888 F.

2d 82
56 Ed. Law Rep. 791

Ralph STELL, a minor, et al., Plaintiffs-Appellants,

United States of America, Plaintiff-Intervenor, Appellant,
v.
SAVANNAH-CHATHAM COUNTY BOARD OF
EDUCATION, a public body
corporate, et al., Defendants-Appellees.
No. 88-8465.

United States Court of Appeals,

Eleventh Circuit.
Sept. 29, 1989.
Rehearing and Rehearing In Banc Denied Nov. 8, 1989.

Lowell Johnston, NAACP Legal Defense & Educational Fund, Inc.,

Norman J. Chachkin, New York City, for Stell.
Irving Gornstein, Dept. of Justice, Washington, D.C., for U.S.
Steven E. Scheer, Lee, Smith, Thompson, Black, Scheer & Hart,
Savannah, Ga., Alfred A. Lindseth, Sutherland, Asbill & Brennan, Judith
A. O'Brien, Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court of the Southern District of
Georgia.
Before RONEY, Chief Judge, JOHNSON, Circuit Judge, and YOUNG* ,
Senior District Judge.
RONEY, Chief Judge:
In this Savannah public school desegregation case, the central issue on
this appeal is whether the district court was within its discretion in
approving as a remedy for past discrimination, a desegregation plan which
relies heavily on magnet programs in predominantly black schools and
voluntary "majority to minority" transfers. Inasmuch as prior plans which
provided for mandatory busing, mandatory assignment, and pairing of

black schools with white schools has failed to result in the level of
desegregation the parties desire, and there is sufficient evidence in the
record to support a prediction that this new plan will work, we affirm.
This is the latest in a series of decisions rendered over the last 25 to 30
years in an effort to desegregate the public schools of the City of
Savannah and the County of Chatham County, Georgia, as a remedy for
prior discrimination. The history of the case is fully outlined in the district
court opinion. Stell v. Savannah-Chatham County Bd. of Public
Education, (S.D.Ga., 724 F.Supp. 1384, 1988).
Since the 1971-72 school year, schoolchildren in Savannah-Chatham
County have been assigned to schools pursuant to a school desegregation
plan implemented in compliance with the specific order of the district
court. That plan called for the pairing and clustering of all-black and allwhite schools, for mandatory assignment, and for extensive busing to
achieve a unitary school system. The plan achieved immediate and
successful albeit ephemeral results. After institution of the plan, the
school system lost approximately 10,000 children, predominantly white
and middle class, to private and other area schools. This "white flight"
continued until what had been a majority white school district became
predominantly black.
Recognizing that segregated schools had again taken root, in June 1985, at
the request of the plaintiffs, the district court directed the school board to
submit a redrawn desegregation plan. An initial plan, approved by the
parties, was defeated by the voters of Chatham County who rejected a
proposed bond issue necessary to finance the plan. The parties could not
agree on another plan, so they submitted alternative proposals to the court.
The plans target elementary schools and one high school. The middle
schools and the other high school are currently desegregated. The Justice
Department did not submit a proposal.
The school board's plan abandons mandatory busing, the use of pairing of
one black school to one white school, and mandatory reassignment. The
heart of the board's plan centers on revised attendance zones, voluntary
"magnet programs" and a "majority-to-minority transfer" option.
A magnet is an educational program which, in addition to a basic
curriculum, offers an additional highly specialized curriculum centered on
a theme. Such a program is designed to meet the needs of children as well
as providing an added attraction that will draw students from around the
school district. These programs would be instituted in predominantly

black schools along with traditional educational courses, with each

magnet program to enroll fifty percent white and fifty percent black
students. Because of the residential pattern in the district, the non-magnet
programs would be made up of predominantly black students.
The district court, in a thorough opinion entered after an evidentiary
hearing and allowing the parties additional time to submit supplemental
materials and memoranda, found the school board's plan, "while perhaps
not the most desirable plan which could have been selected if financial
limitations were not a consideration, ... should be effective in achieving
the desegregation of the Savannah-Chatham County public schools," and
adopted the school board's proposal. It is from this order that plaintiffs,
representing the black, minor school-children in the Savannah-Chatham
County School District, and the Justice Department appeal.

We review the district court's order for abuse of discretion, and we are bound
by the district court's findings unless clearly erroneous. Milliken v. Bradley,
433 U.S. 267, 288, 97 S.Ct. 2749, 2761, 53 L.Ed.2d 745 (1977); Lee v.
Anniston City School Sys., 737 F.2d 952 (11th Cir.1984). The school board
authorities are charged with making "every effort to achieve the greatest
possible degree of actual desegregation," but the board must do so "taking into
account the practicalities of the situation." Davis v. Board of School Comm'rs
of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577
(1971).

The district court relied heavily on the school board's witnesses in making its
determination. A number of witnesses, including the school system
superintendent, the president of the Savannah-Chatham County School Board,
and the principals of the schools hosting the pilot magnet programs, testified as
to the planning, design, goals, and feasibility of the school board's plan. Two
other witnesses, whom the court accepted as credible experts in the field of
school desegregation, testified as to the validity of the school board's survey
techniques, the reliability of the board's enrollment and transfer projections, and
the possibilities of success of the school board's plan.

Two principals where the magnet programs are in place testified that magnet
and non-magnet students participated in numerous assemblies, lunch hours,
remedial reading classes, band, chorus, playground and physical education, and
that there was interaction among the magnet and non-magnet students.

The black students in non-magnet programs have several choices. First, resident

children are given priority for admission to the magnet programs in their
neighborhood school. The record indicates that in the two magnet programs
instituted, no neighborhood black child seeking participation on time was
denied admission. Second, resident children who do not wish to participate in
the magnet program in their neighborhood may apply for admission to another
magnet program, or they may voluntarily transfer to another school under the
majority-to-minority program. Third, resident children who attend their
neighborhood magnet school but do not participate in the magnet program
nevertheless attend an integrated school and experience meaningful daily
interaction with the children in the magnet classes.
5

Though plaintiffs' expert, Dr. Michael Stolee, testified that a plan proposed by
plaintiffs would better serve to desegregate the schools, he also admitted that he
was not an expert in statistical analysis or surveys, he has never done any
research or scholarly writing in the areas of white flight, mandatory versus
voluntary plans, majority-to-minority transfers or the characteristics of effective
school desegregation plans. He also testified that he has consulted with one
parent from the school system, but has consulted no school board members, no
teachers, and no administrators, nor has he visited the two elementary schools
piloting the magnet programs to ascertain their success.

The plaintiffs submitted to the court an alternative plan based largely on the
school board's plan and enrollment projections, and relying on the same
attendance zones. The fundamental difference in the plans is that instead of
magnets within otherwise non-magnet schools, plaintiffs would require
dedicated magnet schools, where the entire school would be devoted to magnet
programs. Appellants would also implement a back-up plan involving
mandatory pairing of schools in the event the magnet schools program failed.
Like the board's plan, plaintiffs' proposal allows for the voluntary majority-tominority transfer option.

The plaintiffs' contention that their plan is better is a fact question, and it was
clearly within the district court's discretion to choose between conflicting
testimony. Given the district court's opportunity to observe the witnesses'
demeanor and level of experience, we cannot find clear error in the district
court's holding that the school board's plan was more appropriate.

In challenging the school board's use of a limited magnet school program,

plaintiffs contend that the school board's plan is fatally defective because it
subjects black students attending magnet schools who are not enrolled in
magnet classes to "in-school segregation." Plaintiffs rely principally on two
cases, Davis v. East Baton Rouge Parish School Bd., 514 F.Supp. 869, 872

(M.D.La.1981), aff'd 721 F.2d 1425 (5th Cir.1983), and United States v.
Pittman, 808 F.2d 385 (5th Cir.1987), to support this contention.
9

In both cases, the courts rejected voluntary magnet program proposals similar to
the one adopted in the instant case. Both Davis and Pittman are factually
distinguishable in two important respects. In both cases, the courts determined
that the respective school boards had made no serious effort in the past to
desegregate their schools. No such finding was made in the instant case. To the
contrary, the school board appears here to be fully committed to the success of
this plan and to making adjustments from time to time to make it so. Also, the
rejected programs in Davis and Pittman, both left in place some one-race
schools while the school board's program in this case will integrate all the
schools.

10

While the rejection of the school board's plan was certainly an option within
the district court's discretion, the fact that similar programs were rejected in
Davis and Pittman is not a valid reason for the district court to exercise that
option, particularly in light of the factual distinctions.

11

Plaintiffs contend that under the approved plan, the district has not met its goal
of a racial composition within twenty percentage points above or below the
systemwide student ratio. Such statistics are not independently controlling. The
Supreme Court has made clear that while racial ratios provide a useful tool for
analyzing various plans, they are not to be used as rigid barriers. See Swann v.
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 22-25, 91 S.Ct. 1267, 12791281, 28 L.Ed.2d 554 (1971). While the magnet schools may not have yet met
the goal established by the school board, they are not "segregated" schools in
which minority children are isolated. There is ample evidence in the record to
support the district court's opinion that the school board plan realistically
promises to effectively desegregate the school district.

12

Plaintiffs argue that the approved plan was proposed because of a perceived
fear of "white flight." Because the board and its experts see white flight as an
inevitable consequence of any mandatory desegregation plan, according to
plaintiffs, the board refused to consider any such plan. Plaintiffs are correct that
fear of "white flight" cannot justify delaying desegregation. United States v.
Scotland Neck Bd. of Educ., 407 U.S. 484, 491, 92 S.Ct. 2214, 2218, 33
L.Ed.2d 75 (1972); Tasby v. Wright, 713 F.2d 90, 99 (5th Cir.1983). Neither
may it be appropriate to design a plan controlled by predicted white flight. The
situation is different, however, where white flight has occurred, the school
system has become predominantly black, and the problem is how to attract
white students back into the program. Plans like the school board's that are

designed to attract white students into predominantly black schools are suitable
as long as they do not frustrate desegregation efforts. Tasby, 713 F.2d at 99;
Davis v. East Baton Rouge Parish School Bd., 721 F.2d 1425, 1438 (5th
Cir.1983).
13

In fact, we were told at oral argument that a substantial number of both white
students and black students have re-entered the school system since the plan
was implemented. The goal is education. A school system should be designed
to attract motivated students of all races if it is to provide quality education.

14

The district court found here that the plan proposed by the school board relying
on voluntary desegregation techniques is particularly appropriate in light of the
previous failure of mandatory pairing and busing. The district court committed
no clear error in making this determination.

15

The court stated that the primary purpose of the magnet program as designed
for this desegregation plan is to draw white students to the almost exclusively
black inner city schools in substantial enough numbers to desegregate those
schools. The plaintiffs' contention that magnet schools, rather than magnet
programs, will produce more effective integration could properly be rejected.
Both of the school board's school desegregation experts testified that dedicated
magnet schools would require mandatory reassignment of resident black
students who do not enroll in the magnet programs, which would place an
unfair burden on those students.

16

Neither the district court nor the school board was unmindful of plaintiffs'
concerns about students in the non-magnet programs having the opportunity to
interact with magnet program students. The court acknowledged this concern
and stated that because it retains jurisdiction over this case, alterations can be
made in the future if it proves necessary. We note that while we recognize the
potential problems in the proposed plan pointed out by plaintiffs, we cannot
base a finding of abuse of discretion upon these flaws.

17

The district court correctly stated that the measure of a desegregation plan is its
ultimate effectiveness. Davis v. Board of School Comm'rs of Mobile County,
402 U.S. at 37, 91 S.Ct. at 1292. The type of plan employed is of little
consequence so long as it effectively achieves the constitutionally required
result that public schools be conducted on a unitary basis. Valley v. Rapides
Parish School Bd., 434 F.2d 144, 146 (5th Cir.1970). There is ample evidence
to support the district court's conclusion that this plan "is valid and would lead
to effective and stable desegregation if given an opportunity to succeed."

18

The United States does not endorse the argument that plaintiffs' proposed plan
should be accepted rather than the school board's. Rather it presents a limited
challenge on this appeal. First, the United States seeks a plan requiring the
school board to integrate magnet and resident students attending the same
school in non-magnet courses (academic courses as well as physical education,
assembly and shared lunch hours). The schools presently do this pursuant to
stipulation between the parties. Since the following of this stipulation will
make it more likely that the result sought by all parties will be achieved, we
remand this case for the district court to implement the stipulation into a court
order. Second, the Government seeks magnet programs at predominantly white
schools as well, to draw black students to these schools. Although we make no
decision as to its merit at this time, this is the type of recommendation that the
court should review on remand and consider whether its implementation as part
of the court-ordered plan would enhance the chances of a successful result. It is
understood that adjustments may have to be made from time to time that will be
worthwhile in making improvements in the school board's plan. That fact,
however, does not constitute proof that the adopted plan is constitutionally
defective.

19

AFFIRMED and REMANDED.

Honorable George C. Young, Senior U.S. District Judge of the Middle District
of Florida, sitting by designation