Full opinion text
OPINION SUE L. ROBINSON, District Judge. 1. INTRODUCTION Under consideration is a motion filed by defendants seeking a declaration of “unitary status.” (D.I.1542) Having reviewed the materials submitted by the parties during the evidentiary hearing held in this matter, in light of the history of school desegregation litigation in this country, the court is satisfied that the defendants at bar have carried their burden of proof and that the school districts of Northern New Castle County have attained unitary status. II. BACKGROUND Although there has always been a perceived link in this country between the duties of citizenship and the need for education, the Constitution of the United States is silent on the issue of education. The power to control the education of American children was one reserved to the states and, in turn, delegated to the local community. Thus, there was never an “equivalent of Britain’s Education Act of 1870 [which] ushered in a national system of public education in the United States.” Instead, the organization of public school systems in the United States was undertaken over time at the local level, community by community. Public primary schools, organized on a neighborhood basis and, therefore, relatively homogeneous in class and ethnic backgrounds, were fairly commonplace by the mid-nineteenth century. By this time, the right of American citizens to publicly funded schooling was not so much debated as was the role of public education— to promote assimilation or to preserve cultural diversity. With the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, the obligation to provide publicly funded education for black citizens led in many parts of the country (including Delaware) to the founding of separate school systems for blacks, which schools were provided with meager resources for the many waiting to be served. The movement to eliminate these “dual” school systems culminated in the seminal case of Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (“Brown I”). The Supreme Court in Brown I accepted the proffered findings that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications, and salaries of teachers, and other “tangible” factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases.[] We must look instead to the effect of segregation itself on public education. Id. at 492, 74 S.Ct. at 690-91. Again recognizing education as “the very foundation of good citizenship” and “the opportunity of an education” as the key to “succe[ss] in life,” the Court declared that “[s]uch an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Id. at 493, 74 S.Ct. at 691. The Court went on to hold that “equal educational opportunities” were not afforded to children who were “separate[d] from others of similar age and qualifications solely because of their race,” because segregation sanctioned by law “generates a feeling of inferiority as to [the children’s] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Id. Having decreed that “[separate educational facilities are inherently unequal,” id. at 495, 74 S.Ct. at 692, the Court in Brown v. Board of Education of Topeka, 349 U.S. 294, 299, 75 S.Ct. 753, 755-56, 99 L.Ed. 1083 (1955) (“Brown II”), addressed the question of how best to accomplish “the transition to a system of public education freed of racial discrimination.” Although acknowledging that “substantial steps to eliminate racial discrimination in public schools ha[d] already been taken” in communities such as Delaware, the Court nonetheless remanded the eases and directed the lower courts to implement the constitutional principles announced in Brown I and II. 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 adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public school as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these eases. Id. at 300-01, 75 S.Ct. at 756 (emphasis added). Prior to Brown I, the Delaware Supreme Court had ordered the immediate admission of black children to schools previously attended only by white children. Gebhart v. Belton, 33 Del.Ch. 144, 91 A.2d 137 (Del.Supr.1952). However, that court also ruled that no school district could lawfully desegregate more rapidly than the State Board permitted. Steiner v. Simmons, 35 Del.Ch. 83, 111 A.2d 574 (Del.Supr.1955). In response to the Steiner holding, a class action was filed in 1957 by black children to compel their admission into the public schools of the state on a racially nondiscriminatory basis. Evans v. Buchanan, 152 F.Supp. 886 (D.Del.1957), aff'd in part and vacated in part, 256 F.2d 688 (3d Cir.1958). Subsequently, the United States Court of Appeals for the Third Circuit, in its decision captioned Evans v. Ennis, 281 F.2d 385 (3d Cir.1960), cert. denied, 364 U.S. 933, 81 S.Ct. 379, 5 L.Ed.2d 365 (1961), rejected defendants’ plan to desegregate the Delaware public school system on a grade-by-grade basis over a period of 12 years, holding that such a plan “[did] not follow the intent and substance of the rulings of the Supreme Court” in Brown I. Id. at 387. The defendants had argued in support of their plan that the State’s formerly all-white facilities were inadequate to absorb all of the State’s black school children. Noting first that “a large number of Negro children [may] not seek integration even when offered the opportunity,” the court observed: Doubtless integration will cost the citizens of Delaware money which otherwise might not have to be spent. The education of the young always requires, indeed demands, sacrifice by the older and more mature and resolute members of the community. Education is a prime necessity of our modern world and of the State of Delaware. We cannot believe that the citizens of Delaware will prove unworthy of this sacred trust. Id. at 389. On rehearing, the court concluded: It is obvious that in the years to come more and more Negro children will seek integration into the public schools of Delaware and that this desire must be implemented in accordance with the decisions of the Supreme Court in [Broum I and II]. As time passes and the number of Negro children seeking integration increases, modifications and enlargements of school facilities will be required. The State Board of Education, the State Superintendent of Public Instruction and the Local Boards can effect such changes and modifications as may be required with the approval of the court below. Eventually a wholly integrated school system will be effected for Delaware: “wholly integrated” in the sense that all school children, whether white or Negro, whose attendance at school is required by law at public schools ... will attend public schools without regard for race or color. Id. at 391-92 (emphasis added). The defendants were ordered to develop a “modified plan which [would] provide for full integration of all grades of the public schools of Delaware commencing with the Fall term of 1961.” Id. at 390. Although the Third Circuit opined in 1960 that many of the schools in the Wilmington metropolitan area had already been “integrated,” id. at 393, an action subsequently was brought complaining that black children in Wilmington were being compelled to attend segregated schools. This action was predicated on several post-Brown decisions rendered by the Supreme Court in which the ultimate goals of Brown I and II were further delineated. As explained, for example, in Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), the immediate goal under Brown II was “making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. The principal focus was on obtaining for those Negro children courageous enough to break with tradition a place in the “white’ schools.” Id. at 435-36, 88 S.Ct. at 1692-93. Under Brown II that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about.... Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. Id. at 436, 437-38, 88 S.Ct. at 1693, 1694 (emphasis added). In Green, the Court rejected a “freedom-of-ehoiee” plan which did not eliminate the [rjacial identification of the system’s sehool[s] ... extending not just to the composition of student bodies ... but to every facet of school operations — faculty, staff, transportation, extra-curricular activities and facilities. Id. at 435, 88 S.Ct. at 1693. In Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), the Supreme Court turned once more to “the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once.” Id. at 6, 91 S.Ct. at 1271. Although the Court declared that its “objective ... [was] to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race,” id. at 23, 91 S.Ct. at 1279, the Court proceeded to analyze the desegregation process in terms of the “Green factors,” that is, the “existing policy and practice [of the school authorities] with regard to faculty, staff, transportation, extracurricular activities, and facilities ...[,] the most important indicia of a segregated system.” Id. at 18, 91 S.Ct. at 1277. See also, Wright v. Council of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972); Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). The court in Evans v. Buchanan, 379 F.Supp. 1218 (D.Del.1974), likewise stated that the goal of the State Board must be a “unitary school system, a ‘system without a “white” school and a “Negro” school, but just schools.’ ” Id. at 1222, citing Green, 391 U.S. at 442, 88 S.Ct. at 1696. The court found that facially neutral geographic attendance zones had been adopted by the Wilmington Board of Education and acknowledged that 83% of the children in the Wilmington School District were black. The presence of racially identifiable schools in the formerly de jure segregated system, however, was found to be constitutionally suspect. The court ordered that an alternate desegregation plan be submitted, but reserved decision on whether or not a remedy confined to the Wilmington School District would satisfy existing constitutional requirements. Within months of the above decision, the Supreme Court issued its opinion in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). The district court in Milliken had ordered the consolidation of some 53 (out of a total of 85) suburban school districts (primarily white in student composition) with the Detroit, Michigan metropolitan school district (primarily black in composition) to comprise a “desegregation area,” in order to “achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom [would be] substantially disproportionate to the overall pupil racial composition.” Id. at 734, 94 S.Ct. at 3122. As characterized by the Supreme Court, such a desegregation plan was based on the assumption that the Detroit schools could not be truly desegregated ... unless the racial composition of the student body of each school substantially reflected the racial composition of the population of the metropolitan area as a whole. The metropolitan area was then defined as Detroit plus 53 of the outlying school districts.... In Swann, which arose in the context of a single independent school district, the Court held: “If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse.” The clear import of this language from Swann is that desegregation, in the sense of dismantling a dual school system, does not require any particular racial balance in each “school, grade or classroom.” ... [T]he notion that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process. Id. at 740-42, 94 S.Ct. at 3125-26 (emphasis added) (citations omitted). The Court, having reiterated that the “target of the Brown holding was clear and forthright: the elimination of state-mandated or deliberately maintained dual school systems with certain schools for Negro pupils and others for white pupils,” rejected the imposition of an inter-district remedy. Id. at 737, 94 S.Ct. at 3123. Not so the court in Evans v. Buchanan, 393 F.Supp. 428 (D.Del.), aff'd, 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975). Reasoning that the State of Delaware, unlike the State of Michigan, had required segregation by race in its schools, the court held: [T]o the extent that segregation imposed by state law has had inter-district effects, federal courts can fashion appropriate inter-district remedies. In short, this Court, in light of the Milliken holding, is authorized to consider desegregation relief embracing more than the Wilmington district only upon findings either that school districts in New Castle County are not meaningfully separate and autonomous, or that there have been racially discriminatory acts of the state or of local school districts causing inter-district segregation. Id. at 432. The court thereafter found several interdistrict violations. Once again, the parties were ordered to submit alternative plans, both within the present boundaries of the Wilmington School District and incorporating other areas of New Castle County, to remedy the segregation found by the court. By decision issued in May of 1976, the court held that an interdistrict remedy was necessary, namely, the consolidation of city and suburban school districts. Even while so deciding, the court acknowledged that [t]he operation of public schools is traditionally a matter of local concern, and properly so. This court has intervened only reluctantly in that process, and only for limited purposes. We were urged throughout the hearings in this ease to be concerned with the “quality of education” offered by the area schools. That is much more properly the concern of local officials and the parents of children in the schools. Our duty here is not to impose quality education even if we could define that term, though we must be conscious that the implementation of the remedy does not defeat the ability of local agencies to fulfill their duty to offer it. We do not find in [.Brown I and II ] a mandate for District Courts to concern themselves with how well the educative function is performed. The decision in Brown was rather that the operation of a dual school system, based on race, is an impermissible classification under the Fourteenth Amendment. There has been much discussion, and there undoubtedly will continue to be much writing upon the topic of whether black children learn better in desegregated classrooms. Our holding does not rest upon these considerations, not least because judges are unqualified and inexpert in answering such questions. Rather, we have found a constitutional violation in the racially suspect treatment of Wilmington during a school district reorganization,[] and other actions in the past by the State and local authorities. We believe that those violations, upon the implementation of this Opinion, will be remedied. Evans v. Buchanan, 416 F.Supp. 328, 364-65 (D.Del.1976) (emphasis added). The district court’s decision was affirmed on appeal with one significant exception: The Third Circuit expressly disapproved of a 10-35% black student enrollment criterion proffered by the district court and specifically held “that no particular racial balance will be required in any school, grade, or classroom.” Evans v. Buchanan, 555 F.2d 373, 380 (3d Cir.), cert. denied, 434 U.S. 880, 98 S.Ct. 235, 54 L.Ed.2d 160 (1977). By mandate issued in January of 1978 (the “1978 order”), the district court, characterizing its role as “limited” in the last “narrow remedial phase of this litigation,” Evans v. Buchanan, 447 F.Supp. 982, 989 (D.Del.), aff'd, 582 F.2d 750 (3d Cir.1978), cert. denied, 446 U.S. 923, 100 S.Ct. 1862, 64 L.Ed.2d 278 (1980), ordered into effect a scheme for desegregation which included both primary and ancillary remedial relief. The primary remedy involved pupil assignment and the creation of a single school district to serve the “desegregation area” established by the court. More specifically, the defendants were ordered to implement a pupil assignment plan based upon the “mandatory transportation of students,” which plan reassigned all students from the geographic area of the predominantly black districts (Wilmington and DeLaWarr) to the geographic area of the predominantly white districts for nine years and all students from the geographic area of the predominantly white districts to the predominantly black districts for three consecutive years. The 1978 order did not mandate a certain percentage of racial balance which must be achieved by each school. “In implementing a 9-3 pupil assignment concept and managing school affairs, the NCCPBE [] retains the flexibility to alter attendance area boundaries, modify elementary attendance zone lines, adjust geocodes, employ lateral transfers, break feeder patterns if required, and utilize any other reasonable desegregation tool to achieve what is in its opinion the optimal 9-3 configuration. Because preservation of NCCPBE flexibility is regarded as of the utmost importance, the New Board’s decisions with respect to pupil assignment will not be questioned so long as a 9-3 fit and the few parameters imposed above are met.” Id. at 1008 (emphasis added). The ancillary relief ordered is set forth verbatim below: 1. In-Service Training Administrators, faculty and other staff require orientation and training for desegregation. Therefore, the Board shall formulate and implement a comprehensive in-service training program for teachers, administrators and other staff in order to train personnel to cope with the desegregation process. 2. Reading and Communication Skills The Board shall institute an affirmative reading and communication skills program, which does not resegregate the pupils, in order to remedy the effects of the past discrimination. 3. Curriculum The Board shall provide curriculum offerings and programs which emphasize and reflect the cultural pluralism of the students, and all instructional materials, texts and other curriculum aids shall be free of racial bias. 4. Counseling and Guidance To ameliorate the pressures on students undergoing desegregation and to prevent resegregation under the guise of curriculum or program choices, the Board shall institute an effective and nondiscriminatory counseling and guidance program. This counseling and guidance program must insure that students are counseled on a racially nondiscriminatory basis concerning all programs available in the area of work opportunities and opportunities for a college education; and that the students who choose the vocational and other special public schools in the area do so on an nondiscriminatory, and non-segregated basis. 5. School Building Construction, Site Selection and Use of Existing Schools Selection of school sites, construction of new buildings, expansion of existing buildings, and closing of school braidings have an important bearing on the future status of desegregation in this area. The Board shall establish and enforce nondiscriminatory guidelines for new construction, review of building needs and the appropriateness of each proposed building project or school closing. 6. Recognition of Human Values In order to protect the individual dignity of students and teachers and to prevent racial myths and stereotypes from prevailing in schools undergoing desegregation, the Board shall provide an appropriate human relations program throughout the unitary school system. 7. Standards of Conduct The Board shall develop as part of its Board policies a code of rights and responsibilities regarding such issues as student conduct and suspension and expulsion. This code shall provide for racially nondiscriminatory discipline and shall contain provisions to insure each student in the desegregation area procedural and substantive due process required by existing law. Such a code will help to provide equal educational opportunity to all students by protecting them from unreasonable, discriminatory, and arbitrary rules; and the Board shall not administer the code on a racially selective or otherwise biased basis. 8. Staff The Board shall reassign faculty, administrative and other staff personnel to insure that schools do not retain their former racial identity through racially identifiable faculty and staff assignments. (D.I. 699 at 11-13) Three years later, in a decision characterized by the court as the “beginning of the process of shifting power from a court-created entity back to where it belongs — with appropriate state authorities,” the court approved an application to divide the desegregation area into four proposed independent districts. Evans v. Buchanan, 512 F.Supp. 839, 847 (D.Del.1981). In so doing, the court nonetheless specifically held that “a unitary school system ha[d] not yet been achieved” and that “remnants of the dual system have not yet been extirpated,” as evidenced by examples of “racially identifiable [schools] or severely imbalanced classrooms,” “continued racial identifiability of some schools’ facilities and administrative staffs,” and “a possible problem of racially disproportionate suspensions and other forms of discipline.” Id. at 851 and 858 n. 55. The 1978 order was modified to require the four new school districts to collect data regarding the following: 1) suspensions, expulsions, and arrests, by race; 2) student racial composition of the school buildings and classrooms, by race; 3) racial composition of all staff; 4) racial composition of the student population in special education programs; 5) students who have received permission to attend schools outside their feeder patterns, by race and grade; 6) enrollment projections and trends by race, grade, building and district; 7) enrollment changes, with racial percentages; 8) number of student withdrawals by race; 9) the operation of the bilingual education program; 10) the operation of all the ancillary relief programs ordered in the past. In addition, the State Board was charged with: 1) analyzing and summarizing the district data; 2) preparing and implementing a system of testing and evaluating the educational progress of the students, the results of which were to be reported by race, grade, and school building; and 3) reporting “its affirmative actions to its responsibilities” under the orders of the court. (D.I. 1074) In May 1989, the State Board suggested that each school district bring the racial composition of its student population at each of its schools to within ± 10% of the minority percentages for each grade level in the district by September 1991. (D.I. 1934 at 330) In the spring of 1990, Red Clay submitted to the State Board a plan to achieve compliance with the above request. The plan described a fully developed student reassignment component (a “mixed feeder plan”) and a “choice” or “magnet school” component to be developed and submitted to the State Board by September 1990. Plaintiff filed a motion in May 1990 seeking a court order directing implementation of the student reassignment component in September 1990; the motion was denied. Coalition to Save Our Children v. Buchanan, 744 F.Supp. 582 (D.Del.1990) at 330-31. Red Clay continued to work toward implementation of its “CHOICE” plan, which plan would require that the court modify the 9-3 student assignment provision of the 1978 order. Plaintiff questioned the plan on several bases, including: 1) “The plan’s lack of an explicit ‘commitment’ to its enrollment and racial balance ‘targets’ and 2) “the plan’s ability to remedy the racial disparities in dropouts, suspensions, attendance, assignments to special education classes, test scores, and matriculation to college.” Coalition to Save Our Children v. Board of Education, 757 F.Supp. 328, 336 (D.Del.1991). In ultimately approving the “CHOICE” plan, the court noted the following in connection with the goal of unitary status: While federal court supervision of local school systems in desegregation cases was always intended as a temporary measure, the court’s desegregation decrees and its supervision operate until the court finds that the school board has complied with the desegregation orders in good faith, is unlikely to return to the segregative practices employed by its predecessor, and that “the vestiges of past discrimination had been eliminated to the extent practicable.” ... In order words, the court must make a finding that the district is currently and will continue to be operated in compliance with the commands of the Equal Protection Clause of the fourteenth amendment.... [Minority students in the Red Clay District have yet to achieve a full measure of equality. While technically maintaining a 9-3 feeder pattern, the Red Clay Board has knowingly allowed schools which are clearly perceived as “minority” and “non-minority” schools to exist within the District for at least six years. Moreover, the Board has failed for many years to address the secondary effects of the racial imbalances in its feeder patterns, including a large number of racially disproportionate classrooms, low minority achievement scores and college matriculation, etc.... With all of this in mind, the court cannot and will not make a finding that the Red Clay District is currently operating in compliance with the Equal Protection Clause .. .[] Id. at 349, 350 (emphasis added). The Supreme Court issued its decision in Board of Education v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991), just weeks before the district court opinion above issued. In Dowell, the district court had found that “unitariness had been achieved” by the School Board of Oklahoma City Public Schools and that, therefore, court-ordered desegregation must end. Id. at 243, 111 S.Ct. at 634. The United States Court of Appeals for the Tenth Circuit reversed, holding that “an injunction takes on a life of its own and becomes an edict quite independent of the law it is meant to effectuate.” 890 F.2d 1483 (10th Cir.1989) at 1490. According to the Tenth Circuit, despite a finding of unitary status, the local school authorities would continue to be enjoined consistent with the desegregation decree; e.g., the pupil assignment plan would remain in effect indefinitely until such time, if ever, the school authorities could demonstrate “ ‘dramatic changes in conditions unforeseen at the time of the decree that ... impose extreme and unexpectedly oppressive hardships on the ob-ligor.’” Id. The Supreme Court reversed, noting at the outset that “federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.” 498 U.S. at 247, 111 S.Ct. at 637. The Court went on to reaffirm that [ljocal control over the education of children allows citizens to participate in deci-sionmaking, and allows innovation so that school programs can fit local needs.... Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that “necessary concern for the important values of local control of public school systems dictates that a federal court’s regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination....” Id. at 248, 111 S.Ct. at 637 (citations omitted). As to the standards to be used to judge whether in fact the “effects of past intentional discrimination” have been remedied, the Court observed that the term “unitary” had no precise definition, but that “a school board [was] entitled to a rather precise statement of its obligations under a desegregation decree.” Id. at 245, 246, 111 S.Ct. at 635, 636. In determining whether the vestiges of de jure segregation have been eliminated as far as practicable, the Court informed the district court to look “not only at student assignments, but ‘to every facet of school operations — faculty, staff, transportation, extracurricular activities, and facilities.’ ” Id. at 250, 111 S.Ct. at 638, citing Green, 391 U.S. at 435, 88 S.Ct. at 1693. The case was remanded for that purpose. A year later, the Supreme Court revisited the desegregation arena in Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). The Court observed that, because “ ‘local autonomy of school districts is a vital national tradition,’ ” “federal judicial supervision of local school systems was intended as a ‘temporary measure.’ ” Id. at 489, 490, 112 S.Ct. at 1445. The Court endorsed the “concept of unitariness” as “conveying] 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 courts’ remedial control ought to be modified, lessened, or withdrawn.” Id. at 486, 112 S.Ct. at 1443. Nevertheless, the Court cautioned that the term “unitary” was not a “precise concept” and instead focused its analysis on “the school system’s record of compliance.” Id. at 487, 491, 112 S.Ct. at 1443, 1446. See also id. at 498, 112 S.Ct. at 1449-50. (“A history of good-faith compliance is evidence that any current racial imbalance is not the product of a new de jure violation, and enables the district court to accept the school board’s representation that it has accepted the principle of racial equality and will not suffer intentional discrimination in the future.”). In further explanation of what supervising courts should consider in determining whether to withdraw judicial oversight, the Court observed that [i]n one sense of the term, vestiges of past segregation by state decree do remain in our society and in our schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of history. And stubborn facts of history linger and persist. But though we cannot escape our history, neither must we overstate its consequences in fixing legal responsibilities. The vestiges of segregation that are the concern of the law in a school case may be subtle and intangible but nonetheless they must be so real that they have a causal link to the de jure violation being remedied. It is simply not always the case that demographic forces causing population change bear any real and substantial relation to a de jure violation. And the law need not proceed on that premise. As the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system. The causal link between current conditions and the prior violation is even more attenuated if the school district has demonstrated its good faith. Id. at 495-96, 112 S.Ct. at 1448. In its latest pronouncement on the issue of school desegregation, the Supreme Court reiterated the maxim that “ ‘federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.’” Missouri v. Jenkins, — U.S. -, -, 115 S.Ct. 2038, 2049, 132 L.Ed.2d 63 (1995), citing Dowell, 498 U.S. at 247, 111 S.Ct. at 637. The Court reiterated as well the standard of review articulated in Freeman, 503 U.S. at 491-92, 112 S.Ct. at 1445-46, that is, that the “ultimate inquiry is “whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.’” — U.S. at -, 115 S.Ct. at 2049. The two primary issues under examination in Jenkins were the existence of racially identifiable schools (with a population of over 90% black students) and a system-wide reduction in student achievement. With respect to the former issue, the Court observed that it long ago rejected the suggestion “ ‘that schools which have a majority of Negro students are not “desegregated” whatever the racial makeup of the school district’s population and however neutrally the district lines have been drawn and administered.’ ... ‘[T]he Court has consistently held that the Constitution is not violated by racial imbalance in the schools, without more....’” Id. at -, 115 S.Ct. at 2050, citing Milliken, 418 U.S. at 747 n. 22, 94 S.Ct. at 3128 n. 22 and 433 U.S. 267, 280 n. 14, 97 S.Ct. 2749, 2757 n. 14, 53 L.Ed.2d 745 (1977). In Jenkins, the district court had found only an intradistrict violation, thus precluding the mandatory interdistrict redistribution of students to remedy racially imbalanced schools. The district court’s remedy instead focused on “desegregative attractiveness,” coupled with “suburban comparability.” — U.S. at -, 115 S.Ct. at 2050. As described by the Court, “[t]his remedy has included an elaborate program of capital improvements, course enrichment, and extracurricular enhancement” and has been characterized as the “most ambitious and expensive remedial program in the history of school desegregation.” Id. at -, -, 115 S.Ct. at 2044, 2051. The Court, however, rejected “desegrega-tive attractiveness” as a standard by which to judge the defendant’s progress toward unitary status. The District Court’s pursuit of “desegre-gative attractiveness” cannot be reconciled with our cases placing limitations on a district court’s remedial authority. It is certainly theoretically possible that the greater the expenditure per pupil within the KCMSD,[] the more likely it is that some unknowable number of nonminority students not presently attending schools in the KCMSD will choose to enroll in those schools_ But this rationale is not susceptible to any objective limitation.... Nor are there limits to the duration of the District Court’s involvement. The expenditures per pupil in the KCMSD currently far exceed those in the neighboring [suburban school districts].... Sixteen years after this litigation began, the District Court recognized that the KCMSD has yet to offer a viable method of financing the “wonderful school system being built.” ... Each additional program ordered by the District Court — and financed by the State — to increase the “desegrega-tive attractiveness” of the school district makes the KCMSD more and more dependent on additional funding from the State; in turn, the greater the KCMSD’s dependence on state funding, the greater its reliance on continued supervision by the District Court. But our cases recognize that local autonomy of school districts is a vital national tradition, ... and that a district court must strive to restore state and local authorities to the control of a school system operating in compliance with the Constitution. Id. at -, 115 S.Ct. at 2054 (emphasis added) (citations omitted). Likewise, the standard employed by the district court to gauge student achievement was rejected. Significantly, the district court in Jenkins specifically had determined in its initial remedial order that “[segregation ha[d] caused a system-wide reduction in student achievement in the schools.... ” Id. at -, 115 S.Ct. at 2042. Upon its latest review, the district court ordered continued funding of various “quality education programs,” reasoning that the school district “had not reached anywhere close to its ‘maximum potential because the District is still at or below national norms at many grade levels.’ ” Id. at -, 115 S.Ct. at 2055. But this clearly is not the appropriate test to be applied in deciding whether a previously segregated district has achieved partially unitary status.... The basic task of the District Court is to decide whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicable. Under our precedents, the State and the KCMSD are “entitled to a rather precise statement of [their] obligations under a desegregation decree.” ... Although the District Court has determined that “[segregation has caused a system-wide reduction in achievement in the schools of the KCMSD,” ... it never has identified the incremental effect that segregation has had on minority student achievement or the specific goals of the quality education programs.... In reconsidering this order, ... the District Court ... should consider that the State’s role with respect to the quality education programs has been limited to the funding, not the implementation, of those programs. As all the parties agree that improved achievement on test scores is not necessarily required for the State to achieve partial unitary status as to the quality education programs, the District Court should sharply limit, if not dispense with, its reliance on this factor.... Just as demographic changes independent of de jure segregation will affect the racial composition of student assignments, ... so too will numerous external factors beyond the control of the KCMSD and the State affect minority student achievement. So long as these external factors are not the result of segregation, they do not figure in the remedial calculus.... Insistence upon academic goals unrelated to the effects of legal segregation unwarrantably postpones the day when the KCMSD will be able to operate on its own. Id. at -, 115 S.Ct. at 2055-56 (emphasis added) (citations omitted). III. FINDINGS OF FACT A. The Green Factors 1. As articulated above, the Supreme Court in Green identified various facets of a school system which should be examined for vestiges of de jure segregation: student assignment, faculty and staff assignment, transportation, extracurricular activities, and facilities. 391 U.S. at 435, 88 S.Ct. at 1693. 2. Plaintiff concedes that federal supervision should be withdrawn in the areas of transportation and facilities. (D.I. 1936 at 720-22) Student Assignment — Schools 3. Dr. Christine Rossell, a defense expert, utilized several different methods in analyzing the school districts and their respective racial imbalances. The first and most common method used by social scientists is the Index of Dissimilarity, which indicates how races in a school district are distributed across schools. The measure varies from “0”, representing perfect racial balance, to “1”, representing complete racial imbalance. The resulting figure represents the proportion of black students who would have to be reassigned to white schools, if no whites were reassigned, in order to have the same proportion in each school as in the district as a whole. (DX 271 at 5-6, n. 3) 4. Prior to the 1978 order, schools in the then 11 school districts, when compared with the racial composition of all of New Castle County, were very imbalanced. (DX 271 at 7, Fig. 1) 5. After implementation of the 1978 order, the indicia of racial dissimilarity decreased significantly to less than .2, regarded by Dr. Rossell as “close to perfect racial balance.” (D.I. 1935 at 407-411; DX 271 at 7-8, Fig. 2; DX 292) 6. In the years that followed the 1978 order, the level of racial imbalance fluctuated. Red Clay peaked with over a .2 ratio of racial imbalance and Colonial had the most perfect racial balance of approximately .05 between 1983 and 1986. (DX 271 at Fig. 2; DX 292) 7. Dr. Rossell compared these figures with 76 other school districts which she determined to be similar to the school districts of New Castle County in size, racial composition, and having a court-ordered desegregation plan. (DX 271 at 7) In doing said comparison, she included bilingual and special education programs because they were contained in the national sample. (Id. at 8, n. 6) 8. Dr. Rossell concluded that the school districts in New Castle County “are significantly less racially imbalanced than the national court ordered sample.” (Id. at 8) 9. Dr. Rossell also analyzed the percentage of students in schools in the 4 school districts within ± 10% of minority percentages for the entire district (“± 10% district minority percentage”). In doing so, she included black and Hispanic students under the heading “minority.” She also performed the calculation of ± 10, 15 and 20% at the “grade group level.” Therefore, each school was compared to the percentage minority for its grade grouping, e.g., elementary school, middle school, or high school. These figures exclude special education. (Id. at 8, n. 7-8, Fig. 3) 10. Since the 1978 order, over 80% of students in the Brandywine, Christina, and Colonial school districts have attended schools within ± 10% of the district minority percentage. (Id. at 9, Fig. 3; DX 293) 11. Red Clay did not reach that level until 1992. Between 1978 and 1992 less than 80% but more than 60% of the students attended such a school. (Id.) 12. Since the 1978 order, over 90% of students in the Brandywine, Christina, and Colonial school districts have attended schools within ± 15% of the district minority percentage. (Id., Fig. 4; DX 294) 13. Red Clay did not reach that level until 1992. Between 1978 and 1992 less than 90% but more than 80% of the students attended such a school. (Id.) 14. Since the mid-1980s, the most common standard used in desegregation cases is a ± 20% of the percentage minority. Since the 1978 order, nearly 100% of students in the Brandywine, Christina, and Colonial school districts have attended schools within ± 20% of the district minority percentage. (D.I. 1935 at 416-418; DX 271 at 10, Fig. 5; DX 295) 15. While Red Clay did not reach that level until 1992, between 1978 and 1992 more than 90% of the students attended such a school. (Id.) 16. The next analysis offered by Dr. Ros-sell was a determination of the percentage of schools, as opposed to the percentage of students, which have operated within a ± 10% standard. Dr. Rossell performed this analysis excluding special schools. (D.I. 271 at 10, Fig. 6, n.a) 17. In 1993, between 86% and 94% of the schools in the 4 districts were currently within a ± 10% district minority percentage. (D.I. 271 at 10; DX 296) 18. More than 80% of the schools in Brandywine, Christina, and Colonial have met this standard since 1982. (D.I. 271 at 10, Fig. 6) 19. Red Clay did not reach that level until 1992. Between 1982 and 1992 less than 80% but more than 60% of its schools operated within a ± 10% of the district minority. (Id.) 20. The final analysis offered by Dr. Ros-sell was identical to the above, with one exception. Instead of utilizing the “grade grouping” method, Dr. Rossell used the “grade span” method which compares a school to the grades within the district encompassed by that school (i.e., instead of comparing a middle school with other middle schools, she compared a middle school of grades 6-8 with grades 6-8). This is the standard currently used by New Castle County for planning. (DX 271 at 11) 21. Using this standard, 95% of the schools in New Castle County are currently within a ± 10% district minority percentage, and since 1981, they have always been 85% or more. (Id., Fig. 7) 22. Although the court has never mandated a standard of review, Dr. David J. Armor, another defense expert, computed his figures using a ± 10% variance, computing separately by grade spans of elementary, middle, and high schools. Dr. Armor included both black and Hispanic students in his computations concerning “minorities” and excluded from all computation “self contained special education” schools. (D.I. 1936 at 738-740; DX 273 at 5-6) 23. Dr. Armor’s analysis was illustrated as follows: the x axis shows the years from 1981 (the year in which the 4 districts were formed) through 1993 (1994 data was not available at the time of his analysis); the y axis shows percentage of black and Hispanic enrollment; two solid lines define ± 10% limits, school by school. (D.I. 1936 at 742-44) Brandywine School District a. All the Brandywine elementary schools stayed within the ± 10% district minority percentage from 1981 through 1993. (D.I. 1936 at 745; DX 273 at 7, Fig. 1-1 through I-3) b. All the Brandywine middle schools stayed within the ± 10% district minority percentage from 1981 through 1993 with the exception of Burnett Middle School, which was converted to an elementary school in 1990. (D.I. 1936 at 746; DX 273 at 7, Fig. I-4) c. The only Brandywine high school to fall outside the variance was Claymont High School, which has since been closed. (D.I. 1936 at 746; DX 273 at 7, Fig. 1-5) Christina School District a.There are 18 Christina elementary schools. With 4 exceptions, all these schools have fallen within the ± 10% variance for the last 13 years. (DX 273 at 9, Fig. 1-12 through 1-16) Of these 4, 2 of the schools (Downes and Maclary) fell out of the variance only slightly and only for 1 year. (DX 273, Fig. 1-12,1-13) Maclary is now closed. The Pulaski Elementary School was increasingly above the ± 10% variance from 1986 through 1989; zone adjustments brought it within the variance in 1990. (Id. at 10) The Smith Elementary School was above the ± 10% variance in 1991 and 1992; zone adjustments, including the opening of a new school (Marshall) in 1993, brought this school back within the ± 10% variance. (Id.; D.I. 1936 at 758-59) b. All the Christina middle schools have been within the ± 10% variance since 1981. (D.I. 1936 at 759; DX 273 at 10, Fig. 1-17) c. All the Christina high schools have been within the ± 10% variance since 1981. (D.I. 1936 at 759; DX 273 at 10, Fig.I-18) Colonial School District a. There are 10 Colonial elementary schools. All but 2 have been within the ± 10% variance since 1983. (DX 273, Fig. I-19 through 1-21) Carrie Downes and Delaware City were outside the variance 2 and 3 years respectively, but have remained within the ± 10% variance since 1988. (Id., Fig. I-19) b. All of the Colonial middle schools have been within the ± 10% variance since 1981. (D.I. 1936 at 760-61; DX 273 at 11, Fig. I-22) c. There is only 1 Colonial high school, which is, by definition, racially balanced. (Id.) Red Clay School District a. 3 Red Clay elementary schools fell out of balance during the 1980’s, due to demographic changes (in the case of Richardson Park and Baltz) and the presence of the bilingual education program in the Lewis School. (D.I. 1936 at 748-760; DX 273 at 8, Fig. 1-6 through 1-8) b. In 1991, Red Clay instituted a new feeder pattern which brought all the formerly imbalanced elementary schools within the ± 10% district minority percentage. 1 elementary school was opened in 1991 and fell outside the variance for just 1 year. The Lewis School, still the center for bilingual education, fell outside the ± 10% variance in 1993. (D.I. 1936 at 749-751) c. Of the 5 Red Clay middle schools, the Conrad Middle School fell outside the ± 10% variance from 1986 through 1990. The H.B. duPont Middle School fell outside the ± 10% variance from 1984 through 1990. (DX 273, Fig. 1-9, 1-10) Dr. Armor attributes the increase in the Conrad Middle School to the same demographic shift that affected Baltz, i.e., a sudden large increase in the minority population in that area. (D.I. 1936 at 752) Since the reconfiguration of the feeder patterns in 1991, both schools have been within the ± 10% variance. (Id.) d. 2 of the 4 Red Clay high schools have remained within the ± 10% variance since 1981. (DX 273, Fig. 1-11) e. The A.I. duPont High School was below the ± 10% variance from 1983 to 1990, with the exception of 1988. (Id.) f. Wilmington High School has been within the ± 10% variance only since 1993. (Id.) The Four Districts 24.Review of the overall racial balance of the 4 school districts demonstrates that for 8 of 13 years, 80% or more of the schools met the ± 10% variance. (D.I. 1936 at 762; DX 273, Fig. 1-23) Specifically, 90% of the schools in Brandywine, Colonial, and Christina have met this variance for 10 or more years. For Red Clay, 80% have met the ± 10% variance for 8 of the 13 years. (DX 273 at 11) 25. From 1987 through 1991, just less than 70% of Red Clay’s schools met this standard. (DX 273, Fig. 1-23) 26. If a ± 20% standard is used, only 2 schools would fall outside — Wilmington High School (from 1985-1990) and Lewis Elementary School, both in the Red Clay Consolidated School District. (D.I. 1936 at 762-63; DX 273 at 12) 27. Dr. Leonard Stevens, plaintiffs expert, concedes that with respect to “traditional” schools, Brandywine, Christina, and Colonial have complied with the ± 10% standard and “attained building enrollments that are not racially identifiable ... [and] sustained them over a period of time.” (D.I. 1941 at 2472, 2488-89; PX 2166, 2167) 28. Dr. Stevens concedes as well that no federal court has adopted a ± 10% standard in a unitary status hearing, nor has Dr. Stevens ever before testified in a unitary status hearing in support of such a standard. (D.I. 1941 at 2507-2508) 29. The 4 districts are among the most racially balanced schools in the United States. (D.I. 1936 at 764-67; DX 271 at 11; DX 273 at 12) Student Assignment — Classrooms 30. The court-ordered reports reflect the percentage of children in classrooms which are 10-49% minority. (See, e.g., D.I. 1879) 31. Excluding special education and bilingual classes in the 1993-94 school year, an average of 80% of the students in the 4 districts attended classes which were 10-49% minority. Red Clay high schools had the lowest percentage of students in such classrooms, only 62%. Christina elementary schools had the highest percentage at 94%. (D.I. 1935 at 423; DX 271 at 12, Fig. 8) 32. Excluding special education and bilingual classes in the 1993-94 school year, an average of 85% of the students in the 4 districts attended classes that were within ± 20% of their schools’ percentage minority. Red Clay high schools had the lowest percentage with 64%. Colonial elementary schools had the highest, at 97%. (D.I. 1935 at 425; DX 271 at 13, Fig. 9) 33. Using a “standardized exposure measure” to calculate classroom imbalance, classroom imbalance in the 4 districts was found to be to Jé of the imbalance in a national sample of schools collected by the Office of Civil Rights in the United States Department of Education. (D.I. 1935 at 426-430; D.I. 1937 at 970-71; DX 271 at 16) 34. Although not articulated in this fashion by the experts, it is evident from the record that the “classroom imbalance” issue of concern to plaintiff is that ostensibly created by “tracking” or “ability grouping.” 35. There is substantial dispute among educators as to the meaning and effect of these terms. There can be no dispute that traditionally children have been assigned to various instructional groups on the basis of ability. The question, whether posed as one of “tracking” or “ability grouping,” is whether such assignments are accomplished on the basis of race or for the purpose of racial segregation. 36. The extent to which elementary and middle school students are placed in classes according to their ability is unclear from the record. (See PX 2252 at 13-20) 37. The record indicates that, for the period 1989-1994, minority children (blacks and Hispanics) in grades K-8 represented approximately 7-8% of those children (versus a participation rate of approximately 85% for white children) given the opportunity to par-tieipate in accelerated educational programs, admission to which is based on parental or faculty nomination and test scores. (D.I. 1945 at 3639; PX 2252 at 22-23, 32) 38. In 1993, the percentage of minorities in the self-contained honors and gifted student program at Burnett Elementary School who scored above 85% on exams is slightly greater than that for the other groups. (D.I. 1935 at 435; DX 271 at 21, Fig. 12) 39. Class selection in high school is done through a process which involves class presentations by guidance counselors, booklets with course descriptions, application by students in consultation with family, individual guidance from guidance counselors, and teacher input. (D.I. 1937 at 1148-53 and 1211-14; D.I. 1938 at 1527-38; D.I. 1939 at 1572-82) 40. Students may change levels during the school year. In Brandywine and Christina, where there has been a teacher recommendation, students and their families have the option of requesting a change in that level through a course change process. (D.I. 1938 at 1535; D.I. 1939 at 1583) At least in a number of schools, there is a waiver form which must be executed by the family if they request a placement that is not the one recommended by the school. The parents and student have the ultimate say in the level to which the student is assigned. (D.I. 1945 at 3642-43) 41. Minority students are not treated differently from nonminority students in the course selection process. (D.I. 1938 at 1537; see also D.I. 1937 at 1150; D.I. 1938 at 1527-38; D.I. 1939 at 1572-82) 42. Different levels of instruction are offered to students in academic subjects in the high schools of all 4 districts. (D.I. 1944 at 20; D.I. 1945 at 3597) 43. In the spring of 1994, less than 10% of all students (with the exception of Asian students in Brandywine and Red Clay) who were enrolled in at least one honors or advanced placement course were enrolled in all honors or advanced placement courses. (D.I. 1935 at 439) 44. In the spring of 1994, less than 30% of all students (with the exception of Asian students) had been enrolled in honors or advanced placement courses in the same subjects) throughout their high school career. (D.I. 1935 at 441; DX 271, Fig. 15) In each school district, however, more white than minority students had been kept at the same “honors” level throughout high school. 45. a. Approximately 81% of students in non-college prep English classes are also in non-college prep math classes. Approximately 80% of students in college prep English are also in college prep math. (D.I. 1945 at 3600-01; PX 2252 at 60; PX 2262) b. Approximately 81% of students in non-college prep math classes are also in non-college prep science classes. Approximately 79% of students in college prep math are also in college prep science. (PX 2252 at 61; PX 2262) c. More than 80% of students in non-college prep social studies classes are also in non-college prep science classes. More than 80% of students in college prep social studies are also in college prep science. (PX 2252 at 62; PX 2262) d. More than 90% of students not in honors classes in social studies are not in honors classes in science. Less than 80% of students who are in advanced social studies are also in advanced science. (D.I. 1945 at 3602; PX 2252 at 65; PX 2263) e. More than 90% of students not in honors classes in social studies are not in honors classes in English. Less that 80% of students who are in advanced social studies are also in advanced English. (PX 2252 at 64; PX 2263) f. More than 80% of students not in honors classes in science are not in honors classes in math. Less than 60% of students who are in advanced science are also in advanced math. (PX 2252 at 64; PX 2263) 46. A review of the percentages of the racial groups who were taking college and non-college prep classes illustrates that: a) a little over 50% of Brandywine’s black students in grades 9-12 were taking non-college prep English, whereas a little less than 20% of Brandywine’s white students were taking that level of English; b) a little over 60% of Christina’s black students in grades 9-12 were taking non-college prep English, whereas a little less than 25% of Christina’s white students were taking that level of English; c) a little over 50% of Colonial’s black students in grades 9-12 were taking non-college prep English, whereas a little less than 35% of Colonial’s white students were taking that level of English; d) a little over 40% of Red Clay’s black students in grades 9-12 were taking non-college prep English, whereas a little less than 17% of Red Clay’s white students were taking that level of English. (PX 2255) Less than 5% of black students were enrolled in advanced English in the high schools of the 4 districts; however, over 20% of white students were at that level. (PX 2256) 47. There is evidence that among high school students who achieve identical testing scores, black students were more likely to be placed in the lower level class than were white students. (D.I. 1945 at 3652-54; PX 2252 at 48; PX 2261A) 48. On the other hand, the percentage of minorities enrolled in honors and AP classes who scored over the 75th percentile in reading or math in the spring of 1993 is slightly