                     United States Court of Appeals,

                            Eleventh Circuit.

                                No. 94-9355.

              Jerry LOCKETT, et al., Plaintiffs-Appellants,

                                      v.

 BOARD OF EDUCATION OF MUSCOGEE COUNTY SCHOOL DISTRICT, GEORGIA,
et al., Defendants-Appellees.

                                Aug. 28, 1996.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 64-991-COL), J. Robert Elliott, Judge.

Before COX and BARKETT, Circuit Judges, and MOORE*, Senior District
Judge.

      BARKETT, Circuit Judge:

      Plaintiffs-appellants       Jerry    Lockett,   et   al.,   appeal   the

district court's order vacating all outstanding injunctions against

the   Board    of   Education   of   Muscogee   County,    Georgia   ("school

district"), and declaring that the school district had successfully

eliminated all vestiges of its dual education system and had

exhibited good faith in discharging its constitutional duties to

desegregate its schools.

                                  Background

      Plaintiffs, African-American students attending public school

in Muscogee County, commenced this class action over thirty-one

years ago, seeking to enjoin the Muscogee County school board from

operating a dual education system, and seeking a court-ordered

reorganization of the school system. In 1965 and 1968 the district

court denied Plaintiffs relief and those denials were affirmed on

      *
      Honorable John H. Moore II, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
appeal. Lockett v. Board of Educ. of Muscogee County, 391 F.2d 272

(5th Cir.1968);   Lockett v. Board of Educ. of Muscogee County, 342

F.2d 225 (5th Cir.1965). In 1971, however, following the decisions

in Green v. School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct.

1689, 20 L.Ed.2d 716 (1968), and Swann v. Charlotte-Mecklenburg,

402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), this court

ordered   the   school    district   to   present   and   implement   a

desegregation plan consistent with the principles established in

Swann, Singleton v. Jackson Mun. Sch. Dist., 419 F.2d 1211 (5th

Cir.1969), and Carter v. West Feliciana Parish Sch. Bd., 432 F.2d

875 (5th Cir.1970).      See Lockett v. Board of Educ. of Muscogee

County, 442 F.2d 1336 (5th Cir.1971).     In response to this court's

order, the school district submitted a plan to the district court

to achieve student and faculty racial compositions proportionate to

the   racial    compositions   of    their   respective    populations

county-wide.    That plan reads in pertinent part:

   AMENDED PLAN TO DESEGREGATE THE SCHOOLS OF MUSCOGEE COUNTY,
GEORGIA

           The Board of Education of Muscogee County School
      District, in continuation of its effort to unify its schools
      to eliminate every vestige of discrimination because of race
      or color of its students and to maintain a fully desegregated
      system, hereby adopts this Amended plan of Desegregation so as
      to fully comply with the law in such cases made and provided.
      The percentage of white and Negro students attending the
      school in the County are approximately 70% white and 30%
      Negro, and it is the purpose and intent of this Board to
      obtain approximate proportionate representation of each race
      in each school in the most efficient manner;

                   NOW, THEREFORE, BE IT RESOLVED:

                          STUDENT ASSIGNMENT

           All white students, equal in number to 70% of the
      capacity of the school to which they have been assigned,
      living nearest to said school, and all Negro students, equal
     in number to 30% of the capacity of the school to which they
     have been assigned, living nearest to said school, shall
     attend said school for the year beginning in September, 1971.

          All other students assigned to said school shall be
     assigned by the Superintendent and his staff to the school
     nearest to the residence of said student which does not then
     have its quota of white or Negro students as above stated.

          All students who have not been assigned to any school for
     the current Fall term, or who later enter the School System,
     shall be assigned by the Superintendent and his staff to the
     school nearest the residence of said student which then has
     space available and has less than its quota of white or Negro
     students, as the case may be, then assigned to said school.

          There shall be no transfer or assignment of any student
     during the entire school year, except in case, absent the
     consideration of race, a change is educationally called for or
     where compelling hardship or other good reason is shown by the
     student.

          In school years after the school year beginning in
     September, 1971, the Board of Education, prior to the end of
     such school year, shall determine the approximate percentage
     of white and Negro students attending the school in this
     District and assignment of students shall be made as above
     provided so that the approximate number of white and Negro
     students in each school shall be substantially the same as the
     percentage of white and Negro students in the entire School
     System.

The approved plan included a provision which created a continuing

obligation   to   make   student   assignments   in   proportion   to   the

county-wide racial composition consistent with the 1971 order. The

school district's proposal was approved by court order on July 14,

1971 ("1971 order"), and accordingly the parties were subject to

the court's supervision until such time as the district court

dismissed the order.1

     1
      In 1972 the order was amended to exempt first grade and
kindergarten students from the plan. The 1972 amendment also
stated:

          The quota or percentage of white and Negro students in
          each school in the next school term shall be
          substantially the same as the percentage of white and
     Throughout the 1970s the school district implemented student

reassignment and attendance zone adjustments in order to achieve

its goal of proportionate student representation, and submitted

annual reports describing its efforts and their effects on the

racial composition of the schools.               By about 1973, 57 of the 64

schools    had     racial     compositions      within     a   10%    range    of   the

county-wide student racial composition, and an additional 5 schools

fell within a 20% range of the county-wide ratio.                          The school

district     maintained        relatively       constant       statistical     racial

compositions within its schools up through the 1976-77 academic

year.     Similarly, the racial compositions of faculty and staff

within    most    of    the   schools    were    within    a    15%    range   of   the

county-wide average from 1972 to 1980. The record does not contain

specific    data    describing     the    relative       quality      of   facilities,

transportation, or extracurricular activities throughout the 1970s

and 1980s.

     By the end of the 1970s the school district began reducing the

number of student reassignments and attendance zone adjustments.

During    the    same   period   that    the    district       was    curtailing    its

affirmative desegregation efforts, the demographics of the county

began to shift, which resulted in a decrease in the number of white

students, an increase in the number of black students, and racially


            Negro students in the entire school system at the end
            of the current school term.

     We find unpersuasive the school district's argument that
     under this language, the plan's proportionate representation
     requirement was not applicable to any school year after
     1972-73. Indeed, the school district itself continued to
     submit data on the racial composition within its schools
     well into the 1980s.
polarized    residential        areas.      By    the     mid-1980s      the   racial

compositions        within    many    schools      again    were        statistically

disproportionate with the county-wide ratios, and indeed, by 1991

a number of racially identifiable schools existed.2                     Similarly, by

the   mid-1980s      the    number   of   schools    with       acceptable     faculty

compositions was declining.          At no time prior to the commencement

of the current proceedings did the school district attempt to

dismiss or modify the 1971 order.

      In    1991,    Plaintiffs,      citing      the     increase      in   racially

identifiable schools in the district, filed a motion seeking an

injunction and an order directing the school district to take

whatever action necessary to achieve proportionate representation.

The   district      court    dismissed    the    motion    as    moot    because   the

original class of plaintiffs were no longer students;                     however, in

November of 1992, this court remanded the motion for consideration

on its merits pursuant to Graves v. Walton County Bd. of Educ., 686

F.2d 1135 (5th Cir., Unit B, 1982).              Lockett v. Board of Educ. of

Muscogee County Sch. Dist., 976 F.2d 648 (11th Cir.1992). Prior to

remand, however, the school district implemented a neighborhood

school plan, whereby cross-district busing would be eliminated and

elementary students would be assigned to schools in their local

neighborhoods, thus potentially aggravating the racial imbalances.

On May 21, 1992, Plaintiffs filed a motion seeking to enjoin

      2
      According to the school district's expert on desegregation,
by 1993, 23 of the 33 elementary schools, 3 of the 8 middle
schools, and 2 of the 7 high schools were no longer within a 20%
range of the county-wide student racial percentages. Only 15 of
the 48 schools were within a 15% range of the county-wide racial
percentage, whereas, 12 schools had student populations that were
more than 90% of one race.
implementation of the new neighborhood assignment plan during the

pendency of the appeal;        however, the district court denied the

motion finding no irreparable harm, relying in part on the school

district's     proposal   to   institute     a    magnet    program   and    a

majority-to-minority transfer program.           In 1993, Plaintiffs again

moved to enjoin the district's assignment plan, and again, the

court denied their motion.       Finally, on June 7, 1993, the school

district moved for a final dismissal and a declaration of unitary

status.

     On November 18, 1994, following an evidentiary hearing, the

district court granted the school district's motion, finding:               (1)

the school district effectively had disestablished its dual system

in 1963;   (2) the school district effectively had desegregated its

schools in the 1971-72 school year;          (3) the school district had

maintained a high degree of racial balance in student assignments

for a longer period of time than most large counties in the

country;     and (4) the racial imbalance exhibited in the 1980s and

1990s, and present today, resulted from demographic changes over

which the school district had no control.                  Based upon these

findings, the court ruled that the Muscogee County School District

had satisfied its burden of showing that it had successfully

eliminated the vestiges of the old dual system to the maximum

extent practicable, and that the school district had exhibited a

good faith commitment to the discharge of its constitutional

duties.

                                Discussion

      In 1954, the Supreme Court recognized that state-compelled
segregation in education violates the Equal Protection Clause of

the Fourteenth Amendment.                  Brown v. Board of Ed., 347 U.S. 483,

495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954) ("Brown I ").                              However,

the     Court        did     not     order       the     immediate         eradication       of

constitutionally violative dual school systems. Instead, the Court

ordered district courts to supervise school systems that had

previously practiced de jure segregation in their efforts to

effectuate      the        constitutional           mandate    of    Brown     I   "with    all

deliberate speed."               Brown v. Board of Ed., 349 U.S. 294, 301, 75

S.Ct. 753, 757, 99 L.Ed. 1083 (1955) ("                        Brown II ").         District

courts were instructed to assert jurisdiction over school systems

in order to ensure compliance with the courts' remedial orders and

the Constitution until such time as a district court determined

that the vestiges of past discrimination had been eliminated to the

maximum extent practicable.                    Swann, 402 U.S. at 15, 91 S.Ct. at

1275.     To this end, a school district is obligated to comply in

good faith with the entire desegregation decree throughout the life

of the order, and must "take whatever [affirmative] steps might be

necessary       to    convert        to    a    unitary       system      in   which    racial

discrimination would be eliminated root and branch," Green, 391

U.S.    at   437-38,        88     S.Ct.   at       1693-94.        The   purpose      of   such

remediation,          however,        is       to     eliminate        the     vestiges      of

state-compelled dual systems, and not to remedy racial imbalances

unrelated to de jure segregation.                     Freeman v. Pitts, 503 U.S. 467,

494, 112 S.Ct. 1430, 1447, 118 L.Ed.2d 108 (1992).

        Forty-one years have passed since Brown I and Brown II, yet a

number of school systems, as well as the district courts that
retain jurisdiction over them, continue to struggle with the scope

and duration of their duties under Brown II and its progeny.                    In

this case the primary issue is whether Muscogee County's school

district fulfilled its obligations under the district court's 1971

desegregation order, and whether the district court correctly

terminated its jurisdiction over the case.

       The school district argues, and the district court agreed,

that    unitary   status   had     been    achieved   in    around    1980,   and

therefore, the school district's obligations under the 1971 order

terminated at that time even though unitary status was not actually

declared until 1994.       The school district also contends that the

district court did not err in finding that the racial imbalances

that currently exist are the result of demographic shifts, and are

not the vestiges of its prior dual system.

       Plaintiffs argue that the school district's obligation to make

affirmative efforts to desegregate the school system commenced in

1971 and did not end until the district court declared unitary

status in 1994.      During that time, however, the school district

failed to make good faith efforts to desegregate, as exemplified by

the district's curtailment of desegregation programs after 1980,

its refusal to implement majority-to-minority transfer programs,

and    its   implementation   of    a     neighborhood     school    plan,   which

increased racial imbalances.            Thus, according to Plaintiffs, the

district court ignored the school district's failure to satisfy its

duties under the court order between about 1980 and 1994, the year

that the court actually declared unitary status.

       Plaintiffs also argue that the school district failed to
proffer sufficient evidence to rebut the presumption that schools

that     are    racially       identifiable      are    vestiges       of   prior

unconstitutional segregation. Plaintiffs argue that in ruling that

the current imbalances are due primarily to demographic shifts, the

district court failed to consider the adverse actions of the school

district,      including    the    curtailment   of    student   transfers     and

attendance zone adjustments, the siting of schools, and the use of

mobile classrooms.          Moreover, Plaintiffs claim that because the

school district failed to keep statistics on the effects of these

actions, Plaintiffs could not rebut the demographic data that the

school district presented.

         Because the Muscogee County School Board did not seek a

declaration of unitary status prior to the current litigation, our

inquiry into whether the school district has attained unitary

status    depends    upon     an   examination   of    the   school    district's

desegregation       efforts    and   their   effects    from    1971   until   the

present.       It is well-established that "persons subject to an

injunctive order issued by a court with jurisdiction are expected

to obey that decree until it is modified or reversed, even if they

have proper grounds to object to the order."                   Celotex Corp. v.

Edwards, --- U.S. ----, ----, 115 S.Ct. 1493, 1498, 131 L.Ed.2d 403

(1995).     The school district was subject to the 1971 court order

until such time as the district court vacated that order by

declaring that the school district had achieved unitary status and

complied with the order in good faith.           Pasadena City Bd. of Ed. v.

Spangler, 427 U.S. 424, 439-40, 96 S.Ct. 2697, 2706, 49 L.Ed.2d 599

(1976).     Thus, to the extent that the district court ignored the
school district's actions after 1980, while the district was still

subject to the 1971 order, the court erred.

        In determining whether a school district has complied with

the constitutional mandate of Brown I and Brown II, a district

court    must   examine    student   assignments,   faculty   and   staff

assignments,     facilities,     extra   curricular   activities,     and

transportation.    Green, 391 U.S. at 437-38, 88 S.Ct. at 1693-94;

Board of Ed. of Oklahoma City Public Sch. v. Dowell, 498 U.S. 237,

250, 111 S.Ct. 630, 638, 112 L.Ed.2d 715 (1991).         More recently,

courts have also considered the relative quality of education

offered to black and white students.      Freeman, 503 U.S. at 492, 112

S.Ct. at 1446.    Where a school district has a history of practicing

segregation, substantially disproportionate racial compositions

within the schools is presumed to be constitutionally violative,

and the school district bears the burden of proving that the

imbalances are not the result of present or past discriminatory

action on its part.       Swann, 402 U.S. at 25, 91 S.Ct. at 1281.     In

determining whether the school district has satisfied that burden,

a district court should consider (1) whether the racial imbalances

are traceable, in a proximate way, to constitutional violations,

(2) whether the school district has exhibited a record of full and

satisfactory compliance with the decree, and (3) "whether the

school district has demonstrated, to the public and to the parents

and students of the once disfavored race, its good faith commitment

to the whole of the court's decree and to those provisions of the

laws and the constitution that were the predicate for judicial

intervention in the first place."        Freeman, 503 U.S. at 491, 112
S.Ct. at 1446.

     The district court found, and the school district concedes,

that student assignments in the Muscogee County schools currently

are racially unbalanced.       The parties also agree that the school

district previously had operated an unconstitutional dual system.

Thus, the first issue on appeal is whether the district court

clearly erred in ruling that the school district satisfied its

burden of showing that current racial imbalances are not caused by

prior unconstitutional practices, but instead, are the result of

demographic shifts within the county and the student population.

     The district court in Freeman was presented with a factually

similar inquiry. 3    In that case, the DeKalb County School System,

which had previously practiced de jure segregation, voluntarily

proposed a plan to desegregate its school system.                 The district

court approved the proposed plan through a 1969 consent order which

called for the closing of all former de jure black schools and the

reassignment of students among the remaining schools.              In 1976 the

district   court     ordered   the     school    system     to    expand   its

majority-to-minority    student      transfer    program,   to    establish   a

bi-racial committee to oversee the transfer program and boundary

line changes, and to reassign faculty to achieve racial balance.

In 1983, the district court again ordered an adjustment to the

majority-to-minority     transfer     program.      In    1986,    the   school

district filed a motion for final dismissal of the court order, and

a declaration that the district had achieved unitary status.


     3
      For the facts underlying Freeman, and the district court's
analysis, see Freeman, 503 U.S. at 474-85, 112 S.Ct. at 1437-43.
Although the motion for dismissal was filed at a time when student

racial compositions in the schools were unbalanced, the school

system argued that the imbalances were due to demographic changes

independent of prior unconstitutional practices.

       In analyzing whether the imbalances were attributable to the

dual    system,    or   indeed,      whether   the   prior      de   jure   school

segregation had contributed to the county's demographics, the

district court focused on the interaction between the school

system's policies and the demographic shifts. To determine whether

the    school      district    had       "accomplished    maximum      practical

desegregation," the court examined the specific steps that the

school system had taken to combat the effects of demographic shifts

on the racial composition of the schools, particularly noting its

majority-to-minority transfer program, magnet school program, and

other racially integrated scholastic programs.                  Finding that the

school district's affirmative efforts to desegregate had little or

no    offsetting    effect    on   the    racial   mix,   the    district    court

determined that the racial imbalances resulted almost completely

from the demographic shifts, and thus the imbalances were not due

to the school board's actions or inaction.                      Thus, the court

recognized that the impact of demographics on racial composition

can only be assessed relative to the other factors contributing to

the racial composition in the schools.             In affirming the district

court's findings, the Supreme Court ratified the district court's

approach for analyzing the causes of racial imbalance within

schools.

       In this case, the district court found that at least for the
first half of the 1970s the Muscogee County school district had

attained acceptable statistical racial compositions within its

schools.      Having   made   that   finding,    the   district    court   then

determined that any later imbalances were caused, not by factors

over which the school district had control, but by the demographic

shifts which took place after 1980.             Consequently, the district

court effectively ruled that the school district was under no

obligation to make affirmative desegregation efforts after 1980.

The district court apparently assumed that once a school system has

achieved acceptable racial compositions within its schools, it has

no ongoing obligation to try to offset later imbalances caused by

circumstances over which it has no control.               The district court

also assumed that demographic shifts are necessarily independent of

prior unconstitutional practices.

      The district court, however, made some erroneous assumptions.

First, a school district does not escape its obligation to make

affirmative efforts to remedy racial imbalances simply because the

imbalances are caused by circumstances "over which [the school

district] has no control";      instead, while under court supervision

the school district must make efforts to eradicate all imbalances

which are traceable to prior de jure segregation.                 Freeman, 503

U.S. at 491, 112 S.Ct. at 1446.          The school district bears the

burden of showing that no such causal link exists, and absent such

a showing, the district must continue to make affirmative efforts

to   remedy   racial    imbalances    while     subject    to   court   order.

Moreover, in the case of demographic shifts and their resulting

racial imbalances, the Supreme Court has recognized that school
segregation      is    a    contributing     cause    of    housing     segregation,

Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 465 n. 13, 99 S.Ct.

2941, 2950 n. 13, 61 L.Ed.2d 666 (1979), and thus, demographic

shifts are not necessarily independent of prior unconstitutional

practices.       Finally, in finding unitary status retroactively, the

district     court     failed     to    examine      the    relative    quality    of

facilities, transportation, and extracurricular activities that

existed in the 1970s and 1980s, conditions that must be considered

in conjunction with student assignments in determining unitary

status.    Thus, the district court erred to the extent that it held

(1) that the school district's obligations to make affirmative

efforts under the 1971 order ceased upon achieving statistically

acceptable racial compositions in the 1970s;                      (2) that a school

system     has    no       obligation   to   remedy        imbalances    caused    by

circumstances over which the school district has no control;                      (3)

that demographics shifts are never caused by prior de jure school

segregation;       and (4) that unitary status can be determined on

student and faculty assignments alone.

         The proper analysis requires an examination of the various

factors that may have contributed to the current racial imbalance,

and   to   determine whether,           in   spite    of    the    school   system's

affirmative efforts to accomplish maximum practical desegregation,

the impact of demographic shifts still would have resulted in the

imbalance.       Unlike the situation in Freeman, in which the DeKalb

County school district had implemented desegregation programs to

affirmatively combat demographic shifts, the school district in

this case actually reduced the number of student reassignments and
attendance    zone   changes   just    as   demographic     shifts   began   to

adversely affect the racial composition of the schools, and did not

implement new desegregation initiatives in their place.              Moreover,

because of an absence of data, this court has no basis for

assessing the arguably adverse impact that the school board's

neighborhood assignment plan, grade structure changes, portable

classrooms, and student transfers had on racial composition within

the schools.     Thus, on the record presented, we have no way of

assessing the impact of shifting demographics on the current racial

compositions compared with other variables, including the school

district's actions and inaction, which arguably exacerbated, rather

than alleviated, the racial imbalances during the 1980s and 1990s.

At the very least, we do not believe that the school district

carried its burden of showing that current imbalances, caused by

demographic    shifts     or   otherwise,    are    not    the   vestiges    of

unconstitutional practices.

      Under the second factor in Freeman, this court must look at

the degree to which the school district complied with the 1971

order throughout the life of the order.            See Freeman, 503 U.S. at

491, 112 S.Ct. at 1446;        see also Dowell, 498 U.S. at 249, 111

S.Ct. at 637 ("[I]n deciding whether to modify or dissolve a

desegregation decree, a school board's compliance with previous

court orders is obviously relevant.").              The terms of the 1971

order, which the school district itself drafted, obligated the

school   district    to   annually    determine    the    county-wide   racial

composition of the students within the district, and to reassign

students so that the racial composition within the schools would be
substantially the same as the composition county-wide.                          Moreover,

the explicit purpose of the order was to eliminate every vestige of

discrimination         and   to    maintain      a    fully     desegregated     system.

Although a school district is not constitutionally required to

exhibit    a     particular       racial   mix       at   all    times,    or    to   make

year-by-year adjustments, Swann, 402 U.S. at 24, 32, 91 S.Ct. at

1280, 1284, a school district must make affirmative efforts to

comply with the desegregation decree until a district court has

declared that unitary status has been achieved.

     The record in this case shows that the Muscogee County school

district did make annual student reassignments and attendance zone

adjustments for most of the 1970s.                   The statistical data cited in

the district court's order indicates that for at least six years

the district maintained racial compositions within the schools

proportionate to the racial composition of the county's entire

student population.          Thus, the record supports a finding that the

school district complied with the court order with respect to

student and faculty assignments throughout the 1970s. However, the

school district did not request a declaration of unitary status

until 1993, and therefore, it had a continuing obligation to abide

by the order until such time as the district court modified or

vacated the order.           The record reflects, and the district court

found,    that    by    1980      the   school       district    stopped    making    the

adjustments it had made in the 1970s, and that the curtailment of

desegregation efforts may have contributed to the subsequent racial

imbalances.        In    addition,       the   school      district    implemented      a

neighborhood assignment plan, which required elementary students to
attend local neighborhood schools and eliminated cross-district

busing.    Not only did the neighborhood plan have the potential to

exacerbate segregation, it directly contravened the clear mandate

of the order.   Thus, the record suggests that although the school

district initially complied with the 1971 order, in about 1980 the

district    unilaterally   decided   that   it   had    satisfied   its

obligations, and based upon that decision, it essentially ignored

the desegregation decree for the last fourteen years that it was

under the court's supervision.

     Under the third factor in Freeman, before divesting itself of

jurisdiction, a district court must determine whether the school

district has complied in good faith with the desegregation decree

since it was entered and with the constitutional principles it

embraces.    Freeman, 503 U.S. at 497, 112 S.Ct. at 1449.     The good

faith requirement assures parents, students, and the public that

they will be protected against further injuries or stigma, id., by

making "it unlikely that the school district would return to its

former ways," Dowell, 498 U.S. at 247, 111 S.Ct. at 636-37;         see

also Morgan v. Nucci, 831 F.2d 313, 321 (1st Cir.1987) ("a finding

of good faith ... reduces the possibility that a school system's

compliance with court orders is but a temporary constitutional

ritual"). In addition, if the school district has demonstrated its

good faith, "[t]he causal link between current conditions and the

prior violation is even more attenuated."        Freeman, 503 U.S. at

496, 497, 112 S.Ct. at 1448, 1449.    When a school district has not

demonstrated good faith under a plan to remedy violations, the

Supreme Court has approved ongoing supervision.        Id.
         As noted above, after the school district had achieved

proportionate representation for a number of years, it essentially

stopped reassigning students and rezoning—activities that ensure

racial    balance.   Moreover,   the   district   never   implemented   a

majority-to-minority transfer program, a tool basic to "every"

desegregation program, Swann, 402 U.S. at 26, 91 S.Ct. at 1281.

Indeed, through its neighborhood assignment plan, the district

affirmatively increased racial imbalances.        Finally, "[i]t is for

the court of first instance to determine the question of the

validity of the law, and until its decision is reversed for error

by orderly review, either by itself or by a higher court, its

orders based on its decision are to be respected, and disobedience

of them is contempt of its lawful authority, to be punished."

Spangler, 427 U.S. at 439, 96 S.Ct. at 2706 (quoting           Howat v.

Kansas, 258 U.S. 181, 190, 42 S.Ct. 277, 281, 66 L.Ed. 550 (1922)).

Although the school district could have sought modification or

termination of the order at any time, it had no authority to decide

unilaterally that it had achieved unitary status and had complied

with the 1971 order in good faith.      Because the district did not

seek termination of the order through the proper judicial channels,

prior to 1993 the district court never got the opportunity to

contemporaneously review all of the other factors which indicate

the achievement of unitary status. Given the district's failure to

abide by its obligation to make affirmative efforts to desegregate

through much of the 1980s and 1990s, and its disregard for the

judicial decree, we believe the school district did not exhibit

good faith for the last ten to fifteen years that it was subject to
the 1971 order.

      In summary, the school district failed (1) to meet its burden

of   showing   current   imbalances    are    not    vestiges   of    its    prior

unconstitutional practices, (2) to comply with the 1971 order

throughout the 1980s and 1990s, and (3) to evince a good faith

commitment to the court's order and the principles established in

Brown. In light of these deficiencies, it is not clear whether the

school    board's    actions   after   1980    exacerbated,      rather      than

alleviated, school segregation in Muscogee County at a time when

the district was still subject to court order.             Therefore, we hold

that the district court erred in divesting itself of jurisdiction.

Accordingly, the district court must retain jurisdiction in order

to monitor the progress of the school district's desegregation

efforts until such time as a reliable body of data exists to assure

the district court that the school district has desegregated its

schools to the maximum extent practicable.                In particular, the

district court should assess the school district's efforts in, and

commitment     to,   combating    imbalances        by   evaluating    its     new

majority-to-minority transfer program, magnet school program, and

any other programs that can be implemented in order to ensure

long-term desegregation.4        The school district also should begin

compiling statistics comparing the quality of the education between


      4
      In both its order denying Plaintiffs' 1991 motion to enjoin
the neighborhood assignment plan and its order vacating
jurisdiction, the district court relied upon the school board's
promises to implement an effective majority-to-minority transfer
program and a magnet school program. However, this court does
not have any information regarding the scope of those programs,
and whether they are having any appreciable effect on school
desegregation efforts.
those schools with a majority of white students and those schools

with a majority of black students so that upon the district court's

review of the school system's compliance with its desegregation

decree, quality of education can be assessed along with student

assignments.    See generally Freeman, 503 U.S. at 492, 112 S.Ct. at

1446 (It is an appropriate exercise of discretion to address not

only the elements of a unitary system discussed in Green, but to

"inquire whether other elements ought to be identified, and to

determine whether minority students were being disadvantage in ways

that required the formulation of new and further remedies to insure

full compliance with the court's decree.").

     Because the parties and the district court agree that unitary

status   has   been   achieved   with   respect    to    faculty   and   staff

assignments,    facilities,      transportation,        and   extracurricular

activities,    the    district   court's   order    divesting      itself   of

jurisdiction over these matters is affirmed.

     Accordingly, the judgment of the district court is affirmed in

part, reversed in part, and remanded for the district court to

retain jurisdiction consistent with the principles discussed above.

     AFFIRMED in part;     REVERSED in part;       and REMANDED.
