Blytheville School District No. 5 v. Harvell Respondents' Brief in Opposition to Petition for Writ of Certiorari

    IN THE UNITED STATES 
COURT OF APPEALS FOR 

THE FOURTH CIRCUIT

Nos. 99-2389, 99-2391 and 00-1098

TERRY BELK, et al.,
Plaintiffs-Appellants, 

and
WILLIAM CAPACCHIONE, MICHAEL P. GRANT, et al., 

Plaintiff-Intervenors-Appellees,
v.

THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al.,
Defendants-Appellants.

WILLIAM CAPACCHIONE, MICHAEL GRANT, et al., 
Plaintiff-Intervenors-Appellees, 

and
TERRY BELK, et al.,
Plaintiffs-Appellants,

v.
THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al.,

Defendants-Appellants.

Appeal From the United States District Court 
for the Western District of North Carolina

BRIEF IN FINAL FORM OF APPELLANTS 
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, ET AL.

Allen R. Snyder 
Maree Sneed 
John W. Borkowski 
HOGAN & HARTSON L.L.P. 
555 Thirteenth Street, N.W. 
Washington, DC 20004 
(202) 637-5741

Dated: May 19, 2000

James G. Middlebrooks 
Irving M. Brenner 
Amy Rickner Langdon 
SMITH HELMS MULLISS & 
MOORE, L.L.P,
201 N. Try on Street 
Charlotte, NC 28202 
(704)343-2051

Leslie Winner 
General Counsel 
Charlotte-Mecklenburg Board 
of Education 
Post Office Box 30035 
Charlotte, NC 28230-0035 
(704)343-6275

Counsel for Appellants 
Charlotte-Mecklenburg Board 
of Education, et al.



IN THE UNITED STATES 
COURT OF APPEALS FOR 

THE FOURTH CIRCUIT

Nos. 99-2389, 99-2391 and 00-1098

TERRY BELK, et aL, 
Plaintiffs-Appellants, 

and
WILLIAM CAPACCHIONE, MICHAEL P. GRANT, et al., 

Plaintiff-Intervenors-Appellees,

THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et aL,
Defendants-Appellants.

WILLIAM CAPACCHIONE, MICHAEL GRANT, et aL,
Plaintiff-Intervenors-Appellees,

and
TERRY BELK, et aL, 
Plaintiffs-Appellants,

THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et aL,
Defendants-Appellants.

Appeal From the United States District Court 
for the Western District of North Carolina

BRIEF IN FINAL FORM OF APPELLANTS 
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, ET AL.

v.

v.

Allen R. Snyder 
Maree Sneed 
John W. Borkowski 
HOGAN & HARTSON L.L.P. 
555 Thirteenth Street, N.W. 
Washington, DC 20004 
(202)637-5741

James G. Middlebrooks 
Irving M. Brenner 
Amy Rickner Langdon 
SMITH HELMS MULLISS & 
MOORE, L.L.P.
201 N. Tryon Street 
Charlotte, NC 28202 
(704)343-2051

Leslie Winner 
General Counsel 
Charlotte-Mecklenburg Board 
of Education 
Post Office Box 30035 
Charlotte, NC 28230-0035 
(704)343-6275

Dated: May 19, 2000 Counsel for Appellants 
Charlotte-Mecklenburg Board 
of Education, et al.



DISCLOSURE OF CORPORATE .AFFILIATIONS .AND OTHER 
ENTITIES.WITH A DIRECT FINANCIAL INTEREST IN' LITIGATION

Pursuant to FRAP 26.1 and Local Rule 26.1. the Charlotte-Mecklenburg Board of Education, 
.Arthur Griffin, and Eric Smith, who are appellants, make the following disclosure:

1. Is party a publicly held corporation or other publicly held entity9
( ) YES (X) " no

2. Does party have any parent corporations?
( ) YES (X) NO

If yes, identify all parent corporations, including grandparent and great-grandparent 
corporations.

3. Is 10% or more of party's stock owned by a publicly held corporation or other publicly 
held entity?

( ) YES (X) NO

If yes, identify all such owners:

4. Is there any other publicly held corporation or other publicly held entity that has a direct 
financial interest in the outcome of the litigation (Local Rule 26.1 (b))?

( ) YES (X) NO

If yes, identify entity and nature of interest:

5. Is party a trade association?
( ) YES (X) NO

If yes, identify all members of the association, their parent corporations, and any publicly 
held companies that own 10% or more of a party's stock:

February 22, 2000

Attorney for the Charlotte-Mecklenburg Board of 
Education, Arthur Griffin, and Eric Smith

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TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT................................................................................. i

TABLE OF AUTHORITIES..............................................................................................................iv

PRELIMINARY STATEMENT......................................................................................................... 1

JURISDICTIONAL STATEMENT...........................................................  3

STATEMENT OF THE ISSUES PRESENTED............................................................................... 3

STATEMENT OF THE CASE....................  4

1. Statement of Facts.................................................................................................................... 5

2. The Proceedings Below...........................................................................................................6

SUMMARY OF ARGUMENT......................................................................................................... 11

ARGUMENT.................................................................................................................................... ,.12

I. THE DISTRICT COURT COMMITTED NUMEROUS ERRORS
OF LAW AND MADE CLEARLY ERRONEOUS FACTUAL 
DETERMINATIONS IN CONCLUDING THAT THE SCHOOL 
DISTRICT IS UNITARY......... ............................................................................... 13

A. The Court Erred as a Matter of Law in Excluding Evidence 
of Practicable and Educationally Sound Measures 
Available to Comply with the Swann Orders and to
Remedy Vestiges of Segregation.................................................................15

B. The Court Erred in Failing to Recognize Vestiges of 
Segregation Created and Maintained by CMS’ Past Failure
to Comply Fully with the Swann Orders..................................................... 16

II. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN
AWARDING DAMAGES AND INJUNCTIVE RELIEF BASED 
ON THE SCHOOL DISTRICT’S GOOD FAITH EFFORTS TO 
COMPLY WITH VALID DESEGREGATION ORDERS 
THROUGH ITS OPERATION OF MAGNET SCHOOLS............ .....................18

A. The School District’s Operation of Magnet Schools Was a 
Lawful Means of Complying with Desegregation Court 
Orders..............................................................................................................18

- ii -



TABLE OF CONTENTS 
(continued)

Page

B. Damages are Not Available for Good Faith Efforts to
Comply with Court Orders.........................................................................  22

III. THE INJUNCTION ENTERED BY THE DISTRICT COURT 
EXCEEDS ITS EQUITABLE POWER AND IMPROPERLY 
LIMITS THE SCHOOL DISTRICT’S AUTHORITY OVER 
EDUCATIONAL POLICY......................................................................................24

A. The Injunction Constitutes an Impermissible Advisory
Opinion..........................................................................................................25

B. The Injunction Exceeds the Scope of the Violation Found......................27

C. The Injunction Is Overly Broad Because It Prohibits Any 
Future, Hypothetical Action that Considers Race, Even If It 
Is Narrowly-Tailored to Serve a Compelling Governmental
Interest........ ...................................................................................................28

1. The Decision Below Violates Controlling Precedent 
in Holding that Only Remedial Interests Can Ever
Be Compelling.................   28

2. The Court Ignored CMS’ Interest in Avoiding
Resegregation.......................  29

3. The Court Erroneously Held that Providing the
Educational Benefits of Diversity Could Never 
Constitute a Compelling Governmental Interest........................... 32

IV. THE DISTRICT COURT ABUSED ITS DISCRETION IN 
HARSHLY SANCTIONING THE SCHOOL DISTRICT 
DURING THE TRIAL FOR NOT DISCLOSING TRIAL 
WITNESSES IN A TIMELY MANNER, EVEN THOUGH CMS 
DISCLOSED SUCH WITNESSES IN GOOD FAITH PRIOR TO 
THE DEADLINE ESTABLISHED BY THE COURT’S
PRETRIAL ORDER....................................  34

V. APPELLEES ARE NOT ENTITLED TO ATTORNEYS’ FEES....................... 38

CONCLUSION................................................................................................................................... 41

CERTIFICATE OF COMPLIANCE................................................................................................ 42

CERTIFICATE OF SERVICE.......................................................................................................... 43

m -



TABLE OF AUTHORITIES

Page
CASES:

Allen v. Asheville City Bd. ofEduc., 434 F.2d 902 (4th Cir. 1970)..................................................19

Anderson v. Foundation for Advancement, Educ. & Employment o f Am. Indians, 155 F.3d
500 (4th Cir. 1998)..............................................................................................................13,35

Arthur v. Nyquist, 712 F.2d 809 (2d Cir. 1983), cert, denied, 466 U.S. 963 (1984)..................... 19

Ayers v. Fordice, 111 F.3d 1183 (5th Cir. 1997), cert, denied, 522 U.S. 1084 (1998) ...........14

B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. o f New York, Inc., 168 F.R.D. 161
(S.D.N.Y. 1996) ....................................  36

Bloodgood v. Garraghty, 783 F.2d 470 (4lil Cir. 1986) ...................................................................25

Board ofEduc. o f Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237 (1991)..................23, 24, 25

Bradley v. Milliken, 402 F. Supp. 1096 (E.D. Mich. 1975), a jf’d, 540 F.2d 229 (6*Cir. .
1976), a ff’d, 433 U.S. 267 (1977)......................................................................................... 21

Brandt v. Vulcan, Inc., 30 F.3d 752 (7th Cir. 1994) .........................................................................37

Brown v. Board ofEduc., 347 U.S. 483 (1954).............................................. ,.................................24

Brown v. Board o f Educ., 349 U.S. 294 (1955) ......... ...................................................................... 18

Bustop, Inc. v. Board o f Educ. o f City o f Los Angeles, 439 U.S. 1380 (1978) .......................... ...29

Capacchione v. Charlotte-Mecklenburg Sch., 57 F. Supp. 2d 228 (W.D.N.C. 1999)...........passim

Clark v. Board o f Educ. o f Little Rock Sch. Dist., 705 F.2d 265 (8th Cir. 1983) ........ ................. 19

Columbus Bd. ofEduc. v. Penick, 443 U.S. 449 (1979) ...................................... ...........................31

Cuthbertson v. Charlotte-Mecklenburg Bd. ofEduc., 535 F.2d 1249 (4th Cir.) (unpub.),
cert, denied, 429 U.S. 831 (1976).........................................................................................20

Davis v. East Baton Rouge Parish Sch. Bd., 721 F.2d 1425 (5th Cir. 1983)...................................21

Eisenberg v. Montgomery County Pub. Sch., 197 F.3d 123 (4th Cir.), petition fo r  cert.
filed, 68 U.S.L.W. 3433 (U.S. Dec. 23, 1999) (No. 99-1069).......................... 13, 27, 28-29

Farrar v. Hobby, 506 U.S. 103 (1992) ............................................................................................. 39

Freeman v. Pitts, 503 U.S. 467 (1992) ............................................................ ............. 14, 15, 16, 24

-iv-



TABLE OF AUTHORITIES 
(continued)

Page

Hayes v. North State Law Enforcement Officers Ass 'n, 10 F.3d 207 (4th Cir, 1993)....................27

Hewitt v. Helms, 482 U.S. 755 (1987).............................................................. .............................. ..38

Hunter v. Regents ofUniv. o f Cal., 190 F.3d 1061 (9th Cir. 1999), petition for rehearing
en banc [pending] ...................................................................................................................33

Jacobson v. Cincinnati Bd. ofEduc., 961 F.2d 100 (6th Cir.), cert, denied, 506 U.S. 830
(1992)........................................................................................................................................ 30

Kromnick v. School Dist. o f Philadelphia, 739 F.2d 894 (3d Cir. 1984), cert, denied, 469
U.S. 1107 (1985)...............................................................................................................  30

Leandro v. North Carolina, 488 S.E.2d 249 (N.C. 1997) .............................................................. 34

Liddell v. Missouri, 731 F.2d 1294 (8th Cir.), cert, denied, 469 U.S. 816 (1984) ........................ 21

Martin v. Charlotte-Mecklenburg Bd. ofEduc., 475 F. Supp. 1318 (W.D.N.C. 1979), affd  
on other grounds, 626 F.2d 1165 (4th Cir. 1980), cert, denied, 450 U.S. 1041 
(1981)............................................................................................................................. 6, 20, 29

McDaniel v. Barresi, 402 U.S. 39 (1971)........................................................................................ 29

Milliken v. Bradley, 418 U.S. 717 (1974)........................................................................................ 24

Milliken v. Bradley, 433 U.S. 267 (1977)................................................................................... 18, 20

Missouri v. Jenkins, 515 U.S. 70 (1995)..................................................................................... 13, 20

Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert, denied, 426 U.S. 935 (1976).......................... 21

Mt. Healthy City Sch. Dist. Bd. o f Ed. v. Doyle, 429 U.S. 274 (1977) ....................................39-40

Norfolk & W. Ry. v. Brotherhood ofR.R. Signalmen, 164 F.3d 847 (4th Cir. 1998)......................25

North Carolina State Bd. ofEduc. v. Swann, 402 U.S. 43 (1971).......................................... ........29

Offermann v. Nitkowski, 378 F.2d 22 (2d Cir. 1967)........................................................................ 30

Parents Ass ’n o f Andrew Jackson High Sch. v. Ambach, 738 F.2d 574 (2d Cir. 1984)......... 30, 33

Regents ofUniv. o f Cal. v. Bakke, 438 U.S. 265 (1978)...................................................................32

v



TABLE OF AUTHORITIES 
(continued)

Page

Riddick v. School Bd. o f City o f Norfolk, 784 F.2d 521 (4th Cir.), cert, denied, 479 U.S.
938 (1986)...................................... .............................................................................19,30,31

Simmons v. Poe, 47 F.3d 1370 (4th Cir. 1995) ......................................................................... ........25

Stanley v. Darlington County Sch. Dist., 915 F. Supp. 764 (D.S.C. 1996) .............................19, 21

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 300 F. Supp. 1358 (W.D.N.C. 1969)...................5

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 306 F. Supp. 1291 (W.D.N.C. 1969)..............4, 5

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 311 F. Supp. 265 (W.D.N.C.), vacated,
431 F.2d 138 (4th Cir. 1970) ............................................................................. 4, 5, 6, 20, 22

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 402 U.S. 1 (1971)....................................18, 29, 32

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 379 F. Supp. 1102 (W.D.N.C. 1974).............5, 22

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 67 F.R.D. 648 (W.D.N.C. 1975) ....................... 20

Texas v. Lesage, 120 S. Ct. 467 (1999) ............................................................................... 12, 39, 40

Tuttle v. Arlington Cty. Sch. Bd., 195 F.3d 698 (4th Cir. 1999), petition fo r cert, filed, 68
U.S.L.W. 3497 (U.S. Jan. 31, 2000) (No. 99-1274) ...............................................27, 28, 29

United States v. City o f Yonkers, 197 F.3d 41 (2d Cir. 1999).......................................................... 13

United States v. Fordice, 505 U.S. 717 (1992)...................................................................... .....14, 16

United States v. Yonkers Bd. ofEduc., 837 F.2d 1181 (2d Cir. 1987), cert, denied, 486
U.S. 1055 (1988)..................................................................................................................... 21

Vaughns v. Board ofEduc. o f Prince George's County, 742 F. Supp. 1275 (D. Md. 1990), 
affd  sub nom Board o f Educ. o f Prince George's County v Stone, 977 F.2d 574 
(4th Cir. 1992), cert, denied, 506 U.S. 1051 (1993)...... ................................................ 18, 19

Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982).................................................... 29, 32

Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998)...................................................................32-33

Williams v. United States Merit Sys. Protection Bd., 15 F.3d 46 (4th Cir. 1994)......................... 13

vi



TABLE OF AUTHORITIES 
(continued)

Page

Wilson v. Volkswagen o f Am., Inc., 561 F.2d 494 (4th Cir. 1997), cert, denied, 434 U.S.
1020(1978).............................................................................................................................. 35

Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d 14 (4th Cir. 1962) ..................................................35

Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996), cert, denied, 519 U.S. 1111 (1997):...................33

Wolfe v. City o f Pittsburgh, 140 F.3d 236 (3d Cir. 1998)................................................................ 23

Wygant v. Jackson Bd. ofEduc., 476 U.S. 267 (1986) ............................................................. 23, 32

Zaslawsky v. Board ofEduc. o f Los Angeles City Unified Sch. Dist., 610 F.2d 661 (9th
Cir. 1979)................................................. ............................................................................... .30

CONSTITUTION:

U.S. Const, amend XIV .....................................................................................................2, 25, 31, 39

STATUTES:

20 U.S.C. § 7202(1)...............     30-31

28U.S.C. § 1291 etseq .......................................................................................................................... 3

28 U.S.C. § 1331..............   3

28 U.S.C. § 1343.....................................................................................................................................3

42 U.S.C. § 1983.............     3,39

42 U.S.C. § 1988............................................................................................................................ 38,40

42 U.S.C. § 2000d..........................................................................  39

vii



TABLE OF AUTHORITIES 
(continued)

Page

RULES:

Fed. R. Civ. P. 26....................................................................................................................35-36, 37

Fed. R. Civ. P. 37....................................................................................................................13, 35, 37

Fed. R. Evid. 103................................................................................................................................ 36

REGULATIONS:

34C.F.R. § 100.3(b)(6)(ii).................. ................................................................................................31

34C.F.R. § 280.1(a).............................................. ............ ....................................................... .........31

64 Fed. Reg. 2110 (Jan. 12, 1999) ...... ..................................................................................... ........31

viii



IN THE UNITED STATES 
COURT OF APPEALS FOR 

THE FOURTH CIRCUIT

Nos. 99-2389, 99-2391 and 00-1098

TERRY BELK, et al,
Plaintiffs-Appellants,

and
WILLIAM CAPACCHIONE, MICHAEL P. GRANT, et a l,

Plain tiff-Intervenors-Appellees, 
v.

THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et a l,
Defendant-Appellants.

WILLIAM CAPACCHIONE, MICHAEL GRANT, et a l,
Plain tiff-Intervenors-Appellees, 

and
TERRY BELK, et a l,
Plaintiff-Appellants,

v.
THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et a l,

Defendant-Appellants.

Appeal From the United States District Court 
for the Western District of North Carolina

BRIEF IN FINAL FORM OF APPELLANTS 
CHARLOTTE MECKLENBURG 

BOARD OF EDUCATION, ET AL.

PRELIMINARY STATEMENT

In this appeal, the Charlotte-Mecklenburg Board of Education, Superintendent 

Eric Smith, and Board Chairman Arthur Griffin (hereinafter the “School District” or “CMS”) 

seek to defend two bedrock principles of constitutional jurisprudence that apply to public

- 1 -



education. First, CMS asks this Court to reaffirm the basic proposition that under the Fourteenth 

Amendment a de jure segregated school system cannot be declared unitary' so long as vestiges of 

segregation remain that practicably can be eliminated. Second, the School District asks this 

Court to uphold the vital tradition of local control of public education. Only if this Court 

disregards both of these fundamental principles can the decision below be upheld.

These axioms are intimately intertwined in this case. CMS seeks to finish the job 

of creating a school system that provides equal educational opportunities regardless of race. The 

School District maintains that it is not yet unitary for the simple reason that it has not yet 

succeeded in creating an educational system that consistently provides equal educational 

opportunities to African-American and white students; indeed, the record below makes clear that 

CMS schools serving predominantly African-American student populations remain inferior to 

schools serving predominantly white enrollments by almost every measure. Because of these 

remaining vestiges, CMS is constitutionally required to take race into account to maintain 

desegregated schools until it creates a system that provides equal educational opportunities 

regardless of race.

Refusing even to consider the practicable remedial measures proposed by the 

School District, Judge Robert D. Potter of the United States District Court for the Western 

District of North Carolina pronounced the problems unsolvable, found CMS to be unitary, and 

prematurely dismissed the Swann case. The court erred not only in ignoring the remaining 

vestiges of segregation in CMS, but also in awarding damages based on CMS’ good faith efforts 

to comply with the desegregation court orders, while they were still in effect, using the widely- 

recognized desegregation tool of magnet schools. Judge Potter also overreached in issuing an 

injunction that extends far beyond the alleged constitutional violation in the magnet school

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admissions process and prohibits any consideration of race in the future no matter how narrowly 

tailored. This injunction threatens to entrench and exacerbate the remaining racial inequities in 

CMS and groundlessly usurps local control. The proper course where a school system becomes 

unitary is to return full authority over educational policy to the elected school board.

JURISDICTIONAL STATEMENT

The district court had jurisdiction, pursuant to 28 U.S.C. §§ 1331 and 1343, over 

the claims arising under 42 U.S.C. § 1983 of both appellants, Terry Belk, Dwayne Collins and 

the class of African-American school children that they represent (the “Swann Appellants”), and 

appellees, William Capacchione and Michael Grant, et al. (“Appellees”). After the court entered 

a permanent injunction on September 9, 1999, CMS filed a notice of appeal on October 8, 1999, 

and the Swann Appellants filed a separate notice of appeal on October 7, 1999. This Court has 

jurisdiction over these appeals pursuant to 28 U.S.C. § 1291 et seq.

STATEMENT OF THE ISSUES PRESENTED

I. Whether the district court committed errors of law and fact in determining that 

CMS had attained unitary status, including by refusing to consider evidence of practicable 

measures available to comply with the Swann orders and to remedy vestiges of segregation?

II. Whether the court erred in awarding damages and granting injunctive relief based 

on CMS’ operation of its magnet program in a good faith effort to comply with valid 

desegregation orders?

III. Whether the court erred in issuing an injunction that prohibits all hypothetical, 

future narrowly-tailored student assignment policies and other educational measures that 

consider race, where no actual or proposed post-unitary policy was even before the court?

-3-



IV. Whether the court erred by granting extensive, unilateral mid-trial discovery and 

an award of fees as a sanction against the School District for an alleged discovery violation 

arising out of CMS’ good faith reliance on the court’s pretrial order?

V. Whether the court erred in finding Appellees to be prevailing parties and 

awarding their attorneys’ fees, expert fees and costs, including $716,123.49 to Capacchione 

whose claims for declaratory and injunctive relief had been dismissed with prejudice months 

before trial and who ultimately recovered only nominal damages?

STATEMENT OF THE CASE

At issue in this appeal is the response of Judge Potter to race-conscious measures 

that the School District took in a good faith effort to fulfill its court-ordered duty to eliminate the 

vestiges of de jure segregation. The outstanding orders in Swann v. Charlotte-Mecklenburg 

Board o f Education included explicit requirements for CMS to assign students and faculty so that 

the black-to-white ratio of each school approximated the system-wide ratio. See, e.g., 306 

F. Supp. 1291, 1312 (W.D.N.C. 1969); 311 F. Supp. 265, 267-69 (W.D.N.C. 1970). In 1997, 

those orders indisputably remained in force when Appellees sued, contending — notwithstanding 

CMS’ contrary obligations under the desegregation orders — that the School District was 

prohibited from considering race in any facet of its operations.

Judge Potter accepted this remarkable contention, declaring CMS unitary, 

dissolving the Swann orders, finding that the School District’s implementation of magnet schools 

had been unconstitutional, despite the prior court orders, and broadly enjoining CMS from 

“assigning children to schools or allocating educational opportunities and benefits through race- 

based lotteries, preferences, set-asides, or other means that deny students an equal footing based 

on race.” 57 F. Supp. 2d 228, 294. This injunction rests on a number of erroneous legal

-4-



conclusions and factual determinations and clearly exceeds well-established limits on the 

equitable powers of the federal courts.

1. Statement of Facts

For three decades, CMS operated under explicit court orders to desegregate. In 

1969, the Swann court found, among other things that “the manner in which the Board [had] 

located schools and operated the pupil assignment system . . . accentuated patterns of racial 

segregation in housing [and] school attendance,” 300 F. Supp. at 1372, and that such segregation 

had “producefd] inferior education” for African-American students, with the “inevitable result[]” 

being an achievement gap between black and white students. 306 F. Supp. at 1296-97.

To address these conditions, the extensive orders in Swann 1/ required inter alia 

“[t]hat no school be operated with an all-black or predominantly black student body” and “[t]hat 

pupils of all grades be assigned in such a way that as nearly as practicable the various schools at 

various grade levels have about the same proportion of black and white students.” 311 F. Supp. 

at 268. In addition, the court ordered CMS to implement (1) measures to ensure that 

transportation burdens were shared equally among black and white students; (2) a school 

location, construction and closing policy that would not “be predicated on population growth 

trends alone,” but would site schools “where they can readily serve both races”; and 

(3) assignment procedures for “optional” or magnet schools that would racially balance those 

schools without significantly resegregating other schools. 379 F. Supp. at 1103-08. The court

1/ The School District adopts the more detailed description of the numerous orders and the 
complex facts in this case between 1965 and 1997 as summarized in the brief of The Swann 
Appellants and incorporates it by reference. See Swann Brief at 3-18. See also CMS Post-Trial 
Brief (filed July 20, 1999) (“Post-Trial B rief’) (Joint Appendix (“J.A.”) at 16776); CMS 
Proposed Findings (filed July 20, 1999) (“Proposed Findings”) (J.A. at 505). Both the Post-Trial 
Brief and the Proposed Findings contain extensive citations to the record, which generally are 
not repeated herein.

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likewise directed CMS to assign faculty both on a desegregated basis and also so that the 

competence and experience of teachers in formerly or recently black schools will not be inferior 

to those in formerly or recently white schools in the system.” 311 F. Supp. at 268.

In 1979, the same district court judge found that, while CMS had maintained 

racial balance in most of its schools, it was not unitary because it had failed to comply fully with 

many of these orders. See Martin v. Charlotte-Mecklenburg Bd, o f Educ., 475 F. Supp. 1318 

(W.D.N.C. 1979), a ff’d on other grounds, 626 F.2d 1165 (4th Cir. 1980), cert, denied, 450 U.S. 

1041 (1981).

Before the most recent phase of this case began in 1997, the current Board of 

Education and Superintendent already had found many persistent racial inequities in CMS, 

including stark differences in the overall quality of racially identifiable black and other schools. 

See, e.g., Tr. 6/8:7-57 (Smith) (J.A. at 7108-58); Tr. 6/18:105-80 (Griffin) (J.A. at 8969-9043). 2J 

When the Capacchione case was filed, the School District did a more extensive self-evaluation 

and found that these inequities were in large part the result of its past failure to comply fully with 

both the Swann and Martin orders. But, CMS also recognized that practicable remedies were 

available to meet the requirements of those outstanding orders, and the Board and Superintendent 

have been working diligently to comply and to remedy the remaining vestiges of segregation.

2. The Proceedings Below

The most recent phase of this ongoing litigation arises out of a lawsuit brought by 

William Capacchione in 1997, raising claims quite similar to those rejected in Martin. 

Capacchione alleged that CMS' magnet school admissions practices were unconstitutional 

because they took race into account in their effort to promote desegregation. The African-

2J Transcripts of the hearing are cited by date and page (“T r.__:__”).

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American plaintiffs in the Swann case intervened, arguing that such consideration of race was 

not merely allowed, but in fact was mandated by existing court orders.

The district court then restored Swann to its active docket, consolidated it with 

Capacchione, and directed the parties to address the question of whether CMS had become 

unitary. See March 6, 1998 Order at 3-4 (J.A. at 89-90). As noted, CMS concluded that it 

historically had not fully complied with the Swann and Martin orders and that practicable 

measures were available to remedy the resulting vestiges of segregation. See Defendants’ Trial 

Brief at 14-29 (filed April 12, 1999) (“Pre-Trial Brief’). CMS, therefore, began to develop a 

new plan to achieve greater compliance and create a more fully desegregated school system. Id. 

at Attachment 1; DX 1 (proffered) (J.A. at 11028). 3/

The district court subsequently allowed the intervention of a separate group of 

white parents, Michael Grant, et al. — who also asserted that CMS was unitary and that race 

should not be a factor in administering any aspect o f the school system. See May 20, 1998 Order 

at 3, 11 (J.A. at 159, 167). Both Grant, et al., and Capacchione (collectively “Appellees”) sought 

damages as well as declaratory and injunctive relief.

Capacchione and his family moved out of state in August 1998, and his claims for 

declaratory and injunctive relief were dismissed with prejudice. See December 22, 1998 Order at 

7-8 (J.A. at 227-28). Judge Potter nevertheless refused to dismiss Capacchione’s claim for 

damages — even though it was uncontested that his daughter’s magnet lottery number was so 

high that she would not have been admitted regardless of race. Defendants’ Motion for

3j Exhibits are cited as follows: Plaintiff-intervenors’ (“PIX”), defendants’ (“DX”), and 
Swann plaintiffs’ (“SPX”).

-7-



Summary Judgment on All Claims of Plaintiff William Capacchione at Affidavit of Nick Kleto, 

V  (J.A. at 211). See also Tr. 6/14:66-71 (Purser) (J.A. at 8044-49).

Appellees presented evidence that, although an increasing number of schools had 

become racially imbalanced during the early 1990s, many CMS schools had been racially 

balanced within a reasonable range of the districtwide average for several years. See, e.g., 

PIX 137 at 4, Charts 1-2 (J.A. at 16170, 16191-92); Tr. 4/29:157-59, 161-62 (Armor) (J.A. at 

3568-70, 3572-73). They presented little proof of compliance with any of the court’s other 

directives in Swann or Martin. In addition, Appellees failed to show any tangible harm to their 

children resulting from allegedly unconstitutional action by CMS. 57 F. Supp. 2d at 240.

Both CMS and the Swann plaintiffs moved for partial judgment at the close of 

Appellees’ case in chief. Defendants’ Motion for Partial Judgment as a Matter of Law (May 11, 

1999) (J.A. at 307); Plaintiffs’ Motion for Directed Verdict (May 11, 1999) (J.A. at 347). The 

court granted CMS' motion for partial judgment as to all of Appellees’ claims for actual damages 

on the ground that they submitted insufficient proof of actual damages at trial but deferred ruling 

on the other issues raised in the motions. See May 28, 1999 Order at 2 (J.A. at 374). At this 

point, Capacchione’s only remaining claim was for nominal damages.

The district court also allowed Appellees, near the end of their case, to take the 

depositions of fourteen fact witnesses beyond the fourteen such depositions they had already 

taken. Therefore, despite the fact that the district court’s Pretrial Order and Case Management 

Plan (April 10, 1998) (“Pretrial Order”) (J.A. at 146) — which had refused CMS’ request to 

recognize the consolidated cases as a complex case, see Defendants’ Proposed Discovery 

Schedule at 2 (March 31, 1998) — limited the number of non-expert depositions to six, see Civil 

Justice Expense and Delay Reduction Plan, § 11(A)(2) (W.D.N.C. 1994), Appellees were allowed

- 8-



to take thirty fact discovery depositions, half of them in the middle of trial. Although the School 

District had requested reciprocal discovery of Appellees’ undeposed trial witnesses, Judge Potter 

denied this request. Tr. 4/23:235-39 (J.A. at 2670-75). Instead, the district court recessed the 

hearing for eight days just before the close of Appellees’ case solely for them to take additional 

depositions at CMS’ expense. The CMS fact witnesses whose schedules did not allow for a 

deposition on this expedited schedule were not allowed to testify. See Tr. 6/17:92-93 (J.A. at 

8723-24); Tr. 6/18:96-99 (J.A. at 8959-62). The court’s rationale for allowing this extensive, 

mid-trial discovery and excluding this relevant testimony was to sanction the School District for 

having failed to interpret its September 16, 1998 Order to require the disclosure of trial witnesses 

prior to the deadline established in its Pretrial Order. See infra, Section IV.

When the trial resumed, the Swann Appellants presented substantial proof that 

CMS was not yet unitary. Lastly, the School District presented proof that the two rationales 

relied upon by the district court in Martin were still valid.

First, despite progress in many areas, as the court earlier had found in Martin, 

CMS had not yet fully complied with the Swann orders or eliminated the vestiges of segregation 

to the extent practicable. Therefore, it remained subject to a court-mandated duty to desegregate. 

Under these circumstances, as Appellees’ experts conceded, see, e.g., Tr. 4/29:23, 215-16 

(Armor) (J.A. at 3434, 3626-27), race-conscious student assignment measures, including the 

universally accepted desegregation technique of magnet schools, were permissible means of 

fulfilling its affirmative obligations.

Second, as this Court earlier held in Martin, even if CMS were unitary, its 

authority over educational policy would include the power to implement narrowly-tailored, race­

conscious student assignment measures to prevent resegregation or to promote the educational

-9-



benefits of diversity. Therefore, the broad injunction sought by Appellees -  prohibiting every 

future, hypothetical race-conscious action -  would be improper. On the other hand, CMS did 

not propose to continue its magnet school admissions practices or any other particular race- 

conscious student assignment policy after it achieved unitary status. Tr. 6/18:235-236 (Griffin) 

(J.A. at 9098-99). See also DX 1 at 27 (J.A. at 11055).

To demonstrate that practicable and educationally sound measures were available 

to comply more fully with the Swann and Martin orders and to remedy the remaining vestiges of 

segregation, CMS sought to introduce its proposed remedial plan, which had been completed and 

adopted by the Board. DX 1 (J.A. at 11028). Indeed, CMS had presented the plan to the district 

court before the hearing began. See Pre-Trial Brief at Attachment 1. Judge Potter, however, 

concluded that the plan “is not relevant” and refused to hear any evidence about it. April 14, 

1999 Order at 4.

In its decision on the merits, the court below ignored the persistent racial 

inequities that the record had revealed. Instead, the court first found that CMS was unitary and 

dismissed the Swann case. Then, applying strict scrutiny to the School District’s prior operation 

of magnet schools as part of its efforts to comply with the Swann orders while they were still in 

effect, the court found that CMS’ magnet admissions procedures were not “narrowly tailored” to 

the goal of remedying discrimination: 57 F. Supp. 2d at 287-91. Based on this conclusion, the 

court awarded nominal damages ($1.00 in total) to Appellees. Id. at 294. Although Judge Potter 

neither found any other facet of CMS’ student assignment plan to be unconstitutional nor 

concluded that it was threatening to use race in an unconstitutional manner in the future, he 

nevertheless entered a sweeping injunction prohibiting CMS from “assigning children to schools 

or allocating educational opportunities and benefits through race-based lotteries, preferences, set-

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asides, or other means that deny students an equal footing based on race,” Id. Finally, the court 

found the seven white Appellees to be prevailing parties, id. at 292-93, and subsequently 

awarded their attorneys’ fees and costs in the amount of $1,347,496. December 13, 1999 Order 

(J.A. at 1291).

The School District and the class of African-American children, approximately 

40,000 of 100,000 CMS students in 1998-99, see DX 3 (J.A. at 11066), separately filed these 

consolidated appeals.

SUMMARY OF ARGUMENT

The court below committed numerous errors of law and made several clearly 

erroneous factual determinations in concluding that CMS was unitary. Foremost among these 

was its legal error in considering only previously ordered methods in assessing whether it was 

practicable to remedy vestiges of segregation in CMS. The court also erred as a matter of law in 

refusing to acknowledge that CMS’ historic failure to comply fully with the Swann and Martin 

orders makes current racial inequities traceable to the dual school system.

In addition to its errors in analyzing unitary status, the district court also erred as a 

matter of law in finding CMS’ magnet school practices unconstitutional and awarding damages 

based on this purported violation. The court plainly erred in applying strict scrutiny to the 

School District’s good faith efforts to comply with desegregation court orders while those orders 

were still in effect. The magnet procedures used by CMS were well within its authority under 

the Swann orders. Moreover, even if they had not been, the court erred in awarding damages 

because the School District was acting in good faith.

Judge Potter also overreached in issuing a sweeping injunction that purports to 

prohibit any future race-conscious actions by the School District. Even if CMS’ magnet

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practices were unconstitutional -- which they were not -- under this Court’s precedents the 

district court, at most, should have enjoined those particular practices. However, no injunction at 

all was proper here: First, because there was no evidence before the court that CMS intended to 

continue its prior magnet practices or otherwise to assign students based on race after it was 

declared unitary, the injunction is an impermissible advisory opinion. Second, the district court 

incorrectly held that remedying past discrimination is the only possible compelling governmental 

interest that can justify narrowly-tailored, race-conscious actions.

The court also abused its discretion in harshly sanctioning the School District for 

not disclosing witnesses in a timely manner, even though CMS met the deadline in the court’s 

own Pretrial Order.

Finally, for all these reasons, the court erred in finding Appellees to be prevailing 

parties and awarding them attorneys’ fees, expert fees, and costs. Moreover, even if some 

Appellees prevail on some claims, Capacchione should not. The district court properly 

dismissed all but one of his claims. That claim for nominal damages should have been dismissed 

as well because uncontested evidence showed that Capacchione’s daughter would not have been 

admitted to the magnet school of her choice even if race had not been considered. See Texas v. 

Lesage, 120 S. Ct. 467 (1999).

Therefore, the injunction should be vacated and the decision below reversed.

ARGUMENT

Standard of Review

Because the district court applied incorrect legal standards in assessing CMS’ 

operation of magnet schools, in purporting to prohibit all possible future narrowly-tailored, race­

conscious actions, and in awarding nominal damages, the Court’s review of these issues is de

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novo. See Williams v. United States Merit Sys. Protection Bd., 15 F,3d 46, 48 (4th Cir. 1994) 

(quoting Virginia Carolina Tools, Inc. v. International Tool Supply, Inc., 984 F.2d 113, 116 (4lh 

Cir. 1993)). See also Eisenberg v. Montgomery County Pub. Sch., 197 F.3d 123 (4th Cir.), 

petition for cert, filed, 68 U.S.L.W. 3433 (U.S. Dec. 23, 1999) (No. 99-1069). The district 

court’s ruling with respect to sanctions under Fed. R. Civ. P. 37 is reviewed for abuse of

discretion. See Anderson v. Foundation for Advancement, Educ. & Employment o f Am. Indians, 

155 F.3d 500, 504 (4th Cir. 1998). Finally, the Swann Appellants accurately describe the 

standard of review with respect to the lower court’s unitary status ruling. See Swann Brief at 18- 

19.

I. THE DISTRICT COURT COMMITTED NUMEROUS ERRORS OF LAW AND 
MADE CLEARLY ERRONEOUS FACTUAL DETERMINATIONS IN 
CONCLUDING THAT THE SCHOOL DISTRICT IS UNITARY

Through a combination of legal errors and clearly erroneous factual findings, 

Judge Potter mistakenly concluded that CMS already was unitary. Because the School District 

generally agrees with the arguments on unitary status set forth by the Swann Appellants, see 

Swann Brief at 19-48, it does not reiterate them here, but rather elaborates on only a few points.

First, it is remarkable, but not suspect, see 57 F. Supp. 2d at 232, that the School 

District acknowledges that it is not yet unitary. CMS does not receive any financial support as a 

result of being under court order, cf. Missouri v. Jenkins, 515 U.S. 70, 80 (1995) (“ Jenkins / / /”); 

United States v. City o f  Yonkers, 197 F.3d 41, 45 (2d Cir. 1999), and one might assume 

(correctly) that -  all things being equal -  the School District would prefer not to be under court 

order. The Superintendent and the Board here, however, painfully faced the realities that all 

things were not yet equal in CMS, see, e.g., Tr. 6/8:7-53 (Smith) (J.A. at 7108-54); 

Tr. 6/18:105-80, 208-10 (Griffin) (J.A. at 8969-9043, 9071-73); that historically the School

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District had not complied fully with many of the court’s orders, see Post-Trial Brief at 11-74 

(J.A. at 16790-853); and that there is more CMS practicably can do to right the wrongs of the 

past. Id. at 31, 39, 49, 55, and 69 (J.A. at 16810, 16818, 16828, 16834, and 16848); DX 1 (J.A. 

at 11028).

The School District does not, and need not, claim, however, that it intentionally 

has discriminated since the initial Swann orders. The Supreme Court has authorized district 

courts to dismiss school desegregation cases only where there has been “full compliance with the 

court’s decree,” Freeman v. Pitts, 503 U.S. 467, 492 (1992) (quoting Board o f Educ. o f 

Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, 249-50 (1991)), and “the vestiges of past 

discrimination have been eliminated to the extent practicable.” Id. Vestiges of segregation are 

those conditions that are traceable to the prior de jure school system and that continue to have 

discriminatory effects. United States v. Fordice, 505 U.S. 717, 728-29 (1992). The Supreme 

Court in Fordice made clear that such practices need not have been adopted with “discriminatory 

purpose,” id. at 740-41, but need only be “rooted” in or “traceable” to the dual system. Id. at 

734, 743. On remand, the Fifth Circuit recognized that Fordice requires remediation of any 

current condition or practice with discriminatory effects that is “traceable” to the prior de jure 

period, either directly (because it has continued since that period) or indirectly (because it “flows 

from” or operates “in much the same way” as a prior segregative practice). Ayers v. Fordice, 

111 F.3d 1183, 1207-08 (5th Cir. 1997), cert, denied, 522 U.S. 1084 (1998). Here the district 

court erred in failing to recognize such persistent, but unintended, vestiges.

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A. The Court Erred as a M atter of Law in Excluding Evidence of 
Practicable and Educationally Sound Measures Available to 
Comply with the Swann Orders and to Remedy Vestiges of 
Segregation

Judge Potter simply presumed that vestiges of segregation no longer existed in 

CMS when he ruled -- even before trial — that the School District’s evidence that practicable 

measures could be implemented to alleviate persistent racial inequities in CMS was “not 

relevant.” April 14, 1999 Order at 4. Later, he flatly stated that he “disagree[d]” that it was 

necessary “to inquire into whether there are other practical means available to achieve” greater 

compliance with the Swann orders or more desegregation. 57 F. Supp. 2d at 256. But the 

Supreme Court has made clear that in assessing unitary status a district court must determine, 

among other things, whether “the vestiges of past discrimination [have] been eliminated to the 

extent practicable.” Freeman, 503 U.S. at 492 (emphasis added) (citation omitted).

The evidence that CMS had not fully complied with the Swann and Martin orders 

in ways that adversely affect African-American students was undisputed at trial. See, e.g., 

Swann Brief at 26-31; Post-Trial Brief at 45-49, 54-55, and 64-69 (J.A. at 16824-28, 16833-34, 

and 16843-48). What the School District’s remedial plan shows is that this non-compliance was 

not the result of practical limitations: CMS’ plan identifies reasonable alternatives to its 20-year 

practice of building all of its new schools in predominantly white areas, provides a sound method 

of equalizing the burden of transportation that for two decades had been disproportionately borne 

by African-American students, and identifies administrative and educational reforms that would 

close the gap in the quality of educational experience offered to white and African-American 

students. See DX 1 (J.A. at 11028).

But Judge Potter did not want even to hear any evidence that more could be done. 

Instead, before trial and repeatedly thereafter, he ruled that he would hear testimony only about

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desegregation measures already implemented in CMS. See, e.g., April 14, 1999 Order at 4-5; 

Tr. 4/28:52-53 (J.A. at 3199-200); 6/8:45-46 (J.A. at 7146-47); 6/21:10 (J.A. at 9109-10). This 

refusal to consider other alternatives erroneously assumed that vestiges had been remedied to the 

extent practicable rather than fairly assessing whether such progress had been achieved.

By limiting its analysis to the potential effectiveness of previously implemented 

desegregation methods, see, e.g., 57 F. Supp. 2d at 256, the district court erred as a matter of law 

and logic. By definition, if racial disparities exist in a school system, its current methods have 

not succeeded in remedying them. But, that shows nothing about whether other reasonable 

approaches could be effective. Nowhere has the Supreme Court or this Court held that a school 

system’s affirmative duty to eliminate the vestiges of past segregation is limited to use of those 

methods already in place. C f Freeman, 503 U.S. at 480 (approving inquiry by district court 

about other possible desegregation measures). Because there are educationally sound and 

practical means of addressing discriminatory conditions traceable to the de jure segregation, 

CMS is not yet unitary. Fordice, 505 U.S. at 728-29.

B. The Court Erred in Failing to Recognize Vestiges of 
Segregation Created and Maintained by CMS’ Past Failure to 
Comply Fully with the Swann Orders

Another of the district court’s most significant legal errors is its refusal to 

acknowledge that the failure to comply fully with ongoing court orders can create a vestige 

“traceable” to the dual school system. For example, with respect to facilities, even if the court 

had concluded in 1969 that CMS was unitary in that area -  which it did not, Swann Brief at 28- 

30 -  the current disparities in facilities are still vestiges of segregation under Fordice: They 

adversely affect African-American students, and they are traceable to the dual school system 

because they were caused in substantial part by CMS’ failure to comply with the court’s orders 

regarding site selection. Over the years, various CMS Boards of Education indisputably violated

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the orders in Swann by constructing virtually all (25 of 27) new schools in predominantly white 

areas. DX 266 (J.A. at 15415); Proposed Findings at *HJ 52-60 (J.A. at 522-23). This practice 

unquestionably resulted in disparities in the quality of school facilities serving primarily white 

and African-American students respectively: The schools that serve predominantly African- 

American student populations have older and less well-equipped facilities, while newer and/or 

better-equipped facilities are located in mostly white areas and serve mostly white students. See 

Post-Trial Brief at 46-48 (J.A. at 16825-27). This is a vestige of segregation that CMS 

practicably can cure.

Likewise, the district court also erred in ignoring the numerous ways in which 

CMS’ historic failure to comply fully with explicit court orders clearly contributed to the reduced 

educational opportunities and outcomes for African-American students. Id. at 64-69 (J.A. at 

16843-48). Such past CMS practices have made racially identifiable black schools demonstrably 

worse than others in several ways. In addition to the facilities disparities discussed above, the 

educational resources provided at racially identifiable black schools — including equipment and 

specialized faculty and program offerings -- are inferior, due at least in part to new construction 

decisions, to CMS’ past practice of matching PTA funding, and to the priority given magnets 

over non-magnet schools. Id. at 44-45, 48-49 (J.A. at 16823-24, 16827-28). The faculties at 

racially identifiable black schools also have less experience and fewer advanced degrees than the 

faculties of other schools because of decentralized teacher assignment practices that did not 

comply with the Swann orders. Id. at 53-54 (J.A. at 16832-33).

Because these and other disparities overwhelmingly established by the record 

below are traceable to the dual school system and subject to practicable remedies, the district 

court’s decision on unitary status should be reversed.

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II. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN AWARDING 
DAMAGES AND INJUNCTIVE RELIEF BASED ON THE SCHOOL 
DISTRICT'S GOOD FAITH EFFORTS TO COMPLY WITH VALID 
DESEGREGATION ORDERS THROUGH ITS OPERATION OF MAGNET 
SCHOOLS

Even if CMS were now unitary — which it plainly is not — Judge Potter 

nevertheless erred in concluding that the School District’s magnet plan, as it was implemented 

while CMS was under court order, “went beyond constitutionally permitted bounds because it 

was not narrowly tailored and was not within the guidelines of the desegregation plan” and 

awarding damages and injunctive relief on that basis. 57 F. Supp. 2d at 291.

A. The School District’s Operation of Magnet Schools Was a
Lawful Means of Complying with Desegregation Court Orders

Judge Potter ignored longstanding, controlling precedent in holding that strict 

scrutiny applies to any good faith effort to comply with a desegregation order if that effort is 

race-conscious. Such desegregation measures are subject not to a “narrow tailoring” test, but 

rather to the standard that “the nature of the desegregation remedy is to be determined by the 

nature and scope of the constitutional violation.” Milliken v. Bradley, 433 U.S. 267, 280 (1977) 

(“Milliken IF). Early on, the Supreme Court held that “[sjchool authorities have the primary 

responsibility for elucidating, assessing and solving” administrative and educational problems to 

achieve desegregation. Brown v. Board o f Educ., 349 U.S. 294, 299 (1955) (Brown II). The 

corollary principle, Brown II found, is that reviewing courts must determine “whether the action 

of school authorities constitutes good faith implementation of the governing constitutional 

principles.” Id. (emphasis added). See also Swann, 402 U.S. 1, 12 (1971).

Indeed, this Court has specifically rejected the notion that strict scrutiny should 

apply in assessing school board actions undertaken to comply with desegregation court orders. 

Vaughns v. Board o f Educ. o f Prince George’s County, 742 F. Supp. 1275, 1295-97 (D. Md.

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1990), a ff’d sub nom. Board o f Educ. o f Prince George's County v. Stone, 977 F.2d 574 (4th Cir. 

1992), cert, denied, 506 U.S. 1051 (1993). 4J Where a school district has adopted race-conscious 

means “to fulfill its affirmative duty to eradicate the vestiges of discrimination, pursuant to 

orders of this Court, the Board’s choice of means to achieve that end is entitled to be accorded 

substantial deference.” Id. at 1295. Accordingly, a race-conscious policy was upheld where it 

was found to be largely “reasonable” and “a valid exercise of the Board’s affirmative duty to 

eradicate the vestiges of unconstitutional segregation.” Id. The court held the policy to be 

constitutional even though it was not detailed in any court order and, indeed, had been expanded 

without court approval. Id.

As this Court has long recognized, the “mechanics of integration . . .  is ordinarily 

a matter within the discretion of school administrators,” Allen v. Asheville City Bd. o f Educ., 434 

F.2d 902, 905 (4th Cir. 1970), and . . . school systems seeking court approval for desegregation 

plan changes must merely show that “changes are consistent with its continuing affirmative duty 

to eliminate segregation.” Riddick v. School Bd. o f City o f Norfolk, 784 F.2d 521, 535 (4th Cir.), 

cert, denied, 479 U.S. 938 (1986). Indeed, based on that principle, this Court previously has 

dismissed another Equal Protection challenge to CMS’ consideration of race in student 

assignment on the ground that, while the School District is under court orders, such a challenge

4j Other courts also have evaluated school district actions taken to implement desegregation
orders under a deferential standard of reasonableness and practicability, rather than strict 
scrutiny. See, e.g., Arthur v. Nyquist, 712 F.2d 809, 813 (2d Cir. 1983) (supervising
desegregation plan “necessarily requires considerable deference by a district court to the good 
faith representations of the school authorities”); Clark v. Board o f Educ. o f Little Rock Sch. Dist., 
705 F.2d 265, 270-71 (8th Cir. 1983) (Board’s proposal to change desegregation plan, including 
through adoption of magnet with race-conscious admissions, found constitutional because it was 
“consistent” with affirmative duty to desegregate); Stanley v. Darlington County Sch. Dist., 915 
F. Supp. 764, 775 (D.S.C. 1996) (strict scrutiny not applicable to race-conscious practices 
designed to remedy historical racial discrimination).

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fails even to state a claim upon which relief can be granted. See Cuthbertson v. Charlotte- 

Meeklenburg Bd. o f Educ., 535 F.2d 1249 (4th Cir.) (unpub.), cert, denied, 429 U.S. 831 (1976); 

Addendum at 1. The same conclusion obtains here.

Over the history of this case, moreover, the district court itself repeatedly 

emphasized the deference that must be accorded to CMS’ primary role in devising and 

implementing desegregation remedies. 5/ The court gave CMS “maximum leeway” to continue 

the desegregation process when it ended ongoing active supervision in 1975 and later concluded 

that “[t]his approach reflected the proper division of duties between court and school authority in 

such cases.” Martin, 475 F. Supp. at 1341. The district court erred as a matter of law in 

retroactively abandoning this standard and subjecting the School District’s compliance efforts to 

strict scrutiny.

CMS’ efforts were well within its discretion under the Swann orders to select 

reasonable means to accomplish its affirmative duty to desegregate. The particular 

desegregation tool struck down by Judge Potter -  magnet schools with race-conscious 

admissions guidelines -  has been repeatedly recognized by the Supreme Court and other courts 

as a valid exercise of the broad remedial discretion of both district courts and school authorities. 

See, e.g., Jenkins III, 515 U.S. at 92 (“[w]e previously have approved of intradistrict 

desegregation remedies involving magnet schools”); Milliken II, 433 U.S. at 272 (affirming

5/ See, e.g., Martin, 475 F. Supp. at 1341 (court previously “closed the file to provide the 
School Board . . .  the maximum leeway within the confines of all orders of continuing effect”), 
a ff’d, 626 F.2d at 1167 (explicitly race-conscious pupil reassignment plan that had been 
implemented without prior judicial approval was “well within the plenary powers of the Board”), 
cert, denied, 450 U.S. 1041 (1981); Swann, 67 F.R.D. 648, 649 (W.D.N.C. 1975) (order “leaves 
the constitutional operation of the schools to the Board”); Swann, 311 F. Supp. at 270 (“The 
intention of this order is to . . . leave maximum discretion in the Board to choose methods that 
will accomplish the required result.”).

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district court-approved desegregation plan that included racial balance requirement for magnet 

school admissions plan described at 402 F. Supp. 1096-1147 (E.D. Mich. 1975)). 6! Moreover, 

CMS’ magnet admissions practices were not overly rigid in practice; although the stated goal 

was 40 percent black enrollment at each school, in 1998-99 magnet schools actually varied 

widely in their racial composition, from as low as 25 percent black to as high as 75 percent, and 

not one was balanced at exactly 40 percent. Post-Trial Brief at 78 (J.A. at 16857).

Appellees’ own unitary status expert, Dr. David Armor, admitted that CMS’ 

assignment practices were within its lawful discretion under the Swann orders. Armor 

specifically conceded that:

• A school district under court order to desegregate “has a duty to comply with 
the court’s orders as far as practicable.” Tr. 4/29:215-16 (J.A. at 3626).

• It is “normal” for such school districts “to take race into account in their 
student assignment decisions.” Id. at 216 (J.A. at 3626-27).

• It is “normal for school districts under court order to have racial balance 
guidelines for their magnet schools ” and that even specific “racial quotas are 
permissible.” Id  (J.A. at 3627) (emphases added).

• “The only way” for CMS to satisfy the orders in this case “is to take race into 
account,” as the school district has done in “pairing,. . .  satelliting,. . .  [and] 
running lotteries for magnet schools.” Id. at 23 (J.A. at 3434)(emphasis 
added).

CMS’ magnet schools are the same type of schools as the “optional” schools that

6/ See also United States v. Yonkers Bd. o f Educ., 837 F.2d 1181, 1238 (2d Cir. 1987) 
(approving racial balance requirement for magnet school admissions); Liddell v. Missouri, 731 
F.2d 1294, 1310 (8th Cir. 1984) (“the utility and propriety of magnets as a desegregation remedy 
is beyond dispute”); Davis v. East Baton Rouge Parish Sch. Bd., 721 F.2d 1425, 1440 (5th Cir. 
1983) (approving racial balance requirements for magnet schools); Morgan v. Kerrigan, 530 
F.2d 401, 423 (1st Cir. 1976) (approving racial balance requirement for magnet schools); Stanley 
v. Darlington County, 915 F. Supp. at 776 (imposing racial balance requirement for magnet).

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the 1974 Swann order requires to be “appropriately integrated” in ways that “prevent significant 

jeopardy to the racial composition of other schools,” 379 F. Supp. at 1103. See Tr. 5/3:73 

(Schiller) (J.A. at 3922). The magnet admissions practices, moreover, were designed to help 

CMS meet the court’s requirement that students be assigned so that “as nearly as practicable the 

various schools at the various grade levels have about the same proportion of black and white 

students.” 311 F. Supp. at 268. To comply with these and other orders, CMS adopted numerical 

guidelines for the magnet schools, just as Appellees’ expert Dr. Armor conceded is normal and 

permissible for a school district under court order to do. The court below thus erred in 

concluding that CMS’ consideration of race in magnet school admissions, while it was still under 

a desegregation order, was unconstitutional. Because the court found no other constitutional 

violation, there was no basis for granting injunctive relief or awarding damages.

B. Damages are Not Available for Good Faith Efforts to Comply
with Court Orders

Judge Potter also erred in failing to recognize that the School District’s actions -  

even if they had exceeded its authority under Swann, which they did not — cannot give rise to 

damages because they were taken in good faith. If CMS’ efforts to comply with the Swann 

orders had exceeded its authority, the proper course for the court would have been to order it to 

revise its magnet admissions procedures, not to award damages. Many formerly de jure 

segregated school districts have adopted measures that — in one direction or another — have not 

fully complied with broad remedial orders; indeed, some of these actions have been 

characterized as massive resistance. Yet, CMS is aware of no other court in history that has 

awarded damages against a school district either for going too far or not going far enough in 

trying to satisfy a desegregation order.

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Where, as here, a governmental entity remains subject to a court order that has not 

been dissolved, it must comply with the order. As one court has stated, even though the order 

might subsequently be questioned, the government body “face[s] but one real course -- a 

Hobson’s choice -  to follow the court’s order.” Wolfe v. City o f Pittsburgh, 140 F.3d 236, 240 

(3d Cir. 1998). By making good faith efforts to comply, such an entity does “not deliberately 

adoptf] an ‘official policy,’ other than to follow the law, that would give rise to Section 1983 

liability.” Id.

The equities weigh particularly heavily against an award of damages in a unitary 

status case. CMS did not adopt race-conscious policies by consent, but under the compulsion of 

court orders issued after a final judgment determining that the former de jure  segregated system 

was unconstitutional. A school district does not become unitary unless the court explicitly states 

that unitary status has been attained. See Dowell, 498 U.S. at 246 (school board “entitled to a 

rather precise statement of its obligations”). Otherwise, it is “trapped between. . . competing 

hazards of liability,” Wygant v. Jackson, 476 U.S. 267, 291 (1986) (O’Connor, J., concurring in 

part and concurring in judgment) -  forced to risk the court’s contempt power and further legal 

challenges from the Swann Appellants, if it does not take actions to comply with the court orders, 

and lawsuits by others (such as Appellees), if it does. Such conflicting duties would hopelessly 

frustrate any school system’s efforts to implement effective desegregation plans and to 

administer public education in an orderly fashion.

Judge Potter’s statement that CMS sought to use the desegregation order “as a 

pretext to pursue race-conscious, diversity-enhancing policies in perpetuity” is clearly erroneous. 

57 F. Supp. 2d at 232. First, there is neither any specific finding nor a shred of evidence 

suggesting that the School District operated its magnet plan in bad faith. Second, there is no

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evidence at all to suggest that CMS had planned to continue race-conscious practices after it 

became unitary. See Tr. 6/18:235-236 (Griffin) (J.A. at 9098-99); DX 1 at 27 (J.A. at 11055).

Furthermore, CMS does not seek reversal of the court’s award of nominal 

damages because it desires to use its pre-unitary, race-conscious practices if this Court finds it to 

be unitary, but rather because the practical implications of this ruling are enormous: While 

Appellees were found not to have suffered actual damages, affirmance would open the door to 

numerous suits by other students who could claim they did suffer actual damages and argue that 

collateral estoppel prevents CMS from denying liability.

If this Court upholds Judge Potter’s award of damages against CMS simply 

because it tried to comply with the Swann orders, a chilling message will be sent. Future orders 

to remedy constitutional violations in this Circuit will have little meaning if, in any given case, a 

defendant might calculate that the threat of damages and attorneys fees outweighs the costs of 

noncompliance. The Court should not diminish the authority of the federal courts by holding 

that a defendant is liable for damages under such circumstances.

III. THE INJUNCTION ENTERED BY THE DISTRICT COURT EXCEEDS ITS 
EQUITABLE POWER AND IMPROPERLY LIMITS THE SCHOOL 
DISTRICT’S AUTHORITY OVER EDUCATIONAL POLICY

“No single tradition in public education is more deeply rooted than local control 

over the operation of schools.” Milliken v. Bradley, 418 U.S. 717, 741 (1974). See also 

Freeman, 503 U.S. at 489; Dowell, 498 U.S. at 248; Brown v. Board o f Educ., 347 U.S. 483, 493 

(1954). While paying lip service to this principle, see 57 F. Supp. 2d at 232; id. at 244 

(acknowledging “ultimate duty to return control of school operations to local authorities”), Judge 

Potter blatantly violated it by prohibiting any possible future student assignment measure or 

other educational program that considers race, even in a narrowly-tailored manner.

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Once a school system is declared unitary', the proper course is to return control 

over public education to locally elected school boards. Dowell, 498 U.S. at 248. School systems 

that successfully remedy the vestiges of segregation should not be penalized for that 

accomplishment with a swift shift from one form of judicial supervision to another. The 

Fourteenth Amendment should not be unreasonably interpreted to prohibit the desegregation that 

has been constitutionally required for 30 years at the instant unitary status is achieved. Judge 

Potter’s injunction, however, purports to do precisely that. Appellees (or others) could use its 

sweeping language to bring a contempt-of-court challenge to any effort by CMS to prevent 

resegregation or even to implement educational programs designed to improve minority student 

achievement. Such intrusion into the prerogatives of the local elected authorities is 

unprecedented in a unitary status proceeding. Moreover, it is based improperly on speculation 

about future conduct, is far broader than the violation found, and groundlessly usurps the School 

Board’s authority over educational policy.

A. The Injunction Constitutes an Impermissible Advisory 
Opinion

‘“ An injunction is a drastic remedy and will not issue unless there is an imminent 

threat of illegal action.’” Norfolk & W. Ry. v. Brotherhood ofR.R. Signalmen, 164 F.3d 847, 856 

(4th Cir. 1998) (emphasis added) (quoting Bloodgood v. Garraghty, 783 F.2d 470, 475 (4th Cir. 

1986)). “‘An injunction will not be granted against something merely feared as liable to occur at 

some indefinite time in the future.’” Id. See also Simmons v. Poe, 47 F.3d 1370, 1382 (4th Cir. 

1995) (dismissing claims for declaratory and injunctive relief under Section 1983, in part 

because “a future or conjectural threat of injury is insufficient to justify injunctive relief’). There 

was no evidence at trial that CMS, once declared unitary, would engage in any illegal conduct.

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First, as discussed above, see supra Section II.A, there were no previous 

violations of law from which future illegal conduct fairly could be anticipated. All that was 

established is that, prior to any unitary' status ruling, CMS had employed race-conscious 

measures in a good faith effort to follow the Swann orders. Because the School District never 

had been declared unitary and never had conducted itself as a unitary system, its prior policies 

are not a sufficient indicator of the policies it would adopt if this Court were to affirm the district 

court’s unitary status ruling.

Second, there was no other evidence demonstrating an imminent threat of illegal 

action. The remedial plan that CMS proffered describes the actions it proposed to take to 

eliminate the remaining vestiges of segregation if the district court determined -  as the record 

makes clear it should have -  that the School District was not yet unitary. The plan does not 

constitute a statement of what CMS would do if the courts concluded that it is unitary now. The 

plan also is not in evidence. It would be ironic indeed to uphold its inadmissibility to show how 

it is practicable to remedy vestiges in CMS, but then to misuse it to divine the School District’s 

future intent. Moreover, the plan indicates that CMS intended not to consider race in its student 

assignment system once it had become unitary. See DX 1 at 27 (J.A. at 11055).

Nor does the testimony of Board members, the Superintendent, and other CMS 

witnesses as to the educational value of diversity indicate that CMS would act illegally. Board 

Chairman Arthur Griffin explicitly testified that no decisions had been made as to how CMS 

would operate if the district court ruled that it already was unitary, other than that the School 

District intended to follow the law. 6/18:235-36 (Griffin) (J.A. at 9098-99), 6/21:68-70, 86 

(Griffin)) (J.A. at 9167-69, 9185). Given this uncontroverted evidence, the injunction has no 

basis in fact and constitutes an impermissible advisory opinion.

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B. The Injunction Exceeds the Scope of the Violation Found

Even assuming arguendo both that CMS’ prior magnet school admissions

practices were unconstitutional and that CMS had proposed to continue using them as a unitary

school system, the injunction still is improper because it extends far beyond those magnet

procedures. As this Court recently stated in overturning another overbroad injunction:

An injunction should be tailored to restrain no more than 
what is reasonably required to accomplish its ends . . . .[I]t 
should not go beyond the extent of the established 
violation.

Tuttle v. Arlington Cty. Sch. Bd., 195 F.3d 698, 708 (4th Cir. 1999) (quoting Hayes v. North State 

Law Enforcement Officers Ass'n, 10 F.3d 207, 217 (4th Cir. 1993)), petition fo r  cert, filed, 68 

U.S.L.W. 3497 (U.S. Jan. 31, 2000) (No. 99-1274). In Hayes, as here, Judge Potter restrained 

conduct that had not been determined to be unconstitutional. Id. (court improperly enjoined “all 

use of racially based criteria” in city’s employment decisions where a constitutional violation 

had been found only with respect to police department promotions to sergeant rank). The district 

court lacked authority to do more than grant relief from an “established violation.” Tuttle, at 

708. Here, the only constitutional violation found concerned the magnet school admissions 

practices employed by CMS before any unitary status determination. An appropriately tailored 

injunction would do no more than forbid those practices, which CMS had announced an 

intention to abandon once it became unitary, in any event. See Eisenberg, 197 F.3d at 134 

(where racial considerations in transfer decisions were found unconstitutional, injunction should 

only address that policy).

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C. The Injunction Is Overly Broad Because It Prohibits Any 
Future, Hypothetical Action that Considers Race, Even If It Is 
Narrowly-Tailored to Serve a Compelling Governmental 
Interest

While this Court need not reach this issue to vacate the injunction issued below, 

Judge Potter also erroneously held, directly contrary to controlling Supreme Court and Fourth 

Circuit precedent, that “remedying the effects of past discrimination” is the only conceivable 

governmental interest compelling enough to justify any consideration of race in student 

assignment or in the allocation of educational benefits. 57 F. Supp. 2d at 241. The district court 

held that CMS “cannot clear the first hurdle of strict scrutiny by showing a compelling 

governmental interest” because “the emerging consensus is that achieving diversity is not a 

proper grounds for race-conscious action.” 57 F. Supp. 2d at 291-92. The court’s injunction 

thus is overly broad because it prohibits all consideration of race, even narrowly-tailored to serve 

compelling interests.

1. The Decision Below Violates Controlling Precedent in Holding that 
Only Remedial Interests Can Ever Be Compelling

This Court twice recently has refused to find, as Judge Potter did, that only

remedial interests may be considered sufficiently compelling to justify voluntary public school

desegregation efforts. In Tuttle, the Court rejected a district court conclusion identical to that

adopted by the lower court here. Tuttle, 195 F.3d at 704. This Court held that whether

promoting the educational benefits of diversity is a compelling governmental interest “remains

unresolved,” id., noting that “nothing in Bakke or subsequent Supreme Court decisions clearly

forecloses the possibility that diversity may be a compelling interest.” Id. at 705. The correct

approach in these circumstances, Tuttle held, is that “[ujntil the Supreme Court provides decisive

guidance, we will assume, without so holding, that diversity may be a compelling governmental

interest.” Id. In Eisenberg, another panel of this Court followed Tuttle and likewise assumed

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that non-remedial interests may be compelling. 197 F.3d at 130. That the lower court here 

rejected all other potential compelling governmental interests was confirmed by its order denying 

a stay: Judge Potter incorrectly reiterated, disregarding this Court’s contrary decisions in Tuttle 

and Eisenberg, that “in a non-remedial, unitary status setting, the use of race is a fortiori 

unconstitutional.” November 15, 1999 Order at 6-7 (J.A. at 1284-85).

By contrast, in this very case the Supreme Court and this Court previously have 

noted that school boards, pursuant to their “broad power to formulate and implement educational 

policy,” may have legitimate reasons to consider race in student assignment, even in unitary 

districts. Swann, 402 U.S. at 16; Martin, 626 F.2d at 1166-67. Accord North Carolina State Bd. 

o f Educ. v. Swann, 402 U.S. 43, 45 (1971) (“school authorities have wide discretion in 

formulating school policy, and . . .  as a matter of educational policy school authorities may well 

conclude that some kind of racial balance in the schools is desirable quite apart from any 

constitutional requirements”). 7/ The Supreme Court has plainly stated that “in the absence of a 

constitutional violation, the desirability and efficacy of school desegregation are matters to be 

resolved through the political process.” Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 

473 (1982) (emphasis added). The decision below both usurps that political process and violates 

recent controlling authority in this Circuit.

2. The Court Ignored CMS’ Interest in Avoiding Resegregation

In ruling that non-remedial, race-conscious measures are per se unconstitutional, 

the court below simply ignored the School District’s uncontroverted interest in avoiding the

7/ See also McDaniel v. Barresi, 402 U.S. 39 (1971) (reversing state court injunction 
against voluntary student assignment plan that considers race); Bustop, Inc. v. Board o f Educ. o f 
City o f Los Angeles, 439 U.S. 1380, 1382-83 (1978) (Rehnquist, J.) (rejecting contention that 
voluntary race-conscious desegregation efforts would violate Equal Protection).

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immediate resegregation of its schools. See Trial Brief at 25-26; Post-Trial Brief at 84, 86 (J.A. 

at 16863, 16865). As this Court has previously recognized, however, to avoid the re­

establishment of segregated schools, unitary districts in some circumstances may take race­

conscious actions. 8/ In Riddick, for example, although the Norfolk school system had been 

declared unitary, this Court approved race-conscious student assignment measures intended to 

avoid the “real danger of resegregation.” 784 F.2d at 540, 543.

After working thirty years under court orders requiring it to promote racial 

integration, CMS does not believe the Constitution requires immediate resegregation. Given 

where CMS has built schools, however, using a race-blind, proximity-based assignment plan 

would significantly increase racial imbalance in student enrollments. See Post-Trial Brief at 

73-74 (J.A. at 16852-53). Fifty-nine of 83 CMS elementary schools (71%) would be racially 

identifiable. Id. at 73 n.38 (J.A. at 16852). Moreover, 19 of these schools would be more than 

75 percent black and 10 would be more than 90 percent black. Id. Overall, the absolute level of 

segregation in CMS schools would double. Id. 9/

8/ Other courts also have recognized that school districts may take race-conscious actions 
even in the absence of desegregation court orders. See, e.g., Parents Ass'n o f Andrew Jackson 
High Sch. v. Amhach, 738 F.2d 574, 577 (2d Cir. 1984) (voluntarily adopted race-conscious 
student assignment plan that aimed “to promote a more lasting integration” by imposing “racial 
quota” on transfers of minority students survived strict scrutiny); Ojfermann v. Nitkowski, 378 
F.2d 22, 24 (2d Cir. 1967) (school district did not violate any constitutional right in voluntarily 
using race-conscious student assignment to undo the effects of de facto segregation). See also 
Jacobson v. Cincinnati Bd. o f Educ., 961 F,2d 100, 102-03 (6th Cir. 1992) (upholding race­
conscious teacher assignment process); Kromnick v. School Dist. o f  Philadelphia, 739 F.2d 894, 
906 (3d Cir. 1984) (“[pjatently, a school district is competent to choose a race-conscious teacher 
assignment policy to further educational goals”); Zaslawsky v. Board o f Educ. o f Los Angeles 
City Unified Sch. Dist., 610 F.2d 661, 664 (9th Cir. 1979) (school authorities have discretion to 
formulate race-conscious faculty integration plans to carry out their educational policies).

9/ Avoiding such racial isolation also has been recognized by Congress as an important 
goal. Congress has authorized funds under the Magnet School Assistance Program to assist in 
“the elimination, reduction, or prevention of minority group isolation in elementary and

[Footnote continued]

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The School District’s dilemma is exacerbated by the fact that the schools that

would become racially identified as “black” schools are precisely the schools that are most 

deficient in their physical facilities. Id. at 44-45 (J.A. at 16823-24). They also generally are 

inferior in the educational opportunities they provide — including inferior resources, fewer 

course offerings, and fewer well-qualified teachers. Id. at 44-45, 53-54, 59, 74 (J.A. at 16823- 

24, 16832-33, 16838, 16853); Proposed Findings at 11274-75 (J.A. at 580-81). Thus, a 

precipitous transition to a neighborhood-based school assignment plan would put many African- 

American students in the same position as African-American students in the 1960s — in separate 

and unequal schools with their academic achievement retarded as a direct result. The Fourteenth 

Amendment surely does not require CMS to promote or even to acquiesce in this result.

Finally, if CMS were not allowed voluntarily to take steps to avoid resegregation, 

it would run the risk of further liability. It is well-settled that a school system’s actions or 

inactions contributing to racially isolated schools may serve as evidence of an intent to 

discriminate. See, e.g., Columbus Bd. ofEduc. v. Penick, 443 U.S. 449, 464 (1979); Riddick, 784 

F.2d at 543. The court’s overly broad injunction unfairly puts CMS in this untenable position.

[Footnote continued]

secondary schools.” See 20 U.S.C. § 7202(1); 34 C.F.R. § 280.1(a). The Department of 
Education has reaffirmed that the elimination, reduction, and prevention of minority group 
isolation is a “compelling interest” — even in a school district that is not remedying the effects of 
prior discrimination. MSAP Notice for Fiscal Year 1999, 64 Fed. Reg. 2110, 2110 (Jan. 12, 
1999). Likewise, federal regulations implementing Title VI encourage the use of voluntary race­
conscious action to prevent racial isolation. 34 C.F.R. §100.3(b)(6)(ii).

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3. The Court Erroneously Held that Providing the Educational Benefits 
of Diversity Could Never Constitute a Compelling Governmental 
Interest

The district court also erred because precedent, as well as the evidence presented 

at trial, establish the compelling nature of CMS’ interest in promoting the educational benefits of 

diversity after it is declared unitary. The Supreme Court has acknowledged educational 

institutions’ substantial interest in providing their students with the benefits of diversity. As the 

Court recognized in Swann, school integration may help “to prepare students to live in a 

pluralistic society.” 402 U.S. at 16. In the higher education context, Justice Powell’s controlling 

opinion for the Court in Regents o f University o f California v. Bakke, 438 U.S. 265 (1978), noted 

that, independent of any remedial goal, “our tradition and experience lend support to the view 

that the contribution of diversity is substantial,” id, at 313, and the opinion concluded that “the 

attainment of a diverse student body. . . clearly is a constitutionally permissible goal for an 

institution of higher education.” Id. at 311-12. See also Wygant, 476 U.S. 286 (O’Connor, J., 

concurring) (in Bakke, “a state interest in the promotion of racial diversity has been found 

sufficiently ‘compelling,’ at least in the context of higher education, to support the use of racial 

considerations in furthering that interest”). Moreover, in Seattle School District, the Court 

observed that children of all races “benefit from exposure to ethnic and racial diversity in the 

classroom” and that “an ethnically diverse school. . . prepares] minority children for citizenship 

in our pluralistic society . . . while, we may hope, teaching members of the racial majority to live 

in harmony and mutual respect with children of minority heritage.” 458 U.S. at 472-73 (internal 

citations omitted). 10/

101 Other courts more recently have reconfirmed that pursuing the educational benefits of 
diversity can be a compelling governmental interest. See Wessmann v. Gittens, 160 F.3d 790, 
796 (1st Cir. 1998) (assuming that Bakke is good law and that diversity is sufficiently compelling

[Footnote continued]

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The uncontested record evidence in this case demonstrates that experience in a 

racially and ethnically diverse classroom better prepares students for the work force, trains 

students to better exercise their civic responsibilities, and lessens the burden on state universities. 

Post-Trial Brief at 84 (J.A. at 16863); Tr. 6/16:187-93 (Woodward) (J.A. at 8604-10); DX 73-84, 

254; Proposed Findings at 252-73 (J.A. at 575-80). 11] First, the evidence shows that 

diversity in the student body and faculty enhances students’ civic values by bringing them 

together in ways that can reduce racial fears and stereotypes; teaches studeirs how to interact 

comfortably and respectfully with people who are different from them; and prepares them to be 

better neighbors, colleagues, and citizens in our multicultural, democratic society. Id. at 

I f  255-60 (J.A. at 576-77). Second, diversity in the student body and on the faculty helps to 

improve teaching and learning for all students. Id. at 261-65 (J.A. at 577-78). Moreover, 

“placing disadvantaged minority students in desegregated classrooms in which teachers have 

high expectations for all students can positively affect their educational achievement and long­

term prospects, without negatively affecting the performance of other students.” Id. at f  264 

(J.A. at 578). Third, student diversity can improve preparation for employment and post-

[Footnote continued]

interest to justify race-conscious actions by school system); Parents Ass ’n o f Andrew Jackson 
High, 738 F.2d at 577 (accepting promotion of integration as a compelling interest supporting 
race conscious student assignment measures). See also Hunter v. Regents ofUniv. o f Cal., 190 
F.3d 1061, 1064 n,6, 1067 (9th Cir, 1999), petition fo r  reh’g  en banc [pending] (rejecting 
contention that only remedying past discrimination can justify school’s use of racial criteria in 
admissions and holding that state has “compelling interest in providing effective education to its 
diverse, multi-ethnic, public school population”); Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 
1996) (rejecting contention that only remedying prior discrimination can qualify as compelling 
governmental interest supporting racial classifications), cert, denied, 519 U.S. 1111 (1997).

/ / /  Judge Potter also incorrectly excluded much of the proffered evidence concerning the 
educational benefits of diversity. See infra at 33 n.12; Tr. 5/26:127-35 (Trent) (J.A. at 6636-44); 
6/15:77-91 (Mickelson) (J.A. at 8284-98).

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secondary education by teaching students the value of different perspectives, how to function in 

multicultural business and educational settings, and how to communicate effectively in our 

increasingly heterogeneous domestic workforce and the expanding global marketplace. Id. at 

266-72 (J.A. at 578-80). Each of these benefits of diversity in the classroom assists CMS in 

providing the various aspects of a sound basic education required by the North Carolina 

Constitution. See Leandro v. North Carolina, 488 S.E.2d 249, 255 (N.C. 1997).

Even Appellees’ experts agreed that diversity provides important educational 

benefits. Tr. 4/29:256-57 (Armor) (J.A. at 3666-67); Tr. 4/19:195 (Clark) (J.A. at 1642). It is 

also undisputed that to achieve these benefits, it sometimes may be necessary to take race into 

account in a narrowly tailored manner. Tr. 4/29:257-58 (Armor) (J.A. at 3668). If CMS decides 

to promote these benefits in the future, the lower court’s broad, abstract injunction should, not 

prevent the locally elected School Board from grappling with whether narrowly-tailored, race­

conscious methods provide the best means of achieving that purpose.

IV. THE DISTRICT COURT ABUSED ITS DISCRETION IN HARSHLY 
SANCTIONING THE SCHOOL DISTRICT DURING THE TRIAL FOR NOT 
DISCLOSING TRIAL WITNESSES IN A TIMELY MANNER, EVEN THOUGH 
CMS DISCLOSED SUCH WITNESSES IN GOOD FAITH PRIOR TO THE 
DEADLINE ESTABLISHED BY THE COURT’S PRETRIAL ORDER

Ignoring binding precedent, the court below concluded that CMS had acted 

improperly when it failed to disclose trial witnesses prior to the date designated for their 

disclosure in its own Pretrial Order. During the trial, on April 23, 1999, the court found that 

CMS had interpreted incorrectly its September 18, 1998 Order as reaffirming the schedule 

established in the Pretrial Order. Judge Potter improperly sanctioned the School District by 

(1) recessing the trial for one week to permit Appellees -- but not the other parties -- to depose

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fourteen additional fact witnesses; (2) ordering the Board to pay ail Appellees’ costs associated 

with the depositions, including court reporting costs and $33,500 for Appellees’ attorneys’ fees; 

and (3) prohibiting two CMS witnesses from testifying at all. 12!

This Court has adopted a four-part test to determine the appropriateness of a 

sanction under Fed. R. Civ. P. 37. Anderson, 155 F.3d at 504 (citing Wilson v. Volkswagen o f 

Am., Inc., 561 F.2d 494, 505-06 (4th Cir. 1997)). Under this test, the Court must determine “(1) 

whether the non-complying party acted in bad faith, (2) the amount of prejudice that 

noncompliance caused the adversary, (3) the need for deterrence of the particular sort of 

noncompliance, and (4) whether less drastic sanctions would have been effective.” Id. (citations 

omitted). Analyzed under these guidelines, the lower court’s award of sanctions was a clear 

abuse of discretion.

First, throughout discovery, CMS complied in good faith with the deadlines 

provided in the Pretrial Order. That order required counsel to designate expert witnesses on 

October 2, 1998 and to file a “witness list containing the name of every proposed witness” on the 

first day of trial. Pretrial Order at 5 (J.A. at 150). CMS believed this to be the applicable 

deadline and complied with it.

The Federal Rules do not independently require the disclosure of the fact 

witnesses a party intends to call at trial prior to the date designated in the governing pretrial 

order. See Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d 14, 16 (4th Cir. 1962); Fed. R. Civ. 

P. 26. Although Rule 26 requires that a party disclose the identity of expert witnesses, it only

12] Further compounding this error, the court would not even allow a proffer of this 
testimony from the Chairman and Chief Executive Officer of Bank of America, Hugh L. McColl, 
Jr., and the Deputy Chief of Police of the Charlotte-Mecklenburg Police Department, Leonard R.

[Footnote continued]

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requires pretrial disclosures of nonexpert witnesses as directed by the court’s Pretrial Order, See 

Rule 26(a)(3). Moreover, it is inappropriate for parties to attempt to dodge this rule by seeking 

to obtain at an earlier date information scheduled to be disclosed pursuant to a pre-trial 

scheduling order. See B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. o f New York, Inc., 

168F.R.D. 161, 166-167 (S.D.N.Y. 1996).

Therefore, in response to discovery requests filed in June 1998, CMS specifically 

stated that it would “provide appropriate information concerning witnesses at the time and in the 

manner specified by the Court for the designation of witnesses.” Defendants’ Response to 

Plaintiffs’ First Set of Interrogatories at 17 (June 23, 1998). Unsatisfied with that response, 

Appellees moved to compel discovery. In its response to that motion, CMS cited the schedule 

established by the Pretrial Order and relied on the proposition that discovery requests may not be 

used to circumvent such schedules. Defendants’ Opposition to Plaintiffs’ Motion to Compel at 

11 (August 27, 1998). The district court denied Appellees’ motion, noting that “the deadline for 

expert witness designation [in the Pretrial Order] is not until 2 October, 1998.” September 16, 

1998 Order at 7 (J.A. at 195). The court also stated that “CMS must supplement its responses, as 

it promised, when such information becomes known.” Id. (emphasis added). Because (1) the 

court denied the motion to compel; (2) the court specifically referenced its Pretrial Order as 

establishing the schedule for disclosure of expert witnesses; and (3) CMS “had promised” to 

meet the timelines in the Pretrial Order, CMS reasonably believed that the Pretrial Order 

continued to provide all of the applicable deadlines. The School District was not unreasonable in

[Footnote continued]

Jones. Tr. 6/17:92-93 (J.A. at 8723-24); Tr. 6/18:96-99 (J.A. at 8959-62). But see Fed. R. Evid. 
103 (requiring proffer o f testimony to preserve issue of exclusion of testimony).

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failing to ascertain in September 1998 that the district court apparently had intended language in 

its denial of Appellee’s motion both to supersede its Pretrial Order and to overrule the principle 

that discovery may not be used to alter such orders. But see April 23, 1999 Order at 2 (J.A. at 

305).

Second, Appellees were not prejudiced by the School District’s reliance on the 

Pretrial Order. They knew beginning in June 1998 that CMS was relying on the schedule 

established therein. The court’s September 16, 1998 order reinforced CMS’ position. 13] 

Appellees thus can show no prejudice as a result of CMS’ reliance on the Pretrial Order, because 

they had ample opportunity to raise this issue over the course of ten months. Indeed, they 

waived any claim they may have had by waiting until April 1999, the literal eve of trial — long 

after discovery had closed -- to raise the issue. See, e.g., Brandt v. Vulcan, Inc., 30 F.3d 752, 756 

(7th Cir. 1994) (holding that the plaintiffs delay in seeking sanctions precluded his motion).

Third, because CMS acted in good faith, there was no need for the district court to 

impose sanctions to deter any future noncompliance. Rule 37(c) authorizes sanctions for the 

failure to disclose information pursuant to Rule 26(a) or 26(e)(1) only if the party acted “without 

substantial justification,” but here CMS was substantially justified: Even if CMS had been

13] Moreover, in a letter dated October 28, 1998, counsel for Capacchione suggested that it 
was an “appropriate time” for the School District to disclose trial witnesses and requested that 
CMS supplement its response to the relevant interrogatory within ten days. CMS, as the 
defendant below, had not yet even identified its trial witnesses and believed it was not required 
to identify them until the deadline in the Pretrial Order and so informed Appellees. Appellees 
failed to raise the issue of trial witnesses at the November 20, 1998 hearing on another motion to 
compel. On December 1, 1998, CMS again supplemented its interrogatory responses and 
identified five outside experts and Superintendent Smith as potential trial witnesses, while 
continuing to make clear that it would comply with the Pretrial Order regarding non-expert 
witnesses. Defendants’ Third Amended and Supplemental Response and Objections to First Set 
of Interrogatories by Plaintiff Capacchione at 28-29.

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mistaken in its interpretation of the September 16, 1998 Order, it acted in good faith in relying 

upon the Pretrial Order.

Finally, Judge Potter’s sanctions were fundamentally unfair under the 

circumstances, and far less drastic relief could have cured the alleged harm. Granting Appellees 

a one-week break in the trial to take more depositions, but denying CMS’ request to depose 

Appellees’ additional fact witnesses, amounted to a one-sided amendment of the Pretrial Order, 

which had strictly limited the number of permissible fact depositions to six per side, a limitation 

which Appellees sought and obtained over CMS’ objection. See supra at 8. A far less drastic, 

and much more equitable solution -  which CMS proposed — would have been to postpone the 

beginning of the trial for a short period of time to let each party depose additional fact witnesses 

at its own expense. In addition, there certainly was no basis to exclude probative testimony from 

witnesses unable to satisfy the court’s last-minute discovery requirements.

For these reasons, the district court’s award of sanctions should be reversed.

V. APPELLEES ARE NOT ENTITLED TO ATTORNEYS’ FEES

The district court compounded its errors by awarding attorneys’ fees to Appellees. 

To recover attorneys’ fees, they must qualify as “prevailing part[ies].” 42 U.S.C. § 1988. 

Because Appellees either did not or, as discussed above, should not prevail on their claims, they 

are not entitled to an award of attorneys’ fees.

Capacchione does not qualify as a “prevailing party” under Section 1988 because 

he did not obtain any relief which affects the behavior of the defendant toward him. Hewitt v. 

Helms, 482 U.S. 755, 760-61 (1987). Specifically, a plaintiff who prevails must obtain an 

enforceable judgment or settlement against the defendant which directly benefits the plaintiff.

-38-



Farrar v. Hobby, 506 U.S. 103, 11 i (1992). Capacchione’s Amended Complaint contained five 

claims which were resolved as follows:

• Declaratory relief under the Fourteenth Amendment, 42 U.S.C. §§ 1983 and 
2000d -  Dismissed with prejudice, December 22, 1998 Order;

• Injunctive relief under the Fourteenth Amendment and Title VI -  Dismissed 
with prejudice, id.;

• Declaration that CMS has attained unitary status -  Dismissed with prejudice. 
id. ;

• Compensatory damages -  Dismissed with prejudice, May 28, 1999 Order; and

• Damages related to magnet school admissions -  Nominal damages awarded, 
57 F. Supp.2d at 290.

Having been denied declaratory, injunctive and compensatory relief, the single 

thread by which Capacchione’s status as a prevailing party hangs is the award of nominal 

damages on his claim that his daughter was wrongly denied admission to a particular CMS 

magnet school. Based on this award of $1.00, shared among the Appellees, the court ordered 

CMS to pay Capacchione’s attorneys’ fees in the amount of $716,123.49. It was unreasonable 

for the court to award Capacchione fees for time devoted to all of his original claims, where it 

had dismissed four out of five of them and only awarded nominal damages on the other. See 

Farrar, 506 U.S. at 115. (“When a plaintiff recovers only nominal damages because of his 

failure to prove an essential element of his claim for monetary relief, the only reasonable fee is 

usually no fee at all.”)

In addition, the court erred in awarding attorneys’ fees to Capacchione because he 

was not entitled even to nominal damages. The Supreme Court long ago established and recently 

reaffirmed that a school cannot be liable for an allegedly unlawful race-conscious admission 

decision if the school demonstrates that it would have made the same decision absent 

consideration of race. See Texas v. Lesage, 120 S. Ct. 467 (1999); Mt. Healthy City Sch. Dist.

-39-



Bd. o f Ed. v. Doyle, 429 U.S. 274 (1977). Where there is no claim for forward-looking relief (as 

with Capacchione), the fact that the school would have made the same decision absent the 

alleged discrimination precludes any finding of liability. Lesage, 120 S. Ct. at 468.

Just as in Lesage, it is undisputed that Capacchione’s daughter would not have 

been admitted to the magnet program at Olde Providence Elementary, even if race had not been 

considered: Her lottery number was simply too high. See Tr. 6/14:66-71 (Purser) (J.A. at 8044- 

49). The district court acknowledged that Capacchione would not have been admitted even if 

race were not considered, 57 F. Supp. 2d at 288 n.50, yet erroneously found CMS liable based on 

the irrelevant conclusion that she retained standing. Whether she had standing, however, does 

not alter the conclusion that CMS cannot be liable on the merits, where Cristina would not have 

been admitted regardless of race. Lesage, 120 S.Ct. at 468. The court thus erred in awarding 

Capacchione even nominal damages. Therefore, Capacchione has lost or should lose on the 

merits of all of his claims and cannot be a “prevailing party” under Section 1988.

Unlike Capacchione, the Grant interveners were granted declaratory and 

injunctive relief related to the issues of unitary status and CMS’ magnet school admissions 

policies. Therefore, the entitlement of the Grant intervenors to recover attorneys’ fees is tied 

directly to the merits of those claims. Because, as discussed above, none of the Appellees should 

have prevailed on those issues, the Grant intervenors are not entitled to recover any attorneys’ 

fees either.

-40-



CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed

and its injunction should be vacated.

Respectfully submitted,

Allen R. Sstyder 
Maree Sneed 
John W. Borkowski 
HOGAN & HARTSON L.L.P.
555 Thirteenth Street, N.W.
Washington, DC 20004 
(202) 637-5741

James G. Middlebrooks 
Irving M. Brenner 
Amy Rickner Langdon
SMITH HELMS MULLISS & MOORE, L.L.P. 
201 N. Tryon Street 
Charlotte, NC 28202 
(704) 343-2051

Leslie Winner 
General Counsel
Charlotte-Mecklenburg Board of Education 
Post Office Box 30035 
Charlotte, NC 28230-0035 
(704) 343-6275

Counsel for Appellants
Charlotte-Mecklenburg Board of Education, et al.

-41-



CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(c), counsel hereby certifies that the foregoing 

brief contains 11,181 words. Counsel has relied on the word-count function of the word­

processing system used to prepare this brief.

Irving M. HJrenner 
SMITH HELMS MULLISS & MOORE, L.L.P. 
201 N. Tryon Street 
Charlotte, NC 28202 
(704)343-2075

-42-



CERTIFICATE OF SERVICE

I hereby certify that two copies o f the foregoing B rief in Final Form of 
Appellants Charlotte-Mecklenburg Board o f Education, et ah were served upon the 
parties to this action by mail as follows:

VTA HAND DELIVERY

John O. Pollard 
Kevin V. Parsons
McGuire Woods Battle & Boothe LLP
3700 Bank of America Plaza
101 South Tryon Street
Charlotte, North Carolina 28280-0001
Counsel fo r  Plaintiff-Appellee
Capacchione

Thomas J. Ashcraft 
212 South Tryon Street, Suite 460 
Charlotte, North Carolina 28281 
Counsel for Intervenor-Appellees Grant, 
et al.

James E. Ferguson, II 
S. Luke Largess
Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, P.A.
741 Kenilworth Avenue, Suite 300 
Post Office Box 36486 
Charlotte, North Carolina 28236-6486 
Counsel for Plaintiff-Appellants Belk, 
et al.

VIA REGULAR MAIL

William S. Helfand 
Magenheim, Bateman, Robinson, 
Wrotenberry & Helfand P.L.L.C.
3600 One Houston Center 
1221 McKinney 
Houston, Texas 77010 
Counsel fo r Plaintiff-Appellee 
Capacchione

Gloria J. Browne
Elaine Jones
Norman J. Chachkin
NAACP Legal Defense & Educational
Fund, Inc.
99 Hudson Street 
New York, New York 10013 
Counsel fo r Plaintiff-Appellants Belk, 
et al.

A. Lee Parks
Kirwan, Parks, Chesin & Miller, P.C.
75 Fourteenth Street
2600 The Grand
Atlanta, Georgia 30309
Counsel fo r  Intervenor-Appellees Grant,
et al.

This the 19th day of May, 2000.

-43 -



ADDENDUM



UNITED STATES COURT O f APPEALS
FOR THE FOURTH CIRCUIT

Xo. 75- -12?

Mis. l o u a l l a  D u c h b e r c s on ,  f o r  h e r s e l f  and 
f o r  n e r  mi no r  c h i l d r e n ,  S h i r l e y  J e a n  
C u t h l e r t s c n ,  Soge r  D a r i n  C u t h b e r t s o n  ana 
Cat r .y Lyn Cuthbe  r t  s o n ; L u t h e r  J .  R e y n o l d s ,  
f o r  n i r . s e I f  and f o r  h i s  m i n o r  c h i l d r e n ,  
D a r i a r a  S. R e y n o l d s ,  E l g i n  0.  R e y n o l d s ,  
and Jor.r. E. R e y n o l d s ;  Mrs.  V i r g i n i a  
Lac,<aor.,  f o r  h e r s e l f  and f o r  h e r  mi no r  
c h i l d r e n , R o b e r t  ' a  tins on,  C h a r l e s  7.  
J acKSon,  Brenda  J :  . so n ,  R o b e r t  n d e r s o n  
and h e r a l d  A n de r s o n ;  Mrs .  C h a r l e s  3.  H e l ms , 
f o r  h e r s e l f  and f o r  h e r  mi no r  c h i l d r e n ,  
S t e w a r t  La Don Helats and C h a r l e s  DerriCK. 
Helms;  Donlad Ray J o n e s ,  f o r  h i m s e l f  and 
f o r  h i s  m i n o r  c h i l d ,  L a r r y  Vance Tones;
Mrs .  David Moore ,  f o r  h e r s e l f  and f o r  h e r  
m i n o r  c h i l d  Br uc e  Zdward Moore:  Mrs .  Mary 
Jo  He lms ,  f o r  h e r s e l f  and f o r  h e r  m i no r  
c h i l d  E a r l  Ray Helms ,  J r . ;  E l l i o t t  D a n d e r s ,  
f o r  h i m s e l f  and f o r  h i s  m i n o r  c h i l d ,  J e r r y  
M i c h a e l  S a n d e r s ;  Mrs .  J o e  C. Helms ,  f o r  
h e r s e l f  and f o r  h e r  m i n o r  c h i l d ,  Dwight  □. 
Helms;  3en Thompson,  f o r  h i m s e l f  and f o r  
h i s  m i n o r  c h i l d r e n ,  Di anne  Thor s o n ,  Ben 
f r a n k l i n  Thompson,  and C l a r i s  J e a n  
Thompson;  Mrs .  S a l l y  I  Lewi s ,  f o r  h e r s e l f  
and f o r  n e r  m i n o r  c h i l d r e n ,  De bor a h  V.
Lewis  and Karen  L.  Lewi s ;  R o b e r t  3 .  Wat son ,  
S r . ,  f o r  h i m s e l f  and f o r  h i s  m i n o r  c h i l d ,  
J e a n n e  E l i z a b e t h  Wat son ;  Ben C.  C r a w f o r d ,  
f o r  h i m s e l f  and f o r  h i s  m: 'nor  c h i l d ,  
C h r i s t i n a  C r a w f o r d :  D ouglas  L. S n i v a r ,  f o r  
h i m s e l f  and f o r  h i s  m i n o r  c h i l d ,  S h e l l y  
S h i v a r ;  J o s e p h  Touch, f o r  h i m s e l f  and f o r  
h i s  minor c h i l d r e n ,  March Wayne ""ouch and 
T r e n t  Alan Touch; Mrs.  L o i s  C. R e e d e r  f o r  
h e r s e l f  and f o r  her m i n o r  c h i l d ,  C h r i s t i e  
Anderson R oberson ,

v .

C h a r l o t t e - M e c k l e n b u r g  Board o f  E d u c a t io n ,

1 = :-CTT

A p p e l l a n t ,

A p p e l l e e .

ADD 1

. . . V -  i . -  ------------  A* * ‘ V

•n
ni



PER CURIAM:

A p p e l l a n t s  c h a l l e n g e  t h e  c o n s t i t u t i o n a l i t y  o f  t h e  

method by which  t h e  C h a r l o t r  e -Mec : c l enburg  Board o f  E d u c a t i o n  

a s s i g n s  s t u d e n t s  t o  s c h o o l s ,  on t h e  g r ound  t h a t  a s s i g n m e n t s  

a r e  made Ou t h e  b a s i s  o f  r a c e  i n  v i o l a t i o n  o f  t h e  e q u a l  p r o ­

t e c t i o n  c l a u s e .  The d i s t r i c t  c o u r t  d i s m i s s e d  t h e  c o m p l a i n t  

f o r  f a i l u r e  to  s t a t e  a c l a i m  upon which  r e l i e f  c o u l d  be  g r a n t e d .

The Supreme C o a r t  has  h e l d  t h a t  where a s c h o o l  s y s t  .. 

has  v i o l a t e d  t h e  e q u a l  p r o t e c t i o n  c l a u s e  by m a i n t a i n i n g  s e g r e ­

g a t e d  s c h o o l s  i n  th e  p a s t ,  t h e  r a c e  o f  s t u d e n t s  may be c o n s i d e r e d  

i n  f o r m u l a t i n g  a remedy fo r  c h a t  v i o l a t i o n .  North C a r o l i n a  

S t a t e  Board o f  E d u c a t io n  v.  Swann,  402 U. S.  43 ,  46 ( 1 9 7 1 ) .  The 

Court  has a l s o  a c c e p t e d  a d i s t r i c t  c o u r t ' s  f i n d i n g  t h a t  the  

C h a r l o t t e - M e c k l e n b u r g  Board o f  E d u c a t io n  m a in ta in e d  s e g r e g a t e d  

s c h o o l s  a t  one  t i m e .  See Swann v .  C h a r lo t t e - M e c k l e n b u r g  Board 

o f  E d u c a t i o n ,  402 U .S .  1 ( 1 9 7 1 ) . .  Under t h e s e  d e c i s i o n s  t h e  

B o a r d ' s  p r e s e n t  u s e  o f  r a c e  i n  a s s i g n i n g  some s t u d e n t s  i s ' b o n - ' *  

s t i t u t i o n a l . .

A c c o r d i n g l y ,  we d i s p e n s e  w i t h  o r a l  argument and a f f i r m  

t h e  judgment  o f  t h e  d i s t r i c t  c o u r t .

ADD 2

- 2 -

i*-1' *<*?*.*



ro </j

r

Apnea
r  j -

t r
i c

-'Jm t h e  U n i t e d  S t a t e s  j - s t 'C 
of,  N ^ r t h  C a r o l i n a , a :  C h i r i o  
J u d g e .

- c u r t  f o r  the  Western  
s .  fames 3.  McMillan.

t r a i t  t e a  March 2,  1976. d e c i d e d  Mar.  13,  1976

B e f o r e  3UTZNZH, RUSSUL1 and T T T- n o ,  C i r c u i t 7udges

fWhiteforcS 3.  B1 a
-  - ^ ^ . 0 5  j  n  w ^ o r r

i e ¥ , A t t o r n e y  f o r  A o p e l l a n t s :  w 
or  A p p e l l e e . ' iarn w.

ADO 3