Full opinion text
MEMORANDUM OPINION AND ORDER MATSCH, Chief Judge. SUMMARY OF DECISION Pursuant to the following detailed findings of fact and the guidance of recent United States Supreme Court opinions, it is now determined that defendant School District No. 1, Denver, Colorado, (“District”) has complied in good faith with the desegregation decrees entered in this case and that the vestiges of past discrimination by the defendant have been eliminated to the extent practicable. The defendant’s second motion to terminate jurisdiction is granted and full authority is restored to the District’s Board of Education for governance of Denver’s schools under applicable laws of the State of Colorado and the United States. This civil action is, therefore, closed with a final order of dismissal. The allegations of failure to comply with the Language Rights Consent Decree of August 17, 1984, made by plaintiff-intervenor Congress of Hispanic Educators, are removed from this civil action and will be dealt with as a separate and independent proceeding designated as Civil Action No. 95-M-2313, with its own jurisdictional base under the Equal Educational Opportunities Act of 1974, codified in 20 U.S.C. §§ 1701-1721 and particularly §§ 1703(f) and 1708. The District filed its second motion to terminate jurisdiction on January 31,1992. The pre-trial statements included challenges to the constitutionality of Article IX, Section 8 of the Colorado Constitution, commonly called the “Busing Clause.” Upon receipt of notice, as required by 28 U.S.C. § 2403(b), the Attorney General of the State of Colorado moved to intervene as a defendant on a cross-claim and counterclaim for declaratory judgment affirming the validity of that provision. The motion to intervene was granted. The plaintiffs, plaintiff-intervenors and defendant District seek a judgment declaring the Busing Clause to be a violation of the Fourteenth Amendment of the United States Constitution. They contend that this state restriction adversely affects the District’s ability to implement Resolutions 2233 and 2314, as set out in a stipulation of facts filed July 29,1994. By adopting those resolutions, the District’s Board of Education has resolved to make future changes in the current pupil assignment plan only through specified procedures after termination of this court’s jurisdiction. A decision on the Busing Clause issue is necessary to guide the District upon termination of this court’s jurisdiction. In relevant part, Article IX, Section 8 of the Colorado Constitution provides: No sectarian tenets or doctrines shall ever be taught in the public school, nor shall any distinction or classification of pupils be made on account of race or color, nor shall any pupil be assigned or transported to any public educational institution for the purpose of achieving racial balance. On its face this language prohibits the use of race or color as a basis for treating students differently and precludes the adoption of “racial balance” as the goal in making pupil assignments. As explained hereafter, the Busing Clause is not inconsistent with the Fourteenth Amendment of the U.S. Constitution. HISTORY From 1960 to 1969, the District’s Board of Education pursued a deliberate policy of racial segregation in Denver’s schools. The Board actively attempted to contain what was then called the “Negro” population by keeping black families out of the Park Hill area, a residential neighborhood east of Colorado Boulevard. As a result, segregation in Denver schools was de jure, meaning that it was created by the deliberate acts of the governing authority. Some Board members tried to reverse these discriminatory practices, but their efforts to integrate some of the schools were repudiated in a school board election in May, 1969. This lawsuit began in June, 1969, when the original plaintiffs, children in the Denver Public Schools, challenged the constitutionality of the Board’s discriminatory acts. The case has had a long history, and has been the subject of many court opinions. The District’s obligation in this case has always been to remove the effects of its own past discriminatory policies. No school district has responsibility under the Constitution to eradicate the effects of racial discrimination by other agencies of government or in the larger community. Milliken v. Bradley, 418 U.S. 717, 738-45, 94 S.Ct. 3112, 3124, 41 L.Ed.2d 1069 (1974). The United States Constitution does not burden public education with remedying all of the disadvantages experienced by racial or ethnic groups in this nation’s history. There is hope that education will enlighten and energize societal efforts to relieve and redress injustice and unfairness, but the courts have neither the competence nor the power to compel public schools to make that effort. Determining whether the District has fulfilled its constitutional obligation requires revisiting earlier decisions in this case to recall the particular discriminatory conduct that caused court intervention. The case was originally assigned to Judge William E. Doyle, who discussed the history of the District’s discriminatory policies in the following passage, taken from an early Keyes opinion: Prior to 1950, the Negro population of Denver was concentrated in a portion of the city known as “Five Points,” which is located west of Park Hill. Beginning in 1950, the Negro population began an eastward migration which, by 1960, had reached Colorado Boulevard, a natural dividing line. Since 1960, this migration has extended east of Colorado Boulevard into Park Hill.... Barrett Elementary School was opened in 1960 at East 29th Avenue between Jackson Street and Colorado Boulevard. The site selected for Barrett, along with the size of the school and its established boundary lines insured that it would be a segregated school from the date of its opening.... Between 1960 and 1965, several boundary changes were made in the Park Hill area and mobile units were employed in some Park Hill schools to relieve overcrowding. The effect of these various acts on the racial composition of Park Hill schools was identical. Each tended to isolate and concentrate Negro students in those schools which had become segregated in the wake of Negro population influx into Park Hill while maintaining for as long as possible the Anglo status of those Park Hill schools which still remained predominantly white.... [I]n 1962 a Special Study Committee on Equality of Educational Opportunity in the Denver Public Schools (Voorhees Committee) was created. Following a thorough study, the Committee recommended that the School Board consider racial, ethnic and socioeconomic factors in establishing boundaries and locating new schools, and that boundaries be set so as to establish heterogeneous school communities. Pursuant to this recommendation, the Board adopted Policy 5100, which called for changes or adaptations which would result in a more diverse or heterogeneous racial and ethnic school population. A second study committee (Berge Committee) was established in 1966 to examine the policies of the Board with respect to the location of new schools in Northeast Denver and to suggest changes which would lead to integration of student population in Denver schools. This committee recommended that no new schools be built in Northeast Denver; that a cultural arts center be established which would be attended by students from various schools on a half-day basis once or twice a week; that educational centers be created; and that a superior school program be initiated for Smiley and Baker junior high schools. After more than six years of studying and discussing these committee reports and recommendations, the Board in 1968 passed the “Noel Resolution” (Resolution 1490). The “Noel Resolution” noted that Policy 5100 recognized that continuation of neighborhood schools had resulted in the concentration of minority racial and ethnic groups in some schools within the District and that these schools provided an unequal educational opportunity. The Resolution directed the Superintendent of Schools to submit to the Board a comprehensive plan for the integration of the Denver Public Schools. Pursuant to the “Noel Resolution’s” directive, the Superintendent submitted a report entitled “Planning Quality Education — A Proposal for Integrating the Denver Public Schools.” Between January and April 1969, the Board studied the Superintendent’s report and passed three resolutions — 1520, 1524 and 1531. These Resolutions were the product of intense study and discussion and were developed only after considering some fourteen alternative plans. Basically, their purpose was to eliminate segregation in the Negro schools in Park Hill while stabilizing the racial composition of schools in transition. Thus, these Resolutions constituted the first acts of departure from the Board’s prior undeviating policy of refusing to take any positive action which would bring about integration of the Park Hill schools. In May 1969, a School Board election was held. Much of the campaign revolved around Resolutions 1520, 1524 and 1531, especially those portions which called for mandatory bussing to relieve segregation. The two candidates who had pledged to rescind Resolutions 1520, 1524 and 1531 were elected. On June 9, 1969, the three Resolutions were rescinded and in their stead the Board passed Resolution 1533, which sought to achieve desegregation on a voluntary basis. The rescissions were effectuated with little study and were justified only as a response to the community sentiment expressed in the School Board election. Keyes IV, 313 F.Supp. at 64-66. Following evidentiary hearings and a trial on the merits, Judge Doyle found that the District had engaged in seven specific de jure segregative acts, each directly related to the Board’s attempt to preserve predominantly white schools in Park Hill. First, the Board located a new elementary school, Barrett School, in 1960 to contain the eastward movement of the black population in northeast Denver. Second, the Board ignored study committee proposals in 1962 and 1966 for rezoning attendance areas to minimize the effects of de facto residential segregation. Third, the Board used mobile classrooms to accommodate overcrowding at predominantly black schools. Fourth, the Board added eight new classrooms at Hallett School to house an expanding black student body. Fifth, in 1962 and 1964, by manipulating school boundaries in Park Hill, the Board further isolated black children. Sixth, the Board staffed minority schools with disproportionately high numbers of probationary teachers, teachers with less than ten years of experience, and minority teachers. Seventh, the Board rescinded Resolutions 1520, 1524 and 1531 to perpetuate segregation in Park Hill area schools. Keyes I, 303 F.Supp. 279, 282-85 (D.Colo.1969); Keyes II, 303 F.Supp. 289, 295 (D.Colo.1969); Keyes IV, 313 F.Supp. 61 (D.Colo.1970). The first court ordered desegregation plan, imposed by Judge Doyle in 1970, was limited to Park Hill area schools found to be segregated as a direct result of the District’s discriminatory conduct. Judge Doyle found that the segregated conditions in areas to the west and southwest of Park Hill had also produced inferior schools with unequal educational opportunities, but this first desegregation plan was limited to the deliberately segregated Park Hill schools. See Keyes V, 313 F.Supp. 90 (D.Colo.1970). On appeal, the United States Supreme Court greatly expanded the scope of this litigation by concluding that, absent the existence of natural boundaries dividing Denver into separate, unrelated units, the demonstrated deliberate segregation of Park Hill schools necessarily east the entire school district as a segregated, “dual” system. The Supreme Court said this of Denver: [W]here plaintiffs prove that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system. Several considerations support this conclusion. First, it is obvious that a practice of concentrating Negroes in certain schools by structuring attendance zones or designating “feeder” schools on the basis of race has the reciprocal effect of keeping other nearby schools predominantly white. Similarly, the practice of building a school — such as the Barrett Elementary School in this case — to a certain size and in a certain location, “with conscious knowledge that it would be a segregated school,” 303 F.Supp., at 285, has a substantial reciprocal effect on the racial composition of other nearby schools. So also, the use of mobile classrooms, the drafting of student transfer policies, the transportation of students, and the assignment of faculty and staff, on racially identifiable bases, have the clear effect of earmarking schools according to their racial composition, and this, in turn, together with the elements of student assignment and school construction, may have a profound reciprocal effect on the racial composition of residential neighborhoods within a metropolitan area, thereby causing further racial concentration within the schools. Keyes VII, 413 U.S. 189, 201-02, 93 S.Ct. 2686, 2694, 37 L.Ed.2d 548 (1973). On remand, Judge Doyle conducted a second trial and concluded: The Supreme Court’s viewpoint based on the record before it is that the Denver school system is a dual system. There can be no doubt as to its view of the case in the absence of new and cogent evidence.... Under the Court’s definition it cannot be argued that within a unified school district such as that at bar there can exist conscious and knowing segregation in one area and innocent segregation in another. The conclusion is therefore inescapable that the Denver system is a dual system within the Supreme Court’s definitions. In accordance with the evidence presented and with the mandate given to us by the Supreme Court, we so conclude. Keyes VIII, 368 F.Supp. 207, 210 (1973). In 1974, Judge Doyle ordered a city-wide desegregation plan. Even that plan was found to be inadequate by the Tenth Circuit Court of Appeals in 1975. A year after remand, in March, 1976, the parties agreed upon a comprehensive remedial plan, which Judge Doyle approved. The stipulated plan provided for pairing many elementary schools (which were divided into primary and intermediate grades), designated satellite areas, changed attendance zones and established percentage ratios of Anglo to minority students as guidelines for measuring segregation at elementary, junior high and high school levels. Requirements for operation of the District in other aspects were included. The pupil assignment portion of the plan required the transportation of many students and many of them had to ride buses for long distances. In 1976 this case was reassigned because Judge Doyle had been appointed to the Tenth Circuit Court of Appeals. The District had requested that no changes be made in the agreed plan for three years, in the interest of stability and continuity. That request was honored. The only changes made during those three years were ones requested by the District for limited purposes at particular schools. In the following years some modifications were made at the request of the Board and the court entered certain additional orders to accommodate changing circumstances, including the racial composition of a declining student population. In 1984 the District filed its first motion to terminate this court’s jurisdiction. That motion was denied in a Memorandum Opinion and Order entered June 3,1985, published as Keyes XIV, 609 F.Supp. 1491, in which the court reviewed the history of the litigation, the record of the District’s compliance with the requirements of the 1974 Final Decree, as amended in 1976, and the prospects for resegregation indicated in the evidence presented at hearings held in May, 1984. At the request of all parties, the court did not order any further remedial steps for more than a year while negotiations proceeded in an effort to bring this litigation to a close with a final settlement. After receiving notice that no settlement could be reached, the court directed further proceedings on four particular matters which had prevented a declaration of unitary status: (1) the identification of Barrett, Harrington and Mitchell elementary schools as schools for minority children, (2) the “hardship” transfer policy, (3) faculty assignments and (4) inadequate plans for implementation of Resolution 2233. After an evidentiary hearing in March, 1986, and full briefing on the issues, a Memorandum Opinion and Order was entered on February 25, 1987, published as Keyes XVI, 653 F.Supp. 1536, authorizing the District to proceed with its plans to remedy the remaining vestiges of its past discriminatory policies. Alternative proposals made by the plaintiffs and plaintiff-intervenors were rejected. The assumption was that this case would follow the normal course of any action in equity, ending with entry of a final decree of permanent injunction to guide future action and protect against resegregation. Toward that end, an Interim Decree was issued on October 6, 1987, supported by another Memorandum Opinion and Order, published as Keyes XVII, 670 F.Supp. 1513. That Interim Decree, superseding all prior remedial directives, gave the Board of Education considerable freedom to make changes necessary to adjust to new circumstances. In effect, it was a partial withdrawal of jurisdiction and a return of substantial authority to the Board of Education. The court recognized that the case was entering its final phase and entered the following orders directed toward the development of a final decree of permanent injunction: 1. The defendants, their agents, officers, employees and successors and all those in active concert and participation with them, are permanently enjoined from discriminating on the basis of race, color or ethnicity in the operation of the school system. They shall continue to take action necessary to disestablish all school segregation, eliminate the effects of the former dual system and prevent resegregation. 2. The defendants are enjoined from operating schools or programs which are racially identifiable as a result of their actions. The Board is not required to maintain the current student assignment plan of attendance zones, pairings, magnet schools or programs, satellite zones and grade-level structure. Before making any changes, the Board must consider specific data showing the effect of such changes on the projected racial/ethnic composition of the student enrollment in any school affected by the proposed change. The Board must act to assure that such changes will not serve to reestablish a dual school system. 3. The constraints in paragraph 2 are applicable to future school construction and abandonment. 4. The duty imposed by the law and by this interim decree is the desegregation of schools and the maintenance of that condition. The defendants are directed to use their expertise and resources to comply with the constitutional requirement of equal educational opportunity for all who are entitled to the benefits of public education in Denver, Colorado. 5. The District retains the authority to initiate transfers for administrative reasons, including special education, bilingual education and programs to enhance voluntary integration. The defendants shall maintain an established policy to prevent the frustration, hindrance or avoidance of a District student assignment plan through parent initiated transfers and shall use administrative procedures to investigate, validate and authorize transfer requests using criteria established by the Board. If transfers are sought on grounds of “hardship,” race, color or ethnicity will not be a valid basis upon which to demonstrate “hardship.” The defendants shall keep records of all transfers, the reasons therefor, the race, color or ethnicity of the student, and of the effects on the population of the transferee and transferor schools. 6. No student shall be segregated or discriminated against on account of race, color or ethnicity in any service, facility, activity, or program (including extracurricular activities) conducted or sponsored by the school in which he or she is enrolled. All school use or school-sponsored use of athletic fields, meeting rooms, and all other school related services, facilities and activities, and programs such as commencement exercises and parent-teacher meetings which are open to persons other than enrolled students, shall be open to all persons without regard to race, color or ethnicity. The District shall provide its resources, services and facilities in an equitable, nondiscriminatory manner. 7. The defendants shall maintain programs and policies designed to identify and remedy the effects of past racial segregation. 8. The defendants shall provide the transportation services necessary to satisfy the requirements of this interim decree notwithstanding the provisions of Article IX, Section 8 of the Colorado Constitution. 9(A). The principals, teachers, teacher-aides and other staff who work directly with children at a school shall be so assigned that in no ease will the racial or ethnic composition of a staff indicate that a school is intended for minority students or anglo students. (B). Staff members who work directly with children, and professional staff who work on the administrative level will be hired, assigned, promoted, paid, demoted, dismissed, and otherwise treated without regard to race, color or ethnicity. (C). Defendants are required to use an effective affirmative action plan for the hiring of minority teachers, staff and administrators with the goal of attaining a proportion which is consistent with the available labor force; the plan shall contain yearly timetables and a reasonable target date for the attainment of the affirmative action goals. 10. The District will continue to implement the provisions of the program for limited English proficiency students heretofore approved by the Court in the Language Rights Consent Decree of August 17, 1984. Nothing in this interim decree shall modify or affect the Language Rights Consent Decree of August 17, 1984, and the prior orders entered in this case relating thereto shall remain in full force and effect. 11. It is further provided that this interim decree is binding upon he defendant Superintendent of Schools, the defendant School Board, its members, agents, servants, employees, present and future, and upon those persons in active concert or participation with them who receive actual notice of this interim decree by personal service or otherwise. 12. This interim decree, except as provided herein, shall supersede all prior in-junctive orders and shall control these proceedings until the entry of a final permanent injunction. On appeal, the Tenth Circuit Court of Appeals affirmed this court’s denial of the motion to relinquish jurisdiction, based on this court’s factual determination that the District had not achieved unitary status. The court of appeals, however, concluded that portions of the Interim Decree were invalid because they were not reasonably specific as required by Fed.R.Civ.P. 65(d) and merely required the District to obey the law. Accordingly, paragraph 4 was stricken and paragraphs 1 and 7 were considered to continue in effect so much of the prior injunction as required the District “to disestablish a formerly dual system” and “eliminate the effects of past racial segregation.” Keyes XVIII, 895 F.2d 659, 668-69 (10th Cir.1990). Thus, the District was left to its own devices in completing the task of disestablishing the segregated system, and eliminating the vestiges of that system by removing the disadvantages to racial minorities resulting from it. ANALYSIS Recent United States Supreme Court decisions have provided new guidance for trial courts in bringing school desegregation cases to a close. This court’s assumption that this. civil action would end with a final injunctive decree was removed by the Supreme Court in Board of Education of Oklahoma City v. Dowell, 498 U.S. 287, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). There the Court reversed the Tenth Circuit Court of Appeals and said that injunctive orders in school desegregation cases differ from equitable decrees in antitrust and other types of litigation. The Supreme Court directed federal district courts to close these school cases with final orders relinquishing jurisdiction and returning full governance of the schools to local control, when the defending district makes a sufficient showing that it has achieved unitary status. Before the Supreme Court decided Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), this and other lower federal courts struggled, without much success, to try to define “unitary status.” Generally, it was considered to be the opposite of the prohibited “dual system.” Accordingly, the prevailing view was that courts must retain supervisory jurisdiction until the offending districts proved that all of the components of a school system, as identified in Green v. New Kent County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), were free from racial discrimination. In Freeman, the Supreme Court repeated the statement from Dowell that in the final phases of a desegregation case the district court’s duties are to determine whether there has been compliance with the desegregation decree since it was entered and whether the vestiges of past discrimination were eliminated to the extent practicable, giving separate consideration to each component. The constitutional authority of the federal courts is limited to compelling the elimination of negative effects of de jure discrimination; it does not include the power to posit any particular affirmative achievements. In Freeman and Dowell, the Supreme Court has reminded district courts of their duty to recognize that educational policy is to be determined through the democratic process. Freeman v. Pitts, 503 U.S. 467, 489-90, 112 S.Ct. 1430, 1444-45, 118 L.Ed.2d 108 (1992); Board of Education of Oklahoma City v. Dowell, 498 U.S. 237, 247-48, 111 S.Ct. 630, 636-37, 112 L.Ed.2d 715 (1991). The Supreme Court again emphasized the limited authority of Federal courts in desegregation cases in Missouri v. Jenkins, - U.S. -, -, 115 S.Ct. 2038, 2053-56, 132 L.Ed.2d 63 (1995). These recent Supreme Court decisions establish the standards for measuring the defendant’s present position. The plaintiffs agree that the indicia of de jure segregation have been removed from student assignments, faculty, staff, transportation, extra curricular activities and facilities, as required by Green, but ask this court to retain some residual control on the ground that racial disparities in discipline, drop-out rates and participation in gifted and talented programs may be remaining vestiges of the dual system. Plaintiff-intervenors agree and add that the District has failed to recruit and hire adequate numbers of minority teachers and administrative staff under paragraph 9(C) of the Interim Decree, and has failed to advance minority administrators. Thus, the plaintiffs and plaintiff-interve-nors recommend only a partial release of jurisdiction, freeing the District from court control over pupil assignment plans and most other aspects of governance, but requiring the District to evaluate these performance disparities and propose remedies for removal of them. The plaintiff-intervenors ask for orders requiring the District to set specific goals and timetables for increased hiring of minority teachers and improving opportunities for minority faculty and staff to advance in administrative positions. The proposal of the plaintiff-intervenors that this court retain jurisdiction and require further affirmative action in the District’s employment practices goes well beyond the requirement that Denver’s schools become unitary. As will be seen in the detailed findings of fact, the District has continuously made a good faith effort to comply with paragraph 9(C) and all other provisions of the Interim Decree. To now obligate the District further would go beyond remediation of past discriminatory conduct. In the future, the District’s use of race and ethnicity in employment practices will be subject to the constitutional limitations articulated by the Supreme Court in recent opinions, including Adarand Constructors, Inc. v. Pena, - U.S. -, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), and the requirements of applicable state and federal statutes. The Supreme Court’s opinion in Missouri v. Jenkins, — U.S. -, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995), defeats the plaintiffs’ call for compelling additional action to investigate and redress racial disparities in student achievements and participation in special programs for gifted and talented pupils. This court has never made any findings that such differences are the result of discrimination by the District. On the contrary, ten years ago, this court said: [Tjhere is nothing in the law which does or could require equality in the results of educational services.... No school policy and no court order can assure any particular level of success in public schools any more than in any other aspect of life. Individual students will flunk, become disciplinary problems, drop out or otherwise fail to meet expectations for reasons wholly unrelated to race, ethnicity, and environment. Keyes XIV, 609 F.Supp. at 1515, 1498. The evidence received at the August, 1994, hearing does not support any finding of new discriminatory conduct as reasons for these differences in student achievement. Analysis of that evidence is contained in the detailed findings of fact that appear later in this opinion. THE FUTURE Congress, the Colorado General Assembly and the general electorate have enacted laws having significant impacts on the operation of public schools. Many of those enactments have not been applicable to Denver schools while the District was under the supervisory jurisdiction of this court. The entry of a final order terminating jurisdiction removes the Denver District from its unique status among Colorado school districts. Accordingly, it is now subject to the laws applicable to all of those districts, in the absence of any constitutional infirmity in them. All parties have stipulated that substantial parts of the existing pupil assignment plan would be impacted by immediate enforcement of the Busing Clause of the Colorado Constitution. Some transportation, enrollments in the paired schools and current integration requirements for magnet/special school programs as well as voluntary integrative transfers would have to be eliminated if these prohibitions were now enforced without regard for the history of this case. Additionally, it is agreed that an inability to use transportation under the present plan would result in making some schools more than 90% minority and some more than 80% minority or white. The statutory provision authorizing denial of requests for transfers under Colorado’s Public Schools of Choice Act because of an adverse effect on the desegregation plan is arguably unavailable after the order of dismissal. The State believes that the Busing Clause permits voluntary programs not specifically designed to improve racial balance but which might have that effect at a particular school. Thus, a school in a racially unbalanced neighborhood may be designated a magnet school and children may be transported to it if they wish to attend. The Busing Clause in the Colorado Constitution and the statutes applicable to public schools will present many challenging questions as Denver continues to provide educational opportunities in a multiracial, multicultural urban society. Future litigation may arise concerning the effect of these laws. The only question now before this court is whether the Busing Clause is incompatible with the District’s duty to provide educational opportunities without racial or ethnic inequalities. The answer is no. The words “integration” and “desegregation” are not synonyms. Brown v. Board of Education and all of its progeny hold that the Constitution prohibits segregation of races in public schools with a purpose to impose disadvantages because of race. There is no constitutional corollary requiring the mixture of races according to some formula reflecting the constituency of the community served by a single school system. Thus, de jure racial segregation is prohibited but racial integration is not required. The process of changing an unconstitutionally segregated “dual” public school system into “unitary status” has often been described as integration of the schools. Race and ethnicity must necessarily be considered in the guidelines and objective criteria used to direct the process of desegregation and measure its progress. Thus, to remedy intentional segregation, a court may require that racial isolation of schools be eliminated by pupil assignments and compulsory transportation to more nearly reflect the composition of the district as a whole. The Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) considered the prohibition, contained in Title IV of the Civil Rights Act of 1964 and codified at 42 U.S.C. § 2000c-6(a), against the use of federal funds to achieve “racial balance.” In Swann the Supreme Court observed: The proviso in § 2000e-6 is in terms designed to foreclose any interpretation of the Act as expanding the existing powers of federal courts to enforce the Equal Protection Clause. There is no suggestion of an intention to restrict those powers or withdraw from courts their historic equitable remedial powers. The legislative history of Title IV indicates that Congress was concerned that the Act might be read as creating a right of action under the Fourteenth Amendment in the situation of so-called “de facto segregation,” where racial imbalance exists in the schools but with no showing that this was brought about by discriminatory action of state authorities. Swann, 402 U.S. at 17-18, 91 S.Ct. at 1277 (emphasis in original). Writing for the court, Chief Justice Burger went on to caution lower federal courts to focus their remedial powers on dismantling dual systems rather than achieving perfect racial balance. That admonition became very clear in Pasadena City Board of Edu cation v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976). In that case, the Supreme Court rejected an absolutist edict that no school could have a majority of minority students as being inconsistent with the opinion in Swann, rejecting the notion that there is a constitutional right to any particular degree of racial balance. Thus, the Supreme Court has drawn a distinction between the temporary use of racial markers to remedy the effects of unlawful discrimination and the use of such racial identifiers for other governmental purposes, including educational policy. That is consistent with the Supreme Court’s interpretation of the Fourteenth Amendment in the context of other governmental action. In considering affirmative action in employment as in Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) and in contracting as in Adarand Constructors, Inc. v. Pena, — U.S. -, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), the Supreme Court directed strict scrutiny of governmental use of racial classifications to determine whether they are justified as narrowly tailored attempts to achieve some legitimate governmental purpose. The use of racial criteria in the pupil assignment and school attendance zones plan in effect in Denver at the time of the last hearing in this case is justified because it was required to comply with the duty to remove the vestiges of the segregated system to the extent practicable. The plaintiffs, plaintiff-intervenors and defendant contend that the Busing Clause of the Colorado Constitution is invalid under Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982). There, the Supreme Court struck down a state law, enacted through an initiative, which removed from local school boards the authority to assign students to schools other than neighborhood schools. The Washington initiative provided: no school board ... shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student’s place of residence.... Washington v. Seattle School District No. 1, 458 U.S. at 462, 102 S.Ct. at 3190-91. Many exceptions to that broad prohibition were authorized by the initiative, based upon such neutral factors as safety, overcrowding, inadequate facilities or programs — essentially every reason other than racial integration. The initiative was passed after the Seattle school board adopted a pupil assignment plan to integrate schools which were racially identifiable because they were in segregated neighborhoods. The rationale of the Washington opinion written by Justice Blackmun was adopted from a decision by a three-judge court in Lee v. Nyquist, 318 F.Supp. 710 (W.D.N.Y.1970), aff'd mem. 402 U.S. 935, 91 S.Ct. 1618, 29 L.Ed.2d 105 (1971), and an earlier Supreme Court case, Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969). Justice Blackmun wrote that those cases yielded the following central principle: [T]he political majority may generally restructure the political process to place obstacles in the path of everyone seeking to secure the benefits of governmental action. But a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decision making process. Washington v. Seattle School District No. 1, 458 U.S. at 470, 102 S.Ct. at 3195 (emphasis in original). The Washington opinion does not support the broad contention that a state is barred from preventing the local adoption of voluntary integration plans to address de facto segregation. Rather, the Washington case is another step in the evolution of Equal Protection Clause jurisprudence and must be read in the context of the later cases already discussed. The constitutional restriction is on the use of governmental power, including enactments through the processes of direct democracy in the initiative and referendum, to base policy decisions on race. As read by the Supreme Court, the Washington initiative only prevented school boards from assigning students away from their neighborhood schools for the purpose of racial integration. Thus, the initiative had a racial purpose. Although the Supreme Court in its Washington opinion did not proceed with a strict scrutiny analysis, it is obvious that the state of Washington could not justify the initiative’s prohibition as a narrowly tailored attempt to advance a compelling governmental interest. Article IX, Section 8 of the Colorado Constitution is significantly different from the Washington provision. The Busing Clause is preceded by a prohibition on the use of race or color in making any distinction or classification of pupils. That is entirely consistent with the Fourteenth Amendment. In the Busing Clause, the restriction on the authority to assign or transport pupils to public schools is applicable only when used “for the purpose of achieving racial balance.” As previously noted, the term “racial balance” has developed a particular meaning which is presumably the intention of the Colorado electorate. Students may not be assigned or bused to schools to meet racial quotas in those schools. That is different from saying that race may never be a factor in pupil assignments. The Colorado Attorney General recognized this limitation on the applicability of the Busing Clause in footnote 2 in the State’s post-hearing brief, filed December 23, 1994, as follows: Enforcement of the Busing Clause does not mean an end to efforts to integrate the schools. As the State observed in its Reply Brief, when the Busing Clause is enforced, there will be a multitude of measures which the DPS, limited only by its creativity, could utilize to promote integration. For example, the school district, like any school district in the State, could engage or continue to engage in mandatory busing as a means of eliminating overcrowding or providing equal access to unique and innovative educational opportunities or facilities. The Busing Clause in the Colorado Constitution is not materially different from legislative restraints imposed by Congress on the use of federal funds and the actions of federal agencies in the Equal Educational Opportunities Act of 1974, 20 U.S.C. §§ 1701-1721. There are other state and federal statutory requirements which the District now must follow. A listing of them appears in Appendix A to this opinion. Comment on each of them is inappropriate, and this court may not give advisory opinions. It is sufficient to say that obedience to the plain language requirements of these laws materially and significantly affects the future directions of the Denver school system. They also provide protections against racially discriminatory acts. A reading of these laws demonstrates the influence and effects of the greater empowerment of minority groups that has occurred since the Supreme Court first ordered the desegregation of public schools in Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). The pupil assignment plan in effect at the time of the August, 1994 hearing does not violate the Busing Clause because it was not adopted for the purpose of achieving racial balance. It was another phase — now viewed as the final phase — in the long and difficult process of removing the vestigial effects of an unlawful policy of racial separation as ordered by this court. The plain language of the Busing Clause makes its applicability dependent upon the motivation of the Board. The Colorado Constitution does not prohibit all busing. What is prohibited is assignment and transportation of public school pupils according to a preconceived plan of racial mixture. There is nothing in the Colorado Constitution or in the other statutes which will now be in full force and effect in Denver to prohibit the Board from pursuing pluralism and racial integration as positive objectives of public education, as announced in Resolutions 2233 and 2314. The limitations are as to the means which may be used to meet those goals. Accordingly, the Board will necessarily modify some provisions in the resolutions in making future changes. The study and monitoring called for by these resolutions may demonstrate some additional vestiges of past discrimination. All that has been determined here is that the vestiges of de jure segregation shown to this court have now been eliminated to the extent practicable. What is not practicable now may become so in the future and additional vestiges of past discrimination may be revealed in the future. If the Board’s motivation in making changes to the pupil assignment plan is to further remedy some racial disadvantage shown to have resulted from the District’s past discriminatory policies, the Board may proceed with such changes so long as they are not intended to achieve some pre-determined level of racial balance. FINDINGS OF FACT Based on the evidence received at the hearing on the District’s second motion to terminate jurisdiction, the court finds that the following facts have been established. Good Faith Compliance With the Interim Decree The District has complied in good faith with the Interim Decree entered by this court in 1987. That good faith compliance is demonstrated by the actions taken by the District to (1) correct the racial isolation at Barrett, Harrington, and Mitchell Elementary Schools; (2) implement and administer the Hardship Transfer Policy to prevent the use of hardship transfers to circumvent the student assignment plan; and (3) implement and administer modifications in the District’s Teacher Assignment Policy. Racial Isolation at Barrett, Harrington and Mitchell Elementary Schools The Board has addressed the racial isolation at Barrett, Harrington and Mitchell Elementary Schools with program innovations at those three schools as well as at the elementary schools with which those schools were paired (Cory, Ellis, and Force, respectively). Educational enhancements have included Academic Achievement Centers located at Cory, Force, and Harrington; a Montessori Program at Mitchell; a computer-assisted instructional laboratory at Barrett, Ellis, and Mitchell; a Whole Language Program at Barrett; a Mastery Learning Program at Harrington; and Highly Gifted Programs at Barrett, Cory, Ellis, and Harrington. All three of the pairs had reduced class size in the first and second grades to personalize instruction and provide opportunities for instructional intervention early in a student’s career. All three pairs have been involved in efforts to enhance the communication between the paired schools, promoting the concept of one school in two buildings. These efforts include telephone calls from the principal of the intermediate paired school to the parents of children scheduled to move to that school, visits by students attending the intermediate paired school with students at the primary paired school to discuss the positive features of the intermediate school, conducting school tours at the intermediate school for the parents of the primary paired school students, and holding shared social activities for the students from the two paired schools. The Academic Achievement Center Program began during the summer of 1986 with a federally-funded pilot effort involving the fourth and fifth grade students at Cory, Force, and Harrington. By the 1987-1988 school year, the District was funding the three Academic Achievement Centers as well as the computer assisted instruction classes located at the three Centers’ paired schools, ie., Barrett, Mitchell, and Ellis. Prior to the 1994-1995 school year, the Academic Achievement Centers served students in grades three, four, and five who scored between the 30th and 50th percentile in reading and mathematics. At these sites, students received intensive, individualized instruction with the aid of computers. The decision to discontinue these Centers during the 1994-1995 school year was based largely on cost. The Montessori Program established at Mitchell provides the opportunity for students age three through grade six to be guided through a curriculum that includes practical life exercises, sensory exercises, language arts, mathematics, and cultural and social studies. Specially trained teachers prepare a learning environment that promotes the students’ total development. Enrollment at Mitchell has been limited on a racial/ethnic basis. The changing demographics of the District caused a change in Magnet/Special School Enrollment Guidelines for Mitchell’s Montessori Program, from 50% minority and 50% white, to 60% minority and 40% white enrollment within each grade. Priority is given to students residing within the Mitchell attendance area with eligible students in each grade being selected through a computer lottery. Both Harrington and Barrett were selected as sites for the District’s Highly Gifted Program to attract Anglo students to the schools. These programs and educational enhancements have corrected racial isolation at Barrett, Harrington, and Mitchell without any material adverse impact on the racial balance occurring at their paired schools. Four drive-by shooting incidents that occurred during 1992 may have influenced some decline in the percentage of Anglo students attending Harrington in the 1993-1994 school year. Harrington’s efforts to become a year-round school focusing on instruction in foreign languages and multicultural education, and the completion of a new facility for Harrington on a different and significantly larger site adjacent to a spacious city park may increase Anglo enrollment at Harrington in the future. Neither plaintiffs nor plaintiff-intervenors dispute that the District has effectively remedied student assignments at Harrington, Barrett, and Mitchell, and both agree that jurisdiction should be terminated in the area of student assignments. Hardship Transfer Policy Board Policy 1226(D), approved in the February 25,1987 Memorandum Opinion and Order published as Keyes XVI, 653 F.Supp. 1536, set stricter standards for the granting of parent-initiated hardship transfers and prescribed detailed procedures for implementing those standards. Under the policy, parent-initiated transfers are permitted only in instances where genuine necessity is demonstrated. Pursuant to the policy, parent-initiated requests for transfers must be (1) timely filed, (2) supported by a statement of the race or ethnicity of the student seeking the transfer, (3) supported by an affidavit setting forth in detail the reasons why day-care arrangements are required and why a particular daycare center or other person has been selected for the needed care, (4) investigated by the principal from the student’s assigned school who makes a recommendation with regard to the request, (5) reviewed by the principal of the school to which the student seeks to transfer, and (6) reviewed and finally acted upon by a member of the central administration (currently a member of the Department of Planning, Research, and Program Evaluation). The principal from the student’s assigned school must make certain that all required information has been provided and verify the location of the day care provider and the employment of the parents. If the required information cannot be verified, the request will be denied. Principals at the assigned schools will also invite parents requesting the transfer to visit the school building to discuss alternatives that would not necessitate a student transfer. The Department of Planning, Research, and Program Evaluation reviews all parent-initiated transfers to verify the existence of genuine necessity. If the evidence shows that a parent is “shopping” for day care, the request will be denied. Detailed records of various types of transfers (e.g., daycare, administrative, medical, and program transfers) are maintained and analyzed to monitor the effects of such transfers on the enrollments at the various schools. Over time, the District has improved its record-keeping capabilities in the transfer area. Beginning in the 1987-1988 school year, the District started developing a central computerized transfer and reporting system known as “MAPPER” that became fully operational for the 1989-1990 reporting year. The development of this system further enhances the quality of transfer data available to the District for monitoring the number and the effects of transfers within the school system. Both plaintiffs and plaintiff-intervenors admit that the District has succeeded in remedying the defects previously found in the District’s transfer process, and agree that jurisdiction should be terminated in the student transfer area. Teacher Assignment Policy The District has implemented and followed the teacher assignment policy submitted at the hearings in March, 1986, and described in the February 25, 1987, opinion published as Keyes XVI, 653 F.Supp. at 1537-38. At the secondary level, the distribution of teachers at the beginning of each of the school years since 1986-1987 has conformed fully to the standard established in that policy. At the elementary level, the same is true for the 1986-1987, 1987-1988, 1988-1989, 1989-1990, 1990-1991, and 1991-1992 school years. In the 1992-1993 and 1993-1994 school years, a small number of schools (four each year) were outside the policy guideline. In six of these eight instances, the schools were only over or under-represented by one minority teacher. Both plaintiffs and plaintiff-intervenors admit that the District has succeeded in remedying the previously found defects in the District’s teacher assignment process and agree that jurisdiction should be terminated in the area of teacher assignments. Exercise of Discretion Under The Interim Decree The District has exercised the discretion given to it under the Interim Decree in a manner consistent with the constitutional mandate of equal educational opportunity. This is demonstrated by the School Board’s adoption of Resolutions 2233 and 2314; by the District’s reorganization in 1988; by the depairing of Greenlee and Traylor Elementary Schools; by the closure of Southmoor, Crofton, and Stevens Elementary Schools; by the creation of new programs at several schools; and by the District’s efforts in minority faculty recruitment. Resolutions 2233 and 231k In resisting the District’s motions to terminate jurisdiction, the plaintiffs and plaintiff-intervenors have argued that the history of this litigation supports continuing skepticism about the concern, commitment and capacity to achieve and maintain a unitary school system in Denver. In response, the District has relied heavily on two resolutions adopted by the District’s Board of Education: Resolution 2233, adopted in April, 1984, and Resolution 2314, adopted in April, 1987. Resolution 2233 pledges the Board in general terms to abide by the Constitution and to maintain the unitary character of the Denver Public Schools. It specifically declares the Board’s intention to maintain in force the existing student assignment plan upon termination of court jurisdiction, except as changes might be made over time that are consistent with maintaining the unitary character of the District. Resolution 2233 also committed the Board to promoting “stable integrated educational opportunities.” It candidly expressed the Board’s intention to do so, to the extent possible, by preserving integrated neighborhood schools and establishing new ones when possibilities arose for maintaining stable integration in such schools, but only where such measures would be consistent with maintaining a unitary school district. Resolution 2233 also expressed the Board’s intention to foster stable integration through voluntary measures such as additional magnet schools. In order to report upon and monitor the implementation of Resolution 2233, an office within the school district was identified and charged with these responsibilities. Dr. Evie G. Dennis, first as Executive Director of School/Community Affairs and later as Superintendent of the District, fulfilled these duties on the District’s behalf. On an annual basis since the adoption of Resolution 2233, detailed reports have been prepared for the Board of Education that record the actions that have been taken to implement the provisions of the Resolution. Included within these reports is information that monitors the status of integration efforts at Barrett, Harrington, and Mitchell, information concerning student transfers, teacher assignments and hiring efforts, and data regarding magnet programs. Also reported is information regarding the District’s efforts to assure equal educational opportunity in the area of placements in the Gifted and Talented Programs, the Highly Gifted Programs, and the Accelerated Programs, as well as efforts taken to deal with student discipline, pupil achievement, and dropouts. Resolution 2314 was adopted to make more specific the general policies expressed in Resolution 2233 for governing decisions affecting the attendance patterns in Denver Public Schools and for maintaining the integrated character of the system. Resolution 2314 declares the Board’s intention to maintain its current policy regarding teacher assignments and student transfers (Policy 1226D) and reiterates the requirement that annual reports be made to the Board regarding the status and progress of the District in . maintaining a unitary school system. Resolution 2314 also articulates a specific policy to govern any future changes in attendance zones, assignments to schools, grade-level structure, and decisions associated with the closing of schools. The policy in this regard provides: 4. The following policies shall govern any future changes in the attendance zones, assignments to schools, or grade-level structure of the student-attendance plan presently in effect: (a) No change in such plan shall be made unless there has first been presented to the Board specific data showing the effect of such change on the projected racial/ethnic composition of the student enrollment in any school affected by the proposed change. (b) If the projected effect of such a change would be to cause a school’s minority percentage to move five (5) percentage points or more further away from the then-current districtwide average at that level (elementary, middle, or high school) than it was in the year preceding the proposed change, the change shall not be made unless: (1) The Board determines that such change is consistent with, or will promote, the overall objective of maintaining or enhancing the stable integrated character of the District as a whole and is justified by substantial, articulated educational considerations independent of the effect on the raeial/ethnic composition of the schools affected; and (2) The Board determines that the educational values expected from the change are substantial enough to outweigh the adverse effects of the proposed change on the racial/ethnic composition of the particular school or schools adversely affected; and (3)The Board has given careful consideration to (i) the availability of alternative changes that might accomplish the desired educational objectives without the adverse effects on the racial/ethnic composition of the schools adversely affected; and (ii) the feasibility of additional measures to counteract or ameliorate the adverse effects, such as initiating special programs to encourage voluntary transfers that will improve the racial/ethnic composition of the affected school or schools, converting such school or schools to magnet schools, limiting new enrollment in such schools, or closing a school when it appears that no reasonably practicable measures are available to prevent a school from becoming increasingly disproportionate in its racial/ethnic composition. Paragraph 5 of Resolution 2314 makes these principles applicable to decisions concerning school construction, closings and enlargements. What is required by Resolution 2314’s “five percent rule” is that when a District proposal is projected to adversely impact the minority enrollment at a school by five percentage points or more, then the Board must closely analyze and weigh the educational benefits of the proposal as well as the availability of more integrative alternatives. Since the adoption of Resolution 2314 and the entry of the Interim Decree, the defendants have been faced with difficult decisions that impacted each of the areas outlined above. As is acknowledged by plaintiffs, the District has exercised the discretion given to it under the Interim Decree and has adhered to the fundamental tenets of Resolutions 2233 and 2314. This record provides some assurance that the District has the structure and methodology to provide equal educational opportunity. As has been discussed, these resolutions may require alteration because of the restrictions imposed by both state and federal law, particularly the prohibitions on busing to achieve racial balance. 1988 Reorganization Plan Beginning in the 1988-1989 school year, the District implemented a long-considered reorganization plan. The District: (i) moved gra