United States of America, Sheanda Bryant, Intervenors-Appellants, Cross-Appellees v. Lawrence County School District, Cross-Appellants , 799 F.2d 1031 ( 1986 )

ALVIN B. RUBIN, Circuit Judge:

A school board that had unconstitutionally segregated students by race was ordered by this court in 1969 to desegregate in accordance with a plan incorporated into this court’s decree. After the case had been remanded to the district court, the school board violated some of the terms of the desegregation order. The key issues are whether the school system has previously been declared unitary in the sense of being desegregated, and, if not, whether the court is now limited to ordering the school board to comply with the original desegregation plan or whether the court may order changes in the plan in an effort to further the establishment of a unitary school district — i.e., a district in which schools are not identifiable by race and students and faculty are assigned in a manner that eliminates the vestiges of past segregation.

I.

Lawrence County is a rural county in south-central Mississippi. Its total population is 12,518, 30% of which is black, and its student population is 2,781, 44% of which is black. The county has only two towns of any size, Monticello and New Hebron. Monticello is located in the county’s center and has a racially mixed population of 1,834, 20% black. New Hebron is located in the extreme northeastern part of the county, and its population of 470 is predominantly white. Silver Creek, a community about eight miles south of New Hebron, is predominantly black and has a population of about 300.

As shown on the county map attached, Pearl River divides the county from its north-central to southeastern boundaries. In the county, the river is crossed by bridges in two places, one on U.S. Highway 84, the main road through Monticello, and the other on a secondary road north of the town. The population in the southwestern part of the county, which is on the west side of Pearl River, is predominantly white. The population living on the east side of Pearl River, south of New Hebron, is predominantly black, as is the population in the northwest-central part of the county, west of Pearl River.

Nineteen years ago, in 1967, the United States sued the Lawrence County School District, seeking to eliminate state-imposed segregation by race in that county’s public schools. The county then had seven schools, five for white students, with white faculty, and two for black students, with black faculty. In 1969, the Supreme Court ordered the Fifth Circuit to take original jurisdiction of this and other Mississippi school desegregation cases and to take immediate steps to desegregate the school systems.¹ This court approved a plan of desegregation proposed by the United States and ordered that it be tested at an evidentiary hearing before District Judge Dan M. Russell, Jr. After that hearing, and in accordance with Judge Russell’s recommendations, this court adopted the proposed plan. The plan contains provisions similar to those mandated by our opinion in Singleton v. Jackson Municipal Separate School District.² It includes requirements that:

(1) The School Board assign teachers and staff to each school “for the school year 1969-70 and subsequent years” so that “the racial composition of a staff [will not] indicate that a school is intended for Negro or white students” and so that “the ratio of Negro to white teachers in each school, and the ratio of other staff in each, are substantially the same as each such ratio is to the teachers and other staff, respectively, in the entire school system.” (Emphasis added.)

(2) “The transportation system be completely reexamined regularly by ... the school board. Bus routes and the assignment of students to buses [are to] be designed to insure the transportation of all eligible pupils in a non-segregated and otherwise nondiscriminatory basis.”

(3) “All school construction, school consolidation, and site selection ... be done in a manner which will prevent the recurrence of the dual school structure....”

(4) The transfer of students who reside in a district other than the one in which they wish to attend school be permitted only on a “non-diserimina-tory basis” and the Board is not to “consent to transfers where the cumulative effect will reduce desegregation in [this or a neighboring] district or reinforce the dual school system.”

This court’s 1969 decree ordered continued operation of the seven schools; two of the schools were to include high school grades as well as elementary grades. The order divided the county into three attendance zones: the northeast zone had one school, the center zone six, and the southwest one. In 1974, after the case had been dormant for almost five years, this court transferred original jurisdiction back to the district court, stating that it appeared the school system “has been and is being maintained as a unitary school system” in compliance with this court’s 1969 order. Following the transfer of jurisdiction to the district court, the case remained inactive for a decade.

In 1984, the United States filed a motion to enforce the 1969 order. After a two-day evidentiary hearing, Judge Russell found that the Lawrence County School District had “failed utterly” to comply with that part of the order forbidding the district to permit white students from adjacent counties to attend Lawrence County schools if the effect would be to reduce desegregation. The School District had been permitting white students from Simpson County to attend the predominantly white New He-bron school in Lawrence County. “These transfers,” Judge Russell stated, “have the effect of reinforcing the dual school system. The school which was traditionally white, New Hebron, remains so, and in much higher percentages than reflected in the county’s population.” He went on to find that the public perception of certain schools “has not changed and cannot begin to change until the situation is rectified.” Despite the fact that the “Board has been under Court order since 1969 regarding accepting students from other counties,” Judge Russell found that the Board had “failed to perform even one solitary act to bring itself into compliance with that order.”

Later in 1984, the Lawrence County School Board overcame defeats by voters in 1980 and 1983 by obtaining county voter approval of a $4,000,000 bond issue for the construction and renovation of schools. Some of the planned buildings have been completed or are under construction: a new classroom building at New Hebron (the sole school in the northeast zone); additional classrooms and a new “cafetorium” at Topeka-Tilton (the sole school in the southwest zone); and repairs and renovations at two of the schools in the center zone, McCullough Junior High and Monticello High, as well as at Topeka-Tilton. In addition, the School District plans to build a vocational-technical center at Monticello, in the central zone, to serve students who live throughout the county; a new elementary school in Monticello at a newly acquired site to replace Monticello Elementary, which is now housed in three buildings; and additional classrooms at Beulah Williams, which is also in the central zone, although near the northeastern part of the county. The location of each of these schools is shown on the attached map.

Soon after the bond issue was passed, a class of black students and their parents intervened in the suit and filed a complaint charging that the School Board had failed to operate a “unitary, non-racial” system and had violated the 1969 decree with regard to student transportation, teacher hiring and assignment, school construction plans, and the current student attendance plan. They sought a preliminary injunction to stop the expenditure of the bond revenues and the district court halted the construction of these facilities pending the trial. After a hearing, that injunction was vacated by the district court.

On appeal, this court affirmed the district court’s refusal to issue a preliminary injunction. As noted above, our 1974 order had stated that the Lawrence County school system “has been and is being maintained as a unitary school system.” This court’s unreported 1985 opinion, a copy of which is attached, stated that, from the record, we were unable to discern whether the “unitary school system” reference in our 1974 order “meant that the school district was on the way to discharging its constitutional duties by complying with the court orders or whether at that time it had fulfilled its constitutional duty to disestablish the dual system.” We affirmed the district court’s denial of an injunction, but took no other action, noting that, in hearing the case on the merits, the district court should address the question of the effect of the 1974 order.

In response to our mandate, and after a hearing, the district court held that our 1974 order returning jurisdiction of the case to the district court had not declared the system to be unitary in the sense of having accomplished desegregation. The district court also enjoined the School Board from making further construction contracts pending trial. Thereafter, the parties agreed that at the trial on the merits they would present only three questions: (1) whether the construction plan violated the School Board’s duty under the Constitution and as established in the previous orders; (2) whether the Board’s transportation and faculty-assignment practices also violated the previous desegregation decrees; and (3) whether the Board should be required to adopt a new or modified attendance zone plan.

At the trial, the intervenors presented seven alternative plans of desegregation to the court. Their position was and continues to be that some schools, located elsewhere in the county, should be closed and the students there should attend larger consolidated schools in Monticello. The district court held, however, that the school construction plan did not violate constitutional requirements and that a new student-assignment plan was not required. It stated that, although two of the District’s six schools are “arguably racially identifiable,” their disparate racial compositions are the result of geographic and demographic factors. It further found that some of the racial imbalance in the county’s schools resulted from the Board’s “leniency in regard to zone jumping,” a practice that allows “a number of whites ... to avoid majority black schools, especially Beulah Williams,” and that “strict enforcement of the attendance zones should alleviate a substantial portion of the racial imbalance by decreasing the number of whites at Topeka-Tilton and New Hebron while increasing the number of whites at Beulah Williams.” The district court also found that the transportation system was not racially segregated. The court kept the teacher-assignment issue under advisement because it viewed resolution of that issue as being closely tied to the question of teacher hiring, a matter that the parties were attempting to resolve by negotiation. 626 F.Supp. 940. In response to inquiries addressed to counsel, the court has been advised that no further negotiations have been conducted since the hearing on January 15, 1986, more than seven months ago.

The intervenors appeal the rejection of their demands and the Board appeals the ruling that the school system had not been declared unitary in 1974. At the time of oral argument in this court, counsel for the intervenors stated that most of the construction had begun or reached completion, and made no contention that the building program should be again arrested. We therefore do not address that issue.

II.

On its face, the 1974 order is wholly inconsistent with absolution of the School Board or discharge of it as having fulfilled its constitutional duties. The text of the order simply recites that, because the defendants had been obeying the order already issued by this court, it was “appropriate to transfer jurisdiction of the case to the district court.” The order required the defendants to furnish periodic reports to the district court, presumably to facilitate continued judicial supervision of the operation of the school system if necessary, and it permitted any party to remove the case from the inactive docket for “good cause shown.” If the court had decided that the vestiges of segregation had been completely erased, the retention of jurisdiction would have been anomalous.

The phrase, the system “is being maintained as a unitary school district,” in our 1974 order explained why the court was returning jurisdiction to the district court. This court was following the procedure required by the Supreme Court in Alexander v. Holmes County Board of Education,³ which directed this court to assume plenary jurisdiction over the immediate implementation of desegregation plans in several cases, a function usually assigned to district courts. The Alexander opinion said this court was to “retain jurisdiction to insure prompt and faithful compliance with its order,” and that it could permit the district courts to hear objections to desegregation plans “[w]hile each of these school systems is being operated as a unitary system under the order of the Court of Appeals.”⁴ The use of the word “unitary” in the Alexander opinion, like its repetition in the 1974 order, did not imply a judicial determination that the school system had finally and fully eliminated all vestiges of de jure segregation. As used in the Supreme Court opinion, the term referred to the operation of the school system in accordance with the 1969 order under the aegis of this court. As used in this court’s 1974 order, the word meant no more than that the system appeared to have been complying with the outstanding order. It should go without saying that a system does not become unitary merely upon entry of a court order intended to transform it into a unitary system.⁵

Because the potential consequences of a judicial declaration that a school system has become unitary are significant, this court has required district courts to follow certain procedures before declaring a school system unitary.⁶ The court must require school boards to submit reports to the court for three years. Before relinquishing jurisdiction, the court must give notice to the plaintiffs that it will hold a hearing to consider whether the school system should be declared unitary; at the hearing, plaintiffs have an opportunity to show cause why continued judicial supervision is necessary and the system should not be declared unitary. Finally, if no cause is shown at a hearing held for this purpose, the case may be dismissed, not merely declared inactive.

The 1974 order was not preceded by a hearing and did not direct dismissal of the case. It is not reasonable to believe that a panel of this court would have declared the Lawrence County School District finally and fully unitary without following these procedures when the court was, during that period of time, requiring district judges to adhere assiduously to the notice and hearing requirements. In an analogous situation, the Eleventh Circuit ruled in Pitts v. Freeman⁷ that a district court not following these procedures could not have intended to declare a school system unitary even though it had, as we did in the 1974 order, used the word “unitary” to describe that system.

The Board argues that an order in which this court relinquished jurisdiction before desegregation had been accomplished would have been inconsistent with the Supreme Court mandate, but the mandate did not require this court to retain jurisdiction until the school system became fully integrated, but only to “retain jurisdiction to insure prompt and faithful compliance with its order.”⁸ The “order” to which the Supreme Court was obviously referring was the Court of Appeals order to implement a desegregation plan immediately. Once the plan had been adopted and it appeared that the order was being obeyed, it was entirely consistent with the Supreme Court’s mandate for this court to send the case back to the district court for whatever additional proceedings might be required.

For these reasons, the district court correctly ruled that the 1974 order did not declare the Lawrence County School District “unitary.”

Because of this conclusion, we need not address the conflict in the views of the Fourth and Tenth Circuits concerning the burden of proof that must be borne by plaintiffs who seek changes in the administration of a school system after the system has been declared unitary in the sense of being fully integrated.⁹

III.

The approximate percentages of black student populations at the various Lawrence County schools in 1970, shortly after the desegregation plan was implemented, and in the 1985-86 school year appear in the following chart. Also shown is the most recent tabulation in the record of the percentage of black faculty in each school.

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Zone 1 embraces the extreme northeastern part of the county and includes only New Hebron school, which serves twelve grades. Although the district court found that the population in this section of the county is predominantly white, that appears to be correct only if the small area in the far northeast is considered. Beulah Williams is eight miles south of New He-bron school in Zone 2, near the predominantly black Silver Springs community. Its student body is 71% black and its faculty, as of 1983, was 31% black.

Zone 3, which embraces the southern part of the county, also includes only one school, Topeka-Tilton, 90% of whose students and 87% of whose faculty are white. It also serves twelve grades. No schools are situated in the southeastern and northwestern parts of the county, identified by the district court as the residential areas with a predominantly black population. For school attendance purposes, the southeastern part of the county is included in the Monticello or central zone, which is Attendance Zone 2, and elementary students who live in this area are bused north to Beulah Williams. Elementary students who live in the northwestern part of the county are also bused to Monticello. Thus the School Board’s pre-1969 practice was to build schools near predominantly white population centers and, save for Beulah Williams, which served a predominantly black community, to bus black students to Monticello.

The court found that, of the six schools presently in operation, two — Topeka-Tilton and Beulah Williams — were “arguably racially identifiable in that they have student bodies predominantly of one race.” The intervenors contend that four of the six schools are racially identifiable.

The students and faculty of a school heed not be all of a single race for the school to be considered racially identifiable. As stated above, ninety percent of the student body at Topeka-Tilton is white, 87% of its faculty is white, historically the school has been considered white, and it is located in an area in which the population is predominantly white. At Beulah Williams, 71% of the students in 1985 were black, compared to 52% in 1970, and, although in 1982-83 only 31% of the teachers were black, the school originally was segregated de jure for blacks, and is located in an area with a predominantly black population. These two schools constitute one-third of the total schools in the county and are attended by 724 students, constituting about 26% of the total student population. They are clearly racially identifiable, not merely “arguably racially identifiable” as the district court found.

While the district court referred to the New Hebron school as “predominently white” and McCullough Junior High as “historically and predominantly black,” it did not consider either school to be racially identifiable. Only a year before, however, Judge Russell had referred to New Hebron as a school that had been traditionally white and so remained, “in much higher percentages than reflected in the county’s population.” Before desegregation, all of its students and faculty were white; today, 64% of its students and 80% of its faculty are white. The principal of New Hebron is white, as are all of its coaches and counselors.

Furthermore, in 1981, without court approval, the Board closed the Silver Creek school. The district court stated that the intervenors “do not object to this closing,” which is literally correct. The intervenors, however, do rely upon the closure without court approval as evidence of the Board’s failure to follow the court-ordered plan, and also contend that the assignment to other schools of students who would have attended that school was made in a manner that retarded integration. The Silver Creek school had been a white school. Under the plan, it had been paired with the formerly black Beulah Williams school. The white students who formerly attended Silver Creek were not all required to attend Beulah Williams or another Zone 2 school, and this situation served to increase the white student population at New Hebron.

McCullough Junior High, situated in Monticello, was the second of the two schools that black students were required to attend before 1970. Fifty-two per cent of its students are black, and 53% of its faculty is black. The Department of Health, Education and Welfare, in preparing the 1970 plan, estimated that McCullough’s student body would be 39% black, a ratio in reasonable conformity with the total black student population of the county, 44%. Instead, the black student population at McCullough has continued to increase.

In addition, the following evidence, not mentioned by the district court, is pertinent. Prior to the 1984 bond issue, the record shows that capital improvements had been concentrated at New Hebron and Topeka-Tilton, both historically and predominantly white schools. These two schools had received approximately 80% of the county’s total expenditures. The district court, in addressing the issue of the proposed school construction plan, stated that “the evidence failed to show that New Hebron and Topeka-Tilton ... were receiving the benefits of [the 1984 bond issue] improvements to the detriment of Beulah Williams or McCullough,” noting the school superintendent’s testimony that school repairs are made depending on need and available funding and that schools are not discriminated against. The record evidence, however, suggests that, irrespective of present school construction plans, past attention to school facilities has been less than evenhanded.

The record persuades us that the district court was clearly in error in failing to consider New Hebron identifiably white today, as it was eighteen years ago. The district court also erred in failing to find Topeka-Tilton and Beulah Williams racially identifiable schools rather than merely “arguably” so.¹⁰ Although the situation at McCullough Junior High is less stark, presumably because of its location in Monticello and its position as the only separate junior high in the county, we find that it too is perceived as being, and is, a predominantly black school. Thus we find that 43% of Lawrence County students attend racially identifiable schools and slightly more than 50% of the elementary students attend such schools.

The district court reasoned that geographic and demographic factors “prohibit” the “ideal result” of eliminating “arguably” racially identifiable schools, because the southwestern and northeastern sections of the county are predominantly white while the black community is concentrated in the southeastern and northwestern parts of the county. The district court concluded that strict enforcement of attendance zones will modify school enrollments sufficiently to effect a change in the racial identifiability of the schools. We find this conclusion entirely speculative. There is insufficient evidence in the record to enable the district judge or this court to compute what school enrollments would be if zone jumping ends. Whether the racial identity of the schools is ineradicable, however, is a separate question, to which we will turn. We note, however, that the district is relatively small and serves a rural school area that buses about 80% of the students in the county. It is evident that the Board’s failure to eliminate racially identifiable schools, a more than vestigial hallmark of segregation, does not result only from toleration of white students using their freedom of choice to zone jump.

IV.

The parties stipulated in the pretrial order that the School Board has “never adopted any faculty assignment plan,” but relies on its hiring procedure for teacher assignments. They also stipulated that “the majority white schools have majority white faculties,” and “in the school year 1984-85 there were only six black teachers teaching at the high school level and only three who taught core or required courses, all at Monticello High School. During this time there were forty white teachers teaching at the high school level system-wide.” Under Mississippi law, principals make the recommendations for faculty employment, and the record contains testimony that, with acquiescence of the Board, principals follow a policy of maintaining the existing faculty racial ratios at each school. The intervenors also offered evidence that some positions, such as principalships and coaching positions, have never been occupied by blacks.

Nevertheless, over the protest of the in-tervenors, the district court deferred action on faculty assignment until it could consider the problem of hiring. This was error.¹¹ How teachers are hired is one question. Where new teachers, as well as incumbent teachers, who constitute the great majority of faculty, are assigned is another.¹² Seventeen years ago this court directed the Board to assign faculty each year, in order to make the racial distribution of teachers in each school comparable to the racial composition of the entire school system and to avoid perpetuating the racial identifiability of any school. This would mean that approximately 56% of the teachers in each school would be white and 44% black. As the table in Part II of this opinion shows, that proportion has been achieved in only one school, Monticello Elementary, at which the teaching staff, as of the 1982-83 school year, was 59% white and 41% black.

Assignment of existing faculty need not await nondiscriminatory hiring of new teachers. Teachers contract with the district and nothing in the record suggests that the Board is prohibited from assigning teachers to various schools within the system. The Board has no plan for assuring that teacher assignments do not reflect or promote the former or present racial identity of the schools. The original desegregation order required that just such attention be given to teacher and staff assignment, and the School Board has not complied.¹³ Upon remand, the district court should evaluate the present distribution of teaching assignments and order such further relief, in the form of scheduled reports or other measures, to ensure Board compliance with its duty. The plan for the reassignment of teachers should attempt to distribute the task of teaching at schools considered less desirable between more experienced and newly hired teachers so that students who are perhaps under the greatest learning disability and in need of the best teachers are not relegated to the tutelage of novices.

V.

The intervenors contend that bus routes have been designed so that some buses are deliberately assigned to routes that enable them to transport mostly white students while others are routed to traverse primarily those areas in which black students live. The district court found that “not until 1980, more than ten years after the Fifth Circuit orders to desegregate, when a black, James Hill, became transportation director, did the district dispense with segregated bus routes for blacks and whites.” The court found, however, that bus routes are not “gerrymandered to effectuate segregated buses,” but that “any racial imbalance that does exist is caused by the location of black and white communities.” The court did not mention the provision of the 1969 order that required bus routes and assignment of students to buses to be designed to ensure the transportation of students on a “nonsegregated and otherwise nondiscriminatory basis,” or the provision requiring bus routes to be “completely re-examined regularly by the superintendent, his staff, and the school board.” The intervenors offered evidence that some buses take direct routes, others circuitous ones, with the result that the rider group in many buses is racially identifiable. The county has thirty-five bus routes. On twenty-three of these routes, 75% or more of the passengers are of one race. Twelve buses are either 100% white or 100% black.

Bus riders, unlike school students, need not and in most instances cannot be perfectly balanced by race. Our 1969 order, however, clearly requires some effort by school authorities to design and redesign bus routes so as to minimize segregation of riders by race¹⁴ and to avoid imposing “an excessive burden” on any students.¹⁵ Hill testified that he simply redesigned the bus routes from a dual system “on [his] own.” He described his plan, if it can be dignified by that term, this way: “we just pick up the kids until the bus is full.” Even if, as the district court found, the Board has not gerrymandered the routes to effectuate segregated buses, the Board has failed to comply with the 1969 order which required more of it than to avoid segregative design.

VI.

The Board and the United States both contend that once a court orders a school board to comply with a desegregation plan the court has power only to insist on compliance with its order. The court, they state, “may not grant broader and entirely different ‘relief than contemplated in an extant decree previously determined by this court to be constitutionally adequate.’ ” The Government also states: “A district court is without authority to interfere further with a school district’s student assignment system when its initial order established a racially neutral plan, except as necessary to remedy subsequent segre-gative acts.” (Emphasis added). We do not agree.

It is a nonsequitur to conclude that a district court’s sole power to deal with a school board’s later disregard of a constitutional desegregation order is to order compliance with the original order. The School Board’s reliance for that conclusion on the Sixth Circuit decision in Bronson v. Board of Education¹⁶ is misplaced. In that case the plaintiffs attempted to challenge the constitutionality of the Ohio School System a second time in the face of a prior judgment dismissing a suit raising the same issues. The Bronson Court recognized the prior judgment as collateral estoppel. In this case the intervenors have joined in a continuing suit to challenge the actual effectiveness of the previous court-ordered plan.

The board of a school system that has been racially segregated by state action has “an affirmative duty to desegregate” and ensure that “racial discrimination through official action is eliminated from the system.” ¹⁷ Vestiges of a racially discriminatory, dual school system may be found in faculty and staff assignments, transportation, extra-curricular activities, facilities,¹⁸ and, of course, student assignment.¹⁹ Schools that are racially identifiable are just such a vestige.

While judicial remedies for unconstitutional action must be targeted to elimination of the unconstitutional chancre,²⁰ the remedial power of a federal court that adopts a desegregation plan is not thereafter limited to enforcement of the details of the original plan. Because, as this court has previously said, a school system is not “automatically desegregated when a constitutionally acceptable plan is adopted and implemented, for the remnants of discrimination are not readily eradicated,”²¹ the adoption of the plan does not exhaust the power of the court to direct elimination of vestiges of segregation that remain or become apparent only after the plan has been put into place.

If a school board violates a court desegregation order, the court should of course consider whether the proposed remedy exceeds the scope of the violations. If correcting violations will suffice to wipe out the marks of past segregation, the court should not order more. If, however, it becomes evident that an integrated school system cannot be achieved simply by directing adherence to the original plan, the court may consider remedial measures that are designed to restore the victims of segregation to the position they would have occupied absent both the original discriminatory conduct and the aggravation of it by school authorities’ failure to comply with corrective orders.²² The duty of a school board that has violated the Constitution and failed to comply with a corrective court order is not merely to avoid intentionally unconstitutional acts and to promise compliance with prior court orders. Those who invoke federal jurisdiction to correct racial discrimination that has continued as a result of both noncompliance with a desegregation order and earlier de jure segregation need not show that the segregative practices have a current systemwide impact, as would be required to establish the right to relief ab initio.²³

In Lawrence County, unlike the situation in Pasadena Board of Education, the School Board’s failure to achieve a desegregated school system has not resulted from population migration into, out of, or within this small rural county.²⁴ The district court found that the post-1969 changes in the racial mix of some of the Lawrence County schools were caused by the Board’s continued toleration of zone jumping, in defiance of the original decree and the later 1984 order. In addition, as we have found, the Board has engaged in other segre-gative actions with respect to the assignment of staff and the absence of transportation plans that have contributed to continued segregation.

The very demographic factors that separate residential areas by race in Lawrence County are in part a vestige of past segregative practices by the Board. Patently, during the de jure segregation era schools were built to accommodate students by race in areas where population was predominantly of a single race, and as a reasonably inferable result, parents who thereafter selected a place to live chose to reside near the racially segregated neighborhood schools. Since persons normally gravitate toward the schools that serve them, the intentional acts by the School Board before desegregation insured that the immediate communities around these schools would be of one race. What we said in Ross v. Houston Independent School District bears repeating: “Public school officials have a continuing duty to eliminate the system-wide effects of earlier discrimination____ They must demonstrate ... that ‘current segregation is in no way the result of [their] past segregative actions.’ ”²⁵

The effect of a racially discriminatory practice is pervasive. That effect is not eradicated by merely erasing the original cause. Just as a school board’s present racial neutrality does not suffice to eliminate the effect of its past de jure segre-gative actions, correcting post-injunction racially segregative measures does not eliminate their effect. As stated in Swann,

[t]he objective is to dismantle the dual school system. “Racially neutral” assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a “loaded game board,” affirmative action in the form of remedial altering of attendance zones is proper to achieve truly nondiscriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral.²⁶

Indeed, a school board that, despite court orders designed to eliminate the effects of previous unconstitutional and unlawful actions, persists in segregative actions under a veil of neutrality demonstrates the kind of continued defiance of both the Constitution and the court order that requires, not just warrants, more than an order to obey the decree.

The School Board had and still has a clear duty. School authorities are “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”²⁷ And “the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”²⁸ Finally, as this court observed in Taylor v. Ouachita Parish School Board,²⁹ “a school district with a history of operation of de jure segregated schools is under a continuing constitutional obligation to eradicate the vestiges of that dual school system. The failure sufficiently to satisfy this obligation continues the constitutional violation."³⁰ The same broad equitable powers continue after violation of a court desegregation order has been proved. The post-1969 segregative actions by the Board indeed did not violate only the court’s order; they also violated the fourteenth amendment.

This court has recognized that a federal court’s power to remedy segregation is not exhausted by its issuance of a decree that promises to, but does not, work. In Davis v. East Baton Rouge Parish School Board,³¹ we reviewed and affirmed a 1980 district court order adopting a plan that superseded a 1970 plan.³² As in other cases,³³ we indicated no reason why the plaintiffs should not in 1974 have applied, as they did, for “further relief” on the ground that “the 1970 plan was not desegregating the system effectively.”³⁴

Indeed, in Ouachita Parish School Board, the court considered the following observation, crucial to this case, so obvious that the opinion relegated it to a footnote:

With respect to the alleged violation in failing to decrease the number of one-race schools in its system, the parish board makes an argument that need not concern us here: that the current attendance zones were drawn up under court supervision and have been policed diligently and conscientiously by the board; any attempts to alter those zones and effect greater desegregation would have required additional court action. How, the parish asks, can it be violating the Constitution in implementing a court-ordered plan of desegregation? We simply note that conscientious adherence to the command of Swann may require more of the school board than simply rigorous adherence to the often narrow results of the ponderous litigation machinery,³⁵

The decree is “a starting point in [the process of] shaping a remedy,”³⁶ although it may not, by prescribing a formula for a particular degree of racial balance, constitute an “ ‘inflexible requirement’ to be applied anew each year to the school population within the attendance zone of each school.”³⁷ As stated by the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, “a district court’s remedial decree is to be judged by its effectiveness.” ³⁸ Indeed, in Alexander, an opinion that concerned this very school district, the Supreme Court contemplated that the adoption of a plan would not be final, for it directed this court not only to “retain jurisdiction to insure prompt and faithful compliance with its order,” but added that the court “may modify or amend the same as may be deemed necessary or desirable for the operation of a unitary school system. ”³⁹

Two years after Alexander, the Court stated in Swann: “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.”⁴⁰ In Pa-sedena City Board of Education, the Court quoted the above passage from Swann and then explained:

It may well be that petitioners have not yet totally achieved the unitary system contemplated by this quotation from Swann. There has been, for example, dispute as to the petitioners’ compliance with those portions of the plan specifying procedures for hiring and promoting teachers and administrators. But that does not undercut the force of the principle underlying the quoted language from Swann. In this case the District Court approved a plan designed to obtain racial neutrality in the attendance of students at Pasadena’s public schools. No one disputes that the initial implementation of this plan accomplished that objective. That being the ease, the District Court was not entitled to require the PUSD to rearrange its attendance zones each year so as to ensure that the racial mix desired by the court was maintained in perpetuity. For having once implemented a racially neutral attendance pattern in order to remedy the perceived constitutional violations on the part of the defendants, the District Court had fully performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns.⁴¹

The Lawrence County situation differs from those situations addressed by the passages quoted from Swann and Pasadena. Most importantly, intervenors do dispute, with evidentiary support, that the school attendance plan implemented in 1969 has accomplished the objective of obtaining racial neutrality in the attendance of students in the Lawrence County schools. They also contend that elimination of zone jumping will not suffice to meet this objective. This system has not been declared unitary and the Board’s “affirmative duty to desegregate has [not] been accomplished.”⁴² The issue, then, is what this court and the district court may do in order to attain desegregation in Lawrence County.

An injunction is by nature an equitable decree. The power of a federal court that enters an equitable injunction is not spent simply because it has once spoken. The federal courts have always affirmed their equitable power to modify any final decree that has prospective application. As Justice Cardozo stated over half a century ago in United States v. Swift & Co., “A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.”⁴³ The “continuing responsibility of the issuing court over its decrees is a necessary concomitant of the prospective operation of equitable relief,” Wright and Miller state.⁴⁴ And they add, “Inasmuch as an injunctive decree is drafted in light of what the court believes will be the future course of events, a court must continually be willing to redraft the order at the request of the party who obtained equitable relief in order to insure that the decree accomplishes its intended result.”⁴⁵

This court issued its 1969 decree before the Supreme Court decision in Swann v. Charlotte-Mecklenburg School District⁴⁶ found broader relief permissible. Even in the absence of a general equitable power to revise injunctions, the purpose and effect of this later decision should be considered if the earlier order has not succeeded in eliminating the taint of de jure segregation. For these reasons, we conclude that neither the district court nor this court is required to limit remedial orders to directing compliance with the 1969 decree.

VII.

Despite the fact that the Board has permitted out-of-county students to attend Lawrence County schools and students living in the county to attend schools other than the one in the zone of their residence, the district court has taken no action to remedy either these direct violations of the 1969 order or their effect, finding the problem, as the brief for the United States states with sanguine aplomb, a “condition that must be remedied” and one that could be left to the negotiations then anticipated — but never yet even conducted. While the parties agreed to defer consideration of hiring, the intervenors did not agree to defer consideration of the assignment of existing faculty, and we find no reason why the district court should have postponed action on this issue pending resolution of the hiring issue.

The district court also rejected any change in attendance zones because, “with proper enforcement of attendance zones, the current plan passes constitutional muster.” It added that any school consolidation would involve “extensive additional bussing.” However, the intervenors’ plans proposing consolidation would require busing only about 18% of the student population who are not now bused. It is clear that, although a greater measure of racial integration would require busing more students than does the present plan, greater integration could be accomplished with something less than “extensive additional busing.”

Based on the facts we have found, some changes in school attendance zones must be implemented. “The process of desegregation ... is often one of trial and error; if one set of zones proves ineffective, then another must be drawn and, if necessary, another, or some yet different approach be tried.”⁴⁷ This part of the remedy, however, cannot be devised from on high. The district court must bear the responsibility for doing so. The record demonstrates that neither this court nor the district court can rely on the School Board to submit a plan that is constitutionally acceptable. The district court should therefore review the school attendance pattern with the assistance of a special master, if the court chooses to select one, so as to accomplish desegregation and eliminate racial identification of schools as far as possible. If a special master is selected, he should be a person with experience and a reputation for impartiality.

While it is not necessary that each school be a statistical image of the county’s racial composition, greater balance of students by race is achievable. Of the 2,781 students who attend school in Lawrence County, 2,254 are transported by bus daily. Thus, approximately 80% of all students are now being bused.⁴⁸ The county is not large, the roads are not congested, and the schools are all accessible. The district court found that the Pearl River limits “easy access from all parts of the county to Monticello,” but we find this conclusion clearly erroneous.⁴⁹ Even the School Board does not contend that Monticello is so isolated.

The distance from Beulah Williams to Monticello is only seven miles and the distance from Topeka-Tilton to Monticello but nine. New Hebron is only eight miles north of Beulah Williams. Because of the locations chosen for schools, which were designed to accommodate neighborhoods segregated by race, and the population distribution, some black children travel a longer distance by bus than most white children. In revising attendance zones, the district court shall attempt so far as practicable to spread the burden of longer bus rides so that it does not fall disproportionately on either race.

Intervenors fault the district court for refusing to order defendants to consolidate the Lawrence County schools in Monticello and offered seven different plans for doing so. One of intervenors’ plans would have closed the three schools outside Monticello and assigned all students to Monticello. The other six plans would have closed various grades of the outlying schools. All would have closed Beulah Williams, a six-grade majority-black school in the community of Silver Creek, seven miles northeast of Monticello.

The district court cannot be faulted for refusing to order the full relief sought by intervenors. Consolidation of schools in Monticello goes beyond what is now required to accomplish desegregation. It would require the construction of additional facilities and the abandonment or partial abandonment of existing schools.

To eliminate the vestiges of past segregation, however, and to ensure compliance with this court’s 1969 order, the district court shall:

1. Order the school board to assign teachers in compliance with the 1969 order as soon as practicable.

2. Revise attendance zones so as to reduce the degree of racial identifiability of each school and achieve, as closely as possible, a racially balanced student body at each school. In view of the fact that school is scheduled to begin soon after this order is issued, the requirement need not be implemented until the start of the 1987-88 school year. If necessary to eliminate or reduce the number of racially identifiable schools, the court shall consider directing the closing of Beulah Williams, as suggested by the intervenor’s expert witness, Dr. Stolee.⁵⁰ An alternative, and perhaps preferable, measure would be pairing New Hebron and Beulah Williams. In any plan, the interest of black parents in having their children attend schools as close to home as possible should be regarded equally with the interest of white parents in this entirely justifiable desire.

In planning attendance zones, the district court should note that, as stated above, Pearl River does not limit access to Monticello from any part of the county. Indeed, Monticello is one place in the county that is accessible to all areas. Topeka-Tilton students do not need to cross the river to get to Monticello but may travel a paved highway eleven miles, a trip that takes sixteen minutes. From the northeast, the New Hebron area, there are two improved roads into Monticello, and the twenty-two mile distance takes twenty-six minutes to travel. Black students in the southeast and northwest now travel approximately the same distance to school in Monticello as would white students from the Topeka-Tilton and New Hebron zones if schools were partially consolidated or new attendance zones implemented.

In revising the attendance zones, the district court should consider the additional expense of more extensive busing but cost should not be the dominant consideration. The district court opinion is unclear as to how the financial position of the school system would be burdened by any additional busing. The school superintendent computed the added busing costs for total consolidation, the plan that involved the most additional busing, as $25,000. This is a small sum compared to the district’s total expenditures of $5,846,956.06. This increased cost may also be outweighed by an increase in revenues from the state.

3. Prepare a detailed order directing the steps to be taken to prevent students whose true residence is in one school zone from attending school in another, both as the zones are now and after their modification, and to prohibit all attendance in Lawrence County schools by persons who reside outside the county.

4. Review each bus route for its compliance with the 1969 order and direct the School Board to review routes annually and to submit annual reports stating the exact nature of the review, conclusions reached, and actions taken. The court should note that in a desegregation plan, the burdens imposed by busing should fall equally on each race as far as possible.⁵¹ Moreover, new bus routes should be designed to fit the attendance plan to be implemented. While the Board seems wedded to the notion of busing students to their “home” school and then into Monticello for certain purposes, there is evidence that this is one of the “most unimaginative” designs possible and that more efficient alternatives might be conceived.

At the time of oral argument, the United States and the School Board represented to the court that they were negotiating for a consent decree with regard to zone jumping and teacher hiring, but they have done no more. If they reach an agreement and their proposal is submitted promptly, the district court should, of course, hold a hearing on it and receive the comments of inter-venors.

The judgment of the district court is AFFIRMED in part and REVERSED in part and REMANDED for further proceedings consistend with this opinion.

APPENDIX 1

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APPENDIX 2

No. 84-4817

August 14, 1985

Before ALVIN B. RUBIN and THOMAS REAVLEY, Circuit Judges, and ADRIAN G. DUPLANTIER ^*, District Judge.

Per Curiam; Concurrence by Judge ADRIAN G. DUPLANTIER.

PER CURIAM: ^**

In the submission of this appeal from denial of a preliminary injunction the parties treated the status of the Lawrence County School District as if there had been no order declaring the School District to have established a unitary system. Assuming that the effects of the dual school system had not been disestablished, a majority of the panel regarded the decision of the district court on the substantial likelihood of success on the merits as having been based on an incorrect legal standard.

The Board’s objectives were cost savings, the retention of neighborhood schools, and voter approval of the bond issue. If the schools had not attained unitary status, there was a primary affirmative duty on the Board to eradicate vestiges of the dual school system except where inconsistent with the proper operation of the school system as a whole. Tasby v. Este, 517 F.2d 92, 105-06 (5th Cir.), cert. denied, 423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 271 (1975); United States v. Board of Public Instruction, 395 F.2d 66, 69 (5th Cir.1968).

The district court judged the building program against the standard that the Board’s duty was to take no action that would reinstate a dual school system or that would discriminate against any student on the basis of race. Since we thought, upon submission, that the district court should have judged the building program by requiring it, and the Board’s plan, to promote integration rather than to avoid reinstating segregation, this court was disposed to enjoin further contracts and direct an expedited trial on the merits.*

Before the delivery of our decision, however, we saw the docket entry that related to an order of the Fifth Circuit dated November 19, 1974 which states that this school system “has been and is being maintained as a unitary school system in compliance with the aforesaid orders____” In response to our inquiry, the attorneys disagree on the meaning and effect of that order. We are unable to determine whether it meant that the school district was on the way to discharging its constitutional duty by complying with the court orders or whether at that time it had fulfilled its constitutional duty to disestablish the dual system. If the latter effect were given the order, the district court’s determination of this preliminary injunction could not be faulted.

Under these circumstances we will take no action at this time. The district court should consider halting the further execution of construction contracts until a prompt determination on the merits can be made. That court will also need to address the question of the effect of the 1974 order.

AFFIRMED. The mandate shall issue forthwith.

1 . Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).

2 . 419 F.2d 1211 (5th Cir.1969).

3 . 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).

4 . Id. at 21, 90 S.Ct. at 30 (emphasis added).

5 . Riddick v. School Bd. of Norfolk, 784 F.2d 521, 533 (4th Cir.1986); Ross v. Houston Indep. School Dist., 699 F.2d 218, 225 (5th Cir.1983); United States v. Texas Educ. Agency, 647 F.2d 504, 508 (5th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982).

6 . See e.g., Ross v. Houston Indep. School Dist., 699 F.2d 218, 227 (5th Cir.1983); United States v. State of Texas, 509 F.2d 192 (5th Cir.1975); Youngblood v. Board of Pub. Instruction, 448 F.2d 770 (5th Cir.1971) (per curiam); Steele v. Board of Pub. Instruction, 448 F.2d 767 (5th Cir.1971); Wright v. Board of Pub. Instruction, 445 F.2d 1397 (5th Cir.1971).

7 . 755 F.2d 1423, 1426 (11th Cir.1985).

8 . Alexander, 396 U.S. at 21, 90 S.Ct. at 30 (emphasis added).

9 . See Riddick v. School Bd. of Norfolk, 784 F.2d 521, 537-39 (4th Cir.1986); Dowell v. Board of Educ., 795 F.2d 1516, 1519-20 (10th Cir.1986).

10 . See Keyes v. School Dist. No. 1, 413 U.S. 189, 196, 93 S.Ct. 2686, 2691, 37 L.Ed.2d 548 (1973); Price v. Denison Indep. School Dist., 694 F.2d 334, 358 (5th Cir.1982).

11 . Cf. Fed.R.Civ.P. 54(c); Flannery v. Carroll, 676 F.2d 126 (5th Cir.1982); Burton v. State Farm Mutual Automobile Ins. Co., 335 F.2d 317, 320 (5th Cir.1964).

12 . See, e.g., Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 536, 539 n. 11, 99 S.Ct. 2971, 2978, 2980 n. 11, 61 L.Ed.2d 720 (1979); Diaz v. San Jose Unified School Dist., 733 F.2d 660, 669-70 (9th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2140, 85 L.Ed.2d 497 (1985); United States v. Texas Educ. Agency, 564 F.2d 162, 173-74 & n. 19 (5th Cir.1977).

13 . See, e.g., United States v. DeSoto Parish School Bd., 574 F.2d 804, 816-17, 819 (5th Cir.), cert. denied, 439 U.S. 982, 99 S.Ct. 571, 58 L.Ed.2d 653 (1978).

14 . See id. at 810-11.

15 . Valley v. Rapides Parish School Bd., 702 F.2d 1221, 1229-30 (5th Cir.), cert. denied, 464 U.S. 914, 104 S.Ct. 276, 78 L.Ed.2d 256 (1983); see also United States v. Texas Educ. Agency, 532 F.2d 380, 398 (5th Cir.1976), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 879 (1979).

16 . 525 F.2d 344 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1665, 48 L.Ed.2d 175 (1976).

17 . Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 32, 91 S.Ct. 1267, 1284, 28 L.Ed.2d 554 (1971).

18 . See id. at 18, 91 S.Ct. at 1277 (citing Green v. County School Bd., 391 U.S. 430, 435, 88 S.Ct. 1689, 1692, 20 L.Ed.2d 716 (1968)).

19 . See id., 402 U.S. at 22-29, 91 S.Ct. at 1279-82.

20 . See, e.g., Swann, 402 U.S. at 15-16, 91 S.Ct. at 1276; Milliken v. Bradley, 418 U.S. 717, 738-39, 94 S.Ct. 3112, 3124, 41 L.Ed.2d 1069 (1974).

21 . Ross v. Houston Indep. School Dist., 699 F.2d 218, 225 (5th Cir.1983) (citing United States v. Texas Educ. Agency, 647 F.2d 504, 508 (5th Cir.1981); Henry v. Clarksdale Mun. Separate School Dist., 579 F.2d 916, 921 (5th Cir.1978) (per curiam) (Tjoflat, J., dissenting)).

22 . Cf. Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 465-67 & nn. 13 & 14, 99 S.Ct. 2941, 2950-51 & nn. 13 & 14, 61 L.Ed.2d 666 (1979).

23 . Cf. Little Rock School Dist. v. Pulaski County Special School Dist. No. 1, 778 F.2d 404 (8th Cir.1985).

24 . See Pasadena City Bd. of Educ. v. Spangler, 427 U.S., 424, 434-36, 96 S.Ct. 2697, 2704, 49 L.Ed.2d 599 (1976).

25 . 699 F.2d 218, 225 (5th Cir.1983) (citations omitted) (quoting Keyes v. School Dist. No. 1, 413 U.S. 189, 211 n. 17, 93 S.Ct. 2686, 2699 n. 17, 37 L.Ed.2d 548 (1973)).

26 . 402 U.S. at 28, 91 S.Ct. at 1282.

27 . Id., 91 S.Ct. at 1275 (quoting Green v. County School Bd., 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968)).

28 . Id. 402 U.S. at 15, 91 S.Ct. at 1276.

29 . 648 F.2d 959 (5th Cir.1981).

30 . Id. at 967-68 (emphasis added).

31 . 721 F.2d 1425 (5th Cir.1983).

32 . See id. at 1428-34, 1441.

33 . See, e.g., Tasby v. Wright, 713 F.2d 90, 91 (5th Cir.1983); Taylor v. Ouachita Parish School Bd., 648 F.2d 959, 969 (5th Cir.1981), 653 F.2d 136 (5th Cir.1981) (Brown, J., dissenting); United States v. DeSoto Parish School Bd., 574 F.2d 804, 817-18 (5th Cir.), cert. denied, 439 U.S. 982, 99 S.Ct. 571, 58 L.Ed.2d 653 (1978); Lemon v. Bossier Parish School Bd., 566 F.2d 985, 987, 989 (5th Cir.1978).

34 . Davis, 721 F.2d at 1429; see also Davis v. East Baton Rouge Parish School Bd., 570 F.2d 1260 (5th Cir.1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979); East Baton Rouge School Bd. v. Davis, 287 F.2d 380 (5th Cir.), cert. denied, 368 U.S. 831, 82 S.Ct. 54, 7 L.Ed.2d 34 (1961).

35 . 648 F.2d at 968 n. 10 (emphasis added).

36 . Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 25, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971); see also Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434, 96 S.Ct. 2697, 2703, 49 L.Ed.2d 599 (1976).

37 . Pasadena City Bd. of Educ., 427 U.S. at 434, 96 S.Ct. at 2704 (citation omitted).

38 . 402 U.S. at 25, 91 S.Ct. at 1280.

39 . Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 21, 90 S.Ct. 29, 30, 24 L.Ed.2d 19 (1969) (emphasis added).

40 . Swann, 402 U.S. at 31-32, 91 S.Ct. at 1284 (emphasis added).

41 . 427 U.S. at 436-37, 96 S.Ct. at 2705 (citation omitted) (emphasis added).

42 . Swann, 402 U.S. at 31-32, 91 S.Ct. at 1284.

43 . 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932); see also 7 Moore's Federal Practice ¶ 60.16[6], at 60-127 (1985).

44 . 11 C. Wright & A. Miller, Federal Practice and Procedure § 2961, at 599 (1973).

45 . Id. at 600; see also United States v. United Shoe Mach. Corp., 391 U.S. 244, 248-49, 88 S.Ct. 1496, 1499-1500, 20 L.Ed.2d 562 (1968); Exxon Corp. v. Texas Motor Exch. of Houston, 628 F.2d 500, 503-04 (5th Cir.1980).

46 . 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

47 . United States v. Hinds County School Bd., 560 F.2d 1188, 1191 (5th Cir.1977), quoted in United States v. DeSoto Parish School Bd., 574 F.2d 804, 818 (5th Cir.), cert. denied, 439 U.S. 982, 99 S.Ct. 571, 58 L.Ed.2d 653 (1978).

48 . See, e.g., Lemon v. Bossier Parish School Bd., 566 F.2d 985, 989 (5th Cir.1978) (75% of students bused).

49 . See id. at 989 n. 2; cf. Stout v. Jefferson County Bd. of Educ., 537 F.2d 800, 801 (5th Cir.1976) (mountainous terrain creating dangerous busing situation).

50 . See Stout v. Jefferson County Bd. of Educ., 537 F.2d 800 (5th Cir.1976).

51 . Valley v. Rapides Parish School Bd., 702 F.2d. 1221, 1228 (5th Cir.), cert. denied, 464 U.S. 914, 104 S.Ct. 276, 78 L.Ed.2d 256 (1983).

* District Judge for the Eastern District of Louisiana, sitting by designation.

** Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the court has determined that this opinion should not be published.