Full opinion text
MEMORANDUM OPINION HEYBURN, District Judge. The conclusions that the Court reaches in this Memorandum do not end this case. Nor do they necessarily foreshadow any particular result. However, they set forth a significant and different route to reach a conclusion. The new route should sharpen the debate on the real and important issues which this case raises. It may expose all parties to the consequences and ambiguities of their requests and their arguments. The discussion should remind us that even the scope of fundamental rights such as equal protection depends on a particular mix of history, circumstance, and legal precedent. Today’s decision plays out against the backdrop of a great controversy surrounding the American idea of equality. That controversy extends to the Equal Protection Clause’s expression of the idea: No state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws. The debate arises not because anyone doubts that the right is fundamental. After all, long before 1868 our founders declared that “all men are created equal.” Arguments rage on because so many people conceive different definitions of equality. This case will require the Court to explore various different conceptions of equality which for decades have bedeviled ordinary citizens, politicians, sociologists, and, of course, judges. The Fourteenth Amendment guarantees citizens the right to send their children to public schools free from state-imposed segregation and free from the vestiges of such discrimination. The same amendment protects them unequal treatment as a result of a racial classification. Judge John Minor Wisdom may have best summarized this tension when he wrote: The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and undo the effects of past discrimination. United States v. Jefferson County Board of Educ., 372 F.2d 836, 876 (5th Cir.1966). While this case illustrates the tension between these two seemingly parallel sides of the same right, it will not decide which is more essential. Each is fundamental. When rights conflict, individuals are often unable to enjoy the full benefit of each. Even the less ambiguous rights to free speech and freedom of religion give way in certain circumstances. Understanding and reconciling the two parallel, but sometimes contradictory, elements of equal protection may be the Court’s ultimate challenge in this case. However, an essential part of judging is not merely getting the right answer to a legal issue; it is getting to the right question and requiring the combatants to address it. This opinion charts a path for doing so. I. SUMMARY The Court has reached the inexorable conclusion that certain aspects of Judge Gordon’s 1975 desegregation decree remain in force and effect. This conclusion may seem surprising. However, a thorough review of this lengthy opinion should convince the reader that the result is imminently sensible. The Court reached this conclusion because: (1) Judge Gordon never completely dissolved the decree, though he clearly ended his supervision of it and terminated certain portions of it; (2) the Supreme Court has said that ending active supervision of a decree does not necessarily terminate the decree itself; (3) Judge Gordon did not end the Board’s obligation to prevent vestiges of discrimination, such as reemergence of racially identified schools; (4) since 1975 the Board has followed Judge Gordon’s essential command; and (5) the continuing decree permits the use of racial composition guidelines, including those in the Board’s current Student Assignment Plan, to prevent the re-emergence of racially identifiable schools. Therefore, because the Board has complied with a continuing court order to prevent the reemergence of racially identifiable schools, it has not violated the Equal Protection Clause. To obtain relief under their equal protection claim, Plaintiffs or someone must first move to dissolve the remainder of the desegregation decree. To terminate that decree, a moving party must demonstrate that the Board has continued in good faith compliance with its obligations and that it has removed the vestiges of past discrimination to the extent practicable. If any of the parties wish to dissolve the Board’s ongoing obligations under the decree, the Court will honor that request and set a hearing to determine whether any such motion is well taken. This decision alters and clarifies the procedural steps which must occur before the Court can address Plaintiffs’ equal protection claim. It does not presage any particular result. If the decree is dissolved, the Court could then consider Plaintiffs’ challenge that the Board’s current Student Assignment Plan violates the Equal Protection Clause of the Fourteenth Amendment. II. THE HISTORY OF SCHOOL DESEGREGATION IN JEFFERSON COUNTY SCHOOLS This case traces the history of equal protection as applied to the public schools in Jefferson County. A full telling of that story would begin by describing the pain, inhumanity, and social degradation caused by state imposed school segregation. It would describe the individual potential which segregation suppressed; the spirit and determination of those who overcame the obstacles it imposed; and the moral strength of those who fought the legal, social, and political battle against it and other forms of discrimination. It would necessarily describe the confusion and outrage at Judge Gordon’s busing order which seemed to tear this community apart as it sent children from their own neighborhoods to places that many of both races had never before seen. Finally, it would describe a school community which in many respects came together for a common purpose and worked at understanding one another well enough to overcome all these traumatic events. In doing so, at the very least, the Jefferson County schools created something positive and workable. The Court necessarily omits but does not forget these events. It would be convenient if equal protection defined individual rights in precisely the same way regardless of the circumstances. That is not the case. That is why understanding the circumstances is absolutely central to applying equal protection guarantees correctly and fairly. That is why the Court will spend considerable time and effort describing the history of Jefferson County school desegregation as that process evolved, along with equal protection jurisprudence, over the past forty-five years. There is another reason for recounting the history. Those who have not traveled the full journey may want to understand how we arrived at this point. When Jefferson County schools were last segregated as a matter of law, many of the parents and none of the current students were yet born. So we should never assume too much about the current knowledge of the long struggle to produce a desegregated school system. Knowing the past will ultimately help us make some common sense about the rules which govern our actions now. The history which the Court now recounts concerns the judicial responses to all of these events. A. City and County Desegregation After Brown The history of desegregation in the City of Louisville and Jefferson County begins, as any history of desegregation must, with Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) [Brown I ]. Brown established forever the constitutional principle that because “segregation of children in public schools solely on the basis of race ... deprive[s] the children of the minority group of equal educational opportunities ... [state sponsored] [separate educational facilities are inherently unequal” under the Fourteenth Amendment. Id. at 493-95, 74 S.Ct. 686. To their credit, following the command of Brown, school authorities for the separate education systems in the City of Louisville and Jefferson County took some steps to dismantle their systems of de jure segregation. They proceeded cautiously and achieved mixed results. Nevertheless, the desegregation of local schools moved forward peacefully and deliberately, if not necessarily with speed or completeness. The City of Louisville schools desegregated student assignments in the 1956 school year by a geographic attendance zone plan drawn to achieve some integration. The City schools also employed a transfer policy. In the 1959 school year, the City initiated a faculty desegregation plan. The City made modest progress in its desegregation efforts. All but one of its seventy-five schools at some time between 1956 and 1972 achieved a biracial population. See generally Haycraft v. Board of Educ. of Louisville, No. 7291, Memorandum Opinion and Judgment (W.D.Ky. Mar. 8, 1973), rev’d, 489 F.2d 925 (6th Cir.1973) & 521 F.2d 578 (6th Cir. 1975) [hereinafter Haycraft, 1973 Mem. Op.]. The County system included far fewer black students. Desegregation proceeded at a slow pace. Prior to 1956, the County paid to send black high school students to attend Louisville’s Central High School. Its black elementary students attended school at Newburg Elementary, a modern twenty-room school building, and in seven other one- to four-room buildings throughout the county. From 1956 to 1963, the County eliminated its all-black schools and assigned black pupils by geographic district. Unlike the City, the County allowed no transfers. Faculty integration did not begin until 1963 and progressed slowly. By 1972, the black student population of the district had increased slightly. The County’s integration efforts had met with limited success at the elementary level, with 56% of the black students attending just three of the seventy-four elementary schools all located close to concentrations of black residents. See generally Newburg Area Council, Inc. v. Board of Educ. of Jefferson County, No. 7045, Memorandum Opinion and Judgment (W.D.Ky. Mar. 8,1973), rev’d, 489 F.2d 925 (6th Cir.1973) & 521 F.2d 578 (6th Cir.1975) [hereinafter Newburg, 1973 Mem. Op.] B. The 1973 Desegregation Lawsuits In 1972, dissatisfied with the progress of school desegregation, several individuals and groups filed federal lawsuits against both the City and County systems. In Haycraft v. Board of Education of Louisville —a suit encouraged by the Kentucky Civil Liberties Union and later joined by the Human Relations Commission and NAACP — the plaintiffs contended that the City’s transfer and school site selection policies perpetuated segregation, that the district had failed to integrate faculty and staff, and that the geographic, or neighborhood, school assignment system caused racially-identifiable schools. The Haycraft plaintiffs sought broad remedies including interdistrict measures or a merger of the City and County systems along with the small Anchorage Independent School District. In Newburg Area Council, Inc. v.. Board of Education of Jefferson County —a suit brought by a community organization in Newburg and joined by the Kentucky Commission on Human Rights — -the plaintiffs similarly contended that school officials had maintained segregation through student assignment, busing, and school site selection policies. Specifically, the New- burg Area Council plaintiffs attacked the concentration of black elementary students at three schools. They argued that the County had constructed Price and Cane Run schools, drawn boundaries around Newburg Elementary, and adjusted the student census at surrounding white schools all for the purpose of perpetuating nearly segregated schools. Additionally, the plaintiffs challenged the district’s efforts to integrate faculty. The Newburg Area Council plaintiffs sought less dramatic remedies focusing mainly on faculty integration and on desegregating the three racially identifiable elementary schools, along with the more drastic remedy of merging the City, the County, and the Anchorage system. Neither group of plaintiffs ever contended that either the City or County operated educationally unequal schools; instead, they both focused on the racial imbalances in each system as continuing vestiges of de jure segregation. See Haycraft, 1973 Mem.Op. at 4-5; Newburg, 1973 Mem.Op. at 13. In making these arguments, the desegregation plaintiffs relied heavily on the principles developed in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). In Green, the Supreme Court applied the holding of Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) [Brown II], and required school systems to dismantle, rather than just discontinue, the practice of segregation. In the opinion’s most compelling passage, the Green Court explained: In the context of the state-imposed segregated pattern of long standing, the fact that [a school district] opened the doors of the former “white” school to Negro children and of the “Negro” school to white children merely begins, not ends, our inquiry whether the [school board] has taken adequate steps to abolish its dual, segregated system. Brown II was a call for the dismantling of the well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. 391 U.S. at 437-38, 88 S.Ct. 1689. In Swann, the Court elaborated on the question of whether a school district operates “a system without a ‘white’ school and a ‘Negro’ school, but just schools.” Green, 391 U.S. at 442, 88 S.Ct. 1689. The Swann Court said that evidence of racial imbalances in a previously segregated district creates a presumption that the district has not eliminated the vestiges of state-imposed segregation. See 402 U.S. at 18, 26, 91 S.Ct. 1267. More specifically, the Court held that when a district’s plan includes even a small number of racially identifiable schools, the district bears “the burden of showing that such school assignments are genuinely nondiscriminatory.” Id. at 26, 91 S.Ct. 1267. Swann also expressed great concern that school siting and closure decisions, when combined with neighborhood schooling, could “lock the school system into the mold of separation of the races” by “promoting] segregated residential patterns.” Id. at 21, 91 S.Ct. 1267. Similarly, the Swann Court critiqued even racial-neutral assignment plans in previously segregated systems on the grounds that “such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation.” Id. at 28, 91 S.Ct. 1267. Together, Green and Swann provided the legal basis for the Haycraft and New-burg Area Council complaints. Under Green, the two groups of plaintiffs argued that the Louisville and Jefferson County-schools needed to do more than just end the system de jure segregation. Under Stvann, the plaintiffs contended that the racially identifiable schools in both systems constituted evidence of the vestiges of the discriminatory system. C. Judge Gordon Finds No Vestiges of Past Discrimination and Dismisses Both Cases Both Haycraft and Newburg Area Council ended up before Judge James F. Gordon of the Western District of Kentucky, who consolidated the actions. In March of 1973, he ruled against the plaintiffs and dismissed both cases. See Haycraft, 1973 Mem.Op. & Newburg, 1973 Mem.Op. Judge Gordon began by reasoning that the “tip ratio” (perhaps, less euphemistically described as the statistical point at which “white flight” occurs) prevented City officials from doing anything more to achieve integration: “any further efforts ... to achieve greater racial balance will result in a system-wide tilt; thereby leaving the district blacker, and poorer and more segregated.” Haycraft, 1973 Mem. Op. at 14-15. He concluded that school closings resulted in more integration or had little effect. See id. at 16-17. He determined that the City had successfully desegregated its faculty and administration. See id. 17-19. On perhaps the most hotly contested subject, attendance zones, Judge Gordon found that the district’s boundaries did not perpetuate segregation. See id. at 19-26. He found no gerrymandering or other boundary manipulation. See id at 24. The attendance areas tracked neighborhood lines; the demographics of each neighborhood shaped the racial composition of the schools. See id. at 19, 26. Judge Gordon attributed the dramatic shifts in racial makeup at certain schools (Male and Shawnee high schools, for instance) to population migration rather than to any City action. See id. at 22-23. The regrettable racial imbalances apparent in school system as of 1972 he suggested had their genesis in “white flight, neighborhood housing patterns and socioeconomic factors; not de jure acts or failures to act.” Id. at 30. Judge Gordon praised the “dispatch and diligence” with which the Louisville carried out the intent of Brown I. See id. at 30, 91 S.Ct. 1267. Judge Gordon understood Swann to require close scrutiny of racially identifiable schools, but he also interpreted Swann to mean that “the existence of some small number of one race or virtually one-race schools within a district is not in and of itself a mark of a system that still practices segregation by law.” Id. at 31, 91 S.Ct. 1267. Accordingly, he found the Louisville school system unitary and ruled in favor of the City. In Newburg Area Council> Judge Gordon determined that County racial imbalances arose due to demographics and the difficulty of integrating a relatively small number of black students who lived in the same neighborhoods. For example, he found that the fluctuations in the size of the Newburg school were produced by changes in the grades assigned to the school to increase integration in the surrounding schools. See Newburg, 1973 Mem.Op. at 17-18. He rejected claims that school site choices and busing rates in the Newburg area actually fostered continued segregation. See id. at 18-20, 24. Finally, Judge Gordon reasoned that the County Board engaged in “vigorous” efforts to desegregate the system’s faculty and that it encountered difficulties because of the “reluctance of black teachers to teach in a predominantly all white school system.” Id. at 26. After reiterating his understanding of Swann, Judge Gordon concluded that the County operated a unitary school system. See id. at 32-33, 91 S.Ct. 1267. Only drastic remedial action, such as busing, he found, would improve the level of integration. He rejected that option as being “totally unrealistic” to transport white children into the Newburg area and black children to white schools “in order to achieve some sort of racial balance.” Id. at 32-33, 91 S.Ct. 1267. Again, Judge Gordon ruled in favor of the County. D. The Sixth Circuit Reverses and Orders School Desegregation On appeal, the Sixth Circuit reversed, finding vestiges of discrimination in both the City and County schools. See Newburg Area Council, Inc. v. Board of Education of Jefferson County, 489 F.2d 925 (6th Cir.1973). Factually, the appellate court focused on the continuing presence of racially identifiable City and County schools. Legally, the circuit panel expressed a different understanding of Swann than Judge Gordon. The Sixth Circuit explained that Swann tolerated a small number of racially identifiable schools only in the context of an “ ‘otherwise effective plan for dismantlement of the [segregated] school system.’” Id. at 928 (quoting Northcross v. Board of Educ. of Memphis City Schools, 466 F.2d 890, 893 (6th Cir.1972)). In a previously segregated system, the continued presence of racially identifiable schools imposed a burden on a school board to “show that the racial composition of these schools is not the result of past discriminatory action on its part.” Id. at 931 (citing Swann, 402 U.S. at 26, 91 S.Ct. 1267). The Sixth Circuit concluded that the City and County simply had failed to adopt effective desegregation plans. See id. at 929, 931. The Sixth Circuit found overwhelming evidence of racially identifiable schools in the Louisville system: “the evidence indicates that over 80% of the schools in Louisville are racially identifiable.” Id. at 930. Five of six academic high schools, nine of thirteen junior highs, and forty of forty-six elementary schools remained racially identifiable. Of the fifty-six pre-Brown schools still operating, thirty-five retained the same racial identity. That statistic alone was enough to decide the case. The court found the City’s desegregation efforts sorely lacking. Demographic changes did not excuse the board from its duty to eliminate the vestiges of segregation. See id. More importantly, the court explained that the “residual effects of past discrimination,” id., made it impossible for the City’s geographic student assignment plan to work effectively. The neighborhood school plan merely perpetuated the racial identity of many schools. The court, then, reached the inescapable conclusion that the City did not operate a unitary schools system. While the Jefferson County school system suffered from a much smaller number of racially identifiable schools, the Sixth Circuit found their presence no less dis-positive. The court focused upon the continued racial identifiability of Newburg as a vestige of segregation. See id. at 929. The court concluded that, unless the County addressed that problem, it would not eliminate the dual system “root and branch” as Green required. See id. at 928-29. This finding makes tremendous sense given the small proportion of black students in the County system. Though only one pre-Broim school continued its racial identity, that one school accounted for a large fraction of the district’s black elementary students. Therefore, it alone played a significant role in the analysis. More specifically, the court found that the County had neglected opportunities to integrate the Newburg, Cane Run, and Price schools. The Sixth Circuit criticized Judge Gordon for accepting the County’s explanation that it sent some of the New-burg community’s black children to nearby white schools without having determined why the County did not assign white children to Newburg and Price. See id. at 929. The court condemned the County’s “neutrality” as to the emerging racial iden-tifiability of Price and Cane Run. The panel reasoned that since the school district had not yet eliminated its dual system, it faced an affirmative duty to ensure that its actions did not further segregation. See id. Hence, it mandated that the County “had the affirmative responsibility to see that no other school in addition to New-burg would become a racially identifiable black school.” Id. The Sixth Circuit directed the district court to hold “proceedings to formulate a desegregation plan for all school districts in Jefferson County.” Id. at 932. E. City and County School Merger Upon remand from the Sixth Circuit, Judge Gordon set to work formulating a desegregation plan as directed. During the summer of 1974, he devised Plan X, a desegregation plan that included the merger of the Louisville and Jefferson County systems. All this came to a halt, however, when the Supreme Court granted certiora-ri and vacated the Sixth Circuit opinion, remanding the case for reconsideration in light of Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) ([Milliken I), which limited the federal court’s authority to order interdistrict remedies. See Board of Educ. of Louisville v. Haycraft, 418 U.S. 918, 94 S.Ct. 3209, 41 L.Ed.2d 1160 (1974); Board of Educ. of Jefferson County v. Newburg Area Council, Inc., 418 U.S. 918, 94 S.Ct. 3208, 41 L.Ed.2d 1160 (1974). Ironically, the Supreme Court’s action came just two days after Gordon issued his desegregation decree. On reconsideration, the Sixth Circuit determined that Milliken did not prohibit an interdistrict remedy among the school districts of Jefferson County because the local school authorities had ignored and crossed district lines for the purpose and with the effect of causing segregation. See Newburg Area Council, Inc. v. Board of Educ. of Jefferson County, 510 F.2d 1358, 1360-61 (6th Cir.1974). Accordingly, the appellate court reinstated, with slight modifications, its earlier opinion. See id. at 1361. In an unusual development, as the district court continued the proceedings, the plaintiffs in both Haycraft and Newburg Area Council filed, and the Sixth Circuit granted, a petition for a writ of mandamus directing Judge Gordon to consolidate the cases and issue a desegregation plan effective for the 1975-76 school year. See Newburg Area Council, Inc. v. Gordon, 521 F.2d 578 (6th Cir.1975). One other crucial development occurred in the same time frame: The Kentucky State Board of Education ordered the merger of the Jefferson County and Louisville school systems effective April 1, 1975. See Cunningham v. Grayson, 541 F.2d 538, 539 (6th Cir.1976). This significant change mooted some of previous litigation and left Judge Gordon with a markedly simpler task in constructing a desegregation plan. F. Judge Gordon’s 1975 Desegregation Plan Only thirteen days after the Sixth Circuit’s mandamus on July 17, 1975, Judge Gordon brought forth a desegregation decree designed for the start of school the following month. See Newburg Area Council, Inc. v. Board of Education, Nos. 7045 & 7291, Judgment & Findings of Fact and Conclusions of Law (W.D.Ky. July 30, 1975) [hereinafter 1975 Judgment & 1975 Findings, respectively]. The plan, which the Court shall refer to as the 1975 Decree, contained nine “integral” operational components: “student assignments; schools to be closed; procedieres relating to hardship; method of transportation; assignment of school employees, including teachers, administrators and other certified personnel; human relations programs; transportation schedules; procedures for enforcement and implementation; and monitoring and reporting procedures.... ” 1975 Judgment at 1. Predictably, five of the nine parts addressed the process of determining which students would attend which schools and how to transport them there. While the Judgment listed the specific areas detailed by the plan, the Findings reveal a more subtle hierarchical structure. In the top tier of that hierarchy, Judge Gordon prescribed four guiding principles or, in his words, “four factors essential to any plan which would carry out the mandate of the Sixth Circuit.” 1975 Findings at 2. These essential factors were stability, equity, predictability, and simplicity. Judge Gordon expanded upon each of these concepts by providing short definitions. The concept of stability, Judge Gordon explained, required that the plan be capable of extending over a “number of years.” Id: He eschewed a plan that would require “constant revision from year to year” because of the accompanying “damage [to] public confidence” and to the “quality of education.” Id. By using of racial composition guidelines, with maximum and minimum ratios, he hoped to “insure stability over an extended period.” Id. The plan must “treat students within racial categories with equity.” Id. To provide greater clarity, Judge Gordon offered that “equity” meant that “[n]o person or student should be required to bear an unreasonable or disproportionate burden in the desegregation of the schools.” Id. Racial guidelines formed the most important part of his plan. He set out two separate and specific guidelines which formed the primary operational elements of the desegregation decree. Finally, Judge Gordon specified that the “method for selecting students to be transported for the purpose of this desegregation plan insures that every student, within racial categories, participates as equally as possible.” Id. at 3. This final point reiterated and operational-ized the concept of equality. Next, the plan contained detailed requirements for each of the nine integral components. Under the heading of “Student Attendance Areas, School Closings, and Clustering,” the desegregation plan described the basic approach to desegregation. See id. at 4-6. While this section of the plan contained such details as a list of schools to close and a method transition from junior high schools to middle schools, its core focused on more general desegregation principles. Interestingly, Judge Gordon began this section of the plan by explaining that school officials would need to adjust the plan to reflect revisions in the demographic data. Next Judge Gordon described the new student attendance areas which involved a clustering system to achieve desegregation by busing students among the various schools in each cluster. See id. at 6. The next section of the plan, entitled “Student Assignment Methodologies,” detailed how school officials would identify students for transport in each school year. See id. 6-11. Here, Judge Gordon described an approach that came to be known as the “alphabet plan.” Under this system, whether students attended their “district school” or whether they were bused in each year depended upon the first letter of their last name. The plan included an especially detailed transportation logistics program with provision for monitors on all buses transporting students “for the purpose of desegregation.” Id. at 15. Judge Gordon provided special procedures for first graders, exempting them from busing during the first quarter of the school year. See id. 6-7. Eventually, because of the limited availability of buses, Judge Gordon exempted first graders from the plan for the first two years. See Haycraft v. Board of Educ. of Jefferson County, 585 F.2d 803, 804 (6th Cir.1978). The remainder of Judge Gordon’s plan addressed items of great importance at the time, but which may have little role in the current litigation. Judge Gordon required that the school system assign certificated staff “so that the racial composition of a specific school staff [did] not indicate that the individual school was intended exclusively for white students or black students.” 1975 Findings at 14. The plan further provided that, in all areas of the system, the racial make-up of the staff (including teachers) should “parallel the racial composition of the staff in the entire system.” Id. Several sections of the plan detailed Judge Gordon’s power to monitor and enforce the desegregation process through the appointment of a Magistrate or Special Commissioner. Finally, Judge Gordon rounded out the enforcement sections by cautioning the public to follow his orders and by explaining his intent “to guarantee the safety of the children affected by my judgment.” Id. at 22. Judge Gordon’s desegregation plan was appealed on multiple fronts. The Sixth Circuit consolidated the various challenges and affirmed Judge Gordon. See Cunningham v. Grayson, 541 F.2d 538 (6th Cir.1976). That opinion provided some crucial guidance on the validity of the racial composition guidelines. The Sixth Circuit explained that the plan permissibly employed flexible ratios, or ranges, based on the racial composition of the student population of the school system. See id. at 542. To have promulgated rigid percentages would have been an abuse of discretion. See id. On the other hand, even with the range of percentages, the district court could not require “year-to-year realignment to correct non-state-action caused divergencies from the racial guidelines.” Id. The Cunningham court rejected any contention that the absence of black majority schools under the guidelines posed a constitutional problem. Finally, the court considered and rejected a challenge to the plan on the grounds that it burdened black students disproportionately. After initial implementation, Judge Gordon modified the desegregation plan a number of times in both large and small ways. One of the district court’s adjustments led to yet another round of litigation. In 1976, Judge Gordon ordered the transportation of additional black students to achieve desegregation of the system’s elementary schools. The Board objected on the grounds that the district court violated the rule established by Pasadena City Board of Education v. Spangler, 427 U.S. 424, 434-36, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), which prohibited a district court from requiring perpetual readjustment of attendance zones following the district’s compliance with the order. Judge Gordon found that Spangler did not apply because the Board had never come into compliance in the first case. The Board appealed and the Sixth Circuit affirmed Judge Gordon. See Haycraft v. Board of Educ. of Jefferson County, 560 F.2d 755, 755-56 (6th Cir.1977). G. Judge Gordon Ends Active Supervision of Schools in 1978 Judge Gordon spent three years actively overseeing the 1975 desegregation plan. In the Spring of 1978, he took up the question of closing the case. On June 15, 1978, Judge Gordon removed the consolidated case from the court’s active docket and declared the public schools of Jefferson County unitary. See Haycraft v. Board of Education of Jefferson County, Nos. 7045 & 7291, Memorandum Opinion & Final Judgment (W.D.Ky. June 15, 1978) [hereinafter 1978 Mem.Op. & 1978 Final J., respectively]. A central question for this Court is what to make of the 1978 decision. Judge Gordon began his 1978 opinion by “declaring the complete successful implementation of the Court’s desegregation order herein of July 30, 1975, as amended.” 1978 Mem.Op. at 1. The Board, he found, had faithfully executed the plan by achieving pupil desegregation, staff desegregation, and compliance with the monitoring process. For example, Judge Gordon effusively praised the Board’s good faith efforts to comply with the racial composition guidelines, to meet the court’s monitoring requirements, to improve the implementation of the order, and to bring state lawsuits to ensure the success of the desegregation plan. See id. at 4-8. He lauded the Board’s efforts to achieve substantial compliance with the racial composition guidelines at every school for at least a substantial period since the imposition of the 1975 Decree. See id. at 9 & 11. He rejected the argument that classroom segregation undermined school integration. Classroom racial composition, he found, depended upon individual student choice rather than state action. See id. 12-16. In the paragraphs on staff desegregation, Judge Gordon found the system in “substantial conformity” with the 1975 order. Id. at 16. Accordingly, Judge Gordon declared that “implementation of [the] amended desegregation order has produced a unitary school system in Jefferson County, Kentucky.” Id. Throughout the opinion, Judge Gordon focused on the crucial importance of the racial composition guidelines, referring to them as the “primary touchstone or determinant,” id. at 4, of the desegregation order. He reiterated that the purpose of the desegregation plan was to “radically alter the racial composition of virtually every school in the school system.” Id. He described the racial guidelines as central, not only in producing those radical changes, but also in “assaying whether or not the school system, upon implementation of the desegregation plan, had indeed become a unitary school system.” Id. While Judge Gordon explicitly ended some components of the plan and impliedly ended others, he clearly intended to continue some aspects of the order. The opinion is replete with reference to the “continuing nature” of the 1975 Decree, its ongoing “good faith implementation” and about the Board’s assuming the “yoke” of responsibility for the ongoing order. Surveying the entire Memorandum and the Final Judgment, there is no doubt that Judge Gordon closed the door on his “intimate involvement with the administration of the Jefferson County school system. 1978 Mem.Op. at 19. In doing so, he began the process of returning to the Board ‘the plenary power ... to set educational policy.’ ” Id. He also left some portions of the desegregation decree in place. Exactly what portions remain and their legal effect are among the important questions which the Court will answer in this Memorandum. H. Judge Ballantine Declines Not to Reopen Case in 1985 The final relevant decision came down in 1985. At that time a number of the original plaintiffs petitioned the Court to reopen the case and require the Board to expand its integration efforts. They argued that the Board was not doing enough. Judge Ballantine declined to “restore the case to the active docket for the purpose of modification of the final judgment and desegregation order.” Haycrafb v. Board of Education of Jefferson County, Nos. 7045 & 7291, Memorandum, at 1 (W.D.Ky. Sept. 24,1985) [hereinafter 1985 Mem.Op.]. Judge Ballantine began by approvingly tracing the Board’s continuing efforts to maintain Judge Gordon’s racial balance percentages. See id. at 2-3. He opined that the “original alphabetical assignment of students was at best only temporarily effective.” Id. at 2. For example he noted a number of demographic changes that necessitated several innovations enacted by the Board to ensure its compliance with the desegregation order: Because of changes in the demographic makeup of the community, by 1983 there were a number of schools which no longer met the 1975 guidelines. Thereafter, in 1984, with the assistance and advice of a representative citizens committee and other interested persons and organizations, the school board developed a plan by which students are assigned based on locations of their residence. In order to achieve an appropriate racial balance in each school, the perimeters of each school’s attendance zone are, of necessity, somewhat arbitrary, even to the point of gerrymandering. In addition to the redrafting of school zone boundaries, so-called “magnet” schools were established. These innovations resulted in restoring the racial balance mandated by Judge Gordon. Id. at 3. These modifications apparently did not please at least some of the original desegregation plaintiffs. Judge Ballantine’s refusal to reopen the case rested entirely on Judge Gordon’s 1978 decision. He characterized that decision as embodying Judge Gordon’s “judgment holding that the dual system had been eliminated” and as demonstrating Judge Gordon’s “satisfaction that there remained no vestige of either de facto or de jure segregation in the Jefferson County schools.” Id. at 5-6. The judge rejected the motion to reopen the case on the grounds that the plaintiffs introduced no evidence that the Board’s actions led to resegregation. See id. at 7. As Judge Ballantine explained: “This Court reads [Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976) ] as proscribing judicial intervention for the sake of supervision. The common thread of all the cases cited is that once the constitutional violation has been remedied, absent a showing of it’s renascence, the federal courts must not interfere with the traditional functions of the school board.” Id. at 8. Because he ruled in favor of the Board, one might interpret Judge Ballantine decision as an endorsement of the Board’s arguments. That was not the case. The Board vigorously argued that Judge Gordon’s 1978 finding of unitariness dissolved a preliminary injunction. See generally Defendants’ Response to Plaintiffs’ Motion to Restore Case to Active Docket for the Purpose of Modification of Final Judgment and Desegregation Order & Defendants’ Rebuttal Memorandum, Haycraft v. Board of Education of Jefferson County, Nos. 7045 & 7291, (W.D.Ky. Sept. 24, 1985). Nowhere in his decision did Judge Ballan-tine address these specific substantive arguments advanced by the Board. Like his predecessor, Judge Ballantine may have recognized that an element of ambiguity acts powerfully. Each judge skillfully held out the threat or possibility of future intervention to ensure continuation of existing policies. Since the Board continued to follow the essence of the Decree, Judge Ballantine undoubtedly saw no reason to interject himself. Whatever Judge Gordon ordered, Judge Ballantine left unchanged. Since 1985, the Board has twice changed its assignment plan. In 1991, the Board eliminated the alphabet plan and mandatory busing entirely and instituted a student choice system. See Stipulated Exhibit # 19, Detailed Description of the District’s Managed Choice Student Assignment Plan, at 1 (not dated). In 1996, the Board adopted the current plan. III. The Current Student Assignment Plan A lengthy process of expert consultation and public input shaped formulation of the 1996 “managed choice” plan (the “Student Assignment Plan”). See generally Stipulated Exhibit # 14, Consultant’s Report on the Current Student Assignment Plan (Oct. 24, 1994); Stipulated Exhibit # 15, Student Assignment Monitoring Committee Presentation (March 11, 1996); Stipulated Exhibit # 16, Student Assignment Plan, Analysis of Community Forum Responses (Apr. 2, 1996); Stipulated Exhibit # 17, Student Assignment Survey, Summary of Findings (July 1996). The present plan is the Board’s effort to accommodate a range of competing interests, including allowing parents the opportunity to participate in the selection of their child’s school, affording stable and integrated student assignments, and offering specialized programs including magnet schools, optional programs, and career academies. Overall, the plan includes an impressive array of educational opportunities for students of all interests and abilities in facilities throughout the county. See Stipulated Exhibit # 19 at 1. The present plan begins with four goals: 1. The school district shall maintain educational and financial equity among all school children in the district by providing substantially uniform educational resources to all students in the district regardless of the location of their school, the racial composition of their school, or the type of educational program in which they are enrolled.... 2. ... All Jefferson County Public Schools students will perform at higher levels of academic achievement in areas of basic skills and critical thinking skills in a racially integrated learning environment. 3. The school district shall make provisions for staff development which prepares all staff to work successfully with all students regardless of racial, ethnic, and cultural backgrounds.... 4. The school district shall maintain and update its current staff integration goals and practices and shall continue to actively seek more African-American teachers, counselors, and administrators. Stipulated Exhibit # 18, Memo From Superintendent Daeschner, at 5 (Aug. 26, 1996). As with Judge Gordon’s 1975 plan, the 1996 plan revolves around racial composition guidelines. It requires that each school have a black student enrollment at least 15% and no more than 50%. See Stipulated Exhibit # 18 at 5-6; Stipulated Exhibit # 19 at 2. This reflects a range above and below the system-wide average enrollment of approximately 30% black students. The actual process of assigning a student involves the interaction of each student’s choice with the racial composition guidelines, and with the space limitations of each school or program. The racial guidelines influence several points of the student assignment process. First, the guidelines shape attendance boundaries that determine “resides” areas. Each student has a “resides school” serving his or her home address. This school is the default school for assignment purposes. The Board assigns a student to the resides school unless: (1) the student gains admission to another school through the application process, (2) the student has a special programmatic need, (3) the student’s resides school is at capacity, or (4) the “student’s placement would cause the resides school to be out of compliance with the District’s racial composition guidelines.” Exhibit # 18 at 8. At the elementary level, schools are clustered so that the combined attendance zones will produce a student population falling within the racial guidelines. At the secondary level, each school has its own attendance area (except for a small number of magnet schools, such as Central High School, which have no resides areas). If that attendance zone produces racial imbalance, the Board creates a noncontig-uous satellite attendance zone to bring students into that school and comply with the guidelines. These satellite zones all fall in predominantly black neighborhoods, causing the transportation of many black students to schools in white neighborhoods. No satellite zones require transportation of white students to schools in predominantly black neighborhoods. The racial composition guidelines also affect the application process. An elementary student may choose to attend the resides school (unless the racial composition guidelines prevent the student from attending) or may apply for a school in the cluster, for a magnet school or program, or for a transfer to a school in another cluster. Similarly, at the secondary level, an entering ninth grader may apply to any school in the district. Thereafter students no longer enjoy the open enrollment option, but they may continue to apply for magnet schools and other special programs. Students may also request a transfer. Middle school students enjoy a similar range of options. See generally Exhibit # 18. At all grade levels, however, the district limits student applications in several ways. Many magnet and optional programs have application requirements. These requirements sometimes include academic performance criteria and teacher recommendations. All schools and programs have space limits. And, all schools observe and are ultimately governed by the racial composition guidelines. See generally Exhibit #18. When the racial guidelines do come into play in the application process, they work to deny admission based on the student’s race. If the school lies near the 15% minimum black enrollment, it could accept black applicants but it would deny admission to a disproportionate number of non-black students. Conversely, if the school approaches the 50% maximum black enrollment, it would deny admission to a disproportionate number of black students. These actions maintain each school within the Board’s established racial guidelines and, thus, serve to advance the Board’s overall objectives. IV. THE BOARD REMAINS BOUND BY SOME ELEMENTS OF THE 1975 DESEGREGATION DECREE Three distinct questions emerge from this review of the litigation history of desegregation in Louisville and Jefferson County: Did Judge Gordon’s finding of unitariness terminate the desegregation decree? Which remedial components of the desegregation order remained in effect after 1978? Does the Board’s current student assignment plan comply with the continuing order? The Court will begin by discussing why Judge Gordon’s finding of unitariness and why his decision to withdraw from active supervision of the 1975 Decree did not constitute termination of the Decree. To do so the Court must first examine the Supreme Court’s understanding of the term “unitary.” A. Dowell Explains Provisional Unitariness Unitariness has multiple meanings. What Judge Gordon may have meant by his use of the term will teach us a lot about the shape of the Decree after 1978. The foremost guidance on the subject of unitar-iness is Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). Dowell provides some interesting parallels and important insights on many levels. Consequently, it makes some sense to explore the factual background of the case before considering its many lessons. See generally id. at 240-44, 111 S.Ct. 630 (providing a more complete version of the history of desegregation litigation in Oklahoma City). Desegregation in Oklahoma City began in 1963 when a federal court found the school board operated a dual system. See Dowell v. School Bd. of Oklahoma City Public Schools, 219 F.Supp. 427 (W.D.Okla.1963). Two years later, the court determined that neighborhood zoning efforts failed to remedy segregation. See Dowell v. School Bd. of Oklahoma City Public Schools, 244 F.Supp. 971 (W.D.Okla.1965). Seven years later, the district court imposed a desegregation plan on local school authorities. See Dowell v. Board of Education of Oklahoma City Public School, 338 F.Supp. 1256 (W.D.Okla.), aff'd, 465 F.2d 1012 (10th Cir.1972). In 1977, the Oklahoma City school board moved to close the case and the court granted the motion in an unpublished decision. Almost a decade later, in 1985, the original plaintiffs moved to reopen, contending that the board’s new student assignment plan returned the district to segregation and that the system had never achieved unitariness. The court concluded that the 1977 decision was res judicata on the question of unitariness and, furthermore, that court-ordered desegregation must end. See Dowell v. School Bd. of Oklahoma City Public Schools, 606 F.Supp. 1548 (W.D.Okla.1985). On appeal, the Tenth Circuit reversed, explaining that the 1977 decision did not terminate the 1972 desegregation order but, instead, merely ended the district court’s active supervision. Accordingly, the appellate court remanded to allow the plaintiffs to challenge the new student assignment plan as violative of the desegregation order. The Tenth Circuit also held that the district court would need to decide whether to lift or modify the order. See Dowell v. School Bd. of Oklahoma City Public Schools, 795 F.2d 1516 (10th Cir.1986). On remand, the district court concluded that the board had continued desegregation in good faith even though the original desegregation plan had become somewhat unworkable. The court further found that segregation, if it existed, was caused by private decision-making and economics not linked to prior school segregation. This conclusion led the district court to vacate the desegregation order. See Dowell v. Board of Education of Oklahoma City Public Schools, 677 F.Supp. 1503 (W.D.Okla.1987). Again, on appeal, the Tenth Circuit reversed and explained that, under United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), the district court should not have lifted the desegregation decree absent a showing of “ ‘grievous wrong evoked by new and unforseen conditions.’ ” Dowell v. School Bd. of Oklahoma City Public Schools, 890 F.2d 1483, 1490 (10th Cir.1989) (quoting Swift, 286 U.S. at 119, 52 S.Ct. 460). The Tenth Circuit explained that, without the desegregation decree, a number of schools in Oklahoma City would again become racially identifiable one race schools. The appellate court, thus, reasoned that circumstances had not changed sufficiently to permit modifying or lifting the desegregation order. See id. at 1504. The Supreme Court granted the board’s petition for certiorari to resolve conflicts over the meaning of unitariness and over the standards for dissolving desegregation orders. In its opinion, the Supreme Court began by considering the meaning of uni-tariness. The Court stated simply that the lower courts had “been inconsistent in their use of the term ‘unitary.’ ” 498 U.S. at 245, 111 S.Ct. 630. In some cases, a determination of unitary status meant that the school system had “completely remedied all vestiges of past discrimination.” Id. According to the Court, when used in this manner, unitariness meant that the school district has met the mandate of Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), and Green v. New Kent County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). In other cases, however, unitariness has meant no more than a finding that a board operated a “school district that has currently desegregated student assignments, whether or not that status is solely the result of a court-imposed desegregation plan.” 498 U.S. at 245, 111 S.Ct. 630. Crucially, the Dowell Court explained that, under this second definition of unitariness, a school district might still suffer from the continuing effects of segregation. In the Court’s words, “such a school district could be called unitary and nevertheless still contain vestiges of past discrimination.” Id. The Court cautioned that it was a “mistake to treat words such as ‘dual’ and ‘unitary’ as if they were actually found in the Constitution.” Id. at 246, 111 S.Ct. 630. The Court doubted the utility of providing precise definitions for the terms. See id. Interestingly, Dowell did not disapprove of either use of the term unitary; instead, it simply noted the different uses and went on to examine the effect of each. After this analysis, the Supreme Court turned its attention to the effect of the district court’s 1977 decision and its finding of unitariness. With a piercingly concise statement, the Court explained that the 1977 decision did not provide conclusive guidance: “The District Court’s 1977 order is unclear with respect to what it meant by unitary and the necessary result of that finding.” Id. Thus, the Court upheld the Tenth Circuit’s conclusion that the district court did not end the desegregation order in 1977 but instead ended only the active intervention of the federal court. The Court rested its conclusion on Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), which held that all parties deserve an unambiguous statement when a court terminates a desegregation order: “If such a decree is to be terminated or dissolved, respondents as well as the school board are entitled to a like statement from the court.” 498 U.S. at 246, 111 S.Ct. 630. Thus, Doivell uncritically describes a form of “provisional” unitariness justifying the withdrawal of federal court supervision, but not constituting a finding on the elimination of all vestiges. Rather than amounting to a corruption of the term unitary, the conclusion that many courts actually intend a provisional finding of uni-tariness makes tremendous sense. As the Dowell Court powerfully explained, federal courts should respect the important value of local control over education. Accordingly, the courts should make the transition away from federal court supervision as soon as appropriate. The withdrawal of the federal court’s active involvement tests a school board’s genuine good faith by allowing it to make unsupervised decisions. This in turn helps create an appropriate transition period during which a school board continues to act under the mandate of a desegregation order after a district court has withdrawn its active supervision. B. Judge Gordon Did Not Terminate Desegregation Decree. After considering the foregoing analysis, the Court concludes that Judge Gordon’s 1978 decision falls into the category of provisional unitariness. By its very nature, Judge Gordon’s Memorandum contained a necessary element of imprecision, which may have been purposeful, creating the ideal tension between the promise of autonomy and the threat of supervision. Remember, Judge Gordon did not have the benefit (or the burden) of the jurisprudence up through Dowell. The clever ambiguity of judges like Gordon and Ballantine, in fact, has helped create the kind of transition Dowell envisioned. At some points in the opinion, Judge Gordon appears to have stated that the Board had eliminated all vestiges. The opinion is replete with references to either the complete successful implementation of the order or to the school district’s compliance with the order. In other places, however, Judge Gordon suggested that problems persist by cautioning the Board that it must continue to comply with the continuing desegregation order. Judge Gordon did reach clear findings about the Board’s good faith. But, by perpetuating the desegregation decree, he left a muddy picture of whether the school system had “completely remedied all vestiges of past discrimination.” Dowell, 498 U.S. at 245, 111 S.Ct. 630. Judge Gordon’s continuation of the Decree suggested that, although the school system “currently desegregated student assignments,” id., the system might appear unitary only because of “a court-imposed desegregation plan,” id. Thus, the best the Court can say is that the 1978 decision fits as neatly as possible within the provisional unitariness category. The precise delineation of Judge Gordon’s findings on unitariness do not matter. Functionally, Judge Gordon’s finding was clearly one of provisional unitariness ending only the active supervision of desegregation by the district court along with certain specified and unspecified portions of the decree. As the Dowell Court explained, Spangler requires an unambiguous articulation of whether a desegregation decree is terminated or whether it continues. Without a doubt, Judge Gordon stated this fact unambiguously — he intended some portions of the decree to continue. Any number of passages from the opinion amply support this conclusion. For example, in the pupil desegregation portion of the opinion, Judge Gordon stated: The requirement of the Fourteenth Amendment of the United States Constitution limiting the power of the district courts to redress only unconstitutional state action after a school system has, through remedial action, been made unitary will not impede this Court from enforcing such portions of its desegregation order as are of a continuing nature. 1978 Mem.Op. at 12. Admittedly, this same section causes as much confusion as clarity. While Judge Gordon implied that he would continue to enforce his order, he had just stated in the previous paragraph that the Jefferson County schools had attained “compliance as measured against the ‘guidelines’ for pupil racial composition.” Id. He then explained that: Thus, the Jefferson County school system has now moved to the “post-compliance” state of implementation of the Supreme Court’s decision in [Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976) ]. Accordingly, the decision in Cunningham v. Grayson, 541 F.2d 538 (6th Cir.1976) now controls the question of the power of this Court to compel year-to-year realignment. Id. (citation omitted). An even more convincing statement of Judge Gordon’s intent to continue some aspects of the desegregation order appears in the section on monitoring: The Court has considered the many suggestions for various forms of monitoring of further implementation of the desegregation order and has determined that as the system has now been determined to be a unitary one, it must accept immediately the yoke of monitoring its own activities as they affect the constitutional rights of young people as adjudicated in this action. The school board and its administration are expected by this Court to continue to implement those portions of the desegregation order which are by their nature of a continuing effect. It is anticipated that the defendants will comply with the desegregation order; otherwise, this Court would not consider withdrawing its active monitoring of the implementation of its desegregation order. Id. at 18. Thus, Judge Gordon seems