          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.

                              May 5, 1997.

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

  ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC

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

      PER CURIAM:

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

board") petitions for panel rehearing.        We grant the petition and

substitute the following opinion for the previous opinion reported

at 92 F.3d 1092 (11th Cir.1996).

                              I. Overview

      Plaintiffs appeal the district court's final dismissal of

their action and declaration that the school board has eliminated

its   dual   education   system,   thereby   achieving   unitary   status.

Finding that the district court did not clearly err, we affirm.

                             II. Background

      Plaintiffs, who were black schoolchildren, filed this class

action in 1964 seeking desegregation of Muscogee County schools.

The district court twice denied Plaintiffs relief, and the Fifth

Circuit affirmed both denials.           Lockett v. Board of Educ. of

      *
      Honorable John H. Moore, II, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
Muscogee County, 391 F.2d 272 (5th Cir.1968);       Lockett v. Board of

Educ. of Muscogee County, 342 F.2d 225 (5th Cir.1965).

     The district court revisited the case in 1971 after the

Supreme Court decided 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).   It ordered the school board to present and implement a

desegregation plan consistent with the Swann principles.       Lockett

v. Board of Educ. of Muscogee County, 442 F.2d 1336 (5th Cir.1971).

In response, the school board submitted the following plan:

   AMENDED PLAN TO DESEGREGATE THE SCHOOLS OF MUSCOGEE COUNTY,
GEORGIA

          The [school board,] 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 [sic] in this 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 school board amended this plan in 1972.            The amendment

exempted first graders and kindergartners and stated that the

"quota or percentage of white and Negro students in each school in

the next school term shall be substantially the same as is the

percentage of white and Negro students in the entire school system

at the end of the current school term."               The district court

approved both the proposed plan and the 1972 amendment by court

order and retained jurisdiction to supervise the school board.

      In   furtherance   of   the   plan's   goals,    the   school   board

implemented student reassignment and attendance zone adjustments.

By 1973, the proportion of majority to minority students in 57 of

the 64 Muscogee County schools was within 10% of the proportion of

the races in the County as a whole, and 5 schools fell within a 20%

range. Roughly the same compositions were maintained through 1977.

      Toward the end of the 1970s, the school board began reducing

the   number   of   student    reassignments     and    attendance     zone

adjustments.     At the same time, county demographics began to
change,   resulting     in     racially   polarized   residential    areas,   a

decrease in the number of white students, and an increase in the

number    of   black    students.         By   the   mid-1980s,    the   racial

compositions within many of the schools were disproportionate with

the county-wide student racial composition, and by 1991, several

racially identifiable schools existed.

     Plaintiffs therefore moved in 1991 for an injunction and an

order directing the school board to take whatever action necessary

to achieve proportionate student compositions.             The district court

denied the motion as moot because the original class of Plaintiffs

were no longer students.           This court reversed and remanded for

consideration of the motion on its merits.                Lockett v. Board of

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

Before the district court decided the motion on remand, the school

board    met   with    black    and   white    citizens   and   Parent-Teacher

Association representatives from majority black and majority white

schools. With support from these citizens and representatives, the

school board implemented a neighborhood-school plan that eliminated

cross-district busing and called for students to be assigned to

local neighborhood-schools.           The school board also proposed magnet

programs and majority-to-minority transfer programs to off-set any

negative impact that the neighborhood assignment plan might have on

racial composition within the schools.            Plaintiffs moved to enjoin

the neighborhood-school plan in 1992 and in 1993.                 The district

court denied both motions, finding no irreparable harm.

     The school district then moved for final dismissal of the 1971

order and for a declaration of unitary status in an effort to have
the district court divest itself of jurisdiction.             Following an

evidentiary hearing, the district court granted the motion.

                       III. Standard of Review

     We review a district court's declaration that a school system

has achieved unitary status under the clearly erroneous standard.

Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F.2d 945,

952 n. 3 (11th Cir.1989).   Under this standard, we are not entitled

to "reverse the finding of the trier of fact simply because [we

are] convinced that [we] would have decided the case differently.

[We] overstep[ ] the bounds of [our] duty under Rule 52(a) if [we]

undertake[ ] to duplicate the role of the lower court....            Where

there are two permissible views of the evidence, the factfinder's

choice between them cannot be clearly erroneous." Anderson v. City

of Bessemer City, North Carolina, 470 U.S. 564, 574, 105 S.Ct.

1504, 1511, 84 L.Ed.2d 518 (1985).

                            IV. Discussion

     In Brown v. Board of Ed., 347 U.S. 483, 495, 74 S.Ct. 686,

692, 98 L.Ed. 873 (1954) (Brown I ), the Supreme Court recognized

that state-compelled segregation in schools violates the Fourteenth

Amendment's Equal Protection Clause.        To effectuate       Brown I's

mandate, the Supreme Court ordered district courts to supervise

school boards that had practiced de jure segregation in their

desegregation efforts.    Brown v. Board of Ed., 349 U.S. 294, 301,

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

courts   maintained   supervision   by   issuing   remedial    orders   and

asserting jurisdiction over school boards to ensure compliance with

those orders.
       The Supreme Court intended this federal supervision of local

school systems to be a temporary measure.                             Board of Educ. of

Oklahoma City v. Dowell, 498 U.S. 237, 247, 111 S.Ct. 630, 637, 112

L.Ed.2d      715    (1991).      Since          the    legal      justification    for    such

supervision is a constitutional violation by local authorities, a

district       court    must    divest          itself      of    jurisdiction     when    the

constitutional violation has ceased and when local authorities have

operated in compliance with a desegregation decree for a reasonable

period of time.        Id. at 248, 111 S.Ct. at 637;                  see also Freeman v.

Pitts, 503 U.S. 467, 489, 112 S.Ct. 1430, 1445, 118 L.Ed.2d 108

(1992) ("[T]he ultimate objective [is] to return school districts

to    the    control    of    local    authorities.").                A   district   court's

decision       to    divest     itself       of       jurisdiction        "recognizes     that

"necessary concern for the important values of local control of

public school systems dictates that a federal court's regulatory

control of such systems not extend beyond the time required to

remedy the effects of past intentional discrimination.' "                            Dowell,

498     U.S.    at     247,    111     S.Ct.           at   637     (citations    omitted).

Counterbalancing this recognition is the acknowledgment 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."         Freeman, 503 U.S. at 490, 112 S.Ct. at 1445.

         To ensure that local authorities are not continuing to

practice       discrimination,         a    district        court's       determination    of

whether local authorities have complied with a desegregation decree

involves a careful assessment of the facts.                         Id. at 474, 112 S.Ct.
at 1437. Utilizing sound discretion after a such a careful factual

assessment, a district court must determine (1) whether the local

authorities have eliminated the vestiges of past discrimination to

the extent practicable and (2) whether the local authorities have

in good faith fully and satisfactorily complied with, and shown a

commitment to, the desegregation plan. 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).

     In determining whether the local authorities have eliminated

the vestiges of de jure segregation as far as practicable, a

district    court   must   examine   six   facets   of    school    operation:

student    assignments,    faculty    assignments,       staff   assignments,

transportation,     extra-curricular       activities,     and     facilities.

Dowell, 498 U.S. at 245, 111 S.Ct. at 636 (quoting Green, 391 U.S.

at 435, 88 S.Ct. at 1693 (1968)).          In its discretion, a district

court may consider other facets.           Freeman, 503 U.S. at 492, 112

S.Ct. at 1446.

     Here, the district court limited the bulk of its discussion to

student assignments because the parties agreed that the school

system has eliminated the vestiges of de jure segregation as far as

practicable in the areas of faculty assignments, staff assignments,

transportation, extra-curricular activities, and facilities.1              We

do the same.

         Where, as here, a school board has a history of practicing

segregation, a district court must presume that substantially

     1
      The district court, in a proper exercise of its discretion,
did not consider other facets of school operations such as
quality of education, and neither party requested that it do so.
disproportionate       racial    compositions    within     the     schools   is

constitutionally violative.           Swann, 402 U.S. at 25, 91 S.Ct. at

1281. To overcome this presumption, a school board must prove that

the imbalances are not the result of present or past discrimination

on its part.     Id.

     The school board sought to prove through expert witnesses that

the current student imbalances and imbalances during the 1980's

were not the result of present or past discrimination.                    Those

witnesses testified that the current racial imbalances were the

result of dramatic demographic changes in Muscogee County, such as

an increase in the number of black school-age children and a

decrease   in    the   number    of   white   school-age    children.         The

demographic change, according to one expert, was a result of

factors over which the school board had no control, such as a

decrease in the white fertility rate, a difference in purchasing

power between white and black families, a preference of white and

black families to live in neighborhoods composed of families of a

similar race, and the location of housing projects.                 (R2-19-21).

Based on this evidence and the fact that other experts did not

contradict this evidence, the district court concluded that the

school   board   proved   that    the   imbalances   were    "the    result   of

voluntary housing patterns and demographic change."               (R2-23).

     The district court's conclusion was not clearly erroneous. It

was based on expert opinion "consistent with the mobility that is

a distinct characteristic of our society."           Freeman, 503 U.S. at

493, 112 S.Ct. at 1447.         And while

     [i]n one sense of the term, vestiges of past segregation by
     state decree do remain in our society and in our schools....
     [as a stubborn fact of history, we must not] overstate its
     consequences in fixing legal responsibilities....      It is
     simply not always the case that demographic forces causing
     population change bear any real and substantial relation to a
     de jure violation[,] [a]nd the law need not proceed on that
     premise.

Id. at 495-96, 112 S.Ct. at 1448.              Further, "[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.                   The

causal link between current conditions and the prior violation is

even more attenuated if the school district has demonstrated its

good faith [commitment to a desegregation plan.]"                  Id. at 496, 112

S.Ct. at 1448.

       A    good    faith   commitment    to    a   desegregation        plan   also

demonstrates to parents, students, and the public that students

will no longer suffer injury or stigma.                   At the same time, it

"enables    the     district   court     to    accept      the    school   board's

representation that [the school board] has accepted the principle

of racial equality and will not suffer intentional discrimination

in the future."      Id. at 498, 112 S.Ct. at 1449.              To determine if a

school board has shown a good faith commitment to a desegregation

plan, a district court should, among other things, consider whether

the school board's policies "form a consistent pattern of lawful

conduct directed to eliminating earlier violations."                    Id. at 491,

112 S.Ct. at 1446.

     Here, the district court concluded that the school board has

in   good   faith     shown    a   commitment       to,   and     has   fully    and

satisfactorily complied with, the desegregation plan generally and

in those aspects specifically related to student assignments.                    The
district court, which has monitored the actions of the school board

for   over   30   years,   reached   this   conclusion   based   on   several

findings.     First, it found that it has never had to enjoin or

sanction the school board.      Second, it found that the school board

never failed to comply with a court order.2         Third, it found that

the school board took actions to further desegregation which went

above and beyond what the 1971 order as amended required.             Fourth,

it found that the school board kept desegregation of its schools at

a level not surpassed by any school district in the country for ten

years, even in the face of countervailing demographic factors.

Fifth, it found that the school board implemented magnet programs

which, at least in one instance, helped to racially balance an

otherwise unbalanced school. Sixth, it found that the school board

adopted the neighborhood assignment plan only after listening to

the views of black and white citizens (both groups favored the

plan) and PTA representatives from majority white and majority

black schools (both groups opposed an alternative plan).3 Seventh,

      2
      As part of this finding, the district court interpreted its
1971 order as amended to require the school district only to
achieve proportionate representation for the 1972-73 school year.
We should give effect to that interpretation. See Cornist et al.
v. Richland Parish School Board, 495 F.2d 189, 191 (5th Cir.1974)
(stating that in a desegregation case, the district judge
"construed his own order, as he was entitled to do"); Vulcan
Tools of Puerto Rico v. Makita USA, Inc., 23 F.3d 564, 566 (1st
Cir.1994) ("[W]e are loathe to upset a district court's
interpretation of its own order.").
      3
      We should not treat the adoption of the neighborhood
assignment plan as a breach of good faith on the part of the
school board. In Lockett v. Board of Educ. of Muscogee County,
No. 93-8966 (11th Cir. July 21, 1994), we affirmed the district
court's decision allowing the school district to continue the
plan as consistent with the underlying desegregation plan. Cf.
Dowell, 498 U.S. at 249 n. 1, 111 S.Ct. at 638 n. 1 ("The Court
of Appeals viewed the Board's adoption of [a particular plan] as
it found that the school board implemented a majority to minority

transfer program in 1992 to offset any racial impact that the

neighborhood assignment plan could have.         (R2-40).   In addition to

these specific findings, the district court noted generally that

"[e]very expert who testified in this case expressed praise in

varying degrees for the desegregation efforts of the [school

board]."     (R. 2-55.)    The district court's findings were based on

uncontradicted evidence and fully support the district court's

conclusion that the school board has shown a good faith commitment

to and compliance with the desegregation plan. This conclusion was

not clearly erroneous.

                                V. Conclusion

     The district court's conclusions that the school board has

eliminated     the   vestiges   of   de   jure   segregation   as   far   as

practicable and that the school board has shown a good faith

commitment to and compliance with the desegregation plan were not

clearly erroneous.        Accordingly, we affirm the district court's

final dismissal and declaration that the school board has attained

unitary status.

     AFFIRMED.

     BARKETT, Circuit Judge, dissenting:

     Although I believe this is a very close case and guidance in

this area of the law is vague, I respectfully differ from the

court's decision to rehear this case because I am concerned about


a violation of its obligation under the injunction, and
technically it may well have been. But ... we do not think that
the Board should be penalized for relying on the express language
of that order.").
the Muscogee County School District's actions, and inaction, during

the last fifteen years that it was subject to the desegregation

decree.

     Regardless of the age of a desegregation decree, such a decree

may only be terminated upon a showing that a school district has

eliminated all vestiges of prior de jure segregation to the maximum

extent practicable and has complied in good faith with both the

decree and the spirit of Brown 's mandate.1       Board of Ed. of

Oklahoma City v. Dowell, 498 U.S. 237, 249-50, 111 S.Ct. 630, 638,

112 L.Ed.2d 715 (1991);    Lee v. Etowah County Bd. of Educ., 963

F.2d 1416, 1425 (11th Cir.1992).

     No one disputes that de facto segregation now exists in the

school district.   It is also clear that prior de jure segregation

resulted from unconstitutional practices by the school district.

The school district had the burden of demonstrating that the

current imbalances are not vestiges of those past policies or

practices.   See Swann v. Charlotte-Mecklenburg, 402 U.S. 1, 25, 91

S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971).       The district court

determined that the racial imbalances were not caused by the school

     1
      In its Petition for Rehearing, the School Board repeatedly
suggests that a school district satisfies its obligations once it
adopts a racially neutral system of student assignment. See
Petition for Rehearing at 7 ("federal courts simply have no
authority to enforce orders solely to achieve racial balance once
a racially neutral system of student assignment has effectively
been adopted") & 12 ("there is no affirmative duty [to remedy
racial imbalances] after a school system has successfully
implemented a school desegregation plan"). However, I believe
Petitioner confuses the means of its remedial obligations with
the ends. Although implementing a racially neutral attendance
pattern is a necessary remedial device, "[a] remedy is
justifiable only insofar as it advances the ultimate objective of
alleviating the initial constitutional violation." Freeman, 503
U.S. at 489, 112 S.Ct. at 1445 (emphasis added).
system but, in doing so, focused only on demographic changes in the

county.   The court failed to consider whether the school board's

total curtailment of any desegregation efforts after about 1980

helped    preserve   or   perpetuate   the   effects   of   its   prior

unconstitutional policies.     The district court's narrow approach

erroneously assumed 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.       I do

not believe that this approach comports with the proper burdens of

proof or the analytic framework set out in Freeman v. Pitts, 503

U.S. 467, 494, 112 S.Ct. 1430, 1447, 118 L.Ed.2d 108 (1992).
