Full opinion text
FRANK A. KAUFMAN, Chief Judge. The litigation in one of these two cases, Vaughns v. Board of Education of Prince George’s County, commenced on March 29, 1972. A number of opinions and orders were thereafter filed in that case. The facts and holdings set forth in those opinions and orders will not be repeated in this opinion. This court’s December 29, 1972 order was “a final Order as to the issue of student attendance.” Vaughns v. Board of Education of Prince George’s County, 355 F.Supp. 1051, 1064 (D.Md.1972). That final Order, after review by the Fourth Circuit and, in January 1973, by the Supreme Court, was left without change. “Other issues pertaining to faculty, administration, school construction, and legal fees and reimbursable costs of plaintiffs and their counsel [were] reserved [on December 29,1972] for subsequent determination by this Court. Additionally, [on December 29, 1972], this Court ..., for the time being, retain[ed] jurisdiction as instructed by the Supreme Court in Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968), with regard to the student attendance plan ... approved and decreed [on December 29, 1972], in order that this Court [might] supervise the implementation of the same.” Id. Between January 1973, and November 27, 1974, all of the non-student attendance issues were resolved by agreement among the parties. One of those agreements was embodied in a consent decree dated February 20, 1974, relating to faculty hiring and promotion. A copy of that decree is appended hereto as Appendix A. Also, during the January 1973 — November 27, 1974 period, compliance reports, letters and memoranda were filed by both sides. On that latter date, this court filed a Memorandum and Order, a copy of which is appended hereto as Appendix B. On March 13, 1975, this court filed a further Memorandum and Order, a copy of which is appended hereto as Appendix C. In those two Memoranda and Orders, this court relinquished jurisdiction in Vaughns subject to the right of any party to seek to have this court again resume jurisdiction. From March 13, 1975 until September 1, 1981, there were no developments in Vaughns. On September 1, 1981, certain (but not all) of the named plaintiffs in Vaughns moved to reopen that case, alleging violations by defendants of outstanding orders of this court in Vaughns and seeking appropriate relief. Defendants filed a motion Ne Recipiatur, which was denied by this court on September 28, 1981, in an order granting plaintiffs’ motion to reopen. Thereafter, certain parties plaintiff were added and dropped. On July 25, 1972, Vaughns was certified as a class action. Defendants challenge the viability, as of September 28, 1981 and presumably at all times thereafter, of the class certified in Vaughns under Fed.R.Civ.P. 23(b)(2). Although several named plaintiffs in Vaughns no longer have children in the Prince George’s County schools, three named plaintiffs do still have children in the school system. Even if this were not so, a class does not lose its status as a class in ongoing litigation simply because the claims of some members of the class have become moot, if the claims of all have not become moot. See Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975), in which Justice Rehnquist held that a class acquires “a legal status” separate from its representatives. Even when class representatives no longer have a live stake in the continued litigation, a case is not moot so long as there are non-moot class issues. Id. at 399, 401, 95 S.Ct. at 557, 558. Under such circumstances, new class action representatives should be appointed. It is firmly established that where a class action exists, members of the class may intervene or be substituted as named plaintiffs in order to keep the action alive after the claims of the original named plaintiffs are rendered moot. See Rogers v. Paul, 382 U.S. 198, 199 [86 S.Ct. 358, 359, 15 L.Ed.2d 265] (1965); Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir.1974), cert. granted, 425 U.S. 990 [96 S.Ct. 2200, 48 L.Ed.2d 814] (1976); Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir.1973). This procedure is deeply implemented in desegregation cases, where the mootness problem constantly arises because of protracted litigation and the eventual graduation of named plaintiffs. Graves v. Walton County Board of Education, 686 F.2d 1135, 1138 (5th Cir.1982). In Vaughns, although three named plaintiffs in the original suit still have children in the Prince George’s County school system, plaintiffs moved under Fed.R.Civ.P. 21 to add as additional named plaintiffs to the reopened suit four sets of parents and the Prince George’s County Chapter of the NAACP. This court granted plaintiffs’ motion. Rule 21 provides in pertinent part: Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. A motion to add parties should be granted when, as in Vaughns, the parties to be added are members of the class represented and seek the same relief. See Rogers v. Paul, 382 U.S. 198, 198-99, 86 S.Ct. 358, 359, 15 L.Ed.2d 265 (1965) (per curiam). The four new sets of parents, who reside in Prince George’s County, have children of school age in the Prince George’s County school system, ask for the same type of relief sought by the original plaintiffs, and are acting on their own behalf and on behalf of their school-age children. As to the Prince George’s County Chapter of the NAACP, the latter is an unincorporated membership association of Prince George’s County residents, the members of which include parents of black school-age children who attend Prince George’s County schools. A membership association such as the NAACP is a proper party when either the association or its members have suffered injury. Local chapters of the NAACP have been held to be proper parties in school desegregation suits, as well as in other types of suits. See, e.g., Tasby v. Estes, 572 F.2d 1010, 1012 n. 2 (5th Cir.1978); Boyd v. Gullett, 64 F.R.D. 169, 172-73 (D.Md.1974) (Young, J.), and Supreme Court and other decisions cited and discussed thereat. In 1972 neither this court nor any of the parties realized that no order was filed by this court specifically naming any class action representatives. Seemingly, this court and the parties assumed that all named plaintiffs in Vaughns were the class representatives. After that 1972 error was discovered by counsel in 1981, plaintiffs’ petition for entry of an order designating Reginald Jackson, Stanley Gilmore and John Williams, nunc pro tunc, representative plaintiffs on behalf of the class certified in Vaughns in 1972, was granted. That formal defect does not defeat the class certification herein. See Graves, supra, in which the Fifth Circuit held a desegregation case to be a class action although a formal order of class certification had erroneously never been entered. 686 F.2d at 1140. However, defendants’ attack on this court’s entry in 1981 of an order designating class representatives in Vaughns is not confined to the technical 1972 error. Rather, defendants contend that the class certified in Vaughns in 1972 no longer exists. Specifically, defendants assert that the requirements of Fed.R. Civ.P. 23 are not met in Vaughns because (1) persons who might join in plaintiffs’ cause of action are no longer so numerous as to require or permit a class action; (2) there are no questions of law or fact common to the class, which consists of all parents with black children in the Prince George’s County public school system; (3) the claims of representative party plaintiffs are not typical of the claims of the parents of all black children in the Prince George’s County school system; and (4) the party plaintiffs will not fairly and adequately represent the interests of all parents of black children in the Prince George’s County public school system. Each of those contentions lacks merit. The number of black students (and also the number of their parents) runs in many tens of thousands. The very recital of the fact and law issues displays commonality and typicality. There never was any indication that the class action representatives would not fairly and adequately represent the interests of black parents and their children and the record in this litigation discloses that they in fact have so done. Even if some of the parents of black children had recently taken positions in opposition to the position of other such parents who desired to reopen this litigation in 1981, that does not destroy any of the factors calling for class certification in Vaughns. Similarly unpersuasive is defendants’ additional argument, addressed at least in part to the typicality requirement of Rule 23(a)(3) and in part to the adequacy-of-representation requirement of Rule 23(a)(4), that there may be conflicting interests within the class because some children may be happy with the present system, even assuming its discriminatory character. The fact that some members of the class may be personally satisfied with the existing system and may prefer to leave the violation of their rights unremedied is simply not dispositive of a determination under Rule 23(a). Nor-walk C.O.R.E. v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968). Wilder v. Bernstein, 499 F.Supp. 980, 993 (S.D.N.Y.1980) (footnote omitted). Defendants further attack class certification in Vaughns on the grounds that plaintiffs lack any substantial likelihood of success on the merits, because black children in the Prince George’s County system are no longer, say defendants, suffering under a racially discriminatory educational system. However, pursuant to that contention, what defendants in essence are asking this court to do in the context of refusing class certification is to make a determination on the merits as a prerequisite to continuing class certification, a type of procedure which the Supreme Court specifically disapproved in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974). In 1981, when this court granted plaintiffs’ motions in Vaughns with regard to designating class representatives and adding and dropping parties, defendants were afforded by this court the opportunity timely to file at a later date a decertification petition with affidavits supporting their contentions that the Vaughns plaintiffs did not meet the requirements of Fed.R.Civ.P. 23. No such decertification petition has since been filed by defendants. This court also raised with counsel the possibility that any groups within the black community of Prince George’s County who were hostile in 1981 to the claims asserted by plaintiffs in the within litigation might seek to form one or more classes or subclasses and intervene herein. No such group or individual has so sought to intervene. Defendants have at all times since September 1981 challenged the subject matter jurisdiction of this court in Vaughns, contending that (1) all vestiges of the past racial discrimination which had led this court to issue its December 29, 1972 order had been eliminated by March 1975 and (2) defendants (a) did not intentionally violate any of their constitutional or other duties or (b) violate any outstanding order of this court, in the period subsequent to November 1974 or March 1975 or indeed at any time after December 29, 1972. After defendants contended that this court lacked subject matter jurisdiction to permit in 1981 the reopening of Vaughns, plaintiffs, while strongly disagreeing with defendants’ contention, instituted, on October 8, 1981, a new case, NAACP v. Board of Education of Prince George’s County (NAACP), which was not brought as a class action. NAACP was consolidated for all purposes with Vaughns on November 27, 1981 under Fed.R.Civ.P. 42(a), because those actions present common questions of both law and fact. The Fourth Circuit has expressly recognized the desirability of consolidating separate lawsuits concerning desegregation of a particular school district. See Allen v. State Board of Education of North Carolina, 447 F.2d 960, 961-62 (4th Cir.1971), cert. denied, 405 U.S. 920, 92 S.Ct. 948, 30 L.Ed.2d 790 (1972). Consolidation is particularly appropriate when identical issues are raised against the same defendants. Fields v. Wolfson, 41 F.R.D. 329 (S.D.N.Y.1967) (Mansfield, J., then a district judge). This court concluded, early in the course of this litigation, that this court possessed, in September 1981 and thereafter, subject matter jurisdiction in both Vaughns and NAACP if only to take jurisdiction to determine relevant and material disputed questions of fact and of law underlying defendants’ challenges to jurisdiction. In Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1945), Justice Black wrote: Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. (Citations omitted; emphasis added). An exception applies when the claim appears to be wholly insubstantial and frivolous; then the suit may be dismissed for want of jurisdiction. Bell, 327 U.S. at 682-83, 66 5. Ct. at 776. See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 70-71, 98 S.Ct. 2620, 2628-29, 57 L.Ed.2d 595 (1978). A claim is insubstantial only if its unsoundness so clearly results from previous decisions so as to foreclose the claim and leave no room for the inference that the question sought to be raised can meritoriously be the subject of controversy. Hagans v. Lavine, 415 U.S. 528, 537-38, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577 (1974). Plaintiffs’ allegations that defendants have not only failed to achieve desegregation, but have impeded desegregation are far from being so patently insubstantial or frivolous as to justify dismissal for lack of jurisdiction. The same is true of a number of other claims made by plaintiffs. In determining jurisdiction, a federal court must sometimes investigate and even decide the merits of an action.. Land v. Dollar, 330 U.S. 731, 739, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947). In this litigation, plaintiffs attack defendants’ conduct of the Prince George’s County school system in relation to faculty hiring, faculty assignments, special education for the handicapped and for talented and gifted students, student discipline, student classroom assignments and student assignments to schools. Each of those areas will be discussed infra in that sequence. There are three overriding legal questions which require examination in connection with each of those areas within which plaintiffs seek relief in this litigation: (1) whether defendants have or have not eliminated all vestiges of the pre-January 1973 discrimination; (2) whether defendants have intentionally engaged in any discriminatory conduct since January 1973; and (3) whether defendants have violated any outstanding order of this court. If plaintiffs establish either (1) failure of defendants to eliminate such vestiges or (2) intentional racial discrimination whether related or unrelated to the pre-1973 system or (3) violation by defendants of any outstanding order of this court, then plaintiffs are entitled to relief with regard to such substantive area or areas in the within consolidated litigation. I. FACULTY HIRING Paragraph 5 of the consent decree in Vaughns dated February 20, 1974 provides, in pertinent part: 5. The Defendant school system’s goal is to employ a percentage of blacks in all job categories which is generally reflective of the percentage of the black population of Prince George’s County, or generally not less than 19%. In 1974, when the consent decree was entered, the black population of Prince George’s County was approximately 19%, as was the percentage of black faculty employed by the school system. The percentage of black students in September 1974 was 30.8%. Today the black percentages of the county population and of the student population have jumped, respectively, to approximately 40% and 50%, but blacks make up only 25% of the school system’s faculty. Plaintiffs contend, and defendants deny, in that context, that defendants are in violation of paragraph 5 of the consent decree. Both the facts of this litigation and the case law are instructive with regard to those opposite positions. Morgan v. O’Bryant, 671 F.2d 23 (1st Cir.1982), involved several appeals from an order of the district court (Garrity, J.) which had the effect of abrogating the “last hired, first fired” rule governing layoffs of teachers and administrators in the Boston public schools, so as to mitigate the adverse effect of that rule upon relatively recently hired black teachers in the event layoffs became necessary. That order was entered by the district court at the request of the school system, and over the objection of unions representing teachers and administrators. The purpose of the order was to protect black teachers and administrators who had been hired by the Boston public schools pursuant to the district court’s desegregation decree. That decree had ordered the school system to hire blacks and whites on a one-for-one basis until the percentage of black teachers reached 20%, the approximate percentage of blacks in Boston at the time of the decree. Further, the decree called for affirmative recruitment to continue until the percentage of black teachers reached 25%. See Morgan v. Kerrigan, 388 F.Supp. 581, 582-83 (D.Mass. 1975), aff'd, 530 F.2d 431 (1st Cir.1976), cert. denied, 426 U.S. 935, 96 S.Ct. 2649, 49 L.Ed.2d 386 (1976). The desegregation decree with regard to faculty hiring was predicated upon the district court’s conclusion that the school system was discriminating in that area. See Morgan v. Hennigan, 379 F.Supp. 410, 463-66 (D.Mass. 1974), aff'd, 509 F.2d 580 (1st Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). By early 1981, the percentage of black teachers had reached 19.09%; that of black administrators had reached 20.53%. A budget crisis encountered by the school system in that year raised the possibility of massive teacher layoffs, and prompted the district court’s directive with regard to the formula for layoffs of teachers and administrators. Writing for the First Circuit, Judge Campbell upheld the district court’s order, noting (at 26) that the Supreme Court had held in Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (Milliken II), that, “like all other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. The remedy must therefore be related to ‘the condition alleged to offend the Constitution____(Citations omitted; emphasis in original). Judge Campbell further commented: It is plain that the present order, aimed at preserving a goal concerning the percentage of black teachers and administrators, is directly related to the unconstitutional conditions earlier found by the district court. This court has twice upheld the underlying district court orders concerning the percentage of black faculty as part of the desegregation remedy. Morgan v. Kerrigan, 509 F.2d 599 (1st Cir.1975); 530 F.2d 431 (1st Cir.1976). In 1975, we said that, having “found pervasive violations of the constitutional rights of black school children in the Boston schools,” the district court had an “obligation ... to rectify those violations,” and we concluded that orders related to the percentage of black faculty “are directed toward the objective of eradicating the segregated system that has prevailed in the Boston schools, and [are] clearly within [the district court’s] power in the context of this case.” 509 F.2d at 600-01. We further held in 1976 that the 20 percent goal was a valid part of the effort “to eliminate segregation and its effects ‘root and branch,’ ” 530 F.2d at 432, citing Green v. County School Board, 391 U.S. 430, 438 [88 S.Ct. 1689, 1694, 20 L.Ed.2d 716] (1968). The 20 percent formula is thus clearly a part of the remedy earlier approved in this case to rectify the unconstitutional condition found to exist. The purpose of the order under review is to safeguard the progress toward desegregating the faculty and administrative staff — and thus the progress toward dismantling the dual school system — already made. Judge Campbell wrote that, although progress in the direction of desegregation in faculty hiring had been made, “[t]he ... desegregation remedial goals have not been fully achieved,” id. at 27 n. 5, and concluded (at 22): “The elimination of the vestiges of a segregated school system cannot be accomplished until the effects of past hiring discrimination have been eradicated.” Id. Herein, plaintiffs assert that the goal set forth in paragraph 5 of the February 20, 1974 consent decree has not been met, and that defendants have therefore failed to eliminate all vestiges of the dual system with respect to faculty hiring. However, while the remedial orders with regard to faculty hiring entered by the district court in the Boston school desegregation case were predicated on a finding of unconstitutional discriminatory action by the defendants therein, at no time in the within litigation has this court or any other court adjudicated the question of whether or not the Prince George’s County school system has discriminated in faculty hiring. Indeed, the February 20, 1974 consent decree explicitly stated {see p. 6) that it “... [did] not constitute an admission by Defendants of any violation of any provision of the Constitution or laws of the United States or of the State of Maryland.” Moreover, no evidence has been presented showing that the Prince George’s County school system did in fact discriminate in faculty hiring in the pre-1972 period. By 1974, the percentage of black faculty employed by the school system equaled the percentage of black population in the county generally. Plaintiffs also claim that defendants intentionally have failed to live up to the hiring goal established by the February 20, 1974 consent decree and have violated it. The reality, however, as disclosed by the record, is that between 1973-74 and 1981-82, a period of declining enrollment and, thus, declining numbers of faculty and staff, both the absolute number and the percentage of blacks increased in each and every specific job category within the general category of “faculty,” save one. Even in that one specific job category in which a very slight black percentage decrease was experienced (librarians), the absolute numerical decrease of blacks was less than that of whites. The following chart is illustrative: 1973-74 1981-82 White & White & Position Total Black Other > Black Total Black Other o Black Principal 234 31 203 13.2 198 47 151 23.7 Vice-Principal 158 36 122 22.8 101 41 60 40.6 Elementary Classroom Teachers 2691 571 2113 21.5 2066 616 1450 29.8 Secondary Classroom Teachers 3185 577 2608 18.1 2675 637 2038 23.8 Other Classroom Teachers 374 66 308 17.6 924 203 721 22.0 Librarians 205 51 154 24.9 178 43 135 24.2 Guidance 212 38 174 17.9 211 55 156 26.1 Other Professional Staff* 1041 215 826 20.7 323 81 242 25.1 Total 8100 1592 6508 19.7 6676 1723 4953 25.8 Change in Size of Staff 1973-74 1981-82 Net Change fo Change Total 8100 6676 - 1424 - 17.6 Black 1592 1723 + 131 + 8.2 White & Other 6508 4953 - 1555 - 23.9 Thus, the facts require the conclusion that since the entry of the February 20, 1974 consent decree, the school system has made good faith efforts to hire black faculty. Those efforts include recruitment of blacks at schools with both majority white and majority black student populations, and advertisements in black publications. Nevertheless, it is undeniable that the system has experienced difficulty in hiring black faculty- Part of that difficulty is seemingly caused by factors common to all of the neighboring public school jurisdictions: the high cost of living in the Washington, D.C. metropolitan area and areas close to it, keen competition among school systems in that region for qualified black faculty, the fact that many qualified black teachers and educators are seeking positions and skills in professions other than teaching, and the fact that changing social values have made it easier for blacks from the deep south to find satisfactory employment close or closer to their homes. In some respects, however, the problems which the Prince George’s County school system are experiencing arise from the fact that that county’s system is in decline, in terms of pupil enrollment, whereas some other nearby school systems are increasing their enrollments and expanding their facilities. Thus, during the period from 1976-77 to 1980-81, while the Fairfax County school system in northern Virginia not far across the Potomac from Prince George’s County had a net increase of 159 in the level of its black faculty, Prince George’s County was able to register a net black increase of only 27. Not only did Fairfax so expand, but its salary structure was much more attractive than that of Prince George’s County. Further, because the Fairfax system was in an expansion phase, it was less likely that a newly hired teacher would soon have to face the possibility of layoff. In sum, the evidence shows that despite the fact that the Prince George’s County school system has not met the black faculty hiring goal set forth in the February 20, 1974 consent decree, it seemingly has done as well as it could do. Recent patterns of faculty hiring in Prince George’s County not only disclose no link with pre-1974 discrimination, if in fact the same did exist with relation to faculty hiring, but also are free of indication of any intentional discrimination since 1974 or of any action or lack of action constituting violation of the 1974 consent decree. Accordingly, plaintiffs are entitled to no relief herein with regard to faculty hiring. II. FACULTY ASSIGNMENTS Faculty assignments were not an issue in the pre-1973 stage of the within litigation. Paragraph 47 of the joint stipulation of facts filed by the parties on July 6, 1972 states: That however, on March 25, 1971, the defendant Board of Education of Prince George’s County adopted a Resolution entitled “Teacher Staffing” pursuant to which Resolution each and every public school operated by defendant will have a racial balance of the teacher staff generally consistent with and reflective of the countywide racial composition of all of the teachers employed by the Board of Education prior to the commencement of school opening, September, 1972; that said Resolution phased into operation faculty integregation [sic] over a two year period, with one-half of the attainable goal accomplished as to the opening of school, September, 1971, with the remaining one-half to be completed as aforestated. That as of this date, and for the past preceding months, teacher assignments have been issued by defendant Board of Education, notifying teachers of their transfer to new schools commencing September, 1972, in accordance with the Resolution of the Board of Education. The goals to be attained pursuant to the Resolution aforestated call for no individual school in Prince George’s County to contain less than 10%, nor more than 25% black faculty. That attached hereto, as Exhibits 14 and 15, are photostatic copies of the Resolution of the Board of Education of Prince George’s County, and its qualified acceptance by HEW. Paragraph 47 is a restatement of an obligation to desegregate faculty assignments undertaken by the school system as a result of directives issued by the then federal Department of Health, Education and Welfare (HEW). The policy of the Prince George’s County Board of Education with regard to faculty assignments was formulated in 1971. Its objective was to accomplish the integration of teaching staff through a phased-in set of reassignments. Phase I, which was to be completed by September 1971, required that blacks would not comprise less than 5% or more than 40% of the total professional staff at any school; Phase II set the ll%-25% guidelines. The school system no longer adheres to the ll%-25% formula. That formula was chosen because it represented a plus or minus seven percent spread from the county black population and the percentage of black faculty at that time, both of which were approximately 18%. As the percentage of black staff increased as a consequence of the school system’s efforts to hire additional black staff members pursuant to the February 20, 1974 consent decree, it became unrealistic to maintain the ll%-25% guidelines. Thus, the guidelines were shifted upward in 1978 to 21%-35%, a plus or minus seven percent spread from the 1978 countywide black population of 28%. HEW was made aware of that shift when it was made, and indicated no objection to it. Plaintiffs contend in this litigation that while a change in 1978 was necessary, it should not have been to 21%-35%, since the black percentage of faculty in the school system was nowhere near 28%. Rather, say plaintiffs, since the black percentage of faculty in 1978 was approximately 23%, the guidelines should have been shifted to 16%-30%. Taking that view, plaintiffs have calculated the number of schools which are outside of a plus or minus seven percent spread centered on today’s black proportion of faculty (25%), and assert that 84 of the 182 schools open during the 1981-82 school year had “racially identifiable faculty.” Plaintiffs rely on the Supreme Court’s opinion in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 1277, 28 L.Ed.2d 554 (1971), in which Chief Justice Burger wrote: In Green, we pointed out that existing policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities were among the most important indicia of a segregated system. 391 U.S., at 435 [88 S.Ct., at 1692]. Independent of student assignment, where it is possible to identify a “white school” or a “Negro school” simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown. The situation in Swann, however, which required relief, was very different from that in Prince George’s County. In Swann v. Charlotte-Mecklenburg Board of Education, 300 F.Supp. 1358, 1370 (W.D.N.C. 1969), Judge McMillan found: e) Faculty Desegregation. — The Board employs over 2,600 white teachers and over 900 black teachers. New teachers hired last year numbered 700. Technically their contracts are with the Board of Education to teach where assigned. The Board makes no sustained effort to desegregate faculties. The choice where to teach is a matter between the principal and the prospective teacher. The Board assumes white teachers will tend to choose white schools and black teachers black schools. The results of this passive selection policy are obvious. Of the thirteen all-black schools in the system serving 8,840 students, only four have any white teachers. Those four have ten white teachers and 161 black teachers for 3,662 students. Few predominantly black schools have any substantial number of white teachers, except a few schools which serve areas rapidly turning from white to black. Eight other schools 99% or more black had only six white teachers among them for 5,246 black and 24 white pupils. Second Ward and West Charlotte High Schools, with 2,700 black students and three white students, have 131 black teachers and only nine white teachers. All of the white elementary schools have at least one and in a few eases as many as three or four black teachers. The proportions of black teachers in the junior and senior high schools run slightly higher. The system has not operated, however, to produce any substantial teaching of black students by white teachers. In Swann, the necessity for faculty reassignment was predicated upon those findings. See United States v. Montgomery County Board of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969), cited in Swann, 402 U.S. at 19-20, 91 S.Ct. at 1277-78, for the proposition that faculty reassignment is a permissible remedy to alleviate faculty segregation. In Montgomery, then District Judge Johnson found that among the indicia of the dual system which existed in Montgomery County, Alabama was the fact that Negro teachers are assigned only to schools attended by Negro students and white teachers are assigned only to schools attended by white students. 395 U.S. at 229, 89 S.Ct. at 1672, quoting Carr v. Montgomery County Board of Education, 232 F.Supp. 705, 707 (M.D.Ala. 1964). Similarly, in the Boston school desegregation case, Chief Judge Coffin wrote on appeal: The district court found that most of the black teachers in the Boston school system were teaching in schools whose student population was over 50 percent black. In 1972-1973 68 percent of the black teachers were concentrated in the 59 schools (29 percent of the total) which were majority-black. 379 F.Supp. at 459. Further, 81 schools (40.3 percent) had never had a black teacher, and 35 others (17.4 percent) had had only one black teacher in any year since 1967-1968 (the earliest year for which figures were put in evidence). All 19 black administrators were assigned to nine majority-black schools during 1972-1973, and the five black principals were assigned to schools ranging from 66 percent to 97 percent black. While no school had a faculty which was more than 50 percent black, that fact is hardly significant in light of the fact that blacks constituted only 5.4 percent of the permanent teaching staff. Morgan v. Kerrigan, 509 F.2d 580, 595 (1st Cir.1974). Thus, a racially identifiable faculty can be said to exist when black faculty is concentrated in black schools. But that is simply not the case in Prince George’s County. Indeed, taking the term “racially identifiable black school” as plaintiffs have defined it with respect to student population (i.e., a school in which the black student population is more than 20 percentage points higher than the systemwide black student percentage, which was 52.1% black in September 1981), the record discloses that in 1981-82 black faculty in the Prince George’s County school system was spread out among the entire system and was not concentrated in certain schools. In 1981-82, there were 390.5 black faculty members in the county’s senior high school system; there were then three senior high schools which were racially identifiable black schools by plaintiffs’ definition, i.e., with black student populations of over 72.1%; and in those three schools there were 80 black teachers or only approximately 20% of the total number of senior high school black faculty. In 1981-82, there were 427.2 black faculty members in the county’s junior high school system; there were then six junior high schools with black student populations of over 72.1%; and in those six schools there were 101 black teachers or only approximately 23.6% of the total number of junior high school black faculty. In 1981-82, there were 799.5 black faculty members in the county’s elementary school system; there were then thirty-six elementary schools with black student populations of over 72.1%; and in those thirty-six schools, there were 254.4 black teachers or only approximately 31.8% of the total number of elementary school black faculty. Accordingly, the facts require the conclusion that with respect to faculty assignments, there presently are no vestiges of past racial segregation, no indications since 1973 and indeed before 1973 of any discriminatory actions or lack of actions, and no violations of any order of this court. III. SPECIAL EDUCATION, TAG AND DISCIPLINE Plaintiffs contend that statistical evidence shows that racial imbalances exist in the Prince George's County special education and talented and gifted (TAG) education programs, and with regard to suspension and the disciplining of students, and that such imbalances are a vestige of the pre-1972 unconstitutional system and, in addition, have resulted from purposeful discriminatory actions and inactions on the part of defendants. There are no outstanding orders of this court which specifically relate to special education, TAG and discipline. In Milliken II, 433 U.S. at 279-83, 97 S.Ct. at. 2756-58, Chief Justice Burger held that a federal district court has the authority to order the implementation of ancillary programs beyond the adjustment of student attendance zones, faculty assignment and the like if such implementation is necessary to cure the continuing adverse effects of the school system’s unconstitutional status. A district court’s authority so to do continues even after the school system in question has achieved unitary status with regard to student assignment and other so-called core elements of a desegregated condition, so long as the need for such programs is causally linked to the prior unconstitutional condition. Oliver v. Kalamazoo Board of Education, 640 F.2d 782, 787 (6th Cir.1980). However, in such a context, the burden of proving the causal connection between the prior unconstitutional condition and the need for ancillary relief is upon those who attack. Id. at 810-11. The statistical evidence in this litigation shows that in the Prince George’s County system a greater percentage of blacks and a lesser percentage of whites are enrolled in special education classes, and that a lesser percentage of blacks and a greater percentage of whites are enrolled in talented and gifted programs than is reflected by racial percentages in the school system as a whole. That statistical evidence also reveals that the percentage of blacks who are suspended is greater than the percentage of blacks in the school system as a whole. A. Special Education The special education programs in the Prince George’s County school system are designed to serve the educational needs of handicapped children. Although the school system maintained special education programs in one form or another prior to 1972, the current practices and procedures followed by the system result from the enactment by Congress of the Education of All Handicapped Children Act of 1975, 20 U.S.C. § 1400 et seq., and rather similar provisions in Maryland law, Md.Educ.Code Ann. § 8-401 et seq. The federal legislation defines “handicapped children” to mean mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, or other health impaired children, or children with specific learning disabilities, who by reason thereof require special education and related services. 20 U.S.C. § 1401(1). Each of those categories is referred to in the special education field as a “handicapping condition.” Maryland law provides for six levels of special education services. The levels are defined in terms of the number of hours of special education services which the handicapped child receives — the higher the level of the handicapping condition, the greater the intensity of the service provided. In Level I, the special education program is delivered to the student in his regular classroom, with consultative services provided by the student’s regular classroom teacher and with the student being provided, if appropriate, with special materials and equipment. A Level II child receives up to one hour a day of special education instruction, with a total of not more than five hours per week. In Level III a child receives one to three hours of special education instruction per day, but no more than fifteen hours of such instruction per week. Level IV calls for direct special education instruction from three to six hours a day. Level V is an all-day program in which the student is placed in a separate school or separate wing of a regular school. Finally, Level VI is a 24-hour-a-day program in which the student resides at the special education facility. The level of services provided an individual handicapped child depends upon that child’s specific needs. There is no direct relationship between the level of service provided and a child’s handicapping condition. Federal and state law require, however, that in determining the level of special education services which a child is to receive, the school system must make every effort to place each handicapped child participating in the system’s special education programs in the least restrictive environment possible under the circumstances. See 20 U.S.C. § 1412(5). In the Prince George’s County school system, the philosophy of providing special education services in the least restrictive environment predated the enactment of the Education For All Handicapped Children Act of 1975. Special education services in Prince George’s County are delivered to handicapped students in a variety of settings, depending again upon the needs of each individual child participating in the program. The settings include the regular classroom, a resource room, and a self-contained classroom. To some extent, the level of service is related to the setting in which it is provided. Level I services, for example, are always given in the regular classroom and Level V services are always self-contained. Level II and III programs will most likely be found in the regular classroom or in a resource room, while Level IV services will most likely be provided in a resource room or in a self-contained classroom. There is statistical evidence showing that the percentage of black students in the special education programs is much higher than the percentage of black students in the system as a whole. In addition, the statistics indicate that the percentage of black students in the most restrictive levels of the special education programs with which plaintiffs are seemingly principally concerned (i.e., Levels IV and V) also is in excess of the percentage of black students as a whole. Finally, the statistics reveal that black children are overrepresented relative to their numbers in the entire system in those special education programs involving a cognitive or emotional handicapping condition, such as mentally retarded, emotionally disturbed or learning disabled, as opposed to physically disabled. On the other hand, in those special education programs involving a readily identifiable physical condition, such as the deaf or visually impaired, the percentage of black children is not disproportionately high. For example, in the 1979-80 school year, when blacks comprised 47.4% of the student population in the Prince George’s County schools, the racial compositions of the special education programs were as follows: Number and Percentage of Black Students Assigned Special Education Program Students Assigned As of February, 1980 549 (67.7% ) Educable Mentally Retarded 811 56 (65.1% ) Trainable Mentally Retarded 86 Special Education Program Students Assigned As of February, 1980 Number and Percentage of Black Students Assigned Seriously Emotionally Disturbed 332 159 (47.9% ) Specific Learning Disability 9,757 6,224 (63.8% ) Speech Impaired 2,322 897 (38.6% ) Deaf/Blind 1 0 ( 0% ) Orthopedically Impaired 253 81 (32.0% ) Visually Handicapped 78 39 (50.0% ) Deaf 113 50 (44.2% ) Hard of Hearing 134 48 (35.8% ) Other Health Impaired 271 117 (43.17%) Multihandicapped 848 361 (42.6% ) Total 15,006 8,581 (57.18%) Plaintiffs contend that they have shown intentional racial discrimination on the part of defendants with regard to placement of black students in special education programs on the strength of (1) the statistical disparities, (2) testimony by their expert witness, Dr. Wylamerle G. Marshall, that there is no educational reason for those disparities, and (3) evidence of allegedly inadequate special education placement procedures followed by defendants. As to Dr. Marshall’s testimony, it was given in extremely conclusory terms, and must be read together with the testimony of defendants’ expert witness, Dr. Rita Ives — testimony apparently representative of the weight of expert opinion in the field — that it can reasonably be expected that more black children will require special education programs than white children because statistically black children experience more health problems, receive fewer health services and less prenatal care, and are subject to less well-developed family structures than are white children. (Tr. at 2254-56). Plaintiffs rely heavily on the fact that a report prepared for the Office of Civil Rights by a private consulting firm ranked Prince George’s County as the 14th worst school system in the nation with regard to the overrepresentation of minorities in special education programs. See Plaintiffs’ Exh. 72, I Killalea Associates, Inc., Analysis of Selected Civil Rights Issues, at 56 (1980) (Report submitted to the Office of Civil Rights under Contract HEW-[ XXX-XX-XXXX ]) [Killalea Report], which listed the “100 [school] districts in the nation which most appear to warrant investigation for discrimination in the overrepresentation of minorities in ... special education programs.” Id. at 54. Herein, however, the evidence demonstrates that the procedures followed by the Prince George’s County school system in placing children into special education programs do not discriminate against black children. Dr. Ives stressed that, given the lack of basic knowledge concerning the art of placing students in special education programs, “[t]he only way [for a school system] to assure to the best of our knowledge at this point in time proper assessment [of children for referral to special education] is the process itself.” (Tr. at 2256). Testimony with regard to that process was given at trial by both Dr. Ives and by Mr. Robert T. Coombs, Director of Special Education in the Prince George’s County school system. A student initially is referred for placement in a special education program in Prince George’s County by a teacher, a parent, or someone in the medical community. The referral is made to a multi-disciplinary team which exists in each school and is known as the School Instructional Team (SIT). A SIT is constituted to review not only special education referrals, but also the program of any student who is experiencing problems in school, including health, academic performance, discipline and the like. The makeup, in terms of personnel, of a SIT varies, but it usually is composed of the school principal, one or more reading teachers, one or more special education teachers, one or more regular education teachers, the school psychologist, and a speech therapist. Each school’s SIT meets at least twice a month to discuss problems brought to its attention, and, after studying the same, attempts to remedy them. In dealing with a given problem, a SIT is often supported by a Supplemental Services Team (SST), which essentially is the SIT supplemented with supporting staff from the administrative area office in which the school is located. If the particular problem with which a SIT or a SST is grappling concerns a suspected handicapping condition, the SIT or SST transforms itself into an Admission, Review and Dismissal (ARD) committee, the body which under Maryland law is charged with placing and reviewing" students in special education. Functioning as an ARD committee, the SIT or the SST reviews data already on hand concerning a student referred to it and sets out to seek additional data about that student in order to determine if the student can appropriately be admitted into a special education program. Plaintiffs especially rely on the black/white disproportion in the Prince George’s County school system’s Specific Learning Disability (SLD) program. Children with an SLD are defined in the Education For All Handicapped Children Act of 1975 as [C]hildren who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. Such disorders include such conditions as perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Such term does not include children who have learning problems which are primarily the result of visual, hearing, or motor handicaps, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. 20 U.S.C. § 1401(15). The Prince George’s County school system has developed a checklist which each of its ARD committees uses as a guide in making its determination as to whether or not a child is suffering from an SLD. Since the definition of an SLD child essentially entails eliminating other possibilities for the child’s problem, the checklist provides for consideration and elimination of those other possibilities. Thus, one section of the checklist concerns physical (i.e., visual, hearing, or motor) problems. Such problems are ruled in or out by the use of visual and hearing tests and physical examinations, as well as inspection of the student’s health records. Another section of the checklist concerns social-emotional problems, and directs the ARD committee to consider other cognitive and emotional factors which could be causing the student’s learning problem. For example, mental retardation is ruled in or out through the use of various intelligence tests. The determination of whether “environmental, cultural, or economic disadvantage” is the primary reason for the child’s learning problem is principally accomplished through dialogue and assessment within the ARD committee, to which all committee members bring their expertise and perspectives to bear. Finally, other sections of the checklist refer to the child’s academic performance and the relationship of that performance to the child’s chronological age and grade level, the child’s intellectual ability level as measured by an I.Q. test, and the child’s perceptual skill level, i.e., his mastery of perceptual skills essential to the learning process. As with each of the other sections on the checklist, the members of an ARD committee do not simply run down the checklist making off-the-cuff determinations with regard to any given student. Rather, the evidence reveals that the committee members carefully evaluate on an individual basis each and every potentially handicapped student. The checklists are used as guides to channel discussion among those who determine who are the potentially handicapped students. The decision to place or not to place a student in special education is made by the group. No one individual, and no one test, makes that placement. Further, the parents of any student referred to an ARD committee are invited to participate in the committee’s deliberations with regard to their child. Once a handicapping condition is verified by the ARD, the next step in the process is the formulation of an Individualized Education Plan (IEP). The IEP is, essentially, a prescription for the child affected by a handicapping condition. It is formulated by a multidisciplinary committee, and parent participation is invited. The committee assesses the child’s needs and strengths, and attempts to devise a program which fits those needs and strengths. The IEP upon which the committee decides delineates the type and level of special education services which the child will receive. Once the IEP is developed, the parents of the child involved must give their approval to the program. If they do not approve, the child is not placed in special education. Each IEP is reviewed sixty days after it has been implemented, and thereafter is reviewed annually, and more often if requested by the parents involved. At each annual review, the level and content of services are examined to determine whether modification is required and also whether or not the student is ready to leave special education. The review is always conducted with parental input and by a multidisciplinary team. If a parent is dissatisfied with any part of the process of identification, diagnosis, formulation of an IEP, or review, that parent may appeal the decision to an impartial hearing officer certified by the State of Maryland. If the parent is dissatisfied with the decision of the hearing officer, a further appeal to a panel of three other hearing officers is permitted. In that connection, the record reveals that the Prince George’s County school system has never received a complaint from any parent that its procedures for special education identification or placement were biased or discriminatory against any black child. The school system is monitored by the State Board of Education of Maryland and the U.S. Department of Education, and has been found by both bodies to be in compliance with federal and state law. Dr. Ives, in her testimony, stated that the system’s special education programs are not only in compliance with state and federal law, but also presently incorporate “the best of the state of the art” with regard to both assessment of students for handicapping conditions and delivery of special education services. (Tr. at 2264). Taken as a whole, the Prince George’s County school system’s special education identification procedures emphasize three important features: 1. Group decision-making by a multidisciplinary team; 2. Parental involvement at every step of the process; and 3. Lack of reliance upon any single test instrument to place a child in any special education program. On cross examination, Dr. Ives testified: Q. [by counsel for plaintiffs] [B]ased on your investigation of Prince George’s County, did you see evidence that cultural differences and economic differences were being taken into account to make sure that black children were not being inappropriately placed in special education? A. Yes. Q. And could you tell us a little more about that? A. I certainly can. I think I have alluded to the checks and balances that exist in the assessment procedure. Part of the assessment procedure is teacher observation, it is psychologist observation, it is anecdotal records. There are many ways to assess a child that fall in the realm of informal assessment, so that there are ways that you observe creativity, that you observe intelligence in children that are not documented in standardized tests, those things are taken into consideration. If a cultural expression or a language pattern that is cultural — that is indicative of cultural difference and not intellectual difference is used, it is very naive to think that a series of people are not going to recognize that for what it is. That is evermost in assessment people’s minds. (Tr. at 2307-08). The total record in this litigation, showing the emphasis upon parental involvement and the lack of any parental complaints of discrimination, outweighs the suggestion of the statistical evidence that racial discrimination has been present in the administration of the special education programs. Further, while no one can be entirely certain in any school desegregation case that prior unconstitutional segregative practices with respect to school assignments have no lingering effects upon current practices relating to special education, one can be rather certain of that in this litigation. In sum, the evidence requires the conclusion that as to special education, there are no vestiges of past segregation, no intentional discrimination, and no violation of any order of this court. B. TAG The Prince George’s County school system operates a program for academically and intellectually talented and gifted students known as the TAG (talented and gifted) program. The purpose of that program is to identify students who have educational needs above and beyond what is offered in the regular curriculum, and then to provide instruction for them beyond that which is offered at their normal grade or age level. With respect to children who have educational needs which differ from the norm, the decade of the 1960’s was the decade of “special education.” The emphasis of educators, educational administrators, and the academic community was placed on handicapped and disadvantaged children. In 1970, however, Congress mandated that the Commissioner of Education undertake a study of the status of programs for talented and gifted students in the nation and report his findings to Congress. The report generated by that study was submitted to Congress in 1972. See Defendants’ Exh. 293, U.S. Commissioner of Education, Education of the Gifted and Talented (1972) (Report to the Subcommittee on Education of the Committee on Labor and Public Welfare of the U.S. Senate) [Marland Report]. The report focused attention on the fact that very little was being done to meet the particular educational needs of talented and gifted students. The Marland Report was given careful consideration in Prince George’s County. A review of programs for gifted and talented students undertaken by certain members of the staff of the school system revealed that while some individual schools had at least some programs for such students, their development and implementation were decentralized and haphazard. Thus, Prince George’s County schools were in a state similar to that of most other school systems in the nation with regard to TAG programs. In an effort to systematize and encourage the development of TAG programs in Prince George’s County, two administrators in that system, Dr. Lewis Wheat, the Coordinating Director of Instructional Services and Dr. Robert Shockley, the Assistant Superintendent for Instruction and Pupil Services, formed in 1972 within the system’s staff a Committee for the Gifted. (Tr. at 842-43). That Committee spent considerable time reading literature about TAG programs and consulted with experts in the field such as Dr. Joseph Renzulli of the University of Connecticut and Dr. Irving Sato of the California State Department of Education, both of whom had served on an informal panel which had aided the federal Office of Education in preparing the Marland Report. The result of that study and consultation was that the Committee for the Gifted recommended that a pilot TAG program be instituted in Prince George’s County during the 1973-74 school year. The nine schools in Cluster B of the Northern Area were chosen to implement the program, money was budgeted for its formulation, and a TAG coordinating staff was selected. The 1972-73 school year was spent in planning the TAG pilot program, which got underway on schedule in Cluster B during the following year. The pilot program continued until 1977, although it was expanded outside of the Cluster B schools into each of the three administrative areas during the 1975-76 school year. The program continued to progress and expand, and in 1978 the school system directed that all schools begin to plan and implement TAG programs. TAG became available systemwide for the first time in the 1980-81 school year. Talented and gifted students at the elementary and junior high school levels in Prince George’s County presently receive special instruction outside the regular classroom for only two hours per week. At the senior high school level, the classes which offer the talented and gifted programs are open to all students on an