author: GIBBONS, District Judge.

text:
    Mary CROCKWELL, Plaintiff, v. BLACKMON-MOORING STEAMATIC, INC., Defendant.
    No. 82-2919 GB.
    United States District Court, W.D. Tennessee, W.D.
    Apr. 12, 1985.

      Donald A. Donati and Wanda Donati, Memphis, Tenn., for plaintiff Mary Crock-well.
    Jason O. Young, Jr., Memphis, Tenn., for defendant Blackmon-Mooring and Steamatic.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

GIBBONS, District Judge.

Plaintiff here seeks relief for alleged violations of 42 U.S.C. Section 2000e et seq. and 29 U.S.C. Section 206(d). The court heard the case on September 6 and 7,1984. The court has considered all the evidence presented and applicable law and makes the following findings of fact and conclusions of law.

I. FINDINGS OF FACT

Plaintiff, Mary Crockwell, who is female, began working for defendant Blackmon-Mooring Steamatic, Inc. on a part-time basis in November, 1981, and on a full-time basis on May 12, 1982. Plaintiff was hired as a household cleaner at a rate of $4.00 per hour and remained in that position with the same salary until she was discharged on October 20, 1982. During plaintiff’s employment defendant had two primary job classifications for non-supervisory employees: household cleaners and carpet cleaners. The carpet cleaners were also called cleaning technicians or crew members. During plaintiff’s entire period of employment, all the household cleaners were females and all the carpet cleaners were males. In fact, all 116 cleaning technicians employed by defendant throughout the country were male.

Between September, 1980, and August, 1983, defendant hired 17 males as carpet cleaners. During the same period of time, plaintiff hired 19 females as household cleaners. Eleven of the males were hired at a base rate of $4.00 an hour; one male was hired at a base rate of $4.50; and five males were hired at a base rate of $5.00 an hour. All 19 females were hired at a base hourly rate of $4.00.

Household cleaners had no opportunity for a raise unless they were promoted to supervisor. On the other hand, cleaning technicians either started at $5.00 an hour or quickly received a raise up to $5.00 an hour. Cleaning technicians could participate in the incentive pay program which paid them as high as $8.00 an hour, while household cleaners could not.

The jobs of household cleaner and carpet cleaner both involved cleaning businesses and residences through strenuous physical work. The duties of household cleaners included cleaning walls, ceilings, and floors with mops and industrial chemicals at private homes or commercial establishments that had been damaged by fire. They also cleaned furniture and household effects such as plates, china, and silver. The cleaning crew or technician’s job involved cleaning carpet and draperies with heavy steam machines. The cleaning crews also did some selling of services to customers. Both jobs required frequent lifting of heavy furniture. Both household cleaners and carpet cleaners carried their own equipment, but on occasion the household cleaners assisted the cleaning crews in loading and unloading the steam machines. The household cleaners job was dirtier than the cleaning crew job and they were sometimes referred to by management personnel as “fire girls.”

Both household cleaners and cleaning crew members performed “pack-out” jobs. A “pack-out” is the removal of all damaged items from a house by packing them into boxes and carrying those boxes to the company’s warehouse for cleaning. After cleaning, the items are returned to the house. On pack-out jobs the work done by males and females was identical. From September, 1980, through at least July 23, 1982, male employees drew pay for pack-out duties at the rate of $7.00 an hour. During this time period females were paid their regular hourly rate and drew no special pack-out pay. From November, 1981, through July, 1982, plaintiff received no special pack-out pay even though she performed pack-out duties. After July, 1982, the pack-out pay was changed so that both male and female employees drew pay for pack-out duties at a rate of $6.00 an hour.

Plaintiff complained about the disparity in wages for the pack-out jobs. Brian Lamb, manager of the defendant’s Memphis office, acknowledged in his testimony that there were complaints about the pay and that he was responsible for equalizing the pay rates for pack-out jobs when he became manager by increasing the female rate and decreasing the male rate. Plaintiff also complained about the wage disparity between household cleaners and cleaning technicians. When she did so and asked about the possibility of transferring to a cleaning crew position in Texas, she was told that the company did not think women should or could lift the heavy machines used by the cleaning crew. Plaintiff was capable of performing the job of cleaning technician, but was not afforded an opportunity to do so.

Plaintiff acted as lead worker in the household cleaning crew for two or three months and was in the job at the time she was discharged on October 20, 1982.

On October 20, 1982, Karen McGhee, a female household cleaner was called by the assistant manager, Steve Thornton, to come into the conference room in the office area of defendant's place of business. Thornton was acting at the request of Don Plattner, an adjuster with Shelter Insurance Company who provided a substantial amount of business to defendant. Besides Plattner and Thornton, Lamb and two other supervisors were present in the conference room when McGhee was called into the room. Lamb knew that Don Plattner often used embarrassing language and made suggestive remarks about women. Other management employees were also aware of Plattner’s propensity. to make such comments. Plattner asked McGhee if she was married, if she “messed around” on her boyfriend, and commented that she had a “nice ass.”

Plattner’s comments upset McGhee who returned to the warehouse and discussed the matter with plaintiff. Plaintiff called Thornton and asked him to come to the warehouse to discuss the problem. Thornton came, and during the discussion plaintiff asked that Plattner apologize for the remarks. Thornton replied that this kind of activity was part of the job and that McGhee either had to accept it or to “hit the clock.” Plaintiff informed Thornton that McGhee was a good worker and that plaintiff hated to lose her. Plaintiff also expressed her opinion that household cleaners should not have to endure this type of treatment. Thornton later returned to the warehouse a second time at plaintiff’s request. During the second conversation, plaintiff again said it was unfair to subject McGhee to this treatment in order to maintain her job and requested that management do something to stop this type of conduct. During the second conversation defendant’s office manager, June McDaniel, stated that she had been subjected to similar conduct and that it was to be expected.

Two hours after the incident with Don Plattner, plaintiff was fired by Brian Lamb. Lamb told plaintiff that she was fired for sitting down on a job and for poor attendance. Plaintiff did not receive a termination slip at that time, but received a separation letter after defendant had been contacted by the EEOC. Prior to termination she had received no written or oral warnings about her job performance, although company policy was apparently to warn an employee first before discharge.

Lamb testified that he did not intend to fire plaintiff the day of the Karen McGhee occurence. He said that plaintiff was fired on the recommendation of June McDaniel and Steve Thornton for excessive absenteeism, tardiness, sitting down on a job and walking off the job without permission. Although Thornton and McDaniel denied ever recommending plaintiff’s discharge, the preponderance of the evidence establishes that they did so. Their recommendations to Lamb brought about his decision to fire plaintiff.

Plaintiff was apparently the only employee discharged for inadequate job performance while Brian Lamb was employed by defendant.

Defendant presented a chart compiled from June McDaniel’s desk calendar which indicated that plaintiff missed 15 days of work while employed by defendant on a full-time basis and that she was late to work 7 times. The chart was compiled after plaintiff’s termination, and the desk calendar was not available at trial. Attendance records like those kept for other employees did not note plaintiff’s absences. Plaintiff conceded, however, a significant number of absences and noted that during her period of employment she injured her back and also became pregnant and had a miscarriage. Plaintiff had had two prior miscarriages. Defendant knew about these, and plaintiff was offered additional time off from work due to her pregnancy.

Two specific incidents were cited by defendant at trial as reasons for plaintiff’s discharge.

A few weeks before plaintiff’s discharge by defendant, an incident occurred on a job in Collierville. On that job plaintiff and other employees went to the truck and sat there to wait for other employees to finish their work. Defendant contended that plaintiff sat down on the job. Plaintiff testified that this occurred with Thornton’s permission and that it happened because the employees ran out of the product they needed to clean the premises and they could not proceed any further that day. Plaintiff’s testimony about this incident is credible.

A second incident occurred shortly before plaintiff’s discharge. On this occasion defendant asserts that plaintiff left the job early without permission from the front office. June McDaniel’s testimony suggests that plaintiff left to be with her boyfriend. Plaintiff contends that she was ill. Whatever the reason for plaintiff’s departure, it does appear that this incident occurred.

On September 27, 1982, after plaintiff had accumulated a significant number of absences according to defendant’s'records, June McDaniel wrote to a former employee and advised her that defendant had a “full crew of girls” in household cleaner positions who seemed to be doing a good job.

Plaintiff earned approximately $400-$500 net per month while employed by defendant full-time. Although the regular work week was forty hours, there was not always work available for a forty hour week.

Subsequent to her termination plaintiff worked for a short time at the Red Lobster Restaurant where she earned $426.98. She then sought other employment, but found no work until January, 1984. At that time she started doing housekeeping and yard work and has earned approximately $250.00 per month. Plaintiff suffered a loss of medical insurance benefits as a result of her termination. She has incurred medical bills since that time.

The parties have stipulated to certain facts in the pretrial order and amendments to that order. Those stipulations are incorporated here.

II. CONCLUSIONS OF LAW AND ANALYSIS

The court has jurisdiction of this case under 42 U.S.C. Section 2000e et seq. and 29 U.S.C. Section 206(d).

A. The Equal Pay Act Claim

To establish a claim of unequal pay for equal work under the Equal Pay Act, plaintiff has the burden of proving that the employer pays different wages to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions. Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974); Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir.1981). The use of the phrase “equal work” does not require that jobs be identical, but only that there be a “substantial” equality of skill, effort, responsibility and working condition. Odomes v. Nucare, Inc., 653 F.2d at 250; see Brennan v. Owensboro-Daviess County Hospital, Inc., 523 F.2d 1013 (6th Cir.1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976). Whether the work is substantially equal must be assessed on a case-by-case basis by making an overall comparison of the work, not its individual segments. Id. Even if the work is substantially equal, there is no violation if defendant proves that the wage disparity is based upon a seniority system, merit system, quality or quantity of work, or a factor other than sex. 29 U.S.C. Section 206(d)(1).

Plaintiff asserts a two-fold claim under the Equal Pay Act. She first asserts that she was paid a lower hourly wage as a household cleaner than male carpet cleaners while the work was substantially equal. Secondly, she asserts she was paid less for equal pack-out work. The court concludes that plaintiff has shown by a preponderance of the evidence that she did perform substantially equal work when doing pack-out work. However, she has failed to show that the work done by the household cleaners and carpet cleaners when not doing pack-out jobs was substantially equal.

Plaintiff was only paid $4.00 an hour for pack-out work, while males were paid $7.00 an hour. After July 23, 1982, the pack-out pay was equalized to $6.00 an hour. The Equal Pay Act specifically provides that no employer who is in violation of the Act shall “reduce the wage rate from any employee.” 29 U.S.C. Section 206(d)(1). Plaintiff has carried her burden of establishing that defendant violated the Equal Pay Act by paying her $4.00 an hour for pack-out work when males received $7.00 and by reducing the wage rate for males. Although plaintiff does not have standing to complain about the males’ pay reduction, this violation simply means that plaintiff should have received $7.00 an hour for all pack-out work during her employment. Defendant has not asserted that it has any affirmative defense to this wage disparity.

With respect to the equal pay claim for work other than pack-out jobs, plaintiff has not demonstrated that she performed substantially equal work to that of male cleaning technicians.

Defendant’s claim is that plaintiff’s duties as a household cleaner involved light work, while the carpet cleaners had to do heavy lifting and physical labor. The record strongly supports a contrary conclusion. Plaintiff and other household cleaners did as much physical labor and lifting as the carpet cleaners. Their job was probably more strenuous and certainly dirtier than the carpet cleaners. The working conditions were substantially the same. However, the substantially equal test is not met. Carpet cleaners did operate steam machines not operated by the household cleaners. Further, they handled sales to customers. In addition, the core duties of the job were not the same — carpet cleaners cleaned carpets and drapery while household cleaners cleaned the structural interiors of buildings and household effects.

Plaintiff is entitled to back pay for defendant’s violation of the Equal Pay Act. 29 U.S.C. Section 216(b). In addition, she may recover an amount equal to the back pay as liquidated damages unless defendant can demonstrate that a good faith effort was made to comply with the law. 29 U.S.C. Section 216(b); Laffey v. Northwest Airlines, Inc., 567 F.2d 429 (D.C.Cir.1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978). Here defendant made no effort at all to comply with the Equal Pay Act with respect to pack-out pay. In fact, lowering the wage rate of males demonstrates an absence of good faith. Therefore, liquidated damages in addition to back pay are appropriate.

Back pay under the Equal Pay Act in this case should be computed based upon the difference in the hourly rate received by plaintiff for pack-out work and the amount she would have been paid at the rate of a cleaning technician. This would be $3.00 per hour for all hours spent doing pack-out work. However, the record in this case contains no indication of the number of pack-out hours worked, and thus there is no basis for computing the relief to which plaintiff is entitled under the Equal Pay Act.

B. The Title VII Claim

Title VII specifically prohibits discrimination in compensation based on sex. 42 U.S.C. Section 2000e-2(a). A plaintiff who proves intentional sex-based discrimination in compensation may recover under Title VII unless the difference in wages is made pursuant to one of the four affirmative defenses set forth in the Equal Pay Act, 29 U.S.C. Section 206(d)(1). County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981).

Gunther left unresolved whether the standard Title VII rules of McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), apply to the order and allocation of proof in Title VII sex-based wage discrimination claims or whether the employer has the burden of proving its actions justified by one of the Equal Pay Act defenses. The Sixth Circuit has not specifically addressed the issue since Gunther. This court, however, does not believe that the Bennett Amendment, which Gunther interpreted, alters the standard Title VII rules about burden of proof in sex-based wage discrimination cases. Therefore, the court has applied the McDonnell Douglas and Burdine analysis in its consideration of the Title VII claim.

Gunther also did not articulate the elements of a prima facie case in claims of this type. However, the court believes that plaintiff has clearly set forth a prima facie case of intentional sex discrimination in her compensation. She has demonstrated that she is a member of a protected class and that she received compensation at a rate less than that of similarly situated male employees. Although the work performed by household cleaners and cleaning technicians was not “substantially equal” within the meaning of the Equal Pay Act, cleaning technicians were situated similarly to plaintiff. The jobs had many similarities and included similar requirements of effort and responsibility. Some of the duties were the same.

Once plaintiff has established a prima facie case, the burden of going forward shifts to defendant to articulate a legitimate nondiscriminatory reason for its action. Defendant here asserts that the difference in job duties justifies the pay difference between the job classifications and has produced some proof in support of that position.

After defendant has articulated such a legitimate nondiscriminatory reason, plaintiff must show that the reason given was a pretext for discrimination. Plaintiff ultimately must show that defendant’s action was caused by purposeful or intentional discrimination. Plaintiff has .carried this burden with respect to her Title VII claim.

Many factors support a finding of intentional discrimination in this case. Only women occupied plaintiffs job classification; only men—in Memphis and elsewhere—occupied the carpet cleaner positions. The jobs involved some of the same duties and were quite similar in work environment and degree of responsibility and effort required. Despite this similarity the female household cleaners were paid less than the male carpet cleaners—even when doing identical pack-out work. No household cleaners received raises; carpet cleaners got raises and even could participate in an incentive pay plan. There was simply no reason other than intentional and purposeful discrimination based on sex for paying plaintiff as a household cleaner differently from a carpet cleaner. Plaintiff has established that defendant violated 42 U.S.C. Section 2000e et seq. by intentionally discriminating against plaintiff in her compensation. She is entitled to recover the difference between the compensation she received and that she would have received if paid on the same basis as a carpet cleaner. The proof establishes that at a minimum there was a $1.00 differential between pay for plaintiff and cleaning technicians.

C. The Retaliation Claim

Plaintiff also claims that she was discharged in retaliation for her opposition to an unlawful employment practice in violation of 42 U.S.C. Section 2000e-3(a).

In order to establish a 'prima facie case under 42 U.S.C. Section 2000e-3(a), plaintiff must demonstrate (1) that she is engaged in protected activity; (2) that the employer knew of this protected activity; (3) that she was subsequently discharged or subjected to other damages; and (4) that the employer had a retaliatory motive or that the timing of the action was such as to allow an inference of retaliation to arise. Sutton v. National Distillers Prod. Co., 445 F.Supp. 1319, 1325-26 (S.D.Ohio 1978), aff'd, 628 F.2d 936 (6th Cir.1980); EEOC v. St. Joseph Paper Co., 557 F.Supp. 435, 438-39 (W.D.Tenn.1983). Clearly, plaintiff has established a prima facie case. First, she engaged in the protected activity of opposing defendant’s conditioning Karen McGhee’s continued employment on her acceptance of treatment like that of Plattner. An employee who opposes discriminatory practices directed at another employee has engaged in protected activity under Title VII. Novotny v. Great American Federal Savings and Loan Ass’n, 584 F.2d 1235, 1260-61 (3rd Cir.1978), remanded on other issues, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979); Eichman v. Indiana University, 597 F.2d 1104, 1107 (7th Cir.1979). In the present case, the employer clearly knew of plaintiff’s opposition. Since plaintiff was discharged within two hours of engaging in protected activity, an inference of retaliation arises.

Once a prima facie case is established, the burden is cast upon the employer under Burdine to articulate a legitimate, nondiscriminatory reason for the discharge. Defendant has argued and presented evidence that plaintiff was terminated for excessive tardiness and absenteeism, refusing to work, and leaving work without permission and thus it has articulated a legitimate, nondiscriminatory reason for discharge.

Plaintiff has established by a preponderance of the evidence that her discharge was motivated by retaliation against plaintiff for complaining about the treatment of Karen McGhee. Plaintiff was discharged two hours after opposing the treatment of McGhee. Lamb testified that but for the Karen McGhee incident, plaintiff would not have been fired on the day that she was fired. He further indicated that but for the recommendation made by Steve Thornton and June McDaniel to fire plaintiff, plaintiff would not have been fired at all. In addition, defendant’s asserted legitimate nondiscriminatory reason for discharge was pretextual. Plaintiff received no warning prior to discharge. Records supporting her absence and tardiness were compiled after termination. Plaintiffs version of at least the Collierville incident was more credible than defendant’s. Finally, defendant could hardly have been too upset about plaintiff’s absences when it offered her additional time off during her pregnancy. The protected activity prompted the discharge. Plaintiff’s protest was the but for cause of her discharge on October 20, 1982.

Plaintiff has carried her burden of proving that her discharge was unlawful retaliation in violation of 42 U.S.C. Section 2000e-3(a). Plaintiff is entitled under 42 U.S.C. Section 2000e-5(g) and (k) to an award of full back pay less any wages earned from other employment from the date of her termination until January, 1984. The rate of pay is to be similar to that of cleaning technicians.

The record in this cause contains proof on which an award of back pay could be based, except for pack-out pay. However, as plaintiff notes in her proposed findings and conclusions, it is not the proof necessary to establish the most accurate amount of back pay. Further, although plaintiff did incur medical expenses subsequent to termination, there is no proof as to whether these bills would have been covered by insurance. The parties stipulated that if they could not agree on which bills would have been paid by insurance, the magistrate could take further proof on this issue.

Therefore, within 15 days of entry of this order, the parties are to attempt to agree to the amount of back pay and wages owed. If the matter is not resolved in that time, it will be referred to the U.S. Magistrate for hearing and additional proof on the remedy issues. Any objections to the taking of additional proof on the back pay issue will be filed within fifteen (15) days.

In addition, plaintiff is entitled to attorney fees in connection with this matter. Counsel for plaintiff is directed to submit within 20 days of this order evidentiary support for plaintiff’s claim for attorney’s fees and expenses. Defendant will have 15 days to respond to the materials submitted by plaintiff.

IT IS SO ORDERED.

      . In addition to the issues addressed here with regard to the Title VII claim, plaintiff originally also contended that defendant had violated Title VII by failing to promote her to carpet cleaner or to supervisor of household cleaning and by creating a sexually offensive work environment. These issues were not addressed in plaintiffs post-trial proposed findings and conclusions, and the court considers them abandoned by plaintiff. In any event, plaintiff did not carry her burden on these issues. There is no proof that a carpet cleaner vacancy existed during plaintiffs employment or that plaintiff was denied promotion into it. Further, there is no evidence that failure to place plaintiff permanently in the supervisory position was due to sex-based discrimination. Further, while there was some testimony about off-color remarks, this proof was not sufficient to establish the existence of an offensive work environment.

      . The defenses are that the pay is based on (1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity and quality of production, or (4) a differential based on any factor other than sex.

      . Courts have split on the issue of whether the normal Title VII allocation of proof rules apply in cases involving discrimination in compensation due to sex. Some cases have held that the Equal Pay Act burdens of proof apply in Title VII wage discrimination cases and that defendant bears the burden of establishing one of the four statutory affirmative defenses. Schulte v. Wilson Indus., Inc., 547 F.Supp. 324, 337 (S.D.Tex.1982); Kouba v. Allstate Ins. Co., 523 F.Supp. 148, 156-57 (E.D.Cal.1981), rev’d on other grounds, 691 F.2d 873 (9th Cir.1982). In fact, the court in Schulte said that the Sixth Circuit opinion in Odomes was consistent with this reasoning. 547 F.Supp. at 337. However, the Sixth Circuit opinion in Odomes does not address this point. The court found the analysis under Title VII and the Equal Pay Act to be "essentially the same” but the case cited for this proposition recognizes the differing burdens for defendants under the statutes. Odomes v. Nucare, Inc., 653 F.2d at 250 (citing Strecker v. Grand Forks County Social Services Board, 640 F.2d 96, 99 n. 1 (8th Cir.1980)). In addition, the Sixth Circuit in Hall v. Ledex, Inc., 669 F.2d 397, 399 (6th Cir.1982), applied the standard rules in a compensation case without specifically discussing Gunther or the Equal Pay Act affirmative defenses.

      . This court has not adopted "comparable worth” as a basis of recovery, but has simply found that defendant intentionally discriminated against plaintiff with regard to compensation due to her sex. See County of Washington v. Gunther, 452 U.S. at 183, 101 S.Ct. at 2254-55; Plemer v. Parsons-Gilbane, 713 F.2d 1127 (5th Cir.1983).

      . Conditioning of continued employment on acceptance of suggestive remarks made by a non-employee can violate Title VII. The proof here establishes that such a violation occurred. Thornton called McGhee, a young female employee, into the room to talk to Plattner. There was no business reason for the conversation, and Plattner’s inclinations were known to Thornton and other management personnel. After the incident Thornton quickly advised McGhee that her continued employment was conditioned on cheerful acceptance of such treatment.
      Further, this court agrees with those courts holding that opposed activity need not actually violate Title VII. It is sufficient if plaintiff acts on a reasonable belief that defendant has committed an unlawful employment practice. Rucker v. Higher Educational Aids Board, 669 F.2d 1179, 1182 (7th Cir.1982); Parker v. Baltimore & Ohio Railroad Co., 652 F.2d 1012, 1019-20 (D.C.Cir.1981); Sias v. City Demonstration Agency, 588 F.2d 692, 695-96 (9th Cir.1978); Croushorn v. Board of Trustees of University of Tenn., 518 F.Supp. 9, 25 (M.D.Tenn.1980). Plaintiff in this case was acting on such a good faith and reasonable belief in protesting defendant's conduct toward McGhee.


source: Caselaw Access Project

author: DONALD E. O’BRIEN, Chief Judge.

license: Public Domain

text:
    George GOFF, Plaintiff, v. Crispus NIX, et al., Defendants.
    Civ. No. 84-129-E.
    United States District Court, S.D. Iowa, C.D.
    March 22, 1984.
    See also 626 F.Supp. 736.

      Barbara Schwartz, Prisoner Assistance Clinic, College of Law, Iowa City, Iowa, for plaintiff.
    John Parmeter, Asst. Atty. Gen., Des Moines, Iowa, for defendants.
   MEMORANDUM OPINION AND ORDER

DONALD E. O’BRIEN, Chief Judge.

This matter comes before the Court on a motion for preliminary relief filed by the plaintiff on February 27, 1984. An eviden-tiary hearing was held in Des Moines, Iowa on March 15, 1984 with all parties represented by counsel. After carefully considering the evidence presented and the arguments of counsel, the Court finds that the request for a preliminary injunction should be denied in part and approved in part as will be set out in this Order.

The plaintiff in this action is an inmate at the Iowa State Penitentiary in Fort Madison, Iowa. It is alleged that the prison’s policy of requiring visual body cavity searches before and after “contact” visitation and transportation outside of the prison walls, before and after exercise, and in other situations, is a violation of the inmate’s constitutional rights of privacy, access to the courts, and freedom from cruel and unusual punishment. The provision of the policy requiring visual body cavity (vbc) searches before and after exercise periods and visits to the prison infirmary for inmates housed in segregation units is also challenged.

I. PRINCIPLES OF LAW

It is clear that prisoners retain a number of constitutional rights while incarcerated. Prisoners have a right to a certain amount of privacy and are protected by the Fourth Amendment while in custody, although this Fourth Amendment protection may be reduced from that applicable to other citizens. Bonner v. Coughlin, 517 F.2d 1311, 1316 (7th Cir.1975) (opinion by now Supreme Court Justice Stevens). Inmates also have a constitutional right of access to the courts which must be adequate, effective, and meaningful. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Furthermore, this Court is convinced that the denial of meaningful opportunities to exercise or to receive adequate medical attention is cruel and unusual punishment, violative of the Eighth Amendment, and constitutes an “unquestioned and serious deprivation of basic human needs.” See Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). In light of needed security requirements in an institution such as the Iowa State Penitentiary, prison officials need not be required to maintain policies that minimize interference with the rights set out above. Hurley v. Ward, 549 F.Supp. 174, 184 (S.D.N.Y.1982). When the record contains substantial evidence, however, that corrections officials may have exaggerated their response to perceived security needs, thus unduly interfering with the exercise of these constitutional rights, courts must act to protect those rights. Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974).

The United States Supreme Court has held that vbc searches following contact visits with persons from outside the institution are not per se unconstitutional but must be judged for reasonableness based upon the facts of the particular situation. Bell v. Wolfish, 441 U.S. 520, 560, 99 S.Ct. 1861, 1885, 60 L.Ed.2d 447 (1979). The court in Wolfish stated that the following factors should be considered in determining whether a vbc search is reasonable under the circumstances: (1) the scope of the intrusion; (2) the manner in which it is conducted; (3) the justification for initiating it; (4) the place in which it is conducted. See also, Arruda v. Fair, 710 F.2d 886, 888 (1st Cir.1983); United States v. Lilly, 576 F.2d 1240, 1246 (5th Cir.1978); Hurley v. Ward, 549 F.Supp. 174, 186 (S.D.N.Y.1982); Frazier v. Ward, 528 F.Supp. 80, 82 (N.S.N.Y.1981); Simms v. Brierton, 500 F.Supp. 813, 817 (N.D.Ill.1980); and Hodges v. Klein, 412 F.Supp. 896, 902 (D.N.J. 1976). In all of the above-cited cases, the constitutionality of vbc searches was determined in light of the reasonableness of the searches under the circumstances presented.

VBC searches of inmates have been held to be unreasonable and, thus, unconstitutional by several courts in situations other than when returning from contact visits. See Hurley v. Ward, supra, 549 F.Supp., at 186; Hodges v. Klein, supra, 412 F.Supp., at 902. This does not, however, prevent prison officials from making a vbc search if there is a reasonably clear indication or suggestion that the inmate is concealing something in a body cavity. Hodges v. Klein, supra, 412 F.Supp., at 903.

The plaintiff urges this Court to bar all vbc searches, even following contact visits, as unreasonable. The Court has found only one case to support the banning of vbc searches following contact visits. See Frazier v. Ward, supra, 528 F.Supp., at 82. The Court has also, however, found only one case that would directly support the defendants’ position that vbc searches are reasonable in almost all situations. See Arruda v. Fair, supra, 710 F.2d, at 888. The Court is convinced that the proper test for examining the constitutionality of the vbc searches practiced by the Iowa State Penitentiary administration is whether such searches are reasonable under the circumstances experienced at the Iowa State Penitentiary.

II. FINDINGS OF FACT

The parties have stipulated to a certain number of facts that were read into the record and may be summarized as follows:

1. There are 48 inmates housed in cell-house 20, a segregation unit, who are allowed exercise, two inmates per pen at a time in two separate exercise pens.

2. When an inmate from cellhouse 20 is to be taken to the exercise area, he is strip searched. The evidence is unclear whether the strip search now includes a vbc search.

3. Upon return from exercise, a cell-house 20 inmate is again strip searched and a vbc search is performed.

4. The inmate is cuffed with his hands behind him during this strip search and is escorted by two officers to the exercise area. In the exercise area, the cuffs are removed through a slot in the gate.

5. The exercise pen is shaken down each morning prior to exercise. The pens have a concrete floor and are surrounded by cyclone fence.

6. One tower has a view of these exercise pens but has responsibility for other areas as well.

7. One officer is specifically assigned to watch for inmates while in the two pens. Two additional officers are involved in escorting and may or may not be available for further supervision. When the exercise period is over, the inmate comes to the gate to be cuffed and is again strip searched with a vbc search included before returning to his cell.

8. Exercise for cellhouse 319, another segregation unit, is conducted in four pens with concrete floors. Three to four inmates are placed in each pen.

9. The cellhouse 319 inmate is strip searched in his cell prior to exercise and upon return is subjected to a body cavity search.

10. Cellhouse 319 inmates are escorted one on one to the exercise pen.

11. One officer will observe the exercise pen with others involved in escorting who may or may not be available for further supervision.

12. One tower has responsibility for viewing the 319 exercise pens as well as other areas.

13. When an inmate in cellhouse 20 or 319 has a visit, he is strip searched and subjected to a vbc search in the cellhouse. He is then placed in cuffs and shackles and escorted from the cellhouse. According to policy, he should not be given another strip search prior to his visit and he does not change clothes.

14. After returning to the cellhouse but prior to going to his cell, the inmate is strip searched again, including a vbc search.

15. General population inmates go through similar procedures before contact visits.

16. Two officers are normally stationed at the visiting room; one is inside the room and has responsibilities to check other areas, such as the public restrooms and the inmate restroom. The second officer is behind glass observing the visit. The officer behind the glass must watch two separate visiting areas and operate electric doors allowing visitors to enter and leave. It is difficult to watch both the visiting rooms at the same time.

This is the extent of the parties’ stipulation of facts.

The evidence clearly demonstrated that the moving of any prisoner from cellhouse 20 or 319 is accomplished only after the officers have shackled the prisoner, placed him in a belly chain and handcuffs, which restricts his movement to a minimum. The evidence also demonstrated that a further confining “black box” for the hands is often used.

The use of the “squat and cough” search procedure has been used at the penitentiary but is not now being used.

There is little, if any, evidence that the penitentiary has had any problems with the introduction of contraband into the institution from attorneys, legal interns, clergymen or the ombudman’s office and if, in the unlikely event that there are some future problems with such individuals, the defendants can promptly take necessary steps against such an individual or bring the situation to the attention of the Court.

At the hearing, testimony showed that there is a great concern among the prison administration about the flow of contraband, including drugs and weapons, into the prison from the outside and particularly into the segregation units. Testimony further indicated, however, that the vbc search policy, fully implemented on February 22, 1984, has caused nearly all, if not all, of the 25 inmates in cellhouse 319 to go without exercise since that date. Furthermore, there was testimony that the 40 inmates in cellhouse 20 have not exercised since March 5, 1984. Testimony by the plaintiff indicated that, because of the vbc search policy, he has foregone visits with his attorney in relation to a criminal action against him. Testimony further indicated that the reason inmates were foregoing these privileges was because they felt the vbc search was degrading and that the guards used it as an opportunity for ridicule and intimidation.

The Court is aware that the smuggling of weapons, drugs and other contraband into a high-security area is a serious and difficult problem for prison administrators to address. The district court cases that have considered this question in other states all refer to substantial evidence that such contraband is passed into penal institutions through body cavities. See, e.g., Hurley v. Ward, supra, 549 F.Supp., at 185 (a number of balloons are found in the sewage emanating from a New York prison). In the Hurley case, however, the evidence that body cavities were used to transport contraband was strong despite the use of vbc searches. Furthermore, prison officials who testified at the hearing in the present case could recall few, if any, instances where contraband was actually intercepted via a vbc search, despite testimony that such searches have been going on in random fashion for a number of years at Fort Madison.

Testimony also indicated that vbc searches are required before and after visits to the prison infirmary by segregation inmates. It has been argued to the Court that the availability of various drugs and potential weapons in the prison infirmary makes it essential for such searches to occur. The testimony also indicated, however, that inmates are supervised most, if not all, of the time that they are in the infirmary and could be watched all. of the time. Testimony also indicated that inmates are subjected to vbc searches when leaving the institution, including prior to and following court appearances. Testimony further indicated that inmates are heavily guarded at all times during court appearances except when in private conversations with their attorneys.

The Court finds that the newly-instituted policy that mandates vbc searches in a wide variety of situations has had and will continue to have a significant chilling effect on the exercise of some constitutional rights at the Iowa State Penitentiary. Specifically, the rights to exercise, medical treatment, and access to the courts can be expected to be seriously compromised if inmates are required to submit to vbc searches as a condition for exercising such rights.

III. CONCLUSIONS OF LAW

The Court finds, based on the evidence so far, that subjecting inmates to vbc searches as a condition for the exercise of the following rights or privileges is unreasonable and therefore unconstitutional under the circumstances that have been presented to the Court:

1. Going to or returning from contact visits with an attorney, legal intern, prison ombudsman, clergyman, or chaplain.

2. Going to or returning from the prison infirmary or a hospital.

3. Going to or returning from the exercise areas.

4. Going to or returning from court dates, whether on or off the prison grounds, unless the inmate has been out of restraints and beyond visual supervision for a significant period of time. Private visits with attorneys shall not be considered out of restraints or beyond visual supervision.

The Court finds that, in the above situations, the scope of the intrusion outweighs any security interests that may be present. Based upon the evidence presented at the hearing, the Court feels that the security concerns in these situations may well be exaggerated and that the exercise of the inmate’s constitutional rights must take precedence. The Court feels that the possible addition of a few extra correctional officers, while somewhat of a burden to the defendants, is clearly a more reasonable alternative than to engage in a practice the effect of which is to deny basic human rights.

The Court further finds that the requirements for the issuance of a preliminary injunction have been met. The movant has shown the possibility of irreparable harm in being denied access to his attorney and opportunities to exercise. The defendants have not convinced the Court that the security goals achieved by the vbc searches are so critical as to outweigh the exercise of inmates’ constitutional rights. The current state of the record is such that the Court feels the plaintiff has a good probability of succeeding on the merits of at least a portion of his claim and that the public interest is always advanced by the proper enforcement of constitutional requirements. See Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th Cir.1981).

IT IS THEREFORE ORDERED that defendants are hereby enjoined from conducting visual body cavity searches in the following situations:

1. Before or after contact visits by attorneys, legal interns with a notarized letter of introduction from a licensed attorney, clergy, chaplains, or representatives of the prison ombudsman’s office.

2. Before going to or after coming from the prison infirmary or University of Iowa Hospitals.

3. Before or after attendance by inmates at court dates, whether on the prison grounds or in any other location, unless the inmate is out of restraints and beyond the visual supervision of correctional officers for a significant period of time. Private visits with attorneys shall not be considered as being outside of visual supervision or out of restraints.

4. Before going to or after coming from the exercise areas.

IT IS FURTHER ORDERED that nothing in this Order shall prevent the defendants from conducting visual body cavity searches in the following situations:

(a) Before or after “contact” visits with any visitors coming to the prison except as previously set out.

(b) Upon initial admission to the prison or before or after being outside the prison on furlough, transfer or work release.

(c) Before or after a segregated prisoner has mixed with the “general population” of the prison without supervision or restraints.

(d) Before or after an inmate, in any set of circumstances, has demonstrated activity which would give an official of the penitentiary of the status of Security Director or above a reasonably clear indication that an inmate is actually concealing something in a body cavity. In any such situations, the burden will be on the Warden to show that the use of this exception was reasonable.

IT IS FURTHER ORDERED that nothing in this Order shall prevent the defendants from continuing to require all prisoners to submit to strip searches without use of a visual body cavity search or use of a squat-and-cough procedure.

IT IS FURTHER ORDERED that the practice known as “squat-and-cough” is also prohibited from being used under any circumstances at the Iowa State Penitentiary-

IT IS FURTHER ORDERED that this Order shall apply to all inmates at the Iowa State Penitentiary, not only to cellhouse 20 and 319 inmates. See rule 15(b), Federal Rules of Civil Procedure (issues tried by implied consent shall be treated as if pleaded).

IT IS FURTHER ORDERED that this injunction shall constitute interim relief and remain in effect only until a final order is entered by this Court after a full hearing in this cause. The Court reserves the right to make further findings in this matter based on evidence already heard or as additional evidence is presented.

This is an interim order based on the evidence presented thus far. The Court recognizes that this cause should be expedited so that a final determination can be reached. Therefore,

IT IS FURTHER ORDERED that this cause is set for trial in Fort Madison, Iowa on April 25, 1984 at 9:00 a.m., and all discovery in this cause shall be completed on or before April 15, 1984.

IT IS FURTHER ORDERED that a copy of this Order shall be sent directly to the Warden and the Deputy Warden at the Iowa State Penitentiary.

      . A “contact” visit is one where an inmate will have the opportunity to actually touch another individual.

      . The defendants contend the full implementation of this new policy is necessary and that the inmates are "protesting" in an effort to change the policy. The inmates say “they have taken away everything else and now they want to take away our manhood.”

      . The evidence presented so far is not persuasive that additional officers would be needed.


author: MacKENZIE, Chief Judge.

text:
    Paul R. RIDDICK, Jr., and Phelicia Riddick, Infants, by Paul R. RIDDICK, Their Father and Next Friend, Cynthia C. Ferebee, Johnny Ferebee, Infants, by Rev. Luther M. Ferebee, Their Father and Next Friend, Anita Fleming, Infant, by Blanche Fleming, Her Mother and Next Friend, Darrell McDonald and Carolyn McDonald, Infants, by Ramion McDonald, Sr., Their Father and Next Friend, Eric E. Nixon and James L. Nixon, Infants, by Patricia Nixon, Their Mother and Next Friend, Johnny Owens; Trent Owens; Myron Owens, Shawn Owens, and Antonia Owens, Infants, by Annette Owens, Their Mother and Next Friend; Paul R. Riddick, Rev. Luther M. Ferebee, Blanche Fleming, Ramion McDonald, Sr., Patricia Nixon, and Annette Owens, Plaintiffs, v. The SCHOOL BOARD OF the CITY OF NORFOLK Thomas G. Johnson, Jr., Dr. John H. Foster, Dr. Lucy R. Wilson, Jean C. Bruce, Cynthia A. Heide, Robert L. Hicks, Hortense R. Wells, Defendants.
    Civ. A. No. 83-326-N.
    United States District Court, E.D. Virginia, Norfolk Division.
    July 9, 1984.

      Henry L. Marsh, III, S.W. Tucker, Randall G. Johnson, Hill, Tucker and Marsh, Richmond, Va., Gwendolyn J. Jackson, Delk, James & Jackson, Norfolk, Va., Napoleon Williams, New York City, John 0. Goss, Norfolk, Va., for plaintiffs.
    Jack E. Greer, J. Anderson Stalnaker, M. Wayne Ringer, Williams, Worrell, Kelly & Greer, P.C., Norfolk, Va., for defendants.
   MEMORANDUM OPINION

MacKENZIE, Chief Judge.

Procedural History of Recent Complaint

This suit was filed by the plaintiffs, parents of public school children, as a class action against the School Board of the City of Norfolk, Virginia, and the members thereof, on May 5, 1983. The suit challenges, on constitutional grounds, a new proposed pupil assignment plan (hereinafter “Proposed Plan”) in which crosstown busing of elementary school children is curtailed. The Proposed Plan was adopted by the School Board on February 2, 1983 and is scheduled for implementation in the school year beginning September, 1984. Plaintiffs contend that the adoption of the Proposed Plan was racially motivated and that its implementation would violate the rights of the plaintiffs under the Fourteenth Amendment.

Defendants contend that the present plan, with its massive crosstown busing, -has had the effect of resegregating the school system and that continuation of the present plan would result in even further resegregation. Defendants argue that the Proposed Plan was adopted, in large measure, to promote stability in the school system and thereby to ensure that the Norfolk school system remains as desegregated as possible over the long term.

Past History of Proceedings

Desegregation litigation in Norfolk began in 1956, styled Beckett v. School Board of the City of Norfolk, before Judge Walter E. Hoffman. Beckett, renamed Brewer v. School Board of the City of Norfolk, became the individual docket responsibility of Judge John A. MacKenzie on July 7, 1971, and the district court decisions from that date, to the present, have all been those of Judge MacKenzie.

Following the decision in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), Brewer v. Norfolk School Board was remanded to the District Court by the Fourth Circuit Court of Appeals, with instructions to obtain from the Norfolk School Board a new desegregation plan which would give effect to Swann. Brewer, sub nom., Adams v. School District No. 5, Orangeburg County, South Carolina, 444 F.2d 99 (4th Cir.1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136 (1972).

Acting under that mandate, this Court received a revised desegregation plan from the School Board. This plan, modified in some respects by this Court, was instituted by an Order of this Court entered in July 1971. The plan utilized several different methods of pupil assignment including single school attendance zones, groupings and pairings of schools, and a majority-minority transfer provision. It also ordered crosstown busing as a technique to overcome the remaining vestiges of Norfolk’s dual school system. That plan was approved by the Fourth Circuit with the minor change that crosstown busing was to be without cost to the students. This pupil assignment plan, which was subjected to periodic review over the next several years, is essentially the plan now in effect.

Background

In July 1971, when the current desegregation plan was instituted and busing began, the population of Norfolk was 307,951 of which 70% (215,096) were white and 28% (87,261) were black. The Norfolk school system in 1970 enrolled 56,830 pupils, of which 57% (32,586) were white and 43% (24,244) were black.

By 1983, when the Proposed Plan was adopted by the School Board, the situation had changed significantly. The 1980 Census pegged the population of the City of Norfolk at 266,979 of which 61% (162,300) were white residents and 35% (93,987) were black residents. Total enrollment in the Norfolk school system stood at 35,540 in 1983. And in 1983, the racial composition of the school system was the following: 58% of the students (20,681) were black and 42% (13,327) were white. In the past twelve years then, there has been a 37% loss in enrollment (21,290) and, specifically, a drop in the white student population of 59% (19,259).

These figures are noteworthy in two respects: first, that the racial composition of the school population had reversed itself, in 1983 it was 58% black, 42% white while in 1970 it had been 57% white and 43% black. Second, while the. population of the City of Norfolk was 61% white in 1983, the school population was 42% white. This is to be compared with the situation in 1971 when the City’s population was 70% white and the school population was 60% white.

In 1970 there were fifty-four elementary schools. In 1983 there were only thirty-six. This reflects the shrinking elementary school population as part of the 37% drop overall in school enrollment.

The Proposed Plan

On February 2,1983, the School Board of the City of Norfolk adopted the Proposed Plan which provides for a change in the system by which pupils in the elementary grades are assigned to schools. The Norfolk school system operates thirty-six elementary schools, and defines the elementary grades to include Kindergarten through Sixth Grade (K-6). (One of the thirty-six elementary schools, Ghent Elementary, is not now and will not become a neighborhood school. It offers an open classroom program and any student may apply for admission to it.) At the present time, there are fourteen single attendance zone schools (an increase of twelve since 1971) while the other elementary students in the school system are involved in the crosstown busing program. The Board has proposed instead that all elementary students attend single attendance zone schools (otherwise known, somewhat inaccurately, as neighborhood schools), the zones having been drawn to achieve the maximum amount of racial integration. The plaintiffs have not attacked the zones as drawn.

Under the Proposed Plan, crosstown busing for racial balance in Grades K-6 would be eliminated. The Proposed Plan would have the effect of increasing the number of black racially identifiable elementary schools from 7 to 12. (This Court considers a school to be “racially identifiable” if the school population contains more than 70% of a particular race.)

The Proposed Plan includes a Majority-Minority transfer option (“M/M transfer”). No student would be required to attend a school in which his race, constitutes more than 70% of the student body. Under the M/M transfer program, the student could transfer, at his parents’ option, to a school in which his race constitutes less than 50% of the student body. The school administration has calculated that 10-15% of those eligible for the M/M transfer program would choose to use it in the first year and that up to 30-40% of those eligible would opt for it over the next five years. After considering the evidence of experts for both the plaintiffs and defendants, this Court finds that the school administration’s figures are a reasonable estimate of the outcome of the M/M transfer program. This Court therefore finds that the School Board’s figures — calculated on the basis that approximately 17-18% would opt to transfer — give a fair illustration of the effects of the M/M transfer program upon the elementary school population. After M/M transfers, only one elementary school would be over 70% white, i.e., Bay view (74%).

The Norfolk school system also includes Grades Seven-Twelve (7-12), located in eight Junior High Schools, five Senior High Schools and six Special Instruction Schools. These schools are not affected by the Proposed Plan. Under the Proposed Plan, crosstown busing will still be used to achieve racially mixed student bodies in those schools. The Proposed Plan creates a feeder pattern of elementary schools for the assignment of students to Junior High Schools. Each Junior High School will have a racially balanced student body as a result. In short, these schools will retain their present characteristics.

While the Proposed Plan also involves the creation of programs designed to improve achievement, parental involvement, cross-cultural contacts and to ensure equal allocation of education resources, the major issues raised in this suit concerned the pupil assignment component.

The 1975 Order in Beckett v. School Board: Its Meaning

As has been pointed out, the desegregation plan for the Norfolk school system was entered in July 1971 by the same judge as here presiding, and remains the framework for the organization of the school system. In 1972, 1973 and 1974, this Court received reports which described, in considerable detail, the operation of the school system. In particular, this Court reviewed the construction of new schools and the closing of other schools in 1972,1973 and 1974. An application for the establishment of a transition school to aid school dropouts was opposed by the Beckett plaintiffs, but was nevertheless approved by this Court in August, 1972.

All of this activity culminated in an Order dated February 14, 1975, which is here fully set out:

LEOLA PEARL BECKETT, et al., Plaintiffs
v.
THE SCHOOL BOARD OF THE CITY OF NORFOLK, VIRGINIA, et al., Defendants
CIVIL ACTION NO. 2214 ORDER
It appearing to the Court that all issues in this action have been disposed of, that the School Board of the City of Norfolk has satisfied its affirmative duty to desegregate, that racial discrimination through official action has been eliminated from the system, and that the Norfolk School System is now “unitary,” the Court doth accordingly
ORDER AND DECREE that this action is hereby dismissed, with leave to any party to reinstate this action for good cause shown.
/s/ JOHN A. MacKENZIE
United States District Judge
Dated: February 14, 1975
We ask for this:
/s/ Henry L. Marsh, III
Counsel for Plaintiffs
/s/ Allan G. Donn
Counsel for Defendants

The language of the Order of February 14, 1975 was fully agreed to by counsel for plaintiffs and defendants. Attorney’s fees had been the only issue in the lawsuit for nearly three years before the entry of the Final Decree in February, 1975.

The Order of February 14, 1975, as appears on its face, was more than just a mere order of dismissal. Rather, the Order made specific findings

"... all issues in this action have been disposed of
“... that the School Board of the City of Norfolk has satisfied its affirmative duty to desegregate
“... that racial discrimination through official action has been eliminated from the system [emphasis added]
"... that the Norfolk School System is now ‘unitary’.... ”

That Order was entered by the same judge who is now hearing this present action, after he had had the ease in his charge for over four years and after he had been monitoring the operation of the school system for four years; at a time more than four years after he had ordered into effect the desegregation plan which today provides the structure by which the Norfolk school system is organized; at a time when the plan in effect had been unaltered in any appreciable respect since July, 1971, and which, incidentally, has remained essentially unaltered into 1984. No attempt to revive or reinstate the Beckett litigation was made during the nine years which passed from the time the Order was entered in 1975 until the present contest. This Court therefore cannot agree with the present efforts of plaintiffs to label the February 14, 1975 Order as a “Consent” Decree or an Order entered without the consideration of evidence to support its entry.

This Court finds that the Norfolk school system displays today, as it did in 1975, all indicia of “unitariness.” In Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), the Supreme Court explained that a dual system was one in which,

[r]acial identification of the system’s schools was complete, extending not just to the composition of student bodies at the two schools but to every facet of school operations — faculty, staff, transportation, extracurricular activities and facilities. In short, the State, acting through the local school board and school officials, organized and operated a dual system, part “white” and part “Negro”.

Id., at 435, 88 S.Ct. at 1693. It has now been twelve years since crosstown busing was introduced and almost 30 years since the start of desegregation litigation in Norfolk. Every piece of evidence in this case points to the fact that the Norfolk school system is unitary: the Norfolk School Board is an integrated body, the Norfolk school administration is racially balanced, the racial composition of the faculty and staff is mixed, and the overwhelming majority of schoolchildren, of both races, on the elementary, junior and senior high school levels, attend schools whose student bodies are racially mixed. In addition, there has been no contention, nor could there be one, that the extracurricular activities, transportation network and school facilities are operated in a dual fashion. Finally, as noted elsewhere, there has been no challenge to any of the Board’s actions in the Beckett litigation since some time before the 1975 Order was entered. Compare, Clark v. Board of Education of the Little Rock School District, 705 F.2d 265 (8th Cir.1983); United States v. Texas Education Agency, 647 F.2d 504 (5th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982).

In short, this Court finds that its Order of February 14, 1975, was carefully considered for every phrase it contained. The Order manifested this Court’s determination that, as a factual matter, the Norfolk system was free of discrimination and was unitary in 1975. This Court holds that such a finding was fully justified in 1975 and remains a finding which is today fully justified.

Burden of Proof

What then is the effect of the 1975 Court Order? For the purposes of the present posture of this case, the effect of the Order is to shift the burden of proof from the defendant School Board to the plaintiffs, who must now show that the 1983 Proposed Plan results from an intent on the part of the School Board to discriminate on the basis of race.

It is well-established that a School Board which has maintained a dual school system has committed a constitutional violation. E.g., Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). (The same principle, of course, applies to school systems which have been maintained as dual by operation of law. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).) A dual system is one which is created by state authorities acting intentionally, with discriminatory purpose, to segregate the races. See, Keyes, 413 U.S. at 198, 93 S.Ct. 2692; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 6, 91 S.Ct. 1267, 1271, 28 L.Ed.2d 554 (1971). When such a constitutional violation has been found, the offending school board is then under a continuing affirmative obligation 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, 437-38, 88 S.Ct. 1689, 1693-94, 20 L.Ed.2d 716 (1968); Swann, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). A school board charged with the duty to dismantle an existing dual system bears the burden of justifying its action in light of that duty. See, Columbus Board of Education v. Penick, 443 U.S. 449, 460-61, 99 S.Ct. 2941, 2948, 61 L.Ed.2d 666 (1979); Swann, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554.

A different situation, however, is present in the suit at bar. This Court, in its 1975 Order, specifically held that the Norfolk School Board had fully discharged its affirmative obligation to create a unitary system, that the school system had shed its dual, de jure segregated character and that the system was unitary. Consequently, the burden now falls upon these plaintiffs to show that the defendant School Board’s actions were taken in violation of the Constitution. In order to make this showing, plaintiffs must prove that the Board acted with an intent to discriminate. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Keyes, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. The presence of discriminatory intent will not be inferred solely from the disproportionate impact of a particular measure upon one race. As the Supreme Court has made clear, “... official action will not be held unconstitutional solely because it results in a racially disproportionate impact. ‘Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.’ ” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. at 264-265, 97 S.Ct. at 563, quoting, Washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2049. Moreover, it is clear that the existence of one race or substantially one race schools is not unconstitutional without a showing that such schools were created for the purpose of discriminating on the basis of race. Keyes, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548; See, Crawford v. Board of Education of the City of Los Angeles, 458 U.S. 527, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982). Plaintiffs have attempted to carry their burden by pointing to various facts and circumstances regarding the adoption and effect of the Proposed Plan, specifically the following: that the impact of the Proposed Plan is such as to indicate discriminatory intent, that the procedures used by the Board in considering and adopting the Proposed Plan were suspect, that the Board improperly considered the effect of “white flight”, and that the Board’s stated justifications were pretexts for discrimination.

This Court finds that plaintiffs have failed to satisfy their burden. As will be developed below, the evidence in this case falls short of demonstrating the requisite discriminatory intent.

(The plaintiffs have made several arguments with respect to the allocation of the burden of proof, all of which this Court rejects. First, plaintiffs argue that Swann requires the School Board to provide a nondiscriminatory justification as to why its Proposed Plan will create some schools with student bodies composed disproportionately of one race. However, Swann is inapplicable here. The questions resolved by the Supreme Court in Swann involved the fashioning of an appropriate remedy for the dismantling of a dual school system. In the ease at bar, by contrast, the Norfolk school system has been held to be unitary and the question is whether the School Board has committed a constitutional violation in adopting the Proposed Plan. Second, plaintiffs contended that the principles announced in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), require that this Court strictly scrutinize the Proposed Plan. As discussed in greater depth below, however, Bakke is inapplicable to this case.)

School Resources Allocation

Plaintiffs have argued that as a result of the adoption of the Proposed Plan, and the emergence of a larger number of racially identifiable black schools than presently exists, the resources of the school system might be unequally distributed. Specifically, plaintiffs suggest that the greater concern would be shown to schools with a larger percentage of white enrollment and that the better equipment and better faculty would be diverted to these schools. Such an argument is hardly worth the review of the evidence that thoroughly defeats it.

The School Board of Norfolk is racially mixed, with four white members and three black members. The administration of the Norfolk school system is now in the capable hands of a very competent and integrated staff. The Superintendent of Schools, Dr. Gene R. Carter, is black. Two of the three Regional Assistant Superintendents are also black. There are 88 principals in the system, 59% are white, 41% are black. The faculty is likewise fully integrated, 56% white, 44% black. When all personnel are counted, including the maintenance staff, administration and faculty, the mix is 47% white, 52% black (1983 figures). Given that the staff is completely integrated and given that very qualified blacks are at the top of the organization, the fear that white students will stand to reap some benefit over black students is totally lacking in credence. And even though it is unlikely that additional oversight is necessary, the Proposed Plan specifically requires periodic judicial review of the allocation of educational resources, both human and material.

Integration: New Plan as an Aid

A significant amount of expert testimony was solicited during the long trial of this case on the question of whether the scholastic achievement of students, black and white, is affected when the school they attend is racially mixed. In order to evaluate the Proposed Plan, and without attempting to balance the experts, let us assume that integration produces some positive impact upon achievement. Under this assumption, it becomes clear that the goal of any school plan must be to ensure that the greatest number of students of both races remain enrolled. And in fact, one of the purposes of the Proposed Plan is to stabilize elementary school population at its present ratio of black students and white students, roughly 60-40. There is some speculation that with the Proposed Plan in place the ratio might be narrowed to 55-45.

If the Proposed Plan is successful and the racial composition of the school population stabilizes, the school administration will have considerably more white students for the purpose of integrating the system than it would have if the present plan continues in operation, according to various forecasts. As noted elsewhere in this opinion, even plaintiffs’ experts recognize the distinct possibility that Norfolk will go the way of other central core cities whose school populations have become overwhelmingly minority, and that therefore Norfolk’s student ratio may dwindle under the present plan to 75-25, black to white or 86-14, black to white, as in nearby Richmond, or even 90-10, black to white, as in Washington and Baltimore. This Court gives credence to these predictions. Clearly then, given that experts on both sides indicate that stability in the level of white enrollment is a desirable objective, and given the assumption that the achievement of all students may be improved by having an integrated education, the possibility that the Proposed Plan would increase the number of white students would be a strong point in its favor.

Let us suppose the Proposed Plan fails to stem the tide of “white flight” and the racial composition of the student population fails to stabilize at 55-45, or 60-40, black to white. In such a situation, the number of elementary schools that can be racially identified as black will necessarily increase since white students will not be available in sufficient numbers to maintain integration. Thus, the failure of the Proposed Plan to retain white students would produce a result no different from that of the continued operation of the present plan.

If stability in the ratio of white elementary students to black elementary students is a proper goal, then a plan which would achieve that goal must be appropriate. If the Proposed Plan is successful, it will produce such a result, but if it fails, the result will be no worse than the outcome which appears to be likely with the continued operation of the present plan — that is, re-segregation. In short, the Proposed Plan represents a reasonable, voluntary attempt on the part of the School Board to ensure that the school system retains the greatest degree of integration over the long term.

White Flight

The Court finds that the credible evidence in the case at bar reveals that there has been significant “white flight” from the Norfolk school system. Norfolk has experienced two types of “white flight”: students who left the system after once having been enrolled in it, and families who have avoided settling in Norfolk but have instead settled in communities such as Virginia Beach or Chesapeake. The Court finds that, as a result of busing, the Norfolk school system has lost between 6000 and 8000 white students who otherwise would have been enrolled there.

The Court further finds that, as a result of this white flight, the Norfolk schools are faced with imminent resegregation. Dr. Crain, one of plaintiffs’ key experts, stated in an unguarded moment that the school population of the City of Norfolk was undoubtedly moving towards a high ratio of black to white. The situation in Norfolk is not unlike that of other nearby cities which, like Norfolk, have an older central core. In Richmond, for example, the racial composition of the student population stands at 86% black, 14% white even though it began at approximately the same level as that in Norfolk. In short, it is clear that the Norfolk school system faces a serious problem brought on by the effects of white flight.

It is well settled that “white flight” cannot be used as a justification for the failure to comply with the Court Order to dismantle a dual school system. The commands of the Constitution may not bend to the popular will. United States v. Scotland Neck Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972); Davis v. East Baton Rouge Parish School Board, 721 F.2d 1425 (5th Cir.1983). However, when the proper set of circumstances exists, white flight may be considered by the school board, and by the Court, in solving the integration equation. See, Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 705, 720 (2d Cir.1979); Johnson v. Board of Education of Chicago, 604 F.2d 504, 516 (7th Cir.1979), vacated and remanded for consideration of subsequent developments, 449 U.S. 915, 101 S.Ct. 339, 66 L.Ed.2d 162 (1980); Stout v. Jefferson County Board of Education, 537 F.2d 800, 802 (5th Cir.1976); Higgins v. Board of Education of the City of Grand Rapids, 508 F.2d 779, 794 (6th Cir.1974). This Court finds, as further developed below, that this case presents circumstances which make consideration of “white flight” appropriate.

Exodus of White Students as a Proper Criterion for Planning

Plaintiffs argue that the School Board bears the burden of proving that the Proposed Plan can survive strict scrutiny under the Equal Protection Clause because the Board allegedly employed racial criteria in designing the Proposed Plan. Specifically, plaintiffs claim that the Proposed Plan is suspect because it was developed, in part, to stem white flight and because it has the effect of creating twelve racially identifiable black schools. The plaintiffs cite Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), as support for this proposition.

The short answer to this argument is that the Proposed Plan does not create an impermissible classification. Under the Proposed Plan, the residence of the child will determine the school to which the child will be assigned. The Proposed Plan seeks to confer the benefit of neighborhood schooling upon all students in the City, and makes it available to all, regardless of race. See, Crawford, 458 U.S. at 537, 102 S.Ct. at 3217. The case at bar presents a clear instance of state action which addresses race related matters in neutral fashion. As the Supreme Court has stated, “A neighborhood school policy in itself does not offend the Fourteenth Amendment.” Id. at 537, n. 15, 102 S.Ct. at 3217, n. 15; Swann, 402 U.S. at 28, 91 S.Ct. at 1282. Thus, on its face, the Proposed Plan does not establish a classification grounded on race. This distinguishes the case at bar from Bakke in which a medical school overtly considered applicants for admission differently according to race or ethnic origin.

Moreover, there is no evidence in this case to indicate that the Board used “residence” as a factor determining which school a child will attend as a pretext for discriminating on the basis of race. While the Board considered race when drawing up the boundary lines of the various attendance zones, it did so to ensure the maximum amount of integration in each school. Thus, it cannot be said that this line-drawing technique suggests that the Proposed Plan invidiously discriminates on the basis of race. And the fact that the Proposed Plan increases the number of racially identifiable black schools to twelve does not, standing alone, dictate a finding that an impermissible classification was established. See, Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597. The evidence has failed to show that the Board intended to use this Proposed Plan as a subterfuge for a deliberate attempt to discriminate on the basis of race.

Plaintiffs further argue that the Board’s consideration of “white flight” was improper. This Court has already found that, as a factual matter, the Norfolk school system has been a victim of “white flight”. Certainly, the mere fact that the Board considered the problems of white enrollment loss does not indicate that the Board acted with a discriminatory purpose when it adopted the Proposed Plan.

There is nothing inherently suspect in the Board’s consideration of the “white flight” problem in 1983. As noted above, it is established that the possibility of white flight cannot justify a school board’s failure to comply with court-ordered desegregation, nor would it excuse actions which would tend to make the court order unworkable, Scotland Neck Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75; Davis, 721 F.2d 1425. However, those cases are distinguishable from the one at bar because the school board in each of those cases was under court order to dismantle a dual school system. In Norfolk, by contrast, the school system was declared unitary in 1975 and the Board’s continuing, affirmative duty to desegregate was discharged at that time. The School Board therefore did not act improperly in 1988 when it took into account the problems of white enrollment loss in considering a pupil assignment plan to ensure that the Norfolk school system would remain integrated over the long term. See, Ambach, 598 F.2d 795; Higgins, 508 F.2d 779. As the Sixth Circuit stated,

... It does not follow that a board must ignore the probability of white flight in attempting to formulate a voluntary plan which would improve the racial balance in the schools without at the same time losing the support and acceptance of the public.

Higgins, 508 F.2d at 794 (emphasis in original).

Parental Involvement and the Proposed Plan

As noted above, plaintiffs have argued that the Proposed Plan was adopted and designed for the purpose of discriminating on the basis of race, and that the Board’s stated justifications for adopting the Proposed Plan were mere pretexts. This Court has determined that the primary objective of the Board in adopting the Proposed Plan — providing a response to the threat posed by white flight to the long term integration of the Norfolk school system — was not a pretext for discrimination. This Court also finds that plaintiffs have failed to produce convincing evidence to substantiate their claim that the School Board’s other key objective in adopting the Proposed Plan (i.e., increase the level of parental involvement) was pretextual.

One of the School Board’s primary concerns has been the involvement of the parents in the process of education. The evidence produced in this case by both sides is absolutely clear that parental involvement at the elementary school level is essential to the health and well-being of a school system. When asked whether involvement of parents in the school system was desirable, every witness — sociologists, educators, parents — responded affirmatively. Dr. Foster, one of plaintiffs’ key experts, stated, “... today parental involvement is considered to be'one of the most important ingredients for quality education.” Tr. at 189. Dr. Albert Ayars, who served as Superintendent of the Norfolk school system until about a year ago, testified that parental involvement was “vital”. Dr. Ayars pointed out that a nationwide Gallup Poll conducted in 1976 revealed that 65% of those responding believed that the “most significant factor” in a child’s education was the involvement of parents.

While plaintiffs’ acknowledged that parental involvement was important in making a school system successful, they attempted to defend the extent of parental involvement under the present plan. Plaintiffs also tried to intimate that programs to increase parental involvement which are to be implemented in connection with the Proposed Plan could work equally well under the current plan. These efforts fell short. Dr. Ayars, who was particularly well qualified to make such an assessment, stated that crosstown busing had “virtually destroyed” the PTA in Norfolk. PTA membership has fallen from approximately 15,-000-20,000 to a mere 3,500. Dr. Ayars testified that, during his tenure, the school administration engaged in extensive efforts to improve the level of parental involvement and to increase the number of PTA members. One such effort was to offer free transportation to parents to enable them to attend meetings at their children’s schools which were across town. However, these efforts were all to no avail.

At trial, individual parents testified that they lacked the transportation, and in many instances the energy, to make the trips to distant schools. These parents also testified, as did Dr. Ayars, conversely, that their interest and involvement would be revived if their children attended an elementary school in the neighborhood.

In short, this Court finds as a factual matter that the Norfolk School Board faced a critical problem caused by the precipitous decline in the level of parental involvement as a result of crosstown busing. Further, this Court has determined that the Proposed Plan constitutes a reasonable solution developed by the School Board to the difficult problem of declining parental involvement. Therefore, contrary to plaintiffs’ argument, there is insufficient evidence from which to conclude that this objective of the School Board was, in fact, a pretext for discriminating on the basis of race.

No Alternative Plan

The School Board commissioned Dr. McLaulin to devise another plan as an alternative to the Proposed Plan which divides the City into attendance zones. The purpose of this alternative plan was to determine whether it would be feasible to retain a system of crosstown busing but at the same time to reduce the amount of time a child would spend on a bus each day. (The evidence proffered here showed that many children spend as much as 45 minutes on a bus traveling just one way to school.) This alternative plan was presented to the community at a series of public hearings held to aid the School Board in its decision-making process. The public was fully informed as to the principle underlying the alternative plan and as to the actual design of the alternative plan. However, the evidence produced in this case clearly established that absolutely no interest was expressed at the public hearings in the alternative plan. Therefore, the alternative plan was appropriately shelved. In short, this Court finds that the alternative plan was never a viable program and plaintiffs’ arguments to the contrary, as well as their attempts to question the consideration which the alternative plan received, are completely unavailing.

The Board’s Procedures

Plaintiffs have argued that the procedures used by the Board to consider and adopt the Proposed Plan were suspicious. Plaintiffs further contend that the suspicious nature of this process suggests that the Board acted with discriminatory purpose.

The Court finds, however, that the School Board’s decision-making procedures were reasonable and do not indicate that the Board acted with discriminatory intent. There is no evidence of clandestine action on the part of the Board, or even the hint that any took place. Indeed, the facts are to the contrary. The Board established a special committee, the Ad Hoc Committee, to investigate the matter; later, a committee of the whole Board considered the matter. The Board solicited studies and opinions from further experts (Doctors Green, Edmonds, Lightfoot, Armor) as to various problems facing the school system and as to possible solutions. The Board held a series of six public hearings at different sites throughout the City during which the comments of the community were sought and received. The Board requested the opinions and advice of Dr. Ayars and Dr. Carter as well as those of their staffs. Plaintiffs’ criticisms, made with the clear vision of hindsight, amount to no more than a claim that the Board failed to meet a standard of near-perfection in its decision-making process. In short, plaintiffs’ criticisms of the Board’s procedures do not, considered separately or in combination, lead to the conclusion or even amount to a suggestion that the Board was in fact acting with an intent to discriminate on the basis of race.

Housing

Plaintiffs have argued that those neighborhood schools which would be racially identifiable as black under the Proposed Plan are those schools which are located in housing projects or areas of subsidized housing, and that therefore the official actions of the housing authorities have, in large part, determined where the children of the residents of those projects will attend school. However, plaintiffs’ argument does not lead to a finding that the School Board has acted with discriminatory purpose in the adoption and design of the Proposed Plan.

All of the evidence points out that the slum clearance projects undertaken by the Norfolk Redevelopment and Housing Authority (“NRHA”), and any other agency involved with housing, beginning in the 1950’s did, in fact, eliminate areas which were truly slums. The abominable living conditions in those slums were made even worse by the crowding of several families into units designed for single family habitation. These slum areas were occupied by those on the lowest rung of the economic ladder, many of whom were black. Therefore, when the slums were cleared, most of those who were displaced were black. The cleared slum areas became the sites of modern housing projects which were, by law, intended to house low income families; space in those projects was, again by law, to be offered first to those who had been displaced by the demolition of the slum areas.

Today, Norfolk’s fifteen public housing projects and seven subsidized housing projects are occupied almost exclusively by black residents. These projects house approximately 25% of Norfolk’s black families and, by deduction, 25% of Norfolk’s black school children. However, it defies logic to suggest that because the City of Norfolk and the appropriate City agencies had undertaken an aggressive and progressive plan to eradicate unlivable slums and to replace them with modern, affordable living spaces for low income residents, the School Board is responsible in some way for the fact that under the Proposed Plan, the racially identifiable black schools are located in close proximity to those projects. No plaintiff expert witness suggested that the School Board should have insisted to the City, or to the appropriate City agencies (e.g., the NRHA), that the statutory requirement that those displaced have priority in the assignment of rental units be ignored, that some of the units be made available to those of greater financial means, that the long waiting lists of prospective black tenants (which exist even today) be disregarded or that some of the new accommodations be set aside and held, even if unoccupied, for white residents only. As Justice Powell wrote in Columbus Board of Education v. Penick,

There are unintegrated schools in every major urban area in the country that contain a substantial minority population. This condition results primarily from familiar segregated housing patterns, which — in turn — are caused by social, economic, and demographic forces for which no school board is responsible

443 U.S. 449, 480, 99 S.Ct. 2941, 2988, 61 L.Ed.2d 666 (1979); Cf., Bell v. Board of Education, Akron Public Schools, 683 F.2d 963 (6th Cir.1982) (discrimination in housing by governmental agencies not imputable to school authorities otherwise innocent of segregative intent). And as Professor Alexander Bickel stated, in a passage quoted by the Court in Penick,

In most of the larger urban areas, demographic conditions are such that no policy that a court can order, and a school board, a city or even a state has the capability to put into effect, will in fact result in the foreseeable future in racially balanced public schools. Only a reordering of this environment involving economic and social policy on the broadest conceivable front might have an appreciable impact.

Id., 443 U.S. at 480, 99 S.Ct. at 2988.

The focus of the school desegregation cases has been upon the elimination of dual school systems. As Chief Justice Burger stated in Swann,

We are concerned in these cases with the elimination of the discrimination inherent in the dual school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds. The target of the cases from Brown I to the present was the dual school system. The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage.
It would not serve the important objection of Brown I to seek to use the school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other forms of discrimination.

402 U.S. at 22-23, 91 S.Ct. at 1279.

Conclusion

Briefly stated, this Court holds as follows:

1. The 1975 Order entered in Beckett is to be given full force and effect. It was signed four years after this Court ordered crosstown busing, and after this Court had overseen the operation of the school system for four years. The Order was entered only after due reflection and consideration by this Court. And it is clear, moreover, that the school system displays the various indicia of a unitary system.

2. As a result of the proper findings made in the 1975 Order, that the School Board has satisfied its affirmative duty to desegregate and that the system is unitary, the plaintiffs in this action bear the burden of proof. Plaintiffs must show that the School Board’s actions in adopting the Proposed Plan were taken with an intent to discriminate on the basis of race.

3. It is clear to this Court that plaintiffs have failed to sustain their burden. The School Board had two principal reasons for adopting the Proposed Plan — to try to meet the threat posed by white flight to the integration of the school system over the long term and to attempt to increase the level of parental involvement. The Court finds that there is a factual basis for the School Board’s concerns, that the solution proposed by the Board is a reasonable one and was a result of reasoned consideration, and further that the Board’s stated justifications for adopting the Proposed Plan were not pretextual. In addition, this Court finds that the Board’s procedures in adopting the Proposed Plan were not flawed in any manner which might indicate that the Board was acting with discriminatory purpose.

4. Plaintiffs have attempted to link the actions of the School Board with those of the Norfolk housing agencies for the purpose of establishing that the School Board acted improperly in designing and adopting the Proposed Plan. This Court concludes, for the reasons stated above, that plaintiffs’ argument on this point must also fail.

5. Plaintiffs’ motion to set aside the Order of February 14, 1975 in Beckett v. School Board of the City of Norfolk is DENIED.

ORDER

In accordance with a Memorandum Opinion this day filed, this Court finds

1. That the Pupil Assignment Plan adopted by the School Board of the City of Norfolk on February 2, 1983, is not unconstitutional;

2. That the prayer of plaintiffs for in-junctive relief is DENIED; and

3. Plaintiffs’ motion to set aside the Order of February 14, 1975 in Beckett v. School Board of the City of Norfolk is DENIED.

It is so ORDERED.