       With regard to Appellants’ “apathy,” the district judge faulted Appellants for

not “utiliz[ing] all available techniques [to desegregate] to the maximum extent

practicable” and for not demonstrating “that they [were] willing to aggressively

desegregate the school district to the maximum extent practicable.” Id. at 1312, 1335.

Additionally, the district judge spoke of missed opportunities and a failure to take

“affirmative steps . . . to be released from the [c]ourt’s supervision.” Id. at 1312;


       21
          The district judge and the magistrate judge also extensively discussed some ex parte
communications between a previous presiding judge and school officials . During the
evidentiary hearing, Dr. John Heur, a retired school board official who had been responsible for
implementing the July 1971 Order, testified that such communications occurred between 1972
and 1974. The magistrate judge found that “[t]hese ex parte conversations, while unfortunate,
were not initiated by [Appellants] and do not demonstrate a lack of good faith.” The district
judge agreed, finding that, “standing alone, the ex parte communications [did] not evidence bad
faith.” Manning, 24 F.Supp.2d at 1315.
        Additionally, Part II of the October 26, 1998, opinion is titled “Good-Faith” and
discusses Appellants’ magnet programs. See id. at 1314-15. This portion of the opinion is very
confusing. It lists the arguments advanced by Appellees regarding magnet schools, but the
opinion never states whether it is adopting those arguments. In the opinion of December 4,
1998, the district judge faults Appellants for their failure to develop magnet schools and
programs, except for one program at Tampa Bay Technical High School. See Manning, 28
F.Supp.2d at 1359. But neither opinion ever explains how Appellants’ actions with respect to
magnet programs demonstrated bad faith.
        We therefore conclude that the district judge did not base her finding of bad faith upon
Appellants’ magnet programs. Even if the district judge did, in fact, base her finding of bad faith
on Appellants’ magnet programs, such a finding would be clearly erroneous. In 1990,
Appellants moved to designate a magnet school, but Appellees opposed the motion. In
successfully opposing the motion, Appellees argued that “[t]he basic structure of desegregation
in [Appellants’] school system has remained constant and effective since 1971," and that a
magnet program would “introduce more uncertainty about whether schools will remain
desegregated.”

                                                27
Manning 28 F.Supp.2d at 1359 (citing Lockett v. Bd. of Educ. of Muscogee Sch. Dist.,

92 F.3d 1092, 1099 (11th Cir. 1996) (Lockett I)). Nevertheless, after a request by

Appellants to clarify exactly what steps should be taken to desegregate to the

maximum extent practicable, see id. at 1355, the district judge declined to give any

specifics.

      Related to the issue of apathy is the inaction demonstrated by Appellants in

their MTM program.       As previously noted, the July 1971 Order directed the

establishment of an MTM program. See supra Part I.B.1. Under this program, a

student who attended a school where his race was the majority would be permitted to

transfer to a school where his race was the minority. At the evidentiary hearing, Dr.

John Miliziano, who was Appellants’ “in-house desegregation expert,” expressed

ignorance about the requirement to implement an MTM program:

      I dealt with the Biracial Committee for many years, and no member of
      the committee ever brought that up. And to tell you the truth, I thought
      it was one of those things that was considered by the court and it was
      never meant to apply. It wasn't until recently that I, a person who has
      spent many, many years in dealing with the court order, maybe it's
      stupidity on my part, but I didn't even know that this hidden clause —
      this clause, not hidden, but this clause in the [July 1971 Order] meant
      really anything.

Manning, 24 F. Supp.2d at 1313. The evidence also showed that, from 1977 to 1996,

no student had ever applied for an MTM transfer, and Appellants had not made any



                                         28
effort to publicize or market the MTM program. See id. at 1314; Manning, 28

F.Supp.2d at 1359.

       While faulting Appellants on the MTM program, the district judge

acknowledged that the July 1971 Order “did not specifically direct [Appellants] to

market the [MTM] program.” Manning, 24 F.Supp.2d at 1314. Furthermore, the

district judge noted (and did not dispute) that no member of the Bi-Racial Committee

and no representative of Appellees had complained, prior to the mid-1990's, about the

non-availability of an MTM program. See id. at 1313 (quoting testimony of Dr.

Miliziano). The district judge also found that when Appellees did raise the lack of an

effective MTM program, Appellants announced the program “to the [school] district

as a whole and . . . took action to publish information about the program.” Id. at 1312.

       Although the district judge stated that an MTM program is an “indispensable

remedy” and a “useful part of every desegregation plan,”22 id. at 1314, the district

judge did not explain why this particular MTM program was needed to desegregate

the Hillsborough County school district. In fact, as previously mentioned, Dr. Stevens

— Appellees’ expert who was involved in the negotiations that led to the 1991

Consent Order — conceded that an MTM program would not significantly impact the

       22
          The district judge lifted this language from the Supreme Court’s opinion in Swann,
402 U.S. at 26-27, 91 S. Ct. at 1281. In the very same opinion, however, the Supreme Court
warned that “[n]o per se rule can adequately embrace all the difficulties of reconciling the
competing interests involved [in desegregating schools].” Id. at 26, 91 S. Ct. at 1281.

                                              29
race ratios at the schools Appellees were challenging as racially imbalanced.

Furthermore, the Task Force Report and the 1991 Consent Order (both of which were

approved by the district judge) failed to even mention the MTM program. Lastly,

notwithstanding the criticism of the MTM program, the district judge spoke favorably

of Appellants’ overall desegregation efforts. See, e.g., id. at 1287 (stating that

“[u]ndoubtedly, [Appellants’] desegregation efforts demonstrate significant success”);

 id. at 1311 (stating Appellants “deserve acknowledgment for their desegregation

efforts thus far”); id. at 1312 (noting Appellants “have been relatively successful in

implementing desegregation techniques”); id. at 1325 (finding Appellants had acted

in good faith with respect to faculty desegregation and commending Appellants for

taking recommendations from the Minority Recruitment Task Force).

                                      II. DISCUSSION

A. Standard of Review

       Where the relief sought in the district court is the dissolution of an injunction,

the order of the district court is subject to a mixed standard of review.23 We review


       23
           We raised sua sponte whether appellate jurisdiction existed in this case and requested
briefs from the parties. Since this is an appeal of an interlocutory order of the district court
refusing to dissolve an injunction, we do possess jurisdiction. See 28 U.S.C. § 1292(a)(1). We
also raised sua sponte whether the notice of appeal was timely filed. Appellants timely filed in
the district court a motion to alter or amend judgment under Fed. R. Civ. P. 59(e). As such,
Appellants could file their appeal until 30 days after the district court ruled on the Rule 59(e)
motion. See Fed. R. App. P. 4(a)(4)(iv). Since the Appellants complied with this time limit, we
conclude Appellants timely filed their notice of appeal. Thus, we may hear this appeal.

                                               30
for abuse of discretion the failure to dissolve an injunction as required by law. See

Wilson v. Minor, 220 F.3d 1297, 1301 (11th Cir. 2000). The district court’s

application of law is subject to de novo review, while its findings of fact are subject

to a clearly erroneous standard of review under Fed. R. Civ. P. 52(a). See Sierra Club

v. Martin, 110 F.3d 1551, 1554 (11th Cir. 1997) (quoting SunAmerica Corp. v. Sun

Life Assurance Co. of Can., 77 F.3d 1325, 1333) (11th Cir. 1996)). A declaration of

a school system’s unitary status is a finding of fact and thus falls under the clearly

erroneous standard of Rule 52(a). See Lockett v. Bd. of Educ. of Muscogee County

Sch. Dist., 111 F.3d 839, 841-42 (11th Cir. 1997) (Lockett II); Jacksonville Branch,

NAACP v. Duval County Sch. Bd., 883 F.2d 945, 952 n.3 (11th Cir. 1989). Under this

standard of review, “[w]here there are two permissible views of the evidence, the

[district court]’s choice between them cannot be clearly erroneous.” Lockett II, 111

F.3d at 842; accord Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S. Ct.

1504, 1511 (1985). But where a district court applies an incorrect legal standard

which “taints” or “infects” its findings of facts, such findings “lose the insulation of

[Rule] 52(a) and judgment based thereon cannot stand.” Corley v. Jackson Police

Dept., 566 F.2d 994, 1001 (5th Cir. 1978) (internal quotations and citation omitted);24


       24
           In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.

                                              31
accord Bigge v. Albertsons, Inc., 894 F.2d 1497, 1502-03 (11th Cir. 1990); Harris v.

Birmingham Bd. of Educ., 712 F.2d 1377, 1381 (11th Cir. 1983); Lincoln v. Bd. of

Regents of Univ. Sys. of Ga., 697 F.2d 928, 938-39 (11th Cir. 1983); see also Solomon

v. Liberty County Comm’rs, 221 F.3d 1218, 1227 (11th Cir. 2000) (en banc) (stating

“Rule 52(a) does not inhibit an appellate court’s power to correct errors of law”).

B. Analysis

      1. General Principles

      Before analyzing the case before us, it is important to recall some general

principles. In Brown I, the Supreme Court held that de jure racial segregation

practiced by school districts violates the Fourteenth Amendment. See Lockett II, 111

F.3d at 842 (citing Brown I, 347 U.S. at 495, 74 S. Ct. at 692). To remedy the illegal

conduct, the Supreme Court ordered federal district courts to supervise local officials

in desegregating school systems. See id. (citing Brown v. Bd. of Educ., 349 U.S. 294,

301, 75 S. Ct. 753, 757 (1955) (Brown II)). Federal judicial supervision of local

officials, however, was intended to be a temporary measure. See id. (citing Bd. of

Educ. v. Dowell, 498 U.S. 237, 247, 111 S. Ct. 630, 637 (1991)).

      A desegregation order is remedial in nature, for it is the means by which victims

of discriminatory conduct are restored to the position they would have occupied in the

absence of such conduct. See Missouri v. Jenkins, 515 U.S. 70, 87, 115 S. Ct. 2038,


                                          32
2048 (1995) (citing Milliken v. Bradley, 418 U.S. 717, 746-47, 94 S. Ct. 3112, 3128

(1974)). The purpose of federal supervision is not to maintain a desired racial mix at

a school. See Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434-37, 96 S.

Ct. 2697, 2704-05 (1976); see also Freeman v. Pitts, 503 U.S. 467, 494, 112 S. Ct.

1430, 1447 (1992) (noting that “[r]acial balance is not to be achieved for its own

sake”). Rather, a federal court may insist upon a racially balanced school only in

those situations where a constitutional violation has caused the school to become

racially imbalanced. See id. at 494, 112 S. Ct. at 1447. As the Supreme Court

instructed 30 years ago, “[I]n 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.” Swann, 402 U.S. at 31-32,

91 S. Ct. at 1283-83. Put simply, a school board has no obligation to remedy racial

imbalances caused by external factors, such as demographic shifts, which are not the

result of segregation and are beyond the board’s control. See Jenkins, 515 U.S. at 102,

115 S. Ct. at 2055-56 (citing Spangler, 427 U.S. at 434, 96 S. Ct. at 2703-04; Swann,

402 U.S. at 22, 91 S. Ct. at 1279).

      The ultimate objective of any desegregation order is the “restoration of state and

local authorities to the control of a school system that is operating in compliance with


                                          33
the Constitution.”25 Id. at 89, 115 S. Ct. at 2049 (internal quotations and citation

omitted). To guide district courts in assessing when it is appropriate to restore local

control, the concept of a “unitary” school system has evolved in federal jurisprudence.

See generally Freeman, 503 U.S. at 485-92, 112 S. Ct. at 1443-46 (1992). In

evaluating whether a school system is “unitary,” a district court must carefully assess

the facts and utilize its sound discretion to determine (1) whether local authorities

have eliminated the vestiges of past discrimination to the extent practicable, and (2)

whether local authorities have in good faith fully and satisfactorily complied with, and

shown a commitment to, the desegregation plan. See Lockett II, 111 F.3d at 842

(quoting Lee v. Etowah County Bd. of Educ., 963 F.2d 1416, 1425 (11th Cir. 1992)

(citing Dowell, 498 U.S. at 249-50, 111 S. Ct. at 638)). For a district court to

determine whether the vestiges of discrimination have been eliminated to the extent



       25
          Local control is complementary, not contradictory, to the goal of eradicating illegal
discrimination from our nation’s schools. The Supreme Court has spoken to this principle:
       Returning schools to the control of local authorities at the earliest practicable date
       is essential to restore their true accountability in our governmental system. When
       the school district and all state entities participating with it in operating the
       schools make decisions in the absence of judicial supervision, they can be held
       accountable to the citizenry, to the political process, and to the courts in the
       ordinary course. . . . [I]t must be acknowledged that the potential for
       discrimination and racial hostility is still present in our country, and its
       manifestations may emerge in new and subtle forms after the effects of de jure
       segregation have been eliminated. It is the duty of the State and its subdivisions
       to ensure that such forces do not shape or control the policies of its school
       systems. Where control lies, so too does responsibility.
Freeman, 503 U.S. at 490, 112 S. Ct. at 1445.

                                                34
practicable, it must examine the six facets of school operation, the so-called Green

factors: student assignments, faculty assignments, staff assignments, transportation,

extra-curricular activities, and facilities. See id. (citing Dowell, 498 U.S. at 245, 111

S. Ct. at 636 (quoting Green, 391 U.S. at 435, 88 S. Ct. at 1693)). Using its

discretion, a court may also consider other facets. See id. (citing Freeman, 503 U.S.

at 492, 112 S. Ct. at 1446).

        It is not uncommon for plaintiffs in school desegregation cases to allege, as

Appellees did here, that racial imbalances in student assignments, are a “vestige of

discrimination.” Until unitary status is attained, the defendant school board has the

burden of showing that any racial imbalance in the school system is not traceable, in

a proximate way, to the prior de jure segregation. See Freeman, 503 U.S. at 494, 112

S. Ct. at 1447. Stated differently, once a plaintiff shows de jure segregation (as

Appellees did here in 1962, see supra Part I.A), a presumption arises that all racial

imbalances in a school district are the result of the de jure segregation. See Keyes v.

Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 208, 93 S. Ct. 2688, 2697 (1973). To

rebut this presumption, “a school board must prove that the imbalances are not the

result of present or past discrimination on its part.” Lockett II, 111 F.3d at 843 (citing

Swann, 402 U.S. at 25, 91 S. Ct. at 1281); accord Keyes, 413 U.S. at 211; 93 S. Ct. at

2699.


                                           35
       2. District Court’s Reliance on Lockett I

               a. Wrong Legal Standard

       With the foregoing principles and standards in mind, we turn to the case before

us. Appellants argue, inter alia,26 that the district court committed reversible error by

relying upon our opinion in Lockett v. Board of Education of Muscogee County, 92

F.3d 1092 (11th Cir. 1996) (Lockett I).27 In Lockett I, a panel of this Court reversed

a district court’s finding of unitary status and ordered the district court to “retain

jurisdiction . . . to monitor the progress of the school district’s desegregation efforts”

until the school district could show that it “ha[d] desegregated its schools to the

maximum extent practicable.”             Id. at 1101 (emphasis added).              Lockett I was

subsequently vacated by the same panel. See Lockett II, 111 F.3d at 840-45.

       26
          We need not address every argument advanced by Appellants with which we agree.
We pause, however, to highlight Appellants’ contention that the district court must provide them
with a “precise statement” of their obligations under a consent decree. See, e.g., Jenkins, 515
U.S. at 101, 115 S. Ct. at 2055. The district judge avoided this requirement and held that she
would not “tell [Appellants] which specific means to employ” for achieving unitary status.
Manning, 28 F.Supp.2d at 1360; see also id. at 1355 (refusing to describe “specific action” for
Appellants to take). Even if we were to hold that Appellants’ school district was not unitary, we
would nonetheless remand this case with instructions that the district court provide specific
guidance on what steps Appellants must take to achieve unitary status. But since we conclude
the school district is unitary, see infra Part III, there is no need for the district judge to issue a
statement, precise or otherwise, on Appellants’ obligations.
       27
           The district judge was aware that Lockett I had been superseded by Lockett II, but she
justified her reliance on Lockett I upon the belief that “Lockett I reiterated established principles
of law.” Manning, 24 F.Supp.2d at 1311. District judges in this circuit, however, are required
to adhere to the decisions of this Court and the Supreme Court. See Fishman & Tobin, Inc. v.
Tropical Shipping & Constr. Co., ___ F.3d ___, Slip Op. No. 99-4375, at 1299 n.14 (11th Cir.
2001).

                                                  36
       The district judge, in relying on Lockett I, applied the wrong legal standard.

The law does not require, as stated in Lockett I, that a school board eliminate the

vestiges of past discrimination “to the maximum extent practicable.” 92 F.3d at 1101

(emphasis added).         Rather, the law merely requires that the vestiges of past

discrimination be eliminated “to the extent practicable.” Lockett II, 111 F.3d at 842

(emphasis added); accord Jenkins, 515 U.S. at 90, 115 S. Ct. at 2050;28 Freeman, 503

U.S. at 492, 112 S. Ct. at 1446; Dowell, 498 U.S. at 250, 111 S. Ct. at 638; United

States v. Georgia, 171 F.3d 1344, 1347 (11th Cir. 1999); Lee, 963 F.2d at 1425. The

district judge incorrectly referred to the “maximum extent practicable (or possible)”

standard at least 12 times in her opinion of October 24, 1998, and four times in her

order of December 4, 1998. See Manning, 24 F.Supp.2d at 1287, 1289, 1290, 1292,

1293, 1301, 1312, 1326, 1334, 1335; Manning, 28 F.Supp.2d at 1356, 1359, 1360.

       Accordingly, the critical issue is whether the district judge’s repeated use of the

wrong legal standard sufficiently tainted or infected the findings of fact so as to strip

those findings of the insulation normally accorded under Rule 52(a). See supra Part

II.A; Corley, 566 F.2d at 1001. We would not permit an inadvertent use of language


       28
           The district court in Jenkins stated that its goal was to integrate the school district to
the “maximum extent practicable” and to the “maximum potential.” 515 U.S. at 81, 101, 115
S. Ct. at 2045, 2055. The Supreme Court expressly rejected this test and held that the proper test
was whether the deficiencies “attributable to prior de jure segregation had been remedied to the
extent practicable.” Id. at 101, 115 S. Ct. at 2055.

                                                 37
by a district court to constitute reversible error. Here, however, we are persuaded that

the district judge’s mistake is more than mere inadvertence.29 As we discuss

immediately below, the district judge’s findings on student assignments and good faith

were tainted (and thus stripped of Rule 52(a) protection) because the district judge

held Appellants to a higher standard than the law requires.

               b.     Application of Wrong Legal Standard to Finding on Student
                      Assignments

       In Lockett, the critical issue was, as it is here, whether the racial imbalances in

student assignments precluded a finding of unitary status. See Lockett II, 111 F.3d at

842, 843. Lockett II held that, for a school board to rebut the presumption of de jure

segregation, the school board had to prove “the [racial] imbalances [were] not the

result of present or past discrimination on its part.” Id. at 843; see also supra Part

II.B.1.     The district court in Lockett II found the school board rebutted the

presumption by presenting expert demographic evidence showing the imbalances to

be the result of voluntary housing patterns and demographic change. See id. The

school board’s demographic evidence was not contradicted by plaintiffs’ experts. See




       29
           The phrase “to the extent practicable” is not meaningless surplusage. As the Third
Circuit has noted, “[T]he phrase ‘to the extent practicable’ implies a reasonable limit on the
duration of [the] federal supervision” because “extend[ing] federal court supervision indefinitely
is neither practicable, desirable, nor proper.” Coalition to Save our Children v. State Bd. of
Educ. of Del., 90 F.3d 752, 760 (3d Cir. 1996).

                                               38
id. The Lockett II majority affirmed the district court’s finding as not being clearly

erroneous. See id. at 844.

       By contrast, Lockett I staked out a position on the law under which school

boards would have been held to a higher standard. Instead of affirming, the Lockett I

panel would have remanded, so the district court could have continued supervising the

school board “until such time as a reliable body of data exist[ed] to assure . . . that the

school district ha[d] desegregated its schools to the maximum extent practicable.”

Lockett I, 92 F.3d at 1101 (emphasis added); accord Lockett II, 111 F.3d at 844

(Barkett, J. dissenting). Under Lockett I, a school board would have been required to

remedy racial imbalances even when “the imbalances [were] caused by circumstances

over which the school district has no control.” Lockett I, 92 F.2d at 1099 (quoted in

Manning, 24 F.Supp.2d at 1310). Moreover, according to Lockett I, to be declared

unitary, it is not enough for a school board to show demographic shifts as the cause

of the racial imbalances, as “demographic shifts are not necessarily independent of

prior unconstitutional practices.”30 Id. at 1099 (cited in Manning, 28 F.Supp.2d at

1359).


       30
           Judge Barkett, the author of Lockett I, further elaborated on this view in her Lockett II
dissent. In particular, Judge Barkett wrote that it was erroneous to “assume[] that as long as a
school district can point to some force not directly related to a school district’s overt actions
which is causing or exacerbating racial imbalances, then the resulting imbalance is not traceable
to past practices.” Lockett II, 111 F.3d at 845 (Barkett, J. dissenting).

                                                 39
      Lockett I, however, is not the law of this circuit. Rather, the law of the circuit

must be distilled from Lockett II. We reiterate that, to overcome the presumption that

racial imbalances are constitutionally violative, “a school board must prove that the

imbalances are not the result of present or past discrimination on its part.” Lockett II,

111 F.3d at 843. Lockett II stands for the proposition that a school board overcomes

this presumption when it shows that some external force, which is not the result of

segregation and is beyond the school board’s control, substantially caused the racial

imbalances. See id. (upholding declaration of unitary status when district court found

demographic shifts caused racial imbalances); see also Jenkins, 515 U.S. at 102, 115

S. Ct. at 2055-56; contra Lockett II, 111 F.3d at 845 (Barkett, J. dissenting)

(advocating contrary proposition). Where a defendant school board shows that

demographic shifts are a substantial cause of the racial imbalances, the defendant has

overcome the presumption of de jure segregation. See Lockett II, 111 F.3d at 843.

Courts shall not assume that demographic shifts are a result of the past de jure

segregation. Contra Lockett I, 92 F.3d at 1099 (advocating contrary proposition);

Lockett II, 111 F.3d at 845 (Barkett, J. dissenting) (same). Such an assumption is

improper because “[i]t is simply not always the case that demographic forces causing

population change bear any real and substantial relation to a de jure violation, and the




                                           40
law need not proceed on that premise.”31 Lockett II, 111 F.3d at 843 (internal

alterations omitted) (quoting Freeman, 503 U.S. at 496, 112 S. Ct. at 1448). Lastly,

a plaintiff does not undermine the strength of a defendant’s demographic evidence by

merely asserting that demographics alone do not explain the racial imbalances.32

Rather, for a plaintiff to preserve the presumption of de jure segregation, the plaintiff

must show that the demographic shifts are the result of the prior de jure segregation

or some other discriminatory conduct.

       If the district judge had applied Lockett II, rather than Lockett I, her findings of

fact would have led her to the same conclusion as the magistrate judge with respect

to student assignments. The district judge, like the magistrate judge, found that

demographic shifts were a “substantial” or “significant” reason for the racial

imbalances and that the racial imbalances were inevitable, irrespective of Appellants’

efforts. See supra Part I.B.3.a; Manning, 24 F.Supp.2d at 1303, 1311; Manning, 28

F.Supp.2d at 1356. With this finding of fact, Appellants overcame the presumption

that the racial imbalances in student assignments were the result of de jure



       31
            In addition, “[a]s the de jure violation becomes more remote in time and . . .
demographic changes intervene, it becomes less likely that a current racial imbalance in a school
district is a vestige of the prior de jure system.” Lockett II, 111 F.3d at 843 (quoting Freeman,
503 U.S. at 496, 112 S. Ct. at 1448) (internal alterations included).
       32
            It is elementary that one may not rebut extensive evidence with a scintilla of evidence.
See, e.g., 2 McCormick on Evidence § 338, at 416 (John W. Strong et al. eds., 5th ed. 1999).

                                                 41
segregation. To preserve the presumption, Appellees were required to show that the

demographic shifts were the result of the past segregative practices or some other

discriminatory conduct. Appellees made no such showing. The district judge never

found that the racial imbalances at the 17 challenged schools were caused by the past

de jure segregation or other discriminatory acts. In fact, the district judge found the

exact opposite. That is, the district judge found that Appellants did not deliberately

cause the racial imbalances through segregative policies or practices. See supra Part

I.B.3.a; Manning, 24 F.Supp.2d at 1310. Appellees merely persuaded the district

judge that demographics alone did not account for the racial imbalances. See id. at

1302 (refusing to find that a “shift in demography [was] the sole cause [of] the [racial]

imbalance[s]” in the school system). Such a finding is insufficient to deny Appellants

a declaration of unitary status.

      Accordingly, by applying the correct legal standard from Lockett II to the

district judge’s findings of fact, we reach the same conclusion as the magistrate judge:

Appellants have achieved unitary status with respect to student assignments.

             c. Application of Wrong Legal Standard to Finding on Good Faith

      As discussed previously, the district judge had two interrelated areas of concern

which precluded, in her view, a finding of good faith: Appellants’ apathy and the lack

of an effective MTM program. See supra Part I.B.3.b. The district judge’s reliance


                                           42
on Lockett I undoubtedly infected her finding with regard to Appellants’ alleged

apathy. The district judge, as noted above, expected Appellants to “desegregate the

public schools in Hillsborough County to the maximum extent practicable.” E.g.,

Manning, 24 F.Supp.2d at 1287; supra Part I.B.3.b. Such an expectation was

erroneous, for the law does not require a defendant school board to take every

conceivable step in attempting to desegregate. See, e.g., Freeman, 503 U.S. at 493,

112 S. Ct. at 1447 (expressly rejecting premise that “heroic measures must be taken

to ensure racial balance”). Thus, the district judge’s concern about Appellants’

alleged “apathy” was an error of law directly traceable to her reliance upon Lockett

I.

      Further, Appellants’ lack of an effective MTM program does not necessarily

amount to a finding of bad faith. For instance, in Lockett, the school board did not

implement its MTM program until years after the desegregation decree was entered

and ignored other requirements of the desegregation decree. See Lockett II, 111 F.3d

at 844; Lockett I, 92 F.3d at 1100, 1101. Nonetheless, we affirmed a finding of good

faith based in part on the district court’s finding that the school board had never

violated a court order, had never been enjoined or sanctioned, and had consulted with

African-American members of community before modifying the student assignment

plan. See Lockett II, 111 F.3d at 843-44; contra Lockett I, 92 F.3d at 1100, 1101.


                                         43
Likewise, in the case sub judice, Appellants never violated a court order, never were

sanctioned, In and consulted extensively with the African-American community,

including Appellees, prior to implementing new student assignments under the 1991

Task Force Report. See supra Parts I.B.2 & I.B.3.b. Therefore, based on Lockett II,

the district judge clearly could have found the Appellants acted in good faith,

notwithstanding the lack of a viable MTM program.

       Additionally, we are persuaded that, if the district judge had followed the law

as set forth in Lockett II, she would have concluded that Appellants have acted in good

faith. As we explained in Lockett II, in determining whether a school board has acted

in good faith, a court should not dwell on isolated discrepancies, but rather should

“consider whether the school board’s policies form a consistent pattern of lawful

conduct directed to eliminating earlier violations.”33 Lockett II, 111 F.3d at 843

(internal quotations omitted); see also Freeman, 503 U.S. at 491, 112 S. Ct. at 1446

(holding that “a court should give particular attention to the school system’s record

of compliance”). Repeatedly in the October 26, 1998, opinion, the district judge

commended Appellants for their desegregation efforts. See, e.g., Manning, 24


       33
           The focus is on the school board’s pattern of conduct, and not isolated events, because
the purpose of the good-faith finding is to ensure that a school board has accepted racial equality
and will abstain from intentional discrimination in the future. See Lockett II, 111 F.3d at 843
(citing Freeman, 503 U.S. at 498, 112 S. Ct. at 1449). Focusing on isolated aberrations blurs a
court’s long-term vision.

                                                44
F.Supp.2d at 1287, 1311, 1312, 1325; supra Part I.B.3.b. At the end of the opinion,

the district judge further commented:

       After evaluating the voluminous record in this case, the Court is
       convinced that [Appellants] have a short road to travel [to attain unitary
       status]. Essentially, Defendants need to demonstrate that they are willing
       to aggressively desegregate the school district to the maximum extent
       practicable.34

Manning, 24 F.Supp.2d at 1335. Based on the foregoing statement, we are convinced

that, if the district judge had applied the correct standard, she would have found (as

the magistrate judge did) that Appellants acted in good faith, notwithstanding the

absence of an effective MTM program and other possible discrepancies.

       Our conclusion is buttressed by two other points. First, the MTM program, as

conceded by Appellees’ expert, would have been ineffective in desegregating the 17

challenged schools.35 As such, the MTM program should have had only marginal

relevance in analyzing whether Appellants’ “policies form[ed] a consistent pattern of

lawful conduct directed to eliminating earlier violations.” Lockett II, 111 F.3d at 843

(emphasis added) (internal quotations and citation omitted).



       34
           In contrast to the district judge, the magistrate judge recognized that “[a] school
board’s affirmative duty to desegregate does not require adoption of the most desegregative
alternative available.”
       35
          We are by no means suggesting that a desegregation plan cannot, or should not,
include an MTM program. The Supreme Court has spoken favorably of MTM programs. See
Swann, 402 U.S. at 26-27, 91 S. Ct. at 1281.

                                                45
       Second, discerning a school board’s good faith is in some respects a subjective

finding. Thus, such a finding depends in part on the judge’s personal observation of

the witnesses. The magistrate judge, not the district judge, observed all of the

witnesses at the evidentiary hearing. Granted, the district judge was free under 28

U.S.C. § 636 to make a de novo determination of the magistrate judge’s findings. In

other contexts, however, we have cautioned district judges from overruling a

magistrate judge’s finding where credibility determinations are dispositive. See, e.g.,

Proffitt v. Wainwright, 685 F.2d 1227, 1237 (11th Cir. 1982) (noting that, in criminal

or habeas corpus cases, a district judge’s reasons for rejecting a report and

recommendation must be consistent with the credibility choices made by a

magistrate). In addition, the rationale for deferring to a district court’s finding of fact

is that a trial judge is aware of the variations in demeanor which bear so heavily in

making a subjective determination. See Anderson, 470 U.S. at 575, 105 S. Ct. at 1512.

Where, as here, a district judge does not personally observe the witnesses in making

a subjective finding of fact, we view such a finding with skepticism, especially where,

as here, the finding is contrary to the one recommended by the judicial official who

observed the witnesses.




                                            46
                                III. CONCLUSION

      The district judge’s finding that Appellants have not achieved unitary status was

tainted and infected by reliance on an incorrect legal standard. As such, we reverse

the district judge’s orders of October 26, 1998, and December 4, 1998. Upon remand,

the district court shall enter judgment declaring the Hillsborough County school

system unitary. Therefore, federal judicial supervision of the Hillsborough County

school system shall cease.

      REVERSED and REMANDED.




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