Belk v. Charlotte-Mecklenburg Board of Education Brief of Appellants Charlotte-Mecklenburg Board of Education, et al.
Public Court Documents
February 22, 2000
Cite this item
-
Brief Collection, LDF Court Filings. Belk v. Charlotte-Mecklenburg Board of Education Brief of Appellants Charlotte-Mecklenburg Board of Education, et al., 2000. 63387b90-c69a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/47f0b5d8-73cf-404d-8fd6-3d75bc494327/belk-v-charlotte-mecklenburg-board-of-education-brief-of-appellants-charlotte-mecklenburg-board-of-education-et-al. Accessed August 29, 2025.
Copied!
IN THE UNITED STATES
COURT OF APPEALS FOR
THE FOURTH CIRCUIT
Nos. 99-2389, 99-2391 and 00-1098
TERRY BELK, et al.,
Plaintiffs-Appellants,
and
WILLIAM CAPACCHIONE, MICHAEL P. GRANT, et a l,
Plain tiff-Intervenors-Appellees,
v.
THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et a l,
Defendants-Appellants.
WILLIAM CAPACCHIONE, MICHAEL GRANT, et a l,
Plaintiff-Intervenors-Appellees,
and
TERRY BELK, et a l,
Plain tiffs-Appellan ts,
v.
THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et a l,
Defendants-Appellants.
Appeal From the United States District Court
for the Western District of North Carolina
BRIEF OF APPELLANTS
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, E T AL.
Allen R. Snyder
Maree Sneed
John W. Borkowski
HOGAN & HARTSON L.L.P.
555 Thirteenth Street, N.W.
Washington, DC 20004
(202) 637-5741
Dated: February 22, 2000
James G. Middlebrooks
Irving M. Brenner
Amy Rickner Langdon
SMITH HELMS MULLISS &
MOORE, L.L.P.
201 N. Try on Street
Charlotte, NC 28202
(704)343-2051
Leslie Winner
General Counsel
Charlotte-Mecklenburg Board
o f Education
Post Office Box 30035
Charlotte, NC 28230-0035
(704) 343-6275
Counsel for Appellants
Charlotte-Mecklenburg Board
of Education, et al.
DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER
ENTITIES WITH A DIRECT FINANCIAL INTEREST IN LITIGATION
Pursuant to FRAP 26.1 and Local Rule 26.1, the Charlotte-Mecklenburg Board of Education,
Arthur Griffin, and Eric Smith, who are appellants, make the following disclosure:
1. Is party a publicly held corporation or other publicly held entity?
( ) YES (X) NO
2. Does party have any parent corporations?
( ) YES (X) NO
If yes, identify all parent corporations, including grandparent and great-grandparent
corporations.
3. Is 10% or more of party's stock owned by a publicly held corporation or other publicly
held entity?
( ) YES (X) NO
If yes, identify all such owners:
4. Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1 (b))?
( ) YES (X) NO
If yes, identify entity and nature of interest:
5. Is party a trade association?
( ) YES (X) NO
If yes, identify all members of the association, their parent corporations, and any publicly
held companies that own 10% or more of a party's stock:
JamesJaLMiddlebrooks
Attorney for the Charlotte-Mecklenburg Board of
Education, Arthur Griffin, and Eric Smith
February 22, 2000
- 1 -
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE, STATEMENTS................................................................................ i
TABLE OF AUTHORITIES............................................................................................................... iv
PRELIMINARY STATEMENT.......................................................................................................... 1
JURISDICTIONAL STATEMENT.................................................................................................... 3
STATEMENT OF THE ISSUES PRESENTED................................................................................ 3
STATEMENT OF THE CASE.............................................................................................................4
1. Statement of Facts......................................................................................................................5
2. The Proceedings Below............................................................................................................6
SUMMARY OF ARGUMENT.................................................................................. ......................11
ARGUMENT................................................................................................................................ u
I. THE DISTRICT COURT COMMITTED NUMEROUS ERRORS
OF LAW AND MADE CLEARLY ERRONEOUS FACTUAL
DETERMINATIONS IN CONCLUDING THAT THE SCHOOL
DISTRICT IS UNITARY............................................................................................. 13
A. The Court Erred as a Matter of Law in Excluding Evidence of
Practicable and Educationally Sound Measures Available to
Comply with the Swann Orders and to Remedy Vestiges of
Segregation.............................................................................................................. 14
B. The Court Erred in Failing to Recognize Vestiges of Segregation
Created and Maintained by CMS’ Past Failure to Comply Fully
with the Swann Orders............................................................................................ 16
II. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN
AWARDING DAMAGES AND INJUNCTIVE RELIEF BASED
ON THE SCHOOL DISTRICT’S GOOD FAITH EFFORTS TO
COMPLY WITH VALID DESEGREGATION ORDERS
THROUGH ITS OPERATION OF MAGNET SCHOOLS......................................17
A. The School District’s Operation of Magnet Schools Was a
Lawful Means of Complying with Desegregation Court Orders........................17
- ii -
TABLE OF CONTENTS
(continued)
Page
B. Damages are Not Available for Good Faith Efforts to Comply
with Court Orders.................................................................................................. 21
III. THE INJUNCTION ENTERED BY THE DISTRICT COURT
EXCEEDS ITS EQUITABLE POWER AND IMPROPERLY
LIMITS THE SCHOOL DISTRICT’S AUTHORITY OVER
EDUCATIONAL POLICY..........................................................................................23
A. The Injunction Constitutes an Impermissible Advisory Opinion........................24
B. The Injunction Exceeds the Scope of the Violation Found...................... ........25
C. The Injunction Is Overly Broad Because It Prohibits Any Future,
Hypothetical Action that Considers Race, Even If It Is Narrowly-
Tailored to Serve a Compelling Governmental Interest..................................... 26
1. The Decision Below Violates Controlling Precedent in
Holding that Only Remedial Interests Can Ever Be
Compelling .............................. 27
2. The Court Ignored CMS’ Interest in Avoiding Resegregation................... 28
3. The Court Erroneously Held that Providing the Educational
Benefits of Diversity Could Never Constitute a Compelling
Governmental Interest.......................................................................................30
IV. THE DISTRICT COURT ABUSED ITS DISCRETION IN
HARSHLY SANCTIONING THE SCHOOL DISTRICT DURING
THE TRIAL FOR NOT DISCLOSING TRIAL WITNESSES IN A
TIMELY MANNER, EVEN THOUGH CMS DISCLOSED SUCH
WITNESSES IN GOOD FAITH PRIOR TO THE DEADLINE
ESTABLISHED BY THE COURT’S PRETRIAL ORDER................................... 33
V. APPELLEES ARE NOT ENTITLED TO ATTORNEYS’ FEES...........................36
CONCLUSION.................................................................................................................................... 39
CERTIFICATE OF COMPLIANCE.................................................................................................40
CERTIFICATE OF SERVICE.............................................................................. 41
ADDENDUM.............................................................................................................................ADD 1
in
TABLE OF AUTHORITIES
Page
CASES:
Allen v. Asheville City Bd. ofEduc., 434 F.2d 902 (4th Cir. 1970).................................................. 18
Anderson v. Foundation fo r Advancement, Educ. & Employment o f Am. Indians,
155 F.3d 500 (4th Cir. 1998)................................................................................................... 12, 33
Arthur v. Nyquist, 712 F.2d 809 (2d Cir. 1983), cert, denied, 466 U.S. 963 (1984)..................... 18
Ayers v. Fordice, 111 F.3d 1183 (5th Cir. 1997), cert, denied, 522 U.S. 1084
(1998)............................................................................................................................................... 14
B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. o f New York, Inc., 168
F.R.D. 161 (S.D.N.Y. 1996)....................................................... ..................................................34
Bloodgood v. Garraghty, 783 F.2d 470 (4tn Cir. 1986).................................................................... 24
Board ofEduc. o f Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237 (1991)..... 13, 14, 22, 23, 24
Bradley v. Milliken, 402 F. Supp. 1096 (E.D. Mich. 1975), affd, 540 F.2d 229 (6th
Cir. 1976), affd, 433 U.S. 267 (1977)................................................................................... 17, 20
Brandt v. Vulcan, Inc., 30 F.3d 752 (7th Cir. 1994)............................................................................35
Brown v. Board ofEduc., 349 U.S. 294 (1955).................................................................................. 18
Brown v. Board o f Educ., 347 U.S. 483 (1954)........................ 23
Bustop, Inc. v. Board o f Educ. o f City o f Los Angeles, 439 U.S. 1380 (1978)...............................28
Capacchione v, Charlotte-Mechlenburg Sch., 57 F. Supp 2d 228 (W.D.N.C. 1999)............passim
Clark v. Board o f Educ. o f Little Rock Sch. Dist., 705 F.2d 265 (8th Cir. 1983)............................18
Columbus Bd. ofEduc. v. Penick, 443 U.S. 449 (1979)................................................................... 30
Cuthbertson v. Charlotte-Mecklenburg Bd. o f Educ., 535 F.2d 1249 (4th Cir.)
(unpub.), cert, denied, 429 U.S. 831 (1976)..........................................................................18, 19
Davis v. East Baton Rouge Parish Sch. Bd., 721 F.2d 1425 (5th Cir. 1983)................................... 20
Eisenberg v. Montgomery County Pub. Sch., 197 F.3d 123 (4th Cir.), petition fo r
cert, filed, 68 U.S.L.W. 3433 (U.S. Dec. 23, 1999) (No. 99-1069)..............................12, 26, 27
- iv -
TABLE OF AUTHORITIES
(continued)
Page
CASES:
Farrar v. Hobby, 506 U.S. 103 (1992)............................................................................................... 37
Freeman v. Pitts, 503 U.S. 467 (1992)............................................................................13, 14, 15, 23
Hayes v. North State Law Enforcement Officers Ass ’n, 10 F.3d 207 (4th Cir. 1993).................... 26
Hewitt v. Helms, 482 U.S. 755 (1987)..........................................................................................36-37
Hunter v. Regents o f Univ. o f Cal., 190 F.3d 1061 (9th Cir. 1999), petition for
rehearing en banc [pending].......................................................................................................... 31
Jacobson v. Cincinnati Bd. o f Educ., 961 F.2d 100 (6th Cir.), cert, denied, 506
U.S. 830(1992)................................................................................................................................28
Kromnick v. School Dist. o f Philadelphia, 739 F,2d 894 (3d Cir. 1984), cert.
denied, 469 U.S. 1107 (1985)........................................................................................................ 28
Leandro v. North Carolina, 488 S.E.2d 249 (N.C. 1997)............................................................... 32
Liddell v. Missouri, 731 F.2d 1294 (8th Cir.), cert, denied, 469 U.S. 816 (1984).........................20
Martin v. Charlotte-Mecklenburg Bd. o f Educ., 475 F. Supp. 1318 (W.D.N.C.
1979), a ff’d on other grounds, 626 F.2d 1165 (4th Cir. 1980), cert, denied, 450
U.S. 1041 (1981).................................................................................................................. 6, 19, 28
McDaniel v. Barresi, 402 U.S. 39 (1971)...........................................................................................28
Milliken v. Bradley, 418 U.S. 717 (1974)........................................................................................... 23
Missouri v. Jenkins, 515 U.S. 70 (1995)...................................................................................... 13, 20
Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert, denied, 426 U.S. 935 (1976)...........................20
Mt. Healthy City Sch. Dist. Bd. o f Ed. v. Doyle, 429 U.S. 274 (1977)............................................38
Norfolk & W. Ry. v. Brotherhood o f R.R. Signalmen, 164 F.3d 847 (4th Cir. 1998)..................... 24
North Carolina State Bd. o f Educ. v. Swann, 402 U.S. 43 (1971)................................................... 28
Offermann v. Nitkowski, 378 F.2d 22 (2d Cir. 1967).........................................................................28
- v -
TABLE OF AUTHORITIES
(continued)
Page
CASES:
Parents Ass'n o f Andrew Jackson High Sch. v. Ambach, 738 F.2d 574 (2d Cir.
1984)..........................................................................................................................................28, 31
Regents ofUniv. o f Cal. v. Bakke, 438 U.S. 265 (1978)................................................................... 30
Riddick v. School Bd. o f City o f Norfolk, 784 F.2d 521 (4th Cir.), cert, denied, 479
U.S. 938 (1986).................................................................................................................. 19, 28,30
Simmons v. Poe, 47 F.3d 1370 (4th Cir. 1995)................................................................................... 24
Stanley v. Darlington County Sch. Dist., 915 F. Supp. 764 (D.S.C. 1996)..............................18, 20
Swann v. Charlotte-Mecklenburg Bd. ofEduc., 402 U.S. 1 (1971).................................... 18, 28, 30
Swann v. Charlotte-Mecklenburg Bd. ofEduc., 67 F.R.D. 648 (W.D.N.C. 1975)........................ 19
Swann v. Charlotte-Mecklenburg Bd. o f Educ., 379 F. Supp. 1102 (W.D.N.C.
1974).............................................................................................................................................5,21
Swann v. Charlotte-Mecklenburg Bd. o f Educ., 311 F. Supp. 265 (W.D.N.C.),
vacated, 431 F.2d 138 (4th Cir. 1970)........................................................................4, 5, 6, 19, 21
Swann v. Charlotte-Mecklenburg Bd. o f Educ., 306 F. Supp. 1291 (W.D.N.C.
1969)...............................................................................................................................................4,5
Swann v. Charlotte-Mecklenburg Bd. o f Educ., 300 F. Supp. 1358 (W.D.N.C.
1969)...................................................................................................................................................5
Texas v. Lesage, 120 S. Ct. 467 (1999)........................................................................................12, 38
Tuttle v. Arlington Cty. Sch. Bd., 195 F.3d 698 (4th Cir. 1999), petition fo r cert.
filed, 68 U.S.L.W. 3497 (U.S. Jan.31, 2000) (No. 99-1274).........................................25, 26, 27
United States v. City o f Yonkers, 197 F.3d 41 (2d Cir. 1999).............................................................13
United States v. Fordice, 505 U.S. 717 (1992)............................................................................14, 15
United States v. Yonkers Bd. ofEduc., 837 F.2d 1181 (2d Cir. 1987), cert, denied,
486 U.S. 1055 (1988)......................................................................................................................20
- vi -
TABLE OF AUTHORITIES
(continued)
Page
CASES;
Vaughns v. Board o f Educ. o f Prince George’s County, 742 F. Supp. 1275
(D. Md. 1990), a ff’d sub nom Board o f Educ. o f Prince George’s County v..
Stone, 977 F.2d 574 (4th Cir, 1992), cert, denied, 506 U.S. 1051 (1993)...........................17, 18
Virginia Carolina Tools, Inc. v. International Tool Supply, Inc., 984 F.2d 113 (4th
Cir.), cert, denied, 408 U.S. 960 (1993).......................................................................................12
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982).................................................... 28, 31
Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998)...........................................................................31
Williams v. United States Merit Sys. Protection Bd., 15 F.3d 46 (4th Cir. 1994)...........................12
Wilson v. Volkswagen o f Am., Inc., 561 F.2d 494 (4th Cir. 1997), cert, denied, 434
U.S. 1020(1978)............................................................................................................................. 33
Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d 14 (4th Cir. 1962).................................................... 34
Wittmerv. Peters, 87 F.3d 916 (7th Cir. 1996), cert, denied, 519U.S. 1111 (1997)..................... 31
Wolfe v. City o f Pittsburgh, 140 F.3d 236 (3d Cir. 1998).......................................................... 21, 22
Wygant v. Jackson Bd. o f Educ., 476 U.S. 267 (1986)...............................................................22, 30
Zaslawsky v. Board o f Educ. o f Los Angeles City Unified Sch. Dist., 610 F.2d 661
(9th Cir. 1979).................................................................................................................................. 29
CONSTITUTION:
U.S. Const, amend X IV .......................................................................................................1, 23, 29, 37
STATUTES:
20U.S.C. § 7202(1)............................................................................................................................. 29
28 U.S.C. § 1291 et seq.......................................................................................................................... 3
28 U.S.C. § 1331..................................................................................................................................... 3
- vii -
TABLE OF AUTHORITIES
(continued)
Page
STATUTES:
28 U.S.C. § 1343............................................................................................................... 3
42 U.S.C. § 1983................................................................................................................................3,37
42 U.S.C. § 1988......... 36
42 U.S.C. § 2000d..................................................................................................................................37
RULES:
Fed. R. Civ. P. 26................................. .......................................................................................... 34-35
Fed. R. Civ. P. 37..................................................................................................................... 12, 33, 36
Fed. R. Evid. 103............................................................................... ...................................................33
REGULATIONS:
34C.F.R. § 100.3(b)(6)(ii)....................................................................................................................29
34 C.F.R. § 280.1(a).............................................................................................................................. 29
64 Fed. Reg. 2110 (Jan. 12,1999)...................................................................................................... 29
- viii -
IN THE UNITED STATES
COURT OF APPEALS FOR
THE FOURTH CIRCUIT
Nos. 99-2389, 99-2391 and 00-1098
TERRY BELK, et al,
Plaintiffs-Appellants,
and
WILLIAM CAPACCHIONE, MICHAEL P. GRANT, et a l,
Plaintiff-Intervenors-Appellees,
v.
THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et a l,
Defendant-Appellants.
WILLIAM CAPACCHIONE, MICHAEL GRANT, et a l,
Plaintiff-Intervenors-Appellees,
and
TERRY BELK, et a l,
Plaintiff-Appellants,
v.
THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et a l,
Defendant-Appellants.
Appeal From the United States District Court
for the Western District of North Carolina
BRIEF OF APPELLANTS
CHARLOTTE MECKLENBURG
BOARD OF EDUCATION, ET AL.
PRELIMINARY STATEMENT
In this appeal, the Charlotte-Mecklenburg Board of Education, Superintendent
Eric Smith, and Board Chairman Arthur Griffin (hereinafter the “School District” or “CMS”)
seek to defend two bedrock principles of constitutional jurisprudence that apply to public
- 1 -
education. First, CMS asks this Court to reaffirm the basic proposition that under the Fourteenth
Amendment a de jure segregated school system cannot be declared unitary so long as vestiges of
segregation remain that practicably can be eliminated. Second, the School District asks this
Court to uphold the vital tradition of local control of public education. Only if this Court
disregards both of these fundamental principles can the decision below be upheld.
These axioms are intimately intertwined in this case. CMS seeks to finish the job
of creating a school system that provides equal educational opportunities regardless of race. The
School District maintains that it is not yet unitary for the simple reason that it has not yet
succeeded in creating an educational system that consistently provides equal educational
opportunities to African-American and white students; indeed, the record below makes clear that
CMS schools serving predominantly African-American student populations remain inferior to
schools serving predominantly white enrollments by almost every measure. Because of these
remaining vestiges, CMS is constitutionally required to take race into account to maintain
desegregated schools until it creates a system that provides equal educational opportunities
regardless of race.
Refusing even to consider the practicable remedial measures proposed by the
School District, Judge Robert D. Potter of the United States District Court for the Western
District of North Carolina pronounced the problems unsolvable, found CMS to be unitary, and
prematurely dismissed the Swann case. The court erred not only in ignoring the remaining
vestiges of segregation in CMS, but also in awarding damages based on CMS’ good faith efforts
to comply with the desegregation court orders, while they were still in effect, using the widely-
recognized desegregation tool of magnet schools. Judge Potter also overreached in issuing an
injunction that extends far beyond the alleged constitutional violation in the magnet school
admissions process and prohibits any consideration of race in the future no matter how narrowly
- 2 -
tailored. This injunction threatens to entrench and exacerbate the remaining racial inequities in
CMS and groundlessly usurps local control. The proper course where a school system becomes
unitary is to return full authority over educational policy to the elected school board.
JURISDICTIONAL STATEMENT
The district court had jurisdiction, pursuant to 28 U.S.C. §§ 1331 and 1343, over
the claims arising under 42 U.S.C. § 1983 of both appellants, Terry Belk, Dwayne Collins and
the class of African-American school children that they represent (the Swann Appellants”), and
appellees, William Capacchione and Michael Grant, et al. (“Appellees”). After the court entered
a permanent injunction on September 9, 1999, CMS filed a notice of appeal on October 8, 1999,
and the Swann Appellants filed a separate notice of appeal on October 7, 1999. This Court has
jurisdiction over these appeals pursuant to 28 U.S.C. § 1291 et seq.
STATEMENT OF THE ISSUES PRESENTED
I. Whether the district court committed errors of law and fact in determining that
CMS had attained unitary status, including by refusing to consider evidence of practicable
measures available to comply with the Swann orders and to remedy vestiges of segregation?
II. Whether the court erred in awarding damages and granting injunctive relief based
on CMS’ operation of its magnet program in a good faith effort to comply with valid
desegregation orders?
III. Whether the court erred in issuing an injunction that prohibits all hypothetical,
future narrowly-tailored student assignment policies and other educational measures that
consider race, where no actual or proposed post-unitary policy was even before the court?
IV. Whether the court erred by granting extensive, unilateral mid-trial discovery and
an award of fees as a sanction against the School District for an alleged discovery violation
arising out of CMS’ good faith reliance on the court’s pretrial order?
-3 -
V. Whether the court erred in finding Appellees to be prevailing parties and
awarding their attorneys’ fees, expert fees and costs, including $716,123.49 to Capacchione
whose claims for declaratory and injunctive relief had been dismissed with prejudice months
before trial and who ultimately recovered only nominal damages?
STATEMENT OF THE CASE
At issue in this appeal is the response of Judge Potter to race-conscious measures
that the School District took in a good faith effort to fulfill its court-ordered duty to eliminate the
vestiges of de jure segregation. The outstanding orders in Swann v. Charlotte-Mecklenburg
Board o f Education included explicit requirements for CMS to assign students and faculty so that
the black-to-white ratio of each school approximated the system-wide ratio. See, e.g., 306
F. Supp. 1291, 1312 (W.D.N.C. 1969); 311 F. Supp. 265, 267-69 (W.D.N.C. 1970). In 1997,
those orders indisputably remained in force when Appellees sued, contending — notwithstanding
CMS’ contrary obligations under the desegregation orders — that the School District was
prohibited from considering race in any facet of its operations.
Judge Potter accepted this remarkable contention, declaring CMS unitary,
dissolving the Swann orders, finding that the School District’s implementation of magnet schools
had been unconstitutional, despite the prior court orders, and broadly enjoining CMS from
“assigning children to schools or allocating educational opportunities and benefits through race-
based lotteries, preferences, set-asides, or other means that deny students an equal footing based
on race.” 57 F. Supp. 2d 228, 294. This injunction rests on a number of erroneous legal
conclusions and factual determinations and clearly exceeds well-established limits on the
equitable powers o f the federal courts.
- 4 -
1. Statement of Facts
For three decades, CMS operated under explicit court orders to desegregate. In
1969, the Swann court found, among other things that “the manner in which the Board [had]
located schools and operated the pupil assignment system . . . accentuated patterns of racial
segregation in housing [and] school attendance,” 300 F. Supp. at 1372, and that such segregation
had “produce[d] inferior education” for African-American students, with the “inevitable result[]”
being an achievement gap between black and white students. 306 F. Supp. at 1296-97.
To address these conditions, the extensive orders in Swann 1/ required inter alia
“[t]hat no school be operated with an all-black or predominantly black student body” and “[t]hat
pupils of all grades be assigned in such a way that as nearly as practicable the various schools at
various grade levels have about the same proportion of black and white students.” 311 F. Supp.
at 268. In addition, the court ordered CMS to implement (1) measures to ensure that
transportation burdens were shared equally among black and white students; (2) a school
location, construction and closing policy that would not “be predicated on population growth
trends alone,” but would site schools “where they can readily serve both races”; and
(3) assignment procedures for “optional” or magnet schools that would racially balance those
schools without significantly resegregating other schools. 379 F. Supp. at 1103-08. The court
likewise directed CMS to assign faculty both on a desegregated basis and also “so that the
competence and experience of teachers in formerly or recently black schools will not be inferior
to those in formerly or recently white schools in the system.” 311 F. Supp. at 268.
1/ The School District adopts the more detailed description of the numerous orders and the
complex facts in this case between 1965 and 1997 as summarized in the brief of The Swann
Appellants and incorporates it by reference. See Swann Brief at 3-18. See also CMS Post-Trial
Brief (filed July 20, 1999) (“Post-Trial B rief’); CMS Proposed Findings (filed July 20, 1999)
(“Proposed Findings”). Both the Post-Trial Brief and the Proposed Findings contain extensive
citations to the record, which generally are not repeated herein.
- 5 -
In 1979, the same district court judge found that, while CMS had maintained
racial balance in most of its schools, it was not unitary because it had failed to comply fully with
many of these orders. See Martin v. Charlotte-Mecklenburg Bd. o f Educ., 475 F. Supp. 1318
(W.D.N.C. 1979), a ff’d on other grounds, 626 F.2d 1165 (4th Cir. 1980), cert, denied, 450 U.S.
1041 (1981).
Before the most recent phase of this case began in 1997, the current Board of
Education and Superintendent already had found many persistent racial inequities in CMS,
including stark differences in the overall quality of racially identifiable black and other schools.
See, e.g., Tr. 6/8:7-57 (Smith); Tr. 6/18:105-80 (Griffin). 2/ When the Capacchione case was
filed, the School District did a more extensive self-evaluation and found that these inequities
were in large part the result of its past failure to comply fully with both the Swann and Martin
orders. But, CMS also recognized that practicable remedies were available to meet the
requirements of those outstanding orders, and the Board and Superintendent have been working
diligently to comply and to remedy the remaining vestiges of segregation.
2. The Proceedings Below
The most recent phase of this ongoing litigation arises out of a lawsuit brought by
William Capacchione in 1997, raising claims quite similar to those rejected in Martin.
Capacchione alleged that CMS’ magnet school admissions practices were unconstitutional
because they took race into account in their effort to promote desegregation. The African-
American plaintiffs in the Swann case intervened, arguing that such consideration of race was
not merely allowed, but in fact was mandated by existing court orders.
2J Transcripts of the hearing are cited by date and page (“T r.__:__”).
- 6 -
The district court then restored Swann to its active docket, consolidated it with
Capacchione, and directed the parties to address the question of whether CMS had become
unitary. See March 6, 1998 Order at 3-4. As noted, CMS concluded that it historically had not
fully complied with the Swann and Martin orders and that practicable measures were available to
remedy the resulting vestiges of segregation. See Defendants’ Trial Brief at 14-29 (filed April
12, 1999) (“Pre-Trial B rief’). CMS, therefore, began to develop a new plan to achieve greater
compliance and create a more fully desegregated school system. Id. at Attachment 1; DX 1
(proffered). 3/
The district court subsequently allowed the intervention of a separate group of
white parents, Michael Grant, et al. - who also asserted that CMS was unitary and that race
should not be a factor in administering any aspect of the school system. See May 20, 1998 Order
at 3, 11. Both Grant, et al., and Capacchione (collectively “Appellees”) sought damages as well
as declaratory and injunctive relief.
Capacchione and his family moved out of state in August 1998, and his claims for
declaratory and injunctive relief were dismissed with prejudice. See December 22, 1998 Order at
7-8. Judge Potter nevertheless refused to dismiss Capacchione’s claim for damages — even
though it was uncontested that his daughter’s magnet lottery number was so high that she would
not have been admitted regardless of race. Defendants’ Motion for Summary' Judgment on All
Claims of Plaintiff William Capacchione at Affidavit of Nick Kleto, [̂9. See also Tr. 6/14:66-71
(Purser).
Appellees presented evidence that, although an increasing number of schools had
become racially imbalanced during the early 1990s, many CMS schools had been racially
3] Exhibits are cited as follows: Plaintiff-intervenors’ (“PIX”), defendants’ (“DX”), and
Swann plaintiffs’ (“SPX”).
- 7 -
balanced within a reasonable range of the districtwide average for several years. See, e.g.,
PIX 137 at 4, Charts 1-2; Tr. 4/29:157-59, 161-62 (Armor). They presented little proof of
compliance with any of the court’s other directives in Swann or Martin. In addition, Appellees
failed to show any tangible harm to their children resulting from allegedly unconstitutional
action by CMS. 57 F. Supp. 2d at 240.
Both CMS and the Swann plaintiffs moved for partial judgment at the close of
Appellees’ case in chief. Defendants’ Motion for Partial Judgment as a Matter of Law (May 11,
1999); Plaintiffs’ Motion for Directed Verdict (May 11, 1999). The court granted CMS' motion
for partial judgment as to all of Appellees’ claims for actual damages on the ground that they
submitted insufficient proof of actual damages at trial but deferred ruling on the other issues
raised in the motions. See May 28, 1999 Order at 2. At this point, Capacchione’s only
remaining claim was for nominal damages.
The district court also allowed Appellees, near the end of their case, to take the
depositions of fourteen fact witnesses beyond the fourteen such depositions they had already
taken. Therefore, despite the fact that the district court’s Pretrial Order and Case Management
Plan (April 10, 1998) (“Pretrial Order”) - which had refused CMS’ request to recognize the
consolidated cases as a complex case, see Defendants’ Proposed Discovery Schedule at 2 (March
31, 1998) - limited the number of non-expert depositions to six, see Civil Justice Expense and
Delay Reduction Plan, § 11(A)(2) (W.D.N.C. 1994), Appellees were allowed to take thirty fact
discovery depositions, half of them in the middle of trial. Although the School District had
requested reciprocal discovery of Appellees’ undeposed trial witnesses, Judge Potter denied this
request. Tr. 4/23:235-39. Instead, the district court recessed the hearing for eight days just
before the close of Appellees’ case solely for them to take additional depositions at CMS’
expense. The CMS fact witnesses whose schedules did not allow for a deposition on this
- 8 -
expedited schedule were not allowed to testify. See Tr. 6/17:92-93; Tr. 6/18:96-99. The court’s
rationale for allowing this extensive, mid-trial discovery and excluding this relevant testimony
was to sanction the School District for having failed to interpret its September 16, 1998 Order to
require the disclosure of trial witnesses prior to the deadline established in its Pretrial Order. See
infra, Section IV.
When the trial resumed, the Swann Appellants presented substantial proof that
CMS was not yet unitary. Lastly, the School District presented proof that the two rationales
relied upon by the district court in Martin were still valid.
First, despite progress in many areas, as the court earlier had found in Martin,
CMS had not yet fully complied with the Swann orders or eliminated the vestiges of segregation
to the extent practicable. Therefore, it remained subject to a court-mandated duty to desegregate.
Under these circumstances, as Appellees’ experts conceded, see, e.g., Tr. 4/29:23, 215-16
(Armor), race-conscious student assignment measures, including the universally accepted
desegregation technique of magnet schools, were permissible means of fulfilling its affirmative
obligations.
Second, as this Court earlier held in Martin, even if CMS were unitary, its
authority over educational policy would include the power to implement narrowly-tailored, race-
conscious student assignment measures to prevent resegregation or to promote the educational
benefits of diversity. Therefore, the broad injunction sought by Appellees — prohibiting every
future, hypothetical race-conscious action — would be improper. On the other hand, CMS did
not propose to continue its magnet school admissions practices or any other particular race
conscious student assignment policy after it achieved unitary status. Tr. 6/18:235-236 (Griffin).
See also DX 1 at 27.
- 9 -
To demonstrate that practicable and educationally sound measures were available
to comply more fully with the Swann and Martin orders and to remedy the remaining vestiges of
segregation, CMS sought to introduce its proposed remedial plan, which had been completed and
adopted by the Board. DX 1. Indeed, CMS had presented the plan to the district court before the
hearing began. See Pre-Trial Brief at Attachment 1. Judge Potter, however, concluded that the
plan “is not relevant” and refused to hear any evidence about it. April 14, 1999 Order at 4.
In its decision on the merits, the court below ignored the persistent racial
inequities that the record had revealed. Instead, the court first found that CMS was unitary and
dismissed the Swann case. Then, applying strict scrutiny to the School District’s prior operation
of magnet schools as part of its efforts to comply with the Swann orders while they were still in
effect, the court found that CMS’ magnet admissions procedures were not “narrowly tailored” to
the goal of remedying discrimination. 57 F. Supp. 2d at 287-91. Based on this conclusion, the
court awarded nominal damages ($1.00 in total) to Appellees. Id. at 294. Although Judge Potter
neither found any other facet of CMS’ student assignment plan to be unconstitutional nor
concluded that it was threatening to use race in an unconstitutional manner in the future, he
nevertheless entered a sweeping injunction prohibiting CMS from “assigning children to schools
or allocating educational opportunities and benefits through race-based lotteries, preferences, set-
asides, or other means that deny students an equal footing based on race.” Id. Finally, the court
found the seven white Appellees to be prevailing parties, id. at 292-93, and subsequently
awarded their attorneys’ fees and costs in the amount of $1,347,496. December 13, 1999 Order.
The School District and the class of African-American children, approximately
40,000 of 100,000 CMS students in 1998-99, see DX 3, separately filed these consolidated
appeals.
- 10 -
SUMMARY OF ARGUMENT
The court below committed numerous errors of law and made several clearly
erroneous factual determinations in concluding that CMS was unitary. Foremost among these
was its legal error in considering only previously ordered methods in assessing whether it was
practicable to remedy vestiges of segregation in CMS. The court also erred as a matter of law in
refusing to acknowledge that CMS’ historic failure to comply fully with the Swann and Martin
orders makes current racial inequities traceable to the dual school system.
In addition to its errors in analyzing unitary status, the district court also erred as a
matter of law in finding CMS’ magnet school practices unconstitutional and awarding damages
based on this purported violation. The court plainly erred in applying strict scrutiny to the
School District’s good faith efforts to comply with desegregation court orders while those orders
were still in effect. The magnet procedures used by CMS were well within its authority under
the Swann orders. Moreover, even if they had not been, the court erred in awarding damages
because the School District was acting in good faith.
Judge Potter also overreached in issuing a sweeping injunction that purports to
prohibit any future race-conscious actions by the School District. Even if CMS’ magnet
practices were unconstitutional ~ which they were not - under this Court’s precedents the
district court, at most, should have enjoined those particular practices. However, no injunction at
all was proper here: First, because there was no evidence before the court that CMS intended to
continue its prior magnet practices or otherwise to assign students based on race after it was
declared unitary, the injunction is an impermissible advisory opinion. Second, the district court
incorrectly held that remedying past discrimination is the only possible compelling governmental
interest that can justify narrowly-tailored, race-conscious actions.
- 11 -
The court also abused its discretion in harshly sanctioning the School District for
not disclosing witnesses in a timely manner, even though CMS met the deadline in the court’s
own Pretrial Order.
Finally, for all these reasons, the court erred in finding Appellees to be prevailing
parties and awarding them attorneys’ fees, expert fees, and costs. Moreover, even if some
Appellees prevail on some claims, Capacchione should not. The district court properly
dismissed all but one of his claims. That claim for nominal damages should have been dismissed
as well because uncontested evidence showed that Capacchione’s daughter would not have been
admitted to the magnet school of her choice even if race had not been considered. See Texas v.
Lesage, 120 S. Ct. 467 (1999).
Therefore, the injunction should be vacated and the decision below reversed.
ARGUMENT
Standard of Review
Because the district court applied incorrect legal standards in assessing CMS’
operation of magnet schools, in purporting to prohibit all possible future narrowly-tailored, race
conscious actions, and in awarding nominal damages, the Court’s review of these issues is de
novo. See Williams v. United States Merit Sys. Protection Bd., 15 F.3d 46, 48 (4th Cir. 1994)
(quoting Virginia Carolina Tools, Inc. v. International Tool Supply, Inc., 984 F.2d 113, 116 (4th
Cir. 1993)). See also Eisenberg v. Montgomery County Pub. Sch., 197 F.3d 123 (4th Cir.),
petition fo r cert, filed, 68 U.S.L.W. 3433 (U.S. Dec. 23, 1999) (No. 99-1069). The district
court’s ruling with respect to sanctions under Fed. R. Civ. P. 37 is reviewed for abuse of
discretion. See Anderson v. Foundation fo r Advancement, Educ. & Employment o f Am. Indians,
155 F.3d 500, 504 (4th Cir. 1998). Finally, the Swann Appellants accurately describe the
- 12 -
standard of review with respect to the lower court’s unitary status ruling. See Swann Brief at 18-
19.
I. THE DISTRICT COURT COMMITTED NUMEROUS ERRORS OF LAW AND
MADE CLEARLY ERRONEOUS FACTUAL DETERMINATIONS IN
CONCLUDING THAT THE SCHOOL DISTRICT IS UNITARY
Through a combination of legal errors and clearly erroneous factual findings,
Judge Potter mistakenly concluded that CMS already was unitary. Because the School District
generally agrees with the arguments on unitary status set forth by the Swann Appellants, see
Swann Brief at 19-48, it does not reiterate them here, but rather elaborates on only a few points.
First, it is remarkable, but not suspect, see 57 F. Supp. 2d at 232, that the School
District acknowledges that it is not yet unitary. CMS does not receive any financial support as a
result of being under court order, cf. Missouri v. Jenkins, 515 U.S. 70, 80 (1995) (“Jenkins / / / ’);
United States v. City o f Yonkers, 197 F.3d 41, 45 (2d Cir. 1999), and one might assume
(correctly) that - all things being equal - the School District would prefer not to be under court
order. The Superintendent and the Board here, however, painfully faced the realities that all
things were not yet equal in CMS, see, e.g., Tr. 6/8:7-53 (Smith); Tr. 6/18:105-80, 208-10
(Griffin); that historically the School District had not complied fully with many of the court’s
orders, see Post-Trial Brief at 11-74; and that there is more CMS practicably can do to right the
wrongs of the past. Id. at 31, 39, 49, 55, and 69; DX 1.
The School District does not, and need not, claim, however, that it intentionally
has discriminated since the initial Swann orders. The Supreme Court has authorized district
courts to dismiss school desegregation cases only where there has been “full compliance with the
court’s decree,” Freeman v. Pitts, 503 U.S. 467, 492 (1992) (quoting Board o f Educ. o f
Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, 249-50 (1991)), and “the vestiges of past
discrimination have been eliminated to the extent practicable.” Id. Vestiges of segregation are
- 13 -
those conditions that are traceable to the prior de jure school system and that continue to have
discriminatory effects. United States v. Fordice, 505 U.S. 717, 728-29 (1992). The Supreme
Court in Fordice made clear that such practices need not have been adopted with “discriminatory
purpose,” id. at 740-41, but need only be “rooted” in or “traceable” to the dual system. Id. at
734, 743. On remand, the Fifth Circuit recognized that Fordice requires remediation of any
current condition or practice with discriminatory effects that is “traceable” to the prior de jure
period, either directly (because it has continued since that period) or indirectly (because it “flows
from” or operates “in much the same way” as a prior segregative practice). Ayers v. Fordice,
111 F.3d 1183, 1207-08 (5th Cir. 1997), cert, denied, 522 U.S. 1084 (1998). Here the district
court erred in failing to recognize such persistent, but unintended, vestiges.
A. The Court Erred as a Matter of Law in Excluding Evidence of
Practicable and Educationally Sound Measures Available to
Comply with the Swann Orders and to Remedy Vestiges of
Segregation
Judge Potter simply presumed that vestiges of segregation no longer existed in
CMS when he ruled — even before trial — that the School District’s evidence that practicable
measures could be implemented to alleviate persistent racial inequities in CMS was “not
relevant.” April 14, 1999 Order at 4. Later, he flatly stated that he “disagree[d]” that it was
necessary “to inquire into whether there are other practical means available to achieve” greater
compliance with the Swann orders or more desegregation. 57 F. Supp. 2d at 256. But the
Supreme Court has made clear that in assessing unitary status a district court must determine,
among other things, whether “the vestiges of past discrimination [have] been eliminated to the
extent practicable.” Freeman, 503 U.S. at 492 (emphasis added) (citation omitted).
The evidence that CMS had not fully complied with the Swann and Martin orders
in ways that adversely affect African-American students was undisputed at trial. See, e.g.,
Swann Brief at 26-31; Post-Trial Brief at 45-49, 54-55, and 64-69. What the School District’s
- 14-
remedial plan shows is that this non-compliance was not the result of practical limitations:
CMS’ plan identifies reasonable alternatives to its 20-year practice of building all of its new
schools in predominantly white areas, provides a sound method of equalizing the burden of
transportation that for two decades had been disproportionately borne by African-American
students, and identifies administrative and educational reforms that would close the gap in the
quality of educational experience offered to white and African-American students. See DX 1.
But Judge Potter did not want even to hear any evidence that more could be done.
Instead, before trial and repeatedly thereafter, he ruled that he would hear testimony only about
desegregation measures already implemented in CMS. See, e.g., April 14, 1999 Order at 4-5;
Tr. 4/28:52-53; 6/8:45-46; 6/21:10. This refusal to consider other alternatives erroneously
assumed that vestiges had been remedied to the extent practicable rather than fairly assessing
whether such progress had been achieved.
By limiting its analysis to the potential effectiveness of previously implemented
desegregation methods, see, e.g., 57 F. Supp. 2d at 256, the district court erred as a matter of law
and logic. By definition, if racial disparities exist in a school system, its current methods have
not succeeded in remedying them. But, that shows nothing about whether other reasonable
approaches could be effective. Nowhere has the Supreme Court or this Court held that a school
system’s affirmative duty to eliminate the vestiges of past segregation is limited to use of those
methods already in place. Cf. Freeman, 503 U.S. at 480 (approving inquiry by district court
about other possible desegregation measures). Because there are educationally sound and
practical means of addressing discriminatory conditions traceable to the de jure segregation,
CMS is not yet unitary. Fordice, 505 U.S. at 728-29.
- 15 -
B. The Court Erred in Failing to Recognize Vestiges of
Segregation Created and Maintained by CMS’ Past Failure to
Comply Fully with the Swann Orders
Another of the district court’s most significant legal errors is its refusal to
acknowledge that the failure to comply fully with ongoing court orders can create a vestige
“traceable” to the dual school system. For example, with respect to facilities, even if the court
had concluded in 1969 that CMS was unitary in that area — which it did not, Swann Brief at 28-
30 - the current disparities in facilities are still vestiges of segregation under Fordice: They
adversely affect African-American students, and they are traceable to the dual school system
because they were caused in substantial part by CMS’ failure to comply with the court’s orders
regarding site selection. Over the years, various CMS Boards of Education indisputably violated
the orders in Swann by constructing virtually all (25 of 27) new schools in predominantly white
areas. DX 266; Proposed Findings at 52-60. This practice unquestionably resulted in
disparities in the quality of school facilities serving primarily white and African-American
students respectively: The schools that serve predominantly African-American student
populations have older and less well-equipped facilities, while newer and/or better-equipped
facilities are located in mostly white areas and serve mostly white students. See Post-Trial Brief
at 46-48. This is a vestige of segregation that CMS practicably can cure.
Likewise, the district court also erred in ignoring the numerous ways in which
CMS’ historic failure to comply fully with explicit court orders clearly contributed to the reduced
educational opportunities and outcomes for African-American students. Id. at 64-69. Such past
CMS practices have made racially identifiable black schools demonstrably worse than others in
several ways. In addition to the facilities disparities discussed above, the educational resources
provided at racially identifiable black schools — including equipment and specialized faculty and
program offerings — are inferior, due at least in part to new construction decisions, to CMS’ past
- 16-
practice of matching PTA funding, and to the priority given magnets over non-magnet schools.
Id. at 44-45, 48-49. The faculties at racially identifiable black schools also have less experience
and fewer advanced degrees than the faculties of other schools because of decentralized teacher
assignment practices that did not comply with the Swann orders. Id. at 53-54.
Because these and other disparities overwhelmingly established by the record
below are traceable to the dual school system and subject to practicable remedies, the district
court’s decision on unitary status should be reversed.
II. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN AWARDING
DAMAGES AND INJUNCTIVE RELIEF BASED ON THE SCHOOL
DISTRICT’S GOOD FAITH EFFORTS TO COMPLY WITH VALID
DESEGREGATION ORDERS THROUGH ITS OPERATION OF MAGNET
SCHOOLS
Even if CMS were now unitary - which it plainly is not - Judge Potter
nevertheless erred in concluding that the School District’s magnet plan, as it was implemented
while CMS was under court order, “went beyond constitutionally permitted bounds because it
was not narrowly tailored and was not within the guidelines of the desegregation plan” and
awarding damages and injunctive relief on that basis. 57 F. Supp. 2d at 291.
A. The School District’s Operation of Magnet Schools Was a
Lawful Means of Complying with Desegregation Court Orders
Judge Potter ignored longstanding, controlling precedent in holding that strict
scrutiny applies to any good faith effort to comply with a desegregation order if that effort is
race-conscious. Such desegregation measures are subject not to a “narrow tailoring” test, but
rather to the standard that “the nature of the desegregation remedy is to be determined by the
nature and scope of the constitutional violation.” Milliken v. Bradley, 433 U.S. 267, 280 (1977)
(“Milliken IF). Early on, the Supreme Court held that “[sjchool authorities have the primary
responsibility for elucidating, assessing and solving” administrative and educational problems to
- 17-
achieve desegregation. Brown v. Board o f Educ., 349 U.S. 294, 299 (1955) (Brown IT). The
corollary principle, Brown II found, is that reviewing courts must determine “whether the action
of school authorities constitutes good faith implementation of the governing constitutional
principles.” Id. (emphasis added). See also Swann, 402 U.S. 1, 12(1971).
Indeed, this Court has specifically rejected the notion that strict scrutiny should
apply in assessing school board actions undertaken to comply with desegregation court orders.
Vaughns v. Board o f Educ. o f Prince George’s County, 742 F. Supp. 1275, 1295-97 (D. Md.
1990), a ff’d sub nom. Board o f Educ. o f Prince George's County v. Stone, 977 F.2d 574 (4th Cir.
1992), cert, denied, 506 U.S. 1051 (1993). 4! Where a school district has adopted race-conscious
means “to fulfill its affirmative duty to eradicate the vestiges of discrimination, pursuant to
orders of this Court, the Board’s choice of means to achieve that end is entitled to be accorded
substantial deference.” Id. at 1295. Accordingly, a race-conscious policy was upheld where it
was found to be largely “reasonable” and “a valid exercise of the Board’s affirmative duty to
eradicate the vestiges of unconstitutional segregation.” Id. The court held the policy to be
constitutional even though it was not detailed in any court order and, indeed, had been expanded
without court approval. Id.
As this Court has long recognized, the “mechanics of integration . . . is ordinarily
a matter within the discretion of school administrators,” Allen v. Asheville City Bd. o f Educ., 434
4J Other courts also have evaluated school district actions taken to implement desegregation
orders under a deferential standard of reasonableness and practicability, rather than strict
scrutiny. See, e.g., Arthur v. Nyquist, 712 F.2d 809, 813 (2d Cir. 1983) (supervising
desegregation plan “necessarily requires considerable deference by a district court to the good
faith representations of the school authorities”); Clark v. Board o f Educ. o f Little Rock Sch. Dist.,
705 F.2d 265, 270-71 (8th Cir. 1983) (Board’s proposal to change desegregation plan, including
through adoption of magnet with race-conscious admissions, found constitutional because it was
“consistent” with affirmative duty to desegregate); Stanley v. Darlington County Sch. Dist., 915
F. Supp. 764, 775 (D.S.C. 1996) (strict scrutiny not applicable to race-conscious practices
designed to remedy historical racial discrimination).
- 18-
F.2d 902, 905 (4th Cir. 1970), and . . . school systems seeking court approval for desegregation
plan changes must merely show that “changes are consistent with its continuing affirmative duty
to eliminate segregation.” Riddick v. School Bd. o f City o f Norfolk, 784 F.2d 521, 535 (4th Cir.),
cert, denied, 479 U.S. 938 (1986). Indeed, based on that principle, this Court previously has
dismissed another Equal Protection challenge to CMS’ consideration of race in student
assignment on the ground that, while the School District is under court orders, such a challenge
fails even to state a claim upon which relief can be granted. See Cuthbertson v. Charlotte-
Mecklenburg Bd. ofEduc., 535 F.2d 1249 (4th Cir.) (unpub.), cert, denied, 429 U.S. 831 (1976);
Addendum at 1. The same conclusion obtains here.
Over the history of this case, moreover, the district court itself repeatedly
emphasized the deference that must be accorded to CMS’ primary role in devising and
implementing desegregation remedies. 5/ The court gave CMS “maximum leeway” to continue
the desegregation process when it ended ongoing active supervision in 1975 and later concluded
that “[t]his approach reflected the proper division of duties between court and school authority in
such cases.” Martin, 475 F. Supp. at 1341. The district court erred as a matter of law in
retroactively abandoning this standard and subjecting the School District’s compliance efforts to
strict scrutiny.
CMS’ efforts were well within its discretion under the Swann orders to select
reasonable means to accomplish its affirmative duty to desegregate. The particular
5/ See, e.g., Martin, 475 F. Supp. at 1341 (court previously “closed the file to provide the
School Board . . . the maximum leeway within the confines of all orders of continuing effect”),
af f ’d, 626 F.2d at 1167 (explicitly race-conscious pupil reassignment plan that had been
implemented without prior judicial approval was “well within the plenary powers of the Board”),
cert, denied, 450 U.S. 1041 (1981); Swann, 61 F.R.D. 648, 649 (W.D.N.C. 1975) (order “leaves
the constitutional operation of the schools to the Board”); Swann, 311 F. Supp. at 270 (“The
intention of this order is to . . . leave maximum discretion in the Board to choose methods that
will accomplish the required result.”).
- 19-
desegregation tool struck down by Judge Potter - magnet schools with race-conscious
admissions guidelines - has been repeatedly recognized by the Supreme Court and other courts
as a valid exercise of the broad remedial discretion of both district courts and school authorities.
See, e.g., Jenkins III, 515 U.S. at 92 (“[w]e previously have approved of intradistrict
desegregation remedies involving magnet schools”); Milliken II, 433 U.S. at 272 (affirming
district court-approved desegregation plan that included racial balance requirement for magnet
school admissions plan described at 402 F. Supp. 1096-1147 (E.D. Mich. 1975)). 6/ Moreover,
CMS’ magnet admissions practices were not overly rigid in practice; although the stated goal
was 40 percent black enrollment at each school, in 1998-99 magnet schools actually varied
widely in their racial composition, from as low as 25 percent black to as high as 75 percent, and
not one was balanced at exactly 40 percent. Post-Trial Brief at 78.
Appellees’ own unitary status expert, Dr. David Armor, admitted that CMS’
assignment practices were within its lawful discretion under the Swann orders. Armor
specifically conceded that:
• A school district under court order to desegregate “has a duty to comply with
the court’s orders as far as practicable.” Tr. 4/29:215-16.
• It is “normal” for such school districts “to take race into account in their
student assignment decisions.” Id. at 216.
• It is “normal for school districts under court order to have racial balance
guidelines fo r their magnet schools ” and that even specific "racial quotas are
permissible.” Id. (emphases added).
6/ See also United States v. Yonkers Bd. o f Educ., 837 F.2d 1181, 1238 (2d Cir. 1987)
(approving racial balance requirement for magnet school admissions); Liddell v. Missouri, 731
F.2d 1294, 1310 (8th Cir. 1984) (“the utility and propriety of magnets as a desegregation remedy
is beyond dispute”); Davis v. East Baton Rouge Parish Sch. Bd., 721 F.2d 1425, 1440 (5th Cir.
1983) (approving racial balance requirements for magnet schools); Morgan v. Kerrigan, 530
F.2d 401, 423 (1st Cir. 1976) (approving racial balance requirement for magnet schools); Stanley
v. Darlington County, 915 F. Supp. at 776 (imposing racial balance requirement for magnet).
- 2 0 -
• “The only way” for CMS to satisfy the orders in this case “is to take race into
accqunt,” as the school district has done in “pairing, . . . satelliting, . . . [and]
running lotteries for magnet schools.” Id. at 231 (emphasis added).
CMS’ magnet schools are the same type of schools as the “optional” schools that
the 1974 Swann order requires to be “appropriately integrated” in ways that “prevent significant
jeopardy to the racial composition of other schools,” 379 F. Supp. at 1103. See Tr. 5/3:73
(Schiller). The magnet admissions practices, moreover, were designed to help CMS meet the
court’s requirement that students be assigned so that “as nearly as practicable the various schools
at the various grade levels have about the same proportion of black and white students.”
311 F. Supp. at 268. To comply with these and other orders, CMS adopted numerical guidelines
for the magnet schools, just as Appellees’ expert Dr. Armor conceded is normal and permissible
for a school district under court order to do. The court below thus erred in concluding that CMS’
consideration of race in magnet school admissions, while it was still under a desegregation order,
was unconstitutional. Because the court found no other constitutional violation, there was no
basis for granting injunctive relief or awarding damages.
B. Damages are Not Available for Good Faith Efforts to Comply
with Court Orders
Judge Potter also erred in failing to recognize that the School District’s actions --
even if they had exceeded its authority under Swann, which they did not — cannot give rise to
damages because they were taken in good faith. If CMS’ efforts to comply with the Swann
orders had exceeded its authority, the proper course for the court would have been to order it to
revise its magnet admissions procedures, not to award damages. Many formerly de jure
segregated school districts have adopted measures that — in one direction or another — have not
fully complied with broad remedial orders; indeed, some of these actions have been
characterized as massive resistance. Yet, CMS is aware of no other court in history that has
-21 -
awarded damages against a school district either for going too far or not going far enough in
trying to satisfy a desegregation order.
Where, as here, a governmental entity remains subject to a court order that has not
been dissolved, it must comply with the order. As one court has stated, even though the order
might subsequently be questioned, the government body “face[s] but one real course - a
Hobson’s choice - to follow the court’s order.” Wolfe v. City o f Pittsburgh, 140 F.3d 236, 240
(3d Cir. 1998). By making good faith efforts to comply, such an entity does “not deliberately
adopt[] an ‘official policy,’ other than to follow the law, that would give rise to Section 1983
liability.” Id.
The equities weigh particularly heavily against an award of damages in a unitary
status case. CMS did not adopt race-conscious policies by consent, but under the compulsion of
court orders issued after a final judgment determining that the former de jure segregated system
was unconstitutional. A school district does not become unitary unless the court explicitly states
that unitary status has been attained. See Dowell, 498 U.S. at 246 (school board “entitled to a
rather precise statement of its obligations”). Otherwise, it is “trapped between . . . competing
hazards of liability,” Wygant v. Jackson, 476 U.S. 267, 291 (1986) (O’Connor, J., concurring in
part and concurring in judgment) - forced to risk the court’s contempt power and further legal
challenges from the Swann Appellants, if it does not take actions to comply with the court orders,
and lawsuits by others (such as Appellees), if it does. Such conflicting duties would hopelessly
frustrate any school system’s efforts to implement effective desegregation plans and to
administer public education in an orderly fashion.
Judge Potter’s statement that CMS sought to use the desegregation order “as a
pretext to pursue race-conscious, diversity-enhancing policies in perpetuity” is clearly erroneous.
57 F. Supp. 2d at 232. First, there is neither any specific finding nor a shred of evidence
- 2 2 -
suggesting that the School District operated its magnet plan in bad faith. Second, there is no
evidence at all to suggest that CMS had planned to continue race-conscious practices after it
became unitary. See Tr. 6/18:235-236 (Griffin); DX 1 at 27.
Furthermore, CMS does not seek reversal of the court’s award of nominal
damages because it desires to use its pre-unitary, race-conscious practices if this Court finds it to
be unitary, but rather because the practical implications of this ruling are enormous: While
Appellees were found not to have suffered actual damages, affirmance would open the door to
numerous suits by other students who could claim they did suffer actual damages and argue that
collateral estoppel prevents CMS from denying liability.
If this Court upholds Judge Potter’s award of damages against CMS simply
because it tried to comply with the Swann orders, a chilling message will be sent. Future orders
to remedy constitutional violations in this Circuit will have little meaning if, in any given case, a
defendant might calculate that the threat of damages and attorneys fees outweighs the costs of
noncompliance. The Court should not diminish the authority of the federal courts by holding
that a defendant is liable for damages under such circumstances.
III. THE INJUNCTION ENTERED BY THE DISTRICT COURT EXCEEDS ITS
EQUITABLE POWER AND IMPROPERLY LIMITS THE SCHOOL
DISTRICT’S AUTHORITY OVER EDUCATIONAL POLICY
“No single tradition in public education is more deeply rooted than local control
over the operation of schools.” Milliken v. Bradley, 418 U.S. 717, 741 (1974). See also
Freeman, 503 U.S. at 489; Dowell, 498 U.S. at 248; Brown v. Board ofEduc., 347 U.S. 483, 493
(1954). While paying lip service to this principle, see 57 F. Supp. 2d at 232; id. at 244
(acknowledging “ultimate duty to return control of school operations to local authorities”), Judge
Potter blatantly violated it by prohibiting any possible future student assignment measure or
other educational program that considers race, even in a narrowly-tailored manner.
-23 -
Once a school system is declared unitary, the proper course is to return control
over public education to locally elected school boards. Dowell, 498 U.S. at 248. School systems
that successfully remedy the vestiges of segregation should not be penalized for that
accomplishment with a swift shift from one form of judicial supervision to another. The
Fourteenth Amendment should not be unreasonably interpreted to prohibit the desegregation that
has been constitutionally required for 30 years at the instant unitary status is achieved. Judge
Potter’s injunction, however, purports to do precisely that. Appellees (or others) could use its
sweeping language to bring a contempt-of-court challenge to any effort by CMS to prevent
resegregation or even to implement educational programs designed to improve minority student
achievement. Such intrusion into the prerogatives of the local elected authorities is
unprecedented in a unitary status proceeding. Moreover, it is based improperly on speculation
about future conduct, is far broader than the violation found, and groundlessly usurps the School
Board’s authority over educational policy.
A. The Injunction Constitutes an Impermissible Advisory
Opinion
‘“An injunction is a drastic remedy and will not issue unless there is an imminent
threat of illegal action.’” Norfolk & W. Ry. v. Brotherhood ofR.R. Signalmen, 164 F.3d 847, 856
(4th Cir. 1998) (emphasis added) (quoting Bloodgood v. Garraghty, 783 F.2d 470, 475 (4th Cir.
1986)). ‘“An injunction will not be granted against something merely feared as liable to occur at
some indefinite time in the future.’” Id. See also Simmons v. Poe, 47 F.3d 1370, 1382 (4th Cir.
1995) (dismissing claims for declaratory and injunctive relief under Section 1983, in part
because “a future or conjectural threat of injury is insufficient to justify injunctive relief’). There
was no evidence at trial that CMS, once declared unitary, would engage in any illegal conduct.
First, as discussed above, see supra Section HA, there were no previous
violations of law from which future illegal conduct fairly could be anticipated. All that was
- 2 4 -
established is that, prior to any unitary status ruling, CMS had employed race-conscious
measures in a good faith effort to follow the Swann orders. Because the School District never
had been declared unitary and never had conducted itself as a unitary system, its prior policies
are not a sufficient indicator of the policies it would adopt if this Court were to affirm the district
court’s unitary status ruling.
Second, there was no other evidence demonstrating an imminent threat of illegal
action. The remedial plan that CMS proffered describes the actions it proposed to take to
eliminate the remaining vestiges of segregation if the district court determined — as the record
makes clear it should have — that the School District was not yet unitary. The plan does not
constitute a statement of what CMS would do if the courts concluded that it is unitary now. The
plan also is not in evidence. It would be ironic indeed to uphold its inadmissibility to show how
it is practicable to remedy vestiges in CMS, but then to misuse it to divine the School District’s
future intent. Moreover, the plan indicates that CMS intended not to consider race in its student
assignment system once it had become unitary. See DX 1 at 27.
Nor does the testimony of Board members, the Superintendent, and other CMS
witnesses as to the educational value of diversity indicate that CMS would act illegally. Board
Chairman Arthur Griffin explicitly testified that no decisions had been made as to how CMS
would operate if the district court ruled that it already was unitary, other than that the School
District intended to follow the law. 6/18:235-36, 6/21:68-70, 86 (Griffin)). Given this
uncontroverted evidence, the injunction has no basis in fact and constitutes an impermissible
advisory opinion.
B. The Injunction Exceeds the Scope of the Violation Found
Even assuming arguendo both that CMS’ prior magnet school admissions
practices were unconstitutional and that CMS had proposed to continue using them as a unitary
- 2 5 -
school system, the injunction still is improper because it extends far beyond those magnet
procedures. As this Court recently stated in overturning another overbroad injunction:
An injunction should be tailored to restrain no more than
what is reasonably required to accomplish its ends . . . ,[I]t
should not go beyond the extent of the established
violation.
Tuttle v. Arlington Cty. Sch. Bd., 195 F.3d 698, 708 (4th Cir. 1999) (quoting Hayes v. North State
Law Enforcement Officers Assn, 10 F.3d 207, 217 (4th Cir. 1993)), petition fo r cert, filed, 68
U.S.L.W. 3497 (U.S. Jan. 31, 2000) (No. 99-1274). In Hayes, as here, Judge Potter restrained
conduct that had not been determined to be unconstitutional. Id. (court improperly enjoined “all
use of racially based criteria” in city’s employment decisions where a constitutional violation
had been found only with respect to police department promotions to sergeant rank). The district
court lacked authority to do more than grant relief from an “established violation.” Tuttle, at
708. Here, the only constitutional violation found concerned the magnet school admissions
practices employed by CMS before any unitary status determination. An appropriately tailored
injunction would do no more than forbid those practices, which CMS had announced an
intention to abandon once it became unitary, in any event. See Eisenberg, 197 F.3d at 134
(where racial considerations in transfer decisions were found unconstitutional, injunction should
only address that policy).
C. The Injunction Is Overly Broad Because It Prohibits Any
Future, Hypothetical Action that Considers Race, Even If It Is
Narrowly-Tailored to Serve a Compelling Governmental
Interest
While this Court need not reach this issue to vacate the injunction issued below,
Judge Potter also erroneously held, directly contrary to controlling Supreme Court and Fourth
Circuit precedent, that “remedying the effects of past discrimination” is the only conceivable
governmental interest compelling enough to justify any consideration of race in student
- 2 6 -
assignment or in the allocation of educational benefits. 57 F. Supp. at 241. The district court
held that CMS “cannot clear the first hurdle of strict scrutiny by showing a compelling
governmental interest” because “the emerging consensus is that achieving diversity is not a
proper grounds for race-conscious action,” 57 F. Supp. at 291-92. The court’s injunction thus is
overly broad because it prohibits all consideration of race, even narrowly-tailored to serve
compelling interests.
1. The Decision Below Violates Controlling Precedent in Holding that
Only Remedial Interests Can Ever Be Compelling
This Court twice recently has refused to find, as Judge Potter did, that only
remedial interests may be considered sufficiently compelling to justify voluntary public school
desegregation efforts. In Tuttle, the Court rejected a district court conclusion identical to that
adopted by the lower court here. Tuttle, 195 F.3d at 704. This Court held that whether
promoting the educational benefits of diversity is a compelling governmental interest “remains
unresolved,” id., noting that “nothing in Bakke or subsequent Supreme Court decisions clearly
forecloses the possibility that diversity may be a compelling interest.” Id. at 705. The correct
approach in these circumstances, Tuttle held, is that “[ujntil the Supreme Court provides decisive
guidance, we will assume, without so holding, that diversity may be a compelling governmental
interest.” Id. In Eisenberg, another panel of this Court followed Tuttle and likewise assumed
that non-remedial interests may be compelling. 197 F.3d at 130. That the lower court here
rejected all other potential compelling governmental interests was confirmed by its order denying
a stay: Judge Potter incorrectly reiterated, disregarding this Court’s contrary decisions in Tuttle
and Eisenberg, that “in a non-remedial, unitary status setting, the use of race is a fortiori
unconstitutional.” November 15, 1999 Order at 6-7.
By contrast, in this very case the Supreme Court and this Court previously have
noted that school boards, pursuant to their “broad power to formulate and implement educational
- 2 7 -
policy,” may have legitimate reasons to consider race in student assignment, even in unitary
districts. Swann, 402 U.S. at 16; Martin, 626 F.2d at 1166-67. Accord North Carolina State Bd.
o f Ednc. v. Swann, 402 U.S. 43, 45 (1971) (“school authorities have wide discretion in
formulating school policy, and . . . as a matter of educational policy school authorities may well
conclude that some kind of racial balance in the schools is desirable quite apart from any
constitutional requirements”). 7/ The Supreme Court has plainly stated that “in the absence of a
constitutional violation, the desirability and efficacy of school desegregation are matters to he
resolved through the political process.” Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457,
473 (1982) (emphasis added). The decision below both usurps that political process and violates
recent controlling authority in this Circuit.
2. The Court Ignored CMS’ Interest in Avoiding Resegregation
In ruling that non-remedial, race-conscious measures are per se unconstitutional,
the court below simply ignored the School District’s uncontroverted interest in avoiding the
immediate resegregation of its schools. See Trial Brief at 25-26; Post-Trial Brief at 84, 86. As
this Court has previously recognized, however, to avoid the re-establishment of segregated
schools, unitary districts in some circumstances may take race-conscious actions. 8! In Riddick,
7] See also McDaniel v. Barresi, 402 U.S. 39 (1971) (reversing state court injunction
against voluntary student assignment plan that considers race); Bustop, Inc. v. Board o f Educ. o f
City o f Los Angeles, 439 U.S. 1380, 1382-83 (1978) (Rehnquist, J.) (rejecting contention that
voluntary race-conscious desegregation efforts would violate Equal Protection).
8/ Other courts also have recognized that school districts may take race-conscious actions
even in the absence of desegregation court orders. See, e.g., Parents Ass'n o f Andrew Jackson
High Sch. v. Ambach, 738 F.2d 574, 577 (2d Cir. 1984) (voluntarily adopted race-conscious
student assignment plan that aimed “to promote a more lasting integration” by imposing “racial
quota” on transfers of minority students survived strict scrutiny); Ojfermann v. Nitkowski, 378
F.2d 22, 24 (2d Cir. 1967) (school district did not violate any constitutional right in voluntarily
using race-conscious student assignment to undo the effects of de facto segregation). See also
Jacobson v. Cincinnati Bd. o f Educ., 961 F.2d 100, 102-03 (6th Cir. 1992) (upholding race
conscious teacher assignment process); Kromnick v. School Dist. o f Philadelphia, 739 F.2d 894,
[Footnote continued]
- 2 8 -
for example, although the Norfolk school system had been declared unitary, this Court approved
race-conscious student assignment measures intended to avoid the “real danger of
resegregation.” 784 F.2d at 540, 543.
After working thirty years under court orders requiring it to promote racial
integration, CMS does not believe the Constitution requires immediate resegregation. Given
where CMS has built schools, however, using a race-blind, proximity-based assignment plan
would significantly increase racial imbalance in student enrollments. See Post-Trial Brief at
73-74. Fifty-nine of 83 CMS elementary' schools (71%) would be racially identifiable. Id. at 73
n.38. Moreover, 19 of these schools would be more than 75 percent black and 10 would be more
than 90 percent black. Id. Overall, the absolute level of segregation in CMS schools would
double. Id. 9]
The School District’s dilemma is exacerbated by the fact that the schools that
would become racially identified as “black” schools are precisely the schools that are most
deficient in their physical facilities. Id. at 44-45. They also generally are inferior in the
educational opportunities they provide — including inferior resources, fewer course offerings,
[Footnote continued]
906 (3d Cir. 1984) (“[pjatently, a school district is competent to choose a race-conscious teacher
assignment policy to further educational goals”); Zaslawsky v. Board o f Educ. o f Los Angeles
City Unified Sch. Dist., 610 F.2d 661, 664 (9th Cir. 1979) (school authorities have discretion to
formulate race-conscious faculty integration plans to carry out their educational policies).
9J Avoiding such racial isolation also has been recognized by Congress as an important
goal. Congress has authorized funds under the Magnet School Assistance Program to assist in
“the elimination, reduction, or prevention of minority group isolation in elementary and
secondary schools.” See 20 U.S.C. § 7202(1); 34 C.F.R. § 280.1(a). The Department of
Education has reaffirmed that the elimination, reduction, and prevention of minority group
isolation is a “compelling interest” — even in a school district that is not remedying the effects of
prior discrimination. MSAP Notice for Fiscal Year 1999, 64 Fed. Reg. 2110, 2110 (Jan. 12,
1999). Likewise, federal regulations implementing Title VI encourage the use of voluntary race
conscious action to prevent racial isolation. 34 C.F.R. §100.3(b)(6)(ii).
- 2 9 -
and fewer well-qualified teachers. Id. at 44-45, 53-54, 59, 74; Proposed Findings at 274-75.
Thus, a precipitous transition to a neighborhood-based school assignment plan would put many
African-American students in the same position as African-American students in the 1960s — in
separate and unequal schools with their academic achievement retarded as a direct result. The
Fourteenth Amendment surely does not require CMS to promote or even to acquiesce in this
result.
Finally, if CMS were not allowed voluntarily to take steps to avoid resegregation,
it would run the risk of further liability. It is well-settled that a school system’s actions or
inactions contributing to racially isolated schools may serve as evidence of an intent to
discriminate. See, e.g., Columbus Bd. ofEduc. v. Penick, 443 U.S. 449, 464 (1979); Riddick, 784
F.2d at 543. The court’s overly broad injunction unfairly puts CMS in this untenable position.
3. The Court Erroneously Held that Providing the Educational Benefits
of Diversity Could Never Constitute a Compelling Governmental
Interest
The district court also erred because precedent, as well as the evidence presented
at trial, establish the compelling nature of CMS’ interest in promoting the educational benefits of
diversity after it is declared unitary. The Supreme Court has acknowledged educational
institutions’ substantial interest in providing their students with the benefits of diversity. As the
Court recognized in Swann, school integration may help “to prepare students to live in a
pluralistic society.” 402 U.S. at 16. In the higher education context, Justice Powell’s controlling
opinion for the Court in Regents o f University o f California v. Bakke, 438 U.S. 265 (1978), noted
that, independent of any remedial goal, “our tradition and experience lend support to the view
that the contribution of diversity is substantial,” id. at 313, and the opinion concluded that “the
attainment of a diverse student body . . . clearly is a constitutionally permissible goal for an
institution of higher education.” Id. at 311-12. See also Wygant, 476 U.S. 286 (O’Connor, J.,
- 3 0 -
concurring) (in Bakke, “a state interest in the promotion of racial diversity has been found
sufficiently ‘compelling,’ at least in the context of higher education, to support the use of racial
considerations in furthering that interest”). Moreover, in Seattle School District, the Court
observed that children of all races “benefit from exposure to ethnic and racial diversity in the
classroom” and that “an ethnically diverse school . . . prepares] minority children for citizenship
in our pluralistic society . . . while, we may hope, teaching members of the racial majority to live
in harmony and mutual respect with children of minority heritage.” 458 U.S. at 472-73 (internal
citations omitted). 10/
The uncontested record evidence in this case demonstrates that experience in a
racially and ethnically diverse classroom better prepares students for the work force, trains
students to better exercise their civic responsibilities, and lessens the burden on state universities.
Post-Trial Brief at 84; Tr. 6/16:187-93 (Woodward); DX 73-84, 254; Proposed Findings at
f t 252-73. H I First, the evidence shows that diversity in the student body and faculty enhances
students’ civic values by bringing them together in ways that can reduce racial fears and
stereotypes; teaches students how to interact comfortably and respectfully with people who are
101 Other courts more recently have reconfirmed that pursuing the educational benefits of
diversity can be a compelling governmental interest. See Wessmann v. Gittens, 160 F.3d 790,
796 (1st Cir. 1998) (assuming that Bakke is good law and that diversity is sufficiently compelling
interest to justify race-conscious actions by school system); Parents Ass 'n o f Andrew Jackson
High, 738 F.2d at 577 (accepting promotion of integration as a compelling interest supporting
race conscious student assignment measures). See also Hunter v. Regents o f Univ. o f Cal., 190
F.3d 1061, 1064 n.6, 1067 (9th Cir. 1999), petition fo r reh’g en banc [pending] (rejecting
contention that only remedying past discrimination can justify school’s use of racial criteria in
admissions and holding that state has “compelling interest in providing effective education to its
diverse, multi-ethnic, public school population”); Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir.
1996) (rejecting contention that only remedying prior discrimination can qualify as compelling
governmental interest supporting racial classifications), cert, denied, 519 U.S. 1111 (1997).
l l j Judge Potter also incorrectly excluded much of the proffered evidence concerning the
educational benefits of diversity. See infra at 33 n.12; Tr. 5/26:127-35 (Trent); 6/15:77-91
(Mickelson).
-31 -
different from them; and prepares them to be better neighbors, colleagues, and citizens in our
multicultural, democratic society. Id. at 255-60. Second, diversity in the student body and on
the faculty helps to improve teaching and learning for all students. Id. at Iff 261-65. Moreover,
“placing disadvantaged minority students in desegregated classrooms in which teachers have
high expectations for all students can positively affect their educational achievement and long
term prospects, without negatively affecting the performance of other students.” Id. at f 264.
Third, student diversity can improve preparation for employment and post-secondary education
by teaching students the value of different perspectives, how to function in multicultural business
and educational settings, and how to communicate effectively in our increasingly heterogeneous
domestic workforce and the expanding global marketplace. Id. at f f 266-72. Each of these
benefits of diversity in the classroom assists CMS in providing the various aspects of a sound
basic education required by the North Carolina Constitution. See Leandro v. North Carolina,
488 S.E.2d 249, 255 (N.C. 1997).
Even Appellees’ experts agreed that diversity provides important educational
benefits. Tr. 4/29:256-57 (Armor); Tr. 4/19:195 (Clark). It is also undisputed that to achieve
these benefits, it sometimes may be necessary to take race into account in a narrowly tailored
manner. Tr. 4/29:257-58 (Armor). If CMS decides to promote these benefits in the future, the
lower court’s broad, abstract injunction should not prevent the locally elected School Board from
grappling with whether narrowly-tailored, race-conscious methods provide the best means of
achieving that purpose.
- 3 2 -
IV. THE DISTRICT COURT ABUSED ITS DISCRETION IN HARSHLY
SANCTIONING THE SCHOOL DISTRICT DURING THE TRIAL FOR NOT
DISCLOSING TRIAL WITNESSES IN A TIMELY MANNER, EVEN THOUGH
CMS DISCLOSED SUCH WITNESSES IN GOOD FAITH PRIOR TO THE
DEADLINE ESTABLISHED BY THE COURT’S PRETRIAL ORDER
Ignoring binding precedent, the court below concluded that CMS had acted
improperly when it failed to disclose trial witnesses prior to the date designated for their
disclosure in its own Pretrial Order. During the trial, on April 23, 1999, the court found that
CMS had interpreted incorrectly its September 18, 1998 Order as reaffirming the schedule
established in the Pretrial Order. Judge Potter improperly sanctioned the School District by
(1) recessing the trial for one week to permit Appellees -- but not the other parties -- to depose
fourteen additional fact witnesses; (2) ordering the Board to pay all Appellees’ costs associated
with the depositions, including court reporting costs and $33,500 for Appellees’ attorneys’ fees;
and (3) prohibiting two CMS witnesses from testifying at all. 12]
This Court has adopted a four-part test to determine the appropriateness of a
sanction under Fed. R. Civ. P. 37. Anderson, 155 F.3d at 504 (citing Wilson v. Volkswagen o f
Am., Inc., 561 F.2d 494, 505-06 (4th Cir. 1997)). Under this test, the Court must determine “(1)
whether the non-complying party acted in bad faith, (2) the amount of prejudice that
noncompliance caused the adversary, (3) the need for deterrence of the particular sort of
noncompliance, and (4) whether less drastic sanctions would have been effective.” Id. (citations
omitted). Analyzed under these guidelines, the lower court’s award of sanctions was a clear
abuse of discretion.
12! Further compounding this error, the court would not even allow a proffer of this
testimony from the Chairman and Chief Executive Officer of Bank of America, Hugh L. McColl,
Jr., and the Deputy Chief of Police of the Charlotte-Mecklenburg Police Department, Leonard R.
Jones. Tr. 6/17:92-93; Tr. 6/18:96-99. But see Fed. R. Evid. 103 (requiring proffer of testimony
to preserve issue of exclusion of testimony).
- 33 -
First, throughout discovery, CMS complied in good faith with the deadlines
provided in the Pretrial Order. That order required counsel to designate expert witnesses on
October 2, 1998 and to file a “witness list containing the name of every proposed witness” on the
first day of trial. Pretrial Order at 5. CMS believed this to be the applicable deadline and
complied with it.
The Federal Rules do not independently require the disclosure of the fact
witnesses a party intends to call at trial prior to the date designated in the governing pretrial
order. See Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d 14, 16 (4th Cir. 1962); Fed. R, Civ.
P. 26. Although Rule 26 requires that a party disclose the identity of expert witnesses, it only
requires pretrial disclosures of nonexpert witnesses as directed by the court’s Pretrial Order. See
Rule 26(a)(3). Moreover, it is inappropriate for parties to attempt to dodge this rule by seeking
to obtain at an earlier date information scheduled to be disclosed pursuant to a pre-trial
scheduling order. See B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. o f New York, Inc.,
168 F.R.D. 161, 166-167 (S.D.N.Y. 1996).
Therefore, in response to discovery requests filed in June 1998, CMS specifically
stated that it would “provide appropriate information concerning witnesses at the time and in the
manner specified by the Court for the designation of witnesses.” Defendants’ Response to
Plaintiffs’ First Set of Interrogatories at 17 (June 23, 1998). Unsatisfied with that response,
Appellees moved to compel discovery. In its response to that motion, CMS cited the schedule
established by the Pretrial Order and relied on the proposition that discovery requests may not be
used to circumvent such schedules. Defendants’ Opposition to Plaintiffs’ Motion to Compel at
11 (August 27, 1998). The district court denied Appellees’ motion, noting that “the deadline for
expert witness designation [in the Pretrial Order] is not until 2 October, 1998.” September 16,
1998 Order at 7. The court also stated that “CMS must supplement its responses, as it promised,
- 3 4 -
when such information becomes known.” Id. (emphasis added). Because (1) the court denied
the motion to compel; (2) the court specifically referenced its Pretrial Order as establishing the
schedule for disclosure of expert witnesses; and (3) CMS “had promised” to meet the timelines
in the Pretrial Order, CMS reasonably believed that the Pretrial Order continued to provide all of
the applicable deadlines. The School District was not unreasonable in failing to ascertain in
September 1998 that the district court apparently had intended language in its denial of
Appellee’s motion both to supersede its Pretrial Order and to overrule the principle that
discovery may not be used to alter such orders. But see April 23, 1999 Order at 2.
Second, Appellees were not prejudiced by the School District’s reliance on the
Pretrial Order. They knew beginning in June 1998 that CMS was relying on the schedule
established therein. The court’s September 16, 1998 order reinforced CMS’ position. 13/
Appellees thus can show no prejudice as a result of CMS’ reliance on the Pretrial Order, because
they had ample opportunity to raise this issue over the course of ten months. Indeed, they
waived any claim they may have had by waiting until April 1999, the literal eve of trial — long
after discovery had closed — to raise the issue. See, e.g., Brandt v. Vulcan, Inc., 30 F.3d 752, 756
(7th Cir. 1994) (holding that the plaintiffs delay in seeking sanctions precluded his motion).
13! Moreover, in a letter dated October 28, 1998, counsel for Capacchione suggested that it
was an “appropriate time” for the School District to disclose trial witnesses and requested that
CMS supplement its response to the relevant interrogatory within ten days. CMS, as the
defendant below, had not yet even identified its trial witnesses and believed it was not required
to identify them until the deadline in the Pretrial Order and so informed Appellees. Appellees
failed to raise the issue of trial witnesses at the November 20, 1998 hearing on another motion to
compel. On December 1, 1998, CMS again supplemented its interrogatory responses and
identified five outside experts and Superintendent Smith as potential trial witnesses, while
continuing to make clear that it would comply with the Pretrial Order regarding non-expert
witnesses. Defendants’ Third Amended and Supplemental Response and Objections to First Set
of Interrogatories by Plaintiff Capacchione at 28-29.
- 3 5 -
Third, because CMS acted in good faith, there was no need for the district court to
impose sanctions to deter any future noncompliance. Rule 37(c) authorizes sanctions for the
failure to disclose information pursuant to Rule 26(a) or 26(e)(1) only if the party acted “without
substantial justification,” but here CMS was substantially justified: Even if CMS had been
mistaken in its interpretation of the September 16, 1998 Order, it acted in good faith in relying
upon the Pretrial Order.
Finally, Judge Potter’s sanctions were fundamentally unfair under the
circumstances, and far less drastic relief could have cured the alleged harm. Granting Appellees
a one-week break in the trial to take more depositions, but denying CMS’ request to depose
Appellees’ additional fact witnesses, amounted to a one-sided amendment of the Pretrial Order,
which had strictly limited the number of permissible fact depositions to six per side, a limitation
which Appellees sought and obtained over CMS’ objection. See supra at 8. A far less drastic,
and much more equitable solution — which CMS proposed — would have been to postpone the
beginning of the trial for a short period of time to let each party depose additional fact witnesses
at its own expense. In addition, there certainly was no basis to exclude probative testimony from
witnesses unable to satisfy the court’s last-minute discovery requirements.
For these reasons, the district court’s award of sanctions should be reversed.
V. APPELLEES ARE NOT ENTITLED TO ATTORNEYS’ FEES
The district court compounded its errors by awarding attorneys’ fees to Appellees.
To recover attorneys’ fees, they must qualify as “prevailing parties].” 42 U.S.C. § 1988.
Because Appellees either did not or, as discussed above, should not prevail on their claims, they
are not entitled to an award of attorneys’ fees.
Capacchione does not qualify as a “prevailing party” under Section 1988 because
he did not obtain any relief which affects the behavior of the defendant toward him. Hewitt v.
- 3 6 -
Helms, 482 U.S. 755, 760-61 (1987). Specifically, a plaintiff who prevails must obtain an
enforceable judgment or settlement against the defendant which directly benefits the plaintiff.
Farrar v. Hobby, 506 U.S. 103, 111 (1992). Capacchione’s Amended Complaint contained five
claims which were resolved as follows:
• Declaratory relief under the Fourteenth Amendment, 42 U.S.C. §§ 1983 and
2000d - Dismissed with prejudice, December 22, 1998 Order;
• Injunctive relief under the Fourteenth Amendment and Title VI - Dismissed
with prejudice, id.;
• Declaration that CMS has attained unitary status - Dismissed with prejudice.
id.;
• Compensatory damages - Dismissed with prejudice, May 28, 1999 Order; and
• Damages related to magnet school admissions - Nominal damages awarded,
57 F. Supp.2d at 290.
Flaving been denied declaratory, injunctive and compensatory relief, the single
thread by which Capacchione’s status as a prevailing party hangs is the award of nominal
damages on his claim that his daughter was wrongly denied admission to a particular CMS
magnet school. Based on this award of $1.00, shared among the Appellees, the court ordered
CMS to pay Capacchione’s attorneys’ fees in the amount of $716,123.49. It was unreasonable
for the court to award Capacchione fees for time devoted to all of his original claims, where it
had dismissed four out of five of them and only awarded nominal damages on the other. See
Farrar, 506 U.S. at 115. (“When a plaintiff recovers only nominal damages because of his
failure to prove an essential element of his claim for monetary relief, the only reasonable fee is
usually no fee at all.”)
In addition, the court erred in awarding attorneys’ fees to Capacchione because he
was not entitled even to nominal damages. The Supreme Court long ago established and recently
reaffirmed that a school cannot be liable for an allegedly unlawful race-conscious admission
- 3 7 -
decision if the school demonstrates that it would have made the same decision absent
consideration of race. See Texas v. Lesage, 120 S. Ct. 467 (1999); Mt. Healthy City Sch. Dist.
Bd. o f Ed. v. Doyle, 429 U.S. 274 (1977). Where there is no claim for forward-looking relief (as
with Capacchione), the fact that the school would have made the same decision absent the
alleged discrimination precludes any finding of liability. Lesage, 120 S. Ct. at 468.
Just as in Lesage, it is undisputed that Capacchione’s daughter would not have
been admitted to the magnet program at Olde Providence Elementary, even if race had not been
considered: Her lottery number was simply too high. See Tr. 6/14:66-71 (Purser). The district
court acknowledged that Capacchione would not have been admitted even if race were not
considered, 57 F. Supp. 2d at 288 n.50, yet erroneously found CMS liable based on the irrelevant
conclusion that she retained standing. Whether she had standing, however, does not alter the
conclusion that CMS cannot be liable on the merits, where Cristina would not have been
admitted regardless of race. Lesage, 120 S.Ct. at 468. The court thus erred in awarding
Capacchione even nominal damages. Therefore, Capacchione has lost or should lose on the
merits of all of his claims and cannot be a “prevailing party” under Section 1988.
Unlike Capacchione, the Grant intervenors were granted declaratory and
injunctive relief related to the issues of unitary status and CMS’ magnet school admissions
policies. Therefore, the entitlement of the Grant intervenors to recover attorneys’ fees is tied
directly to the merits of those claims. Because, as discussed above, none of the Appellees should
have prevailed on those issues, the Grant intervenors are not entitled to recover any attorneys’
fees either.
- 3 8 -
CONCLUSION
For the foregoing reasons, the judgment of the district court should be reversed
and its injunction should be vacated.
Respectfully submitted,
John W. Borkowski
HOGAN & HARTSON L.L.P.
555 Thirteenth Street, N.W.
Washington, DC 20004
(202) 637-5741
James G. Middlebrooks
Irving M. Brenner
Amy Rickner Langdon
SMITH HELMS MULLISS & MOORE, L.L.P.
201 N. Tryon Street
Charlotte, NC 28202
(704)343-2051
Leslie Winner
General Counsel
Charlotte-Mecklenburg Board of Education
Post Office Box 30035
Charlotte, NC 28230-0035
(704) 343-6275
Counsel for Appellants
Charlotte-Mecklenburg Board of Education, et al.
- 3 9 -
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(c), counsel hereby certifies that the foregoing
brief contains 12,231 words. Counsel has relied on the word-count function of the word
processing system used to prepare this brief.
" " i x ' —> ✓ ✓ / X
/
f . t f i s
James Or. Middlebrooks
SMITH HELMS MULLISS & MOORE, L.L.P.
201 N. Tryon Street
Charlotte, NC 28202
(704) 343-2051
- 4 0 -
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief of Appellants Charlotte-
Mecklenburg Board of Education, Et Al. was
VIA HAND DELIVERY
John O. Pollard
Kevin V. Parsons
McGuire Woods Battle &
Boothe LLP
3700 NationsBank Plaza
101 South Tryon Street
Charlotte, North Carolina 28280
James E. Ferguson, II
S. Luke Largess
Ferguson, Stein, Wallas, Adkins,
Gresham & Sumter, P.A.
741 Kenilworth Avenue, Suite 300
Post Office Box 36486
Charlotte, North Carolina 28236
Thomas J. Ashcraft
212 South Tryon Street, Suite 465
Charlotte, North Carolina 28281
served upon the parties to this action as follows:
VIA REGULAR MAIL
William S. Helfand
Magenheim, Bateman, Robinson,
Wrotenberry & Helfand P.L.L.C.
3600 One Houston Center
1221 McKinney
Houston, Texas 77010
Gloria J. Browne
Elaine Jones
Norman J. Chachkin
NAACP Legal Defense & Educational
Fund, Inc.
99 Hudson Street
New York, New York 10013
A. Lee Parks
Kirwan, Parks, Chesin & Miller, P.C.
75 Fourteenth Street
2600 The Grand
Atlanta, Georgia 30309
This the 22nd day of February, 2000.
41
ADDENDUM
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 7 5 - ; l 2 o
Mjs. Louella Cuthbertson, for herself and
for her minor children, Shirley Jean
Cuthbertson, Roger Darin Cuthbertson and
Cathy Lyn Cuthbertson; Luther J. Reynolds,
for himself and for his minor children,
Barbara S. Reynolds, Elgin G. Reynolds,
and John E. Reynolds; Mrs. Virginia
Jackson, for herself and for her minor
children, Robert hackson, Charles T,
Jackson, Brenda J;...son, Robert nderson
and Gerald Anderson; Mrs. Charles R. Halms,
for herself and for her minor children,
Stewart La Don He la v s and Charles Derrick
Helms; Donlad Ray Jones, for himself and
for his minor child, Larry Vance Jones;
Mrs. David Moore, f o r h e r s e l f and f o r her
minor c h i l d Bruce Edward Moore: Mrs. Mary
Jo Helms, f o r h e r s e l f and fo r her minor
c h i l d E ar l Ray Helms, J r . ; E l l i o t t Danders,
f o r h i m s e l f and f o r h i s minor c h i l d , J e r r y
M i c h a e l ,S a n d e r s ; Mrs. Joe C. Helms, f o r
h e r s e l f and f o r her minor c h i l d , Dwight D.
Helms; 3en Thompson, f o r h i m s e l f and f o r
h i s minor c h i l d r e n , Dianne Thor ;son , Ben
F r a n k l in Thompson, and G l o r i s Jean
Thompson; Mrs. S a l l y I L ew is , f o r h e r s e l f
and f o r her minor c h i l d r e n , Deborah V.
Lewis and Karen L. Lewis; Robert 3 . Watson,
S r . , f o r h i m s e l f and f o r h i s minor c h i l d ,
Jeanne E l i z a b e t h Watson; Ben C. Crawford,
f o r h i m s e l f and f o r h i s minor c h i l d ,
C h r i s t i n a Crawford; Douglas L. S n tv a r , f o r
h i m s e l f and f o r h i s minor c h i l d , S h e l l y
S h iv a r ; Josep h Touch, f o r h i m s e l f and f o r
h i s minor c h i l d r e n , March Wayne ^ouch and
Trent Alan Touch; Mrs. L o i s C. Reeder f o r
h e r s e l f and f o r her minor c h i l d , C h r i s t i e
Anderson Roberson ,
< * ijy*.
c-;irl6tte:
A p p e l l a n t .
v .
C h a r lo t t e - M e c k le n b u r g Board o f E d u c a t io n ,
ADD 1
DN. C.
: o u ~ ~
1 n
r
A p p e l l e e .
PER CURIAM:
A p p e l l a n t s c h a l l e n g e th e c o n s t i t u t i o n a l i t y o f the
method by which th e C h a r lo t t e -M e ck len b u rg Board o f Educat ion
a s s i g n s s t u d e n t s to s c h o o l s , on the ground t h a t a s s ig n m e n ts
a re made on the b a s i s o f r a ce i n v i o l a t i o n o f the e q u a l p r o
t e c t i o n c l a u s e . The d i s t r i c t c o u r t d i s m is s e d the c o m p la in t
f o r f a i l u r e tD s t a t e a c la im upon which r e l i e f c o u ld be g r a n te d .
The Supreme Court has h e l d t h a t where a s c h o o l s y s t -
has v io la t ' e d th e e q u a l p r o t e c t i o n c l a u s e by m a i n t a i n i n g s e g r e
g a t e d s c h o o l s i n th e p a s t , th e ra ce o f s t u d e n t s may be c o n s i d e r e d
i n f o r m u l a t i n g a remedy fo r t h a t v i o l a t i o n . North C a r o l in a
S t a t e Board o f E d u c a t io n v . Swann, 402 U.S. 43, 46 (1971). The
Court has a l s o a c c e p t e d a d i s t r i c t c o u r t ' s f i n d i n g t h a t th e
C h a r lo t t e - M e c k le n b u r g Board o f E d u c a t io n m a in ta in e d s e g r e g a t e d
s c h o o l s a t one t i m e . See Swann v . C h a r lo t t e -M e ck len b u rg Board
o f E d u c a t io n , 402 U.S. 1 (1971). Under t h e s e d e c i s i o n s th e
B o a r d 's p r e s e n t u s e o f r a ce i n a s s i g n i n g some s t u d e n t s i s con 1-
s t i t u t i o n a l .
A c c o r d i n g l y , we d i s p e n s e w i t h o r a l argument and a f f i r m
t h e judgment o f th e d i s t r i c t c o u r t .
ADD 2
- 2 -
A ppeal from th e U n i ted S t a t e s D i s t r i c t Court f o r the Western
D i s t r i c t of. North C a r o l i n a , a t C h a r l o t t e . James B. McMillan,
D i s t r i c t Jud ge .
S u bm it ted March 2, 1976. Decided Mar. 18 , 1976
B e f o r e BUTZNER, RUSSELL and FIELD, C i r c u i t J u d g es .
(Whiteford S = Blarney, Attorney for Appellants; William W.
Sturges, Attorn „ lor Appellee.'1.
ADD 3