Full opinion text
ORDER KRUPANSKY, Circuit Judge, Sitting by Designation. On August 31, 1976, after a lengthy trial, the late Judge Frank J. Battisti of this Court concluded that from the 1950s through the 1970s, students in the Cleveland Public Schools were increasingly segregated by race through the intentional conduct of the State and Local Defendants. Reed v. Rhodes, 607 F.2d 714, 723 (6th Cir.1979), cert. denied, 445 U.S. 935, 100 S.Ct. 1329, 63 L.Ed.2d 770 (1980). On February 6, 1978 Judge Battisti reaffirmed his earlier conclusion that “defendants (City [Cleveland School District] and State [Ohio State Board of Education and its Superintendent of Instruction]) ... discriminate^] against plaintiffs by numerous acts and omissions, the purpose and effect of which were to foster and maintain a segregated dual school system; and that these numerous constitutional violations had systemwide impact entitling plaintiffs to a systemwide remedy[,]” Reed v. Rhodes, 455 F.Supp. 546, 550 (N.D.Oh.1978), and that both the City and State Defendants are constitutionally liable for having maintained a de jure segregated public school system, id. at 568, in sum, A STATE-IMPOSED DE-JURE SEGREGATED PUBLIC SCHOOL SYSTEM. The Remedial Order continued that “[findings of systemwide de jure segregation mandate a comprehensive, systemwide plan of actual desegregation which ELIMINATES THE SYSTEMATIC PATTERN OF SCHOOLS SUBSTANTIALLY DISPROPORTIONATE IN THEIR RACIAL COMPOSITION TO THE MAXIMUM EXTENT FEASIBLE.” Id. at 568. (Emphasis added). See also Reed v. Rhodes, 662 F.2d 1219 (6th Cir.1981), cert. denied sub nom. Ohio St. Bd. of Educ. v. Reed, 455 U.S. 1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982) (affirming state liability). (Emphasis added). Judge Battisti issued exhaustive Instructions and Guidelines and implemented an elaborate procedure to develop what ultimately became his Remedial Order dated February 6, 1978 (Seminal Order). The Court’s efforts embraced the appointment of a Special Master and two sociological desegregation experts. The Special Master initiated protracted hearings which included testimony from six Cleveland Board of Education administrative personnel, five Cleveland board members, and three State Board of Education employees.' Members of the general public were invited to present testimony and recommendations-before the Special Master. The hearings entertained forty-one representatives from community civic organizations, a representative of the Cleveland Teachers Union, and five private individuals.’ In addition, voluminous written responses incorporating supplemental advice and proposals were entered into the record at those hearings. Information developed during the course of the hearings, including additional comments and suggestions from concerned citizens of the city and data submitted by the Cleveland Schools superintendent, were considered in fashioning the final Remedial Order which became the seminal document that charted the course to be implemented by the State and Local Defendants for a period that has now exceeded some eighteen years. The Remedial Order of February 6, 1978 that evolved from arduous community participation defined with particularity the following compliance requirements: 1. desegregation of administrative and certified supervisory and teaching personnel; and 2. desegregation of non-certified personnel; and 3. desegregation of school facilities— buddings and classroom enrollment resulting from student assignment practices; and 4. development of creative educational currículums, including innovative reading and other programs designed to correct - the effects of prior segregated schooling as is reasonably possible; and 5. other ancillary adjunct relief calculated to (1) remedy the academic effects of prior segregation, (2) ensure that existing and future programs are administered in a non-discriminatory fashion, (3) maintain a secure, integrated school environment in which the rights of all students are protected, and (4) guarantee that court-ordered educational provisions are successfully implemented by: (a) testing and tracking (b) counseling and career guidance (e) magnet school programs (d) cooperation with universities, and business and cultural institutions (e) extracurricular activities (f) staff development and student training in human relations (g) student rights (h) school community relations (i) safety and security (j) management capability and financial integrity to dismantle the existing segregated dual, school system that had been imposed by the State and Local Defendants as necessary to achieve total unitary desegregated status of that system. In his February 6, 1978 Order, Judge Battisti announced that the Defendants’ progress and/or success in purging the local school system of STATE-IMPOSED SEGREGATION would be measured against an intractable mathematical formulation: “[a] fifteen percent deviation from the percent ratio of the district [population] as a whole is the maximum deviation that would be reasonable.” See Reed v. Rhodes, 472 F.Supp. 615, 617 (N.D.Oh.1979). Given the then existing geographic residential demographics of the City of Cleveland, the Court suggested that the Defendants “employ [the] techniques of contiguous and noncontiguous pairing and clusterings, boundary changes, grade structure changes, and feeder pattern changes, to effectuate the designation of the Cleveland public school district[,]” as recommended in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). Reed v. Rhodes, 455 F.Supp. 569, 573 (N.D.Oh.1978). In his Remedial Order, id. at 571-72. Judge Battisti recognized and adopted the Supreme Court’s admonition in Brown v. Board of Education (“Brown II"), 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) that: School authorities have primary responsibility for elucidating, assessing, and solving these problems[.] The role delegated to the courts pursuant to Brown II was to consider whether the action of school authorities constitutes GOOD FAITH IMPLEMENTATION OF THE GOVERNING CONSTITUTIONAL PRINCIPLES. Id. (Emphasis added). The Supreme Court has consistently cautioned that: the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution and that federal-court decrees must directly address and relate to the constitutional violation itself. Missouri v. Jenkins, — U.S. -, -, 115 S.Ct. 2038, 2054, 132 L.Ed.2d 63 (1995), citing Milliken v. Bradley (Milliken II), 433 U.S. 267, 280-82, 97 S.Ct. 2749, 2757-58, 53 L.Ed.2d 745 (1977). Heeding the dictates of the Supreme Court, this Court reiterated that issues of fiscal stability and managerial effectiveness of a local school system were concerns of the Court only to the extent that they impacted the ability of the local school authorities to implement the Court’s desegregation remedial orders. Responding to that pronounced direction, this Court, in its March 3, 1995 order declared: Hopefully, the Board, the District and the entire community is prepared to recognize the existing realities of the crisis confronting the Cleveland school system and the need for immediate, decisive, and perhaps unpopular action required to eliminate all vestiges of [discrimination] and expediently return the control of the schools to local authorities without judicial supervision at the earliest practicable date, thereby making the board accountable to the citizenry and the political elective process of the Cleveland School District. Order of March 3, 1995, at 1560-1561. (Emphasis added). Prior to 1992, the Defendants had been methodically and -successfully addressing compliance with the components of desegregation identified in that February 6, 1978 seminal order and its progeny with a view toward achieving total unitary status and the return of the local Cleveland School District to the control of local authority without judicial supervision at the earliest practicable date, thereby making its administrative supervisory authorities accountable to the citizenry and the political elective process of that District. In fact, after the District achieved a succession of substantive successes along its route to total desegregation, Dr. Gordon Foster, the parties’ joint desegregation expert, declared in his 1988 report entitled “A Study of Desegregated Student Assignments in the Cleveland Public Schools” that Before the [court-ordered assignment] plan, 88 percent of all students attended one-race schools; after implementation, every school was desegregated. The District is now racially stabilized at 70 percent Black. It is the only majority Black, large city system in the country which is totally desegregated. Foster Report, Introduction, at i-ii. (Emphasis added). His opinion was supported by reports of the Office on School Monitoring and Community Relations (OSMCR) generated in July of 1991 (See page 15, paragraph #3). (SDX-DD, p. V-1-II Tab 30; T. 24-25). The systematic, successful compliance efforts of the defendants were substantially disrupted, however, by disastrous outside political interferences into the internal affairs of the School District from 1992 until the court-ordered intervention of the State Board of Education and its Superintendent of Public Education. During the interim period after the inauguration of the politically dominated “reform” Cleveland Board of Education, Dr. Sammie Campbell Parrish, a respected creative educator, who was the Superintendent of the Cleveland School District, introduced an innovative educational program styled “Vision 21.” Vision 21 was acclaimed as highly progressive and designed to satisfy component nos. 4 and 5 of Judge Battisti’s compliance requirements, 1. e. develop creative educational currículums in reading and other programs designed to correct the effects of prior segregated schooling as was reasonably possible. It was calculated to instill and develop pride, self esteem, and learning, and to implement other initiatives. Her charismatic public appearances in promoting Vision 21 endeared her to parents, students, faculty, and the entire Cleveland population. The substance of Vision 21 and its universal acceptance by the Cleveland populace prompted the adversary parties to this action to incorporate it, without modification, as a keystone of the Consent Decree of May 25, 1994. Unfortunately, the momentum generated by the initial implementation of.,Vision 21, coupled with the high profile public image and popularity of Dr. Parrish that overshadowed the less than impressive performances of the local Board of Education and its politically motivated mentors, caused friction and underlying personality conflicts which appeared to have precipitated a series of orchestrated public confrontations calculated to encourage the ultimate resignation and departure of Dr. Parrish, her Deputy Superintendent of Educational Services, and her Deputy Administrator of Support Services, all to the detriment of the School District. The effects of the public confrontations were profound. The Cleveland School District suffered total fiscal and administrative collapse when Dr. Parrish resigned, virtually without notice, citing among other reasons, the “highly publicized falling-out with Mayor Michael R. White” (Patrice M. Jones and Scott Stevens, Parrish Quits to Return to North Carolina, The Plain Dealer, Feb. 17, 1995 at 1A), and subsequently departed from Cleveland on March 3,1995, the date that the State Board of Education and its Superintendent of Instruction were, by this Court, directed to assume complete administrative and operational control of the District pursuant to its delegated state constitutional and statutory authority and restore the System’s integrity, operational control, and capability to resume implementation of this Court’s orders without interference from the local Board of Education. Within days of this Court’s March 3, 1995 Order, Dr. John Theodore (Ted) Sanders, the then State of Ohio Superintendent of Public Instruction, began the implementation of a viable contingency plan designed to immediately restore an uninterrupted interim fiscal and operational administrative capability required to alleviate the emergency confronting thé Cleveland School District. Despite critical commentary and resistance from the self same political and allied sources whose self-serving personal agendas and interests caused the System’s catastrophic predicament, State Superintendents of Instruction Drs. Ted Sanders, John M. Goff, and Richard A. Boyd have, within a relatively short time frame, stabilized the financial and management integrity of the System; and with the assistance of the MeKinsey Group, financial management consultants, they have developed an interim and long-range plan styled “A Blue Print to Improve' Student Performance and Achieve Financial Stability” calculated to revitalize the financial and management capabilities of the System and restore the confidence of the community in its operation. The factually unsupported critical .rhetoric of self-promoting politicians and them collaborating commentators notwithstanding, the State Superintendents of Instruction have systematically initiated innumerable affirmative programs which have resulted ih: •The smoothest school opening in recent history in September, 1995, despite the closing of eleven schools, relocation of equipment, and reassignment of hundreds of staff and thousands of students; • The realignment of curriculum to achieve consistency with proficiency test objectives; • New achievement standards for each grade level; • New programs designed to enhance math and science instruction (NSF-Urban Systemic Initiative); • Faculty inservieing to improve upon proficiency strategies; •More, proficiency intervention with high school students; •224 personnel position eliminations, saving approximately $9.8 million for FY 1996, and other cost reductions amounting to additional savings of $2.2 million, aggregating $12 million annually; • Medicaid reimbursement increases amounting to moré than 300%; • Reductions in legal fees which will save more than $500,000 in FY 1995-96; • Monthly meetings concerning compliance with extant remedial- orders involving the Plaintiffs and State and District personnel; • A position control system; • New agreements to maximize purchasing power and reduce costs, including participation in the Self-Help Gas Program, with estimated savings of $100,000 for the first year, and which will produce increased savings in subsequent years; • Designated eleven schools and one administrative site for closing; • Encouraged more and better technology services provided by loaned executives; •Transportation savings of approximately $500,000-in FY 1995-96, with reinstatement of transportation for high school students residing more than 4 miles from school, and payment in lieu of transportation for non-public high school students; •A Bruening Foundation grant to introduce a pilot program of video cameras on buses to enhance safety and monitor conduct; • Comprehensive attendance sweeps to enforce the daytime curfew, District-wide random metal detector sweeps at all secondary schools, and evaluation of over 2,000 walking routes and 22,000 streets to identify potential hazards and safe walking paths to elementary schools; •A program to sell fifteen properties at public auction; and •The Honeywell project with structured maintenance of heating systems which resulted in fewer major seasonal heating problems. The Court is satisfied and finds that the effective administration of State Superintendents of Instruction Dr. Ted Sanders, Dr. John M. Goff, and State Deputy Superintendent of Instruction Dr. Richard A. Boyd, while acting without interference from local politicians, has materially stabilized and restored some semblance of financial and management integrity to the internal affairs of the Cleveland School District and its vitiated credibility. Moreover, Dr. Boyd’s implementation of “A Blue Print to Improve Student Performance and Achieve Financial Stability,” if supported by local community operating levy initiatives, ensures a long-range orderly financial management, and above all, a high level of educational responsibility and accountability within the school system. In this milieu of renewed stability, the Court turns to resolution of the substance of defendants’ motion. The threshold determination confronting the Court in resolving the pending motion is the impact, if any, of the Supreme Court’s pronouncements in Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992) upon sections 5 and 6 of a court-approved Settlement Agreement (Consent Decree) between the parties to this instant action dated May 25, 1995. In these sections it was agreed that students in the Cleveland Public Schools would be assigned to school buildings so as to ensure a racially balanced enrollment which was within ±15% of the systemwide racial composition which is presently 70% African-American; i.e., each school would have a racial composition between 55% and 85% African-American. Rufo, id., departed from the much-quoted Swift standard, which had required “[n]othing less than a clear showing of grievous wrong evoked by new and unforeseen conditions” as a predicate to modification of a consent decree. United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932). Rufo directed: Our decisions since Swift reinforce the conclusion that the “grievous wrong” language of Swift was not intended to take on a talismanic quality, warding off virtually all efforts to modify consent decrees. Railway Employees [sic ] emphasized the need for flexibility in administering consent decrees, stating: “There is ... no dispute but that'a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen.” Rufo, 502 U.S. at 380, 112 S.Ct. at 758, citing Railway Employees v. Wright, 364 U.S. 642, 647-48, 81 S.Ct. 368, 371-72, 5 L.Ed.2d 349 (1961). The Court went on to say in Rufo that: The upsurge in institutional reform litigation since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), has made the ability of a district court to modify a decree in response to changed circumstances all the more important. Because such decrees often remain in place for extended periods of time, the likelihood of significant changes occurring during the life of the decree is increased. See, e.g., Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 1119—1121 (CA3 1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 660 (1980), in which modification of a consent decree was allowed in light of changes in circumstances that were beyond the defendants’ control and were not contemplated by the court or the parties when the decree was entered. Rufo, 502 U.S. at 380-81, 112 S.Ct. at 758. To properly address the joint motions presently before the Court and place the issue of student assignments in a proper context, a brief review of the District’s ongoing efforts to cope with facilities and' classroom desegregation and the District’s successful compliance efforts is appropriate. Following implementation of the initial court-ordered student assignment plan in 1981, student populations in Cleveland public schools immediately became dramatically more integrated. By 1983, only 10 schools were outside of the ±15% mandate, and every school had a racial ratio within 22% of the district-wide average. To ensure that the District remained in compliance with the ±15% limitation, the defendants developed a “Five-Year Facilities Utilization Plan” which was approved by the Court on December 9, 1985. . It directed annual compliance reviews “to monitor and analyze the desegregated status of individual schools, and to plan student reassignments or other measures to maintain racial balance percentages within acceptable ranges.” (See Facilities Utilization Plan’s Annual Review for, 1987, Appendix B, at 3). These annual reports reflected the District’s analysis of the racial balances within individual schools and identified three separate categories of “problem schools:” (1) schools deviating from the prescribed racial balance which were targeted for “early warning” corrections short of mandatory student reassignments, such as recruiting efforts; (2) schools deviating from the ±15% standard for more than one year which were targeted for possible reassignment changes; and (3) schools deviating from the ±15% standard for two consecutive years which were targeted for mandatory student reassignments the following year. For each problem school the District developed detailed corrective measures to achieve racial balance. The District also reviewed the effects of the previous year’s student assignment changes on the racial balance of the problem schools. Six annual impact reports were submitted to the Court beginning in 1987 and ending in 1992, when this review process was terminated by agreement of the parties and with the Court’s approval. The Annual Review and the resultant regimented readjustments ensured a high level of compliance throughout the 1980s and into the early 1990s. During that period, noncompliance with the ± 15% standard was limited to only 10-12 schools per year of the 130 within the system. This represented a compliance rate in excess of 90%. The 90% compliance rate prompted Dr. Gordon Foster’s comments in his 1988 report hereinbefore alluded to that “The (Cleveland School) District is now racially stabilized at 70 percent Black. It is the only majority Black, large city system in the country which is totally desegregated.” Foster Report, Introduction, at i-ii. (Emphasis- added). Dr. Foster’s opinion and evaluation were confirmed and endorsed by a report issued by the Court’s Office on School Monitoring and Community Relations (OSMCR) in July of 1991 wherein it advised that: Based on presently available information, it appears that defendants have complied in large part with the requirement that all schools have enrollments by race that reflect district-wide enrollment by race. While a relatively small proportion of District schools each year have enrollments that exceed the maximum deviation that would be reasonable (±15% from the District ratio), no evidence suggests that this is the result of discrimination on the basis of race in the assignment of students. (SDX-DD, p. V-1-11, Tab 30; T. 24-25). Because of this highly successful effort, Judge Battisti directed the parties to explore more flexible alternatives to the ±15% student assignment limitations: It should be clear that the Court did not set out to run a busing company. Transportation has been one of the tools for achieving desegregation. At the time it was ordered, it seemed to be one of the more effective means of doing so. The extent to which it is still necessary or desirable is a question that may be asked. In the course of asking though, it cannot be emphasized enough that transportation must be considered in the larger context of education, and the means of improving educational outcomes. Reed v. Rhodes, 1992 WL 80626 at *1, 1992 LEXIS 4723 at *3 (N.D.Oh.1992). To assist the parties, Judge Battisti directed Drs. Foster and Joseph T. Darden to draft new student assignment procedures which provided greater flexibility in assigning students to school facilities. Drs. Foster and Darden examined both short and long-term programs designed to improve educational offerings in a desegregated school system that favored parental choice. Phase One of the Plan which resulted embraced six elementary schools that would be exempted from the mandatory assignment program and would become “community schools” open to students living within a two-mile radius. Each of these schools was in a racially integrated neighborhood. The “community schools” would meet the ±15% requirement. Phase One objectives were calculated to maintain desegregation, improve student performance, reduce transportation, and move from involuntary assignments to a system of choice. Phase One was approved by the Court on August 5, 1992. Phase Two identified a comprehensive education plan that was subsequently characterized as Vision 21. Vision 21 was devised to afford parents a preferred choice of student school assignments. Parents of elementary school children could elect either a magnet school or program or a community model school within them region. In the event a racially balanced community model school was not available in their region, parents could select a racially balanced similar school outside the region. Parents of children eligible for middle schools and high schools could elect enrollment in a district-wide magnet school, middle school, or high school in their region. Pursuant to agreement between the parties and approval by the Court on July 21, 1993, a partial implementation of the Vision 21 program was commenced in the 1993-94 school year. The first year of implementing the program resulted in 41 schools exceeding the remedial order mandate of ±15%. Vision 21, which was calculated to eliminate extended and cross-town bus rides, provided for the three extreme corners of the District to be treated as stand-alone districts. The magnet school program was expanded, with new elementary schools added to serve as feeders for existing secondary school programs. Thus, under the program, parents were given the opportunity of enrollment choice in a magnet school situated anywhere within the District, a neighborhood community model school, or, absent a desegregated school within the region of choice, enrollment in an integrated school anywhere within the District. Vision 21 was approved and adopted in its entirety without modifications or amendments and became the bedrock foundation of the negotiated court-approved Settlement Agreement (Appendix C) (hereinafter Consent Decree) “INTENDED TO BRING Reed v. Rhodes TO AN ORDERLY AND JUST RESOLUTION” It was obvious to the parties and the Court, during the protracted negotiations, that adoption of the Consent Decree and the implementation of Vision 21 would initially result in escalating the number of non-compliant school facilities that would fall outside the ±15% remedial order limitation and a re-emergence of racially identifiable schools with 90 percent or more African-American student enrollment. It was, however, contemplated that the two student-school assignment policies were nevertheless compatible and that available attractive alternative parental enrollment inducements would result in parental elections that would, within the two-year period imposed by section 6.3 of the Consent Decree, return all school-student enrollments to within relative ± 15% compliance with the Remedial Order. The parties and the Court anticipated that the good faith efforts of the State and Local Defendants could implement the student enrollment initiatives of Vision 21 while contemporaneously substantially satisfying the ±15% mandate in sections 5 and 6 of the Consent Decree. This is reflected by Judge Battisti’s comments approving the Settlement Agreement with the realization that Vision 21 student enrollment • policies were predicated upon student-school assignment practices other than strict mathematical ratios: In designing this educational plan, the District sought to increase substantially the opportunity for all students, particularly African-American students, to receive a high-quality education in a desegregated environment through the systematic upgrading of the general curriculum, the creation of community model schools, a substantial broadening of the magnet school program based upon demonstrated demand, and the gradual implementation of a controlled-choice student assignment plan. Student-school assignment criteria was consciously evolved so as to provide parents, when given a choice, the opportunity to make considered elections that would eventually return each school to relative compliance with the ± 15% parameters incorporated into the Consent Decree. To harmonize the desired results of eventually attaining a balance between ± 15% student-school enrollment policies mandated by the seminal remedial order with Vision 21’s broadly expanded parental student school enrollment choice, the District embarked upon an aggressive restructuring program. The Defendants provided for an increase in the number of magnet schools. They created community model schools, ie., Comer Model Schools, AfroCentrie/Multicultural Immersion Model Schools, Non-graded Schools, Outcomes-Based Education Schools, Family Center Schools, and Parent Teacher Cooperative Schools. They also took the following action: (1) guaranteed residential zones were created around the newly-created community model schools; (2) students in optional zones were reassigned to override choices in some instances; (3) students were transferred between Hicks and Dike Montessori Schools to achieve a more favorable distribution in both schools; (4) students in overcrowded middle schools, ie. East Tech/South Middle School, were afforded transfer priority; (5) African-American students were reassigned from East Tech/South Middle School to Carl Shuler Middle School; (6) magnet schools were advertised to attract underrepresented races; (7) East Tech and Marshall Middle School regions were paired for assignment to community middle schools; and (8) residential feeder patterns were modified to improve racial balance in Carl Shuler Middle School. Despite these efforts during the 1993-94 and 1994-95 school years, parental selections frustrated compliance with the ±15% criteria. The winds of change during the years immediately preceding these efforts revealed evolving reconsidered and revised community attitudes and parental priorities as reflected in a Citizens League survey released in 1993 (District Exhibit J, Hearing before the Special Master on 4/19/95-4/20/95). The report disclosed that 86% of African-American parents considered neighborhood student school enrollment “desirable” and that African-American parents within the Cleveland School District were more concerned about educational quality than racial balancing in schools; ie., 86% of African-Americans considered racially identifiable African-American schools acceptable so long as educational quality was comparable in all schools wherever geographically situated. In sum, parental choice, quality of education, and geographical proximity were significantly more important to African-American parents within the Cleveland School District than racial mix. Thus, the record confirms that despite the initial optimism of the Court and the parties to harmonize the ±15% component in the Consent Decree with the implementation of the criteria of Vision 21 also incorporated into the Consent Decree, it became obvious that the intractable mathematical ratio of ± 15% reflected in sections 5 and 6 was, and is, in conflict with the innovative community-supported initiatives of Vision 21. Experience dictates that the conflicting philosophies have become irreconcilable. Two years of implementing the student assignment provisions of Vision 21 have confirmed that the ±15% standard incorporated into sections 5 and 6 of the Consent Decree is outdated and cannot be balanced with the innovative concepts of Vision 21 of that decree. In Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), the Supreme Court recognized that the value of a given practice designed to remedy past discrimination may attenuate with the passage of time when it noted that: And with the passage of time the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish, and the practicability and efficacy of various remedies can be evaluated with more precision. Id., 503 U.S. at. 491-92, 112 S.Ct. at 1446. Thus, the importance of outdated policies to impose strict racial balancing continues to diminish as the age of state-imposed or de jure segregation recedes further into the past. Vision 21, which has received the enthusiastic support of the local community and has been endorsed by leading local scholars- and educators and provides a blueprint for educational improvement, is presently in its third year of implementation. Scrapping this well-respected and accepted initiative in favor of demonstrated ineffective student assignments anchored in strict mathematical ratios is contrary to the admonition of Justice Kennedy that “[r]acial balance is not to be achieved for its own sake.” Freeman, 503 U.S. at 494, 112 S.Ct. at 1447. Moreover, the parties and this Court have not been insensitive to the emerging community attitudes and priorities addressing the issue of student assignments. Their concerns were reflected in the Joint Stipulation of May 16, 1995 (Appendix D), which voluntarily abandoned, albeit for a one-year trial period, the ±15% formulation imposed 18 years ago by the remedial order in favor of the innovative initiatives of Vision 21 which reflect the community consensus and acceptance of parental choice student-school assignments. To resolve the conflict between the dictates of the ±15% student assignment limitation imposed by the Seminal Remedial Order of August 6, 1978, as incorporated into sections 5 and 6 of the Consent Decree dated May 25, 1994, and disparate substantive provisions of Vision 21 advocating and ultimately according parents “open choice” in designating the school of attendance for their progeny, the Court seeks direction from Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). Under Rufo, modification of a consent decree may be warranted in any of the following factual circumstances: (1) “when changed factual conditions make compliance with the decree substantially more onerous”; (2) “when a decree proves to be unworkable because of unforeseen obstacles”; or (3) “when enforcement of the decree without modification would be detrimental to the public interest.” See id., 502 U.S. at 384, 112 S.Ct. at 760. in its disposition, the Court recog1 nized and rejected the notion that a modification should be allowed only when a change in facts is both “unforeseen and unforeseeable”; Such a standard would provide even less flexibility than the exacting Swift test; we decline to adopt it. Litigants are not required to anticipate every exigency that could conceivably arise during the life of a consent decree. Id. If the moving party satisfies its burden, the Court should consider whether the proposed modification is suitably tailored to the changed circumstance. The defendants have moved to modify sections 5 and 6 of the Consent Decree, and argued that changed circumstances render enforcement of the ± 15% provision contrary to the public interest. Having reviewed the evidence developed during the trial of this cause and assigning appropriate weight to its credibility, the Court concludes for the reasons herein stated that, after two years of attempted implementation of Vision 21, the intractable mathematical ratio of ±15% reflected in sections 5 and 6 of the Consent Decree was, and is, inherently in conflict with the innovative community-supported initiatives of Vision 21. This realization represents a material factual change and unforeseen circumstance which compels the Court to conclude that “enforcement of the decree without the proposed modification would be detrimental to the public interest.” Rufo, 502 U.S. at 384-385, 112 S.Ct. at 760. Rufo instructs that once the Court has concluded that changed circumstances warrant a modification of a consent decree, it must determine if “the proposed modification is suitably tailored to the changed circumstances.” However, in resolving this inquiry, it should not seek to rewrite the agreement between the parties. The Court should be ever mindful that a consent decree is a contractual resolution of a controversy voluntarily undertaken by the parties that has been elevated to the status of a final judgment which may be reopened only to the extent that equity requires. Its terms, conditions, responsibilities, and liabilities survive and extend beyond active judicial supervision of its seminal legal proceeding. A proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor. Once a court has determined that changed circumstances warrant a modification in a consent decree, the focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances. A court should do no more, for a consent decree is a final judgment that may be reopened only to the extent that equity requires. The court should not “turn aside to inquire whether some of [the provisions of the decree] upon separate as distinguished from joint action could have been opposed with success if the defendants had offered opposition.” Rufo, 502 U.S. at 391-92, 112 S.Ct. at 764, quoting Swift, 286 U.S. at 116-117, 52 S.Ct. at 462. Heeding this directive from Rufo, this Court finds that equity requires modifying the Consent Decree to relieve the Defendants from the provisions of sections 5 and 6, ie., the duty to maintain a racial balance in each school within 15% of the systemwide average. The Court stresses, however, that the remainder of the Consent Decree remains intact and its terms, conditions, responsibilities, and liabilities continue to bind the parties and are calculated to survive beyond the Court’s supervision and control of the Cleveland School District. Accordingly, this Court concludes that the Defendants’ Motion to Modify the Consent Decree is well taken and is granted subject to the Court’s hereinbefore imposed condition. Having decided that the Consent Decree and Remedial Orders may be modified, the Court must next consider if the Defendants’ proposal to terminate the Court’s judicial supervision and control over student-school assignments and return that responsibility exclusively to school authorities in accordance with their best judgment is appropriate under Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), because (1) the State and Local Defendants have substantially complied in good faith with all student-school assignment criteria as directed by the Court’s Remedial Orders and the Consent Decree, (2) the school authorities have eliminated all vestiges of student-school assignments within the Cleveland School District to the extent reasonably practicable, and (3) it has achieved unitary status in the assignment of students to the extent reasonably practicable. As a point of departure in considering the Defendants’ joint motion, the Court’s attention is again directed to the limitation of its inquiry as defined by the Supreme Court in Milliken v. Bradley (Milliken II), 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977): “[F]ederal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation[J” Id., 433 U.S. at 282, 97 S.Ct. at 2758. The Court in Board of Education of Oklahoma City v. Dowell, 498 U.S. 237, 247-48, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991) ruled: From the very first federal supervision of local school systems was intended as a temporary measure to remedy past discrimination. Brown considered the “complexities arising from the transition to a system of public education freed of racial discrimination” in holding that the implementation of desegregation was to proceed “with all deliberate speed.” 349 U.S., at 299-301, 75 S.Ct., at 755-57 (emphasis added). Green [v. County School Bd. of New Kent County, Va., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716] [ (1968) ] also spoke of the “transition to a unitary nonracial system of public education.” 391 U.S., at 436, 88 S.Ct., at 1693 (emphasis added). After declaring that judicial supervision of local school systems , was not intended to operate into perpetuity, the Court in Dowell recognized that: Local control over education of children allows citizens to participate in decision-making, and ALLOWS INNOVATION SO THAT SCHOOL PROGRAMS CAN FIT LOCAL NEEDS. Milliken v. Bradley, 418 U.S. 717, 742, 94 S.Ct. 3112, 3126, 41 L.Ed.2d 1069 (1974) (Milliken I); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278, 1305, 36 L.Ed.2d 16 (1973).... 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. See Milliken v. Bradley [Milliken II], 433 U.S., at 280-82, 97 S.Ct., at 2757-58.” Spangler v. Pasadena City Bd. of Education, 611 F.2d [1239] at 1245, n. 5 [ (C.A.9 1979) ] (Kennedy, J., concurring). Dowell, 498 U.S. at 248, 111 S.Ct. at 630. (Emphasis added). . . Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), instructs that federal courts may reheve a school district from judicial supervision in incremental stages before full compliance with a remedial order has been achieved in every area of the school system’s operation. The trial court may also determine that it will not order further remedies in areas where the school district is in compliance with its decrees. Under appropriate circumstances, the Court may return control to the school system in those areas where compliance has been achieved. We hold that, in the course of supervising desegregation plans, federal courts have the authority to relinquish supervision and control of school districts in incremental stages, before full compliance has been "achieved in every area of school operations. While retaining jurisdiction over the case, the court may determine that it will not order further remedies in areas where the school district is in compliance with the decree. That is to say, upon a finding that a school system subject to a court-supervised desegregation plan is in compliance in some but not all areas, the court in appropriate eases may return control to the school system in those areas where compliance has been achieved, limiting further judicial supervision to operations that are not yet in full compliance with the court decree. In particular, the district court may determine that it will not order further remedies in the area of student assignments where racial imbalance is not traceable, in a proximate way, to constitutional violations. Freeman v. Pitts, 503 U.S. at 490-91, 112 S.Ct. at 1445-46. The Court also dictated: Partial relinquishment of judicial control, where justified by the facts of the case, can be an important and significant step in fulfilling the district court’s duty to return the operations and control of schools to local authorities. In Dowell, we emphasized that federal judicial supervision of local school systems was intended as a “temporary measure.” 498 U.S., at [247], 111 S.Ct., at 636. Although this temporary measure has lasted decades, the ultimate objective has not changed — to return school ■ districts to the control of the local authorities. Id., 503 U.S. at 489, 112 S.Ct. at 1445. The Court further noted that: A court’s discretion to order the incremental withdrawal of its supervision in a school desegregation case must be exercised in a manner consistent with the purposes and objectives of its equitable power. Among the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: whether there has been full and satisfactory compliance with the decree in those aspects, of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good faith commitment to the whole of the court’s decree and to those provisions of the law and the constitution that were the predicate for judicial intervention in the first instance. Id., 503 U.S. at 491, 112 S.Ct. at 1446. Thus, in exercising its discretion, the district court must consider the following factors: (1) whether there has been full and satisfactory- compliance with the [seminal remedial order] in those aspects of the system where supervision is to be withdrawn; (2) whether retention of judicial control is necessary or practicable to achieve compliance with the [seminal remedial order] in other facets of the school system; and (3) whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good faith commitment to the whole of the court’s [seminal remedial order] and to those 'provisions of law and the constitution that were the predicate for judicial intervention in the first instance. See id. The ultimate inquiry seeks to determine if “the constitutional violator.has complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination have been eliminated to the extent practicable.” Missouri v. Jenkins, — U.S. -, -, 115 S.Ct. 2038, 2049, 132 L.Ed.2d 63 (1995) (internal brackets omitted). To assist a trial court in determining if a local school district has achieved “full and .satisfactory compliance” with the student assignment component of a seminal remedial order, the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 31-32, 91 S.Ct. 1267, 1284, 28 L.Ed.2d 554 (1971) cautioned: Neither school .authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial' discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary. It reaffirmed its explanation in Freeman: Where resegregation is a product not of state action but of private choices, it does not have constitutional implications. It is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. To attempt such results would require ongoing and never-ending supervision by the courts of school districts simply because they were once de jure segregated. Residential housing choices, and their attendant effects on the racial composition of schools, present an ever-changing pattern, one difficult to address through judicial remedies. 503 U.S. at 495, 112 S.Ct. at 1448. The facts in Freeman, wherein the Supreme Court found that the DeKalb County School System (DCSS) had “fully and satisfactorily complied” with the Student Assignment component of the remedial decree in that case, are analogous to those of the Cleveland School District. DCSS, as the Cleveland School District, had experienced bi-polar residential segregation. At the time of its motion for partial unitary status, its demographic composition reflected: (1) 47% of the students attending DCSS were black; (2) 50% of the black students attended schools that were over 90% black; (3) 62% of all black students attended schools that had more 'than 20% moré blacks than the systemwide average;' (4) 27% of white students attended schools that were more than 90% white; (5) 59% of the white students attended schools that had more than 20% more whites than the systemwide average; (6) of the 22 DCSS high schools, five had student populations that were more than 90% black, while five other' schools had student populations that were more than 80% white; and (7) of the 74 elementary schools in DCSS, 18 are over 19% black, while 10 are over 90% white. Freeman, 503 U.S. at 476-77, 112 S.Ct. at 1438. After a review of the DCSS efforts to achieve compliance with the district court’s remedial consent decree approved in 1969, and the demographic changes that.had occurred within DeKalb County during the intervening 17 years,- the Supreme Court affirmed the trial court’s conclusion that: [AJbsent massive bussing, which is not considered as a viable option by either the parties or this court, the magnet school program and the M-to-M [minority-to-majority] program, which the defendants voluntarily implemented and to which the defendants obviously are dedicated, are the most effective ways to deal with the effects on student attendance of the residential segregation existing in DeKalb County at this time. Id., 503 U.S. at 481, 112 S.Ct. at 1440-41. The Supreme Court, in its ruling, continued: The Court of Appeals was mistaken in ruling that our [decisions] require “awkward,” “inconvenient” and “even bizarre” measures to achieve racial balance in student assignments in the late phases of carrying out a decree, when the imbalance is attributable neither to the prior de jure system nor to a later violation by the school district but rather to independent demographic forces. Id., 503 U.S. at 493, 112 S.Ct. at 1447. The Court went on to hold: That there was racial imbalance in student attendance zones was not tantamount to a showing that the school district was in noncompliance with the decree or with its duties under the law. Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors. Id., 503 U.S. at 494, 112 S.Ct. at 1447. Concurring, Justice Blaekmun, joined by Justices Stevens and O’Connor, stated that a school system’s obligation to desegregate “does not always require the district court to order new, affirmative action simply because of racial imbalance in student assignment.” Id., 503 U.S. at 512, 112 S.Ct. at 1456 (Blackmun, J., concurring). A court should assess whether changes in student assignments are “necessary or practicable” to achieve compliance with the decree, and whether the district’s conduct is a contributing cause of the racially identifiable schools. Id., 503 U.S. at 512, 112 S.Ct. at 1456-57. The imbalance of noncomplying schools within the DCSS exceeded by far the number of Cleveland schools that were outside of the ±15% parameters mandated by Judge Battisti’s Remedial Order and Consent Decree in Reed. In each year since 1980, through and including the 1992-93 school year, only 10 to 15 school buildings exceeded the ±15% requirement. (District’s Exhibit 22 to its 1/5/95 motion; OSMCR Report, July 1991, at V-l-8; OSMCR Second Suppl.Report, November 1993 at 72). In 1993-94, the first year of the four-year Vision 21 assignment plan, 41 (of 127) buildings exceeded the ±15% requirement. Id. In 1994-95, 31 schools fell outside the ±15% requirement, including the 11 schools exempted from compliance with this standard by Section 6.1. of the Consent Decree. Id. Although 58 schools within the Cleveland system exceeded the ±15% limitation of the Consent Decree in the school year in 1995-96, the noncompliance was excused by paragraph 4 of the Joint Stipulation: Neither the implementation of the State’s plan nor any incremental increase in the number of racially identifiable schools (meaning schools exceeding the ±15 percentage point parameters) occurring in the 1995-96 school year shall be deemed or treated as a Consent Decree violation or as evidence of lack of substantial compliance with the extant remedial orders or the Consent Decree. The District’s Exhibit 22 is attached hereto as Appendix E. A direct comparison of the DCSS and the Cleveland School District reveals that from 1983 to 1991 the Cleveland School District achieved substantially greater student desegregation than the DCSS: (1) 69-71% of the students' attending the Cleveland School District were African-American (47% in' DCSS) (2) less than 3.1% of African-American students each year attended schools that were more than 90% African-American (50% of African-American students did so in the DCSS) (3) less than 4.5% of African-American students each year attended schools that had greater than 20% more African-Americans than the systemwide average (62% did so in the DCSS) (4) no white student attended a school which was more than 90% white (27% did so in the DCSS) (5) no white students attended a school with greater than 20% more whites than the systemwide average (59% did so in the DCSS) (6) of the 38-41 secondary schools in the Cleveland School District no greater than 1 each year ever had greater than 90% African-Americans and none ever had more than 90% white (in the DCSS’ 22 high schools, 5 were at least 90% black and 5 were at least 80% white). ■Even after the implementation of the student assignment practices of the Joint Stipulation of May 15, 1995, which relied almost exclusively on parental choice and not mathematical ratios, the figures for Cleveland reflected much greater student desegregation than that in the DCSS: (1) only 29.34% of African-American students attended schools.that were more than 90% African-American (DCSS: 50%) (2) only 27.29% of African-American students each year attended schools that had greater than 20% more African-Americans than the systemwide average (62% did so in the DCSS) (3) no white student attended a school • which was more than 90% white (27% did so in the'DCSS) (4) no white students attended a school ' with greater than 20% more whites than the systemwide average (59% did so in the DCSS) (5) of the 36 secondary schools in the Cleveland School District only 12 were 90% African-American and none had more than 90% white (in the DCSS’ 22 high schools, 5 were at least 90% black and 5 were at least 80% white). OSMCR Report, Cleveland City School District Racial Composition Data for 1983-1991 and Present School Year (1995-96), 4/19/1996 (Appendix F). The Cleveland School District also implemented far more demanding compliance requirements than DCSS to override thé demographics of the City of Cleveland. In addition to extensive student attendance, zone boundary changes.,and clustering, provision for minority-to-majority transfers, magnet schools, and community model schools, the District also implemented one of the nation’s most extensive and arduous programs of mandatory student reassignments and transportation. The District reassigned students annually during this period. to ensure that schools that had fallen out of compliance due to population mobility within this District were returned to compliance with the ± 15% requirement. A comparison of the Cleveland School District’s compliance with the student assignment component of the Remedial Order as incorporated into the Consent Decree with the history of compliance approved by the Supreme Court in Freeman compels the conclusion that the Cleveland District achieved “full and satisfactory” compliance with court-imposed requirements during the relevant periods. Moreover, the record of compliance in the Cleveland School District, notwithstanding the recent increase in the number of schools outside the ±15% parameters, compares well with other districts that have been totally relieved of judicial supervision. In considering a grant of incremental or total unitary.^tatus, the Court should accord particular attention to the school system’s historic record of good faith compliance. A school system’s good faith intention to eradicate a state^mposed segregated dual system of educatiohTs disclosed by its demonstrated historical good faith commitment to a constitutional course of action that reflects a consistent pattern of lawful conduct directed to eliminating earlier violations. In considering these factors a court should give particular attention to the school system’s record of compliance. A school system is better positioned to demonstrate its good-faith commitment to a constitutional course of action when its policies form a consistent pattern of lawful conduct directed to eliminating earlier violations. And with the passage of time the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish, and the practicability and-efficacy of various remedies can be evaluated with more precision. Freeman, 503 U.S. at 491-92, 112 S.Ct. at 1446. In sum, as expressed in Board of Education of Oklahoma City v. Dowell, 498 U.S. 237, 249-50, 111 S.Ct. 630, 638, 112 L.Ed.2d 715 (1991), during the final phases of a desegregation case: The District Court should address itself to whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable. The Cleveland School District’s good faith in complying with the seminal desegregation decree since it was entered, and with the Consent Decree, and its good faith in eliminating the vestiges of past state-imposed discrimination to the extent practicable, are demonstrated by judging the Defendants’ accomplishments against the compliance requirements Judge Battisti defined with particularity in his February 26, 1978 -Order as hereinbefore itemized. The record of these proceedings discloses and the Court finds and therefore concludes that: 1. administrative and certified supervisory and teaching personnel have been desegregated to the extent practicable; and 2. non-eertified personnel have been desegregated to the extent practicable; and 3. the Cleveland School District, as discussed herein, has, since 1983 to the present, pursued aggressive affirmative practices, including but not limited to, cross-town busing to desegregate school and classroom enrollment; and 4. as more fully herein discussed, a creative educational curriculum, including innovative reading and other programs and initiatives designed to correct, to the extent reasonably practicable, the effects of segregated schools have been introduced into the Cleveland School District in the form of the community-wide acclaimed Vision 21, and implemented for at least two years by a totally integrated administrative and certified supervisory and teaching staff; and 5. to the extent practicable, substantial compliance with the other ancillary adjunct components of the seminal remedial order calculated to (1) remedy the academic effects of prior segregation, (2) ensure that existing and future programs and initiatives are administered in a non-diseriminatory fashion, (3) maintain a secure, integrated school environment in which the rights of all students are protected, has been achieved by introducing and implementing— (a) an effective, approved, and accurate testing and tracking program; (b) an effective and approved counseling and career guidance program; (c) an effective magnet school program; (d) an effective program of cooperatio