Belk v. Charlotte-Mecklenburg Board of Education Reply Brief of Appellants Charlotte-Mecklenburg Board of Education

    IN THE UNITED STATES 
COURT OF APPEALS FOR 

THE FOURTH CIRCUIT

Nos. 9 9 -2 3 8 9 , 9 9 -2 3 9 1 , 0 0 -1 0 9 8  and 0 0 -1 4 3 2

TERRY BELK, e t  ah ,
Plaintiffs-A ppellants,

and
WILLIAM CAPACCHIONE, MICHAEL P. GRANT, e t  ah ,  

Plaintiff-Intervenors-A ppellees,
v.

THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, e t  ah ,
De fe ndants-A ppellants.

WILLIAM CAPACCHIONE, MICHAEL GRANT, e t  ah ,  
Plaintiff-Intervenors-A ppellees, 

and
TERRY BELK, e t  ah ,
Plaintiffs-A ppellants,

v.
THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, e t  ah ,

D efendants-A ppellants.

Appeal From the U nited S ta te s  D istrict Court 
for th e  W estern D istrict o f  North Carolina

REPLY BRIEF OF APPELLANTS 
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, E T  AL.

Allen R. Snyder 
Maree Sneed 
John  W. Borkowski 
HOGAN 8& HARTSON L.L.P. 
555 Thirteenth Street, N.W. 
W ashington, DC 20004 
(202) 637-5741

Dated: May 11, 2000

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

Leslie W inner 
General Counsel 
Charlotte-M ecklenburg 
Board
of Education 
Post Office Box 30035 
Charlotte, NC 28230-0035 
(704) 343-6275

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



1

TABLE OF CONTENTS

Page

TABLE OF CONTENTS............................................................................................................. i

TABLE OF AUTHORITIES....................................................................................................... ii

ARGUMENT.................................................................................................................................1

I. APPELLEES’ BRIEF CONTAINS NUMEROUS MISREPRESENTATIONS
..................................................................................................................................................................2

II. CMS IS NOT UNITARY........................................................................................... 9

III. WHILE CMS WAS STILL OPERATING PURSUANT TO A
DESEGREGATION DECREE, ITS MAGNET PLAN WAS LAWFUL..... 10

IV. THE INJUNCTION WAS UNNECESSARY BECAUSE CMS DID NOT
PROPOSE TO CONTINUE ITS MAGNET PLAN...........................................19

V. THE INJUNCTION IS OVERBROAD............................................................... 22

VI. THE DISTRICT COURT ABUSED ITS DISCRETION IN HARSHLY
SANCTIONING THE SCHOOL DISTRICT.....................................................27

VII. APPELLEES ARE NOT ENTITLED TO ATTORNEYS’ F E E S .................... 28

CONCLUSION.......................................................................................................................... 32

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE



r

TABLE OF AUTHORITIES

Page
CASES:

Arthur v. Nyquist, 473 F.Supp. 830 (W.D.N.Y. 1979).........................................  4

Associated Gen. Contractors o f Cal. v. San Francisco Unified Sch. Dist.,
616 F.2d 1381 (9th Cir.), cert, denied, 449 U.S. 1061 (1980).....................  12,25

Brock u. R.J. Auto Parts and Service, Inc., 864 F.2d 677 (10th Cir.
1988)....................................................................................................................  27

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

Coalition for Econ. Equity v. NAACP, 122 F.3d 692 (9th Cir. 1997).................. 12,25

Columbus Bd. ofEduc. u. Penick, 443 U.S. 449 (1979)..................................................  25,26

Eisenberg v. Montgomery County Pub. Sch., 197 F.3d 123 (4th Cir.
1999), cert, denied, 120 S,Ct. 1420 (2000)..................................................  11,24

Estes u. Metropolitan Branches o f Dallas NAACP, 444 U.S. 437 (1980).........  26

Hampton u. Jefferson County Bd. ofEduc., 72 F.Supp. 2d 753 (W.D.
Ky. 1999).............................................................................................................  11,17,19

Ho v. San Francisco Unified Sch. Dist., 147 F.3d 854 (9th Cir. 1998)..............  11

Hunter v. Regents ofUniv. o f Cal., 190 F.3d 1061 (9th Cir. 1999)....................  27

Jackson v. Kroblin Refrigerated Xpress, 49 F.R.D. 134 (N.D. W.Va.
1970)....................................................................................................................  27

Jenkins v. Missouri, 942 F.2d 487, 493 (8th Cir.), cert, denied, 502
U.S. 967 (1991)...................................................................................................  15

Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 659
F.Supp. 363 (E.D.Ark. 1987)............................................................................  16

Martin v. Charlotte-Mecklenburg Bd. ofEduc., 475 F.Supp. 1318
(W.D.N.C. 1979), affid, 626 F.2d 1165 (4* Cir. 1980), cert, denied,
450 U.S. 1041 (1981)......................................................................................... 4,17,18

Martin u. Charlotte-Mecklenburg Bd. ofEduc., 626 F.2d 1165 (4th Cir.
1980)....................................................................................................................  24

Norfolk & W. Ry. Co. v. Brotherhood ofR.R. Signalmen, 164 F.3d 847
(4th Cir. 1998)......................................................................................................  19,21

ii



Paradise v. United States, 480 U.S. 149 (1986)..................................................  10

Regents ofUniv. o f Cal. v. Bakke, 438 U.S. 265 (1978) ....................................  26

S-l and S-2 v. State Bd. ofEduc., 21 F.3d 49 (4th Cir.), cert, denied,
513 U.S. 876 (1994)...........................................................................................  31

Shaw v. Hunt, 154 F.3d 161 (4* Cir. 1998)........................................................  30

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 311 F.Supp 265
(W.D.N.C. 1970)..................................................................................................  3,13,17

Swann u . Charlotte-Mecklenburg Bd. ofEduc., 402 U.S. 1 (1971)....................... passim

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 379 F.Supp. 1102
(W.D.N.C. 1974)..................................................................................................  14,16,18

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 501 F.2d 383 (4th Cir.
1974)..................................................................................................................... 14

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 67 F.R.D. 648
(W.D.N.C. 1975)..................................................................................................  7

Texas u. Lesage, 120 S.Ct. 467 (1999)................................................................................... 29,30

Tuttle u. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999), cert.
denied, 120 S.Ct. 1552 (2000)...........................................................................  7,23,26

United States v. Hunter, 459 F. 2d 205 (4th Cir.), cert denied, 409 U.S.
934 (1972) ...........................................................................................................  22

United States u. Pittman, 808 F.2d 385 (5* Cir. 1987) .............................................  4

United States u. State of Miss., 622 F.Supp. 622 (S.D.Miss. 1985), 
rev’d on other grounds sub nom. United States u. Pittman, 808 F.2d 
385 (5‘h Cir. 1987)..............................................................................................  4

United States v. Virginia, 518 U.S. 515 (1996) ...................................................... 22

Vaughns v. Board ofEduc. of Prince George’s County, 980 F.Supp. 834
(D.Md. 1997)........................................................................................................ 15

Vaughns v. Board ofEduc. of Prince George’s County, 758 F.2d 983
(4th Cir. 1985)......................................................................................................  18

Washington u. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982)............................  24,25,26

Wessman u. Gittens, 160 F.3d 790 (1st Cir. 1998).............................................. 11

Wilson u. Office o f Civilian Health, 65 F.3d 361 (4th Cir. 1995) ............................  7



Wilson v. Volkswagen o f Am., Inc., 561 F.2d 494 (4th Cir. 1997).....................  27

Wirtz u. B.A.C. Steel Prods. Inc., 312 F.2d 14 (4th Cir. 1963)............................  27

IV



ARGUMENT

The C harlotte-M ecklenburg Board of E ducation  (“CMS” or the  “School 

D istrict”) is no t yet un ita ry  because it h a s  ne ither fully com plied w ith the 

desegregation orders nor rem edied the  vestiges of segregation to the  ex ten t 

practicable. If CMS were un itary , full local control shou ld  be re tu rn e d  to the  

elected School Board, and  Judge  Potter’s in junction  im properly im pinges on 

th a t au thority .

Try as they might, Appellees can n o t tw ist th is  case into a  story of the 

collusive u se  of d iscrim inatory racial q u o tas  in the  face of increasing  residential 

segregation caused  by dem ographic change. Therefore, to defend the 

erroneous decision below, they d isregard  and  d isto rt the record  an d  controlling 

au thority .

The h e a rt of the ac tual d ispu te  ab o u t u n ita ry  s ta tu s  in th is  case is 

w hether the  perpetuation  of racial inequities, m any con trary  to explicit cou rt 

orders, is allowed. As the Sw ann A ppellants m ake clear, viewed u n d e r the 

proper legal s tan d ard , the h istorical racial u n fa irn ess  in a re a s  su c h  as s tu d en t 

assignm ent, the  construction  of new facilities, and  the allocation of educational 

opportun ities prevents the School D istrict from yet being un ita ry . See  Reply 

Brief of Plaintiffs-Appellants (filed April 15, 2000) (“Sw ann  Reply B rief’)

The o ther m ajor issue in th is case  is the im propriety of the  lower c o u rt’s 

sweeping in junction, which is not only baseless, b u t also u n n ecessa ry  and  

overbroad: CMS did not violate the C onstitu tion; it did no t propose to continue

1



the m agnet adm issions procedures rejected by the  d istric t court; an d  it should  

no t be prohibited  from considering any conceivable, narrow ly tailored, race ­

conscious m eans of p u rsu ing  compelling educational in te res ts  in the  fu ture.

For these  reasons and  those se t forth in the  Brief of A ppellants 

C harlotte-M ecklenburg Board of E ducation , et al. (filed F eb ruary  22, 2000) 

(“CMS B rief’), the Brief of Plaintiffs-A ppellants (filed F ebruary  1, 2000) (“Sw ann  

B rief’), and  the Sw ann  Reply Brief, the  decision below shou ld  be reversed.

I. APPELLEES’ BRIEF CONTAINS NUMEROUS MISREPRESENTATIONS

Appellees repeatedly m isrep resen t the  record below, relevan t cou rt 

decisions, and  even CMS’ plainly a rticu la ted  positions. While space 

co n stra in ts  m ake it im possible to correct all of the d isto rtions in A ppellees’ 

136-page brief, some of the m ost obvious an d  ou trageous are  noted  here.

F irst, Appellees m ake false factual rep resen ta tions th a t  are  no t 

supported  by the record, and  often they provide no record c ita tions a t all. On 

the first page of their brief, Appellees incorrectly  claim  th a t “several CMS 

experts and  its form er su p erin ten d en t effectively concluded the  school system  

w as u n ita ry  m any years before th is litigation e n su ed .” A ppellees’ Brief a t  3.

The only “CMS expert” to whom  Appellees d irect the C ourt is Dr. M ichael 

Stolee. Stolee, however, issued  a  report in 1992 th a t noted  su b s ta n tia l racial 

inequities in CMS’ s tu d en t assignm en t p rac tices a t th a t tim e. See  DX 108 a t 3-

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9. \ /  Moreover, Dr. Stolee testified w ithout con trad iction  th a t  he never 

conducted  a  un ita ry  s ta tu s  analysis in CMS. Tr. 5 /2 5 :8 4 -8 6  (Stolee). As the 

d istric t co u rt found, Stolee also recognized th a t  CMS w as still u n d e r court 

order an d  recom m ended th a t  the School D istrict seek jud ic ia l approval of any 

changes to its s tu d en t assignm en t plan. 57 F. Supp. 2d 228, 239 (W.D.N.C. 

1999) (citing DX 108 a t 9). U ndisputed  evidence show ed th a t  Stolee also 

inform ed th en -S uperin tenden t Jo h n  M urphy th a t CMS had  racially identifiable 

faculties, DX 71; Tr. 5 /2 5 :8 6 -8 8  (Stolee), con trary  to explicit co u rt orders. 

Sw ann, 311 F.Supp. 265, 268-69 (W.D.N.C. 1970). In addition , Appellees rely 

on the ir w itness Dr. M urphy’s testim ony th a t he believed CMS to be un itary , 

b u t it is u n d isp u ted  th a t M urphy never even asked  Dr. Stolee or anyone else to 

do a  u n ita ry  s ta tu s  analysis. Tr. 4 /2 6 :2 2 7  (Murphy); Post-Trial Brief a t 

7 6 n .4 1 . He never p resen ted  the u n ita ry  s ta tu s  issue  to the  Board. Tr. 

4 /2 6 :3 1 , 227 (Murphy). He w as shocked by racial inequities in CMS, id. a t 92- 

94, and  conceded th a t more could be done to correct the  rem ain ing  racial 

d isparities. Tr. 4 /2 6 :2 2 8  (Murphy). See also  Tr. 5 /3 :1 8 3  (Schiller).

One of the principal concerns noted in Dr. Stolee’s repo rt w as the 

inequitable tran spo rta tion  bu rden  on b lack s tu d en ts . DX 108 a t  3-6.

Appellees sim ply m isrepresen t the facts in a ttem pting  to suggest th a t  th is 

problem  never existed. See  Appellees’ Brief a t 21. Despite the  d istric t c o u rt’s

1 /  C itations to exhibits, hearing  tran scrip ts , and  pleadings follow the sam e 
form at u sed  in CMS’ opening brief. See  CMS Brief a t 5-7 n. 1-3.

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findings to the  contrary  in 1979, 2 /  an d  S tolee’s observations in 1992, see  DX 

108 a t 3-6, Appellees brazenly claim  th a t the  tran sp o rta tio n  b u rd en  on black 

an d  w hite s tu d e n ts  “from 1974 to 1992” w as “substan tia lly  equal.” Appellees’ 

Brief a t 21. The only alleged suppo rt for th is  p a te n t falsehood is the vague 

asse rtio n  by a single w itness th a t “white an d  black s tu d e n ts  did sh a re  th a t 

b u rd en .” Tr. 4 /2 2 :3 6  (Bynum). However, m any  w itnesses testified w ithout 

contrad iction  th a t the bu rden  w as no t sh a red  a t all fairly. See  Proposed 

F indings a t 29-34, 40-51. Appellees’ trea tm en t of con tem porary  

tran sp o rta tio n  sta tis tics is even more d isingenuous. They claim  th a t “w hites 

generally travel . . .  in higher num bers th a n  b lack s tu d e n ts  for desegregation.” 

A ppellees’ Brief a t 59. Rem arkably, they cite in su p p o rt of th is  claim  the 

c o u rt’s findings th a t 58% of s tu d en ts  tran sp o rted  for desegregation pu rposes in 

1998-99 were black. 57 F. Supp. 2d a t 253. The m agnitude of Appellees’ 

d isto rtion  of the  record here is amplified by the  fact th a t even the  d istric t 

c o u rt’s 58% figure vastly u n d e rs ta te s  the  d isproportionate  b u rd en  on black 

s tu d en ts . T hat percentage im properly includes voluntary  tran sfe rs  u n d er the 

m agnet program  (which are d isproportionately  white). 3 /  More th a n  80% of

2 /  Martin v. Charlotte-Mecklenburg Board o f  Education, 475 F .Supp. 1318, 
1338-40 (W.D.N.C. 1979), a ff’d, 626 F.2d 1165 (4th Cir. 1980), cert, denied, 450 
U.S. 1041 (1981)

3 /  See United S ta tes v. State o f M ississippi, 622 F .Supp. 622, 627 (S.D.Miss. 
1985) (voluntary transfers “canno t be considered  a  b u rd en ”), reu’d on other 
grounds su b  nom. United S ta tes v. Pittman, 808 F.2d 385 (5th Cir. 1987); Arthur 
v. Nyquist, 473 F.Supp. 830, 840 (W.D.N.Y. 1979) (burdens are  inequitable 
w hen the  busing  was genuinely voluntary  for w hites b u t no t for blacks).

-4-



CMS s tu d e n ts  mandatorily  tran sp o rted  in p a rt for desegregation pu rposes in 

1998-99 were black. See  Post-Trial Brief a t 15-16.

W ithout any record support, Appellees also claim  th a t CMS h as  “reflied] 

increasingly on stric t racial q u o tas ,” p u rsu e d  a  “perm anen t, ever-accelerating 

racial quo ta  system ” and  “continually  ex p an d ed ] [the] role race played in 

s tu d e n t assignm en t.” Appellees’ Brief a t  9. To the  con trary , the  expansion  of 

the m agnet p lan  in 1992 moved CMS away from m andato ry  a ssignm en ts for 

desegregation an d  tow ard a  m ore volun tary  approach . Moreover, as d iscussed  

below, the  m an n e r in w hich race w as considered  in m aking assignm en ts to 

m agnet schools w as the sam e in the  expanded  program  as  in 1970s and  1980s. 

See infra Section IV. U nfortunately, because  key com ponen ts of the  p lan 

developed u n d e r Dr. M urphy were never im plem ented, see, e.g., Post-Trial Brief 

a t 17-19 (failure to co n stru c t m idpoint schools), CMS actually  operated  a 

growing n u m b er of racially identifiable schools in the  1990s. Id. a t  12-13. 

B ecause the  Sw ann  Plaintiffs foresaw su ch  adverse consequences, they actively 

opposed the  expanded m agnet plan. See Sw ann  Reply Brief a t 26-28.

Therefore, it is ironic th a t Appellees g roundlessly  claim  th a t there  w as 

“collusion” betw een CMS and  the S w a n n  Plaintiffs. See  A ppellees’ Brief a t 3.

Appellees also m ake the  false asse rtion  th a t “the  only cau se  for any 

school’s racial im balance w as dem ographic change .” A ppellees’ Brief a t 11. To 

the contrary , the dem ographic changes in C harlo tte  have m ade its  residential 

population more racially integrated, 57 F .Supp. 2d a t 237, an d  ind ispu tab ly  

m ade desegregation easier. Post-Trial Brief a t 26-30; Tr. 6 /  11:5 (Lord); Tr.

-5-



4 /1 9 :1 3 7 -3 8 , 226 (Clark). Moreover, the  record show s th a t  CMS’ actions and  

inactions were m ajor con tribu to rs to the  growing n u m b er of racially  identifiable 

schools in the  early 1990s. See, e.g., Post-Trial Brief a t 28-30; Proposed 

Findings a t UK 91-104; Sw ann  Reply Brief a t  17-20. The racial im balances in 

m any schools were caused  in p a rt by s tu d e n t a ssignm en t changes su ch  a s  (1) 

assigning  additional predom inantly  b lack  satellites to schools th a t  were already 

racially balanced, causing  them  to becom e im balanced; (2) estab lish ing  “feeder” 

p a tte rn s  for m iddle and  high schools th a t  grouped together racially  im balanced 

elem entary  schools, creating  racially im balanced  secondary  schools; and  (3) 

depairing schools w ithout im plem enting any  alternative  stra tegy  to prevent 

their resegregation. Tr. 6 /9 :1 1 1 -1 3 , 135-39 (Foster); Tr. 6 /1 1 :4 9 -5 2 , 131-32 

(Lord). As a  resu lt, a s  Appellees’ dem ographer adm itted , som e schools becam e 

predom inantly  “black w hen the neighborhoods were still b a lan ced .” Tr. 

4 /1 9 :2 1 8  (Clark). In addition, o ther schools th a t have alw ays been located in 

relatively segregated neighborhoods (areas w hich did no t experience significant 

change in the ir racial dem ographics) h ad  racially balanced  s tu d e n t enrollm ents 

in the 1970s an d  1980s b u t were allowed to becom e racially identifiable in the 

1990s. See, e.g., Tr. 6 /9 :1 0 6 , 135-39 (Foster); Tr. 6 /1 1 :8 5 -8 6  (Lord); Proposed 

Findings 92-93, 103.

Second, Appellees are willing no t only to d isto rt the record  below b u t also 

to m isrep resen t controlling legal au tho rities. For exam ple, Appellees claim  th a t 

the “1970 order w as the only desegregation decree ever issued  in the  Sw ann  

case .” Appellees’ Brief a t 7. B ut the  co u rt issued  n u m ero u s o th er o rders and

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em phasized in 1975 th a t there  were “m any o rders of con tinu ing  effect.” 67 

F.R.D. 648, 649 (W.D.N.C. 1975). See also infra Section III.

Appellees also a ttem p t to confuse the  s ta n d a rd  of review to be applied in 

analyzing the  d istric t c o u rt’s in junction , suggesting th a t th e  “abuse-of- 

d iscretion” s tan d ard  som ehow lessens de  novo review of legal issu e s  an d  differs 

in pe rm an en t an d  tem porary  in junction  contexts. See  A ppellees’ Brief a t 40- 

41. In fact, th is  C ourt h as clearly explained th a t “[w]hat we m ean  w hen we say 

th a t a  co u rt abused  its discretion, is m erely th a t  we th in k  th a t  [it] m ade a  

m istake. In m aking th a t assessm en t, we review the d is tric t c o u rt’s factual 

findings for clear error and  its legal conclusions de novo.” Wilson v. Office o f  

Civilian Health, 65 F.3d 361, 363-64 (4th Cir. 1995) (in ternal c ita tions omitted). 

Moreover, while Appellees m istakenly  claim  th is  C ourt ab an d o n ed  th is  

s tan d ard  in Tuttle v. Arlington County School Board, 195 F .3d 698 (4th Cir. 

1999), cert, denied, 120 S.Ct. 1552 (2000), see  Appellees’ Brief a t  41, the C ourt 

in fact se t aside the  in junction issued  there.

Third, Appellees not only tw ist the  facts and  the  law, b u t also 

m isrep resen t the School D istrict’s position on key issues. Appellees, for 

exam ple, a sse r t th a t CMS “repeatedly acknow ledged a t trial th a t  [its] schools 

are  racially balanced to the fullest ex ten t p rac ticab le ,” A ppellees’ Brief a t 49-50, 

b u t the  only citation offered in suppo rt of th is  rid iculous proposition  is a  single 

docum ent offered by Appellees indicating th a t CMS’ 1998-99 s tu d e n t 

assignm en t p lan  balanced four competing considerations (diversity, stability, 

utilization, and  proximity) “to the ex ten t p rac ticab le ,” P laintiff-Intervenors’

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Index a t 124-25 (filed Ju ly  20, 1999) (“P-I Index”) (citing PIX 17). CMS’ 

superin tenden t, Board chair, staff and  experts all testified w ithou t equivocation 

th a t m ore could practicably be done to desegregate its schools. See, e.g., CMS 

Brief a t 13-15; Post-Trial Brief a t 31-33; DX1.

Appellees also m ake inconsis ten t an d  incorrect c laim s bo th  th a t  CMS 

does no t w an t to be un itary , see  A ppellees’ Brief a t 3, an d  th a t  the  School 

D istrict does no t con test u n ita ry  s ta tu s  on appeal. Id. a t  42. In fact, CMS 

developed a  p lan  to achieve u n ita ry  s ta tu s  in a  reasonable  tim e, see, e.g., DX 1, 

and  plainly h a s  recognized th a t it h a s  no t yet e lim inated the  vestiges of 

segregation to the  extent practicable. See  CMS Brief a t 13-17.

Finally, Appellees claim  incorrectly th a t  “CMS ap p aren tly  concedes th a t 

[the d istric t c o u rt’s] in junction  w as proper, a ssu m in g  its finding of p a s t equal 

protection violations w as proper.” Appellees’ Brief a t  98. This rem arkable  

assertion  ignores the School D istrict’s com pelling a rg u m en ts  th a t, even if CMS’ 

m agnet school p ractices had  been unco n stitu tio n a l, the in junc tion  nevertheless 

would have been unnecessa ry  — because  CMS did not propose to con tinue  its 

m agnet p lan  — and  overbroad — because  it p rohib ited  any fu tu re  narrow ly- 

tailored, race-conscious actions by the  Board. See  CMS Brief a t  26-32; Accord 

infra a t Sections IV-V.

In short, like a  funhouse m irror, the  A ppellees’ Brief c an n o t be relied 

upon  for an  accu ra te  reflection of the record below, the governing law, or the 

issues a t stake  in th is case.

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II. CMS IS NOT UNITARY

As the Sw ann  A ppellants ably dem onstra te , Appellees can n o t 

successfully  defend the d istric t c o u rt’s erroneous ruling th a t CMS is unitary . 

See  Sw ann Reply Brief. The principal reaso n s th a t  the School D istrict is not 

un ita ry  relate to the persisten t inequities flowing from the failure to comply 

fully w ith the  Sw ann  orders. See  Post-Trial Brief a t 11-73. For exam ple, m any 

of the sam e issues noted by the d istric t co u rt in Martin still have no t been dealt 

with adequately. Id. a t 6-26. The cu rre n t School D istrict leadersh ip , however, 

is com m itted to addressing  these  problem s, including  the  failure to co n stru c t 

new facilities where they can  readily serve bo th  races an d  the  rela ted  inequities 

in tran sp o rta tio n  bu rdens and  d isparities in facilities quality. Id. a t  31-33, 50. 

CMS is also reform ing o ther practices, su ch  a s  tracking, th a t  con tribu te  to the 

pe rs is ten t achievem ent gap betw een its b lack an d  white s tu d en ts . Id. a t 39, 

69-71. Moreover, these issues are  integrally in terre la ted  w ith s tu d e n t 

assignm ent, because a re tu rn  to racially isolated schools w ould only exacerbate 

the p ers is ten t racial inequities. Id. a t  71-74. Finally, the dem ographic changes 

th a t have m ade C harlo tte’s residential population  larger an d  more racially 

integrated  have nothing a t all to do w ith m ost of these  issu es  an d  ru n  counter 

to the  tren d  of increasing racial im balance in s tu d e n t enrollm ents. Id. a t  26- 

30. Therefore, the d istric t court erred in concluding th a t the  School D istrict is 

un itary . 4 /

4 /  Ju d g e  Potter’s conclusions w ith respec t to CMS’ experts Dr. William
Trent, Dr. Robert Peterkin, Dr. Dwayne G ardner, Dr. Gordon Foster and
Dr. Rosylyn Mickelson are clearly erroneous. A fair reading of their reports and

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III. WHILE CMS WAS STILL OPERATING PURSUANT TO A
DESEGREGATION DECREE, ITS MAGNET PLAN WAS LAWFUL

The d istric t court erred in applying stric t sc ru tiny  to the  School D istric t’s 

good faith  effort to comply w ith the Stuann  o rders th rough  the  operation  of 

m agnet schools and  in aw arding dam ages an d  injunctive relief on th a t  basis. 

Appellees seek to defend the d istric t c o u rt’s analysis of CMS’ m agnet school 

adm issions p ractices by claim ing on the one h an d  th a t s tric t sc ru tin y  applies 

to efforts to im plem ent court-ordered  desegregation requ irem en ts , see  

Appellees’ Brief a t 81-83, 88-89, and  on the  o ther h an d  th a t  CMS’ m agnet 

schools were no t a  good faith effort to comply w ith the  S w ann  o rders. Id. a t 

84-88, 89-91. Their first a rgum ent is incorrect as a m atte r of law, an d  their 

second argum en t res ts  on m isrep resen ta tions of bo th  the  S w a n n  o rders and  

the record below.

First, Appellees m istakenly claim  th a t the  Suprem e C ourt in Paradise v. 

United States, 480 U.S. 149 (1986), overruled decades of school desegregation 

ju risp ru d en ce , see  CMS Brief a t 17-20, and  held th a t stric t sc ru tin y  applies to 

court-ordered  racial classifications. Appellees’ Brief a t 82, 88. The C ourt did 

not so hold, expressly reserving th a t issue, 480 U.S. a t 167, a n d  it h a s  never 

held th a t stric t scru tiny  applies to desegregation rem edies. Indeed, as Ju s tice

testim ony does no t suppo rt the d istric t c o u rt’s conclusions, b u t  d em onstra tes 
the lengths to which the court w ent in a ttem pting  to escape the  weight of the 
evidence. See  DX 10, DX 11, DX 6, DX 7, DX 13, DX 13A, DX 5 an d  DX 8.
The court also clearly erred in u tterly  ignoring the testim ony an d  expert report 
of Dr. D ennis Lord, DX 12, which d ism antles the  dem ographic analysis of 
Dr. William Clark, on which Appellees and  the  co u rt below erroneously  relied. 
See, e.g., Proposed Findings a t ^ 9 7 -1 0 4 .

- 10 -



Stevens no ted  in his concurring  opinion in Paradise, “[t]he cen tra l them e” of 

the C ourt’s opinion in Sw ann  w as “th a t race-conscious rem edies are  obviously 

required  to rem edy racially d iscrim inatory  actions by the  S ta te .” Id. a t 189 

(citing Sw ann, 402 U.S. 1 (1971)). Therefore, d istric t co u rts  have “broad and  

flexible au tho rity  to rem edy the w rongs resu lting  from [such] v io la tion^].” Id. 

a t  190. Today, the governing s tan d ard  in school desegregation cases rem ains 

clear: W hen a  school board ac ts  p u rsu a n t to a  con tinu ing  desegregation 

decree, it “possesses considerable discretion to enac t s tu d e n t assignm en t 

policies to m eet its continuing  obligations u n d e r the  D ecree.” H am pton v. 

Jefferson County Bd. o fE duc., 72 F .Supp. 2d 753, 777 (W.D. Ky. 1999). See  

also CMS Brief a t 17-19.

Appellees also canno t rely on th is C o u rt’s decisions in Tuttle and  

Eisenberg  to suppo rt the rem arkable proposition th a t stric t sc ru tiny  should  

apply to court-ordered  desegregation rem edies. See  A ppellees’ Brief a t 82. 

Neither of those cases involved the im plem entation  of desegregation rem edies, 

because  n e ither school system  w as u n d e r co u rt order. O ther cases cited by the 

Appellees, su ch  as W essm an v. Gittens, 160 F.3d 790 (1st Cir. 1998), are 

inapposite  for the sam e reason.

Even the  Ninth C ircuit’s anom alous decision in Ho u. San  Francisco 

Unified School District, 147 F.3d 854 (9th Cir. 1998), does no t su p p o rt the 

application  of stric t scru tiny  here. In Ho, the  school d istric t w as operating 

p u rsu a n t to a  consen t decree ra th e r th a n  a  rem edial order en tered  after 

findings of liability. Moreover, the panel in Ho ignored the N inth C ircu it’s prior

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teach ing  th a t “[u]nlike racial preference program s, [even voluntary] school 

desegregation program s are not inherently  invidious, do no t w ork wholly to the 

benefit of certain  m em bers of one group and  correspondingly to the  harm  of 

certain  m em bers of a n o th e r group, and  do no t deprive citizens of righ ts .” 

Coalition fo r  Econ. Equity v. NAACP, 122 F.3d 692, 708 (9th Cir. 1997) (quoting 

A ssociated Gen. Contractors o f Cal. v. San  Francisco Unified Sch. Dist., 616 F.2d 

1381, 1387 (9th Cir.), cert, denied, 449 U.S. 1061 (1980)). B ecause of th is 

fundam en ta l difference betw een school desegregation and  o th er racial 

classifications and  because of the longstanding  trad ition  of local control of 

public education , the Suprem e C ourt h a s  never abandoned  its  p recedents 

requiring  deference to school au tho rities in im plem enting court-o rdered  

desegregation rem edies. See  CMS Brief a t 17-21.

A pparently recognizing the unp receden ted  n a tu re  of the  d istric t c o u rt’s 

application of stric t scru tiny  to the School B oard’s efforts to com ply w ith court- 

ordered desegregation requirem ents, Appellees now m ake the  baseless claim  

th a t CMS’ m agnet school program  “w as no t designed to erad ica te  vestiges of 

segregation.” Appellees’ Brief a t 89. The d istric t cou rt itself, however, found 

th a t in im plem enting its m agnet p rocedures “the school system  w as acting  to 

fu rth er a  compelling governm ental in terest, i.e., rem edying th e  effects of p a s t 

racial d iscrim ination .” Capacchione, 57 F .S upp  2d a t 289. Moreover, before 

the decision below, Appellees them selves adm itted  th a t the m agnet p lan w as 

in tended  “to comply with the C ourt’s O rder.” P-I Index a t ^ 98 (citing

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M urphy). 5 /  Appellees’ s tu d e n t assignm en t expert also testified on direct 

exam ination  th a t “race is an  integral p a rt . . .  of m agnet schools, of runn ing  

lotteries for m agnet schools . . . because th a t ’s the only w a y  you can meet the 

court order.” Tr. 4 /2 9 :2 3  (Armor) (em phasis added). See also  Tr. 4 /1 9 :6 8 -6 9  

(Clark); CMS Brief a t 20-21. Therefore, the  frivolous allegation th a t “no o ther 

school system  in history h as  been found to have m an ipu la ted  desegregation 

orders in a s  b la tan t a  m an n er,” Appellees’ Brief a t  92, is a s  d isingenuous as it 

is incorrect.

In th is  C ourt, Appellees sim ply ignore the  Sw ann  o rders upon  which 

their own expert relied a t trial. For exam ple, while Appellees quote the d istric t 

c o u rt’s 1969 s ta tem en t th a t it did “no t feel like it h a s  the  pow er” to order every 

school to have a  70-30 black-w hite ratio, Appellees’ Brief a t 7 n .7 , they fail to 

acknowledge th a t the cou rt subsequen tly  ordered th a t “efforts shou ld  be m ade 

to reach  a  71-29 ratio . . .  so th a t there  will be no basis for con tend ing  th a t  one 

school is racially different from the o thers .” 311 F .Supp. a t  267-68. In a  later 

order, the  co u rt directed CMS to en su re  th a t “pupils of all g rades be assigned 

in su ch  a  way th a t as nearly as practicable the various schools at various grade  

levels have about the sam e proportion o f black and w hite s tu d e n ts .” Id. a t 268 

(em phasis added). This order was affirm ed  by the Suprem e C ourt, which 

approved the  “use  m ade of m athem atical ra tio s” as “a  s ta rtin g  po in t” for 

s tu d e n t assignm en ts. 402 U.S. a t 25. This requ irem ent clearly applies to

5 /  See also id. a t 107 (citing Schiller testim ony); Tr. 5 /3 :2 1  (Schiller) (new 
plan “had  the sam e objectives as the one it w as going to replace, m ain tain ing

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m agnet schools: This C ourt itself h a s  recognized th a t in sim ilar program s w ith 

lim ited capacity, such  as program s for “exceptionally ta len ted  ch ild ren ,” th is 

directive m ay require adm issions p rocedures th a t “necessarily  exclude[ ] 

some . . . s tu d e n ts .” 501 F.2d 383, 384 (4th Cir. 1974) (affirming in junction  

aga in st s ta te  court action by white p a ren ts  challenging adm iss ions 

procedures).

In 1974, the d istric t cou rt reaffirm ed its earlier s tu d e n t a ssig n m en t 

orders, 379 F.Supp. 1102, 1105, and  approved a  new p lan  th a t  included 

“optional” or m agnet schools. Id. a t 1103. This order expressly  required  CMS 

to en su re  th a t m agnet schools have “ab o u t or above 20% black  s tu d e n ts ,” id. a t 

1104, th a t  is, no less th an  15 percentage po in ts below 35% black, the 

districtw ide enrollm ent a t the time. The cou rt also ordered CMS to m onitor 

and  a d ju s t school assignm ents to p revent adverse tren d s  in th e ir “racial m ake­

u p .” Id. a t 1104, 1107.

The m anner in w hich CMS adm itted  s tu d e n ts  to its  m agnet schools w as 

fully con sis ten t with these o rders and  not rigid or inflexible. J u s t  a s the 

Sw ann  o rders required, the School D istrict u sed  the  districtw ide w hite-black 

ratio  of 60-40 as “a sta rting  poin t,” 402 U.S. a t  25, and  th en  im plem ented 

rec ru itm en t and  adm issions p rocedures to try  to m eet th a t  goal. See  CMS 

Brief a t 20. Significant variance from th a t  initial goal could an d  did occur 

because, inter alia, different proportions of w hite an d  b lack  s tu d e n ts  reenrolled 

each year, different num bers of white and  b lack s tu d e n ts  h ad  siblings who

the court o rder”).

-14-



were autom atically  adm itted , and  different n u m b ers  of w hite an d  black 

s tu d e n ts  applied. Tr. 4 /2 8 :4 6 -4 8  (Wells). In  1998-99, no t a  single m agnet 

school ended u p  w ith an  enrollm ent of 6 0 /4 0 : R ather, the  b lack  percentage 

varied from 7% to 82%. Id. a t 37-38.

This m agnet adm issions process w as co n sis ten t over tim e, an d  the court 

below clearly erred in concluding, w ithout any  supporting  evidence, th a t “the 

way th a t CMS’ m agnet program  u se s  race in its adm issions p rocess is 

significantly different from any assignm en t policy ordered or approved of in 

Sw ann.” 57 F.Supp. 2d a t 286. First, the  record m akes c lear th a t  “optional” 

schools an d  “m agnet” schools are  the sam e thing. See  CMS Brief a t  21. For 

exam ple, a  CMS letter to the D epartm ent of E ducation , from  w hich Appellees 

repeatedly  offer selective quotations, see, e.g., Appellees’ Brief a t  17, 84 n .44 , 

m akes clear th a t in 1974 the  court approved “optional schools (including w hat 

we now refer to as ‘m agnet schools’).” See  PIX 4 a t CM 209603. Indeed, even 

Appellee G ran t adm itted  th a t in 1986 h is son  h ad  a ttended  a  m agnet school, 

and  “they  called them  optional” schools a t  the  time. Tr. 4 /2 3 :5 2 , 54.

The m agnet schools of the 1970s an d  1980s also adm itted  s tu d e n ts  

th rough  race-conscious lotteries of the type u sed  by CMS. 6 /  The court

6 /  Moreover, racial guidelines of the  kind  u sed  by CMS are  ind ispu tab ly  
com m onplace for m agnet schools in school system s u n d e r c o u rt order. See  
CMS Brief a t 20-21. See also Jenk ins v. Missouri, 942 F .2d 487, 493 (8th Cir.) 
(sum m arily rejecting argum ents aga in st racial quo tas in m agnet school 
adm issions), cert, denied, 502 U.S. 967 (1991); Vaughns v. Board o f Educ. o f  
Prince George’s  County, 980 F.Supp. 834, 838 (D.Md. 1997) (“G uidelines 
aim ing a t racial balance have had  to be adopted  because, in th e ir absence, 
applications could well be skewed in favor of one race or an o th e r and  the

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approved a p lan th a t would m ake optional schools a t  least 20%  black, 379 

F .Supp. a t 1104, and  also would designate the  “m axim um  num bers o f s tu d en ts  

th a t m ay be draw n from each o ther school a tten d an ce  area , by race. ” Id. a t 

1108 (em phasis added). In 1975, CMS reported  to the  co u rt th a t  it was 

controlling not ju s t  adm issions b u t also the ac tu a l en ro llm ents a t  optional 

schools w ithin a p lus-o r-m inus 8% range, u sing  a  race-conscious lottery. PIX 

24 a t CM 072967-75. D uring the 1980s, the School D istric t’s policy for optional 

schools provided th a t “[a] lottery will be conducted  by grade of all b lack and  

white s tu d e n ts  separately  u sing  the system w ide average racial ra tio .” DX 204 

a t 7. Form er S uperin tenden t M urphy, testifying for the Appellees, also 

confirm ed th a t in 1991 the optional or m agnet p rogram s “were operating  on the 

basis of a  lottery with two lists, broken down racially” and  u sed  “a  6 0 /4 0  white 

to b lack m ix,” and  these “sam e guidelines” were con tinued  in the  1992 m agnet 

plan. Tr. 4 /2 6 :1 4 7 -4 8  (Murphy). T hus the  record m akes c lear tha t: (1) the 

cou rt ordered CMS to consider race in s tu d e n t assignm en t for desegregation 

purposes; (2) the d istric t court approved m agnet schools in 1974 w ith racial 

controls on adm issions; (3) the court w as inform ed of the basic  lottery 

procedures in 1975; and (4) th a t process did no t change significantly from 

1974 un til 1999. 7 /

concept of the m agnet would be defeated."); Little Rock Sch. Dist. v. Pulaski 
County Special Sch. Dist. No. 1, 659 F .Supp. 363, 365, 371 (E.D.Ark. 1987)
("[a] 11 m agnet schools shall have a  s tu d e n t population  w hich is fifty percen t 
(50%) b lack and  fifty percen t (50%) non-black").

7 /  Im m ediately following the decision below, CMS im plem ented race-blind 
p rocedures for both m agnet school adm issions and  s tu d e n t tran sfe rs , and

-16-



In ad ju sting  the adm issions target over tim e so th a t  “a s  nearly  as 

p racticab le” its m agnets would have “the sam e proportion of b lack  and  white 

s tu d e n ts ,” 311 F.Supp. a t 268, and  expanding the  u se  of m agnet schools in the 

1990s, CMS did no t exceed the “m axim um  leeway” th a t the  d is tric t cou rt had  

given it u n d e r the  Sw ann  orders. Martin, 475 F .Supp. a t 1341. A nother 

d istric t co u rt recently found th a t a  school d istric t th a t, like CMS, w as no longer 

u n d e r active judicial supervision b u t w as sub ject to an  ongoing desegregation 

decree h ad  acted  lawfully p u rsu a n t to th a t decree w hen it changed  its 

desegregation p lan  w ithout cou rt approval. Hampton, 72 F .Supp. 2d a t 767, 

777. “B ecause the B oard’s S tu d en t A ssignm ent Plan and  its  racial guidelines 

. . . served the  essen tia l purpose of com plying w ith the  . . . Decree, the C ourt 

concludes th a t the Decree p ro tects these  policies from a tta c k .” Id. a t  777.

Appellees’ claim  on appeal th a t CMS expanded its u se  of m agnet schools 

to respond  to dem ographic changes is both incorrect and  irrelevant. See  

Appellees’ Brief a t 84. First, it is ind ispu tab le  th a t the increasing  residential 

in tegration  in M ecklenburg C ounty found by the  d istric t court, 57 F .Supp. 2d 

a t 237, h a s  m ade desegregation easier. Post-Trial Brief a t 26-30; Tr. 4 /  19:137- 

38, 226 (Clark); Tr. 6 /  11:5 (Lord). Second, the  d istric t co u rt itself found th a t 

the School D istrict adopted its 1992 m agnet p lan  because it “allowed CMS to 

phase  o u t pairing, which had  become increasingly u n stab le  an d  u n p o p u la r” 

and  th a t CMS “w as acting to fu rther a  com pelling in te res t.” 57 F .Supp. 2d a t

these  new procedures rem ain in effect. See  M em orandum  in S uppo rt of Stay 
Motion a t  3 (Oct. 14 1999) (citing Affidavit of S u p erin ten d en t Sm ith  a t 2).

-17-



239, 227-28. Third, the  record reveals several o th er reasons, u n re la ted  to 

dem ographic factors, why the  School D istrict expanded  its  u se  of m agnets. 

Appellees falsely claim  — w ithout any  record c itation  — th a t Dr. S tolee’s p lan 

“clearly s ta ted  it w as a  p lan  designed to balance schools th a t  CMS knew  were 

im balanced due to dem ographic change” and  th a t  fo rm er-superin tenden t 

M urphy testified th a t the p lan  w as im plem ented “to co u n te r-ac t racially 

im balanced schools caused  by dem ographic change .” A ppellees’ Brief a t  85. 

Both Stolee and  M urphy, however, recognized several o ther problem s w ith 

CMS’ s tu d e n t assignm ent m ethods in 1992. See  DX 108 a t  3, 5; Tr. 4 /2 6 :2 5 - 

27 (Murphy). For exam ple, a s Appellees conceded below, “CMS im plem ented 

its m agnet school program  in p a rt to reduce the  tran sp o rta tio n  b u rd en  on its 

m inority s tu d e n ts ,” P-I Index a t f  157 (citing Tr. 4 /2 6 :2 2 2 -2 3  (Murphy)), a s  it 

had  been ordered to do in 1974, 379 F .Supp. a t 1106, failed to do a s  of 1979, 

475 F .Supp. a t  1338-40, and  still h ad  no t done in 1992. DX 108 a t 3-13.

Even if CMS had  been responding to dem ographic changes ra th e r  th an  

a ttem pting  to comply w ith the c o u rt’s o rders regarding the  fa irness of its 

s tu d e n t assignm ent system , the School D istrict still would no t have been 

violating any  of the co u rt’s s tu d e n t assignm en t orders. As th is  C ourt held in 

Vaughns v. Board o f Education o f Prince George’s  County, 758 F .2d 983 (4th Cir. 

1985), un til un ita ry  s ta tu s  is achieved a  school d is tr ic t’s “affirm ative du ty  to 

elim inate all vestiges of segregation ‘root an d  b ra n c h ”’ can n o t be absolved “by 

reason  of dem ographic changes.” Id. a t  988. While it rem ained  sub jec t to the

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Sw ann  orders, CMS retained  no t merely the  d iscretion  to a ttem p t to achieve 

desegregated s tu d en t enrollm ents b u t the d u ty  to do so.

“As ano ther court h a s  recently  noted, the  painfu l reality  of s ta te  

sponsored  segregation and  constitu tionally  m an d a ted  desegregation requires 

th a t th is  C ourt respectfully consider an d  delicately balance existing legal 

com m ands, ne ither ignoring them  nor perpe tuating  them  u n necessa rily .” 

Hampton, 72 F.Supp. 2d a t 776. By aw arding dam ages an d  injunctive relief 

based  on CMS’ good faith effort to comply w ith the  S w ann  o rders while they 

were still in effect, the cou rt below im properly ignored the  School D istrict’s 

obligations u n d e r those orders.

IV. THE INJUNCTION WAS UNNECESSARY BECAUSE CMS DID NOT
PROPOSE TO CONTINUE ITS MAGNET PLAN

Even had  there been a  constitu tional violation — w hich there  w as not — 

the in junction  w as unnecessary : CMS did no t propose to con tinue  its m agnet 

adm issions procedures. As a  resu lt, there  w as no “im m inen t th re a t” of illegal 

action. See Norfolk & W. Ry. Co. v. Brotherhood o f R.R. Signalmen, 164 F.3d 

847, 856 (4th Cir. 1998).

There w as no evidence a t all th a t CMS would con tinue  its  m agnet 

adm issions procedures after being declared un ita ry . Indeed, the  only proffered 

evidence on th is  subject suggested th a t, as  a  u n ita ry  school system , CMS 

would no t employ race-conscious s tu d e n t assignm en t m easu res . See  DX 1. 

While CMS proposed to continue to consider race in s tu d e n t a ssignm en t un til 

it becam e un itary , its proposed plan would have d iscon tinued  the  u se  of race

-19-



as a  factor in th ree  years if the School D istrict w as th en  un itary . Id. a t  25, 27. 

Moreover, the  record is clear th a t  no decision had  been m ade by the  School 

Board ab o u t w hat type of s tu d e n t assignm en t p lan  it would im plem ent if the 

d istric t co u rt found th a t it a lready w as un ita ry . See  CMS Brief a t 25.

The School D istrict did no t even propose to con tinue its m agnet 

adm issions p rocedures w ithout m odification if the cou rt found th a t  it w as not 

yet un ita ry . Appellees sim ply m isrep resen t the  record, therefore, w hen they 

claim  th a t “[a]t no tim e during  or after tria l did CMS advise the  co u rt of [its] 

p lans to term inate  its m agnet school” adm issions p rocedures. Appellees’ Brief 

a t 100. B ecause, a s im plem ented, Dr. M urphy’s m agnet p lan  h ad  not worked, 

CMS proposed to the  cou rt an  entirely different p lan  to comply w ith the  Sw ann  

o rders an d  becom e un itary . See  DX 1. The d istric t cou rt did no t even consider 

th a t p lan, im properly excluding it a s  evidence. See  CMS Brief a t  14-15. 8 /

CMS also never sough t to defend the m agnet adm issions p rocedures th a t 

it h ad  adopted  to comply w ith the  Sw ann  o rders as a  m ethod of prom oting 

diversity in a  post-un ita ry  system . Appellees’ suggestions to the  con trary  are 

u tterly  baseless. See  Appellees’ Brief a t  99. As the  d istric t co u rt found, CMS’ 

arg u m en ts  (and Appellees’ as well) ab o u t diversity are  “irrelevant” to the

8 /  Ju d g e  Potter’s sta tem en t th a t CMS created  th is  rem edial p lan  as “an  
eleventh h o u r strategy” is clearly erroneous. In D ecem ber 1998, the School 
D istrict inform ed the Appellees and  the d istric t cou rt th a t it h ad  been 
preparing  a  “com prehensive rem edial p lan ” to p resen t to the court. See  
D efendan ts’ Response to Motion to R einstate  Reporting R equirem ent a t 2 (filed 
D ecem ber 1, 1998). Several m on ths before trial, in refusing to g ran t Appellees’ 
m otion, Ju d g e  Potter noted th a t CMS “prom ises th a t  it will propose a

- 20 -



propriety of the m agnet p lan  designed to rem edy p a s t d iscrim ination . 57 F. 

Supp. 2d a t 289. Neither Board C hairm an  A rthu r Griffin’s refusal to speculate  

abou t w hat the  Board m ight do in the  fu tu re  no r h is own personal belief in 

diversity, see  Appellees’ Brief a t 99, provide any  evidence th a t  the  Board 

contem plated  illegal actions. Indeed, he unam biguously  testified  th a t the 

Board had  no t “d iscussed  . . . w hat to do after u n ita ry  s ta tu s .” Tr. 6 /2 1 :8 6  

(Griffin).

The School D istrict offered evidence a b o u t the  dangers of resegregation 

and  the  educational benefits of diversity solely because  Appellees openly 

sough t the  overbroad in junction  th a t Ju d g e  Potter u ltim ately  g ran ted . See  

C om plaint a t If 43 (filed April 8, 1998) (requesting “injunctive relief 

barring  . . . any race-based policies or p rocedures th a t seek to assign  s tu d e n ts  

or otherw ise to allocate governm ent benefits . . .  on the  basis  of race”) (em phasis 

added). In the  face of th is overreaching request, CMS offered evidence abou t 

the reaso n s why a  un ita ry  school system  — w hich it does no t believe itself yet 

to be — m ight in the fu ture w ant to consider narrow ly tailored, race-conscious 

policies.

The fact th a t CMS believes th a t  su c h  hypothetical fu tu re  policies would 

improve education  and  could be designed in a  lawful m an n er does not 

constitu te  an  im m inent th rea t justify ing  a  p e rm an en t in junction . In Norfolk & 

W estern Railway, a  union indicated in its brief th a t it had  no in ten tion  to

com prehensive rem edial p lan to the  C ourt prior to the  trial of th is  m atte r.” 
J a n u a ry  8, 1999 O rder a t 2.

- 2 1 -



strike, an d  th is  C ourt therefore in terpreted  a  previous “th re a t” to strike a s  legal 

a rgum en t abou t the c ircum stances in w hich su ch  action w ould be lawful. 164 

F. 3d a t 856-57. Here, CMS’ s ta tem en ts  ab o u t the  possible rea so n s  for a  

un ita ry  school system  to consider race in s tu d e n t assignm en t were expressly 

identified a s  legal a rgum en ts and  did no t constitu te  a  th re a t to adop t any 

particu la r race-conscious plan or to take any  illegal action.

Appellees’ m isplaced reliance on United S ta tes v. Virginia, 518 U.S. 515 

(1996), see  Appellees’ Brief a t 98, only u n d ersco res  the  im propriety  of Judge  

Potter’s in junction. 9 /  In th a t case, after it h ad  already been found th a t 

Virginia M ilitary Institu te  (“VMI”) violated the  C onstitu tion  by excluding 

women, Virginia m ade a  “rem edial p roposal” th a t con tinued  th is  exclusion. Id. 

a t 547-48. Here, Judge  Potter never gave the  elected School B oard an  

opportun ity  to modify its m agnet adm issions p rocedures or to consider w hat 

s tu d e n t assignm en t m ethods it would adop t if found un ita ry . Instead , the 

cou rt below im properly preem pted local deliberation on the  topic w ith its 

prohibition of any consideration of race.

V. THE INJUNCTION IS OVERBROAD

Even if the School D istrict were already  un itary , its m agnet practices had  

been unlaw ful, and  CMS proposed to con tinue  them  — none of w hich is true  —

9 / Nor does th is C ourt’s decision in United S ta tes v. Hunter, 459 F. 2d 205 
(4th Cir.), sup p o rt Appellees’ argum ent. See  Appellees’ Brief a t  98-99. In 
Hunter, th is  C ourt actually  affirmed the denial of injunctive relief because there 
was no “cognizable danger of recu rren t violation.” 459 F .2d a t  219. Appellees 
quote d ic ta  ab o u t the inapposite situa tion  in w hich there  h a s  been  “a  pa ttern  
or practice of p as t violations.” Id. a t 220.

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the d istric t c o u rt’s in junction  still would be overbroad. The in junction  

im properly p rohib its narrow ly-tailored, race-conscious m agnet school lotteries, 

a s  well a s  any  o ther race-conscious s tu d e n t assignm en t m easu res. As w ritten, 

it also m ay forbid CMS from considering race in selecting school sites and  in 

crafting program s to ad d ress  educational deficits am ong m inority  s tu d en ts .

The in junction  goes far beyond enjoining the  m agnet adm issions 

procedures th a t  the court below incorrectly found to be unconstitu tiona l. 

Therefore, it violates the  longstanding principle th a t an  in junc tion  “should  not 

go beyond the  extent of the estab lished  violation.” Tuttle, 195 F. 3d a t 708. By 

its term s, Ju d g e  Potter’s in junction  forbids no t only CMS’ form er m agnet 

adm issions procedures b u t also race-consciously  draw n s tu d e n t a ttendance  

areas, including those explicitly approved in S w ann  and  never even d iscussed  

in the  decision below. T hus, if draw ing an  a tten d an ce  boundary  one way 

would produce a  racially isolated school, b u t a  slight m odification would 

provide a  racially and  ethnically diverse school, th is  in junction  m ay preclude 

CMS from choosing the modified boundary.

The in junction , however, does no t stop  there  — a t the d isrup tion  of 

a tten d an ce  a reas  for literally th o u san d s  of ch ild ren  th ro u g h o u t the  School 

D istrict — b u t ex tends even fu rther to the  “a llo ca tio n  of] educational 

opportun ities an d  benefits.” 57 F. Supp. 2d. a t 294. As CMS argued  below, 

th is  in junction  could be in terpreted  to p roh ib it it “from add ress in g  the 

u n d isp u ted  physical and  educational deficiencies in m any schools — simply 

because their s tu d e n t population is d isproportionately  b lack .” Post-Trial Brief

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a t 4, 81. This concern is no t idle; Appellees sought, even prio r to the  issuance  

of the in junction , to prohibit su ch  plainly lawful activities a s  a  “facilities 

renovation program  th a t prioritizes facilities” in the  in n er city an d  incentive pay 

to “teachers who agree to teach  in inner city schools.” See  P laintiff-Intervenors’ 

Motion a t 2 and  Brief in S upport a t 3 (filed Ju ly  2, 1999).

Appellees’ defense of Ju d g e  P o tter’s in junc tion  sim ply ignores the 

Suprem e C o u rt’s s ta tem en ts  in th is case  th a t  “school au th o ritie s  have wide 

discretion in form ulating school policy, and  th a t  a s  a  m atte r of educational 

policy school au thorities m ay well conclude th a t  som e kind  of rac ia l balance in 

the schools is desirable.” 402 U.S. a t 45. J u s t  a s im portantly , Appellees never 

acknowledge th a t to uphold  the in junction  below th is  C ourt m u s t overrule its 

own decision in Martin. 626 F.2d 1165 (4th Cir. 1980). In Martin, th is  C ourt 

held th a t the  “School Board is vested w ith broad  d iscretionary  pow ers over 

educational policy and  zs well w ithin its pow ers  w hen it decides th a t  a s  a 

m atte r of policy schools should  not have a m ajority of m inority  s tu d e n ts .” Id. 

a t 1167 (em phasis added). Ignoring th is  b inding precedent, Ju d g e  Potter 

issued  an  in junction  forever prohibiting CMS from m aking th is  type of 

educational policy decision.

The Martin decision h as not been overruled. The S uprem e C ourt h as  not 

revisited the  issue  of school bo ard s’ p lenary  au th o rity  over educa tiona l policy, 

including s tu d e n t assignm ent, since its s ta tem en ts  in S w ann  an d  in 

W ashington v. Seattle School District No. 1, 458  U.S. 457 (1982). The High 

C ourt’s decisions with respect to affirm ative action in hiring an d  governm ent

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contracting  are inapposite. Public education  is no t a  scarce comm odity: CMS 

will teach  all children. The School D istrict assign ing  s tu d e n ts  am ong various 

schools is no t like a governm ent body choosing am ong bids for a  single 

con trac t or selecting am ong applications for a  p a rticu la r job. As the N inth 

C ircuit h a s  explained, “‘stacked  deck’ program s [such a s  race-based  

‘affirmative ac tion ’] trench  on Fourteen th  A m endm ent values in ways th a t 

‘reshuffle’ program s [such a s  school desegregation] do n o t.”’ Coalition fo r  Econ. 

Equity, 122 F. 3d a t 708 {quoting A ssociated Gen. Contractors o f  Cal., 616  F.2d 

a t 1387). In Seattle School District, the  Suprem e C ourt also recognized th a t 

desegregation does not operate to benefit som e (and as a  re su lt to harm  

others), b u t ra th e r all children “benefit from exposure to ‘e thn ic  an d  racial 

diversity in the  classroom .”’ 458 U.S. a t 472 (quoting Columbus Bd. o f  Educ. v. 

Penick, 443 U.S. 449, 486 (1979)).

The record in th is case leaves no d o u b t th a t  CMS h as  com pelling 

educational in te res ts  th a t it should  be allowed to consider add ress ing  th rough  

narrow ly-tailored, race-conscious m eans in the  fu ture. Resegregation would 

p resen t d au n tin g  challenges for CMS schools. The c u rre n t inequities in 

facilities an d  educational opportun ities w ould be exacerbated. See  Post-Trial 

Brief a t 71-74. Appellees now claim  th a t  som e “race n eu tra l p lan ” m ight 

prevent th is  resegregation, see  Appellees’ Brief a t 112, b u t there  is no evidence 

in the record below th a t such  a  p lan  could have th is result.

Appellees also ignore the fact th a t the m ajority of the Suprem e C ourt has 

recognized th a t “the a tta inm en t of a  diverse s tu d e n t body . . . clearly is a

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constitu tionally  perm issible goal for an  in stitu tio n  of h igher educa tion .” 

R egents ofU niv. o f  Cal. v. B akke, 438 U.S. 265, 311-312 (1978) (opinion of 

Powell, J.). As th is C ourt recognized in both  Tuttle, 195 F.3d a t 704, and  

Eisenberg, 197 F.3d a t 130, lower courts , therefore, shou ld  a ssu m e  th a t 

educational diversity m ay be a  com pelling s ta te  in terest.

The educational benefits of diversity are  even more com pelling a t the 

elem entary  and  secondary level th an  in the  h igher education  context. First, as 

the Suprem e C ourt h as  recognized, public education  provides the  cornerstone 

of o u r p luralistic  democracy: “[A]n ethnically  diverse school . . . p rep a res ] 

m inority  child ren  ‘for citizenship in ou r p luralistic  society’ . . . while, we m ay 

hope, teach ing  m em bers of the racial m ajority ‘to live in harm ony  an d  m u tua l 

resp ec t’ w ith children of m inority heritage.” Seattle School Dist., 458 U.S. a t 

473 (quoting E stes v. Metropolitan B ranches o f  Dallas NAACP, 444  U.S. 437,

451 (1980); Penick, 443 U.S. a t 485 n.5). Second, unlike h igher education , 

public e lem entary  and  secondary education , a s  noted  above, is freely available 

to all children. Therefore, race-conscious m easu res  to prom ote diversity a t the 

e lem entary  and  secondary level need not exclude anyone from educational 

opportunity .

The d istric t court erred in issu ing  an  overly broad in junction  prem ised 

on the legally incorrect assum ption  th a t preventing the h a rm s of resegregation,

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prom oting the  benefits of diversity, an d  o th er im p o rtan t educa tiona l in te rests  

never can  be compelling. 10/

VI. THE DISTRICT COURT ABUSED ITS DISCRETION IN HARSHLY 
SANCTIONING THE SCHOOL DISTRICT

Appellees m istakenly  claim  th a t  th is  C ou rt’s decision in Wilson v.

Volkswagen o f  America, Inc., 561 F.2d 494, 505-506  (4th Cir. 1997), does no t

provide the  relevant te s t for the  im position of discovery san c tio n s  u n d e r Rule

37 of the  Federal Rules of Civil Procedure. See  A ppellees’ Brief a t  132-33.

Applying Wilson, however, it is clear tha t: (1) the  B oard w as reasonab le  in its

reliance on the  Pretrial O rder and  on th is  C o u rt’s holding th a t  Federal Rule 26

does no t require the disclosure of tria l w itnesses prior to the  da te  designated  in

the governing pretrial order, see  Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d

14, 16 (4th Cir. 1963); 11 / (2) the Board did no t ac t in bad  faith; an d  (3) far

less d rastic  sanctions would have been effective. See  CMS Brief a t  33-36.

Appellees use  aggressive, b u t u ltim ately  em pty rhetoric  in

characterizing  CMS’ w itness d isclosure as an  “a m b u sh ” an d  in “sandbagging”

and  in suggesting th a t “som ething . . . m ischievous w as afoot.” Appellees’ Brief

a t 129, 130. Appellees do not con test the  ind ispu tab le  fact th a t  CMS

10/ See also H unter v. Regents ofUniu. o f  Cal., 190 F.3d 1061, 1064 n.6,
1067 (9th Cir. 1999) (holding th a t s ta te  h a s  com pelling in te res t in u sin g  a 
diverse s tu d e n t population to study  effective educational techniques).

11/ Jackson  v. Kroblin Refrigerated X press, 49 F.R.D. 134, 135 (N.D.W.Va. 
1970)(rule is “well settled”); Brock v. R.J. Auto Parts and Service, Inc., 864 F.2d 
677, 679 (10th Cir. 1988)(citing sim ilar Fifth an d  E ighth C ircu it decisions).

-27-



repeatedly informed them  m on ths before tria l th a t it believed the  Pretrial 

O rder’s deadlines for disclosure of w itnesses controlled. See  CMS Brief a t 34- 

35 n.13. Moreover, Dr. Eric Sm ith, CMS’ S uperin tenden t, w as identified prior 

to the deadline for disclosure of fact w itnesses, see  A ppellees’ Brief a t 128, 130, 

because given his vast educational experience it w as possible th a t  he would be 

called as an  expert.

The claim  th a t Appellees were prejudiced  by CMS’ co n d u ct also is 

plainly false. See  Appellees’ Brief a t 134. Ironically, had  CMS know n or 

disclosed all of its possible fact w itnesses du ring  the  discovery period,

Appellees could no t have deposed them  because  A ppellees h ad  convinced the 

d istric t co u rt th a t th is was no t a  com plex case  and  already h ad  exceeded the 

limit on non-expert depositions. CMS Brief a t  8-9. Moreover, A ppellees’ 

decision to w ait for over five m onths un til the  eve of tria l before raising  the 

w itness d isclosure issue w ith the d istric t co u rt b a rs  equitable relief u n d e r Rule 

37. Id. a t 35-36.

In th is context, Judge  Potter a b u sed  his d iscretion in harsh ly  

sanctioning  the  School D istrict by g ran ting  Appellees u n ila te ra l m id-trial 

discovery, ordering CMS to pay all costs, an d  prohibiting certa in  CMS 

w itnesses from testifying.

VII. APPELLEES ARE NOT ENTITLED TO ATTORNEYS’ FE E S

None of the Appellees are en titled  to a tto rn ey s’ fees because  they 

should  no t have prevailed in the d istric t court. B ut, even if th is  C ourt were to 

affirm on the m erits, Judge Potter erred in aw arding fees to C apacchione.

- 2 8 -



C apacchione’s claim s for injunctive, declaratory  an d  com pensatory  relief were 

d ism issed  w ith prejudice (both as a  plaintiff and  as an  intervenor), and  his 

dau g h te r would no t have been adm itted  to the  school of h e r choice even if race 

had  not been considered, precluding liability on h is rem ain ing  claim  for 

nom inal dam ages. See  CMS Brief a t 38.

C apacch ione’s efforts to salvage h is a tto rn ey s’ fees reflect the  sam e types 

of d istortion  an d  m isrepresen ta tion  of the record th a t  characterize  Appellees’ 

o ther argum en ts . For exam ple, C apacchione claim s he qualifies a s  a  

“prevailing party” u n d e r Section 1988 because  he allegedly h ad  "clear stand ing  

to a tta in  prospective injunctive relief w ith respec t to the  [m agnet school 

program 's u se  of race" and  allegedly recovered “on the  m erits of h is claim  for 

prospective injunctive relief.” Appellees’ Brief a t 114-115. To the  contrary , the 

trial cou rt specifically rejected C apacchione's c laim s of stan d in g  to seek 

injunctive relief and  dism issed all of h is claim s for prospective in junctive relief 

with prejudice in the  c o u rt’s D ecem ber 22, 1998 Order. M em orandum  of 

Decision an d  O rder dated  Decem ber 22, 1998 a t 4-5.

C apacchione canno t prevail on h is sole surviving dam ages claim  u n der 

Texas v. Lesage, 120 S. Ct. 467 (1999). See  CMS Brief a t 37-38. Lesage  

teaches th a t  a  school canno t be liable for dam ages if it would have m ade the 

sam e decision ab sen t the alleged d iscrim ination . 120 S. Ct. a t 468. Only a 

plaintiff seeking “forward looking relief’ need no t affirmatively estab lish  th a t he 

would have received the benefit in question  if race were no t considered. 

Because C apacch ione’s claim s for “forward looking relief’ were d ism issed  long

-29-



before trial, the  B oard’s dem onstra tion  th a t it would have m ade the  sam e 

decision if race had  not been considered “precludes any  finding of liability.” Id. 

a t 469. 12/

C ontrary  to C apacchione’s u n su p p o rted  claim  th a t s tu d e n ts  received 

“race based  lottery n u m b ers ,” Appellees’ Brief a t 124, each  s tu d e n t received a  

random  n u m b er regardless of race. Tr. 6 /1 4 :6 8 -7 1  (Purser); Tr. 4 /2 8 :4 5  

(Wells). B ecause her random  num ber w as h igher th a n  the  total n u m b er of 

available seats , C apacchione’s daugh te r would no t have been adm itted  even 

had  race no t been considered. Tr. 6 /1 4 :6 8 -7 1  (Purser). Therefore, CMS 

canno t be liable even for nom inal dam ages, an d  C apacchione is no t a 

“prevailing party .”

In the  alternative, Capacchione a rgues incorrectly th a t  he is entitled  to 

fees based  on the  G ran t In tervenors’ success in Sw ann. C apacchione 

m istakenly  suggests th a t Shaw  v. Hunt, 154 F.3d 161 (4th Cir. 1998) su ppo rts  

his argum ent, bu t, unlike the in tervenors in Shaw , C apacchione w as no t an  

intervenor on the  claim s on which G ran t prevailed. C appachione w as 

perm itted  to "intervene" in S w ann ; however, C apacchione's declaratory  and  

injunctive claim s were specifically d ism issed  in both  cases long before trial 

started . The tria l court concluded, “C apacch ione’s claim s for injunctive relief -  

as  a plaintiff in his own case and as an intervenor in S w ann  -  m u s t be

12/ C apacchione, like the d istric t court, e rrs  in suggesting th a t  m erely 
retain ing  stand ing  to a sse rt a claim  for dam ages can  su b s titu te  for the  actual 
finding of liability necessary  to be prevailing party. Compare Lesage, 120 S. Ct. 
a t 468-69, w ith  57 F.Supp. a t 288 n.50.

-30-



d ism issed .” Decem ber 22, 1998 O rder a t 4 (em phasis added). T hus, a t trial, 

C apacchione w as no longer an  in tervenor on the  claim s in Sw ann  for w hich he 

is seeking fees; he was only pu rsu in g  h is claim s for dam ages.

Even if C apacchione’s efforts con tribu ted  to the o ther A ppellees’ success, 

th is  C ourt h a s  firmly rejected such  a  “ca ta ly st” theory for the  recovery of fees. 

S -l and S-2 v. S tate Bd. o fE duc., 21 F.3d 49, 51 (4th Cir.), cert, denied, 513 

U.S. 876 (1994).

Finally, Shaw  is d istingu ishab le  because  of its "special" an d  "rather 

exceptional" c ircum stances, which th is  C ourt repeatedly  em phasized  in its 

decision. Shaw, 131 F.3d a t 167-168. In Shaw , in tervenors lost stand ing  only 

after tria l an d  appeal. In s ta rk  con trast, C apacchione moved to California in 

A ugust 1998 an d  h is claim s for declaratory  an d  injunctive relief were dism issed 

in D ecem ber 1988, four m on ths before trial. N um erous in tervenors with 

sim ilar claim s rem ained. Still, C apacchione an d  h is counsel voluntarily  

p u rsu ed  h is dam ages claim, assum ing  the  risk  of no t recovering dam ages or 

a tto rn ey s’ fees. U nder these  c ircum stances there  is no inequity  in holding 

C apacchione and  h is counsel accountab le  to the  clear requ irem en ts of Section 

1988 an d  denying Capacchione a tto rneys fees because  he is no t a  "prevailing 

party."

31-



CONCLUSION

The judgm en t of the d istric t cou rt shou ld  be reversed a n d  its  in junction  

should  be vacated.

Respectfully subm itted ,

^  \ ----------

Allen 111. Snyder 
M aree Sneed 
Jo h n  W. Borkowski
HOGAN & HARTSON L.L.P. 
555 T h irteen th  S treet, N.W. 
W ashington, DC 20004 
(202) 637-5741

Ja m e s  G. M iddlebrooks
Irving M. B renner
Amy R ickner Langdon
SMITH HELMS MULLISS & MOORE,
L.L.P.
201 N. Tryon S treet 
C harlo tte, NC 28202 
(704) 343-2051

Leslie W inner 
G eneral C ounsel 
C harlotte-M ecklenburg B oard of 
E ducation
Post Office Box 30035 
C harlo tte, NC 28230-0035  
(704) 343-6275

C ounsel for A ppellants 
C harlotte-M ecklenburg B oard of 
E ducation , et al.

-32-



CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(c), counsel hereby certifies tha t 

the  foregoing brief contains 7,366 words. Counsel has relied on the  word- 

count function of the  w ord-processing system  used  to p repare  th is brief.

ring l
v
IrvingVM. Brenner 
SMITH HELMS MULLISS & MOORE, L.L.P. 
201 North Tryon Street 
Post Office Box 31247 
Charlotte, North Carolina 28231 
704/343-2075



CERTIFICATE OF SERVICE

I hereby certify th a t tw o copies of the  foregoing Reply Brief of 

A ppellants Charlotte-M ecklenburg Board of Education, e t  al. w as served 

upon the  parties to this action as follows:

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

Jam es 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

This the 11th day of May, 2000.

VIA REGULAR MAIL

William S. Helfand 
M agenheim , Batem an, Robinson, 

W rotenberry & Helfand P.L.L.C. 
3600 One Houston C enter 
1221 McKinney 
Houston, Texas 77010

Gloria J. Browne 
Elaine Jones 
Norm an J. Chachkin 
NAACP Legal Defense & 
Educational Fund, Inc.
99 H udson Street
N ew  York, New York 10013

A. Lee Parks
Kirwan, Parks, C hesin & Miller, P.C. 
75 Fourteenth  Street 
2600 The G rand 
A tlanta, Georgia 30309

- 4 ,  mi
Irving[1m . B renner