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HOOTS v. PENNSYLVANIA

July 25, 2000

DOROTHY HOOTS, ET AL., PLAINTIFFS,
V.
COMMONWEALTH OF PENNSYLVANIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Cohill, Senior District Judge.

  OPINION

This case comes before us on motions filed by defendants Woodland Hills School District ("WHSD" or "the District") and the Commonwealth of Pennsylvania, seeking a declaration of unitary status and the end of judicial supervision of the District's schools. Plaintiffs, representing a class of children and parents in the District, oppose these motions. For the reasons set forth below, we will grant defendants' motions in part and deny them in part, and thus commensurately curtail our oversight of the District's schools.

Background

The underlying facts of this case have been well documented numerous times throughout the past twenty-nine years. To provide a context for our consideration of the question of unitary status, however, we will briefly summarize the relevant developments in this litigation.

The late Judge Gerald Weber conducted a trial on plaintiffs' claims, and determined that the creation of the General Braddock Area School District was an act of de jure discrimination, in violation of the Fourteenth Amendment. Hoots v. Commonwealth of Pennsylvania (Hoots II), 359 F. Supp. 807, 823 (W.D.Pa.); aff'd, 495 F.2d 1095 (3d Cir. 1974); cert. denied, 419 U.S. 884, 95 S.Ct. 150, 42 L.Ed.2d 124 (1974).

This finding of liability against the then defendants Commonwealth of Pennsylvania, state Board of Education, and Allegheny County Board of School Directors, marked the beginning of the next phase of the case. Judge Weber directed the defendants to prepare a comprehensive school desegregation plan to remedy the Constitutional violations. There followed a series of proposed remedies, each of which the Court determined to be inadequate.*fn1 In the spring of 1981, the plaintiff class presented a merger plan, proposing a consolidation of the General Braddock Area School District with several neighboring districts serving predominantly white populations. Following a hearing on this proposal, the Court adopted the plaintiffs' plan and ordered the immediate merger of the General Braddock Area School District with the districts of Edgewood, Churchill, Swissvale, and Turtle Creek. Hoots VIII, 545 F. Supp. 1 (W.D.Pa. 1981). The Court of Appeals for the Third Circuit affirmed both the merger and the underlying finding of de jure discrimination. Hoots IX, 672 F.2d 1107 (3d Cir.), cert. denied, 459 U.S. 824, 103 S.Ct. 55, 74 L.Ed.2d 60 (1982).

What was then known as the "New District" and later became the Woodland Hills School District, began operation with the 1981-82 school year. The second decade of this litigation saw the gradual development and implementation of remedial student assignment and transportation plans, designed to desegregate all of the District's schools. Judge Weber ordered an interim arrangement to desegregate the secondary schools during that first year, and directed the School Board to submit a plan for full desegregation of all the New District's schools. Ultimately, the School Board proved unable to do so.*fn2

Following hearings on plans submitted by both parties, the Court adopted a comprehensive student assignment plan covering grades 1-12 for the 1982-83 school year. Hoots XIII, 539 F. Supp. 335 (W.D.Pa 1982), aff'd, Hoots XIV, 703 F.2d 772 (3d Cir. 1983). At the elementary level, the assignment of students was based upon "paired" or "clustered" schools, configured as K-3 and 4-6; this arrangement successfully integrated the student populations, maintained two elementary facilities in the minority community, and required that both black and white students share the burden of transportation.

In 1987, the parties successfully negotiated a district-wide reorganization involving building utilization, grade structure, and student assignments. This configuration remains in effect at the present time, although changes from a junior high to a middle school structure are contemplated.*fn3

The pairing of schools continues, and the burden of transportation remains shared by all students. Students in the former General Braddock Area School District travel to schools in the predominately white communities for grades K through 3; then all students at those schools attend grades 4-6 in facilities located in the minority community. Students throughout the District are transported to the junior and senior high schools.

By 1987, then. the attendance plan placed all children in desegregated facilities and imposed the burden of transportation on both black and white students. However, the discriminatory effects of the constitutional violation remained evident in such areas as student. activities, guidance and discipline, educational programs, including special education, and staff assignments. Thus the defendants, with much prodding by the Court, began the process of implementing programs to remedy the vestiges of discrimination. Many of these racial disparities and remedies were first articulated in a Consent Decree, which was negotiated by the parties and presented to the Court on July 12, 1988.*fn4

Judge Weber passed away in August, 1989, before any agreement could be reached on a remedial plan. This case was then assigned to the undersigned. The Court appointed a Hearing Officer, Mark T. Fatla, Esquire, to conduct a hearing on the parties' conflicting implementation plans. After six weeks of hearings, he issued a Report and Recommendation Regarding Desegregation Remedies on August 20, 1990 ("1990 R & R"). The Court then heard argument and adopted the Report and Recommendation, with three exceptions. including activities, in an unpublished Opinion and Order dated January 16, 1991 ("1991 Opinion & Order").

Recognizing that the vestiges of discrimination were embedded deep in all aspects of school life, we ordered that remedies for the constitutional violation proceed along several fronts at once. To assure that all students in the District received an equal education, we ordered a comprehensive redesign of curriculum and testing, so that the curriculum would be appropriate for heterogeneous, multicultural, detracked classrooms*fn5 and that the effectiveness of this redesigned curriculum would be carefully monitored through proper assessments. We recognized, however, that merely providing an equal educational opportunity from 1991 forward would not address the existing gap between the races in academic performance. (1991 Opinion at 4.) Children who were already behind as a result of a segregated school system needed additional help, and, to that end, we ordered the District to implement appropriate compensatory and remedial programs beginning at the elementary level.

We also acknowledged the difficulties inherent in expecting teachers who were familiar only with tracked, homogeneous classrooms, to teach in the District's multicultural, detracked setting. Therefore, as part of the remedy we ordered the District to provide appropriate in-service training and workshops for its teachers and other staff.

To address the clear racial disparities in discipline, we ordered the District to reorganize the guidance department and to hire a number of new guidance counselors.

Our 1991 Opinion and Order included a variety of other miscellaneous remedial relief, including the hiring of certain specified personnel, although we declined to order the District to provide after-school transportation for activities. We also ordered that the cost of all court-ordered remedial programs be funded 90% by the defendant Commonwealth, as the party charged with the constitutional violation, and 10% by the District. (1991 Opinion & Order at ¶ 17; 1990 R & R at 96.)

The Court of Appeals reversed this Court's ruling on activities, and affirmed on all other issues. Hoots XVI, Nos. 91-3316, 91-3317, 91-3319, 91-3436, 1992 WL 289174 (3d Cir. filed Sept. 21, 1992). The 1990 R & R and the 1991 Opinion and Order remain the basis of the court-ordered remedies in place today.

Implementing the appropriate remedies and measuring their effectiveness remained a point of friction between the parties. In 1995, we again appointed Mr. Fatla to act as a Special Master in this matter. In that position he has conducted a series of hearings, including a lengthy hearing in 1997 on discipline and guidance, issued several Reports and Recommendations, and held regularly scheduled status conferences to attempt to resolve ongoing remedy and budget issues. Mr. Fatla has served the Court and the parties well in this capacity.

The defendants each filed motions for a declaration that the District has achieved unitary status in October of 1999. In addition, the District filed a unitary status transition plan. A hearing on these motions commenced on April 3, 2000, and we heard closing arguments on May 16. Defendants presented the testimony of District Superintendent Dr. Stanley Herman, Dr. Christine Rossell, Dr. Stefan Biancaniello, Dr. Jacquelyn Webb, Leah Mccord, Norman Catalano, Dr. Vijai Singh, Dr. James Henderson, Dr. Charles Achilles, Dr. David Armor, Dr. Joel Reed, Dr. Roslynne Wilson, Chester C. Kent, Dr. Elmer Haymon, Jr., and Judge John McLean, Jr., who served as the most recent court-appointed Monitor in this action. The plaintiffs presented the testimony of Kay Brown, Dr. Olatokunbo Fashola, Dr. Jan de Leeuw, Dr. Lea Hubbard, Dr. Robert Cooper, and Dr. William Gordon. Rebuttal testimony was given by WHSD School Board President Dr. Randy Lott, and by Dr. Herman and Dr. Rossell.

The Court also asked to visit several of the District's schools. On April 19, 2000, accompanied by Superintendent Herman and by counsel for all parties, the Court had a first-band opportunity to visit some of the school facilities and to observe classrooms and instructional techniques. At the Court's request plaintiffs selected the schools for the visit, and arrangements were made to tour Wilkins and Dickson elementary schools, West Junior High School, and Woodland Hills Senior High School.

Having considered all of the testimony and all of the evidence, we turn now to the question of whether the defendants have achieved unitary status by complying, in good faith, with this Court's remedial orders.

Legal Standards

Federal judicial supervision of a local school district is intended to be a temporary measure. Board of Educ. v. Do well, 498 U.S. 237, 247-48, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991); Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 761 (3d Cir. 1996.) The court's aim must be to remedy the constitutional violation, and then "to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution." Freeman v. Pitts, 503 U.S. 467, 489, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992) (citing Milliken v. Bradley, 433 U.S. 267, 280-81, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977)). "The duty and responsibility of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system." Freeman, 503 U.S. at 485, 112 S.Ct. 1430. When a school district has done so, we say that the district is now "unitary," because it no longer operates a dual, or segregated, system of education.

However, although achieving "unitary status" and thus relief from judicial supervision is the school district's goal, the term itself does not have a fixed meaning, "and does not confine the discretion and authority of the District Court in a way that departs from traditional equitable principles." Freeman, 503 U.S. at 487, 112 S.Ct. 1430 (citing Dowell, 498 U.S. at 245-46, 111 S.Ct. 630). Each school desegregation case must be evaluated on a careful assessment of its particular facts. Freeman, 503 U.S. at 474, 112 S.Ct. 1430. Equity permits a federal court "to relinquish supervision and control of school districts in incremental stages, before full compliance has been achieved in every area of school operations." Id. at 490-491, 112 S.Ct. 1430. "A transition phase in which control is relinquished in a gradual way is an appropriate means to this end." Id. at 490, 112 S.Ct. 1430. In addition, where vestiges of a dual system remain in some, but not all, areas under judicial supervision, the "district court will retain jurisdiction over the school system, but need not maintain constant supervision or control over factors as to which compliance has been achieved." Id. at 507, 112 S.Ct. 1430 (Souter, J. concurring).

WHSD insists that because the original constitutional violation in this case was the Commonwealth's decision to draw the school district boundary lines which created the General Braddock Area School District, that "[s]ince 1981, WHSD has operated as a unified system." Defendants' Findings of Fact and Conclusions of Law at ¶¶ 22, 23. We agree; unitary status, however, requires more than a racially integrated school district; the constitutional obligation has not been met until the school district affirmatively has eliminated the vestiges of segregation. Coalition, 90 F.3d at 759 (citing Green v. County School Bd., 391 U.S. 430, 435, 437-38, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968)).

In deciding a motion for unitary status, the court must determine "whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable." Coalition, 90 F.3d at 760 (1996) (quoting Freeman, 503 U.S. at 492, 112 S.Ct. 1430).

The Supreme Court has identified certain components of school operations that a court deciding a question of unitary status must evaluate: student building assignment, faculty and staff assignment within the school district, transportation, facilities, and extracurricular activities. Green v. County School Bd., 391 U.S. 430, 435, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Dowell, 498 U.S. at 250, 111 S.Ct. 630. "[C]ompliance with these `Green Factors' is a condition precedent to unitary status." Coalition, 90 F.3d at 776.

Ascertaining whether the school district has complied with the Green factors, however, does not end the court's inquiry into whether the vestiges of past discrimination have been sufficiently eliminated so that unitary status has been achieved. The court must also determine whether the school district has complied with any court-ordered ancillary remedial programs. Coalition, 90 F.3d at 760.

Once a constitutional violation has been established, the defendant "bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation." Freeman, 503 U.S. at 494, 112 S.Ct. 1430. "[T]here is a presumption that current disparities are the result of the defendant's unconstitutional conduct." Jenkins v. Missouri, 122 F.3d 588, 593 (8th Cir. 1997). To counter that presumption, the defendants may offer proof that any current racial disparity in areas encompassed by either the Green factors or the court-ordered ancillary relief, is caused by variables outside the school district's control and thus is not a vestige of the prior constitutional violation. "It is beyond the authority and beyond the practical ability of the federal courts to try to counteract" such forces. Freeman, 503 U.S. at 495-96, 112 S.Ct. 1430; Missouri v. Jenkins, 515 U.S. 70, 102, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995). "As the de jure violation becomes more remote in time . . . it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system." Freeman, 503 U.S. at 491-92, 112 S.Ct. 1430. To state the obvious, "court-ordered school desegregation alone cannot eliminate racial discrimination." Coalition, 90 F.3d at 756.

Once a court determines that a school district has attained unitary status, the burden of proving that any future disparities are caused by intentional segregation shifts back to the plaintiffs. Jenkins v. Missouri, 122 F.3d at 593.

Applying this general legal framework to the specific facts of this case, the Court makes the following findings of fact and conclusions of law.

Green Factors

A court considering the question of unitary status must determine that the school district has complied with each of the Green factors.

Student Assignment

Findings of Fact:

Whether the students in the District's schools are assigned to schools which have been desegregated so as not to be identifiably white or African-American is not seriously in dispute at this point in this litigation. Indeed, as early as 1990-91, we found that "each of the District's nine school buildings reflects very closely the proportion of minority students in the community." (1990 R & R at 6.)

Plaintiffs agree that the District has achieved desegregated building assignments. (Pls.' F & C at ¶ 42.) Plaintiffs' expert, Dr. Gordon, acknowledged that the District had maintained desegregated building enrollments in compliance with various Orders of Court for at least the past sixteen years. (Tr. 5/8/00, at 146.)

Plaintiffs contend, however, that student assignment to individual classrooms is not always desegregated, and that certain courses have a racial imbalance in their student populations. To the extent that this premise relies on the "plus or minus 30% standard" contained in the Consent Decree, we must emphasize that we have never adopted that standard in any of the orders binding all of the parties in this case. Furthermore, the testimony of defendant's expert, Dr. Rossell, established that the percentage of students in the District's classrooms which are racially balanced within plus or minus 20 percentage points is extremely high.*fn6

Conclusions of Law:

We determined that the facilities in the Woodland Hills School District were successfully desegregated in 1990, and the issue has not been contested since that date. We are satisfied that students throughout the District attend classes which are racially balanced to a very high degree. Accordingly, we find that the District has achieved unitary status as to this Green factor.

Faculty and Staff Assignment

Findings of Fact:

The 1990 R & R concluded that serious racial disparities remained at all levels of the District's staff, despite the existence of a voluntary affirmative action plan. (1990 R & R at 29.) As the Hearing Officer noted, the staff of the component districts at the time of the merger included very few African-American professionals. (Id. at 27.)

Defendants' expert Dr. Christine Rossell analyzed data regarding WHSD faculty and staff. She testified that the racial balance of the faculty and professional staff of each of the nine schools in WHSD is within plus or minus 10 percentage points of the school system's percentage of African-American teachers. (Commw. Ex. 1005, 1014; Tr. 4/11/00 at 33, 56.) In other words, although the percentage of African-American faculty and staff varies from one school to another, across the District those percentages are within an acceptable range.

Dr. Webb testified that the District's schools are not racially identifiable with respect to the distribution of staff.*fn8 (Tr. 4/13/00 at 20.) Moreover, with 31% school building administrators African-American, WHSD has a respectable percentage of African-Americans in prominent leadership positions. (Commw. Ex. 1005; Tr. 4/11/00 at 61-62.)

African-Americans also currently hold leadership positions of significant authority and responsibility in the District's central administration, including Dr. Jacquelyn D. Webb, Assistant Superintendent for Curriculum; Dr. Roslynne Wilson, Assistant Superintendent for Management; Dr. Joel Reed, Curriculum Coordinator for Science and Math; and Dr. Elmer Haymon, Director of Guidance. (WHSD Ex. 22.) However, these positions are paid for through court-ordered funds, and the District has indicated, through its transition plan. that it will eliminate these positions when the Court's supervision ends. (Herman Tr. 4/3/00 at 135-36.)

The District's record with respect to hiring for the positions of principal or assistant principal shows that 25% of those positions are presently filled by African-Americans. (WHSD Ex. 22.) Four of the District's nine schools have a total of five African-Americans in these positions, including Mary Frances Duncan, Principal of Shaffer Primary; Leah Saunders McCord, Principal of Fairless Intermediate; Dr. Deborah Vereen, Principal of East Junior High; Dr. Craig Jackson, Assistant Principal of East Junior High; and Clyde Jones, Assistant Principal of West Junior High. (WHSD Ex. 22.)

Dr. Rossell also compared the racial composition of WHSD's faculty and staff to the composition of school districts that have been declared unitary since 1986. She concluded that WHSD is one of the school districts that has achieved nearly perfect racial balance at plus or minus 10 percentage points. (Commw. Ex. 1005, 1015; Tr. 4/11/00 at 58-59.)*fn9

Superintendent Herman and Dr. Jacquelyn Webb, Assistant Superintendent for Curriculum and Instruction, an African-American woman, testified about the efforts made in the District to recruit and hire African-American educators. (Tr. 4/3/00 at 156-59; Tr. 4/13/00 at 21-22.) WHSD undertakes a thorough process of advertising and recruiting to create a racially diverse pool of applicants for vacant faculty positions. (WHSD Ex. 25; Tr. 4/3/00 at 156-59.) Based on the testimony of Superintendent Herman and Dr. Webb, it is clear that WHSDs recruitment and hiring practices are not racially discriminatory. and the District has attempted to hire more minority professionals than it has actually succeeded in hiring. (Tr. 4/3/00 at 156-59; Tr. 4/13/00 at 21-22.)

Dr. Herman explained that 44% of the teachers presently in the District are holdovers who were teaching in one of the merger school districts when Woodland Hills was created in 1981, and that very few of the teachers in the newly merged District were African-American. (WHSD Ex. 23.)

Conclusions of Law

Courts addressing unitary status with regard to faculty and staff assignments "typically have considered faculties within plus or minus 15 percentage points of the district-wide minority composition to be racially balanced." Recognizing the difficultly of achieving racial balance with small school faculties, "some courts have applied a standard of percentage points." Coalition, 90 F.3d at 767. n. 21; Flax v. Potts, 915 F.2d 155, 163 (5th Cir. 1990); Reed v. Rhodes, 1 F. Supp.2d 705, 727 (N.D.Ohio 1998).

This Court has never set forth a target percentage of minority hires in factilty and staff positions. Certainly 7.7% is not a very impressive figure, and we would hope that the District would continue its efforts to hire minority professionals. We are persuaded by the testimony of Dr. Herman and Dr. Webb that the District has complied with our order to desegregate faculty and staff assignments throughout the District to the extent practicable, and conclude that WHSD has achieved unitary status with respect to faculty and staff.

Transportation

Findings of Fact:

Transportation has not been an issue in this case since the earliest years of the newly consolidated school district. The 1990 R & R found that "the burden of transportation is shared to some degree by all students, as white students travel to schools in or neat the minority community for grades 4-6, students from the former General Braddock district travel to schools in the white communities for grades K-3, and students throughout the District ate transported to the Junior and Senior High Schools." (1990 R & R at 6.) We did not include transportation in the list of disparities still flowing from the de jure constitutional violation, nor have we ever found it necessary to address the issue as part of our remedial authority.

The evidence adduced at the hearing on unitary status confirms that transportation affects all students in the District. The pairing or clustering of elementary schools within the District assumed from the outset that all students have to travel some distance to attend schools located outside of their neighborhoods during those years. (WHSD Ex. 5. 6: Tr. 4/3/00 at 77-81.) In addition, virtually all students ate bused to the junior and senior high schools.

Plaintiffs agree that the student assignment within the District provides for an equitable sharing of the burden of transportation. (Pls.' F & C at ¶ 43; Tr. 4/17/00, at 218).

Conclusions of Law:

A court may grant unitary status with regard to this Green factor when transportation is provided on a non-discriminatory basis. (Coalition, 90 F.3d at 768.) There being absolutely no dispute that the burden of transportation in the District has long been equally shared by all students, we find that the defendants have achieved unitary status on this issue and that no further Court oversight is needed.

Facilities

Findings of Fact:

None of the District's nine institutional buildings is racially identifiable in its student population, and regardless of whether a school is located in an historically white or historically black community, the schools reflect no disparity in the quality of physical plant. (Tr. 4/3/00 at 147; 4/13/00 at 20.)

The 1990 R & R concluded that:

the District has also succeeded in upgrading its school facilities, most notably two elementary schools located in the minority community-Benjamin Fairless Elementary and Rankin Elementary. These two facilities were inherited from the General Braddock Area School District in somewhat neglected condition. They have been dramatically upgraded and expanded, providing the District as a whole and the minority communities in particular with a source of pride and confidence for the education of their children.

1990 R & R at 7.

The Hearing Officer also determined that as of 1990, the consolidation of the original three high schools into a single Woodland Hills High School, which was accomplished somewhat later than the consolidation of the elementary schools, not only gave the District its own identity, but "equalized the level of facilities and course offerings provided to all high school students in the District." (1990 R & R at 7.)

The Court's own visit to several of the District's schools, although certainly not an exhaustive inspection of the District's facilities, confirmed the trial testimony that the buildings are in admirable condition and that equal facilities and materials are available to all of the children regardless of which school they attend.

In addition to its buildings, the District has made a significant investment in computer networks and associated hardware and software. This investment was not pursuant to court order and was made without financial assistance from the Commonwealth. The computer resources are integrated throughout the District's instructional space. Superintendent Herman testified that WHSD's investments and resources in technology exceed those of many other school districts. (WHSD Ex. 39; Tr. 4/4/00 at 29-40.)

Defendants' expert Dr. Rossell analyzed per pupil expenditures for each of the District's nine school buildings, and visited all the schools herself. (Commw. Ex. 1005; Tr. 4/11/00 at 75-76.)

Dr. Rossell established that there is little difference in expenditures between the elementary schools that are located in predominantly African-American communities, and the elementary schools that were historically predominantly white, and what little difference there is favors the historically African-American schools. (Commw. Ex. 1005 & 1022; Tr. 4/11/00 at 76-77.)

Plaintiffs do not contest a finding of unitary status with respect to facilities, and agree that "the District has achieved desegregated, physically-sound buildings." (Commw. Ex. 1137; Pls.' F & C at ¶ 42.)

Conclusions of Law:

There being no dispute that the facilities in the Woodland Hills School District are desegregated, and that there is no disparity in the allocation of funds and expenditures for supplies and equipment between the historically black schools and historically white schools, we find that the defendants have achieved unitary status in this area.

Extracurricular Activities

Findings of Fact:

By 1990-91, the District had already taken a number of steps to increase minority participation in student activities in compliance with the Consent Decree. The 1990 R & R noted that the District had hired a full-time Activities Director, and had created advisory committees of students and parents. Significantly, the District had also implemented a "no-cut" policy for activities, so that all students, regardless of ability, have an opportunity to participate. (1990 R & R at 23.) Academic prerequisites to activities such as yearbook and student newspaper staff were eliminated. (Id. at 26.) In addition, the District provided bus transportation for children at the end of after school activities; this was of particular benefit to minority children because the secondary schools are located in predominantly white neighborhoods. (Id. at 23.)*fn10

Nevertheless, we found significant racial disparities remaining in certain clubs and sports, as well as a "precipitous decrease in activities participation at the High School" level. (1990 R & R at 25-26.) While this was true for all high school students, minority student participation in activities declined by a far greater extent. (1990 R & R at 26.) We were also disturbed by the paucity of activities offered at the junior high schools. (1990 R & R at 26.)

The Court's assessment of the District's efforts to encourage minority participation in extracurricular activities was complicated by the fact that the District had failed to provide adequate data collection and reporting as agreed to in the Consent Decree. (1990 R & R at 24, citing Consent Decree at 40-41.)

In 1993 we ordered the District to hire an Activities Coordinator, who would coordinate activities within the secondary buildings, and would also monitor desegregation efforts and submit that data in monthly reports. (Pls.' Ex. 2109.) Kay Brown was hired to fill that position. Ms. Brown, who remains in that role, testified as a witness for the plaintiffs. She suggested that the District has made it difficult for her to do her job. (Tr. Kay Brown 4/27/00.) It is clear from her testimony that she and some in the District have often had conflicting views as to her position, and that she does not believe she has been supported by the Woodland Hills administration.

For more than a decade the District has maintained an "open enrollment/no-cut" policy so that all students, regardless of ability, have an unfettered opportunity to participate in matters that interest them. (WHSD Ex. 30; Tr. 4/3/00 at 164.) All school-sponsored extracurricular activities are conducted in a nondiscriminatory manner with equal access to every student. The activities are listed in WHSD's course selection guides. (WHSD Ex. 30; Tr. 4/3/00 at 164-65; Tr. 4/26/00 at 213-14.)

Today, the District offers a wide array of athletic and extracurricular activities. At the high school, there are 57 different activities; for ninth graders, there are 33 different activities; and for seventh and eighth graders, there are 21 different activities. (WHSD Ex. 26; Tr. 4/3/00 at 160.)

The District encourages all students to participate in extracurricular activities in a number of different ways. It actively recruits students through announcements, postings, and listings in course selection guides, among other efforts. (WHSD Ex. 30; Tm. 4/3/00 at 164-65.) WHSD has employed a full-time activities coordinator and established parent and student committees to promote activity participation. (WHSD Ex. 30; Tr. 4/4/00 at 164.) WHSD supplies uniforms for various activities, so that a student's personal finances need not stand in the way of his or her participation. (WHSD Ex. 30.) Coaches and students from the high schools hold clinics and visit classrooms in the primary and intermediate grades to encourage activities participation. (WHSD Ex. 30; Tr. 4/3/00 at 165.)

WHSD also continues to provide extensive after-school transportation for students participating in activities. WHSD receives no reimbursement pursuant to any Court order in this case for activities transportation. (WHSD Ex. 27, 30; Tr. 4/3/00 at 162, 164.)

The sole eligibility criteria for activities in WHSD is an academic standard. Students who lose eligibility for activities due to substandard academic performance may restore their eligibility by attending tutoring sessions. (WHSD Ex. 30; Tr. 4/3/00 at 165.)

At this point in time, plaintiffs apparently do not dispute that WHSD's extracurricular activities are open to students regardless of race or ability. (See Pls.' Opp'n to Mots. for Unitary Status, at 23-24.)

Dr. Rossell analyzed data regarding student participation in extracurricular activities. (Commw. Ex. 1005; Tr. 4/11/00 at 78.) She concluded that the rate of participation by African-American students in extracurricular activities is proportionate to their enrollment rate at each school. (Commw. Exs. 1005, 1023-A & 1023-B; Tr. 4/11/00 at 78-79, 82-83.)

Dr. Rossell testified that of the numerous clubs and sports activities with more than one student involved, only five have no black students at all. Those activities are diving, ice hockey, Spanish Club, Teens for Teens, and Math Club. All other activities have substantial numbers of black students. In addition, there are no all-black activities. All activities have white students ...


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