Full opinion text
MEMORANDUM OPINION AND ORDER MATSCH, District Judge. The Board of Education of School District No. 1 seeks to end this case by moving for a determination that the District has provided an equal educational opportunity for all students and has remedied all past failures to comply with the requirements of the United States Constitution. More particularly, the matter now before this court is a motion, filed January 19, 1984, for entry of the following orders: 1. An order declaring that the Defendant School District is a unitary school system in the following respects: a) Faculty, b) Staff, c) Transportation, d) Extracurricular Activities, e) Facilities, and f) Composition of Student Body. 2. An order modifying and dissolving the injunction as it relates to the assignment of students to schools. 3. An order declaring that the remedy previously ordered in this case to correct the Constitutional violation as found has been implemented, and that there is no need for continuing court jurisdiction in the matter. The purpose of the motion is set forth in the following paragraphs from it: Throughout the proceedings herein, the Court has urged upon the parties the need to develop and define a process and procedure whereby the Court and the parties might have the opportunity to present evidence to the Court on the unitary nature of the district and the extent of the School District’s compliance with the remedial orders of the Court, and for the need, if any, for continuing court jurisdiction over the affairs of School District No. 1. The earliest definitions of a unitary school system enunciated six criteria to be considered by a court in its determination of whether a school system was dual or unitary. They included: Faculty, Staff, Transportation, Extracurricular Activities, Facilities, and Composition of Student Body. Green v. County School Board, 391 U.S. 430, 435 [88 S.Ct. 1689, 1692, 20 L.Ed.2d 716] (1968) An analysis has been conducted by staff utilizing the criteria as set forth above, and the working definition of the unitary school system, as announced by this Court in its Memorandum and Opinion dated May 12, 1982. The School District is prepared to show to the Court its compliance with the criteria and with the Court’s definition at an evidentiary hearing for that purpose. Although the parties to the litigation have been before the Court on numerous occasions with respect to proposed changes in the orders as they relate to matters of pupil assignment, none of these hearings were designed to permit the parties to explore the extent to which the School District has fulfilled its remedial obligations; and, as a result, neither the parties nor the Court have had a full opportunity to examine the data and the evidence that bears upon the question of whether the School District has in fact fully implemented the court ordered remedy and that the remedy has accomplished its purpose. The requested full evidentiary, hearing was held in May, 1984, and the plaintiffs, defendants and intervenors have filed comprehensive briefs. The United States Department of Justice has also filed both pretrial and post-trial memoranda as amicus curiae. The court is fully informed on the issues and arguments relevant to the motion. GENERAL PRINCIPLES The parties approach the issues and evidence in this case from different perspectives reflecting differing interpretations of the scope of the equal protection clause. Perhaps, as with visual perspectives, the difference is influenced by the relative positions of the parties. The Board of Education looks at the case from the high ground occupied by those holding the power of governance. In that position there may be a tendency to accept a more static overview of a somewhat distant scene characterized by stability and serenity. The plaintiffs/intervenors represent people whose historical disadvantages give them an alternate viewpoint. For those who are still deep in the valley, struggling for survival, and for those moving upward on the mountain, educational opportunity is the path to progress. They are on the move, seeing only transient scenery, and their primary concern is the direction of their movement. Is the trail going forward and upward, or downward and backward? The difference between the parties may also be illustrated with a different analogy. The defendants ask that we look at the Denver school system by making detailed comparisons of enlarged aerial photographs taken in 1976 and 1984. The plaintiffs/intervenors ask us to view a movie film record of events from 1968 to 1984, with close-ups of a few of the frames at different intervals. The choice turns on conflicting interpretations of constitutional law based on alternative approaches in analyzing Supreme Court opinions. That process of interpretation of constitutional law will also be affected by methodology in establishing viewpoint. Does one plumb the depths of the relevant opinions as a series of pools, or is it more appropriate to look at the Court’s language as the flow of a meandering stream with eddies, backwaters and even changes of direction? The latter view is more consistent with the guiding role of the Court. School desegregation cases differ from most litigation in that much of the evidence is developed while the case is in court. In most lawsuits, the court’s focus is retrospective. The issues arise from historical events and the evidentiary disputes are resolved by the court’s findings of the probabilities about matters which occurred in the past. In school desegregation cases, there are political and demographic changes which occur while the case is in court and even the court’s processes and decrees — at least the public perception of them — can be factors influencing some of those changes. It is also important to remember that the applicable principles of constitutional law have evolved under circumstances of change in the characteristics of our national community and in the course of developing new information and understanding about sociology and psychology. Only 128 years ago, the Supreme Court asked: The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution. Dred Scott v. Sandford, 60 U.S. (19 How) 393, 403, 15 L.Ed. 691 (1856). The Court sought justification for its negative answer by finding that the founding fathers did not intend to recognize slaves or their descendants as citizens. Chief Justice Taney made the following observation about the status of Negroes at the time of adoption of the Declaration of Independence and the Constitution: They had for more than a century before been regarded as beings of an inferi- or order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion. And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world. The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States. Id. 60 U.S. at 407-8. The Dred Scott opinion was, of course, reversed by the adoption of the Thirteenth and Fourteenth Amendments to the United States Constitution after the Civil War. Yet, the power of the continuing public perception of inferiority of Blacks was reflected in the adoption of the “separate but equal doctrine” in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). There, the majority of the Supreme Court approved a Louisiana statute requiring separation of white and “colored” races in railroad coaches with the following language: The object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced. Id. at 544, 16 S.Ct. at 1140. The force of that assumption of inferiority is reflected in these words from the dissenting opinion of Justice Harlan: The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. Id. at 559, 561, 16 S.Ct. at 1146, 1147. In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Supreme Court took notice of the historical experience of the Negro in America, and it was that history of racial disadvantage in our social, economic and political life which formed the predicate for the conclusion that racially-segregated schools are inherently unequal. In overruling Plessy v. Ferguson, the Supreme Court made a fundamental change in the interpretation and application of the equal protection clause of the Fourteenth Amendment. Departing from its past practice of deciding such issues by discoursing on political theory, the Court considered evidence of the actual effects of racial separation well beyond the record before it, using secondary sources of information. Thus, in affirming the Kansas case finding that segregation has a detrimental effect upon Negro children, the Court said: Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Brown, 347 U.S. at 494, 74 S.Ct. at 692 (footnote omitted). The footnote for that statement referred to several publications, including E.F. Frazier, The Negro in the United States, 674-681 (1949). The following passages appear in that work: The theory of separate but equal educational and other facilities has never worked out in practice. Separate education for Negroes has always meant inferior schools and inferior teaching personnel for Negro children. Inferior schools have caused a high rate of illiteracy to continue among Negroes since Emancipation. The resulting mental isolation of Negroes which continued a half century was only partially broken down by the mass migrations of Negroes to northern cities during and following World War I. Because of the discriminations in regard to employment the Negro has been kept in the lowest paid and unskilled occupations, and thus there has been no premium placed upon exceptional skill and talent among Negroes. ... Consequently, the Negro has never been permitted to achieve the full stature of a man through competition with whites. Many of his leaders have owed their pre-eminence to the fact that they have played the role of mediators in a pattern of race relations based upon the economic dependence and social subordination of the Negro. The dominant white interests have singled out mediocre Negroes for the role of “great Negroes,” while Negroes of superior mental endowment and courage have been crushed as irresponsible radicals. Thus a factual and objective basis for the charge that the Negro is a “child” race has been provided in the whole system of racial discrimination. It is no wonder that since the Negro has been treated and regarded as a “child” race, whites have not taken him seriously. In fact, as the result of the system of discrimination, the Negro has not been permitted to play a serious role in the economic and social life of the nation. Id. at 674-677. Another of the publications cited in that footnote is G. Myrdal, An American Dilemma: The Negro Problem and Modem Democracy (1944) which includes the following observations: But when segregation and discrimination are the outcome of individual action, the second main norm of the American Creed, namely, liberty, can be invoked in their defense. It must be left to the individual white man’s own discretion whether or not he wants to receive Negroes in his home, shake hands with them, and eat with them. If upheld solely by individual choice, social segregation manifested by all white people in an American community can be — and is — defended by the norm of personal liberty. When, however, legal, economic, or social sanctions are applied to enforce conformity from other whites, and when Negroes are made to adjust their behavior in response to organized white demands, this violates the norm of personal liberty. In the national ideology, the point where approved liberty changes into disapproved restriction on liberty is left somewhat uncertain. The old liberal formula that the individual shall be left free to follow the dictates of his own will so long as he does not substantially hamper the liberty of other persons does not solve the problem, because it is not definite enough. As remarked in an earlier chapter, the American Creed is in a process of change from “rugged individualism.” It is giving increasing weight to “the other fellow’s” liberty, and thus narrowing the scope of the actions which become condoned by the individualistic liberty formula, (emphasis in original) To apply the American value premises in this condition of internal conflict within the concept of liberty itself — which is only another aspect of its external conflict with the concept of equality — stress has to be laid on the actual amount of discrimination. When there is substantial discrimination present, liberty for the white person has to be overruled by equality. To discern discrimination we must take into account the indirect effects of segregation in terms of cultural isolation, political and legal disabilities, and economic disadvantages, which are often much more important than the direct social discrimination. (emphasis added) Id. at 573-574. The impact of the Brown decision was felt far beyond the schools. In a firm and consistent line of decisions, the ruling was extended to prohibit public segregation of other public facilities, such as transportation systems, Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956); parks and playgrounds, New Orleans City Park Improvement Ass’n v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46 (1958), Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963), Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963); golf courses, Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955); beaches and bath houses, Mayor of Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (1955); auditoriums, Muir v. Louisville Park Theatrical Ass’n, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112 (1954); courthouses, Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963); parking garages, Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); and airports, Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962). See also, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1966) (striking down state miscegenation laws.) “The principles announced in [Brown ] ... according to the command of the Constitution, are indispensible for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.” Cooper v. Aaron, 358 U.S. 1, 19-20, 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5 (1958). In this very civil action, the Supreme Court formally recognized that Hispanos suffered from much of the same economic and cultural deprivations. Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 197, 93 S.Ct. 2686, 2691, 37 L.Ed.2d 548 (1973). Indeed, the Court made the following specific determination with respect to the Denver, Colorado community at page 198 of the opinion: [Tjhough of different origins, Negroes and Hispanos in Denver suffer identical discrimination in treatment when compared with the treatment afforded Anglo students. In that circumstance, we think petitioners are entitled to have schools with a combined predominance of Negroes and Hispanos included in the category of “segregated” schools. Perhaps much of the confusion, controversy and continuing litigation which has occurred nationally in the 31 years since Brown, and locally in the 12 years since Keyes, have been caused by a failure to appreciate the Court’s connection of school policy with national history. It is not that the schools have been singled out as experimental vehicles to redress all of the past injustice and inequity suffered by racial minorities; it is that the courts have prohibited school officials from perpetuating the disadvantages caused by past practices of the larger society. The reason that racial separation in public schools is a denial of equal protection of the laws in contravention of the restraint of the Fourteenth Amendment is that in 1954, and 1973, and still today, the Anglo, the Black and the Hispano continue to occupy different positions in our pluralistic nation. To find segregative intent, it is not necessary to find that an act or omission resulted from bad purpose or evil motive; it is sufficient if it reflects a disparate perception of relative worth. The attitude of neutrality characterized by the newly popular phrase “color blindness” avoids the obligation to recognize the continuing effects of past prejudices, practices and passions. Stripped of all legalese, the present state of the law is that whatever other disadvantages may be visited upon an individual in the accident of birth, the Constitution prohibits any governmental use of race, color or ethnicity to impose an impediment to the seeking of benefits of public educational services. The scientific community continues to find significant evidence to suggest that each human being may be predestined by an individual genetic code in very significant ways. These individual differences may be influences on mental and physical development, behavioral adjustment and risk factors for disease, all independently of race, sex or other group characteristics. These findings of physical science compel a reading of the “self-evident truth” that “all men are created equal,” to mean that the government must act “as if” each person has equal potential for achievement. No school policy and no court order can assure any particular level of success in public schools any more than in any other aspect of life. Individual students will flunk, become disciplinary problems, drop out or otherwise fail to meet expectations for reasons wholly unrelated to race, ethnicity, and environment. The true causes for those results are properly matters of interest to educators, sociologists, psychologists, physicians and other disciplines. Neither cause nor effect can be used in applying constitutional principles. Stated as a prohibitive, what the Constitution requires is that the government must not itself act as an agent of predestination in association with any immutable characteristics of birth. There is no scientific evidence to suggest that such group characteristics as race or ethnicity are limiting factors on any individual. To the extent that race is a disadvantage, it is the result of prejudices, attitudes and historical deprivation. Data suggesting different achievement levels according to race are relevant only as circumstantial evidence of the effects of discriminatory attitudes and practices. To escape the intangible effects of any stereotyping or latent bias, government officials must avoid the use of racial identifications in acting on public issues. That is true whether government acts to regulate and restrict conduct or to provide services such as educational opportunity. THE DEFENDANTS’ POSITION The defendants’ carefully constructed argument in support of the subject motion has the appeal of logic. Stated succinctly at page 2 of the defendants’ post-trial brief, the contention is this: Once a school district has complied with a constitutionally-acceptable court-ordered remedy that is designed to desegregate the system in the full sense, and has maintained substantial compliance with that remedy for a sustained period of time, the school district is entitled to be declared unitary unless there have been intervening acts of discrimination. The prime thesis of this argument is that this court’s 1974 Final Judgment and Decree, as modified in 1976, was a complete remedy for all of the constitutional violations found in this case. The validity of that thesis is critical to the contention that by complying with the requirements of that Decree the District established a unitary school system. What was to be remedied? Simply put, what was required was the reversal and eradication of the effects of a policy of geographical containment of Black people in an area of northeast Denver. For almost ten years the members of the Board of Education tried to keep Black families out of the White residential neighborhoods east of Colorado Boulevard by manipulating attendance areas, designing new school construction, installing mobile classroom units, and steadfastly refusing to relieve overcrowding of Black schools. This policy was at work in 1960 when Barrett School was constructed as a relatively small school building with an attendance zone entirely in the Black community, even though a White school located only a few blocks away was operating at 20% over capacity. It was apparent that Barrett, Stedman, Park Hill, Philips and Hallett Elementary Schools were designed for attendance of Black pupils. Mobile units and additional classroom construction were used to expand the capacity of those schools while preserving the Anglo character of the schools to the east of them. The continued use of that segregative policy was clearly the will of the electorate. When a slim majority of the Board adopted resolutions in 1969 to attempt to alleviate the segregative effects of this policy by reassigning some students and transporting them out of racially separated neighborhoods, the people of Denver overwhelmingly repudiated that action by defeating two of the most articulate Board members and replacing them with new members who vowed to reverse those resolutions. When those promises were kept, the plaintiffs came to this court, seeking a preliminary injunction in 1969. Through all of the intervening years, the court and the parties have struggled with two elusive and intractable questions. How did that policy of containment in northeast Denver affect the Denver Public School System as a whole? What is required to remove those effects? Those questions have caused this case to be considered by two judges in this court, the judges of the Tenth Circuit Court of Appeals, and the Justices of the Supreme Court of the United States. A third question, which has been lurking in the shadows, now comes to the spotlight. What must be done to protect against future resegregation and a return to a dual system? It is the law of this case that the 1974 Final Judgment and Decree was not an adequate remedy for segregated school assignments. The Tenth Circuit Court of Appeals in Keyes v. School Dist. No. 1, Denver, Colo., 521 F.2d 465 (10th Cir.1975), cert, denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976), faulted the court plan for pupil assignment because it used only part-time pairing. The appellate court said: We hold that the part-time pairing component of the court’s remedy for desegregation of elementary schools is not constitutionally acceptable as a basic and permanent premise for desegregation but deem that practicality negates the necessity of invalidating in toto this aspect of the trial court’s judgment at this time. We read this innovation as recognized by the trial court as an adjunct to be tolerated only as such under the temporary conditions of the present and as a step toward total integration. Although the district court’s remedial discretion is broad, it is ‘necessarily bounded by the constitutional requirement that the court make “every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.” Davis v. B’d of School Commissioners of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577. In examining the record and the district court’s opinion, we find no insurmountable practical impediment to full-time desegregation. Indeed both the court and its consultant Dr. Finger were of the view that part-time classroom pairing would easily convert to a full-time program. The court’s part-time plan offers some of the most severely segregated schools in the district only part-time desegregation; of the eighteen predominantly minority schools in the part-time program, thirteen have projected enrollments of less than ten percent Anglo pupils. Under the circumstances a partial solution for these schools is not enough. Id. at 477-478 (emphasis added) (footnote omitted). The Tenth Circuit also faulted the district court’s plan for leaving Boulevard, Cheltenham, Del Pueblo, Elyria and Garden Place as segregated Hispano schools, and reversed the conclusion that remedial education was an acceptable substitute for reassignment of students. With respect to those schools, the Court remanded with the following instruction: We therefore remand this portion of the case for a determination whether the continued segregation of students at the five mentioned schools may be justified on grounds other than the institution and development of bilingual-bicultural programs at the schools. “The district judge ... should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools.” Swann, supra, 402 U.S. at 26, 91 S.Ct. at 1281. Id. at 480. The establishment of the East-Manual complex was also reversed. Finally, the appellate court affirmed the district court’s requirements with respect to the desegregation of faculty and staff, using the following language: During the 1973-74 school year, disproportionate numbers of the Denver school system’s minority teachers were assigned to schools with high concentrations of minority students. Despite the District’s institution of a minority recruitment program in recent years, the percentage of minority faculty members in the system has not increased appreciably. Of the view that faculty desegregation is essential to the process of school desegregation, the district court ordered the District to assign its personnel so that, in each school, the ratio of minority teachers and staff to Anglo teachers and staff shall not be less than 50% of the ratio of minority to Anglo staff in the entire system. The School Board does not dispute the propriety of this component of the court’s remedy. Contrary to the School Board, we believe that these measures to ensure faculty desegregation were properly part of the court’s order. Faculty and staff desegregation is an “important aspect of the basic task of achieving a public school system wholly free from racial discrimination. ” (citations omitted) ... We belieye that the court’s faculty and staff desegregation orders were proper and we affirm. Id. at 484 (footnotes omitted) (emphasis added). The March 26, 1976 Order, entered by Judge Doyle, approved the use of an agreed plan in response to the mandate of the Court of Appeals. It is clear, however, that future change was expected because the court said: The School Board, in Resolution 1897, has requested that no changes be made in student school assignments for three years; this in the interest of continuity and stability. In the court’s view the objective is good with the exception that some flexibility should be retained so as to make adjustments for substantial population changes. Additionally, the issue of bilingual education was left open. At that time, it was expected that a stipulated proposal for the modification of the bilingual program would be immediately forthcoming. This court honored the request to avoid altering the student assignment plan for a period of three years, and the only changes made were those requested by the District for the limited circumstances of particular situations. To plan for declining pupil enrollment and consequent excess plant capacity, in 1977 the Board of Education appointed an advisory committee of citizens to study the utilization of school buildings and to recommend criteria for closures and consolidations. That committee made a report which was accepted by the Board in April, 1978. The committee did not contemplate action to make changes before September, 1981. The Board changed that time to September, 1980. After the Community Education Council, a court-appointed monitoring group, expressed concerns that imbalances in racial composition and crowded conditions had developed in some schools, hearings were held in this court in January, 1979 to consider the status of those schools. At that time the court was informed that the Board of Education had directed the filing of a report by an Administration Task Force on school closings and school assignments in March, 1979. Accordingly, the court set May 1, 1979 as the date for the filing of a comprehensive student assignment plan, and set June 1, 1979 as a date to report on the status of compliance with orders requiring affirmative action in the hiring, assignment and in-service training of teachers, administrators and staff. A new plan, adopted in Resolution No. 2060, met opposition from the plaintiffs/intervenors and, accordingly, a further hearing was held on July 20, 1979 on the motion of the defendant School District No. 1 to implement those portions of Resolution No. 2060 dealing with school closings and pupil assignments for the school year 1979-1980. No one suggested then that this court did not have jurisdiction to modify the 1976 pupil assignment plan. Moreover, while the Board wanted to close four schools, it failed to take any action to consider the objections and concerns which had been expressed at the hearing. The Board members simply did not meet in legislative session, and left it to this court to make the necessary changes in pupil assignments. That dereliction of the Board’s duty permitted its members to avoid criticism from the community, and positioned them to continue their popular protest of judicial intervention into local self-governance. This court addressed the question of the extent of desegregation which existed in 1979 in the Memorandum Opinion and Order which appears as Keyes v. School Dish No. 1, Denver, Colo., 474 F.Supp. 1265 (D.Colo.1979). The court noted that the Board of Education and administration recognized that Gilpin, Fairview and Greenlee Elementary Schools had not met the desegregation guidelines, and said: What is now needed is recognition by the Board of Education, school administration, and staff that they have not yet established a unitary, non-racial school system in Denver, Colorado and that they have a legal obligation to demonstrate to this court that they are taking appropriate action to reach that result. Id. at 1272. This court then adopted the plaintiff s/intervenors’ proposal for the reassignment of students from the closed Ellsworth Elementary School; made its own reassignment of students from the closed Emerson Elementary School; made assignments to the new McKinley-Thatcher School; rejected the Board’s proposed removal of Ashley mobile units; approved the reassignment of pupils from closed Elyria Elementary School; adjusted the attendance zone of Belmont School; adjusted the Fairview-Greenlee-Traylor grouping by pairing Fair-view and Rosedale; and authorized the establishment of an Oakland-McGlone pair. There was no adjustment for Gilpin and Mitchell, which remained segregated schools. There was no appeal from the 1979 Order. To the contrary, the court’s view that unitary status had not been achieved appeared to have been accepted when the Board appointed an Ad Hoc Committee in May, 1980 to create a definition of a unitary system and to develop guidelines for its identification. That action was taken by Resolution No. 2110, which included the charge that the Ad Hoc Committee should also design a new student assignment plan for pupil assignments to elementary and middle schools based on demographic data which had been presented to the Board by the long-range planning committee in March, 1980. The long-range planning committee had been created by Resolution No. 2079 in August, 1979. Its report recommended developing a middle school program, eliminating junior high schools and establishing four-year senior high schools. That educational change required reassignment of all ninth grade pupils, thereby disrupting the existing attendance zones. Accordingly, the work of both committees converged. The Ad Hoc Committee’s pupil assignment proposal was the subject of detailed study by the Board of Education during the summer of 1981. Despite a division on the issue of “busing,” the Board developed a student assignment plan. It was submitted to this court along with an alternative open enrollment plan approved by a divided vote and without staff study. In the “Submission of Plans” filed October 30, 1981, the District said: PURSUANT to the action of the Board of Education, School District No. 1, ... submits the attached proposals entitled, Community Neighborhood School Open Enrollment Concept, and The Denver Public Schools: A Unitary System, to the Court for its consideration. At the time the Board directed the submission of these proposals, the following motion was adopted: That the Board of Education submit to the United States District Court, for its consideration, the proposals entitled, Community Neighborhood School Open Enrollment Concept and The Denver Public Schools: A Unitary System, as developed by the Board of Education with the following recommendations: A. The Community Neighborhood School Open Enrollment Concept plan is the desirable plan. B. If the Court insists on the maintenance of pupil assignments which are based upon the racial and ethnic identification of students, the Board submits the alternate plan for the Court’s consideration provided, however, that in those instances where schools are paired, that the Court authorize the discontinuance of the pairing and return of the paired schools to neighborhood schools at such time as the racial and ethnic percentages within the paired schools fall within a range of 20-63% Anglo. jjc # * * * * That following submission of the plans, that the Court determine that with the implementation of either plan, that the School District is a unitary school system and establish a specific timetable for the relinquishment of the Court’s jurisdiction. Upon this court’s refusal to choose between two such dramatically divergent approaches, the Board submitted the open enrollment concept in what came to be called the “Total Access Plan.” It was the subject of a two-week evidentiary hearing in March, 1982, which resulted in the court’s rejection of that plan upon the finding that it was lacking in “concern, commitment and capacity.” The Board then submitted the “Consensus Plan” which consisted of the October 30, 1981 student assignment plan with two magnet schools as educational enhancements which had been suggested in the Total Access Plan. The interim nature of the Consensus Plan is identified in the following language from the introduction to it: INTRODUCTION In response to the order of the Federal District Court of March 15, 1982, and in accordance with the Denver Board of Education motion of March 18, 1982, a pupil assignment plan is being submitted for the achievement of a unitary, non-racial system of public education. This Pupil Assignment Plan combines the Consensus Plan of October 1981 with certain educational enhancements of the Total Access Plan of December 1981. It reflects the determination of the Board of Education to provide a quality educational experience for all children which will: • create as many walk-in schools as possible • remove as many pupils as possible from required busing • bring stability to pupil assignment areas • continue the effort to realize and maintain a unitary school system • remain sensitive to the changing needs of a diverse, urban pupil population • be in compliance with the United States District Court Order. The Pupil Assignment Plan includes the mandatory assignment of pupils, the closing of nine schools, and the implementation of the middle school program now in preparation. The preparation of the Consensus Plan included extensive community involvement, intensive study by an Ad Hoc Committee of the Board of Education, and direct personal involvement of all members of the Board of Education in the final decision making process, resulting in a comprehensive plan for adjusting existing school attendance boundaries. Two educational enhancements of the Pupil Assignment Plan are the Fundamental School to be conducted at Knight Elementary School and a self-supporting extended day school at Gilpin Elementary School. The ethnic ratio in each of these schools shall reflect the pupil population in the District in keeping with Court determined pupil ethnic assignment ratios. Knight Fundamental School will be open to all pupils in the District; the Gilpin School population will include pupils in the home attendance area and pupils from the entire District who are enrolled in the extended day program. Upon Court approval of the Pupil Assignment Plan, staff will begin preparations for further educational enhancements for possible addition each year as an ongoing feature of District educational planning policy. In addition, the Plan includes three significant Denver Public Schools initiatives, components of the Total Access Plan, which are designed to enhance educational opportunity: • District and School Accountability Councils • Guidelines for Pupil Placement • Standards for School Effectiveness. The presently authorized District and School Accountability Councils are used in the Plan as monitors of educational quality and equity, achievement of goals, and equitable disciplinary policies and procedures. Guidelines for Inschool Pupil Placement were approved by the Board of Education in February 1982. These guidelines ensure that pupils will participate in experiences that are relevant to the cultural, ethnic, and racial diversity of the school and that grouping is based on a fair assessment of pupils’ skills, interests, needs, and aptitudes. The “Standards for School Effectiveness” is based on extensive research which has identified characteristics of effective schools. The “Standards” includes specific instruments for assessing these characteristics and means for maintaining effective practices and improving areas of weakness in each school. Finally, the Board of Education submits for the Court’s approval plans for building a needed elementary school facility in Montbello and a replacement facility in the Columbian area. The basic instructional programs and educational enhancements presently in place in the Denver Public Schools also are described and included in this report. In approving the Consensus Plan, this court emphasized that the approval was for an interim solution, recognizing that the plaintiffs/intervenors had made objections to portions of it with an evidentiary showing that it would probably produce resegregative effects in some elementary schools. The court’s reservations were expressed in the following language: In this case, I am now accepting the modified consensus plan for the single school year of 1982-83. I do so with considerable reservation because I am not convinced that the incumbent school Board has shown a commitment to the creation of a unitary school system which will have adequate capacity for the delivery of educational services without racial disadvantages. The consensus plan is an expedient which will accommodate the educational policy decision to move to middle schools and which will attenuate the divisive effects from the factionalism found in the present board of education. The positive element in this plan is that it reflects a consensus of the views of the board members. Acceptance of this plan for a single school year is not to be construed as an abdication of this court’s authority and responsibility to compel compliance with the desegregation mandate. Keyes v. School Dist. No. 1, Denver, Colo., 540 F.Supp. 399, 403 (D.Colo.1982). Along with that reservation, the court attempted to set some direction for the anticipated future planning by adopting the Ad Hoc Committee’s definition of a unitary school system as follows: A unitary school system is one in which all of the students have equal access to the opportunity for education, with the publicly provided educational resources distributed equitably, and with the expectation that all students can acquire a community defined level of knowledge and skills consistent with their individual efforts and abilities. It provides a chance to develop fully each individual’s potentials, without being restricted by an identification with any racial or ethnic groups. Id. at 403-404. This court also expressed a favorable view of the Ad Hoc Committee’s guidelines as criteria for identifying a unitary system in operation. Believing that progress toward the defined goal of unity required both effective monitoring and expert advice from appropriate academic disciplines, and after consultation with counsel for all parties, the court appointed the Compliance Assistance Panel, composed of three outstanding scholars who had appeared at various times as expert witnesses in this case. The court’s charge to that committee was to perform the following duties: 1. To meet with the Board of Education, any committee or administrative staff designated by the Board, and with counsel for the parties herein, for the purpose of preparing a timetable for the preparation and submission of a pupil assignment plan for the school year 1983-84. 2. To meet with the Board of Education, any committee or administrative staff designated by the Board, and with counsel for the parties herein, for the purpose of preparing appropriate guidelines for pupil assignment plans for subsequent years, including long-range planning. 3. To prepare and submit a set of criteria for the identification of a Unitary School System, using the Unitary School System Plan Final Report of the Ad Hoc Committee, presented June 5, 1981 (Defendant’s Exhibit D-2) as an initial working document. 4. To develop a plan to review, analyze and report on the present affirmative action plan for faculty and staff, including in-service training, and contigency plans for recruitment and reduction of faculty and staff, according to needs, on a non-discriminatory basis, consistent with existing collective bargaining contracts. 5. To prepare a plan for review, analysis and reporting on any racially discriminatory effects from present practices in the measurement of educational achievement and student discipline. 6. To develop recommendations for establishing criteria for school closings and new construction. 7. To develop a recommendation for constraints to be considered in proposals for the establishment of additional magnet schools and any other proposals for enhancement of educational opportunities to ensure racial and ethnic equality in the availability of such services. 8. To develop recommendations for interaction with local, state and national governmental agencies whose decisions concerning housing, zoning, transportation and other governmental services may influence and affect school policies and programs, including the demographics of the district. 9. To develop a plan for the collection and collation of the views of identifiable organizations and groups concerned with equal educational opportunity. 10. To develop a plan for the assessment of the effectiveness of the monitoring and self-evaluation methods adopted by the School District. It now appears from the testimony of Board members and administrative staff at the hearing on the subject motion that the court’s appointees were seen as interlopers, and that this court was considered to be intervening in the operation of the school system far beyond any appropriate role. It is also now apparent that contrary to what was being represented to the court and to the community, the Board had adopted a secret agenda to hire a mathematician experienced in the display of statistical data in desegregation cases and a new lawyer, who had successfully represented another school district in Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), to develop the display presented with the effort to terminate this litigation. In consequence, the spirit of cooperation which had seemed to exist among counsel in this case was replaced by the old adversarial confrontation necessary for the proper presentation of the very different views which are now before this court. In approving submission of the subject motion, the Board of Education altered its position in this litigation. All of the members of the Board adopting Resolution No. 2228 have testified to their individual intentions in taking that action. The common theme was the expression of a shared concern that continuation under court control stigmatizes the Denver school system with consequent adverse effects on the schools and the community as a whole. There is a perception that families have fled to private schools and to the suburbs to avoid forced busing, and a belief that this court’s involvement creates a climate of coercion which prevents the development of positive and innovative educational programs. This court does not discount the reality of the declining enrollment and the possibility of a causal relationship with court-ordered reassignments as suggested by some of the data in the evidence. It is also unquestioned that people who devote their time and energy to the extremely difficult task of serving on the Board of Education, without remuneration, are citizens with outstanding qualities of commitment to the public welfare and dedication to the best interests of future generations. They are chosen from the community to express and implement the will of the electorate, and it must be assumed that the subject motion was the sense of the majority of the voters in District No. 1. Yet, School Board members, as all other elected representatives of the people, must also hear and heed the commands of the Constitution which often conflict with majoritarian opinion. The courts have the duty to articulate and apply those constitutional limitations in particular circumstances. HAS A UNITARY SCHOOL SYSTEM BEEN ESTABLISHED IN DENVER? In answering affirmatively, the defendants set forth a simple syllogism. Major premise: The 1974 Decree, as modified in 1976, called for a complete and adequate remedy for the segregative effects of Denver’s dual system. Minor premise: The District has complied with all of the requirements of the Decree since 1976. Conclusion: Denver has achieved desegregation and is now a unitary district. As already discussed, the Tenth Circuit Court of Appeals determined the 1974 Final Decree to be inadequate. Therefore, the question to be asked with respect to the major premise in this argument is whether the 1976 modifications, coupled with the remaining portions of the 1974 Decree, constituted a sufficient plan to desegregate the entire Denver Public School System “root and branch.” As counsel for the District recognize, an adequate desegregation plan must include more than the assignment of pupils to avoid the racial identification of schools. It must also address the policies and practices with respect to faculty, staff, transportation, extracurricular activities and facilities. Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Additionally, an adequate remedy must ensure against any future use of school construction and abandonment to serve, perpetuate, or re-establish a dual system. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). As noted above, the 1976 Order was simply the approval of a stipulated plan submitted in a spirit of compromise and, by Resolution No. 1897, the Board indicated clearly the expectation that changes would be required in future years. That was the reason the Board requested a three-year moratorium. Nothing in the 1974 Order, and nothing in the 1976 agreed plan, established any mechanism to avoid future segregation in making school construction and school abandonment decisions. At this point, it is well to return to the exact language of the Supreme Court in Swann: In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual system. When necessary, district courts should retain jurisdiction to assure that these responsibilities are carried out. 402 U.S. at 21, 91 S.Ct. at 1279 (emphasis added). Plainly, the court and all parties were aware that the remedy phase of this case did not end with the signing off on the 1976 agreed modifications and intended the retention of jurisdiction for the indefinite future. The adequacy of any desegregation plan is, of course, measured not by its intentions but by its effectiveness. See Dayton Board of Education v. Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979) (Dayton II). Thus, determination of the adequacy of the 1974 plan, as modified in 1976, is directly related not only to the degree of compliance by the defendant District in the intervening years, but also to whether the implementation of the plan achieved the results intended. Therefore, the major premise and minor premise may be addressed together in reviewing the subsequent events. What then was accomplished between 1976 and 1980? Mitchell, Gilpin and Fair-view Schools fell below the then applicable guideline of a minimum 34% Anglo enrollment in the fall of 1976. In 1979, Mitchell had a 26.8% Anglo enrollment, and Gilpin had fallen to 19.6%. The need to close some school facilities became apparent as early as the 1976-1977 school year. This court’s Order set May 1, 1979 as the date for the Board to file a comprehensive student assignment plan, and June 1, 1979 as the reporting date on the status of other aspects of the plan, including affirmative action and in-service training. As earlier noted, a plan was submitted by Resolution No. 2060, and the plaintiffs/intervenors filed objections with alternative proposals. In the absence of further Board action to meet those objections and to consider the alternative proposals, this court was compelled to make the reassignment of pupils from the closed schools and to attempt to alter the racial isolation of Fairview. The court did not act to remedy the racial identification of Gilpin and Mitchell Schools, and it was partially for this reason that the court expressly recognized that the 1979 order was interim action required to meet an “existent emergency.” Keyes, 474 F.Supp. at 1271. The court also, as earlier noted, made an explicit finding of fact and conclusion of law that the School District had not achieved unitary status, and there was no appeal from that determination. The adoption of the Consensus Plan was explicitly identified as another interim expedient, made necessary by the Board’s abrupt change of position in submitting the Total Access Plan, implicitly repudiating the work of its own Ad Hoc Committee. Keyes, 540 F.Supp. at 404. During the 1982 hearings, the plaintiffs addressed very specific objections to features of the Consensus Plan and predicted resegregative effects from its implementation. It is important to recognize that the “consensus” of the “Consensus Plan” referred to a 6-1 consensus of the School Board members, and did not involve any agreement by the plaintiffs or the intervenors. It is also clear that the basis for the formation of the Board consensus was an effort to reduce “forced busing” by attempting to expand walk-in attendance areas. The proposal was premised on a hope that there would be a discernible movement toward natural integration of these attendance zones by changes in housing patterns. The evidence now before the court shows that the plaintiffs’ objections and the court’s concerns about the Consensus Plan were well founded. Barrett and Harrington have become racially identifiable schools, with their respective Anglo populations falling from 43.3% and 25.3% in 1981 to 18% and 15% in 1983. Mitchell fell from 22.5% to 12% Anglo. The plaintiffs/intervenors argue that the resegregation of these schools as a result of the adoption of the Consensus Plan establishes proof of official segregative action which justifies remedial action by this court. The defendants counter with the contention that the loss of Anglo enrollment at these schools is additional evidence of the phenomenon of white flight, and that the existence of three racially identifiable elementary schools does not indicate a return to a dual system. Indeed, a basic dispute between the parties in this case is the manner in which statistics should be used to measure desegregation, as will be discussed later in this opinion. It is not necessary to deal with the contention that the Consensus Plan showed segregative intent. The conclusion of this court is that it has had and continues to have jurisdiction in this case, and no new intentional acts are required to justify the exercise of that jurisdiction. Over the last nine years, the Denver Public School System has become smaller, both in numbers of students and schools. In 1976-77, the school system contained 61,680 students in 119 schools. In 1983-84, the Denver Public School system contained 51,159 students in 107 schools. The ethnicity of the pupil population has also changed. In 1976 — 77, the District was 49.33% Anglo, 28.23% Hispano and 20.30% Black. In 1983-84, the District was 39.18% Anglo, 33.33% Hispano and 22.72% Black. There are now three levels of schools in the system, elementary schools, middle schools (grades 7-8), and high schools (grades 9-12). In 1983-84, 80 schools, or nearly 75% of the schools in the school system, were elementary schools. The number of schools and their sizes are significantly different at the three levels. Maintenance of stable ethnic distributions of students is more difficult in the elementary schools than in either the middle or senior high schools, because the same absolute change in the number of students in an elementary school has a greater relative effect on ethnic percentages in the school. Typically, elementary school attendance zones are smaller and more sensitive to local demographic changes. The larger the school, the more elastic is its response to small changes in school populations. The defendants have presented a vast array of statistical data and expert opinion to support the claim that since 1976, the City and County of Denver and the Denver Public School System have undergone demographic changes which have had a “striking” effect on student attendance patterns. The District urges that “extensive movement” of population within Denver and “a steady and large decline in enrollment, almost all of which represented a loss of Anglo students” are reasons for the development of racial imbalance in certain schools. In making that argument, the defendants place heavy emphasis on an exhibit derived from a question in the 1980 long-form- census questionnaire (which asked where people lived five years ago) to suggest that there was a large migration of Anglo families with school-age children from Denver out to the suburbs between 1975 and 1980, and that there was no significant converse movement. This presentation is flawed by the omission of information about persons who lived in Denver in 1975 and moved away from the entire metropolitan area. The exhibit titled “Patterns of Demographic Mobility and Family Income Within Denver SMSA” presents data in three groups. Group A is titled “Denver Residents,” group B is “Suburban Residents,” and group C is “In-Migrants.” The universe from which the percentages are computed for groups A and B is not complete. Group A only makes sense as a description of what has happened to the set of people who were Denver residents in 1975. It includes those 1980 Denver residents who answered that they did not move or moved only within Denver. It also includes those residents in the Denver suburbs in 1980 who responded that they lived in Denver 5 years earlier. However, Group A does not include the persons who did live in Denver in 1975 but who moved away from the Denver SMSA (Standard Metropolitan Statistical Area) before 1980. The calculations for Group B contain the same omission. Without knowing how many households moved away from the Denver metropolitan area since 1975, accurate percentages cannot be computed, and the data are not very helpful in the present analysis. This court is not persuaded that demographic change is the reason for the development of racial imbalance in the schools. HAS DISTRICT NO. 1 COMPLIED WITH THE COURT ORDERS? Student Assignments The District did implement the pupil assignment plan accepted by the 1976 Decree in the school year 1976-1977. Transportation was provided and, on the whole, pup