Full opinion text
OPINION AND ORDER ORRICK, District Judge. This school desegregation case, brought by the San Francisco Branch of the National Association for the Advancement of Colored People (“NAACP”), a civil rights organization representing its members, and individual black parents proceeding on behalf of their own children, charges that the defendants, the San Francisco Unified School District, its Board Members, and its Superintendent (hereinafter collectively called “the District”), and the California State Board of Education and its members, the State Superintendent of Public Instruction, and the State Department of Education (hereinafter collectively called “the State”), engage in discriminatory practices and maintain a segregated school system in the City and County of San Francisco in violation of the Constitution and laws of the United States and of the State of California. Plaintiffs also bring this action pursuant to Federal Rule of Civil Procedure 23(b)(2) on behalf of all children of school age who are or may in the future become eligible to attend the public schools of the District and also who are entitled to do so under circumstances that afford them full and equal protection of the law. The case is now before the Court for a ruling determining whether the proposed Consent Decree (“the Decree”), annexed hereto as Exhibit A, is a fair, reasonable, and adequate resolution of the claims raised by the pleadings in this unique lawsuit. For the reasons hereinafter set forth, the Court holds that the Decree submitted is indeed fair, reasonable, and adequate and, given the extraordinary conditions under which it was negotiated, is unique. Accordingly, the Court orders the District and the State forthwith to implement the Decree according to its terms, including the schedules of important events set forth in the Decree itself. I To understand and to interpret the Decree one must have some insight into the enormous effort exerted not only by the parties themselves, principally through their able counsel, but also by the best experts on desegregation in the country, and by one of the top law firms in the country, Wilmer, Cutler & Pickering of Washington, D.C. Of equal or greater importance, one must remember the major goal of the Decree: to eliminate racial/ethnic segregation or identifiability in any District school program or class and to achieve throughout the system the broadest practicable distribution of students from nine racial and ethnic groups — Spanish-surnamed (comprising 17.2% of the general student population of the District), Other White (16.9%), Black (23.1%), Chinese (19.5%), Japanese (1.1%), Korean (1.0%), Filipino (8.7%), American Indian (0.6%), and Other Nonwhite (11.9%). The Court’s determination of the fairness and adequacy of this proposal is complicated by the lack of guidance by higher courts considering similarly diverse school districts. The sine qua non of the Decree is the agreement of the District to ensure this coming school year (1983-84) that no single racial/ethnic group shall comprise more than 45 percent, of the enrollment at any school. The evaluation of the fairness and adequacy of a consent decree can best be made against the backdrop of the entire litigation leading to its formulation. Against this backdrop, one may ascertain whether, given all the conditions existing at the time of negotiations, the bargain struck was indeed fair, reasonable, and adequate. A Here, the plaintiffs listed a series of specific practices or policies by which the defendants purportedly perpetuated the dual school system: constructing new schools and annexes, leasing private property for school use, and utilizing portable classrooms in order to incorporate extant residential segregation into the District; establishing feeder patterns, transfer and reassignment policies, optional and mandatory attendance zones to situate children in racially isolated schools; implementing racially discriminatory testing procedures, disciplinary policies, and tracking systems within schools and classrooms; hiring and assigning faculty and administrative personnel, and allocating financial resources in a discriminatory manner. Plaintiffs sought by way of relief a declaratory judgment and preliminary and permanent injunctions guaranteeing them equal education opportunity and fully desegregated schools under a court-ordered desegregation plan. The parties immediately embarked upon a lengthy period of extensive discovery and trial preparation that, until the filing of the proposed consent decree on the eve of trial, consumed the better part of four and a half years. During this period, the Court convened twenty-five pretrial hearings to consider motions and to remain apprised of the status of the case. The parties exchanged seven sets of interrogatories, nine requests for admissions, and ten requests for documents, and compiled numerous volumes of deposition testimony. Plaintiffs alone assembled three thousand exhibits for trial. The parties filed three important pretrial motions during this period of discovery that served to sharpen the issues for trial and precipitate the instant proposed settlement decree. On April 13, 1979, the State defendants filed a motion for dismissal or abstention. Defendants argued in part that the Court should not decide the “unsettled” issue of state law concerning the apportionment of policy-making powers between state and local authorities. Defendants argued in the alternative that plenary authority for establishing education policy, and primary responsibility for implementing such policy, rests with the state legislature and local school districts, respectively, and not with the defendant state agencies. The Court rejected these arguments and denied defendants’ motion in a written decision filed on September 18, 1979. In that decision, the Court declined to abstain, principally because relevant California law was sufficiently clear to suggest an appropriate resolution of the issues presented. Additionally, the Court reviewed the applicable state constitutional and statutory provisions, the state court interpretive rulings thereon, and the relevant federal authorities, and concluded that the State defendants may be made to bear responsibility for the alleged segregative practices of the District. On February 15, 1980, the District filed a motion for separate trial on the issue of whether, as of the filing of the instant complaint, they were operating a dual school system in violation of plaintiffs’ constitutional rights. Defendants argued in that motion that the convenience of the parties and the Court would be served by examining first in a separate trial the adequacy of the desegregation plan ordered in prior litigation and continuously implemented (with amendments) by the defendants through the proceedings in this action. Defendants maintained that if the “Education Redesign” plan adequately eliminated past acts of segregation, intentional or unintentional, there would be no basis for the Court to order additional relief, even if defendants’ liability for past segregative acts could be established. The Court denied the District’s motion for separate trial in a hearing on September 24, 1981, but adopted its suggestion by directing the parties to offer first at a single trial proof of the current conditions of segregation in the District as of the filing of the complaint. On June 6, 1980, while defendants’ motion for a separate trial was still pending, plaintiffs filed a 206 page motion and supporting memorandum for partial summary judgment on the issue of whether, as of 1954 and 1970, the District was racially segregated as to a substantial portion of its facilities, programs, student enrollments, and personnel. The memorandum traced the history of de jure segregation in the District from the establishment of “colored schools” and “Chinese schools” in the 1850’s to the segregation of the housing industry during the 1940’s and 1950’s. The memorandum also identified numerous instances of alleged discriminatory decision making inter alia in the selection of school sites, the establishment of student attendance zones and feeder patterns, the assignment of faculty and administrators, and the administration of achievement tests and discipline, from which the Court purportedly could draw the inference that the defendants intended to segregate the District. The Court, finding that plaintiffs had failed to establish the core of their case — the existence of a dual system as of 1954 — and that they had failed to assert a sufficient number of undisputed facts to create an inference of segregative intent, denied plaintiffs’ motion for partial summary judgment in an Order and Memorandum filed June 30, 1981. B Settlement discussions took place privately among the parties during the next nine months while they continued upon the Court’s instructions to prepare in earnest for trial. In April 1982 a three-day series of settlement conferences was commenced, between the Court and the plaintiffs on the first day, the Court and defendants on the second day, and among the Court and all parties on the third day. During these conferences the parties advised the Court that, except for current conditions at certain schools in the Bayview/Hunter’s Point area of the city, there was no serious impediment to settlement of the action. The Court suggested the appointment of a settlement team composed of the nation’s leading experts on school desegregation and education policy to resolve these difficulties. The parties readily agreed. Accordingly, by order filed May 7, 1982, the Court appointed eight persons pursuant to Federal Rule of Evidence 706 to serve as expert witnesses for the purpose of reviewing plans for settlement and making recommendations to the Court and the parties. The Court designated Professor Harold Howe II and Professor Gary A. Orfield, two of the best educators in the country, to co-chair the settlement team. Professors Howe and Orfield both have had extensive experience in desegregation cases and with the courts. The remainder of the team consisted of two designees of the plaintiffs, Professor Gordon Foster and Professor Robert L. Green; two designees of the District, Ms. Barbara Cohen and Mr. Fred C. Leonard; and two designees of the State, Dr. Pies A. Griffin and Dr. Thomas M. Griffin. In order to provide a basis for the settlement team discussions, the parties were directed to submit memoranda setting forth in detail the precise nature of their dispute concerning conditions at the Bay-view/Hunter’s Point schools specifically, and at other schools elsewhere in the District more generally. The parties were directed to include in their memoranda as well their current plans and/or alternate proposals for achieving complete desegregation within the school system. The Court scheduled a meeting among the settlement team, the litigation group, and the Court in early June, after team members had had an opportunity to review the parties’ memoranda, in order for the team to make initial recommendations to the Court and to the parties regarding the prospects for settlement. The settlement team was to deliberate in confidence, outside the presence of counsel, and the co-chairmen were to act as sole spokespersons for the team. All parties agreed that the prospects for settlement were promising and that the settlement team should confer privately to address the problems delineated in the parties’ settlement conference memoranda. The team co-chairmen assigned projects to individual team members who were to develop written solutions that could be incorporated into a comprehensive desegregation plan. The Court advised the parties that the trial date scheduled for February 1983 would not be changed and that, in the meantime, counsel for the parties were to continue to prepare for trial. Plaintiffs’ motion, though unsuccessful initially, proved to be a critical point in the course leading to settlement of the suit. In the process of ruling on plaintiff’s motion, the Court determined that numerous factual assertions made by plaintiffs were uncontested by defendants, and that these assertions should serve as stipulated facts for purposes of trial. The Court summarized these facts in an appendix to its Memorandum. Additionally, in order to aid the parties in their preparation for trial and for possible settlement negotiations, the Court commented on certain factual deficiencies in plaintiffs’ case (particularly concerning discrimination against minority groups other than Blacks) as well as areas (such as faculty and administrative hiring and placement) in which plaintiffs were factually strong and likely to prevail at trial. These findings and comments produced the desired effect of promoting discussions among the parties concerning a possible settlement of the action. After several intermediate meetings, including one conference with the Court and the litigation group on August 11, the settlement team met at the courthouse on September 22 and 23 to assemble and draft a final proposal. The team members, with exceptional diligence, resolved most of their differences during the short time remaining for their deliberations. The fruit of their labor, a final settlement team agreement, was delivered to the parties at a meeting of the litigation group the next day. Though a few areas of dispute remained, the parties agreed that the draft agreement did provide them with a framework on which they could work, and all were confident that a final accord was imminent. The parties were dispatched to draft a consent decree. By December 9, the parties had drafted large portions of a proposed consent decree, although they remained far apart with respect to a few key provisions. At a status conference held on that day, it became apparent to the Court that the parties shared a common conception as to how the desegregation plan should function, but that they could not agree as to how to reduce that conception to writing. Accordingly, with the consent of the parties, the Court appointed the Washington, D.C. firm of Wilmer, Cutler & Pickering to assist in drafting the final decree. The parties submitted the Decree to the Court on December 30. The Court convened a hearing that afternoon in accordance with Section 1.46 of the Manual for Complex Litigation. At the hearing, the Court made a preliminary determination that the proposed consent decree is fair, reasonable and adequate, and ordered that notice be given to the absentee class members and to the public in the form proposed in Appendix C of the decree.. The Court scheduled a public hearing on the fairness of the decree for February 14, 1983. The fairness hearing was held as scheduled on February 14. During the hearing, the Court heard a number of comments, both laudatory and critical, from the public. At the conclusion of the hearing, the Court took the public comments under consideration, and reserved judgment as to whether the Decree is fair, reasonable, and adequate until after it had the opportunity to study the comments in connection with briefs submitted by counsel at the end of March. II The Decree presented by the parties to the Court may be summarized as follows: A. Student Desegregation The consent decree recognizes nine racial or ethnic groups in the District for purposes of implementing a comprehensive desegregation plan: Spanish-surnamed, Other White, Black, Chinese, Japanese, Korean, Filipino, American Indian, and other NonWhite. The key objective of the student desegregation plan is to eliminate racial/ethnic segregation or identifiability in any school, classroom, or program, and to achieve throughout the system, the broadest practicable distribution of students from all the racial/ethnic groups comprising the general student population. Regular schools are to enroll students from no fewer than four of the nine racial/ethnic groups identified above, and are to ensure that no more than 45 percent of their enrollments are comprised of students from any one race or ethnic group. Specified alternative schools are to ensure that no more than 40 percent of their enrollments are made up of students from a single racial/ethnic group. These goals are to be achieved, beginning in the fall of 1983, by assigning, reassigning, and transferring students, and by adjusting the composition of the entering class at each noncomplying school such that no more than 40 percent of the entering students will be from one racial/ethnic group. The District must revise attendance zones and provide transportation as needed to accomplish these desegregation goals. Optional attendance zones drawing students from isolated areas will be used only as a means of achieving desegregation. The District will be free, however, to use magnet or alternative schools or programs to help meet the goals of the Decree. The Decree identifies nineteen historically segregated schools for special desegregation treatment. As of September 1983, the maximum number of students at these schools from the dominant racial/ethnic group must be reduced to a designated percentage of the student enrollments, generally between 37 percent and 44.9 percent. The Decree also sets forth a special plan to convert the elementary and middle schools in the Bayview/Hunter’s-Point area into magnet schools or special schools with enriched programs. Under the plan, the Dr. Charles R. Drew School is to be converted in an academic middle school with increased counseling to help prepare its graduates for the Lowell High School program. The programs at Dr. George Washington Carver School will be enhanced academically and students for these programs will be drawn from a newly developed mandatory attendance area. The programs at Sir Francis Drake School will be enriched as well, with an emphasis placed on computer service instruction. Students will be assigned to the Drake School programs from a newly established attendance area. Pelton Middle School is to be converted into the new San Francisco Academic High School and the curriculum and programs at this new Academic High School are to be modeled after those currently offered at Raoul Wollenberg High School. In recognition of the flexibility needed to desegregate the Bayview/Hunter’s Point Schools and the significance of the reorganization effort contemplated, the Decree authorizes the District specially to select personnel to staff and restaff these schools. Additionally, the decree contains a plan to dispel negative public stereotypes, concerning the schools at Bayview/Hunter’s Point. As part of that plan, the District must publish and distribute to parents of all school-aged children in the District a description of the new programs to be developed at the four Bayview/Hunter’s Point Schools. The District also must engage a reputable public relations firm to promote the neighborhood generally and the programs at the schools more specifically. Finally, the student desegregation element of the Decree contains two provisions designed to curtail practices which have exacerbated the problem of racial concentration in the District. Under the first provision, the State must warn suburban school districts that they will receive no state aid for students residing in San Francisco whose interdistrict transfers adversely affect San Francisco’s school desegregation effort. Under the second provision, the parties will make a joint request to the appropriate military authorities that they cease transporting children from military bases to private schools. B. Desegregation of Faculty, Administrators, and Other Staff The Decree requires the District at the earliest practicable date to implement its policy of assuring that the racial/ethnic composition of the full-time faculty, administrators, and other staff of the District reflects that of the District’s student enrollment. The Decree also requires the District to assure the equitable distribution of staff throughout the District. C. Staff Development Under the terms of the Decree, the District must develop, in consultation with the State, a comprehensive plan and budget to address areas identified as essential for training staff in school districts undergoing desegregation. D. Extra-Curricular Activities The Decree provides that the District, in consultation with the State, must develop and submit to the Court, a plan to monitor extra-curricular activities and to inform students of the equal access opportunities in this area. E. School Discipline The Decree authorizes the parties to prepare a report to the Court on an appropriate Student Code of Conduct to assure fairness and consistency in the administration of school discipline. F. Academic Excellence The Decree directs the District to monitor test scores and academic results in order to evaluate the continued effort to achieve academic excellence throughout the system. G. Parent and Student Participation Under the Decree, the District must continue to encourage and improve participation by parent, students, staff, and other members of the community in developing programs for desegregation and academic excellence. The parties are authorized to submit further recommendations to the Court to assure adequate community representation in the implementation of the Decree. H. Housing and Desegregation The Decree recognizes the critical impact of governmental housing policies on school segregation and establishes a plan by which the parties jointly will endeavor to persuade the appropriate federal, state, and local housing authorities to develop policies that will promote rather than impede desegregation efforts. According to the plan, the parties will request information from the various housing authorities concerning their current policies, and the location and population of existing subsidized housing. They then will retain an expert to analyze the data and make recommendations for conforming housing policy to school desegregation objectives. Finally, the parties will forward the expert’s analysis and recommendations to appropriate local government officials. Under the plan, the parties’ expert will file annual reports with the Court on the progress achieved conforming housing policy to school desegregation efforts, and the parties will report to the Court and to each other any changes in housing policy likely to have an adverse effect on school desegregation. I. Reporting and Monitoring The Decree contemplates that the District Superintendent will report to the Court periodically for at least six years on compliance with the terms of the Decree and progress toward reaching its goals. The State Department of Education will review independently the District’s compliance with the Decree and also report to the Court annually on its implementation. J. The State Role in Financing the Plan The District will incur additional costs during the implementation of the relief ordered by this Decree. Such costs will be compensable by the State as the costs of complying with a court order. The State defendants will assist the District in obtaining reimbursement from the State. K. Retention of Jurisdiction The Court will retain jurisdiction under the Decree to enforce its provisions, to receive progress reports, and to enter such additional orders as may be appropriate. After six years the defendants may move to terminate the Decree, which motion the Court will consider if the District has substantially complied with the Decree and the Decree’s basic objectives have been achieved. ni A A district court in this Circuit is charged with procedural and substantive responsibilities in evaluating the propriety of a proposed class action settlement. The Ninth Circuit has summarized the Court’s procedural obligations as follows: “[T]he class must be notified of a proposed settlement in a manner that does not systematically leave any group without notice; the notice must indicate that a dissident can object to the settlement and to the definition of the class; each objection must be made part of the record; those members raising substantial objections must be afforded an opportunity to be heard with the assistance of privately retained counsel if so desired, and a reasoned response by the court on the record; and objections without substance and which are frivolous require only a statement on the record of the reasons for so considering the objection.” Officers for Justice v. Civil Service Commission, 688 F.2d 615, 624 (9th Cir.1982), citing Mandujano v. Basic Vegetable Products, Inc., 541 F.2d 832, 835-36 (9th Cir.1976). The Court and the parties herein have abided by these procedural guidelines. As set forth in section IB, the Court directed the parties to notify the class of the proposed settlement at the preliminary hearing held on December 30. Notices of the proposed settlement were published in the two local newspapers of-greatest circulation (the San Francisco Chronicle and the San Francisco Examiner) as well as in the primary newspapers of the ethnic communities comprising the class. See Mendoza v. United States, 623 F.2d 1338, 1351 (9th Cir.1980) (notice of proposed school desegregation settlement published in Spanish and English in two major newspapers was adequate under Federal Rule of Civil Procedure 23(e) and the Constitution of the United States). These notices advised class members of their right to file written objections to the proposed settlement and to appear at the fairness hearing personally or through counsel. The Court received comments from the public in writing in response to the notices and filed these written comments as part of the record. All persons raising objections to the proposed Decree were given the opportunity to be heard at the fairness hearing held on February 14, and most dissidents were in fact heard. The Court will respond to each of these comments in section IV, infra. - The substantive standard by which the Court is to evaluate a proposed settlement is simply stated, although it admits of no easy application: the Court must determine whether the settlement is “fundamentally fair, adequate, and reasonable.” Officers for Justice, supra, 688 F.2d at 625. As a general rule in school desegregation cases, a proposed remedial plan is fair and adequate if it corrects the constitutional violations found and does so in a manner which does not infringe on the rights of others. Mendoza, supra, 623 F.2d at 1345. This case, however, is different from the typical school desegregation case: the plan herein is the result of a compromise among the parties prior to trial and before any constitutional violations have been proved. Accordingly, the Court must determine not only the extent to which the proposed Decree cures the violations alleged, but also the likelihood that further litigation would produce better results for the plaintiff class. This latter inquiry involves a balancing of several factors, including the strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the extent of discovery completed, and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. Officers for Justice, supra, 688 F.2d at 625. No single factor listed above is conclusive; the importance of the factors jointly or severally is dictated by the circumstances of the particular case. Id. In representative suits of this nature, the Court must be particularly vigilant of the competing interests of individuals or groups within the class. Inevitably, some members of the class will not be as satisfied with the terms of a proposed settlement as others — this is an accepted structural risk of the class action device. Mendoza, supra, 623 F.2d at 1344. However, a potential injustice arises as the distribution of benefits and burdens in a class remedy becomes increasingly unequal, and a small minority of class members will not be asked to bear an unduly disproportionate ' share of the accompanying burdens. Id. Opposition by a significant number of class members to the proposed settlement is another factor to be considered in determining its fairness. Mandujano, supra, 541 F.2d at 837. The district court’s role in considering the adequacy of a proposed settlement is not without boundaries. Its intrusion upon what is otherwise a private consensual agreement between the parties must be limited to a determination that the settlement taken as a whole is fair, reasonable, and adequate to all concerned and that it is not the product of fraud, overreaching, or collusion. Officers for Justice, supra, 688 F.2d at 625. In making this determination, the Court is not to reach any ultimate conclusion on the contested issues of fact and law that underline the merits of the dispute. Id. Additionally, the Court must bear in mind that voluntary conciliation and settlement are the preferred means of dispute resolution, particularly in complex class action litigation. Id. With these standards in mind, the Court now turns to determination of the fairness and adequacy of the proposed Consent Decree before it. B The Court has witnessed the development of this case almost from its inception and has reviewed in detail the provisions of the proposed Consent Decree and the comments submitted by the public (which comments are addressed in the next section). The Court finds, for reasons set forth in this section, that the proposed Decree is fair, reasonable, and adequate. The Decree effectively addresses the primary concern underlying this lawsuit: alleged racial segregation of students in San Francisco’s schools. The Decree demands that immediate and definitive action be taken to reduce the concentration of students of one racial/ethnic group at all schools throughout the District. It imposes mandatory limitations (as contrasted to the current voluntary guidelines) on the percentage of students from one race or ethnic group that can attend each school — 45 percent at regular schools, 40 percent at alternative schools — and requires each school to enroll a minimum of four racial/ethnic groups. Beginning this year (fall 1983), the District must assign, reassign, and transfer students such that no more than 40 percent of the entering class at noncomplying schools (i.e., schools not within the above limitations) will be composed of the dominant racial/ethnic group. Thus, the Decree assures the complete desegregation of San Francisco’s schools within the next few years. In addition, the Decree amends, or affirms the District’s efforts to amend, many of the policies and practices alleged to have contributed to a racially segregated school system. For example, plaintiffs have alleged that the District “manipulated” the use of school facilities — selected school sites, constructed new buildings and annexes, located portable “bungalow” classrooms, converted existing facilities — in a manner that promoted racial segregation. The proposed Decree requires the District to implement its current policy of avoiding facility utilization that disproportionately burdens any racial/ethnic group. Plaintiffs claimed that the District promoted student transfer policies that had the effect of increasing racial segregation within the District. The proposed Decree eliminates or modifies certain transfer devices by which students could avoid participating in the desegregation process. Thus, the Decree requires the State to discourage interdistrict transfer between the District and suburban school districts. Additionally, the decree lowers the “trigger point” above which Optional Enrollment Request transfers will not be permitted. Plaintiffs alleged that the District established and maintained a system of citywide alternative schools that served to exclude minority students from their special programs and provided white students with a means of isolating themselves from minority children. The Decree promotes desegregation at these schools by placing a 40 percent cap on the percentage of any single racial/ethnic group that may attend them. Additionally, the Decree establishes a newcomer program at the newly constituted Drew Academic Middle School, which program is designed to increase minority representation at one of the premier high schools in the District, Lowell High School. Plaintiffs claimed that the District tolerated and/or assisted military personnel in segregating their school children from minority students in the District. Under the Decree, the District will join plaintiffs in submitting to the appropriate military authorities a formal request to cease transporting children from military bases to private schools. Plaintiffs alleged that the District hired and assigned teachers and administrators in a racially discriminatory manner. The Decree binds the District to its present staffing policy, designed “to achieve a staff at each school site and District location that will reflect the student population of the District.” On a related issue, plaintiffs alleged that faculty hired by the District possess racially prejudiced attitudes toward minority school children, which attitudes have had the effect of denying minority students equal educational opportunity. Under the Decree, the District, in consultation with the State, is to submit to the Court a comprehensive plan providing for up to six days per year of staff development on desegregation issues. Plaintiffs identified residential segregation to be an acute problem in the City and charged the defendants with incorporating that segregation into the operation of the public school system. The Decree recognizes the link between housing policy and school segregation, and commits the parties to a specific procedure for analyzing the problem and forwarding recommendations, to the appropriate local, state, and federal housing authorities. These provisions represent a novel approach to a problem of national proportions (e.g., housing segregation) that has plagued the implementation of school desegregation plans in other cities. Finally, plaintiffs charged defendants with deliberately excluding elementary and middle schools located in the Bay-view/Hunter’s Point area of the city from any efforts to desegregate the remainder of the District. The Decree deals extensively with the historic difficulties the District has encountered desegregating the schools at Bayview/Hunter’s Point. It mandates specific programatic changes at these schools designed to enhance the quality of their curricula and to improve public perception of the entire area. These programs, carefully designed by the settlement team after consideration of a number of alternatives, offer great promise for full desegregation of the schools at Bay-view/Hunter’s Point. In short, the proposed Decree addresses and resolves, without need of further litigation, many, if not most, of the concerns that prompted plaintiffs to file the suit initially. It should be stressed that the defendants have agreed to undertake the many responsibilities set forth in the Decree even though no constitutional violations on their part have been proved; they should be commended for their dedication to academic excellence and equal educational opportunity for all children in San Francisco. The Court does not mean to suggest that plaintiffs have acquired by the Decree all that they might have obtained after a full trial. The Court suggests only that the Decree represents a reasonable compromise among the parties considering the risks that further litigation would entail for plaintiffs. There is substantial risk, for example that plaintiffs would fail at trial to establish a crucial link between well-documented historical incidents of segregation and the District’s policies and practices in the years immediately prior to and contemporaneous with the Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Plaintiffs’ proof of discrimination, primarily against black students in the Western Addition, circa 1954 is weak in several respects. Plaintiffs rely heavily on a 1943 study of dubious validity to demonstrate the racial composition of the Western Addition and surrounding schools during the 1940’s and 1950’s. Without the study, plaintiffs’ assertion that defendants altered feeder patterns and grade structures, and gerrymandered attendance zones, in order to relieve overcrowded “black” schools without disturbing “white” schools is entirely unsupported. Furthermore, plaintiffs have produced no contemporary documentation concerning the feeder patterns utilized during the period in question (1945-1961). Instead, by a questionable methodology, they have “reverse interpolated” such documentation from a set of 1962 statistics. Further still, defendants have raised serious doubt as to whether any authoritative boundary maps had been produced prior to 1963. There is some chance then, stemming from these evidentiary weaknesses, that plaintiffs would not establish the keystone of their case: the existence of a dual school system as of 1954. In the absence of convincing proof of a dual school system, plaintiffs would bear a significant burden establishing the remainder of their case. Without such proof, plaintiffs could not exploit the presumption of systemwide, continuing segregation described in the Columbus and Dayton cases; they could not simply show that defendants had failed to meet their affirmative duty to dismantle the dual system. Instead, plaintiffs would be compelled to prove current (post 1954) incidents of intentional segregation. Plaintiffs’ showing in support of summary judgment suggests that this burden would not be borne easily. They relied largely on an analysis of the number of physical changes in facilities at “racially identifiable” schools from 1960-70 to demonstrate defendants’ segregative intent during this period. Defendants, however, sufficiently cast doubt on the accuracy of plaintiffs’ data on a number of these changes. Plaintiffs also relied heavily on an analysis of defendants’ use of fourteen optional attendance zones during the 1940’s through the 1960’s to show segregative intent. However, their proof of the racial characteristics of the neighborhoods affected by these zones was often weak or unavailable. Moreover, defendants offered racially neutral explanations for all but four of the zones described by plaintiffs. Additionally, while this Court has determined that the State Board of Education and its governing members are proper party defendants to this suit (see Opinion and Order filed September 18, 1979), plaintiffs heretofore have produced very little evidence to support their theory of liability against the State defendants; they have produced little evidence that the State defendants intentionally acted to foster a dual system in San Francisco’s public schools or failed to act to eliminate segregation with knowledge that their failure to act would permit the maintenance of such segregation. All of this is not to say that plaintiffs could not have won their case; the Court has made no effort to discuss all of the relevant evidence adduced by plaintiffs thus far. The Court suggests only that the risks of further litigation for the plaintiff class are very real. Substantial risk inheres as well in the possible fragmentation of the plaintiff class during trial. As a phenomenon unique to the District, the plaintiff class consists of at least four and as many as nine distinct racial/ethnic groups. Plaintiffs have produced little or no evidence of discrimination against any racial/ethnic group other than Blacks. Recognizing the unique challenge plaintiffs’ counsel has faced representing such diverse interests, the Court may have been constrained during trial to create subclasses of students and to appoint additional counsel to develop the factual record with respect to these subclasses. Some plaintiffs who will enjoy the fruits of the Decree may have been dismissed from the suit for want of a showing of any constitutional violation against them. The interests of the remaining plaintiffs may have diverged during the remedy stage of the proceedings as each subclass competed for relief tailored to their specific concerns. Yet the sum of the specific benefits obtained by these subclasses may have been less than the whole of the comprehensive -relief conferred upon ■ all the class members by the Decree. Thus, the risks of maintaining class status throughout the trial are substantial. In addition to the strategic risks discussed above, the complexity and duration of a trial would seriously diminish the value of whatever additional relief might be obtained by further litigation. The trial of this matter was expected to last three to five months. Plaintiffs alone planned to call a minimum of forty-three witnesses and to introduce approximately three thousand exhibits during the liability stage of the trial. Defendants collectively were expected to summon half again as many witnesses and produce approximately one hundred twenty-five exhibits to rebut the evidence introduced by plaintiffs. The expense and burden to which all parties and the Court would have been put is inestimable, but clearly the costs to the parties would have run into the hundreds of thousands of dollars. A lengthy trial of this nature and a possible court-imposed (as contrasted to privately negotiated) desegregation plan would have a potentially divisive effect on the community. For all the time, expense, and anxiety generated by a trial, it is unlikely that this Court would be any better situated, or any more competent, than it is now to design a fair and adequate plan. The parties’ decision to settle the case is based on the fullest information available. The settlement came on the eve of trial after more than four and a half years of pretrial preparation. The parties have completed extensive, liberal discovery and are thoroughly familiar with the strengths and weaknesses of their respective cases. The Court is satisfied that the proposed Decree represents a reasoned and well-informed compromise by experienced counsel. The experience of one of the parties and of counsel in this suit lends great support to a finding that the Decree is fair and ' adequate. Plaintiff San Francisco NAACP is a charter member of the oldest existing civil rights organization in the country, an organization that is largely, if not wholly, responsible for the cause of action on which this very suit is founded. Mr. Thomas I. Atkins, plaintiffs’ lead counsel, and other members of his team, have participated in suits to desegregate the schools of twenty-nine cities located in ten states, including the State of California. Lead counsel for the District, Mr. Aubrey V. McCutcheon, Jr., has been involved in the efforts to desegregate schools in ten cities. These counsel bring to their decision to settle this suit via the proposed Decree considerable knowledge of the strengths and pitfalls of school desegregation litigation and of the relief typically awarded in such cases. The fairness and adequacy of the Decree is further supported by the involvement of a bipartisan team of specialists drawn from around the country to study the unique features of this District and to make specific recommendations. The Court could have found no better expert counsel had this case proceeded through trial and had the Court been charged with the responsibility of fashioning an adequate remedy. Finally, response from class members and from the public to the proposed Decree for the most part has been favorable. Not one person addressing the court at the fairness hearing suggested that the Court should not approve the proposed settlement. IV The Court convened a fairness hearing on February 14, 1983, to provide class members and the public with an opportunity to comment on the fairness and adequacy of the proposed Decree. The Court instructed those individuals with comments to file written statements with the Court prior to the hearing and to direct their comments toward specific provisions of the Decree. Twenty-nine groups or individuals submitted written comments to the Court, and of that number, twenty-three groups or individuals elected to speak at the hearing. A number of speakers commended the efforts of the parties and championed specific provisions of the Decree. While, as noted above, the Court finds these comments to be a useful measure of the fairness of the Decree, it does not address them in this section. A number of speakers also expressed some concerns about the implementation of the Decree. The Court notes these concerns with interest for future reference, but again, it does not address them in this section. The Court herein focuses its response on objections to specific provisions or plans contained in the Decree. The Court received the greatest number of objections from parents in the Bay-view/Hunter’s Point area concerning the plans to convert the Dr. Charles R. Drew School from an elementary school into an academic middle school, and to convert the Pelton Middle School into an alternative academic high school. Representatives for parents resisting changes at Drew School argued that the innovative, open-pod-style structure at that school is unsuited for conversion to a middle school facility and that other schools in the area have classroom configurations better suited to a middle school curriculum. Additionally, they argued that no comparable elementary school exists in the area and that their children would be “displaced” to other schools outside the area. Representatives for parents resisting change at the Pelton School argued essentially that the community takes pride in the academic achievements occurring at Pelton and feels that their-children are receiving a superior education that would be lost if Pelton were converted into an academic high school. No section of the Decree was subject to more intense scrutiny and consideration by the parties than the desegregation and educational enhancement of the Bay-view/Hunter’s Point schools. Historically, these schools have endured the greatest amount of racial concentration and popular contempt in the District. The changes mandated by the Decree are the product of recommendations by (without overstatement) the best local, state, and national desegregation/education specialists available. These experts, after considerable study, have concluded that comprehensive changes in the academic programs at Bay-view/Hunter’s Point are absolutely essential to the revitalization and enhancement of education for children of all races/ethnic groups in San Francisco. The experts concluded that such changes are necessary as well to counter negative perceptions of the neighborhood that otherwise would defeat any hope for. desegregation. While the Court sympathizes with the concerns of the parents at Drew and Pelton Schools, it must defer to the opinion of the experts that the program changes at these schools will benefit children throughout the District. The Court’s responsibility is to the class of all children in San Francisco’s schools, and in fulfilling that responsibility, it must examine the fairness and adequacy of the proposed plan as a whole. ■ For reasons given previously, the Court believes that the plan, viewed as a whole, is a good one. The Court understands that the children at Drew School and Pelton School to some extent are being asked to make sacrifices, but it believes that the changes mandated by the Decree ultimately will redound to their benefit, as well as to the collective benefit of every child in San Francisco. The Court commends the children and the parents for their achievements at Drew School and Pelton School, and hopes that they similarly will endeavor to make the newly-formed academic middle school and high school successful. A representative for the Mexican American Legal Defense and Educational Fund (“MALDEF”) and for a parent of two Hispanic students, apparently focusing on the special provisions for the Bayview/Hunter’s Point Schools, argued that the Decree addressed only the specific needs of black students in San Francisco, and that it fails to address the need for equal educational opportunities for Hispanic students as well. The objection reflects a basic misunderstanding about the nature of this lawsuit and the objective of the Decree. This is a school desegregation action, and the gravamen of plaintiffs’ claim is the alleged unlawful racial segregation of children in the District. The remedy sought and the remedy proposed is systemwide desegregation. This is not an action to establish an entitlement to a certain standard of academic excellence or to a right to certain programs to meet specific needs. The Decree before this Court embodies a plan to achieve a fully desegregated school system, including all schools, programs, and classrooms. This plan is designed to provide relief for all San Francisco school children; it does not address the needs of any particular racial or ethnic group. In addition to the relief provided at the Bay-view/Hunter’s Point Schools, the Decree requires by September, 1983, a reduction in the percentage of students from the dominant racial/ethnic group in all other historically segregated schools in the District, including nine “Hispanic” schools, five “Chinese” schools, and five “Black” schools. This requirement is an example of the comprehensive nature of the proposed remedy. The special desegregation relief fashioned for the Bayview/Hunter’s Point Schools is not relief developed solely for the purpose of meeting black students’ needs. This relief was specially developed to desegregate the most racially isolated area in the District, in schools that had proved to be the most resistant to previous desegregation efforts. It is in fact this very notion that Bayview/Hunter’s Point schools are “black” schools that the special desegregation plans are designed to alter. All children, including Hispanic children, throughout the District will be eligible to participate in some of the newly enriched educational programs offered at Bayview/Hunter’s Point. MALDEF’s contention that the proposed Decree does not address the educational needs of Hispanic children is simply incorrect. To the extent that all children, particularly minority children, benefit from a desegregated classroom environment, and to the extent that all children will be eligible for enrollment at the new academic middle school and high school at Bayview/Hunter’s Point, the Decree does address the needs of Hispanic students. Finally, there is no requirement that a desegregation decree address separately the specific educational needs of every racial/ethnic group comprising the plaintiff class. In this case, such a requirement would necessitate the creation of as many as nine separate plans. The MALDEF representative also argued, based on the alleged failure of the Decree to address Hispanic needs, that Hispanic school children should be permitted to “opt” out of the plaintiff class, or in the alternative, that the Court should certify a subclass of Hispanic students. The Court finds that neither of these proposals is warranted in this case. The plaintiff class is certified pursuant to Federal Rule of Civil Procedure 23(b)(2), which provision does not accord any member of the class the option to exclude himself from the suit. Hispanic students received all of the process, including proper notice at the time of settlement, that they were due under the federal rules. The Court does not believe that there is any need to create a subclass of Hispanic students. The Decree demands the complete desegregation of the District; a class of Hispanic students filing suit separately could not obtain any fuller desegregation relief than that mandated by this Decree. Conversely, the effectiveness of the present remedy for all children would be diminished considerably if Hispanic children, constituting 17 percent of the District’s student population, were permitted to withdraw from the comprehensive plan contained in the Decree. One speaker at the hearing questioned the ability of plaintiffs’ counsel adequately to represent all the racial/ethnic groups comprising the plaintiff class. The Court finds that plaintiffs’ counsel throughout the litigation represented the interests of all class members in an exemplary fashion. All of the class members sought as a common objective the complete desegregation of the District, and plaintiffs’ counsel has served that common objective well. Representatives from two teachers’ unions, the San Francisco Classroom Teachers Association (“CTA”) and the American Federation of Teachers (“AFT”), expressed concern at the hearing that some provisions in the Decree pertaining to restaffing at the Bayview/Hunter’s Point Schools, to staff integration and to staff development, might be construed to alter defendants’ obligations under their collective bargaining agreements with the unions. The CTA sought to add to the Decree a provision to the effect that defendants will continue to honor their agreements. The Court does not believe that such a provision in the Decree is necessary. The Court has been assured by the parties that they will continue to recognize defendants’ contractual obligations, and that teachers and other staff will share in the implementation of the Decree. Several speakers at the hearing questioned the fairness of setting specific limitations on the percentage of students of one ethnic group at nineteen specially designated schools and suggested that these schools should be treated like all others in the District. The parties found that this special attention is warranted because of the historically high level of racial concentration present at these schools. The specific limitations mandated by the Decree reflect a joint assessment by the parties of what level of racial concentration is tolerable for desegregation purposes and what can be achieved in the short period available for implementation of the Decree. The Court finds that the special provisions for the nineteen designated schools are a reasonable response to special circumstances, and that no one group will be unduly burdened by them. A number of persons addressing the Court at the hearing sought not to amend or abolish existing provisions in the Decree, but to “flesh out” certain provisions or to propose additional programs for the desegregation plan. These individual speakers suggested that the Decree establish citizen’s advisory committees or parent/student councils at each school site to insure community input into the desegregation process; that it set forth specific terms for a uniform disciplinary code; that it lengthen the school day at the Bayview/Hunter’s Point Schools; that it require the compilation of additional data to aid the Court in monitoring the plan; that it establish a K-8 magnet school on Treasure Island; that it provide for academic enhancement at Mission area schools; that it provide for more bilingual programs and teachers; that it require desegregation of classrooms as well as schools. Many of these suggestions are good ones, but the fact that they are not now part of the Decree does not render it inadequate. This Decree purports to be nothing more than a framework for desegregation that will be greatly enhanced by input from others, including members of the community. The details for insuring academic excellence as well as full desegregation in every school, classroom, and program will be developed during the implementation of the Decree. The Court is satisfied that the parties are committed to considering and incorporating valuable suggestions made by speakers at the fairness hearing. The present framework, however, is fair and adequate to redress the constitutional violations charged in plaintiffs’ complaint.. The role of the Court in these proceedings is limited to just that inquiry. This Court is not the local superintendent of public schools or the state superintendent of public instruction, and it cannot substitute its judgment of what constitutes a good academic program for that of these elected officials. Finally, a number of speakers urged the Court to take an active role in monitoring the implementation of this Decree and perhaps to appoint a special master to assist it in this task. The Court at this time has no intention of appointing a special master to monitor the implementation of the Decree. The Court has great confidence in Superintendent Alioto and the members of the Board of Education. Should this confidence prove to be misplaced, should the District violate any part of the Decree, the Court could, and probably would, at that time appoint a special master. V For the reasons set forth above, the Court finds that the proposed Decree is fair, reasonable, and adequate. Accordingly IT IS HEREBY ORDERED that the parties immediately begin its implementation. CONSENT DECREE 1. The Complaint in this cause, filed June 30, 1978, alleges that Defendants have engaged in discriminatory practices and maintained a segregated school system in the City and County of San Francisco in violation of the constitutions and laws of the United States and of the State of California. The Complaint seeks the desegregation of the public schools of San Francisco, and the conversion of the San Francisco Unified School District (S.F.U.S.D.) into a unitary system in compliance with the Constitutions of the United States and of California and applicable federal and state statutes. 2. Plaintiffs are individual Black parents, proceeding on behalf of their own children, and the San Francisco branch of the NAACP, a civil rights organization which represents its members. Plaintiffs also bring this action, pursuant to Fed.R. Civ.P. 23, on behalf of a class composed of all children of school age who are, or may in the future become, eligible to attend the public schools of the S.F.U.S.D., and who are entitled to do so under circumstances which afford them full and equal protection of the laws. 3. Defendants are (a) the S.F.U.S.D., its Board Members and its Superintendent (hereinafter collectively called the “S.F.U. S.D.”), the entity and officials created and/or empowered by the State of California to carry out public education functions, in compliance with State law, within the City and County of San Francisco; and (b) the California State Board of Education and its members, the State Superintendent of Public Instruction, and the State Department of Education (hereinafter collectively called the “State Defendants”), the entities and officials created and/or empowered by the Constitution and laws of California to carry out the State’s system of compulsory public education, including the performance of certain regulatory, supervisory, advisory and oversight functions with respect to local school districts, including the S.F.U. S.D. 4. This Court has jurisdiction over this action and over the parties. This Court has pendent jurisdiction over Plaintiffs’ claims under the Constitution and laws of the State of California, including Title 5, chapter 7 of the California Administrative Code. State Defendants concede jurisdiction for purposes of this case only. Venue is properly laid in this Court. 5. The parties have conducted extensive discovery, including numerous depositions and interrogatories and document discovery. The Court has denied motions of the State Defendants for a more definite statement and for dismissal and/or abstention, and a motion of the S.F.U.S.D. for a separate trial on certain issues. The Court has also denied the motion of Plaintiffs for partial summary