Full opinion text
COWAN, District Judge. ORDER OF JUNE 16, 1978 Brief History of Case and Essential Facts This case seeking desegregation of the Galveston Independent School District (GISD) was filed on August 18, 1959. On January 23, 1961, the Court entered.an order instituting a “stair-step,” year^-at-a-time, freedom-of-choice desegregation order similar to the orders entered in many co’urts in that era. GISD exceeded the schedule established in the order of January 23,' 1961. The case then lay dormant for over 14 years. During this 14-year period, the high school grades (9,10, 11 and 12) were totally integrated by the establishment of a single, centrally located high school. Ball High has become a totally integrated, multi-ethnic educational institution where any child of any race can receive as fine an education as his own motivations, talents and energy permit. Without court interference, GISD has totally integrated its eighth grade — by the establishment of one central eighth grade, which has also (the Court is advised by the Court’s Tri-Ethnic committee) become a successful, totally integrated, multiethnic school which is a credit to this pluralistic community. The middle schools (grades 6, 7, and 8) have also been totally and fully integrated. In the protracted history of this litigation none of the parties has ever contended that the faculty or administration of GISD has not been effectively integrated. This case was reactivated on May 23, 1975 by GISD’s filing a document entitled “Defendant, School District’s Motion (1) to Substitute Parties Defendant; (2) to Imp-lead Additional Defendants; (3) for Leave to Plead for Injunctive and/or Declaratory Relief and, alternatively, for Modification of the Court’s Existing Order; and (4) to Suggest the Appointment of New or Additional Representative Parties.” The principal event which precipitated the reactivation of this ancient case was a dispute between GISD and the Department of Health, Education and Welfare (HEW) concerning ethnic disproportions in three elementary schools (Carver-Goliad-Washington), located in the central portion of the City of Galveston and the effect which the disproportion had upon GISD’s entitlement to ESAA funds. The controversy between GISD and HEW was ultimately submitted to this Court, resolved at the district court level, and is currently the subject of an appeal to the Fifth Circuit Court of Appeals. The GISD — HEW controversy was severed by the court order on May 26, 1976 and administratively is carried here as Civil Action No. G-2643A. This case is carried as Civil Action No. G-2643. This opinion does not purport to address itself to the still pending controversy between GISD and HEW but relates entirely to issues raised by plaintiffs’ action in connection with a school construction program (authorized by a bond issue passed by voters of GISD in 1975) and with the issues which must be resolved before this litigation may ultimately be terminated. Plaintiffs have asserted that GISD should be restrained from using the new facilities until a satisfactory plan is adopted for the elimination of all vestiges of the previously segregated system in the elementary school system. After the new schools, which are currently in construction, are completed, the three schools, Washington-Carver-Goliad, will be abandoned. Washington is already closed. A large, very modern new school — L. A. Morgan — will be located in the general area where Washington-Carver-Goliad were previously located. GISD will then have six elementary schools: Alamo, Burnet, Morgan, Parker, Rosenberg, and San Jacinto . It is projected that during the 1978-79 school year, each of these elementary schools will have the following racial mix: GISD ELEMENTARY SCHOOL MEMBERSHIP PROJECTED: .1978-79 (Prepared April 1978) Total ALAMO AA 21 22 18 25 15 31 NA 40 43 39 24 33 32 MA 32 35 30 29 27 37 132 211 190 24.76 39.58 35.64 TOTAL 93 100 87 78 75 100 533 BURNET AA 32 37 55 45 48 36 NA 42 45 37 55 34 53 MA 26 28 26 17 21 25 253 266 146 38.21 40.18 21.60 TOTAL 100 110 118 117 103 114 662 MORGAN AA 10 12 7 8 9 9 NA 90 91 105 77 95 105 MA 30 29 19 22 24 22 TOTAL 130 132 131 107 128 136 55 565 14b 764 7.19 73.69 19.10 PARKER AA 83 87 93 106 87 88 NA 18 18 18 17 21 29 MA 14 15 17 10 18 16 544 121 90 72.05 16.02 11.92 TOTAL 115 120 128 133 126 133 755 GISD ELEMENTARY SCHOOL MEMBERSHIP PROJECTED: 1978-79 (Prepared April 1978) K 1 2 3 4 5 Total % ROSENBERG AA NA MA TOTAL 30 26 45 32 ,37 ',42 28 37 28 28 ''21 30 24 46 47 40 48 39 101 106 112, 103 106 100 206 157 265 628 32.80 25.00 42.19 SAN AA JACINTO NA MA TOTAL 18 60 27 20 63 29 25 43 23 31 47 21 16 24 61 49 22 20 105 112 .91 • 99 99 93 134 323 142 599 22.37 53.92 23.70 DISTRICT AA NA MA TOTAL 194 210 235 ,257 203 225 1324 33.595 276 288 270 241 274 292 1641 41.639 174 182 162 139 160 159 976 24.765 644 680 667 637 637 676 3941 Prior Orders, Hearings and Issues Remaining Since the filing of plaintiffs’ motion relating to the new schools, this Court has entered orders which were filed or announced in open court upon the following dates: September 9, 1977, March 1, 1978 and April 27, 1978. These orders are incorporated by reference herein and for the purposes of publication, distribution to the Tri-Ethnic committee, the parties and interested members of the public will be appended to this order as Exhibits A, B and C. This Court has conducted hearings September 6-9, 1977, and on December 1,. 1977, January 10, 1978, March 24, 1978, April 21, 1978, May 5, 1978 and June 2, 1978.' ’ Through its Board GISD has elected' to remove all vestiges of the previous segregated system by implementing new. transfer and minority-to-majority transfer programs, and by making the new li A.' Morgan school, which will commence operation in September, 1978, into a magnet. school which will (because of the excellence .of its programs and its staff) attract students of all races. Frank Vollert, Superintendent of Schools, has testified that it is his goal to create a situation at Morgan whereby the racial ratio at that school will be approximately that of the elementary school population of the entire district. Mr. Vollert and Jewel Banks, the principal of the new school, have testified persuasively that the Board has given and is giving its full support and approval — both moral and financial — to this goal. The Court has invited the GISD Board to attend the meetings of this Court’s Tri-Ethnic Committee and the Board has done so; and the individual Board members have, in the presence of counsel, communicated with the Court and its Tri-Ethnic Committee. The Court finds that the GISD Board has adopted Mr. Vollert’s stated goal. The Court is also persuaded, and specifically holds, that the goal is a realistic one and can be achieved within the foreseeable future. Six issues remain for decision. They are: 1. What time schedule should be established for achievement of the goal with reference to the Morgan school? 2. Should siblings of children who qualify for special instructional programs be exempted from GISD’s transfer program so that a family with two or more elementary school children may place all elementary children in one school? 3. What programs should be instituted at the Morgan school to enable it to achieve the goal described by Mr. Vollert? 4. What type of “back-up” plan should be mandated or planned in the event the magnet school at L. A. Morgan does not achieve its goal of creating an integrated school? 5. When should this Court schedule a hearing to determine whether GISD may properly be decreed to have achieved unitary status? 6. What questions must be explored at the hearing contemplated by question 5 above? Schedule for Achievement of Goals The Supreme Court and the Fifth Circuit Court of Appeals have steadfastly insisted that every school district which previously operated a segregated system has an affirmative duty to take all steps practicable to eliminate all vestiges of the previously existing system “root and branch” now. (See “Discussion of Recent Authorities” below on page 16). The courts have, however, emphasized three other important principles: 1. Study of the court’s insistence in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) upon the use of “effective tools” and analysis of Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976) persuaded this Court that the Court should favor remedies which tend, if possible, to create permanent — not just temporary — integration. 2. The remedy prescribed must be appropriate to the specific constitutional violation found. Pasadena City Board of Education v. Spangler, supra. 3. The courts must balance the individual interest with the collective interest. Milliken v. Bradley, 418 U.S. 717, at 738, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). 4. School districts and courts must take all reasonable steps to minimize avoidable abrasions and dislocations. See Lemon v. Bossier Parish School Board, 566 F.2d 985, at 989 (5th Cir. 1978). This Court is persuaded that the best chance of making Morgan a permanently integrated school is through the magnet school approach. Court-compelled pairing and associated busing, which are constitutionally required in some circumstances, have not always produced the desired results. It is authoritatively recognized in this circuit that pairing and associated compulsory busing are not remedies of first resort. Lemon v. Bossier Parish School Board, 566 F.2d 985, at 989 (5th Cir. 1978). GISD has argued that to make the Morgan school work, it will be required to employ and train a specially qualified faculty, expend considerable funds and institute programs designed to attract Anglo-American and Mexican-American children to Morgan. GISD contends persuasively (and plaintiffs and amicus do not seem to dispute) that GISD must have some period of stability to accomplish this program. Amicus (HEW) does not challenge or contest the proposition that GISD, to make its magnet programs work, must be given some period to institute its program, train and employ a special faculty, educate parents and children concerning the advantages of the new school, and work out the unforeseeable problems incident to any new enterprise. Amicus and plaintiffs argue for a two-year period — a period supported by some but not all of the GISD Board members. GISD’s counsel argues that it should be given a four-year period of stability. Plaintiffs and intervenors are properly emphatic in their insistence that the program not take forever. Amicus HEW argues, on the basis of the experience in Richardson, Texas, that the shorter the period prescribed, the better the chances for success. The Court after hearing arguments from the parties and after detailed consultation with the Tri-Ethnic Committee has determined the following schedule (as a standard for minimum performance) will be instituted: By September 1978, the student body at Morgan shall, insofar as possible and practicable, meet GISD’s projection filed with the Court at the hearing of April: 21, 1978, that is: Anglo-American- .7.10%; Negro-American, 73.69%; Mexican-American 19.1%. By March 1, 1979, the percentage* of Black-American pupils at Morgan, shall not exceed 65% — the remaining 36% of the student population will be approximately equally divided between Anglo-American and Mexican-Americans. . By March 1, 1980, the percentage of Black-American pupils at Morgan shall not exceed 55% — the balance of the student population will be approximately equally divided between Anglo-Americans and Mexican-Americans. " * By September 30, 1981, the percentage of Black-American pupils at Morgan shall not exceed 50% — the balance of the student population will be approximately equally divided between Anglo-Americans and Mexican-Americans. It is, of course, obvious that GISD must strive to achieve the goal enunciated by Superintendent Vollert more rapidly than the schedule set forth above and that this schedule is a standard of minimum performance. In addition, demographic changes in the student population of-GISD could modify these figures. GISD obviously complies with the law if it achieves a racial mix at Morgan that is essehtiálly identical to that of the population of elementary pupils in GISD. This racial mix may well change from year to year. This Court’s reasoning with reference to this schedule is as follows: Any schedule of this nature is to some degree arbitrary because there is no objective standard to apply. The inherent arbitrariness is slightly mitigated by giving all parties and interested citizens an opportunity to be heard. GISD’s request for a period of stability is conceded by all parties to have some merit. The debate centers merely around the period of stability. The evidence before the Court as to the periods of time necessary in other magnet programs is as follows: Judge Max Taylor required the Richardson Independent School District to achieve integration in its magnet school in a two week crash program, and this challenge was the impetus which made the program a success. On the other hand, the Martin Luther King Laboratory School in Evanston, Illinois — which is to some degree a model for the Morgan school — apparently took seven years to achieve its integration goal. The Court has attempted to balance the evidence, the recognized competing interests and the arguments of the parties in establishing this time-table. The March 1, 1979 and March 1, 1980 dates have been selected because if the goals set for these dates are not met, sufficient time remains to implement new, different plans for the following September. In requiring this time-table, this Court is aware that the Court has no authority to decree that these percentages shall remain fixed and immutable forever. See Pasadena City Board of Education v. Spangler, supra. This Court does, however, have both the power and the absolute obligation under the law as enunciated in this circuit to require that these percentage goals be achieved as an initial step toward achievement of unitary status. See cases discussed below and particularly Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. at 24, 91 S.Ct. 1267. This is true, in part, because the so-called Vollert Plan, a plan for pairing and busing, has been held by this Court (on the basis of adequate evidence) to be a practicable plan which would, if implemented, probably immediately eliminate Morgan as an identifiably black school. The statement set forth in the last sentence of the previous paragraph is, however, only probably true — not certainly true. There is always a possibility that if pairing and the associated busing were decreed, the vast majority of the white students subjected to forced busing would exit the system. While it is true that fear of “white flight” cannot serve as an excuse for failing to integrate a school system, it is also true that “ . . . the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one race schools.” Swann, 402 U.S. at 26, 91 S.Ct. at 1281. One-race schools cannot be eliminated if the entire district evolved into a one race or two race district. Refusal to face this possibility would be blindness. Realistic evaluation of possibilities demands recognition of the fact that effective re-segregation by Anglo-American abandonment of the public schools has occurred in other communities. See Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975). Candor requires the recognition of one other consideration. The history of this district since 1970, and other districts in other parts of our nation, reveals that it may become virtually impossible to eliminate all vestiges of the previously existing dual system if voters are so disgruntled with their public schools that they refuse to continue to approve an adequate tax base and adequate financing. Carver-GoliadWashington were physical vestiges of the dual system. Their physical elimination became possible only because voters of all ethnic groups were willing to approve a bond issue in 1975 which had previously been rejected in 1971 and 1973. Without the new facility at Morgan and widespread public support for the public schools, talk about eliminating the vestiges of the prior desegregated system would be merely talk and real results would be impossible. Appropriateness of Remedy and Schedule in Light of Constitutional Violation This Court’s first duty in a case of this nature is to identify the specific constitutional violation. See Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977). The specific constitutional violation here arises from this history: In 1969 the GISD Board adopted a neighborhood school assignment program that would have achieved some degree of racial balance at all of the elementary schools in the district. The plan, insofar as it related to Goliad, Washington and Carver schools did not work. As the 70’s progressed, it was apparent that those schools became more and more racially identifiable as black schools. Mr. Edwards, a long-time member of the school Board and a totally credible witness, testified that when he became a Board member in 1973, the physical facilities at Goliad, Washington and Carver were run down, test scores at those schools were low, and the community perception was that these schools were inferior. The ability of the Board to grapple with the problem presented by Goliad-CarverWashington schools was limited by several factors. First, the failure of proposed bond elections in 1971 and 1973. Second, during the early 1970’s the Board was receiving conflicting messages from the various branches of the federal government. See discussion in Kelley v. Metropolitan County Board of Education, Tenn., 372 F.Supp. 528, at 543, 545 (M.D.Tenn.1973); see also Defendants’ Exhibits 13 and 15B in this record. Third, the Board, it appears to the Court, has at various times been simply too divided to take effective action. Fourth, the Board has not always had an accurate perception of its legal obligations with reference to the Carver-Goliad-Washington problems. These difficulties made it hard for the Board to grapple with the problem of the Carver-Goliad-Washington schools and perhaps impossible for it to totally solve these problems; but these difficulties, great" as they were, did not make it impossible to at least grapple with and attempt to solve the problem. The ability of the Board to solve the problem presented by the adjacent GoliadCarver-Washington schools increased- enormously in 1975 when the voters finally approved a bond issue which made it fiscally possible to abandon the antiquated GoliadWashington-Carver complex and build a magnificent new school at the Morgan site. The promotion and successful implementation of this bond issue was a great, positive step forward and has made it possible for the Board to move forward at last with a positive program to eliminate these “schools and their successor as vestiges of the old segregated system. , ' Justice Powell has wisely stated in his concurring opinion in Austin Independent School District v. U. S., 429 U.S. 990, at 994, 97 S.Ct. 517, at 519, 50 L.Ed.2d 603 (1976) that violations can occur because: . school authorities intentionally discriminated against minorities or simply failed to fulfill affirmative obligations to eliminate segregation. (Emphasis added). Applying Justice Powell’s language to this case, this Court now (as it was in September 1977) is persuaded that GISD’s Board has not at any material time discriminated intentionally against any minority. The successful integration of the high school, the middle schools, and the bulk of the elementary schools militates too strongly against an intent to discriminate.., The Board has, however, fallen constitutionally short through failure, in Justice Powell’s language “ . . .to fulfill affirmative obligations to eliminate segregation.” From 1970 until the relatively intensive and effective action commencing in April 1978, the Board has not taken - all steps practicable to eliminate segregation in the Carver-Washington-Goliad elementary schools. Were it not for the assertions of plaintiffs and Amicus here, it is likely that Morgan when its operation eommetfi.ced' in September 1978, would have simply been a merger of the students, the faculties and the problems of the Goliad-Carver-Washington schools. The constitutional violation is, this Court finds, clear. In addition, there is one other factor which militates against intentionally segregative action. The Board could well have concluded in good faith (although this Court thinks erroneously) that the racial mix at the Goliad-Carver-Washington schools was the result of residential patterns over which the Board had no control. The problem with such an approach is that the Board has a heavy burden to prove that the racial mix at the Carver-Washington-Goliad schools was the result of residential patterns. This burden has not been met. Chief Justice Burger, in Swann, in April 1971, used the following applicable language: in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority’s proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominantly of one race, they have the burden of showing that such school assignments are genuinely non-discriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part. 402 U.S. 1, at 26, 91 S.Ct. 1267, at 1281. In addition, the facts (established by GISD’s own witness Edwards) that the physical facilities, test scores and possibly the teaching staffs at Goliad-Carver-Washington were inferior or perceived by the community to be inferior, establishes that the Board did not from 1970 to April 1977 meet its duty to do everything practicable “ . . .to fulfill (its) affirmative obligations to eliminate segregation.” The Supreme Court (through Justice Burger in Swann) spelled out a varied assortment of tools, strategies and possible actions to eliminate the vestiges of a dual system. GISD’s Board has not, from 1970 until the last few weeks, availed itself of these tools (with reference to the Carver-Goliad-Washington problem) in an effective, aggressive manner — therein lies the constitutional violation. In view of the success of GISD in integrating the high school, the middle schools and the majority of the elementary schools without court compulsion, and the Court’s conclusion that the failure with reference to the Goliad-Washington-Carver schools is not the result of intentionally discriminatory action, it seems particularly appropriate that GISD be given an opportunity to desegregate Morgan by voluntary measures before mandating a remedy of final resort, i. e., pairing and associated busing. MONITORING This Court and its Tri-Ethnic Committee will monitor the progress of GISD toward achieving unitary status in the following manner. On the first Friday of each month at 12:00 noon (or such other time as may be set by the Tri-Ethnic Committee) the Court will, in the sixth floor courtroom of the U.S. Courthouse and Post Office Building, conduct a hearing to hear evidence concerning the progress of GISD. The Court will hear testimony from Mrs. Jewel Banks, Superintendent Vollert and such other witnesses as may be necessary to keep the Court and the Tri-Ethnic Committee fully advised concerning GISD’s progress toward unitary status. The Court is advised that GISD is employing consultants to aid in the Morgan school magnet program. At an appropriate time, after the consultants have become acquainted with the facts of this effort, the Court will hear testimony from these consultants. This Court is committed to afford GISD a period of stability to accomplish the Morgan School program, but if it appears to the Court, after full consultation with the parties, Amicus, and the Tri-Ethnic Committee, that progress is unsatisfactory, the Court reserves the right at any time — after notice and hearing — to enter such additional and supplemental orders as may be necessary. In addition, if it should appear from competent evidence — after notice and hearing — that the magnet school approach is not making real and substantial progress toward the creation of an integrated school at Morgan, the Court will be obligated to require the institution of a back-up plan of the type discussed in general terms below. Recent Authorities Discussed Study of five cases decided by the various panels of the Fifth Circuit Court of Appeals in the last six and one-half months reveal that there is little room for present debate as to the applicable law. As indicated above, one of the factors which has limited the Board’s effectiveness in dealing with the Carver-Goliad-Washington problem has been uncertainty and largely futile debate about the Board’s legal obligation. These recent five cases reveal that there is little justification for future debate about the law’s demands. On November 21, 1977, Circuit Judges Wisdom, Coleman and Tjoflat handed down their third opinion in United States v. Texas Education Agency (Austin III) 564 F.2d 162 (5th Cir. 1977). While the facts in Austin III are arguably distinguishable, it is notable that the Austin district’s proposed segregation plan was found wanting because segregation in the first five grades of certain elementary schools was left untouched. Institution of worthy bilingual and bi-cultural programs was held inadequate to meet the Board’s obligations. The panel held that where the natural and foreseeable result of Board action was to permit continued racial isolation of a large number of elementary school children, segregative intent by the Board would be conclusively presumed. The Fifth Circuit panel (it is apparent from its language) still favors a desegregation plan which Justice Powell describes as “remarkably sweeping,” requiring extensive cross-town busing of all students through eighth grade in schools which were over 50% minority or 90% Anglo. While this Court is persuaded that GISD’s Board in recent years has never been subjectively motivated by discriminatory intent, it is now readily perceivable, and the Court finds (in compliance with the analysis required by Austin III), that the natural and probable consequences of the inactivity of the GISD Board in connection with the Carver-Goliad-Washington schools from 1970 until the vigorous activity commencing April 1977 was to create a situation in which the condition of racial isolation at Carver-Washington-Goliad became progressively more marked. On January 11, 1978, Circuit Judges Goldberg, Clark and Roney decided Lemon v. Bossier Parish School Board, 566 F.2d 985 (5th Cir. 1978) which reversed Judge Edwin Hunter’s opinion appearing at 442 F.Supp. 935 (W.D.La.1977). Lemon is particularly significant for the light which it sheds upon the GISD problem. The district court opinion is the work of Senior District Judge Edwin F. Hunter, Jr., who has been district judge in Lake Charles, Louisiana, for many years. This Court is advised that he has supervised the integration, over a period of many years, of fourteen separate Louisiana Parishes. His experience in this area of endeavor is vast. A study of Judge Hunter’s opinion reveals that Bossier Parish was a large school district, with 18,000 scholastics. Every school in the district was integrated with the exception of Butler elementary school, which was located in an isolated and compact neighborhood. The neighborhood around Butler school was bounded on the south by railroad tracks and heavy industry; on the west by railroad tracks, .heavy industry and U.S. Highway 80; on the east by the Louisiana-Arkansas Railroad. Only four streets ran into the area. Over the years before Judge Hunter’s order in March, 1977, a number of efforts had been made to integrate Butler school. At one point the court had ordered that the only kindergarten in the Parish be located at Butler, and during the period that this was true, 168 Anglo-American students attended the kindergarten. As soon as the kindergarten program was established at other schools, all of the white students at Butler disappeared. During the 1973-74 school year, a portion of the Butler attendance zone was rezoned so as to include an area outside the isolated residential district in which Butler was located. This rezoning did not integrate the school. Ultimately the United States of America, which appeared in that case as an intervenor, filed a motion requesting supplemental relief and requesting the court to order an alternative method of student assignment which would effectively desegregate Butler Elementary School, the only remaining all-black school in Bossier Parish. Judge Hunter appointed a bi-ethnic committee to study the situation, allowed the intervention of a group of Black-American parents and clergymen interested in preserving Butler as a “walk-in neighborhood school.” This bi-ethnic committee unanimously recommended that Butler remain as a walk-in, neighborhood school despite the failure of all efforts to integrate the school. Judge Hunter, after obviously thoughtful deliberation, decided that the existence of this one elementary school serving 158 students in an isolated neighborhood was the result primarily of residential patterns over which the board had no control. Following the recommendation of his bi-racial committee and the Black-American intervenors, he denied the United States’ motion for supplemental relief and held that Butler would continue to exist as a neighborhood school despite its Black-American identifiability. The case for allowing Butler Elementary School to remain an all-black school was considerably stronger than the case which can be made for allowing Morgan to remain an identifiably black school. Butler was located in an isolated area — Morgan is not. Butler served only 158 students in a district containing 18,385 students — Morgan is a considerably larger school, a more integral part of the GISD elementary school program. Some previous efforts to integrate the Butler school had been tried and failed. No realistic efforts have ever been made to integrate the Goliad-Washington-Carver schools which are the predecessors of Morgan. The trial court, Judge Hunter, was willing to conclude that Butler’s racial identifiability was primarily the result of residential patterns over which the Board had no control — this trial Court, the writer, is here unwilling to draw this conclusion on the basis of the evidence adduced thus far. Judge Hunter’s bi-ethnic committee strongly recommended the retention of Butler as a predominantly black school. This Court’s Tri-Ethnic Committee has made no such recommendation. The Black-American intervenors (interested parents and clergymen) in Lemon strongly recommended the retention of Butler, knowing that it would remain predominantly black — the intervenors here take a contrary view. The most significant fact is that despite the powerful case which could be made for the retention of Butler as an all-black neighborhood school, the Fifth Circuit Court of Appeals (through a panel consisting of Judges Goldberg, Clark and Roney) reversed Judge Hunter’s conclusion that Butler Elementary School could remain as an all-black elementary school in an isolated black neighborhood. The Fifth Circuit panel held forthrightly and without equivocation that Butler must be integrated or closed. Since other desegregation strategies had been tried and failed, it is obvious from the opinions that Butler could be integrated only by either pairing and busing, or by busing white children already transferred to Butler. The Fifth Circuit panel rejected Judge Hunter’s conclusion that the racial identifiability was attributable solely to residential patterns and held that despite the isolated, geographic character of Butler, pairing and busing were constitutionally required. One other significant aspect of Lemon should be noted. Judge Hunter had concluded, undoubtedly on the basis of his years of experience, that pairing would not in fact desegregate the Butler school. While his reasoning in this regard is not made-explicit by his opinion, it is reasonably obvious that Judge Hunter’s reasoning must have been that white students in other districts would drop out of the public school system rather than be bused to Butler. Judge Hunter’s conclusion in this regard was rejected by the Fifth Circuit panel, using the following language: The district court concluded that pairing Butler with nearby Bossier Elementary would not achieve desegregation of the Butler' school. This conclusion is clearly erroneous. Our examination of the record indicates that pairing would effectively desegregate Butler Elementary ‘without creating impractical attendance zones or inordinate transportation problems.’ Bradley v. Board of Public Instruction of Pinellas County, 431 F.2d 1377, 1381 (5th Cir. 1970), cert. denied, 402 U.S. 943, 91 S.Ct. 1608, 29 L.Ed.2d 111 (1971) . Although pairing might not be the remedy of first resort, ‘where all-black or virtually all-black schools remain under a zoning plan, but it is practicable to desegregate some or all of the black schools by using the tool of pairing, that tool must be used.’ Flax v. Potts, 464 F.2d 865, 868 (5th Cir.), cert. denied, 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299 (1972) , quoting Allen v. Board of Public Instruction, 432 F.2d 362, 367 (5th Cir. 1970). United States v. South Park Independent School District, 566 F.2d 1221 (5th Cir. 1978) involved a school district in the Eastern District of Texas in which the United States, as plaintiff, contended that a 1970 desegregation plan was not having its intended result. The principal areas of difficulty were eight predominantly black schools, and a set of facts from which it could be concluded that principals were being assigned upon a racial basis. The Honorable Joe J. Fisher, Chief Judge of the United States District Court for the Eastern District of Texas rejected the government’s contentions and held that South Park Independent School District had achieved unitary status. Judge Fisher’s finding was reversed by a Fifth Circuit panel consisting of Judges Coleman, Tjoflat and Fay, primarily on the basis that Judge Fisher’s findings of fact with reference to the eight predominantly black schools were not sufficiently specific to enable the Fifth Circuit panel to determine whether in fact the eight all-black schools were the result of residential patterns over which the board had no control, or on the contrary were the result of previously segregative practices. Judge Fay’s language at 566 F.2d 1225 is revealing and instructive for GISD. Judge Fay states: The Supreme Court said in Swann that the constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole. Id. 402 U.S. at 24, 91 S.Ct. 1280. However, the Court was very careful to point out that situations justifying one-race schools are rare and must be carefully scrutinized. (Emphasis added.) Review of the record in this cause reveals that nothing has been done to attempt to eliminate the racial identifiability and perceived inferiority of Goliad-WashingtonCarver schools from 1970 until the recent intense activity designed to implement a magnet school program at Morgan; the exception, of course, being the very significant action in promoting and selling the bond issue in 1975. An objective observer, or reviewing court, might well challenge this Court’s conclusion that despite this record of inactivity, the Board has never been, at recent or material times, motivated by segregative intent. This Court’s finding with reference to intent, however, is predicated upon a number of factors, discussed in more detail in this Court’s order of September 9, 1977. There is some suggestion in this record that the Board’s failure to do everything practicable to eliminate segregation “root and branch” may, at times, have been atr tributable to a mistaken belief that the Supreme Court of this nation and the Fifth Circuit Court of Appeals might be softening the resolute, determined attitude revealed by the Green Trilogy: Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); and Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968); and Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). There has even been some hint in the arguments addressed to this Court that the Fifth Circuit en banc might view desegregation cases differently than the panels which have decided such cases. This series of five cases decided over the last six and one-half months should dispel any lingering uncertainty concerning the resolute determination to fulfill the promises of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), Green v. County School Board, supra, Alexander v. Holmes County, supra, and Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). Another case in which a trial judge erroneously concluded that a school district had satisfied its obligation to achieve unitary status was Davis v. East Baton Rouge Parish School Board, 570 F.2d 1260 (Fifth Circuit, 1978). East Baton Rouge Parish district contained 110 schools, 20 of which contained solely black children. A panel consisting of Judges Coleman, Tjoflat and Fay held that the trial court’s order declaring the district unitary was erroneous, stating: At a minimum, the district court on remand must evaluate whether any of the essentially one-race schools would be eliminated by the remedial altering of attendance zones or the pairing and clustering of noncontiguous school zones. See Swann, 402 U.S. at 27-29 & N. 10, 91 S.Ct. at 1281-82; Lemon v. Bossier Parish School Board, 566 F.2d 985 (5th Cir. 1978); Cisneros v. Corpus Christi Ind. School District, 467 F.2d 142, 152-54 (5th Cir. 1972) (en banc), cert. denied, 413 U.S. 922, 93 S.Ct. 3052, 37 L.Ed.2d 1044 (1973). These are only examples of the permissible tools that may be used to integrate a school system. The district court is directed to consider the possible alternatives to the neighborhood school concept and to make findings regarding the feasibility and efficacy of implementing one or a combination of these alternatives. Two weeks after Davis v. East Baton Rouge Parish School Board was decided, a panel consisting of Judges Coleman, Tjoflat, and Fay decided the case of Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978). Tasby involved the extensive efforts to desegregate the Dallas Independent School District, an enormous school district both geographically and from the standpoint of student population (138,000 students). The heart of the Dallas plan was the division of the district into six subdistricts. Four of these subdistricts were so zoned as to create a racial mix approximately equal to that of the district as a whole. Two of the subdistricts, however, contained a predominant ethnic group. Seagoville was predominantly Anglo-American and East Oak Cliff, bounded by the Trinity River bottom on one side and by 1-35 on the other was approximately 98% black. The district Court, Judge Taylor, concluded that this division of the district was the only practicable division and that there was no practicable manner of creating extensive integration in either the Seagoville or the East Oak Cliff district. This conclusion of the trial court was rejected by a Fifth Circuit panel consisting of Circuit Judges Coleman, Tjoflat and Fay because, the Court of Appeals concluded, the district court had not made adequate inquiry as to whether the more extensive usage of the desegregation tools described in Swann, including pairing and busing, would in fact remove the racial identifiability of the Seagoville and East Oak Cliff districts. The key language of the opinion is: The DISD acknowledges that the creation of the all black East Oak Cliff subdistrict and the existence of a substantial number of one-race schools militate against the finding of a unitary school system. It contends, however, that this is the only feasible plan in light of natural boundaries and “white flight.” The district court was instructed in the opinion of the prior panel to consider the techniques for desegregation approved by the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). We cannot properly review any student assignment plan that leaves many schools in a system one race without specific findings by the district court as to the feasibility of these techniques. Davis v. East Baton Rouge Parish School Board, 570 F.2d 1260 (5th Cir. 1978). There are no adequate time-and-distance studies in the record in this case. Consequently, we have no means of determining whether the natural boundaries and traffic considerations preclude either the pairing and clustering of schools or the use of transportation to eliminate the large number of one-race schools still existing. See Mims v. Duval County School Board, 329 F.Supp. 123, 133-34 (M.D.Fla. 1971). Conclusion from Recent Cases If there ever was a valid basis for debate about the legal obligations of the Board, such doubt has been completely dispelled by the five cases discussed above. The commandment of the law is now obvious. Morgan must operate as an integrated school. The Board may initially attempt to comply with the law by a freedom-of-choice plan, such as the magnet plan adopted. This Court is optimistic that this magnet school plan, if properly implemented, will effectively desegregate Morgan; however, if it fails to do so, all of the desegregation strategies and tools described in detail by Justice Burger in Swann must be utilized, including as a possible last resort, pairing and busing. A failure to recognize this reality can lead only to delay, frustration and prolonged litigation with all of the disadvantages inherent in long, expensive, emotionally disturbing litigation. Selection of Programs to be Included in Morgan Magnet School In its earlier orders, this Court has suggested a number of features for possible inclusion in the Morgan magnet program— including vanguard programs for particularly gifted children, extended day care programs, Montessori programs — and referred the district to a number of the programs discussed in detail by Judge DeMascio in his thorough opinion at the district court level in Bradley v. Milliken, 402 F.Supp. 1096 (E.D.Mich.1975). The Board and its administration have (to this date at least) tentatively rejected most of the Court’s suggestions as to details of implementation. This rejection, however, in this Court’s view, illustrates a healthy attitude of independence and self-reliance. A plan to integrate Morgan must be the Board’s plan and not this Court’s plan. This Court, the Board,-the Board’s attorneys, this Court’s Tri-Ethnic committee,-and the community as a whole can well reflect and be continuously conscious of Circuit Judge Griffin Bell’s language in Calhoun v. Latimer, 321 F.2d 302 (5th Cir. 1963) where he said: We do wish, however, to point out some fundamentals to be borne in mind-in the future handling of this and like matters where an approved plan is in operation. Whether to effect a plan, to speed it up or to otherwise modify it is in the first instance for the school board. This is likewise true as to problems arising in connection with the administration of a plan. The courts are ill equipped to run the schools. Litigants must not ignore school officials, and school officials must not abdicate their function to the courts. They, like the courts, are bound by the Constitution as interpreted by the Supreme Court. Cooper v. Aaron, supra. With these principles in mind, this record discloses no problem that could not be resolved between appellants and the school officials based on the judgment of the school officials as educators, with the application of wisdom, forebearance and mutual trust to the educational purpose of schools. (Emphasis added.) It is obvious, however, that if the time-table established by this Court on page 469 of this opinion is not met, the Board and its administration must either abandon the magnet school concept or adopt programs which will cause the Morgan school to become desegregated. This Court is persuaded that the basic concept selected by the Board is an excellent concept. Morgan school is to be modeled upon the Martin Luther King Experimental school in Evanston, Illinois. That school is one of what has now become several thousand experimental schools based upon the “IGE model” (Individually Guided Education). This concept, which the Board and its administration have selected on their own with no guidance from this Court, does seem particularly well adapted to meet the needs of Morgan and its potential patrons. The IGE model has much to offer both for children who may have been raised in a culturally deprived environment, as well as exceptionally gifted children who may benefit from the more flexible individually oriented programs possible in a school of the type envisioned. The ultimate attractiveness of the school will, of course, depend upon the dedication, skill and enthusiasm of the faculty and staff of the school. It is also apparent to the Court from the evidence adduced at the hearings on December 1, 1977, January 10, 1978, March 24, 1978, April 21, 1978 and May 5, 1978, that the Board and the administration have at least implicitly committed themselves to the proposition that Morgan, to be successful as a magnet school, must be demonstrably superior in every feature which is susceptible of objective measurement — i. e., student-faculty ratio; educational attainment of the faculty; physical facilities; security afforded; and test scores of the pupils. Fortunately, this Board and its administration have shown the initiative and have exhibited the drive to prepare a magnet school program based upon the ideas and research of the Board and its administration, not upon the suggestions of the Court. The intelligence and aggressiveness of the Board and its administration, therefore, have created a situation in which this Court may assume its proper role, that of monitoring progress, intervening only if that progress is not satisfactory. Back-up Plan After careful consideration, the Court has determined that it will not require the Board to prepare a specific back-up plan at this time. A back-up plan is a plan to implement in the event the time schedule set forth on page 469 of this opinion is not met. The forced preparation of a back-up plan before a fair trial of the present plan would imply a belief that the current plan will fail. Negative thinking of this type could in fact cause failure. Insistence upon a back-up plan fully formulated at the present time would be a prediction of failure- — and such prediction could in fact be a self-fulfilling prophesy. Considerable work and effort will be necessary to make the present plan work, and the finite energy and time of the Board and its administration can best be directed toward making the present plan work. For purposes of future guidance, however, it is well to list a varied number of possible alternatives if the present plan does not create an integrated school at Morgan. Several of the possible alternatives which occur to the Court are: 1. Adoption of a student assignment plan for Morgan similar to the one adopted in Evanston. As the Court understands the program in Evans-ton, no child attends the Martin Luther King school simply because he resides adjacent to the school. On the contrary, admission to the school is by application, and such applications are granted by determining which children would benefit most from the programs at that school, with such admissions structured, however, so as to create a racial mix at the school roughly identical to that in the district as a whole. Obviously, the institution of an assignment plan of this nature could best be implemented after the Morgan school has been in operation for a period of time and has established a deserved reputation as a superb magnet school producing both effective desegregation and quality education. In this connection, see Judge Tjoflat’s language in Davis v. East Baton Rouge Parish School Board, supra, where he says: The district court on remand is directed to consider the plan in light of the dual purposes involved: desegregation must be effected, and quality education must be promoted. 2. Desegregation at Morgan might conceivably be achieved by different attendance zones. In this connection, it is well to note that Morgan, unlike the Butler school in Lemon, supra, is not located in a geographically isolated area occupied solely by Black-Americans. From this Court’s observations, the “neighborhood” surrounding Morgan could be deemed to extend from 45th Street on the west to 21st on the east, and from Broadway on the north to the Gulf of Mexico on the south. This is a diverse area, containing people of every conceivable ethnic and socio-economic group. The area contains some of the most historic and interesting local structures in our state. It contains churches attended by persons of every imaginable ethnic and socio-economic background. Ball High School is attended by all of the public high school students in the district. Ball High is a superb example of a successful, fully-integrated, multi-ethnic high school in which a child of any race can obtain the best education which he has the motivation to receive. 3. A pairing or clustering plan similar to the so-called “Vollert Plan” or the “Blankenship Plan,” a pairing plan endorsed at one stage of these proceedings by the plaintiffs. 4. Some other strategy or combination of strategies not presently readily apparent to the Court. Issue No. 2 — Transfer Program Relating to Siblings The plan proposed by the Board contemplates that it is desirable to keep children of one family in the same school. Accordingly, where a transfer student qualifies for some special instructional program, the family will be permitted to place all of its elementary age children in the same elementary school. Amicus opposes this portion of the Board’s transfer problem. Circuit Judge Goldberg has observed in Lemon, supra, that: . We do note that in choosing among plans each of which satisfy the constitutional requirements for desegregation, the courts must strive to keep abrasions and dislocations to a minimum. 566 F.2d 985 at 989. Consistent with this command, it seems to the Court appropriate that the Board’s position in this regard be adopted and accordingly if, under the applicable and stringent transfer rules, a child of one family is allowed to attend a particular school, all of the elementary school children of a particular age in that immediate family may attend that school. In this connection, however, the Board is directed to be prepared to report to the Court during the first portion of the 1978-79 school term the extent to which this program has an impact upon the desegregation of the elementary schools. If it appears that this relaxation in the strict transfer requirement is having an appreciable effect upon desegregation progress in the elementary schools, it may well be abandoned. Issues Nos. 5 and 6(see page 468, supra) From the foregoing it is obvious that no additional hearing to determine whether GISD has achieved unitary status can be held until the Morgan school has been effectively desegregated. As soon as that objective has been achieved, however, it would appear appropriate for the Court to conduct a hearing to determine whether GISD has achieved unitary status. In this connection, Rule 1 of the Federal Rules of Civil Procedure, reads: These rules govern the procedure in the United States District Courts in all suits of a civil nature . . . . They shall be construed to secure the just, speedy and inexpensive determination of every action. (Emphasis added.) To the extent possible, it is the desire of this Court to bring this lengthy litigation, now pending for almost 19 years, to a just, speedy and inexpensive termination. To that end, the hearing which will ultimately be held when Morgan has achieved desegregated status must be in sufficient detail to enable the Court to find that GISD has eliminated all vestiges of the past segregated system with reference to its student population, its faculty, its administration, its physical facilities and extra-curricular activities and programs. The hearing before this Court in September 1977 has enabled the Court to determine that GISD could, as of September 1978, achieve unitary status with reference to all of its schools with the exception of Morgan. The record, however, contains no evidence concerning desegregation of the faculty or administration. While the Court is reasonably certain from facts of which it has judicial notice, that effective desegregation has occurred in connection with all extra-curricular programs, there is no evidence before the Court from which such a determination could be made. In addition, there is a racial imbalance at Gladnei O. Parker elementary school, and such racial imbalance is likely to continue. The Court has tentatively concluded both from the evidence, and in part from facts of which the Court has judicial notice, that racial imbalance at the Parker school is the result of residential patterns which have developed in recent years and over which the district has had no control. Geography of Galveston Island is peculiar. The western portion of the island has been the only portion of the island in recent years available for residential construction. Most of the construction there has occurred long after restrictive covenants became unenforceable. The ethnic characteristics of residential subdivisions of the western portion of this island are matters over which the school district has had no control. The Court has, therefore, tentatively concluded that the racial identifiability of the Parker school is not a vestige of the previously existing dual system; however, before this Court could so find in a final order decreeing that GISD has achieved unitary status, additional evidence, real estate experts, educational experts, and experts in the science of demography would probably be necessary. Such inquiry, however, may well be unnecessary because as Morgan loses its racial identifiability, it is highly probable that Gladnei O. Parker will similarly lose its present racial identifiability. If the magnet school concept proves successful at Morgan, the Board may well wish to consider the institution of magnet programs at Parker particularly designed to be attractive to Black-American students. Inquiry Mandated by Dayton Board of Education v. Brinkman In Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851, the Supreme Court said: If such violations are found, the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a system-wide impact may there be a system-wide remedy. The necessity of making this inquiry was confirmed in School District of Omaha v. United States, 433 U.S. 667, 97 S.Ct. 2905, 53 L.Ed.2d 1039, and Brennan v. Armstrong, 433 U.S. 672, 97 S.Ct. 2907, 53 L.Ed.2d 1044. It is admittedly difficult for this Court or any finder of fact, to determine what degree of segregation would exist at the Morgan school if from 1970 until April of 1977 the GISD Board had employed all or some of the integration tools described in Swann vigorously, effectively, and persistently. The parties, in their evidence and arguments have not addressed themselves to this question. Despite the difficulty of the inquiry, however, there is adequate evidence before the Court to enable the Court to determine this question. The evidence is itemized as follows: 1. GISD has succeeded, without undue turmoil or disruption, in integrating its high schools, its middle schools, and four of its six elementary schools thoroughly. This success indicates to the Court that if more vigorous, effective and persistent efforts had been made with reference to the W ashington-Carver-Goliad problem, considerable progress would have been achieved, and there would have been a reasonable expectation that Morgan school would have opened as a completely desegregated school and never have been racially identifiable. 2. While pairing and busing are not remedies of first choice, and while there is some possibility that pairing and busing would not have eliminated racial identifiability at the Washington-Carver-Goliad complex, the probabilities are that early adoption of some plan like the Vollert Plan or the Blankenship Plan, would probably have eliminated the racial identifiability of these schools. 3. Progressive racial identifiability of the Carver-Goliad-Washington schools was attributable in part to the physical deterioration of the facilities of those schools and the fact that the Board had a responsibility to prevent such physical deterioration. This responsibility was difficult, and perhaps almost impossible to meet because of the refusal of voters to approve bond issues in 1971 and 1973; nevertheless, the responsibility existed. 4. The degree of residential racial isolation in Galveston does not approach that found in large metropolitan areas. There is a substantial degree of residential racial mixing, and this Court cannot conclude from the evidence, or from the facts which it judicially knows, that the racial identifiability of the Carver-Goliad-Washington schools was attributable solely to demographic factors. 5. Some of the racial identifiability of the Carver-Goliad-Washington schools was undoubtedly attributable to the failure of the Board to adopt more stringent controls upon its transfer policies. In addition, until the spring of 1978, the Board had never adopted or vigorously pursued a majority-to-minority transfer program with free transportation and active encouragement of students to participate in such a majority-to-minority transfer program. While the Court freely acknowledges that it is much easier for the Court to write these words than it would have been for the Board to solve the Washington-Goliad-Carver problem, this Court must nevertheless conclude that a large portion of the racial identifiability at the Carver-WashingtonGoliad schools which will initially, probably be carried over into the Morgan school, is attributable to the failure of the Board to take effective action with reference to this problem during the period from 1970 until April 1977. In addition, as this Court reads the authorities cited in this opinion, the burden is upon the Board to prove the deg