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Court agrees: Busing can end

An appeals court sides with Hillsborough on desegregation, which may pave the way for "controlled choice."

After 30 years of court-ordered busing, an appeals court has declared Hillsborough County schools free of racial segregation and ordered the closing of a 43-year-old desegregation case.

The ruling by the 11th U.S. Circuit Court of Appeals leaves little to chance or interpretation. It clearly sides with the school district's claim that racial segregation has been eliminated.

It also pointedly rejects the conclusions of U.S. District Judge Elizabeth Kovachevich, chiding her for mistakes and inconsistencies.

The ruling leaves the NAACP and the Legal Defense Fund with few options for keeping the historic desegregation case alive.

"What they're saying is, "It's over,' " said Tom Gonzalez, attorney for the Hillsborough school district. "We always thought we were unitary and now the court agrees with us."

This could mark the second decades-old desegregation case in the Tampa Bay area to reach its conclusion in less than a year. In August, a federal judge ended Pinellas County's desegregation case, which was filed in 1964.

In the Pinellas case, the end came after months of negotiation and cooperation between the district, and the Legal Defense Fund and the NAACP.

In Hillsborough, the case has been, and continues to be, a struggle.

The plaintiffs in the Hillsborough case still could ask for a review by the entire appeals court, or appeal to the U.S. Supreme Court. Either avenue would be a long shot.

"The U.S. Supreme Court takes very few desegregation cases in the first place, so that doesn't look very promising," said Gary Orfield, the Harvard professor who has written extensively on desegregation.

Attorneys for the Legal Defense Fund said Monday they had to dissect the court's ruling and review their options. But some involved in the case are quick to declare that it is not over. Despite progress, they say, segregation remains.

"The court is wrong; the schools are still segregated," said Andrew Manning, the man for whom the case is named. Manning, 48, was a child forced to attend all-black schools when his mother joined in the filing of the case. "This isn't over. They have never wanted to desegregate. They still don't."

If the desegregation case ends, the district will move ahead with a "controlled choice" plan already approved by the School Board. The plan, which could take effect as early as 2004, is designed to maintain racial diversity in schools by encouraging student crossover between black and white neighborhoods.

"We have a plan ready to go, that we developed with input from the community," said Hillsborough School Superintendent Earl Lennard. "It's a good plan. It's doable."

Given the appeals court ruling and the somber reactions from the NAACP and the Legal Defense Fund attorneys Monday, it is easy to forget that ultimately they were on the prevailing side in the case.

In 1958, four years after the Brown vs. Board of Education case outlawed segregation in schools, four black parents in Tampa charged that Hillsborough County ran a segregated school system that shortchanged black children. Assigned case No. 58-3554, it remains the oldest active case in the Middle District of Florida.

In 1962, the court agreed that the school district operated a dual system in violation of the Constitution. Finally, in 1971, the court gave its blessing to sweeping changes that transformed the local schools. That's when busing started.

Students were bused miles from their neighborhoods to attend schools with children of other races. Historically black schools were closed. The changes, similar those around the nation, divided communities and resulted in tension _ at least for a time. But the district accomplished its goal of eliminating its racially segregated system.

"I'm proud of what we did," said Randolph Myers, the last living parent who lent his child's name to the 1958 lawsuit. "You try to change the things you can. There were some changes, definitely."

The case was modified in 1991, adding magnet schools to encourage white students to attend school in black neighborhoods.

Then, in 1994 the Legal Defense Fund accused the school district of allowing some schools to become "resegregated." It listed 16 schools where more than 40 percent of their students were black. At one school, Robles Elementary, more than 90 percent of the students were black.

Judge Kovachevich was asked to decide whether the school district was at fault, or whether the shifting racial balances were beyond the district's control. That return to court set in motion the probable end of the desegregation case.

In 1995, Kovachevich surprised everyone when she declined to take on the limited issue before her, and instead took on the larger question: Are the Hillsborough schools desegregated and can the case be closed?

In the court hearings that followed in 1996, the school district's desegregation efforts essentially were put on trial. After an evidentiary hearing, U.S. Magistrate Elizabeth Jenkins recommended that the district had indeed achieved "unitary status," which means it had eliminated segregation and could be freed from the federal court order.

Jenkins' recommendation was sent on to Kovachevich.

Kovachevich had another surprise. She rejected Jenkins' recommendation and ruled that the district had not eliminated segregation.

The school district appealed Kovachevich's decision, and that led to the appeals court ruling handed down Friday. The three-member panel disagreed with Kovachevich in no uncertain terms. The court found that the judge repeatedly used the wrong legal standard to reach her conclusion. They characterized her findings as "inconsistent and difficult to follow."

The appeals court wrote in part: "The district judge's finding that appellants have not achieved unitary status was tainted and infected by reliance on an incorrect legal standard." They gave Kovachevich clear orders: She must declare the Hillsborough schools to be unitary and end federal judicial supervision.

School Board members welcomed the news Monday, while realizing the burden could soon be on them to show black parents that the district can be trusted to give their children a fair shake.

"We have to be driven not by some external factor _ the federal court," said board member Candy Olson. "It's time to focus on the kids, not on the process and the numbers."

Decision excerpts

From Monday's decision by the 11th U.S. Circuit Court of Appeals:

"Federal judicial supervision of local officials . . . was intended to be a temporary measure."

"Put simply, a school board has no obligation to remedy racial imbalances caused by external factors, such as demographic shifts, which are not the result of segregation and are beyond the board's control."

"The district judge's finding that appellants have not achieved unitary status was tainted and infected by reliance on an incorrect legal standard. As such, we reverse the district judge's orders of Oct. 26, 1998, and Dec. 4, 1998. Upon remand, the district court shall enter judgment declaring the Hillsborough County school system unitary. Therefore, federal judicial supervision of the Hillsborough County school system shall cease."

Chronology

Events in the history of Hillsborough County school desegregation:

1958: Four black parents, unable to get their children into white schools, take the school district to court in Mannings vs. the School Board of Hillsborough County. Four years earlier, in the landmark case Brown vs. Board of Education, the U.S. Supreme Court had ruled that separate schools were inherently unequal.

1962: A federal court finds Hillsborough County is operating an illegally segregated public school system.

1971: With little progress made over nine years, U.S. District Judge Ben Krentzman orders desegregation to begin in Hillsborough schools. Black and white students are bused to meet goals of student populations of 86 percent white and 14 percent black in high schools, 80 percent white and 20 percent black in junior highs and 79 percent white and 21 percent black in elementary schools.

1991: U.S. District Judge Elizabeth A. Kovachevich approves a "cluster plan" that allows the district to close single-grade centers over seven years and replace them with middle schools. The idea was to lessen disruption for students, who attended five schools in five years. The plan also included magnet schools with special curriculums to attract white students to predominantly black neighborhoods.

1994: The NAACP Legal Defense Fund takes the School District back to court, accusing it of failing to comply with the 1971 court order by allowing 16 schools to become more than 40 percent black. Some schools are between 70 percent and 90 percent black.

1995: Kovachevich declines to rule on the question of racially identifiable schools and instead orders a hearing to determine whether the district is "unitary" _ the legal term to describe a system that has become desegregated.

1996: Hearings on the desegregation order begin in October in federal court in Tampa before U.S. Magistrate Elizabeth Jenkins.

AUG. 26,1997: Jenkins finds that Hillsborough schools have achieved "unitary" status and recommends the court end supervision of the school district.

OCT. 26, 1998: Kovachevich rejects Jenkins' recommendation, ruling that the School Board had not done enough to eliminate all vestiges of segregation.

SEPT. 20, 2000: The 11th U.S. Circuit Court of Appeals hears the School Board's appeal of Kovachevich's ruling. Three-judge panel prods NAACP Legal Defense Fund attorneys to explain what Kovachevich intended.

NOV. 21, 2000: Hillsborough School Board approves a controlled choice plan to replace busing to maintain racial balance. The lone dissenter: Doris Ross Reddick, the board's only black member.

MARCH 19, 2001: The 11th U.S. Circuit Court of Appeals overturns Kovachevich and orders her to declare Hillsborough school unitary. At the start of the school year, 26 Hillsborough schools were more than 40 percent black and 24 were less than 10 percent black.

_ Compiled from Times files by news researcher John Martin.

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