Belk v. Charlotte-Mecklenburg Board of Education Final Form Brief of Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

Nos. 99-2389, 99-2391, 00-1098 and 00-1432

TERRY BELK; DWAYNE COLLINS, on behalf of themselves and the class they 
represent;

Plaintiffs -  Appellants,

WILLIAM CAPACCHIONE, individually and on behalf of Christina Capacehione, 
a minor; MICHAEL P. GRANT; RICHARD EASTERLING; LAWRENCE 
(»ALA REAL; KAREN BENTLEY; CHARLES THOMPSON; SCOTT WILLARD;

Plaintiffs -  Appellees,

v.

THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION; ERIC SMITH, 
Superintendent, in his official capacity; ARTHUR GRIFFIN, Chairman of the 
Charlotte-Meckienburg School Board, in his official capacity;

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA

FINAL FORM BRIEF OF PLAIN ! !FFS-APPELLANTS

James E. Ferguson, II 
John W. Gresham
S. Luke Largess 
C. Margaret Errington 
FERGUSON, STEIN, WALLAS, 
ADKINS, GRESHAM & SUMTER, P. 
741 Kenilworth Avenue, Suite 300 
Charlotte, North Carolina 28204 
704/375-8461

Elaine R. Jones, Director-Counsel 
Norman J, Chachkin 
Gloria J. Browne 
NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC.

A. 99 Hudson Street 
J 6th Floor
New York, New York 10013 
212/219-1900

Counsel for Plaintiffs-Appellants



TABLE OF CONTENTS

PAGE

TABLE OF CASES AND AUTHORITIES ..............................................................1V

JURISDICTIONAL STATEMENT ............................................................. 1

ISSUES PRESENTED ............................  2

STATEMENT OF THE C A SE....................................................................... 3

STATEMENT OF THE FACTS .....................................................

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

ARGUMENT .....................................................................................

I STANDARD OF REVIEW .............................................................
H THE DISTRICT COURT MADE NUMEROUS SIGNIFICANT 

ERRORS OF LAW IN FINDING UNITARY STATUS .............

A CMS HAS NOT ELIMINATED THE VESTIGES OF
DISCRIMINATION IN STUDENT ASSIGNMENT......

1. The Martin Trial Involved Unitary Status ................

2. Overcrowding Was A Constitutional Concern ........

3. Consideration of White Flight In Siting
Decisions Was Unlawful.............................................

4. Transportation Is A Constitutional C oncern.............

5. The Trial Court Wrongfully Minimized The Burden
Of Proof And Made Clearly Erroneous Factual 
Findings As To Siting .................................................

i



B.

C.

D.

6. The Evidence At Trial On The Four Martin 
Requirements Demonstrates That CMS Has Not 
Remedied Continuing Effects Of The Prior
De Jure Segregation ..............................................................26

a. School Siting And Transportation........................... 26

b. Location Of Earliest Primary Grades...................... 28

c. Monitoring Transfers...............................................28

7. The Failure To Properly And Adequately Address
Martin Fatally Impacts The Court’s Analysis Of 
Student Assignment .............................................................. 31

a. Level Of Compliance ...............................................31

b. Demographics .......................................................... 32

8. The Court Erred By Failing To Evaluate The 
Efficacy Of The Board’s Desegregation
Strategies................................................................................36

THE COURT’S CONCLUSION THAT CMS HAD 
ATTAINED UNITARY STATUS AS TO RESOURCES 
AND FACILITIES IS CLEARLY ERRONEOUS......... ..............38

1. Burden of P roof.....................................................................39

2. The Prior Orders ..................................................    40

3. Present Disparities Are Clearly Vestiges Of
Segregation ........................................................................... 41

4. Partial Unitary Status ........................................................... 42

5. The Court’s Finding That Facilities And Resources
Are Equal Is Clearly Erroneous ..........................................43

THE COURT’S CONCLUSION THAT CMS HAD 
ATTAINED UNITARY STATUS AS TO FACULTY IS 
CLEARLY ERRONEOUS .............................................................. 45

INEQUITIES IN THE QUALITY OF EDUCATION 
PREVENT A UNITARY STATUS FINDING .............................48

3



ni. ................ ........................................THE MAGNET PROGRAM
IV ..............THE INJUNCTION WAS UNAUTHORIZED BY LAW AND

J Z ' Z Z .........................................................UNSUPPORTED BY FACT
CONCLUSION.............................................................................................. 53

48

49

4



TABLE OF CASES AND AUTHORITIES

Page

Cases

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).................................................. 52

Board o f Education v. Dowell, 498U.S. 237 (1991)...............................................  18, 19, 36

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

Coalition to Save Our Children v. State Bd. ofEduc., a ff’d,
90 F.3d 752 (3rd Cir. 1996)..........................................................................................39, 40

Coalition to Save Our Children v. State Bd. ofEduc., 901 F.Supp 784 (D. Del. 1995),.. 32

Columbus Bd. ofEduc. v. Penick, 443 U.S. 449, n,13 (1979)............................................  33

Cuthbertson v. Charlotte Mecklenburg Bd. ofEduc., No. 1974, Slip Op. (1973), 535 F.2d 
1249 (4th Cir. 1976); cert, denied., 429 U.S. 831 (1976)................................................5

Dayton Bd. ofEduc. v. Brinkman, 443 U.S. 526 (1979)............................................... . 33

Freeman v. Pitts, 503 U.S. 467 (1992)..........................................................................passim

Green v. New Kent County Board o f Education, 391 U.S. 430 (1968)..................... passim

In re Brice, 188 F.3d 576, 577 (4th Cir. 1999 .................................................................... 18

Jenkins v. Missouri, 122 F.3d. 588 (8th Cir. 1997)...............................................................40

Keyes v. School Dist. No. 1, Denver, 413 US 189, 201 (1973)...........................................22

Manning v. School Board, 24 F.Supp.2d 1277 (M.D.Fla. 1998)........................................32

Martin v. Charlotte Mecklenburg Bd. OfEduc., 475 F.Supp. 1318 (1979)..............passim

Martin v. Charlotte-Mecklenburg Bd. ofEduc., 626 F.2d 1165 (4* Cir. 1980), cert.
denied, 450 U.S. 1041 (1981)..............................................................................................5

Miller v. Johnson, 515 U.S. 900 (1995)................................................................................  52

Swann v. Charlotte-Mecklenburg Bd. ofEduc., No. 1974 Slip Op.,
April 17, 1980............................................................. ..................................................  5, 10

5



Raso v. Lago, 135 F.3rd 1+1 (1st Cir. 1998)...........................................................................  52

Riddick v. School Bd. o f Norfolk, 784 F.2d 521, 528-29 (4lh Cir. 1986)...................... 23, 35

School Bd. v. Baliles, 829 F.2d. 1308 (4th Cir. 1987).................................................... 39, 42

Shaw v. Reno, 509 U.S. 630 (1993)....................................................................................... 52

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 243 F.Supp. 667 (W.D.N.C. 1965)....  3, 6

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

Swann v. Charlotte-Mecklenburg Bd. ofEduc.,
306 F. Supp. 1291 (W.D.N.C.1969)............................................................................  7, 46

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 306 F. Supp. 1299 (W.D.N.C. 1969)...... 3

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 311 F.Supp. 265 (W.D.N.C. 1970)......4, 7

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 318 F.Supp. 786 (W.D.N.C. 1970)..........4

Swann v. Charlotte-Mecklenburg Bd. ofEduc.,
328 F. Supp. 1346 (W.D.N.C.1971)......................................... ............................... 10, 24

Swann v. Charlotte-Mecklenburg Bd. ofEduc.,
334 F.Supp. 623 (W.D.N.C. 1971)..............................................................................4, 24

Swann v. Charlotte-Mecklenburg Bd. ofEduc.,
362 F.Supp. 1223 (W.D.N.C. 1973)..........................................................................passim

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 369 F.2d 29 (4th Cir. 1966)...................... 3

Swann v. Charlotte-Mecklenburg Bd. ofEduc.,
379 F.Supp. 1102 (W.D.N.C. 1974)........................................................................ 4, 8,28

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 402 U.S. 1 (W.D.N.C.1971)..passim

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 453 F.2d 1377 (4th Cir. 1972)......... 4

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 66 F.R.D. 483 (W.D.N.C. 1975)... 41

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 67 F.R.D. 648 (W.D.N.C. 1975)..........4, 9

6



Swann v. Charlotte-Meckienburg Bd. ofEduc., , No. 1974,
Slip Op., (April 3, 1974)........................................................................................................... 4

Tuttle v. Arlington County Schools, 195 F.3d 698 (4th Cir. 1999)................................  51

U.S. v. City o f  Yonkers, 181 F.3d. 301 (2nd Cir. 1999).........................................................42

United States v. Board o f Public Instr. o f St. Lucie County,
977 F.Supp. 1202 (S.D. Fla. 1997)...................................................................................  37

United States v. City o f  Yonkers, 833 F.Supp. 214, n.3 (S.D.N.Y. 1993).......................... 40

United States v. Scotland Neck Bd. ofEduc., 407 U.S. 484 (1972)................................... 24

United States v. State o f Georgia, Troup County,
171 F.3d. 1344 (11th Cir. 1999).... ......................................................................... 6, 37, 43

United Stated v. Unified School Dist. No. 500, Kansas Citv,
974 F.Supp. 1367 (D. Kan. 1977)..................................' .................................................42

Vaughns v. Board o f Education o f Prince Georges County,
758 F.2d 983 (4th Cir. 1985).......................................................................................  18, 48

Statutes

28 U.S.C. § 1291......................................     1

28 U.S.C. § 1294......................................................................................................................  1

28 U.S.C. § 1331......................................................................................................................... 1

28 U.S.C. § 1343.........................................................................................................................1

7



JURISDICTIONAL STATEMENT

The district court obtained jurisdiction over this action, which seeks to redress 

deprivations of rights secured by the Constitution and statutes of the United States, 

pursuant to 28 U.S.C. § 1331 and 1343. This appeal is from a final order and judgment 

entered on September 9, 1999. The appeal was filed on October 7, 1999. This court has 

jurisdiction to determine the appeal pursuant to 28 U.S.C. § 1291 and 1294.

8



ISSUES PRESENTED

DID THE DISTRICT COURT COMMIT ERRORS OF LAW AND 

FACT IN DETERMINING THAT CMS HAD OBTAINED UNITARY 

STATUS AND IN DISSOLVING THE PRIOR INJUNCTIVE ORDER 

OF THE COURT1?

DID THE DISTRICT COURT ERR IN DETERMINING THAT THE 

CMS MAGNET SCHOOL ADMISSIONS PROCESS VIOLATED THE 

RIGHTS OF THE INTERVENORS?

DID THE DISTRICT COURT ERR. IN ENJOINING CMS FROM 

ASSIGNING CHILDREN TO SCHOOLS OR ALLOCATING 

EDUCATIONAL OPPORTUNITIES AND BENEFITS BASED ON 

ANY FACTOR WHICH TAKES RACE INTO ACCOUNT?

9



STATEMENT OF THE CASE

This historic case originated with a lawsuit filed in 1965 by black parents1 seeking 

an end to the long-standing operation of racially segregated schools by the Charlotte- 

Mecklenburg Schools (“CMS” or “the Board”). The tnal court found that CMS had no 

affirmative legal duty to draw attendance zones that would desegregate schools, but that 

its policy on teacher assignment was inadequate. Swann v. Charlotte-Mecklenburg Bd. o f 

Educ., 243 F.Supp. 667 (W.D.N.C. 1965).2 This court affirmed. 369 F.2d 29 (4th Cir. 

1966).

In 1968, the Swann Plaintiffs sought further relief pursuant to the Supreme 

Court’s decision in Green v. New Kent County Board o f Education, 391 U.S. 430 (1968). 

The district court found the schools unlawfully segregated and ordered CMS to devise 

plans to desegregate students and faculty. 300 F.Supp. 1358. (1969). In August 1969, 

the court approved “with great reluctance,” for one year only, a plan closing seven black 

schools and busing the students to outlying white schools. 306 F. Supp. 1291 (1969). On 

November 7 and December 1, 1969, the court ordered CMS to devise a constitutional 

plan for implementation beginning in 1970. 306 F. Supp. 1299 (1969).

1 The original plaintiffs have been known historically as the “Swann
Plaintiffs.” This appellation is used even though Terry Belk and Dwayne Collins have 
joined this litigation as representative plaintiffs.

2 The citations to the many decisions in Swann from 1965 to 1975 carried 
the same case caption. The Swann Plaintiffs do not repeat the case name, or the 
“W.D.N.C.” reference in the citation, and cite those cases with the publication reference
and year.

10



In February, 1970, finding CMS in default of its obligations, the court ordered 

implementation of a plan for elementary schools and accepted the system’s secondary 

school plan with some modifications. 311 F.Supp. 265 (1970). On remand from this 

Court, 431 F.2d 138 (4th Cir. 1970), the district court found that the plan was reasonable. 

318 F.Supp. 786 (1970). The Supreme Court affirmed. 402 U.S. 1 (1971).

CMS immediately submitted a plan which the district court rejected. It then 

submitted another plan which the court accepted with certain modifications. 328 F. Supp. 

1346 at 1349-50 (1971). This Court again affirmed. 453 F.2d 1377 (4th Cir. 1972).

The Swann Plaintiffs moved for relief alleging that CMS’s actions were restoring 

segregation. A group of white families moved to intervene, alleging that CMS had 

exempted wealthier whites in southeast Charlotte from the plan. The court found merit in 

both positions, but declined court intervention “for now, at least.” 334 F.Supp. 623, 626 

(1971).

The Swann Plaintiffs sought further relief in 1973. The court found that CMS still 

had not met the requirements of equal protection and ordered it to devise a new plan. 362 

F. Supp. 1223 (1973). In April, 1974, the court disapproved the proposed plan and 

directed CMS to develop a plan in cooperation with a volunteer Citizens Advisory Group 

(“CAG”). {Swann, No. 1974, Slip Opinion at p. 3) (April 3, 1974). The court approved 

the guidelines developed by CMS and CAG on “the express assumption and condition 

that the board of education will constructively implement and follow” them. 379 F.Supp. 

1102, 1103 (1974).

In July, 1975, noting that “continuing problems remained,” the court placed the

case on inactive status, emphasizing the “continuing effect” of its many orders. 67 F.R.D.
11



648, 649 (1975). The court also dismissed a lawsuit filed in 1973 by a group ot white 

families challenging the continued use of race in student assignment. Cuthbertson v. 

Charlotte Mecklenburg Bd. ofEduc., No. 1974, Slip Op. (1973). (See, Martin v.

Charlotte Mecklenburg Bd. OfEduc., 475 F.Supp. 1318, 1321 (1979) discussing 

Cuthbertson.) This Court affirmed per curiam. 535 F.2d 1249 (4th Cir.), cert, denied,

429 U.S. 831 (1976).

In 1978, another group of white parents again challenged the Board’s assignment 

plan as unconstitutional, Martin, supra. The Swann Plaintiffs intervened. The court 

concluded that CMS had failed to abide by the order in: (1) siting of new schools;

(2) placing primary grades in black communities; (3) monitoring transfers; and 

(4) placing unequal burdens on black students. Id., at 1328-40. The court also held that, 

independent of its orders, CMS had the discretion to consider race when assigning 

students to maintain desegregated schools. Id., at M45. This Court affirmed. 626 F.2d 

1165 (4th Cir. 1980), cert, denied, 450 U.S. 1041 (1981).

In 1980 the court modified the Swann orders to permit operation of elementary 

schools that were 50% or more black, but not more then 15% above the system average. 

(No. 1974 slip op., April 17, 1980.)

In September 1997, William Capacchione, a white parent, filed suit challenging

the use of race in magnet school admissions. JA'I/69. The Swann Plaintiffs moved to

reopen Swann on the ground that CMS was not in compliance with the court orders, and

moved to consolidate the proceedings. JA/I/77. In March 1998, the court denied a Board

motion to dismiss Capacchione, reactivated Swann and consolidated the two cases,

finding that unitary status was the common question between them. JA/I/87. In April,
12



1998, another group of white parents intervened as plaintiffs in the consolidated action. 

JA/I/125.

After a two month trial, the court issued judgment on September 9, 1999, 

declaring the school system unitary in all respects, finding that the magnet school 

admissions process was unconstitutional, and enjoining the Board, beginning in the 

2000-01 school year, from “assigning children to schools or allocating educational 

opportunities or 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 

(W.D.N.C. 1999). JA/II/850.

Both the Swann Plaintiffs and CMS appealed. JA/III/968, 1272. The trial court 

denied their stay requests. This Court granted both motions for a stay.

STATEMENT OF THE FACTS3

Before 1965, CMS operated a racially segregated school system. The original 

1965 Swann action challenged an assignment plan that established racially segregated 

neighborhood school zones and freedom of choice transfers. The district court upheld the 

plan. 243 F.Supp. 667 (1965).

After the lawsuit CMS closed sixteen all-black or predominantly black schools.

. By 1968, when the Swann Plaintiffs filed a motion for further relief, 

approximately two-thirds of the system's black students still attended all-black schools,

3 The facts are too lengthy to be set forth here in full detail. Additional facts 
appear in the Argument section. References are made to the more detailed Proposed 
Findings of Fact submitted by the Swann Plaintiffs and CMS. Important historical 
findings are included in orders entered from 1969 through 1980.

13



staffed almost exclusively by black teachers. One-fourth of the white students attended

all-white schools and another third attended schools with negligible black enrollment.

300 F.Supp. 1358, 1360 (1969). The court found that CMS was operating an

unconstitutionally segregated school system. Id. at 1366.

The court ordered that CMS submit a plan for the effective desegregation of the

schools. Despite the closure of seven more black schools, the court accepted a

preliminary plan of desegregation to be completed by the fall of 1970. The court noted

the tremendous impact of segregation on the quality of education for children:

[Segregation in Mecklenburg County has produced its inevitable results in the 
retarded educational achievement and capacity of segregated school children. It 
cannot be explained solely in terms of cultural, racial or family background
without honestly facing the impact of segregation.......  It is painfully apparent
that ‘quality education’ cannot live in a segregated school; segregation itself is the 
greatest barrier to quality education.

306 F.Supp. 1291, 1296-1297 (emphasis in original). The court gave CMS wide 

discretion to choose its methods, but cautioned that the plan should not “put the burden of 

desegregation primarily upon one race.” Id.

In a series of orders over the next twelve months, the court became increasingly 

critical of the Board’s failure to adopt an acceptable plan. See, Swann, 300 F.Supp. 1358, 

1381 (W.D.N.C. 1969) (Board denies any duty to desegregate); and 306 F.Supp. 1291 

(1969) (Board’s plan showed no likelihood or promise of integrating schools).

On February 5, 1970, the court found CMS again in default and approved a plan 

developed largely by a court-appointed consultant. 311 F.Supp. 265 (1970). The court’s 

plan provided that each school would have roughly the same ratio of black and white 

faculty and students. The court further provided that the competence and experience of

14



teachers in formerly black schools should not be inferior to those in formerly white 

schools; that CMS should prevent any school from becoming racially identifiable; that 

transfers should be monitored to avoid segregation; and that CMS should have a 

continuing program to maintain “each school and each faculty in a condition of 

desegregation.” The court’s order met with much resistance by CMS and the white 

community. Id. at 268-69.

The Supreme Court affirmed the district court. 402 U.S. 1 (1971). On the 

“central” issue of student assignment, the court found racial ratios an appropriate starting 

point, that one race schools should be closely scrutinized, that courts have authority to 

draw remedial attendance zones, and courts could order transportation as a remedy. It 

found age the most significant factor in that regard. Id. at 25-31.

Two years later, the trial court found that CMS policies and actions, such as the 

use of mobile classrooms to expand enrollment in white areas and the failure to monitor 

transfers, were causing resegregation. Schools with large black populations were labeled 

inferior and became unstable without court intervention, and the affluent white 

community was largely exempt from the desegregation orders. 362 F.Supp. 1223, 1237 

(1973).

The court then approved the system’s plan in July 1974, but only upon condition

that it implement guidelines and policies developed in collaboration with a Citizens

Advisory Group. 379 F.Supp. 1102 at 1103-1104 (1974). The mandatory guidelines in

the 1974 plan included a student assignment proposal that made every school in the

system at least 20% black. (The district population was then approaching 35% black. SX

80, JA/XXII/10628). The guidelines required CMS to: adopt transfer policies that would
15



maintain and stabilize an integrated system; appropriately integrate its optional (now 

magnet) schools; equitably distribute the burdens of busing; place primary' grades and 

kindergartens in black communities; monitor trends in the racial composition of schools; 

and plan school “location, construction and closing so as to simplify, rather than 

complicate, desegregation.” 379 F.Supp., at 1103-04. Cognizant that continuing 

problems remained”, the court expected that CMS would implement these guidelines and 

placed the case on inactive status in July, 1975. 67 F.R.D. 648, 649.

In 1979, the court found in the Martin case that CMS had failed to implement the 

1974 guidelines and policies in four specific areas: (1) location of new schools; (2) 

placement of kindergarten and primary grades in black communities; (3) monitoring 

transfer policies; and (4) alleviating the unequal burdens placed on black students. The 

court found each of these areas “interrelated with and not separable from” student 

assignment. Martin, supra at 1328-35.

The Board’s failure to comply has continued throughout the 1980’s and 1990’s, 

CMS sought to implement some new policies in 1992 to remedy these failures. These 

changes actually exacerbated these defects, leaving a gaping hole in the Board’s plan of 

desegregation and preventing CMS from achieving a stable and fair program of student 

assignment.

Racial Imbalance in CMS

The Board’s failure to implement the 1974 guidelines has been a major factor in

the increase in racially identifiable schools. The standard set by the court in 1980 for

identifying racially identifiable schools is the system-wide black ratio plus 15% points for

elementary schools, Swann, No. 1974, Slip Op. W.D.N.C. April 17, 1980), and greater
16



than 50% for secondary schools. 328 F.Supp. at 349. The original Swann court 

expressed concern about identifiably white schools. At trial the Swann Plaintiffs urged 

the court to adopt a minus 15% lower limit which was consistent with the 1974 plan.

Using the original guidelines for identifying black schools and a minus 15% 

standard for identifying white schools, the number of racially identifiable regular schools 

in CMS has risen from four in 1978-79, to thirty in 1991-92 and forty-two in 1998-99.

DX 47, JA/XXVII/13095; DX 291, JA/XXXI/15431 .

Under this standard, CMS operated approximately one-third of its regular schools, 

attended by over 33,000 students in 1998-99, as racially ldentiiiable. Several nominally 

“balanced” schools in fact contain two or more independent programs, which, when 

considered separately, are racially identifiable. Stevens Report, pp. 9, 11, JA/XX/9577 - 

79. When students in the racially identifiable regular schools, special schools and schools 

comprised of segregated programs are totaled, over 39,000 students attended racially 

identifiable schools or programs in the 1998-99 school y ear-approximately 40% o f the 

district’s students. D X47, JA/XXVII/13095 -  13099; Foster Report, D X 5 at Att. C, pp. 

43-47, JA/XXIII/11570 -  75; Defendants ’ Findings 81, p. 22, JA/II/529. The number 

of black children attending a racially identifiable black school or a racially identifiable 

segregated program exceeded 14,000 in 1998-99, representing over one-third of the black 

students in CMS. Defendants’ Findings, 1fy_7 p. 22, JA/n/529. Thus, in 1998-99, there 

are virtually the same number of black students attending racially identifiable black 

schools as in 1969. See Swann, 300 F.Supp. 1358 at 1360 (1969).

School Siting.

The total enrollment of black students in CMS increased over twenty years at a
17



marginally greater rate overall than that of whites. Nonetheless, CMS continued to build 

schools in white neighborhoods and transport black students to those schools, placing an 

ever-increasing burden of transportation upon black students. Twenty-eight schools have 

been built in the district since 1980. Becoates, T. 5/21, JA/XII/5838; DX 253, 266, 

JA/XXXI/15404, 15415. Twenty five of these schools are located in predominantly 

white areas; two are located in integrated areas; and only one, a magnet, is located in a 

predominantly black area. Becoates, 5/21, JA/XII/5838; Foster, T. 6/9, JA/XV/7418.

Approximately two-thirds of these new schools either were desegregated by using 

black satellites (12 of 27) (Foster, 6/9, JA/XV/7422, or opened as racially identifiable 

schools (9 of 27), Id..,. 7419. McAlpine and McKee Road Elementary Schools, for 

example, were built in white residential areas in Southeast Charlotte, placing a huge 

transportation burden on the black children who were “satellited"’ to those schools (i.e. 

bused from non-contiguous attendance zones). When satellites were discontinued 

following implementation of the magnet program in the 1990’s, those schools became 

95% white. D X 47, JA/XXVII/13096. Newer schools at Elizabeth Lane and Hawks 

Ridge Elementary Schools are also more than 95% white. As a result of these 

construction and siting practices, there are 7,000 more elementary students than available 

seats in the black central city. Becoates 5/20, JA/XII/5816.

Not only did CMS fail to follow the court’s siting guidelines; it failed to follow its

own policy. In 1992, CMS adopted a resolution that schools should not be located in

census areas with less than a 10% black population. DX 66, JA/XXVII/13249; Wallace,

5/18, JA/XI/5332 -  33; Griffin 6/18 at 119, JA/XVIII/8982. That policy has not been

followed by CMS. DX 110, JA/XXVIII/13719; Wallace, 5/18, JA/XI/5332 - 33; DX
18



188, JA/XXIX/14498; Becomes, 5/20, JA/XII/5811 - 14.

These decisions also influenced racial residential development patterns in the 

county, encouraging growth in the predominantly white southern area o f the county and 

the predominantly white far northern area of the county. DX 99, JA/XXVII/13503;

Trent, 5/27, JA/XIII/6902; S. Smith, 5/17, JA/XI/5121 (building permits after McKee 

announcement); Norman, 5/17, JA/X/4971 - 73 (residential development after McAlpine 

announcement).

Transportation Burden.

The Board’s siting decisions and the de-painng of schools under the magnet 

expansion increased the transportation burden which has continued to fall heaviest upon 

black students.

At the time of the Martin decision, there were few if any kindergarten and

primary grades in predominantly black areas, so the youngest black students were bused

out of their neighborhoods to distant white neighborhoods. Throughout the 1980’s and

90’s, CMS continued to locate K-3 schools in white communities and build new schools

in predominantly white suburbs. The system’s desegregation strategies moved from

pairings to satellite attendance zones, increasing the transportation burden on black

children, particularly the youngest. Stevenson, 5/12, JA/IX/4410; Houk, 5/14,

JA/X/4776; Schiller, 5/3, JA/VIII/3867; Armor, 4/29, JA/VIII/3586 - 87. By the 1998-

99 school year, one-race satellites had become the predominant desegregation tool.

Ninety-one percent of the satellite areas (63 of 69) and ninety-one percent of the students

assigned to satellites (14,957 of 16,409) were from predominantly black neighborhoods.

JA/XXIII/11512 - 11516 (Table 7). For many black students, this meant satelliting for
19



their entire school career.

The burden borne by black children was widely known and sometimes openly 

discussed. Mr. Calvin Wallace, a Regional Assistant Superintendent, acknowledged that 

senior staff and Board members commented that younger black students could be bused 

for a longer period than their white counterparts in the suburbs because the black children 

were more “street-wise.” Wallace, 5/18, JA/XI/5283 - 85.

Absence of Kindergarten and Primary Grades in Black Communities.

The 1974 guidelines called for the immediate placement of kindergarten and 

primary grades in black communities. Yet no kindergarten-or primary grade outside of 

the magnet program has been placed in inner city black communities since the Martin 

order.

CMS’s strategies of de-pairing and satelliting while locating schools in outlying 

white areas disregarded the clear requirement of the 1974 order that kindergarten and 

primary grades be placed in black communities. Even though there was an increase in the 

black school age population in the predominantly black communities, CMS responded to 

that growth by creating satellite attendance zones in the inner city and transporting 

students from these zones to the white schools in outlying areas. These policies and 

practices must be contrasted with the manner in which CMS responded to growth in 

white areas. CMS has used mobile classrooms extensively at the nearly all-white McKee 

Road Elementary School and South Charlotte Middle Schools, DX-265, JA/XXXI/15414, 

to expand capacity rather than assign these students to nearby underutilized integrated 

schools.

20



Failure To Monitor Transfers.

CMS failed to monitor the racial composition of students transferring out of 

predominantly black non-magnet schools to magnet programs. This failure has led to an 

increased segregation in the sending schools. See, e.g., Stevens Report, discussing 

segregative effects o f  transfers on non-magnets, JA/XX/9584 - 88. The number of 

students in segregated schools increased about 50% system-wide and 200% at the high 

school level from 1991-92 to 1998-99. Stevens Report, p. 21. Id., at 9589. The racial 

pattern in the transfers is stark: the “blacker” the school, the higher the number of whites 

transferring out to magnets. See, Swann Plaintiffs ’ Proposed Findings, %282 with Table 

showing percentage o f whites leaving each Middle and High School. JA/I/435.

This failure of CMS to monitor transfers, primarily in the magnet program, was 

not limited to a negative impact on the racial balance of the schools where whites 

transferred out. It had the addi tional impact of depriving those schools of student leaders 

and active parents. This resulted in schools having inferior academic programs with 

fewer course offerings, lower test scores and much higher teacher turnover. In short, not 

only did the racial makeup of the schools suffer, the academic program of the schools 

suffered as well.

Demographics

The dramatic increase in the number of racially identifiable schools cannot be

attributed to demographics alone. Growth trends in the county have been fairly consistent

from the 1960’s through the present. Lord 6/11 at 7 - 9, 127-128, JA/XVI/7765 -  67,

7785 - 7787. The central area of the city has been predominantly black throughout this

period, although its population density has declined over time. Lord 6/11, JAlid., 7788,
21



7888 - 89. The county’s other areas have remained predominantly white. Lord 6/11,

JAlid., 7780 -  82, 7786. The percentage of black residents in Mecklenburg County has 

stayed almost constant, increasing only two percent from 24% to 26% from 1976 to 1996. 

Lord Report, p. 2. JA/XXV/12108. The percentage of black students in CMS has 

changed only slightly, from 38% to 42% since the late 1970’s. Since 1970, Mecklenburg 

County has become more residentially integrated. The dissimilarity index, which 

measures the degree of racial segregation, dropped from .75 in 1970 to .59 in 1990, the 

last census date for which the index could be computed. Expert demographers for both 

the Plaintiff Intervenors and the defendants each testified that the reduction in the level of 

residential segregation in Mecklenburg County should make the schools easier to 

desegregate. Clark 4/19, JA/IV/1585; Lord 6/11, JA/XVI/7786; 7789 -  90; 7888. 

Demographics simply cannot account for the dramatic increase in racially identifiable 

schools at a time when residential patterns have become more desegregated.

After all is said and done, practices and policies of CMS have been a significant 

contributing factor in creating a school system which continues to be defined by race.

22



SUMMARY OF ARGUMENT

I. The judgment below declaring the Charlotte-Mecklenburg School System 

unitary is legally and factually flawed. The evidence shows that over the past twenty 

five years CMS has failed to comply with four explicit directives in the desegregation 

orders in this case which the original trial court found were interrelated with and 

inseparable from the constitutional process of student assignment. The court below 

makes four distinct legal errors in finding that CMS had complied with these outstanding 

orders, including an erroneous depiction of the nature and import of the 1979 proceedings 

in Martin, two misreadings of prior orders about the overcrowding of predominately 

white schools and the burdens of transportation, and an invalid presumption that CMS 

properly took white flight into account in its assignment plans.

These initial legal errors led the court into two additional errors of law. The court 

failed to analyze the contributing impact upon increasing segregation in pupil assignment 

of the system’s noncompliance, attributing all of those ills to demographic change. That 

error led the court to abrogate its duty in a unitary status case to consider the 

practicability of other desegregation methods available to remedy persistent vestiges of 

segregation in student assignment. This combination of legal errors requires reversal of 

the court’s judgment as to student assignment.

The court also errs in its analysis of resources and facilities, shifting of the burden

of proof away from the party seeking unitary status, and requiring the Swann Plaintiffs to

prove that present intentional discrimination caused current disparities in resources. This

legal error stems from a misreading of the prior Swann orders and of the law governing

the allocation of the burden of proof in school desegregation cases. Under a proper
23



analysis, there was substantial evidence at trial about persistent vestiges of segregation in 

this area.

As to faculty assignment, the court erred both in the standard it selected for 

assessing faculty balance and in omitting any discussion of the evidence on faculty 

assignments for 1998-99. The data omitted from the opinion shows that one-third of 

CMS schools had racially identifiable faculty, and that predominately black schools had 

more than twice as many probationary and first-year teachers as did predominately white 

schools.

II. The court below ignored the law of this case in concluding that the 

constitutional infirmity of the system’s use of race in assigning pupils to its magnet 

school programs was the violation of the white Intervenors’ rights.

III. This error as to the constitutionality of the magnet program led the court to 

impose an unlawful, wide-ranging injunction prohibiting CMS from taking race into 

account in any fashion in the future operation of the schools, when that issue was not 

litigated at trial, was not ripe for determination, and was contrary' to the law of this case

and of this circuit.



ARGUMENT

I. STANDARD OF REVIEW.

The order under review presents the threshold issue of whether CMS has obtained 

“unitary status,” a determination reached by assessing various aspects of school 

operations first identified in Green v. County School Board o f New Kent County, 391 

U.S. 430 (1968). Ordinarily unitary status is a fact driven inquiry where the “clearly 

erroneous” standard applies. Vaughns v. Bd. OfEduc. O f Prince George’s Co., 758 F.2d 

983 (4th Cir. 1985). However, the factual determinations in the opinion below turn on 

critical legal suppositions that present questions c f law for this Court to review de novo.

In re Brice, 188 F.3d 576, 577 (4th Cir. 1999). The legal issues include: (1) interpreting 

the prior orders of the case, (2) allocating the burden of proof and (3) determining what 

conditions constitute vestiges of segregation.

The fundamental inquiry in a unitary status hearing is whether a school system

has complied with the prior orders of the court. Board o f Education v. Dowell, 498 U.S.

237 (1991); Freeman v. Pitts, 503 U.S. 467 (1992). Any factual determination of

compliance with prior orders is also a question of law which depends on a correct legal

interpretation of those orders. The allocation of the burden of proof is also a legal

question. The trial court correctly noted that the Intervenors have the burden of proof on

the unitary  ̂status issue as the party moving to dissolve the Swann orders. 57 F.Supp.2d

at 243. The court reduced the Intervenor’s burden, however, and on the Green factor of

resources and facilities, shifted it to the Board and Swann Plaintiffs. This lowering and

shifting of the burden of proof are legal issues on review. Finally, a court in a unitary

status hearing must consider whether a school system has eliminated the vestiges of
25



segregation to the extent practicable. Dowell, Freeman. Thus, these three legal issues are 

reviewed de novo. To the extent that the Swann plaintiffs challenge discrete factual 

findings below, these challenges are reviewed under the clearly erroneous standard.

The remaining issues, whether the court erred in finding that CMS had violated 

the constitutional rights o f the Intervenors, and whether the court had the authority to 

enter its sweeping injunction, are issues of law subject to de novo review. Brice, supra.

II. THE DISTRICT COURT MADE NUMEROUS SIGNIFICANT ERRORS
OF LAW IN FINDING UNITARY STATUS.

A school desegregation decree seeks to convert a segregated school system into a 

“unitary system in which racial discrimination (is) eliminated root and branch.” Green, 

391 U.S. at 437-38. To determine whether a school system has attained “unitary'” status, 

a court looks at various facets o f its operation to determine whether the school district has 

complied fully with the prior orders of the court, eliminated the vestiges of segregation to 

the extent practicable, and shown to the group previously discriminated against its 

commitment to following the constitution. Freeman v. Pitts, 503 U.S. at 492 (1992). 4

4 In its discussion regarding the confidence of black citizens in future actions of 
the School Board, absent court supervision, the trial court concluded that there “has been 
no evidence of racial animus or discriminatory intent in any School Board actions during 
the thirty years that CMS has been under court order.” 57 F.Supp. 228, 283. This is a 
clearly erroneous finding given the repeated findings by the original Swann court of 
unconstitutional and continuing discrimination from 1969 through 1979. In light of this 
carte-blanche absolution of the Board’s previously determined unconstitutional conduct, 
this Court should scrutinize the decision below with extreme care.

26



This trial court’s consideration of the Green factors is factually and legally 

erroneous. The court makes distinct, fundamental errors o f law interpreting prior orders 

and case authority that infect its whole analysis of student assignment. The court engages 

in unprecedented burden shifting in the review of resources and facilities and in effect 

assumes that CMS had attained unitary status on this factor thirty years ago. Finally, in 

assessing faculty assignment and the ancillary issue of student achievement, the court 

ignores critical evidence.

A. CMS HAS NOT ELIMINATED THE VESTIGES OF 
DISCRIMINATION IN STUDENT ASSIGNMENT.

Assessing compliance with the prior student assignment orders in the case, the 

court erroneously focused on the levels of racial balance in the schools without 

addressing the express finding of the trial court in 1979 -  a time when its schools were 

nearly 100% balanced racially -  that CMS was not in compliance with the prior Swann 

orders or the constitution regarding assignment of black students.

The 1979 Martin order sets out four specific student assignment compliance areas 

that CMS had to remedy to become unitary: (1) siting school facilities in locations that 

facilitated desegregation; (2) immediately placing early primary grades in black 

neighborhoods; (3) monitoring transfers to prevent resegregation; and (4) equitably 

distributing the burdens of transportation. 475 F.Supp. 129-140. The Martin court found 

these four areas interrelated with and inseparable from the process of student assignment. 

Any assessment of compliance with prior desegregation orders must take into account 

M artin’s express findings of non-compliance. The number of schools in balance is 

neither the sole nor dispositive issue.

27



The court minimized the Martin order by stating that it must be read “in context,” 

a “context” mistakenly premised on four unsupportable statements of law, 57 F.Supp.2d 

at 250. The court declared first that Martin is not significant because it is not about 

unitary status. Then, in finding that CMS has complied with Martin, the court twice 

misread prior Swann orders -  concluding that they never found equal protection concerns 

in the overcrowding of white schools or the inequitable burdens of transportation.

Finally, the court erroneously determined that while CMS was under court order to 

desegregate, it properly considered white flight when planning school siting and student 

assignment. This last assertion, while containing a correct finding of fact as to the 

unlawful dynamic that has led to increased segregation in CMS, concluded with an 

egregious misstatement of the law regarding white flight. These four legal errors led to 

further errors in the court’s analysis of demographics, where the court failed to recognize 

that the policies flowing from the Board’s non-compliance with Martin have contributed 

significantly to the present imbalances in the schools. The court’s mistakes regarding 

Martin also led it to err as a matter of law in refusing to consider the practicability of 

other desegregation methods to address persistent and growing vestiges of segregation in 

student assignment.

1. The Martin Trial Involved Unitary Status.

The court downplayed M artin’s relevance by asserting that it “was not a unitary 

status hearing.” Id. While making this assertion, the court ignored the following:

(a) the Martin plaintiffs alleged specifically in their complaint that CMS had been 

“unitary” since adopting the 1974 plan and that the Board could no longer consider race

28



in assigning students; (b) the Swann Plaintiffs intervened in the case and presented 

“exhibits and lengthy testimony” that CMS was not unitary because it had not complied 

with prior orders; and (c) the Swann judge heard the evidence, “re-examined and 

considered hundreds of pages of findings of facts and orders” from his original Swann 

orders and concluded that CMS had yet to comply. 475 F.Supp. 1321-22.

While Martin may not technically have been designated a “unitary status 

hearing,” the evidence in that case focused on unitary status. The Swann plaintiffs 

argued, and the court concluded, that CMS had not complied with Swann ’s orders. The 

court then set out the specific steps CMS had to take on student assignment to comply 

with Swann and obtain unitary status. The court’s assertion that Martin is inapposite 

because it did not involve unitary status is erroneous; Martin provides the very 

framework for the unitary status determination.

2. Overcrowding Was A Constitutional Concern.

The court made two legal errors in asserting that CMS has complied with any

requirements of Martin regarding selection of school sites. First, the court misread the

prior orders in finding that the overcrowding of white schools was never a constitutional

concern in Swann. The court declared, for example, that using mobile classrooms to

over-enroll predominately white schools like McKee and South Charlotte was considered

a practical problem under the prior orders, not a constitutional issue. To support the

assertion, the court cited an October 1970 memorandum order appended to a 1971 Swann

decision. 57 F.Supp. 2d at 252, citing 334 F.Supp at 631. However, the actual 1971 order

expressly held that the court would “scrutinize” under the constitution the use of mobile

classrooms to expand enrollment at white schools, and declare the policy unlawful if it
29



“causes or restores segregation.” 334 F.Supp at 626-27. The court’s next Swann order 

declared just that: the use of mobile classrooms to increase accommodations at white 

schools was unlawfully discriminatory and a basis for requiring the Board to present a 

new student assignment plan for 1974. 363 F.Supp. at 1233.

Not only did the court below misread Swann, but it also failed to recognize that 

the Supreme Court in 1973 affirmed a similar finding about mobile classrooms in Keyes 

v. School Dist. No. 1, Denver, 413 US 189, 201 (1973). Clearly this practice had 

constitutional dimensions. The trial court’s failure to explicate the prior Swann orders 

and a Supreme Court decision on point presents clear legal error in its analysis.

3. Consideration of White Flight In Siting Decisions Was 
Unlawful.

The court made a second error in finding that the Board had complied with Martin 

in siting schools. Touching one of the core dynamics in this litigation, the court found 

correctly that CMS had weighed concerns about white flight in planning where to site its 

schools, a practice the court deemed proper and lawful. 55 F.Supp.2d at 253. While 

factually accurate, the legal analysis is fundamentally wrong.

The court cited Riddick v. School Bd. o f  Norfolk, 784 F.2d 521, 528-29 (4th Cir. 

1986), an important case in unitary status jurisprudence, for the proposition that a school 

system under a desegregation order may consider white flight. However, Riddick holds 

just the opposite: a school board under court order cannot consider white flight in 

meeting the court’s orders.

The Riddick decision examined a finding that white flight had been considered in 

the Norfolk, Virginia school system. The issue arose in a trial heard some nine years

30



a fter the declaration of unitary status. Approving the consideration of white flight in that 

case, this Court explained the important difference between a system under court order 

and one that already had been declared unitary. When a school system is under a 

desegregation order, as is CMS, “white flight cannot be used as a reason for failing” to 

comply with a desegregation order. Id. at 528 (quoting, United States v. Scotland Neck 

Bd. o f Educ., 407 U.S. 484 (1972))(emphasis added). A school system not under court 

order, on the other hand, may consider white flight. Id. at 529.

The trial court’s finding that CMS could consider white flight to justify its lack of 

compliance with Martin and the Swann orders was a fundamental legal error. That error 

cannot be a basis for finding compliance on student assignment. Rather, the finding that 

CMS considered white flight establishes a failure to comply with its court ordered 

obligations.

4. Transportation Is A Constitutional Concern.

The court made a fourth error of law in its effort to reconcile its view of M artin’s

requirement to balance transportation burdens with the enormous transportation burden

now placed on black students. As with the overcrowding issue, the court inappropriately

cites early Swann orders that suggested transportation burdens were a practical problem

and not an equal protection concern. 57 F.Supp.2d at 253, citing 328 F.Supp. at 1349

(1971) and 334 F.Supp. at 626 (1971). The court ignored later Swann orders that found

the transportation burdens on black children, particularly the youngest, to be “continuing

discrimination” by CMS that violated black students’ rights to equal protection. 362

F.Supp. at 1232. It disregarded the 1974 order that no child be satellited for all twelve

years of school (a practice now occurring) and that “[o]ut-busing assignments are to be
31



distributed as equally as possible and practical.” 379 F.Supp., at 1106. The court also 

failed to note the finding in 1979 that the unequal transportation burdens had not yet been 

addressed, in violation of the prior orders and the federal constitution. 475 F.Supp. 1338- 

40. Finally, it did not acknowledge that a number of black children are satellited for all 

thirteen years of their education, and that 91% of the satellites are in black 

neighborhoods, Foster Report, JA/XXIII/11512 -  11516 (“Table 7”). Ignoring these 

relevant facts, it concluded that “the current situation may be about the best CMS can 

do.” 57 F.Supp.2d at 253.

5. The Trial Court Wrongfully Minimized The Burden Of Proof 
And Made Clearly Erroneous Factual Findings As To Siting.

In addition to its explicit legal errors, the court reduced the Intervenors’ burden of 

proof, finding that Martin must be viewed “in a new light” because of the passage of 

time. 57 F.Supp.2d at 250. The court set out a series of “facts” that ameliorate the 

Board’s siting decisions, though these facts have limited value in proving compliance 

with the specific orders under which CMS was required to operate.

The court determined that the Board has considered diversity in selecting sites, 

since most of the schools it has built have been integrated. Id., at 251-52. This assertion 

begs the question. These new schools have been integrated by one-way busing of black 

students to schools in white areas -  a practice specifically condemned in prior orders. 

While the court also found that the Board adopted a rule in the early 1990’s to site new 

schools only in areas that are at least 10% black, it recognizes that this resolution was 

never followed. Id. The court found that 22 stand-alone schools have been “created.” Id. 

Only one of these schools (Hornet’s Nest) has been built since 1980, however, and nine

32



of the first ten supposedly “stand-alone” schools actually had satellites assigned to them. 

SX21, JA/XXI/10069. The court further found that satelliting white students into black 

areas would be impractical because of rush hour traffic, while ignoring the fact that 

thousands of white magnet students travel daily in this traffic pattern.

Finally, the court erroneously faulted the Swann Plaintiffs for not intervening in 

these siting decisions, claiming they “were the subject of public hearings, televised 

meetings, and ballot referenda.” 57 F.Supp.2d at 253. In fact, the decisions to purchase 

real estate for school construction are the most guarded and secret decisions that the 

Board makes, partly to protect itself in negotiations for sites. All of the meeting minutes 

about land-purchase decisions are from closed sessions, not the public sessions imagined 

by the court.

6. The Evidence At Trial On The Four Martin Requirements 
Demonstrates That CMS Has Not Remedied Continuing 
Effects Of The Prior De Jure Segregation,

The Intervenors failed to offer evidence that the Board met the four requirements 

addressed in Martin. The Swann Plaintiffs and CMS tendered evidence showing that the 

four areas which were a necessary component of the student assignment issue had not 

been remedied.

a. School Siting and Transportation. The evidence shows that after Swann

and Martin, the siting of schools continued to impede integration and put heavier burdens

on black students. From 1980 to 1998, black student enrollment grew by 12,000, white

enrollment by some 8,000. The Board responded to this growth by building almost all of

its new schools in white neighborhoods, and then transporting black students to those

schools. See, e.g. Lassiter, 4/20, JA/IV/1963 — 65. The Board built only one school (a
33



magnet) in a black census area out of 28 schools built after 1980. D X 266, 

JA/XXXI/15415. As a result of these siting decisions and the de-pairing o f schools, the 

transportation burden continues to fall heavily upon black students.

The magnet expansion as implemented by the Board worsened the transportation 

problem that the CMS magnet consultant had identified in 1992 and sought to remedy 

with his plan. D X 108, JA/XXVIII/13599. The number of black neighborhoods 

satellited one-way to schools in white areas rose dramatically in the 1990’s with the de­

pairing of schools under the magnet expansion. Though magnets finally brought some 

primary grades to the black community, a far greater number of black students, not 

accepted into the available magnet seats, went into mandatory assignments areas, or 

satellites, and were bused to the formerly paired white schools. D X 262-64, 

JA/XXXI/15411 - 13. These black students attended a satellite school until completion 

of the terminal grade there, a far more unbalanced burden than existed previously. By the 

1998-99 school year, one-way satellites had become the predominant desegregation tool: 

91% of the satellite areas and 91% of the students assigned to satellites'' were from 

predominantly black neighborhoods. Foster Report, Table 7, JA/XXIII/11512 - 11516. 

DX. 262-264. JA/XXXI/15411 -  13. Of the 3,317 non-black students satellited to school 

in 1998-99, only 1,199 lived in the six majority white satellite areas. Thus, almost two- 

thirds of the non-black students bused mandatorily are transported because they live in a

5 Calculated from Foster’s table 7 by dividing the total number of students in 
predominantly black satellite areas by the total number of students in all satellites. The 
numbers have increased from 1994-95, when 87% of the satellite areas, and 88.5% of the 
satellited students, were in black neighborhoods.



predominantly black neighborhood. This pattern is occurring in a system that has been 

under court direction to balance the transportation burden for over twenty years. For 

many black students, it means a satellite education for their entire school career, a 

practice the 1974 order expressly prohibited. 379 F.Supp. at 1106, Guideline VI.

b. Location of Earliest Primary Grades. The Intervenors did not contest 

that the Board has not located regular (non-magnet) early primary grades in a black area 

since Martin, another failure to comply with the 1974 order. 379 F.Supp. at 1106 

(Guideline VII); 475 F.Supp. at 1339. This failure has placed the burden of 

transportation on the very youngest black students in CMS, a violation of the prior orders 

and a concern of the Supreme Court in its Swann decision. 402 U.S. 1,31 (no 

consideration more important than age of students); 362 F.Supp. at 1232 (“virtually all of 

thq youngest black children” bused out of their neighborhoods); 475 F.Supp. 1338-40.

In contrast to extensive one-way satellites from black areas, CMS has used mobile 

classrooms to significantly expand the capacity of the nearly all-white McKee 

Elementary and South Charlotte Middle School, though seats are empty in reasonably 

proximate schools with significant black populations.6 D X 265, JA/XXXI/15414. 

Suggestions to reassign some of these students to under-utilized schools have been 

abandoned, not because they are impractical, but because they are politically unfeasible 

because of white parent objection.

6 The driving time from some parts of these assignment zones to the other schools 
with empty seats is not significantly longer than the travel time to McKee or South 
Charlotte. Beacoates, 5/21, JA/XII/5851.

35



c. Monitoring Transfers. Finally, the evidence at trial showed that the 

Board has not monitored magnet program transfers to avoid resegregation. Transfers 

from black non-magnet schools to the magnet has systematically increased segregation in 

those sending schools. See, e.g., Stevens Report, JA/XX/9584 -  88; Swann Findings 

^282, JA/I/435. Overall, the number of students in segregated schools increased 50% 

system-wide, and 200% in the high schools from 1991-92 to 1998-99. Stevens Report, p. 

21. 1 JA/XX/9589 The racial pattern in the transfers is obvious. D X 57,

JA/XXVII/13165 - 93; Swann Plaintiffs 'Proposed Findings, 11282 with Table. JA/I/435.

At the middle school level in 1998-99, over 30% of the assigned white students 

transferred to magnets from majority black middle schools. Id. Since the expansion of 

magnets in 1992-93, the percentage of black students at Ranson Middle School has risen 

from 44% to 65%. D X 47, JA/XXVII/13098. That change can be attributed to the 

transfer to magnets in 1998-99 by some 59% of the non-black students assigned to 

Ranson (443 students). D X 5 7, J A/XXVII/13188. Similarly, 40% of the non-black 

students at Wilson Middle School transferred to magnets in 1998-99. Id., at 13189. Like 

Ranson, its black population has risen 20% in the six years of the magnet expansion, from

7 The court clearly misunderstood testimony about segregation within the magnet 
programs, confusing it with the arguments of other witnesses about tracking. See, 57 
F.Supp.2d at 247 (“Stevens attacked the practice o f  ability grouping.”) Stevens analyzed 
not tracking, but the phenomenon that a magnet school site might appear racially 
balanced, though it actually contains two or more independent segregated magnet 
programs. Such schools are not balanced racially, but are separate, racially imbalanced 
schools at one site. Stevens included students enrolled in the racially imbalanced magnet 
programs with those attending racially imbalanced schools to calculate properly a 
percentage of students in a segregated setting. See, Stevens Report, JA/XX/9576 -  77, - 
79. That data did not consider tracking within school programs.

36



51% to 71%. D X 47, JA/XXVII/13099; Swann Plaintiffs ' Proposed Findings, JA/I/425, 

222 .

At the four high schools that are at least 50% black, over one-fourth of the 

assigned non-black students transferred out to magnets in 1998-99, with 43% transferring 

from West Charlotte. Black enrollment at West Charlotte has risen 20% in five years to 

68% in 1998-99. D X 47, JA/XXVII/13099. In contrast, the rate of transfer at the 

remaining eight high schools with smaller black student populations was markedly lower, 

from 6% to 9% at six schools, and from 10% to 12% at the two others. Swann Plaintiffs ’ 

Proposed Findings, *^282(Table), JA/I/435.

This exodus of white students has had a debilitating impact on identifiably black 

schools, drawing away high achieving students and active parents with financial 

resources and leaving these schools academically inferior, with fewer course offerings, 

meager PTA resources, lower standardized test scores, and dramatically higher teacher 

turnover. Cockerham, 5/26, JA/XIII/6460 - 6469; McMillan, 5/17, JA/XI/5164 - 51S6. 

Steven Smith Report, Appendix C, SACS Reports, JA/XX/9653 - 9662. Because of its 

impact on these “losing” schools, the Board’s failure to monitor transfers into magnets 

also violates the 1973 order holding that practices and policies that produce or restore 

segregation, or have the effect of labeling a school as “inferior,” are discriminatory and 

must be corrected. 362 F.Supp. 1237. The practices of CMS do both and have yet to be 

corrected.

The trial court summarily found that transfers from magnets had not “wrecked

havoc” or resulted in “significant jeopardy” to the court ordered desegregation plan.

This assertion is clearly erroneous, for its only support is an unsubstantiated speculation
37



in a single CMS document that more schools may have become segregated in the absence 

of the magnet plan. Likewise, the court’s only support for the finding that CMS had 

monitored transfers was the testimony of a CMS expert that a now retired CMS 

employee had told him she “kept an eye on [magnet transfers] so there wouldn’t be a run 

on the bank so to speak from any one school.” 57 F.Supp. 2d at 249, n. 23. The record 

shows that the expert was not relying on this assertion but expressing incredulity at this 

claim in the face of the statistical evidence on the segregative impact of magnet transfers. 

Foster, June 9, JA/XV/7438. While the court found that this single hearsay statement 

satisfied the Interveners' burden of proving compliance with the order to monitor 

transfers, the court dismissed as “anecdotal” and legally insufficient the testimony from 

numerous witnesses about the racial disparities in school resources and facilities within 

CMS. 57 F.Supp.2d at 263.

7. The Failure To Properly And Adequately Address Martin Fatally 
Impacts The Court’s Analysis Of Student Assignment.

a. Level of Compliance. The court set a +/- 15% standard which it found 

that CMS had met in most of its schools over time, despite recent declines. It ultimately 

concluded that the system’s level of compliance compared favorably with other districts 

that had been declared unitar}'.

Mere calculations of compliance with a +/- 15% racial balance to decide unitary 

status is misplaced. In the late 1970’s, CMS schools were nearly 100% statistically 

compliant with the court’s orders, more so by far than today. Yet, the Swann court found 

in 1979 that CMS was not in compliance with its orders or the constitution. It is thus the



“law of the case” that CMS had not complied with the court’s orders in 1979. 

Nonetheless, the court below considered the number of schools within its less stringent 

standard to be “remarkable.” 57 F.Supp.2d at 248. The court did not explain how it turns 

present resegregation into compliance or how it can ignore the prior findings of non- 

compliance by the judge who entered the substantive orders in Swann.

Other shortcomings in the court’s emphasis on statistics include its comparison of 

CMS’s “racial imbalance index” with other school districts in the county. 57 F.Supp.2d at 

248 {citing Armor report, p. 7 Table 1, JA/XXXIII/16173). The court’s reliance on the 

Armor table is an insufficient basis for unitary status. The table does not disclose the 

origin of the data, state which of the systems are under court order, or disclose residential 

imbalance indices or other facts specific to those communities. Further, there is no 

national standard for unitary status based on a comparison of this racial imbalance index. 

The Armor comparisons thus have little or no value for determining unitary' status.

Moreover, comparisons on another data set do not support the court’s conclusion. 

For example, Dr. Armor’s Chart 3 is a graph of unitary school systems. Only one school 

system on Chart 3 had a majority white population like CMS when it was declared 

unitary. Armor Report, Chart 3, JA7XXXIII/16193. This school system, New Castle 

County, Delaware, had 95% of its schools within +/- 10% of the system average when it 

was declared unitary, a far higher level of compliance than found in CMS, where only 

70% of the schools are within a +/- 15% range. Coalition to Save Our Children v. State 

Bd. ofEduc ., 901 F.Supp 784, 797 (D. Del. 1995), a ff’d, 90 F.3d 752 (3rd Cir. 1996).

A more accurate comparison would be Hillsborough County, Florida, which

according to Dr. Clark, has statistics of compliance and demographic patterns very
39



similar to those in CMS. Clark, 4/19, p. 185. That system was declared not to be unitary 

with regard to student assignment. Manning v. School Board, 24 F.Supp.2d 1277 

(M.D.Fla. 1998).

b. Demographics. The errors regarding compliance with Martin also 

create further errors of law in the court’s analysis of demographics. CMS was operating 

under a desegregation order which it must comply with by eliminating the “roots” of 

discrimination and eradicating its effects. Green, 391 U.S. at 437-38; Dayton Bd. o f  

Educ. v. Brinbnan, 443 U.S. 526, 537 (1979); Swann, 402 U.S at 26. A school system 

cannot be relieved of its legal obligations when its policies are “a contributing cause” of 

the racial identifiability of its schools. Columbus Bd. o f  Educ. v. Penick, 443 U.S. 449, 

465, n.13 (1979); Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 211 and n. 17 

(1973); cited in, Freeman v. Pitts, 503 U.S. at 512, (Blackmun, concurring). The court 

below found that demographic change was the primary cause of the increasing number of 

imbalanced schools, and thus the school system was not legally responsible for the 

growing imbalances. 57 F.Supp.2d 249-50. Had the court properly analyzed the orders 

in Martin, it would have recognized that CMS’s non-compliance with Martin is a 

significant “contributing cause” of the imbalances.

The role of CMS policies is plainly demonstrated by the 50% increase over a five 

year period in the number of black students in segregated schools under the 1992 policy 

of student assignment, and the exodus of white students from black schools under the 

magnet program. Demographic change is not the sole or even the primary explanation 

for these trends. The Board’s decision to de-pair schools and move to magnets is the

major cause of this increased imbalance.
40



The court also overstated the extent of racial demographic change. Charlotte has 

grown, but its racial composition has remained almost constant, with a material decrease 

in the overall level of residential segregation. The court points to the difficulty of 

desegregating the most extreme suburbs, whose census areas are 95% white, without 

noting that in 1973 the school population in the entire southeastern half o f the county, 

containing far more census areas, was over 91% white. 362 F.Supp. at 1232, 1239 (map).

Schools located in center-city areas where no racial change occurred are now 

imbalanced only as a result of changes in board policy. Druid Hills Elementary is in a 

neighborhood that has remained more than 95% black since the 1969 court orders. Clark 

Report, Table 5, JA/XXXIII/16253. The court’s assertion that it would be all black 

without a magnet is simply wrong; it was a racially balanced school until 1993-94, D X  

47, JA/XXV11/13095 the year before the current magnet program was implemented.

Comparison of Charlotte’s demographic changes with those described as

“overwhelming” and “fundamental” in Freeman demonstrates Charlotte’s stability. See,

Freeman, 503 US at 475, 76. Black enrollment in DeKalb climbed from 5% to near 50%

in some twelve years, due to migration of black families into the southern half of the

county, Id. at 475, leading to a polar residential segregation in the county and

challenging desegregation efforts in the schools. Id. In contrast, black school enrollment

in Charlotte Mecklenburg has increased only 4% in 19 years. (1980-1998). DX47,

JAy XXVII/'13095 - 99. As noted by all three demographers, the major trend in CMS

residential demographics has not been the polarization seen in DeKalb, but integration of

the increased black population into the suburbs. Clark, JA/XXXIII/16232, -38, -51;

Shelley, JA/XX/ 9680-81, -85, -86; Lord Reports, JA/XXV/12105, 12112 -  12115, 12120
41



-2 1 , 12144. This has caused the residential index of racial dissimilarity in CMS to 

decline from .75 in 1970 to .59 in 1990. Dr. Clark, the Intervenors demographer, 

admitted that a system like CMS with a declining dissimilarity index would be easier, not 

more difficult, to desegregate overtime. Clark, 4/19, JA/IV/1672 - 73. In all pertinent 

aspects, the demographic pattern in Charlotte is the opposite of that described in 

Freeman.

The court also ignored evidence of the Board’s contribution to residential growth 

patterns. The courts have long cautioned about the impact of school siting decisions on 

housing patterns. Swann, 402 U.S. at 20-21. The record shows that the Board’s siting 

decisions have spurred development in the very areas the court identifies as 95% white. 

Immediately after the Board voted to build a school at what is now McAlpine 

Elementary, three major affluent developments were announced in the previously 

undeveloped area. T. Norman, 5/17, JA/X/4971 - 73. The school is 4% black. D X 47, 

JA/XXVII/13096. Similarly, when the Board voted, over the objections of black board 

members, to build McKee Elementary, 141 housing permit applications were filed for the 

then undeveloped area within a month. Stephen Smith, 5/17, JA/XI/5121. The school is 

now 2% black and overcrowded with mobile classrooms.

Finally, the court ignored its own finding about considerations of “white flight.”

A very real reason the Board is operating overwhelmingly white schools in suburban

areas is the political pressure put on the Board to keep poorer black students out of those

schools. See, Eric Smith, 6/8, JA/XV/7164 - 66; Eric Becoates, 5/21, JA/XII/5892 - 99;

Pam Mange, 5/17, JA/X/4992 - 4997. As noted above, the court erroneously approved

the consideration of white flight in the planning process contrary to this court’s holding in
42



Riddick v. School Bd. o f Norfolk, supra.

The court’s failure to apply the law of the case and the law of this circuit results in 

another error of law. Demography simply is not the sole or primary cause of racial 

imbalances and related problems in CMS. The court erred both in ignoring the 

“contributing cause” of Board policies in the increasing segregation in student assignment 

and in absolving the Board from legal responsibility for its violations of the desegregation 

orders.

8. The Court Erred By Failing To Evaluate The Efficacy of the 
Board’s Desegregation Strategies.

In a unitary status analysis, a court should determine whether a school system has 

eliminated the vestiges of segregation to the extent “practicable.” See, Freeman, 503 

U.S. at 479-501. The court below declined to make this analysis on the ground that it 

had no authority to order further remedies in the case. This refusal to consider the 

practical effort of alternative desegregation strategies emanates from the court’s 

misinterpretation of Martin and from its flawed analysis of the Board’s contribution to 

the present imbalances in student assignment.

The court reasoned that it could not remedy the growing imbalances within CMS 

because, though still under court order, CMS had broken the link with de jure  segregation 

and had no further obligation to fix racial imbalances in its schools. 57 F.Supp.2d 255.

The court did not pinpoint the point in time when CMS broke this link and fulfilled its 

legal objective, because it cannot. Plainly, CMS has not fulfilled the requirement of 

Swann and Martin to adopt equitable methods of balancing its schools. Instead of 

recognizing this noncompliance and considering practicable alternatives for compliance,

43



the court erroneously adopted a variant of the Intervenors’ legal theory that CMS was de 

facto  unitary. The court thus held that CMS had no further obligation to follow the 

court’s previous orders above before CMS has been released from these orders. This is 

contrary to Dowell, which made clear that legal obligations remain until there is a 

declaration of unitary status. 498 U.S. 237, 246. See, also, United States v. State o f  

Georgia, Troup County, 171 F.3d. 1344 (11th Cir. 1999). That declaration comes only 

after a court has examined all of the Green factors, and any other factors the court 

chooses to consider. Troup County, Id., at 1347.

This reasoning turns the unitary status analysis inside out. The court claimed 

inability to consider a required element in assessing unitary status because it determined 

that CMS has fulfilled its legal obligations and is already unitary. Yet CMS cannot be 

declared unitary until the court has determined it has desegregated student assignment to 

the extent practicable. This circular reasoning was apparent in the trial when the court 

repeatedly stated that it would not consider the Board’s choice plan until it got to the 

“remedy phase,” which it would not reach absent evidence of intentional discrimination. 

These declarations demonstrate a basic misunderstanding of the unitary status inquiry and 

contravene applicable legal authority.

Even in the face of demographic change, the “practicability” of other methods is a

part of the required analysis. The Supreme Court in Freeman approved a trial court’s

thorough review of both the practical steps that had been used in the district to

desegregate the schools and the testimony about other desegregation strategies which

might have addressed the problems caused by the County’s substantial demographic

change. The court concluded that “absent busing, which is not considered a viable
44



option,” the Board had done what was practicable. 503 US at 480.

In contrast, the court below concluded that CMS had no further obligation to 

address segregated schools, and barred any evidence about the possible effect of other 

desegregation methods, including testimony about “controlled choice” programs which 

have been successful in many school districts. Such a choice program in St. Lucie 

County, Florida, resulted in a declaration of unitary status. United States v. Board o f  

Public Instr. o f  St. Lucie County, 977 F.Supp.1202 (S.D. Fla. 1997). Without hearing any 

evidence about CMS’s plan, the court dismissed it as a litigation “strategy.” Id. at 256.

The court mistakenly looked instead at the Duval County, Florida case, where the 

Florida court had refused to consider a choice plan. The court relied upon this decision as 

justification for not considering the CMS plan. Id. at 257. The Duval County case dealt 

with the fulfillment of a settlement agreement in which the parties had agreed that the 

schools would be unitary upon certain conditions. Because developing a choice plan was 

not a condition of the agreement, the Florida court simply declined to modify the 

settlement to include such a requirement. That rationale is entirely different from the 

court’s rationale here, which simply did not consider evidence about practicable 

alternatives for eliminating imbalances in student assignment.

In making its unitary status determination as to student assignment, the court

misinterpreted the prior Swann orders and Martin, and misapplied substantial record

evidence that the Board had not complied with those prior orders, including the role of

this non-compliance in creating the present imbalances in schools. These errors led to an

improper refusal to consider practical alternatives that would improve those imbalances.

The court’s conclusion that CMS had achieved unitary status as to student assignment
45



was erroneous as a matter o f law and should be reversed.

B. THE COURT’S CONCLUSION THAT CMS HAD ATTAINED 
UNITARY STATUS AS TO RESOURCES AND FACILITIES IS 
CLEARLY ERRONEOUS.

The court made a fundamental error of law on the issue of resources and facilities 

by shifting the burden of proof from the Intervenors and requiring the Swann Plaintiffs 

and CMS to prove that present racial disparities in this area are caused by intentional 

discrimination, not vestiges of segregation. The court then found that the Swann Plaintiffs 

and CMS had failed to meet this new burden, erroneously rejecting both documentary 

evidence and testimony from witness after witness about racial disparities in resources 

and facilities in CMS.

This decision is unprecedented and legally flawed. In effect, it reads a partial 

unitary status declaration into the very order by which the federal court first asserted 

judicial supervision over the school system.

1. Burden Of Proof.

The court tipped its hat to the rule that the party moving for unitary status bears 

the burden of proof, 57 F.Supp.2d at 243-44 (citing Freeman). It then chose not to apply 

that rule, reasoning that a finding of equitable facilities and equipment in the original 

1969 desegregation decree, and the absence of specific remedial orders about facilities, 

broke the link between more recent racial disparities and the segregation era. The court 

thus concluded that the burden falls to the Swann Plaintiffs and CMS to prove present 

intentional discrimination caused these disparities.

The court’s misinterpretation of a fundamental aspect of the Green analysis

causes this error. The Green factors are “among the most important indicia of a
46



segregated system,” Swann, 402 U.S. at 18, so central to the legal inquiry that, 

“compliance with [them] is a condition precedent to unitary status.” Coalition to Save 

our Children, 90 F.3d at 752. The law remains unchanged that the burden of proof shifts 

back to those seeking further court intervention only after a finding of unitary status. 

School Bd. v. Baliles, 829 F.2d. 1308, 1311 (4th Cir. 1987); Riddick, 784 F.2d at 536-37.

The court confuses this established principle with law that shifts the burden of 

proof as to ancillary factors that were not subject to a prior remedial order. When a party 

tries to invoke court jurisdiction over a disparity that is not a Green factor and was not 

addressed specifically in prior remedial orders, that party has the burden of proof. See, 

Coalition to Save our Children, Id., at 776; Jenkins v. Missouri, 122 F.3d. 588, 59^ (8th 

Cir. 1997); United States v. City o f Yonkers, 833 F.Supp. 214, 222, n.3 (S.D.N.Y. 1993). 

No reported decision suggests that the burden of proof on a Green factor shifts until there 

has been a finding o f unitary status.

In shifting the burden, the court required even more of the Swann Plaintiffs than 

proving that present resource and facility disparities are vestiges of segregation. The 

court relies on the ancillary cases cited above to demand that the Swann Plaintiffs and 

CMS prove intentional discrimination caused such disparities, obliterating the 

presumption that present problems are vestiges of the segregated system.

2. The Prior Orders.

The court’s rationale for shifting the burden focuses principally on two bases: (1)

the April 1969 order accepting the Board’s evidence of no racial discrimination in the

quality of school buildings or equipment, 300 F.Supp. at 1366; and (2) the August 1969

order entered in response to the Board’s effort to delay desegregation on the ground that
47



white students would not attend ran down black schools, holding it was “too late” to 

argue that position. 306 F.Supp. at 1298. The court concluded that the Swann court had 

“never assumed control” over facilities because it found no discrimination after the issue 

was “thoroughly litigated.” Id. at 57 F.Supp.2d at 262. Thus, the court held that it would 

“defy logic to put the burden of proof on the Plaintiff-Intervenors, . . .  to prove that the 

vestiges of discrimination in facilities have been remedied.” 57 F.Supp.2d at 263. The 

court did not explain how it applied collateral estoppel effect to this order, but denied 

similar weight to the orders that expressly found discrimination in 1973, 1974 and 1979.

The finding that the court never assumed control over facility issues is incorrect. 

In the April 1969 order, the district court explicitly maintained jurisdiction over “any 

other contentions” in the case “because it is the court’s duty to keep the matter under 

advisement.” 300 F.Supp. at 1367. It later identified specific discriminatory acts 

regarding facilities at some schools, including Double Oaks, 362 F.Supp. 1223, (library 

burned down and not replaced; driveway closed from two-way access despite 1971 order 

to open it) and West Charlotte. Id., at 1238 (athletic facilities closed). The court also 

found that formerly or recently black schools were not offering all academic courses to 

students, a clear resource issue, which created resegregative pressures. Id. The court 

noted that these kinds of Board actions had the “effect of labeling a school as inferior” 

and were discriminator}' policies that “must be corrected.” Id. at 1237.

The court here also overstated the significance of the 1969 order. In taking an

excerpt from the “Swann Song” order of 1975, the court below omitted the qualifying

language set forth in italics: “Except for the refusal of the court to find in the plaintiffs’

favor at the first hearing on certain minor contentions regarding adequacy of physical
48



plants and equipment and teacher equality,” the Swann plaintiffs had prevailed on all 

substantial rulings in the litigation. 66 F.R.D. 483, 484 (1975). Thus, the trial court in 

1999 emphasized a ruling that the Swann court actually considered “minor” to overturn 

the well-settled allocation of burdens in a unitary status hearing.

3. Present Disparities Are Clear Vestiges Of Segregation.

The court’s legal analysis of these vestiges disregards the history of the quality of 

black schools under segregation. By no stretch of the imagination did the Swann court 

find that the quality of black and white schools was the same during segregation. CMS 

closed sixteen black schools between 1966 and 1968, D X 64, JA/XXVII/13246 - 47. It 

was the closing of those sixteen schools and the then-recent construction of West 

Charlotte High, along with the need to assure the community that all of the desegregated 

schools were comparable, that allowed the court to declare in 1969 that the remaining 

facilities were not unequal. One can readily see the link between disparities in resources 

and facilities in predominantly black schools today and conditions that existed prior to 

1969.

4. Partial Unitary Status.

The effect of the court’s burden shifting is to read the 1969 order as a declaration

of partial unitary status in facilities. Even though partial declarations were not allowed in

the Fourth Circuit prior to Freeman (see, School Bd. v. Rallies, supra), the court treats the

1969 order as a determination about facilities. It relies erroneously on U.S. v. City o f

Yonkers, 181 F.3d. 301, 305 (2nd Cir. 1999), to conclude that absence in 1969 of findings

of discrimination in facilities now shifts the burden of proof. 57 F.Supp.2d at 263. But

Yonkers discussed the proof that applied to ancillary issues of achievement and teacher
49



expectations after a declaration of unitary status had been made as to Green factors. As 

the Yonkers court clarified in shifting the burden, “[i]n this case, however, the 

dismantling of the de jure  system of segregated schools has been accomplished with 

respect to the Green factors, and the issue is whether the district court has identified other 

ills. . . .” Id. at 310. That is, if  the ancillary issues were not identified in the court’s 

remedial orders, the burden shifts to the party seeking continued court intervention.

The proper analysis is found in U.S. v. Unified School Dist. No. 500, Kansas City, 

974 F.Supp. 1367, 1381 (D. Kan. 1977). There, a district court deciding unitary status 

performed a straightforward unitary status analysis of all Green factors, including 

facilities, even though the “original desegregation orders did not find any variation in the 

quality of facilities provided to black and white students.” Since the school system was 

moving for unitary status, the court held quite simply that the “District bears the burden 

of proving it is now unitary.” Id. at 1371.

The week before the trial began in this case, the Eleventh Circuit made clear that

unitary status could not be implied from a previous order, even one that used the phrase

“unitary.” U.S. v. State o f  Georgia, Troup County, 171 F.3d 1333, 1344 (11th Cir. 1999).

The Troup County court had made findings in 1973 that used the term “unitary,” but also

issued a permanent injunction and put the case on an inactive docket. The district court

found in 1998 that the “unitary” language in that order resolved the case. The Eleventh

Circuit reversed, finding the steps taken in 1973 “flatly inconsistent with the achievement

o f ‘unitary status.’” Id. at 1350. Here, in April 1969, the Swann court expressly

maintained active supervision of all aspects of the school system, later issued specific

orders relating to facilities and resources and then put the case on inactive status with
50



permanent injunctions of continuing effect. The trial court’s reliance on the 1969 order to 

shift the burden of proof on this Green factor is a straightforward error of law.

5. The Court’s Finding That Facilities And Resources Are Equal 
Is Clearly Erroneous.

The court’s factual determination that CMS facilities and resources are equal is 

erroneous. The school system’s survey of baseline needs, a comprehensive way of 

demonstrating disparities between schools, showed that imbalanced black schools needed 

an average of $89 per pupil to meet the baseline level for basic supplies and books, more 

than twice the per-pupil need in the suburban white schools.8 Purser, 6/14,

JA/XVII/8171 -72.

A facilities analysis performed by Dr. Gardner reveals a significant pattern: 79% 

of the imbalanced black schools needed replacement or major renovation; only 14% of 

the imbalanced white schools needed major improvement and none needed replacement. 

At the high school level, the predominantly black schools had a combined score of 45.5, 

while white high schools had a combined score of 67. A score below 45 calls for 

complete replacement. The court asserted this analysis was incomplete, even though it 

covered all of the racially imbalanced schools in CMS and all of the high schools.

8 The court gave great weight to a document used on cross-examination of the 
Associate Superintendent, Dr. Susan R. Purser, after she testified to deficiencies in 
resources and facilities at racially imbalanced schools. The Intervenors confronted her 
with an inventory survey showing that Me Alpine Elementary, a 10-year-old school that is 
96% white, listed greater needs than Hidden Valley Elementary, an older school that is 
95% black. The court failed to mention that this survey was done at a time when 
McAlpine Elementary was scheduled to expand by 400 new students -  new enrollment 
equivalent in size to many entire elementary schools in CMS. Purser, 6/14, 
JA/XVII/8170.

51



A document submitted by the Swann Plaintiffs showed computer resources in 

1997 at six different schools -  two white suburban schools, one Communication Arts 

magnet, and three black, non-magnet schools. S X 139, JAy'XXII/10875 - 10886. The two 

suburban schools had a remarkable array of computer resources, actually higher in 

number than those available at the federally subsidized Communication Arts magnet, and 

far more than the black schools. The court denigrated such disparities, reasoning that 

CMS had no control over PTA funding and other outside contributions. The evidence 

showed that CMS had a policy of matching funds for those schools that could raise at 

least $10,000. The impact of this policy has exacerbated funding disparities between the 

schools. Not all such disparities are related to PTA funding. See DX 17, 

JA/XXVI/12647, - 49, - 62.

Even the three board members who voted to seek unitary status, Mr. Lassiter, Ms. 

Kakadelis, and Mr. Puckett, testified that the Board needs to address disparities in 

facilities and resources in black schools. 57 F.Supp.2d at 263. Mr. Puckett testified that 

the present board was the first to have “political will” to address the issue. 4/20, 

JA/IV/1817, 1820. Other witnesses testified to the same disparities. See, McIntyre, 5/13, 

JA/X/4641 -  44; 4656 - 58; Pam Mange, 5/17, JA/X/4986 - 4992; Richard McElrath,

5/14, JA/X/4907 - 4910; Annelle Houk, 5/13, JA/X/4750 -  51, 5/14, JA/X/4768 - 4777; 

John Kramer, 5/24, JA/XIII/6085 - 86; Teresa Cockerham, 5/25, JA/XIII/6455 - 6462.

The court erred as a matter of law in removing the burden of proof from the 

Intervenors as to this Green factor and transforming the vestiges question. Properly 

analyzed, there was substantial evidence of persistent vestiges of segregation in facilities 

and resources.
52



C. THE COURT’S CONCLUSION THAT CMS HAD ATTAINED 
UNITARY STATUS AS TO FACULTY IS CLEARLY 
ERRONEOUS.

The court concluded that the present faculty “imbalance is too small to be 

considered indicative of a school system that is segregating its faculty.” 57 F.Supp.2d at 

260. To reach that conclusion, the court applied, without explanation, a standard of 5% 

to 35% for faculty balance. Since 18% of the elementary school faculty is black, the 

range for elementary schools is 3% and 32% black. Such a wide range is inconsistent 

with the prior orders in this case and is an error of law.

The court also avoided, again without explanation, discussion of information on 

faculty assignment for the 1998-99 school year that shows a doubling of the number of 

racially identifiable- faculties in just four years. Ironically, the court had extended fact 

discovery for an additional 30 days in part to allow the parties time to obtain data about 

faculty imbalances in the 1998-99 school year. That data shews forty schools with faculty 

out of racial balance under a +/- 10% standard, Stephen Smith's Report, Tables 1 and 2, 

JA/XX/9636, - 37. Swann Plaintiffs ’ Findings o f  Fact, JA/I/440, f  3 20, and a sharply 

rising trend in faculty imbalance. The number of schools having an identifiable faculty 

increased steadily each year until it doubled to one-third of the district’s schools in just 

four years. Id. The opinion does not indicate that any of this information is in the record.

The trial court properly identified two prior orders at issue in this regard. The first 

order required the system in 1970 to desegregate faculty so that “all schools in the system 

will have approximately the same proportion of black and white teachers.” .306 F.Supp. 

at 1295. This approach was affirmed expressly by the Supreme Court.

The trial court decided, however, to rely only on the data from the school years
53



1995-96, 1996-97, and 1997-98. Relying on this period the court found that only ten 

schools were out o f balance under its standard during the “worst year,” 57 F.Supp.2d at 

259-60. The number of out of balance schools increased to sixteen in 1998-99 under the 

court’s 15% standard. This figure is far higher than the seven schools outside a 10% 

range in Freeman, which led that court to find, and the Supreme Court to affirm, that the 

school system was not unitary with regard to faculty. 503 U.S. at 481-82. Rather than 

compare CMS to Freeman, the court cites cases such as Coalition to Save Our Children, 

90 F.3d 752, (3rd Cir. 1997), involving a school district that never had more than a single 

school outside of the +/- 15% range except once in twelve years. Id.

The second order directed CMS to assign faculty so that the “competence and 

experience o f teachers in formerly or recently black schools will not be inferior to those 

in formerly or recently white schools.” 311 F.Supp. at 268. The obvious purpose of this 

second order was to reverse the pattern that the court had identified in the 1970’s of CMS 

treating black schools as inferior, leading to resegregation pressures.

The court focused on Dr. Trent’s data in finding compliance and again ignored the

most troubling information provided by Stephen Smith. While it is easy to measure

teacher experience, measuring “competence” is another matter. School systems in North

Carolina reward competence by granting tenure. Dr. Smith’s research shows that

students in predominantly black schools in 1998-99 were more than twice as likely as

students in a white school to have a “probationary” teacher rather than one with tenure.

JA/XX/9638. Those black schools were also more than twice as likely to have a first year

teacher. That data corroborates other evidence in the record demonstrating high teacher

turnover in predominantly black schools. Such trends clearly violate the prior orders as
54



to competence and experience.

The court discussed the “practical” problems of assigning teachers mandatorily to 

combat racial imbalance and distribute experience and competence, finding that a 

shortage of black teachers across the nation somehow negates the requirement to maintain 

balance in CMS faculties. While the national shortage might help explain a decline in the 

overall number of black teachers in Charlotte, it hardly explains increases over four years 

in the number of schools with racially identifiable black faculty. If anything, the 

reduction in black teachers in the system should make it more difficult to have 

identifiably black faculty in CMS’s schools.

55



D. INEQUITIES IN THE QUALITY OF EDUCATION PREVENT A 
UNITARY STATUS FINDING.

The court categorized a number of additional issues as falling under the rubric of 

“quality of education.” These issues include the continuing racial gap in student 

achievement, the under-enrollment of blacks in advanced academic programs and 

courses, the over-enrollment of blacks in exceptional education programs, and the 

disproportionate rates of disciplinary actions. Given the space limitations of this brief, 

the Swann Plaintiffs refer to their proposed findings of fact and conclusions o f law on 

these issues, including JA/I/446, 368 -  457, f\ 433 and 495, f  145 -  497, f  157 

(achievement) and 458, |  434 -  462, f  465 (other issues), and incorporate them herein by 

reference. The Swann plaintiffs draw particular attention to the derailed discussion there 

of the achievement gap.

The court erred in concluding that CMS’s achievement gap, which has remained 

constant for 30 years, is not a continuing vestige of segregation, when achievement gaps 

across the state and the nation have been reduced significantly.

III. THE MAGNET PROGRAM.

The holding below that the magnet school program was operated 

unconstitutionally is wrong as a matter of law. The Board has properly raises one aspect 

of this issue in its appeal: whether the trial court should have analyzed the program to 

determine if it was “reasonably related” to meeting the existing desegregation decrees, 

rather than applying a strict scrutiny analysis. Vaughns v. Board o f Education o f Prince 

Georges County, 758 F.2d 983, 993 (4th Cir. 1985). The Swann Plaintiffs-Appellants 

raise an additional and substantially different constitutional question regarding the 

magnet program: its segregative effect upon other schools.



The court erred as a matter of law in failing to recognize this issue. In 1992, when 

the magnet program was expanded beyond the handful of magnets operated since 1974, 

20% of the district’s black students were in segregated schools. By 1997, nearly 30% of 

its black students were in segregated schools or programs. The court nevertheless found 

the magnet schools’ effect on desegregation positive and salutary, disregarding the 

evidence showing substantial “white flight” into magnets from non-magnet “black” 

schools. Along with the failure to implement parts of the proposed magnet plan, this 

white flight led to a 50% increase in the number of black students attending segregated 

schools and programs within six years at a time when the Board was under an express 

order to monitor the segregative effect of transfers.

The court’s failure to analyze critically or even understand the negative impact of 

magnet programs on the right of black students to a desegregated education is the real 

equal protection violation. The evidence did not support the Intervenors’ claims. It does 

show that the real harm was to the protected right of black students to a desegregated 

education.

IV. THE INJUNCTION WAS UNAUTHORIZED BY LAW AND
UNSUPPORTED BY FACT.

The court below issued a sweeping injunction prohibiting the Board 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. The Board is thus prohibited from taking any race-conscious 

measures in administering its educational programs. This injunction prohibiting any use 

of race in operating the schools after a unitary status declaration is unprecedented, 

unauthorized and unsupported. The injunction reaches far beyond the two issues before

57



the court at trial - whether the district had attained unitary status, and whether the magnet 

schools were operated constitutionally while the district was under a desegregation order. 

It restricts how the district may assign students after a unitary status declaration, a 

question that was not in controversy at the trial.

The only justification that the court offers for the injunction is that it found that 

CMS used race unconstitutionally in its admission process for the magnet schools and 

that CMS asserted an interest in diversity as an independent basis, separate from the 

desegregation orders, for doing so. 57 F.Supp.2d at 290-91. The district court’s decision 

that CMS violated the constitution by its use of race in admissions to magnet programs 

before a declaration of unitary status is wrong as a matter of law. The board’s authority 

to use race was settled long ago as the law of this case in the Supreme Court decision in 

Swann and the decision in Martin.

The court concluded that the Board would pursue “race-based” policies after the 

system was declared unitary, but there is no evidence in the record for that legal assertion. 

The court’s subsequent stay denial did not claim the presence of any such evidence. 

Instead, the stay order asserts broadly that the injunction is “rooted in the court’s duty to 

enforce the Fourteenth Amendment’s guarantee of equal protection,” Order, p. 7, and 

“offers the foundational guide that assignments occur within the confines o f ’ that 

amendment. Id., pp. 7-8.

In the court’s words, the injunction is an advisory opinion about the law, divorced 

from any concrete dispute in the case. The constitutionality of the use of race in a post- 

unitary school system simply was not litigated in this action. The court acknowledges 

that it has reached beyond its constitutional authority and entered an advisory opinion

58



about a matter not in controversy at the trial - the role of race in the future operation of 

the school system. The issue of whether and, if so, to what extent CMS could take race 

into account in assigning students to any schools in the system following a declaration of 

unitary status was never litigated and was not ripe for determination at all on the record 

before the court.

The injunction is unprecedented in the jurisprudence on unitary status 

declarations. The court disregards a key principle of Freeman -  that its jurisdiction ends 

on a unitary status declaration except to supervise a “gradual transition” to a unitary 

system. 503 U.S. at 490. The court, in effect, has imposed a permanent injunction 

banning the use of race, which the board had been required to consider for the last 30 

years, while abdicating any responsibility for a gradual transition to a new method of 

assigning students to schools.

The Board’s only possible response to the Order -  that it must move to 

neighborhood school assignments -  demonstrates that the court effectively has imposed a 

whole new educational policy upon the school system in a far broader manner than this 

court forbade in Tuttle v. Arlington County Schools, 195 F.3d 698 (4th Cir. 1999).

The Tuttle decision undercuts the legal theory that serves as the court’s basis for 

the injunction -  the view that diversity can never be a compelling interest in a post- 

unitary school system. Tuttle makes clear that the trial court’s opinions about diversity 

are contrary to the established law of this circuit or of the Supreme Court. Id. at 703- 

704. Moreover, the Supreme Court’s recognition in Swann that a school board has 

“broad power to formulate and implement education policy” in which it could decide to 

desegregate its schools in order to “prepare students to live in a pluralistic society,” has

59



never been repudiated by the Court and remains the law of this case. 402 U.S. 1,16. Tins 

Court relied on that language when it affirmed the conclusion of the Martin trial court 

that CMS had the lawful discretion, separate from any court orders, to maintain 

desegregated schools as a matter of educational policy. 626 F.2d at 116-67. The opinion 

below does not mention the precedent in this very case.

Recent decisions also indicate that the use of race by a governmental entity 

remains subject to different analysis depending on the underlying governmental interests, 

for “benign intentions,” while not immunizing government action “substantially narrow 

the inquiry.” Raso v. Lago, 135 F.3rd 11, 16 (1st Cir. 1998). Flere the governmental 

interest in maintaining desegregated schools neither reserves benefits for a favored race, 

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995), nor constitutes an effort to 

segregate the races. Shaw v. Reno, 509 U.S. 630, 642-43 (1993). Thus, so long as the use 

of race to maintain desegregation in public education is not the predominant factor in the 

system’s assignment plan, it is not an unlawful governmental action. Miller v. Johnson, 

515 U.S. 900 (995); Raso, supra.

In summary, the injunction was impermissibly issued as there was no legal or 

factual basis upon which the district court could exercise its power to enjoin CMS from 

fashioning appropriate pupil assignment plans.

60



CONCLUSION

For the foregoing reasons, the Swann Plaintiffs respectfully request that this court 

reverse the judgment of the court below as to unitary status, the use of race in the magnet 

admissions program and the injunction.

Respectfully submitted, this the 20th day of May, 2000.

ELAINE R. JONES 
Director-Counsel 
NORMAN J. CHACHKIN 
GLORIA J. BROWNE 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212)219-1900

JAMES E. FERGUSON, II, N.C.Bar#: 1434 
JOHN W. GRESHAM, N.C.Bar#: 6647 
MARGARET ERRINGTON Bar# 13882 
S. LURE LARGESS, N.C. Bar# 17486 
Ferguson, Stein, Wallas, Adkins, Gresham 

& Sumter, P.A.
741 Kenilworth Avenue, Suite 300 
Charlotte, NC 28204 
(704) 375-8461

61



CERTIFICATE OF SERVICE

I certify that I have served the foregoing FINAL FORM BRIEF OF 
PLAINTIFFS-APPELLANTS on opposing counsel by placing a copy thereof enclosed 
in a postage prepaid properly addressed wrapper in a post office or official depository 
under the exclusive care and custody of the United States Postal Service, addressed to:

William S. Helfand, Esq.
Magenheim, Bateman, Robinson, 

Wrotenbery & Helfand, P.L.L.C.
3600 One Houston Center 
1221 McKinney 
Houston, TX 77010

Leslie J. Winner, Esq. 
Charlotte-Mecklenburg Board of Educ. 
P. O. Box 30035 
Charlotte, N. C. 28230-0035

James G. Middlebrooks, Esq.
Irving M. Brenner, Esq.
Smith, Helms, Mulliss & Moore, L.L.P. 
P. O. Box 31247 
201 North Tryon Street 
Charlotte, N. C. 28231

Allen R. Snyder, Esq.
Maree Sneed, Esq.
Hogan & Hartson, L.L.P.
555 Thirteenth Street, N. W. 
Washington, D. C. 20004-1109

John W. Borkowski, Esq.
Hogan & Hartson, L.L.P.
546 Carondelet Street, Suite 207 
New Orleans, LA 70130-3588

Thomas J. Ashcraft 
212 South Tryon Street 
Suite 465
Charlotte, N. C. 28281

A. Lee Parks, Esq.
Kevin V. Parsons, Esq.
Parks, Chesin & Miller, P.C.
2600 The Grand 
75 Fourteenth Street 
Atlanta, GA 30309

Michael Crowell, Esq.
Lisa Lukasik, Esq.
Tharrington Smith, LLP 
P. O. Box 1151 
209 Fayetteville Street Mall 
Raleigh, N. C. 27602-1151

xVllisonB. Schafer, Esq.
N. C. School Board Association 
P. O. Box 97877 
5808 Faringdon Place 
Raleigh, N. C. 27624-7877

Julie K. Underwood, Esq.
National School Board Association 
1680 Duke Street 
Alexandria, VA 22314

William Lann Lee, Esq.
Mark L. Gross, Esq.
Rebecca K. Troth, Esq.
U. S. Department of Justice 
P. O. Box 66078 
Washington, D. C. 20035-6078



This, the 20th day of May, 2000.

S. LUKE LARGESSO 
N.C. Bar Number 17486 
Ferguson, Stein, Wallas, Adkins 

Gresham, & Sumter, P.A.
Suite 300 Park Plaza Building 
741 Kenilworth Avenue (28204) 
Post Office Box 36486 
Charlotte, N. C. 28236-6486 

(704)375-8461

Certificate of Compliance

Pursuant to FRAP 32(a)(7)(C) counsel hereby certifies that the original Brief filed

with this Court contained 14,342 words.

This 20th day of May, 2000.

S. LUKE LARGESS 
N.C. Bar Number 17486 
Ferguson, Stein, Wallas, Adkins 

Gresham, & Sumter, P.A.
Suite 300 Park Plaza Building 
741 Kenilworth Avenue (28204) 
Post Office Box 36486 
Charlotte, N. C. 28236-6486 
(704)375-8461