Full opinion text
INDEX Page I. Background........................................................................456 A History of Litigation.......................................................... 456 B. Condition of the DISD ........................................................ 457 C. Principles of Law............................................................ 458 D. The Positions of the Parties................................................... 460 II. Factors Relevant to Unitary Status..................................................460 A Compliance with the Judgment................................................ 460 1. Subdistricts............................................................. 460 2. Student Assignment and Attendance Zones................................ 460 3. Majority to Minority Transfers........................................... 461 4. Curriculum Transfers.................................................... 463 5. Magnet Schools......................................................... 464 a. The Magnet Program................................................ 464 b. Honors Programs ................................................... 466 6. Regular Schools (Elementary, Intermediate, Middle, and High Schools) and Bilingual Education.................................................... 467 a. Regular Schools..................................................... 467 b. Bilingual Education.................................................. 467 7. Programmatic Remedies ................................................. -468 8. Nolan Estes Plaza....................................................... 469 9. Personnel............................................................... 469 a. Recruitment......................................................... 469 b. Assignment......................................................... 470 1. Teachers........................................................ 470 2. Administrators.................................................. 471 3. Conclusion Regarding Singleton Compliance....................... 472 c. Training............................................................ 472 10. Facilities................................................................ 472 11. Reporting and Monitoring................................................ 473 12. Other Issues Relevant to Compliance with Court Orders................... 473 a. Learning Centers.................................................... 473 b. Allocation of Resources.............................................. 474 c. Racial Harmony on the School Board................................. 475 d. Future School Boards’ Commitment to Desegregation Programs......... 475 B. Remaining Green Factors..................................................... 475 1. Transportation.......................................................... 475 2. Extracurricular Activities................................................. 476 3. Student Achievement.................................................... 476 Conclusion.............................................................................. 477 MEMORANDUM OPINION AND ORDER SANDERS, Chief Judge. Before the Court is Defendants’ Motion for Unitary Status, filed December 17, 1993; Defendants’ First Revision to Proposed Amended Judgment and Final Plan for Desegregation, filed January 18, 1994; Plaintiffs’ Response, filed January 27, 1994; Intervenor Black Coalition to Maximize Education’s Response, filed January 27, 1994; and related pleadings. Summary Subject to the requirements of this Opinion, the Motion for Unitary Status is GRANTED. I. Background On May 9,1994, the Court began a hearing on Defendants’ Motion for Unitary Status. The hearing ended on a date with symbolic significance for this case: May 17, 1994, the fortieth anniversary of the Supreme Court decision that banned segregated education, Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (“Brown I”). See also Brown v. Board of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (“Brown II”). To obtain unitary status, the District is required to prove that it has complied in good faith with this Court’s desegregation orders for a reasonable period of time, and has eliminated the vestiges of prior discrimination to the extent practicable. See Freeman v. Pitts, 503 U.S. 467,-, 112 S.Ct. 1430, 1446, 118 L.Ed.2d 108 (1992); Board of Educ. v. Dowell, 498 U.S. 237, 250, 111 S.Ct. 630, 638, 112 L.Ed.2d 715 (1991). A declaration of unitary status signals the beginning of the end of federal judicial supervision over DISD operations. Before turning to the merits of Defendants’ motion, the Court will review the history of this litigation, the present condition of the school district, the legal principles governing the case, and the positions of the parties regarding the motion. A. History of the Litigation The Dallas Independent School District (“the DISD” or “the District”) has been embroiled in school desegregation litigation since 1955. Until the Supreme Court’s decision in Brown I, supra, schools were segregated by law in Texas. In 1955, an action was brought to compel the elimination of racially segregated schools in the DISD. See Bell v. Rippy, 133 F.Supp. 811 (N.D.Tex. 1955). A stair-step or grade-a-year desegregation plan was ordered by the federal court in 1960, and a few Black children were admitted to the first grade at previously all Anglo schools in 1961. In 1965, the Fifth Circuit ordered the District to accelerate the desegregation process. In 1970, most DISD schools were still one-race schools, that is, were comprised of at least 90% Anglo or 90% minority students. This case was filed in 1970 to challenge the segregated system, as evidenced chiefly by the high number of segregated schools in the DISD. Tasby v. Estes, 342 F.Supp. 945, 947 (N.D.Tex.1971), aff'd in part, rev’d in part, 517 F.2d 92 (5th Cir.1975), cert. denied, 423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 271 (1975). At the time, teacher assignment was also premised upon the race of the students. In 1976, the Court (Taylor, J.) directed the District to implement a comprehensive desegregation plan. Tasby v. Estes, 412 F.Supp. 1192 (N.D.Tex.1976), remanded, 572 F.2d 1010 (5th Cir.1978, cert. dismissed sub nom., Estes v. Metropolitan Branches of Dallas NAACP, 444 U.S. 437, 100 S.Ct. 716, 62 L.Ed.2d 626 (1980)). The plan featured magnet schools, a majority to minority transfer program, and a busing program for students in grades 4-8. Following remand and an extensive evidentiary hearing in 1981, the Court (Sanders, J.) held that additional systemwide transportation was not a feasible remedy. Tasby v. Wright, 520 F.Supp. 683, 706-07 (N.D.Tex. 1981) , aff'd in part and rev’d in part, 713 F.2d 90 (5th Cir.1983). The Court further held that, while vestiges of state-imposed racial segregation remained in the District, effective remedies could be fashioned to overcome the constitutional violation. Id. The Court directed the parties to prepare and file desegregation plans for the Court’s consideration. Id. at 749. Additional desegregation remedies were then ordered by the Court. Tasby v. Wright, 542 F.Supp. 134 (N.D.Tex. 1982) . The remedies imposed in the 1976 Plan remained in effect. In 1984, the Court directed the District to open three Learning Centers in South Dallas for grades 4-6. Tasby v. Wright, 585 F.Supp. 453 (N.D.Tex.1984), aff'd, Tasby v. Black Coalition to Maximize Educ., 771 F.2d 849 (5th Cir.1985). The Learning Centers returned previously bused minority students to their neighborhood schools, and instituted creative educational remedies to improve the achievement levels of these students. Id. at 455-56. In 1986, the Court directed the opening of three additional Learning Centers, in West Dallas. Tasby v. Wright, 630 F.Supp. 597 (N.D.Tex.1986). Since then, more Learning Centers have been opened. Over the years, the Court has held numerous conferences and has issued many decisions in the case. The Court has noted the District’s greatly improved attitude toward desegregation. See, e.g., Tasby, 630 F.Supp. at 603 n. 33; 412 F.Supp. at 1207; 520 F.Supp. at 683. B. Condition of the Dallas Independent School District The Dallas Independent School District is one of the largest school districts in the nation, both in geographic size and in student. enrollment. The District encompasses 351 square miles. Tasby, 630 F.Supp. at 603. The DISD served 139,819 students in 1992-93; this impressive number actually represents a decrease in enrollment since 1969-70, when the DISD served 163,268 students. Defs. Ex. 1, Data and Analysis, Table II — 1. However, enrollment in the DISD is currently on the rise. (Chad Woolery; William Webster). Since 1987 the District’s tax base has declined and its tax rate has doubled. (Matthew Harden). The racial composition of the District has changed considerably since this suit was filed. Like other school districts in large cities, the DISD, which was once predominantly Anglo, is now a predominantly Black and Hispanic school district. By 1996 the DISD will become a majority Hispanic school district. (Chad Woolery; William Clark). The limited English proficiency of many of the Hispanic students will continue to present the District with tremendous challenges. Substantially all of the formerly Anglo schools within the District have been desegregated. Today, only one school in the District, Seagoville Elementary School, has greater than 75% Anglo population; the school is located in the far southeast corner of the county. Defs. Ex. 1, Data and Analysis, App. A, at 368. As the Court noted in 1986, the opportunities for meaningful desegregation by student assignment have become minimal. Tasby, 630 F.Supp. at 603. In December 1992, voters passed the most ambitious bond issue in the history of the DISD. The bond projects, which will utilize bond proceeds totalling $275 million, promise to equalize and upgrade facilities for students across the District. The centerpiece of the 1992 bond program is the construction of Townview, a centrally located “supermagnet” that will house six of the District’s existing magnet programs in a state-of-the-art facility. Townview is long overdue. Also included in the bond program is relief of overcrowding at the Fannin, Bonham, and Ray elementary schools. These schools are located in neighborhoods heavily populated with minority students, many of whom are now being bused to other schools in the District. The District plans to build two new schools, and to build an addition to the existing Ray facility, to relieve overcrowding. (Dave Patton). This construction will allow students to return to their neighborhood schools. The District will establish Learning Centers for returning students in grades 4-6 at these schools. (Chad Woolery; Dave Patton). See discussion infra at section II. A.12.a. In December 1993, the District provided the Court and the parties with a Bond Project Priority List that contains a schedule for the various new buddings, additions, and renovations included in the bond program. Defs. Ex. 6. Dave Patton, Director of the DISD Bond Program, testified that the District was on schedule with the projects, and did not anticipate any delays. At the request of the Plaintiffs, the District submitted a motion following the unitary status hearing that sought Court approval of the Bond Project Priority List; the Court approved the schedule. Order dated May 18,1994. Timely completion of the bond projects should help to assure the minority communities that the DISD has a continuing commitment to quality education for all students. C. Principles of Law To contextualize the legal principles that allow the dissolution of school desegregation decrees, the Court recalls the constitutional rule that justified the remedy. In Brown I, swpra, the Supreme Court held that government-imposed racial segregation in public schools violated the equal protection clause of the Fourteenth Amendment. Brown II, supra, instructed the lower federal courts to accomplish desegregation “with all deliberate speed.” In Green v. County Sch. Bd., 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968), the Supreme Court held that school boards “operating state-compelled dual systems 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 Court held that a school district has achieved unitary status when it is devoid of racial discrimination with regard to faculty, staff, transportation, extracurricular activities, facilities, and pupil assignment. 391 U.S. at 435, 88 S.Ct. at 1692-93. In Milliken II, the Supreme Court approved the use of remedial education programs as a method of ehminating the effects of prior segregation in a large urban school district with a large minority student population. Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (Milliken II). This Court has relied heavily on Müliken II in the desegregation remedies it has ordered. The Supreme Court has recently revisited the principles of law applicable to a school district’s request that a federal court dissolve a desegregation decree. While the traditional inquiry was whether the school district had become “unitary,” the Court has now shifted the focus in desegregation cases away from that term. Thus, in Dowell, 498 U.S. at 245, 111 S.Ct. at 636, the Supreme Court wrote, “We think it is a mistake to treat words such as ‘dual’ and ‘unitary’ as if they were actually found in the Constitution. The constitutional command of the Fourteenth Amendment is that ‘[n]o State shall ... deny to any person ... the equal protection of the laws.’ ” In Freeman, 503 U.S. at-, 112 S.Ct. at 1443, the Court stated, The concept of unitariness has been a helpful one in defining the scope of the district court’s authority, for it conveys the central idea that a school district that was once a dual system must be examined in all of its facets, both when a remedy is ordered and in the later phases of desegregation when the question is whether the district court’s remedial control ought to be modified, lessened, or withdrawn. But ... the term ‘unitary’ is not a precise concept---- [it] does not confine the discretion and authority of the District Court in a way that departs from traditional equitable principles. The Supreme Court articulated the following test for determining whether a district court may relinquish supervision over the operations of a school district: the district court must determine whether, looking to all facets of school operations, with the Green factors as a guide, the school district has complied in good faith with the desegregation decree since it was entered, and has eliminated the vestiges of past discrimination to the extent practicable. Dowell, 498 U.S. at 250, 111 S.Ct. at 638; Freeman, 503 U.S. at-, 112 S.Ct. at 1446. In Hull v. Quitman Cty. Bd. of Educ.-, 1 F.3d 1450, 1454 (5th Cir.1993), the Fifth Circuit considered the recent Supreme Court decisions: This court used to evaluate termination of desegregation decrees under the global inquiry whether the school district had achieved “unitary” status. Freeman and Dowell make clear, however, that there is no longer magic in the phrase unitary status, which had spawned much uncertainty and a conflict among the circuits. Following Freeman, the lower courts have discretion to terminate a desegregation case if a school board has consistently complied with a court decree in good faith and has eliminated the vestiges of past discrimination to the extent “practicable.” Freeman created a framework in which equitable decrees will not remain in effect perpetually and school districts can be returned to local control. For other Fifth Circuit cases discussing the law on unitary status, see Price v. Austin Indep. Sch. Dist., 945 F.2d 1307 (5th Cir. 1991); Flax v. Potts, 915 F.2d 155 (5th Cir. 1990); United States v. Overton, 834 F.2d 1171 (5th Cir.1987); United States v. Lawrence Cty. Sch. Dist, 799 F.2d 1031 (5th Cir.1986); Davis v. East Baton Rouge Parish Sch. Bd., 721 F.2d 1425 (5th Cir.1983); Ross v. Houston Indep. Sch. Dist., 699 F.2d 218 (5th Cir.1983). Finally, the consequences of a declaration by a district court that a school district is unitary must be emphasized. The Fifth Circuit has ruled that a district court should not dismiss a school desegregation case until at least three years after it has declared the system unitary. Flax, 915 F.2d at 158 (citing Youngblood v. Board of Pub. Instruction, 448 F.2d 770 (5th Cir.1971)). See also Price, 945 F.2d at 1311; Monteilh v. St. Landry Parish School Board, 848 F.2d 625, 629 (5th Cir. 1988); Overton, 834 F.2d at 1175; Lawrence Cty., 799 F.2d at 1037-38; Ross, 699 F.2d at 227. During the transition period, the school district continues to report to the district court, and the district court continues to monitor school district operations. Flax, 915 F.2d at 163. Before the district court dismisses the ease at the end of the transition period, it may consider whether the school district has done all that it could to cure any deficiencies. Id. D. The Positions of the Parties The District seeks a declaration that the DISD is unitary in all respects. The District has submitted a proposed “Amended Judgment and Final Plan for Desegregation” to govern the case during the three year transition period following a declaration of unitary status. See Defendants’ First Revision to Proposed Amended Judgment and Final Plan for Desegregation, filed January 18, 1994. Plaintiffs agree that the District is unitary with respect to transportation and extracurricular activities, but only conditionally approve unitary status with respect to student assignment, facilities, faculty, and staff. See Plaintiffs’ PosWHearing Findings of Fact and Conclusions of Law, filed June 6,1994, at 13-14. Intervenor argues that vestiges of the prior segregated school system still remain in the District, and urges the Court to deny unitary status. See Intervenor’s Corrected Post-Judgment Proposed Findings of Fact and Conclusions of Law, filed June 10, 1994, at 39-40. It is fair to say, and all parties agree, that the DISD has made enormous progress in providing equal educational opportunities to all students. II. Factors Relevant to Unitary Status Keeping in mind the unique facts and circumstances of desegregation in the Dallas Independent School District, the history of this litigation, and guiding legal principles, this Court’s task is to determine whether the DISD has complied in good faith with the desegregation decree for a reasonable period of time, and has eliminated the vestiges of past discrimination to the extent practicable. See Dowell, 498 U.S. at 250, 111 S.Ct. at 638; Freeman, 503 U.S. at-, 112 S.Ct. at 1446. In making this determination, the Court will first discuss evidence relevant to the District’s compliance with the Judgment. The desegregation requirements of the Judgment largely track the Green factors; in particular, the Judgment sets requirements regarding student assignment, faculty, staff, and facilities. Following the discussion of compliance with the Judgment, the Court will address evidence relevant to the Green factors not directly addressed by the Judgment: transportation, extracurricular activities, and student achievement. A. Compliance with the Judgment 1. Subdistricts Section I of the Judgment realigns the DISD into three subdistricts. See Judgment, at 2-3. However, the District is no longer divided into subdistricts for management purposes. Rather, the District is divided into eleven “Areas,” each headed by an assistant superintendent. This section of the Judgment is therefore obsolete. 2. Student Assignment and Attendance Zones Because the crux of the original constitutional violation was the legalized system of segregated schools, the traditional remedy for the violation was student reassignment. The DISD’s reassignment of students has inevitably involved busing, closing some schools, and redrawing attendance zones. Section II of the Judgment addresses desegregation by student assignment and the alteration of attendance zones in the DISD. See Judgment, at 8-5. The Judgment specifies the geographic boundaries of attendance zones for K-3 schools, and the feeder patterns for 4-6, 7-8, and 9-12 schools. See Judgment, at 3; Defs. Ex. 1, Data and Analysis, Apps. A & B. The Judgment also requires that any changes in attendance zones and student assignment be approved by the Court. The Court has approved many such changes over the years. At the hearing, the District presented evidence to show compliance with the Judgment’s directives regarding student assignment and attendance zones. The District is currently utilizing race neutral attendance zones. (William Webster). Superintendent Chad Woolery and School Board President Rene Castilla promised the Court at the hearing that there would be no change in this policy. The increase in the number of one-race minority schools and predominantly minority schools is the result of the dramatic change in the ethnicity of the student population in the District over the years. (William Clark); Defs. Ex. 1, Data and Analysis, App. A. There are no reasonable measures that can be taken to increase racial balance. (William Clark). Plaintiffs do not dispute the District’s evidence. See Plaintiffs’ Findings, at ¶47-48. Intervenor argues that the DISD is not unitary with respect to student assignment. The Court commends the DISD’s policy of drawing attendance zones to achieve the maximum possible desegregation in this predominantly minority school district. The Court finds that the District should take the following additional action regarding student assignment and attendance zones: ►Submit and obtain Court approval of a plan for returning students in the Ray attendance zone to their neighborhood school; these students are now bused to Franklin. See supra note 7. 3. Majority to Minority Transfers To encourage voluntary desegregation in the DISD, the 1976 Plan included a Majority to Minority Transfer program (“M to M program”). See Tasby, 412 F.Supp. at 1217. Section III of the Judgment updates the standards and requirements for the District’s operation of the M to M program. See Judgment, at 5-11. The M to M program allows an Anglo student in a school with more than 50% Anglo students to transfer to any school with less than 25% Anglo students, and a minority student to transfer from a school with more than 75% minority students to any school with less than 60% minority students. See Judgment, at 5-6. Incentives for participation include equal access to extra-currieulars, tuition credit with the Dallas County Community College District, free transportation, special counseling services, and an ombudsman service to provide information to parents. See Judgment, at 8. At the hearing, the DISD presented evidence to show compliance with the Judgment’s directives regarding the M to M program. The largest number of students to participate in the M to M program in the DISD was 2,623, in 1984-85. In 1992-93, only 524 students participated in the M to M program. Defs.Ex. 1, Data and Analysis, Table III — 5. The District argues that the declining number of participants in the program is due primarily to the increased minority enrollment in the District. Schools which could otherwise accept transfers have reached their capacity and are now closed to receiving M to M transfer students. Defs. Ex. 7. Only nineteen schools received M to M transfer students during the 1992-93 school year. Defs. Ex. 1, Data and Analysis, App. C. An expert on voluntary desegregation programs testified that the M to M program is successful in comparison to other school districts which, like the DISD, have less than 20% Anglo enrollment. (Christine Rossell). Chauncey King, DISD Director of Transportation, testified that bus service or reimbursement for private transportation is available to all M to M students; bus service is also available for M to M students who wish to participate in extracurricular activities. See also Defs. Ex. 11. Sandra Malone, the Court-appointed External Desegregation Auditor (“the Auditor”) testified that the number of students participating in the program may be undercounted because of a confusion by administrators between M to M transfers, curriculum transfers, and “merit transfers.” In addition, some M to M students are being returned to their neighborhood schools for behavioral infractions before the end of the semester, in violation of the Judgment. See Judgment, at 6, 8. The Judgment requires that M to M transfers have priority over curriculum or other transfers, but some schools closed to M to M transfers continue to take other transfers. See Judgment, at 7. Conducting an informal survey, the Auditor found that very few M to M students utilize the tuition incentive program, and very little of the earned money is ever distributed. The Auditor recommends that the amount of tuition incentive money be increased because of the rise in tuition at Dallas County Community College. Although the District provided the Court with a brochure about M to M transfer opportunities that discusses the ombudsman and counseling services, the Auditor found that most parents and students were unaware of the services. The Auditor also questioned the transportation available to M to M students. She noted that some schools listed by Chauncey King in his report on transportation showed buses to schools that are not receiving M to M transfer students. See Defs. Ex. 11. Many students and parents were unaware of the option for reimbursed private transportation or other public transportation. See Judgment, at 9. Testimony from Kathlyn Gilliam, a long time Black trustee on the school board, supported the Auditor. Finally, the Auditor stated that the District provided no information to show that sending schools are utilizing Court-ordered funds for personnel, materials, or other areas designed to improve instruction; in addition, the District has not updated the teacher salary in calculating the amount of money to be given to sending schools. See Judgment, at 9. Intervenor contends that the M to M program has not been a successful desegregation tool. In particular, Intervenor is concerned that many students and parents are unaware of the program incentives. See Intervenor’s Findings, at ¶ 20. Plaintiffs do not question the usefulness of the M to M program. Rather, they suggest that unitary status should be conditioned on the continuation of the M to M program. See Plaintiffs’ Findings, at ¶ 68. In 1981, the Court stated that “it is abundantly clear that the [M to M] program as implemented by DISD is not accomplishing the degree of desegregation that it potentially can and should.” Tasby, 520 F.Supp. at 748. Since that time, the number of students in the program has dropped from 1,392 to 524. The Court finds that the primary reason for this decrease is the declining number of eligible receiving schools. Although there is some opposition to the M to M program in the Black community (see testimony of School Board trustee Yvonne Ewell and former trustee Robert Price), the Court remains of the opinion that the M to M program is a valuable aspect of the desegregation effort. Improvements need to be made, however. The Court finds that the following actions by the District are necessary and practicable to ensure full compliance with the Judgment and other directives from this Court regarding the operation of the M to M program: ►Continue the M to M program and observe the requirements of the Judgment. ►Ensure that M to M transfers are given preference over curriculum transfers and merit transfers. ►Reevaluate the amount of award available for college tuition to reflect more accurately the cost of tuition at Dallas County Community College. The award should equal the cost of tuition for two full years, with a full academic load of fifteen hours. ►Establish orientation and training for counselors regarding the Judgment’s mandate for special counseling service to M to M students. ►Implement the parental ombudsman services required by the Judgment. ►Adhere to guidelines in the Judgment regarding the return of transfer students to their home schools. ►Enforce the guidelines in the Judgment governing transportation. Students at all grade levels must be reimbursed for the costs of private and public transportation. Transportation must be available to ensure access to extracurricular activities. ►Provide better publicity about the M to M Program and its incentives to students and parents. 4. Curriculum Transfers Section IV of the Judgment directs the DISD to allow students who seek special courses not offered in their home schools to attend other schools that offer those special courses. See Judgment, at 12. The District is required to review these curriculum transfers for the impact they have on desegregation, particularly transfers for highly gifted courses and career education courses. See Judgment, at 12. At the hearing, the DISD presented evidence to show compliance with the Judgment’s directives regarding the curriculum transfer program. Only 732 students participated in the program in 1992-93; the number is divided fairly evenly among Anglos, Blacks, and Hispanics. See Defs. Ex. 1, Data and Analysis, at 58-59; App. D. The District concludes that the transfers have “had no effect one way or the other on desegregation.” See Defs. Ex. 1, Data and Analysis, at 58-59. The Auditor testified that school administrators do not know the difference between a curriculum transfer and a merit transfer. See supra note 18. The Auditor found that most of the confusion is caused by the fact that the same application form is used for curriculum and merit transfers. The confusion probably causes underreporting by the DISD of the number of curriculum transfer students. The Auditor also found that many parents and students were unaware of the curriculum transfer option. Intervenor agrees with the DISD that the curriculum transfer program does not impact desegregation in the DISD; Intervenor makes no specific recommendation regarding its continuation. See Intervenors’ Findings, at ¶ 22. Plaintiff also makes no recommendation regarding the program. The Court is of the opinion that the curriculum transfer program should be continued and strengthened. The Court finds that the following action is necessary and practicable for compliance with the Judgment and other directives from this Court regarding the operation of the curriculum transfer program: ►Use separate application forms for curriculum transfers and merit transfers. 5. Magnet Schools a. The Magnet Program The magnet school concept, which is widely used now in school districts across the nation, attracts a diverse student population to centrally located schools for career, vocational, or other special programs. See Tasby, 520 F.Supp. at 746. This Court has endorsed magnet schools since the 1976 Judgment. See Tasby, 412 F.Supp. at 1205; Tasby, 520 F.Supp. at 747. Section V of the Judgment contains detailed directives to the DISD regarding the operation of magnet schools. See Judgment, at 12-19. In addition, the Judgment requires the District to review annually the effectiveness of all magnet programs, and to implement appropriate changes, subject to Court approval, to be certain that all magnet schools are effective as educational programs and as desegregation tools. See Judgment, at 15. In 1986 the Court set the ratios for magnet school admission at 40% Black, 40% Anglo and Other, and 20% Hispanic. In 1993, in recognition of the growing number of Hispanic students in the DISD, the Court reset the ratios to 32% Black, 32% Hispanic, 32% Anglo, and 4% Other. Order of September 24, 1993. The DISD magnet program currently consists of nine magnet high schools (including Skyline), eight middle school academies, and six vanguard elementary schools. Defs. Ex. 1, Data and Analysis, Table III — 6; Table III — 7. At the hearing, the District provided evidence to show compliance with the Judgment’s directives regarding the magnet program. The District had a difficult time determining how many students were currently enrolled in the magnet schools. Compare Defs. Ex. 1, Data and Analysis, Tables III — 6, III — 7, and VIII-1. The latest number supplied to the Court for the 1992-93 school year is 11,086. See Defendants’ Posh-Trial Proposed Findings of Fact and Conclusions of Law, filed June 6,1994, at ¶ 28. However, during the hearing, the District corrected its exhibits to indicate that 8,195 students were enrolled; the Director of the magnet program also testified that 8,195 is the correct number. (Leon Hayes). The numbers and percentages of ethnic enrollment in the magnet schools have been fairly constant since the schools were created. See Defs. Ex. 1, Data and Analysis, Table III — 6; Tables III— 7. In 1992-93, the total enrollment of the magnet schools was 18% Anglo, 55% Black, 24% Hispanic, 2% Asian, and less than 1% Other. Defs. Ex. 1, Data and Analysis, Table III-7. In 1992-93, twelve of the twenty-two vanguards, academies, and magnet high schools had more than 25% Anglo students. See Defs. Ex. 1, Data and Analysis, Table III-7. In addition to these twelve schools, two magnet facilities provided a mix roughly equal to the districtwide percentage of Anglo and Black students. (Christine Rossell). The Court received post-hearing information for the 1994-95 school year indicating that the District is coming closer to the Court-ordered 32-32-32-4 ratio in some schools. Memorandum from Sandra Malone, dated June 23, 1994. Dr. Rossell, an expert on magnet schools, testified that the Dallas magnet schools were effective in increasing desegregation, increasing interracial exposure, and reducing racial isolation. See also Defs. Ex. 1, Data and Analysis, Table III — S; Table III — 9. Dr. William Webster, Director of Research and Evaluation for the DISD, testified that magnet students achieve higher scores on standardized tests than do their non-magnet counterparts. Approximately 5400 magnet students are afforded free transportation by the DISD as required by the Judgment. See Judgment, at 16; (Leon Hayes). Chauncey King, DISD Director of Transportation Services, explained that the remaining students get rides from friends, or have their own cars. King testified that buses are available for magnet students who participate in extracurricular activities. The Judgment requires the District to use the proceeds from the sale of magnet facilities subject to Court approval. See Judgment, at 15. The District must observe this requirement. In the fall of 1995, six of the DISD magnet high schools will move to Townview to create one supermagnet. Townview, budgeted at approximately $80 million, is the number one priority of the 1992 Bond Project. Although there were many problems in the early phases of Townview planning, those problems appear to have been solved. Dave Patton, Director of the DISD Bond Program, testified that Townview construction is currently on schedule. Reports to the Court show that the District is working with the staff of the present magnet schools, parents, and community groups to ensure that Townview is successful. See Townview Center Progress Report to the Court, filed June 1,1994. The District recently appointed the Executive Principal for Townview. See id. Now that Townview construction is well underway, the focus of the District’s attention will turn to the Townview educational program. The Auditor provided the following testimony based on her on-site visits to the magnets, vanguards, and academies. She found that many need more modern equipment. In addition, vanguards and academies are not emphasizing the educational specialty for which they were created, and personnel are not being trained in the specialty. The Auditor also pointed out that the District provided no evidence that higher achievement scores by magnet students are actually due to magnet instruction; there is some evidence that the programs are self-selective for higher-achieving students. Plaintiffs suggest conditioning unitary status on: (1) the District’s continuation of the magnet program at the current or higher level of funding; (2) the completion of Town-view. See Plaintiffs’ Findings, at ¶ 68. Intervenor stresses the limitations of the magnets as a desegregation tool, as evidenced by the District’s figures and the testimony of the Auditor. Intervenor is concerned that transportation for magnet and M to M students is not adequate. See Intervenor’s Findings, at ¶ 36. Intervenor contends that many magnet students may be precluded from participating in extracurricular activities because of the unavailability of buses. Intervenor recommends that the District prepare and implement a comprehensive management plan for the magnet program, separate from the one being developed currently for Townview. See Intervenors’ Findings, at ¶49. Intervenor is also concerned that the Board has not yet determined whether Townview will be open to neighborhood students. See Intervenor’s Conclusions, at ¶ 19. The Court commends the DISD on the achievements of the magnet programs. The Court is of the opinion that, while several improvements are required, and stronger administration and leadership are needed, the magnet programs are successful and have a positive impact on desegregation. The Court finds, however, that the following actions by the District are necessary and practicable for full compliance with the Judgment and other directives from this Court regarding the operation of the magnet programs: ►Continue the present vanguards and academies (including Montessori I and II), and the Lincoln and Booker T. Washington Magnets. Fund the magnets, academies, and vanguards at the current or higher levels. ►Complete and open Townview. See supra note 6, and infra at section II.A.10. The contingency fund included in the December 1992 bond package must be available for use on Townview should it become necessary. ►Observe all requirements of the Judgment. ►Follow guidelines in the Judgment governing transportation. Students should be reimbursed for the costs of private and public transportation. Transportation should be made available to ensure access to extracurricular activities. ►Maintain screening committees with diverse ethnic membership for application to the magnets, academies, and vanguards. Committees should utilize standard selection criteria and should document the results of the screening process. ►Consider changing the application time-line so that the selection process is completed well before the last day of school. ►Require the 32-32-32-4 ratio to govern the enrollment at all grades, rather than just the entry grade at magnets, academies, and vanguards. To ensure that enrollment remains consistent beyond the entry grade, establish a minimum number of slots for magnet students at magnets schools housed within regular schools. ►Provide pre-service and continued in-service staff development that addresses the needs of each magnet, vanguard, and academy school. ►Observe the requirements of the Judgment to obtain Court approval before using the proceeds from the sale of the magnet facilities. b. The Honors Programs Under the section of the Judgment addressing the magnet programs, the Court also directs the District to ensure that academic honors programs “do not become a means by which students become resegregated in classrooms, although they attend school on desegregated campuses.” See Judgment, at 18-19. The DISD must “carefully monitor the objective and subjective selection process for such programs to insure that no student or racial group is unfairly excluded.” See id. At the hearing, the District presented evidence to establish compliance with the Judgment’s directives regarding the honors programs. The District maintains an extensive Talented and Gifted/Laureate (TAG/Laureate) program, an Honors program, and an Advanced Placement program (collectively, “the honors programs”). (Christine Rossell); Defs. Ex. 2, Figs. 26-29. Students scoring at or above the 80th percentile are automatically eligible for the TAG/Laureate program; the Honors program also has course average requirements. Students who do not meet the eligibility requirements may nominate themselves or be nominated by teachers. Advanced Placement courses are available to students who successfully complete a required sequence of instruction; students in Advanced Placement courses may receive college credit upon successful completion of an exam covering the course material. (Christine Rossell); Defs. Ex. 1, Data and Analysis, at 73-77. Dr. Christine Rossell, the District’s expert witness, sent surveys to teachers to obtain information about participation in the honors programs. She did not visit honors classrooms, except at the TAG magnet high school. Relying on these surveys, Dr. Rossell concluded that the numbers of eligible students (as defined by those scoring at or above the 70th percentile) of various ethnicities enrolled in the honors programs reflect equality of access in entry to these programs. The Auditor testified that enrollment figures she collected during her site visits did not support the enrollment figures offered by the District. Teachers and principals at the schools stated that fewer students are actually in the programs than the number found by Dr. Rossell. The Auditor concluded that the numbers reported by Dr. Rossell, see supra note 26, may indicate the number of students eligible rather than the number of students actually enrolled. The Auditor noted that although the District may enroll eligible students on a nondiseriminatory basis, the overall percentages of minority students (with the exception of Asian students) in the programs are lower than the percentages of Anglo students in the programs. Plaintiffs do not dispute the District’s evidence that students of all ethnicities have equal access to the honors programs. See Plaintiffs’ Findings, at ¶45. Intervenor is concerned that the percentage of Black students in the honors programs is lower than the percentage of Black students district-wide. However, Dr. Rossell testified that the District makes a concerted effort to increase minority participation in the honors programs. The Court is of the opinion that overall the honors programs are working well, and do not result in resegregation in the classroom. The Court finds, however, that the following actions by the District are needed to ensure full compliance with the Judgment and other directives from this Court regarding the operation of the TAG/Laureate program, the Honors program, and the Advanced Placement program: ►Monitor more closely the participation of minority students in pre-honors, TAG/Laureate, Honors, and Advanced Placement programs. ►Monitor more closely the participation of minority M to M Transfer and Curriculum Transfer students in pre-honors, TAG/Laureate, Honors, and Advanced Placement programs at the receiving schools. 6. Regular Schools (Elementary, Intermediate, Middle, and High Schools) and Bilingual Education a. Regular Schools Section VI of the Judgment contains directives to the DISD regarding its regular elementary, intermediate, middle, and high schools. See Judgment, at 19-22. The District is substantially complying with these directives. With respect to early childhood education, the Judgment sets a goal for the District to achieve a ratio of one adult for every ten K-3 students and stresses effective involvement with parents and community groups. See Judgment, at 20. The Auditor testified that the one to ten ratio is not being met. The District provided evidence at the hearing that the number of volunteers brings the ratio near the required level. See Defs. Ex. 17. The District must increase its efforts to achieve the goal set by the Judgment. The DISD must continue to provide a race neutral curriculum for all students. No program shall be adopted which might tend to discriminate against any class of students or which has the effect, whether directly or indirectly, of resegregating the schools. This prohibition shall not prevent the District from having courses based upon culture or ethnicity, or national origin (and similar programs). Modifications may be made in programs and curriculum to improve the effectiveness of educational delivery. b. Bilingual Education The “regular schools” section of the Judgment also directs the DISD to continue its bilingual education program, and specifies requirements for bilingual instruction programs. See Judgment, at 21. At the hearing, the District offered extensive testimony regarding its efforts in the areas of bilingual education. (Chad Woolery; Rosita Apodaca; Robby Collins; William Webster). In addition to the Judgment’s mandates, the District must comply with state bilingual education requirements. Superintendent Woolery testified that bilingual education was one of the highest priorities of the DISD, which will soon become a majority Hispanic school district. In 1992-93, the District spent almost $9,000,000 on bilingual education programs. Defs. Ex. 1, Data and Analysis, Table VI-3. The District has the following classroom programs: English as a Second Language (ESL), High Intensity Language Training (HILT), and English to Speakers of Other Languages (ESOL). In addition, the District participates in programs outside the classroom, such as the Home Instruction Program for Preschool Youngsters (HIPPY), the Valued Youth Program, Even Start, and the Migrant Education Program. (Rosita Apodaca). The effectiveness of these programs has been documented for some students, but the high dropout rate for Hispanic students, although improving, continues to be a problem. (William Webster). The limited national and state pool of bilingual teachers makes it extremely difficult for the District to hire the number of teachers needed to serve the growing number of limit-. ed english proficiency (LEP) students; the District’s Alternative Certification program and Grow-Your-Own program help to fill the constantly increasing need for bilingual teachers. (Rosita Apodaca; Robby Collins). The Court commends the DISD for its strong efforts in bilingual education. 7. Programmatic Remedies Section VII of the Judgment directs the District to use programmatic remedies to improve minority achievement. See Judgment, at 23-30. These remedies are based on the Supreme Court ruling in Milliken II, supra. The Judgment defines “programmatic remedies” as “the utilization of financial and human resources to implement administrative, instructional, personnel development and community participation strategies that focus on closure of the achievement gap between minority students and their Anglo counterparts.” See Judgment, at 23-24. Local schools are given the power to create remedies appropriate to the needs of their students. The District is directed to supply funds for carrying out these remedies and to supervise implementation of the remedies. See Judgment, at 24, 28-29. The Department of Research and Evaluation must evaluate annually the effectiveness of the remedies in eliminating the achievement disparity of minority children. See Judgment, at 25. This section of the Judgment also outlines the responsibilities of the internal desegregation monitor, who is primarily responsible for monitoring programmatic remedies. See Judgment, at 26-27. The Judgment includes an Appendix C that sets guidelines for programmatic remedies. The DISD is directed to implement these remedies in all predominantly minority schools. See Judgment, at 28. At the hearing, the District offered scant evidence to show compliance with the Judgment’s directives regarding programmatic remedies. Matthew Harden, DISD Associate Superintendent, Management Division, testified that the DISD spent $9,380,450 on programmatic remedies for predominantly minority schools in 1992-93. See also Defs. Ex. 1, Data and Analysis, Table VI-2. Testimony from the Auditor and other witnesses indicated that there is much confusion about the purpose and effect of the programmatic remedies. (Sandra Malone; Kathlyn Gilliam; Yvonne Ewell). Administrators and teachers are not adequately trained to implement the programmatic remedies. (Yvonne Ewell). The Auditor testified that “programmatic remedies” has come to mean simply more money spent on low-achieving schools. Principals are unable to track the money they receive, or to show whether it was spent to improve minority achievement. The Court commends the District on the amount of funds allocated for programmatic remedies, but finds that the District needs to improve its tracking of how these funds are spent. The Court finds that the following actions are necessary and practicable to ensure full compliance with the Judgment and other directives from this Court regarding programmatic remedies: ►In all schools receiving the funds, require, comprehensive training for all administrators,in the operation and monitoring of programmatic remedies. ►In all schools receiving the funds, require each school’s improvement plan to address specifically the programmatic remedies to be implemented with the acquired funds. ►Establish school-based recordkeeping to account for expenditures of desegregation funds within the categories specified in the Judgment. 8. Nolan Estes Plaza Section VIII of the Judgment directed the District to make certain improvements to the schools located at the Nolan Estes Plaza. See Judgment, at 30-31. This section of the Judgment is obsolete. 9. Personnel Section IX of the Judgment contains directives to the DISD regarding the recruitment, assignment, and training of faculty and staff. See Judgment, at 31-33. a. Recruitment The Judgment directs the District to attempt to employ principals, assistant principals, deans of instruction, certificated and professional personnel, and administrators so that the racial representation is 40% Anglo, 40% Black, and 20% Hispanic. See Judgment, at 31. The District must “continue to make diligent efforts to recruit, retain, and certify qualified Black and Hispanic teachers.” See Judgment, at 31. - , At the hearing, the District presented the following evidence to establish compliance with the Judgment’s directives regarding staff recruitment. The District has an affirmative action plan to recruit qualified Black and Hispanic teachers. Robby Collins, DISD Executive Manager of Personnel, testified that recruitment of Black faculty and administrators has been relatively successful over the past ten years; the number of Black teachers and administrators has been increased in excess of their percentage in the labor market. See also Defs. Ex. 1, Data and Analysis, Table VII-1; Table VII-2; and Map VII-1. Recruitment of Hispanic faculty and administrators has been much less successful due to the intense competition throughout the state and nation for Hispanic personnel. Defs. Ex. 1, Table VII-1; Table VII-2; and Map VII-1. The District has developed an Alternate Certification Program that allows persons with college degrees in fields other than teaching to become teachers; with this program, the District hopes to expand the pool of minority teachers. (Robby Collins). The District has also enlisted the aid of the Hispanic Chamber of Commerce to help retain Hispanic teachers once they are recruited. (Robby Collins). The Auditor testified that, in a recent Alternative Certification Class, there were forty-eight Anglos, forty-five Blacks, and seven Hispanics; thus, the program is not significantly impacting the pool of Hispanic teachers in the District at the present time. Plaintiffs agree that the District has been successful at recruiting Black teachers, but less successful at recruiting Hispanic teachers. See Plaintiffs’ Findings, at ¶42, 43. Intervenor notes that the District expects to increase employment of Black and Hispanic personnel. See Intervenor’s Findings, at ¶ 35. The Court commends the DISD’s efforts to recruit minority faculty and staff. Those efforts must continue. b. Assignment 1. Teachers The former segregated system included assignment of faculty and staff by race; Black teachers were assigned to Black schools, and Anglo teachers were assigned to Anglo schools. To overcome the effects of that system, the law requires that the ethnic distribution of teachers in each school match the ethnic distribution of teachers district-wide. See Singleton v. Jackson Mun. Separate Sch. Dist., 419 F.2d 1211 (5th Cir.1969). In 1971, the Court (Taylor, J.) ordered the District to comply with Singleton by reassigning 4,400 teachers. The DISD was allowed a plus or minus 2.5% variance from the required ratios. (Robby Collins). The Judgment gives the District some discretion to assign minority teachers outside of Singleton requirements: [I]f the needs of a given school clearly demonstrate that deviations from the above requirements are necessary in order to staff and administer the programs in predominantly minority schools, or such programs as special, vocational, and bilingual education in any school, the DISD shall have the discretion to assign minority teachers to these schools at variance with the respective percentages established by Singleton. See Judgment, at 32-33. It further states, however, that in no instance “will minority teachers be assigned to schools merely because the student enrollment is predominantly minority.” See Judgment, at 33. At the hearing, the District presented evidence to show compliance with the Judgment’s directives regarding teacher assignment. Dr. David Armor testified about his research on the District’s assignment of teachers according to Singleton. See Defs. Ex. 1, Data and Analysis, Table VII-7, Table VII-8. He prepared no charts with the required plus or minus 2.5% variance, but instead used plus or minus 10% and plus or minus 15% variances. He testified that a plus or minus 2.5% variance is not possible for any school district to maintain, and that no other school district to his knowledge imposed such a variance. The Court simply notes that the DISD has never requested a change in the required variance of plus or minus 2.5%. Dr. Armor prepared charts showing the level of compliance with Singleton by school for the years 1969-70 through 1992-93. Defs. Ex. 1, Data and Analysis, App. F. Although Dr. Armor testified that the District remained in compliance within a plus or minus 15% variance from 1971 to 1989, the figures do not support his testimony. In fact, the summary charts reveal that even using a plus or minus 15% variance, the District had approximately 40 out of 178 schools per year out of compliance with the required ratios. Defs. Ex. 1, Data and Analysis, Table VII-7. Noncompliance with Singleton grew more severe beginning in 1989, when the Superintendent and Executive Manager of Personnel began to exercise their discretion to grant variances from Singleton in certain predominantly minority schools. (David Armor; Robby Collins). The District kept no record of the “clearly demonstrated needs” necessary to justify variances from Singleton. (Robby Collins; Rene Castilla). There was some indication that the new School Centered Education (SCE) model imposed by the State, which is a form of site-based management, was responsible for the shift away from compliance with Singleton. (Vivian Johnson). In addition, the Texas Education Code gives local school principals the authority to approve teacher appointments based on relevant criteria developed by the principal. (Robby Collins). During the 1992-93 school year, even applying a plus or minus 15% variance, 97 of 191 schools were out of compliance. Defs. Ex. 1, Data and Analysis, Table VII-7. At the hearing, minority parents gave their opinions about the assignment of minority teachers in the schools. This testimony reveals that there is some conflict in the minority community about the usefulness of Sin gleton in a school district unable to hire enough minority teachers to mirror the minority student population. Some parents said that there were not enough qualified Black teachers for the predominantly minority schools in South Dallas, and that the qualified Black teachers in south Dallas schools are transferred to the North Dallas schools. (Nethal Beatrice Jackson; Rose Taylor). One parent stated that “early childhood teachers do not look like the kids they are teaching.” (Nethal Beatrice Jackson). Another focus of the comments from parents was simply that teachers be “informed and qualified;” these parents noted that all teachers need to be trained in cultural awareness. (Rose Taylor; Shirley Ann Daniels). Testimony by the minority trustees on the school board also conflicted somewhat with the rationale of Singleton. Hollis Brashear, a Black trustee, said that the District “needs more teachers that Black students can identify with culturally.” He also testified that he had not been disappointed with the assignment of teachers to minority schools. He asserted that there should be more Black teachers to serve as role models in early childhood, noting that “minority teachers are better able to control minority students.” Dr. Yvonne Ewell, a Black trustee, said that much of the noncompliance with Singleton results from the high number of Black teachers assigned to her district, which has a high proportion of predominantly minority schools. She said she agreed with the present assignment system “if teachers know how to teach. But I don’t think skin color should be a factor.” Kathlyn Gilliam, a. Black trustee, testified that “it would be a step backward to use Singleton in this case without allowing for the present variances.” She recalled that in 1971, when the Court ordered teacher reassignment to achieve compliance with Singleton, the best Black teachers were re-assigned to North Dallas schools. She believes that a variance option should be allowed for ethnic minority schools. School Board President Rene Castilla, who is Hispanic, testified that Hispanic students need Hispanic teachers. In addition, Don Williams, the Director of the Learning Centers, testified that his K-6 faculty was 65% Black, although only 35% of K-6 teachers distrietwide are Black; he believes a higher percentage of minority teachers is justified for the special circumstances in the Learning Centers. The Learning Centers are predominantly minority. Plaintiffs suggest conditioning unitary status on the achievement of Singleton compliance throughout the three year transition period; thereafter, Plaintiffs ask that no faculty become racially identifiable. See Plaintiffs’ Findings, at ¶ 68. Intervenor contends that the evidence clearly shows that the District has not complied with Singleton and therefore is not unitary with respect to teacher assignment. See Intervenor’s Conclusions, at ¶ 15. After the hearing closed, the Court directed the District to supply additional information regarding the number of teacher reassignments that would be necessary to achieve compliance with Singleton as of May 1994. The District’s information shows that 925 of 5986 teachers must be moved to come into compliance using a plus or minus 2.5% variance, or 338 moved using a plus or minus 15% variance. See Defendants’ Summary of Singleton Analysis by Different Variance Levels, May 1994, filed June 10, 1994. 2. Administrators In addition to setting hiring goals for Black and Hispanic administrators, the Judgment requires the District to assign principals on a racially neutral basis, and in compliance with Singleton. See Judgment, at 32. Although the Judgment only spec