Full opinion text
ORDER BLATT, District Judge. The plaintiffs instituted this desegregation action on January 9, 1981, alleging, basically, that the 1967 Act of the South Carolina General Assembly, under which the Charleston County school system operates today, violates the Equal Protection Clause of the Fourteenth Amendment. After very lengthy discovery, due to the nature of the case, and after deciding to bifurcate the liability and damages aspects of the case, evidence on the liability issue was taken non-jury on various dates, beginning on October 6, 1987, and ending on September 27,1988. Final briefs were submitted to the court in November of 1989. For the reasons stated within, this court has concluded as a matter of fact that the aforesaid Act was passed without discriminatory intent. Although this court finds that the Act was passed without discriminatory intent, this court does find that the Act has had a limited discriminatory effect in the operation of the schools in Charleston County. The court further finds as a matter of law that both discriminatory intent and discriminatory effect must be established to prove a Fourteenth Amendment violation. Because the plaintiffs can have no remedy unless the passage of the Act was enacted with discriminatory intent and the Act has a discriminatory effect, and for the other reasons hereinafter stated, the complaint herein must be dismissed. I. INTRODUCTION The plaintiff, United States of America, and the plaintiff-intervenors, Richard Gana-way et al., on behalf of all black children in Charleston County, South Carolina, are suing the Defendants, Charleston County School District and State of South Carolina. Plaintiffs assert that the defendants have refused and/or failed to dismantle the dual school system in Charleston County; that the present situation, in which there remain all-black schools, results from intentionally discriminatory legislative and administrative actions taken by the defendants; and that the acts and omissions of the defendants in managing the public school system have had discriminatory effects, all in violation of defendants' affirmative duty to desegregate the Charleston County School District. Defendants assert that the legislative and administrative acts taken by them were not intentionally discriminatory, and that they have completely dismantled the former de jure dual school system in Charleston County. Defendants, therefore, request the court to dismiss this action and to declare that the Charleston County School system has achieved unitary status. II. PROCEDURAL HISTORY Litigation concerning racial segregation in the public school systems of Charleston County began in 1962 with the filing of the Complaint in Brown v. School District No. 20, Charleston, South Carolina, 226 F.Supp. 819 (E.D.S.C.1963), aff'd, 328 F.2d 618 (4th Cir.1964) cert. denied, 379 U.S. 825, 85 S.Ct. 52, 13 L.Ed.2d 35 (1964). That complaint was filed to enjoin the City of Charleston school system — (District 20)— from operating on a racially segregated basis in violation of the United States Constitution, as prohibited by the decision of the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Prior to 1954, pursuant to the South Carolina Constitution and statutes, schools in South Carolina were required to be racially segregated. Brown declared such de jure systems of segregation to be an unconstitutional violation of the Equal Protection Clause of the Fourteenth Amendment. This landmark decision led to a vast number of suits seeking compliance with the Supreme Court’s mandate. The District 20 case was one of those suits. At the time, District 20 was one of eight separate school districts in Charleston County. The District 20 case was commenced in 1962 by thirteen black students and their parents on behalf of themselves and others similarly situated, for an injunction enjoining the operation of the school system in District 20 on a racially segregated basis. The district court issued its first order in that case on April 11, 1963, and retained jurisdiction over the matter until that case was dismissed by order dated July 31,1981. CCSD Ex. 18. Effective July 1, 1968, the Charleston County School District was created pursuant to Act 340, Acts and Joint Resolutions of the General Assembly of the State of South Carolina (1967) — (hereinafter referred to as “Act 340”) — and certain powers, primarily fiscal and administrative, previously held by the eight separate districts, were vested in it. CCSD Ex. 15. However, the eight former school districts were denominated as “Constituent Districts” and retained their authority over faculty employment, student assignment and student discipline. On January 9, 1981, the United States filed the instant complaint, alleging that “[t]he public schools in Charleston County are substantially segregated by race”; that the “racial segregation ... is the result of intentionally discriminatory legislative and administrative actions by the defendants”; and that “Sections 7 and 8 of [Act 340] were enacted with the purpose, and have had the effect, of discriminating against students in the Charleston County public schools on account of their race and segregating such schools by race.” Complaint of United States, Paragraphs 6, 7 and 15. Defendants moved to dismiss the complaint, and the case was stayed for several years to allow the parties to negotiate. In the fall of 1983, this court denied the defendants’ motions to dismiss and allowed the plaintiff-intervenors to intervene in the action. The complaint in intervention set forth substantially the same allegations as were set forth in the United States’ complaint. The trial commenced on October 6, 1987. After nine days of testimony from 28 witnesses, the United States completed the presentation of its case on November 10, 1987. The plaintiff-intervenors then presented nine days of testimony from 20 witnesses. After the plaintiffs rested, the defendants moved to dismiss pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. The court denied defendants’ motion after hearing arguments on May 2, 1988. Thereafter, the CCSD began the presentation of its defense on June 14, 1988, and concluded on September 27, 1988 after 15 days of testimony from 32 witnesses. The State, relying upon its exhibits and the evidence in the record, presented no witnesses and concluded its case the same day. After one plaintiff-intervenors’ witness offered rebuttal evidence, the evidence-taking portion of the trial concluded on September 27, 1988. III. THE ISSUES BEFORE THE COURT The primary legal issue before the court is whether the CCSD and the Constituent Districts have fulfilled their affirmative duty to eliminate the former dual school system in Charleston County. In deciding this issue, the court must consider at the outset the validity, interpretation and effect of Act 340, the principal statute governing public education in Charleston County. Specifically, the court must decide: 1. Whether Act 340 was enacted with a discriminatory purpose; 2. Whether Act 340 has had a discriminatory effect; and 3. Whether the CCSD and the Constituent Districts have properly interpreted Act 340 in carrying out their respective affirmative duties to eliminate all vestiges of the former dual school system in Charleston County. Plaintiffs contend that Act 340 was passed with discriminatory intent and has a discriminatory effect, thereby violating the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs urge this court to find Act 340 to be unconstitutional in that it prevents the CCSD and the Constituent Districts from eliminating the former dual school system. Only after the court has decided these threshold issues will it be able to decide the central issue in the case of whether the CCSD and Constituent Districts, acting under applicable state and federal law, have dismantled the former dual school system in Charleston County. IV. GOVERNING LEGAL PRINICIPLES Before delving into the specific factual and legal findings and conclusions necessary to the disposition of this action, the court finds it expedient to examine the basic principles of law regarding school desegregation actions. A. DUTY TO DESEGREGATE Until 1954, the public schools of South Carolina, including Charleston County, were segregated by race, with separate schools for black and white students mandated by state law. In 1954, the Supreme Court in Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686 (1954), held that such dual school systems violated the Equal Protection Clause of the Fourteenth Amendment. The following year, the Supreme Court decided Brown v. Board of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II), in which it held that school boards operating such dual school systems were required “to effectuate a transition to a racially nondiscriminatory school system.” 349 U.S. at 301, 75 S.Ct. at 756. In discussing the Brown II mandate, the Supreme Court, in Green v. County School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), held: Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. 391 U.S. at 437-38, 88 S.Ct. at 1694. The objective in carrying out this affirmative duty is to eliminate all vestiges of segregation found in the dual school system. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971). When the dual systems are eliminated, “further judicial supervision over the school system is unnecessary unless school authorities deliberately attempt to segregate the schools.... ” Martin v. Charlotte-Mecklenburg Bd. of Educ., 626 F.2d 1165, 1167 (4th Cir.1980); Riddick v. School Bd. of City of Norfolk, 784 F.2d 521 (4th Cir.1986); Whittenburg v. School Dist. of Greenville County, 607 F.Supp. 289 (D.S.C.1985). i. Burden of Proof. In deciding whether defendant CCSD has fulfilled its duty to desegregate, the court first must consider the allocation of the burden of proof between the parties. As a general proposition, until a former dual school system becomes unitary, “plaintiffs are entitled to the presumption that current disparities are causally related to prior segregation, and the burden of proving otherwise rests on the defendants.” School Bd. of the City of Richmond v. Baliles, 829 F.2d 1308, 1311 (4th Cir.1987). However, in seeking to show that current disparities exist in the CCSD, plaintiffs contend, among other things, that this court should disregard Sections 7 and 8 of Act 340 on the grounds that such sections were enacted with a discriminatory purpose, have a discriminatory effect, and are, therefore, unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Since public education in Charleston County is largely governed by Act 340, its allocation of authority between the CCSD and Constituent Districts must be taken into account in determining whether the CCSD has fulfilled its affirmative duty. Thus, the validity and binding effect of that Act must be determined before the court can decide the ultimate issue in the case, namely, whether CCSD has fulfilled its affirmative duty to desegregate. The issue arises as to which party has the burden to prove that Act 340 was enacted with discriminatory intent and a resultant discriminatory effect. The court concludes that plaintiffs bear the burden of proof on this issue. Act 340 is not a policy or rule which has been adopted by the CCSD in the exercise of its discretion. It is a duly enacted statute of the State of South Carolina and, as such, is presumptively valid. See, e.g., Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) — (legislative acts have a presumption of constitutionality). Therefore, unless and until such statute is proven to be unconstitutional, the CCSD is bound by its requirements just as any citizen is bound by valid state law. To the extent plaintiffs contend that Act 340 is unconstitutional, and can therefore be disregarded in evaluating the CCSD’s present desegregation plans and their results, plaintiffs bear the burden of establishing that the statute is unconstitutional. V. ACT 340: ITS HISTORY AND CONSTITUTIONALITY In 1967, State Senator Charles M. Gibson of Charleston County introduced Act 340, which proposed to consolidate all eight of the school districts in Charleston County, although the Act as passed left with the existing districts the power to make student and teacher assignments. Plaintiffs contend that the South Carolina General Assembly structured this school system with the intent to allow the schools of Charleston County to remain as segregated as possible. Plaintiffs further contend that defendants have improperly interpreted Act 340 in a manner that avoids their affirmative duty to desegregate Charleston County schools. Defendants counter that the consolidation was intended to help equalize the extremely divergent tax bases in the several districts, and that the retention of the previously existing boundaries for student and teacher assignments was a concession to those legislators who either did not want any local control taken away from the eight school districts, or who opposed “spreading the wealth” between the wealthy and the very poor districts. A. INTENT An integral part of plaintiffs’ argument is that the General Assembly intended to perpeptuate segregation by the passage of Act 340; therefore, this court must first examine the evidence on this issue. The court heard extensive testimony and received numerous exhibits concerning the intent of the General Assembly in passing Act 340, the “consolidation act”, on which plaintiffs’ constitutional challenge is based. In January, 1967, when Senator Gibson introduced his bill to consolidate the school districts of Charleston County, the evidence clearly indicates that the eight Charleston County school districts were operating with substantially different amounts of funding due to their different tax bases. See, for example, Frampton, day 21, p. 51, Gibson, day 25, p. 82. Several studies had been conducted concerning the Charleston County schools; one in 1966 by the State Board of Education, and another, also in 1966, authorized by the South Carolina General Assembly. Both of these studies resulted in various recommendations of ways in which, among other things, education could be improved in Charleston County schools. Both studies recommended consolidating the school districts in order to equalize funding among all the districts. CCSD Ex. 16, pp. 85-86, p. 102; Smythe, day 24, p. 9, CCSD Ex. 39, p. 119 and cover letter, pp. 6-8. Senator Gibson, following the suggestions contained in these reports, introduced his version of the bill in January, 1967. At that -time, the rural school districts, 1, 9 and 23, were barely able to maintain their educational programs due to the low levels of tax revenues raised in those districts. The Gibson bill was extremely controversial, in both the public and political arenas. The Republicans in the House and the Senate, as well as many citizen groups, opposed it, both of which felt that loss of complete local control over the schools in each existing .district would greatly damage the educational structure in the individual districts. Residents of North Charleston, the district with the largest tax base, opposed the bill, because they correctly perceived that their taxes would increase and their services would decrease. Residents of Districts 4 and 10 opposed the consolidation because they were the ones upon whom the greatest increase in taxes would be imposed. CCSD Ex. 17A, pp. 55, 57. Amendments were offered to the bill which continued local control over, among other things, faculty hiring, student assignments and student discipline. These amendments designated the eight former districts as “Constituent Districts,” continuing in them the same boards of trustees and the same authority over pupil assignments, teacher hiring and the suspension and dismissal of students. After a long and heated legislative battle, Act 340, in its amended form, was passed in June, 1967, to be effective the following year. Evidence does exist that some opposed the consolidation solely for racial reasons. However, the court finds that there were many legitimate reasons, not connected with race, which caused citizens and those involved in the political process to oppose Act 340. As Senator Gibson testified at trial, he was aware of the opposition to his “total consolidation” bill for both fiscal and racial reasons. He ultimately accepted the House version of his bill, which provided for the current “Constituent District” control, not because of the changes it did make — regarding teacher and pupil assignment — but because of the changes it did not make — it left the fiscal equalization aspects of his original bill intact. Gibson, day 25, pp. 99-100, 129-30. Plaintiffs contend that the amendments to Act 340, which created the Constitutent Districts, were primarily designed to placate the racial concerns of those who opposed the bill. Such a system, they aver, would maintain segregation by keeping students in schools in their respective neighborhoods. The court finds, however, that any legislator who could possibly be identified as having racial concerns, opposed both the original bill providing for complete consolidation and the amended drafts of the bill. Therefore, the court finds as a matter of fact that the amendments creating the Constitutent District system were not added to Act 340 to appease any legislator or citizen group whose avowed purpose was to maintain the dual school system. As is often the case, the final Act was the result of a political compromise based on the perception of the members of the House of Representatives and some Senators that the retention of the local boards in a county as large as Charleston would prove useful and important to the functioning of the school district and would also appease some of the legitimate opposition to the bill. It was, essentially, an attempt to preserve local control and still gain the absolutely necessary positive benefits of a single, consolidated tax base for the entire county. Figg, day 22, p. 44; McGee, day 23, p. 84; Scarborough, day 23, p. 142; Hartnett, day 23, p. 173; Gibson, day 25, p. 130; Guerard, day 6, p. 114. The plaintiffs contend that Section 7, which sets forth the powers of the Constituent Districts, and Section 8, which sets forth the procedure for the transfer of teachers, of Act 340 are unconstitutional because these sections were enacted with a discriminatory purpose, they have had a discriminatory effect, and they have hindered and impeded desegregation in Charleston County. The court finds, however, that the evidence simply does not support this contention; rather, the evidence overwhelmingly proves that the purpose of the Act as passed was to equalize funding throughout the County and to remedy the economic disparities which existed between districts. The powers vested in the Constituent Districts, including responsibility for student assignments and faculty hiring, were never granted to the CCSD, but were left with the eight existing districts, which were designated as Constituent Districts in the Act. B. EFFECT Plaintiffs’ second contention concerning Act 340 is that its passage and implementation by defendants has had a discriminatory effect in that it has allowed a dual school system to be continued in Charleston County. This court is convinced that it is slightly more difficult to further integrate Charleston County schools today because of the constituent districting provided for in Act 340. If the Constituent Districts did not exist, and the county system were operated as one district, as the plaintiffs urge, the court finds that the pupils could be assigned in a somewhat different manner, thereby causing the racial composition of some schools to be more racially balanced. Thus, if sections 7 and 8 were deleted from Act 340, and the Act were interpreted as consolidating the entire county of Charleston for all purposes, the court feels that a relative few of the schools in Charleston County would be less segregated, and, to that extent, the court finds that Act 340 has had a slight effect of hindering further desegregation. The General Assembly, if it had so chosen, could have “started from scratch” and drawn up completely new attendance zones and districts, and the court finds that the retention of the pre-existing constituent attendance zones does have some slight effect of preventing further desegregation in Charleston county. However, as elaborated infra, this court does not feel that the adoption of a new plan of organization for Charleston County schools, which plan’s sole purpose was for fiscal equalization, is tantamount to a disregard of the affirmative duty under Brown and its progeny to eliminate all vestiges of segregation. While it may be slightly more difficult to achieve a greater measure of desegregation within the existing legislative framework than could be acheived without the Constituent District system, true integration would be impossible in Charleston County because of its rather unique geography. With all of its rivers and bridges and its nearly 100 mile area, extensive busing would be extremely dangerous. The court further finds, based on the testimony of Dr. Armor and Dr. Clark, expert witnesses in this case, that, given housing patterns, natural obstacles, and the transportation system of Charleston County, it would not have been practical to draw the school attendance zones in a manner which would increase in any significant respect the level of integration in the schools, even if Constituent District lines were completely disregarded. Both Dr. Armor and Dr. Clark investigated the school attendance zones and enrollments to determine whether more desegregation could have been achieved if the Constituent District boundary lines were disregarded in establishing school attendance zones. Although both identified a few areas where they believed zone changes prior to 1'980 might have improved racial balance in a some schools, both were of the opinion that such changes would not have any significant effect on overall levels of desegregation. Armor, day 32, pp. 93-99; Clark, day 26, pp. 116 117. Based on his examination of attendance zones, Dr. Armor concluded: [t]here is very, very little that I think could be done if we ignored those boundaries or that would be done or at least would have been done by, the districts, because there really aren’t very many adjacent districts across the rivers or the boundaries that have-would be the right mix of majority white with majority black, which if you then rezone them or combine them, you would have a substantial improvement in desegregation. Armor, day 32, pp. 94-95. Dr. Armor did identify several areas in which better racial balance might have been achieved as of 1980 if the attendance zones between the schools could have been drawn without reference to Constituent District lines. First, the attendance zones of Orange Grove Elementary, a majority white school in District 10, and Mary Ford Elementary, a predominately black school in District 4, might have been adjusted to achieve more racial balance in those schools. Second, Stiles Point Elementary, a predominately white school in District 3, and James Simons Elementary, a predominately black school in District 20 across the Ashley River, could theoretically have been combined. Third, he considered the possibility of merging District 20 schools with District 2 schools which would necessarily involve transporting students across the Cooper River. However, while these combinations were theoretically possible, Dr. Armor emphasized that if boundary lines were extended across rivers and bridges, as they would be in the three situations he described, white students would not “show up,” causing “white flight”. Dr. Armor testified: I looked at the possibility of going across, the Cooper River in District 2, but I am — Pm going to make the same comment about these other combinations. I think when you change, the boundaries within the district, that’s one thing, adja-cencies or close by. I think when you change boundaries across rivers and bridges where there are a lot of obstacles in the way, I think that you will have a danger that white students that were assigned to black schools in District 20 and maybe black students assigned to cross the river to District 2 would not show up and you would have the phenomena we know as white flight. I don’t think that without the boundaries that the — that a district — Charleston District would have ever assigned, students, across that bridge. I don’t think it’s feasible or realistic to do that. I am inclined to feel the same way about the Stono, Stiles Point using some schools in District 3, because here there are two bridges, both draw bridges that one has to go across and then go some, distance into the Stiles Point area. So it is a pretty good distance. And there are two bridges that are both draw bridges. I doubt if that would have been used, even if one could ignore the district boundaries, because of the rivers and because of the relative distances involved here. And the only one that — and I think that if you assign white students from Stiles Point into District 20,1 think again you would have had substantial white flight. And while you might have gotten black students from Stiles Point, you would, not have gotten white students, I don’t think, into Simons in the City, or you would have lost a lot of them and therefore you would be losing a resource that would provide for integration in District 3. Id., pp. 97-98. Therefore, Dr. Armor concluded that such changes, although theoretically possible in 1980, would not have had any appreciable effect insofar as further desegregation was concerned. Id., pp. 99. Dr. Clark, too, examined attendance zones to determine whether any significant increases in desegregation could have been accomplished if Constituent District boundaries were ignored. Clark, day 26, pp. 95-117. He identified the same possibilities that Dr. Armor mentioned and added that schools in Districts 2 and 20, across the long expanse of the Cooper River bridges from each other, could theoretically be zoned together to achieve more racial balance. However, he concluded that transporting children across the Cooper River would not be feasible because of the substantial barrier it presents and because such children would not show up if assigned to schools across the river. Id., pp. 100-101, 105-109, 114-117. Because the Cooper River bridges are long and subject to serious safety problems, many parents would object to their children being transported over these bridges. Dr. Gordon, plaintiff-intervenors’ expert, also testified that he would never recommend transporting students across the Cooper River bridges. Gordon, day 16, p. 27. The court agrees; especially does it agree that such transportation would constitute dangers to children’s lives that this court would never order. The court has also reviewed attendance zone maps and enrollment data and finds persuasive Dr. Armor’s and Dr. Clark’s testimony that, even if Constituent District boundary lines had been ignored, school attendance zones could not have been drawn in such a way as to significantly improve desegregation. The court also notes that neither the United States nor plaintiff-intervenors presented any credible testimony disputing Dr. Armor’s or Dr. Clark’s conclusions or indicating where school attendance zones could realistically have been modified to improve desegregation if Constituent District lines had been ignored. The evidence also indicates that in certain areas of the county, in particular District 20, a great majority of white students chose to attend private schools. For example, in Census tract number 20, the predominately white area at the tip of the peninsula, there were 69 students in grades 9-12. All of these children were enrolled in private schools. U.S. Ex. 911, p. 14. While this court does find that the retention of the Constituent Districts for attendance purposes has had the effect of making integration slightly more difficult, this finding is undercut by the geography, demography, and private choices of Charleston County. As noted by the Fourth Circuit in Goldsboro City Bd. of Educ. v. Wayne County Bd. of Educ., 745 F.2d 324, 333 (4th Cir.1984), “[The courts] are not at present charged with a responsibility to remedy problems caused by demography and private racism.” C. LEGAL IMPLICATIONS Having determined that Act 340, while having a slight discriminatory effect, was not passed with discriminatory intent, the court must examine the legal ramifications of such findings. The plaintiffs contend that Sections 7 and 8 of Act 340 are unconstitutional because they deny black children equal protection of the law as required by the Fourteenth Amendment of the United States Constitution. Consequently, they contend that these sections are void and should be disregarded by the court in determining if the CCSD is desegregated. In order to sustain their claim, this court feels that' plaintiffs must prove that Act 340 was enacted with a discriminatory intent and that it has had a discriminatory effect. After reviewing the sequence of events leading to the passage of Act 340, and other evidence relating to the purpose of the Act and the changes made by it, the court concludes that the plaintiffs have not proven any requisite discriminatory intent; rather, the evidence shows that Act 340, including Sections 7 and 8 thereof, was passed for a perfectly legitimate purpose and is a valid exercise of state authority. i. Intent. Racially discriminatory intent and impact are both required to establish the unconstitutionality of a governmental act under the Fourteenth Amendment. The United States Supreme Court held in Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), that: ‘Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.’ Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Id. at 265, 97 S.Ct. at 563 (quoting Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). The Supreme Court has expressly held that the intent requirement set forth in the Arlington Heights and Washington v. Davis cases is applicable to school desegregation cases. Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979). See, also, Lee v. Lee County Bd. of Educ., 639 F.2d 1243, 1268 n. 18 (5th Cir.1981). In accordance therewith, in Goldsboro City Bd. of Educ. v. Wayne County Bd. of Educ., 745 F.2d 324 (4th Cir.1984), the United States Court of Appeals for the Fourth Circuit held that “[w]ithout discriminatory intent there can be no violation of the Equal Protection Clause.” Id. Moreover, the required discriminatory intent cannot simply be inferred from a finding of some slight discriminatory impact. In Lee v. Lee County Bd. of Educ., 639 F.2d 1243 (5th Cir.1981), also a school desegregation case, the United States Court of Appeals for the Fifth Circuit, citing the Washington v. Davis and Arlington Heights cases, held: The Supreme Court has now made clear that for purposes of equal protection analysis, a finding of discriminatory intent requires more than the sort of objective intent employed in civil and criminal law, which presumes that a person intends the natural and foreseeable consequences of his voluntary actions. A finding of discriminatory purpose or intent requires a finding that a public decision-maker embarked upon the challenged course of action ‘at least in part “because of,” not merely “in spite of” its adverse effects upon an identifiable group.’ 639 F.2d at 1267-68 [citations omitted]. Village of Arlington Heights, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), sets forth several criteria which the court should review in order to determine whether or not a discriminatory purpose was a motivating factor in the decision making process. These factors are as follows: (a) the historical background of the decision; (b) the specific sequence of events leading up to the challenged decision; (c) departures from the normal procedural sequence; and (d) the legislative or administrative history. Id. at 267-68, 97 S.Ct. at 564-65. The evidence on the historical background reveals that consolidation of the school system was politically difficult; that all attempts to consolidate local government, other than the school system, had failed for various reasons; that the proponents of Act 340 were not racially motivated; and that, while some of the opponents may, in part, have been racially motivated, they had no impact on the final bill. The specific sequence of events leading up to the passage of the Act also indicates that race was not a motivating factor on the part of the proponents, that there were legitimate and nondiscriminatory reasons for opposition to the bill, and that the final bill was not racially motivated. There were certainly legitimate and nondiscriminatory reasons for the legislators to preserve existing school boards and boundaries and for certain areas of the County, such as the North Charleston area, to oppose consolidation. The fact that race may have been a factor in the thinking of some of the opposition to the bill does not affect the reasoning of the proponents of the bill. If such were the case, an opponent of any measure, using race as an issue, could cause any governmental action to be invalidated, even though the proponents were never racially motivated. If plaintiffs’ legal theory were correct, a single racially motivated opponent of any legislation could later cause greatly beneficial and nondiscriminatory legislation to be undermined in federal court. The plaintiffs contend that the House amendments related only to school desegregation issues, that is, assignment of students and hiring of teachers. However, these are the same issues that go to the heart of local control of any school system, regardless of race. Such issues are not involved in countywide financial decisions, such as those relating to new tax bases and new school construction, which financial decisions were intended to be consolidated in a central fiscal authority — the CCSD — by the new Act. The court concludes that the House amendments were not designed to accommodate resistance to faculty and student desegregation because (1) the ongoing process of desegregating faculty and students would not be affected by the bill or the House amendments, (2) all of the racially motivated opponents still opposed the bill, and (3) the opponents consistently said that the bill, even as amended, would lead to busing and desegregation. The purpose of the Act was to obtain the many benefits of fiscal consolidation; the House amendments made that lofty goal achievable by preserving local control. The court finds nothing amiss in the “give and take” involved in the legislative process in which two perfectly legimate goals were combined in order that much needed legislation could become law. The court has also examined departures from normal practices. The plaintiffs contend that the customary practice in the General Assembly was that local legislation, sponsored by the local delegation, was usually approved, almost as a matter of form, and that controversy surrounding local legislation was highly unusual. This is true, but had the school bill followed normal practice it would have been thoroughly defeated, as the Senate delegation overwhelmingly opposed the bill. Under such circumstances, there would now be eight separate school districts in Charleston County, with widely varying tax bases, and with widely varying physical facilities and teaching capabilities — in other words, without the Act the “rich would be richer” and “the poor would be poorer”. The customary and normal practices were overcome in this instance by the proponents of Act 340, which is one of the reasons why there was so much controversy about the bill. Thus, departure from normal practice has led to an improved school system which ultimately has led to further desegregation, not less. This is completely different from the situation in which departure from normal procedures allows passage of racially inspired statutes. To the extent that there was a departure from normal procedures in this case, it was to overcome possible racial bias, not to facilitate the enactment of racially discriminatory legislation. The court repeats its conclusion that Act 340 was passed in order to equalize funding between the eight school districts of Charleston County and to make the system more efficient by centralizing certain functions in a central authority. Furthermore, the inclusion of Section 7 of Act 340, which preserved the authority of the local Constituent Districts over assignment of students, and of Section 8, which preserved the authority of the local districts to enforce contracts with their teachers, does not constitute evidence of discriminatory intent. The courts have long acknowledged local control of public education in this country as a deeply rooted tradition. The tradition exists in South Carolina in which “[a] school district is a body politic and corporate under the laws of this State and constitutes one of our most important political subdivi-sions_” Patrick v. Maybank, 198 S.C. 262, 17 S.E.2d 530, 534 (1941); see also § 21-111 of the Code of Laws of South Carolina, 1952 and 1962 (§ 59-17-10 of the 1976 Code). This important tradition has been expressly recognized by the Supreme Court in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), in which the Court stated: No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process. See Wright v. Council of the City of Emporia, 407 U.S., [451] at 469, 92 S.Ct., [2196] at 2206 [33 L.Ed.2d 51 (1973)]. Thus, in San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 50, 93 S.Ct. 1278, 1305, 36 L.Ed.2d 16 (1973), we observed that local control over the educational process affords citizens an opportunity to participate in decision making, permits the structuring of school programs to fit local needs, and encourages ‘experimentation, innovation, and a healthy competition for educational excellence.’ Id. at 741-42, 94 S.Ct. at 3125-26. The plaintiffs also contend that Section 7 of Act 340 was enacted in response to constituent concerns that without Section 7 the Act could lead to reassignment or “busing” of students away from neighborhood schools and that this is evidence of discriminatory intent. While there is no evidence that the legislators who supported Act 340 were motivated by such concerns, whether they were or not does not indicate discriminatory intent. In the Goldsboro case, the Fourth Circuit Court of Appeals specifically affirmed the district court’s finding that opposition to changes by parents because they might result in their children being reassigned to schools outside their communities was logical, legitimate and non-discriminatory. 745 F.2d at 326. Moreover, neither the lower court nor Supreme Court decisions in the Swann ease, which decisions introduced “busing” as a permissible school desegregation remedy, existed until after the passage of Act 340. Unlike Congress, the General Assembly of South Carolina does not provide a legislative history for Acts that it passes. Newspaper articles, testimony of the legislative delegation at the time Act 340 was passed, and other historical data were considered by the court, and the court has used these data in formulating the factual conclusions hereinabove set forth. Having found no discriminatory intent, the court concludes, based on the authorities hertofore cited, that Act 340 is not unconstitutional even though the Act may have a slight discriminatory impact on school desegregation. The law seems clear to this court that proof of discriminatory intent, by direct or circumstantial evidence, is an absolute requirement in Fourteenth Amendment equal protection cases. ii. Effect. In addition to discriminatory intent, evidence of significant discriminatory impact is also required to prove that a state statute violates the Equal Protection Clause. Goldsboro City Bd. of Educ. v. Wayne County Bd. of Educ., 745 F.2d 324 (4th Cir.1984). As heretofore noted, the court concludes that Act 340 did have some discriminatory impact insomuch as the Act did not attempt to re-examine the lines for student and teacher assignments. However, the court finds that the mere presence of a slight impact on racial assignment, when examined in light of the unique geography of Charleston County, does not rise to the level of a constitutional violation. Although Act 340’s retention of already existing districts did slightly affect the possible racial composition of the schools, the Act did not impede the affirmative duty to desegregate or interfere with desegregation in Charleston County merely because it did not change the system of assigning students or hiring teachers in Charleston County. The lines between the Constituent Districts are not vestiges of the formerly dual school system, and Act 340 did not impose any greater restrictions on the transfer of students and faculty members across district lines than had previously existed. The plaintiffs contend that Act 340, regardless of whether it was passed with a discriminatory intent, should be disregarded by the court in evaluating the CCSD’s desegregation efforts because it has had the effect of impeding or hindering desegregation of the schools of Charleston County. They rely on Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), in which the Supreme Court held that part of the affirmative duty to desegregate is the obligation not to take any action that would impede the process of disestablishing the dual system and its effects. See also Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979) (Dayton II). Before the passage of Act 340, the trustees of the school districts in Charleston County had the authority to “[transfer any pupil from one school to another so as to promote the best interests of education, and determine the school within its district in which any pupil shall enroll.” § 21-230(9) of the Code of Laws of South Carolina, 1962. After the enactment of Act 340, the trustees of the Constituent Districts in Charleston County had the same authority, i.e., “[t]o transfer any pupil from one school to another within the same constituent district so as to promote the best interest of education, and determine the school within such constituent district in which any pupil shall enroll.” Act 340, § 7(1). Before passage of Act 340, students could be transferred from the district in which they resided to an adjoining school district with the consent of the trustees of the both school districts, and the County Board of Education could order a transfer when the trustees of the receiving school district “unreasonably or capriciously [withheld] their consent.” §§ 21-849 and 21-851 of the Code of Laws of South Carolina, 1962. After the passage of Act 340, the trustees of the Constituent Districts had the identical authority to transfer students. §§ 59-63-490 and 59-63-510 of the Code of Laws of South Carolina, 1976. CCSD Ex. 49A, pp. 26-33 (Ops. Att’y. Gen., September 1, 1977). Before the passage of Act 340, the trustees of the separate school districts had the authority to “[ejmploy teachers ... subject to the supervision of the county board of education.” § 21-230(2) of the Code of Laws of South Carolina, 1962. After Act 340, the teachers in the Constituent Districts were employed by the trustees of the Constituent Districts, subject to the approval of the Board of Trustees of the Charleston County School District. Act 340, § 6; Ops. Att’y. Gen., August 8, 1968. Although plaintiffs complain of the restrictiveness of Section 8 of Act 340 requiring the consent of the teacher and both Constituent Districts involved before transfer of the teacher between those Constituent Districts can occur, this is no more restrictive than prior law. Earlier law contained no specific provisions permitting transfers of teachers between districts, but it is apparent that such a transfer would have required, at a minimum, the consent of the teacher and the school districts involved, therefore, Act 340, by expressly acknowledging and providing for teacher transfers, was, if anything, less restrictive than prior law. The court concludes that Act 340 did not hinder or impede the satisfaction of the affirmative duty to desegregate schools, because the Constituent Districts had no less authority to desegregate the schools within their districts and no less power to transfer students from one Constituent District to another Constituent District under Act 340 than they had before its enactment. It is only to the extent that the General Assembly did not redraw the attendance zones that the court finds that Act 340 had a slight discriminatory effect, but nothing in this holding should be read to suggest that defendants had a duty to redraw these zones and failed to carry out that duty under Brown and its progeny. Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), provides no support for plaintiffs contention; rather, it supports this court’s conclusion that Act 340 did not inhibit the affirmative duty to desegregate the schools in Charleston County. In that case, a county school district had been ordered to desegregate, but two weeks later the local electorate tried to carve a new, predominately white “city district” out of the county, thereby leaving the remaining part of the county predominately black. The Supreme Court had little trouble dealing with this obvious affront to the Federal Court’s power to carry out desegregation of the schools. After discussing the suspicious circumstances of the actions taken, the court held as follows: [Sjince the city and the county constituted but one unit for the purpose of school assignments during the entire time that the dual system was maintained, they were properly treated as a single unit for the purpose of dismantling that system. 407 U.S. at 459-60, 92 S.Ct. at 2202 (emphasis added). In the instant case, Charleston County was divided into eight school districts during the time that the dual system was maintained, and there is nothing unconstitutional about treating it as eight school districts for the purpose of dismantling that system. No attempt has been made to divide it into smaller districts which would be more segregated than if the prior system had been preserved. Here, Charleston County properly maintained the same districts for the purposes of school attendance and faculty assignments, unlike Emporia, Virginia, which attempted to subdivide its district into two districts that would permit more segregation than the system in place when it came under an order to desegregate its schools. Dayton II is also distinguishable from this case. In that case, the Court found that the Dayton school board had engaged in many post-Brown actions which had the effect of increasing segregation. 443 U.S. 538, 99 S.Ct. at 2979. Consequently, Dayton’s schools remained virtually all black or all white. At the time of the hearing, “of 68 schools, 47 were virtually of one race (22 black, 25 white)....” 443 U.S. at 529-30, note 1, 99 S.Ct. at 2975, note 1. Thus, the Dayton board had not only preserved the one-race character of its schools in a district of mixed population (44.6% black), but it had also taken additional measures to increase such segregation or to impede or hinder desegregation. Unlike the acts of the school board in Dayton, Act 340 did not increase segregation in Charleston County. As a consequence, Charleston County does not have separate schools for blacks and whites, as did Dayton. While some of its schools are predominately black, that is the result of demographic factors and private white schools, and not because the white students have been concentrated in “white schools,” as was the situation in Dayton. Where mixed population pattens make integrated schools feasible in Charleston County, it has been achieved. The plaintiffs’ principal criticism of Act 340 appears to be not with what it changed, but with what it did not change — the local districts’ authority over teacher and student assignments. However, the General Assembly, when it undertook to eradicate unequal tax bases in Charleston County, and make possible better physical facilities and teaching capabilities in poorer and predominately black school districts, did not have a duty to consolidate authority over student assignments and faculty hiring in the CCSD, as such functions could legally remain in the hands of the local or Constituent Districts where such functions had previously been vested. No law, in this court’s opinion, under the ■ circumstances here involved, holds that a school district or state legislature has any duty, when amending a rule or law, to change it in such a manner to (1) insure a result of greater racial balance across a larger area and to (2) repeal existing legislation which interferes with achieving that racial balance, unless it was already under a duty to pass such legislation. In this case, neither the State nor the CCSD were under any duty in 1967 to consolidate or merge the eight school districts in Charleston County. The fact that action that primarily benefit-ted the plaintiffs was taken regarding some aspects of the school system does not now, nor did it then, create a constitutional duty to act on some other aspect of the system which was left unchanged. Board of Educ. of Indep. School Dist. No. 53 v. Board of Educ. of Indep. School Dist. No. 52, 413 F.Supp. 342, 349 (W.D.Okla.1975), aff'd, 532 F.2d 730 (10th Cir.1976), cert. denied, 429 U.S. 894, 97 S.Ct. 253, 50 L.Ed.2d 176 (1976), (“[UJnder the law this Defendant had no ‘affirmative duty’ or any duty to permit or agree to the annexation of the remaining portion of the [plaintiff] district following the transfer” of part of the plaintiff district to the defendant district). “A statute is not invalid under the Constitution because it might have gone farther than it did....” Goesaert v. Cleary, 335 U.S. 464, 467, 69 S.Ct. 198, 200, 93 L.Ed. 163 (1948) (quoting Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722 (1929)). Dandridge v. Williams, 397 U.S. 471, 486-87, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970) (citing Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911)) holds that “the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.” The plaintiffs would force just such a choice upon the defendants. Under plaintiffs’ theory, defendants could not have equalized the distribution of school revenues without, at the same time, changing the districts in which children attended school. Under such a premise, the defendants would have been prevented from undertaking constructive measures for the schools in Charleston County without also creating a duty, which had not previously existed, to move students and teachers across boundary lines that were not constitutionally defective. This conclusion that the defendants did not have the duty to desegregate across Constituent District lines when Act 340 was passed is further supported by Dayton I, in which the Supreme Court concluded that the school board’s rescission there of previously adopted board resolutions, which acknowledged responsibility for segregation and called for various remedial measures, was not a constitutional violation in and of itself; rather, the propriety of the rescission depended upon whether the board was constitutionally required to make the resolution in the first instance: “The question of whether a rescission of previous Board action is in and of itself a violation of appellants’ constitutional rights is inextricably bound up with the question of whether the Board was under a constitutional duty to take the action which it initially took.... If the Board was not under such a duty, then the rescission of the initial action in and of itself cannot be a constitutional violation.” Dayton Board of Education v. Brinkman, 433 U.S. 406, 414, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (quoting Brinkman v. Gilligan, 503 F.2d 684, 697 (6th Cir.1974)) (citations omitted). Similarly, in Crawford v. Board of Educ. of the City of Los Angeles, 458 U.S. 527, 535, 102 S.Ct. 3211, 3216, 73 L.Ed.2d 948 (1982), the plaintiffs challenged an amendment to the State Constitution of California which limited state court-ordered busing for desegregation purposes to those instances in which a federal court would order busing to remedy a Fourteenth Amendment violation. The Supreme Court held as follows: But Proposition I [the amendment] does not embody a racial classification. It neither says nor implies that persons are to be treated differently on account of their race. It simply forbids state courts to order pupil school assignment or transportation in the absence of a Fourteenth Amendment violation. The benefit it seeks to confer — neighborhood schooling — is made available regardless of race in the discretion of school boards. Id. at 537, 102 S.Ct. at 3217 (emphasis added). In other words, under Crawford, the State of South Carolina and the CCSD cannot be penalized for failing to do more than the Fourteenth Amendment requires. Consequently, the defendants were under no obligation to redraw the boundary lines of Constituent Districts to consolidate them further at the time of the passage of Act 340. See also Parent Assoc. of Andrew Jackson High School v. Ambach, 598 F.2d 705 (2d Cir.1979). In this case, while there was a duty to eliminate the dual school system in each district, there was never a duty on the part of the State of South Carolina, Charleston County, or any other public official to eliminate racial imbalances between the districts. Yet, that is exactly the duty that plaintiffs would place on the General Assembly when Act 340 was passed. The fact that no duty existed to change all aspects of the Charleston County School System merely because funding and some other functions were consolidated in 1967 under Act 340 is also supported by South Carolina and United States Supreme Court cases concerning the equalization of school funding. The Education Finance Act of 1977, § 59-20-10 et seq. of the Code of Laws of South Carolina, 1976, as amended, provides for the equalization of school funding in this State through a shared funding formula under which school districts with lower tax bases receive more state funding and provide less local funding, and districts with wealthier tax bases receive less state funding and provide more local funding. See § 59-20-40(l)(e) and (f); Richland County v. Campbell, 294 S.C. 346, 364 S.E.2d 470 (1988). In Richland County v. Campbell, the court stated: “We conclude that the shared funding plan implemented by the General Assembly through the EIA and EFA is a rational and constitutional means by which to equalize the educational standards of the public school system and the educational opportunities of all students.” 364 S.E.2d at 472. Therefore, the Education Finance Act did not eliminate school districts as entities with valuable educational responsibilities, although it provided for equalization of school funding. Similarly, although Act 340 does not provide for taxation at the Constituent District level, it does retain other Constituent District functions while equalizing funding across the county. This approach of maintaining local control while equalizing funding was upheld by the United States Supreme Court in San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), in which the Texas educational finance system was at issue. Although the case did not address school desegregation, the following finding of the Court is relevant here: The Texas system of school finance is responsive to these two forces. While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each school district’s schools at the local level. In an era that has witnessed a consistent trend toward centralization of the functions of government, local sharing of responsibility for public education has survived. Id. at 49, 93 S.Ct. at 1305 (emphasis added). Here, Act 340 is consistent with these desirable goals of equitable financing and local control that were recognized by the United States Supreme Court in Rodriguez. It provides for equality of school funding on a countywide basis while maintaining local control at the Constituent District level, just as the State’s Education Finance Act and the Texas school funding statute provided for some equalization of school funding while maintaining local control in the school districts. Therefore, the passage of Act 340 for funding and certain administrative purposes did not require that the Constituent District lines be eliminated and that other educational and governmental matters be addressed therein. Absolutely no requirement existed that Constituent District control of faculty and student assignments be eliminated when Act 340 was passed. Act 340 serves both forces in education recognized by the United States Supreme Court in Rodriguez, to wit: While assuring a basic education for every child in the [county], it permits and encourages a large measure of participation and control of each district’s schools at the local level. Id. That racial balance between Constituent Districts is not constitutionally required is also supported by the Fifth Circuit Court of Appeals decision in United States v. Gregory-Portland Indep. School Dist., 654 F.2d 989 (5th Cir.1981). In that case, two towns, one primarily populated by Anglos and the other, by Mexican-Americans, consolidated their respective school districts into a single district. Nevertheless, the elementary school attendance zones were left unchanged, with each ethnic group attending largely homogeneous schools in the two towns. The United States saw intentional segregation in the presence of racially homogeneous schools within a single district and brought an action seeking desegregation. The court held that, when the two districts voted to consolidate, they had no duty to racially balance the schools in those districts which had different ethnic balances: [The districts] simply happened to have different ethnic mixes in their populations. There is nothing intrinsically sinist