Spangler v. Pasadena City Board of Education

519 F.2d 430

Opinions

OPINION

ELY, Circuit Judge:

The appellants, Pasadena [California] City Board of Education (hereafter Board) and some of its officials, individually, appeal from an Order of the District Court, reported at 375 F.Supp. 1304 (C.D.Cal.1974), which denied the Board’s motions for: (1) relief from the District Court’s Order of January 23, 1970, requiring the desegregation of the Pasadena public schools and the District Court’s Order of March 10, 1970, which approved the then Board’s Pasadena Plan for desegregation; (2) dissolution of the District Court’s injunction requiring that there be no school in the School District with a majority of its enrollment composed of students of a minority race; (3) termination of the District Court’s continuing jurisdiction of the case; and (4) alternatively, for permission to modify the Pasadena Plan ordered by the court by substituting a so-called Alternative Plan.¹

It is important at the outset to underscore the narrow ambit of our review, a constriction resulting from the procedural posture in which this appeal is before our court. Neither the Pasadena Plan itself nor the District Court’s January 23, 1970, and March 10, 1970, Orders directing the implementation of the plan are here on direct appeal. Nor are we concerned with the correctness of the District Court’s original decision in Span-gler v. Pasadena City Board of Education, 311 F.Supp. 501 (C.D.Cal.1970), and the conclusions drawn therein. The only question before us now is whether the District Court erred in its determination, in denying appellants’ 1974 motions, that events and circumstances occurring and existing in Pasadena since the Pasadena Plan was ordered implemented do not justify relief from the January 23, 1970, Decree, relinquishment of the court’s continuing jurisdiction over the Board, or the substitution of a substantial alteration of the original Pasadena Plan.

I. Procedural History and Factual Background.

This action was originally instituted on August 28, 1968, by certain Pasadena public school children and their parents as a class action against the Pasadena City Board of Education of the Pasadena Unified School District and certain officials thereof, seeking injunctive relief from alleged unconstitutional segregation of its public schools. The United States Government, also endeavoring to eliminate the discrimination, was permitted to intervene as a party plaintiff on December 4, 1968. On January 28, 1970, after a nine-day trial, the District Court entered its Decree, enjoining the Board and the Superintendent of Schools “from discriminating on the basis of race in the operation of the Pasadena Unified School District.” Spangler v. Pasadena City Board of Education, 311 F.Supp. 501, 505 (C.D.Cal.1970). The court required the Board “ . . .to prepare and adopt a plan to correct racial imbalance at all levels”, and further directed that “[t]he plan shall provide for student assignments in such a manner that, by or before the beginning of the school year that commences in September of 1970 there shall be no school in the District, elementary or junior high or senior high school, with a majority of any minority students.” 311 F.Supp. 501 at 505.²

In support of the 1970 Decree from which the appellants now seek relief, the District Court found that the Board had adopted a neighborhood school policy and a policy against forced cross-town busing which resulted “in racial imbalance and increasing racial imbalance.” Id. at 506. Among the facts supporting the court’s conclusion that the Board’s policy violated the Fourteenth Amendment were findings that: (1) in numerous instances the Board changed attendance areas, changes having the net effect of increasing the percentage of blacks in schools that were already “black” and, correspondingly, increasing the percentage of whites in “white” schools, (Id. at 506-509); (2) the Board had consistently rejected proposals from its superintendent, citizens’ committees, and other Board members that would result in significantly more racial integration, (Id. at 510); (3) the Board “used transportation provided at school district expense to make it possible for white children to avoid attending schools with greater percentages of black students enrolled than in the District as a whole”, (Id. at 512); (4) very few black teachers were hired and most were assigned to schools with majority black enrollment (Id. at 513-516); (5) there was discrimination in the hiring and promotion of black administrators, (Id. at 516); (6) the Board placed transportable classrooms at black schools to accommodate over-enrollment at those schools while adjoining white schools had fewer transportables or none at all, (Id. at 518); and (7) "■ the Board granted transfers “[which it] knew or should have known were wholly or at least in part motivated by racial considerations, including baseless transfers that had the effect of intensifying racial segregation in the Pasadena schools”, (Id. at 520). Additionally, the court found that during the 1969-70 school year, 85 percent of the District’s black elementary school students attended the eight majority black elementary schools, while 93 percent of its white elementary students attended the remaining 21 elementary schools, (Id. at 507).

Pursuant to the court’s Decree a comprehensive desegregation plan (commonly called the “Pasadena Plan”) was formulated by a task force consisting of various employees of the Pasadena Unified School District, under the direction of the Superintendent of Schools. The Pasadena Unified School District, although relatively small geographically, includes the city of Pasadena, the city of Sierra Madre, the town of Altadena, and various portions of Los Angeles County. Under the Pasadena Plan, as approved by the District Court on March 10, 1970, the District was divided into four ethnically balanced areas. Students are assigned to the schools in the area of their residence “in such a way as to develop an ethnic balance in each school”, while retaining at the elementary level the concept of the neighborhood school by permitting students to “walk to a nearby school for part of their elementary schooling and be transported as a neighborhood to another school” for the remainder. The plan created primary schools covering grades kindergarten through third (K — 3) and elementary schools covering the fourth through sixth (4-6) grades to replace the old concept of the neighborhood school encompassing kindergarten through the sixth grade (K-6). The plan altered the secondary school structure by shifting the ninth grade from the junior high schools to the senior high schools. Ethnically balanced secondary school attendance zones were drawn in a fashion that prevented any secondary school from having a “majority of any minority students.” The plan provided for transportation for all students who attend school outside their normal areas, and students were permitted to transfer from their assigned schools to other schools in cases of “urgent hardship” involving considerations of curriculum, family circumstances, or medical-psychological factors.

At the commencement of the 1970-71 school year the Pasadena Plan was implemented, and it has ostensibly remained in effect since that time. On January 15, 1974, the motion which is the subject of this appeal was filed by the Board, now having a majority of newly elected members. A hearing on the motion was conducted on February 25, 26, 27 and March 1, 1974. On May 15, 1974, the District Court entered its opinion and order denying appellants’ motion in its entirety. The District Court refused the requested relief from its Order of January 23, 1970, in view of the opposition which the Pasadena Plan had encountered and the fact that beginning in 1971, only a few months after the supposed implementation of the original plan, the District had violated the “no majority of any minority” portion of the injunction. By the time of the hearing in March, 1974, five Pasadena schools were operating in violation of the no majority of any minority portion of the court’s injunction.³ Spangler v. Pasadena City Board of Education, 375 F.Supp. 1304, 1306 (C.D.Cal.1974). The court further found that the Pasadena Plan had not been accorded such cooperation from the Board as would permit an assessment of its educational success or failure. (Id. at 1308); that the decline in white enrollment relative to total enrollment in Pasadena Schools since 1970 was not caused by the desegregation Order, since the decline closely approximated state-wide trends in California, (Id. at _1306); that the Alternative Plan was essentially a freedom of choice plan like those which had failed to desegregate Pasadena schools in the past, (Id. at 1311); and that it was unrealistic to believe that parents who fled the district because their children were forced to attend school with black children would now voluntarily choose that alternative under the Alternative Plan, (Id. at 1308).

II. Relief From the Order of January 23, 1970 and Dissolution of the “No Majority of a Minority” Injunction.

It has long been established that in fashioning and effectuating school desegregation decrees, the courts are to be guided by traditional equitable principles. Brown v. Board of Education, 349 U.S. 294, 299-300, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II). “ . . [A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right.” Swann v. Charlotte-Meck-lenburg Board of Education, 402 U.S. 1, 15-16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). “Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies” Swann, supra at 15, 91 S.Ct. at 1276. It is also firmly established that a federal court which has imposed an injunction also retains the power to suspend or modify it. System Federation v. Wright, 364 U.S. 642, 646-7, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961); United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 76 L.Ed. 999 (1932). The oft-quoted test for determining whether enough has been shown to justify the exercise of this power is whether there has been a change in conditions that is “so important that dangers, once substantial, have become attenuated to a shadow.” Swift, supra, 286 U.S. at 119, 52 S.Ct. at 464 (Cardozo, J.). The question is whether a modification or dissolution can be made “without prejudice to the interests of the classes whom this particular restraint was intended to protect.” Swift, supra 286 U.S. at 118, 52 S.Ct. at 463 (Cardozo, J.); or whether changed circumstances have rendered the injunction “an instrument of wrong.” Lubben v. Selective Service System Local Board_No. 27, 453 F.2d 645, 651 (2nd Cir. 1972). We further note that in making our determination as to whether the District Court abused its “broad” equitable powers by concluding that changed circumstances since 1970 have not attenuated the dangers present at that time “to a shadow”, we are compelled to apply the clearly erroneous test to the trial judge’s resolution of the factual issues raised by conflicting evidence bearing on the question of changed conditions. Fed.R.Civ.P. 52(a); United States v. Texas Ed. Agency, 459 F.2d 600 (5th Cir. 1972); Crag-gett v. Board of Education of Cleveland City School District, Cuyahoga County, Ohio, 338 F.2d 941 (6th Cir. 1964).

Applying the above standards to the case at hand, it would constitute an abuse of our power to hold that the District Court was clearly erroneous in finding that the appellants did not establish such a sufficient change in conditions as would require the court, in the exercise of its discretionary equitable powers, to modify or dissolve its earlier Decree. Accordingly, we affirm the court’s denial of the appellants’ motion insofar as that motion sought relief from the Orders of January 23 and March 10, 1970, and dissolution of the injunction requiring that there be no school in Pasadena wherein the student body consisted of a majority of a minority race. A careful review of the record reveals abundant evidence upon which the district judge, in the reasonable exercise of his discretion, could rightly determine that the “dangers” which induced the original determination of constitutional infringements in Pasadena have not diminished sufficiently to require modification or dissolution of the original Order. The Pasadena Unified School District has failed to comply with the “no majority of any minority”- provision during three of the four years in which the Pasadena Plan has, pursuant to court order, supposed to have been in full effect and operation.⁴ In its motion to dissolve the original injunction, the present Board has also sought the approval of a plan of the “freedom of choice” variety which would very likely result in rapid resegre-gation. A majority of the members of the present Pasadena City Board of Education ran for election principally on a platform which urged “stop forced busing of students and return them to their neighborhood schools.”⁵ It was against this background that the District Court concluded that to dissolve the court’s “no majority of any minority” injunction would “surely be to sign the death warrant of the Pasadena Plan and its objectives.” Spangler v. Pasadena City Board of Education, 375 F.Supp. 1304, 1309 (C.D.Cal.1974).

In support of their position that circumstances have significantly changed, appellants contended that the Pasadena Plan was responsible for a substantial portion of the “white flight” phenomenon that has occurred since the implementation of the plan. When the Pasadena Plan was first approved by the District Court, Caucasian students constituted a majority of the School District’s enrollment (58.3 percent). At present Caucasians constitute a plurality of only 44.0 percent. The District Court rejected the appellants’ contention on the basis of evidence that the trends in Pasadena closely approximate the statewide trends in both segregated and desegregated California schools. Moreover, the Supreme Court has indicated that the existence of a “white flight” phenomenon does not excuse a school system from the constitutional duties imposed by Brown and its progeny. When confronted with such a contention in Monroe v. Board of Commissioners of the City of Jackson, Tennessee, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968), the Supreme Court said: “[w]e are frankly told in the Brief that without the transfer option it is apprehended that white students will flee the school system altogether. ‘But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.’ Brown II, at 300, 75 S.Ct. at 756.” Id. at 459, 88 S.Ct. at 1705.

The appellants also asserted that the Pasadena Plan has proved to be an educational failure because student performance on certain standardized tests has declined, and the performance of black students on the tests has continued to fall 30 percentage points below that of white students. The Government’s expert testified that the appellants achievement charts should be analyzed as a net gain for black students and that, under the Pasadena Plan, the white students had not suffered academically in relation to the national norms. Additional evidence was presented that under the existing Plan there have been few disciplinary problems and that the District has been able to implement a variety of innovative educational programs and alternatives. In the light of this evidence the district judge resolved the conflict against the appellants and refused to conclude that the Pasadena Plan had been demonstrated to be an educational failure.

The appellants have strongly urged that a constitutionally unitary school system has been achieved in Pasadena under the Plan and that the District Court was consequently required to grant their motion because of the following dictum in the opinion of the United States Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 31-2, 91 S.Ct. 1267, 1283-1284, 28 L.Ed.2d 554 (1971):

“At some point, these school authorities and others like them should have achieved full compliance with this Court’s decision in Brown I. The system would then be ‘unitary’ in the sense required by our decisions in Green and Alexander.

“It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities or 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. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.”⁶

In the years since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the United States Supreme Court has consistently held that if de jure⁷ school segregation is shown, there is “an 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.” Green v. County School Board, 391 U.S. 430, 437-8, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). See also, Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); United States v. Scotland Neck Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Monroe v. Board of Commissioners, 391 U.S. 443, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968); Raney v. Board of Education, 391 U.S. 450, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968). “Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. . . . The measure of any desegregation plan is its effectiveness.” Davis v. Board of School Commissioners, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). The obligation of every school district is to “terminate dual school systems at once and to operate now and hereafter only unitary schools.” Alexander v. Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969) (emphasis added). When viewed from the perspective of this long line of Supreme Court authority, we cannot conscientiously hold that the district judge abused his broad equitable discretion in refusing to modify or dissolve his Decree. His decision was primarily based upon his finding that there had not been a full and genuine implementation of his original Order such as would achieve the elimination of racial discrimination “root and branch.” The directive of the dictum in Swann by its very terms becomes operative “once the affirmative duty to desegregate has been accomplished and racial discrimination is eliminated from the system.” 402 U.S. 1, 31-32, 91 S.Ct. 1267, 1284, 28 L.Ed.2d 554 (1971) (emphasis added). On the specific facts of this case as revealed from the record and reiterated supra, it was reasonable for the District Court to conclude that full and effective elimination of racial discrimination had not been achieved during the three school years following the initial year in which the Pasadena Plan was in effect. If desegregation was “accomplished” or “eliminated” after the implementation of the Pasadena Plan, such was a transitory and temporary achievement, enduring for a period of the utmost brevity.⁸

We think it clear, however, that Swann indicates that annual readjustment is not necessary once a court has determined that there has been a full and genuine implementation which has eliminated, with some anticipated permanence, racial discrimination from the system. We must therefore expressly dis approve such portions of the record as suggest that the district judge interprets his injunction to require continuous annual redistricting. In the course of final argument the district judge stated that to him the Pasadena Plan meant “ . that at least during my lifetime there would be no majority of any minority in any school in Pasadena.” [Emphasis added]. This remark, apparently spontaneous, cannot be broadly interpreted, inasmuch as it suggests that even after the court has determined that its plan has been effectively implemented and racial discrimination eliminated from the system, a disruptive juggling of students to correct de minimis alterations in racial balance in specific schools might be required annually, or even day by day. This is precisely what we interpret Swann to prohibit.⁹

III. Termination of the Continuing Jurisdiction of the District Court.

The portion of the appellants’ motion seeking termination of the District Court’s continuing supervision over the actions of the Board is susceptible to the same reasoning followed in Part II of this opinion, supra. The Supreme Court’s policy in respect to the retention of jurisdiction by a District Court was unambiguously announced in Raney v. Board of Education, 391 U.S. 443, 449, 88 S.Ct. 1697, 1700, 20 L.Ed.2d 727 (1967):

“In light of the complexities inhering in the disestablishment of state-established segregated school systems, Brown II contemplated that the better course would be to retain jurisdiction until it is clear that disestablishment has been achieved.”

We hold that the District Court did not clearly err in concluding that it was not yet clear that the contemplated disestablishment of segregation had been achieved in the Pasadena Unified School District. In light of the School District’s failure fully to comply with the “no majority of any minority” requirement for three successive years, and the fact that appellants sought to substitute a “freedom of choice” type of plan that the court found would likely result in reseg-regation, it was reasonable for the District Court to conclude that all vestiges of de jure segregation had not been eliminated. On these facts the court did not abuse its broad equitable discretion in finding an urgent need to retain, for some time, its jurisdiction of the controversy.¹⁰

IV. The Alternative Plan.

Finally, the appellants moved for modification of the Pasadena Plan to conform with what they have termed their “Alternative Plan.” The “Integrated Zone/Educational Alternatives Plan” was approved by a four to one vote of the Board, and that plan applies only to students at the elementary level (grades K-6). Under the terms of the plan, specific elementary school attendance boundaries would be replaced with four racially and ethnically balanced zones corresponding to the four existing zones of the Pasadena Plan. Any stu- ' dent could choose to attend any school in his zone, with any necessary transportation provided at District expense. The present divided system of separate schools for grades K-3 and grades 3-6 would be replaced with traditional 4-6 schools. Each K-6 school, in addition to the “traditional” program taught there, would have a specialized “mini-school” offering a unique alternative program.¹¹ These unique alternatives would ostensibly result in voluntary integration by attracting a mix of students from all parts of the zone, with the schools in each zone competing for attendance. If. racial imbalance should occur under the Alternative Plan, a program would then be implemented pairing “sister schools” of opposite ethnic composition for “shared experiences” attended by both schools for one-half day per week.

The appellants have insisted that since the Pasadena Plan was ordered implemented in September, 1970, a constitutionally unitary system has been established. Therefore, they argue that the District Court had an obligation to return local control to the School District so long as the proposed modifications did not violate the Constitution. Starting from our earlier premise that the District Court’s determination that the School District had not yet effectively discharged its affirmative duty to eliminate segregation was not clearly erroneous, we hold that the District Court’s refusal to permit substitution of the appellants’ proposed Alternative Plan constituted a reasonable exercise of the court’s equitable discretion.

The district judge found that the Alternative Plan was essentially a “freedom of choice” plan, and we are inclined to agree. The Supreme Court has acknowledged, as of 1968, the general “ineffectiveness” of such plans as “a tool of desegregation.” Green v. County School Board, 391 U.S. 430, 440, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1967). The Court has directed that “ . . . if there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary, nonraeial school system, ‘freedom of choice’ must be held unacceptable.” (Id. at 441, 88 S.Ct. at 1696.) Our own court reached a similar conclusion in Kelly v. Guinn, 456 F.2d 100, 108-9 (9th Cir. 1972) wherein we observed:

“Freedom of choice plans usually, if not invariably, fail to eliminate school segregation. Such plans rest upon the theory that the school district’s entire obligation is to refrain from excluding any student from the school because of race. But once it has been determined that a school district has contributed to the creation and maintenance of segregation, neutrality is no longer enough. Then the school district’s duty is not limited to the removal of discriminatory bars to school integration; it is charged with an affirmative duty to eliminate segregation. ‘Freedom of choice’ plans operate ‘simply to burden children and their parents with a responsibility which Brown II (347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873) placed squarely on the School Board.’ The attempt to shift responsibility rarely works. The parents and children are either unable or unwilling to carry the burden. Not surprisingly, they failed to do so in this instance.”¹²

There was ample evidence to support the District Court’s conclusion that the proposed freedom of choice or “Alternative Plan” would not discharge the Board’s duty to “ . . . make every effort to achieve the greatest possible' degree of actual desegregation . . Davis v. Board of School Commissioners, 402 U.S. 33, at 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). Previous efforts by Pasadena to desegregate by “freedom of choice” plans had failed. (Spangler, supra, 311 F.Supp. at 510). There was also evidence showing that freedom of choice plans in California locations, the cities of Richmond and San Bernardino, had been wholly unsuccessful.¹³ On this record, we could not hold that the court abused its discretion in refusing to permit implementation of an Alternative Plan which it justifiably found highly unlikely to achieve the constitutionally required unitary school system in Pasadena.

Affirmed.

Footnotes

1

. We note that one of the basic legal issues presented by this appeal, the question of when and under what circumstances a school district may compel a federal district court to relinquish jurisdiction and end its supervision, has not yet been directly addressed by any Courts of Appeals or by the United States Supreme Court. See generally Craven, Integrating the Desegregation Vocabulary — Brown Rides North, Maybe, 73 W.Va.L.Rev. 1 (1971); Fiss, The Charlotte-Mecklenburg Case — Its Significance for Northern School Desegregation, 38 U.Chi.L.Rev. 697 (1971); Comment, 39 U. Chi.L.Rev. 421, 436-40 (1972).

2

. A majority of the Board voted not to appeal the District Court’s original Decree. Thereafter a group of parents filed a motion in the District Court for leave to intervene as defendants for the purpose of perfecting an appeal. The motion was denied on March 4, 1970, and the movants appealed to this court. On June 15, 1970, we affirmed, Spangler v. Pasadena City Board of Education, 427 F.2d 1352 (9th Cir. 1970).

3

. As of the beginning of the 1973 school year, the Pasadena Unified School District operated 32 regular schools, having an enrollment of approximately 44 percent Anglo-Caucasians and 40 percent blacks. At the time of the initial implementation of the Pasadena Plan (1970-71) every school in the District was in literal compliance with the court’s order. No school had a Negro enrollment as high as 50 percent, and in only three schools was the Negro enrollment greater than the Anglo-Caucasian enrollment. In the 1971-72 school year, one school (Loma Alta) slipped out of compliance with the no majority of any minority standard. In 1972-73 four schools, in violation of the court’s order, had a black enrollment in excess of 50 percent, and in seven other schools the black enrollment exceeded that of Anglo-Caucasian students. By 1973-74, five schools were in violation of the court’s order (Franklin, Sierra Mesa, Edison, Loma ' Alta, and Eliot), and sixteen others had a Negro enrollment exceeding that of Anglo-Caucasians.

4

. In Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), our court upheld a desegregation order that was very similar to the one in this case. In Kelly, the decree specified “that the black enrollment in any elementary school in the Clark County District shall not exceed fifty percent of the total enrollment in such grade.” 456 F.2d at 109.

It should be noted that a trial stipulation in the present case recited that plaintiff and the Govemment-intervenor were aware “of no violations of the Pasadena Plan up to and including the present.” The appellees explain that the stipulation was based on the parties interpretation of the plan, which was inconsistent with the interpretation of the District Court. The District Court was not, of course obliged to accept, as absolutely controlling, a stipulation of the parties as to a question of law or a mixed question of law and fact. Estate of Sanford v. Commissioner, 308 U.S. 39, 51, 60 S.Ct. 51, 84 L.Ed. 20 (1939); Swift & Co. v. Hocking Valley Ry„ 243 U.S. 281, 289, 37 S.Ct. 287, 61 L.Ed. 722 (1917); Los Angeles Shipbuilding & Drydock Corporation v. United States, 289 F.2d 222 (9th Cir. 1961). Furthermore, contrary to that of which the parties may have been “aware” at the time of the stipulation, the evidence at the trial established undeniably that significant violations of the Pasadena Plan had previously occurred and continued to exist.

5

. The appellants’ claim that the rationale applied by the district judge in denying the appellants’ motion was a conclusion that the Board and its new members had acted in “bad faith.” In our view the good or bad faith of the school authorities is irrelevant to the issues presented. In upholding the District Court, we have assumed that the actions of the Board and its authorities were, from their viewpoint, committed in good faith.

6

. The substance of the dictum in Swann was partially codified by the Congress on August 21, 1974:

“Effect of Certain Population Changes on Certain Actions

Sec. 208. When a court of competent jurisdiction determines that a school system is desegregated, or that it meets the constitutional requirements, or that it is a unitary system, or that it has no vestiges of a dual system, and thereafter residential shifts in population occur which result in school population changes in any school within such a desegregated school system, such school population changes so occurring shall not, per se, constitute a cause for civil action for a new plan of desegregation or for modification of the court approved plan.” Pub.L. No. 93-380, § 208 (Aug. 21, 1974), 88 Stat. 484.

It bears emphasis that the prohibition of the statute is triggered when a court determines that a desegregated unitary system, with no vestiges of a dual system, has been established. This is precisely that which has not yet occurred in this case. It should also be noted that the statute prohibits new plans or modification of the court approved plan. The statute does not purport to cover the question here presented, i. e., whether an existing plan should be continued.

7

. In their brief appellants state that in the original decision of the District Court directing the School Board to desegregate “there was no finding of state imposed segregation.” They further assert that “[t]he constitutional violation found against appellants in 1970 was relatively minor.” We think that these declarations are erroneous. The original opinion of the District Court, as we discussed supra, detailed a series of purposeful actions by the School Board resulting in de jure segregation. The meaning of the term de jure is clarified in Soria v. Oxnard School District Board of Trustees, 488 F.2d 579, 585 (9th Cir. 1973), wherein we wrote in the context of interpreting Keyes v. School District No. 1, Denver Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973):

The Court emphasized that the differentiating factor between so-called de facto segregation and the de jure segregation held constitutionally impermissible in Brown v. Board of Education (I), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) was that in the latter case there was present a purpose or intent to segregate.”

8

. In this connection it is highly significant that the United States Court of Appeals for the Fifth Circuit routinely requires that the District Court in a desegregation case should retain jurisdiction for a period of at least three years before dismissing such cases upon a determination that the school district has achieved unitary status. In United States v. State of Texas, et al. (San Felipe Del Rio Consolidated Independent School District), 509 F.2d 192 (5th Cir. 1975), the District Court, acting sua sponte, without notice or an opportunity for a hearing as to any opposition thereto, found that the objective of a unitary school system had been achieved and dismissed the action. In doing so, the court expressly relied upon the Swann dictum. On appeal the dismissal was vacated and the cause remanded because under the standards enunciated in Youngblood v. Board of Public Instruction, 448 F.2d 770 (5th Cir. 1971), the District Courts of the Fifth Circuit are directed to retain jurisdiction for a period not less than three school years, during which the school district is required to file semi-annual reports with the District Court. In United States v. Texas, etc., supra, only three such reports had been filed, and therefore the Court of Appeals concluded:

“Once these reports have been filed, then upon proper notice, and following a hearing if one is appropriately sought, the District Court may proceed to determine whether San Felipe Del Rio has achieved unitary status. If it has, then a dismissal is not out of order.

“If, however, such reports have not been or cannot now be filed then the matter may not be considered until three additional semi-annual reports have been filed in due course.” (509 F.2d at 194).

Thus, the Fifth Circuit obviously shares our view that a district judge must not be prematurely divested of his traditional power to supervise his equitable decrees.

9

. See United States v. Wilcox County Board of Education, 494 F.2d 575, 579 at n. 2 (5th Cir. 1974).

10

. The appellants have not cited, nor have we found, any case in which a District Court, acting upon a request for dissolution of a detailed desegregation injunction, has relinquished jurisdiction entirely. The procedure that has uniformly been followed when an initial and specific regulatory desegregation injunction has been dissolved has been the reduction of the controversy to an inactive status on the court’s docket. The matter may then be re-activated on proper application by any party, or on the court’s own motion, should it appear that further proceedings have definitely become necessary. See, e. g., United States v. Georgia, N.D.Ga., Civil Action No. 12,972 (Order entered July 23, 1973); United States v. County School Board of Sussex County, E.D. Va., Civil Action No. 606-R (Order filed July 5, 1973); United States v. County School Board of Sussex County, E.D.Va., Civil Action No. 224-69-R (Order filed July 5 1973).

11

. The unique alternatives proposed included a fine and performing arts program, an animal and plant life program, a daily newspaper based program, a community-career awareness program, a social science-science program, a foreign language and cultural program, and an early childhood education program.

12

. Among the numerous cases in which Courts of Appeals have found “freedom of choice” plans unacceptable are United States v. Georgia, 466 F.2d 197 (5th Cir. 1972); Brunson v. Board of Trustees of School District No. 1 of Clarendon County, S. C., 429 F.2d 820 (4th Cir. 1970); Clark v. Board of Education of Little Rock School District, 426 F.2d 1035 (8th Cir. 1970), cert. denied, 402 U.S. 952, 91 S.Ct. 1608, 29 L.Ed.2d 122 (1971); Hilson v. Outzts, 425 F.2d 219 (5th Cir. 1970); Hall v. St. Helena Parish School Board, 424 F.2d 320 (5th Cir. 1970); United States v. Board of Education of Baldwin County, 423 F.2d 1013 (5th Cir. 1970); Steele v. Board of Public Instruction of Leon County, 421 F.2d 1382 (5th Cir. 1970); Boykins v. Fairfield Board of Education, 421 F.2d 1330 (5th Cir. 1970); United States v. Choctaw County Board of Education, 417 F.2d 838, 841 (5th Cir. 1969); United States v. Jefferson County Board of Education, 417 F.2d 834, 836 (5th Cir. 1969); United States v. Lovett, 416 F.2d 386, 392 (8th Cir. 1969); Walker v. County Board of Brunswick County, 413 F.2d 53 (4th Cir. 1969), cert. denied, 396 U.S. 1061, 90 S.Ct. 753, 24 L.Ed.2d 755 (1970); United States v. Greenwood Municipal Separate School District, 406 F.2d 1086 (5th Cir. 1969), cert. denied, 395 U.S. 907, 89 S.Ct. 1749, 23 L.Ed.2d 220 (1969).

13

. The San Bernardino plan attracted only 15 percent of the Negro students, and no whites participated. The Richmond plan had an 11 percent Negro participation over the course of three years and, there again, no whites participated, 375 F.Supp. at 1307. This failure occurred despite the fact that these plans promised that efforts would be made to make minority neighborhood schools attractive to all students and that free transportation was provided for any student wishing to attend school outside his neighborhood.