Belk v. Charlotte-Mecklenburg Board of Education Page Proof Briefs of Appellees William Capacchione, Michael Grant, et al.
Public Court Documents
March 24, 2000
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Brief Collection, LDF Court Filings. Belk v. Charlotte-Mecklenburg Board of Education Page Proof Briefs of Appellees William Capacchione, Michael Grant, et al., 2000. 479e1597-c69a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1c0410eb-7439-403f-9259-076c7416d42b/belk-v-charlotte-mecklenburg-board-of-education-page-proof-briefs-of-appellees-william-capacchione-michael-grant-et-al. Accessed April 06, 2025.
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IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 99-2389, 99-2391 and 00-1098
TERRY BELK, et al
Plaintiffs-Appellants
and
WILLIAM CAPACCHIONE, MICHAEL P. GRANT, et al
Plaintiffs-Intervenors-Appellees
v.
6
4O
THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al
Defendants-Appellants
WILLIAM CAPACCHIONE, MICHAEL P. GRANT, et al.,
Plaintiffs-Intervenors-Appellees
and
TERRY BELK, et al.;
Plaintiffs-Appellants
v.
THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et a l,
Defendants-Appellants
Appeal from the
Western District of North Carolina
Civil Action Nos, 97-482-3-P and 65-1974-3-P
PAGE PROOF BRIEF OF APPELLEES
WILLIAM CAPACCHIONE, MICHAEL GRANT, et al
John O. Pollard
Kevin Parsons
McGuire, Woods, Battle & Boothe
3700 NationsBank Plaza
101 South Try on Street
Charlotte, NC
704/373-8959
Counsel for Appellee
William Capacchione*
A. Lee Parks
Parks, Chesin & Miller, P.C.
75 Fourteenth Street
Suite 2600
Atlanta, GA 30309
404/873-8000
Counsel for Appellees
Michael Grant, et al*
*Additional Counsel on Inset
Additional Appellee Counsel:
William S. Helfand
Magenheim, Bateman, Robinson,
Wrotenbery & Helfand
3600 One Houston Center
1221 McKinney
Houston, Texas 77010
713/609-7700
Counsel for Appellee William Capacchione
Thomas J. Ashcraft
212 South Tryon Street
Charlotte, NC 28281
704/333-2300
Counsel for Appellees Michael Grant, et al
TABLE OF CONTENTS
TABLE OF AUTHORITIES................................................................................. vi
JURISDICTIONAL STATEMENT ........................................................................... 1
ISSUES PRESENTED ................................................................................................2
PRELIMINARY STATEMENT................................................................................. 3
STATEMENT OF THE C A S E ................................. 6
1. Procedural History: Original Violations
and Court Ordered Remediation .............. 6
2. CMS’ Historic Compliance with the Court Orders ............................... 10
3. Demographic Change in Charlotte-Mecklenburg and CMS
and the Impact on Student Assignm ent.................................................... 13
4. Demographic Change, School Siting and CMS Compliance ...............18
5. Compliance with the Faculty Balance Requirements............................... 20
6. Roughly Equal Transportation B urdens.................................................... 20
7. Demographic Change, Magnet School Transfers and Compliance . . . . 22
8. Facilities ..................................................................................... 23
9. R esources....................................................................................................26
10. CMS’ Magnet Schools and Rigid Racial Q uotas................................... 28
a. The Magnet Schools Were a Voluntary Desegregation
Plan Implemented To Counteract Demographic Change . . . 28
b. The Magnet Schools’ Rigid Racial Admission Q uotas........ 30
SUMMARY OF ARGUMENT 34
ARGUMENT............................................................................................................ ...
I. THE STANDARD OF R E V IEW .................................................................38
A. Unitary S tatus....................................................................... .................... 3g
B. The Injunction..............................................................................................40
C. Sanctions Order and Attorneys Fees ...................................................... 41
II. THE FINDINGS OF FACT UPON WHICH CMS WAS DECLARED
UNITARY WERE NOT CLEARLY ERRONEOUS......................... .. 42
A. The District Court Properly Declared CMS Unitary
in Student Assignment ............................................................ .............. 47
1. Good Faith Compliance................................................................ 47
2. Racial B alance................................................................................. 51
3. School Siting ............................................................ .................... 54
4. The Consideration of White Flight by CMS In Adopting a
Voluntary Magnet School Program Was Proper ....................... 55
5. Transportation B urdens.................. 57
B. The District Court Properly Declared CMS Unitary In Faculty
Assignment..................................................................................................60
C. The District Court Properly Declared CMS Unitary
as to Facilities and Resources ...................................................................63
D. CMS Is Unitary As To Transportation............................... 66
E. The District Court Correctly Found No Vestiges of the Dual System to be
Adversely Impacting Student Achievement..............................................66
F. CMS Has The Burden of Proof on Issues Not Subject to the Remedial
O rd e r ............................................................................................................ 70
G. The Eleventh Hour Submission of a Theoretical “Controlled Choice”
Plan Did Not Require Extending Court Supervision...........................,7 2
ii
H. The District Court Correctly Interpreted The 1979 Martin Order __ 75
1. The Martin Order and Twenty Years of Compliance................. 77
III. THE INJUNCTION ......................................................................................80
A. The District Court Properly Held the Magnet School Program
Violated The Constitution and Awarded the Plaintiff Intervenors
Nominal Monetary and Injunctive R e l ie f .............................................. 81
1. Strict scrutiny applies to all government sponsored
racial classifications ............................................................................. 81
2. CMS’ magnet school lottery quotas violated prior court orders,
and were adopted to combat shifting racial residential demographics,
not as a good faith effort to comply with any court o rd e r ...............84
3. Strict scrutiny review applied to the magnet school lottery
regardless of whether it was a voluntary or involuntary race-based
classification..........................................................................................88
4. The District Court properly held CMS used the Swann Orders as a
pretext for unconstitutional racial balancing ......................................89
B. Nominal Damages Are Required For Constitutional Violations...........91
C. The District Court’s Injunction is a Measured, Properly Fashioned
Remedy for Unconstitutional Racial Quotas that was Well Within
its Discretionary, Equitable Pow ers........................................................ 94
1. Racial neutrality is the chief end of injunctions under the
Fourteenth Amendment .......................................................................94
2. Injunctions under the Fourteenth Amendment have been
characterized by flexibility, breadth and judicial deference
to trial courts ..........................................................................................95
3. CMS retains control over its school systems under the
injunction ......................................................................................... 96
4. The injunction is narrowly tailored to the violations.....................97
iii
D. The District Court Injunction Eliminated Both a Past Practice
and Prohibited Threatened Future H a rm ................................................ 98
1. CMS failed to satisfy the Court that it would not
continue its illegal conduct............................................................... 99
2. The District Court Injunction is Suitably Narrow ..................... 101
IV. THE DISTRICT COURT PROPERLY REJECTED “RACIAL
DIVERSITY” IN STUDENT ASSIGNMENT AS A COMPELLING
STATE INTEREST........................................................................................ 103
A. Sound Precedent Precludes Race-Conscious Policies To Either
Achieve Racial Diversity Or Avoid Racial Resegregation ................... 104
1. Acknowledging racial diversity as a compelling governmental
interest would render the Fourteenth Amendment incoherent . . . . 105
2. Racial diversity cannot be a compelling governmental interest
without eviscerating strict scrutiny.................................................. 108
3. Accepting racial diversity as a compelling state interest would
license the state to racially stereotype ............................................ 110
4. CMS’ interest in avoiding resegregation is neither compelling nor
warranted by the fac ts ......................................................................... 112
V. THE EVIDENCE AND CONTROLLING CASE AUTHORITY
OVERWHELMINGLY SUPPORT THE DISTRICT COURT’S RULING
THAT PLAINTIFF-INTERVENOR CAPACCHIONE WAS A
“PREVAILING PARTY” AND ENTITLED TO RECOVER ATTORNEYS
FEES ...............................................................................................................113
A. As an Intervenor in Swann, Capacchione is a “prevailing party” entitled
to attorney’s fees if his counsel significantly contributed to the result,
regardless of his Article III standing........................................................... 113
1. Capacchione significantly contributed to the Plaintiff-Intervenors
obtaining a favorable Judgment in this case.................................... 117
2. Farrar is distinguishable from this case....................................... 120
IV
B. The record clearly supports the judgment holding CMS liable on the
merits, making Capacchione a prevailing party entitled to attorneys’ fees,
notwithstanding the testimony of Susan Purser........................................123
1. The magnet admissions program employed inflexible racial quotas
and was therefore unconstitutional.................................................. 123
VI. THE DISTRICT COURT’S SANCTION OF CMS FOR FAILING
TO DISCLOSE MULTIPLE FACT WITNESSES DURING
DISCOVERY WERE REASONABLE, FAIR AND NOT AN ABUSE OF
DISCRETION................................................................................................ 126
CONCLUSION.........................................................................................................135
CERTIFICATE OF COMPLIANCE....................................................................... 136
CERTIFICATE OF SERVICE 137
TABLE OF AUTHORITIES
CASES: Page
Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
227 (1995)....................................................................... 81,84, 103, 107, 114
Alabama Nursing Home Ass'n v. Harris, 617 F.2d 385 (5th Cir. 1980) ............. 76
Alexander v. Estepp, 95 F.3d 312, 315-316 (4th Cir. 1996) ........... 83, 89, 105, 108
Anderson v. Bessemer City 470 U.S. 564, 573-74(1985)............... 39, 133, 78, 134
Bazemore v. Friday, 478 U.S. 385, 407-09(1986) .......................................... 65, 69
Board ofEduc. o f Oklahoma City v. Dowell, 498 U.S. 237,
249-250(1991) ................................. .................. 34 ,47 ,48 ,74 ,75 ,85 ,110
Bradley v. School Bd. o f Richmond, 462 F.2d 1058, 1064 (4th Cir. 1972) . . . 86, 92
Briton v. South Bend Community School Corp., 819 F.2d 766, 771-72
(7th Cir. 1987) ................................................................................................ 62
Brown v. Board o f Education, 349 U.S. 294, 300-01 (1955).....................passim
Buffington v. Baltimore County, Maryland, 913 F.2d 113, 135 (4th Cir. 1990)
cert, denied, 499 U.S. 906 (1991)............................................................... 132
Bush v. Vera, 517 U.S. 952 (1 9 9 6 )....................................................................... 103
Calhoun v. Cook, 525 F.2d 1203, 1203 (5th Cir. 1975)......................................... 74
Capacchione v. Charlotte-MecklenburgBd. ofEduc.,51 F.Supp. 2d 228
(W.D.N.C. 199 9 )................................................................................................passim
Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir. 1993) ................................... 122
vi
City o f Richmond v. J.A. Croson Co., 488 U.S. 469,
498 (1989)....................................................................... 72,83, 101, 106, 107
Coalition to Save Our Children v. State Bd. ofEduc. o f Delaware,
90 F.3d 752, 759 (3d Cir. 1 996 ).......................................... 39, 48, 61, 67, 71
Columbus Bd. ofEduc. v. Penick, 443 U.S. 449, 457 n.6(1979) ......................... 39
Cornish v. Richland Parish Sch. Bd., 495 F.2d 189, 191 (5th Cir. 1974) ........... 75
Daytona Bd. ofEduc. v. Brinkman, 433 U.S. 406, 410 (1977).............................. 34
Donnell v. United States, 682 F.2d 240, 247 (D.C. Cir. 1982),
cert, denied, 459 U.S. 1204(1983) ............................................................. 117
EEOC v. Strasburger, Price, Kelton, Martin & Unis,
626 F.2d 1272, 1273 (5th Cir. 1980) ........................... ............................. 116
Eisenburg v. Montgomery County Pub. Sch., 197 F.3d 123, 129 (4th Cir. 1999) . 82
Evans v. Harnett County Bd. ofEduc., 684 F.2d 304, 306 (4th Cir. 1982)........ .9 6
Exxon Corp. v. United States, 931 F.2d 874, 878 (Fed. Cir. 1991) ..................... 76
Farrar v. Hobby, 506 U.S. 103, 112 (1992)................................. 92, 120, 121, 122
Felder v. Harnett County Bd. ofEduc., 409 F.2d 1070, 1'074 (4th Cir. 1969) . . . 95
Freeman v. Pitts, 503 U.S. 467, 493-494 (1992) .......................................... passim
Full Hove v. Klutznick, 480 U.S. 149, 184 (1 9 8 0 ).......................................... 95, 102
Goldsboro City Bd. ofEduc. v. Wayne County Bd. ofEduc.,
745 F.2d 324, 327 (4th Cir. 1984) ................................................................. 39
Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1535 (9th Cir.),
cert, denied, 474 U.S. 826(1985) ......................... .......................... 116, 117
Hasten v. Illinois State Bd. o f Election Comm V, 28 F.3d 1430, 1441
(7th Cir. 1993).............................................................................................. 116
Hathcockv. Navistar In t7 Transp, Corp., 55 F.3d 36, 39 (4th Cir. 1995)........ 132
Hayes v. North State Law Enforcement Officers Ass ’n, 10 F.3d 202, 212 (4th Cir.
1993) ...................................................... 35, 82, 88, 102, 105, 108, 109, 111
Henry v. Clarksdale Mun. Separate Sch. Dist., 433 F.2d 387, 388 n. 3
(5th Cir. 1971) ................................................................................................64
Higgins v. Bd o f Ed. o f Grand Rapids, 508 F.2d 779, 794 (6th Cir. 1974) ........ 55
Hirabayashi v. United States, 320 U.S. 81, 100(1943)...................................... 107
Ho v. San Francisco Unified Sch. Dist., 147 F.3d 854, 856-865
(9th Cir. 1998) .......................................................................................... 37; 83
Hopwood v. State o f Texas, 78 F.3d 932 (5th Cir.), cert, denied, 518 U.S. 1033
(1996) ..................................................................................................105, 125
International Salt Co. v. United States, 352 U.S. 392, 400 (1947) ..................... 96
Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F,2d 945, 952 n.3
(11th Cir. 1989)........................................................................................ 38, 52
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 542(1991)................... 74
Johnson v. Bd. ofEduc. o f City o f Chicago, 604 F.2d 504, 516-17
(7th Cir. 1979) ................................................................................................ 56
Johnson v. Capital City Lodge No. 74, 477 F.2d 601, 603 (4th Cir. 1 9 7 3 )___ .95
Jones v. Lockhart, 29 F.3d 422, 423-24 (7th Cir. 1994)
viii
122
Keyes v. Congress o f Hispanic Educators., 902 F. Supp, 1274
(D. Colo. 1 9 9 5 )....................................................................................... 37, 52
Klinger v. Nebraska Dept, o f Correction Servs., 909 F. Supp. 1329,1335
(D. Neb. 1995).............................................................................................. 121
Koger v. Reno, 98 F.3d 631, 637 (D.C. Cir. 1996)................................................ 69
Koopman v. Water Dist. No. 1, 41 F.3d 1417 (10th Cir. 1994) ......................... 121
Lee v. Anniston City Sch. Sys., 737 F.2d 952, 957, n.3 (11th Cir. 1984)............... 55
Lee v. Etowah County Bd. o fE d u c 963 F.2d 1416, 1422 (11th Cir. 1992)........ 11
Lee v. Talladega County Bd. ofEduc., 963 F.2d 1426, 1429 (11th Cir. 1992 . . . 34
Liddell v. State o f Missouri., 731 F.2d 1294, 1314 (8th Cir. 1984)....................... 55
Locke v. Mesa Petroleum Co., 479 U.S. 1031 ...................................................... 77
Lockett v. Bd. o f Ed. o f Muscogee County, 111 F.3d. at 842: . . . . 34, 38, 50, 75, 77
Lone Star Steakhouse & Saloon, Inc. v. Alpha o f Virginia, Inc.,
43 F.3d 922, 938 (4th Cir. 1995) ................................................................. 40
Louisiana v. United States, 380 U.S. 145, 154 (1 9 6 5 ).................................... 95, 98
Loving v. Virginia, 388 U.S. 1, 11 (1967)...................................................... 94, 107
Lutheran Church - Missouri Synod v. FCC, 141 F3d. 344 (D.C. Cir. 1998) . . . 105
Martin v. CMS, 475 F.Supp. 1318
(W.D.N.C. 1979)............................... 4,10, 48, 66, 70, 75, 76, 77, 78, 79, 80
Maryland Troopers Assn., Inc. v. Evans, 993 F.2d 1072, 1074-76
(4th Cir. 1993)............................ 4 ,35 ,82 ,87 ,88 ,89 ,95 , 109, 110, 111, 132
Maul v. Constan, 23 F.3d 143, 145 (7th Cir. 1994) ........................... ............ .. . 122
IX
94McLaughlin v. Florida, 379 U.S. 184, 191-192
Mesa Petroleum Co. v. Coniglio, 787 F.2d 1484, 1488 (11th Cir. 1986) ........... 76
Miller v. Johnson, 515 U.S. 900, 904 (1995) ........ 85, 94, 95, 103, 104, 106, 110
Miller v. Stoats, 706 F.2d 336, 340-42 (D.C. Cir. 1983) .................................... 117
Milliken v. Bradley, 481 U.S. 717, 740-741 (1 9 7 4 ).............................................. 48
Mills v. Freeman, 942 F. Supp. 1449, 1456 (N.D.Ga. 199 6 ).............................. 51
Milton v. Des Moines, Iowa, 47 F.3d 944, 946 (8th Cir. 1995) ......................... 122
Missouri v. Jenkins, 515 U.S. 70, 101-02(1996) ..................... ............................. 67
Mutual Fed. Sav. & Loan Ass ’n v. Richards & Assoc., 872 F.2d 88, 92
(4th Cir. 1989)........................................................................................ 41, 132
Northeastern Fla. Chapter, Associated Gen. Contractors o f Am. v. Jacksonville,
508 U.S. 656, 666(1993)............................................................ 114, 123, 124
Paradise v. United States, 480 U.S. 149, 166
(1986) ............................................................... 82,88,95,96,102,106,108
Parents Ass ’n o f Andrew Jackson High Sch. v. Ambach, 598 F.2d 705, 719-20
(2dCir. 1979) ................................................................................................ 56
Pasadena Bd. o f Ed. v. Spangler, 427 U.S. 424(1976)................. 35, 36, 67, 77,78
People Who Care v. Rockford Bd. ofEduc., 111 F.3d 528, 537
(7th Cir. 1997) ............................................................................. 36 ,62,67,96
Plessyv. Ferguson, 163 U.S. 533-544 (1896) ........................... 106
Podberesky v. Kirwan, 38 F.3d 147, 153 (4th Cir. 1994) ........ .. 49, 83, 89, 111
Reedv. Rhodes, 934 F. Supp. 1533 (N.D. Ohio 1996) 51
Regents o f the Univ. o f California v. Bakke, 438 U.S. 265, 307 (1978) . . . . 78, 104
Riddick v. Sch. Bd. o f City o f Norfolk, 784 F.2d 521, 533 (4th Cir.),
cert, denied, 479 U.S. 938 (1986)................................................ 38, 39, 55, 63, 112
School Bd. o f Richmond v. Baliles, 829 F.2d 1308, 1311-1313
(4th Cir. 1987) .......................................................................................... 63,70
SEC v. United States Realty & Improvement Company,
310 U.S. 434, 459 (1940) ............................................................................ 116
Shaw v. Hunt, 154 F.3d 161, 164-68 (4th Cir. 1 9 9 8 )....................................passim
Singleton v. Jackson Mun. Separate Sch. Dist., 419 F.2d 1211(5* Cir. 1969) . . 61
Spencer v. General Elec. Co., 706 F. Supp. 1234, 1236-37 (E.D. Va. 1989),
a ff’d, 894 F.2d 651, 662 (4th Cir. 1990)............................................ 1 13, 126
Stillman v. Edmund Scientific Co., 522 F.2d 798, 800 (4th Cir. 1975) ............. 113
Stout v. Jefferson Co. Bd. ofEduc., 537 F.2d 800, 802 (5th Cir. 1976) ............... 56
Swann v. CMS, 243 F.Supp. 667 (1965)...................................................................6
Swann v. CMS, 300 F. Supp. 1358, 1372 (W.D.N.C. 1969)........... 6, 23, 26, 48, 63
Swann v, CMS, 306 F. Supp. 1299, 1312 (W.D.N.C. 1969)..................... 30, 63, 91
Swann v. CMS, 311 F.Supp. 265, 268-70 (1 9 7 0 )............................................ 30, 87
Swann v. CMS, 318 F.Supp. 786, 802-03 (1 9 7 0 ).................................................. 30
Swann v. CMS, 402 U.S. 1(1971) ................................................................... passim
Swann v. CMS, 379 F.Supp. 1102, 1103 (1974)................................................ 8, 31
Swann v. CMS, 67 F.R.D. 648, 649 (1975)........................................................ 9, 43
Swann v. CMS, 334 F. Supp. 623, 625 (1971) ...................................................... 63
xi
31Swann v. CMS, 401 U.S. 1, 23-25 (1971)................................................
Taxman v. Board ofEduc. o f the Township ofPiscataway, 91 F.3d 1547
(3rd Cir. 1996) cert, dismissed 522 U.S. 1010 (1997) .............. 42, 103, 105
Texas v. Lesage,____U.S.__ , 120 S.Ct. 467 (1999) ....................... 114, 115, 123
Tracy v. Board o f Regents o f the Univ. o f Georgia, 59 F. Supp.2d. 1314, 1322-
1323 (S.D. Ga. 1999) ................................................................................. 110
Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 703
(4th Cir. 1999)..................................................................... 41, 82, 89, 90, 101
United States v. Bd. ofEduc. o f St. Lucie County, 977 F. Supp. 1202
(S.D. Fla. 1997).............................................................................................. 52
United States v. City o f Yonkers & Yonkers Bd. ofEduc., 197 F.3d 41
(2d Cir. 1999) ............ .................................................................................. 70
United States v. Hunter, 459 F.2d 205, 220 (4th Cir. 1972) cert, den., 409 U.S. 934
(1972) ...................................................................... 99
United States v. Overton, 834 F.2d 1171 (5th Cir. 1987) ...................................... 35
United States v. United States Gypsum Co., 333 U.S. 364, 395(1948) ............... 38
United States v. Virginia, 518 U.S. 515, 547 (1996) ............................................ 98
United States v. Yonkers Bd.of Educ. 837 F.2d 1181, 1235-1238
(2nd Cir. 1 9 8 7 ).............................................................................................. 103
United States Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 824
(4th Cir. 1992)................................................................................................ 39
xii
Vaughns v. Bd ofEduc. o f Prince George’s County, 758 F.2d 983, 990
(4th Cir. 1985)................................................................... 38
Virginia Carolina Tools, Inc. v. International Tool Supply, Inc., 984 F.2d 113,
116 (4th Cir. 1993) ........................................................ .41
Vodrey v. Golden, 864 F.2d 28, 32 (4th Cir. 1988) ............................................ 132
Vulcan Tools o f Puerto Rico v. Makita USA, Inc., 23 F.3d 564, 566
(1st Cir. 1 994 )................................................................................................. 75
Washington v. Davis, 426 U.S. 229, 245(1976)..................... ............ .................. 65
Wessman v. Gittens, 160 F.3d 790, 792, 794, 800 (1st Cir. 1998) ................. 68, 83
Wilcox v. City o f Reno, 42 F.3d 550, 555 (9th Cir. 1994) ................................. 121
Wilder v. Bernstein, 965 F.2d 1196, 1204 (2d Cir. 1992) ......................... 116, 117
Williams v. United States Merit Sys. Protection Bd., 15 F.3d 46, 48
(4th Cir. 1994)................................................................................................. 41
Wilson v. Volkswagen o f America, Inc., 561 F.2d 494, 505-06 (4th Cir. 1977),
cert, denied, 434 U.S. 1020 (1978)........ .................................................... 132
Wolfe v. City o f Pittsburgh, 140 F.3d 236, 240 (3rd Cir. 1998)............................. 93
Wygant v. Jackson Bd. o f Ed., 476 U.S. 267, 273 (1986)...................................... 81
xiii
CONSTITUTION:
U. S. Constitution ...............................................................................................passim
STATUTES:
28U.S.C. § 1331 ......................................................................................................... 1
28U.S.C. § 1343 ......................................................................................................... 1
28U.S.C. §1291 ........................................................................................................... 1
42U.S.C. §1988 ............................................... ...................................... 41, 113, 115
42U.S.C. §1983 ....................................................................................................... 96
RULES:
Fed. R. Civ. P. 5 2 (a ) ......................... 39
Fed. R. Civ. P. 3 7 (d ).................................................................................................. 41
Fed. R. Civ. P. 33 ................................................................................................. 127
Fed. R. Civ. P. 37 .......................................................................................... 127, 132
Fed. R. Civ. P. 26(e)(1)......................... 127
Fed. R. Civ. P. 26(e)(2)..................................................................................127, 130
Fed. R. Civ. P. 37(a)(4)............................................................................................ 134
PUBLICATIONS
Friedrick A. Havek, The Constitution of Liberty. 160 (1960)
xiv
JURISDICTIONAL STATEMENT
Jurisdiction in the District Court was pursuant to 28 U.S.C. §§ 1331 and
1343. Appellate jurisdiction over these consolidated appeals is pursuant to 28
U.S.C. §1291 etseq.
The District Court accorded Appellees prevailing party status for purposes
of an award of attorneys fees in the September 9 Order. The December 13 Order
merely calculated the amount of that award. Appellant Charlotte-Mecklenburg
County Board of Education [hereinafter CMS] has abandoned its appeal from the
Order of December 13, 1999, with respect to the amount of the fees and expenses
awarded Appellees Michael Grant, et al [Grant], since it did not contest those
findings in its opening brief. See CMS Brief at p. 38. Nor does CMS contest
Grant’s status as prevailing parties under the Order of September 9, should it be
affirmed by this Court.
1
ISSUES PRESENTED
I. Whether the material findings of fact upon which the District Court based
its determination that CMS had attained unitary status are clearly erroneous?
II. Whether the District Court correctly applied the legal principles governing
the determination of a school district’s unitary status?
III. Whether the award of nominal damages to each Appellee was supported by
the evidence?
IV. Whether the District Court abused its discretion in fashioning prospective
injunctive relief?
V. Whether the District Court abused its discretion in sanctioning CMS for
discovery abuses?
VI. Whether Capacchione-Grant are entitled to their respective awards of
attorneys fees and expenses of litigation made by the District Court?
2
PRELIMINARY STATEMENT
The District Court’s Memorandum of Decision and Order of September 9,
19991 successfully culminates Swann v. Charlotte-Mecklenburg Board o f
Education, a thirty-five-year-old desegregation case. The Order terminated an
injunction intended when entered to be a temporary remedy to bring CMS into
compliance with Brown’s objective of transforming segregated dual school
districts into unitary school systems that assign students to public schools on “a
non-racial basis.” Brown v. Board o f Education, 349 U.S. 294, 300-01 (1955).
Since the case was deactivated in 1975, the Swann plaintiffs [now referred
to as Belk] have closely collaborated with CMS in the operation of the school
system. See Capacchione, 57 F.Supp.2d at 232. (“CMS, the Defendant, is now
allied with the original class action plaintiffs.”) Neither CMS nor Belk desire a
declaration of unitary status, even though several CMS experts and its former
Superintendent effectively concluded the school system was unitary many years
before this litigation ensued.2 This collusion transmogrified a temporary remedial
1Capacchione v. Charlotte-Mecklenburg Board o f Education, 57 F.Supp. 2d
228 (W.D.N.C. 1999) [hereinafter referred to as Capacchione or the Order]
2See Schiller Report (PX1), Stolee Report (DX108 at p. 1-2); and testimony
of former Superintendent John Murphy (Transcript, 4/26 passim).
3
order into what this and other courts have long warned against — court ordered
remedies taking on a life of their own. See Maryland Troopers Assn. Inc. v.
Evans, 993 F.2d 1072, 1074-76 (4th Cir. 1993).
The Belk plaintiffs have not initiated a single complaint or objection with
the supervising Court during the last twenty five years.3 This, coupled with the
“remarkable”4 fact CMS objects to termination of the desegregation order, further
demonstrates the collusive nature of this case. Neither Belk nor CMS want the
Swann case to terminate. Both CMS and Belk aggressively employ the
desegregation order to pretextually perpetuate race-based student assignments for
non-remedial, i.e., racial diversity, purposes. Capacchione, 57 F.Supp. at 232. The
voluntary augmentation of the desegregation order with a magnet school program,
which employed strict racial quotas and required seats be “set aside” for black
students and remain empty rather than be assigned to non-black students, is strong
proof of that mindset.
The CMS collaboration with Belk was also manifest at trial. In unison,
3In 1980, the Swann plaintiffs assisted CMS in defending the case of Martin
v. CMS in order to perpetuate race-based student assignments. See infra
Argument, Section II G. Since 1975, Belk has never taken an adversarial position
to CMS.
4CMS brief at 13.
4
Belk and CMS “admitted” CMS had failed to comply with the desegregation
order; yet, Belk “agreed” with CMS that it did not need judicial supervision.
Belk’s cooperation with CMS in formulating litigation strategies has even
extended to the appellate process with Belk briefing the unitary status issues and
CMS briefing the injunction issue while simultaneously adopting each other’s
positions.
By declaring CMS unitary and enjoining it from continuing to employ racial
quotas, the District Court finally achieved Brown’s goal of admitting children to
public schools on “a non-racial basis.” Brown, 349 U.S. at 300-01. Belk and CMS
seek the opposite goal: they hope to defer a declaration of unitary status via this
appeal so a “controlled choice” student assignment plan, described by the District
Court as even “more race conscious...” than the remedial plan, can be
implemented. Capacchione, 57 F.Supp. 2d at 257. The tension between the two
competing goals provides the engine that drives this appeal.
5
STATEMENT OF THE CASE
1. Procedural History: Original Violations and Court-Ordered Remediation
Thirty-five years ago, several black parents initiated this action alleging that
CMS segregated its students and teachers by race. Swann's Motion to Restore the
Case to Active Docket, Exhibit 3 at 4. The Plaintiffs made no original allegations
that CMS maintained a system with discriminatory facilities, transportation,
extracurricular activities or educational opportunities. Id.
Over thirty years ago, former District Court Judge James B. McMillan
specifically found no racial discrimination as to “the use of federal funds; the use
of mobile classrooms: quality of school buildings and facilities: athletics . . .;
school fees; free lunches; books; elective courses nor in individual evaluation of
students.” Swann v. CMS, 300 F. Supp. 1358, 1372 (W.D.N.C. 1969).5 The 1970
desegregation decree was designed to eliminate the only vestiges of segregation
found to exist in the areas of student and faculty assignment., See Swann, 243 F.
Supp. 667 (1965); Swann, 300 F. Supp. 1358, 1372 (1969); Swann, 311 F.Supp.
5A11 Swann district court orders were entered against CMS in the Western
District (i.e., W.D.N.C.). Case citations to the various Swann orders will not
reiterate this reference.
6
265, 268-70 (1970); and Capacchione, 57 F. Supp.2d 228, 233-234.6 The 1970
order was the only desegregation decree ever issued in the Swann case. At its
heart was the simple directive that “no school [could] be operated with an all black
or predominantly black student body.” Id. at 268-70.7 CMS implemented the
decree and achieved complete desegregation of virtually all its schools for a
minimum of ten years. Capacchione, 57 F.Supp. 2d. at 246-249.
In 1971, the Supreme Court afforded the Swann case plenary review. See
Swann v. CMS, 402 U.S. 1,91 S.Ct. 1267 (1971). The Swann decision has
provided the following guide posts for district courts around the Nation engaged
in the supervision of dual public school systems:
1. With regard to racial balances or quotas, the limited use o f
mathematical ratios of white to black student is permissible “as a
starting point” but not as “an inflexible requirement. ” Id. at 22-25
(emphasis added).
2. The existence of “one-race, or virtually one-race, schools” does not
6The Order includes a succinct and accurate summary of the numerous
orders entered over the thirty-five year history of this case. Since neither CMS or
Belk has objected to the District Court’s chronicle of the procedural history of this
case, it should be adopted by this Court. Capacchione, 57 F. Supp. 2d at 232-238.
7In fashioning its desegregation order, the district court refused to adopt the
Swann plaintiffs plea for inclusion of precise racial quotas (like those unilaterally
implemented with the 1992 magnet school plan and held unconstitutional in this
case) “This court does not feel it has the power to make such a specific order.”
Swann, 300 F.Supp. at 1371. See Capacchione, 57 F.Supp. 2d at p. 230.
7
necessarily mean that desegregation has not been accomplished, but
such schools “in a district of mixed population” should receive close
scrutiny to determine that assignments are not part of state-enforced
segregation. Id. at 25-27.
3. The remedial altering of attendance zones, including the pairing and
grouping of noncontiguous zones, is not, as “an interim corrective
measure,” beyond the remedial powers of a district court. Id. at 27-29
(emphasis added).
4. The use of mandatory busing to implement a remedial decree is
permissible so long as “the time or distance of travel is [not] so great
as to either risk the health of the children or significantly impinge on
the educational process.” Id. at 29-31.
On July 30, 1974, the District Court approved several additional CMS
policies, presented as the CAG Plan. The Court characterized the Plan as
evidencing “a clean break with the essentially ‘reluctant’ attitude [of former
Boards of Education].” Swann, 379 F.Supp. 1102, 1103 (1974). “If implemented
according to their stated principles, they will produce a ‘unitary’ (whatever that is)
system.” Id.
These 1974 modifications included approval of three “optional” schools
which had no attendance zones. The District Court approved a flexible admissions
guideline for optional schools of “about or above” 20% black students to avoid
them becoming havens for white students seeking to avoid desegregation. Id. The
District Court never approved the use of strict racial quotas or segregated race-
8
based admissions lotteries for the optional schools.
On July 11, 1975, Judge McMillan placed the case on the inactive docket
with his “Swann Song” order. Swann, 67 F.R.D. 648, 649 (1975). The court noted
the Board's "positive attitude" and its open support of "affirmative action" as cause
for great confidence in the fact a declaration of unitary status was imminent. Id.
For the next twenty two years, the case remained inactive. CMS operated
autonomously, relying increasingly on strict racial quotas and the mandatory
busing of students to counteract the racial demographic change occurring within
the school system and throughout the entire county and maintained an
extraordinary level of racial balance in student assignment system wide.8
By 1992, the 1970 desegregation decree had developed into a permanent,
ever-accelerating racial quota system directed not at eliminating vestiges of
segregation but at combating demographic change. Given the continually
expanding role race played in student assignment to counteract Charlotte’s rapid
growth and the powerful demographic forces unleashed thereby, it was only a
The Report of Dr. David Armor, Capacchione-Grant’s principal expert,
details the exceptional levels of integration CMS achieved in its schools.
Plaintiffs’ Exhibit (PX) 137, Figures 1 and 2. This sustained racial balancing
achieved by CMS is further documented infra in Section IIA of this brief and in
Section IIB(l) of the Order. Capacchione, 57 F.Supp. 2d at 244-248.
9
matter of time before exasperated parents would challenge the constitutionality of
the dominant role race continued to play in the education of their children.9
2. CM S’ Historic Compliance with the Court Orders
For the last twenty-five years, CMS has "routinely reaffirmed its
commitment to integration, and the Court has never sanctioned CMS for violating
its desegregation orders.” Capacchione, 57 F. Supp.2d at 282. During this time,
the Belk Plaintiffs have never complained to the District Court that CMS violated
any aspect of the desegregation order, nor have they initiated a court challenge to a
school siting, student and faculty assignments or any other CMS policy or
practice. Id. at 239, 282. Indeed, Belk has never complained to the Court about
CMS compliance with the desegregation order except to urge it to maintain the
status quo when third parties challenged the continuing need for race based
busing.10
In April of 1999, the District Court commenced a two-month trial in which
it conducted an exhaustive review of CMS' compliance with its court ordered
student and faculty assignment obligations and the other factors deemed relevant
9The procedural history of this latest, and hopefully final, chapter in the
Swann litigation is detailed in the Order. Capacchione, 57 F.Supp. 2d at 239-40.
10 See, e.g., Martin v. CMS, 475 F.Supp. 1318 (W.D.N.C. 1979).
10
to unitary status under Green. Based upon largely uncontradicted evidence, the
Court found that since 1970 CMS was "highly desegregated for about twenty years
and 'well desegregated' for the remaining years." Capacchione, 57 F. Supp.2d at
248-249 (emphasis added).
On the central issue of student assignment, the District Court found the only
cause for any school’s racial imbalance was demographic change. Id. at 250.
Remarkably, during the very first decade of the desegregation process, "almost
every school was in compliance.” Id. at 249.11 In a report the Board commissioned
and adopted in 1992, an expert described CMS as having complied with the Court
Orders in good faith and desegregated all of its schools. (PX 11, p. 1-2).
Currently, over 70% of CMS' schools comply with the order’s racial balancing
goals; and, of those non-compliant schools, "a great deal" have been "borderline"
1 'In 1992, the Supreme Court approved a declaration of unitary status in student
assignment for the DeKalb County Schools despite the fact its schools had only one
year of compliance. Freeman v. Pitts, 503 U.S. 467, 493-494 (1992). ("this plan
accomplished its objective in the first year of operation, before dramatic demographic
changes altered residential patterns. For the entire seventeen year period,
Respondents raised no substantial objection to the basic student assignment system,
as the parties in the District Court concentrated on other mechanisms to eliminate the
dejure taint"). The Eleventh Circuit has found three years of compliance sufficient
to support a declaration of unitariness. Lee v. Etowah County Bd. o f Ed., 963 F.2d
1416, 1422(11th Cir. 1992).
11
compliant. Id}2 The District Court also found that, when compared to other urban
unitary school systems, CMS had "achieved a higher degree of racial balance . . . "
Id. at 248-249.
The District Court conducted a vestiges analysis of student assignment and
found that "[a]ll of the former de jure black schools still in operation have
maintained consistent levels of racial balance for at least twenty-two years . . ."
even though they are located in predominately black neighborhoods where the
density of black students has increased significantly over time. Id. at 253-254
(emphasis added). After at least twenty-two years of sustained system-wide racial
balance, only four formerly black schools under the dual system were found to
have become imbalanced and those few only after over 20 years of racial balance.
Id. at 254. The Court further found that twelve of the current schools that were
predominantly black for three or more years were all formerly white schools in the
I2The District Court's findings regarding CMS' high level of compliance is
actually understated. The Court's compliance analysis used the most restrictive
possible standard of desegregation, not the one actually required under the orders.
The desegregation order entered in 1980 only required CMS to avoid schools
having a black student population that exceeded the system wide black student
average population by 15%. The court never required any set minimum black
student population. However, the District Court’s review added a minimum black
student population standard equal to the system wide average black population
less 15%. The District Court acknowledged this +/- 15% of the system-wide
average was not required under the desegregation order. Id. at 246.
12
dual system. Id. at 254.
3. Demographic Change in Charlotte-Mecklenburg and CMS and the
Impact on Student Assignment
The demographics of CMS student population and of the Charlotte-
Mecklenburg area, from the entry of the desegregation decree in 1970 to present,
are carefully set forth in the Order, Id. at 236-239; 249-50.13 The Order details a
history of sweeping changes which neither CMS nor Belk dispute. This Court is
respectfully requested to adopt them.
The District Court described CMS as having "institutionalized" its
obligations under Swann to the extent that CMS repeatedly sought to counteract
residential racial demographic changes rather than isolate and eliminate any actual
vestiges of segregation. Id. at 249; 255.14 CMS began to experience racial
imbalances in its schools due to "the changing demographics of the county and the
,3The percentage of white students attending CMS schools has declined
from approximately 75% at the outset of the desegregation process to just over
50% today. This dramatic shift in the racial composition of the school system had
made the original edict of no majority black school unrealistic. This school district
will soon be a majority-minority system. See Clark Report (PX 138 at 4-5, Table
1); Capacchione, 57 F.Supp.2d at 237-238; Clark Testimony passim.
,4CMS went so far as to plan, fund and administer several housing
initiatives, believing it was constitutionally justified in delaying unitary status
while it tried to change housing patterns in Charlotte. Capacchione, 57 F.Supp 2d
at 283.
13
expanding geographic distribution of school age children___" Id. at 250. The
Court found that the rapid growth of previously undeveloped areas in the northern
and southern parts of the county, and the resulting change in residential
demographics played the "largest role" in causing racially imbalanced schools. Id.
Specifically, the District Court found that the so-called "inner city" had a
"still more concentrated" black student population today than in 1970. Id. at 237.
In the "donut-like middle suburban" communities, surrounding the inner city,
residential demographics changed from "almost all white in 1970 . . . to
predominately black . . . " today. Id. Almost all presently racially imbalanced
black schools are located in these two predominantly black residential areas.
These areas have "lost large numbers of white residents since the 1970's". Id. The
District Court noted that the "outer area" which extends in a ring around the
middle suburban and inner city areas has experienced the highest level of
population growth in the county. Id. Moreover, the "outer area" is between 75% -
95% white. Id. at 254-255.
These changes meant that the middle suburban area, which once supplied
reasonably proximate populations of white students for satellite zones or pairing
relationships to racially balance the black inner city schools, were now
predominantly black. Thus, the distances between black inner city areas and white
14
suburban areas grew while the density of black inner city and middle suburban
black populations increased. Consequently, proximately located white student
populations were unavailable to racially balance black inner and middle suburban
schools, given rush hour traffic problems that created unduly burdensome bus
rides.
Based on these findings of demographic change, the District Court
concluded "there can be no doubt that demography and geography played the
largest role in causing imbalance." Id. at 250 (emphasis added). These findings
were not seriously challenged by either CMS' or the Belk Plaintiffs' demographers.
The court’s findings are corroborated by at least four major CMS studies.
In 1988, Assistant Superintendent Dr. Bruce Irons found CMS was experiencing
increases in the number of racially imbalanced schools due primarily to
demographic changes in the racial composition of attendance zones (Plaintiff-
Intervenors' Index of Relevant Testimony and Documentary Evidence [Index], p.
119).
A second study in 1992 by Assistant Superintendent Jeffrey Schiller and
staff member Chuck Delaney documented how dramatic demographic changes
within the attendance zones of certain schools caused racial imbalances. A third
study conducted in 1994 by Schiller reiterated that CMS' schools were becoming
15
increasingly racially imbalanced due to demographic changes "in attendance
zones" that were cumulatively inhibiting CMS' ability to racially balance its
schools. Id. at 121. Dr. John Tidwell conducted a fourth study corroborating the
previous studies and concluding that demographic change was "too powerful for
CMS to conquer with student assignment policies alone." Id. at p. 122 (emphasis
added).
Schiller's 1994 report is especially authoritative and compelling. This study
demonstrated how sustained levels of demographic change in attendance zones of
formerly balanced schools resulted in the schools becoming racially imbalanced.
Schiller analyzed several predominately white neighborhoods with racially
balanced schools in 1987-88 that experienced significant losses of white residents
and reciprocal increases in black residents resulting in racially imbalanced schools
during the 1992-93 school year. (PX 8, Appendix H). Schiller's report concluded:
• Racial residential demographic changes were the "primary cause" of
racially imbalanced schools, in part, because "the inner city . . . became
'blacker'. . ." and the outer suburbs "became whiter."
• No evidence indicated "CMS policies or practices are responsible . .
." for increasing levels of school segregation; and
• The "continuing and cumulative effect of demographic shifts . . . "
inhibited CMS' ability to maintain desegregated schools (PX 1).
CMS has admitted that demographic change was causing the very imbalance
16
it now seeks to use as a way to forestall its own unitary status. In a 1993 letter to
the United States Department of Education [DOE], CMS legal counsel represented
that the magnet school program was implemented "[b]ecause . . . of demographic
and residential patterns in the community [which] have made it extremely difficult
to continue . . . . the Court approved desegregation techniques which had
been rendered increasingly ineffective by demographic change.” (PX 4, p. 3,
emphasis added). In 1994, present CMS counsel of record cited this same rationale
for maintaining the magnet school program. (Id., letter from James G.
Middlebrooks).
The Court specifically found that CMS did not attempt to bring about any
resegregative residential demographic change. Capacchione, 57 F.Supp.2d at 250.
CMS repeatedly sought to counteract the effects of demographic changes by
undertaking disruptive, destabilizing student reassignments in the late 1980!s and
early 1990's. Capacchione, 57 F.Supp.2d at 238. Such racial balancing proved to
be an increasingly impossible task because the area in the county with the highest
density of black students was becoming increasingly black while predominantly
white suburban areas became whiter still. The residential areas in between the
inner city and the outlying suburbs also became increasingly black and widened
the distances between the highest concentrations of black students and
17
communities predominantly composed of white students. CMS adopted the
magnet school program specifically to counteract demographic changes in
attendance zones that were causing schools to fall out of racial balance.
4. Demographic Change, School Siting and CMS Compliance
CMS' school siting practices were found to be compliant with the Court's
Orders since 1980. Judge McMillan had urged CMS to avoid siting schools based
upon "population growth trends alone . . . " and directed CMS to consider "the
influences . . . of new building . . . " on simplifying integration. Swann, 57 F.
Supp. 2d at 251 (emphasis added). The court did not prohibit CMS from building
schools to address growth needs in any part of the county so long as other factors
were also considered. Obviously, no constitutional court order could prohibit CMS
from being responsive to demographic changes and public demand for services at
a level that could not have been foreseen in the 1970's.
The District Court analyzed the last twenty years of CMS' school siting
practices and concluded it had not followed "an intentional or neglectful pattern of
discrimination." Id. at 251-52. The Court found CMS had "not based its school
planning on growth trends alone-----Rather, it routinely considered] racial
diversity in school siting decisions," and "a host of other important criteria, such
as finances, site availability, site size, traffic patterns, transportation burdens, and
18
utilization." Id. As a result, CMS had maintained a "well desegregated" school
system for nearly 30 years.
The District Court further found CMS built schools to reasonably serve both
black and non-black students. The majority of CMS* schools built since 1980 have
had racially balanced student bodies every year since they were opened. Id. at
252, n. 26. CMS did not engage in a practice of closing racially mixed schools
while building schools in predominately white areas. Rather, the District Court
described CMS' school sitings in its outer areas as a "pressing necessity" due to
massive increases in suburban residential populations causing overcrowding. Id.
at 252.
The District Court found that "[t]he majority of new schools built since
1980 ~ fifteen out of twenty-seven - have had racially balanced student bodies
every year since they have been opened." Id. at 252, n. 26. Since 1980, most
newly built schools have been sited in the fastest growing areas of the county. The
Court held this was partly "a consequence of racial balancing requirements"
produced by the practical impossibility of assigning white students to any schools
built in the inner city without untenably long bus rides. Id. at 252-253. The Court
found that "[bjuilding schools in the inner city would have exacerbated this racial
balancing dilemma." Id.
19
High levels of integration were achieved and sustained by CMS despite an
array of practical l imitations on school siting such as the unavailability of suitably
affordable large tracts of land -- minimum 50 acres for high schools — in densely
populated, predominately black mixed use inner city areas, or in areas between
predominately black and white neighborhoods.
5. Compliance with the Faculty Balance Requirements
The desegregation order never established specific numerical targets for
racially balancing the various schools faculties. Id. at 259. The District Court
found CMS' faculty was 90 percent compliant with the Court's Orders "during the
school years with the 'worst' racial imbalance." Id. at 259-260. The trial court
further found that since 1977, "seventy-five percent to ninety percent of the
district's schools have racially balanced faculties" even when schools not subject
to the prior orders were counted. Id. This high level of compliance was achieved
despite changing residential racial demographics, strong teacher preference to
work in a school close to their home and an "especially pronounced" black teacher
shortage. Id. at 259.
6. Roughly Equal Transportation Burdens
The District Court examined the comparative transportation burdens giving
due consideration to Judge McMillan's acknowledgment that "absolute equality"
20
regarding the desegregation transportation burden was not required, and his
explicit finding that the transportation burdens for black children were not
unconstitutional due to the practical limitations on achieving more equal travel
burdens while still racially balancing all schools. Id. at 253.
From 1974 through 1992, the busing of black and white students was
substantially equal. (Plaintiffs' Index, f 154, p, 65). When CMS voluntarily
implemented the magnet school plan, the District Court determined that "a greater
proportion of white students . . were voluntarily bused for desegregation
purposes "on generally . . . much longer bus rides". Capacchione, 57 F.Supp.2d
at 252-53. That is because CMS located its highly attractive magnet schools
almost entirely in the inner city in order to draw non-black students in from the
suburbs. Id. Black students wishing to attend magnet schools can choose a school
located in predominantly black inner city neighborhoods and avoid any significant
transportation burden.
The comparative busing burden is complicated by the racial demographics
of the county's residential neighborhoods. The Court found that if white students
in outer suburban neighborhoods were involuntarily assigned to inner city schools,
it would have required intolerable trip times due to "rush hour traffic." Id.
(Testimony of Sharon Bynum, April 22, 1999, p. 14.) The District Court
21
concluded, "[gjiven the realities of the situation . . . the current situation may be
about the best CMS can do while adhering to racial balance guidelines." Id. at
253.
7. Demographic Change, Magnet School Transfers and Compliance
Importantly, the District Court found the CMS' magnet school program "had
an overall effect of countering resegregative trends . . . " resulting in fewer blacks
attending segregated schools than if the magnet school program had not been
adopted. Id. at 249-250, n.23. The court further found that student transfers into
magnet school were monitored by CMS to ensure that they had an overall
integrative effect on the school system. Id.
In 1993, CMS conducted a study designed in part to monitor the effect of
magnet transfers on the desegregation plan. That study analyzed magnet transfer
patterns, and concluded there was "no evidence of a negative systematic impact on
the racial balance of the non-magnet schools." Remarkably, yet consistently,
Belk’s expert witness, Dr. Leonard Stevens, testified that magnet school transfers
never caused a school he analyzed to fall out of compliance with any court order.
(Stevens testimony, pp. 182-183). Dr. Stevens conceded that if the inner city
schools were not converted to magnet schools, "it is quite possible that these
schools would have remained out of compliance. . . . " Finally, this Belk expert
22
concluded there was no evidence that any CMS school failed to achieve its racial
balance goals because of transfers to magnet schools. Actually, the magnet schools
had an overall integrative effect on CMS. Capacchione. 57 F.Supp.2d at 250, n.23.
Non-magnet transfers were also fastidiously monitored. Actually, CMS’
Board so carefully watched its non-magnet transfers that children were routinely
denied transfers despite their hardships solely to preserve precise racial balancing.
(Testimony of Lindalyn Kakadelis, p. 46-52). One Board member described this
process as disturbing. Id. at 46.
8. Facilities
The District Court found CMS' facilities were not maintained or allocated
discriminatorily. In 1969 and again in 1971, Judge McMillan found that CMS
never maintained racially discriminatory facilities. See Swann, 300 F. Supp. at
1366; Swann, 306 F. Supp. 1291, 1298 (1969); Swann, 334 F. Supp. 623, 625
(1971). The Court thus concluded "that there were no vestiges of discrimination
in facilities at the initial stages of the Swann case and again at the close of the case
in 1975.” Capacchione, 57 F. Supp.2d at 262.
Both the testimony of CMS' facilities expert, Dr. Dwayne Gardner, and the
CMS' Assistant Superintendent responsible for facilities, Jeffrey Booker,
23
demonstrated that CMS maintained its facilities without racial discrimination.15
The District Court found Dr. Gardner’s report, while suffering from serious
methodology problems, demonstrated "no disparities [in facilities] along racial
lines." Id. at 264.
The two lowest rated schools in the district were so inadequate they needed
to be replaced. Yet, "both [were] majority white schools in predominately white
neighborhoods . . . Id. at 264-65. By contrast, the second highest rated school
was predominately black and located in a black neighborhood. Id. at 265.
Eighteen racially identifiable white or racially balanced schools fell into Dr.
Gardner’s second lowest, "needs major improvement," rating category. Id. Sixteen
predominately black schools were given that rating. Id. Even using a flawed and
result-oriented methodology of evaluating only a portion of predominately white
or balanced schools while evaluating all predominantly black schools, the greatest
number of schools falling in the "needs major improvements" category of the
report were still either predominately white or racially balanced.
The Court concluded that more white and racially balanced schools were
"likely to [be].. . needing major improvement". Dr. Gardner's report demonstrated
15The schools evaluated by Dr. Gardner were selected by CMS. At least 50
needy, racially balanced schools were excluded by CMS from his analysis.
(Plaintiffs’ Index, pp. 57-61).
24
"that CMS' facilities' needs are spread across the system without regard to the
racial composition of its schools." Id. Dr. Gardner actually testified that he could
not trace any disparities to the dual system. Id.
Booker wrote a memorandum in August 1997, identifying those schools
"having impediments that inhibit the delivery of instructional services." He
identified three times as many racially balanced or racially identifiable white
schools with facilities inhibiting the delivery of the instructional program. See
Plaintiffs' Index, p. 61. Based upon Booker’s testimony, the Court found 108 out
of 135 schools were "in need of renovations and most of these needy schools — 80
out of 108 or roughly 75 percent of them -- have racially balanced populations."
Id. at 265. Like Gardner, Booker testified he could not trace any inequities to the
dual system.
The Court found CMS had spent over $500,000,000 renovating older
facilities, many of which were in the inner city. CMS' own surveys showed black
parents were satisfied — in some cases more so that white parents - with the
facilities their children attended. Capacchione, 52 F. Supp.2d at 264, n. 33.
Despite these enormous expenditures, older facilities tend to be comparably
inadequate regardless of the racial composition of their student body because, as
Dr. Gardner testified, they were built to satisfy the needs of entirely different
25
educational programs than those used today. (Plaintiffs' Index, ^ 135, pp. 56-57).
These schools are not inadequate because of the race of the students who attend
them, rather, their inadequacies stem entirely from their age and the limited
financial resources of CMS. Capacchione, 57 F.Supp.2d at 266.
9. Resources
In 1969, the District Court determined CMS had not discriminated
regarding library books, elective courses, the availability of and assignment to
advanced classes and other educational resources. Swann, 300 F. Supp. at 1366-
1367. See Swann, 306 F. Supp. 1291, 1298 (1969) Thirty years later, these
findings were repeated by the District Court without an intervening complaint to
the contrary from thesBelk Plaintiffs. Capacchione, 57 F. Supp.2d at 261-262
(1999). (“no vestiges of discrimination in . . . resources at the initial stages of the
Swann case. . . .”).
The finding that CMS did not discriminate in allocating its educational
resources was based largely upon the unrebutted testimony of two CMS assistant
superintendents. Both testified CMS allocated funds to schools "on a per pupil
basis" which means all schools received resources based on the number of
students, not race. The District Court found this practice safeguarded against
discrimination and ensured equality in the allocation of resources. Id. at 266.
26
The Court also found much of the evidence of inequitably allocated
resources was unreliably "anecdotal" which rendered the allegations of inequality
"inconclusive." Id. at 265. Morever, much of the anecdotal evidence demonstrated
that racially identifiable white schools faced greater resource needs than racially
identifiable black schools. Id. at 263-64.
Former Assistant Superintendent Dan Saltrick conducted a study that found
each school in CMS implemented the "same core curriculum . . . " and found "no
differences in the allocations for instructional staff, materials or text books . . . [in]
any [CMS] school." (PX 29). Additional resources were routinely allocated to
predominately black schools that were not made available to white or racially
balanced schools (Index, pp. 67-71). In fact, black students in predominantly black
schools had more favorable student-teacher ratios than white imbalanced schools.
{Id. at 71). When Mr. Saltrick was asked if black students were denied equal
educational resources, he testified, "no." Id. at p. 74. Instead, he testified the
opposite was true in many cases.
Finally, the Court found that if any racial disparities in resources did exist,
they were caused by private factors such as PTA, parent and corporate
sponsorships and contributions which were isolated and outside of CMS' control .
Id. at 266, n. 27. The District Court correctly concluded Capacchione-Grant
27
proved the absence of racially discriminatory intent and causation as to any
alleged resource disparities.
10. CMS' Magnet Schools and Rigid Racial Quotas
While CMS' level of compl iance with the Court's desegregation order on
student assignment was found to be very high, the District Court concluded "CMS
went too far in trying to achieve racial balance in its magnet schools by imposing a
selfprescribed quota that was too inflexible." Id. at 282, n. 45 (emphasis added).
These racial quotas were imposed on CMS' students through a racially segregated
magnet school dual lottery system and strict seat “set asides” based on race.
a. The magnet schools were a voluntary desegregation plan
implemented to counteract demographic change
In 1992, CMS voluntarily implemented its "greatest change in student
assignment policy by adopting a student assignment plan that emphasized the use
of magnet schools. Id. at 239. This change was inaugurated by a 1992 report
prepared by Dr. Michael Stolee, a CMS retained expert in student assignment. The
report specifically found that, over the prior twenty years, CMS had "in good faith,
complied with the Orders of the Court . . . " and that "all public schools in the
system have been desegregated." (PX 11) (emphasis added). Despite these
findings, Dr. Stolee recommended that CMS adopt a magnet school program,
28
cautioning that CMS should obtain court approval prior to doing so,16
Ignoring these findings and warnings, CMS initiated the magnet school
program as a “self-prescribed...” voluntary desegregation plan. Id. at 282, n. 45.
The magnet school program was not designed to eliminate vestiges of the dual
school system; Dr. Stolee determined none existed in student assignment. Rather,
the plan was designed to correct racial imbalance caused by demographic changes.
(PX 4).
The sweeping demographic changes that motivated CMS to adopt its
magnet school program were noted as early as 1988 in the report of Dr. Irons. He
correctly concluded that the cause of schools falling out of racial balance was
demographic change. In his report, Dr. Irons predicted residential racial
demographic change would most strongly affect CMS' ability to maintain racially
balanced schools. (PX 3).
Dr. John Murphy, the former CMS superintendent who devised and
implemented the magnet school program, also admitted that CMS adopted the
magnet school plan to racially balance schools that were imbalanced due to
16Contrary to its own consultant's warnings that CMS should obtain prior
court authorization, CMS implemented the magnet school plan without court
approval or supervision.
29
residential racial demographic shifts. (Murphy testimony, pp. 33, 46). He also
conceded the desegregation order was used by CMS as a shield to facilitate
attainment of racial balancing goals (Id. at pp. 31-33). This was no secret. CMS
openly acknowledged to the Department of Education that its magnet school plan
was implemented "[bjecause . . . of demographic and residential patterns___"
(PX4).
b. The magnet schools* rigid racial admission quotas
The plan clearly violated prior Swann orders because CMS implemented the
racially segregated lotteries which used strict racial quotas to populate the magnet
schools. The District Court noted that Judge McMillan "firmly rejected the use of
rigid racial quotas . . . " quoting him as admonishing CMS that "fixed ratios o f
pupils in particular schools will not be set" and requiring flexibility in its effort to
achieve racial balance. Id. at 286; quoting Swann, 306 F. Supp. at 1312 (emphasis
added); Swann, 311 F. Supp. at 268; See also Swann, 318 F. Supp. at 792
(approving schools with only three percent black population, stating "this is not
racial balancing but racial diversity. The purpose is not some fictitious 'mix,' but
the compliance of this school system with the Constitution") The Court
specifically stated that "racial balance is not required by this Court" but rather
permitted "wide variations in permissible school populations . . . . " Swann, 318 F.
30
Supp. at 792. The Supreme Court in Swann also held that racial balancing was
forbidden under the desegregation order. Swann v. CMS, 401 U.S. 1, 23-25
(1971). The District Court therefore did not impose "an inflexible requirement,"
but approved only "the very limited use ...of mathematical ratios." Id. at 25
(emphasis added).
The three optional schools approved in 1974 did not use rigid racial quotas.
Swann, 379 F. Supp. at 1104. Unlike the admission process for optional schools,
CMS used racially segregated lotteries to admit students to magnet schools. Id. at
287. (CMS used a "black lottery and a non-black lottery until the precise racial
balance is achieved.") CMS set a sixty percent non-black and forty percent black
racial quota for each school. The District Court found that "[i]n policy and in
practice, the magnet schools 60/40 ratio requirement is an inflexible quota." Id. at
288. 17
CMS' policy also required that magnet school seats were reserved in such a
way that "slots reserved for one race will not be filled by students of another race."
Id. For example, if after the black lottery was concluded two black seats
17In the case of Christina Capacchione's 1996 application for the 1996-1997
school year, all black applicants were admitted to the Olde Providence school
while over 100 non-blacks were wait listed. Capacchione, 57 F. Supp.2d at 288.
Accordingly, the odds of a non-black student being admitted to a magnet school
were enormously smaller than those of a black student.
31
remained open, CMS would not allow non-black students to immediately fill them
even though the school in question was well within the Court's racial balance
guidelines. Id. Instead, CMS actively recruited for the remainder of the spring
and into the summer to find two more black students to fill those seats. Id.
Furthermore, while blacks were recognized as one racial category, all other races
were simply lumped together as "non-blacks."
The District Court found the magnet schools offered "specialized curricula"
while optional schools did not. Id. at 286, n. 49. Also, while the optional schools
"guaranteed admission into schools of equal quality;" the magnet school program
had no such guarantee. Id.
In many magnet schools, the District Court found it "was not uncommon for
the school year to begin with seats remaining vacant because students of one race
would disrupt the desired racial balance." Id. Based upon this evidence, the Court
concluded CMS, in direct contravention of Judge McMillan's Orders, employed
"inflexible" quotas "using mathematical ratios not as a starting point but as an
ending point." Id. at 289-290.
The District Court then found the rigid racial quotas were unnecessary
because they were not required by the desegregation orders, but rather, forbidden
by those orders and unnecessary in the later years of the desegregation order. Id.
32
The inflexibility of the quotas was such that the Court stated it would be "hard
pressed to find a more restrictive means of using race" Id. The quotas were also
found to be indefinite in duration. Id. at 290. Ultimately, the Court deemed the
quotas as lacking any "reasonable basis" and amounted to CMS' ‘“ standing in the
schoolhouse door’ and turning students away from its magnet programs based on
race .. ."!8 which was incompatible with Brown’s goal of achieving "a system of
determining admissions to the public schools on a non-racial basis." Brown v.
Board o f Education, 349 U.S. 294, 300-301 (1955).
The District Court concluded the CMS' magnet lottery denied CMS students
"equal footing" in obtaining an enhanced educational opportunity and that "this
denial of equal footing occurred even where seats were available and where racial
balancing goals under the desegregation Order would not be affected."
Capacchione, 57 F.Supp. 2d at 289.
Having found that CMS denied students "equal footing" based upon race
through its magnet school lottery, the District Court correctly enjoined the precise
practice it found unconstitutional, directing CMS to refrain student assignment
practices designed "to deny students an equal footing based on race."
Capacchione, 57 F. Supp.2d at 294. The Court declared CMS unitary in all
18Capacchione, 57 F.Supp.2d at 290.
33
respects, and awarded the Plaintiff Intervenors nominal damages, attorneys' fees,
expert fees, and costs. Id.
SUMMARY OF ARGUMENT
The increasingly uniform and authoritative rulings of federal courts limit the
role of a supervising court in a desegregation case to elimination of the dual
system of segregated education and their vestiges with a return of control to local
authorities at the earliest opportunity. See Freeman v. Pitts, 503 U.S. 467, 490
(1992); see also Daytona Bd. ofEduc. v. Brinkman, 433 U.S. 406, 410 (1977). A
desegregation decree is not intended to be permanent. Dowell, 488 U.S. at 247-48.
“ A [n]ecessary concern for the important values of local control of public school
systems dictates that a federal court’s [supervision] . . . does not extend beyond the
time required to remedy the effects of past intentional discrimination.” Id. “Rather,
federal supervision of a local school authority that has operated a racially dual
system is a temporary measure that should last only as long as necessary to remedy
past discrimination.” Lee v. Talladega County Bd. ofEduc., 963 F.2d 1426, 1429
(11th Cir. 1992). As stated in Lockett v. Bd. o f Ed. o f Muscogee County, 111 F.3d.
at 842:
Since the legal justification for [federal court] supervision is a constitutional
violation by local authorities, a district court must divest itself of
jurisdiction when local authorities have operated in compliance with a
34
desegregation decree fo r a reasonable period o f time. See Swann, 402 U.S.
at 16; Freeman v. Pitts, 112 S.Ct. at 1445; United States v. Overton, 834
F.2d 1171 (5th Cir. 1987) (emphasis added).
The Supreme Court never intended its sanction of a temporary waiver of the
ordinarily tight ban on governmental consideration of race in the allocation of
public educational benefits during the desegregation of a public school system to
become a permanent means by which school boards can perpetuate their subjective
notions of racial diversity. It said just that in Swann, 402 U.S. 1, 24-28, 91 S.Ct.
1267, 1280-82 (1971). See also Spangler, A ll U.S. at 434, 96 S.Ct. at 2704 (“[I]t
must be recognized that there are limits beyond which a court may not go in
seeking to dismantle a dual school system.”).
The reason for those strict limitations has been clearly enunciated by this
Court in Hayes v. North State Law Enforcement Officers Ass ’n, 10 F.3d 202, 212
(4th Cir. 1993):
Of all the criteria by which men and women can be judged, the most
pernicious is that of race-----while the inequities and indignities visited by
past discrimination are undeniable, the use of race as a reparational device
risks perpetuating the very race-consciousness such a remedy purports to
overcome, (quoting Maryland Trooper Ass ’n, Inc. v. Evans, 993 F.2d 1071,
1076 (4th Cir. 1993)).
In Swann v. CMS, 402 U.S. at 31-32, 91 S.Ct. at 1284, the Supreme Court
recognized what CMS has failed to grasp in over thirty years; school boards are
35
not obligated to overcome demographic change in the communities they serve:
It does not follow that the communities served by such systems will remain
demographically stable, for in a growing, mobile society few will do so.
Neither school authorities or district courts are constitutionally required to
make year-by-year adjustments to the racial composition of student bodies
once the affirmative duty to desegregate has been accomplished and racial
discrimination through official action is eliminated from the system.
Courts that have been asked to perpetuate race-based policies rooted in old
desegregation orders, even by stipulation of the parties, have refused to do so
without clear evidence that legally redressable vestiges of segregation still
discriminated against Black students. See People Who Care v. Rockford Board o f
Education, 111 F.3d. 528 (7th Cir. 1997).
If the Court’s prior precedent19 had not made clear its objection to the
institutionalization of race-based student assignment plans for the purpose of
counteracting changing racial demographics, the Supreme Court resolved all
questions in that regard in Freeman v. Pitts, 503 U.S. 467, 495 (1992):
Where resegregation is a product not of state action but of private
choices, it does not have constitutional implications. It is beyond the
authority and beyond the practical ability of the federal courts to try
to counteract these kinds of continuous and massive demographic
19In 1976, the Court reiterated this holding in Spangler, supra, 429 U.S. at
436, 96 S.Ct. at 2705 (“the District Court was not entitled to require the [school
system] to rearrange its attendance zones each year to ensure that the racial mix
desired by the Court was maintained in perpetuity.”).
36
shifts. To attempt such results would require ongoing and never-
ending supervision by the courts of school districts simply because
they were once de jure segregated. Residential housing choices, and
their attendant effects on the racial composition of schools, present an
ever-changing pattern, one difficult to address through judicial
remedies.
It is well-settled that the race-conscious elements of a desegregation plan
have to be narrowly tailored. Ho v. San Francisco Sch. Dist., 142 F.3d 854, 865
(9th Cir. 1998). The magnet school plan’s use of rigid race quotas, seat set asides
and racially segregated admissions lotteries could not withstand strict scrutiny
under the Equal Protection Clause of the Fourteenth Amendment. Because CMS
asserted at trial that racial diversity was a compelling state interest that justified
the non-remedial use of such race-conscious student assigmnent techniques, the
District Court’s entry of injunctive relief was not an abuse of its equitable
discretion to craft effective remedies for constitutional violations.
All parties acknowledge that the desegregation process in Charlotte was
considered to be a national model of how to successfully desegregate a school
system. CMS has justifiably referred to itself as the “premier integrated urban
school system” in the Nation. (PX Ip . 1). The District Court properly returned
the operation of this well integrated unitary school system to local control subject
to the democratic process. See Keyes v. Congress o f Hispanic Educs., 902 F.
37
Supp. 1274, 1281 (D. Colo. 1995).
ARGUMENT
I. STANDARD OF REVIEW
A. Unitary Status
Trial on the central issue of unitary status was by the district court without a
jury. In reviewing a district court's declaration that a school system has achieved
unitary status, the appeals court will apply the clearly erroneous standard. Riddick
v. School Board o f City o f Norfolk, 784 F.2d 521, 533 (4th Cir.), cert, denied, 479
U.S. 938 (1986) (District Court findings entitled to “great deference on review”);
Lockett, supra, 111 F.3d 839, 841-842 (11th Cir. 1997) (“We review a district
court’s declaration that a school system has achieved unitary status under the
clearly erroneous standard”). A factual finding cannot be clearly erroneous absent
a “definite and firm conviction that a mistake has been committed.” United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
In the Fourth Circuit, “great deference” has been given to factual findings
by district courts in school desegregation cases, especially where the district judge
has lived with the case for many years. Riddick v. School Board o f City o f
Norfolk, 784 F.2d at 533, citing cases including Vaughns v. Board o f Education o f
Prince George’s County, 758 F.2d 983, 990 (4th Cir. 1985); Jacksonville Branch,
38
NAACP v. Duval County Sch. Bd., 883 F.2d 945, 952 n. 3 (11th Cir. 1989);
Goldsboro City’ Bd. o f Ed. v. Wayne County Bd. o f Ed., 745 F.2d 324, 327 (4th Cir.
1984); Columbus Bd. o f Ed. v. Penick, 443 U.S. 449, 457, n. 6, 99 S.Ct. 2941
(1979). Riddick holds the clearly erroneous standard “does not permit reversal
merely because the appellate court would have decided the case differently.”
Riddick, 784 F.2d at 533.li Where there are two permissible views o f the evidence,
the factfinder’s choice between them cannot be clearly erroneous.” Anderson v.
Bessemer City, 470 U.S. 564, 573-74 (1985) (emphasis added). See Coalition to
Save Our Children v. State Board o f Education o f Delaware, 90 F.3d 752, 759 (3d
Cir. 1996) (collecting unitary status cases affirming that “clearly erroneous”
standard applies).
The district court’s Order is replete with numerous specific factual findings.
Capacchione, passim. In reviewing findings of fact by a district court in a non
jury trial, “due regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.” Fed.R.Civ.P. 52(a). “If the district court’s
account of the evidence is plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though convinced that had it been sitting
as the trier of fact, it would have weighed the evidence differently.” Anderson,
470 U.S. at 573-74; see United States Fire Ins. Co. v. Allied Towing Corp., 966
39
F.2d 820, 824 (4th Cir. 1992) (according “the highest degree of appellate
deference” to district court’s findings based “upon assessment of witness
credibility”). As the Supreme Court has observed, “[pjroper resolution of any
desegregation case turns on a careful assessment of its facts.” Freeman, 503 U.S.
at 474.
Belk is simply wrong to suggest that the interpretation of prior orders issued
in the case by the district court constitute questions of law to be reviewed de novo.
Belk brief at 18. Appellate courts give great deference to a district court’s
interpretation of its own orders, and the district court’s interpretation of the
numerous prior orders entered in this thirty-year case are entitled to extraordinary
deference. See Argument infra at Section II. G. et seq.
B. The Injunction
The standard of review for a permanent injunction is for abuse of discretion.
This Court must accept “the factual findings of the district court unless they are
clearly erroneous and review the district court’s application of legal principles de
novo.” Lone Star Steakhouse & Saloon, Inc. v. Alpha o f Virginia, Inc., 43 F.3d
922, 938 (4th Cir. 1995). CMS urges an incorrect standard of de novo review on
the injunction issue, mistakenly relying on cases involving appellate review of
40
preliminary injunctions.20 Moreover, the standard CMS urges was explicitly
rejected by this Court in Tuttle v. Arlington County School Board, 195 F.3d 698,
703 (4th Cir. 1999), where the customary abuse of discretion standard was used.
C. Sanctions Order and Attorneys Fees
Abuse of discretion is also the appropriate standard of review on the issue
of sanctions against CMS for failing to disclose 174 potential witnesses until the
eve of trial. Fed.R.Civ.P. 37(d) “gives the district court wide discretion to impose
sanctions for a party’s failure to comply with discovery orders. Thus, it is only for
an abuse of discretion that a reviewing court may reverse the decision of the
court.” Mutual Fed. Sav. & Loan Ass ’n v. Richards & Assoc., 872 F.2d 88, 92 (4th
Cir. 1989).
On the issue of attorneys’ fees awarded under 42 U.S.C. § 1988, the usual
standards of review apply, viz., as to underlying findings of fact by the district
court, they must be accepted unless “clearly erroneous” while legal issues are
reviewed de novo. See Shaw v. Hunt, 154 F.3d 161, 164-68 (4th Cir. 1998).
20CMS cites Williams v. United States Merit Sys. Protection Bd., 15 F.3d 46,
48 (4th Cir. 1994), and Virginia Carolina Tools, Inc. v. International Tool Supply,
Inc., 984 F.2d 113, 116 (4th Cir. 1993). CMS Brief at 12. The analysis in both
cases involved appellate review of a preliminary injunction.
41
II. THE FINDINGS OF FACT UPON WHICH CMS WAS DECLARED
UNITARY WERE NOT CLEARLY ERRONEOUS
“Proper resolution of any desegregation case turns on a careful assessment
of its facts.” Freeman, 403 U.S. at 474. Perhaps recognizing the value of unitary
status now that it has been finally conferred, CMS makes little effort to disturb
that aspect of the Order. While unitary status was indisputably the main issue at
trial, CMS devotes only a token three pages to the question.21 CMS seeks to
obscure this glaring omission in its opening brief by incorporating in toto the
disparaging arguments advanced by Belk claiming CMS failed to achieve unitary
status in all critical areas of inquiry mandated under Green. See Belk brief at 19-
48.
Belk and CMS take the most extreme position possible claiming the school
21The United States as amicus curiae, breaks its nearly thirty year silence in
this case only to timidly advise this Court that, while it “takes no position on the
question whether CMS has, in fact, achieved unitary status...” this Court should
nonetheless rule “the district court erred as a matter of law in failing to assess...”
whether CMS is unitary. Brief of United States, p. 11-12 (emphasis added). This
“form over substance” approach only denigrates the objectives of school
desegregation. The Acting Assistant Attorney General’s timidity is
uncharacteristic of the United States which, in Taxman, advised the Supreme
Court as amicus curiae that “[a] simple desire to maintain diversity for its own
sake...is not a permissible basis for taking race into account under...the
Constitution.” (Brief of United States, p. 16 in Taxman). Thus, the United States’
contradictory position in this case calls its credibility into serious question.
42
district failed to achieve unitary status in any area of inquiry under Green, supra,
391 U.S. 430 (1968).22 Belk’s unbroken twenty-five years of silence on CMS’
alleged failures brings a hollow ring to its claims of CMS’ failure.
The District Court closed Swann expressing high confidence the Board
would not return to its former segregative student assignment practices, and that
CMS would quickly demonstrate local autonomy was, once again, the best way to
manage the public school system. Capacchione, 57 F.Supp.2d at 284. Virtually
every school was in “racial balance” for twenty years. Id. at 248 (CMS “highly
desegregated for almost 20 years”). The Swann plaintiffs voiced no objection;
inactive status was therefore appropriate. Swann, 67 F.R.D. 648 (1975).
Certainly, if CMS’ failures are as Belk claims,23 a return to active
supervision would be mandatory. Yet CMS’ Superintendent Eric Smith testified
CMS needed no Court supervision. Capacchione, 57 F.Supp. 2d at 293. This
novel view that the 1970 injunction continues to be necessary, while court
supervision is unnecessary, reveals CMS’ mindset during the decades of inactivity
22Belk and CMS did omit arguing (on appeal) that there were vestiges
affecting student discipline and extracurricular activities, only because earlier
Swann orders and the overwhelming facts of continuing racial neutrality in this
area effectively precluded any such appellate argument. Capacchione, 57 F.Supp.
2d at 268, 281.
23CMS brief at p. 33.
43
in Swann.
Since 1975, there has been no further need for active court supervision.
CMS graduated its first class from a totally integrated school system eighteen
years ago in 1982. (Plaintiff Index, p. 125). In 1998-99, a CMS Assistant
Superintendent described CMS as racially balanced "to the greatest extent
possible" considering practical limitations such as stability and proximity. During
the entire desegregation process, there has never been a time when CMS was not
at least, "well desegregated," since "an overwhelming majority of schools —
generally 70 percent to 100 percent — have been racially balanced in any given
year." Capacchione, 57 F.Supp.2d at 248.
During the decades CMS spent in legal limbo, it proved time and again that
it was willing to indefinitely abdicate its right to unitary status in order to
perpetuate the thirty year remedial order it relied upon to legitimize the constant
racial rebalancing of its schools. The desegregation order, untethered from active
court supervision in a collusive case, provided CMS the pretext to engage in
quota-driven racial balancing of its schools to counteract the rapidly changing
demographics in Mecklenburg County. Armor Report (PX 137).
CMS has acknowledged its opposition to its own unitary status is
“remarkable”. (CMS Brief at 13). That is quite an understatement given the fact
44
CMS has repeatedly acknowledged in numerous official pre-litigation documents
and studies that the impact of population growth and resulting demographic
change were the cause of any decline in the racial balance of its schools during the
1990's.
In its 1996-97 Student Assignment Plan, CMS frankly acknowledged that
current demographics of Mecklenburg County would prevent it from racially
balancing all its schools:
CMS is fully committed to actively maintaining an integrated school
system, while understanding that factors such as changing demographics
and housing patterns will not make it ‘practicable ’ (without excessive
busing) fo r every school to come within the court-ordered target, (emphasis
added).
The Plan continued:
1. Desegregation In the Schools v. Segregation In The Community:
I f our neighborhoods remain largely segregated, with the Black population
concentrated in the inner city and the White population concentrated in the
suburbs, and if students are transported out of their neighborhoods, then a
disproportionate burden will fall on low socioeconomic families, who
would be less likely to be actively involved in school-based activities and
programs. In addition, these families would not be able to provide their
own transportation to schools where their children could otherwise transfer.
2. Desegregated Schools v. Over-capacity Schools:
If steps are taken to increase the number of schools that reflect the district
ratios, then larger numbers of Black students will have to be bused to
schools that are already overcapacity in the White suburbs, and larger
numbers of White students will have to bused to schools that are over
capacity in Black neighborhoods. PX92 (emphasis added).
45
The demographic realities of Mecklenburg County and their impact
on the racial composition of its schools were reiterated in a CMS document
entitled “Next Century Community Schools” written by its current superintendent,
Dr. Eric J. Smith, as part of the 1996-97 Student Assignment Plan:
The very shape of the County and the distribution of students within it have
a strong influence on the strategies used to create maintain integrated
schools. Approximately 50% of all African American students live within
the central district, while White students are disbursed throughout the
suburban area. As the demographics continue to shift, CMS Board of
Education and superintendent have reaffirmed their commitment to
integration.
In a comprehensive report on student assignment completed by Assistant
Superintendent Jeffrey Schiller in 1994, the Board was put on notice that racial
balance, at the levels attained for over 20 years, was no longer possible given the
demographic changes ongoing in Charlotte. (PX1), See also, PX 4 at 3.
Rather than plead its solid thirty year case for unitary status, a six to three
majority of the CMS Board voted to support Belk’s quest to maintain court
supervision. The actual impetus for the Board’s position has little to do with
remediating past discrimination and everything to do with pretextually
perpetuating racially conscious policies and practices in CMS. The “pendency” of
Swann had provided CMS with an ostensibly “remedial” basis to effect a quota-
based approach to racial balancing its schools. In this context, CMS’ decision to
46
oppose its own unitary status is seen in a truer light.
A. The District Court Properly Declared CMS Unitary
In Student Assignment
1. Good Faith Compliance
A school system is unitary when it has "complied in good faith with the
desegregation decree since it was entered..." and "the vestiges of past discrimination
ha[ve] been eliminated to the extent practicable." Board o f Education o f Oklahoma
City v. Dowell, 498 U.S. 237, 249-250 (1991); Freeman, 503 U.S. at 492. A school
system under a desegregation order is not required to obtain perfect compliance for
the entire duration of the court order. Instead, it is only obligated to comply "for a
reasonable period of time." Dowell, 498 U.S. at 248.24
The "critical beginning point" in assessing most unitary status issues is "the
degree of racial imbalance in the school district." Freeman, 503 U.S. at 250. Belk
concedes the District Court's finding that CMS is presently a "well-desegregated"
school system after twenty years of being a "highly desegregated" school system
24It is also well-settled that a school system can achieve unitary status
incrementally. See Freeman, 503 U.S. at 889. District courts look at each Green
factor separately to assess compliance with the desegregation decree. Eliminating
the vestiges of the former dual system takes longer in some areas than others.
However, a district court can release the school system from further remedial
obligations in areas of consistent compliance before the system achieves unitary
status as a whole.
47
under the most restrictive standard conceivably applicable under the desegregation
order.25 Belk does not challenge the court's finding that the schools presently out of
racial balance are imbalanced due to demographic changes occurring since 1970. "A
history of good faith compliance is evidence that any current racial imbalance is not
the product of a new de jure violation . . . ." Freeman, 503 U.S. at 498.
Notwithstanding Belk’s contentions about the Martin case, it is undisputed that CMS
has been, at least a “well desegregated” school system for 30 years. That is more than
the “reasonable period of time” referenced in Dowell.
Belk has not identified any specific school(s) during the thirty year history of
the case that CMS, by official action, intentionally caused to violate the remedial
orders. No CMS expert disputed the conclusion of Capacchione-Granf s
demographer, Dr. William Clark, that demographic change best explained why some
schools became racially identifiable in the 1990's. Likewise, for the first ten years
over ninety five (95%) percent of all schools were racially balanced and nearly all
25Belk's concerns about racially identifiable classrooms within racially
balanced schools is legally inconsequential. The remedial orders never prohibited
racially identifiable classrooms. In fact, those orders approved such segregation
when caused by legitimate educational policies. Swann, 300 F. Supp. at 1367.
Second, the Constitution "does not require any particular racial balance in each
school, grade or classroom." Milliken v. Bradley, 481 U.S. 717, 740-741 (1974);
Coalition to Save Our Children v. State Bd. o f Ed., 190 F.3d 752, 762 (3rd Cir.
1996).
48
schools were balanced for over twenty years until demographic change caused certain
schools to fall out of balance. Capacchione, 57 F.Supp.2d at 249.
None of the present imbalance is due to any vestiges of the dual system that
existed before 1969. In order to identify a vestige of past discrimination, this Court
has held that "the effects must themselves be examined to see whether they were
caused by the past discrimination---- " Podberesky, 38 F.3d at 153. Identically, the
Supreme Court holds that there must be a "causal link to the de jure violation being
remedied . . . " that bear a "very real and substantial relation to a de jure violation."
Freeman, 503 U.S. at 496.
Any conceivable vestiges of the dual system in CMS are so remote in time and
its record of good faith compliance during the past thirty years is so strong that there
can be no causal link between the dual system and any presently racially imbalanced
school. "As the de jure violation becomes remote in time, and these demographic
changes intervene, it becomes less likely that a current racial imbalance in a school
district is a vestige of a de jure system." Freeman, 503 U.S. at 496.
Indeed, CMS' Board members, trial experts, former superintendents and both
current and past administrators all repeatedly acknowledged at trial that the schools
are racially balanced to the fullest extent practicable. As recently as 1998, a recent
CMS Assistant Superintendent described CMS as racially balanced "to the greatest
49
extent possible. . . (Index at 124-25). Given the fact CMS' own Superintendent
could not justify continued court supervision, the District Court properly concluded
CMS had complied with its student assignment obligations and "eliminated the
vestiges of past discrimination to the extent practicable. . . . " Capacchione, 57 F.
Supp.2d at 284. The District Court found "[wjithout reservation . . ." that CMS
"demonstrated its good faith commitment to complying with the Swann desegregation
orders---- " Capacchione, 57 F. Supp.2d at 282. It did so based on facts which Belk
does not dispute. These facts include: CMS has never been sanctioned by the court
for violating its orders, it has gone "above and beyond . . . " its duty under the orders
by desegregating imbalanced schools caused by demographic shifts, four out of nine
board members are black, and the Swann plaintiffs have never complained to the
court about a violation of its orders. Capacchione, 57 F. Supp.2d at 282-285. This
record of good faith is indistinguishable from the record in Lockett v. Board o f Ed.
o f Muscogee Co., supra 839 (1997) in which the Eleventh Circuit affirmed the
District Court's finding of unitariness. 111 F.3d at 843-844.
The District Court's finding of overwhelming good faith is particularly
important since "[t]he causal link between current conditions and the prior violations
is even more attenuated if the school district has demonstrated its good faith."
Freeman, 503 U.S. at 496. This high level of sustained compliance, coupled with
50
CMS' overwhelming record of good faith for the past thirty years, makes it
undeniable that its student assignment obligations have been fulfilled. Capacchione,
57 F.Supp.2d at 284.
2. Racial Balance
Belk seeks to steer this Court’s focus away from the record evidence of the
remarkable integration achieved in student assignment for a substantial period of time
by the “premier integrated urban school system in the Nation.” The Report and
testimony of Capacchione-Grant’s principal expert, Dr. David Armor26 provides an
unrebutted analysis of the racial composition/balance of every CMS school since
implementation of the desegregation plan. (PX 137).
In the late phases of a court supervised desegregation decree, where a school
board has achieved significant racial balance in its schools for a reasonable time,
imbalance in a particular school cannot be linked to the dual system without
substantial proof of causation. See Freeman v. Pitts, 503 U.S. at 496. Many recent
decisions have thus terminated long-running desegregation cases despite less than
perfect mathematical integration.27
26Dr. Armor was also a principle expert for the DeKalb County Board of
Education in its successful quest for unitary status in student assignment approved
in Freeman v. Pitts, supra.
21 See, e.g., Mills v. Freeman, 942 F. Supp. 1449, 1456 (N.D.Ga. 1996);
Reed v. Rhodes, 934 F. Supp. 1533 (N.D. Ohio 1996) (“[I]t should be clear....the
51
Belk travels on a redefinition of discrimination that includes anything and
everything that yields statistical disparities between black and white students. Recent
racial imbalance at a previously balanced school is "not tantamount to a showing that
the school district was in noncompliance with the decree . . . " Freeman, 503 U.S. at
494. The focus must be on the cause of any racial imbalance. Id. Belk does not point
to any record evidence that rebuts the District Court's finding that the primary causal
factor of all racially imbalanced schools during the last three decades is demographic
change in their service area. Even if Belk could point to some evidence that CMS
caused some number of schools to become imbalanced, the District Court was not
clearly erroneous when it relied on Dr. Armor’s and Dr. Clark’s expert reports and
testimony which was corroborated by multiple pre-litigation CMS reports, all of
which specifically concluded that no CMS policy or practice caused schools to
become racially imbalanced. This overwhelming body of evidence conclusively
demonstrated that demographic change was the cause of all imbalanced schools.
Incredibly, “[all] of the former de jure black schools still in operation...” have
Court did not set out to run a busing company”) ; United States v. Board o f
Education o f St. Lucie County, 977 F. Supp. 1202 (S.D. Fla. 1997)(adoption of
joint stipulation of unitary status); Jacksonville Branch, NAACP v. Duval County
School Board, No. 85-316-CIV-J-10C, 1999 U.S. Dist. LEXIS 15711 (M.D.Fla.
May 27, 1999); Keyes v. Congress o f Hispanic Educs., 902 F. Supp. 1274 (D.
Colo. 1995).
52
had at least twenty two years of racial balance under the desegregation order before
demographic changes caused some to become imbalanced.28 Capacchione, 57
F.Supp.2d at p. 253-54. Presently, schools with at least three years of racial imbalance
in the 1990's are almost all historically white schools that became racially identifiable
because of demographic shifts. Capacchione, 57 F. Supp.2d at 254. The District
Court found these racial imbalances were caused by demographic change, not CMS’
action. Id. at 250. The District Court was justified in concluding demographic
change was the primary cause of racial imbalances.
If the record demonstrates anything, it is that CMS has relentlessly sought to
racially balance its schools, even where the only causes it could identify for those
imbalances were demographic changes. "Yet, racial balance is not to be achieved for
its own sake." Freeman, 503 U.S. at 494. It would be absurd to conclude that after
repeatedly rebalancing schools that became imbalanced because of demographic
change, CMS then began to implement policies intended to cause schools to become
imbalanced. CMS has repeatedly stated in public papers and studies that it never
caused a school to fall out of racial balance. (PX 1 at 16; PX 4 at CM204603 and PX
280 f the four schools that have not been balanced, three just opened in the
past two years (Crestdale Middle, Morehead and Elizabeth Lane Elementary) Id.
These schools are simply too new to consider them as vestiges. Furthermore, it is
undisputed each school was built in response to explosive growth which dictated
Board action in building on each of these sites.
53
6 at 3).
CMS has complied with the desegregation order "for a reasonable period of
time" and achieved thirty years of either highly desegregated or well desegregated
schools. Therefore, schools that are imbalanced today due primarily to demographic
change do "not have constitutional implications." Freeman, 503 U.S. at 494.
3. School Siting
Belk argues school siting decisions in the suburbs were intentionally
discriminatory. CMS’ own Acting Superintendent described it differently telling the
Board “CMS has not created the problems in the southeast... (Index, p. 126). CMS
also routinely projected the racial composition of all newly built schools. (PX 139).
Most of the new (post 1980) schools were opened with racially balanced student
bodies (DX 253). Six of those schools "have gone in and out of balance since
opening." Capacchione, 57 F. Supp.2d at 252. These school siting decisions were
driven by a host of factors, including land availability and cost and the growth trends
that required new school construction in the formerly rural and sparsely populated
southern and northern regions of the County. Capacchione, 57 F.Supp.2d at 251.
Of those schools Belk claims were improperly sited, over half have been
compliant with the court's orders for their entire existences, even when judged under
the most restrictive standard. Capacchione, 57 F. Supp.2d at 252. In other words,
54
only twelve schools built by CMS since 1980 have ever had racially imbalanced
student bodies. Fully 23 out of 27 new schools have been racially balanced during
their existence. (DX 47 and 253).
4. The Consideration of White Flight by CMS In Adopting a Voluntary
Magnet School Program Was Proper
Belk argues that CMS unlawfully considered “white flight” in developing its
voluntary magnet school plan in 1992. Belk Brief at 23. Belk cites Riddick, supra, for
this proposition. The District Court correctly applied Riddick's admonition that
“[w]hile “white flight” cannot be used as an excuse for failing to desegregate..., a
school board may consider [it]... in trying to improve racial balance... Riddick, supra
at 528-29 (emphasis added). Capacchione, 57 F.Supp. 2d at 253. The District Court
therefore did not rely on “white flight” to excuse noncompliance with a desegregation
decree, but only to explain why CMS decided to adopt a voluntary magnet school
plan. As stated in Riddick, 784 F.2d at 539-40:
It does not follow that a board must ignore...white flight in...formluat[ing] a
voluntary plan [to]...improve racial balance without at the same time losing the
support and acceptance of the public... There is a valid distinction between the
defense of white flight as a smokescreen to avoid integration and realistically
considering and dealing with the practical problems...in making voluntary
efforts to achieve integration. Higgins [v. Bd. o f Ed. o f Grand Rapids, 508 F.2d
779,794 (6th Cir. 1974)] (emphasis in original). The circuits have followed this
language and allowed consideration of white flight in the formulation and
adoption of integration plans. Lee v. Anniston City Sch. Sys., 737 F.2d 952,
957, n.3 (11th Cir. 1984); Liddell v. State o f Missouri, 731F.2d 1294, 1314 (8th
55
Cir. 1984).. Johns on v. Bd. o f Ed. o f City o f Chicago, 604F.2d 504, 516-17 (7th
Cir. 1979).... Parents Ass ’n o f Andrew Jackson High Sch. v. Ambach, 598 F.2d
705, 719-20 (2d Cir. 1979); Stout v. Jefferson Co. Bd. o f Ed., 537 F.2d 800,
802 (5th Cir. 1976).
Belk’s argument that “white flight” considerations impacted school siting
decisions is inaccurate. The reference to “white flight” by CMS was made in the
context of establishing a magnet school program. This plan did not site any schools,
but instead altered the curriculum of certain schools, mostly located in the inner city,
to attract white students to integrate schools that were becoming predominantly black
due to demographic change in Mecklenburg County. It is difficult to understand how
or why Belk would complain about the fact the central city became the site of the very
best schools in the system with the 1992 adoption of the magnet school plan (the
Stolee plan).
The intent of the magnet school plan was to create a white student influx to
inner city schools to compliment the assignment of black students residing in the
inner city to suburban schools. CMS concluded there was no other viable means to
desegregate schools in the highly segregated predominantly black inner city and
predominantly white suburban areas where explosive growth compelled CMS to offer
both the options of magnets and new school construction, quickly augmented by
56
mobile classrooms, just to house the annual influx of new students.29
As the evidence showed, school siting was a far more complex issue than Belk
represents. It was not driven solely by racial-balancing considerations. Large parcels
of buildable land at affordable prices had to be assembled. There were situations
when land was gifted to CMS. There was the very real problem of making sure every
student had a seat somewhere and that meant building new schools where the demand
was greatest. The motivation in that regard was to respond to new student demand,
not to enable CMS to circumvent the desegregation order.
5. Transportation Burdens
The Swann case was the first to approve forced busing as a desegregation tool
of last resort. Most urban areas with segregated residential patterns have resorted to
court-ordered busing. After thirty years, few would oppose the notion that an
integrated unitary public education system would benefit from being able to redirect
at least some of the considerable resources required to fund and administer the forced
aspects of student assignment plan dependent on busing to programs that foster
learning.
The institutionalization of forced busing has numbed CMS administrators to
29Belk seems to argue for more busing of white students to the central city.
The unconstitutional racial quotas limiting “non-blacks” to 60% of the magnet
school seats prevented that.
57
the extraordinary intrusion it works on the children and the families of those children
transported long distances away from their residences. Ironically, we have come full
circle, with the “remedy” of forced busing becoming an engine of discrimination in
Charlotte, because it was not limited to its intended temporary role as a proverbial
battering ram, designed to knock down the barriers that impeded the elimination of
dual school systems. The Swann Court harbored no illusions that the desegregation
of dual school systems would bring an end to the litany of other social ills caused by
racial prejudice:
We are concerned in these cases with the elimination of the discrimination
inherent in the dual school systems, not with myriad factors of human
existence which can cause discrimination in a multitude of ways on racial,
religious, or ethnic grounds. The target of the cases from Brown I to the present
was the dual school system. The elimination of racial discrimination in public
schools is a large task and one that should not be retarded by efforts to achieve
broader purposes lying beyond the jurisdiction of school authorities. One
vehicle can carry only a limited amount of baggage.
Swann, 402 U.S. at 23, 91 S.Ct. at 1279
Perhaps the most ironic aspect of Belk’s many arguments against unitary status
is their claim that unitary status has not been achieved because the desegregation
related transportation burdens, largely shaped by adoption of the magnet school
program, fall more heavily on black students than white. As noted above, the many
prior orders in Swann acknowledged that some measure of disproportionate
58
transportation was inevitable. Given the high concentration of black students in the
center city, coupled with the conversion of center city schools to magnet schools, the
racial balancing of the maximum number of schools required involuntary
transportation of the most racially concentrated population centers.
During the most recent school year, 11,184 non-black (42%) and 15,533 black
students (58%) were transported for desegregation purposes. Capacchione, 57
F.Supp.2d at 253. Given the demographics of the service area and the realities of
designing a magnet school program that has an integrative effect, the District Court
was correct in its conclusion that “...the current situation may be about the best CMS
can do while still adhering to the racial balance guidelines.” Capacchione, 57 F.Supp.
2d at 253.
The undisputed evidence at trial demonstrated that whites generally travel
further and in higher numbers than black students for desegergation. Capacchione,
57 F.Supp. at 253. Belk avoids discussion of the fact that CMS located virtually
every magnet school in neighborhoods with predominantly black residential
populations. Black student access to the premier schools in the system is unparalleled.
The “transportation” burden Belk complains of is caused by the racial quotas that
drive the magnet schools which were designed to draw whites to the inner city and
create a reciprocal exiting of Black students to be bused from the center city to
59
integrate outlying, predominantly white schools.
This was the designed desegregative “side effect” of the race-based dual lottery
system. The race-based dual lottery Belk implicitly defends, and which the District
Court found unconstitutional, is the primary source of the alleged “transportation
burden” Belk contends Black students shoulder when they leave neighborhoods now
served by magnet schools. It is CMS’ desire to integrate, not its intent to discriminate,
that creates this effect. The busing burden for desegregation is roughly equal to any
disparity that exists because it produces the maximum practical amount of
desegregation.
B. The District Court Properly Declared CMS Unitary In Faculty
Assignment
Massive faculty reassignment followed implementation of the 1970
desegregation order. There was a clear and unequivocal severing of any nexus
between the former de jure segregated dual school system and faculty assignment.
Just as with student assignment, thirty years of demographic shifts and strong
population growth away from the central city, has impacted faculty assignment.
However, all of the identified factors at trial that impact faculty assignment are
unconnected to the former dual system. There is no causal connection between any
of Belk’s complaints on this Green factor and the former dual school system.
60
In fact, Belk’s arguments regarding faculty assignment encapsulate the root
defect running throughout their analysis of the unitary status issue. For Belk, there is
no need to demonstrate a connection between the cause that initiated the
desegregation process - dejure segregated dual school system - and a clear effect,
or vestige, that currently denies black students equal educational opportunity in one
or more areas of inquiry under Green.
The case of Singleton v. Jackson Municipal Separate School District, 419 F.2d
1211, (5th Cir. 1969), is widely recognized as setting the standard for faculty
desegregation. Singleton held the purpose of a faculty desegregation order is to ensure
“that in no case will the racial composition of a staff indicate that a school is intended
for Negro students or white students.” Id. At 1217. The question of “balance” turns
on what deviation from the overall racial composition of the CMS faculty would be
permitted in a particular school. The District Court was well within its discretion to
employ aplus/minus 15% standard to assess faculty racial balance. Accord, Coalition
to Save Our Children v. Bd. o f Ed. o f Delaware, 90 F.3d 752,766-67 (3rd Cir. 1996).30
30The plus/minus 15% standard was also adopted for assessing student
assignment in part because the desegregation order set a ceiling of plus 15% of the
district’s black student population for elementary schools. It would be
unreasonable to set a more restrictive standard for faculty in 1999 when there has
not been any “mathematical” criteria or quota employed in the area of faculty
because the 1970 reassignment fully integrated the faculties of all CMS schools. In
1998, over 90% of all 135 CMS schools were taught by faculties who met this
standard. Put another way, only eleven schools had racially imbalanced faculties,
and that was attributable to factors other than ascertainable vestiges of the former
61
The plus/minus 10% standard argued by Belk was properly rejected by the
District Court for at least three reasons. First, no specific standard was established
in the 1970 desegregation order. Second, thirty years passed with the faculties being
highly balanced. Third, demographic change and a black teacher shortage have
created new pressures, wholly independent of the old dual system, in the 1990's that
could not have been foreseen in 1970.
The CMS faculty expert, Dr. Robert Peterkin, concluded that, even under the
more restrictive plus/minus 10% standard, 80% of all CMS schools had racially
balanced faculties for at least 15 years. When Dr. Peterkin’s data was extended to 20
years (1977-97), 75% of all CMS schools had racially balanced faculties. Id.
In People Who Care, 111 F.3d at 535, the Court provided a common-sense
rationale for avoiding overly precise mathematical ratios or quotas for faculty
assignment:
The threat of...protracted federal tutelage [in enforcing a per school racial
quota for African American faculty] would place great pressure on the school
district to relax its hiring standards. . . to [meet]...the quota, with the almost
certain consequence that the teachers. . . would on average not be as good as
if it were purely based on merit...Briton v. South Bend Comm. School Corn
819 F.2d 766, 771-72 (7th Cir. 1987) (en banc).
In the face of overwhelming long term desegregation of school faculties, Belk
urges the unitary status inquiry focus on just one year (1998-99). That is not the
proper analysis. To narrow the focus of a thirty year process to a single year is absurd.
dual system.
62
It heightens the perceived effect of present day impediments to faculty racial balance
while depriving the supervising court of the very best evidence of whether the school
system has effected a clean break with its prior discriminatory practices under the
dual system.
C. The District Court Properly Declared CMS Unitary
as to Facilities and Resources
The facilities inquiry is not difficult in this case. In 1969 District Court
concluded there was no disparity' in facilities or resources. Swann, 300 F.Supp. at
366; Swann, 306 F.Supp. at 1298; and Swann, 334 F.Supp. at 265 (“formerly black
schools are not shown to be inferior in faculty, plant, equipment or program”). See
Capacchione, 57 F.Supp.2d at 261-262, There was no remediation ordered in this
area. The collateral estoppel effect of that finding carries Capacchione-Grant’s initial
burden of proof and shifts the burden to Belk and/or CMS to demonstrate how and
when vestiges of the dual system subsequently appeared after the court’s rulings and
caused facilities formerly serving black students or continuing to serve a
predominantly black student body to become deficient. School Board o f Richmond
v. Baliles, 829 F.2d 1308, 1311-1313 (4th Cir. 1987); Riddick, 784 F.2d at 531.
No complaint has ever been made by the Swann/Belk plaintiffs with respect to
facilities and resources since the case was closed in 1975. Evaluation of this Green
factor is therefore incapable of traditional measure in the context of a unitary status
inquiry since there is no standard by which “compliance” could be evaluated beyond
the 1969 law of the case.
63
The burden of proof issue that Belk pushes hard on appeal really falls away on
this record. There was no evidence offered by Belk or CMS of any vestige of the
former dual system adversely affecting facilities after the district court specifically
found no discrimination in facilities on three separate occasions. The evidence
unequivocally demonstrated that the facilities identified as in need of repair or
renovation were not racially identifiable. Evidence showed CMS to have been even
handed in maintaining all its school facilities within the confines of a limited budget.
Belk points to schools that have become racially imbalanced in the late stages of the
desegregation process due to changing residential demographics. This kind of
evidence does not support Belk’s claim that CMS has maintained vestiges of the dual
system in its facilities.
In Swann, 402 U.S. at 18, the Supreme Court made clear that, with regard to
the school buildings themselves, “...the first remedial responsibility of [a school
board]...is to eliminate invidious racial distinctions....[Corrective action must be
taken with regard to the maintenance of buildings and the distribution of equipment.”
The “disparities in these areas are not likely to be grounds for prolonged judicial
supervision.” See, e.g., Henry v. Clarksdale Municipal Separate School Dist., 433
F.2d 3 87,3 88 n. 3 (5th Cir. 1971) (finding immediate compliance with a desegregation
order as to transportation, faculty, staff, extra-curricular activities and facilities).
Capacchione, 57 F.Supp.2d at 261.
Belk and CMS base their factual contention of present-day disparity on Dr.
Gardner’s evaluation of schools that currently enroll a predominantly black student
64
body. Belk equates a present day deficiency in such a school to a vestige of the
former dual system. In Swann, 402 U.S. at 22-23, the Supreme Court reiterated that
a party seeking continued court control over a local school system “must prove intent
and causation and not merely the existence of racial disparity.” Freeman, 503 U.S.
at 506,(citing Bazemore v. Friday, 478 U.S. 385, 407-09 (1986) (White, J.
concurring); Washington v. Davis, 426 U.S. 229, 245 (1976).” Capacchione, 57
F.Supp. 2d at 262.
In the early 1990's, CMS commissioned the Heery Report, a comprehensive
assessment of its facilities. The report concluded it would require $750,000,000 to
renovate all the CMS schools in need of repair. The age of the facilities transcended
any conceivable nexus to the former dual system in explaining why CMS facilities
needed repair. The fact CMS was unable to financially immediately respond to such
a daunting task is, again, a causal factor unrelated to the issues upon which a unitary
status determination turns. Capacchione, 57 F.Supp.2d at 266.31
The District Court also noted that vast sums of local bond money and federal
subsidy money (over $500,000,000) were spent on renovating, retooling and
upgrading inner city schools to serve as magnet schools. Given the absence of
affordable 50-acre tracts of land in the central city that could house new schools,
31CMS has already initiated a process to insure all its facilities are upgraded
to comply with the most state-of-the-art standards. (DX 133 at p. 29-30). There
was abundant evidence probative of the commitment by CMS to a system-wide
and color-blind approach to facility maintenance and renovation, obviating the
need to reassert court control after the case has spent 25 years on the inactive
docket.
65
CMS elected to reinvent most inner city schools as magnets. See Capacchione, 57
F.Supp.2d at 268. This is powerful evidence of just how determined CMS has been
to insure schools serving a significant percentage of the system’s black student
enrollment attend first rate integrated facilities.
The District Court was therefore well-advised to decline Belk’s request it
assume control over CMS facilities when no remedial action was ever warranted or
ordered in that regard. There was no showing or even contention by Belk in the
motion to reactivate Swann or at trial that vestiges of the former dual system were
now discriminating against black students through their being assigned to schools
whose deficiencies were traceable to racial discrimination in the maintenance and/or
construction of schools ostensibly intended for predominantly black students.
D. CMS Is Unitary As To Transportation
Belk concedes CMS provides transportation to its students in a discriminatory
manner. Capacchione, 57 F.Supp.2d at 268. Transportation is only an issue in this
case as a subset of student assignment. In that regard, Belk contends black students
have shouldered a disproportionate burden in the busing required to desegregate the
schools. Id. See also, Martin, supra, 475 F.Supp.2d at 1328-29. Consequently,
unitary status as to the transportation factor was unopposed, and the District Court
was authorized to belatedly find CMS unitary in that regard.
E. The District Court Correctly Found No Vestiges of the Dual System
to be Adversely Impacting Student Achievement
Judge McMillan never ordered CMS to adopt any particular curriculum or
66
academic programs. Capacchione, 57 F.Supp.2d at 272. This approach was
consistent with the law governing this ancillary consideration in unitary status
proceedings. As stated by the Supreme Court in Missouri v. Jenkins, 515 U.S. 70,
101-02, 115 S.Ct. 2038, 2055-56 (1996):
Just as demographic changes independent of de jure segregation will effect the
racial composition of students, Freeman, 503 U.S. at 494-495, 112 S.Ct. at
1447-1448, so too will numerous external factors beyond the control of. . .
[CMS] affect minority student [academic] achievement. So long as these
external factors are not the result of segregation, they do not figure in the
remedial calculus. See Spangler, 427 U.S. at 434, 96 S.Ct. at 2703-2704;
Swann, 402 U.S. at 22, 41 S.Ct. at 1279. Insistence upon academic goals
unrelated to the effects of legal segregation unwarrantably postpones the day
when. . . [CMS] will be able to operate on its own.
In fact, CMS has instituted substantial programming specifically designed to
provide additional academic support for its black students. See Capacchione, 57
F.Supp.2d at 273-275. This programming has significantly narrowed the gap between
white and black performance on standardized testing. Id. Most experts
knowledgeable about academic achievement recognize that socioeconomic factors
best explain the achievement gap. Id. at 275-276. City o f Yonkers, supra, 181 F.3d
301,316 (1999) (“using achievement tests to measure...a school system’s movement
away from segregation is deeply problematic”). People Who Care v. Rockford Bd. o f
Ed., 111 F.3d 528,537 (7th Cir. 1997); Coalition to Save our Children, supra, 90 F.3d
at 776-78.
CMS expert witnesses failed to overcome that explanation. CMS expert Dr.
Robert Peterkin’s credibility on the achievement gap issue was undermined by the
fact he had previously testified in a contradictory manner to his testimony in this case.
67
32 At trial, Dr. Peterkin testified that there was a causal connection between black
student achievement and sundry discriminatory policies and practices of CMS which
denied black students equal educational opportunity. Id. at 279. Yet in his testimony
in the Jacksonville NAACP case, Peterkin said the achievement gap was a national,
not local, phenomenon, adding “[i]f s one of those vexing problems in public
education that we have struggled with” and “I wish I had the answers to why it
persists. . .across the nation.” The District Court found “it disconcerting that Dr.
Peterkin could reach the exact opposite conclusion about the achievement gap in
Charlotte.” Id. at 280.
CMS expert Dr. William Trent also testified on the subject of the achievement
gap. Incredibly, Dr. Trent performed much the same kind of pseudo-analysis33 in this
case that he had been sharply criticized for in Wessman v. Gittens, 160 F.3d 790,
804-06 (1st Cir. 1998). (“Dr. Trent’s charge was to trace the causal relationship
between discriminatory teacher attitudes and poor performance by black students. His
failure to obtain reliable data disabled him from taking the first step”.)
32Another CMS expert on this issue, Dr. Rosalyn Mickelson, was so
completely impeached she was forced to withdraw central elements of her report.
Her complete lack of credibility left the District Court no choice but to disregard
her report and testimony. Id. at 278-79.
33Dr. Trent self selected 25 schools to “visit for 45 minutes to an hour” (DX
10 at p. 3). He then selectively interviewed teachers and staff, and professed to be
able to divine a racially discriminatory learning environment adverse to black
student achievement. The Court correctly concluded this type of methodology was
“result driven” and dismissed as unreliable any conclusions based on such pseudo
science. Id. at 277.
68
Dr. Trent also offered a regression analysis to buttress his thesis that a black-
white achievement gap on standardized testing was caused more by CMS policies
than socioeconomic factors. Yet Dr. Trent was shown to have manipulated the data
used in his regression analysis, failing “to control for parental education, parental
income and other important SES variables that social scientists agree have a direct
cumulative impact on academic achievement.” Id. at 276.34 The Court properly
rejected these regression analyses given Dr. Trent’s failure to control for relevant
non-racial factors. See Bazemore, supra, 478 U.S. at 400 and n. 10; Roger v. Reno,
98 F.3d 631, 637 (D.C. Cir. 1996); Capacchione, 57 F.Supp. at 276.
On the other hand, Dr. Armor did conduct regression analyses that controlled
for all SES factors for which data was available, and he was able to explain the
majority of the achievement gap in Charlotte using this methodology. Id. at 275-76.
“When early test scores... are added to the [regression] analysis to control for skills
children have close to the times they begin formal school training, nearly 80% of the
reading gap and over 70% of the math gap are explained”. Id at 275.35
In 1970, the District Court expressed hope that integrated schools would
somehow “close the gap.” Yet all experts agreed that racially balanced schools had
not completely closed the achievement gap, and that socioeconomic factors were the
34Dr. Trent’s own data also demonstrated unequivocally that black standard
test scores did not improve in a statistically significant manner regardless of
whether the student attend a racially balanced or predominantly black school.
35Dr. Armor further testified that virtually all of the existing gap could be
explained by SES and family factors if CMS had maintained the pertinent data. Id.
69
major determinants of achievement not only in Charlotte but nationwide. Id. at 275,
n. 43.
F. CMS Has The Burden of Proof on Issues Not Subject to the
Remedial Order
The District Court correctly addressed the burden of proof issues in a unitary
status case early on in its Order. Id. at 243-244. Belk argues that the District Court
“minimized the [Intervenors’] burden of proof by its interpretation of the Martin
Order.” Belk Brief at 25. There is no legal citation to support the claim or much
explanatory text. As noted infra in Section IIG(l), no relief was ordered in Martin.
leaving the 1974 desegregation order intact as the only standard by which to judge
CMS compliance and entitlement to a declaration of unitary status.
Normally, a Board of Education is the party seeking unitary status and accepts
the burden of proof. This Court has held that once unitary status is found as to any
Green factor, the burden of proof shifts to the party seeking continued court
supervision. See Baliles, 829 F.2d at 1311-1313 (4th Cir. 1987). In this case, the
District Court placed the burden of proof on Capacchione-Grant as to student and
teacher assignment. Capacchione, 57 F.Supp.2d at 243. Because no discrimination
had been found or remediation ordered as to any other Green factor, the District Court
properly required “the parties trying to prolong judicial supervision...” to bear the
burden of proof as to those factors. Capacchione, 57 F.Supp.2d at 249. In United
States v. City o f Yonkers and Yonkers Bd. ofEduc., 197 F.3d 41 (2d Cir. 1999)
(emphasis added), the court said:
70
[T]he case is atypical in that the party with the best access to information on
the contested issue of vestiges, the ...Board of Education..., is vigorously
arguing that vestiges persist..., and the Board has a compelling financial
incentive to depict its school system in the most dismal light.”... “In sum, this
is an unusual school desegregation case, with a counterintuitive alignment o f
the parties, strong incentive for self-accusation, absence of vestiges detectable
by any of the Green factors, vexed questions of causation, and a dearth of
comparable litigation from which to make reasonable assessments of
probabilities. In these circumstances, we hold that the burden o f proving
vestiges o f segregation falls upon the parties contending such vestiges exist...
[S]ister circuits in somewhat analogous cases have arrived at the came
conclusion. See Coalition to Save our Children, 90 F.3d at 776-77. (emphasis
added).
The District Court required Belk and CMS to demonstrate how any vestiges
existed in areas, other than student and faculty assignment, where no discrimination
existed in 1969. Capacchione, 57 F.Supp.2d at 244. This is the proper allocation of
the burden of proof, particularly in a case where the school board has colluded with
the original plaintiffs to perpetuate a thirty-year old desegregation order.
In this case, Belk does not base its claims regarding unitary status on the
existence of some particularly virulent vestige of de jure segregation, which has
remained on the scene for over thirty years. Rather, Belk (and CMS) argue that a full
scale reanimation of the dual school system has occurred. Following over twenty
years of silence on these issues, Belk and CMS now contend the desegregation
process was a complete failure. For Belk, true integration can only come when CMS
is empowered to overcome the evolving racial demographics of Mecklenburg County
via race-based student assignment techniques. The District Court was correct in
requiring them to come forward with proof rather than just hyperbole.
CMS has the additional burden of justifying on constitutional grounds its
71
unilateral adoption of a strict racial quota for magnet school admissions. Since this
plan was never approved by the District Court, and because it indisputably uses racial
quotas to deny students access to these enriched educational opportunities, CMS must
carry the burden of proof in Capacchione-Grant’s independent suit challenging its use
of racial quotas in magnet school admissions.
The overwhelming direct evidence of the exclusionary effects of the segregated
dual lottery process shifts the burden of proof to CMS in the §1983 cases. As stated
in Ho, supra, 147 F.3d at 859:
When a governmental body is defending racial quotas, the burden of
justification falls on the government. A ‘generalized assertion’ of past
discrimination and present effects does not meet that burden. City o f Richmond
v.J.A. Croson Co., 488 U.S. 469,498, 109S.Ct. 706, 102 L.Ed.2d 854 (1989).
The mere recitation of a remedial purpose “is entitled to little or no weight.”
Id. at 500,109 S.Ct. 706. Racial classifications are suspect and that means that
assurances of good intentions “cannot suffice.
G. The Eleventh Hour Submission of a Theoretical “Controlled
Choice” Plan Did Not Require Extending Court Supervision
CMS would have this Court ignore its high level of sustained compliance and
own admissions as well as the unrebutted findings of fact by the District Court
regarding the effect changing demographics had on the racial composition of several
schools. At trial, CMS sought to modify the desegregation order to require it to
essentially “start over” by implementing a completely new student assignment plan --
“controlled choice” by name — by exporting the racial quotas that define its magnet
schools to every school in the system.
At trial and on appeal, CMS has tried to walk an imaginary line between
72
proclaiming its good faith and best efforts at compliance with the desegregation
order, and its “conclusion” that it failed to achieve the elimination of the vestiges of
dejure segregation, to the extent practicable, in every single area considered relevant
to the unitary status inquiry. See Green, supra. For Belk and CMS, the phrase “to the
extent practicable” is a constantly moving target that cannot be met if there is some
other student assignment technique that has yet to be tried, some other plan and
practice that might more perfectly racially balance its schools.
It is upon this ideological quicksand that CMS constructs its central argument
against unitary status: that it could have done an even better job of racially balancing
schools had it employed the hypothetical “controlled choice” plan36 which was never
submitted, approved or implemented as part of the desegregation decree. The District
Court rejected this argument”:
.. . [T]he Court observes that controlled choice is a technique that was never
mandated by this court, was not contemplated under the guidelines enunciated
in Swann, 402 U.S. at 22-32, 91 S.Ct. at 1279-84, and was not even presented
to the Court until the eve of the most recent trial. C f Jacksonville NAACP,
supra, slip op. at 118-19 (rejecting the argument that the board must “adopt
measures [namely controlled choice] in addition to, or substantially different
from, those the parties agreed to, and which the Court ratified”).
36CMS put together its proposal to completely revamp student assignment on
the eve of trial. “As an eleventh hour strategy, CMS presented a proposed student
assignment plan just one week before trial. See DX1. This [“controlled choice”]
plan was developed only in response to the....litigation.” 57 F.Supp. at 256. In
addition to being hypothetical and a blatant litigation strategy, the proposal sought
to extend the strict racial quotas in place at the magnet schools to every school in
the county. Id.
73
Capacchione, 57 F.Supp. 2d at 256-57.
Dowell requires an analysis of “whether the vestiges of past discrimination
ha[ve] been eliminated to the extent practicable.” Dowell, 498 U.S. at 249-50.
Logically, this analysis must be conducted by first determining if any vestiges exist
before analyzing if eradication has occurred to the extent practicable. The court
exercised its discretion over the order in which it considered evidence by first
inquiring about the level of compliance with the desegregation order over the last
twenty five years in student assignment. It discretionarily preferred to first determine
if student assignment vestiges existed before ordering or considering a new remedial
plan. (Transcript, June 8, 1999, p. 46)37:
A court should not remain involved in the assignment process indefinitely
merely because some further degree of compliance with assignment standards
is conceivable.’ Morgan, 831 F.2d at 324; see Calhoun v. Cook, 525 F.2d
1203, 1203 (5th Cir. 1975) (“It would blink reality and authority, however, to
hold the Atlanta School System to be nonunitary because farther racial
integration is theoretically possible and we expressly decline to do so.”
(citation omitted)); c f James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,
542, 111 S.Ct. 2439, 2447, 115 L.Ed.2d 481 (1991) (“Public policy dictates
that there be an end to litigation.” (citations omitted)). It would greatly
confound discovery and trial proceedings in a unitary status case if, at the last
minute, the party seeking to prolong court supervision simply could offer up
the latest ‘soup du jour’ in desegregation policy as an untried method....” There
always will be new, unused, and hypothetical education techniques and
policies, just as there always will be new criticisms of the old policies. After
all, the history of public education in America is a history of continual reform.
Id. at 256.
37The Court explained the various procedural shortcomings regarding the
attempt to inject a whole new student assignment plan into the case after fact and
expert witness discovery had closed. Capacchione, 57 F.Supp. 2d at 256, n. 28.
74
The District Court was well within its authority to exclude consideration of the
hypothetical “controlled choice” plan until it heard evidence and determined whether
the desegregation order in effect (unilaterally augmented by the addition of a quota-
driven magnet school program) had eliminated, to the extent practicable, the vestiges
of de jure segregation in the area of student assignment. The District Court so
found.38
H. The District Court Correctly Interpreted The 1979 M a rtin Order
Belk argues the District Court misinterpreted earlier Swann orders, particularly
the 1979 Martin decision. Where the determination of unitary status relies in whole
or in part on an interpretation of a prior order of the District Court, the longstanding
rule is that a district court is entitled to construe its own orders. See Lockett, 111 F.3d
at 843-844 n. 2 (citing Cornish v. Richland Parish School Board, 495 F.2d 189, 191
(5th Cir. 1974)). An appellate court should be loathe to upset a district court's
interpretation of its own order. Id.; Vulcan Tools o f Puerto Rico v. Makita USA, Inc.,
23 F.3d 564, 566 (1st Cir. 1994). It is for the district court in a desegregation case to
state the terms under which it intended to retain or release jurisdiction over a school
system. Dowell, 498 U.S. 237, 249 (1991).
The District Court clearly had the power to interpret the Martin order. It does
38 “The Court finds. . . CMS . . . complied fully and satisfactorily with the
student assignment aspects of the . . . desegregation plan....[which] has achieved
its purpose of creating a unitary school system.” Capacchione, 57 F.Supp. 2d at
257.
75
not matter that the sitting judge at the time Martin was decided is not the same judge
who now interprets that order. In Alabama Nursing Home Ass 'n v. Harris, 617 F.2d
385 (5th Cir. 1980),39 the Fifth Circuit held:
In determining whether a particular act falls within the scope of an
injunction's prohibition, particular emphasis must be given to the
express terms of the order. An injunction does not prohibit those acts
that are not within its terms as reasonably construed. Great deference
is due the interpretation placed on the terms o f an injunctive order by
the court who issued and must enforce it.
Id. at 388 (citations omitted) (emphasis added). Thus, a court assigned to the
oversight and management of a case, particularly where the existence of an injunctive
order requires the district court to enforce such an order, may properly interpret an
order or injunction of a previous judge as a consequence of his judicial office. Id. As
the Federal Circuit has stated in Exxon Corp. v. United States, 931 F.2d 874, 878
(Fed. Cir. 1991):
Nor is the legality of the Claims Court's revision of its previous findings
in any way affected by the fact that the revision was by a different trial
judge. A successor judge steps into the shoes of his or her predecessor,
and is thus bound by the same rulings and given the same freedom, as
the first judge.
See generally Mesa Petroleum Co. v. Coniglio, 787 F.2d 1484,1488 (11th Cir. 1986)
(successor judge has power to consider legal issues based upon an undisputed factual
39In Harris, one district judge enjoined Alabama officials from failing to
comply with federal law. The plaintiffs later filed a motion for supplemental relief,
arguing that actions of the state violated the injunction order. The motion for
supplemental relief in the same case was heard by a different district judge, who
determined that the state actions did not violate the terms of the injunction. Id. at
386-87.
76
record), cert, denied sub nom., Locke v. Mesa Petroleum Co., 479 U.S. 1031 (1987).
The District Court is considered as an entity, not as a single person.40 Judge
Potter’s interpretation of Martin, under the cases cited above, is entitled to great
deference since he is the successor judge. If the district court's interpretation of the
previous order is not clearly erroneous in its view of the facts or the law, the district
court's interpretation should govern. Based on past precedent and sound policy
reasons, the district court had not only the power but also the obligation to interpret
what the court intended by the language used in its Martin Order. Accordingly, this
Court should be "loathe to upset a district court's interpretation of its own order."
Lockett, 111 F.3d at 843-844 n. 2.
1. The Martin Order and Twenty Years of Compliance
Belk concedes Martin was not a unitary status proceeding. Belk Brief at 22.
Martin addressed a relatively minor 1978 student reassignment involving 2,050 white
and 2,715 black students (out of 78,000 total students). The change was intended to
foster desegregation by responding to demographic shifts. Martin, 475 F.Supp. at
1320. The Martin plaintiffs opposed these reassignments as unconstitutional, relying
exclusively on two then recent Supreme Court decisions, Pasadena Bd. o f Ed. v.
40The words "judge" and "court" are frequently used as convertible terms,
but they are not strictly synonymous. A judge alone does not necessarily constitute
a court, and has been described as merely an officer or member of the court, for,
while the judge is an indispensable part, he is only a part of the court. See C.J.S.
Courts, §1.
77
Spangler, A ll U.S. 424,96 S.Ct. 2697 (1976)41 and Univ. o f Calif, v. Bakke, 438 U.S.
265, 98 S.Ct. 2733, 2756 (1978) “Plaintiffs rely principally upon Bakke and
Pasadena.” Id. at 1321-22. A two day evidentiary hearing was convened at which
Plaintiffs offered no evidence or witnesses. Id. at 1321.
The 1999 District Court carefully considered each area of “concern” identified
by CMS in 1979, to determine if it was a vestige of de jure segregation that continued
to deny black children an equal educational opportunity and was capable of redress.
As to each — school siting, transportation burdens, monitoring of transfers,
overcrowding and the location of primary grades ~ the District Court found CMS had
subsequently complied with all court orders. Capacchione, 57 F,Supp.2d at 250-53
(school siting), 253 (transportation burdens), 249 (magnet transfers), 252
(overcrowding), 253 (primary grades). Neither Belk nor CMS contend these factual
findings lack an evidentiary basis in the record. They simply differ with the
inferences drawn by the District Court. Under Anderson, these conclusions cannot be
clearly erroneous.
With regard to the siting of schools, only five school openings or closings
(which occurred after 1970 changes to the desegregation order were approved and
implemented) were at issue in Martin: Piney Grove Elementary (opened in 1977);J.
H. Gunn Elementary (replaced by Northeast Junior High); Sharon Elementary;
41Pasadena foreshadowed the later Supreme Court’s decision Freeman v.
Pitts, 530 U.S. 467, 112 S.Ct. 2758 (1992) prohibiting any racial imbalance
emanating from demographic change from delaying the declaration of a school
system’s unitary status with respect to student assignment.
78
Northeast Junior High (relocation of one mile to former campus of Independence
High School); Wilmore Elementary (closed due to unstable attendance pattern).
Importantly, two of the five school sitings did not involve new schools, but
reutilization of closed campuses. The record of racial balance for these schools from
1979 forward is excellent.42 There is no evidence any of these school sitings were
motivated by an effort to resegregate. In fact, each school was subsequently balanced
nearly every year since 1979. These school sitings were not vestiges of
discrimination.
At the conclusion of the Martin case, the District Court declined to order any
relief. Martin, 475 F.Supp. at 1347 (“. . . no change in existing orders will be
required. This order simply upholds the actions of the 1978 Board. . . . ) . This was
the outcome sought by the Swann plaintiffs. “The original Swann parties [Intervenors
in Martin] . . . have joined together in asking the Court to let the situation alone —
as the Court has been happy to do since 1974." Id. at 1328 (emphasis added).
It is therefore incredulous that Belk would now seek to interpret Martin as
finding systemic problems existed with the enforcement of the desegregation order
by CMS or with the efficacy of the desegregation techniques it employed. Contrary
to Belk’s current contentions, Martin concluded that the desegregation order was
working. The court believed that more time was needed to insure all vestiges had
42Piney Grove was racially balanced every year except 1992-1993. J. H.
Gunn has been racially balanced all but seven years and has been balanced every
year since 1988. Sharon and Northeast have been balanced every year since 1979.
(DX 47).
79
been eradicated to the extent practicable, and that given that good progress was being
made, the case should remain inactive. The Martin order confirms the fact the Belk
Plaintiffs have always been content to rely solely on the further passage of time under
the desegregation order to eliminate any residual vestiges of the dual system. The
Martin court concluded:
Human nature and practices don’t change [in ten years], even in the hands of
people of good will like... [CMS]. They need time to find... ways of producing
the sustained operation of a system of schools in which racial discrimination
will play no part. I vote...to uphold their efforts to date, and give them that
time. Id. at 1347.
Lastly, Belk reads Martin as prohibiting the use of mobile classrooms. While
no school system prefers mobiles, they are inevitable in rapid growth areas. The
population explosion in the southern and northern regions of the county, and the lack
of adequate school facilities to house these students, are not logistical problems CMS
may constitutionally respond to with mobile classrooms. For Belk, the correct
constitutional response is to put these students on a bus - somewhere. The District
Court found the evidence was overwhelming that mobile classrooms were employed
to ease overcrowding. Capacchione, 57 F.Supp.2d at 251-53. CMS was not
motivated by any desire to resegregate, but strictly by the exigencies created by
demographic change that created a chronic shortage of seats in the fastest growing
area of the county.
III. THE INJUNCTION
Should the District Court’s declaration of unitary status be affirmed, CMS
argues the injunction barring the prospective discriminatory use of race in student
80
assignment is “overbroad.” CMS interprets the injunction to prohibit any
consideration of race, in any context. This questionable construction is borne more
out of a desire to fabricate an appealable issue than a fair reading of the injunction.
An injunction was necessary in this case. Based on an overwhelming
accumulation of supporting evidence, the District Court concluded:
CMS takes a bizarre posture in this late phase of the case.... In 1965, when the
Swann litigation began, CMS strongly resisted federal supervision, but today,
the school system is equally fervent in resisting the removal of the
desegregation order because it now wishes to use that order as a pretext to
pursue race-conscious diversity, enhancing policies in perpetuity.
Capacchione, 57 F.Supp. 2d at 232 (emphasis added). Based on this finding,
prospective injunctive relief was essential to insure CMS did not continue to employ
the racial quotas, preferences and set asides the District Court declared
unconstitutional.
A. The District Court Properly Held the Magnet School Program
Violated the Constitution and Awarded the Plaintiff Intervenors
Nominal Monetary and Injunctive Relief
1. Strict scrutiny applies to all government sponsored racial classifications
CMS’ claim that strict scrutiny review does not apply to its magnet school
admissions quotas misstates the law and ignores the facts of this case. The Supreme
Court has unambiguously and categorically held that "all racial classifications,
imposed by whatever federal state or local governmental actor, must be analyzed by
a reviewing court under strict scrutiny." Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 227 (1995) (emphasis added). See also Wygantv. Jackson Bd. o f Ed., 476
U.S. 267, 273 (1986) (the "most exacting judicial examination___" applies to "any
81
sort" of racial classifications.) The Supreme Court applies strict scrutiny even to
court ordered, involuntary racial classifications. Paradise v. United States, 480 U.S.
149, 166 (1986). The Court's sweeping holdings exempt no form of racial
classifications, regardless of the type of governmental entity that imposes it, the
origin of the duty to impose racial classifications, or even whether the governmental
body implementing the racial classifications is under court order.
Identically, this Court has held that strict scrutiny review applies to "[a]ny
racial classifications . . ." even in the context of school desegregation. Eisenburg v.
Montgomery County Public Schools, 197 F.3d 123,129 (4th Cir. 1999); cert. den.___
U.S.___, 2000 Lexis 1925 (March 20, 2000);43 see also Tuttle v. Arlington County
School Board, 195 F. 3d 698, 704 (4th Cir. 1999) ("All racial classifications are
subject to strict scrutiny"). Under this Court's rulings, strict scrutiny applies even to
racial preferences required by a federal court consent order. Maryland Trooper's
Ass'n, Inc. v. Evans, 993 F.2d 1072, 1074-1076. ("The use of race as a reparational
device risks perpetuating the very race consciousness such a remedy purports to
overcome." "Invidious racial preferences can wear the mask of remedial measures .
..."); Hayes, 10 F.3d at 210-212 (Strict scrutiny applies "to any classification on the
basis of race, regardless of the type, purpose, or alleged victim of the racial
distinction.").
43The National School Board Association filed an amicus brief on behalf of
the school board in Eisenberg urging the Supreme Court to grant the petition for
certiorari and reverse the Fourth Circuit opinion relying on the same racial
diversity argument it advances as Amicus for CMS.
82
Strict scrutiny review also applies even where the racial classifications are
allegedly remedial since, "[a]bsent certain judicial inquiry. . . there is simply no way
of determining what classifications are 'benign' or 'remedial' and what classifications
are in fact motivated by illegitimate notions of racial inferiority or simple racial
politics." City o f Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989). This Court
also applies strict scrutiny to remedial racial classifications no matter their purposes.
Podberesky v. Kirwan, 38 F.3d 147,153 (4th Cir. 1994) (strict scrutiny applies where
district court found classifications were designed to eradicate present effects of past
discrimination); Alexander v. Estepp, 95 F.3d 312, 315-316 (4th Cir. 1996) (Racial
classifications designed to remedy present effects of past discrimination subject to
strict scrutiny.)
Neither the Supreme Court nor this Court have ever carved out any exceptions
to the mandate of strict scrutiny review for school systems under court order. Other
circuits have considered the question and held that strict scrutiny always applies to
every governmental racial classification, including school desegregation judicial
orders and a school system with a history of segregation. See Ho v. San Francisco
Unified School District, 147 F.3d 854, 856-865 (9th Cir. 1998) (challenge to school
system's racial quotas resulting from system "adhering to . . . " a court ordered
"consent decree . . . ."); Wessman v. Gittens, 160 F.3d 790, 792, 794, 800 (1st Cir.
1998) (Strict scrutiny applies to race based magnet school lottery designed to remedy
"the vestiges of past discrimination.").
83
2. CMS' magnet school lottery quotas violated prior court orders, and were
adopted to combat shifting racial residential demographics, not as a
good faith effort to comply with any court order.
While CMS characterizes its magnet school program as a "good faith effort to
comply with the court's orders," it cites to no record facts to support the claim. Its
own documents demonstrate the magnet school program was not adopted to comply
with prior court orders to desegregate any de jure segregated schools. The CMS'
magnet school program was simply a voluntary desegregation plan it designed and
unilaterally implemented to combat demographic change. Strict scrutiny review
applies to the magnet school lottery because it applies to "all racial classifications,
imposed by whatever . . ." branch of government. Adarand, 515 U.S. at 227
(emphasis added).
However, even assuming the reason motivating CMS' adoption of a dual lottery
admissions process is consequential, the District Court found it was clearly
implemented to combat racial residential demographic change44, not comply with the
desegregation order. In any event, neither the District Court nor this Court should
44As noted supra, CMS told the United States DOE that it implemented a
magnet school program "[bjecause of the combined impact o f . . "demographic
and residential patterns in the community [which] have made it extremely difficult
to continue to use paired schools." (PX4). These demographic changes produced,
"despite the best efforts of the Board . . ." racially imbalanced schools and
"detrimental" bus rides for children. Id. In other words, the reason CMS
abandoned paired schools which were part of the desegregation plan and replaced
them with magnet schools was CMS' desire to counteract demographic change.
84
"accept the government's mere assertion that remedial action is required. Rather, [the
Supreme Court] insist[s] on a strong basis in evidence of the harm being remedied."
Miller v. Johnson, 515 U.S. 900, 922 (1995).
CMS could not have been motivated by any desire to comply with its court-
ordered duty to eradicate vestiges of segregation. The former superintendent, John
Murphy, who devised and implemented the magnet school plan, testified that, even
though he "definitely concluded" CMS was in compliance with the court order, the
reason CMS implemented its magnet school program was to counteract racially
imbalanced schools caused by residential demographic change (Testimony of John
Murphy, pp. 31,33,46). Dr. Stolee, the author of the study proposing magnet school
program clearly stated it was a plan designed to balance schools that CMS knew were
imbalanced due to demographic change, not de jure violations of the Constitution.
Absent a constitutional violation there would be no basis for judicially
ordering assignments of students on a racial basis." Swann, 402 U.S. at 28. Under
Swann, the "objective is to dismantle the dual school system," not "to make year by
year adjustments of the racial compositions of student bodies. . ." to adapt to
demographic change. Id. at 31-32.45
45Just over one year before CMS adopted its magnet school plan, the
Supreme Court held a desegregation order was "intended as a temporary measure
to remedy past discrimination.” Board o f Education o f Oklahoma City Public
Schools v. Dowell, 498 U.S. 237, 247 (1991) (emphasis added). Ironically, the
very day CMS adopted its magnet school program (CMS Exhibit 12), the Supreme
Court held "[rjacial balance is not to be achieved for its own sake" but instead, "it
is to be pursued when racial imbalance has been caused by a Constitutional
85
This Court has specifically said that racial imbalance caused by "private
choices," "could not be a vestige of discrimination." Eisenberg, 197 F.3d at 132. In
Freeman, the Supreme Court reiterated that "the school district is under no duty to
remedy imbalance that is caused by demographic factors and such imbalances have
no constitutional implications." Freeman, 503 U.S. at 494-495. Therefore, since they
targeted the consequences of private choice, the magnet schools were not designed
to remedy vestiges of segregation.
As the District Court noted, "CMS was never required..." by its desegregation
obligations to adopt its magnet school program. Capacchione, 57 F. Supp.2d at 289.
While the 1969 District Court explicitly stated "fixed ratios of pupils . . . will not be
set", the 1999 District Court stated it could not conceive of a "more restrictive means"
of achieving racial balance than the magnet school's "use of rigid racial quotas."
Capacchione, 57 F. Supp.2d at 286-289. Whatever the effect of CMS’ discretion to
implement the Swann Orders, that discretion does not authorize "acts that are beyond
the scope of the Court's mandate. . ." and which are simply, as the District Court
noted, "an abuse of discretion." Id. at 286, n. 48. This Court's own precedent firmly
bans fixed racial quotas as school desegregation remedies. Bradley v. School Board
o f Richmond, 462 F.2d 1058, 1064 (4th Cir. 1972). CMS had no discretion to
implement quotas which even a federal court is forbidden to order.
In this case, CMS' magnet schools merely wore "the mask of remedial measures
. . ." when in fact they were nothing more than mechanisms of "invidious racial
violation." Freeman v. Pitts, 503 U.S. 467, 494 (1992) (emphasis added).
86
preferences." Maryland Troopers, 993 F.2d at 1076. As early as 1988, CMS' own
staff reports demonstrated its schools were becoming racially imbalanced because of
racial demographic shifts unrelated to Constitutional violations that occurred 25 years
in the past. (PX 4). CMS could not have been acting in good faith to comply with
Swann's Court Orders because those Orders only required CMS to racially balance
schools that were racially identifiable due to official action. CMS' own studies
demonstrate it was doing the opposite; constantly racially rebalancing to counter
demographic change.
CMS' magnet school lottery violated the orders CMS alleges it was designed
to fulfill, and was implemented without the required judicial supervision and
necessary court approval. Consequently, CMS' magnet lottery was a voluntary
affirmative action measure that finds no refuge in the District Court's remedial orders.
In the remedial order the Supreme Court approved in Swann, the 1970 District Court
directed CMS to obtain "leave of court" before "making any material departure from
any specific requirements set o u t. . ." in its remedial Orders. Swann, 311 F. Supp.
at 270. The District Court properly found the CMS magnet school program
constituted "a material departure from the Swann Orders" without court supervision
or approval. Capacchione, 51 F. Supp.2d at 287.
CMS cannot credibly claim its magnet school lottery was a "good faith effort
to comply with valid desegregation orders---- " (CMS Brief p. 17). CMS was never
required to implement inflexible racial quotas to racially balance schools it knew
became imbalanced due to demographic change. The record clearly shows the
87
magnet lottery contradicted court orders, because it employed fixed racial quotas to
balance schools that were not in violation of any prior court order, and did so without
court oversight or approval.
Racially segregated admission lotteries, now in place thirty years after the dual
system was dismantled, does not constitute a good faith effort to comply with prior
court orders. Rather, they are a perfect example of why this Court insists that all race-
based remedial measures must be temporary; "they may not take on a life of their
own." Maryland Troopers, 993 F.2d at 1076; Hayes, 10 F.3d at 216. The facts
presented in this case are precisely why a "tight hand must be kept on race lest,
employing it to remedy racial evil, it slip out of control and inflict fresh harm." Ho,
147 F.3d at 864.
3. Strict scrutiny review applied to the magnet school lottery regardless of
whether it was a voluntary or involuntary race based classification.
As previously demonstrated, strict scrutiny review applies to all types of racial
classifications imposed by any governmental actor regardless of the motive and
regardless of whether the classifications are involuntary, including court ordered,
involuntary remedial racial classifications. Paradise, 480 U.S. at 166; Eisenberg,
197 F.3d at 129 ("Any racial classification . . . must survive strict scrutiny review.")
In this case, there is no evidence to contradict the District Court's findings that CMS'
magnet school lottery was a voluntary "material departure..." from the Swann orders
despite the court requiring it to obtain leave of court before doing so. Capacchione,
57 F. Supp.2d at 286-287.
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Since CMS' magnet school lottery was a voluntary desegregation effort which
was not designed to eradicate vestiges of segregation, it is subject to strict scrutiny
review under this Court's precedent. Maryland Troopers, 993 F.2d at 1074-1076.46
CMS' voluntary adoption of its magnet school program is like those voluntary
desegregation plans adopted in Tuttle, 195 F.3d at 701,707 (non-remedial voluntarily
adopted race based lottery not narrowly tailored) and Eisenberg, 197 F.3d at 129,
133 (voluntary desegregation magnet school transfer policy held not narrowly
tailored.) CMS does not even argue that its magnet school lottery was narrowly
tailored, and the District Court so found because it was inflexible, placed undue
burdens on third parties and was indefinite in duration. Capacchione, 57 F. Supp.2d
at 289-290. Given these concessions, this Court should affirm the trial court and hold
CMS' magnet school program is unconstitutional.
4. The District Court properly held CMS used the Swann Orders as a
pretext for unconstitutional racial balancing.
CMS' former Superintendent had an expert review CMS' past compliance with
the Court's student assignment orders. He reported CMS had complied in good faith
46Under the facts of this case, strict scrutiny is even more appropriate than it
was in Maryland Troopers because, unlike the affirmative action plan in that case,
the voluntary magnet school plan was never given court approval. Capacchione,
57 F. Supp.2d at 287. Likewise, although strict scrutiny applies to remedial racial
classifications, the magnet school plan in this case was designed simply to achieve
racial diversity despite demographic change, not to eradicate racial segregation
caused by CMS policy. Podberesky, 38 F.3d at 153; Alexander, 95 F.3d at 315-
316. Strict scrutiny review is even more appropriate in this case than in
Podberesky and Alexander because those cases involved remedial racial
classifications while this case does not.
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with those orders and that CMS had been successfully desegregated for over twenty
years. (Murphy testimony, pp. 27-29). Both Dr. Murphy and his senior staff accepted
the expert’s assessment of CMS' compliance with the Court's Orders. Id. at 31. Dr.
Murphy testified that while he concluded CMS had folly complied with Swann, the
Board declined to seek unitary status, in part, because CMS wanted "the power of the
court order behind us because we were committed to racially balancing our schools
and that was a lot easier to do when you had the Court on your side as opposed to
doing it politically." Id. at 32. It also helped CMS get federal funding. Dr. Murphy
also testified CMS thought the court order would give it more "clout" in the face of
any lawsuits challenging the magnet program. Id.
Based upon these and other facts, the District Court properly concluded that
CMS is now using the remedial order “as a pretext to pursue race conscious, diversity
enhancing policies in perpetuity." Capacchione, 57 F. Supp. at 232. CMS adopted
prohibited quotas without the required judicial supervision and oversight to correct
racially imbalanced schools caused by residential racial demographic shifts. This
Court has already twice held that non-remedial racial balancing is unconstitutional.
Tuttle, 195 F.3d at 705, Eisenberg, 197 F.3d at 131. Aside from the fact that the
eleventh hour deployment of racial quotas are flatly contrary to Brown's objective of
achieving "a system of determining admissions to the public schools on a non-racial
basis . . ." it underscores the importance of ending CMS' manipulation both of the
desegregation order, and the parents and students of Mecklenburg County. Brown,
349 U.S. at 300-301.
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CMS' stated reason for employing rigid racial quotas in its magnet schools is
demonstrably false. CMS cites the Court to no record evidence that the magnet
school quotas were adopted for any reason than to overcome demographically caused
imbalanced schools, and the principle architect of the magnet schools offered no other
reasons for adopting the magnet school quotas. As a result, rather than being a good
faith effort to comply with the Court's orders, CMS' magnet school plan became a
pretext of doing what the Constitution and the Swann orders forbid. The District
Court's conclusion that CMS had manipulated the remedial order for an
unconstitutional purpose was well- founded and should be affirmed.
B. Nominal Damages Are Required For Constitutional Violations
CMS fails to cite a single case which holds that it is immune from a nominal
damage award in a constitutional case. Rather, the cited cases stand for the
proposition that CMS was obligated to comply with the Court's Orders.
As previously demonstrated, the magnet school lottery violated specific Swann
court orders forbidding rigid racial quotas. As a matter of fact (which CMS does not
claim is clearly erroneous), the District Court found CMS' magnet school lottery
employed "rigid racial quotas" that violate court orders prohibiting “fixed ratios...”
Capacchione, 57 F. Supp.2d at 286; Swann, 306 F. Supp. at 1312. Therefore, on the
facts of this case, what CMS is seeking is not to avoid damages for good faith efforts
to comply with the Court Orders, but damages for deliberately violating court orders.
Damage awards for conduct clearly prohibited by the Constitution are uniquely
appropriate. Indeed, a nominal damages award is mandatory where a constitutional
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violation occurs. Farrar v. Hobby, 506 U.S. 103, 112 (1992); Price, 93 F,3d at 1246.
CMS' worry that no other Court in history has awarded damages against a
school district for exceeding its duties under desegregation orders is misplaced. First,
no other school system in history has been found to have manipulated desegregation
orders in as blatant a manner. Second, CMS was not ordered to pay a one dollar
nominal damages award for merely lawfully exceeding its desegregation obligations.
Rather, CMS directly violated a prohibition against quotas which has always been
condemned under the Constitution.
If, as Swann holds, district courts are forbidden by the Constitution from
ordering rigid racial quotas, it follows necessarily that school systems attempting to
implement court orders are prohibited from imposing rigid racial quotas in an effort
to comply with court orders. Swann, 402 U.S. at 23-24; Bradley, 462 F.2d at 1064.
CMS’ argument fails because its conduct was so clearly prohibited by the law of the
land.
CMS' assertion that its magnet school plan was implemented involuntarily is
unsupported by the facts in the record and the findings of the District Court.
Curiously, CMS appears to argue that it was under a court order to implement quotas
that were forbidden by that same court order. In other words, CMS is arguing a non-
sequitur: it was required by a court order to violate a court order.
CMS' alleged dilemma of "conflicting duties" is a false one. CMS was under
compatible directives to employ good faith efforts to racially balance schools where
vestiges of de jure segregation caused imbalance, and to do so without using strict
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quotas. These duties are not mutually exclusive. It is CMS alone that freely chose the
path of constitutional liability, even where its obligations and the limits on those
obligations were perfectly clear.
CMS' exaggerated fears of a flood of future damages suits with "enormous"
implications sending a "chilling message" to school systems still under desegregation
orders is both conjecture and a gross overstatement. Since entry of the September
1999 Order, not a single damages case has been brought against CMS regarding its
unconstitutional magnet lottery. Apparently, the one dollar in nominal damages has
not excited the passions of this allegedly litigious community. Capacchione, 57 F.
Supp.2d at 285.
Furthermore, public officials have immunity when actually acting pursuant to
court orders. Wolfe v. City o f Pittsburgh, 140 F.3d 236, 240 (3rd Cir. 1998). No
school system under court order will need to fear damages liability for actually
complying with court orders if the court upholds the nominal damages award in this
case. Affirmance of the District Court in this case will simply set an important
precedent that there are consequences if desegregation orders are intentionally
manipulated and used as a pretext to pursue the unconstitutional purpose of racial
diversity in lieu of promptly seeking a declaration of unitary status.
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C. The District Court’s Injunction is a Measured, Properly Fashioned
Remedy for Unconstitutional Racial Quotas that was Well Within
its Discretionary Equitable Powers
1. Racial neutrality is the chief end of injunctions under the Fourteenth
Amendment.
Longstanding precedent holds that injunctions issued to enforce the Fourteenth
Amendment must be designed to achieve the Constitution's "central mandate [of]
racial neutrality in governmental decisionmaking." Miller v. Johnson, 515 U.S. 900,
904 (1995), citing Loving v. Virginia, 388 U.S. 1, 11 (1967); McLaughlin v. Florida,
379 U.S. 184, 191-192; and Brown v. Board o f Education, 347 U.S. 483 (1954). At
the heart ofthe Constitution's guarantee of equal protection lies "the simple command
that the Government must treat citizens as individuals, not as simply components of
a racial, religious, sexual or national class." Miller, 515 U.S. at 911 (citations
omitted).
When the equal protection guarantee is enforced by injunction within the
context of education, the Supreme Court has held that the chief purpose of the relief
is "to achieve a system of determining admissions to the public schools on a non-
racial basis. . . to "effectuate a transition to a racially non-discriminatory school
system." Brown, 349 U.S. at 300-301 (emphasis added). Forty years later, the
Supreme Court echoed this mandate of racial neutrality stating "[r]ace based
assignments embody stereotypes that treat individuals as the product of their race,
evaluating their thoughts and efforts - their very worth as citizens - according to a
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criterion barred to the government by history and the Constitution." Miller, 515 U.S.
at 912.
2. Injunctions under the Fourteenth Amendment have been
characterized by flexibility, breadth and judicial deference
to trial courts.
"Of all the criteria by which men and women can be judged, the most
pernicious is that of race." Maryland Troopers, 993 F.2d at 1076. Consequently,
injunctions designed to enforce the equal protection guarantee have been uniquely
characterized by flexibility, breadth and deference to the District Court. The District
Court’s "duty" under the Fourteenth Amendment is "to render a decree which will so
far as possible eliminate the discriminatory effects of the past as well as bar like
discrimination in the future." Louisiana v. United States, 380 U.S. 145, 154 (1965)
(emphasis added). Johnson v. Capital City Lodge No. 74, 477 F.2d 601, 603 (4th Cir.
1973); Felder v. Harnett County Board o f Education, 409 F.2d 1070, 1'074 (4th Cir.
1969).
"Once a right and a violation have been shown, the scope of a district court’s
equitable powers to remedy past wrongs is broad for breadth and flexibility are
inherent in equitable remedies." Swann v. Charlotte-Mecklenburg Board o f
Education, 402 U.S. 1,15 (1971). Injunctions to enforce the Fourteenth Amendment
are not "required . . . to be limited to the least restrictive means of implementation."
Paradise, 480 U.S. at 184, quoting, Fullilovev. Klutznick, 480 U.S. 149, 184 (1980).
Rather, "the choice of remedies to address racial discrimination is a balancing process
left within appropriate Constitutional or statutory limits, to the sound discretion of the
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trial court." Paradise, 480 U.S. 149, 184(1987). "While a remedy must be narrowly
tailored, that requirement does not operate to remove all discretion from the district
court in its construction of a remedial decree." International Salt Co. v. United
States, 352 U.S. 392, 400 (1947) (the framing of decrees should take place in the
district rather than in appellate courts).
3. CMS retains control over its school system under the injunction.
The District Court did not retain supervisory jurisdiction over CMS and issued
only a prohibitory injunction. See People Who Care v. Rockford Board ofEducation,
11 F.3d 528, 534 (7th Cir. 1997) ("decrees that prohibit the specified conduct are
generally preferable to those that impose affirmative duties.") There is thus no danger
that CMS will lose local control over its schools by virtue of the injunction. The trial
court showed restraint in acknowledging the historic independence of local school
districts by refusing to require CMS to obtain "clearance of any future student
assignment plans prior to implementation." Capacchione, 57 F. Supp.2d at 291.
However, because the District Court found CMS unconstitutionally engaged in racial
discrimination which constituted an independent violation of 42 U.S.C. § 1983 and
it offered evidence designed to support continuation of the unconstitutional practices
even after it was declared unitary, the District Court was well authorized to enjoin the
practice that caused the violation. Evans v. Harnett County Board o f Education, 684
F.2d 304, 306 (4th Cir. 1982).
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4. The injunction is narrowly tailored to the violations.
The District Court found CMS used rigid quotas, via racially segregated
lotteries to assign CMS students to schools that offered "specialized curricula
above and beyond the regular academic program." Capacchione, 57 F. Supp.2d at
286-290, n. 49. The District Court therefore found CMS committed violations in both
its student assignment and educational opportunities policies which are inextricably
intertwined in the magnet school program. The use of racial quotas unconstitutionally
denied students “equal footing” to seek these enriched learning opportunities, and
race was found to be the illegal criterion used to employ the illegal set asides of
magnet school openings.
The District Court enjoined nothing more than CMS' violation of "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." Id. at 294. Thus, the injunction is narrowly tailored to, and
targets nothing more than, violations in its student assignment and educational
opportunities policies. The injunction also prohibits CMS from using the means
found to be illegal (race-based lotteries preferences and set asides) that deny equal
footing, which rely on the unlawful criterion (race) to bar the door to educational
opportunities. The injunction is limited to correcting violations in specific areas of
CMS' operations, and is confined to enjoining only the practices found to be illegal.
The law squarely requires the District Court to "eradicate past evil effects and
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to prevent the continuation or repetition in the future of the discriminatory practices
shown to be so deeply engrained in [CMS policy which] completely justify [it] in
entering the decree it d id -----" Louisiana v. United States, 380 U.S, at 154. The
District Court did nothing more that eliminate the future effects of a past
discriminatory policy as required by the law. If the unconstitutional practices in
student assignment were not enjoined by the District Court, they would continue
given the testimony CMS offered at trial regarding its position that racial diversity
justified its long term post-unitary commitment to race-based student assignment.
D. The District Court Injunction Eliminated Both a Past Practice
and Prohibited Threatened Future Harm
CMS apparently concedes that the injunction was proper, assuming its finding
of past equal protection violations was proper. This alone is more than adequate to
justify a permanent injunction since "[a] proper remedy for an unconstitutional
exclusion [in the past] aims to eliminate [so far as possible] the discriminatory effects
of the past and bar like discrimination in the future." United States v. Virginia, 518
U.S. 515,547 (1996) quoting, Louisiana v. United States, 380 U.S. at 154. Therefore,
CMS' assertion that the District Court had no evidence of threatened future violations
is irrelevant.
This Court has held "[a]n injunction should not be refused upon the mere ipse
dixit of a defendant that, notwithstanding his past misconduct, he is now repentant
and will hereafter abide by the law. Denial of an injunction is proper only in cases
where, after hearing the defendant and examining the particular circumstances of the
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violations involved, including the existence of a pattern or practice of past violations,
the judge is fully satisfied that the defendant will not continue his unlawful conduct."
United States v. Hunter, 459 F.2d 205, 220 (4th Cir. 1972) cert. den., 409 U.S. 934
(1972). (emphasis added). At trial, CMS made clear its belief the racial quotas
undergirding the magnet school plan were constitutionally justified by the
compelling state interest of racial diversity. The Court rejected diversity as a basis
for perpetuating the quotas. The injunction provided a reasonable enforcement
mechanism for this finding.
1- CMS failed to satisfy the Court that it would not
continue its illegal conduct.
CMS was given its opportunity to satisfy the District Court that its unlawful
conduct in the past would not continue in the future. CMS Board of Education
Chairman Arthur Griffin was asked if he could identify any race based student
assignment policies that would end if CMS were declared unitary. He testified, "no
. . . ." (Testimony of Arthur Griffin, p. 69). When asked the same question again,
Griffin testified, "I said that the first time, I didn't know." Id. at p. 70). Griffin could
not even confidently testify that the rigid quotas in the racially segregated magnet
school lottery would end in a post unitary CMS. Griffin was asked a third time if the
Board of Education would continue to use race as a criterion for student assignment
and he testified "I don't know . . . I just simply don't know." {Id. at p. 86). Griffin
said yes when asked if racial diversity should be the goal of student assignment in
CMS. Id. at 94. After repeated evasions, Griffin was impeached with his deposition
99
testimony in which he was asked if he thought the type of racial balancing CMS
engaged in pre-unitary status was desirable post-unitary status. Griffin answered
affirmatively. (Testimony of Arthur Griffin, p. 98).
Having found CMS' magnet school quotas were illegal before CMS was
declared unitary and presented with the testimony of the CMS' Board Chairman who
steadfastly refused to preclude future use of quotas and affirmatively stated that race
based student assignments were desirable in the future, the District Court was well
justified in concluding that CMS would continue the practice by default. At no time
during or after the trial did CMS advise the Court of plans to terminate its magnet
school quota regime. The evidence at trial demonstrated that in the last thirty years,
CMS' accelerated its use of racial quotas becoming more aggressive over time to
counteract demographic change even in the face of specific district court prohibitions
on the use of strict racial quotas.
The District Court’s finding that CMS intended to perpetuate its quota-based
racial lottery in a post-unitary system was mandated by virtue of CMS' evidentiary
presentation of its "diversity rational as a justification for using race. . . ."
Capacchione, 57 F. Supp.2d at 291. CMS elicited testimony from no fewer than
nine lay and expert witnesses concerning the prospective benefits of racially diverse
schools. Capacchione, 57 F. Supp.2d at 291 (citing the representative testimony of
two such witnesses).
CMS' diversity evidence could only be relevant to its attempt to justify its
reliance on race as a compelling governmental interest in prospective student
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assignments. Obviously, the use of race for the sole purpose of achieving racial
diversity in a pre-unitary school system would be unnecessary because CMS could
consider race for remedial purposes. Similarly, if CMS planned to use criteria other
than race to achieve diversity there would have been no need to attempt to create a
"strong basis in evidence . . . " required by the Constitution to justify race based
measures. Croson, 488 U.S. at 500. Under these circumstances, the District Court
was justified in concluding that injunctive relief was necessary to prevent future
unconstitutional student assignments that parceled out educational opportunities
based on race.
2. The District Court Injunction is Suitably Narrow
As previously shown, the injunction is tightly fitted to the violation, unlike the
injunction in Tuttle, supra, where this Court reversed an affirmative injunction
requiring a school system to "adopt a particular admissions policy.. ." of instituting
a "double blind random lottery without the use of any preferences . . . " and
prohibiting it from considering a student's "family income and first language . . . " in
the admissions process. Tuttle v. Arlington County School Board, 195 F.3d 703, 708
(4th Cir. 1999). Therein, this Court found the Plaintiffs "were entitled to an injunction.
.." However, since only the use of race was found to be illegal, requiring a particular
type of lottery and prohibiting considerations of race neutral factors was not proper.
Id.
By contrast, the violation in this case matches the prohibition. CMS is not
forced to select any particular means of student assignment and is not prohibited from
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considering any student assignment techniques that give students an “equal footing”
in competing for educational opportunities.
CMS’ reliance on Hayes is misplaced because in that case, the district court
enjoined employment practices that were not in controversy. Hayes, 10 F.3d at 217.
Herein, the central liability controversy at trial concerned CMS' use of a rigid racial
quota in student access to a specialized educational opportunity. Nothing more was
enjoined by the District Court. The District Court was even careful to restrict its
injunction to target the techniques, such as quotas and seat set asides that were
actually at issue in the case.
The Supreme Court's holding in Paradise is closely analogous to this case.
Therein, the Supreme Court held an injunction covering both hiring and promotions
was necessary, even though only violations regarding hiring were found, because
"discrimination at the entry level necessarily precluded blacks from competing for
promotions." Paradise, 480 U.S. at 168. The Court specifically has stated that
district courts are not required to adopt "the least restrictive means . . ." of fashioning
a remedy. Fullilove, 448 U.S. at 508. Similarly, in this case, CMS' exclusion of both
black and non-black children from magnet schools solely because of their race
necessarily means that they are assigned to another school - often distant and less
desirable - solely because of their race.
It would have accomplished little to prohibit race based student assignments
to one type of school where that would simply result in a race based student
assignment to another school. The very nature of discretionary, flexible and equitable
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relief is the authority to both eliminate specific instances of discrimination and
"secondary' effects elsewhere." United States v. Yonkers Board o f Education, 837
F.2d 1181, 1235-1238 (2nd Cir. 1987).
IV. THE DISTRICT COURT PROPERLY REJECTED “RACIAL
DIVERSITY” IN STUDENT ASSIGNMENT AS A COMPELLING
STATE INTEREST.
At trial, CMS insisted on offering evidence to support its contention that the
theoretical educational benefits of racial diversity in a student body provided an
alternative compelling state interest to justify perpetuation of its race-based student
assignment plan even after it was declared unitary.47 CMS’ argument about diversity
trumping a citizen’s Fourteenth Amendment rights is a dangerous one. Once the
District Court rejected the contention, it was left with little choice but to issue an
injunction. Failure to do so would have left the proverbial school doors wide open for
the seemless transition of the current remedial race intensive student assignment plan
to a permanent race-based post-unitary status plan.
47The United States Department of Justice [DOJ] amicus brief is largely
devoted to the assertion that a government may “opt” to allocate valuable public
educational benefits by race if the effect is to “racially” diversify a particular
student body. The brief presents nothing new to the case. The DOJ position on this
largely political issue is constantly changing. In Taxman v. Board o f Educ. o f the
Township o f Piscataway, 91 F.3d 1547 (3rd Cir. 1996) cert, dismissed 522 U.S.
1010 (1997), the DOJ position “evolved” from an initial support for diversity, to
opposition, and then back full circle to support. This is the same DOJ that
advocated race-based voting districts, as being required by the Voting Rights Act.
Their advocacy of race-based government decision making has been rejected by
the Supreme Court in a number of cases. See Miller v. Johnson, 515 U.S. 900
(1995); Shaw v. Hunt, 517 U.S. 899 (1996); Bush v. Vera, 517 U.S. 952 (1996);
Adarand v. Pena, supra.
103
Racial diversity is not recognized as a compelling state interest. To do so would
violate both sound precedent and the Fourteenth Amendment's central mandate of
racial neutrality, render strict scrutiny review incoherent and license CMS to racially
stereotype children. CMS' argument that the District Court erred by enjoining it from
future use of race as a student assignment criteria because it did not appropriately
esteem racial diversity or prioritize avoidance of resegregation proves too much.
There is simply no point in CMS arguing about these issues if it does not have the
present intention of using race as a criterion to either achieve racial diversity or avoid
resegregation in the future.
A. Sound Precedent Precludes Race-Conscious Policies To Either
Achieve Racial Diversity Or Avoid Racial Resegregation
"Preferring members of any one group for no reason other than race or ethnic
origin is discrimination for its own sake. This the Constitution forbids." Regents o f
the University o f California v. Bakke, 438 U.S. 265, 307 (1978) (Opinion of Powell,
J.). This is because the "central mandate . . of the equal protection guarantee "is
racial neutrality in governmental decisionmaking." Miller, 515 U.S. at 902. This
principle is "a simple one . . which involves "a simple command that the
government must treat citizens as individuals, not as simply components of a racial,
religious, sexual or national class." Id. at 911. Obviously, race-conscious student
assignment policies designed to achieve racial diversity are the opposite of race-
neutral policies and must involve racial stereotyping that treats children as members
of a racial class, not individuals.
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Many courts have recently held that in the context of education and elsewhere,
racial diversity can never be a compelling governmental interest. See Hopwood v.
State o f Texas, 78 F.3d 932 (5th Cir. 1996), cert, denied, 518 U.S. 1033 (1996);
Lutheran Church - Missouri Synod v. FCC, 141 F3d. 344 (D.C. Cir. 1998); Taxman
v. Board o f Education, 91 F.3d 1547 (3rd Cir. 1996). Accordingly, the District Court
was well justified in concluding that both the rationale of this Court's and the
Supreme Court's opinions, coupled with the weight of authority from other circuits
dictates that as a matter of law, racial diversity is never a compelling state interest.
This Court requires that "racial preferences, if available at all, must be only a
last resort option." Alexander, 95 F.3d at 316; quoting, Hayes, 10 F.3d at 217;
Paradise, 480 U.S. at 171. CMS failed to offer any evidence in the District Court,
and does not even argue that using race as a student assignment criterion is the only
means of achieving either racial diversity or preventing resegregation. It has not done
so because it cannot do so. This demonstrates more graphically than anything else
how race has been - and will continue to be - CMS' first option unless the injunction
issued.
1. Acknowledging racial diversity as a compelling governmental interest
would render the Fourteenth Amendment incoherent.
The District Court was also correct in ruling racial diversity cannot be a
compelling governmental interest because a contrary holding would put the equal
protection guarantee at war with itself. Permitting the state to consider the immutable
trait of race for the purpose of achieving racial diversity necessarily involves
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licensing the government to be race conscious.48
The Fourteenth Amendment's "central purpose is to prevent the states from
purposefully discriminating between individuals on the basis of race." Shaw v. Hunt,
509 U.S. 630, 642 (1993). If racial diversity were declared a compelling state
interest, it would mean the state could always constitutionally employ race-conscious
policies even though the Constitution's central mandate is racial neutrality. Thus, the
central mandate would become nominal, not essential and race consciousness, which
is presumed invalid, would become constitutionally permissible.
The claim that racial diversity is benign while racial segregation is malicious
is a platitude that squarely collides with reality and the well settled rule of law. The
"mere recitation of a benign or a legitimate purpose for a racial classification is
entitled to little or no weight." Croson, 488 U.S. at 500. The facts of this case amply
demonstrate how racial classifications used for supposedly benign purposes can work
to actually segregate, exclude and stigmatize the races. As the Supreme Court
acknowledged in Shaw, it is "unsettling how closely . . an allegedly benign racial
classification can "resemble the most egregious gerrymanders of the past." Shaw, 509
U.S. at 641. Justice Thomas put it succinctly when he said, "[i]t should be obvious
that every racial classification helps, in a narrow sense, some races and hurts others.
4SThis was the state of the law under the infamous Plessy v. Ferguson, 163
U.S. 533-544 (1896) (The Fourteenth Amendment “could not have been adopted
to abolish distinctions based upon color...”) which was repudiated by Brown.
Since Brown "the central mandate . . of equal protection "is racial neutrality in
governmental decisionmaking." Miller, 515 U.S. at 902.
106
As to the races benefitted, the classification could surely be called benign.” Adarand,
515 U.S. at 241 (Thomas, J. concurring).
No government has ever shown itself to be so all knowing that it is to be able
to divine where the alleged “educational” benefits of racial diversity theoretically end,
and the very real harm of racial discrimination begins. For our purposes, it suffices
to conclude that the racial quotas used to parcel out magnet school openings was so
callous that no court could ever consider this to be a narrowly tailored use of race. In
the name of racial balancing not diversity, CMS denied black and white children
educational opportunities that are indisputably enriching. Those excluded surely
thought the racial classifications were neither benign nor benevolent. This is why the
law has "consistently repudiated . . ." racial distinctions between citizens absent a
remedial purpose as "odious to a free people whose institutions are founded upon the
doctrine of equality." Loving v. Virginia, 388 U.S. 1,11 (1967), quoting Hirabayashi
v. United States, 320 U.S. 81, 100 (1943).
It is also why the Supreme Court has held that "[u]nless [racial classifications]
are strictly reserved for remedial settings, they may in fact promote notions of racial
inferiority and lead to a politics of racial hostility." Croson, 488 U.S. at 493
(emphasis added). Were this Court to acknowledge racial diversity as a compelling
governmental interest, "[t]he dream of a nation of equal citizens in a society where
race is irrelevant to personal opportunity and achievement would be lost in a mosaic
of shifting preferences . . . " where racial groups would struggle against one another
to ensure "their people" were the beneficiaries of the preferences. Id. at 506. But
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"such a result would be contrary to both the letter and spirit of a constitutional
provision whose central command is equality." Id.
2. Racial diversity cannot be a compelling governmental interest without
eviscerating strict scrutiny.
Racial diversity cannot be a compelling governmental interest without
rendering the strict scrutiny standard meaningless. Strict scrutiny requires that
"explicit racial preferences, if available at all, must be only a last resort option."
Alexander, 95F.3dat316. See also Hayes, 10 F. 3d at 217; Paradise, 480 U.S. at 171.
This is the very "essence o f . .." narrow tailoring. Hayes. 10 F.3d at 217. If the state
were permitted to be race conscious for the purpose of achieving racial diversity, this
would be tantamount to allowing the state to make racial preferences an option of
first, not last, resort.
This is particularly true here since CMS has made no showing that racial
diversity is impossible to achieve without race-conscious policies. A number of race
neutral, diversity enhancing techniques are available to CMS for obtaining racially
diverse student populations. For example, in CMS today, the trial court found "the
number of stand alone [naturally integrated] schools in integrated areas continues to
increase." Capacchione, 57 F.Supp.2d at 252; PX 139. Likewise, voluntary means
of allowing parents to choose integrated schools, including magnet schools without
racial controls, will create diversity in a number of schools if the parents of CMS
place a value on the educational opportunity they provide, and choose those schools.
Accordingly, absent showing that some level of racial diversity cannot be achieved
108
without race conscious policies, this Court should not make race consciousness an
option of first choice under the Constitution.
Thirty years distant from the desegregation order, CMS' race conscious policies
have taken on “a life of their own.” Maryland Troopers, 993 F.2d at 1076; Hayes, 10
F.3d at 216. Friedrich A. Havek warned in The Constitution o f Liberty*9 that “the
greatest danger to liberty today comes from the men who are most needed and most
powerful in modem government, namely, the efficient expert administrators
exclusively concerned with what they regard as the public good.” These bureaucrats
are able to skirt democratic control by relying upon old desegregation orders and
make the administrative state “a self-willed and uncontrollable apparatus before
which the individual is helpless.”
CMS' rationale for pursuing increasingly racially diverse schools is that these
schools, "better prepare [] students for the workforce, train [] students to better
exercise their specific responsibilities, and lessen [] the burden on state universities."
CMS Brief at 31.50 CMS contends this rationale is viable and the end desirable for the
indefinite future. Where the rationale and the ends of racial diversity remain viable,
so too would the justification for race conscious policies intended to achieve those
ends and fulfill that rationale. But the Supreme Court has held that even race
conscious school desegregation policies to remedy intentional discrimination must
49Chicago: Univ. of Chicago Press, (1960).
50 The District Court found as a fact that the evidence supporting this
rationale was "vague and inconclusive." Capacchione, 57 F. Supp.2d at 281.
109
be "temporary . . . Dowell, 498 U.S. at 247. If racial diversity was as a compelling
governmental interest, that would mean race consciousness would be available to
governments as a first choice into the unforeseeable future. This would be
antithetical to the Constitution's narrow tailoring mandate that any race based policy
must be limited in duration.
3. Accepting racial diversity as a compelling state interest would
license the state to racially stereotype
Governmental racial classifications of children are "pernicious . . . " in part
because they inherently involve "the offensive and demeaning assumption that
[children] of a particular race, because of their race, think alike, share the same
political interests .. ." and will share other commonalties. Maryland Troopers, 993
F.2d at 1076; Miller, 515 U.S. at 912. "Race based assignments embody stereotypes
that treat individuals as the products of their race, evaluating their thoughts and
efforts - their very worth as citizens - according to a criterion barred to the
government by history and the Constitution." Id. These stereotypes are particularly
ugly when applied to children because such typecasting is applied to people even
before their personalities, talents and aspirations are fully formed.
Furthermore, if diversity of ideas is the goal, race is a crude instrument to
achieve it since no one should assume that all or even most people of a given race
think alike because of their race. Tracy v. Board o f Regents o f the University o f
Georgia, 59 F. Supp.2d. 1314,1322-1323 (S.D. Ga. 1999). The problem of using race
to stereotype is compounded by the fact that the "races are not and never were, groups
110
clearly defined biologically;" race is merely a "social construct. .," Ho, 147 F.3d at
863. If ideological diversity is the goal, reliance on race does not achieve it. If racial
diversity is to be sought as an end in itself, it is illogical since race is but an arbitrary
social construct. Thus, the government ought never be allowed to apply such nominal
stereotypes to children before they have even matured.
Identifying a child by his or her race is the antithesis of treating that child as
an individual since "[r]ace identifies groups." Id. at 864. Yet, our constitutional right
to equal protection is individually held. Appropriately, this Court has held that the
fourteenth amendment "forbids the states to classify men and women on the basis of
race, except as a last resort remedy to well defined instances of racial discrimination."
Maryland Troopers, 993 F.2d at 1076. Again, this Court has said "[classifications
based upon race must be justified by specific judicial, legislative, or administrative
findings of past discrimination." Podberesky, 956 F.2d at 55 (4th Cir. 1992). This
Court has repeatedly recognized that only remedial contexts justify race conscious
policies. This court has specifically rejected racial diversity as a sufficient basis for
considering race in public employment stating that "even when race can be taken into
account to attain a balance workforce . . . " it cannot be considered to "maintain a
balanced workforce." Hayes, 10 F.3d at 217. These holdings leave no room for non-
remedial race-based classifications contemplated by racial diversity and avoiding
racial resegregation rationales.
I ll
4. CMS' interest in avoiding resegregation is neither compelling nor
warranted by the facts
CMS' "interest" in avoiding resegregation is without factual or constitutional
foundation. Factually, CMS failed to demonstrate at trial that racial resegregation
will occur in its schools under all student assignment plans available to it that are race
neutral. CMS contends "using a race blind, proximity based assignment plan" would
have a resegregative effect. However, CMS has other options available to it. The fact
that one theoretical race neutral plan might cause resegregation does not show that
all such plans will do so. CMS has available to it a number of creative race neutral
options other than a strict neighborhood school plan to avoid resegregation.
CMS' fear of racial resegregation is also of no legal significance. This Court
has said, "[t]he concept of a neighborhood school system in and of itself is not
violative of the Constitution." Riddick, 784 F.2d at 540. Likewise, the Supreme
Court has said "[rjacial balance is not to be achieved for its own sake," and "[w]here
resegregation is a product not of state action but of private choices, it does not have
constitutional implications." Freeman, 503 U.S. at 495. In short, CMS' interest in
avoiding resegregation is of no constitutional significance — much less a compelling
governmental interest. If it wishes to avoid resegregation, the law requires that it
exhaust all race neutral options before employing race conscious policies to do so.
Therefore, the District Court injunction should be upheld.
112
V. THE EVIDENCE AND CONTROLLING CASE AUTHORITY
OVERWHELMINGLY SUPPORT THE DISTRICT COURT’S
RULING THAT PLAINTIFF-INTERVENOR CAPACCHIONE
WAS A “PREVAILING PARTY” AND ENTITLED TO RECOVER
ATTORNEY’S FEES.
In its brief, CMS disputes the district court’s well reasoned attorney fee award
to Capacchione on two grounds. 51 First, CMS contends Capacchione is not a
“prevailing party.” Second, CMS ’ claims Capacchione is not entitled even to nominal
damages. The portion of Dr. Susan Purser’s testimony relied on by CMS for this
contention does not preclude recovery of either the nominal vindication of
Capacchione’s rights awarded or the award of attorney’s fees. Both these arguments
must be rejected. The circumstances of this case, together with due consideration of
controlling authority — authority notably absent from CMS’ discussion — compels
affirmance of the court’s order granting Capacchione attorney’s fees.
A. As an Intervenor in S w a n n , Capacchione is a prevailing party
entitled to attorney’s fees if his counsel significantly contributed to
the result, regardless of his Article III standing.
To recover attorney’s fees, Capacchione must qualify as a “prevailing party”
as contemplated by 42 U.S.C. § 1988. The “prevailing party” inquiry essentially asks
whether a causal connection exists between the plaintiffs litigation and the relief the
plaintiff has obtained. Spencer v. General Elec. Co., 706 F. Supp. 1234, 1236-37
51CMS also claims that Capacchione-Grant cannot recover attorney’s fees as
“prevailing parties” if this Court reverses on the order appealed from. While such
a proposition is self-evident, the portions of this brief addressing the merits of
Plaintiff-Intervenors’ collective claims demonstrates overwhelmingly that they are
entitled to the full measure of relief granted by the district court and thus
prevailed.
113
(Ed. Va. 1989), a ff’d, 894 F.2d 651, 662 (4th Cir. 1990). As the trial court noted, an
award of attorney’s fees to a prevailing party is particularly appropriate in a school
desegregation case. Jenkins, 968 F.2d at 1251; Swann, 66 FRD at 484.
(Capacchione, 57 F.Supp.2d at 292-93. (noting the Swann Plaintiffs “have
acknowledged this point repeatedly”).
CMS confuses Capacchione’s lack of standing to obtain individual prospective
injunctive relief compelling the admission of his daughter to a CMS magnet school
on a race-neutral basis due to their relocation to California, with his clear standing to
attain prospective injunctive relief with respect to the program’s use of race.
The Supreme Court’s recent opinion in Texas v. Lesage,___U .S .___ , 120
S.Ct. 467 (1999) made clear that an individual’s lack of standing to obtain
retrospective relief (i.e., damages or individual injunctive relief admitting the
individual to the school) does not bar the right to obtain prospective injunctive relief
against the race-based governmental program:
Of course, a plaintiff who challenges ongoing race-conscious program and
seeks forward-looking relief need not affirmatively establish that he would
receive the benefit...if race were not considered. The relevant injury... is the
inability to compete on an equal footing.’ Northeastern Fla. Chapter,
Associated General Contractors o f America v. Jacksonville, 508 U.S. 656,666,
113 S.Ct. 2297 (1993). See also, Adarand Constructors, Inc. v. Pena, 515 U.S.
200,211, 115 S.Ct. 2097(1995).
CMS’ reliance on Lesage is seriously misplaced. CMS’ focuses on the
following sentence in Lesage: . . where there is no allegation of an ongoing or
imminent constitutional violation to support a claim for forward-looking relief, the
government’s conclusive demonstration that it would have made the same decision
114
absent the alleged discrimination precludes any finding of liability.” Id. The Court’s
statement does not preclude recovery of attorney’s fees by Capacchione for at least
three reasons, in addition to those arguments highlighted above. First, Lesage is not
determinative because the plaintiff in Lesage had already been rejected from the
program through the operation of preliminary factors before his race was ever
considered. Lesage, 120 S. Ct. at 468. Second, Capacchione can and did recover on
the merits of his claim for prospective injunctive relief. Third, as a Plaintiff-
Intervenor in Swann, Capacchione can lack Article III standing and still be entitled
to attorney’s fees as a prevailing party because of his significant contribution to the
overall relief obtained in the case. Shaw v. Hunt, 154 F.3d at 161,166 (4th Cir. 1998).
In contending Capacchione lacked standing to seek prospective injunctive
relief, CMS ’’did not distinguish between [Capacchione’s] retrospective claim...and
his forward-looking claim for injunctive relief based on a continuing [race-based
admission program].” Id. at 469. As long as CMS has continued to administer a racial
quota as the portal through which magnet school admissions are determined,
Capacchione had Article III standing to seek prospective injunctive relief.
Contrary to CMS’ position, sound and established precedent supports
Capacchione’s “prevailing party” status regardless of Article III standing. In
particular, this Court need look no further than its own opinion in Shaw, a controlling
opinion of this Court glaringly absent from CMS ’ brief. In Shaw, this Court held that
a group of ten permissive Intervenors who lost standing due to a intervening Supreme
Court ruling were still entitled to prevailing party status under 42 U.S.C. § 1988 so
115
long as they “contributed significantly to the victory” of a party with standing. Shaw,
154 F.3d at 167. The following principles enumerated in Shaw, which in turn are
grounded on existing precedent, allow this Court to dispense with CMS’ challenge
to Capacchione’s attorney fee award: (1) as a general matter, persons within the
generic category of plaintiff-intervenors have often been found by courts to qualify
as “prevailing parties” for purposes of collecting attorneys fees;52 (2) persons
qualifying as plaintiff-intervenors are generally entitled to attorney’s fees provided
they “played a significant role in the litigation;”53 and (3) as the Supreme Court has
ruled, even a party who lacks standing can nonetheless participate in a case as a
permissive Intervenor.54
In recognition of the fact § 1988 does not mention Article III standing as a
requirement for prevailing party status and that awarding attorney’s fees to
intervenors is consistent with the Supreme Court’s interpretation of congressional
intent embodied in § 1988, the District Court in Shaw held that the intervenors were
prevailing parties because they significantly contributed to the victory and were
entitled to recover attorney’s fees even though some intervenors lacked Article III
i2ld. at 164 citing, e.g., Hastert v. Illinois State Bd. o f Election Comm V, 28
F.3d 1430, 1441 (7th Cir. 1993); Wilder v. Bernstein, 965 F.2d 1196, 1204 (2d
Cir. 1992) (en banc); EEOC v. Strashurger, Price, Kelton, Martin & Unis, 626
F.2d 1272, 1273 (5th Cir. 1980).
53Id. at 165 (citing Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1535
(9th Cir. 1985); Wilder, 965 F.2d at 1204 (collecting cases)).
5AId. at 165 citing SEC v. United States Realty & Improvement Co., 310 U.S.
434, 459, 60 S. Ct. 1044, 84 L. Ed. 1293 (1940).
116
standing. Id. at 167-68.
This Circuit is certainly not alone in recognizing that intervenors in a civil
rights suit may be “prevailing parties” entitled to attorney fee awards, In addition to
the Supreme Court, other Circuits have agreed that attorney’s fees are available to
intervenors as “prevailing parties” when they make a substantial contribution to the
overall relief in the case. See, e.g., Wilder v. Bernstein, 965 F.2d 1196,1204 (2d Cir.
1992); Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1535 (9th Cir.), cert,
denied, 474 U.S. 826, 106 S. Ct. 85, 88 L. Ed. 2d 70 (1985) (“awards to intervenors
should not be granted unless the Intervenor plays a significant role in the litigation”);
Miller v. Staats, 706 F.2d 336, 340-42 (D.C. Cir. 1983) (intervenors who allege a
colorable civil rights claim may be entitled to attorney’s fees); Donnell v. United
States, 682 F.2d 240, 247 (D.C. Cir. 1982), cert, denied, 459 U.S. 1204, 103 S.Ct.
1190,75 L.Ed. 2d 436 (1983) (fees may be awarded to intervenors in a successful suit
if they played a significant role in producing the outcome).
1. Capacchione significantly contributed to the Plaintiff-Intervenors
obtaining a favorable Judgment in this case.
CMS has not, and cannot, argue that Capacchione’s counsel did not
significantly contribute to Capacchione-Grant’s success in this case so as to preclude
prevailing party status. The trial court found that Capacchione’s attorneys “played
a significant role in this litigation” and its finding is well supported in the record.
(Dec. 13, 1999 Order at 3). The affidavit of Grant’s counsel Lee Parks, filed with
consolidated petition for award of attorney’s fees, demonstrates Capacchione’s
117
counsel’s significant and substantial contribution to the overall victory. (Affidavit
at 10). Capacchione’s contribution is further supported by the fee invoices
submitted by Capacchione’s counsel. Specifically, those invoices reveal that
Capacchione’s counsel participated fully in all aspects of discovery, motions to
compel, trial preparation and trial presentation.55
Further, the role played by Capacchione’s counsel at trial was observed first
hand by the trial court, which is in the best position to judge the extent and
effectiveness of Capacchione’s attorneys’ involvement. Counsel for Capacchione-
Grant presented a joint case including the direct examination of most fact witnesses,
the cross-examination of many CMS’ and Swann Plaintiffs’ fact witnesses, and the
cross-examination of CMS’ and Swann expert witnesses. Notably, the number of
lawyers representing the Plaintiff-Intervenors at trial totaled four, while CMS was
represented by no less than twelve different attorneys at trial. There is not, nor can
there be, any serious question that Capacchione’s attorneys contributed significantly
to the recovery in this case. Therefore, under Shaw and similar cases, Capacchione
is entitled to prevailing party status and his lawyers are entitled to an award of fees
55For example, Capacchione’s counsel, Kevin Parsons, (1) defended the
deposition of Plaintiff-Intervenors’ expert witnesses, Dr. David Armor and Dr.
William Clark, (2) took the deposition of CMS’ expert witness Dr. Robert
Peterkin, and (3) helped draft nearly every document filed by the Plaintiff-
Intervenors in this case. Indeed, a review of the billing records of all Plaintiff-
Intervenors’ counsel, the hours they expended, the work each of them performed,
and the total amount of fees claimed (relative to those paid by CMS) amply
demonstrates that all counsel worked together in the team approach previously
acknowledged by the trial court.
118
and costs. As stated in Shaw, “[t]o deny to [this] successful and significantly helpful
Plaintiff-Intervenor [], in these circumstances, seems inequitable.” Shaw, 154 F.3d
at 168.
It is undisputed that the ultimate relief obtained in the trial court’s September
Order justifies prevailing party status for Capacchione. The Order granted CMS
unitary status 30 years after entry of the desegregation order. Capacchione-Grant
conferred a substantial benefit on their clients and the community. Capacchione, 57
F.Supp.2d at 293-94 (itemization of relief obtained).
It is important to recall it was Capacchione’s discrimination suit— arising out
of Cristina’s denial of admission to a magnet school program based on her race —
that was the immediate catalyst to this proceeding. The current litigation did not
begin as a petition for unitary status. On May 4, 1998, the trial court admitted
Capacchione as a Rule 24(b) permissive Plaintiff-Intervenor in the Swann case with
CMS’ consent and, indeed, at CMS’ insistence. (May 4, 1998 Order). Of course,
after the Swann Plaintiffs moved to reactivate Swann and consolidate Capacchione’s
case, whether CMS has achieved unitary status became an additional focus of the
case. It is undisputed that Capacchione is a party.
Moreover, the trial court’s order, and amended order, granting attorney’s fees
are collectively twenty five pages long and analyze, in exhaustive detail, the specific
work performed by each attorney and went to great pains to scrutinize each hour
claimed. The court reduced hours for work it believed unnecessary or redundant,
119
including over 180 hours of Capacchione’s attorney’s requested time.56
2. Farrar is distinguishable from this case.
CMS’ heavy reliance on Farrar is misplaced. In Farrar, the Plaintiff “filed a
lawsuit demanding 17 million dollars from six defendants. After ten years of
litigation and two trips to the court of appeals, he got one dollar from one defendant.”
Farrar, 113 S.Ct. at 575.
In contrast, Capacchione achieved his primary and ultimate goal of obtaining
a judicial declaration that CMS’ magnet school enrollment program was
unconstitutional. Although neither he nor his attorneys could have anticipated it
when suit was first filed, he was compelled to prove that CMS had achieved unitary
status and was entitled to release from court supervision that had spanned over thirty
years. Capacchione- Grant secured unitary status for CMS over the school board’s
most vociferous opposition. In prevailing on both his initial claim57 and in proving
CMS’ unitary status in Swann, Capacchione’s counsel clearly and undisputedly
fulfilled the role of “private attorney general.” See Shaw, 154 F.3d at 166. It cannot
be gainsaid that all students of CMS, or even all taxpayers of Charlotte-Mecklenburg,
do not truly benefit from Capacchione’s efforts.
56Notably, CMS has not challenged the amount of the fee awards, only the
fact that attorneys’ fees were awarded.
57Indeed, CMS’ contention that it should not be subjected to an injunction
proscribing the use of race in student assignment because of the finding —
accomplished by Capacchione — that the prior system was unconstitutional only
buttresses Capacchione’s contention that he is entitled to full fees.
120
This is hardly the kind of case that Farrar was intended to discourage attorneys
from pursuing. In distinguishing Farrar's holding a case in which the Plaintiff
obtained only nominal damages but a finding which benefitted others, the court in
Koopman v. Water Dist. No. 1 ,41 F.3d 1417 (10th Cir. 1994), held that “[djeterring
meritorious lawsuits on constitutional issues because they offer a small likelihood of
a significant money judgment presents as grave a danger to our legal system as
frivolous litigation.” Id. at 1421. Even where a plaintiff does not obtain all of the
relief he requests, if he obtains “tangible results,” he is entitled to his fees under §
1988. Wilcox v. City o f Reno, 42 F.3d 550, 555 (9th Cir. 1994). The instant case
implicated important educational interests for the entire county and is thus
distinguishable from the impaired business interest alleged in Farrar. Klinger v.
Nebraska Dept, o f Correction Servs., 909 F. Supp. 1329,1335 (D. Neb. 1995)
(quoting Bounds v. Smith, 430 U.S. 817 (1977)). The victory Capacchione-Grant
achieved, both on his initial claim and in demonstrating CMS’ entitlement to a
declaration of unitary status in response to CMS ’ asserted defense, cannot reasonably
be described as either technical or de minimus and he is therefore entitled to recovery
of his fees. Id.
In seizing on the single issue of nominal damages, CMS has disregarded the
additional factors Farrar requires be given equal consideration in determining the
fees to be awarded.58 Both of these tests support an award of fees for Capacchione.
58CMS errs in asserting that Farrar favors denying Capacchione’s claim for
fees based solely upon his ultimate “recovery.” Actually, one of three tests
121
When considering the significance of the legal issues on which Capacchione-Grant
prevailed, together with the public goal or purpose the litigation served, it is clear that
they are entitled to fees. Many courts have utilized all three elements of the Farrar
test in determining fee awards, particularly those in which substantial damages may
not have been recovered.59 When all three elements of the Farrar test are considered
here, in a case where damages were never the focus, Capacchione is entitled to fees.
CMS cites only two cases to support their argument that Capacchione is not a
prevailing party: Hewitt and Farrar. CMS Brief at 36-37. As noted above, and by
the trial court, Farrar expressly noted that a plaintiff who receives nominal damages
is a prevailing party. Similarly unsupportive of CMS’ position is Hewitt, which
involved a plaintiff, as opposed to a plaintiff-Intervenor, who actually obtained no
relief at all. Hewitt indicates that where the relief secured by the plaintiff was so
tenuous that the action itself does not resolve a true case or controversy, no award of
fees to the plaintiff is justified. Whereas, Plaintiff-Intervenors, like Capacchione, are
enunciated in Farrar considers the “difference between the amount recovered and
the damages sought.” Farrar, 113 S. Ct. at 578-79 (emphasis added). Of course,
and as CMS knows, Capacchione’s case was never focused upon recovering
money damages. Capacchione did not demand a specific dollar amount as
damages. CMS has completely failed to demonstrate a significant “difference
between” that amount of damages which he sought and the amount that he
recovered. Where the recovery of substantial damages is not a major focus of a
civil rights case, Farrar’s holding should not negatively affect a fee application.
59 See, e.g., Milton v. Des Moines, Iowa, 47 F.3d 944, 946 (8th Cir. 1995);
Jones v. Lockhart, 29 F.3d 422, 423-24 (7th Cir. 1994); Maul v. Constan, 23 F.3d
143, 145 (7th Cir. 1994); Cartwright v. Stamper, 1 F.3d 106, 109 (7th Cir. 1993).
122
not even required to possess Article III standing to be entitled to recover attorney’s
fees. Shaw, 154 F.3d at 167-68.
B. The record clearly supports the judgment holding CMS liable on the
merits, making Capacchione a prevailing party entitled to attorneys’ fees,
notwithstanding the testimony of Susan Purser.
CMS’ second challenge to the fees recovered by Capacchione — that
Capacchione was not entitled even to nominal relief— likewise fails. The main point
raised by CMS here is that Capacchione’s daughter would not have been admitted to
the magnet program at Old Providence Elementary even if race had not been
considered because her lottery number was too high. (Appellant’s Brief, p. 38). In
the process of making their argument, CMS has misread entirely its primary authority,
Texas v. Lesage, supra, 120 S. Ct. 467.
1. The magnet admissions program employed inflexible racial quotas and
was therefore unconstitutional
First, as the trial court pointed out, the Supreme Court’s pronouncements in
Northeastern Fla. Chapter o f the Associated Gen. Contractors o f Am. v. City o f
Jacksonville, 508 U.S. 656,666,113 S. Ct. 2297,2303,124 L. Ed. 2d 586 (1993), are
compelling:
When the government erects a barrier that makes it more difficult
for members of one group to obtain a benefit than it is for
members of another group, a member of the former group seeking
to challenge the barrier need not allege that he would have
obtained the benefit but for the barrier in order to establish
standing. The “injury in fact” in an equal protection case of this
variety is the denial of equal treatment resulting from the
imposition of the barrier, not the ultimate inability to obtain the
benefit.
123
Northeastern Florida, 508 U.S. at 666. (Judgment, p. 103).
Cristina obviously experienced “the denial of equal treatment resulting from
the imposition of the barrier. . .” placed in her way by CMS’ race based magnet
admissions policy. At best, she had a ten percent chance of being admitted into the
magnet school because she was non-black. Her colleagues that were black and that
lived outside the walk zone had a 100% chance of being admitted. In fact, all black
students were admitted in 1996. Cristina, and 90% of those non-black students
situated similarly to her, were not admitted. Capacchione was only required to show
that she had the denial of equal treatment resulting from the imposition of the barrier.
Northeastern Florida, 508 U.S. at 666. It proves nothing to argue, as CMS does, that
Cristina would not have been admitted even if race was not considered. Practically
speaking, only non-blacks participated in the lottery. The reality is, CMS used race
to Cristina’s disadvantage at every stage of the admissions process, and she was not
admitted because CMS considered her race.
In other words, but for the policy to racially balance and the intentional use of
race in doing so, there would have either been no lottery at all or a race-neutral lottery
and Cristina would not have received a race based lottery number that placed her into
a racially skewed system. In fact, because every black applicant was admitted, it
made no difference what a black student’s lottery number was under the program. It
is disingenuous to argue now that, in fact, the program did not discriminate on the
basis of race when it was designed to discriminate on the basis of race.
Further, because many of the seats reserved by CMS for black students
124
remained unfilled, and all black applicants were eventually admitted, a black
applicant could have been number 201 and still would have been admitted. The
lottery system operated so that a black student’s number had no impact whatsoever
on admission; that Cristina had a high number is irrelevant because the system itself
was flawed. The race-based lottery operated to disadvantage white students in ways
that it did not disadvantage black students. Further, Purser testified that CMS
actively recruited black students to participate in the lottery even if it meant obtaining
numbers of students in magnet schools higher than what was minimally required by
the court’s Swann orders. Thus, the disadvantage the lottery created for white
students was even greater than it otherwise would have been. (Purser, pp. 167-195).
Reference to analogous authority supports Capacchione’s position. The Fifth
Circuit held in Hopwood v. State o f Texas, 78 F.3d 932 (5th Cir. 1996), that where a
defendant is unable to show that the plaintiff would not have been admitted under a
constitutional admissions system, the court is to award the plaintiff any equitable
and/or monetary relief it deems appropriate. Id. at 957. Here, CMS has not shown,
and there is no evidence, that Cristina would not have been admitted under a
constitutional admission system because CMS’ system was not constitutional. The
only major difference between Hopwood and the instant matter is that in Hopwood
the challenged system was in fact part of the court-ordered OCR investigation, while,
in this case the magnet school program was voluntarily implemented without a
specific court order evaluating or approving its implementation.
Here, although Capacchione was held to have suffered no compensable
125
damages, the court’s ruling of a constitutional violation, and resulting nominal
award, justifies prevailing party status and the attorney fee award. If Hopwood was
entitled to compensatory damages, then Capacchione is certainly entitled to nominal
relief.
The trial court correctly recognized Capacchione’s non-recovery of actual
damages to be insignificant and no reason to bar an attorney fee award. The court
found in favor of Capacchione on the core of her claim that CMS violated Cristina’s
constitutional rights under the Equal Protection Clause. As noted, a “prevailing
party” need not win on every claim or issue raised, but need only prevail on any
significant issue in the litigation which achieves some of the benefits the parties
sought in bringing suit. Spencer, 706 F.Supp. at 1236. For all of these reasons, and
because CMS does not challenge the amount of the fees, the attorney fee awards
should be affirmed.
VI. THE DISTRICT COURT’S SANCTION OF CMS FOR FAILING TO
DISCLOSE MULTIPLE FACT WITNESSES DURING DISCOVERY
WERE REASONABLE, FAIR AND NOT AN ABUSE OF DISCRETION
CMS objects to the District Court’s award of sanctions against it for failure to
disclose fact witnesses in response to Capacchione-Grant’s interrogatories and
pursuant to the court’s discovery order of September 16,1998. CMS brief at 36. The
award consisted of (1) recessing the trial for one week to allow Capacchione-Grant
to depose or interview up to twenty-six CMS fact witnesses not disclosed during
ordinary discovery but revealed only three days before trial, (2) barring such CMS
fact witnesses from testifying at trial unless CMS made them available for deposition
or interview during the recess, and (3) requiring CMS to pay the expenses and
attorneys’ fees of Capacchione-Grant in conducting this discovery. District Court
Order of April 23, 1999.
On May 21,1998, Capacchione-Grant served CMS with a set of interrogatories
pursuant to Fed.R.Civ.P. 33 seeking disclosure of all witnesses and the subject matter
of their testimony.60 CMS responded on June 23,1998. When no satisfactory answer
was forthcoming to this and other interrogatories, Capacchione-Grant filed a motion
to compel under Fed.R.Civ.P. 33 and 37 on August 17, 1998. That motion was
granted in part and denied in part. See Order of September 16, 1998. Therein the
District Court ruled:
Interrogatory 19 asks CMS to disclose the identity of its trial
witnesses, experts and non-experts, and to provide a summary of each
witness’s testimony. Interrogatory 21 asks CMS to identify each
documentary exhibit or other physical evidence to be used at trial or any
hearing. The Court agrees with CMS that such requests may be
premature at this time. Notably, the deadline for expert witness
designation is not until 2 October 1998 (Pretrial Order § II.(l).)
Therefore, the Court will deny Capacchione’s motion as to
Interrogatories 19 and 21. Yet, CMS must supplement its responses, as
it promised, when such information becomes known. (Emphasis
added)..61
“Interrogatory 19 provided in pertinent part: “Identify each witness you may
call at the trial or hearing of this case, including any parties to the litigation. For
each such witness, provide a summary of the testimony each witness is expected to
provide.”
61 Supplementation of discovery responses is also required independent of
this order by Fed.R.Civ.P. 26(e)(1) & (2) (duty to supplement incorrect or
incomplete information).
127
On October 14, 1998, CMS provided its second supplemental responses to
several interrogatories, including Interrogatory 19. The answer provided specifically
as to 19 was identical to the original answer given in June. No fact witnesses were
identified.
On December 1, 1998, CMS provided its third supplemental responses to
several interrogatories, including Interrogatory 19. It was virtually identical to the
two prior answers of June 23, and October 14, 1998, except CMS disclosed five
expert witnesses and one fact witness. CMS stated: “Defendants also presently intend
to call [CMS Superintendent] Dr. Eric Smith as a witness.” No other fact witnesses
were disclosed. During all this time, of course, from June until December 1998, the
clock was running on Capacchione-Grantto complete its fact discovery, including all
depositions of fact witnesses.
At the pretrial conference on April 13, 1999, with trial set to begin April 19,
Capacchione-Grant moved to exclude any proposed fact witnesses who had not been
disclosed in answer to Interrogatory 19. Upon learning that CMS in fact intended to
call many witnesses beyond Dr. Smith, the District Court ordered CMS to disclose
them forthwith. The next day, April 14, CMS came forward with “Defendants’
Pretrial Witness Disclosure”62 which revealed, for the first time, a total of 174
62Interestingly, CMS uses the fact that it complied with the district court’s
order to disclose its witnesses on April 14, 1999 - several days before the first day
of trial — to argue that it disclosed witness information “in good faith prior to the
deadline established by the court’s pretrial order.” Brief of CMS at 33 (emphasis
by CMS). The only reason any filing was done by CMS “prior to” the deadline it
claims was because the district court compelled it to do so. Hence, part of the
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potential witnesses, most of them fact witnesses.63 The ambush of Capacchione-
Grant, at that point, was complete. Trial was on the verge of starting and
Capacchione-Grant had just learned of a large number of fact witnesses for the first
time.64
Capacchione-Grant filed their motion for sanctions on April 16, and CMS
responded on April 19. The Court made its ruling on April 23 after the trial had
commenced, partially granting the sanctions sought by Capacchione-Grant.
The chief argument advanced by CMS in the court below and on appeal has
been that the District Court’s standard pretrial order exempted it from complying with
Interrogatory 19 as to fact witnesses until the first day of trial. This provision
required the filing as the District Court noted, “with the Court . . .” not opposing
parties “no later than the morning of the first day of trial” of a courtesy “witness list”
court’s own sanctions against CMS (the mandated filing of witness disclosure on
April 14) is being used by CMS to support its putative innocence and good faith in
arguing that the sanctions should be reversed.
63This document enumerated various and sundry employees of CMS, CMS’
expert witnesses, and all witnesses identified by Capacchione-Grant among others.
Under pressure from the court to stop the gamesmanship, CMS submitted a
revised witness list reducing the number to approximately twenty six.
64Capacchione-Grant disclosed its fact witnesses to CMS and the other
parties on or about October 28, 1998. See Capacchione’s and Grant Intervenors’
Joint Disclosure of Witnesses dated October 28, 1998. Therefore, CMS’ complaint
that the District Court erred by failing to allow it the right to depose Capacchione-
Grant’s fact witnesses is misleading. CMS knew the identity of those witnesses for
several months and declined to depose many of them. CMS either deposed or
interviewed all witnesses Capacchione-Grant disclosed well before trial. CMS has
no basis for this complaint.
129
with the court’s clerk, among several other housekeeping matters including filing a
courtesy exhibit list, stipulations as to authenticity of exhibits, and proposed jury
instructions (District Court Order of April 23,1999, p. 2, n.2). That this provision of
a pretrial order, concerning housekeeping matters and the logistical issues regarding
the conduct of trial, could vitiate both the letter and spirit of the Federal Rules of
Civil Procedure as to discovery as well as the court’s earlier order of September 16,
1998, was and is a ridiculous assertion.
CMS’ position is also internally inconsistent. CMS took the affirmative step
of disclosing a fact witness, Superintendent Eric Smith, in its third supplemental
response. Thus, if it were relying in good faith on the witness-list provision of the
pretrial order, it would not have disclosed Dr. Smith until the first day of trial.
Obviously, something more mischievous was afoot — CMS was trying to lull
plaintiffs to sleep by disclosing one fact witness even when it had plans for many
more such witnesses. A clearer attempt at sandbagging opposing counsel is hard to
imagine.
Further, the fact of partial disclosure, coupled with an argument that remaining
disclosure of fact witnesses could await the first day of trial under the pretrial order,
does not square with Fed.R.Civ.P. 26(e)(2): “A party is under a duty to seasonably
amend a prior response to an interrogatory . . . if the party learns that the response is
in some material respect incomplete or incorrect and if the additional or corrective
information has not otherwise been made known to the other parties during the
discovery process or in writing.” Once CMS disclosed Dr. Smith as a fact witness in
130
response to Interrogatory 19, it had a clear legal duty under this rule to update
opposing parties as to other factual witnesses. Both CMS’ conduct in the district
court and its arguments on appeal blatantly flout the duties imposed by Rule 26(e)(2).
The district court had little trouble seeing through this fact-witness gambit by
CMS. Its reasoning was clear, measured, and fully within its discretion as the
ordinary referee of discovery and trial:
The Court has expressed its concern on several occasions
throughout the discovery period in this case that CMS was lacking
candor in disclosing relevant and important information. This is clearly
one of those occasions. First, presenting a list of 174 witnesses, most of
whom were previously unidentified, just three business days before trial
is extremely prejudicial to opposing counsel. Under such circumstances,
Grant is denied the ability to effectively cross-examine the witnesses
and must conduct fishing expeditions during trial.
Second, CMS’s explanation for failing to disclose the information
earlier is based on a tortured reading of the Court’s Order of September
16, 1998. The Court specified the manner of disclosure of the
information — “when such information becomes known” — and this
Court’s Order overrides the Pretrial Order or any other rule otherwise
applicable. In a case o f public importance such as this, certainly CMS
knows that its actions amount to unfair legal maneuvering. CMS was
not substantially justified in its dilatory tactics. The disclosure o f such
basic information as potential trial witnesses — information normally
required much earlier under Rule 26 o f the Federal Rules o f Civil
Procedure — is fundamental to a fair trial. CMS was simply playing
games, and such conduct is inexcusable. [Emphasis added.] 65
65Capacchione-Grant had asked the district court for the sanction of
exclusion from trial of the undisclosed witnesses. See Capacchione-Grant motion
for sanctions filed April 16, 1999. The court was unwilling to go that far, opting
instead for the less severe measure of recessing the trial until appropriate
discovery could be completed. In its brief on appeal, CMS incorrectly asserts that
the sanction included “prohibiting two CMS witnesses from testifying at all.”
Brief of CMS at 33. The terms of the court’s order did no such thing. As the third
131
Not only does a district court have express authority under Fed.R.Civ.P. 37 to
impose sanctions for discovery violations, but it also has inherent authority to enforce
compliance with procedural rules. Mutual Fed. Sav. & Loan Ass ’n v. Richards &
Assoc., 872 F.2d 88, 92 (4th Cir. 1989); Buffington v. Baltimore County, Maryland,
913 F.2d 113, 135 (4th Cir. 1990), cert, denied, 499 U.S. 906 (1991); Hathcockv.
Navistar In t’l Transp. Corp., 55 F.3d 36, 39 (4th Cir. 1995). Moreover, “[t]he
district court’s discretion with respect to discovery matters is broad.” Vodrey v.
Golden, 864 F.2d 28, 32 (4th Cir. 1988) (opinion by Associate Justice Powell
(retired)).
The four-part test cited by CMS as controlling on appeal in this case66 is
customarily used when the district court has dismissed a case or entered a default
judgment, thereby denying the non-complying party a right to trial. In such a case the
district court’s “range of discretion” is understandably more narrow. Mutual Fed.
Sav. & Loan Ass ’n, 872 F.2d at 92. Here no such extreme sanction was sought or
element of its ruling the court allowed trial testimony from “any witness[es]” —
beyond parties, experts, and those previously interviewed or deposed - if
Capacchione-Grant were simply given the opportunity to depose them. The two
witnesses cited by CMS as being prohibited from testifying, Messrs. McColl and
Jones, were not made available for depositions. If they had been, they could have
testified under the court’s order.
66The four elements are: (1) bad faith, (2) prejudice suffered by other party,
(3) need to deter particular noncompliance, and (4) whether less drastic sanctions
would be effective. See Wilson v. Volkswagen o f America, Inc., 561 F.2d 494,
505-06 (4th Cir. 1977), cert, denied, 434 U.S. 1020 (1978).
132
imposed; hence, use of the four-part test is, strictly speaking, inapposite. The court’s
discretion is unquestionably wider in imposing lesser sanctions. See Anderson v.
Bessemer City, 470 U.S. 564, 574 (1985) (noting the “superiority of the trial judge’s
position” in supervising litigants’ conduct); Stillman v. Edmund Scientific Co., 522
F.2d 798, 800 (4th Cir. 1975) (noting trial court’s “broad discretion in its choice of
the type and degree of the sanctions to be imposed”). In this case the district court
closely reviewed its own discovery order of September 16,1998, and determined that
CMS had not complied with it.67 While no explicit decision on bad faith was
rendered, the Court found CMS “was lacking in candor,” “was not substantially
justified in its dilatory tactics,” and “was playing games,” and its conduct was
“inexcusable.” District Court Order of April 23, 1999 at 2.
Because the court refused to exclude witnesses from trial, it was left with little
option but to recess the trial for a week to allow a number of depositions to be taken
of CMS witnesses. Capacchione-Grant had to prepare for this onslaught of new
witnesses in a matter of days. CMS was merely taxed with the attorneys’ fees and
costs incurred by its discovery misconduct. What lesser sanction was available is
difficult to know. Furthermore, CMS does not even claim it was prejudiced in the trial
by the sanctions. The decision and reasoning of the district court thus were eminently
67CMS’ arguments on appeal appear to impose its interpretation of the
district court’s order over that of the district court. Compare CMS Brief at 33
(insisting that due date for disclosure of witnesses under court’s order of
September 16, 1998 was first day of trial) with District Court Order of April 23,
1999, at 2 (CMS’ “tortured reading of the Court’s Order of September 16, 1998”).
133
reasonable and not an abuse of discretion.68
Moreover, this incident involving lack of proper disclosure of fact witnesses
was not CMS’ only discovery offense. The district court itself pointed out two other
instances of “refusal to produce documents and identify witnesses.” Capacchione
57 F.Supp.2d at 292 (Order of 10/7/98 observing CMS’ “lack of cooperation in
releasing information” and Order of 11/23/98 noting that CMS’ pretrial tactics were
causing “unnecessary obstruction and delay”).
The disingenuousness of CMS’ position on sanctions is shown by its ludicrous
assertion that Capacchione-Grant “were not prejudiced by the School District’s
reliance on the Pretrial Order,” purportedly delaying disclosure of fact witnesses until
the first day of trial. Brief of CMS at 35. Not only was Capacchione-Grant severely
prejudiced from not knowing the identity of fact witnesses until three days before trial
and not having the opportunity for appropriate discovery from them, but the district
court also perceived the problem immediately at the pretrial conference on April 13,
1999. That is why CMS was ordered from the bench to disclose fact witnesses the
next day and the court explicitly found “prejudice” to Capacchione-Grant in its
68Fed.R.Civ.P. 37(a)(4), on expenses and sanctions upon failure to make
discovery, mandates that “the party or deponent whose conduct necessitated the
motion . . . pay to the moving party the reasonable expenses incurred in making
the motion, including attorney’s fees . . . ” CMS has not contested the amount of
the sanctions but only the award of sanctions. See Anderson v. Foundation for
Advancement, Education and Employment o f American Indians, 155 F.3d 500,
503-05 (approving sanctions under Rule 37, including some $46,000 in attorneys’
fees, for failing to timely respond to discovery).
134
written order. District Court Order of April 23, 1999 at 3.
Accordingly, the district court’s award of sanctions should be affirmed.
CONCLUSION
This Court is respectfully requested to affirm the District Court’s Orders of
September 9 and December 13, 1999.
A. Lee Parks
Parks, Chesin & Miller, P.C.
2600 The Grand
75 Fourteenth Street
Atlanta, Georgia 30309
404-873-8000
Thomas J. Ashcraft
212 South Tryon Street, Suite 465
Charlotte, North Carolina 28281
704-333-2300
COUNSEL FOR APPELLEES MICHAEL
GRANT, ET AL
John O. Pollard
Kevin V. Parsons
McGuire, Woods, Battle, & Boothe, LLP
3700 Bank of America Plaza
Charlotte, North Carolina 28280
704-373-8999
William S. Helfand
Magenheim, Bateman, Robinson,
Wrotenbery & Helfand, P.L.L.C.
3600 One Houston Center
1221 McKinney
Houston, Texas 77010
713-609-7700
COUNSEL FOR WILLIAM CAPACCHIONE
135
CERTIFICATE OF COMPLIANCE
Pursuant to Rule Fed.R.App.P. 32(a), counsel hereby certifies that the
foregoing brief contains 34,178 words and has been prepared using proportionally
spaced, WordPerfect 8, Fourteen point, Times New Roman type.
I understand that a material misrepresentation can result in the Court’s striking
the brief and imposing sanctions. If the Court so directs, I will provide an electronic
version of the brief and/or a copy of the word or line print-out.
PARKS, CHESIN & MILLER, P.C.
75 Fourteenth Street
Suite 2600
Atlanta, Georgia 30309
404/873-8000
136
CERTIFICATE OF SERVICE
This is to certify that I have this day served the following counsel of record with
a copy of the within and foregoing Brief of Appellees William Capacchione,
Michael Grant, et al depositing a copy of same in the United States Mail, in a
properly addressed envelope, adequate postage affixed thereto, addressed as follows:
Mr. James G. Middlebrooks
Irving M. Brenner
Smith Helms Mulliss & Moore, L.L.P.
214 North Church Street
P.O. Box 31247
Charlotte, NC 28231
Michael Cromwell
Lisa Lukasik
Tharrington Smith, LLP
P. O. Box 151
Raleigh, NC 27602
Ms. Leslie Winner
Charlotte-Mecklenburg Board of Education
P. 0 . Box 30035
Charlotte, NC 28230-0035
Allison B. Schafer
General Counsel
N. C. School Boards Ass’n
P. O. Box 97877
Raleigh, NC 27624-7877
Allen R. Snyder
Kevin J. Lanigan
Hogan & Hartson, L.L.P.
555 Thirteenth Street, NW
Washington, D.C. 20004-1109
Julie K. Underwood
General Counsel
National School Boards Ass’n
1680 Duke Street
Alexandria, VA 22314
James E. Ferguson
S. Luke Largess
Ferguson, Stein, Wallas, Adkins,
Graham & Sumter
741 Kenilworth Avenue, Suite 300
Charlotte, NC 28204
Rebecca K. Troth
Department of Justice
P. O. Box 66078
Washington, D.C. 20035-6078
Elaine Jones
Norman J. Chachkin
Gloria J. Browne
NAACP Legal Defense and Education Fund
99 Hudson Street
New York, NY 10013
Dated this 2 4 * ^ day of March, 2000.
PARKS, CHESIN & MILLER, PC
2600 The Grand
75 Fourteenth Street
Atlanta, GA 30309
(404)873-8000
A. Lee Parks
Georgia Bar No. 563750
2