Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW HAND, Chief Judge. This action was filed by the United States, as Plaintiff, against Dallas County, Alabama; John W. Jones, Jr., as Judge of Probate and as Chairman Ex-Officio of the Dallas County Commission; the Dallas County Commission and its members; and the Dallas County Board of Education of Dallas County, Alabama, and its officers and members. The Chairmen of the Dallas County Democratic Executive Committee and the Dallas County Republican Executive Committee were joined as Defendants for relief purposes only, but did not participate in the trial of this Action. The Plaintiff has alleged that the members of the Dallas County Commission and the Dallas County Board of Education are elected under an at-large electoral system which unlawfully dilutes the voting strength of the black electorate in Dallas County in violation of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. Section 1971, 42 U.S.C. Section 1973, and the 14th and 15th Amendments to the Constitution of the United States. This Court has jurisdiction over the claims of the Plaintiff under 28 U.S.C. Section 1345, 42 U.S.C. Section 1971, 42 U.S.C. Section 1973j(d), and 28 U.S.C. Section 1343. This Court also has jurisdiction of Plaintiff’s claims for declaratory relief under 28 U.S.C. Section 2201. The Defendants filed various Motions to Dismiss, all of which were denied by the Court. Thereafter, the Defendants filed their answers to the Complaint, in which they generally denied jurisdiction, and denied the Plaintiff’s claims for relief. The Plaintiff and the Defendants made and entered into a joint Pre-Trial Order which was entered by the Court and which constitutes the final statement of the issues involved, governed the conduct of the trial, and constitutes the basis for any relief afforded by the Court. In that Pre-Trial Order the parties were unable to agree as to the jurisdiction and the propriety of the parties, and those issues were certified to the Court for resolution. In the Pre-Trial Order the parties also stipulated to a number of uncontested facts, which stipulations were adopted by the Court and constitute a part of the Findings of Fact hereinafter made. The Plaintiff and the Dallas County Board of Education and its members also stipulated, agreed, and consented in the Pre-Trial Order that the Court shall and may take judicial notice of the entire record and proceedings in Civil Action No. 5945-70-H pending in this Court and styled: Anthony T. Lee, et al., Plaintiff, United States of America, et al., Plaintiff-Intervenor, v. Dallas County Board of Education, et al., Defendants. Said parties stipulated and agreed that the Court may take judicial notice of all documents, evidence, and testimony taken and received into evidence in that action, and that any and all orders and trial exhibits admitted into evidence in that action may be considered as evidence in this action. Pursuant to that stipulation, agreement, and consent of said parties, the Court has considered and taken judicial notice of the entire record and proceedings in said Civil Action No. 5945-70-H, including all documents, evidence, and testimony taken and received into evidence therein. In and by the terms of that Pre-Trial Order, the parties also stipulated, .agreed, and admitted that the following were and constituted all of the Contested Issues of Fact in this action: a. Whether as a result of the at-large electoral system used to elect the members of the Dallas County Commission and the Dallas County Board of Education, black citizens of the county have less opportunity than do white citizens to participate in the political process and to elect members of their choice to these governing bodies. b. Whether the at-large electoral system unlawfully dilutes the voting strength of black voters, and whether black voters are largely concentrated in certain geographic areas of the county. c. Whether voting for state, district, county, and local offices in Dallas County has followed racial lines. d. Whether black candidates have ever been elected to the Dallas County Commission or the Dallas County Board of Education. e. Whether a black person has ever been the nominee of the Democratic party or the Republican party for a position on the Dallas County Commission or the Dallas County Board of Education. f. Whether there has been a lack of responsiveness by the Dallas County Commission and the Dallas County Board of Education to the needs of the black citizens and voters of Dallas County. g. Whether the State of Alabama and Dallas County have in the past unlawfully discriminated against black residents of Dallas County by disenfranchising black voters through the use of discriminatory devices such as literacy tests, and poll taxes, and by applying more stringent registration requirements to black prospective voters. h. Whether black voters of Dallas County have also been the subject of unlawful discrimination in education, employment, housing, public accommodations and public facilities. i. Whether there is a past history of racial discrimination in Dallas County by state, local, and party officials, particularly with respect to public education and minority participation in the electoral process, and if so, whether the same adversely affects minority participation in the political process. j. Whether there is a firm, long-standing state policy favoring the at-large election of the Dallas County Commission. k. Whether there is a firm, long-standing state policy favoring the at-large election of the Dallas County Board of Education as stipulated and specified in Chapter 8 of Title 16 of the 1975 Code of Alabama. l. Whether there is a firm, long-standing state policy favoring the at-large election of members of the County Commissioners or other county governing bodies in the State of Alabama. m. Whether there is a firm, long-standing state policy favoring the at-large election of members of county Boards of Education in the State of Alabama. n. Whether the at-large electoral method adversely affects minority participation in the electoral process. o. Whether the majority vote requirement for primary elections, residency districts for members of the Dallas County Commission, and numbered places and staggered terms for the members of the Dallas County Board of Education dilute minority voting strength in the context of the at-large electoral system. p. Whether black citizens of Dallas County have full and complete access to the process of slating and electing candidates for nomination and election to the Dallas County Commission and the Dallas County Board of Education and other elective offices of Dallas County. q. Whether the Dallas County Commission and its defendant members have been responsive to the particularized interests and needs of black citizens of Dallas County- r. Whether the Dallas County Board of Education and its defendant members have been responsive to the particularized needs of black students within the school system and black citizens of Dallas County. s. Whether the policy and general laws of the State of Alabama favor and prescribe at-large elections for members of the Dallas County Board of Education and other County Boards of Education. t. Whether the policy and general laws of the State of Alabama favor and prescribe at-large elections for members of the county governing bodies. u. Whether there has been any past discrimination against black citizens of Dallas County which now precludes the effective participation of black citizens in the election system. v. Whether there has been racially motivated discrimination or action by any of the Defendants that infringes on the constitutional rights of black citizens of Dallas County. w. Whether there is or has been any invidious racial motivation or at-large scheme to deny black citizens effective participation in the election of members of the Dallas County Commission or the Dallas County Board of Education. x. Whether intentional and invidious racial discrimination was a motivating factor in the enactment of the laws and procedures of the State of Alabama prescribing and governing the election of members of the Dallas County Commission. y. Whether intentional and invidious racial discrimination was a motivating factor in the enactment of the laws and procedures of the State of Alabama prescribing and governing the election of members of the Dallas County Board of Education. z. Whether intentional and invidious racial discrimination was a motivating factor in the maintenance of the laws and procedures of the State of Alabama prescribing and governing the election of members of the Dallas County Commission. aa. Whether intentional and invidious racial discrimination was a motivating factor in the maintenance of the laws and procedures of the State of Alabama prescribing and governing the election of members of the Dallas County Board of Education. bb. Whether as a matter of law intentional racial discrimination as a motivating factor in the maintenance of the laws and procedures of the State of Alabama which prescribe and govern the election of members of the Dallas County Board of Education and the Dallas County Commission would afford Plaintiffs any cause of action or right to relief in this action, even should such be found to have existed. On November 26, 1979, this action came on for trial before the Court, without a jury, pursuant to and on the basis of the issues made and stipulated by the Pre-Trial Order. Trial proceedings were held on November 26, 27, 28, 29, and 30, 1979, and were then recessed without date. Thereafter, trial proceedings were resumed on March 10, 1980, and were held on March 10, 11, 12, 13, 14, 17, 18, and 19, 1980. On March 12, 1980, the Plaintiff completed the presentation of its evidence, and rested. At that time, the Defendants, Dallas County Board of Education of Dallas County, Alabama and its members, William R. Martin, as Chairman and member, John J. Grimes, Sr., as Vice-Chairman and member, and Martin Chance, Joe K. Rives, and James N. Priestley, as members (said School Board and its said members and officers are hereinafter collectively called the School Board) filed their Motion for Involuntary Dismissal under Rule 41(b) of the Federal Rules of Civil Procedure, seeking a dismissal of the Complaint and the action on the ground that upon the facts and the law the Plaintiff has shown no right to relief. Similar Motions for Involuntary Dismissal were also filed at that time on behalf of the Probate Judge and the Dallas County Commission and its members. The Court has carefully considered said Motion for Involuntary Dismissal filed by the School Board Defendants, together with the Complaint; the Answer of the School Board Defendants; the Pre-Trial Order, including the Stipulations of all parties as to jurisdiction, propriety of parties, uncontested facts, and contested issues of fact; all testimony, documents, and exhibits received as evidence by the Court; the entire record and proceedings in the aforesaid Civil Action No. 5945-70-H pending in this Court, including all documents, evidence, trial exhibits, and testimony taken and received into evidence in that action; the arguments of counsel heard orally by the Court; the briefs and law offered by the parties and considered herein; and the entire record in this action. The Court is of the opinion that said Motion for Involuntary Dismissal filed by the School Board Defendants is well taken and should be granted, and that this action and all claims asserted against the School Board Defendants should be dismissed pursuant to and as required by Rule 41(b) F.R.C.P. The Court expressly reserves its ruling on the Motion for Involuntary Dismissal filed by other Defendants herein, and this Order by its terms is intended only to dispose of the claims asserted by Plaintiff against the School Board Defendants. The Court, as trier of the facts, has determined the facts and the law with respect to all claims asserted against the School Board Defendants, and is of the opinion that the Court should render judgment on the merits against the Plaintiffs. The Court now makes the following Findings of Fact and Conclusions of Law, as provided and required by Rules 41(b) and 52(a), F.R.C.P.: FINDINGS OF FACT 1. The Defendant, Dallas County Commission, is a body established under the laws of the State of Alabama with all powers conferred upon it by the statutes and laws of the State of Alabama. 2. John W. Jones is the Probate Judge of Dallas County and serves as Chairman Ex-officio of the Dallas County Commission, and is responsible for exercising certain powers and duties associated with conducting elections in Dallas County, Alabama, for the Dallas County Commission and the Dallas County Board of Education as well as for other public offices. 3. L. Seawell Jones, William H. Kendrick, C. Stanley Baldwin, and Gene Norris reside in Dallas County, Alabama, and are the duly elected members of the Dallas County Commission. 4.The Defendant, Dallas County Board of Education, is the body established under the laws of the State of Alabama which is responsible for governing and administering the Dallas County public school system pursuant to the laws of the State of Alabama. 5. The Defendants, Martin Chance, James N. Priestley, John J. Grimes, Sr., William R. Martin, and Joe K. Rives are residents of Dallas County, Alabama, and were the duly elected members of the Dallas County Board of Education, with the Defendant, William R. Martin, serving as Chairman and the Defendant John J. Grimes, Sr., serving as Vice-Chairman. 6. The composition, election, and qualifications of the Dallas County Board of Education are governed by the provisions of Chapter 8 of Title 16 of the 1975 Code of Alabama, as are the County Boards of Education of the following 35 counties of the State of Alabama: Baldwin, Barbour, Bibb, Bullock, Calhoun, Cherokee, Chilton, Coffee, Colbert, Covington, Dale, Dallas, Elmore, Escambia, Fayette, Franklin, Greene, Houston, Lamar, Lee, Lowndes, Macon, Marshall, Monroe, Perry, Pike, Randolph, Russell, Shelby, Saint Clair, Sumter, Talladega, Tallapoosa, Tuscaloosa, and Wilcox. 7. The Superintendents of Schools for Greene County, Lowndes County, Macon County, Perry County, and Bullock County are black, and their names are as follows: SUPERINTENDENT COUNTY OF SCHOOLS Greene County Mr. Robert Brown Lowndes County Mrs. Uralee Haynes Macon County Mr. Alonzo Harvey Perry County Mr. Earnest Palmer Bullock County Mr. Conrad Newman 8.The County Boards of Education for the following counties in Alabama have one or more black members, and the composition, election, qualification, and terms of office of said County Boards of Education are governed by Chapter 8 of Title 16 of the 1975 Code of Alabama: NUMBER OF BLACK COUNTY BOARD MEMBERS Bullock County 5 Elmore County 1 Greene County 5 Lowndes County 4 Macon County 4 Perry County 4 Sumter County 2 9. The Defendant, Earl Goodwin, resides in Dallas County, Alabama, and is Chairman of the Dallas County Democratic Executive Committee and as such is responsible to provide to the Probate Judge the names of all Democratic candidates nominated to county office. 10. The Defendant, Robert Douglas, resides in Dallas County, Alabama, and is Chairman of the Dallas County Republican Executive Committee and as such is responsible to provide to the Probate Judge the names of all Republican candidates nominated to county office. 11. The members of the Dallas County Board of Education are presently elected pursuant to Chapter 8 of Title 16 of the 1975 Code of Alabama and other laws of the State of Alabama generally governing elections. 12. Under the terms of the Alabama Code, Section 16-18-1 et seq., each member of the Dallas County Board of Education is elected by the qualified voters of Dallas County on an at-large basis, by numbered places, to six-year terms which are staggered. 13. There are no majority vote requirements in any general elections held in the State of Alabama. The laws governing primary elections require a majority vote for nomination. 14. Political parties have the opportunity under the laws of the State of Alabama to nominate candidates by means of caucus and convention. 15. There are no anti-single shot voting provisions in the general election laws governing the election of members of the Dallas County Commission, the Dallas County Board of Education, and other elective offices in Alabama. Candidates for nomination and election to the Dallas County Commission and the Dallas County Board of Education run for a single office or position. 16. There are no anti-single shot voting provisions in the primary election for the nomination of candidates for the election of members of the Dallas County Commission, the Dallas County Board of Education, and other elective offices in Alabama. Candidates for nomination and election to the Dallas County Commission and the Dallas County Board of Education run for a single office or position. 17. Prior to the Voting Rights Act of 1965, requirements for registering to vote in the State of Alabama included a literacy test, a poll tax, and a voucher of good character from a registered voter. 18. The total population, the total number and percentage of white persons, and the total number and percentage of black persons in Dallas County, Alabama, according to the 1970 Census, are as follows: White: 26,330 47.6% Black: 28,892 52.3% Other: _74 .1% TOTAL Pop. 55,296 19.The total voting age population, the total number and percentage of white persons of voting age, and the total number and percentage of black persons of voting age in Dallas County, Alabama, according to the 1970 Census, are as follows: White: 17,611 53% Black: 15.456 47% TOTAL Pop. 33,116 20.The population for the following counties as of July 1, 1976, is substantially and approximately as shown below and by population estimates prepared by the University of Alabama for each of the aforesaid thirty-five counties whose County Boards of Education are elected and governed pursuant to the provisions of Chapter 8 of Title 16 of the 1975 Code of Alabama: County White Pop. Non-White Pop. Total Pop. Baldwin 58,026 83.49 11,474 16.51 69.500 Barbour 14,701 56.33 11,399 43.67 26,100 Bibb 10,450 73.59 3,750 26.41 14.200 Bullock 4,023 34.68 7,577 65.32 11,600 Calhoun 94,658 83.33 18,942 16.67 113,600 Cherokee 16,637 91.41 1,563 8.59 18.200 Chilton 24,685 87.23 3,615 12.77 28.300 Coffee 30,128 84.39 5,572 15.61 35.700 Colbert 41.430 83.87 7,970 16.13 49.400 Covington 29,733 84.71 5,367 15.29 35,100 Dale 36.430 87.36 5,270 12.64 41.700 Dallas 28,448 50.62 27,752 49.38 56,200 Elmore 29,874 74.87 10,026 25.13 39.900 Escambia 24,766 68.99 11,134 31.01 35.900 Fayette 14,395 87.24 2,105 12.76 16.500 Franklin 25,346 95.29 1,254 4.71 26,600 Greene 2.892 27.03 7,808 72.97 10.700 Houston 54,303 77.91 15,397 22.09 69.700 Lamar 13,521 86.67 2,079 13.33 15.600 Lee 54,657 78.42 15,043 21.58 69.700 Lowndes 3,340 24.93 10,060 75.07 13.400 Macon 5,043 18.96 21,557 81.04 26.600 Marshall 58,371 97.94 1,229 2.06 59.600 Monroe 12,289 56.37 9,511 43.63 21,800 Perry 5.893 43.98 7,507 56.02 13.400 Pike 15,955 68.48 7,345 31.52 23.300 Randolph 14,849 78.57 4,051 21.43 18.900 Russell 26.242 56.31 20,358 43.69 46.600 Shelby 43,723 84.73 7,877 15.27 51.600 St. Clair 29,965 87.36 4,335 12.64 34.300 Sumter 7,079 39.99 10,621 60.01 17.700 Talladega 47,161 69.46 20,739 30.54 67.900 Tallapoosa 25,810 72.30 9,890 27.70 35.700 Tuscaloosa 97.243 77.73 27,857 22.27 125,100 Wilcox 5,667 37.78 9,333 62.22 15,000 21.The election of members of the County Board of Education of the following counties are governed by local acts and are not governed by the provisions of Chapter 8, Title 16, of the 1975 Code of Alabama: Autauga, Blount, Butler, Chambers, Choctaw, Clarke, Clay, Cleburne, Conecuh, Coosa, Crenshaw, Cullman, Dekalb, Etowah, Geneva, Hale, Henry, Jackson, Jefferson, Lauderdale, Lawrence, Limestone, Madison, Marengo, Marion, Mobile, Montgomery, Morgan, Pickens, Walker, Washington, and Winston. 22. There is a firm, long-standing state policy favoring the at-large election of the Dallas County Board of Education. This preference for at-large elections originated with the establishment of the first public school system for the State of Alabama as a whole in 1854 (Acts of Alabama 1853-54, p. 8), and this preference has been perpetuated in Alabama laws since that time. Act No. 47, Acts of Alabama 1855-56, provided for the at-large election of the County Superintendent of Education and trustees in each township. Act No. 188, Acts of Alabama 1876-77, provided for the appointment of the County Superintendent of Education by the State Superintendent of Education, but continued the provision for the at-large elections of trustees in each township. That same system was perpetuated by Act No. 115, Acts of Alabama 1878-79. In 1883, an additional school district was created in Dallas County, with the County Superintendent being appointed by the State Superintendent as in other counties. Act No. 256, Acts of Alabama 1882-83. In 1889, State law was modified by providing for the at-large election of County Superintendents of Education throughout the State of Alabama, but excluding 21 counties (including Dallas). Act No. 261, Acts of Alabama 1888-89. However, in 1890 that law was changed to provide for the at-large election of the County Superintendent of Education in Dallas County. Act No. 66, Acts of Alabama 1890-91. That same year, the Legislature provided for the appointment of township trustees by the County Superintendent of Education, who was elected at-large. Act No. 250, Acts of Alabama 1890 — 91. In 1901, the Legislature again created separate school districts in Dallas County, and provided that the County Superintendent would again be appointed by the State Superintendent. Act No. 268, Acts of Alabama 1900-01. However, in 1903 the Legislature restructured the school system by redistricting the public schools, and establishing both County Boards of Education and Township Boards of Education, utilizing the at-large method of election for both. Act No. 365, Acts of Alabama 1903. That law was amended in 1907, but the at-large method of election was continued. Act No. 358, Acts of Alabama 1907. In 1915 the Alabama Legislature adopted the State law which is the forerunner of the present law codified in Chapter 8 of Title 16 of the 1975 Code of Alabama. Act No. 220, Acts of Alabama 1915. That Act contains substantially the same language as is still found in the 1975 Code, and provided for the election of five (5) members of County Boards of Education who would in turn appoint the County Superintendent. That same method was continued by subsequent enactments. See Act No. 442, Acts of Alabama 1919; Act No. 524, Acts of Alabama 1923; Articles 8 and 9, Code of Alabama 1907. In 1927, the Legislature adopted the 1927 Alabama School Code. Acts No. 416 and 283, Acts of Alabama 1927. That School Code codified the provisions of the 1915 Act. Those same provisions requiring the at-large election of County School Boards in Alabama were re-codified as Tit. 52, Section 63, Code of Alabama 1940; Tit. 52, Section 63, Code of Alabama Re-Complied 1958; and Section 16-8-1, 1975 Code of Alabama. The Court therefore finds that not only is there a firm, long-standing State policy favoring the at-large election of County Boards of Education, but that there is also a firm, longstanding State policy favoring five (5) member Boards of Education. See Corder v. Kirksey, 639 F.2d 1191, 1195 (5th C.C.A., 1981). 23. The School Board Defendants filed Motions seeking to dismiss the Complaint on grounds, inter alia, that the Plaintiff challenged the constitutionality of the State law governing the composition, election, qualifications, and terms of office of the School Board, but had failed to join as necessary and indispensable parties certain State officials and the members of the other 34 County Boards of Education whose composition, election, qualification, and terms of office are governed and prescribed by that same State law. To avoid the impact of Rule 19, F.R.C.P., counsel for the Plaintiff advised and represented to the Court that the Plaintiff does not challenge the constitutionality of Section 16-8-1 of the 1975 Code of Alabama, nor the at-large method of election therein prescribed for the other 34 counties whose County Boards of Education are elected under and pursuant to that statute. Instead, counsel for the Plaintiff stated and represented to the Court that the Plaintiff in this action challenges only the election structure in Dallas County and the method and manner whereby Section 16-8-1 of the 1975 Code of Alabama has been applied in Dallas County. In written briefs as well as in oral argument, counsel for the Plaintiff repeatedly advised and represented to this Court that the Plaintiff does not challenge in this action the at-large method of election of School Boards in any other county in Alabama. Instead, Plaintiff contends that Section 16-8-1 of the 1975 Code of Alabama, although constitutional, has been unconstitutionally applied in Dallas County in a method or manner different from that by which it has been applied in the other 34 Alabama counties whose School Boards are governed by that same statute. In fact, in its written Brief served on January 17, 1979, in opposition to the School Board’s Motion to Dismiss for Failure to Join Necessary Parties, counsel for the Plaintiff represented and stated to this Court: “. . . this action does not allege the unconstitutionality of any Alabama statute. As we stated in our first response to defendants’ Motions to Dismiss filed on December 7, 1978 (pages 2-3) and as we reiterated at the January 3rd hearing, this lawsuit challenges the at-large election structure only in Dallas County, Alabama. Although the Dallas County Board of Education is elected pursuant to the same statute that sets forth the election provisions for other county boards of education throughout Alabama, this lawsuit does not challenge the provisions of that statute, except as applied in Dallas County.” In reliance on that representation, this Court denied the Motions to Dismiss filed by the School Board Defendants, but cautioned counsel for the Plaintiff that the burden of proof which Plaintiff had assumed could pose substantial problems at trial. Following that ruling, the School Board Defendants filed their Answer, which still included as a defense the failure of Plaintiff to join as necessary and indispensable parties (under Rule 19, F.R.C.P.) certain State officials and members of the County Boards of Education in the other 34 Alabama counties whose County Boards of Education are elected pursuant to Section 16-8-1. The Pre-Trial Order preserved and set forth that contention of the School Board, and the parties certified that issue to the Court for resolution at the commencement of the trial proceedings At those trial proceedings, on November 26, 1979, this Court again denied the School Board’s Motion to Dismiss the action for failure to join necessary parties. At that hearing, counsel for the Plaintiff again stated and represented to the Court that the Plaintiff does not challenge the constitutionality of the State law (Section 16-8-1), but instead contends only that the statewide statute has been applied differently in Dallas County. By the aforesaid representations to this Court, counsel for the Plaintiff has admitted that Section 16-8-1 of the 1975 Code of Alabama and the at-large method of election therein prescribed is not unconstitutional, and therefore that there is and has been no intentional or invidious racial discrimination as a motivating factor in the enactment of that State statute. Plaintiff has also admitted that said state-wide statute has not been maintained for discriminatory purposes in any of these other 34 Alabama counties. Thus Plaintiff offered no evidence showing any discriminatory purpose in either the-enactment of that state-wide law or its maintenance, impact, or effect in these other 34 counties. The only evidence before the Court relating to these other 34 counties is that which appeared in the Pre-Trial Order as admitted and uncontested facts. That evidence shows that 7 of those counties have black school board members, with 5 of those counties having either 4 or 5 black members, and that as of July 1, 1976, 14 (40%) of these 35 counties had black populations which comprised less than 17% of the total population, while more than half (18) had black populations which comprised less than 22.5% of the total population. Plaintiff has therefore failed to produce any evidence relating to these other 34 Alabama counties to establish that blacks have been denied equal access to the political process, or that past discrimination has the present effect of discouraging participation by blacks in the political process, or that the at-large system of election is rooted in racial discrimination, or that their School Boards are unresponsive to blacks. There is therefore absolutely no evidence of any facts or circumstances in these 34 counties upon which the Court might make any specific Findings of Fact to support an inference of a discriminatory intent in the enactment or maintenance of Section 16-8 — 1, Code of Alabama 1975. To the contrary, the admitted and uncontested facts shown by the Pre-Trial Order show that blacks have been elected to the County Boards of Education in 7 of those counties, and that blacks serve as Superintendents in 5 of those counties. The Court therefore finds that the Plaintiff has failed to establish by a preponderance of the evidence that Section 16-8-1 unlawfully dilutes the black vote in any of those other 34 Alabama counties. Plaintiff has also failed to offer any evidence showing the intent or purpose of the Alabama legislature, or of any legislator, in enacting or maintaining Section 16-8-1 as a state-wide law, or in maintaining its application to Dallas County. Furthermore, Plaintiff offered no evidence to show that since 1915 any legislation has ever been introduced, considered, or defeated which would have amended Section 16-8-1 or removed Dallas County from its application, or that there has been any conscious, deliberate, or affirmative decision by the Alabama legislature to maintain Section 16-8-1 or the at-large election system thereby prescribed for Dallas County. The Court therefore finds that the evidence preponderates against any finding that Section 16-8-1 has been maintained by the Legislature for discriminatory purposes, either as a state-wide statute or as applied to Dallas County. 24. The Complaint was filed in this Action on October 19, 1978; the School Board’s Motions to Dismiss were denied on March 9, 1979; the Pre-Trial Order was submitted on November 16, 1979; the trial was commenced on November 26, 1979; and the Plaintiff completed the presentation of its evidence on March 12, 1980, at which time the School Board Defendants filed their Motions for Involuntary Dismissal. Although this Action was litigated before the decisions of the United States Supreme Court in City of Mobile, Ala. v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), Rogers v. Lodge, - U.S. -, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982), it was filed and tried after the decisions in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and Nevett v. Sides, 571 F.2d 209 (5th C.C.A., 1978). At all stages of this litigation, as well as in the Pre-Trial Order, all parties (including Plaintiff) recognized that proof of intentional discrimination was an essential element of the Plaintiff’s claims. It is apparent that the parties, as well as the Court, correctly anticipated how the intent requirement established in Washington v. Davis and Arlington Heights would be applied to this voting dilution case without the necessity for the Supreme Court’s later opinions in Bolden and Rogers. (See Lodge v. Buxton, 639 F.2d 1358, (5th C.C.A., 1981), aff’d. Rogers v. Lodge, supra. Thus counsel for Plaintiffs, in oral argument before the Court at the hearing held January 3, 1979, and in written Brief served January 17, 1979, acknowledged that a showing of intentional discrimination is required in voting dilution suits based on the 14th Amendment, but argued that the required intent could be established either by proof that the voting • plan was enacted with a discriminatory motive, or by proof supporting an inference from circumstantial evidence under the Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) Nevett, and Kirksey, criteria that such plan was maintained for a discriminatory purpose in Dallas County. In the PreTrial Order, the parties recognized as a contested issue of fact whether intentional and invidious racial discrimination was a motivating factor in the enactment and maintenance of the laws and procedures of the State of Alabama prescribing and governing the election of members of the Dallas County Commission and the Dallas County Board of Education. In the presentation of its case at trial, the Plaintiff attempted to prove those criteria set forth in Zimmer, Nevett, and Kirksey, offering such evidence against all Defendants. The Plaintiff also attempted to prove that intentional and invidious racial discrimination was a motivating factor in the enactment and maintenance of the laws and procedures of the State of Alabama prescribing and governing the election of members of the Dallas County Commission. However, the Plaintiff — having admitted the constitutionality of Section 16-8-1 of the 1975 Code of Alabama and the at-large electoral system thereby prescribed — made a deliberate decision and offered no evidence to establish that intentional and invidious racial discrimination was a motivating factor in either the enactment or the maintenance of that state-wide Alabama law. Thus Plaintiff attempted to prove its claims against the School Board Defendants merely by arguing and attempting to show that this state-wide law had been unconstitutionally applied in Dallas County in a manner different from that by which it had been applied in other counties. Plaintiff also attempted to prove a discriminatory purpose by inference from evidence offered under the Zimmer criteria to show that the impact or effect of this State law in Dallas County produced an unconstitutional result. 25. The Plaintiff, at trial, offered evidence against all of the Defendants, including the Probate Judge and other members of the Dallas County Commission (hereinafter County) as well as the School Board Defendants. A large part of the testimony was offered against all of the Defendants— especially evidence relating to Plaintiff’s claims of past discrimination in Dallas County and the alleged denial to blacks of equal access to the political process in Dallas County. However, a substantial amount of the evidence (especially that relating to the issue of responsiveness) related only to either the County or the School Board, but not both. Since these Findings of Fact relate only to the claims asserted against the School Board — and not the claims asserted against the County — it is appropriate to review the nature of the exhibits, testimony, and other evidence offered by the Plaintiff as proof of its claims against the School Board Defendants. This evidence consisted of exhibits which were identified in the Pre-Trial Order and stipulated as admissable as well as those exhibits marked and received in evidence at trial; the testimony of witnesses; the deposition of Frank Earnest, Jr., Superintendent of the Dallas County Board of Education; and (by stipulation) the record and proceedings in Civil Action No. 5945-70-H (in which the Plaintiff as well as the School Board Defendants were parties). 26. As required by the Order and Local Rules of this Court, the parties conferred prior to trial and marked and identified in the Pre-Trial Order all exhibits which they proposed to offer at trial (except exhibits to be used solely for the purpose of impeachment). Exhibits marked for identification as Government Exhibits 15,17,18-A, 18-B, 18-C, 19, 21, 22, 30, 39, 40, 41, 48, and 51 were withdrawn by Plaintiff, and were neither received nor considered by the Court. Government Exhibits No. 5, 5-A, 6-B-l, 6-B-2, 6-B-3, 13-A, 13-B, 14, 16, 20, and 49 were offered and received only against the County, but not the School Board. Exhibits 1, 2, 3, 4, 6-A-l, 6-A-2, 6-A-3, 8-A, 8-B, 9, 11, 47, 52 — A, 140, 141, and 53-139 related primarily to census, highways, demographic, and election information, and these exhibits were received and considered against the School Board as well as the County. Exhibits No. 10, 23, 27, 28, and 50 consisted of cases, statutes, or other laws of which this Court may take judicial notice, but which were nonetheless marked and received in evidence. Exhibits 10, 11, 12, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 42, 43, 44, 45, 46, and 50 consisted of a mass of historical documents, official reports, cases, laws, and constitutional proceedings (including those of which this Court may take judicial notice), all of which were offered by Plaintiff in an effort to prove past discrimination or its effect, or an alleged denial to blacks of equal access to the political process, or an alleged lack of responsiveness on the part of the School Board. Exhibits 7 and 52 were marked for identification, but were not received in evidence by the Court. The Court has carefully weighed, considered, and evaluated each and all of those exhibits which have been admitted in evidence against the School Board Defendants, and has considered their probative value, weight, and significance in making and rendering these Findings of Fact. 27. The Plaintiff called a number of witnesses in the presentation of its case against the Defendants. The testimony of a number of these witnesses related primarily to the Zimmer issues (as more fully set forth in the Pre-Trial Order) of whether blacks have equal access to the political process in Dallas County, and whether past discrimination has any present effect in discouraging participation by blacks in the political process in Dallas County. Such testimony was, of course, directed against all Defendants, including the School Board. On those issues the Court considered the testimony of Mr. Harold J. Avinger, Rev. F. D. Reese, Mrs. Marie Foster, Rev. Fairro Brown, Mr. Samson Crum, Mr. Edwin L. Moss, Mr. Gerald 0. Harvin, Mr. J. C. Davis, Sr., Mr. Cleophus Hobbs, Mrs. Ethel Lena Dixon, Mrs. Esther Snyder, Rev. Seaborn Powell, Mr. J. L. Chestnut, Jr., Mr. Percy Harrell, Mr. Joseph Pettway, Mr. Joseph Sappey, Mrs. Joyce McBride, Dr. Charles Cottrell (including his work papers introduced as School Board Exhibits 1 and 2), and Mr. Frank Earnest, Jr. (including his deposition admitted in evidence). Many of the foregoing witnesses also testified at considerable length with respect to Plaintiff’s claims that the County was unresponsive to the needs of blacks. Much of this testimony related to the location and condition of County roads within the Dallas County road system, and none of this testimony was directed against the School Board Defendants. In reviewing the testimony, the Court finds very little testimony relevant to or directed at the issue of whether the School Board was responsive to the needs of blacks. Other than the deposition- and testimony of Mr. Frank Earnest, Jr., the only other witnesses whose testimony even remotely touched on the issue of the responsiveness of the School Board were Mr.. Samson Crum, Mr. Edwin L. Moss, Mr. Gerald 0. Harvin, Mr. J. C. Davis, Sr., Mr. Cleophus Hobbs, Mrs. Esther Snyder, Mr. J. L. Chestnut, Jr., and Mr. Percy Harrell. The Court has considered and will discuss all such testimony relating to Plaintiff’s claim that the School Board has not been responsive to the needs of black citizens and residents of Dallas County. 28. At the conclusion of Plaintiff’s case, the Court took under advisement the Motions for Involuntary Judgment filed by the Defendants, and directed the County to proceed with the presentation of its testimony. The County then called as an expert witness Dr. James E. Voyles, who testified at length with respect to those issues which had been covered by Dr. Cottrell. The County also called as witnesses Mr. B. A. Riddle, Mr. Ray Bass, Mr. Terry Benton, Mrs. Pauline Bryant, Mrs. Catherine Revel, Dr. Clyde R. Walker, Mr. Richard Ray, Mr. Cassidy Bender, Dr. Sam Waldrop, Mr. Julian Lilienthal, Mr. Larry Lewis, Mr. Andrew Calhoun, Mr. Ralph Harris, Mr. John Cecil Campbell, Mr. W. H. Kendrick, Mr. Gene Norris, Mr. Malloy Chandler, and Mr. C. Stanley Baldwin. None of the testimony offered by the County related to the issue of whether the School Board was responsive to the needs of black (as those issues were framed in the Pre-Trial Order), except for testimony by Mr. Andrew Calhoun (a former County Commissioner) that he had done work on schools and school facilities in Dallas County, and the testimony of Mr. B. A. Riddle concerning qualifications of black applicants for secretarial jobs. The Court announced its decision to grant the School Board’s Motion for Involuntary Dismissal on July 24, 1981, and the School Board has not been a party to any subsequent trial proceedings since that time. The Court has considered the testimony and evidence offered by the County before that date only to the- extent that it might be relevant to establish the claims of the Plaintiff against the School Board, but has not considered any of that testimony for the purpose of refuting, impeaching, or diminishing Plaintiff’s evidence against the School Board. In ruling on the Motion for Involuntary Dismissal of the School Board Defendants, the Court has considered all of Plaintiff’s evidence, aided by any and all of the County’s evidence received prior to July 24,1981, that might be favorably considered to help establish Plaintiff’s claims against the School Board. 29. The provisions of Chapter 8 of Title 16 of the 1975 Code of Alabama (and specifically Section 16-8-1) constitute State laws of general application throughout the State of Alabama, and by their terms apply to and control the composition, terms of office, qualifications, and method of election of the County Boards of Education of 35 Alabama counties (including Dallas). Plaintiff contends that this State law has been unconstitutionally applied in Dallas County in a discriminatory fashion and differently from the manner in which it has been applied in the other 34 counties. Plaintiff has failed to establish that claim by any credible evidence. To the contrary, the Plaintiff has admitted (in response to the School Board’s Request for Admissions) that the method of electing members to the Dallas County Board of Education, i.e., the at-large method of election, does not differ from the method of election used to elect school board members in those other 34 Alabama counties. Furthermore, the evidence offered by Plaintiff at trial affirmatively shows that this state-wide statute has been applied in Dallas County in substantially the same way that it has been applied in every other Alabama county to which it applies. While it is true that members of the School Board have staggered terms, this result has not been caused or motivated by any improper or discriminatory scheme or purpose. To the contrary, these staggered terms are required by and are the result of the language of the Alabama statutes creating the present state-wide at-large system. The present state-wide at-large system was originally established in 1915 pursuant to Act No. 220, Acts of Alabama 1915. Section 2 of that Act provided for the at-large election of 5 members, and stipulated that the 5 persons receiving the highest number of votes from the county at-large would be elected. That Act expressly stated that the 2 members receiving the highest number of votes would then hold office for 6 years; that the 2 members receiving the next highest number of votes would hold office for 4 years; and that the member receiving the lowest number of votes would hold office for 2 years. That Act took effect with the General Election of November, 1916, with the aforesaid staggered terms of those members elected commencing upon their election. That Act further provided that in the November, 1918, election, and biennially thereafter, members whose terms expired would be filled by election for a new 6 year term. This 1915 state-wide law prescribed and resulted in staggered terms for all Alabama school boards, and the staggered terms thus created have continued until this date. The 1915 Act was amended by Act No. 442, Acts of Alabama 1919, which continued the at-large method of election. That Act also provided for elections for new 6 year terms to fill vacancies as the terms of present members expired. The 1923 Act amended the 1919 Act, to provide a method whereby every revenue district would have at least 1 member of the County Board of Education, but to be elected at-large. Act No. 524, Acts of Alabama 1923. The 1927 School Code continued the method which was originally adopted in 1915, and provided that new members would be elected for 6 year terms to succeed the member or members whose terms of office expire at that time. There have been no statutory changes since the 1927 School Code, except for recodifications, so that Alabama law still prescribes staggered terms not only for Dallas County, but also for the other 34 counties subject to the provisions of Section 16-8 — 1 of the 1975 Code of Alabama. There is a firm, longstanding state policy favoring staggered terms for members of Alabama’s County Boards of Education (including the School Board Defendants). Plaintiff’s claim that Alabama law is applied differently in Dallas County, and that the staggered terms in Dallas County are the result of some discriminatory purpose, are clearly without merit and are rejected by the Court. The Court attaches no significance to the fact that election officials in Dallas County have apparently assigned numbers to the various School Board positions, since it is inconsequential whether such numbers appear on the ballot or not. The significant fact is that by State law School Board members are required to run at-large, with staggered terms, not only in Dallas County but in the other 34 counties subject to Section 16-8-1, Alabama Code 1975. In any event, Plaintiff failed to offer any evidence to show that the other 34 counties do not also have numbered places, and thus failed to prove that a different practice is followed in Dallas County from that followed elsewhere. Plaintiff offered no other evidence, and made no other claims, of any other differences in the method or manner whereby this State law has been applied in Dallas County. The Plaintiff has therefore failed to establish its claim that this state-wide law has been unconstitutionally applied in Dallas County in a manner different from that applied in the other 34 counties. To the contrary, the evidence shows that this state-wide statute has been fairly and uniformly applied in Dallas County as well as the other 34 counties, and that the method of electing the School Board Defendants does not differ from the method of election used to elect school board members in those other 34 counties. 30. By stipulation and agreement of the parties, the Court has taken judicial notice of the entire record and proceedings in Civil Action No. 5945-70-H pending in this Court, together with all documents, evidence, and testimony taken and received into evidence in that school desegregation case. That Action was originally initiated against the Macon County Board of Education in 1963, and was amended in 1964 to include appropriate State officials. Lee v. Macon, 231 F.Supp. 743, (D.C.Ala.1964). The United States originally participated actively as amicus curiae in 1963, and has been a Plaintiff-Intervenor pursuant to Title IX of the Civil Rights Act of 1964, 42 U.S.C. 2000h, since August 31, 1963. Following the enactment of the Civil Rights Act of 1964, the Dallas County Board of Education adopted a voluntary desegregation plan on August 16, 1965, which was approved by the United States Department of Health, Education, and Welfare (HEW) under the provisions of Title VI of the Civil Rights Act of 1964. The School Board was one of only ten Alabama School Systems which adopted and submitted voluntary desegregation plans. This early voluntary plan conformed to the requirements of HEW, and was phased in over a period of three (3) years with concurrent publicity throughout Dallas County. The School Board’s voluntary plan not only conformed to the requirements of HEW, but also contained many of the principal features of the Model Desegregation Plan later adopted by the Three Judge Panel in its Order of March 22, 1967. The School Board was not a party to the original Lee case. TJiat Action, as amended, challenged the constitutionality of certain Alabama laws and certain practices of Alabama officials that encouraged and compelled racial segregation in local school systems. After enjoining enforcement of such laws and continuation of such practices, 231 F.Supp. at 754-55, the Three Judge Panel directed, inter alia, that the State officials obtain desegregation plans from all school districts in the State not then involved in other litigation. Lee v. Macon, 267 F.Supp. 458 (M.D.Ala., 1967), 478, 480-91, aff’d Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422. Because the School Board had previously adopted a voluntary plan, it was not involved in these proceedings at that time. After the Supreme Court decision in Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), the School Board and its Superintendent, Frank Earnest, Jr., were added as defendants on August 25, 1969, along with other school systems in Alabama. On October 23, 1969 the Three Judge Panel entered an Order requiring the School Board and other Alabama school systems to file desegregation plans prior to January 15, 1970, to be effective with the beginning of the 1970-71 school year. In that Order, the Three Judge Panel specifically ordered “that the United States, through the use of educational experts of the Office of Education, Department of Health, Education and Welfare, study the operation of each of the . . . school systems and confer with and assist each of said systems in formulating the required plan”. The School Board was specifically ordered “to cooperate fully with the representatives of the Office of Education, Department of Health, Education and Welfare, and to make available all information and records in their possession necessary to the development of the plans .. . ”. The Office of Education, HEW, was given fifteen days from the date of submission of the Plan to submit an alternative plan, “in the event the Plan as submitted will not realistically and effectively disestablish the dual system based upon race”. In response to that Order, the School Board utilized the University of South Alabama to formulate, prepare, and submit to HEW and the Justice Department a new plan of desegregation (The University of South Alabama was one of two institutions in the State of Alabama designáted and funded by HEW to perform such services). The Board adopted its Plan, with the approval of HEW and the Justice Department, and the Three Judge Panel by its Order of February 23, 1970 approved the Plan (with certain modifications contained in that Order) and ordered that it be placed into effect at the beginning of the 1970-71 school year. In that Order, the Three Judge Panel also ordered the School Board to file a projection of enrollment in each of . the schools prior to August 1, 1970, and also a report on the actual enrollment prior to September 30, 1970. By an Order of March 31, 1970 the Three Judge Panel transferred all aspects of the case involving Dallas County and four other school districts to this Court, at which time the proceedings involving the School Board were assigned Civil Action No. 5945-70-H and were assigned to this District Judge. This Court has actively handled that litigation and has supervised the School Board since that time, and is intimately familiar with the Lee case as well as the School Board and its responsiveness to this Court and its Orders. 31. The Dallas County School System operates in a predominately rural area. Approximately 75% of its enrollment is comprised of black students. Prior to the adoption of the 1970 approved Plan of Desegregation, the Board operated fifteen schools, most of which had been operated as black schools under the former dual system. Prior to the adoption of the 1970 approved Plan, the Board had (in 1965) adopted a voluntary Plan in compliance with HEW requirements. That earlier voluntary Plan had already produced some degree of desegregation in the three former all white schools. Under the terms of the approved Plan, the County was divided into three high school zones (Western, Northeastern, and Southern), which in turn were subdivided into elementary zones and junior high school zones. The actual physical boundaries of these zones were then and are now generally defined and limited by considerations of geography. The Alabama River separates the Southern Zone from the other two, and the Western and Northeastern Zones are generally defined and separated by the City of Selma, hilly terrain, the Cahaba River, and limitations imposed by transportation arteries. The population of the Western Zone is comprised primarily of blacks, while the other two zones have a high proportion of whites. However, both races are dispersed, and reside in all geographical areas of the County. The original Plan of Desegregation took into consideration all of the factors involved, and represented the best judgment and best efforts of the School Board, the University of South Alabama, HEW, and the Justice Department. That Plan recognized that most of the schools in the western zone and some of the other more remote schools would be predominately black because of population factors. The original projections prepared by the University of South Alabama in July, 1970 showed black enrollments of approximately 94% at Keith, 94% at Five Points, 93% at Salem, 83% at Martin Station, 92% at Hazen-Harrell, 95% at Shiloh, 86% at Tyler Union, 92% at E. M. Brown, and 93% at Hunter Mission. Those projections were based upon the number of students actually residing in those zones. However, all parties (including HEW and the Three Judge Court) anticipated that a substantial number of white students might drop out of the school system and attend private schools. Accordingly, the Three Judge Court ordered that a report on actual enrollment and racial composition be filed and served on all parties by September 30, 1970. On July 31, 1970, the School Board filed the projected racial composition of the student body, faculty, and staff for the 1970-71 school year, as required by the Three Judge Panel. After the beginning of school, on September 30,1970, the School Board filed the actual enrollment which had resulted from the approved Plan. Both the projection and the report of actual enrollment were filed by the School Board and served on all parties, and reflected the following: 1970-71 PROJECTED RACIAL COMPOSITION SCHOOL WHITE BLACK TOTAL Keith 54 797 851 Five Points 14 209 223 Salem 17 213 230 Martin Station 42 211 253 Hazen Harrell 26 301 327 Southside 917 916 1833 Tipton 246 588 834 Shiloh 19 418 437 Tyler Union 40 253 293 E. M. Brown 26 299 325 Hunter Mission 12 170 182 Brantley 150 342 492 Plantersville 453 367 820 Potters Station 114 131 245 Valleygrande 142 124 266 1970-71 ACTUAL ENROLLMENTS SCHOOL WHITE BLACK TOTAL Keith 0 897 897 Five Points 4 220 224 Salem 0 233 233 Martin Station 0 187 187 Hazen Harrell 0 497 497 Southside 998 712 1710 Tipton 0 613 613 Shiloh 0 486 486 Tyler Union 0 304 304 E. M. Brown 0 250 250 Hunter Mission 0 175 175 Brantley 0 505 505 Plantersville 505 324 829 Potters Station 86 63 149 Valleygrande 156 55 211 These 1970 reports reflected a substantial loss in white students attending the public school system at the beginning of the 1970-71 school year. For example, the projection showed 2,272 white students, whereas the actual enrollment was 1,749. This showed a loss of approximately 523 white students from the school system during the first year of the operation of the Plan. Most of those students transferred to private schools in Selma or surrounding counties near their residence. The black enrollment that year was close to the projections, and in fact was slightly higher than the projection. 32. There was no appeal from the final Order of the Three Judge Court approving and implementing the Desegregation Plan for Dallas County, and there were no objections filed to the projected or actual enrollment figures filed with the Court in 1970. However, on April 4, 1971, the United States filed a Motion for Supplemental Relief, alleging: that the School Board was operating its high school program in violation of the Desegregation Order; that the approved Desegregation Plan projected that white students would attend each school in the system; that the School Board’s report dated September 17, 1970 indicated that only four schools in the Dallas County System had white students in attendance; that the Court should reassess the effectiveness of the Desegregation Plan in light of the actual results achieved under the Plan as implemented; that reasonable alternative methods were available to the School Board to provide all students with an opportunity to receive a substantial desegregated education and to alleviate overcrowded conditions; and that technical assistance was available to the Court and to the School Board from the Office of Education to aid in the development, adoption, and implementation of a new Desegregation Plan. In that Motion, the United States specifically moved the Court to order the Board to prepare, in collaboration with the Office of Education of HEW, a new Desegregation Plan with respect to student attendance for the Dallas County School System, to be implemented at the commencement of the 1971 school year. This 1971 proceeding, and all of the aforesaid issues, were finally adjudicated and resolved by an Agreement and Consent Order entered July 27, 1971, which reaffirmed the original Desegregation Plan, ordered the Board to comply with the approved Plan “in all respects ... including the assignment of each student in the school system to the school facility designated in the Desegregation Plan to serve his or her attendance area and grade level on a non-segregated, non-discriminatory basis”, afforded the United States the opportunity “at any time during the 1971-72 school year to evaluate the progress in desegregation of the Dallas County School System... ”, and obligated the Board to cooperate with the United States in providing the information necessary for such evaluation. This subsequent evaluation was accomplished by the United States, and included a full review of school and attendance records, an examination of all reports submitted to HEW, and actual physical inspection of the Dallas County Schools during school attendance hours. There were no further complaints by the United States following that evaluation and inspection, and all prior objections of the United States to the approved Plan were concluded and satisfactorily resolved by the 1971 Consent Order. 33. On Septemb