Full opinion text
ORDER KOVACHEVTCH, Chief Judge. This cause conies before the Court on the Court’s Order recommitting this matter to the Magistrate Judge for a determination of whether the Hillsborough County school system has attained unitary status (Docket No. 709), the assigned Magistrate Judge’s Report and Recommendation (Docket No. 809), Plaintiffs’ Objections to Report and Recommendation (Docket No. 812), Brief in Support of Plaintiffs’ Objections (Docket No. 813), and Defendants’ Response to Plaintiffs’ Objections to Report and Recommendation (Docket No. 815). This action was filed on December 12,1958. Plaintiffs represent a class consisting of all black children who attended the public schools of Hillsborough County, and the parents and guardians of those children. The complaint alleged that Defendants, the Hills-borough County School Board (formerly Board of Public Instruction of Hillsborough County), acting under the color of state law, had operated, and continued to operate the public school system in Hillsborough County on a racially segregated basis. The Court initially dismissed the complaint for the Plaintiffs’ failure to exhaust administrative remedies; however, the dismissal was reversed and remanded by the court of appeals. See Mannings v. Board of Public Instruction, 277 F.2d 370, 375 (5th Cir.1960). Subsequently, the Court conducted a bench trial and on August 21, 1962, entered an order finding that Defendants were, in fact, maintaining an unlawfully segregated system of public schools. Consequently, the Court enjoined Defendants from operating a racially discriminatory school system and allowed Defendants until October 30, 1962, in which to file a comprehensive plan for the desegregation of the Hillsborough County schools. Despite the several desegregation plans devised by Defendants, the school system remained segregated. See Mannings v. Board of Public Instruction of Hillsborough County, 306 F.Supp. 497 (M.D.Fla.1969). Significantly, in 1971, the United States Supreme Court issued several opinions which defined with particularity the responsibilities of school authorities and the scope of powers of federal courts in eliminating state-imposed segregation in' the public school systems. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); North Carolina State Bd. of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971); McDaniel v. Barresi 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971); and Davis v. Board of School Commissioners, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971). On May 11, 1971, the Court entered an Order explaining that Hills-borough County’s school system remained segregated and required Defendants to prepare and submit a comprehensive desegregation plan for the Hillsborough County school system. In the May 11, 1971, Order, the Court explained that, despite the fact that black students comprised only 19% of the total student population, 69% of these students were attending twenty-eight (28) schools which had majority black populations. However, during this same time period, 69% of the white students attended 65 schools which were all, or at least 95% white. The Court emphasized that it had been unable to find a single instance in which Defendants had taken positive steps to end segregation at a black school and, consequently, segregation returned fortuitously. (May 11, 1971, Order at 39). In order to remedy the constitutional violation, the Court directed Defendants to submit a comprehensive desegregation plan which was to become effective at the beginning of the 1971-1972 school year, and the Court provided Defendants with the following guidelines: (a) The Plan shall have as its primary objective the abolition of segregation in all schools in the county, and in particular it shall aim at desegregation of all schools in the county now having a school population at least 50% black. (b) In preparing the plan the school board shall begin with the proposition that a white-black ratio of 86%/14% in the senior high schools, and 79%/21% in the elementary schools would be the most acceptable and desirable form of desegregation. (May 11,1971, Order at 43-44). The May 11, 1971, Order primarily addressed Defendants’ responsibility to remedy the segregative policies and practices in connection with student assignments. However, the Court also reiterated the importance of site location for new schools with regards to desegregation. On July 2, 1971, the Court approved for implementation the comprehensive plan submitted by Defendants. (“July 2, 1971 or 1971 Order”). The plan approved by the Court provided that none of the established black schools would continue in their then existing configurations. Pursuant to the plan, physical plants that were serviceable would be converted to sixth and seventh grade centers. Those facilities which were not capable of conversion, were closed. The 1971 desegregation plan was designed to desegregate student enrollments in grades one (1) through twelve (12); neither kindergarten nor pre-school was included. All schools were assigned attendance boundaries which, when combined with the transportation of certain students, was expected to eliminate all majority black schools. The students attending the predominately black schools were assigned to various schools based on the location of their residence or the transportation of groups of these students from satellite zones. As a result, black students were transported to provide racially mixed populations for grades one (1) through five (5), and eight (8) through twelve (12), whereas, white students were transported to sixth and seventh grade centers. After the Court entered the July 2, 1971, Order, Plaintiffs filed a motion which requested that any desegregation plan adopted by the Court “include faculty desegregation and policies and general reporting provisions and that the Court retain jurisdiction.” (Docket No. 243). The Court subsequently required Defendants to submit reports and retained jurisdiction, but did not grant Plaintiffs’ request regarding faculty and staff assignments. Nevertheless, in a previous Order issued on August 25,1970, the Court had directed that principals, teachers, teacher-aides, and other staff, who work directly with children at a school, be assigned so that the staff’s racial composition would not reflect any intention that the school be either black or white. Teachers and other staff members were to be assigned so that the race ratio would be substantially similar to the system-wide ratio. In its July 2, 1971, Order, the Court continued these requirements, but specifically declined to require any detailed procedure with regard to faculty assignments, noting that, faculty desegregation “was accomplished at every school location in the 1970 school year;” therefore, no procedural requirements were necessary. Also, in the July 2, 1971, Order, the Court explained that the previously ordered relief of majority-to-minority transfers, other transfer rules, and Bi-Racial Committee approval of site locations, may not be required if Defendants’ plan was effectuated and accomplished. However, the Court required the continuation of each of these requirements “to be available and used as necessary.” (July 2, 1971, Order at 9). In addition, the Court ordered Defendants to regularly reexamine their transportation system, all facilities, and all extracurricular activities, in order to assure that they were maintained, operated, and conducted on a nonsegregated, nondiseriminatory basis. Id. at 10. In the 1971-1972 school year, the School Board had desegregated all Hillsborough County Schools, with regards to student assignment; no majority black school existed in the county. (T1 at 13). Each year following implementation of the 1971 Plan, Defendants filed at least two (2) reports with the Court, copies of which were served upon opposing counsel. The first report provided enrollments by race and grade, as well as, faculty assignments, by race, at each school facility operated for grades one (1) through twelve (12) in the system. The second report enumerated proposed changes in student assignments, if any, which would become effective in the following school year. (DX 6 and 7). The reports of proposed student assignment modifications included, inter alia, boundary changes occasioned by overcrowding and student assignment modifications necessitated by the construction of new schools. The reports also included projections of anticipated enrollments, by race, at schools affected by the proposed changes. Joint Pre-Eviden-tiary Hearing Statement, (Docket No. 767), Statement of Admitted Facts at ¶ 18 (“Stipulation”). As of October 27, 1971, there were no majority black schools among the school district’s 122 schools and only one (1) school, Lee Elementary, was more than 40% black. However, during the next few years, the percentage of black students increased at several schools. For example, during the next two (2) years, Edison Elementary became 40% black, DeSoto Elementary became 89% black, and Gary Elementary became 39% black. (DX 7). The 1974 Annual Report submitted by Defendants reflected that there were 128 public schools in Hillsborough County. The report also indicated that one (1) school, Lee Elementary, had become majority black. In addition, Cleveland, DeSoto, Edison, and Gary Elementary had black student populations which exceeded 40%. After receiving this report, the Court, sua sponte, directed Defendants to file a supplemental plan designed to insure that, “the requirements of the Court’s previous orders insofar as they relate to Lee Elementary School will be complied with as of the beginning of the 1975-1976 school year.” (January 14, 1975, Order at 1); (Stipulation at ¶ 9). In addition, the Court directed Defendants’ attention to the other schools in the system which were experiencing disproportionate increases in black students. Id. On March 21, 1975, the School Board submitted a supplemental plan to the Court. Defendants’ plan proposed to convert Lee Elementary to a sixth grade center replacing the Meacham facility. Moreover, the plan proposed to reassign Lee’s former attendance area among seven (7) different elementary schools for grades one (1) through five (5). (Stipulation at ¶ 10). On June 3, 1975, the Court ordered implementation of the supplemental plan for Lee Elementary commencing with the 1975-1976 school year. (Stipulation at ¶ 11). The 1975 Annual Report reflected that there were no majority black schools. However, five (5) schools, out of 128, had student populations which were greater than 40% black (Cleveland, Edison, Gary, Graham, and Palm River elementary schools). During the 1975-1976 school year, Cleveland became a majority black school (55%). In addition, Edison became 47% black, Gary became 47% black, and Graham became 49% black. Despite the projected student populations delineated in Defendants’ supplemental plan, there was no decrease in the percentage of black students in attendance at Cleveland and Gary. (DX 7). At least since January 14, 1975, the Court has not directed the School Board to prepare a supplemental plan or to take any action with respect to the racial composition of any of its schools. Moreover, Plaintiffs did not seek relief or enforcement of any obligation imposed by the Court until June 1994. Furthermore, Plaintiffs did not file written objections with the Court respecting the actual or projected enrollments of any schools in Hills-borough County. (Stipulation at II15). In 1980, Plaintiffs objected to the proposed closing of George Washington Junior High School and Glover Elementary; however, Plaintiffs’ stated reasons were not related to the anticipated racial compositions of the affected schools. In 1990, Plaintiffs objected, for reasons other than anticipated racial composition, to the proposed conversion of Blake seventh grade center to a high school. The Court disapproved Defendants’ proposal, without prejudice to subsequent resubmission as part of a comprehensive restructuring plan. (Docket No. 419). Since the 1977-1978 school year, Defendants have made more than 300 modifications in student assignments to relieve overcrowding, to accommodate the opening of newly constructed facilities, or for other reasons, but not specifically for the purpose of affecting the race ratio of a school. (Stipulation at ¶ 19); (DX 6); (T2 at 15). Although changes to attendance patterns have not been made specifically to address race ratios at the schools, Defendants have taken into account the effect of the change on the racial composition of the schools. (Stipulation at 1122); (T1 at 15, 23). The Bi-Racial Committee, required by the July 2, 1971, Order, has existed since the time of the Order and has reviewed proposed boundary changes, the sites of new schools, and special assignments in accordance with the Court’s Order. (T1 at 18-19). The BiRacial Committee provides input and advice on these proposals before they come before the School Board (T1 at 19-20). However, the Bi-Racial Committee is strictly an advisory board and does not have the authority to either approve or reject boundary changes. (T1 at 19). In addition, while making adjustments to student assignments to deal with problems of overcrowding or with new school construction, Defendants, where practicable, reassigned, or divided and partially reassigned, existing satellite zones in a manner that moved enrollments toward the system-wide race ratio. (Stipulation at ¶ 23); (T1 at 25-27); (DX 4). For instance, when the School Board constructed a new facility in an area having a small resident black student population within the contiguous zone surrounding the facility, the School Board reassigned preexisting satellite zones to increase the number of black students assigned to the new facility. (Stipulation at ¶ 24); (T1 at 26, 33). When modifying student assignments to relieve overcrowding or in connection with the opening of a new facility, the School Board has, since the 1975-1976 school year, created non-eontiguous zones ,or satellites in at least seven (7) instances. In most instances, students reassigned on a non-eontiguous basis were being transported to their former school of assignment before the change. (Stipulation at 1125). However, the School Board has never created a new non-eontiguous or satellite zone solely for the purpose of altering the racial enrollment at a school, including schools which were majority black. (Stipulation ¶ 26); (T1 at 14-15). Since 1986, Defendants have not initiated boundary changes, not otherwise being considered for reasons such as overcrowding or the opening of a newly constructed facility, for the purpose of altering the racial composition at a school, including those schools that had majority black enrollments. (Stipulation ¶ 27). The majority to minority (“MTM”) transfer program which was required by the July 2, 1971, Order has existed since the time of the Order. However, this program has not been widely publicized in the past. Notwithstanding, the School Board recently directed that the program be publicized and the school district’s staff has announced the program to the entire district in recent years. (T1 at 89, 92). In November 1989, the Hillsborough County Superintendent of Schools, Dr. Walter L. Sickles, appointed a Task Force to Modify Single Grade Centers to investigate and make recommendations for reorganizing the school system so as to establish middle schools. (Stipulation at ¶ 28). A goal to be achieved by any recommended reorganization was the retention of a desegregated school system. (Stipulation at ¶ 29). In late 1990 or early 1991, the School Board suggested to Plaintiffs’ counsel that representatives of the parties and their counsel meet to consider the tentative Middle School Plan being developed by the Task Force, to determine whether a joint submission of the plan could be made to the Court. (Stipulation at ¶ 30). In early 1991, the Assistant Superintendent, James Randall, had an initial meeting with counsel for Plaintiffs. A more extensive meeting with counsel took place on March 15, 1991, attended by counsel for the parties, Dr. Sickles, Mr. Randall, and other staff members of the district, as well as, by Plaintiffs’ educational and desegregation consultant, Dr. Leonard Stevens. (Stipulation at ¶ 31). In connection with the March 15,1991, meeting, Plaintiffs’ representatives were provided with a document entitled “Proposed Cluster Plan,” which described the working concept of a middle school reorganization which was being considered by the Task Force. (Stipulation at ¶ 32). After several subsequent meetings, a formal report entitled “Middle School Task Force Report 3, July 1991” (“Task Force Report”) was submitted to and approved by the School Board. The Task Force Report was tendered to Plaintiffs on August 20,1991. (Stipulation at ¶ 35). Because the school system remained under the Court’s supervision, Defendants were required to propose their Middle School Plan (also known as the “Cluster Plan”) to the Court. The parties proposed an agreed order to the Court, which was approved and entered on October 24, 1991 (“Consent Order”). The Court explained that the Consent Order was the “result from the school district’s comprehensive study of the educational advantages of reorganizing its grade structure to establish ‘middle schools’ serving grades 6-8, and that the School Board’s conclusion, following that study, that implementation of the middle school grade structure is desirable.” (1991 Consent Order at 1). The Task Force Report was attached to and made a part of the Consent Order. (Stipulation at ¶ 36). The Task Force Report proposed modifications which were projected to be implemented over a seven (7) year period. The modifications included grade organization and student assignments in Hillsborough County in order to accommodate the establishment of middle schools. (1991 Consent Order at 2). Prior to implementation of the Cluster Plan, Hillsborough County public school students progressed from elementary schools, to single sixth or seventh-grade centers, which were established for desegregation purposes under the original desegregation plan, to junior high schools, and then to high schools. However, under the Middle School Plan, students would progress from kindergarten through fifth grade elementary schools, to middle schools having sixth, seventh, and eighth grades, and then to high schools. Thus, the single grade centers were to be converted to middle schools. In addition, implementation of the Middle School Plan involved creating attendance “clusters” which grouped elementary and middle schools around the high school which those students ultimately would attend. (Task Force Report at 10). The Middle School Plan also involved the creation of magnet programs at some schools. (Task Force Report at 17-25). One of the purposes of developing the magnet programs was to help desegregate the schools. Some of the schools which were targeted for the programs were predominately black prior to 1971 and the School Board anticipated that these schools would become “black schools” again if the student population was comprised solely of students from the surrounding neighborhoods as a result of the Middle School Plan. (T1 at 66). The programs were designed to perpetuate racial balance. (T1 at 66-67). In the 1991 Consent Order, the Court explained that: The Court recognizes and anticipates that there will be modifications each year of the projected student assignment patterns contained in Appendix 1 to the Task Force Report to take account of demographic or other changes that occur. In making such modifications, the school district should seek to minimize (to the extent practicable) the number of schools which deviate from the system-wide student enrollment ratios (see Task Force Report, at p. 14). (1991 Consent Order at 5-6). However, in the Task Force Report, the School Board predicted that, under the Middle School Plan, there would be an increase, from thirty-six (36) to forty-six (46), in the number of schools that deviated from the 20/80 ratio by 10% or higher, and, an increase, from fifty-six (56) to seventy-two (72), in the number of schools that deviated from the 20/80 ratio 5% or less. Therefore, while the Middle School Plan was projected to increase the number of schools which had racial compositions closer to the district-wide ratio, the plan contemplated an increase in the number of schools that significantly varied from the 20/80 ratio. The 1993 Annual Report reflects that the school system was comprised of 151 schools. As of the time of the report, there were eight (8) elementary schools and one (1) junior high school with student populations which were 50% or more black. Notably, Cleveland Elementary was 59% black and Robles Elementary was 90% black. In addition, there were five (5) elementary schools and two (2) junior high schools with student populations which were more than 40% black. (DX 7). At the time of the 1996 hearing before the assigned Magistrate Judge, the Middle School Plan was in its sixth year and eleven (11) out of the seventeen (17) clusters had been implemented. The remaining six (6) clusters were targeted for the 1997-1998 school year. (Stipulation at ¶ 37). Also, during this time period, the school system had nine (9) schools with magnet programs and had plans for five (5) additional magnet programs at other schools. On June 1,1994, Plaintiffs filed an Amended Motion to Enforce and Consent Order (Docket No. 439). In their Motion, Plaintiffs complained, for the first time, of the existence of schools where black students constituted at least 40% of the total student population. Plaintiffs alleged that the existence of these schools was a violation of the 1971 desegregation plan adopted by the Court. Plaintiffs also asserted that Defendants had not complied with the 1991 Consent Order, which provided that, in the event Defendants deviated from the student attendance patterns contained in the proposed Middle School Plan, they would “seek to minimize (to the extent practicable) the number of schools which deviate from the system-wide student enrollment ratios.” See (1991 Consent Order at 6) (citation omitted). Plaintiffs’ Motion pointed out that sixteen (16) schools, out of 149, had black student populations comprising 40% or more of the total student population. The sixteen (16) schools and the percentages of black students in each school, as of the 1995-1996 school year, was as follows: Robles Elementary (90%), Edison Elementary (75%), Sul-phur Springs Elementary (74%), Oak Park Elementary (70%), Graham Elementary (67%), Foster Elementary (61%), Cleveland Elementary (57%), Shaw Elementary (56%), Witter Elementary (54%), Cahoon Elementary (52%), Clair Mel Elementary (49%), West Tampa Elementary (47%), DeSoto Elementary (43%), Van Burén Junior High (53%), Sligh Junior High (50%), and Dowdell Junior High (49%). (DX 7). Each of these sixteen (16) schools were predominately white in 1971. (T1 at 33). Plaintiffs’ Motion to Enforce was referred to the Magistrate Judge for a Report and Recommendation. The assigned Magistrate Judge held an evidentiary hearing and recommended denial of Plaintiffs’ Motion for failure to establish a violation of the Court’s orders. On November 17, 1995, this Court deferred ruling on the Report and Recommendation, noting that Plaintiffs’ Motion focused on student assignment. The Court explained that the issues raised in connection with Plaintiffs’ Motion to Enforce, “demonstrates the need to expand the scope of the inquiry to a full fledged determination of whether the Hillsborough County school system has in fact achieved unitary status.” (Order Recommitting Matter to Magistrate, Docket No. 709 at 3). The Court further emphasized that, “[a]s it stands now, this Court and the parties are attempting to chart a course for the future without the benefit of a sound assessment of where we are currently.” Id. at 3. Consequently, the Court ordered: [A] showing by Defendants as to whether they have complied with this Court’s 1971 Order regarding the factors set forth by the United States Supreme Court in Green v. County School Bd. of New Kent County, Va., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). In addition to student assignments, Green and Freeman require that faculty and staff assignments, transportation, extracurricular activities, facilities and resource allocation all be free from racial discrimination. In each of these areas, the School Board bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior constitutional violation of plaintiffs’ rights. Freeman, 603 U.S. at 494[, 112 S.Ct. 1430]. The quality of education being received by all students and the good faith commitment by the School Board must be shown. Id. at 4. Following the referral Order, the assigned Magistrate Judge set a hearing on the unitary status determination and thereafter, conducted monthly status conferences with counsel for the parties. The parties exchanged discovery and retained expert witnesses. After the evidentiary hearing was concluded, the parties filed proposed findings of fact and conclusions of law which were supplemented after the filing of the 6th Annual Report to the Consent Order. Closing arguments were presented on May 22, 1997. On August 26, 1997, the assigned Magistrate Judge issued a Report and Recommendation on the issue of whether the public school system of Hillsborough County has attained unitary status and should be released from court supervision. (Docket No. 809). After a comprehensive analysis of the issue, the assigned Magistrate Judge recommended that this Court find that Defendants have demonstrated that the public school system has attained unitary status. Although this Court agrees with a majority of the Magistrate Judge’s analysis, the Court disagrees that school system should be released from supervision at this time. As a preliminary matter, the Court feels compelled to address the concerns regarding the duration of this litigation and the passage of time since this Court provided Defendants with specific instructions. One theme which Defendants have reiterated continuously throughout this litigation has been that, even when the schools in the county began to deviate from the system-wide race ratios, Plaintiffs, and the Court, failed to challenge this occurrence. However, it is clear that Defendants have been charged with the affirmative duty to desegregate the public schools in Hillsborough County to the maximum extent practicable. Regardless of the reasons for inaction by Plaintiffs and the Court, Defendants remain obligated to fully and diligently discharge their duties. Although Defendants were entitled to seek release from the Court’s supervision at anytime after the desegregation plan was implemented, their obligations remain until this Court ruled otherwise. A considerable amount of time has passed since the desegregation plan was implemented. Undoubtedly, Defendants’ desegregation efforts demonstrate significant success; however, the amount of time Defendants have had to achieve this success detracts from their achievements. Moreover, while Defendants may have seen the delay in the instant rulings as merely an unfortunate reality of an overcrowded Court docket, the Court has viewed this delay as an additional opportunity for Defendants to demonstrate that Court supervision is no longer necessary. Defendants have failed to capture that opportunity. DISCUSSION Vacation or Modification Plaintiffs’ first objection concerns the Magistrate Judge’s finding that attainment of unitary status constitutes a “changed circumstance” warranting vacation of the 1991 Consent Order. The Magistrate Judge explained that modification of a consent order in a desegregation case may be considered when: (1) a significant change in facts or law warrants change and the proposed modification is suitably tailored to the change; (2) significant time has passed and the objectives of the original agreement have not been met; (3) continuance is not longer warranted; and/or (4) continuance would be inequitable and each side has legitimate interests to be considered. (R & R at 64)(citing Jacksonville Branch NAACP v. Duval County Sch. Bd., 978 F.2d 1574, 1578 (11th Cir.1992)). Plaintiffs contend that attainment of unitary status cannot amount to a changed circumstance warranting modification or vacation of a consent order. Plaintiffs argue that, in order to disturb a consent order, the change in circumstances must not have been foreseen at the time the agreement was reached. Plaintiffs cite Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), for the proposition that a significant change in factual conditions cannot be predicated on events actually anticipated at the time of entering of the decree. (Br. in Supp. of Pis.’ Obj. to R & R at 12). Plaintiffs argue that, “[tjhere is no evidence — nor could defendants present any plausible evidence— that unitary status was an unforeseen circumstance when the parties entered into the 1991 Consent Order.” Id. (emphasis omitted). Significantly, the respondents in Rufo argued that modification of a consent decree should only be allowed when a change in facts is both unforeseen and unforeseeable. 502 U.S. at 385, 112 S.Ct. 748. The Supreme Court explained that this standard proposed by the respondents would be even less flexible than the Swift test, a test rejected by the Supreme Court as being too rigid to apply in all cases. Id. at 380, 385, 112 S.Ct. 748. Consequently, in the case at hand, Plaintiffs are proposing an unsupportable standard. Moreover, Defendants argue that, if the attainment of unitary status cannot serve as a sufficient change in circumstances to warrant dissolution of a consent decree, then no consent decree entered in a desegregation case could ever be dissolved, despite the achievement of the stated goals. Clearly, the consent order was not intended to require judicial supervision indefinitely. Furthermore, the Rufo Court acknowledged a district court’s need to be able to modify a decree in desegregation cases; “[bjecause such decrees often remain in place for extended periods of time, the likelihood of significant changes occurring during the life of the decree is increased.” 502 U.S. at 380, 112 S.Ct. 748 (noting the upsurge in institutional reform litigation since Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)). Moreover, “federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.” See Board of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, 247, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). Accordingly, if the purposes of this desegregation litigation, as incorporated in the 1991 Consent Order, have been fully achieved, then the Order can be modified and/or vacated. Id. In the instant case, modification is appropriate. Interrelated Green Factors Plaintiffs also argue that the Magistrate Judge failed to address the relationships among the many Green factors in determining that the school system is unitary. Plaintiffs contend that the grade restructuring plan being implemented, pursuant to the 1991 Consent Order, is a seven-year plan that should be completed in order to fully evaluate its effectiveness and constitutional compliance. Consequently, Plaintiffs assert modification is inappropriate at this time. (Br. in Supp. of Pis.’ Obj. to R & R at 5). Plaintiffs argue that many of the Green factors are inextricably linked to the grade restructuring plan; therefore, the evaluation of the Green factors will depend on the full implementation of the plan and declaration of unitary status should be deferred. Conversely, Defendants contend that continuation of the 1991 Consent Order is no longer warranted when the school system attains unitary status. Defendants argue that, if the school system is unitary, then the purpose of both the 1971 Order and 1991 Consent Order has been met; therefore, continuing supervision is unnecessary. (Def.’s Resp. to Pis.’ Objs. to R & R at 3). The Court must evaluate the Green factors in order to determine whether Defendants have attained unitary status. The interdependence of these factors is typically evaluated when an incremental release of Court supervision is contemplated. Contrary to Plaintiffs’ assertion, the Magistrate Judge noted: However, if the Court has concerns about whether defendants have desegregated the elementary schools to the maximum extent practicable, continued supervision over student assignment could be retained while relinquishing jurisdiction over the other aspects of school operation as long as remedial action in the other areas is not necessary to achieve unitary status in the area of school assignment. (R & R at 88 n.56). Consequently, the Court will analyze the relationships among the Green factors at the appropriate time. Unitary Status I. Vestiges of Past Discrimination Clearly, the attainment of unitary status is the goal of the instant desegregation litigation. “The objective today remains to eliminate from public schools all vestiges of state-imposed segregation.” Swann, 402 U.S. at 15, 91 S.Ct. 1267. The concept of unitariness has been a helpful one in defining the scope of the district courts’ authority, for it conveys the central idea that a school district that was once a dual system must be examined in all of its facets, both when a remedy is ordered and in the later phases of desegregation when the question is whether the district courts’ remedial control ought to be modified, lessened, or withdrawn. Freeman v. Pitts, 503 U.S. 467, 486, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). A. Defendants’Duty The question is whether Defendants have successfully discharged the duty imposed by the Constitution to eliminate the vestiges of de jure segregation. District courts have been directed to assert jurisdiction over school systems which previously practiced de jure segregation to ensure compliance with the constitutional mandate of Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (“Brown, I"). See Brown v. Board of Educ., 349 U.S. 294, 300-01, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (“Brown II”). The courts’ jurisdiction is to be exercised until a determination can be made that the vestiges of past discrimination have been eliminated to the maximum extent practicable. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). In order to achieve constitutional compliance, a school district is obligated to comply, in good faith, with the court’s desegregation decree and “take whatever [affirmative] steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. School Bd. of New Kent County, 391 U.S. 430, 437-39, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Significantly, “[e]ach instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment.” Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979). Consequently, Defendants should be released from judicial supervision only when the Court finds that: (1) Defendants have eliminated the vestiges of past discrimination to the maximum extent practicable; and (2) Defendants have exhibited a record of full and satisfactory compliance with the Court’s orders. Importantly, Defendants remain subject to the 1971 desegregation Order until this Court declares that the school district has achieved unitary status and has complied with the Court’s orders in good faith. See Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 439-40, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976). The School Board’s responsibility to eliminate the vestiges of the unconstitutional de jure system “is required in order to ensure that the principal wrong of the de jure system, the injuries and stigma inflicted upon the race disfavored by the violation, is no longer present.” Freeman v. Pitts, 503 U.S. 467, 485, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). However, “a remedy is justifiable only insofar as it advances the ultimate objective of alleviating the initial constitutional violation.” Id. at 489, 112 S.Ct. 1430; Swann, 402 U.S. at 16, 91 S.Ct. 1267 (explaining that judicial powers may be exercised only on the basis of a constitutional violation). The purpose of the remedial action is to eliminate the vestiges of state-compelled dual systems, not to remedy racial imbalances unrelated to de jure segregation. Id. at 494, 112 S.Ct. 1430. Nevertheless, if Defendants have not discharged their affirmative constitutional duty to dismantle the dual school system, the school district remains in violation of the Fourteenth Amendment. (i) Racially Identifiable In terms of describing the alleged shortcomings of Defendants’ desegregation efforts, Plaintiffs assert that Defendants do not have a working definition of a desegregated school. The concept of “racial identifi-ability” is generally used to describe the relationship between the racial composition of a particular school and the racial composition of the system as a whole. The Supreme Court’s decision in Green requires school boards to prove that racially identifiable schools are not the consequence of past or present discriminatory state action. Throughout this litigation, the parties have been unable to agree on a definition of a racially identifiable school. Nevertheless, Plaintiffs suggest a definition of a racially identifiable school as: a school having a population of black students of forty-percent (40%) or more. Defendants argue that a working definition of a desegregated school is not required in order to determine whether unitary status has been achieved. Defendants emphasize that the Court provided numerical goals for the Defendants to consider as it aimed at desegregating schools. However, a particular percentage has not been used as a line of demarcation. For example, in the 1971 Order, the Court directed Defendants to concentrate on all schools in the county having at least a 50% black population. The Court further suggested that a white-black ratio of 86%/14% in the senior high schools, 80%/20% in the junior high schools, and 79%/21% in the elementary schools would be the most acceptable and desirable form of desegregation. 1971 Order at 43-44. Notwithstanding, Defendants stress that none of the Court’s Orders have expressly or implicitly directed Defendants to maintain a particular student race ratio at any school, or to take any action in response to increased black enrollments in the schools. In the 1971 Order, the Court explained that the Hillsborough County school system was a segregated system. “As of October 24, 1969, 74% of the county’s white students were in 70 white schools, whereas 65% of the black students were concentrated in 21 black schools.” (1971 Order at 35). Moreover, the Court explained that, as of October 23, 1970, 46% of the school system’s blacks were attending 15 black schools. “Although they comprised only 19% of the student population, 13,606, or 69%, were in 28 schools at least 50% black. On the other hand, 69% of the white students — 57,869 out of 83,474— attended 65 schools either all white or at least 95% white.” Id. After the Court entered the 1971 Order, 97% of Hillsborough County elementary school students attended racially balanced schools, according to Plaintiffs. In comparison, Plaintiffs argue, only 69% of Hillsbor-ough County elementary school students attended racially balanced schools in 1995. Moreover, Plaintiffs point out that, for all but two (2) years between 1971 and 1988, 90% of junior high school students attended racially balanced schools; however, as of 1995, the percentage has dropped to 75%. The Constitution does not require that every school in every community must always reflect the racial composition of the school system as a whole. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 24, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The Courts have consistently warned against the application of an inflexible standard of having “no majority of any minority” in a school. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary. Id. at 31-32, 91 S.Ct. 1267. Accordingly, it is clear that Defendants had no continuing duty to maintain a particular black to white student ratio on a school-by-school basis over the expansive time period of this litigation, including the 80%/20% ideal set forth in the 1971 Order. See Id. at 24, 91 S.Ct. 1267 (disapproving an approach to desegregate schools which requires, as a matter of constitutional right, any particular degree of racial balance or mixing). Nevertheless, the district-wide ratios are an important starting point to analyze Defendants’ fulfillment of its obligations. “In most cases where the issue is the degree of compliance with a school desegregation decree, a critical beginning point is the degree of racial imbalance in the school district, that is to say a comparison of the proportion of majority to minority students in individual schools with the proportions of the races in the district as a whole.” Freeman, 503 U.S. at 474, 112 S.Ct. 1430. Moreover, although schools which have become virtually all one-race “require close scrutiny,” they are not per se unconstitutional. Swann, 402 U.S. at 26, 91 S.Ct. 1267. However, their existence in a school system with a history of de jure segregation, establishes a presumption that they exist as a result of discrimination and the burden of proof shifts to the School Board. Id. “The school district bears the burden of showing that any current [racial] imbalance is not traceable, in a proximate way, to the prior violation.” Freeman, 503 U.S. at 494, 112 S.Ct. 1430. The Court finds that Plaintiffs’ definition of a racially identifiable school is useful and fair. A school that has 20% more black students than that of the district-wide composition indicates that the school has deviated significantly from the system-wide norm. While the phrase “racially identifiable” is useful as a descriptive term, it should not be accorded more weight than it deserves. A school system can have racially identifiable schools and still be a unitary school system. Moreover, if the racial identifiability is unrelated to de jure segregation, a court imposed remedy is not justified. However, the fact that a school deviates from the system-wide ratio should, at least, cause some concern and an evaluation by the School Board (the authority charged with the responsibility to desegregate the schools to the maximum- extent possible), must ensue. In other words, while racial identifiability of a school is, relevant, it does not define the standard for determining whether the School Board has discharged its affirmative duty or has achieved unitary status. (ii) Demographics Plaintiffs challenge the Magistrate Judge’s evaluation of Defendants’ evidence concerning the change in demographics in Hillsbor-ough County. Plaintiffs argue that, not only is the change in demographics in Hillsbor-ough County far less dramatic and more incremental than in Freeman, but the identification of pure demographic change is further complicated by the implementation of a Middle School Plan. (Br. in Supp. of Pis.’ Obj. to R & R at 15). Plaintiffs maintain that the Middle School Plan requires considerable change and that the statistical information on the precise demographic effect will not be discernible until the 2000 census is available. Moreover, Plaintiffs argue that Defendants have acted, or failed to act, in a number of ways which has contributed to the racial identifiability of the Hillsborough County schools. Plaintiffs assert that the issue is whether Defendants bear any responsibility for the racial identifiability and, if so, the extent to which Defendants are responsible. As noted above, there are sixteen (16) schools which have become focal points for determining whether or not the school system is unitary. The percentages of black students in each of these sixteen (16) schools, as of the 1972-73 school year, were as follows: Robles Elementary (24%), Edison Elementary (36%), Sulphur Springs Elementary (19%), Oak Park Elementary (23%), Graham Elementary (35%), Foster Elementary (21%), Cleveland Elementary (26%), Shaw Elementary (15%), Witter Elementary (18%), Ca-hoon Elementary (21%), Clair Mel Elementary (18%), West Tampa Elementary (14%), DeSoto Elementary (35%), .Van Burén Junior High (17%), Sligh Junior High (20%), and Dowdell Junior High (14%). (DX 7). In 1970, the total population in Hillsborough County was 490,265, of which, 422,119 were white and 66,648 (13.5%) were black. (DX 2 Table 1). During the same year, the total population between the ages of 0 to 17 years old was 164,278, of which, 135,344 were white, and 28,527 (17.4%) were black. Id. However, the latest figures used in this litigation reflect the following percentages of black students attending the sixteen (16) schools, as of the 1995-1996 school year: Robles Elementary (90%), Edison Elementary (75%), Sulphur Springs Elementary (74%), Oak Park Elementary (70%), Graham Elementary (67%), Foster Elementary (61%), Cleveland Elementary (57%), Shaw Elementary (56%), Witter Elementary (54%), Ca-hoon Elementary (52%), Clair Mel Elementary (49%), West Tampa Elementary (47%), DeSoto Elementary (43%), Van Burén Junior High (53%), Sligh Junior High (50%), and Dowdell Junior High (49%). (DX 7). In 1990, the total population in Hillsborough County was 834,054, of which, 690, 352 were white and 110,283 (13.2%) were black. (DX 2 Table 1). During the same year, the total population between the ages of 0 to 17 years old was 202,274, of which, 152,900 were white, and 39,163 (19.4%) were black. Id. Plaintiffs assert that, since 1971, there has been relatively little change in the racial composition of the Hillsborough County School District as a whole and by grade level, except at the high school lével. (Pis. Proposed Findings of Fact and Conclusions of Law at 12). Plaintiffs contend that, while most schools in Hillsborough County reflect the district-wide student racial composition, the schools with 40% or more black student populations should be considered racially identifiable because they are approximately 20 percentage points above the system-wide ratio. Id. Moreover, Plaintiffs point out that, the majority of these schools are 30 percentage points or more above the district-wide black student racial composition. Id. Conversely, Defendants argue that the increase in the number of schools with a majority black student population is the result of residential patterns and not the product of discrimination by the School Board. Moreover, Defendants argue that Plaintiffs’ insistence on the elimination of racially identifiable schools seeks to impose an obligation on Defendants which is not mandated by governing law. Defendants emphasize that the Court may only order the elimination of racially imbalanced schools when the racial imbalance was caused by an unlawful de jure policy of the school district. Defendants’ recitation of the law is correct. “Racial balance is not to be achieved for its own sake.” Freeman, 503 U.S. at 494, 112 S.Ct. 1430. In Freeman, Supreme Court evaluated a district court’s role in supervising a school system where demographics are the cause of racial imbalances and stated: Where resegregation is a product not of state action but of private choices, it does not have constitutional implications. It is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. To attempt such results would require ongoing and never-ending supervision by the courts of school districts simply because they were once de jure segregated. Freeman, 503 U.S. at 495, 112 S.Ct. 1430. Accordingly, in the case at hand, the issue is whether the racial imbalances in the school district have a causal link to the de jure violation being remedied. The Court is not convinced that a shift in demographics and residential patterns explains the racial imbalance in the Hillsborough County School system. Defendants have failed to adequately discharge their affirmative duty to eliminate the dual system “root and branch.” While the Court finds that the racial imbalances in the schools are not the result of a deliberate attempt by Defendants to fix or alter demographic patterns to affect the racial composition of the schools, Defendants’ apathy over the years demonstrates a lack of good faith compliance. Moreover, because Defendants failed to fully discharge their affirmative duty to desegregate the school system, the district has not been desegregated to the maximum extent practicable. Defendants have failed to prove that the racial imbalances are not traceable, in a proximate way, to the past de jure segregation. B. Student Assignments All of the schools in Hillsborough County were desegregated as of the 1971-1972 school year. Furthermore, each of the sixteen (16) schools, which are currently considered racially imbalanced, was predominately white following the 1971 desegregation Order. (T1 at 33). Since that time, the School Board has implemented numerous attendance changes which altered the racial composition of the schools district-wide. However, these sixteen (16) schools have increased their black student populations relatively quickly after the 1972-1973 school year and their enrollments have become disproportionate to the system-wide race ratios. Although Defendants used projected attendance figures to calculate the expected improvements to the race ratios of the schools, the Court will focus on the actual changes to evaluate the cause of the racial imbalance in the sixteen (16) schools. (i) Attendance Zone Adjustments Robles Elementary The first boundary changes made to Robles’ attendance zone took place during the 1976-1977 school year. The boundary change which affected first through fifth graders included transferring fifty-three (53) black and seventeen (17) white students from Robles Elementary to Browards Elementary. In addition, eight (8) black and three (3) white sixth graders were transferred to Potter Elementary. The actual racial composition of students in attendance for the 1975-1976 school year was 33% black and 67% white, whereas after the change was made, the actual racial composition of students in attendance for the 1976-1977 school year was 30% black and 70% white. Significantly, no other boundary changes were implemented that would have affected Robles’ attendance zone. The actual racial composition of Robles for the 1995-1996 school year was 90% black and 10% white. Cleveland Elementary Defendants changed Cleveland’s attendance area for the 1972-1973 school year to encompass a portion of Potter Elementary’s attendance zone and the parameters of the attendance area were redrawn. The actual composition of students in attendance for the 1972-1973 school year was 26% black and 74% white. For the 1975-1976 school year, Defendants made boundary changes which affected first through fifth graders by adjusting the parameters of the attendance zone. All sixth grade students were moved to the Potter attendance zone. The actual racial composition of students in attendance for the 1974-1975 school year was 46% black and 54% white, whereas after the changes were made, the actual racial composition of students in attendance for the 1975-1976 school year was 44% black and 56% white. For the 1989-1990 school year, 12 black and 12 white students were reassigned from Sulphur Springs Elementary to Cleveland and the parameters of Cleveland’s attendance zone were readjusted. The actual racial composition of students in attendance for the 1988-1989 school year was 61% black and 39% white, whereas after the changes were made, the actual racial composition of students in attendance for the 1989-1990 school year was 53% black and 47% white. No other boundary changes were implemented that would have affected Cleveland’s attendance zone. The actual racial composition of Cleveland for the 1995-1996 school year was 57% black and 43% white. Edison Elementary The actual racial composition of students in attendance for the 1972-1973 school year was 36% black and 64% white. The first boundary change affecting Edison’s attendance zone was implemented for the 1982-1983 school year. Twenty-one (21) white and ninety-four (94) black students were transferred from Edison to Claywell Elementary. The actual racial composition of students in attendance for the 1981-1982 school year was 55% black and 45% white, whereas after the change was made, the actual racial composition of students in attendance for the 1982-1983 school year was 50% black and 50% white. No other boundary changes were implemented that would have affected Edison’s attendance zone. The actual racial composition of the students in attendance for the 1995-1996 school year was 75% black and 25% white. Graham Elementary The actual racial composition of the students in attendance for the 1972-1973 school year was 35% black and 65% white. The’ first boundary change affecting Graham’s attendance zone was implemented for the 1988-1989 school year. Graham received thirteen (13) black first through sixth graders from the Gorrie satellite, pursuant to a student assignment change. The actual racial composition of students in attendance for the 1987-1988 school year was 63% black and 37% white, whereas after the change was made, the actual racial composition of the students in attendance for the 1988-1989 school year was 64% black and 36% white. No other boundary changes were implemented that would have affected Graham’s attend-anee zone. The actual racial composition of the students in attendance for the 1995-1996 school year was 67% black and 38% white. Oak Park Elementary The actual racial composition of the students in attendance for the 1972-1973 school year was 23% black and 77% white. The first boundary change affecting Oak Park’s attendance zone was implemented for the 1979-1980 school year. During the 1979-1980 school year, there was a satellite transfer made from Oak Park to DeSoto Elementary and there was a satellite transfer from Gary to Oak Park Elementary. These satellite transfers were implemented in order to close Gary Elementary. The actual racial composition of students in attendance for the 1978-1979 school year was 46% black and 54% white, whereas after the change was made, the actual racial composition of the students in attendance for the 1979-1980 school year was 41% black and 59% white. During the 1996-1997 school year, one (1) white and ten (10) black first through fifth graders were transferred from Oak Park to Alafia Elementary School as the result of a needed cluster adjustment. The actual racial composition of the students in attendance for the 1996-1997 school year was not available when Defendants submitted their materials. The actual racial composition of the students in attendance for the 1995-1996 school year was 70% black and 30% white. Defendants do not dispute the fact that no boundary changes were specifically made to reduce the racial imbalance. Instead, Defendants attribute the increase in the black student populations at the sixteen (16) schools to demographic changes in attendance zones and contend that, as a result, no changes were required. For example, Defendants argue that the percentage of black school-age children living in the Robles attendance zone increased from 13% in 1970 to 31.3% in 1980. Defendants argue that the Robles attendance zone subsequently experienced a drastic increase in the percentage of black school-age children from 31.3% in 1980 to 71.4% in 1990. Census data is unavailable for changes occurring after 1990. Notwithstanding, Defendants assert that when they have made changes to the attendance patterns for reasons other than race, the racial composition of the schools was a paramount consideration. Conversely, Plaintiffs maintain that there has been relatively little change in the racial composition of the Hillsborough County school district as a whole since 1971. Plaintiffs argue that during the period when the number of racially identifiable schools increased, Defendants opened and closed schools which created new attendance zones. Plaintiffs contend that, when the initial decisions were made, for example, to construct a new school, the principal concern should have been desegregation; the problems of overcrowding could have been adjusted accordingly. Plaintiffs argue that Defendants’ obligations include, inter alia, considering the construction and abandonment of school facilities, and drawing attendance zones so as to affirmatively promote desegregation of the school system. Plaintiffs argue that mere neutrality is not an option. In addition, Plaintiffs assert that over the course of this litigation, Defendants altered existing attendance zones and redeployed inner-city satellite zones from school to school. Consequently, Plaintiffs argue, Defendants were provided with an opportunity to address existing racial identifiability in the school system; however, Defendants failed to take advantage of those opportunities. Furthermore, Plaintiffs emphasize that the attendance zones were changed infrequently for the schools which are now racially identifiable; therefore, Defendants’ failure to act has contributed to this racial imbalance in the schools. Moreover, Plaintiffs argue that, other techniques used to improve the racial compositions at schools in Hillsborough County, such as the assignment and reassignment of satellite zones, were not used to reduce the percentages of black students at schools such as Robles. As a result, Plaintiffs assert that this Court must determine whether Defendants have been affirmatively seeking to integrate the Hillsborough County school system with respect to all of the factors outlined in Green, from 1971 until the present. Undoubtedly, Defendants have been effective in desegregating the Hillsborough County school system. Hillsborough County is the 12th largest school district in the country. For the 1996-1997 school year, the county consisted of 149 public schools. Defendants point out that a majority of the schools have remained within a plus or minus 10% variance from the 80/20 race ratio suggested as ideal by the Court in 1971. See 6th Annual Report at 42. Moreover, Defendants argue that, although the modifications have been made for reasons other than race, Defendants had no obligation to improve racial balances if the imbalances were not caused by either prior or present action of the School Board. Defendants assert that, upon implementing their desegregation plan, none of the schools in Hillsborough County had a black majority population for the 1971-1972 school year. Defendants point out that, although a few elementary schools began to increase their black population