RONALD LEE GILMAN
ARGUED:Michael Lottman, Kingston Springs, Tennessee, for Appellants. Allison L. Bussell, Department of Law of the Metropolitan Government of Nashville and Davidson County, Nashville, Tennessee, for Appellees. ON BRIEF:Michael Lottman, Kingston Springs, Tennessee, Larry Woods, Allen Woods, Woods & Woods, Nashville, Tennessee, for Appellants. Allison L. Bussell, Christopher M. Lackey, Department of Law of the Metropolitan Government of Nashville and Davidson County, Nashville, Tennessee, John W. Borkowski, Hogan Lovells U.S. LLP, South Bend, Indiana, for Appellees.
Before: GILMAN, ROGERS, and SUTTON, Circuit Judges.
OPINION
RONALD LEE GILMAN, Circuit Judge.
This is a class-action lawsuit alleging racial resegregation in the Nashville public school system. In July 2008, the Metropolitan Nashville Board of Public Education (the Board) adopted a new student-assignment plan generally referred to as the Rezoning Plan. The Rezoning Plan modified the student-assignment plan that had been in place since the Metropolitan Nashville Public Schools District (the District) achieved unitary status (i.e., became desegregated) in 1998. One of the modifications effected by the Rezoning Plan was to eliminate the so-called mandatory noncontiguous transfer zones, meaning that the existing system whereby students in racially isolated geographical zones were bused to racially diverse schools in noncontiguous zones was replaced by a system in which the same students were given a choice of either attending the schools in their own neighborhood or being bused to schools in the same noncontiguous zone as before, but not necessarily to the same school previously attended.
The parents and the grandmother, respectively, of two black children sued the Board on behalf of their children and all black students in the District whose school assignments were adversely affected by the elimination of the mandatory noncontiguous transfer zones. They allege that the Rezoning Plan eliminated the desirable practice of being bused to a good, racially diverse school and replaced it with two inferior choices: staying in a bad, racially isolated neighborhood school or being bused to a bad, racially diverse school. This, they claim, has led to resegregation in violation of the students' rights under the Equal Protection Clause of the United States Constitution. The district court ruled in favor of the Board after an 11–day bench trial. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual background
The following facts are taken primarily from the district court's Findings of Fact and Conclusions of Law as filed in Spurlock v. Metropolitan Government of Nashville, No. 3:09–cv–00756, 2012 WL 3064251 (M.D.Tenn. July 27, 2012). Nashville has a long history of officially enforced school segregation. Following the Supreme Court's landmark decisions in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I ) (holding that segregating schoolchildren by race is unconstitutional), and Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II ) (imposing on local school boards in segregated districts the affirmative duty to “effectuate a transition to a racially nondiscriminatory school system”), Nashville, like many other previously segregated school districts, was ordered to desegregate. This was finally accomplished in 1998 when, pursuant to a settlement in Kelley v. Metropolitan Board of Education, No. 3:55–2094, the District achieved unitary status.
Unitary status means that a school district has abandoned the “dual” status of “intentional segregation of students by race” and “has been brought into compliance with the command of the Constitution.” Freeman v. Pitts, 503 U.S. 467, 487, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992) (internal quotation marks omitted). It signifies, in other words, that a district has “eliminated the vestiges of prior segregation to the greatest extent practicable” with respect to legally imposed segregation, although it does not mean that, as a factual matter, all district schools contain a racially diverse mix of students. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 701, 715–16, 720–21, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007). In fact, many school districts that are no longer segregated de jure remain segregated de facto due to private preferences reflected in housing patterns, and Nashville's District is no exception. See Spurlock, 2012 WL 3064251, at *16–17 (setting forth data showing that, both before and after the implementation of the Rezoning Plan, a number of neighborhoods and schools in Nashville were over 80–percent black and a few over 90–percent black). Once a school district has achieved unitary status, however, it is no longer under an affirmative “duty to remedy imbalance that is caused by demographic factors.” Freeman, 503 U.S. at 494, 112 S.Ct. 1430.
After achieving unitary status, the District operated under a plan whereby students were assigned to schools largely on the basis of geography. Nashville's school system was organized into 11 (later changed to 12) “clusters,” one cluster for each comprehensive high school. The cluster system provided for stable “feeder” patterns, meaning that students in the relatively large number of elementary schools in each cluster would be “fed” into a smaller number of middle schools in the same cluster, and middle-school students in turn would be funneled into the single comprehensive high school in the cluster.
Most clusters were geographically contiguous. Some, however, included noncontiguous zones—that is, areas that were considered part of the cluster even though they were not adjacent to the rest of it. Students from a cluster's noncontiguous zones, like students from elsewhere in the cluster, were assigned to the comprehensive high school in the cluster, and the District provided them with free school-bus transportation for that purpose. The noncontiguous zones included the poor and predominantly black Pearl–Cohn Cluster, which was linked to the comparatively well-off and racially diverse Hillwood Cluster. Nashville operated under this student-assignment plan from 1998 to 2008.
The old student-assignment plan was not without its disadvantages. One problem that had long worried Nashville's political leaders, including several mayors and the Metro City Council, was the under-utilization of various schools throughout the District. Some schools attracted a large number of students and were utilized above capacity, while other schools were relatively empty and operated at levels well below what their infrastructure and resources would allow. This problem grew worse after the failure of a September 2005 referendum to increase school funding.
The District has a history of attempting to address its under-utilization problem. In 2006, the District contracted with the Council of Great City Schools, an association of the nation's 66 largest urban school districts, to study zoning patterns and make recommendations to the Board. A team from the Council was sent to Nashville for this purpose but, as the trial transcript indicates, the team “fell apart” before making any recommendations. Similarly, a task force appointed by the Board to look into potential rezoning and the closing of some schools in order to address the under-utilization problem “walked away” from the task after a few meetings because the issue was too politically contentious.
The school-utilization issue came up again in 2007, when the anticipated opening of the Cane Ridge High School in 2008 provided an impetus for the Board to tackle the challenge. In May 2007, Larry Collier, then the District's Director of Student Assignment Services, made a presentation to the Board about the desirability of optimizing facility utilization, maximizing student choice, reducing transportation costs, and enhancing the involvement of families in their children's education. The presentation also posed the question of whether the noncontiguous zones were necessary.
Collier drafted a rezoning plan over the summer and presented it to the Board in the fall of 2007. Under the proposed plan, elementary- and middle-school students living in the Pearl–Cohn Cluster would no longer be bused to the distant Hillwood Cluster schools, but would instead be zoned to attend the schools closer to their own homes. High-school students from the Pearl–Cohn Cluster, however, would continue to attend Hillwood High School for the time being. Collier's plan was considered by the Board but ultimately withdrawn. Instead, the Metropolitan Nashville Public Schools (MNPS) implemented a scaled-back plan that left the old student-assignment system largely intact but added a cluster to accommodate the new Cane Ridge High School.
In January 2008, the Board created a Community Task Force for Student Assignment (the Task Force) with a mission to come up with a new, comprehensive student-assignment plan for the District. The Task Force initially consisted of twelve appointed members. Of these, one was appointed by each of the nine Board members (including the Chair), one by the Mayor of Nashville, one by the MNPS Director, and one current Board member was placed on the Task Force as a second appointee of Board Chair Marsha Warden. Mark North, the Board member appointed by Warden, chaired the Task Force. The members appointed by the MNPS Director and the Mayor later withdrew for reasons not specified by the district court or in the parties' briefs. This left the Task Force with ten members, consisting of five blacks and five whites (including North). (The words “black” and “white” as used throughout this opinion are synonymous with “African–American” and “Caucasian,” respectively.)
The Board vested the Task Force with the goal “to develop a plan that promotes excellent academic and scholastic opportunities for every school-age resident of Davidson County” (the county that is coextensive with the city of Nashville). It also gave the Task Force a list of nonexclusive factors to consider—namely, “building under-utilization and overcrowding,” “choice options for students and parents,” “diversity” (defined as “the benefit of different perspectives and backgrounds to the student, the classroom, the school, and the school system as a whole”), “enhanced academic achievement,” “enhanced opportunities for extracurricular activities,” “fiscal responsibility,” “more parental involvement,” “benefits of neighborhood schools,” “stability and certainty for students and parents evaluating their options,” and “potential unintended consequences.” Several materials were provided for the Task Force to consider in developing a new student-assignment plan, including a history of student-assignment issues in Nashville, the 1998 student-assignment plan, the Collier plan that was proposed and withdrawn in 2007, the scaled-back plan that had been adopted in 2007, demographic data, an article by two professors at Vanderbilt University analyzing the policy of neighborhood schooling in Nashville, and the Supreme Court's opinions in Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), and Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007).
The Task Force began its work promptly in early January 2008. It held weekly meetings lasting two to four hours each, all open to the public, and it also held separate brainstorming sessions. The Task Force initially focused on the Pearl–Cohn and Hillwood Clusters because “they embodied virtually all the issues in the Task Force's charge, e.g., building utilization, transportation costs, diversity, and school performance.” Spurlock, 2012 WL 3064251, at *8. Task Force members considered and debated all of the materials provided to them. They also personally took bus rides with schoolchildren going from noncontiguous zones to their assigned schools.
During its deliberations, the Task Force requested and received demographic data from the District staff, including student-enrollment numbers by race and socioeconomic status. The data also showed what the demographic and socioeconomic picture would look like if various proposals were adopted. Task Force members, including Chairman North, testified that they requested such data because racial and socioeconomic diversity was one of the factors that they had been asked to consider.
Task Force members, both black and white, testified favorably regarding the Task Force's own diversity—both racial diversity and the diversity of backgrounds and views. They testified that they individually did not harbor any racial prejudices and did not think that any other member harbored such prejudices either, and the plaintiffs do not point to any testimony or evidence to the contrary.
The Task Force ultimately achieved unanimous agreement on a set of recommendations that it initially presented to the Board at the end of May 2008. These recommendations—which, with certain revisions, would be adopted by the Board in July of that year as the final Rezoning Plan—left intact the basic structure of the old student-assignment plan whereby a student's geographical area of residence determined his or her school assignment. The Rezoning Plan did, however, alter the zoning designation of certain geographic areas and schools, propose school-specific recommendations, and close a number of schools.
Most importantly for the purposes of the present case, the Rezoning Plan changed the old noncontiguous zones to “choice zones.” Under the new system, students in the former noncontiguous zones would not be required to attend a school in a geographically distant neighborhood. They would instead have a choice of either attending a school in their own neighborhood or being bused to a more distant school in the same cluster where they had formerly attended school, with free transportation provided by the District. But the new schools designated for students in noncontiguous zones were not necessarily the same individual schools designated under the old plan.
According to the Task Force, the new outside schools designated for noncontiguous-zone students were those that had the capacity to take in more students and stood to gain more from a diverse student body. The plaintiffs, however, have a different view of the matter. They claim that the newly designated schools were inferior to the schools to which they had been bused under the old plan. This inferior option, they allege, effectively directed the overwhelmingly black student population in noncontiguous zones away from the racially diverse schools in higher-income neighborhoods and toward the racially isolated schools in their own poverty-stricken neighborhoods.
The other significant modification effected by the Rezoning Plan was to increase the funding and resources allocated to schools in the poorer areas. Specifically, the Rezoning Plan called for more advanced-placement and honors course offerings, lower student-teacher and student-counselor ratios, enhanced pay for teachers, increased technology offerings, additional social workers, and full-time career and college counselors for schools in low-income and racially isolated neighborhoods.
These measures were designed to increase the utilization of low-income neighborhood schools—which, in the case of schools located in the Pearl–Cohn Cluster, were described in the Plan as “grossly underutilized”—by enhancing their quality and attractiveness. The same goal was also pursued through geographic rezoning. For example, the Rezoning Plan placed the relatively high-income Hope Gardens neighborhood, as well as affluent areas in Germantown and Downtown Nashville, into the Pearl–Cohn Cluster.
When North presented the Task Force's draft Rezoning Plan to the Board in May 2008, Board members asked questions and requested more details regarding certain aspects of the Plan, but were overall favorably disposed. Subsequently the Board sought and received community input on the proposed Plan. It held community meetings at East Literature Magnet School in East Nashville, Fall–Hamilton Elementary School in South Nashville, Hillwood High School in West Nashville, and John Early Middle School in North Nashville. The Board also scheduled meetings throughout June to present the draft Rezoning Plan to and receive feedback from various interested groups and persons—including the Interdenominational Ministers' Fellowship, the National Association for the Advancement of Colored People (NAACP), the Parents Advisory Council, the Comité de Padres Latinos (the Committee of Latino Parents), the Metropolitan Nashville Education Association Teachers' Union, the Service Employees International Union, the Mayor's Office, and the authors of the Vanderbilt study.
Meanwhile, the Task Force met again to address some of the concerns expressed by the Board and the community. It provided more details on the additional resources recommended for the Pearl–Cohn Cluster, prepared a budget indicating where the additional resources would come from, and, in response to a request by a representative of the NAACP, added more advanced-placement and honors courses for the poorer schools. The Task Force also worked out the details of the zoned-option choice. Having made these modifications, the Task Force voted unanimously in favor of recommending the revised Rezoning Plan to the Board.
The Task Force presented the revised Rezoning Plan to the Board in early July 2008. North reiterated that “the most important thing is that every school be a good one.” Others, however, spoke in favor of deferring the Rezoning Plan's implementation. Marilyn Robinson, President of the NAACP branch in Nashville, recommended that the Rezoning Plan be delayed because the Board could not guarantee additional resources for the poorer schools and because the Plan would create separate-but-equal schools by “warehousing students” in the Pearl–Cohn Cluster. Board member Ed Kindall similarly contended that the Rezoning Plan would increase racial and socioeconomic isolation without making meaningful progress on facility utilization and academic performance. Chairperson Warden then spoke out in defense of the Rezoning Plan, describing the history of gridlock on rezoning reform in Nashville and underscoring the Board's responsibility to vote on the Task Force's reform measures. In the end, the Board voted by a five-to-four margin not to delay a vote on the Rezoning Plan. The five-member majority consisted of one black and four whites; the four minority members were all black.
Debate then focused on whether to vote for or against the Rezoning Plan itself. Two Board members spoke in favor of the Plan, emphasizing the Task Force's diversity, apolitical nature, and unanimity. They also cautioned against adopting modified or alternative proposals that had been submitted on the spot by other Board members and had not been subject to prior deliberation. Another Board member recommended that the Board adopt the Rezoning Plan except for the provisions affecting the Pearl–Cohn, Hillsboro, and Hillwood Clusters. In the end, the Board voted five to four to adopt the Task Force's Rezoning Plan without modifications. The vote on the merits broke down along the same lines as the vote to delay.
The Rezoning Plan went into effect starting with the 2009–10 academic year. Although its long-term effects cannot be fully ascertained at the present time, the available data does permit a provisional assessment of how the Rezoning Plan has addressed several of its stated goals and concerns. With respect to facility under-utilization, which provided the original impetus for the Task Force as well as for previous rezoning efforts, the district court assembled the following data: