Vaughns v. Board of Education of Prince George's County (742 F. Supp. 1275, 1990)

FRANK A. KAUFMAN, Senior District Judge.

Has the Board of Education of Prince George’s County, Maryland (the Board), operating under an order to eliminate all vestiges of past, de jure discrimination, violated either the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution or Title VII of the 1964 Civil Rights Act by the assignment of teachers in order to achieve certain degrees of racial integration within the faculty of each school in its system? That is the question presently before this Court in this consolidated litigation which includes cases instituted both prior to and during 1989. One of the two cases commenced in 1989 was brought by the United States; the other was commenced by a group of black and white teachers. All parties in these cases have agreed to the consolidation of all issues presently pending in these cases. However, those issues which relate to immunity defenses and to damages have not yet been fully briefed and argued and are reserved for later decision; all other pending issues have been fully argued and are decided in this opinion.

I.

The Board operates a school system consisting of approximately 170 schools, over 100,000 students, and more than 6,000 teachers. The Superintendent of Schools of Prince George’s County nominates for appointment by the County Board all principals, teachers and other certified personnel; the Superintendent assigns them to positions in the schools and transfers them as the needs of the schools require. The Maryland State Board of Education promulgates the regulations by which teachers’ employment contracts are governed; the ordinary employment contract expressly provides that the certificated employee is “hereby employed in the public schools of the said County subject to assignment by the County Superintendent or transfer to some other position with the County....”

In the late 1960’s and the early 1970’s, public education in the State of Maryland came under scrutiny by the Office of Civil Rights of the U.S. Department of Health, Education and Welfare (HEW). In 1971, the Maryland State Board of Education promulgated a policy which required local boards of education to develop and implement plans and procedures for the attainment of racial balance in the public school systems. According to the State directive:

Local boards of education shall develop and implement plans and procedures for the attainment of racial balance at the various levels of the public school system, reflective of the composition of the population of their respective jurisdictions. These plans and procedures shall apply to the hiring, placing, and promotion of all personnel employed at the various levels of the school system....

Pursuant to that regulation, and in an effort to comply with HEW directives, the Board, on March 25, 1971, adopted Rule 4115.3. Rule 4115.3 requires that “the teaching staff of each of the various public schools of Prince George’s County ... be generally consistent with and reflective of the County-wide racial composition of all teachers employed by the Board of Education.” Rule 4115.3, as amended since 1971, remains in effect today as the general policy of the Board.

To achieve the goals outlined in Rule 4115.3, the Board issued two corollary rules, 4115.3(a) and 4115.3(b), thereby implementing a two-phased plan to achieve racial desegregation goals among the faculty of the schools of Prince George’s County (the County) by September, 1972. In the first phase, the Board sought to achieve a goal of 5% to 40% black faculty at each school by September, 1971. The second phase of the plan called for minority staffing of no less than 11% and no more than 25% of the faculty at each school by September, 1972, a goal which reflected, within seven percentage points, the percentage of blacks employed by the Board as faculty members in the County schools, namely, 18% in 1972. Although Rules 4115.3 and 4115.3(a-b) did not expressly require that minority staffing approximate the racial composition of the population of the County as a whole, compliance with the rules would have effectively resulted in faculty assignments reflecting the County’s minority population representation, since, in 1972, minorities also comprised 18% of the County’s population. The two-phase plan of Rules 4115.3(a-b) brought the County’s faculty assignment policies into compliance with the directives issued by HEW. Vaughns v. Bd. of Educ. of Prince George’s County, 574 F.Supp. 1280, 1293 (D.Md.1983), aff'd in part, rev’d in part, 758 F.2d 983 (4th Cir.1985) (Vaughns II).

ii.

In 1972, after the Board had already adopted Rule 4115.3 and had begun implementing procedures for correcting racial segregation in faculty assignments, Sylvester J. Vaughns, the father of a student in the County public schools, filed a class-action suit to eliminate segregated conditions and their vestiges from the County school system. In Vaughns v. Bd. of Educ. of Prince George’s County, 355 F.Supp. 1034 (D.Md.1972); 355 F.Supp. 1038 (D.Md.1972), remanded for further proceedings, 468 F.2d 894 (4th Cir.1972); 355 F.Supp. 1051 (D.Md.1972), aff'd, No. 73-1024 (4th Cir. Jan. 23, 1973), cert. denied, Eller v. Bd. of Educ. of Prince George’s County, 410 U.S. 910, 93 S.Ct. 968, 35 L.Ed.2d 272 (1973) (Vaughns I), the complaint included, inter alia, allegations of discrimination in student and faculty assignment and sought injunctive and other relief. On July 6, 1972, plaintiffs and defendants in Vaughns I filed a Joint Stipulation of Facts with this Court which acknowledged that “many of the schools operated by the defendant which have racially disproportionate student bodies also have racially disproportionate faculties.” The Joint Stipulation also stated, however, that: (1) in 1971 the Board had adopted Rule 4115.3 requiring that “every public school operated by the defendant will have a racial balance of the teaching staff generally consistent with and reflective of the countywide racial composition of all the teachers employed by the Board of Education prior to the commencement of school opening, September 1972”; (2) the Board had accomplished the first phase of the two-stage faculty desegregation plan by September 1971; and (3) the Board had begun the process of transferring teachers to achieve its Phase II faculty desegregation goals.

On July 25, 1972, this Court granted the Vaughns I plaintiffs’ motion for summary judgment, holding that the defendants had maintained a school system racially segregated by law until 1954 and had failed to take adequate steps to dismantle that system between 1954 and 1972. As a result, this Court ordered the Board to develop a workable desegregation plan. In its opinion, this Court noted that it “has been informed by counsel for both sides that ... a plan for faculty [integration was] already in existence.” Vaughns I, 355 F.Supp. 1034, 1037 n. 3. Later, in a December 13, 1972 opinion, this Court noted that “counsel are agreed that current faculty assignments and proposals probably meet federal constitutional standards and that administration seemingly does not present a particularly difficult issue.” Id. at 1044, 1045 n. I. Subsequently, this Court observed that “[bjetween January 1973 and November 27, 1974, all of the non-student attendance issues were resolved by agreement among the parties. One of those agreements was embodied in a consent decree dated February 20, 1974, relating to faculty hiring and promotion.” Vaughns II, 574 F.Supp. at 1284. The relevant provision of the consent decree read:

All hiring, promotion practices and other conditions of employment shall be maintained and conducted in a manner which does not discriminate on the basis of race, color, sex, religion or natural origin in violation of the Constitution of the United States or of Title VII

Id. at 1378. Then, in 1974 and 1975, “this Court relinquished jurisdiction in Vaughns subject to the right of any party to seek to have this Court again resume jurisdiction.” Id. at 1284-85.

III.

On September 1, 1981, a Motion to Reopen the Vaughns litigation was filed by the National Association for the Advancement of Colored People (NAACP). Although the motion was primarily concerned with increasing segregation of student bodies, the NAACP also alleged that the defendants had disproportionately assigned black teachers to predominately black schools and white teachers to white schools and that “[i]n some schools, the number of black and white teachers varies by as much as 20 to 25 percentage points from the ratio of black and white teachers in the County as a whole.” The NAACP requested that this Court order “[rjeassignment of faculty to eliminate disproportionate assignment of faculty along racial lines.”

In its June 20, 1983 opinion, after reviewing the history of the Vaughns litigation and the racial composition of the faculties of the County schools, this Court determined that black faculty was not concentrated in the County’s black schools, such that the faculty could be said to be “racially identifiable.” Vaughns II, 574 F.Supp. 1294. Accordingly, the Court made the following findings:

[WJith respect to faculty assignments, there presently are no vestiges of past racial segregation, no indications since 1973 of any discriminatory actions or lack of actions, and no violations of any orders of this Court.

Vaughns II, 574 F.Supp. at 1295. Accordingly, this Court denied the NAACP’s September 1, 1981 request for reassignment of faculty. However, with respect to student assignments, this Court determined that the County had failed to eliminate all vestiges of unconstitutional segregation in the public schools and had violated aspects of the Court’s desegregation orders. Id, at 1375. Consequently, in its order implementing the Vaughns II opinion, this Court held:

The need for defendants to achieve unitary status as quickly as reasonably possible shall be one of the factors to be considered by defendants in connection with the making of all decisions by defendants, including decisions by defendants which may relate to school assignments made since March 1975.

Id. at 1377 (emphasis in original). On appeal, the Fourth Circuit upheld this Court’s findings that a unitary school system had not been achieved and approved the relief granted in the court below: “Until a school system has discharged its duty to liquidate the dual system and replace it with a unitary one, the school’s duty remains in place.” Vaughns v. Bd. of Educ. of Prince George’s County, 758 F.2d 983, 988 (4th Cir.1985). Plaintiffs in Vaughns //did not appeal this Court’s findings in favor of the Board regarding faculty hiring and assignments. Id. at 988 n. 4.

IV.

Throughout the course of the Vaughns litigation, the Board has maintained a two-pronged mechanism for attaining desegregation in faculty assignment. The first mechanism sets an assignment goal by establishing a minimum and maximum percentage range for black representation in the faculty of each school. The Board maintains that, to the extent feasible, it uses the assignment goal as a consideration in making placement decisions for new hires and transfers of faculty. The first assignment goals were put in place in March, 1971 with the promulgation of Rule 4115.3(a).

The second mechanism is a seniority override goal which applies when staff reductions are to be made at a school, typically due to decreased enrollments either in the school as a whole or in given teaching subject areas. The seniority override goal represents the Board’s attempt to ensure that the integration parameters for each school are maintained whenever involuntary transfers are required, and mandates that traditional seniority considerations in making such transfers may be overridden when strict adherence to seniority would thwart attainment of minimal integration goals. That policy was articulated, in rudimentary form, in a June 29, 1973 Bulletin from the Assistant Superintendent for Administration and Personnel to principals and central office staff.

From 1971 until the present, the Board has published integration goals regarding faculty assignment in each school in the system. The parameters of the assignment goals have been changed at least three times since they were initially established by the Board in 1971-72. On March 22, 1978, the Board increased the assignment goal for black faculty at each school from its original 11% — 25% to a new goal of no less than 21% and no more than 35% black faculty at each school. That change was based, in part, on an increase in the black population of the County which was believed to be approximately 28% in 1978, and a similar increase in minority composition of the County’s teacher population. The goal was thus adjusted to the new mean of 28%, with the same 7% deviation as was used previously. In Vaughns II, this Court considered and did not object to those revised figures, having determined that “[a]s the percentage of black staff increased as a consequence of the school system’s efforts to hire additional black staff members pursuant to the February 20, 1974 consent decree, it became unrealistic to maintain the ll%-25% guidelines.” Vaughns II at 1293.

In 1980, the Board turned its attention to the implications of involuntary staff reductions upon its faculty integration policy. In a May 27, 1980 memorandum from the Prince George’s County School Superintendent, the Board further clarified its faculty assignment guidelines and explicitly outlined the circumstances under which staff seniority rules, which typically governed involuntary transfers, were to give way to desegregation goals in the involuntary transfer of teachers:

[I]n determining the extent to which strict compliance with seniority should be observed in selecting involuntary staff reductions for the schools, if the current black racial membership of the staff is below 21%, then seniority can be adhered td only if the resultant black racial membership does not fall below 11%; if the current black membership of a staff is above 28%, then seniority can be observed only insofar as the resultant black membership of that staff does not fall below 21%; those staffs currently between 21% and 28% black membership may follow normal seniority in determining staff reductions. We should also consider a 40% black membership for a given staff as a maximum.

On July 19, 1985, the Superintendent once again increased the parameters of the assignment goal with the issuance of Bulletin No. S-8-86. The amended policy changed the assignment goal for black instructional staff at each school from 21%-35%. to 30%-44%. The bulletin stated that that change was predicated on the Board’s policy that the faculty at each school be reflective of the countywide racial composition of all certified professionals employed by the Board.

On September 18, 1986, the Deputy Superintendent, Edward M. Felegy, issued a memorandum adjusting the seniority override parameters to reflect the revised assignment goals. The adjusted parameters required, at a minimum, that seniority be overridden if an involuntary transfer resulted in the black membership on the faculty falling below 21%. This revision thus increased the minimum black faculty representation required at any given school from 11% to 21%. According to the Deputy Superintendent of Schools, no single event led to the timing of the revision and no precise mathematical formula was used to set the minimum black faculty limit at 21%. A number of factors entered into the determination, among them a recognition that the overall percentage of black teachers in the system had increased by ten percentage points from approximately 18% in 1973 to approximately 28% by 1986; accordingly, the previous seniority override trigger of 11% was also increased by ten percentage points to 21%.

On March 26, 1987, the School Superintendent again changed the parameters of the assignment goal, with the issuance of Bulletin No. S-105-87. The new parameters increased the assignment goal for black instructional staff from 30%-44% to 35%-50%. Those parameters represent the current assignment goals for black faculty. At the same time, in a memorandum issued on March 30, 1987, the Associate Superintendent of Schools, Dr. Jerome Clark, established the current seniority override goals and described how they relate to the new assignment goals:

Consistent with the understanding discussed with the Attorney to the Board of Education, in determining the extent to which strict compliance with seniority should be observed in selecting involuntary staff reductions for the schools, if the current Black racial membership of a staff is below 30%, then seniority can be adhered to only if the resultant black racial membership does not fall below 25%; if the current black membership of the staff is above 35%, then seniority can be observed only insofar as the resultant black membership of that staff does not fall below 30%; those staffs currently between 30-35% Black membership follow normal seniority in determining staff reductions. We should also consider a 50% Black membership for a given staff as the current maximum.

According to Dr. Clark, the assignment goal maximum was set at 50% because that figure reflected the black population of the County, and because it also maintained the same relationship between the minimum and maximum limitations as was used in previous racial goals. Prior to issuing his March 30,1987 memorandum, Dr. Clark reviewed recruitment data for the previous years, school-by-school faculty assignment data, and information concerning the racial composition of the population of the County. Dr. Clark’s recommendation to revise the goal upwards was in line with both the Board’s faculty assignment policy and the Board’s minority recruitment efforts; it was designed, in part, to send a message to principals and to members of the school system’s personnel department that the policy of racial balance in assignments would be actively pursued, and to ensure that efforts for minority recruitment should be increased.

The Board contends that it adopted and maintains the assignment and transfer policy for two reasons: (i) to prevent schools from “tipping”, whereby the racial balance of the faculty in any given school might fall to the point of appearing to be a racially identifiable school insofar as faculty is concerned, and (ii) to provide to every student in every school the experience of being taught by an integrated faculty.

Since the Fourth Circuit’s opinion in 1985 in Vaughns II, the Board has not sought either judicial approval or consent of the plaintiffs in the Vaughns and NAACP cases for any of the changes made to the parameters of its racial goals with respect to faculty.

V.

In practice, the Board has taken its faculty desegregation goals into account whenever one of three types of personnel actions is undertaken: the hiring and assignment of new teachers, voluntary transfers of existing staff, and involuntary transfers due to a reduction in staff. With respect to involuntary transfers, the seniority override goal .may come into play.

The Board maintains that it applies the assignment goals flexibly in all of those situations. When reviewing requests for voluntary transfers, the Board considers the impact of the transfer on the “[establishment of reasonable ratios according to race and/or sex in school faculties” as one of a series of factors. The Board does not, for the most part, refuse to allow teachers voluntarily to transfer out of the school to which they are assigned, even if a transfer would negatively affect the racial assignment goals, because the Board believes such a denial would be educationally unsound and an inappropriate personnel practice. To the extent possible, the racial balance at the school, out of which a teacher transfers, is remedied by the assignment of the replacement teacher. Similarly, to the extent possible, the Board’s racial goals are used when referring and placing newly hired teachers, voluntary transfers and involuntary transfers into schools. According to the Superintendent’s office, voluntary transfers into a school may be, and occasionally have been, prohibited, if such a transfer would adversely impact the racial balance of the school.

Candidates for hire as new teachers referred to schools by the Office of Personnel are free to decline positions at the schools to which they are referred. In general, both the principal and a prospective teacher must agree to the placement of the candidate in the school.

Involuntary transfers are those transfers of certified personnel out of schools which are required when there is a reduction in staff at a school due to a decrease at that school in student enrollment or in the number of students electing classes in a particular subject matter, or other changes in program. In order to facilitate an orderly process of making involuntary transfers, a procedure was developed and has been incorporated into the Negotiated Agreement between the Board and the Prince George's County Educators Association (PGCEA), the collective bargaining representative for certificated personnel employed by the Board. That procedure is set forth in Article 4.12 of the Negotiated Agreement, the relevant provisions of which have been part of the Negotiated Agreement between the Board and the PGCEA since the 1974-75 school year. Those provisions, contained in Article 4.12A of the Negotiated Agreement, acknowledge that considerations other than seniority may be used in effectuating involuntary transfers:

The Board and the PGCEA recognize that valid educational principles compel the staffing of each public school to be predicated upon such considerations as school enrollment factors and ratios related to race and/or sex of its professional personnel and to that extent involuntary transfers may need to be effected from time to time in order that the Board may conform to such guidelines or criteria of employment as the approved County Board of Education Staffing Formulas or as required by appropriate State and/or Federal Authorities.

Negotiated Agreement, Art. 4.12A. In implementing that policy and in so determining whether an involuntary transfer of a more senior teacher based on race should be made, the Board does not consider the racial composition of the student body at the school from which the teacher is to be involuntarily transferred.

The involuntary transfer process specified in Article 4.12 recurs on an annual basis. Before June 1, teacher staffing at each school for the following academic year is estimated by the Prince George's County Public School’s Office of Personnel (Office of Personnel). Those estimates are based on projected student enrollment, student registration for specific classes and the projected schedule of classes. Each principal is notified of the projected number of teachers to be assigned to his or her school for the following fall. When a reduction in staff is mandated by the Office of Personnel, each principal reviews the staffing at his or her school, and based upon projected student enrollment in various classes, determines the subject areas in which the staff reductions are to occur. After the decision that an involuntary transfer must be made, the principal will ask for a volunteer in that subject area to become the “involuntary transfer.” If no one volunteers, a teacher holding “less than a standard certificate in the subject area or teaching level to which they are assigned” will become the involuntary transfer. Next, if a nontenured teacher is at the school, he or she will become the involuntary transfer. If there is no volunteer, and no teachers lacking appropriate certification or tenure, the involuntary transfer is ordinarily the “least senior person in the County in that school within the category affected.”

However, where the involuntary transfer of the least senior teacher will cause the school to move outside the desegregation goals set by the Board, or if the school already is outside those parameters, a tenured teacher with more seniority than another tenured teacher in the same subject area may be transferred based on the race of the teachers involved. The decision as to whether any involuntary transfers are necessary is made by June 1 of each school year, except that such transfers may be made to correct prior scheduled staffing after the first day of school through September 30 for elementary schools and through October 15 for secondary schools.

The Office of Personnel determines the then “current” racial balance in each school as of May 1 according to staff projections for the next academic year. For example, if it is known that a teacher on leave plans to return to a particular school in the Fall, that individual is considered part of the school’s staff in determining racial balance. Any personnel shifts occurring after May 1 of each academic year affect staffing decisions for the following year.

Once a teacher is involuntarily transferred, the Office of Personnel attempts to place that person in another school to teach a subject for which the teacher is certified. If no opening is available in a teacher’s area of certification, the teacher may be placed temporarily as a substitute, or into a subject area other than that for which he or she is certificated, with no resulting loss of pay or seniority. Involuntarily transferred certificated personnel are placed on a list by subject area of certification (by grade level for elementary school teachers, and by subject area for secondary school teacher) in seniority order. Such involuntary transferees are referred to available positions in order of seniority; each is entitled to at least two referrals to schools where appropriate openings exist, if such vacancies are, in fact, available. The order of referrals is determined by seniority within the school system. The employee can turn down the first two such referrals, if two are available, and is then placed by the Office of Personnel.

Since the adoption of the 25%/35% seniority override goal in 1987, 450 involuntary transfers have occurred, of which 35 took place pursuant to the seniority override policy challenged in this litigation. During the 1987-88 and 1988-89 school years, 275 teachers have been involuntarily transferred due to reductions in staff in the school to which they were assigned. Of that total, 27 faculty members were transferred involuntarily in derogation of their seniority pursuant to the seniority override goal. That group of 27 involuntary transfers includes 24 white teachers and 3 black teachers. As of June 1,1989, for the 1989-1990 school year alone, approximately 175 involuntary transfers had been made by the school system. Of that number, eight were teachers whose seniority was “bypassed” as a result of the Board’s desegregation policy. All eight of those teachers are white. All of those involuntary transfers were triggered by the need to cut staff due to declining enrollment at a school or in a specific subject which attracted less students or by a similar type of attendance or curriculum change.

VI.

Plaintiffs in the two cases instituted in 1989 are (1) tenured thirty-two white and three black teachers who were involuntarily transferred by the Board in derogation of their seniority pursuant to the Board’s faculty assignment policy, and (2) the United States of America. Plaintiffs contend that the Board’s use of a race-conscious seniority bypass system in its faculty transfer policy violates both the Equal Protection Clause of the United States Constitution and Title VII of the Civil Rights Act of 1964 because the policy unlawfully discriminates on the basis of race.

Under the best of circumstances, the position of a school board seeking to remedy past discrimination in faculty assignments is an awkward one. Justice O’Connor has aptly described the dilemma faced by a school board such as the defendant in this case:

Public schools, like other public employers, operate under two interrelated constitutional duties. They are under a clear command from this Court, starting with Brown v. Board of Education, [349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) ], to eliminate every vestige of racial segregation and discrimination in the schools. Pursuant to that goal, race-conscious remedial action may be necessary. On the other hand, public employers, including public schools, must also act in accordance with a “core purpose of the Fourteenth Amendment” which is to “do away with all governmentally imposed discriminations based on race. These related constitutional duties are not always harmonious; reconciling them requires public employers to act with extraordinary care. In particular, a public employer like the Board must ensure that, before it embarks on an affirmative-action program, it has convincing evidence that remedial action is warranted. That is, it must have sufficient evidence to justify the conclusion that there has been prior discrimination.

Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277, 106 S.Ct. 1842, 1844, 90 L.Ed.2d 260 (1986) (citations omitted). The school board’s dilemma is harder still to resolve where, as here, the anti-discrimination action at issue is intertwined with a long history of desegregation litigation, and where the challenged conduct also implicates the statutory commands of Title VII.

VII.

Plaintiffs contend that the Board’s policy is unconstitutional for a number of reasons. At its core, plaintiffs’ constitutional attack on the policy is predicated on their characterization of the seniority override mechanism as a rigid and purely voluntary, race-conscious plan lacking any remedial purpose. In that context, plaintiffs argue further that the policy neither furthers a compelling state interest nor is designed in a narrowly tailored manner.

To begin with, plaintiffs insist/ that the Board’s policy is unrelated to the desegregation order issued by this Court in Vaughns I, and cannot be viewed as remedying the constitutional violations which led to this Court’s orders in Vaughns I and II. While recognizing the Board’s duty to eliminate all vestiges of past racial discrimination in the schools, plaintiffs assert that that duty cannot be accomplished by discrimination against present employees of the Board. Plaintiffs note that race-conscious remedies must be limited to the scope of the underlying constitutional violation, so that even where race-conscious remedies are appropriate, they should play a restricted role in the desegregation process. Once faculty reassignments have been made and- a nondiscriminatory teacher hiring and assignment policy is established, plaintiffs argue, the school district is unitary with respect to faculty, and no permissible remedial predicate exists for this Court or the Board to take further race-conscious faculty action. Further, plaintiffs urge that since the faculty assignment goals were reached in 1973 and since this Court has held that there has been no discrimination in faculty assignment or hiring since that time, there is no basis upon which the Board or the Court may maintain a continuing race-conscious element in the faculty policy of the school system.

Having characterized the faculty desegregation policy as entirely voluntary and independent of the Vaughns order, the plaintiffs then argue that the Board’s seniority override mechanism is unconstitutional because it is not narrowly tailored to advance a compelling governmental interest. In support of that argument, they cite City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989).

Plaintiffs maintain that the Board’s faculty assignment policy does not meet the standard of review imposed by the Equal Protection Clause with regard to voluntary, race-conscious actions. First, they assert that the plan does not advance a compelling state interest because the Board has failed to identify with specificity a valid remedial purpose for the policy. Citing to this Court’s 1983 decision that the Board’s faculty assignment policy did not violate the Constitution, plaintiffs conclude that since no remedial purpose for race-conscious relief existed in 1983, no justification existed for the Board three years later to increase its faculty assignment goals. Nor, they maintain, did the process by which the upward ratcheting of the goals was adopted come close to approximating the carefully deliberated findings required by Croson.

Finally, plaintiffs argue that whatever its purpose, the Board’s policy cannot survive constitutional scrutiny because it is not narrowly tailored. They maintain that narrow tailoring is particularly vital where, as here, the racial classification imposes a burden on particular individuals and often results in serious disruption of their lives. In that context, plaintiffs suggest that the Board could more effectively achieve its objectives without violating plaintiffs’ rights through less intrusive means, such as voluntary transfers, leaves of absence and new teacher assignments. Despite the Board’s claims that it attempts initially to assign new teachers to schools in conformity with its racial goals, plaintiffs assert that in reality, the Board’s initial teacher assignment practices operate at cross-purposes with the involuntary transfers to achieve racial goals. Plaintiffs argue that tenured teachers should not have their seniority abrogated when the Board could readily achieve its objectives by using other, less burdensome personnel policies.

VIII.

Any analysis of a school board’s attempt to follow a policy of racially balanced faculty assignments must begin with consideration of the “clear command” recognized by Justice O’Connor in Wygant and originally articulated in Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II): “to eliminate every vestige of racial segregation and discrimination in the schools.” Wygant, 476 U.S. at 277, 106 S.Ct. at 1844. That duty is a formidable one, and the courts have made clear that it is to be borne, primarily, by each school board itself.

“Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.” Brown II, 349 U.S. at 299, 75 S.Ct. at 756. A decade later, the Court reiterated the constitutional duties of local school boards in even stronger terms. In Green v. County School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), the Court held that it was not enough for school boards which had previously administered public schools in violation of Brown merely to eliminate their segregative practices. Rather, such school authorities were

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. The constitutional rights of Negro school children articulated in Brown I permit no less than this; and it was to this end that Brown II commanded school boards to bend their efforts.

Id. 391 U.S. at 437-38, 88 S.Ct. at 1694 (citations and footnote omitted). Furthermore, the Court in Green signalled the need for school authorities to pursue “unitary” status with practical and effective policies: “The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.” Id. at 439, 88 S.Ct. at 1695 (emphasis in original).

The post-Brown I desegregation decisions of the Supreme Court also defined the role of the federal courts when confronting Equal Protection violations in the public schools, and examined the interplay between the court and the school board in such a context. As the Court in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), made clear, “judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.” Id. at 16, 91 S.Ct. at 1276. However, when constitutional violation and “default” by local school authorities exist, courts are vested with significant discretion in crafting a remedy. As early as Brown II, the Supreme Court declared: “In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjudicating and reconciling public and private needs.” Brown II, 349 U.S. at 300, 75 S.Ct. at 757 (footnote omitted). In Swann, the Supreme Court acknowledged that courts may exercise their traditional equitable discretion to devise effective school desegregation remedies, limited by the maxim that “the nature of the violation determines the scope of the remedy.” Swann, 402 U.S. at 16, 91 S.Ct. at 1272. Within such traditional equitable constraints, Swann upheld a wide-ranging remedial order, including measures to achieve racially balanced schools based on the “limited” use of mathematical ratios. Id. at 25, 91 S.Ct. at 1280.

In defining the role of the courts, however, Swann did not absolve local school authorities of their primary constitutional duties. Indeed, Chief Justice Burger in Swann emphasized that the school board’s role in effecting desegregation, as a matter of educational policy, remains greater and more flexible than that of the federal court:

School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the distribution as a whole. To do this as an educational policy is within the broad discretionary power of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.”

Id. at 16, 91 S.Ct. at 1276 (emphasis added).

The broad discretion of school authorities and courts to cure school segregation includes not only remedies involving the assignment of students, but also measures directed at the desegregation of faculties. Thus, the Supreme Court has repeatedly stated that the goal of desegregation efforts must be the achievement of a “unitary” school system, Green, 391 U.S. at 435-36, 88 S.Ct. at 1692-93, and that, in determining whether unitariness has been achieved, the district court should consider whether the vestiges of discrimination have been eliminated from six facets of the school system: student assignments, transportation, extracurricular activities, facilities, staff and faculty. Id. at 436, 88 S.Ct. at 1693. In 1969, the Supreme Court explicitly upheld Judge Johnson’s district court order imposing a teacher assignment plan in which the percentage of black teachers in any individual school in the district was to be “substantially the same” as the proportion of black teachers “throughout the system.” United States v. Montgomery County Bd. of Educ., 395 U.S. 225, 232, 89 S.Ct. 1670, 1674, 23 L.Ed.2d 263 (1969). In Swann, also, the Supreme Court upheld a similar court-ordered faculty assignment plan, and soundly rejected the argument that race-conscious faculty assignment plans are unconstitutional:

In the companion Davis [v. Board of School Commissioners of Mobile County] [402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971) ] case, the Mobile school board has argued that the Constitution requires that teachers be assigned on a “color blind” basis. It also argues that the Constitution prohibits district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation. We reject that contention.

Swann, 402 U.S. at 19, 91 S.Ct. at 1277. In both Montgomery County and in Swann, relief directed at the integration of faculties was sought on behalf of schoolchildren plaintiffs in order to remedy the segregation of students. See also Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757, 763 (6th Cir.1983). And in Zaslawsky v. Bd. of Educ. of Los Angeles City, 610 F.2d 661 (9th Cir.1979), in a suit by “approximately 25,000 teachers” alleging violation of “their Fourteenth Amendment equal protection rights,” id., the Ninth Circuit concluded:

The action of the school board was not directed toward the employment opportunities available to teaching faculty nor the elimination of any past discrimination in employment. We do not approach the issue in that frame of reference. The focus of this action of the school board was to enhance the educational opportunities available to the students by achieving better racial balance in the teaching faculty throughout the district. This is an educational objective which has been well recognized and approved by the Supreme Court. Swann [at 16, 19, 91 S.Ct. at 1276, 1277],

In recent years, the courts, including the Fourth Circuit, have not wavered from the fundamental principle that unitary status is the goal of desegregation efforts, and that all of the six factors referred to in Green must be free of the vestiges of discrimination before a school system is to be declared unitary and thus beyond the scope of the district court’s remedial powers. See School Bd. of Richmond v. Baliles, 829 F.2d 1308, 1312 (4th Cir.1987). The Supreme Court expressly invoked both the language and broad principles of Green a decade later in Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458-59, 99 S.Ct. 2941, 2946-47, 61 L.Ed.2d 666 (1979), when the Court observed that the local school board is charged with the “affirmative duty” to eliminate racial discrimination “root and branch” throughout all aspects of the school system, and that the district court has the duty to ensure the attainment of unitary status through equitable measures, id., quoting Green, 391 U.S. at 437-38, 88 S.Ct. at 1693-94. In Columbus, the remedial measures included race-conscious staff assignments. 443 U.S. at 467-68, 99 S.Ct. at 2951-52.

Even more recently, the Fourth Circuit has reaffirmed the Green principles. In School Board of Richmond v. Baliles, 829 F.2d at 1312, Judge Russell wrote: “Under the Green test, a school district has achieved unitary status when it is devoid of racial discrimination in regard to faculty, staff, transportation, extracurricular activities, facilities, and pupil assignment.” Moreover, the law of this circuit regards unitary status as an indivisible whole, whereby a school district cannot attain unitary status until it is unitary with respect to all of the Green factors. In Riddick v. School Bd. of Norfolk, 784 F.2d 521, 533 (4th Cir.), cert. denied, 479 U.S. 938, 107 S.Ct. 420, 93 L.Ed.2d 370 (1986), Judge Widener stated that “[a]ll aspects of public education must be freed from vestiges of state sanctioned racial segregation before a school system becomes unitary. Integration must occur in the system’s faculty, staff, transportation practices, extracurricular activities, facilities and pupil assignment. Green, supra, 391 U.S. at 435 [88 S.Ct. at 1692].” He further suggested that a school district’s abandonment of even a voluntary desegregation policy prior to achieving unitary status may constitute an act of resegregation:

Rescission of a voluntary desegregation plan itself may be found to be an act of segregation for a school board which has been found to have practiced de jure segregation and has not completed the transition from a dual to a unitary system.

Id. at 535 (citation omitted).

In 1983, this Court determined that the Prince George’s County school system had not attained unitary status and ordered that:

[t]he need for defendants to achieve unitary status as quickly as reasonably possible shall be one of the factors to be considered by defendants in connection with the making of all decisions by defendants which may relate to school assignments made since March 1975.

Vaughns II, 574 F.Supp. at 1377 (emphasis in original). In affirming this Court’s finding that the County school system was not unitary, Chief Judge Winter, writing for the Fourth Circuit panel, emphasized:

The Supreme Court has repeatedly stated that where a school system has been segregated by law, that system has an affirmative duty to eliminate all vestiges of segregation “root and branch.” Columbus Board of Education v. Penick, 443 U.S. 449, 458-59 [99 S.Ct. 2941, 2947, 61 L.Ed.2d 666] (1979); Green v. County School Board, 391 U.S. 430, 437-38 [88 S.Ct. 1689, 1693-94, 20 L.Ed.2d 716] (1968). Until a school system has discharged its duty to liquidate the dual system and replace it with a unitary one, the school’s duty remains in place. Until a unitary system is created, a school system is not absolved from this duty by reason of demographic changes. Lee v. Macon County Board of Education, 616 F.2d 805, 810 (5th Cir.1980).

Vaughns II, 758 F.2d at 988.

IX.

As the record demonstrates, the seniority override concept became part of the Board’s faculty desegregation policy initiated before the start of this Vaughns litigation. Under pressure from HEW and mindful of the new Maryland anti-discrimination regulation, the Board established Rule 4115.3, at least in part, to bring its faculty assignment practices into compliance with federal and state administrative commands. Prior to the implementation of Rule 4115.3 in 1971, the Board’s personnel policies may have embodied some of the same deficiencies as existed in the student assignment practices which violated the Equal Protection Clause. This Court has also observed that, as required by the Supreme Court in Swann and Montgomery County, HEW’s motivation in urging the Board to adopt Rule 4115.3 was to cure overall discrimination in the school system as it affected students as well as the teachers themselves. Thus, had the Board not undertaken a faculty desegregation plan on its own in 1971, this Court would almost surely have been compelled, pursuant to its responsibilities under Brown II, to have ordered equitable relief, much like Rule 4115.3, in 1973.

It is in that light that this Court’s statement in 1983 that the Board’s faculty assignment practices did not violate the 1973 Vaughns consent decree must be viewed. The Court understood in 1983 that faculty assignments were made pursuant to Rule 4115.3 and the corollary assignment and seniority override procedures and that, in doing so, the Board was acting in good faith under its continuing affirmative duty to pursue a unitary school system; furthermore, at the time of this Court’s 1983 review of the Board’s faculty assignment policy, this Court viewed not only the Board’s implementation of Rule 4115.3, but also its ongoing adjustments to those policies, as legitimate efforts to ensure their practical effectiveness.

The County school system has not today achieved unitary status, and remains under court order to eradicate all vestiges of discrimination. No party to the current action, disputes that characterization or challenges its validity in the light of the current legal and factual context. It is also beyond dispute that the Board maintains, to this day, an affirmative duty to pursue unitary status. As Green and Swann emphasized, the Board can, and indeed must, work to achieve unitariness, even when that pursuit requires race-conscious remedial measures.

It is obvious that the faculty assignment policy constitutes an integral part of the Board’s effort to meet its continuing duty to attain unitary status. Had the Board defaulted on that responsibility and failed to ensure that its faculty assignment practices did not thwart attainment of that goal, this Court would have been obligated to issue an appropriate order requiring curative action by the Board. Moreover, had the Board attempted to rescind its current faculty assignment policy, this Court would have been empowered to order the Board to reinstate an acceptable faculty assignment plan.

Because this Court never expressly ordered a faculty desegregation remedy and because this Court found in 1983 that there were no vestiges of discrimination in faculty assignments, plaintiffs contend that this Court no longer possesses the power to order remedial relief in faculty assignments. Such an interpretation of this Court’s equitable powers and the school board’s affirmative duties overlooks the grant of discretion explicitly and often made by the Supreme Court, as well as the law of unitary status developed by the Fourth Circuit. Thus, the components of a school desegregation plan are interdependent upon, and interact with, one another, so that changes with respect to one component may impinge upon the success or failure of another.

In Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), the Supreme Court held that, once the school district had met the specific requirements of a consent decree arising out of school desegregation litigation, the district court no longer had the power to order the school district annually to alter student assignment requirements solely to reflect demographic changes in the school district. Id. at 435-37, 96 S.Ct. at 2704-05.

The questions in this case, however, cannot be answered by reference to Pasadena. To begin with, Pasadena dealt with the limits of the district court’s power to order race conscious integration measures, while this litigation involves the Board’s exercise of its own authority to meet its affirmative obligations to desegregate. As Swann made clear, the Board possesses greater latitude to act in pursuit of that goal than does the district court when imposing a remedy when the Board is in default. Swann, 402 U.S. at 16, 91 S.Ct. at 1276. Furthermore, the Fourth Circuit in Vaughns II identified a second major distinction between' Vaughns and Pasadena, namely, that Justice Rehnquist wrote in Pasadena that the case did not involve “a plan embodying specific revisions of the attendance zones for particular schools, as well as provisions for later appraisal of whether such discrete individual modifications had achieved the unitary system required by Brown v. Bd. of Educ.” Pasadena, 427 U.S. at 435, 96 S.Ct. at 2704 (citation omitted). Chief Judge Winter concluded that the Vaughns situation constituted such an exception: “From the inception of the 1973 Vaughns order, the parties understood and accepted that the plan was subject to modification and monitoring.... [T]his case is of the sort excepted by Pasadena, and implementation of the Court-ordered plan alone could not relieve the Board of all future responsibility to bring about a unitary system.” Vaughns II, 758 F.2d at 989.

In this litigation, the avoidance of racially identifiable faculties is critical to a desegregation plan like that of Prince George’s County which relies heavily on magnet schools. The success of magnet programs, after all, depends on parental choices which in turn may be shaped by perceptions of the characteristics of faculty. Curtailing the Board’s power with respect to faculty assignments might result in consequences beyond the resegregation of faculties and could well threaten the success of the overall school desegregation program. If the Board is barred from taking measures in the realm of faculty assignments (or any other of the six Green aspects for which no constitutional violation is outstanding), then it could be left with the sole option of altering student assignment policies. Such a drastic limitation with regard to alternatives may well doom the Board’s pursuit of unitary status to failure.

Finally, plaintiffs’ suggestion that the Board’s faculty assignment plan is not remedial given this Court’s findings in Vaughns II misidentifies the true nature of the Fourteenth Amendment offense at issue here. The principal constitutional compulsion driving this litigation since 1972 lies in the injury to students from the perpetuation of a dual school system, not from employment discrimination against teachers in the County. To disestablish that system and vindicate the rights of school children, the Board can validly implement race-conscious faculty policies even in the absence of employment discrimination against teachers, provided that those policies serve the critical interest of reducing the racial identifiability of individual schools.

The Fourteenth Amendment places a serious affirmative duty on the Board and on this Court to eliminate all vestiges of segregation from its schools. The Equal Protection Clause cannot be read, as plaintiffs urge, to prevent the Board and this Court, when faced with the “real world” task of desegregation, from meeting their respective constitutional responsibilities. Justice O’Connor’s observation that school authorities must act with “extraordinary care” in reconciling the sometimes unharmonious constitutional duties implicated in school desegregation, Wygant, 476 U.S. at 277, 106 S.Ct. at 1848, surely bears repeating here. The Board’s implementation and periodic adjustment of a race-conscious faculty assignment plan represent a valid exercise of its affirmative duty, recognized and approved by this Court, to eliminate the vestiges of segregation in its schools.

X.

There remains the question of whether discrete elements of the Board’s current seniority override policy reflect a reasonable exercise of the Board’s duty. Plaintiffs contend that the plan fails as a rigid and arbitrary mathematical quota.

With respect to the policy designed in the early 1970’s and as it was implemented for at least a decade, this Court disagrees. The Court is, of course, mindful of the Supreme Court’s repeated warnings with respect to the use of rigid mathematical ratios in remedial measures. See, e.g., Swann, 402 U.S. at 25, 91 S.Ct. at 1280. However, flexible mathematical goals have always played an important part in the shaping of desegregation remedies, both voluntary and court-ordered. See cases cited at pages 1288-89 supra. The assignment policy initially articulated and adhered to by the Board represents just such a reasonable, flexible use of mathematical guidelines. As the record indicates, the broad goal of the policy is to ensure that racial faculty identifiability in a given school is avoided by setting a goal for black representation within that school’s faculty which approximates black representation in the teaching population of the entire school system.' In 1971, that range was ll%-25%, within seven percentage points of the County’s total black teaching population of 18%. That range was chosen pursuant to Rule 4115.3, which requires that teaching staffs at individual schools “be generally consistent with the County-wide racial composition of all teachers employed by the Board.” As the countywide percentage of blacks in the total county population and the teacher population increased over the next decade, the Board raised the acceptable black faculty range of its assignment goal to 21%-35% in 1978. The percentage of blacks in the County’s population was approximately 28% at that time, and the public school faculty was then approaching 25.9%, the percentage for the 1980-81 school year.

The' seniority override mechanism is based on the parameters contained in the assignment goals. Therefore, in 1980, the policy called for seniority to be overridden in schools with less than 21% minority teachers if the staff reduction would bring that percentage to below 11%; in schools with less than 28% minority teachers, the seniority override trigger was 21%; and a maximum black membership was set at 40%. Although the NAACP and the Vaughns plaintiffs challenged those assignment parameters as erroneously relying on total county population rather than the county teacher population, the policy was upheld by this Court in the Vaughns II decision. 574 F.Supp. at 1293. The Court accepted the revised parameters, however because of the increase in black teaching staff as a percentage of total teachers, making it “unrealistic to maintain the ll%-25% guidelines.” Id. In other words, despite the contentions of plaintiffs in Vaughns II, this Court viewed the challenged parameters as keyed to systemwide teacher population regardless of whether those parameters were also in line with general countywide population.

Since 1981, the County has continued to increase both the numerical assignment goal and the seniority override triggers so that the overall range now stands at 35%-50%, with the seniority override mandated whenever a seniority-based involuntary transfer would decrease a school’s black faculty membership to 25% or 30%, depending upon the black membership prior to the transfer, with a maximum black membership of 50%. However, the percentage of black teachers systemwide has not, since 1981, increased correspondingly with countywide population. The proportion of black teachers rose steadily until the 1983-84 school year, when it reached 29.3%. Since then, however, it has remained relatively constant, reaching a high of 31.2% in 1987-88, but dropping to 29.7% in 1988-89. That steady state is also reflected in statistics revealing the racial composition of the County’s new faculty hires, which has averaged 29%-30% for the past five years. County school officials have acknowledged that since 1981 certain changes in the assignment goals have been motivated, at least in part, by the rising percentage of blacks in the total County population, rather than within its teaching staff.

As a practical matter, the Board’s faculty assignment policies, in recent years, have largely required individual schools to maintain black faculty membership at levels higher than the systemwide black teacher population. Effectively, the policy goes beyond that of preventing given schools from becoming racially identifiable, or from allowing disproportionate numbers of teachers of one race to comprise the faculty of individual schools. Thus, in some instances, the policies currently followed by the Board require race-conscious transfers when the black representation dips below 30%, in a school system with a systemwide black faculty composition of only 29.7%.

The Supreme Court has only upheld plans for racially balanced faculties as part of remedies for school segregation when their purpose has been to eradicate the racial identifiability of schools. In those cases, the measures invariably linked the assignment goals to the ratio of minority teachers systemwide. In both Swann and Montgomery County, the Supreme Court approved court-ordered assignment plans designed to achieve racial balance in individual schools within the defendant school systems by setting numerical goals for each school which reflected the minority composition of the district’s teaching population. Swann, 402 U.S. at 19-27, 91 S.Ct. at 1277-82; Montgomery County, 395 U.S. at 232-33, 89 S.Ct. at 1674-75. Even when reviewing policies designed to cure direct discrimination against black teachers, courts have questioned relief being predicated upon the percentage of minorities in the district’s general population or the district’s student population. The Supreme Court rejected such a remedy in Wygant, 476 U.S. at 274-75, 106 S.Ct. at 1847, as a violation of the Equal Protection Clause. Similarly, the Fifth Circuit held, in Fort Bend Independent School District v. City of Stafford, 651 F.2d 1133 (5th Cir.1981), that it was wrong fo