Belk v. Charlotte-Mecklenburg Board of Education Petition for Writ of Certiorari

    In The
Supreme Court of tfyr tlmteti Stairs

Terry  Belk ; D w ayne C ollins, on  behalf of
THEMSELVES AND THE CLASS THEY REPRESENT,

V.
Petitioners,

W illiam  Capacchione, et  a l .,
AND

T he  Charlotte-Mecklenburg  B oard  of 
Education , et  al.,

Respondents.

On Petition for Writ of Certiorari to the 
United States Court of Appeals for the Fourth Circuit

PETITION FOR W RIT OF CERTIORARI

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
Dennis D. Parker 
Naacp Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street, 16th fl. 
New York, NY 10013 
(212) 965-2200

* James E. Ferguson, II 
Julius L. Chambers 
John W. Gresham 
S. Luke Largess 
Ferguson Stein Chambers 

Wallas Adkins Gresham 
& Sumter, P.A.

741 Kenilworth Avenue, Ste. 300 
Charlotte, NC 28204
(704) 375-8461 
* Counsel o f Record

Attorneys for Petitioners



1

QUESTIONS PRESENTED FOR REVIEW

1. Did the courts below err when they determined that 
the Charlotte school system had attained “unitary status” 
despite the uncontested facts that:

(a) after operating largely integrated facilities for 
more than a decade, the district in 1992 altered its 
student assignment mechanism causing a dramatic 
increase in the number of racially identifiable schools;

(b) the demographic changes in the school system (on 
which the district court relied to explain and excuse 
this resegregation) did not begin until the 1990’s, the 
same time that the school system changed its method 
of assignment;

(c) the school board built 25 of 27 new schools after 
1979 in predominantly white suburban areas, in 
violation of its own policy and the court’s express 
orders on siting schools, with the result of 
exacerbating the disproportionate burden of 
transportation on black students that the district court 
had identified in 1979 as a remaining vestige of prior 
de jure segregation; and

(d) at the same time, the school board allowed the 
condition of predominantly African-American, inner- 
city school facilities to deteriorate rapidly?

2. Did the courts below err in applying an “intentional 
discrimination” standard when determinating whether 
persisting racial disparities (for example in the condition of 
predominantly white and predominantly black schools) were 
vestiges of the dual system whose continuation was 
antithetical to the achievement of “unitary status”?

3. Did the courts below misconstrue and misapply 
this Court’s decisions in Board ofEduc. v. Dowell, 498 U.S.



11

237 (1991) and Freeman v. Pitts, 503 U.S. 467 (1992) in 
determining that the Charlotte school system had attained 
“unitary status” notwithstanding its consistent failure to 
comply with the district courts’ remedial orders, with the 
result that vestiges of the de jure segregation to which those 
orders were addressed have not yet been eliminated?

4. Did the courts below err in refusing to consider a 
remedial plan adopted by the school district after this case 
was reactivated to finally address its continuing 
constitutional responsibilities — a plan which demonstrated 
the practicability of further desegregating its schools and 
eliminating racial disparities in their operation — on the 
grounds (stated by the district court) that the plan was only 
“hypothetical” and objectionable because it proposed race­
conscious assignments and (stated by the court of appeals) 
that a unitary status inquiry does not require consideration of 
remedial alternatives that remain available?



iii

LIST OF PARTIES

1. Karen Bentley, Respondent;

2. Terry Belk, Petitioner;

3. William Capacchione, Respondent;

4. The Charlotte-Mecklenburg Board of Education, 
Respondent;

5. Dwayne Collins, Petitioner;

6. Richard P. Easterling, Respondent;

7. Lawrence Gauvreau, Respondent;

8. Michael P. Grant, Respondent;

9. Arthur Griffin, Chairman of the Charlotte-Mecklenburg 
School Board, Respondent;

10. Eric Smith, Superintendent, in his official capacity, 
Respondent;

11. Charles Thompson, Respondent;

12. Scott C. Willard, Respondent;



IV

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW....................  i

PARTIES....... ............................................  iii

TABLE OF CASES................... ........................ .....................vi

PETITION FOR CERTIORARI....... ..................................   1

OPINIONS BELOW ..............................................     1

JURISDICTION...................         1

CONSTITUTIONAL PROVISION INVOLVED..................1

STATEMENT OF THE FACTS...............................  2

Initial Proceedings in the Litigation.......................   ...2

Litigation Resumes; Problems Persist................................. 6

Major Student Assignment Changes Produce More 
Racially Identifiable Schools................................................ 8

The Present Phase of the Case.................... ........... .......... 13

REASONS FOR GRANTING THE W RIT.......................... 15

I. The Court Below Ignored Basic Principles of 
School Desegregation Jurisprudence Established by 
this Court When It Affirmed the Unitary Status 
Holding Despite the School Board’s Resegregative 
Changes in Student Assignments and Its School



V

Location and School Repair and Maintenance 
Practices....................................................................... 15

Changes in Pupil Assignment While Under Court Order.
..................................................... ....................... .................16

Demographic Change........................................................... IS

Location Of New Schools.............................     19

Deterioration Of Schools In Predominantly African- 
American Areas..............................  21

II. Contrary to Decisions of this Court, the Majority 
Below Held That Racial Disparities in Various Areas 
of the School District’s Operations Were Not 
Vestiges of the Dual System Absent a Showing That 
They Resulted from Intentional Discrimination......21

HI. The Court Below Departed From Established 
Precedent In Declaring The Charlotte School District 
Had Attained Unitary Status Without Requiring The 
School District To Comply With Outstanding 
Desegregation Orders..................................................23

IV. The Court Below Erroneously Sanctioned The 
Trial Court’s Refusal To Consider The School 
District’s Proposal For Eliminating The Vestiges Of 
Segregation To The Extent Practicable................... 25

CONCLUSION 27



VI

TABLE OF CASES

Belk v. Charlotte Mecklenburg Bd. ofEduc.,
233 F.3d 232 (4th Cir. 2000) (vacated)............................. 17

Belkv. Charlotte Mecklenburg Bd. ofEduc.,
21A F.3d 814 (4th Cir. 2001)..............................................  17

Belk v. Charlotte Mecklenburg Board o f Education,
269 F.3d 305 (4th Cir. 2001)...................................... passim

Board ofEduc. o f Oklahoma City v. Dowell,
498 U.S. 237(1991)................................................... passim

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

Columbus Bd. ofEduc. v. Penick,
443 U.S. 449 (1979).................................................... 22, 23

Dayton Bd. ofEduc. v. Brinkman,
443 U.S. 526 (1979)............................................................ 24

Dayton Bd. ofEduc. v. Brinkman,
433 U.S. 406 (1977)............................................................ 22

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

Green v. County School Bd. o f New Kent County,
391 U.S. 430 (1968)..........................................6, 17, 23, 28

Keyes v. School Dist. No. 1,
413 U.S. 189(1973)....................................   ..........25



vii

Martin v. Charlotte Mecklenburg Bd. o f Educ.
475 F. Supp. 1318 (W.D.N.C. 1979).............. .......... passim

McDaniel v. Barresi,
402 U. S. 39(1971)............................................................ 28

North Carolina State Bd. o f Ed. v. Swann,
402 U. S. 43 (1971)............................................................ 28

Pasadena City Bd. o f Educ. v. Spangler,
427 U.S. 424 (1976)................................................... 20, 27

Swann v. Charlotte-Mecklenburg Board o f Education,
243 F. Supp. 667 (W.D.N.C. 1965)............................ 5, 22

Swann v. Charlotte-Mecklenburg Board o f Education,
300 F. Supp. 1381 (W.D.N.C. 1969).................. ................6

Swann v. Charlotte-Mecklenburg Board o f Education,
300 F. Supp. at 1372........................................................... 6

Swann v. Charlotte-Mecklenburg Board o f Education,
306 F. Supp. 1291 (W.D.N.C. 1969).................................. 6

Swann v. Charlotte-Mecklenburg Board o f Education,
306 F. Supp. 1299 (W.D.N.C. 1969).................................. 6

Swann v. Charlotte-Mecklenburg Board o f Education,
311 F. Supp. 265 (W.D.N.C. 1970).................. ..................6

Swann v. Charlotte-Mecklenburg Board o f Education,
318 F. Supp. 786 (W.D.N.C. 1970).................................... 7

Swann v. Charlotte-Mecklenburg Board of Education,
328 F. Supp. 1346 (W.D.N.C. 1971) 7



viii

Swann v. Charlotte-Mecklenburg Board o f Education,
362 F. Supp. 1223 (W.D.N.C. 1973).............................. 7, 8

Swann v. Charlotte-Mecklenburg Board o f Education,
369 F.2d 29 (4th Cir. 1966).................................................. 5

Swann v. Charlotte-Mecklenburg Board o f Education,
379 F. Supp. 1102 (W.D.N.C. 1974).......................... . 8, 26

Swann v. Charlotte-Mecklenburg Board o f Education,
399 U.S. 926 (1970).............................................................7

Swann v. Charlotte-Mecklenburg Board o f Education,
402 U.S. 1 (1971)............................. ...................... .7 , 22, 28

Swann v. Charlotte-Mecklenburg Board o f Education,
67 F.R.D. 648 (1975)............................................................ 9

Swann v. Charlotte-Mecklenburg Board o f Education,
334 F. Supp. 623 (W.D.N.C. 1971).....................................7

United States v. United Mine Workers,
330 U.S. 258 (1947)............... ............................................27

Walker v. City o f Birmingham,
388 U.S. 307 (1967)........................................................... 27

Wright v. Council o f City o f Emporia,
407 U.S. 451 (1972)........................ 24



1

PETITION FOR CERTIORARI

Petitioners respectfully pray that a writ of certiorari 
issue to review the judgment of the United States Court of 
Appeals for the Fourth Circuit in Belk, et al v. Charlotte 
Mecklenburg Board o f Education, 269 F.3d 305.

OPINIONS BELOW

The opinion of the Court of Appeals, App. la-22 la, 
is reported at 269 F.3d 305. The order of the Court of 
Appeals on Rehearing, 382a-390a, is reported at 274 F.3d 
814.The opinion of the District Court, 222a-367a, is reported 
at 57 F. Supp. 2d 228. The order of the District Court of 
April 14, 1999, 368a-376a, is unreported.

JURISDICTION

The Court of Appeals entered its judgment on 
September 21, 2001, 377a-381a. On December 10, 2001, the 
Chief Justice extended the time within which this Petition 
may be filed to and including January 21, 2002, which falls 
on a legal holiday. This Court has jurisdiction pursuant to 28
U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the United States 
Constitution provides in pertinent part that no state shall 
“deny to any person within its jurisdiction the equal 
protection of the laws”



2

STATEM ENT OF TH E FACTS

Terry Belk and Dwayne Collins petition for certiorari 
from the September 21, 2001 decision of the en banc Fourth 
Circuit Court of Appeals, Belk v. Charlotte Mecklenburg 
Board o f Education, 269 F.3d 305 (4th Cir. 2001) (la-22 la )1, 
affirming 7-4, the ruling of the district court below that the 
Charlotte-Mecklenburg Board of Education (“CMS” or “the 
Board”) had attained unitary status in all respects. 
Capacchione v. Charlotte Mecklenburg Board o f Education, 
57 F. Supp. 2d 228 (W.D.N.C. 1999) (222a-367a).

Initial Proceedings in the Litigation
Belk and Collins are substituted representatives for 

those black families who originally filed this case in 1965 - 
an initially unsuccessful challenge to a “freedom of choice” 
pupil assignment plan that maintained racially segregated 
schools. See 229a (citing to Swann v. Charlotte- 
Mecklenburg Board o f Education, 243 F. Supp. 667 
(W.D.N.C. 1965)). The district court upheld the plan in 
1965, finding that the Board did not have an affirmative duty 
to desegregate. Id. The Fourth Circuit affirmed. Swann, 
369 F.2d 29 (4th Cir. 1966)

The plaintiffs moved for further relief in 1968 after 
this Court, in Green v. County School Bd. o f New Kent 
County, 391 U.S. 430 (1968), imposed on segregated school 
systems an affirmative duty to desegregate. 229a. The trial 
court found in April 1969 that approximately 14,000 black 
students remained in segregated schools, 264a, and 
concluded that the freedom of choice plan “had left the dual 
school system virtually intact.” 23a, citing Swann, 300 F. 
Supp. at 1372. The court ordered CMS to submit a plan to

1 Citations in the form “______ a” are to the Appendix to this
Petition, infra.



3

begin desegregation of the schools by the fall of 1969 and 
suggested some methods for achieving that goal. 231a.

The “school board was slow to act on the court’s 
recommendations” and was criticized by the court for “foot- 
dragging.” 231a citing Swann, 300 F. Supp. 1381, 1382 
(W.D.N.C. 1969). The district court approved an interim 
plan in August 1969 but “expressed reservations that a 
disproportionate burden of desegregation was being placed 
on black children.” 231a (citing Swann, 306 F. Supp. 1291, 
1298-99 (W.D.N.C. 1969)).

In November 1969, the court reviewed the 
effectiveness of the plan and found it had “not been carried 
out as advertised.” 231a, quoting Swann, 306 F. Supp. 1299, 
1302 (W.D.N.C. 1969). The plan did not have definable 
goals and did not safeguard against resegregation. Id. The 
district court concluded that the Board had shown “no 
intention to comply” with its constitutional duties, id., 
quoting Swann, 306 F. Supp. at 1306, and designated a 
consultant, Dr. Finger, to draw up a plan. Id.

In February 1970 the Court adopted Dr. Finger’s 
proposed plan for elementary schools and, with that 
consultant’s modifications, a Board plan for secondary 
schools. 232a, citing Swann, 311 F. Supp. 265, 268-70 
(W.D.N.C. 1970). The plan transported students among 
schools and paired grades from black and white elementary 
schools to accomplish desegregation. 233a n.6. The Board 
appealed, and the Fourth Circuit affirmed in part but 
remanded the elementary school aspect of the plan. Belk, 
12a.

This Court granted certiorari and reinstated the trial 
court’s orders pending further proceedings. Capacchione, 
233a, citing Swann, 399 U.S. 926 (1970). After additional 
hearings, the trial court concluded that Dr. Finger’s plan was



4

reasonable. Id., citing Swann, 318 F. Supp. 786, 788 
(W.D.N.C. 1970). This Court affirmed the orders, holding 
that district courts could invoke their equitable powers to 
fashion remedies to eliminate public school segregation. 
234a -  235a (citing Swann, 402 U.S. 1 (1971)).

Within 60 days of this Court’s ruling, CMS moved in 
the district court to abandon the Finger plan and permit the 
substitution of a new “feeder” plan. Belk, 14a (citing 
Swann, 328 F. Supp. 1346 (W.D.N.C. 1971)). Concerned 
about resegregation and the placement of additional burdens 
on African-American children, the district court openly 
questioned the proposed feeder plan. Id., citing Swann, 328
F. Supp at 1350-53. The Board withdrew the plan and later 
submitted a revised one that the court adopted. Id., citing 
Swann, 334 F. Supp. 623 (W.D.N.C. 1971)). In accepting 
the revised plan, the court “continued to express its 
dissatisfaction with the regressive and unstable nature and 
results” of the Board’s plans and actions. Capacchione, 
235a, citing Swann, 328 F. Supp. 1346 and 334 F. Supp. 623.

The district court declined to hear any additional 
matters until 1973, “in the hope that the board and its staff 
would undertake constructive remedial action.” Id., citing 
Swann, 362 F. Supp. 1223, 1230 (W.D.N.C. 1973). It did 
not happen.

[Wjithin just two years it became clear that CMS’s 
revised feeder plan was inadequate “for dealing with 
foreseeable problems” in the dismantling of the dual 
system. The district court found “that various 
formerly black schools and other schools will turn 
black under the feeder plan” and that “racial 
discrimination through official action has not ended 
in this school system.” The district court again 
instmcted CMS to design a new pupil assignment 
plan “on the premise that equal protection of the laws



5

is here to stay.”

Belk, 14a, quoting Swann, 362 F. Supp. at 1229, 1230, 1238 
(W.D.N.C. 1973). The district court detailed the “signs of 
continuing discrimination,” including the busing burden 
placed on blacks, the pressures for resegregation created both 
by the feeder plan and by the operation of overcrowded 
white schools with mobile classrooms while historically 
black schools had empty seats, and the “substantial immunity 
from busing afforded to students in white areas in the east 
and southeast of the county.” 362 F. Supp. at 1232-34.

In 1974 the Board adopted, and the court approved, a 
new series of policies and guidelines for pupil assignment 
that had originally been devised by a citizens’ group. 
Capacchione, 235a -  236a; 15a, citing Swann, 379 F. Supp. 
1102 (W.D.N.C. 1974). The district court called these new 
policies a “clean break” from past practices and attitudes. “If 
implemented according to their stated principles,” the 
policies would result in a unitary school system. 
Capacchione, 236a, quoting Swann, 379 F. Supp. at 1103. 
The principles incorporated in the plan included avoiding 
majority black schools (with one elementary school 
experiment excepted), more equally distributing the busing 
burden, and guidelines for transfers to prevent “adverse 
trends in racial make-up of schools.” Id. (citing to 379 F. 
Supp. 1104). See, also Belk, 15a (citing to 379 F. Supp. at 
1105-1110). The principles also committed CMS to plan 
school sites in order to simplify rather than to complicate 
desegregation. Swann, 379 F. Supp. at 1104 (Guideline XI).

The district court’s 1974 order approved the creation 
of “optional” schools with countywide enrollment. 
Capacchione, 236a. The court approved these schools, 
presently referred to as “magnet” schools, on the express 
condition that they not become freedom of choice havens for 
segregation or cause resegregation in any regular school. Id.



6

In 1975, noting that “continuing problems remain, as 
hangovers from previous active discrimination,” the court 
expressed a confidence that the Board would address those 
problems, and placed the case on inactive status. 
Capacchione, 236a, quoting Swann, 67 F.R.D. 648, 649 
(W.D.N.C 1975)).

Litigation Resumes; Problems Persist

A few years later, the court found that many forms of 
discrimination persisted. In 1978 a group of white parents 
sued to end the use of race in assigning students and to block 
a proposed reassignment. 240a (citing Martin v. Charlotte 
Mecklenburg Bd. o f Educ. 475 F. Supp. 1318 (W.D.N.C. 
1979)). The Martin plaintiffs alleged that CMS was now 
“unitary”, and thus any consideration of race in assigning 
students was unconstitutional. Martin, 475 F. Supp. at 1322, 
240a. Representative black families intervened in Martin, 
and alleged that CMS was not yet unitary, pointing to non- 
compliance with four aspects of the Swann orders -  school 
siting, placement of early elementary grades in black areas, 
monitoring of student transfers to avoid resegregation, and 
placing burdens unduly on black children. Martin, 475 F. 
Supp. at 1328-29. In 1979 the same court that had decided 
Swann heard the evidence in Martin, and “re-examined and 
considered hundreds of pages of findings of facts and orders” 
from Swann, and concluded that “jurisdiction was still 
needed due to lingering effects from past active 
discrimination.” 241a.

The court detailed at length the problems that 
remained in the four areas. First it held that the 
“CONSTRUCTION, LOCATION AND CLOSING OF 
SCHOOL BUILDINGS CONTINUE TO PROMOTE 
SEGREGATION.” Martin 475 F. Supp. at 1329 (caps in 
original). The court reviewed several post-1974 siting 
decisions by CMS. It noted that, contrary to its orders, CMS



7

had, after 1974, built new schools in white neighborhoods 
and then bused black students into those schools to 
desegregate them. It found these siting decisions violated 
the principles approved by the court for the placement of 
schools. Id. at 1331-1332.

It held next that the “PLACEMENT OF 
KINDERGARTEN AND ELEMENTARY SCHOOL 
GRADES REMAINS DISCRIMINATORY AND UNFAIR 
TO THE SMALLEST BLACK CHILDREN.” Id. at 1332. 
The court reviewed the fact that (with one exception) grades 
K-3 in school pairings were located exclusively in schools in 
white residential areas, leaving the busing burden entirely on 
the youngest black children. Id. at 1332-1334.

The court next held that CMS’s “FAILURE TO 
MONITOR THE THOUSANDS OF PUPIL TRANSFERS 
. . . TENDS TO PROMOTE SEGREGATION IN THE 
SCHOOLS.” Id. at 1335. The court found that CMS was 
not effectively monitoring the transfers of students among 
schools, which allowed transfers that cumulatively tended to 
to make certain schools become racially identifiable. Id. at 
1335-1338

Finally, the court found that the 
“DISCRIMINATORY BURDENS OF DESEGREGATION 
REMAIN UPON THE BLACK CHILDREN.” Id. at 1338. 
The Court explained various ways in which CMS continued 
to place the burdens of desegregation on black students, who 
were bused on longer routes and for more years than white 
students. Id. at 1338-1340. “In short, black children and 
their families continue to bear discriminatory burdens of 
desegregation.” Id. at 1340.

The court concluded that each of these four problem 
areas was “interrelated with and not separable from . . .  the 
pupil assignment portion of the desegregation effort.” Id. at



8

1332, 1334, 1337 and 1340. As a result, “ ‘[rjacially neutral 
attendance patterns’ have never been achieved.” Id. Despite 
these findings, the court restated its belief that CMS was 
committed to addressing the issues and concluded CMS 
needed more time. “I vote to uphold their efforts to date, and 
to give them that time.” Id  at 1347.

By 1980 black enrollment in the school system had 
reached 40%, Capacchione, 241a. The Board and the 
Swann plaintiffs moved jointly to modify the court orders to 
allow any elementary school to have a black enrollment up 
to 15% above the system-wide ratio of black students. Id. 
Notwithstanding the failures to fully implement the prior 
orders described in detail in many of the Swann orders and in 
Martin, CMS was able to keep most of its schools within 
Swann’s racial balance guidelines in the 1970’s and 1980’s. 
264a -  265a.

Major Student Assignment Changes Produce More 
Racially Identifiable Schools

In 1992, with black enrollment still at 40%, CMS 
undertook a major modification of pupil assignment -  a plan 
it called “A New Generation of Excellence”, 242a.2 The new

2 The population of Charlotte had increased substantially from 
1970 to 1997, but the percentage of blacks living in the county remained 
stable during this growth, increasing slightly from 24% in 1970 to 27% 
in 1997. 237a. This period of overall growth with relative racial stability 
was marked by the dispersion of blacks into suburban areas. 238a. A sa 
result “there is a greater degree of residential integration in the county 
than there was thirty years ago,” and “Charlotte has become one of the 
most racially integrated cities in America.” Id. 238a.

At the time of the 1969 desegregation decrees, CMS enrolled 
about 84,000 students, 239a. In the 1998-1999 school year, CMS had 
98,542 pupils, id., an increase of about 14,500 students over 30 years. 
While racial enrollments were unstable in the years immediately 
following the desegregation orders, increasing from 29% black in 1969 
to 40% in 1980, 241a, the percentage of black enrollment then stabilized.



9

assignment plan greatly expanded the use of the voluntary 
optional or magnet schools and phased out the “unpopular” 
mandatory pairing of schools from black and white areas. 
242a. The plan also contemplated the increased use of 
“stand alone” schools in integrated areas and schools in 
“mid-point” areas with the stated goal of phasing out satellite 
zones. 242a -  243a CMS took this major initiative without 
seeking court approval. 243a

The trend toward resegregation of CMS’s schools 
accelerated markedly following the decision to phase out 
pairings. Belk, 152a (Motz and King, dissenting). From 
1992 to 1998, the number of blacks in identifiably black 
schools increased 50% system-wide, id., and nearly 200% at 
the high school level, Stevens report, p. 21 (Fourth Circuit 
JtApp. 9589). By 1998, some 30% of CMS’s African- 
American students were attending racially identifiable 
schools.3 Belk, 152a (Motz & King, dissenting). Twenty- 
three schools were identifiably black at the time of trial. Id. 
Twenty of those schools had been outside the court 
guidelines for at least three consecutive years after 1992. 
Capacchione, 57 F. Supp.2d at 248. Prior to the magnet 
expansion and the end of pairing, CMS had been able to 
maintain racial balance for periods of nineteen to twenty-six 
years in nearly all of these schools. Belk, 28a (Motz & 
King, dissenting).

In the 1998-99 school year, black enrollment was 42%. 239a.
Following a period of overall decline until 1990, student enrollment then 
began growing by about 3,000 students per year. Id. Such growth was 
not unprecedented, however: at the time of the original 1969 decrees, 
CMS had been growing at a rate of 2,500 to 3,000 students per year. 
Swann, 300 F. Supp. at 1358, 1364 (W.D.N.C. 1969).

3 Translated from percentages to numbers, over 12,000 black 
students were in segregated schools in 1998-99, compared to 14,000 at 
the time of the 1969 finding that CMS still operated segregated schools.



10

While deviations from target enrollment percentages 
at schools in the 1970s had involved variances of “one or 
two percent,” 265a, and only a “few” schools were 
consistently out of balance in the 1980’s. Id. Both the 
number of out-of-compliance schools and the extent of racial 
identifiability increased substantially after 1992.

No CMS school had been as high as 60% black until 
1988. 263a. “Only seven schools have ever had black
populations in excess of 75%, and this did not occur until 
1994.” Id. The black population at six of those schools 
jumped fifteen to twenty-five percentage points after 
adoption of the new pupil assignment plan. Other schools 
showed similar increases in racial identifiability after 1992. 
The number of black students enrolled increased more than 
20% at West Charlotte High School (from 46% to 68%), 
Ranson Middle School (45% to 65%), Wilson Middle School 
(45% to 71%), Coulwood Middle School (35% to 55%), 
Merry Oaks Elementary (41% to 64%), Pawtuckett 
Elementary (37% to 59%) and Greenway Park Elementary 
(39% to 60%). CMS Ex. 47 (4th Cir. Jt. App. 13095 -  
13099). Other schools’ imbalances increased in only 
slightly less dramatic fashion, including Hawthorne Middle 
School (36% to 53%), West Mecklenburg High School (38% 
to 54%) and Garinger High School (49% to 61%), and the 
following elementary schools, Oaklawn (45% to 63%), 
Huntingtowne Farms (47% to 62%), Allenbrook (50% to 
65%), Druid Hills (51% to 63%), Sedgefield (52% to 62%), 
Shamrock Gardens (51% to 61%) and Statesville Road (48% 
to 60%), Id.

The extent of identifiability increased at the 
predominantly white schools as well. Prior to 1992-93, no 
school had been 90% white; after 1992, there were eight 
schools with 90% or more white enrollment. Id. More 
generally, the schools with low black enrollments in 1999



11

that had been in operation since the 1970s had been racially 
balanced for most of the period prior to the changes in pupil 
assignment in 1992. Belk, 28a n.4 (Motz & King, 
dissenting).

The Capacchione court identified a problem inherent 
in numerous voluntary transfers under the magnet scheme. 
“[I]f enough students left their assignment zones for 
magnets, it would affect the balance of the schools to which 
they were otherwise assigned.” 266a. Compare id. n. 23 
(referring to overall impact of magnet schools’ operation but 
not analyzing the Board’s failure to have “rigid controls in 
place”). The resegregative impact of transfers of non-black 
students away from indentifiably black schools to magnet 
schools was significant. Data for 1998-99 from CMS Ex. 55 
(4th Cir. Jt. App. 13165-13193) shows that at the middle 
school level, 44.3% of the assigned non-black students 
transferred away to magnets from four middle schools that 
were at least 60% black, compared to a rate of 18.4% of non­
blacks transferring to magnets from all other middle schools. 
At the high school level 31% of non-blacks assigned to the 
four high schools that were 50% or more black transferred 
away to magnets, compared to 8.5% of non-blacks from the 
remaining high schools.

The 1992 assignment plan also included the proposal 
to increase the number of schools located “mid-point” 
between racially distinct areas. Capacchione, 242a -  243a & 
n.10. This proposal fit within the 1974 order, which held 
that “[bjuildings are to be built where they can readily serve 
both races.” 270a, quoting Swann, 379 F. Supp. at 1107. 
The Martin court had found that CMS had yet to comply 
with this aspect of the pupil assignment orders as of 1979, 
Martin, 475 F. Supp. 1329-32. The Martin court specifically 
criticized CMS for building schools in white residential areas 
and then busing black students to them from distant areas.



12

CMS has built twenty-seven new schools since 
Martin, see Capacchione, 271a. Twenty-five of them in 
were located in predominantly white residential areas. Belk, 
156a (Motz & King, dissenting). The “mid-point” approach 
was applied in locating, “at most, four of the twenty-seven 
new schools.” Id. The purpose of the mid-point policy was 
to reduce the use of satellite zones. Capacchione, 242a -  
243a. Because the mid-point policy was never applied, 
“CMS has had to create dozens of tiny satellite zones in the 
inner city” to assign black students to schools in white 
neighborhoods. 247a. Thus, as student enrollment 
increased, CMS coped with the situation by adding more 
satellite zones for black students, assigning them to newly 
built schools in white neighborhoods.

While the original court order in 1969 created nine 
satellite zones, by 1998 there were sixty-nine. See, 280a, 
citing CMS Exs. 262 -  264 (4th Cir. Jt. App. 1 5 4 1 1 -1 3 ). 
The 1992 plan abolished the use of nearly all of the 
“unpopular” satellite zones in white areas; instead one-way 
satellites from black neighborhoods became the predominant 
tool for desegregating schools. Sixty-three of the sixty-nine 
satellites, or 91 percent, were located in black 
neighborhoods. CMS Exs. 262 -  264. Of the 16,409 
students assigned to schools by satellite, 14,957 lived in 
predominantly black neighborhoods. Foster Report, Table 7. 
CMS Trial Exhibits 262-64. Thus, while some of the new 
schools “have been able to accommodate racially balanced 
student populations,” Capacchione, 57 F.Supp. at 252, this 
result could be achieved only by busing black children into 
distant white neighborhoods.

In addition, disparities in facilities and resources 
remain a serious problem. As CMS built new schools in 
white areas, it allowed many of the older facilities, attended 
predominantly by black students, “to fall into a state of



13

disrepair,” Belk, 156a (Motz & King, dissenting). The only 
facilities expert to testify at the trial, Dr. Gardner, provided 
numerical assessments of CMS schools showing
“substantial” racial disparities in the condition of facilities. 
Id. at 166a -  168a. Numerous witnesses confirmed his 
assessment of the problem. Id. at 168a -  169a. 
Capacchione, 296a -  297a. Even the three Board members, 
who had voted before the trial that CMS should seek unitary 
status, each testified that the Board needed to address 
disparities in facilities and resources in black schools. Id. 
Belk, 169a (Motz & King, dissenting).

The Present Phase of the Case

In September 1997, William Capacchione, a white 
parent, filed suit challenging the use of race in magnet school 
admissions. Capacchione, 243a. In October 1997 the 
Swann plaintiffs moved to reactivate Swann, alleging that 
CMS was not in compliance with the court’s orders, and 
moved to consolidate the two proceedings. 244a. In March 
1998 the District Court denied a Board motion to dismiss the 
Capacchione suit, granted the request to reactivate Swann, 
and consolidated the two cases, finding that the issue of 
unitary status was the common question between them. Id. 
In May 1998, a separate group of white parents called the 
Grant plaintiffs were allowed to intervene in the consolidated 
action, claiming that the system was unitary and the use of 
race in assigning students was unconstitutional. Id.

That same year, CMS undertook a “comprehensive 
analysis” of its record of compliance, whether vestiges of 
segregation existed and whether practicable remedial 
measures could be taken. Belk, 146a -  147a (Motz & King, 
dissenting). The Board then publicly adopted “The Charlotte 
Mecklenburg Schools’ Remedial Plan to Address the 
Remaining Vestiges of Segregation.” Id. The Remedial



14

Plan “detailed specific steps that the Board proposed to 
undertake” to attain unitary status. Id.

The Board produced the plan as an exhibit for trial, 
but the court granted a motion in limine to exclude it, finding 
that the Court was required to review only “what CMS had 
done, not what it may do in the future.” Order of April 14, 
1999 (373a). Thus, the court refused to allow into evidence 
any information on what practicable steps the Board could 
take to remedy the increasing racial imbalances, to address 
school siting and facilities issues, to relieve the unequal 
transportation burdens and to address racial disparities in the 
various Green factors and student achievement.

The court entered an order on September 9, 1999, 
finding that CMS had attained unitary status in all respects 
and that the magnet program’s application process was 
unconstitutional. The court enjoined CMS from any 
consideration of race in the future. The Fourth Circuit stayed 
the injunction in an unpublished order. The en banc court 
vacated a panel decision that had reversed the finding of 
unitary status as to student assignment, transportation, 
facilities and resources and student achievement. Belk v. 
Charlotte Mecklenburg Bd. o f Educ., 233 F.3d 232 (4th Cir. 
2000) (vacated). The en banc court then voted 7-4 to affirm 
the unitary status determination, 6-5 to reverse the finding 
that the school board acted unconstitutionally in adopting the 
magnet plan while under court order, voted unanimously to 
reverse as to the injunction, and voted 6-5 to reverse the 
order awarding attorneys’ fees to Grant and Capacchione. 
5a. The court then denied reconsideration of the attorney’s 
fees’ issue. Belk, 21A F.3d 814 (4th Cir. 2001).



15

REASONS FOR GRANTING THE WRIT 

I
The Court Below Ignored Basic Principles of 

School Desegregation Jurisprudence Established by this 
Court When It Affirmed the Unitary Status Holding 
Despite the School Board’s Resegregative Changes in 
Student Assignments and Its School Location and School 
Repair and Maintenance Practices

This case presents fundamental legal questions under 
this Court’s jurisprudence as to the conditions under which 
previously de jure segregated school systems can attain 
“unitary status” and be released from court supervision.

The court below ruled that CMS had attained unitary 
status even though the district had changed its student 
assignment policies without court approval, and then failed to 
monitor the segregative effect of transfers under its new 
assignment plan, both of which caused significant increases 
in the number of racial identifiable schools and the extent of 
segregation at those schools. From 1980 to 1997, the school 
board had also built 25 of 27 new schools in white residential 
areas while allowing existing schools in black areas to 
deteriorate. The changes in pupil assignment, in conjunction 
with the siting practices, fostered resegregation and 
intensified the burdens placed upon black students in the 
desegregation process.

These actions by CMS perpetuated or created classic 
vestiges of segregation recognized by this Court’s precedent. 
Nonetheless, the majority of the court of appeals found that 
CMS had complied with the outstanding desegregation 
orders and had eliminated the vestiges of segregation to the 
extent practicable. This departure from settled principles 
established by this Court, in a widely publicized case that 
directly impacts the hundreds of school systems remaining



16

under court order, compels review of the judgment below. 

Changes in Pupil Assignment While Under Court Order.

In 1992 CMS substantially modified its pupil 
assignment policies without court approval. The system’s 
previous student assignment plan had maintained 
desegregation in “all but a few” of CMS’s schools until the 
1992 revisions, notwithstanding population growth in the 
county. The new student assignment plan rapidly phased out 
the “unpopular,” court-approved system of mandatory pupil 
assignment to racially paired elementary schools that “fed” 
into assigned middle and high schools, replacing it with a 
major expansion o f magnet schools. The board then failed to 
monitor the resegregative effects of student transfers to this 
increased number of magnet schools. Under the new plan, 
the number of schools outside of racial enrollment 
guidelines, and the levels of segregation at those schools, 
increased dramatically, due both to the “de-pairing” of 
previously paired schools and the impact of transfers.

CMS’s action modifying its student assignment 
scheme while under a court desegregation order, in a manner 
that increased the number of identifiably black schools and 
the number of black students attending segregated schools, 
distinguishes this case fundamentally from the two major 
unitary status cases previously decided by this Court, Board 
o f Educ. o f Oklahoma City v. Dowell, 498 U.S. 237 (1991) 
and Freeman v. Pitts, 503 U.S. 467 (1992). In neither of 
those cases did the school board, knowing it remained under 
court supervision, substantially modify its pupil assignment 
plan in a manner that resegregated its schools.

Dowell. In Dowell, the school board had 
implemented a court-ordered desegregation plan in 1972. 
498 U.S. at 241. In 1977 the trial court declared the school 
system “unitary” and ended active supervision of the case.



17

Id. Believing it was no longer under a desegregation order, 
the Oklahoma City Board of Education adopted a student 
reassignment plan (“SRP”) that significantly increased the 
number of racially identifiable schools. Id., at 242. The 
plaintiffs challenged the SRP as violating the court 
injunction, which they asserted had never been lifted. This 
Court concluded that because the 1977 order did not 
explicitly vacate the earlier injunctive decrees, they remained 
in effect. Id. at 244-45. However, the Court also found that 
the school board had acted with a good faith belief that it 
was no longer under court order when it adopted the SRP. 
Id. at 249 n .l. Under those unique circumstances, the Court 
remanded the case for a determination of whether the school 
board had been entitled to a unitary status declaration in 
1985 when it adopted the SRP, without considering the 
decision to adopt the SRP or its effects on racial segregation 
in the system. Id. at 249-50.

Because Dowell was decided in 1991, the year before 
CMS modified its student assignment policies, CMS and its 
staff fully understood that the district remained under the 
court’s desegregation orders when it shifted to the expanded 
magnet plan. (In fact, the magnet plan consultant advised 
CMS to obtain court approval of the changes.) Thus, CMS’ 
decision to remake pupil assignment is wholly different from 
the circumstances surrounding adoption of the SRP in 
Dowell.

Freeman. The case is similarly distinct from 
Freeman. First, this Court found that the DeKalb County 
schools had implemented a court-approved desegregation 
plan in 1969 that established race-neutral student 
assignments and desegregated the schools before the process 
was overwhelmed by dramatic changes in the racial 
demographics of the county. 503 U.S. at 478-79. This Court 
considered the attendance patterns established in DeKalb to



18

be “race-neutral” just as in Pasadena City Bd. o f Educ. v. 
Spangler, 427 U.S. 424 (1976). In Charlotte, however, the 
trial court had ruled in 1979 that “racially neutral attendance 
patterns have never been achieved,” in specific and detailed 
distinction from Spangler. Martin, 475 F. Supp. at 1322- 
24, 1340.

Second, the DeKalb County school system had not 
changed its method of student assignment with segregative 
results. Prior to its application for unitary status, the only 
significant change in pupil assignment methods in Freeman 
came in 1976, when the court ordered the DeKalb system to 
expand its Majority-to-Minority (“M to M”) transfer 
program, and when the DeKalb board introduced a small 
number of magnet schools. 503 U.S. at 473,479.4

In CMS, the method of pupil assignment changed 
fundamentally in 1992, with significant “resegregative 
effect.” Those effects - sharp increases in the number of 
racially identifiable schools and the extent of segregation at 
those schools, caused by school board action - persisted at 
the time of the district court’s hearing as vestiges of a 
segregated school system.

Demographic Change
The court below distorted this Court’s ruling in 

Freeman by applying it to CMS to hold that population 
growth within Mecklenburg County over thirty years, rather 
than the school board’s actions in 1992, explained the sharp 
increases in segregation within the system from 1992 to 
1999.

4 The trial court examined about 170 adjustments to attendance 
zones made within the framework of the court- ordered plan and found 
“only three had a partial resegregative effect.” Id.



19

However, comparisons between the changes in racial 
demography in DeKalb and Mecklenburg counties show no 
commonality. Black pupil enrollment in DeKalb shot up 
from less than 6% in 1969 to 47% in 1986. 503 U.S. at 475. 
In the ten years before the DeKalb school system applied for 
unitary status, its overall elementary enrollment fell 15%, but 
black elementary enrollment still increased 86%; overall 
high school enrollment dropped 16%, while black high 
school enrollment increased 119%. Id. at 476. These 
dramatic changes resulted from an influx of tens of 
thousands of black residents into the southern part of the 
county and a commensurate exodus of whites that reshaped 
the county into racially distinct poles. Id. at 475.

In contrast, the black population in Mecklenburg 
County changed only from 24% in 1970 to 27% in 1997. 
237a. Black student enrollment in CMS remained at a 
constant 40% for the decade preceding CMS’s revisions to 
student assignment in 1992. 239a. These stable racial
demographics coincided with increasing residential 
integration in the community from 1970 to 1997. 238a. 
Thus, CMS had maintained desegregation in all “but a few” 
of its schools when it decided to revamp its student 
assignment scheme. 265a.

The misapplication of Freeman’s acceptance of a 
demographic explanation for resegregation to the markedly 
different circumstances in CMS requires review and 
correction by this Court.

Location Of New Schools

The courts below also misapplied this court’s 
precedent in assessing the legal consequence of CMS’s 
school siting decisions. This Court recognized in Swann 
itself, involving this very school district, that building new 
school facilities in predominantly white areas distant from



20

residential concentrations of minority students would “lock 
in” patterns of segregation that typified the dual system. 402 
U.S. at 20-21. In Columbus Bd. ofEduc. v. Penick, 443 U.S. 
449, 460 (1979), the Court reiterated that formerly 
segregated districts have an affirmative responsibility to 
ensure that school construction practices “do not serve to 
perpetuate or re-establish the dual school system.” The duty 
applies to “the selection of sites for new school construction 
that had the foreseeable and anticipated effect of maintaining 
the racial separation of the schools.” Id. at 462. The 
“failure or refusal to fulfill this affirmative duty continues 
the violation of the Fourteenth Amendment.” Id. at 459 
(citing Dayton Bd. ofEduc. v. Brinkman, 433 U.S. 406, 413- 
14 (1977) and other cases). In affirming the trial court’s 
“unitary status” holding, the Fourth Circuit ignored these 
fundamental principles.

Despite marginally higher rates of growth in the 
school-age population in black residential areas from 1980 to 
the time of trial, CMS located 25 of 27 new schools in white 
residential areas, accelerating resegregation when CMS 
changed its pupil assignment methods in 1992 and putting 
the burden of desegregating those new schools almost 
entirely upon black children. Instead of locating schools in 
areas midway between racially distinct areas, CMS built 
schools in predominantly white areas and transported black 
pupils there to achieve some degree of desegregation in those 
new schools. This directly ignored the district court’s 
directives in Swann, which required CMS to locate schools 
in places readily accessible to both races and to lessen the 
burdens placed on black families by desegregation. See 
Martin, 475 F. Supp. at 1329-1332; 1338-1340.

This case accordingly presents important questions 
about the continuing vitality of the principles established in 
Swann and Penick that this Court should resolve.



21

Deterioration Of Schools In Predominantly African- 
American Areas

The impact of building new schools in white 
residential areas upon the racial identifiability of the 
district’s schools was compounded by the Board’s failure to 
adequately maintain and provide resources in the schools 
located in the black residential areas. Racial disparities in 
the facilities of a formerly dual school system have long 
been recognized as a vestige of the segregated system. 
Green v. County School Bd. o f New Kent County, 391 U.S. 
430, 435 (1968). The courts below, contrary to this Court’s 
precedent, found that these disparities in facilities (and in 
resources) were not vestiges of desegregation because they 
had not been shown to be the result of intentional 
discrimination by the board. 40a. See Argument II infra.

II

Contrary to Decisions of this Court, the Majority 
Below Held That Racial Disparities in Various Areas of 
the School District’s Operations Were Not Vestiges o f the 
Dual System Absent a Showing That They Resulted from 
Intentional Discrimination

In Dayton Bd. o f Educ. v. Brinkman, 443 U.S. 526, 
538 (1979), this Court stated clearly that “the measure of the 
post -Brown I  conduct of a school board under an unsatisfied 
duty to liquidate a dual system is the effectiveness, not the 
purpose, of the actions in decreasing or increasing the 
segregation caused by the dual system.” (citing Wright v. 
Council o f City o f Emporia, 407 U.S. 451, 460, 462 (1972) 
and other cases).

Nevertheless, in assessing whether racial disparities 
in school siting, burdens of transportation, and the quality of 
facilities located in white or black residential areas that 
existed at the time of trial were vestiges of the prior dual



22

system, the majority below incorrectly applied an intentional 
discrimination standard. E.g., 33a (“CMS never sited 
schools in order to foster segregation.”); 34a (“The evidence 
does not indicate that the abandonment of the ten percent 
rule or other decisions regarding school siting were the result 
of a desire to perpetuate the dual system or circumvent the 
district court’s orders,”); 40a (district court “concluded that 
any disparity as to the condition of the facilities [in black and 
white neighborhoods] that might exist was not caused by any 
intentional discrimination by CMS,” a finding that “is clearly 
determinative of the question of unitary status as to 
facilities.”); 35a (considering burdens of busing and 
approving “district court’s conclusion that the realities of the 
current situation should not block a unitary status 
determination” even though the “current realities” to which 
district court referred were the location of new schools in 
white areas and the creation of numerous inner-city satellites 
from which black pupils were transported, 273a-274a, school 
district practices to which the courts below applied an 
intentional discrimination standard).

The emphasis of the majority of the court of appeals 
on the necessity to show post-1970's intentional 
discrimination to establish that current disparities are 
vestiges of the prior dual system is contrary to the 
controlling decisions of this Court. It had two related 
effects, moreover that require review and reversal of the 
judgment below: first, it removed the presumption
applicable in de jure  school segregation cases that ongoing 
racial disparities in the operation of the schools are causally 
related to the dual system; second, it shifted the burden of 
proof from those seeking to end the district court’s 
jurisdiction - the party moving for unitary status - to the 
original plaintiffs. Keyes v. School Dist. No. 1, 413 U.S. 
189,207-211 (1973).



23

III

The Court Below Departed From Established 
Precedent In Declaring The Charlotte School District 
Had Attained Unitary Status Without Requiring The 
School District To Comply With Outstanding 
Desegregation Orders.

Under Dowell and Freeman, a school district must 
demonstrate compliance with the outstanding orders of the 
court before it can be released from court supervision. See, 
e.g., Freeman, 503 U.S. at 492. Yet the courts below 
declared that CMS had attained unitary status even though 
the history of the case and the trial record showed that the 
system had never complied with express orders designed to 
further desegregation. Certiorari should be granted to review 
and reverse this stark departure from this Court’s standards 
for determining unitary status.

From 1969 until 1973 the Board repeatedly 
challenged the district court’s authority to order 
desegregation, and the court entered numerous specific 
orders to accomplish that result. In 1974, the Board adopted 
guidelines for desegregation that the court embraced as a 
break from the Board’s previous attitude, with the caveat that 
the principles must be implemented to end the litigation. 
The court was emphatic:

The future depends upon the implementation of the 
new guidelines and policies. This approval is 
expressly contingent upon the implementation and 
carrying out of all the stated policies and guidelines. 
Here is the heart of the matter. Only if they are thus 
implemented is it likely that a fair and stable school 
operation will occur, and that the court can close the 
case.



24

Swann, 379 F. Supp. at 1103. In 1979, the same judge ruled 
in Martin that the Swann orders, including the guidelines 
from 1974, had not been implemented in specific areas. The 
facts from the trial record showed, and the school board 
admitted, that CMS had not, since Martin, complied with the 
prior orders regarding the location of new schools, the 
monitoring of student transfers to prevent resegregation, and 
the balancing of the burdens of desegregation. Despite the 
undisputed facts of non-compliance in these areas, the courts 
below declared that CMS had attained unitary status.

The courts below reconciled this record of non- 
compliance by dismissing the significance of Martin. The 
courts found the “concerns” of that case had no relevance to 
the unitary status inquiry because Martin had not itself been 
a unitary status hearing. The court of appeals declared that 
consideration of CMS’s continued non-compliance with the 
Swann orders as outlined in Martin “would defy common 
sense and run afoul of developments in the Supreme Court’s 
school desegregation jurisprudence.” Belk, at 32a.5 That 
holding, however, is flatly inconsistent with Freeman’s 
requirement that a school board must demonstrate its 
“commitment to the entirety of a desegregation plan” in 
order to attain unitary status, 503 U.S. at 498. The school 
board must show that compliance with all orders entered in 
the desegregation case, not just selective acquiescence with 
some. See Dowell, 498 U.S. at 249-50. (“The District Court 
should address itself to whether the Board has complied in 
good faith with the desegregation decree since it was 
entered, and whether the vestiges of past discrimination had 
been eliminated to the extent possible) (emphasis supplied); 
Pasadena City Bd. ofEduc. v. Spangler, 427 U.S. 424, 437-

The dissent in the court of appeals found the findings in 
Martin “are as binding on the parties as any others made in the course of 
this litigation.” Belk. at 155a, n. 10 (Motz and King dissenting).



25

40 (1976) (until modified or vacated by court with authority 
to do so, injunctive decrees must be obeyed even if they 
contain provisions contrary to rulings issued by this Court 
subsequent to their entry), citing Walker v. City o f 
Birmingham, 388 U.S. 307 (1967) and United States v. 
United Mine Workers, 330 U.S. 258 (1947). That reasoning 
of the court of appeals misapprehends the holdings in 
Freeman and Dowell and requires review and reversal by 
this Court.

IV

The Court Below Erroneously Sanctioned The 
Trial Court’s Refusal To Consider The School District’s 
Proposal For Eliminating The Vestiges Of Segregation 
To The Extent Practicable

The heart of the Dowell/Freeman test is that a 
formerly segregated school district must eliminate the 
vestiges of segregation to the extent practicable. Courts have 
long recognized the primacy and importance of allowing 
local school boards to determine in the first instance what 
measures might most effectively and practicably accomplish 
its constitutional obligations. The school district here made 
just such a determination by adopting and submitting to the 
court a remedial plan with specific proposals for complying 
with the orders of the court and eliminating the vestiges of 
discrimination within a specified period of time.

The district court not only refused to consider the 
Board’s plan; it refused to even allow it into evidence, thus 
completely ignoring the most probative and relevant 
evidence on the question of eliminating the vestiges and 
ignoring the strong and long tradition of federal courts’ 
deferring to local school board efforts to desegregate local 
schools. This Court recognized that tradition in its decision 
in this case:



26

Remedial judicial authority does not put judges 
automatically in the shoes of school authorites whose 
powers are plenary. Judicial authority enters only 
when local authority defaults. School authorities are 
traditionally charged with broad power to formulate 
and implement educational policy.

Swann, 402 U.S. at 16. It was only after the school 
authorities repeatedly defaulted in their obligation to develop 
a plan in the original case that Judge McMillan adopted a 
plan developed by a court appointed consultant.

The ultimate rationale for the district court’s refusal 
to admit and consider the Board’s remedial plan was the 
court’s objection to “the plan’s cardinal fixation on racial 
preferences”, 279a-283a. Of course, however, a 
desegregation plan must take race into account. See North 
Carolina State Bd. o f Ed. v. Swann, 402 U. S. 43 (1971); 
McDaniel v. Barresi, 402 U. S. 39 (1971). The court 
rejected the plan because it did what a desegregation plan is 
supposed to do — take race into account.

The majority below affirmed the district court’s 
refusal to consider the plan, although it did not adopt the 
district court’s rationale. Nonetheless, the rationale adopted 
by the majority is likewise flawed. The majority’s statement 
that Freeman and Dowell do not mandate consideration of 
the remedial plan in determining the issue of vestiges (53 a- 
55a) signals a fundamental misreading of those cases. 
Freeman and Dowell, as well as Green, do mandate 
consideration of the Board’s plan because the plan 
demonstrates that there is more that the Board can 
practicably do to eliminate the vestiges. There is simply 
nothing in any of those cases that supports or suggests that a 
plan developed by the school board and offered as a 
demonstration that continuing racial disparities linked to the



27

original dual system can be eliminated or reduced can or 
should be ignored by the court.

The majority’s alternative rationale, that the refusal 
constitutes harmless error, is equally flawed, if  not more so. 
The majority looked at the plan, although the plan was not 
made a part of the record nor analyzed by the district court, 
and pronounced it both duplicative of other evidence (54a) 
and “short on specifics” (55a). This approach flagrantly 
confuses the appropriate roles of trial and appellate courts 
and warrants the exercise of this Court’s supervisory 
authority over lower federal courts.

On its face, the plan is powerfully probative on the 
important student assignment issues in the case. The district 
court and the court below excused continued racially 
identifiable schools on the grounds that demographics and 
logistics required construction of most new schools in white 
suburbs and limited the extent to which (at least white) 
pupils could be transported for desegregation purposes. The 
CMS “controlled choice” plan at least offered a realistic 
promise of substantially reducing the level of racial isolation 
and identifiability at many schools without engaging in 
logistically impossible transportation or creating greater 
reassignment burdens. Surely it should have been evaluated 
on the record by the trial court rather than ignored. To find 
unitary status without even assessing its promise through the 
adversary process and formal findings that can be properly 
reviewed by an appellate court makes a mockery of the 
careful instructions about unitary status determinations this 
Court gave in Dowell and Freeman.

CONCLUSION

In Dowell and Freeman this Court established the 
parameters for ending court supervision of formerly de jure 
school systems. The case below, widely followed in its trial



28

and appellate phases, particularly by the hundreds of school 
systems that remain under court supervision, greatly distorts 
and even inverts the standards established by this Court. The 
decisions below, left unreviewed, promise the nation an end 
to school desegregation decrees even where a school district 
has taken actions that resegregate its schools, where it has 
not complied with outstanding orders of the court and where 
tangible vestiges of segregation exist. The practical steps a 
district knows it could take to comply with the prior orders 
and eliminate the persisting unresolved racial disparities in 
the operation of its schools will be irrelevant. A board's 
failure to meet its affirmative constitutional duties under a 
desegregation order will be excused simply if that failure 
was not intentional. The burden will now be on the black 
plaintiffs to show not that tangible vestiges of the de jure  era 
still persist, but to prove that those continuing disparities are 
the result of new, intentional discrimination. Such a result is 
a complete and dramatic departure from this Court’s school 
desegregation precedent and compels this Court’s review.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
Dennis D. Parker 
Naacp Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street, 16th fl. 
New York, NY 10013 
(212-965-2200)

* James E. Ferguson, II 
Julius L. Chambers 
John W. Gresham
S. Luke Largess 
Ferguson Stein Chambers 

Wallas Adkins Gresham 
& Sumter, P.A.

741 Kenilworth Ave., Ste. 300 
Charlotte, NC 28204 
(704) 375-8461
* Counsel o f Record 
Attorneys for Petitioners



APPENDIX



1

I N D E X

Page

Opinions o f the Court of Appeals
of September 21, 2001 .......................... ...................la

Opinion o f the District Court
o f September 9, 1999 .......................... ................. 222a

Order o f the District Court
o f April 14, 1999 .................................................. 368a

Judgment of the Court o f Appeals
o f September 21, 2001 .........................................  377a

Order of the Court of Appeals on Rehearing
of December 14, 2001 .........................................  382a



la

Opinions o f the Court o f Appeals o f  September 21, 2001

United States Court of Appeals,
Fourth Circuit.

Terry BELK; Dwayne Collins, on behalf of themselves and 
the class they represent, Plaintiffs-Appellants,

William Capacchione, Individually and on behalf of 
Christina Capacchione, a minor; Michael P. Grant; Richard 

Easterling; Lawrence Gauvreau; Karen Bentley; Charles 
Thompson; Scott C. Willard, Plaintiffs-Appellees,

v.
The CHARLOTTE-MECKLENBURG BOARD OF 

EDUCATION; Eric Smith, Superintendent, in his official 
capacity; Arthur Griffin, Chairman of the Charlotte- 
Mecklenburg School Board,in his official capacity, 

Defendants.

United States of America; North Carolina School Boards 
Association; National School Boards Association, 

Amici Curiae.

William Capacchione, Individually and on behalf of 
Christina Capacchione, a minor; Michael P. Grant; Richard 

Easterling; Lawrence Gauvreau; Karen Bentley; Charles 
Thompson; Scott C. Willard, Plaintiffs-Appellees,

and
Terry Belk; Dwayne Collins, on behalf of themselves and 

the class they represent, Plaintiffs, 
v.

The Charlotte-Mecklenburg Board of Education; Eric Smith, 
Superintendent, in his official capacity; Arthur Griffin, 

Chairman of the Charlotte-Mecklenburg School Board, in his 
official capacity, Defendants-Appellants.



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Opinions o f  the Court o f Appeals o f  September 21, 2001

United States o f America; North Carolina School Boards 
Association; National School Boards Association, 

Amici Curiae.
William Capacchione, Individually and on behalf of 

Christina Capacchione, a minor; Michael P. Grant; Richard 
Easterling; Lawrence Gauvreau; Karen Bentley; Charles 

Thompson; Scott C. Willard, Plaintiffs-Appellees,
and

Terry Belk; Dwayne Collins, on behalf o f themselves and 
the class they represent, Plaintiffs, 

v.
The Charlotte-Mecklenburg Board of Education; Eric Smith, 

Superintendent, in his official capacity; Arthur Griffin, 
Chairman of the Charlotte-Mecklenburg School Board, in his 

official capacity, Defendants-Appellants.

United States of America; North Carolina School Boards 
Association; National School Boards Association, 

Amici Curiae.

William Capacchione, Individually and on behalf of 
Christina Capacchione, a minor; Michael P. Grant; Richard 
Easterling; Lawrence Gauvreau; Karen Bentley; Charles 

Thompson; Scott C. Willard, Plaintiffs-Appellees,
and

Terry Belk; Dwayne Collins, on behalf of themselves and 
the class they represent, Plaintiffs,

v.
The Charlotte-Mecklenburg Board of Education; Eric Smith, 

Superintendent, in his official capacity; Arthur Griffin, 
Chairman of the Charlotte-Mecklenburg School Board, in his 

official capacity, Defendants-Appellants.



$

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Opinions o f  the Court o f  Appeals o f  September 21, 2001

United States of America; North Carolina School Boards 
Association; National School Boards Association, 

Amici Curiae.

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

Argued Feb. 27, 2001.
Decided Sept. 21, 2001

[269 F.3d 305]

*310 ARGUED: Stephen Luke Largess, James Elliot 
Ferguson, II, Ferguson, Stein, Wallas, Adkins, Gresham & 
Sumter, P.A., Charlotte, NC; John W. Borkowski, Hogan & 
Hartson, L.L.P., Washington, DC, for Appellants. Allan Lee 
Parks, Parks, Chesin & Miller, P.C., Atlanta, GA, for 
Appellees. ON BRIEF: John W. Gresham, C. Margaret 
Errington, Ferguson, Stein, Wallas, Adkins, Gresham & 
Sumter, P.A., Charlotte, NC; Elaine R. Jones, 
Director-Counsel, Norman J. Chachkin, Gloria J. Browne, 
NAACP Legal Defense & Educational Fund, Inc., New York, 
NY; Allen R. Snyder, Maree Sneed, Hogan & Hartson, L.L.P., 
Washington, DC; James G. Middlebrooks, Irving M. Brenner, 
Amy Rickner Langdon, Smith, Helms, Mulliss & Moore, 
L.L.P., Charlotte, NC; Leslie Winner, General Counsel, 
Charlotte- Mecklenburg Board of Education, Charlotte, NC, for 
Appellants. Kevin V. Parsons, Parks, Chesin & Miller, P.C., 
Atlanta, GA; John O. Pollard, McGuire, Woods, Battle & 
Boothe, Charlotte, NC; William S. Helfand, Magenheim, 
Bateman, Robinson, Wrotenbery & Helfand, Houston, TX; 
Thomas J. Ashcraft, Charlotte, NC, for Appellees. Bill Lann 
Lee, Acting Assistant Attorney General, Mark L. Gross, 
Rebecca K. Troth, United States Department of Justice,



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

Washington, DC, for Amicus Curiae United States. Michael 
Crowell, LisaLukasik, Tharrington Smith, L.L.P., Raleigh,NC; 
Allison B. Schafer, General Counsel, North Carolina School 
Boards Association, Raleigh, NC; Julie K. Underwood, 
General Counsel, National School Boards Association, 
Alexandria, VA, for Amici Curiae Associations.

*311 Before WILKINSON, Chief Judge, and WIDENER, 
WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, 
MOTZ, TRAXLER, KING, and GREGORY, Circuit Judges.

Affirmed in part and reversed in part by published opinions. 
A per curiam opinion announced the judgment of the court. 
Judge TRAXLER delivered the opinion of the court with 
respect to Parts I, II, IV, and V, in which Chief Judge 
W ILKINSON and Judges WIDENER, WILKINS, 
NIEMEYER, and WILLIAMS joined, and an opinion with 
respect to Parts III and VI, in which Judges WILKINS and 
WILLIAMS joined. Chief Judge WILKINSON wrote an 
opinion concurring in part in which Judge NIEMEYER joined. 
Judge WIDENER wrote an opinion concurring in part and 
dissenting in part. Judge LUTTIG wrote an opinion concurring 
in the judgment in part and dissenting from the judgment in 
part. Judges MOTZ and KING wrote a separate opinion in 
which Judges MICHAEL and GREGORY joined.

OPINION

PER CURIAM:

This case was argued before the en banc Court on 
February 27, 2001. The parties presented a number of issues



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

for our consideration, including whether the district court erred 
in (1) finding that unitary status had been achieved and 
awarding attorneys' fees to plaintiff-intervenors based on this 
find ing; (2) holding that the establishment of a magnet schools 
pro g ram  was an ultra vires, unconstitutional act justifying an 
award of nominal damages and attorneys' fees; (3) enjoining 
the Charlotte-Mecklenburg School Board from considering race 
in the future assignment of students or allocation of educational 
resources; and (4) sanctioning the Board for failing to comply 
with the district court's discovery order.

Having considered the briefs and arguments of the 
parties, a majority of the Court holds: (1) by a 7-4 vote (Chief 
Judge Wilkinson and Judges Widener, Wilkins, Niemeyer, 
Luttig, Williams and Traxler in the affirmative), the school 
system has achieved unitary status, but by a 6-5 vote (Chief 
Judge Wilkinson and Judges Niemeyer, Michael, Motz, King 
and Gregory in the affirmative) attorneys' fees for work done on 
the unitary status issue are denied; (2) by a 6-5 vote (Chief 
Judge Wilkinson and Judges Niemeyer, Michael, Motz, King, 
and Gregory in the affirmative), the Board did not forfeit its 
immunity for the establishment of the magnet schools program, 
and nominal damages and attorneys' fees in that regard are 
denied; (3) by a unanimous vote, the injunction is vacated; 
and (4) by a unanimous vote, the imposition of sanctions is 
affirmed.

The judgment of the district court is therefore affirmed 
on the finding of unitary status and the imposition of sanctions, 
reversed as to the finding of liability for nominal damages for 
the establishment of the magnet schools program, reversed as 
to the imposition of attorneys' fees for any reason, and reversed 
on the issuance of the injunction.



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

Unitary status having been achieved, the judgment of 
the district court vacating and dissolving all prior injunctive 
orders and decrees is affirmed. The Board is to operate the 
school system without the strictures o f these decrees no later 
than the 2002-2003 school year.

AFFIRMED IN  PART AND REVERSED IN  PART.

TRAXLER, Circuit Judge:

This case is hopefully the final chapter in the saga of 
federal court control over the Charlotte-Mecklenburg Schools 
("CMS"). Since 1971 CMS has operated under a federally 
supervised desegregation plan that included limited use of 
racial ratios, pairing and grouping o f school zones, and 
extensive busing. So successful was the plan that the district 
court removed the case from the active docket in 1975, 
expressing its belief that the once reluctant school board was 
committed to achieving desegregation and was already *312 
well on the way toward a unitary school system. Since then, 
two generations of students have passed through CMS and, 
until the present case, not one person has returned to court 
alleging that segregative practices have been continued or 
revived.

Now, nearly three decades later and prompted by a 
lawsuit filed by a white student challenging the magnet schools 
admissions policy, the question o f whether CMS has achieved 
unitary status has been placed before our courts. In 1999, the 
district court, after a lengthy hearing and searching inquiry, 
concluded that CMS had indeed achieved unitary status by 
eliminating the vestiges of past discrimination to the extent



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

practicable. This conclusion was not reached in haste; it was 
the result of a two-month hearing and an examination of 
extensive testimony and evidence relating to every aspect of 
CMS's educational system.

A majority of this court now affirms the district court's 
holding on this issue, satisfied that CMS has dismantled the 
dual school system. In sharp contrast to the situation in the late 
1960s, when black students were segregated in black schools 
and taught by a predominantly black staff, CMS students today 
are educated in an integrated environment by an integrated 
faculty. Nor do we turn over control to an indecisive and 
uncommitted school board. CMS currently operates under the 
firm guidance of an integrated school board which has clearly 
demonstrated its commitment to a desegregated school system.

In sum, the "end purpose" of federal intervention to 
remedy segregation has been served, and it is time to complete 
the task with which we were charged—to show confidence in 
those who have achieved this success and to restore to state and 
local authorities the control of their school system. 
Consequently, a majority of this court affirms the district 
court's unitary status determination.

However, while a majority of my colleagues agree that 
CMS has achieved unitary status, and have graciously joined 
me on this point, I respectfully depart from a separate maj ority's 
decision to reverse the district court's holding that CMS's 
magnet schools program, which was implemented in 1992, was 
an ultra vires, unconstitutional act justifying an award of 
nominal damages and attorney fees. By denying children, on 
account of their race, an equal opportunity to compete for open, 
unclaimed slots in CMS's extraordinary magnet program, I



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

believe the school board pushed too far and did more than 
either was required or permitted. Just as the educational 
process of the 1960s unconstitutionally deprived black children 
of educational opportunities solely on account o f their race, the 
magnet schools admissions policy deprives white children of 
educational opportunities solely on account of their race. 
Consequently, I depart from the separate majority in that I 
would affirm the district court's conclusion that the magnet 
schools program violated the Equal Protection Clause of the 
Fourteenth Amendment and the liability o f the school board for 
the violation.

I .

In 1896, the Supreme Court upheld a Louisiana statute 
"providing for separate railway carriages for the white and 
colored races." Plessyv. Ferguson, 163 U.S. 537,540,16 S.Ct. 
1138,41 L.Ed. 256 (1896). The Plessy majority characterized 
the statute as "not necessarily implying] the inferiority of 
either race," id. at 544, 16 S.Ct. 1138, but the first Justice 
Harlan, in dissent, aptly described the true aim of the law: 
"Everyone knows that the statute in question had its origin in 
the purpose, not so much to exclude white persons from 
railroad cars occupied by blacks, as to exclude colored people 
from coaches occupied by or assigned to white persons," id. at 
557,16 S.Ct. 1138 (Harlan, J., dissenting). *313 Justice Harlan 
further "den[ied] that any legislative body or judicial tribunal 
may have regard to the race of citizens when the civil rights of 
those citizens are involved." Id. at 554- 55, 16 S.Ct. 1138 
(Harlan, J., dissenting). Unfortunately, the principle of 
"separate but equal" reached much farther than Louisiana 
railways, and was applied to other public services, including 
education. The march of progress eventually proved the



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Opinions o f  the Court o f Appeals o f  September 21, 2001

correctness o f Justice Harlan's principled stand. Segregation, in 
all of its manifestations, was "arbitrary" and "wholly 
inconsistent with the civil freedom and the equality before the 
law established by the Constitution." Id. at 561-62, 16 S.Ct. 
1138 (Harlan, J., dissenting).

Early efforts aimed at combating the injustice wrought 
by Plessy in educational settings often centered on state-funded 
graduate and professional schools. See, e.g., Missouri ex rel. 
Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 
(1938); see generally Mark V. Tushnet, The NAACP's Legal 
Strategy Against Segregated Education 1925-1950 (1987). In 
Gaines, an African-American student was denied admission to 
the University o f Missouri School o f Law on account of his 
race. Missouri had no "separate but equal" law school for its 
African-American citizens and instead offered to pay Gaines' 
tuition and expenses for a legal education in another state. The 
Supreme Court held that Missouri's offer denied Gaines equal 
protection of the laws. The Court observed that "[t]he 
admissibility of laws separating the races in the enjoyment of 
privileges afforded by the State rests wholly upon the equality 
of the privileges which the laws give to the separated groups 
within the State." Gaines, 305 U.S. at 349, 59 S.Ct. 232. 
Though providing only small victories, cases like Gaines 
exposed "separate but equal" for the untenable proposition that 
it was.

In 1954, the Supreme Court recognized the futility of 
measuring equality in segregated facilities. See Brown v. Board 
o f Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) 
(Brown I ). Presented with a direct attack on Plessy in a 
secondary education case, the Court held that "segregation of 
children in public schools solely on the basis of race" violated



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

the Equal Protection Clause of the Fourteenth Amendment. Id. 
at 493,74 S.Ct. 686. The Court emphasized that an educational 
"opportunity, where a state has undertaken to provide it, is a 
right which must be made available to all on equal terms." Id. 
Recognizing that segregation differed from locality to locality, 
the Supreme Court subsequently declined to craft a broad, 
one-size- fits-all remedy, and instead instructed the federal 
district courts to oversee the implementation of appropriate 
relief based on the dictates of local circumstances. See Brown 
v. Board o f  Educ., 349 U.S. 294, 299, 75 S.Ct. 753, 99 L.Ed. 
1083 (1955) (Brown II )  ("Because of their proximity to local 
conditions and the possible need for further hearings, the courts 
which originally heard these cases can best perform th[e] 
judicial appraisal."). The district courts were directed to make 
use o f the "traditional attributes of equity power," id. at 300,75
S.Ct. 753, to ensure that students were "admit [ted] to public 
schools on a racially nondiscriminatory basis," id. at 301, 75 
S.Ct. 753. Elowever, under the Brown opinions it was unclear 
whether a school district was required to take affirmative steps 
to remedy the constitutional violation, see, e.g., Briggs v. 
Elliott, 132 F.Supp. 776, 777 (E.D.S.C.1955) (holding that 
Brown merely prohibited school districts from using the force 
o f law to separate the races), and very little progress resulted.

Before the Supreme Court provided further guidance to 
the lower federal courts, in 1965 the Swann plaintiffs, who 
were the original class action plaintiffs representing the 
interests of African-American children *314 in the district, 
challenged as constitutionally inadequate the efforts of CMS in 
complying with Brown. The school district's desegregation 
plan was based on freedom of choice whereby "any child, 
without regard to race, and without regard to minority or 
majority of race in any particular school, might freely transfer



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Opinions o f  the Court ofAppeals o f  September 21, 2001

to ano ther school o f his choice." Sw ann  v. 
Charlotte-Mecklenburg Bd. o f Educ., 243 F.Supp. 667, 668 
(W.D.N.C.1965). The district court approved the plan, 
observing that more could be done "to increase mixing of the 
races," but that the law imposed "no such duty upon ... the 
School Board." Id. at 670.

Concerned at the slow pace of school desegregation 
throughout the nation, the Supreme Court held in 1968 that 
school boards had an "affirmative duty" to end the 
state-imposed dual system of education. Green v. County Sch. 
Bd., 391 U.S. 430,437, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). 
The Justices underscored that "in desegregating a dual system 
a plan utilizing 'freedom of choice' is not an end in itself." Id. 
at 440, 88 S.Ct. 1689. The Swann plaintiffs then filed in the 
district court a motion for further relief "seeking] greater speed 
in desegregation of the Charlotte-Mecklenburg schools, and 
requesting] elimination of certain other alleged racial 
inequalities." Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 
300 F.Supp. 1358, 1360 (W.D.N.C. 1969). The district court, 
guided by the mandate o f Green, see Swann, 300 F.Supp. at 
1362, made a number of factual findings and concluded that the 
school district remained highly segregated.

The district court noted that over half of CMS's 24,000 
African-American students "attend schools that are all black, or 
very nearly all black, and most of the 24,000 have no white 
teachers." Id. at 1360. However, the court found no violations 
"in the use of federal funds; the use of mobile classrooms; 
quality of school buildings and facilities; athletics; PTA 
activities; school fees; free lunches; books; elective courses; 
nor in individual evaluation of students." Id. at 1372.



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

The district court directed CMS to submit "a positive 
plan for faculty desegregation effective in the fall o f 1969, and 
a plan for effective desegregation o f pupil population, to be 
predominantly effective in the fall o f 1969 and to be completed 
by the fall of 1970." Id. at 1360. The board procrastinated, but 
eventually submitted an enervated desegregation plan that the 
district court approved "with great reluctance" on a temporary 
basis. Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 306 
F.Supp. 1291,1298 (W.D.N.C.1969). CMS officials, however, 
continued to drag their feet, and the district court was forced to 
appoint its own expert, Dr. John A. Finger, to craft an 
efficacious desegregation plan. See Swann  v. 
Charlotte-Mecklenburg Bd. o f  Educ., 311 F.Supp. 265 
(W.D.N.C.1970). Dr. Finger's plan, adopted by the district 
court, included limited use of mathematical ratios, pairing and 
grouping of school zones, and busing. See id. We affirmed a 
portion of the plan, but vacated provisions dealing with the 
busing of elementary school students because of the perceived 
burdens on small children and the cost of purchasing new 
buses. See Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 431 
F.2d 138, 147 (4th. Cir.1970) (en banc). We remanded "for 
reconsideration of the assignment o f pupils in the elementary 
schools." Id. The Supreme Court granted certiorari and 
reinstated the district court's plan pending further proceedings. 
See Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 399 U.S. 
926, 90 S.Ct. 2247, 26 L.Ed.2d 791 (1970). The district court 
conducted eight days of hearings and examined five different 
desegregation plans. The district court concluded the Finger 
plan to be the best of the five, encompassing "a reasonable ... 
collection of methods for solving the problem" o f the dual 
system. *315Swann v. Charlotte- Mecklenburg Bd. o f  Educ., 
318 F.Supp. 786, 800 (W.D.N.C.1970). As for busing and the 
cost of new buses, the district court found that the Finger plan



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

took "proper advantage of traffic movement" and that new 
buses would cost only $660,000, a far cry from the millions of 
dollars that CMS had originally estimated. See id. at 797-98. 
Two months later, the Supreme Court granted certiorari and 
undertook an in-depth review of the power of the federal 
district courts to craft such sweeping desegregation remedies. 
See Swann v. Charlotte-MecklenburgBd. ofEduc., 402 U.S. 1, 
91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

The Supreme Court affirmed the desegregation plan 
adopted by the district court, and in the course of its opinion 
identified and offered guidance in "four problem areas." Id. at 
22, 91 S.Ct. 1267. First, the Court addressed the issue of the 
district court's use o f racial ratios. While the Supreme Court 
approved of a limited use of mathematical ratios in a plan 
crafted by a district court, it emphasized that such ratios were 
"a starting p o in t... rather than an inflexible requirement." Id. 
at 25, 91 S.Ct. 1267. The Court reminded district courts that 
"[t]he constitutional command to desegregate schools does not 
mean that every school in every community must always reflect 
the racial composition of the school system as a whole." Id. at 
24, 91 S.Ct. 1267. Second, the Court dealt with single-race 
schools. Though the Court concluded that schools consisting of 
predominantly one race were not per se unconstitutional, the 
Court instructed the district courts to utilize "close scrutiny to 
determine that school assignments are not part of state-enforced 
segregation." Id. at 26, 91 S.Ct. 1267. Third, the Court 
considered alterations o f attendance zones. The Court held 
"that the pairing and grouping of noncontiguous school zones 
is a permissible tool," id. at 28, 91 S.Ct. 1267, but declined to 
craft "rigid rules" in light of differing local circumstances, id. 
at 29, 91 S.Ct. 1267. Finally, the Court tackled the busing 
issue. The Court confirmed that a district court could order



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

"bus transportation as one tool of school desegregation," but 
within reasonable time and distance restrictions. Id. at 30, 91 
S.Ct. 1267.

Shortly after the Supreme Court issued its landmark 
Swann opinion, CMS asked the district court to abandon the 
Finger plan and permit the substitution of a "feeder plan" 
whereby schools would draw pupils from designated attendance 
areas in an effort to keep children together for their entire 
public school career. See Swann v. Charlotte-MecklenburgBd. 
ofEduc., 328 F.Supp. 1346 (W.D.N.C.1971). Citing concerns 
o f resegregation and the placement of additional burdens on 
African-American children, the district court questioned the 
feeder plan. See id. at 1350-53. CMS then withdrew its 
original feeder plan and began work on a modified version. See 
id. at 1353. The district court eventually approved a revised 
feeder plan that reopened several former black schools and 
prevented over- and under-utilization of facilities. See Swann 
v. Charlotte-Mecklenburg Bd. o f  Educ., 334 F.Supp. 623 
(W.D.N.C.1971).

However, within just two years it became clear that 
CMS's revised feeder plan was inadequate "for dealing with 
foreseeable problems" in the dismantling of the dual system. 
Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 362 F.Supp. 
1223, 1229 (W.D.N.C.1973). The district court found "that 
various formerly black schools and other schools will turn 
black under the feeder plan," id., and that "[rjacial 
discrimination through official action has not ended in this 
school system," id. at 1230. The district court again instructed 
CMS to design a new pupil assignment plan "on the *316 
premise that equal protection of laws is here to stay." Id. at 
1238.



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

In 1974 CMS adopted and the district court approved 
new guidelines and policies for pupil assignment. See Swann 
v. Charlotte-Mecklenburg Bd. o f  Educ., 379 F.Supp. 1102 
(W.D.N.C. 1974). The plan was designed by a citizens advisory 
group working with the board in an effort to reach "an 
acceptable consensus" on school desegregation in CMS, Id. at 
1103. The plan's most promising features were the avoidance 
of any majority black schools (with the exception of Hidden 
Valley, an exempted school), and a more equal distribution of 
the busing burden. See id. at 1105-1110. Praising the board for 
making "a clean break with the essentially 'reluctant' attitude 
which dominated Board actions for many years," the district 
court predicted that the policies and positive attitude would 
eventually result in a unitary school system. Id. at 1103.

The district court closed Swann in 1975 and removed 
the case from the active docket. See Swann v. 
Charlotte-Mecklenburg Bd. o f  Educ., 61 F.R.D. 648 
(W.D.N.C. 1975). In so doing, the district court observed that 
the board was "actively and intelligently addressing" recurrent 
problems related to dismantlement o f the dual system. Id. at 
649. The district court was so satisfied with the progress being 
made that it questioned whether it would ever be confronted 
with a motion to reopen the litigation. See id.

For three years there was no action in the case. This 
changed in 1978 when a group of white parents sought to 
enjoin CMS from reassigning over 4000 students in an effort to 
maintain racial balance in certain schools. See Martin v. 
Charlotte-Mecklenburg Bd. o f  Educ., 475 F.Supp. 1318 
(W.D.N.C. 1979). The parents attacking the 1978 student 
assignment plan "offered no live evidence but offered and 
relied upon a few written exhibits and admissions from the



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Opinions o f the Court ofAppeals o f  September 21, 2001

pleadings." Id. at 1321. Not surprisingly, the district court 
rejected the parents' challenge to the student assignment plan 
and praised CMS for its zeal in dismantling the dual system.

In 1980, CMS and the Swann plaintiffs again returned 
to the district court. The parties informed the district court that 
the African-American student population in CMS's elementary 
schools had grown from twenty-nine percent to forty percent, 
making it difficult to avoid predominantly black student bodies. 
To provide the board with some flexibility, the district court 
perm itted operation o f elem entary schools w ith 
African-American student bodies of plus fifteen percent above 
the district-wide average. See Swann v. Charlotte-Mecklenburg 
Bd. o f  Educ., No. 1974 (W.D.N.C. Apr. 17, 1980).

Since 1980, neither the board nor the Swann plaintiffs 
have approached the district court regarding alteration o f the 
earlier desegregation orders. And, until the present litigation, 
the Swann plaintiffs have never attempted to reopen the case in 
order to address any alleged failure by the board to comply with 
the district court's desegregation orders.

The controversy before us today arose in September 
1997 when William Capacchione ("Capacchione") filed suit 
against CMS on behalf of his daughter, Cristina, alleging that 
she had been unconstitutionally denied admission to a magnet 
school program on account of her race. In 1992, without prior 
court approval, CMS had adopted a desegregation plan focused 
mainly on the use of magnet schools. In filling magnet schools, 
CMS had instituted a black and a non-black lottery to achieve 
racial balance. If a sufficient number o f blacks or whites did 
not apply and fill the seats allotted to their respective races, 
then CMS would actively recruit children *317 of the desired



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

race despite lengthy waiting lists made up of children o f the 
other race. If the recruitment drive failed, CMS usually left the 
available slots vacant. Cristina, who is white, was placed on a 
waiting list and eventually denied admission to a program at the 
Olde Providence magnet school, which CMS marketed as "a 
school to benefit everyone." J.A. XXXII-15,670.

The original Swann plaintiffs moved to reactivate 
Swann and to consolidate it with Capacchione's suit. They 
asserted that the vestiges of the dual school system had not 
been abolished and that the use o f race in the magnet 
admissions policy was necessary for the school district to 
comply with the prior desegregation orders. The district court 
granted the motion and later permitted Capacchione to 
intervene in the Swann litigation. Seeking a finding that CMS 
had eradicated the vestiges of past discrimination, another 
group of parents, led by Michael P. Grant ("Grant"),1 was also 
permitted to intervene in the litigation.

After a two-month bench trial, the district court 
determined that CMS had achieved unitary status, that the 
race-based admissions policy for CMS's magnet schools fell 
outside prior orders and was not narrowly tailored to achieve a 
compelling state interest, and that an injunction was warranted. 
The district court "enjoin[ed] CMS from any further use of 
race-based lotteries, preferences, and set-asides in student 
assignment." Capacchione v. Charlotte- Mecklenburg Schs., 
57 F.Supp.2d 228, 292 (W.D.N.C.1999). Citing interests in 
stability, the district court concluded that the injunction would 
not affect student assignments for the 1999 2000 school year,

'Those represented by Capacchione and Grant will be referred to 
as the "plaintiff-intervenors."



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

but would apply to student assignments for the 2000-2001 
school year. See id. at 292 n. 52. The district court awarded 
Capacchione nominal damages in recognition of the 
co n stitu tio n a l v io la tio n  and also awarded the 
plaintiff-intervenors attorney fees. CMS and the Swann 
plaintiffs filed notices of appeal, and CMS moved to stay the 
injunction, except as applied to the magnet schools, until the 
2001-02 school year. The Swann plaintiffs moved for a 
complete stay pending appeal. On November 15, 1999, the 
district court denied the motions. CMS and the Swann 
plaintiffs, pursuant to Federal Rule of Appellate Procedure 
8(a)(2), moved this court for a stay. On December 30, 1999, 
we stayed the district court's injunction pending further order 
of this court.

After briefing and appellate arguments, a divided panel 
of this court vacated and remanded the district court's unitary 
status determination, holding that the district court's findings 
were insufficient in the areas of student assignment, facilities 
and resources, transportation, and student achievement. As for 
CMS's magnet schools admissions policy, the panel held that 
the policy was specifically permitted by prior court orders and 
that the policy did not violate the Constitution. The panel also 
vacated the district court's injunction, the award of nominal 
damages, and the award of attorney fees. See Belk v. 
Charlotte-Mecklenburg Bd. o f  Educ., 233 F.3d 232 (4th 
Cir.2000). A majority of the active circuit judges thereafter 
voted to hear this appeal en banc.

II. Unitary Status

The district court's unitary status finding is reviewed for 
clear error. See Riddick v. School Bd., 784 F.2d 521, 533 (4th



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

Cir.1986); Fed.R.Civ.P. 52(a). "A *318 finding is clearly 
erroneous when, although there is evidence to support it, on the 
entire evidence the reviewing court is left with the definite and 
firm conviction that a mistake has been committed." Faulconer 
v. Commissioner, 748 F.2d 890, 895 (4th Cir.1984). In 
clarifying the clearly erroneous standard, the Supreme Court 
has explained:

If the district court's account o f the evidence is 
plausible in light of the record viewed in its entirety, the 
court of appeals may not reverse it even though 
convinced that had it been sitting as the trier of fact, it 
would have weighed the evidence differently. Where 
there are two permissible views of the evidence, the 
factfinder's choice between them cannot be clearly 
erroneous.

Anderson v. City o f  Bessemer City, 470 U.S. 564, 573-74, 105 
S.Ct. 1504, 84 L.Ed.2d 518 (1985). The Supreme Court also 
stressed that even when appellate review is based primarily on 
documentary evidence, the clearly erroneous standard of review 
remains the same. See id. at 574, 105 S.Ct. 1504. So long as 
the district court's unitary status determination rests on a 
permissible view of the evidence, it must be affirmed.

The Supreme Court has declined to define or provide a 
"fixed meaning" for the term "unitary." Freeman v. Pitts, 503 
U.S. 467, 487, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). 
However, in light of the aim of Brown I, which was "the 
elimination of state-mandated or deliberately maintained dual 
school systems," Milliken v. Bradley, 418 U.S. 717, 737, 94 
S.Ct. 3112, 41 L.Ed.2d 1069 (1974) {Milliken I ) ,  a school 
system must be declared unitary when it no longer



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discriminates between children on the basis of race, see Green, 
391 U.S. at 442, 88 S.Ct. 1689. The burden o f proof falls on 
the party seeking an end to court supervision. See Freeman, 
503 U.S. at 494,112 S.Ct. 1430.

In undertaking a unitary status inquiry, a court must ask 
"whether the Board ha[s] complied in good faith with the 
desegregation decree since it was entered, and whether the 
vestiges of past discrimination ha[ve] been eliminated to the 
extent practicable." Board ofEduc. v. Dowell, 498 U.S. 237, 
249-50,111 S.Ct. 630,112 L.Ed.2d 715 (1991). Implicit in the 
Supreme Court's use of the term "practicable" is "a reasonable 
limit on the duration o f ... federal supervision." Coalition to 
Save Our Children v. State Bd. ofEduc., 90 F.3d 752, 760 (3d 
Cir.1996); see also Dowell, 498 U.S. at 247, 111 S.Ct. 630 
("From the very first, federal supervision o f local school 
systems was intended as a temporary measure to remedy past 
discrimination."). Hence, the goals of a desegregation order not 
only encompass a remedy for the violation, but also prompt 
restoration of local control. See Freeman, 503 U.S. at 490,112 
S.Ct. 1430 ("Returning schools to the control of local 
authorities at the earliest practicable date is essential to restore 
their true accountability in our governmental system.... Where 
control lies, so too does responsibility."); Milliken I, 418 U.S. 
at 741-42, 94 S.Ct. 3112 ("No single tradition in public 
education is more deeply rooted than local control over the 
operation of schools; local autonomy has long been thought 
essential both to the maintenance of community concern and 
support for public schools and to quality of the educational 
process.").

Among the most important reference points in 
determining whether a school board has fulfilled its duties so



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that local control may be resumed are the factors set out in 
Green: student assignment, faculty assignment, facilities and 
resources, transportation, staff assignment, and extracurricular 
activities. See *319Green, 391 U.S. at 435, 88 S.Ct. 1689. In 
its discretion, a court conducting a unitary status hearing may 
consider other relevant factors not mentioned in Green. See 
Freeman, 503 U.S. at 492, 112 S.Ct. 1430. We address the 
district court's consideration of each factor in turn, but only to 
determine whether "the district court's account of the evidence 
is plausible in light of the record viewed in its entirety." 
Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504.

A. Student Assignment

Student assignment is perhaps the most critical Green 
factor because state-mandated separation of pupils on the basis 
of race is the essence o f the dual system. See Freeman, 503 
U .S .a t474 ,112 S.Ct. 1430 (observing that the issue o f student 
assignment is "fundamental" because "under the former de jure 
regimes racial exclusion was both the means and the end of a 
policy motivated by disparagement o f ... the disfavored race"). 
To determine whether a school was racially balanced or 
imbalanced, the district court adopted a plus/minus fifteen 
percent variance from the district-wide ratio of black to white 
students. See Capacchione, 57 F.Supp.2d at 246. However, the 
district court emphasized "that there is no level o f compliance 
with the standard that is determinative." Id. When schools are 
outside the variance, a "reasonable and supportable 
explanation[ ]" will suffice. Id.

The district court did not err in adopting a plus/minus 
fifteen percent variance. Considering that the only variance 
ever approved by the district court in the course of the Swann



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litigation was a " 'plus 15%' from the district-wide average," id. 
at 245, the addition o f a minus fifteen percent is reasonable. 
Moreover, the Supreme Court has permitted a "limited use ... 
of mathematical ratios" by district courts, Swann, 402 U.S. at 
25, 91 S.Ct. 1267, and much higher variances have been used 
to define desegregation, see Manning v. Hillsborough County 
Sch. Bd., 244 F.3d 927, 935 (11th Cir.2001) (using a 
plus/minus twenty percent variance); see generally, David J. 
Armor, Forced Justice: School Desegregation and the Law 
160 (1995) (observing that in over seventy percent of the 
school districts with desegregation plans where racial balance 
is measured by numerical standards, a variance of plus/minus 
fifteen percent or greater is used).2 In sum, the plus/minus 
fifteen percent variance is clearly within accepted standards, 
and provides a reasonable starting point in the unitary status 
determination.

1. CMS's Compliance Record

2At trial, Dr. Eric Smith, the current superintendent of CMS, 
testified that unitary status depended on every school being in balance. See 
J.A. XV-7187 & 7239. This is not the law. See Swarm, 402 U.S. at 24, 91 
S.Ct. 1267 ("The constitutional command to desegregate schools does not 
mean that every school in every community must always reflect the racial 
composition of the school system as a whole.").

We find equally erroneous the Swann plaintiffs' assertion at 
appellate argument before the panel that "[t]he issue of how many schools 
are balanced has never been a question in this case." App. Tr. 91. The 
racial composition of schools goes to the heart of a desegregation case, and 
is very much key to a review of the district court's declaration of unitary 
status. See Swann, 311 F.Supp. at 268 (ordering CMS to assign pupils "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").



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The district court began by observing that since 1970, 
of the 126 schools in operation, "only twenty schools (16%) 
have had black student bodies higher than 15% above the 
district-wide ratio for more than three years, and only seventeen 
schools *320 (13%) have had black student bodies lower than 
15% below the district-wide ratio for more than three years " 
Capacchione, 57 F.Supp.2d at 248 (footnote omitted). In 
addition, the district court found that CMS has not operated a 
single-race school since 1970. See id.

The district court also turned to two desegregation 
indices: the dissimilarity index and the index of interracial 
exposure. The former "measures the degree o f racial 
imbalance, and it is derived by comparing the racial 
composition of each school to the district-wide composition," 
J.A. XXXIII-16,172, and the latter measures "the average 
percent white in schools attended by black students, weighted 
by the proportion o f black students in each school." J.A. 
XXXIII-16,172. According to the report of the plaintiff- 
mtervenors' expert witness, Dr. David J. Armor, a dissimilarity 
value of twenty or below signifies "a highly balanced school 
system" and a score under thirty signifies "a substantially 
desegregated system." J.A. XXXIII-16,172. CMS's dissimilarity 
score was sixteen in 1980 and twenty-six in 1995. From this it 
is clear that CMS quickly desegregated in the 1970s and 
continues to maintain a "substantially desegregated system." 
The dissimilarity index also indicates that CMS has better 
racial balance than several comparable districts did when they 
were declared unitary. See J.A. XXXIII-16,173.

The index of interracial exposure, like the dissimilarity 
index, shows that CMS has made great leaps of progress. A 
score of zero on the exposure index signifies total segregation,



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while a score of fifty or above indicates a "highly desegregated 
system." J.A. XXXIII-16,172. Schools in CMS typically score 
above fifty, whereas before the desegregation order the schools' 
scores hovered near twenty or below. See J.A. 
XXXIII-16,194-96.

CMS and the Swann plaintiffs correctly point out that 
the data suggest that in recent years racial imbalance has 
increased in some schools. Aware of this trend, the district 
court made a number o f findings on growth and demographic 
change in the Charlotte-Mecklenburg area. The most revealing 
findings are as follows:

• the county population has increased from 354,656 in 
1970 to 613,310 in 1997

• in 1970 the school district was the forty-third largest in 
the nation and is today the twenty-third largest

• among cities with more than 500,000 people, Charlotte 
ranks second in population growth in the 1990s

• the racial composition of the county has changed from 
seventy-six percent white and twenty-four percent black 
in 1970 to sixty-eight percent white, twenty-seven 
percent black, and five percent other in 1997

• the current racial composition of schoolchildren is fifty 
percent white, forty-two percent black, and eight 
percent other

• as the county has become more suburban the inner city 
and nearby suburbs have lost large numbers of white 
residents as they spread farther out into the formerly 
rural sections o f the county

• some middle suburban communities that were once all 
white are now predominately black

• the rural black population in the southern part of the



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county has remained relatively constant while the white
population has tripled because of suburbanization

See Capacchione, 57 F.Supp.2d at 236-39. These findings are 
supported by the report of the plaintiff-intervenors' expert in 
demographics, Dr. William Clark. See J.A. *321 
XXXIII-16230-306. Accordingly, the district court concluded 
that "[t]here can be no doubt that demography and geography 
have played the largest role in causing imbalance." 
Capacchione, 57 F.Supp.2d at 250.

Testimony from Dr. John Murphy, CMS's 
superintendent from 1991 to 1995, corroborates the district 
court's conclusion. Dr. Murphy testified that when he assumed 
his duties he "was quite concerned about the increasing 
difficulty in bringing about racial balance ... because o f the 
demographic shifts that were occurring." J.A. VI-2712. 
Population growth translated into more automobiles on the 
road, making increased busing impracticable because "the 
travel time to move youngsters from the suburbs into the city 
with the flow of rush hour traffic was a problem." J.A. 
VI-2732. In the fall of 1991, CMS hired Dr. Michael J. Stolee 
to examine the problem and offer solutions. Dr. Stolee also 
concluded that CMS's task "has been complicated by 
population growth," J.A. XXXII-15,571, and he recommended 
the adoption of a magnet schools program, which CMS 
promptly implemented.

The Supreme Court has dealt with similar population 
growth and shifting demographics in the context of unitary 
status. In Freeman, the court unequivocally stated that "racial 
imbalance ... [is] not tantamount to a showing that the school 
district [is] in noncompliance with the decree or with its duties



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Opinions o f  the Court o f Appeals o f  September 21, 2001

under the law." 503 U.S. at 494, 112 S.Ct. 1430. Brown I, of 
course, does not mandate that racial balance be pursued in 
perpetuity. Once the original racial imbalance caused by a 
constitutional violation has been rectified, "the school district 
is under no duty to remedy imbalance that is caused by 
demographic factors." Freeman, 503 U.S. at 494, 112 S.Ct. 
1430.

The Swann plaintiffs contend that consideration of 
demographics and the rationale of Freeman are misplaced 
because the growth and shifting demographics of DeKalb 
County, Georgia, the school district under court order in 
Freeman, exceeded that of Charlotte-Mecklenburg. While 
CMS's growth rates and demographic shifts certainly do not 
equal those experienced in DeKalb,3 we can find nothing in 
Freeman limiting its holding to the specific facts o f DeKalb 
County or establishing DeKalb as the standard for measuring 
imbalance caused by demographic factors. On the contrary, the 
opinion speaks in general terms. The Supreme Court observed 
that in the United States "it is inevitable that the demographic 
makeup of school districts, based as they are on political 
subdivisions such as counties and municipalities, may undergo 
rapid change." Id. at 495,112 S.Ct. 1430. Mobility, the Court 
noted, "is a distinct characteristic of our society." Id. at 494, 
112 S.Ct. 1430.

Similarly, the Swann plaintiffs contend that unlike 
DeKalb County, Mecklenburg County has become more

3For example, the population of DeKalb County grew from 70,000 
in 1950 to 450,000 in 1985, and the percentage of black students in the 
district grew from 5.6 percent in 1969 to forty-seven percent in 1986. See 
Freeman, 503 U.S. at 475, 112 S.Ct. 1430.



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integrated as the black population has increased. This is simply 
not true. For example, a report prepared in 1992 by the 
Charlotte-Mecklenburg Planning Staff for Chairman Arthur 
Griffin concluded that "Charlotte-Mecklenburg continues to be 
a city of segregated neighborhoods" with " [concentrations of 
Black households... generally located in the central city." J.A. 
XXI-10,485; see also J.A. XXVIII-13,803 (1992 student 
assignment plan stating that "housing across the county is not 
racially integrated. Approximately 50% of all *322 black 
students live within one district, while only 10% of white 
students reside in that district."); J.A. XXII-10,575 (CMS 
report chronicling growth o f the black population and decline 
of the white population in the inner city). Clearly, increased 
housing integration is not necessarily a corollary of 
African-American population growth. Hence, despite the 
Swann plaintiffs' best efforts, Freeman cannot be distinguished 
into nothingness, nor does the standard of review permit this 
court to reweigh the evidence of the changes in CMS.

We also note that when confronted with growing 
imbalance in certain schools, the district court demanded 
cogent and supportable explanations from  the 
plaintiff-intervenors, paying special attention to the former de 
jure schools still in use. See Capacchione, 57 F.Supp.2d at 
246. Evidence presented at trial indicated that "[o]f the 16 
former black schools that are still open, 13 are currently 
balanced and have been desegregated for periods ranging from 
22 to 28 years. Of the 3 that currently exceed the +15% black 
variance, each has been balanced for at least 22 years." J.A. 
XXXIII-16,176. Interestingly, o f the seventy-two former white 
schools that are still open, fifteen are now majority black and 
were in balance for periods of twelve to twenty-five years. See 
J.A. XXXIII-16,176.



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In addition, Dr. Armor examined the seventeen schools 
in CMS that exceeded the plus fifteen percent variance for three 
or more years during the last decade. See J.A. XXXIII-16,174 
76.4 Sixteen of the seventeen were balanced for periods 
ranging from nineteen to twenty-six years, with one school 
experiencing balance for sixteen years. To the extent that 
CMS's pupil reassignments could be assessed, Dr. Armor 
concluded that changes instituted by CMS were "attempts to 
maintain or restore racial balance in the face of overwhelming 
demographic growth and mobility." J.A. XXXIII-16,176. 
Indeed, Dr. Armor concluded that imbalance had been reduced 
in several o f the schools because CMS's magnet program 
attracted white students from the outer reaches of the county.

4Dr. Armor did not include the predominantly white schools in this 
analysis on three grounds:

(1) the court order did not establish a minimum percent black 
enrollment, (2) the half-dozen schools that have had low black 
enrollment for the past three or more years and that were operating 
in 1972 have been racially balanced for at least ten years[,] and (3) 
the demographic analysis of Dr. Clark shows that these schools 
have become imbalanced or were opened imbalanced because of 
the substantial white enrollment growth in the outskirts of the 
county.

J.A. XXXIII-16,174 (footnote omitted); see also Swann, 402 U.S. at 26,91 
S.Ct. 1267 (observing "that the existence of some small number of one- 
race, or virtually one-race, schools within a district is not in and of itself the 
mark of a system that still practices segregation by law").



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Long periods of almost perfect compliance with the 
court’s racial balance guidelines,5 coupled with some imbalance 
in the wake of massive demographic shifts, strongly supports 
the district court's finding that the present levels of imbalance 
are in no way connected with the de jure segregation once 
practiced in CMS. See Freeman, 503 U.S. at 495, 112 S.Ct. 
1430 ("Where resegregation is a product not of state action but 
o f private choices, it does *323 not have constitutional 
implications."); Manning, 244 F.3d at 944 ("Where a [party 
seeking a finding of unitary status] shows that demographic 
sh ifts are a substantial cause of the racial imbalances, [the 
party] has overcome the presumption of de jure segregation."); 
United States v. Meriwether County, 171 F.3d 1333,1339 (11th 
Cir.1999) (observing that a "school district need not wage a 
battle against demographics to achieve perfect racial balance"). 
The evidence presented at trial adequately explained why a few 
schools have become imbalanced, and we can discern no 
evidence or omissions that indicate clear error has been 
committed in this regard.

2. Martin and Unitary Status

The Swann plaintiffs also point to school sitings, 
transportation burdens, and school transfers as evidence that the 
growing imbalance is caused by state action rather than private 
choices, and that CMS has not complied with the district court's 
orders in good faith. In advancing their argument, the Swann 
plaintiffs rely chiefly on Martin v. Charlotte-Mecklenburg

sEven the Swann plaintiffs admit that ten years after the district 
court charged the board with taking affirmative steps to desegregate 
schools, the system ”w[as] nearly 100% statistically compliant with the 
court's orders." Plaintiff Appellants' Brief at 38.



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Board o f Education, 475 F.Supp. 1318 (W.D.N.C.1979), in 
which a group of parents sought to enjoin CMS from 
reassigning over 4000 students in order to maintain racial 
balance in certain schools. The plaintiffs in Martin based their 
position onPasadena City Board o f Education v. Spangler, 427 
U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), and Regents 
o f the University ofCalifornia v. Bakke, 438 U.S. 265,98 S.Ct. 
2733,57 L.Ed.2d 750 (1978). In the former case, the Supreme 
Court reaffirmed that district courts could not order a school 
district "to rearrange its attendance zones each year so as to 
ensure that the racial mix desired by the court was maintained 
in perpetuity," Spangler, 427 U.S. at 436,96 S.Ct. 2697, and in 
the latter the Court struck down a medical school admissions 
policy that reserved sixteen of one hundred seats in the entering 
class for applicants who were " 'economically and/or 
educationally disadvantaged' " and who were members of 
certain minority groups, Bakke, 438 U.S. at 274,98 S.Ct. 2733. 
The district court in Martin distinguished Spangler by 
observing that it was but a restatement of the Swann Court's 
admonition about the use of racial quotas and that, unlike 
Pasadena City, CMS had not achieved racially neutral 
attendance patterns. See Martin, 475 F.Supp. at 1340. As for 
the Bakke decision, the district court pointed out that no student 
in CMS was denied "an equal educational opportunity" and that 
the admissions policy in Bakke was implemented "against a 
backdrop devoid of specific judicial findings or administrative 
acknowledgments of the prior segregated status of the school 
system." Id. at 1345. Accordingly, the Martin court concluded 
that CMS's reassignment of students was "within constitutional 
limits and should be upheld." Id. at 1321. The district court 
took pains to ensure that its opinion would not be interpreted 
too broadly: "This order simply upholds the actions of the 
1978 Board against the attacks by the plaintiffs." Id. at 1347.



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In the course of the Martin opinion, the district court observed 
that CMS had fallen short in four areas: construction and 
location of facilities in parts of the county likely to enhance 
desegregation, placement of elementary and kindergarten 
grades in schools throughout the county, monitoring of student 
transfers so as to prevent resegregation, and allocation of the 
burdens of busing. See id. at 1328- 29. However, the district 
court also noted that CMS had made great progress and that a 
return to the old system of segregation "has not tempted the 
present School Board, who are standing fast in their endeavor 
to run the schools according to law while providing quality 
education." Id. at 1347.

*324 In Capacchione, the district court correctly 
observed that "Martin was not a unitary status hearing," 
Capacchione, 57 F.Supp.2d at 250, and that because "the 
desegregation plan was still in its fledgling stages, the Court 
was inclined to keep the pressure on CMS," id. at 251. The 
Capacchione court further observed that post -Martin changes 
in Charlotte-Mecklenburg counseled looking at the "concerns 
[of Martin ] in a new light." Id. The district court's 
interpretation of Martin is reasonable and in accord with the 
rule in this circuit that a district court, as a continuous 
institution, is "best able to interpret its own orders." Vaughns 
v. Board ofEduc., 758 F.2d 983, 989 (4th Cir.1985) (school 
desegregation case). Moreover, the Martin order was issued 
thirteen years before the Supreme Court made clear in Freeman 
that the affirmative measures mandated by Green are not meant 
to remedy "private choices" that lead to resegregation. 
Freeman, 503 U.S. at 495,112 S.Ct. 1430. The state of the law 
and the understanding of duties upon school districts were far 
different when Martin was handed down. Hence, a number of 
assertions in Martin cannot be squared with the present state of



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the law. See, e.g., Martin 475 F.Supp. at 1346 (stating that 
segregated housing patterns must necessarily lead to the 
unconstitutional segregation of schools). Ignoring the changes 
in Charlotte-Mecklenburg and in the law by erecting Martin as 
the framework for unitary status, as the Swann plaintiffs urged 
below, would defy common sense and run afoul of 
developments in the Supreme Court's school desegregation 
jurisprudence. See United States Gypsum Co. v. Schiavo Bros., 
668 F.2d 172, 176 (3d Cir.1981) (concluding that a successor 
judge "is empowered to reconsider [the legal conclusions of an 
unavailable predecessor] to the same extent that his or her 
predecessor could have"); see also Meriwether County, 171 
F.3d at 1339 ("The law does not make a school district a 
prisoner based on factors, such as demographic tendencies, that 
are beyond its control."). We will examine the district court’s 
Martin findings in turn.

a. School Siting

The district court found that CMS had not shirked its 
duties under the law with regard to school sitings. See 
Capacchione, 57 F.Supp.2d at 251 - 53. The record reveals that 
CMS has, to the extent practicable, continually endeavored to 
site schools in order to foster integration, and has adopted a 
policy of building schools in areas equally accessible to blacks 
and whites. Testimony of current board members indicated that 
in efforts to fulfill this policy, CMS has purchased property in 
low growth areas for school construction even though schools 
in predominantly white high growth areas were overcrowded. 
See J.A. V -1986-87. In 1992 CMS reaffirmed its siting policy 
and resolved that, "whenever possible," new schools would be 
built in areas that would "provide black student enrollment of 
not less than 10 percent from the census tracts serving the new



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

school." J.A. XXXII-15,686. The impetus behind the 
resolution was growth in the periphery of the county which the 
board speculated would continue patterns of housing 
segregation, thus making it more difficult to maintain racial 
balance in the schools. Evidence presented at trial indicated 
that the ten percent rule was destined for failure because it was 
not possible to implement the rule and still "meet the 60-minute 
bus ride limit." J.A. XXII-10,869. Nevertheless, extensive 
evidence was presented showing that CMS never sited schools 
in order to foster segregation and that "every effort was made 
to try to find school sites that would bring people together in 
balanced numbers." J.A. VI-*325 2752; see Meriwether 
County, 171 F.3d at 1337 (stating that "the absence of evidence 
indicating that racial motives played any part in the Board's 
decisionmaking process" is relevant in accessing compliance 
with desegregation orders). For example, CMS's executive 
director of p lann ing and student placement testified that in 
siting schools CMS "looked at both African-American and all 
populations not only in the vicinity of the site, but in the entire 
district." J.A. VII-2920. So dedicated was CMS to siting 
schools in integrated areas that it contemplated refusing a gift 
of land for school use because the land was in a predominantly 
white area. See J.A. V- 1985.

Faced with growth in the predominantly white regions 
of the far south and north, see J.A. XXXIII-16,261, CMS was 
compelled to serve populations in those areas via school 
sitings. CMS's data show that in the late 1990s, student 
population was "growing at nearly 4,000 students per year," 
J.A. XXIX-14,133, and consequently the board was "just trying 
to keep up" with the population explosion in building schools, 
J.A. V-2249. Overcrowding was a problem, and in the late 
1990s "the average high school expected to operate at 109



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percent o f its capacity." J.A.XXIX-14,133. Even though CMS 
was forced to build schools at a rapid rate to serve an 
expanding student population, pupil assignment plans in which 
CMS described population growth as a "major consideration [ 
]" are replete with efforts to improve racial balance. J.A. 
XXIX-14,133. For example, the 1997-98 assignment plan 
highlighted the creation and expansion of several magnet 
programs specially designed to reduce the black ratio in a 
number of schools. See J.A. XXIX-14,147-51. To the extent 
practicable, CMS did not sacrifice racial balance concerns to 
population growth. Though the two often pulled CMS in 
different directions, the record indicates that the board 
coordinated racial balance and school sitings as best it could 
under the circumstances. The evidence does not indicate that 
the abandonment of the ten percent rule or other decisions 
regarding school siting were the result of a desire to perpetuate 
the dual school system or circumvent the district court's orders.

CMS and the Swann plaintiffs, citing to prior orders, 
counter that the board has not done all that it could do in the 
area of school siting. Erection of such a standard, however, 
would effectively replace practicability with possibility. See 
Manning, 244 F.3d at 945 (observing that "the law does not 
require a defendant school board to take every conceivable step 
in attempting to desegregate"). The former implies measures 
that can be reasonably implemented under the circumstances, 
while the latter omits the reasonableness requirement. For 
instance, it was possible for CMS to adhere to the ten percent 
rule while ignoring growth in the far north and south o f the 
county. Youngsters would have been compelled to ride buses 
for long periods while traveling with the flow of rush hour 
traffic, but it was nonetheless possible to adhere to the ten



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percent rule. Of course, the practicability of a refusal to 
respond to growth in Charlotte-Mecklenburg is another matter.

In the same vein, the Swann plaintiffs contend that 
school siting decisions were a response to white flight, which 
is an impermissible reason for failing to comply with a 
desegregation order. Growth, of course, is fax different from 
flight. And experts offered evidence of "the economic boom in 
the Charlotte Metropolitan area in the last decade." J.A. 
XXXIII-16,233. Charlotte- Mecklenburg is one of the most 
dynamic areas in the South: it is far different from the 
Charlotte-Mecklenburg of Swann, and much changed from that 
of Martin. In *326 light of the growth in the county and 
aplethora of evidence demonstrating that the board used its best 
efforts to site schools in order to foster integration, the district 
court did not commit error when it concluded that there is no 
"continuing constitutional violation[ ] in the area of school 
siting." Capacchione, 57 F.Supp.2d at 253.

b. Burdens of Busing

As for the burdens of busing, the district court found 
that in the most recent school year, 15,533 black students and 
11,184 non-black students were bused for balancing purposes. 
Id. As stated earlier, traffic patterns make busing suburban 
students into the inner city far more difficult than busing 
inner-city children into the suburbs. See J.A. VI-2732; J.A. 
V-2228. Though a d isproportionate num ber o f 
African-American students are bused, the growth, housing 
patterns, and traffic patterns support the district court's 
conclusion that the realities of the current situation should not 
block a unitary status determination. See Meriwether County, 
171 F.3d at 1341 (finding no constitutional violation when



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white students are "somewhat less burdened by the 
transportation scheme" because of demographic factors),

c. Student Transfers

Finally, M artin 's concern with student transfers appears 
to have been based on the assumption that CMS would 
experience average growth. Courts are not omniscient, and the 
district court in 1979 could not have foreseen the changing 
demographics that would make student transfers the least of 
CMS's worries. In the present litigation, the district court 
observed "that CMS 'kept an eye on [magnet transfers] so that 
there wouldn't be a run on the bank so to speak from any one 
school.'" Capacchione, 57 F.Supp.2d at 250 n. 10 (alteration 
in original). This finding is not clearly erroneous, nor can we 
discern the need for more findings on this issue in light of 
post-Martin changes.

3. Conclusion

In sum, the district court's findings on student 
assignment are "plausible in light o f the record viewed in its 
entirety." Anderson, 470 U.S. at 573,105 S.Ct. 1504. The dual 
system of student assignment in CMS has been eradicated "to 
the extent practicable." Dowell, 498 U.S. at 250, 111 S.Ct. 
630. The imbalance existing in some schools is not traceable 
to the former dual system or to renewed discriminatory actions, 
but rather is a result of growth and shifting demographics. 
Consequently, we hold that the district court's findings on 
student assignment are not clearly erroneous.

B. Faculty Assignment



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In examining faculty assignment, the district court again 
used a plus/minus fifteen percent variance. Of the 126 schools 
operating in CMS, the district court found that in 1997-98 only 
ten schools were out of balance. The Swann plaintiffs point out 
that this number grew to sixteen in 1998-99, but this means that 
a mere twelve percent o f the schools were out of balance. This 
is a far cry from the dual system in which "most of the 24,000 
[black students] ha [d] no white teachers." Swann, 300 F.Supp. 
at 1360. There is simply no evidence that CMS assigns black 
teachers to predominantly black schools and white teachers to 
predominantly white schools. Thus, the district court's 
conclusion that this Green factorhas been satisfied is not clearly 
erroneous.

C. Facilities and Resources

The Swann plaintiffs and CMS contend that the district 
court impermissibly shifted *327 the burden of proof on this 
factor. As a result of the alleged error of law, CMS and the 
Swann plaintiffs contend that this issue must be remanded to 
the district court.

This court has previously made clear that "once a court 
has found an unlawful dual school system, [those alleging the 
existence of racial disparities] are entitled to the presumption 
that current disparities are causally related to prior segregation, 
and the burden of proving otherwise rests on the defendants." 
School Bd. o f  the City o f  Richmond v. Baliles, 829 F.2d 1308, 
1311 (4th Cir.1987). In this case, however, the district court 
noted that none of the prior orders entered in the long history of 
the Swann litigation had ever found racial disparities to exist 
with regard to school facilities and concluded that CMS and the 
Swann plaintiffs bore the burden of establishing discrimination



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with regard to facilities. See Capacchione, 57F.Supp.2dat263 
("[I]t would defy logic to place now the burden of proof on the 
Plaintiff Intervenors, requiring them to prove that vestiges of 
discrimination in facilities have been remedied, when the Court 
originally found no vestiges to exist.”). In our view, this 
erroneous assignment of the burden of proof, which did not 
affect the manner in which the parties tried the case or 
otherwise prejudice their rights, is harmless and does not 
undermine the district court's factual conclusions regarding the 
facilities factor.6

Immediately after assigning the burden to CMS and the 
Swann plaintiffs, the district court's order nonetheless 
summarized and weighed the facilities evidence presented by 
the parties. The district court carefully analyzed the testimony 
and report of Dr. Dwayne Gardner, an expert witness for CMS. 
Dr. Gardner analyzed seventy-three schools—every identiflably 
black school in CMS and a sampling of balanced schools and 
predominantly white schools. Dr. Gardner measured the 
adequacy, safety, healthfulness, accessibility, flexibility, 
efficiency, expansibility, and appearance of the schools. Based 
on the inspection he grouped schools as follows: "0-44 
(suggests replacement), 45-59 (needs major improvement), 
60-74 (needs minor improvement), 75-89 (serves program 
needs), and 90-100 (exceptional quality)." Id. at 264. The 
survey revealed that of the four schools that warranted

6Given the counter-intuitive alignment of the parties in this case, 
it could be argued that the presumption and burden allocation set forth in 
Baliles should not be applied, and that CMS should instead be required to 
prove the existence of racial disparity in its facilities. See United States v. 
City o f Yonkers, 181 F.3d301,309-11 (2d Cir.1999), vacated onreh'g, 197 
F.3d 41 (2d Cir.1999).



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replacement, two were majority white, and two were 
imbalanced black. See J.A. XXV-12,182-86. Thirty-four 
schools fell into the "needs major improvement" category, of 
which sixteen were imbalanced black and eighteen identifiably 
white.

The district court determined that Dr. Gardner's 
testimony established that any current disparities were 
functions o f the age o f the facilities at issue, because

different building standards apply when a new facility 
is constructed as compared to when an older facility is 
renovated or upgraded. In other words, the renovation 
o f an older facility usually complies with the code 
under which the facility was built. Because most 
facilities in the predominately black inner city are older 
while facilities in the predominately white suburbs are 
newer, the inference is that differences in building 
s tandards tend  to affect b lack students 
disproportionately. This does not amount to racial 
discrimination. Indeed, *328 this practice applies 
regardless o f the racial composition of the school. 
Thus, older schools that are predominately w hite- 
several of which were built in the 1920s—are likewise 
affected by this practice.

Capacchione, 57 F.Supp.2d at 265 (footnote and transcript 
references omitted). Thus, the district court concluded from 
Dr. Gardner's testimony and report "that CMS’s facilities needs 
are spread across the system without regard to the racial 
composition of its schools." Id.

The district court also considered the testimony of 
CMS's assistant superintendent of building services, who



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testified that out of 108 schools in need of renovations, 
eighty-one percent were racially balanced or identifiably white. 
See J.A. VIII-3810 & 3818. The district court concluded that 
this witness's testimony likewise demonstrated that the 
deficiencies in CMS's facilities were unrelated to the former de 
jure system.

Finally, the court considered CMS's track record in 
renovating old facilities, praising its practice of allocating funds 
on a per-pupil basis and noting that "CMS has spent a large 
portion of[its] bond money on improving schools in 
predominantly black areas." Capacchione, 57F.Supp.2dat266.

After an extensive discussion of this evidence, the court 
made the following finding of fact with regard to facilities:

Just as Judge McMillan found thirty years ago, the 
Court finds today that inequities in facilities exist 
throughout the system regardless o f the racial makeup 
of the school. These disparities are generally the result 
of the relative ages of the facilities, combined with an 
ongoing lack of funding and the need to accommodate 
unprecedented growth.

Id.

This finding is clearly determinative of the question of 
unitary status as to facilities, regardless o f which party carried 
the burden of proof. That is, the district court, after carefully 
considering and weighing all the evidence presented on this 
factor, concluded that any disparity as to the condition of the 
facilities that might exist was not caused by any intentional 
discrimination by CMS, but instead was a function o f the age 
and location of the facilities and the ever-present problem of



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allocating all too scarce funds. Even if the district court had 
assigned the burden of proof to the plaintiff-intervenors, this 
factual finding would have compelled a ruling in their favor. 
In fact, the district court acknowledged as much, stating "that 
the Plaintiff-intervenors have proven, to the extent possible, the 
absence of intent and causation." Capacchione, 57F.Supp.2d 
at 267 n.38.7

Therefore, because the district court's findings, which 
were based on the court's weighing o f all of the relevant 
evidence presented at trial, would have yielded the same 
conclusion under a proper assignment of the burden of proof, 
any error with regard to the burden of proof is harmless. See 
*329Washington State Dep't o f  Transp. v. Washington Natural 
Gas Co., 59 F.3d 793, 801 (9th Cir.1995) (finding district 
court's improper assignment of the burden of proof to be 
harmless because review of the entire record established "that 
under the proper assignment of the burden of proof, the district 
court would have reached the same decision"); Applewood 
Landscape & Nursery Co. v. Hollingsworth, 884 F.2d 1502, 
1506 (1st Cir.1989) (concluding that, if the district court 
improperly allocated burden of proof on a particular issue, the

’From this footnote and the district court's detailed discussion 
about the cause of any disparity in CMS's facilities, it appears that the 
district court really made alternative rulings on the facilities question: The 
court first concluded that CMS and the Swann plaintiffs bore the burden of 
proof with regard to facilities and that they failed to carry that burden. See 
Capacchione, 57 F.Supp.2d at 267 (”[T]he Swann Plaintiffs have failed to 
overcome the Court’s previous findings on facilities by establishing the 
requisite discriminatory intent and causation."). The court then ruled in the 
alternative, as indicated by the footnote and the findings, that the 
plaintiff-intervenors proved that any disparities were the result of factors 
unrelated to state action.



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error was harmless because the district court's decision on that 
issue turned on the weight of the evidence in the record and not 
on burden of proof rules); cf. Vaughns, 758 F.2d at 992 
(recognizing that an error in shifting the burden of proof in a 
school desegregation case may be harmless if  the record is such 
that the court can conclude that substantial rights have not been 
prejudiced).

Because any error associated with the burden of proof 
is harmless, the only question that remains is whether the 
district court's factual findings about the facilities are clearly 
erroneous. Though the evidence could have been weighed 
differently on this factor, "[wjhere there are two permissible 
views of the evidence, the factfinder's choice between them 
cannot be clearly erroneous." Anderson, 470 U.S. at 574, 105 
S.Ct. 1504. In 1969, the district court found that there was no 
constitutional violation in the "quality o f school buildings and 
facilities." Swann, 300 F.Supp. at 1372. The Capacchione 
court found that this remains true today, and the evidence as a 
whole indicates that this finding is not clearly erroneous.

D. Transportation

During the 1998 school year, five out of every six 
students in CMS rode a school bus. See Capacchione, 57 
F.Supp.2d at 267. The parties do not dispute the district court's 
finding that "CMS provides free bus transportation to all 
students who do not live within a mile and a half o f their 
schools." Id. The focus of the Swann plaintiffs' argument on 
this factor deals with the Martin opinion. As previously 
discussed, Martin does not provide the framework for a unitary 
status determination and the district court's interpretation of 
Martin, along with the finding that the present state of busing



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"may be about the best CMS can do, Capacchione, 57 
F.Supp.2d at 253, does not constitute error.

E. Staff Assignment

The district court, noting that findings o f discrimination 
in school staffing were never made, concluded that CMS has 
complied with its constitutional duties. The parties point this 
court to no contrary evidence, nor have we discovered such in 
the record. Therefore, we hold that the district court's findings 
regarding the fifth Green factor are not clearly erroneous.

F. Extracurricular Activities

The district court concluded that there was no 
discrimination or vestiges of discrimination with regard to 
extracurricular activities. The evidence presented at trial 
showed that the ratios of blacks and whites participating in 
extracurricular activities, though varying somewhat from year 
to year, is approximately equal. See J.A. XXIV-11,634. Areas 
where there are disparities were not shown to be linked to the 
former dual system. For example, blacks often outnumber 
whites in holding elective offices in student government, but 
whites have a higher level of representation in honors 
programs. No evidence is found in the record to indicate that 
CMS somehow pushes African-Americans toward student 
government and away from honors programs. Consequently, 
the district court's *330 conclusion that CMS has satisfied this 
Green factor is not clearly erroneous.

G. Ancillary Factors 

1. Teacher Quality



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

The district court found that there was no discrimination 
in the quality of teaching. The Swann plaintiffs contend that 
this finding is clearly erroneous because students in imbalanced 
African-American schools are more likely to have 
inexperienced teachers. This "experience gap," to the extent it 
exists, is minuscule. The district court found that "teachers in 
imbalanced- black schools had 0.7 to 1.3 fewer years 
experience than the district averages and had 1.6 to 2.9 fewer 
years experience than teachers in imbalanced-white schools." 
Capacchione, 57 F.Supp.2d at 271. To use middle school 
teachers as an example, the statistics reveal that the average 
middle school teacher in an imbalanced African-American 
school had 8.2 years experience versus 9.8 years for his 
counterpart in an imbalanced white school. Id. These numbers 
clearly support a finding of equality rather than disparity, and 
cannot undermine the district court's conclusion on this factor.

The district court also pointed to evidence indicating 
that experience does not necessarily relate to competency. For 
example, according to former Superintendent Murphy, it is not 
uncommon to have "excellent first-year teachers" and "very 
weak 35th-year teachers." J.A. VI-2795. Other witnesses 
observed that the newer teachers had better "knowledge of 
various teaching strategies" and were more comfortable with 
diverse classrooms. J.A. VII-3275.

The Swann plaintiffs also assert that imbalanced 
African-American schools have fewer teachers with advanced 
degrees. For instance, in imbalanced black high schools only 
thirty-one percent of the teachers held advanced degrees, while 
forty-six percent of the teachers in imbalanced white high 
schools held advanced degrees. See Capacchione, 57



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F.Supp.2d at 271. As it was with teacher experience, testimony 
was offered establishing that the number of degrees a teacher 
possesses does not necessarily translate into competence or 
quality instruction. See J.A. VII-3276. According to former 
Superintendent Murphy, "the degree level was not a significant 
indicator of getting better performance on the part of the 
teacher." J.A. VI-2795. Expert reports submitted by the 
plaintiff-intervenors also indicated that there is "no significant 
relationship" between black achievement and teacher education 
levels. J.A. XXXIII-16,221. In sum, the district court's 
conclusion that African-American students receive equal access 
to quality teachers is not clearly erroneous.

2. Student Achievement

The district court found that the existence o f an 
achievement gap between black and white students was not a 
vestige of the dual system or evidence of discrimination in the 
current operation of CMS. This was an area of immense 
disagreement at trial, and the parties presented a mountain of 
data on this subject. Though the Fourteenth Amendment 
guarantees equal protection but not equal outcomes, if  low 
African-American achievement is a result of the former de jure 
system, it must be eliminated to the extent practicable. See 
Dowell, 498 U.S. at 249-50, 111 S.Ct. 630. Conversely, to the 
extent that low achievement is linked to other factors, it is 
beyond the reach of the court's authority. Most courts of 
appeals confronting this issue, including this court, have 
declined to consider the achievement gap as a vestige of 
discrimination or as evidence of current discrimination. See 
*331Baliles, 829 F.2d at 1313 (upholding lower court's 
findings that low achievement is "primarily attributable to the 
high incidence of poverty" in the school district); see also



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United States v. City o f  Yonkers, 197 F.3d 41,54 (2d Cir. 1999) 
(observing that "using achievement test scores as a measure, 
either direct or indirect, of a school system's movement away 
from segregation is deeply problematic"), cert, denied, 529 U.S. 
1130, 120 S.C t 2005, 146 L.Ed.2d 956 (2000); People Who 
Care v. Rockford Bd. o f  Educ., I l l  F.3d 528, 537 (7th 
Cir. 1997) (explaining that a number o f variables, other than 
discrimination, account for the achievement gap); Coalition to 
Save Our Children, 90 F.3d at 778 (finding "a causal link 
between ... socioeconomic factors and student achievement").

The plaintiff-intervenors' expert witness, Dr. Armor, 
presented evidence indicating that there is no correlation 
between African-American performance and the racial balance 
ofschools. Seel.A . XXXIII-16,178. For example, Dr. Armor's 
studies showed that African-American students in the third 
through fifth grades attending schools sixteen to twenty-five 
percent African- American scored the same on standardized 
tests as their counterparts in schools seventy-five percent black 
or greater. See J.A. at 16,214. Similarly, African-American 
students in the sixth through eighth grades attending schools 
sixteen percent black or less scored the same on standardized 
tests as their counterparts in schools seventy-five percent black 
or greater. See J.A. XXXIII-16,215.

In order to shed light on the true causes o f the 
achievement gap, Dr. Armor turned to socioeconomic factors. 
The data revealed startling differences between black and white 
children in CMS.

Average black family income is $31,000 compared to 
$59,000 for whites, and only 15 [percent] o f black 
parents are college graduates, compared to 58 percent



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for white parents. A huge poverty gap is also revealed, 
with 63 percent o f black students on free lunch 
compared to only 9 percent of white students. Finally, 
83 percent of white students have both parents at home, 
compared to only 42 percent for black students.

J.A. XXXIII-16,179. According to Dr. Armor, the
socioeconomic factors plus the second grade scores, which are 
the earliest available, explain "nearly 80 percent o f the reading 
gap and over 70 percent o f the math gap." J.A. XXXIII- 
16,180. Former Superintendent Murphy testified that in his 
experience "[p]oor students come behind and stay that way. 
And in Charlotte, a majority o f poor students happen to be 
African-American." J.A. VI-2696. Dan Saltrick, former 
assistant superintendent for instructional services, also testified 
that in his experience low student test scores related to parental 
support which in turn was "a matter of ... socioeconomic 
levels." J.A. VII-328G. While socioeconomic disparities 
between black and white pupils are troubling, they are not the 
result of CMS's actions or inactions and therefore are beyond 
the scope of the original desegregation order. See Baliles, 829 
F.2d at 1314 ("Educational deficiencies that result from 
problems such as poverty are best remedied by programs 
directed toward eliminating poverty, not by indirect solutions 
through school programs.").8 Accordingly, *332 the district

8Despite evidence that the achievement gap results from factors 
outside CMS's control, the district court found that CMS has undertaken 
sundry measures to eliminate the gap. For example, CMS adopted financial 
incentives for teachers and principals tied to student performance, urged 
black students to take advanced placement and other higher level classes, 
challenged all students by removing "fluff courses" from the curriculum, 
provided tutors and other forms of staff support to accelerate student 
preparedness, and adopted pre-kindergarten programs to accelerate



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court did not clearly err in finding that the achievement gap 
between black and white students is not a vestige of past 
discrimination or evidence of present discrimination.

3. Student Discipline

The district court found "that any disparities that exist 
in the area of discipline are not causally related to the dual 
system." Capacchione, 57 F.Supp.2d at 281. In none of the 
court's prior orders is there any indication that CMS has ever 
discriminated in meting out punishment for disruptive students. 
However, recent statistics show that of the 13,206 students 
disciplined from 1996-98, sixty-six percent were 
African-American. See J.A. XXIY-11,637. As the district 
court noted, "disparity does not, by itself, constitute 
discrimination." Capacchione, 57F.Supp.2dat281. The idea 
that CMS should have a disciplinary quota is patently absurd, 
and there is no evidence in the record that CMS targets 
African-American students for discipline. Instead, the evidence 
indicates that CMS has adopted guidelines whereby students 
receive the same level of punishment for certain offenses to 
ensure that the amount of punishment will not vary from school 
to school. A student charged with a disciplinary infraction may 
also appeal the charge "and may assert that the charge was due 
to racial bias." Id. There is simply no evidence in the record 
that CMS treats African-American students differently in 
disciplinary matters. Hence, the district court's conclusion that 
the disciplinary disparities are unrelated to the former de jure 
system is not clearly erroneous.

preparedness forthe youngest of students. See Capacchione, 57F.Supp.2d 
at 273-275.



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H. Good Faith

Lastly, the district court found that CMS has complied 
with the desegregation decree in good faith. See Freeman, 503 
U.S. at 491, 112 S.Ct. 1430 (requiring school board "to 
demonstrate its good-faith commitment to a constitutional 
course of action"). Seven factors supported the district court's 
good-faith finding: (1) no further relief has been sought since 
the district court removed the case from the active docket in 
1975; (2) CMS has gone above and beyond the court's orders 
by continually striving to achieve balance even when the 
imbalance was unconnected to the dual system; (3) the board 
has been open to community input and sought community 
support for its integrative efforts; (4) the board has repeatedly 
reaffirmed its commitment to desegregation through various 
resolutions; (5) African-Americans currently occupy four of 
the nine seats on the school board, including the chair; (6) the 
board's actions over the past thirty years do not evince 
discriminatory motives; and (7) "no evidence has been 
presented that school authorities were guilty of easily 
correctable errors." Capacchione, 57 F.Supp.2d at 282-83.

Testimony from former board members indicated that 
the court's order has been "institutionalized," J.A. V-2222, and 
that the board "always stuck to what the rules were." J.A. 
V-2234. Former Superintendent Murphy testified that when he 
arrived in Charlotte-Mecklenburg he found a "unique" 
environment where "everybody wanted to make sure that their 
schools were racially balanced." J.A. VI-2686. In 1992, Dr. 
Stolee suggested a magnet plan to increase integration, and, in 
the course of his recommendations, observed that "[fjorthe last 
twenty years, the Charlotte-Mecklenburg Board of Education 
and the Charlotte-Mecklenburg community have, *333 in good



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faith, complied with the orders o f the court." J.A. 
XXXII-15,570. He further observed "that the 
Charlotte-Mecklenburg Board and community have a great deal 
of pride in the fact that they successfully met a challenge and 
made the solution work." J.A. XXXII-15,571.

Of course, both in the district court and in appellate 
arguments, current CMS officials engaged in much 
self-recrimination and claimed that they had not pursued the 
dismantlement of the dual system with the requisite zeal. Right 
on cue, the Swann plaintiffs describe this case as "unique" 
because CMS "has acknowledged its own failure to comply 
with specific directives" of the district court. Swann Plaintiffs' 
Response to Petition for Rehearing at 10. The district court 
gave little weight to CMS's assertions that the board had not put 
forth enough effort, and the evidence presented at trial amply 
supports the district court in this regard. Former 
Superintendent Murphy testified that despite a report indicating 
that CMS was unitary and his belief that CMS "w[as] definitely 
in compliance," no effort was made to dissolve the court order. 
J.A. VI-2706. Dr. Murphy gave three reasons for the avoidance 
of a unitary status hearing. First, he advised board members 
that the court hearing would be "a long, drawn-out process 
which would cost millions of dollars, and that would be money 
taken away from the instructional program." J.A. VI-2706. 
Second, Dr. Murphy feared that if  CMS was declared unitary 
"we would not be eligible for federal funding for our magnet 
schools." J.A. VI- 2706; see also J.A. XXII-10,563 (CMS 
report observing that "school districts that intend to use magnet 
schools for desegregation purposes can apply for grants from 
the federal government"); J.A. XXI-10,521 (1996-1997 
Federal Magnet School Assistance Program Evaluation Report 
in which CMS describes federal funding as "an integral part" of



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its pupil assignment plan). Finally, Dr. Murphy thought it best 
to remain under court order so CMS could continue to racially 
balance schools even though the de jure violation had been 
remedied.

Dr. Susan Purser, the current associate superintendent 
of education services of CMS, expressed a similar desire for 
CMS to remain under court order. Though Dr. Purser testified 
that she believed that the school board, superintendent, and 
administration were dedicated to enhancing educational 
opportunities for all of CMS's students regardless of race, she 
nonetheless expressed a preference for court supervision. Dr. 
Purser pointed out that the current "Board has only a limited 
time, because these are elected positions," J.A. XVII-8076, and 
that over time "superintendents will change, [and] the people 
involved in [CMS] will change." J.A. XVII-8077. At this 
point in the cross examination, counsel asked Dr. Purser: "But 
you don't know what any future School Board or administration 
will do either way, do you?" J.A. XVII- 8077. Dr. Purser 
responded: "That's exactly my point." J.A. XVII-8077. Dr. 
Purser's testimony and that o f Dr. Murphy exemplify why the 
Supreme Court has stressed that "federal supervision of local 
school systems was intended as a temporary measure to remedy 
past discrimination." Dowell, 498 U.S. at 247, 111 S.Ct. 630; 
see also Coalition to Save Our Children, 90 F.3d at 761 n. 6 
(warning of "the potential for the entrenchment of [a] putatively 
transitional desegregation scheme"). The district court's 
desegregation orders were not intended to continue after CMS 
remedied the de jure violation, nor were they intended to 
suspend the democratic process with no prospect o f restoration. 
Yet the orders have been institutionalized to the point that CMS 
officials cannot imagine life without them. Once a yoke meant 
to steer *334 CMS towards compliance with the Constitution,



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the orders are now used by CMS officials as mechanisms for 
the attainment of different goals. In truth, CMS officials have 
little desire for a unitary status determination and are struggling 
to keep the orders firmly in place.

Ironically, CMS's clinging to the temporary 
desegregation orders buttresses the district court's finding that 
it is unlikely "CMS would return to an intentionally-segregative 
system." Capacchione, 57 F.Supp.2d at 284. If CMS will go 
to such lengths to keep the court's orders in place so that it may 
continue racial balancing and other policies, it is unthinkable 
that CMS will attempt to revive the dual system. Accordingly, 
the district judge's finding of good faith is not clearly 
erroneous.

I. CMS's Remedial Plan

As a response to the plaintiff-intervenors' push for 
unitary status, CMS developed a "remedial plan" addressing 
many o f the Green factors and other ancillary factors. See J.A. 
XXIII-11,028. The district court dismissed the remedial plan 
as a " 'litigation strategy' plan" and declined to consider it. 
Capacchione, 57 F.Supp.2d at 256. CMS and the Swann 
plaintiffs characterize the district court's treatment of the 
remedial plan as a fundamental error of law that requires 
reversal o f the unitary status determination. First, CMS and the 
Swann plaintiffs aver that the district court misconstrued the 
test for unitary status. Adopting the test crafted by the panel 
opinion, CMS and the Swann plaintiffs assert that a district 
court must consider (1) what a school district has done, and (2) 
what a school district may do in the future. See Belk, 233 F.3d 
at 252-53. Because the district court did not undertake the 
latter inquiry as to the remedial plan, CMS and the Swann



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plaintiffs argue that the district court's order must be reversed. 
This proffered two-part test is divined from Supreme Court 
cases which have instructed district courts to ask "whether the 
Board ha[s] complied in good faith with the desegregation 
decree since it was entered, and whether the vestiges of past 
discrimination ha[ve] been eliminated to the extent
practicable." Dowell, 498 U.S. at 249-50, 111 S.Ct. 630; see 
also Freeman, 503 U.S. at 491, 112 S.Ct. 1430.

While we agree with the first prong of the test, we do 
not agree that examining "whether the vestiges of past 
discrimination ha[ve] been eliminated to the extent
practicable," Dowell, 498 U.S. at 249-50, 111 S.Ct. 630, 
requires a district court-as a matter of law -to consider a 
remedial plan conceived, drafted, and offered by one of the 
parties during the lawsuit as an obvious defense to it. The plain 
meaning of the relevant language is that in some desegregation 
cases simple compliance with the court's orders is not enough 
for meaningful desegregation to take place. See Swann, 402 
U.S. at 25, 91 S.Ct. 1267 (stating that "a district court's 
remedial decree is to be judged by its effectiveness"). For 
example, a decree entered in the 1960s or 1970s could have 
underestimated the extent of the remedy required, or changes 
in the school district could have rendered the decree obsolete. 
In either case, a district court must look beyond mere 
compliance with the original decree and ask whether the 
vestiges of the dual system have been eliminated to the extent 
practicable. In the present case, the district court undertook 
such an inquiry. Not only did the district court address 
compliance, but it also looked beyond the original decree and 
exam ined how the extensive changes in the 
Charlotte-Mecklenburg area have affected the dismantling of 
the former dual system. Hence, the district court was not



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required under Dowell and *335 Freeman to have considered 
CMS's eleventh-hour remedial plan.

Likewise, the district court did not run afoul o f Federal 
Rule of Evidence 402 when it refused to consider the remedial 
plan. Rule 402, of course, declares tha t" [a]ll relevant evidence 
is admissible." Fed.R.Evid. 402. Even relevant evidence may 
be excluded, however, when its probative value is substantially 
outweighed by considerations of the needless presentation of 
cumulative evidence. See Fed.R.Evid. 403. And CMS’s 
remedial plan was certainly cumulative, citing and 
summarizing several expert reports which had been admitted 
into evidence. For example, the plan's discussion o f faculty 
assignment is based on the reports of Dr. William Trent, Dr. 
Robert Peterkin, and Dr. Roslyn Mickelson; the plan's 
discussion of facilities is based on Dr. Gardner's report; the 
plan's discussion of the achievement gap between blacks and 
whites is based on the reports of Dr. Trent, Dr. Peterkin, and 
Dr. Mickelson; and the plan's student assignment discussion is 
based on Dr. Gordon Foster's report. All o f the aforementioned 
reports were admitted into evidence and the authors of the 
reports testified at the hearing and were subject to 
cross-examination. Hence, much of the remedial plan was 
cumulative, providing the district court with but a rehashing of 
expert reports and testimony.

To the extent that the remedial plan contained relevant 
evidence appearing nowhere else in the record, we hold that the 
exclusion of such evidence was harmless. According to 
Federal Rule of Civil Procedure 61, a "court at every stage of 
the proceeding must disregard any error or defect in the 
proceeding which does not affect the substantial rights of the 
parties." Listing myriad deficiencies, objectives, and strategies,



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the thirty-one page remedial plan is often short on specifics. 
Considering the amount of evidence presented on every aspect 
of CMS's operations during other phases of the two- month 
bench trial, we cannot hold that the exclusion of the remedial 
plan affected CMS's substantial rights. See Ingram Coal Co. v. 
Mower, L.P., 892 F.2d 363,366 (4th Cir.1989) (applying Rule 
61). Because the exclusion o f the remedial plan in no way 
renders the judgment below suspect, the district court's 
treatment o f the plan cannot support reversal.

J. Conclusion

Pursuant to the foregoing, we affirm the district court's 
unitary status determination in toto. The district court's 
findings on the Green factors and the ancillary factors are bereft 
of clear error and we cannot discern any error of law affecting 
the substantial rights of the parties. After more than three 
decades of federal court supervision, CMS has complied in 
good faith with the mandate of Brown embodied in the district 
court's desegregation orders to achieve a unitary school system. 
The dual system has been dismantled and the vestiges of prior 
discrimination have been eliminated to the extent practicable.

This is not to say that CMS is a perfect school 
system-it is not. Like school systems across the nation, CMS 
faces an expanding pupil population, aging facilities, and a 
scarcity of funds. These difficulties, however, are not vestiges 
of the former de jure system and therefore do not have 
constitutional implications. Considering CMS's exemplary 
efforts in eradicating the segregated school system, we are 
confident that de jure segregation is history.



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III. Magnet Schools

I turn now to Capacchione's challenge to CMS's 1992 
magnet schools plan. Specifically, Capacchione contends that 
his daughter Cristina was unconstitutionally *336 denied 
admission to a magnet school program on account o f her race. 
Capacchione does not argue that race should not have been a 
factor in the magnet admissions process, but that the inflexible 
quotas, which operated to leave seats in these specialized 
schools vacant despite long waiting lists, went beyond what 
was permissible under prior court orders and the Constitution.

As noted previously, CMS operated its schools in nearly 
perfect racial balance for almost twenty years under a pupil 
assignment plan, adopted by the board and approved by the 
district court in 1974, which primarily utilized paired 
elementary schools, satellite attendance zones, a feeder system, 
and three experimental "optional schools." See Swann, 379 
F.Supp. at 1103-05; J.A. XXVIII-13,536-44. In 1991, 
however, CMS hired Dr. Stolee to examine racial imbalance 
that was being caused anew by the demographic shifts and 
population growth in Mecklenburg County. The result of Dr. 
Stolee's labors was a new pupil assignment plan, entitled "CMS 
Student Assignment Plan: A New Generation of Excellence." 
This new plan emphasized the use of magnet schools, which 
would allow CMS to phase out the unpopular paired 
elementary schools. Magnet schools, many of which were 
located in predominately black neighborhoods, offered a 
specialized curriculum or innovative instructional styles not 
found in the other schools in the system.

Form er Superin tenden t M urphy oversaw  
implementation of the Stolee plan and testified that the magnet



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program was adopted because CMS "wanted to attract more 
white youngsters into the inner city schools" in order to meet 
CMS's racial-balance goals. J.A. VI-2709. Dr. Stolee observed 
in his report that "Charlotte-Mecklenburg has had a long and 
successful experience with mandatory school assignments," but 
that in order to combat demographic shifts CMS should adopt 
a plan based on voluntarism. J.A. XXXII-15,581; see also 
Missouri v. Jenkins, 515 U.S. 70, 92, 115 S.Ct. 2038, 132 
L.Ed.2d 63 (1995) {Jenkins I I I )  ("Magnet schools have the 
advantage of encouraging voluntary movement of students 
within a school district in a pattern that aids desegregation on 
a voluntary basis, without requiring extensive busing and 
redrawing of district boundary lines."); J.A. XXVIII-13,796 
(student assignment plan boasting that "Charlotte, the city 
which prides itself on leading the nation in integration through 
busing, now has the opportunity to become the city to lead the 
nation in voluntary busing"). A desegregation plan using 
magnet schools, according to Dr. Stolee, would "give[ ] each 
parent an opportunity to make a choice between a school 
serving the area in which the family resides, a school in some 
other area, or a school offering a very' specific attractive 
program." J.A. XXXII-15,580. Dr. Stolee also recognized that 
the magnet-centered plan would be a dramatic shift from the 
prior desegregation plan which featured paired elementary 
schools, satellite attendance zones, and a feeder system. Thus, 
as part of the plan, he recommended that CMS secure approval 
from the district court before making any changes. Indeed, Dr. 
Stolee's "RECOMMENDATION # 1," out of forty-four, read:

THE SCHOOL BOARD, THROUGH LEGAL
COUNSEL, SHOULD APPROACH THE FEDERAL
COURT TO SECURE APPROVAL TO CHANGE
THE COURT-ORDERED DESEGREGATION PLAN.



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J.A. XXXII-15,578. This recommendation was consistent with 
the prior district court order directing CMS to apply to the 
district court "before making any material departure" from the 
approved desegregation plan. Swann, 311 F.Supp. at 270; see 
*337 also J.A. XXVIII-13,790 (board member requesting that 
Dr. Stolee "review the federal court order" to determine if the 
magnet plan was permissible). However, CMS ignored Dr. 
Stolee's advice and the district court's instruction, choosing 
instead to withhold these changes in the desegregation plan 
from the district court.

The crux of the problem with CMS's magnet school 
plan is its admissions process. As aptly described by the 
district court, it operates as follows:

At the start of the process, CMS first fills seats with 
preferences based on whether the applicant lives in 
close proximity to the school and whether the applicant 
has any siblings in the school. CMS then fills the 
remaining seats by selecting students from a black 
lottery and a non-black lottery until the precise racial 
balance is achieved.

Capacchione, 57 F.Supp.2d at 287 (internal citations omitted). 
As originally explained to the board, the plan sought a balance 
o f sixty percent white and forty percent black in the magnet 
schools with a plus or minus fifteen percent deviation. See J.A. 
XXVIII-13,705. Unfortunately, CMS opted for a strict ratio of 
sixty percent white and forty percent black, and decreed in its 
1992 student assignment plan that magnet "slots reserved for 
one race will not be filled by students of another race." J.A. 
XXXII-15,702. The result of this policy was that if a sufficient 
number o f blacks or whites did not apply and fill the seats



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allotted to their respective races, then those seats would be left 
vacant. Though some exceptions were made, Superintendent 
Eric Smith testified that CMS generally adhered to the policy. 
See J.A. XV-7217.

The district court appropriately examined the magnet 
schools through a pre-unitary status lens, observing "that the 
current litigation started not as a petition for unitary status but 
as a discrimination suit arising out of Cristina Capacchione's 
denial of admission to a magnet school based on her race." 
Capacchione, 57 F.Supp.2d at 284. The district court 
recognized that school officials acting pursuant to a 
desegregation order were immune from liability for actions 
taken consistent with that order. See Fowler v. Alexander, 478 
F.2d 694, 696 (4th Cir.1973) (law enforcement officials who 
confined the plaintiff pursuant to a court order were immune 
from § 1983 suit); see also Wolfe v. City o f  Pittsburgh, 140 
F.3d 236,240 (3d Cir.1998) (officials acting pursuant to court 
order establishing quotas for promotions are not subject to § 
1983 liability); Turney v. O'Toole, 898 F.2d 1470, 1472-73 
(10th Cir. 1990) (holding that so long as a court order is facially 
valid, officials acting pursuant to that order are immune from 
a damages suit); Cover dell v. Department o f  Soc. & Health 
Servs., 834 F.2d 758, 764 (9th Cir.1987) (social worker is 
immune from § 1983 liability when executing a facially valid 
court order). Flowever, the district court concluded that the use 
of magnet schools had never been approved and that the rigid 
racial limitations of the magnet admissions policy were 
"beyond the scope of the Court's mandate." Capacchione, 57 
F.Supp.2d at 285. The district court then subjected the 
admissions policy to strict scrutiny, holding that the policy 
violated the Equal Protection Clause of the Fourteenth 
Amendment because it was not narrowly tailored to achieve the



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compelling state interest of remedying past discrimination. 
This court reviews the district court's findings of fact for clear 
error and its legal conclusions de novo. See RutherfordHosp., 
Inc. v. RNHPartnership, 168 F.3d 693, 698 (4th Cir.1999).

A. Immunity

I begin with the question of whether CMS officials are 
entitled to immunity because *338 their actions in adopting and 
implementing the Stolee magnet program in 1992 were taken 
pursuant to and were consistent with the desegregation orders 
and opinions issued by the district court and Supreme Court in 
the early 1970s. In the main, CMS asserts that it is entitled to 
immunity for its act of implementing the 1992 magnet schools 
program without court approval because the prior desegregation 
orders authorized the use of "optional schools" and a racial 
balance goal for filling them. Like the district court, I conclude 
that the magnet schools plan, as implemented, was not 
authorized by the prior court orders and that, for the reasons 
stated hereafter, the CMS officials are not entitled to immunity.

1. Magnet-Centered Program

As an initial matter, I note that prior court orders did not 
countenance implementation of a desegregation plan based 
primarily on magnet schools. Never was CMS given carte 
blanche to adopt such a program absent court review and 
approval. CMS counters that a magnet-centered plan was 
permissible insofar as the district court approved the 
establishment of a few experimental optional schools in 1974 
as part of a plan utilizing paired elementary schools, satellite 
attendance zones, and a feeder system. SeeSwann, 379F.Supp. 
at 1103-04. What CMS fails to recognize is that optional



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schools were but a small part of the plan approved in 1974, 
likely because the district court was very skeptical about their 
efficacy as a desegregation technique. In the course o f its 
order, the district court noted that the history o f optional 
schools was marked by "failure" in a number o f regards and 
warned CMS to be cautious in creating them. Id. at 1103. 
Consequently, CMS began with three experimental optional 
schools in 1974 and increased the number to only six by the 
early 1990s.

The optional schools created in the wake o f the 1974 
order placed more "emphasis on open or traditional education 
than normally offered in conventional schools." J.A. 
XXXII-15,683. The optional schools' traditional programs 
"offer[ed] an enriched and highly structured education," J.A. 
XXXII- 15,732, whereas the open programs offered a 
"student-centered" environment that "encouraged [students] to 
take responsibility for their behavior and for their own 
learning." J.A.XXXII-15,733. The optional schools approved 
by the 1974 order were not as diverse and specialized as the 
magnet school program implemented in 1992. The program 
suggested by Dr. Stolee offered schools specializing in 
traditional and open educational methods and created 
specialized schools featuring the Montessori method; science, 
mathematics, and technology; foreign language immersion; 
learning immersion programs for young children; enhanced 
education for academically gifted students; and communication 
studies programs. See J.A. XXXII-15730-41. However, both 
the optional schools and the magnet schools were designed to 
achieve the same end result—the attraction of students to a 
school in a particular location by using a specialized curriculum 
or teaching technique. Thus, Dr. Stolee, in recommending the 
magnet program in 1992, observed that CMS, via its optional



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schools, "had some experience in such specialized schools." 
J.A. XXXII-15,580.

Despite the district court's 1970 directive that CMS 
obtain court approval for material modifications to the 
court-imposed desegregation plan, the court's skepticism of 
optional schools, the approval process that took place in the 
ensuing years, and Dr. Stolee's specific recommendation in 
1992 that CMS seek court approval for the new magnet schools 
program, CMS inexplicably chose not to return *339 to the 
district court to obtain approval of the magnet schools plan. At 
appellate argument before the entire court, CMS contended that 
the language in the 1970 order requiring court approval for 
material departures was superceded by the 1974 order. CMS 
points to no language in the 1974 order supporting this 
argument and its repeated citations to and reliance on pre 1974 
orders regarding other aspects of this case further call into 
doubt this new line of argument. Moreover, the 1974 order 
made clear that "[ejxcept as modified herein, all previous 
orders o f  court remain in effect." Swann, 379 F.Supp. at 1105 
(emphasis added). Hence, the 1970 order's requirement that 
CMS obtain leave o f court "before making any material 
departure from any specific requirement set out in the order" 
remained binding on school officials. Swann, 311 F.Supp. at 
270.

Nevertheless, I recognize that magnet schools are 
frequently used by school districts under a desegregation order, 
see Milliken v. Bradley, 433 U.S. 267, 272, 97 S.Ct. 2749, 53 
L.Ed.2d 745 (1977) (.Milliken II) (approving of magnet schools 
as a desegregation tool), and that the district court "encouraged 
[CMS officials] to use their full 'know-how' and resources to 
attain" a desegregated school system, Swann, 311 F.Supp. at



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269. Indeed, the plaintiff-intervenors' own expert has touted 
magnet programs as an "effective way to attract sizable 
numbers of white students to predominately minority schools." 
David J. Armor, Forced Justice: School Desegregation and the 
Law 223 (1995). Thus, a magnet schools program, properly 
implemented, can no doubt be an effective desegregation tool. 
However, a conclusion that CMS was free to adopt any form of 
magnet school program it might wish to see in place does not 
flow from this general proposition.

I must forcefully disagree with CMS's contention that 
the mention of optional schools in the 1974 order provided 
legal cover for the implementation of an assignment plan 
depending almost entirely on magnet schools. The portions of 
the district court order authorizing "optional schools" could 
perhaps be read in isolation as authorizing CMS's use of 
"magnet schools" in more diverse, specialized areas, but the 
order did not authorize CMS to unilaterally abandon pairing, 
satellites, and feeders in exchange for a magnet-centered plan. 
Despite the import of the 1974 order, and without even a nod 
to the district court, CMS in 1992 abandoned the approved 
desegregation plan in favor of magnets. By the end of the 
decade CMS had created fifty-eight magnet programs--a far cry 
from the six optional schools in operation in the school year 
just prior to the adoption of the Stolee plan. See J.A. 
XXXIV-16,721-30. CMS describes this abandonment of the 
prior plan as but an expansion of the approved use of optional 
schools. Clearly, this "expansion" was in reality a substantial 
restructuring and cannot be squared with the unambiguous 
directives o f prior orders.



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2. Strict Ratios

Even if I could conclude that a magnet-centered plan 
was permitted under prior court orders, the plan implemented 
by CMS is nonetheless ultra vires because it combines a rigid 
ratio of sixty percent white and forty percent black with a 
policy decreeing that "slots reserved for one race will not be 
filled by students of another race." J.A. XXXII-15,702.9 In 
1970, the *340 district court issued a desegregation order to 
CMS, noting that the order was "not based upon any 
requirement of'racial balance.' " Swann, 311 F.Supp. at 267 
(emphasis added). The court reiterated "that efforts should be 
made to reach a 71-29 ratio in the various schools so that there 
will be no basis for contending that one school is racially 
different from the others, b u t... that variations from the norm 
may be unavoidable." Id. at 267-68 (internal quotation marks 
omitted). On appeal, the Supreme Court affirmed the 
guidelines set forth in the district court's order and also 
addressed the subject of racial quotas. See Swann, 402 U.S. at 
23-25, 91 S.Ct. 1267.

With regard to the district court's goal of achieving a 
racial balance of seventy-one percent white and twenty-nine 
percent black, the Court took care to note that "[t]he 
constitutional command to desegregate schools does not mean 
that every school in every community must always reflect the

9My colleagues in the majority on this issue eloquently argue that 
CMS was permitted to take race-conscious measures when complying with 
desegregation orders. With this I agree—a school district under order to 
desegregate must of course take race into account when assigning students. 
The primary question regarding the magnet program, however, is whether 
CMS ran afoul of the Supreme Court's prohibitions against inflexible ratios, 
not whether race-conscious measures are permissible.



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racial composition of the school system as a whole." Swann, 
402 U.S. at 24, 91 S.Ct. 1267. But central to the issue now 
before us, the Court held that had the district court

require [d], as a matter o f substantive constitutional 
right, any particular degree of racial balance or mixing, 
that approach would be disapproved and we would be 
obliged to reverse.

Id. See also Winston-Salem/Forsyth County Bd. o f  Educ. v. 
Scott, 404 U.S. 1221, 1227, 92 S.Ct. 1236, 31 L.Ed.2d 441 
(1971) (Burger, C.J., in chambers) (describing as "disturbing" 
the school board's "understanding that it was required to 
achieve a fixed 'racial balance' that reflected the total 
composition of the school district"). The goal was upheld, only 
upon the condition that "use made of mathematical ratios was 
no more than a starting point in the process of shaping a 
remedy, rather than an inflexible requirement." Swann, 402 
U.S. at 25, 91 S.Ct. 1267.

Just two years after the Supreme Court, in this very 
case, made clear that strict ratios were unacceptable, the district 
court, in a carefully worded order permitting CMS to create 
optional schools, approved an intentionally flexible enrollment 
formula of "about or above 20% black students." Swann, 379 
F.Supp. at 1104 (emphasis added). The district court 
recognized that the "actual enrollment of the optional school 
may have to be guided by its racial composition and by the 
number drawn from each other school area, not by 
considerations of space and program only." Id. at 1108. 
Additionally, the district court's order directed that 
"[rjeassignments to optional schools must not jeopardize the 
racial composition of any other school." Id. These



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modifications, however, at no time set a racial ratio of the type 
disapproved o f by the district court in its earlier orders and by 
the Supreme Court in its 1971 review of the district court's 
1970 order.10

*341 CMS asserts that the inflexible racial limits 
adopted in the 1992 magnet-centered plan were countenanced 
by the 1974 order discussing optional schools.11 In making this

10I also disagree with the assertion that the Supreme Court's 
disapproval of inflexible racial quotas as a desegregation tool is solely a 
limitation on a district court's remedial power. While the Swann Court did 
imply that a school board, exercising its discretion, could "conclude ... that 
in order to prepare students to live in a pluralistic society each school 
should have a prescribed ratio of Negro to white students reflecting the 
proportion for the district as a whole," 402 U.S. at 16, 91 S.Ct. 1267, this 
is certainly not the state of the law today nor was it the state of the law in 
1992when the magnet plan was adopted. At the very least, the Supreme 
Court decisions in Wygant v. Jackson Board o f Education, 476 U.S. 267, 
283, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality opinion applying 
strict scrutiny to a school board's race-based layoff program), and City o f 
Richmond v. J.A. Croson Co., 488 U.S. 469, 494, 109 S.Ct. 706, 102 
L.Ed.2d 854 (1989) (applying strict scrutiny to a racial set-aside program), 
should have alerted CMS that it could not rely on the "pluralistic society" 
passage from the 1971 opinion when crafting a magnet admissions policy 
that was outside the scope of the desegregation orders. By 1992 such a use 
of race was not merely discretionary. Prevailing case law required that the 
racial classification be narrowly tailored to achieve a compelling state 
interest. See J.A. Croson Co., 488 U.S. at 494, 109 S.Ct. 706. And as 
demonstrated in section III.B, the admissions policy was in no sense 
narrowly tailored.

11 In contending that rigid ratios were not used by CMS, several of 
my colleagues observe that not a single magnet school achieved the precise 
ratio of sixty percent white students and forty percent black students. This 
is not surprising insofar as the policy was designed to leave seats vacant. 
The very act of leaving seats vacant will compel a deviation from the stated



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argument, CMS ignores the district court's choice of words in 
the 1974 order ("about or above 20% black students"), see 
Swann, 379 F.Supp. at 1104, and points to an attachment to the 
order designated as Exhibit A. This exhibit, a proposed pupil 
assignment plan drafted by CMS and a citizens advisory group, 
called for optional school enrollment "at or above 
approximately a 20% black ratio." Id. at 1108 (emphasis 
added). From this language, CMS concludes that strict quotas 
were permitted. CMS's concentration on just a portion of the 
relevant language ("at or above") edits out the word 
"approximately," which does not suggest rigidity. Even if 
Exhibit A could be read as requiring rigid quotas, CMS 
disregards the fact that the district court approved the 
guidelines "subject to the further conditions stated" in the 1974 
order. Id. at 1103. With the Supreme Court's admonition about 
strict quotas in mind, the district court chose its language 
carefully, observing that optional schools should "have about 
or above 20% black students." Id. at 1104. Hence, it is the 
district court's understanding and modification of the pupil 
assignment plan that controls, not CMS's tortured reading. 
Under a just construction, it is clear that the 1974 order did not 
approve a use of race to the extent that CMS could deny eager 
applicants an otherwise available slot in a magnet program 
solely on account o f the applicant's race. Both the district court 
and the Supreme Court in this very case consistently rejected 
the use of such rigid racial quotas.

I also find no authorization for the board's adoption of 
the magnet schools program in the Supreme Court's 1971 
approval in Swann o f a majority-to- minority transfer policy

goal. However, this in no way undermines a finding of rigidity. Instead, 
such a result illustrates the policy's inflexibility.



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that would prevent, for example, an African-American child in 
a majority white school from transferring to a majority black 
school because the transfer would increase the degree of 
segregation in the affected schools. See Swann, 402 U.S. at 26, 
91 S.Ct. 1267. Because the majority-to-minority transfer 
policy, like the magnet admissions policy, prevents a child from 
enrolling in the public school of his choice, CMS argues that 
the magnet admissions policy is permissible. By definition, 
however, CMS's specialized magnet programs are not 
tantamount to conventional public schools. While a child 
denied a transfer from one conventional school to another still 
receives the same general education, a child denied admission 
to a specialized magnet program does not receive *342 a 
similar benefit in a conventional school. In other words, an 
education in a magnet school offering, for example, foreign 
language immersion, is not interchangeable with an education 
in a conventional public school.12 Hence, the effect o f the 
magnet admissions policy is far different from the 
maj ority-to-minority transfer policy.

Unfortunately, the end result of the challenged magnet 
schools admissions policy is placement of racial quotas ahead 
of educating students—an inappropriate result nowhere 
countenanced in the district court's orders or in the Supreme

12I recognize that parents might perceive that one "fungible" 
conventional school is superior to another because of a number of 
intangibles such as the reputation of teachers or the newness of facilities. 
However, these "personal preferences" do not rise to a level of 
constitutional significance. See Hampton v. Jefferson County Bd. ofEduc., 
102 F.Supp.2d 358, 380 n. 43 (W.D.Ky.2000). Magnet schools, on the 
other hand, are a completely different animal and therefore the admissions 
process used must be more closely scrutinized.



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Court's desegregation decisions. Cf. Wright v. Council o f  the 
City o f  Emporia, 407 U.S. 451,463,92 S.Ct. 2196, 33 L.Ed.2d 
51 (1972) (holding that courts should not approve a 
desegregation plan if the plan offers " 'quality education' to 
some children, [but] has a substantial adverse effect upon the 
quality of education available to others"). In fact, Brown I  
struck down segregated schooling because children were denied 
equal educational opportunities. See Brown I, 347 U.S. at 493, 
74 S.Ct. 686. While school boards were permitted to use race 
in assigning students in order to convert to a unitary system, see 
North Carolina State Bd. ofEduc. v. Swann, 402 U.S. 43, 46, 
91 S.Ct. 1284, 28 L.Ed.2d 586 (1971) (holding that the use of 
race in pupil assignments is "one tool absolutely essential to 
fulfillment of [a school board's] constitutional obligation to 
eliminate existing dual school systems"), neither the Brown 
opinions nor the district court orders implementing them ever 
contemplated that remedial use o f race, like the old dual 
system, would deny some students educational opportunities 
solely because of their race. See Brown 1, 347 U.S. at 493, 74 
S.Ct. 686 (holding that an educational opportunity provided by 
the state "must be made available to all on equal terms"); see 
also Bakke, 438 U.S. at 305,98 S.Ct. 2733 (Powell, J.) ("When 
a classification denies an individual opportunities or benefits 
enjoyed by others solely because of his race or ethnic 
background, it must be regarded as suspect.").13 Indeed, in 
bringing suit in 1965, the Swann plaintiffs, in accord with the

13Though the present case was brought on behalf of a white child 
denied admission to a magnet school, the policy as written could have just 
as easily denied a black child admission to the magnet school. See 
Hampton v. Jefferson County Bd. o f Educ., 102 F.Supp.2d 358, 311 
(W.D.Ky.2000) (racial quota in a magnet school resulting in black students 
being denied admission even though the school was several hundred 
students below capacity).



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Brown opinions, simply asked that CMS convert "into a unitary 
nonracial system wherein the educational opportunities offered 
by [CMS] are made available to students without regard to race 
or color." J.A. XXXIII-16,162 (original complaint filed by the 
Swann plaintiffs).

An admissions policy that uses rigid racial quotas to 
deny an available, unclaimed slot in a specialized magnet 
school to a child, whether black or white, on account of the 
child's race cannot be squared with the district court's orders or 
the Supreme Court's desegregation decisions. Since 1971 it has 
been perfectly clear that mathematical ratios may be used as "a 
starting point in the process of shaping a remedy," *343 but not 
as "an inflexible requirement." See Swann, 402 U.S. at 25, 91 
S.Ct. 1267. The district court took heed of this admonition in 
1974 when it permitted the creation of optional schools with 
"about or above 20%  black students." Swann, 379 F.Supp. at 
1104 (emphasis added). However, CMS in 1992 ran afoul of 
the rule announced by the Supreme Court when it crafted strict 
racial ratios designed to leave open magnet school seats empty, 
rather than permitting waitlisted students to compete for the 
slots. Because nothing short of intellectual gymnastics can 
transform the clear meaning of the Supreme Court's Swann 
opinion or the district court's 1974 order into vehicles 
countenancing the rigid use of racial ratios, I agree with the 
district court that the policy is ultra vires and that CMS 
officials are not entitled to immunity.

B. Equal Protection

Having determined that the CMS officials are not 
entitled to immunity for the implementation o f the strict 
race-based magnet school assignment policy, I now turn to the



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question of whether the officials' act of implementing the 
policy without prior court approval, albeit while under an order 
to desegregate schools, runs afoul of the Equal Protection 
clause. I would hold that it does.

Under the Fourteenth Amendment, "[n]o State shall... 
deny to any person within its jurisdiction the equal protection 
of the laws." U.S. Const, amend XIV, § 1. By guaranteeing 
equal protection, the Amendment recognizes that 
" [d] istinctions between citizens solely because of their ancestry 
are by their very nature odious to a free people whose 
institutions are founded upon the doctrine o f equality." 
Hirabayashiv. United States, 320 U.S. 81,100,63 S.Ct. 1375, 
87L.Ed. 1774(1943). The Supreme Court has refused to make 
exceptions for so-called "benign" racial classifications, see 
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 
S.Ct. 2097, 132 L.Ed.2d 158 (1995), and the Court has made 
clear that "all racial classifications, imposed by whatever 
federal, state, or local governmental actor, must be analyzed by 
a reviewing court under strict scrutiny," id.14

14The Supreme Court's application of strict scrutiny has indeed 
been unwavering. In Adarand, the Court refused to apply a lesser standard 
of scrutiny to racial classifications enacted by Congress. Though Congress 
itself is charged with enforcing the Fourteenth Amendment's promise of 
equal protection via "appropriate legislation," U.S. Const, amend. XIV, § 
5, the Supreme Court in interpreting the Fifth Amendment held Congress 
to the same rigorous standards applicable to states and localities. See 
Adarand, 515 U.S. at 224, 115 S.Ct. 2097 (observing "that any person, of 
whatever race, has the right to demand that any governmental actor subject 
to the Constitution justify any racial classification subjecting that person to 
unequal treatment under the strictest judicial scrutiny").

CMS and the Swann plaintiffs contend that strict scrutiny does not 
apply when a school district is under court order to dismantle the dual



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*344 [19] To survive strict scrutiny, CMS's use of race 
in the magnet admissions program "must (1) serve a compelling 
governmental interest and (2) be narrowly tailored to achieve 
that interest." Tuttle v. Arlington County Sch. Bd., 195 F.3d 
698, 704 (4th Cir.1999), cert, dismissed, 529 U.S. 1050, 120 
S.Ct. 1552, 146 L.Ed.2d 364 (2000). CMS avers that the 
magnetadmissions policy was adopted to remedy the effects of 
the dual school system previously operated in Mecklenburg 
County. Without question, remedying the effects of past 
discrimination is a compelling state interest. See City o f  
Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 
706, 102 L.Ed.2d 854 (1989).

system. Such an approach, however, ignores two of the three pillars of 
Supreme Court’s equal protection analysis: skepticism of all racial 
preferences and consistent application of heightened scrutiny regardless of 
the race of the person burdened or benefitted. See Adarand, 515 U.S. at 
223-24,115 S.Ct. 2097. Contrary to the assertions of CMS and the Swann 
plaintiffs, the approach I would adopt does not deprive a school board 
under court order of the necessary tools required to establish a unitary 
school system.

The point of carefully examining the interest asserted by the 
government in support of a racial classification, and the evidence offered 
to show that the classification is needed, is precisely to distinguish 
legitimate from illegitimate uses of race in governmental decisionmaking.... 
Strict scrutiny does not ”trea[t] dissimilar race-based decisions as though 
they were equally objectionable"; to the contrary, it evaluates carefully all 
governmental race-based decisions in order to decide which are 
constitutionally objectionable and which are not. Id. at 228,115 S.Ct. 2097 
(internal citations omitted) (alteration in original). This careful evaluation 
demanded by the Supreme Court will preserve inviolate proper 
desegregation remedies while ensuring that in the process of desegregating 
a government actor does not stand equal protection on its head by denying 
some students educational opportunities solely because of their race.



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In reviewing whether a policy is narrowly tailored to 
serve a compelling state interest, a court considers factors such 
as:

(1) the necessity o f the policy and the efficacy of 
alternative race neutral policies;

(2) the planned duration of the policy;

(3) the relationship between the numerical goal and the 
percentage of minority group members in the relevant 
population;

(4) the flexibility of the policy, including the provision of 
waivers if the goal cannot be met; and

(5) the burden of the policy on innocent third parties.

See United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 
1053, 94 L.Ed.2d 203 (1987) (plurality opinion). Like the 
district court, I would hold that the CMS magnet admissions 
policy is not narrowly tailored to the compelling interest of 
remedying past discrimination.

First, the magnet admissions policy was not necessary 
to comply with the court's order to dismantle the dual 
educational system. CMS had a number of options available to 
it that would not have deprived children, solely on account of 
their race, an available seat in a specialized magnet program. 
Instead, CMS opted for rigid racial limits that were clearly 
prohibited by the district court's orders and the Supreme Court's 
desegregation decisions. Nor is there evidence in the record 
that added flexibility or a waiver provision would have



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undermined the use of magnet schools as a desegregation 
technique. The evidence simply does not reveal that the magnet 
admissions policy used was the only efficacious option 
available to CMS.

Second, this circuit has emphasized that "[t]he use of 
racial preferences must be limited so that they do not outlast 
their need; they may not take on a life of their own." Hayes v. 
North State Law Enforcement Ass'n, 10 F.3d 207, 216 (4th 
Cir.1993) (internal quotation marks omitted). Like the district 
court, I can find "no mention of the duration that CMS would 
use racially segregated lotteries, vacancies, and waiting lists." 
Capacchione, 57 F.Supp.2d at 290. In light of CMS's desire to 
remain under court order for the indefinite future, see supra 
Part II.H, the lack of a duration for the magnet admissions 
policy is not surprising. CMS was apparently content, in a 
number of instances, to leave available magnet seats empty 
despite the waiting lists.

*345 Third, I agree with the district court that "the 
60-40 numerical goal is related to the relevant population, i.e., 
the racial composition of schoolchildren in CMS." 
Capacchione, 57 F.Supp.2d at 289. However, there is no 
evidence that CMS considered the "practicability of achieving 
this precise ratio in every magnet school," id. at 290, or the very 
real danger that magnet schools would be underutilized because 
seats would be left open despite an abundance of applicants. 
The result of the admissions policy is but another indication 
that the CMS administration, in the words of former 
Superintendent Murphy, "was more focused on balance than on 
[educational] outcomes." J.A. VI- 2687.



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Fourth, the district court aptly described the inflexibility 
in the magnet admissions policy: "The Court is hard-pressed 
to find a more restrictive means of using race than a process 
that results in holding seats vacant while long waiting lists full 
of eager applicants are virtually ignored." Capacchione, 57 
F.Supp.2d at 289. The policy is indeed "restrictive," but it also 
borders on obduracy. The policy contained no written waiver 
provision which, once again, shows a lack of concern that these 
highly specialized schools could and would be underutilized.

Finally, the innocent parties affected are children denied 
magnet slots solely because of their race and parents who "must 
wait for months without knowing where their children 
eventually will be placed." Id. at 290. A child's education is 
one of the greatest concerns of the family, and CMS 
unnecessarily causes much agonizing when it places children 
of the "wrong color" on waiting lists while it actively recruits 
children of the "right color" to fill empty magnet school seats.

In sum, the magnet admissions policy is not narrowly 
tailored. The policy is not necessary to dismantle the de jure 
system, is for an unlimited duration, provides for virtually no 
flexibility, and burdens innocent children and their families. 
The policy quixotically purports to establish equal protection of 
the laws in the realm of public education by denying children 
an equal opportunity to compete for open, unclaimed slots in 
CMS's extraordinary magnet schools. The withholding of seats 
from white students after all African- American children 
wishing seats have been given them is most certainly not a 
narrowly tailored program. Such a result calls to mind why 
strict scrutiny is used in the first place: "Of all the criteria by 
which men and women can be judged, the most pernicious is 
that of race." Maryland Troopers Ass'n v. Evans, 993 F.2d



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1072, 1076 (4th Cir.1993). Teaching young children that 
admission to a specialized academic program with available 
seats is contingent on their race is indeed pernicious, and 
CMS's magnet admissions policy can in no way be described as 
narrowly tailored to achieve the compelling interest of 
remedying past discrimination,15

C. Award of Nominal Damages

After finding a constitutional violation in the magnet 
schools, the district court held *346 CMS "nominally liable in 
the amount of one dollar." Capacchione, 57F.Supp.2dat290. 
CMS argues that the nominal damages awarded were 
unjustified because the actions resulting in a constitutional 
violation were taken in good faith. CMS fears that the damages 
award will "open the door to numerous suits by other students 
who could claim that they did suffer actual damages and argue 
that collateral estoppel prevents CMS from denying liability." 
Defendants-Appellants' Brief at 24. Regarding nominal 
damages, the Supreme Court has observed:

15CMS also presented diversity as an alternative compelling state 
interest. See Capacchione, 57 F.Supp.2d at 289. In this circuit, it is 
unsettled whether diversity may be a compelling state interest. See 
Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123, 130 (4th 
Cir.1999), cert, denied, 529 U.S. 1019, 120 S.Ct. 1420, 146 L.Ed.2d 312 
(2000). Assuming without deciding whether diversity may be a compelling 
state interest, I would hold that the magnet admissions policy again fails 
because it is not narrowly tailored. Whether the interest is remedying past 
discrimination or diversity, the admissions policy as currently written is in 
no sense narrow. It is difficult to imagine any interest for which the magnet 
admissions policy is narrowly tailored.



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Common-law courts traditionally have vindicated 
deprivations o f certain "absolute" rights that are not 
shown to have caused actual injury through the award 
o f a nominal sum of money. By making the deprivation 
o f such rights actionable for nominal damages without 
proof o f actual injury, the law recognizes the 
importance to organized society that those rights be 
scrupulously observed; but at the same time, it remains 
true to the principle that substantial damages should be 
awarded only to compensate actual injury or, in the case 
o f exemplary or punitive damages, to deter or punish 
malicious deprivations of rights.

Carey v. Piphus, 435 U.S. 247,266, 98 S.Ct. 1042, 55 L.Ed.2d 
252 (1978) (nominal damages available for denial of procedural 
due process rights) (footnote omitted); see also Price v. City o f  
Charlotte, 93 F.3d 1241,1246 (4th Cir.1996) (stating that "the 
rationale for the award of nominal damages being that federal 
courts should provide some marginal vindication for a 
constitutional violation").

In the present case there was indeed a constitutional 
violation. CMS ran afoul o f the Equal Protection Clause when 
it adopted a strict racial quota designed to deny an available, 
unclaimed slot in a specialized magnet school to a child on 
account o f the child's race. In order to recover nominal 
damages, Cristina Capacchione need not prove that absent the 
unconstitutional policy she would have been admitted to the 
magnet program. The injury in the present case is not the 
ultimate inability to enroll in the magnet school, but the 
inability to compete for seats on an equal basis. See 
Northeastern Florida Chapter o f  the Associated Gen. 
Contractors v. City o f  Jacksonville, 508 U.S. 656, 666, 113



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S.Ct. 2297, 124 L.Ed.2d 586 (1993). Though the two open 
"black seats" at the Olde Providence magnet school were 
eventually awarded to white children, the fact remains that the 
official magnet admissions policy prohibited children like 
Cristina from competing for the open slots. In fact, CMS left 
the two available "black seats" at Olde Providence unfilled for 
most of the summer while Cristina and over one hundred other 
white children languished on a waiting list. In Orwellian 
fashion, CMS marketed Olde Providence as "a school to benefit 
everyone," but in reality permitted only a select few to compete 
for the benefits bestowed.

The nominal award in this case recognizes the 
importance of equal protection under the law and provides 
some measure of vindication. As for CMS's worry about 
collateral estoppel, liability has already been established, and 
vacating the nominal damages would not change this. 
Consequently, I would affirm the district court's award of 
nominal damages.

IV. Injunctive Relief

After recounting the unitary status determination and 
the constitutional violation in the magnet admissions policy, the 
district court enjoined "CMS from any further use of race-based 
lotteries, preferences, and set-asides in student assignment." 
Capacchione, 57 F.Supp.2d at 292. CMS challenges the district 
court's injunction *347 as unwarranted and overbroad. We 
review the grant of a permanent injunction for an abuse of 
discretion. See Tuttle, 195 F.3d at 703.

Before a court grants a permanent injunction, the court 
must first find necessity—a danger of future violations. See



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Connecticut v. Massachusetts, 282 U.S. 660,674,51 S.Ct. 286, 
75 L.Ed. 602 (1931) (stating that an injunction "will not be 
granted against something merely feared as liable to occur at 
some indefinite time in the future"); United States v. Oregon 
State Med. Soc'y, 343 U.S. 326, 333, 72 S.Ct. 690, 96 L.Ed. 
978 (1952) ( "All it takes to make the cause of action for relief 
by injunction is a real threat of future violation or a 
contemporary violation of a nature likely to continue or to 
recur."); Bloodgood v. Garraghty, 783 F.2d 470, 475 (4th 
Cir. 1986) ("An injunction is a drastic remedy and will not issue 
unless there is an imminent threat of illegal action."). Though 
a flexible tool, an injunction may not be used for "punishment 
or reparations for ... past violations." Oregon State Med. Soc., 
343 U.S. at 333, 72 S.Ct. 690.

The district court's finding of a threat o f future 
violations centered on CMS's offering of diversity as a 
compelling state interest. This interest was offered after the 
district court decided that the admissions policy should be 
reviewed using strict scrutiny. Because in this circuit it is 
unsettled whether diversity may be a compelling state interest, 
see Eisenbergv. Montgomery County Pub. Schs., 197F.3d 123, 
130 (4th Cir. 1999), cert, denied, 529 U.S. 1019, 120 S.Ct. 
1420, 146 L.Ed.2d 312 (2000), it was improper for the district 
court to base its injunction on CMS's unsuccessful defense of 
the policy. At this point, we can discern nothing in the record 
indicating that CMS will ignore the district court order and 
continue to use race in an unconstitutional manner in the 
operation of the magnet schools or other schools in the system. 
CMS represented to the district court both during and after trial 
that it had no intention of continuing the magnet plan. In 
moving for a stay of the injunction, CMS did not ask that the 
injunction be stayed as to the magnet schools, and was prepared



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to comply immediately with the court's order. CMS requested 
a stay as to the non-magnet schools because over 50,000 
students were likely to be reassigned in a short period of time. 
Moreover, there was no evidence presented at trial about what 
CMS proposed to do as a unitary school system. A post-unitary 
status student assignment plan was never given to the district 
court, and the evidence simply does not indicate that "there is 
an imminent threat of illegal action." Bloodgood, 783 F.2d at 
475.

A finding of unitariness brings a fresh start for the 
school board—an opportunity to operate a school system in 
compliance with the Constitution. The prospective relief 
awarded by the district court is in tension with the resumption 
of local control, which is one o f the ultimate goals o f any 
desegregation order. See Freeman, 503 U.S. at 490,112 S.Ct. 
1430. Freeing the school district from one court order only to 
shackle it with another was here an abuse o f the district court's 
discretion, and we therefore vacate the grant of injunctive 
relief.

V. Discovery Sanctions

The district court sanctioned CMS for failing to 
supplement its answers to interrogatories that sought a list of 
witnesses. We review the district court's management of 
discovery under the abuse of discretion standard. See Anderson 
v. Foundation fo r  Advancement, Educ. & Employment o f  Am. 
Indians, 155 F.3d 500, 504 (4th Cir.1998). The record reveals 
*348 that no list of fact witnesses was presented to the plaintiff- 
intervenors until five days before the trial date. At that time, 
CMS presented a list of 174 witness, which was later cut to 
twenty-six. The plaintiff- intervenors moved for sanctions and



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the district court granted the motion in part. The district court 
continued the trial for one week so that the plaintiff-intervenors 
could depose the newly disclosed witnesses, and the court held 
CMS accountable for the fees and expenses of these 
depositions.

We have developed a four-part test for a district court 
to use when determining what sanctions to impose under 
Federal Rule of Civil Procedure 37. Specifically, "[t]he 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 o f the 
particular sort of non- compliance, and (4) whether less drastic 
sanctions would have been effective." Id. An examination of 
the four factors reveals no abuse of discretion by the district 
court.

First, there is ample evidence o f bad faith. Early in the 
case, the plaintiff-intervenors presented CMS with an 
interrogatory asking for disclosure of trial witnesses. In 
response to the interrogatory, CMS stated that it would provide 
appropriate information concerning witnesses at the time and 
in the manner specified by the district court. The 
plaintiff-intervenors moved to compel discovery, and the court 
agreed with CMS that the request was premature. However, 
the court instructed CMS to "supplement its responses [to the 
interrogatories], as it promised, when such information 
becomes known." J.A. 1-195. As an excuse for its untimely 
disclosure of fact witnesses, CMS relies on the district court's 
pre-trial order, which provides that "[a] witness list containing 
the name of every proposed witness" should be filed with the 
court on the first day of trial. J.A. 1-150. This provision of the 
pre-trial order was clearly for the court's convenience and could



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not reasonably be interpreted to apply to disclosures to the 
other parties. Besides, even if such an interpretation were 
reasonable, the district court's command to supplement 
interrogatories superceded the pre-trial order. Accordingly, bad 
faith is evident.

Second, the presentation of such a lengthy witness list 
on the eve of trial to the plaintiff-intervenors was prejudicial. 
Without the action o f the court, the plaintiff-intervenors would 
have had no opportunity to depose the witnesses, much less 
properly prepare for trial. Thus, CMS's failure to supplement 
interrogatories was prejudicial.

Third, such non-compliance with the district court's 
orders certainly needed to be deterred. The district court's 
condonation of CMS's bad faith at a time so close to the 
beginning of trial could have encouraged repetition of improper 
conduct. As found by the district court, the record indicates 
that the failure to supplement interrogatories was not the first 
time CMS "was lacking in candor in disclosing relevant and 
important information." J.A. I- 305. Hence, deterrence was 
essential to a proper management of this case.

Finally, less drastic sanctions would not have been 
effective. Permitting the plaintiff-intervenors to depose 
witnesses and requiring CMS to pay fees and expenses for the 
depositions was appropriate. CMS was fortunate to receive 
such a light sanction, and it is doubtful whether lesser measures 
would have had any effect on CMS's conduct.

In sum, the discovery sanctions imposed did not amount 
to an abuse of the district court's discretion.



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*349 VI. Attorney Fees

CMS argues that the district court erred in awarding 
attorney fees to the plaintiff-intervenors. While conceding that 
Grant is entitled to fees if the district court's unitary status 
finding is upheld, CMS argues that Capacchione cannot be a 
prevailing party on this issue. CMS also challenges 
Capacchione's receipt of fees based on the district courts 
magnet schools ruling because (1) Capacchione received only 
nominal damages, and (2) young Capacchione would not have 
been admitted to the magnet program even if race was not a 
factor insofar as her lottery number was so high. The district 
court's decision to award attorney fees is reviewed for an abuse 
of discretion. See Hitachi Credit Am. Corp. v. Signet Bank, 
166 F.3d 614, 631 (4th Cir.1999). I would affirm.

A. Attorney Fees for Unitary Status

1 .

In my view, the plaintiff-intervenors are entitled under 
§ 1988 to attorney fees for their successful litigation of the 
unitary status issue. Indeed, CMS has conceded that if  we 
upheld the declaration of unitary status, Grant would be entitled 
to attorney fees.

Unlike Capacchione, the Grant intervenors were 
granted declaratory and injunctive relief related to the 
issues of unitary status and CMS' magnet school 
admission policies. Therefore, the entitlement of the 
Grant intervenors to recover attorneys' fees is tied 
directly to the merits of those claims.



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CMS's Brief at 39-40. Surprisingly, despite CMS's concession, 
a majority of this court vacates the award of fees to both 
Capacchione and Grant.

By obtaining a declaration of unitary status, the Grant 
plaintiffs, along with Capacchione, finished what the original 
Swann plaintiffs started. If we deny the plaintiff-intervenors 
the ability to be compensated in a situation such as this—where 
an incredible amount of legal work is required and the board, 
for improper reasons, clings to the court's order-then we give 
to litigants like the Swann plaintiffs effective control over the 
decision of "when" or even "if' a unitary status hearing will be 
sought because they would be the only ones who could ever 
obtain reimbursement for their legal fees. The practical 
consequences are scarcely more apparent than in this case, 
where the only party ruled entitled to obtain attorney fees for 
finishing the job was opposed to seeing unitary status declared. 
This, coupled with the fact that the plaintiff-intervenors 
received a court order in their favor on the unitary status 
question as a continuation of the original § 1983 action, leaves 
me at a loss to see how the district court's award of attorney 
fees to them under § 1988 can be reversed.

Under 42 U.S.C.A. § 1988(b) (West Supp.2000), "[i]n 
any action or proceeding to enforce a provision of [§ 1983 and 
other civil rights law s]... the court, in its discretion, may allow 
the prevailing party, other than the United States, a reasonable 
attorney's fee as part of the costs." To be considered a 
prevailing party, a party must "succeed on any significant issue 
in litigation which achieves some of the benefit the parties 
sought in bringing suit." Farrar v. Hobby, 506 U.S. 103, 109, 
113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (internal quotation 
marks omitted).



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This case began in 1965 as a § 1983 action with the 
Swann plaintiffs seeking conversion of CMS "into a unitary 
nonracial system wherein the educational opportunities offered 
by [the board] are made available to students without regard to 
race or color." J.A. XXXIII-16,162 (original Swann complaint 
commencing an action *350 under § 1983); see also Monell v. 
Department o f  Social Servs., 436 U.S. 658,697,98 S.Ct. 2018, 
56 L.Ed.2d 611 (1978) (observing that school desegregation 
actions "have almost without exception been § 1983 suits"). In 
essentially a continuation of what was begun in 1965, 
Capacchione, believing that CMS had established a unitary 
school system, brought suit pursuant to § 1983 and prayed that 
the district court enter a declaration of unitary status. See J.A. 
1-110 (Capacchione amended complaint seeking a declaration 
of unitary status); see also J.A. 1-140 (Grant complaint seeking 
a declaration of unitary status); c f  Waste Mgmt. Holdings, Inc. 
v. Gilmore, 252F.3d316(4thCir.2001)(§ 1983 action seeking 
declaratory relief). Shortly after Capacchione filed suit, the 
Swann plaintiffs moved to reactivate Swann and to consolidate 
it with Capacchione's action. The district court granted the 
Swann plaintiffs' motion and later permitted Capacchione to 
intervene in Swann. Grant, who also sought a declaration of 
unitary status, then moved to intervene in the consolidated 
action, and the district court granted his motion. After months 
of litigation, the plaintiff-intervenors succeeded in having CMS 
declared unitary, and this court has affirmed on appeal.

With the prior court orders now dissolved, CMS must 
cease using the orders to assign Grant's children as well as all



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other public school students on account of their race.56 A 
unitary school system is what the original plaintiffs sought in 
1965, and the plaintiff-intervenors have greatly assisted in the 
final stages o f this litigation in making unitariness a reality. 
Henceforth, unless CMS's use of racial classifications satisfies 
the requirements of strict scrutiny, the color of a child's skin 
will no longer be a permissible basis for assigning, or refusing 
to assign, a child to a conventional public school or a 
specialized magnet program. See Farrar, 506 U.S. at 110,113 
S.Ct. 566 (observing that declaratory relief may constitute relief 
under § 1988 "if[ ] it affects the behavior of the defendant 
toward the plaintiff') (internal quotation marks omitted). 
Moreover, this declaration of unitary status is enforceable 
against CMS in the unlikely event it later attempts to continue 
prior assignment polices, say, on the ground that vestiges of 
prior discrimination have not been eradicated. See id. at 111, 
113 S.Ct. 566 (explaining that to be a prevailing party an 
enforceable judgment must be obtained).

In the present case, with its counter-intuitive alignment 
o f parties, the plaintiff-intervenors have stepped into the shoes

16CMS argues that because Capacchione no longer resides in North 
Carolina the unitary status declaration does not alter CMS's behavior toward 
young Capacchione and consequently Capacchione is not a prevailing party 
entitled to fees. In other words, CMS contends that Capacchione's lack of 
standing counsels against an award of fees. I disagree. At the very least, 
because of Capacchione's status as a plaintiff-intervenor in Swann, 
Capacchione is still entitled to fees. See Shaw v. Hunt, 154 F.3d 161, 167 
(4th Cir. 1998) (noting that when plaintiffs with standing "secure[] precisely 
the relief that they sought," plaintiff-intervenors who lack standing but 
contributed to the litigation may also be awarded attorney fees). Grant, who 
CMS concedes has standing and is entitled to fees, achieved the relief 
originally sought-a declaration of unitary status. Capacchione greatly 
contributed to this result, and under Shaw is entitled to fees just as Grant.



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of the Swann plaintiffs, continued the original § 1983 action, 
and brought this case to a close. Just as the Swann plaintiffs, 
prior to removal of the case from the active docket, were 
compensated for their services, see Swann v. Charlotte- 
Mecklenburg Bd. o f  Educ., 66 F.R.D. 483 (W.D.N.C.1975) 
(awarding the Swann plaintiffs $204,072.33 in fees and costs), 
so too *351 should the plaintiff- intervenors be compensated 
for a continuation of the legal efforts to achieve a unitary 
school system and to remove federal court control. In this 
regard the plaintiff-intervenors have acted as "private 
attomey[s] general," Independent Fed'n ofFlight Attendants v. 
Zipes, 491 U.S. 754,758-60,109 S.Ct. 2732,105 L.Ed.2d 639 
(1989) (internal quotation marks omitted) (alteration in 
original), and obtained a finding of unitariness, which was the 
ultimate objective of the original action. See J.A. 
XXXIII-16,162 (original complaint seeking "reorganization of 
the school system into a unitary nonracial system"). Indeed, no 
one disputes that the Swann plaintiffs would have been entitled 
to fees if  they had taken the initiative to petition for a 
declaration o f unitary status instead of acting to oppose the 
result we reach today.

Without question, the monitoring of a school 
desegregation decree is crucial to the dismantling of the dual 
system. See Jenkins v. Missouri, 967 F.2d 1248, 1251 (8th 
Cir.1992) (awarding fees in desegregation case pursuant to § 
1988). Accordingly, efforts "to insure full compliance and to 
ensure that the plan is indeed working to desegregate the school 
system[ ] are compensable services." Northeross v. Board o f 
Educ., 611 F.2d 624, 637 (6th Cir.1979). Here, the 
plaintiff-intervenors observed CMS's progress in dismantling 
the dual system, and once convinced that full compliance had 
been achieved, they moved for a declaration of unitary status.



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In so doing, the plaintiff-intervenors were faced with a 
recalcitrant school board that insisted none of the Green factors 
had been satisfied. The Swann plaintiffs, though having never 
returned to court to complain about the continuation or revival 
o f segregative practices, suddenly claimed that the dual system 
was not being dismantled and joined the school board in the 
quest for continuation of court supervision. Though most of the 
vital information was in the hands of CMS's officials, who were 
often uncooperative in the discovery process, see Capacchione, 
57 F.Supp.2d. at 292-293 (cataloging sanctions and threats of 
sanctions against CMS), the plaintiff-intervenors persevered 
and ultimately obtained a declaration of unitary status. But for 
the actions of the plaintiff- intervenors, CMS, though having 
dismantled the dual system, would still be using the district 
court's orders as mechanisms for attaining other goals. Despite 
the progress of the last three decades, CMS was apparently 
content to forestall a finding of unitariness for the foreseeable 
future. See Freeman, 503 U.S. at 490, 112 S.Ct. 1430 
(observing that restoration of local control "at the earliest 
practicable date" is a goal of any desegregation order). 
Consequently, I believe that the plaintiff-intervenors, for 
stepping in and finishing what was begun in 1965, are entitled 
to attorney fees under § 1988 for their litigation of the unitary 
status issue.

2 .

I would also affirm the plaintiff-intervenors' award of 
attorney fees, based on the unitary status declaration, under this 
circuit's exceptional circumstances doctrine. See Rolax v. 
Atlantic Coast Line R. Co., 186 F.2d 473, 481 (4th Cir.1950) 
(holding that absent a statute attorney fees are normally 
unavailable unless "the taxation of such costs is essential to the



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doing of justice ... in exceptional cases"). To avoid a 
declaration of unitary status, CMS has clung to the 
desegregation decree for improper reasons, see supra part II.H, 
and the equitable remedy ordered in 1969 "would be far from 
complete, and justice would not be attained, if  reasonable 
counsel fees were not awarded" to the plaintiff-intervenors. 
*352Bellv. School Bd. o f Powhatan County, 321 F .2d494,500 
(4th Cir. 1963) (en banc) (awarding attorney fees in school 
desegregation case based on exceptional circumstances when 
the school board engaged in a "pattern of evasion and 
obstruction" which "cast[ ] a heavy burden on the children and 
their parents"). A contrary result would hamper the 
involvement of concerned citizens in school desegregation 
litigation and permit school boards that are inclined to remain 
under court order to eschew a unitary status hearing.

I recognize that the Supreme Court recently rejected the 
catalyst theory as a basis for awarding attorney fees. See 
Buckhannon Bd. & Care Home v. West Virginia Dep't o f  
Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 
L.Ed.2d 855 (2001). However, the award of fees in the present 
case has never been based on the catalyst theory, "which posits 
that a plaintiff is a prevailing party if it achieves the desired 
result because the lawsuit brought about a voluntary change in 
the defendant's conduct." Id. at 1838 (internal quotation marks 
omitted). In this case, there was no voluntary change in CMS's 
conduct. CMS clung to the desegregation orders and put up a 
vigorous defense in the course of a two-month trial. A final 
judgment was handed down, and any change in CMS's behavior 
will be due to the district court's decree, not a voluntary act. 
While a "voluntary change in conduct... lacks the necessary 
judicial imprimatur on the change" for a plaintiff to be 
considered a prevailing party, a declaration of unitary status is



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fax different. Id. at 1840. Once found to be in violation o f the 
Constitution, a school district cannot be declared unitary 
without the order of a court. Because the district court's order, 
and not a voluntary act, is the impetus behind any change, the 
rejection of the catalyst theory in Buckhannon does not 
undermine an award of attorney fees based on the exceptional 
circumstances doctrine of Rolax.

B. Attorney Fees for the Magnet Schools Litigation

I would also find that Capacchione is entitled to fees 
because he is a prevailing party on the magnet schools issue. 
The district court held that the magnet schools admissions 
policy violated the Equal Protection Clause of the Fourteenth 
Amendment and awarded nominal damages in light o f the 
constitutional violation. In Farrar, the Supreme Court 
specifically addressed the issue of nominal damages and 
prevailing party status:

We therefore hold that a plaintiff who wins nominal 
damages is a prevailing party under § 1988.... A 
plaintiff may demand payment for nominal damages no 
less than he may demand payment for millions of 
dollars in compensatory damages. A judgment for 
damages in any amount, whether compensatory or 
nominal, modifies the defendant's behavior for the 
plaintiffs benefit by forcing the defendant to pay an 
amount of money he otherwise would not pay.

506 U.S. at 112-13,113 S.Ct. 566 (internal citations omitted). 
The award of nominal damages constitutes relief on the merits 
and affects CMS's behavior toward Capacchione if  only by 
forcing CMS to pay. Hence, Capacchione is a prevailing party.



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See also Shaw v. Hunt, 154 F.3d 161, 164 (4th Cir.1998) 
(noting that "persons within the generic category of plaintiff- 
intervenors have often been found by courts to fit within the 
rubric 'prevailing party' for fees purposes"). That young 
Capacchione had a high lottery number is irrelevant for a 
determination of prevailing party status. As previously stated, 
the injury in this case was the inability to compete for open 
magnet seats, not the denial of admission to a magnet program. 
Because I would *353 find that Capacchione rightly prevailed 
on the magnet schools issue, I would affirm the district court's 
award o f attorney fees for work in this area as well.

VII.

For the foregoing reasons, a majority of this court 
affirms the district court's declaration o f unitary status and the 
imposition of discovery sanctions. We vacate the district 
court's injunction because we can discern no danger of future 
violations. Additionally, I would affirm the finding of a 
constitutional violation in the magnet schools admissions 
policy, the award of nominal damages, and the attorney fees 
awarded pursuant to 42 U.S.C.A. § 1988.

WILKINSON, Chief Judge, concurring in part:

I concur in Parts I, II, IV, and V of Judge Traxler's 
thorough opinion. With respect to Parts III and VI, I 
respectfully take a different view.

I.

There can be no doubt that if the 1992 
Charlotte-Mecklenburg magnet school program were adopted



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today, it would be unconstitutional and in violation of our 
holdings in Tuttle v. Arlington County Sch. Bd, 195 F.3d 698 
(4th Cir.1999), and Eisenberg v. Montgomery County Pub. 
Schs., 197 F.3d 123 (4th Cir.1999). Those holdings properly 
emphasize the ecumenical premise of the Fourteenth 
Amendment that every American citizen regardless of race or 
ethnicity is deserving of equal dignity under the law.

The more difficult question is whether the adoption of 
the magnet school program in 1992, at a time when the school 
board was under a court desegregation order, stripped the 
Board of its immunity. I would hold that it did not. Inasmuch 
as the Board did not forfeit its immunity, I would vacate the 
award of damages against it and the fees and costs assessed 
thereon.17

Both the Supreme Court's Swann opinion and various 
lower court opinions relied for many years upon numerical 
benchmarks as an indicia of progress in achieving school 
desegregation. That emphasis, however, was primarily the 
work of the courts, not the school board. And judicial 
decisions further made clear that the Charlotte-Mecklenburg

’’Although the Grant plaintiffs have prevailed with regard to the 
unitary status determination, their basis for prevailing was not an action 
under 42 U.S.C. § 1983. Accordingly, there exists no statutory basis here 
for deviating from the American Rule. Under this rule, fees are not 
generally awarded to prevailing parties "absent explicit statutory authority." 
Buckhannon Board & Care Home, Inc. v. West Virginia Dept, o f Health 
and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 1837-39, 149 
L.Ed.2d 855 (2001) (internal quotation omitted). And the Supreme Court 
has emphasized that the judiciary enjoys no "roving authority" to award 
counsel fees "whenever the courts might deem them warranted." Id. at 
1843.



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school board could take the numerical approach of the courts 
even further in the course of devising desegregative remedies 
of its own.

For instance, in Swann, the Supreme Court itself held 
that: "School authorities are traditionally charged with broad 
power to formulate and implement educational policy and 
might well conclude ... that in order to prepare students to live 
in a pluralistic society each school should have a prescribed 
ratio o f  Negro to white students reflecting the proportion for  
the district as a whole. To do this as an educational policy is 
within the broad discretionary powers of school authorities." 
*354Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 402 U.S. 
1,16,91 S.Ct. 1267,28 L.Ed.2d 554 (1971) (emphasis added).

Likewise, in Swann v. Charlotte-Mecklenburg Bd. o f  
Educ., 501 F.2d 383 (4th Cir.1974) (en banc) (per curiam), 
parents of white students brought suit against the school board 
because it allegedly had established a set-aside for 
African-American students to take part in its gifted students 
program. Id. at 383. This court affirmed an injunction 
prohibiting the plaintiffs from proceeding in state court. We 
held that the plaintiffs' suit could affect the school board’s 
efforts to comply with prior federal court desegregation orders, 
including one which required the Board to assign students in 
such a manner that the schools would have about the same 
proportion o f African-American and white students. Id. at 3 84.

And the district court's desegregation orders in this case 
can fairly be read to encourage, rather than foreclose, the 
conduct in which the school board here engaged. For instance, 
in 1970, Judge McMillan ordered that "the defendants maintain 
a continuing control over the race of children in each school,...



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and maintain the racial make-up o f  each school .... The 
defendants are encouraged to use their full 'know-how' and 
resources to attain the results above described, and thus to 
achieve the constitutional end by any means at their disposal. 
The test is not the method or plan, but the results." Swann v. 
Charlotte-MecklenburgBd. ofEduc., 311 F.Supp. 265,268-69 
(W.D.N.C. 1970) (emphasis added). And four years later, in an 
order addressing optional schools, which were the precursors 
of the magnet schools, Judge McMillan ordered that: "Strict 
and central control must be exercised over all admissions 
(reassignments) to each optional school in order to fulfill the 
necessary ends that these schools... be integrated by grade at or 
above approximately a 20% black ratio." Swann v. 
Charlotte-Mecklenburg Bd. ofEduc., 379 F.Supp. 1102, 1108 
(W.D.N.C. 1974) (emphasis added).

While this case was removed from the active docket in 
1975, Judge McMillan noted that: "This case contains many 
orders of continuing effect, and could be re-opened upon proper 
showing that those orders are not being observed." Swann v. 
Charlotte-Mecklenburg Bd. o f  Educ., 61 F.R.D. 648, 649 
(W.D.N.C. 1975); see also Martin v. Charlotte-Mecklenburg 
Bd. o f  Educ., 475 F.Supp. 1318, 1340 (W.D.N.C. 1979) 
(upholding the school board's 1978 pupil assignment plan 
which took into consideration the race o f the student).

Magnet schools are a widely used desegregation device. 
It is true that in the early 1990's, the school board in its magnet 
program eagerly accepted the courts' invitation to rely upon 
numerical benchmarks. I believe, however, that it is necessary 
to afford a school board some latitude in attempting to meet its 
desegregative obligations if we are not to undermine the rule of 
law. To do otherwise leaves the Board between a rock and a



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hard place. Namely, if the school board fails to carry out the 
court desegregation order, it can be cited for contempt or held 
not to have achieved unitariness. But if  the Board acts 
aggressively to implement the court order, it risks facing 
judicial condemnation and the threat of litigation on the 
grounds that it was acting ultra vires. This is not the kind of 
quandary into which we should force institutions that are, for 
better or worse, under judicial decree.18 Such an approach risks 
undermining respect for *355 courts and, indeed, encouraging 
just the opposite.

My fine colleague, Judge Luttig, insists that the issue 
here has solely to do with racial quotas. I have strongly 
disapproved of the use of such quotas. See, e.g., J.A. Croson 
Co. v. City o f  Richmond, 822 F.2d 1355 (4th Cir.1987), a ffd  
488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989); 
Maryland Troopers Ass'n, Inc. v. Evans, 993 F.2d 1072 (4th 
Cir. 1993). Indeed I believe them to be inimical to a national 
future founded, as the Fourteenth Amendment requires, upon 
individual respect and mutual self-regard. Yet to see the sole 
issue here as racial quotas is to miss the forest for the trees. 
The cumulative message of innumerable court orders conveyed 
to the Charlotte-Mecklenburg board over the course of many 
years was to do everything possible to desegregate Charlotte 
schools. See, e.g., Swann, 402 U.S. at 15, 91 S.Ct. 1267 
("[Sjchool authorities are 'clearly charged with the affirmative 
duty to take whatever steps might be necessary to convert to a 
unitary system in which racial discrimination would be 
eliminated root and branch.' ") (quoting Green v. County Sch.

18The quandary in fact is illustrated by this very case where five 
members of the court feel the Board went too far in its remedial efforts, and 
four others believe just as strongly that the Board did not go far enough.



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Bd, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 20 L.Ed.2d 716 
(1968)) (emphasis added). And the school board attempted to 
do just that. To now condemn the Board would be to sanction 
the future disrespect and disregard for court orders of all sorts. 
This I am unwilling to do.

If an existing court order is infirm, the better course is 
to modify it through customary court processes. Today, we 
follow this approach with our determination that the school 
district has attained unitary status. This holding puts the school 
district on a race-neutral footing going forward, thereby 
granting it a truly fresh start. The solution to the fundamental 
Fourteenth Amendment problems with the 1992 magnet school 
plan is not to hold the Board liable for its attempts to 
implement the very policies, and attain the very ends, which the 
courts had ordered it to do. The answer is to point to a unitary 
future in which the principle of non-discrimination will guide 
its public actions.

II.

I concur fully in Judge Traxler's view that the 
Charlotte-Mecklenburg school system has achieved unitary 
status. I recognize that some citizens of Charlotte, aware of 
society's shortcomings on matters of race, may see in 
unitariness a mocking phrase. Others may view today's 
embrace of local governance as an act of judicial abandonment. 
The luminosity o f Brown v. Board o f  Education is such that 
many have come to look at courts as our sole guiding lights. 
Yet they were never meant to be such. If it was important that 
courts nurture the task of desegregation in its infancy, it is 
equally essential that a school district one day depart the 
comforting judicial homestead and strike out on its own.



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School districts will be stronger for finding their own way. For 
in the long run, courts cannot serve as the sole source of hope 
in the difficult area of desegregation, nor democracy as the 
object of fear. "Returning schools to the control o f local 
authorities at the earliest practicable date is essential to restore 
their true accountability in our governmental system. When the 
school district and all state entities participating with it in 
operating the schools make decisions in the absence of judicial 
supervision, they can be held accountable to the citizenry, to 
the political process, and to the courts in the ordinary course." 
Freeman v. Pitts, 503 U.S. 467, 490, 112 S.Ct. 1430, 118 
L.Ed.2d 108 (1992).

T he q u e s t io n  then  is w h e t h e r  the 
Charlotte-Mecklenburg system is ready for this step. The 
district court concluded that it *356 was. See Riddick v. School 
Bd. o f the City o f  Norfolk, 784 F.2d 521, 533 (4th Cir.1986) 
(holding that the district court's unitary status finding is 
reviewed for clear error). It is, I suppose, possible for us to 
reweigh the evidence or to refract this or that school board 
decision through a myriad of lenses. While any record, thus 
dissected, would be found to reveal its share of imperfection, 
a reversal o f the district court's finding of unitariness would do 
a profound disservice to the people of Charlotte. The recent 
history of Charlotte, as Judge Traxler’s careful opinion 
demonstrates, is not one of resistance and intransigence. Rather 
it shows a community struggling to meet its desegregative 
obligations in a period of staggering demographic change. 
Most importantly, African-Americans are vigorous participants 
both in the elective and deliberative process with regard to 
Charlotte's schools.



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Of course, the majority's sense of progress may be the 
dissent’s sense of great unfinished business. And let us suppose 
just for a moment that both are right. Still, I doubt that 
interminable court proceedings can convey to Americans the 
sense that we are in the enterprise of education together. For 
litigation depends for its energy on adversarial alignments, i.e., 
the school board and Swann plaintiffs are tentatively aligned, 
but the Swann plaintiffs and Capacchione plaintiffs are 
decidedly not. And while democracy has no shortage of 
conflict, reaching decision and compromise from within the 
community, as opposed to the external compulsion of court 
order, promises a better mutual understanding and a firmer 
common ground.

That at least is the hope. In this sense, then, unitariness 
is not an act of abandonment but a covenant o f faith. It reflects 
a judicial belief, well supported by this record, that the 
invidious practices of an indefensible era have indeed been 
dismantled and that Charlotte has earned the right to begin 
anew. No decisions are more sensitive and difficult than those 
involving public schools, and no process is more wrenching 
than that of matching limited resources to a limitless array of 
educational needs. But these challenges are better met by 
communities than by courts and, after thirty-five years of 
sporadic judicial supervision, the time has come to conclude. 
If not now, when? Each child is a human being to educate. If 
this essential task of education has become too daunting for 
democracy, then I know not who we are or what we shall 
become.

I am authorized to say that Judge Niemeyer joins in this 
opinion.



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WIDENER, Circuit Judge, concurring and dissenting:

I concur in or dissent from parts of the various opinions 
of the court and its various members, as indicated below, and 
I also respectfully dissent to the failure of the court to review 
the items of the judgment of the district court from which 
appeal is taken.

I.

We reviewjudgments, not opinions, e.g. Chevron USA, 
Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842,104 S.Ct. 
2778, 81 L.Ed.2d 694 (1984); Hyatt v. Sullivan, 899 F.2d 329, 
337 n. 10 (4th Cir.1990). The judgment of the district court, a 
copy of which is attached hereto as Exhibit A, is divided into 
five parts, which are:

1. The Charlotte-Mecklenburg schools are declared 
unitary in all respects;

2. All prior injunctive orders or decrees in the Swann 
case are vacated and dissolved and the case is dismissed with 
prejudice;

*357 3. The Charlotte-Mecklenburg school system shall 
pay nominal damages to the Plaintiff Intervenors in the amount 
of $1;

4. Charlotte-Mecklenburg schools are enjoined from 
assigning children to schools or to allocate educational 
opportunities on the basis of race;



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5. The Charlotte-Mecklenburg school system will pay 
reasonable attorneys fees, expert fees and costs of the 
Plaintiff-Intervenors.

And the district court, in another order, imposed 
sanctions on the defendants. A copy of relevant parts of that 
order is also attached as Exhibit B.

I vote to affirm the judgment of the district court in each 
respect, including the sanctions order, except that I would 
vacate the judgment of the district court as to Item 4, listed in 
Part I above, only on the ground it is unnecessary, the school 
board having given no indication that it will not comply with 
the orders of the court in this case.

II.

Despite universally accepted appellate procedure that 
we review judgments, not opinions, the other members of this 
court, without mention of the judgment of the district court, 
have divided a per curiam opinion into four issues, only the last 
two of which, concerning injunctive relief and sanctions, relate 
directly to the judgment of the district court we are reviewing. 
The first two issues, as stated in the per curiam opinion of the 
court, are phrased by a floating majority.

Only because each o f those majorities declines to vote 
to affirm or reverse the various items of the judgment of the 
district court, I will attempt to relate my votes to the per curiam 
opinion.



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As to Item 1 ,1 vote that the school system has achieved 
unitary status. Also as to Item 1 ,1 vote that the attorneys' fees 
for work done on the unitary status issue, and any other issue 
tried in this case, except a few dollars relating to Miss 
Capacchione's moving, should be granted. The majority, 
however, while it denies fees on "the unitary status issue," 
apparently does not immediately mention the fees of Miss 
Capacchione's attorneys, amounting to the sum of about 
$700,000, and one might think from reading the per curiam 
opinion that they were yet awarded were it not for the 
next-to-the-last line of the per curiam opinion denying fees "for 
any reason."

As to Item 2 of the per curiam opinion, I am in 
agreement with the district court, that the school board should 
have come back to it for authority to establish magnet schools 
in which the race o f the applicant was considered in deciding 
whether or not to grant admission. The district court so 
construed its own orders, which it is best able to do, and to 
which we must give due deference. Anderson v. Stephens, 875 
F.2d 76, 80 n. 8 (4th Cir. 1989); Vaughns v. Board Educ. o f  
Prince George's County, 758 F.2d 983, 989 (4th Cir. 1985). I 
need go no further to affirm the holding of the district court. I 
am of opinion that Miss Capacchione's Constitutional rights 
were violated when she was not considered for admission to the 
magnet school program notwithstanding her race and that she 
is entitled to nominal damages on that account. Norwood v. 
Bain, 166 F.3d 243 (4th Cir. 1999) (en banc).

Also as to Item 2, although I feel that the question of 
immunity has little or nothing to do with this case, because it is 
being used to rationalize that the successful attorneys do not get 
their attorneys' fees and that nominal damages for a



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Constitutional violation are not due, I vote that the school board 
did not have immunity from the payment of attorneys' fees, nor 
immunity*358 from nominal damages, that is to say, in the 
language of the per curiam opinion, it has been forfeited.

As to Items 3 and 4, the per curiam opinion correctly 
states my votes.

III.

With only slight interruptions, this case had been on 
inactive status for 22 years until Christina Capacchione started 
the present litigation when she filed her first complaint on 
September 5,1997, seeking to be considered for admission to 
the magnet school program without regard to her race. When, 
on March 6, 1998, the district court ordered the Swann 
litigation reactivated, upon the motion of the Swann plaintiffs, 
it consolidated the Capacchione suit with the Swann litigation. 
Miss Capacchione then amended her complaint on March 16, 
1998, to request a declaration that the school system had 
reached unitary status and moved on March 19, 1998 to 
intervene in the reactivated Swann litigation, which motion was 
granted. The Grant plaintiffs subsequently filed their complaint 
and motion to intervene in the Swann litigation on April 8, 
1998.

When Christina Capacchione filed her suit, the 
Charlotte-Mecklenburg schools were only admitting students 
to the magnet school program after having considered their 
race, and the school system was submitting itself to the 
racially-based pupil assignments imposed in response to the 
orders of the district court some years before, the suit having 
then been inactive for some 22 years. Now, four years and



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almost $1.5 million later, and over the determined opposition 
of the school board, the school system has been held to be 
unitary and the magnet schools may no longer consider the race 
of the applicant in granting or denying admission. All this is at 
the instance o f  Christina Capacchione.

When the Swann plaintiffs filed their suit in 1965, more 
than 35 years ago, their complaint was that the race of students 
was considered in determining their assignment to schools, 
precisely the same complaint that Christina Capacchione had in 
1997. When the Swann case was declared to be inactive in 
1975, the district court, at that time, awarded attorneys’ fees and 
costs to the plaintiffs' attorneys, for service through 1974, in the 
amount o f $204,072.33, and there are doubtless other such 
items not presently readily available to me. For us to hold now 
that the Capacchione child and the Grant plaintiffs are not 
entitled to the same consideration, as were the Swann plaintiffs, 
for eradicating racial assignments is certainly not fair and not 
even legal, in my opinion. How we are able to hold that the 
Capacchione and Grant plaintiffs and intervenors in this case 
are not successful parties in a § 1983 action strains reason 
beyond the breaking point. In my opinion, they are due costs, 
expenses, and attorneys' fees, etc. under 42 U.S.C. § 1988.

Especially to the holding of the en banc court, that the 
Capacchione and Grant plaintiffs and intervenors are not 
entitled to attorneys' fees and costs, etc., I respectfully dissent.

*My summary of such fees and costs is attached as Exhibit C.



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Opinions o f  the Court o f Appeals o f  September 21, 2001 

*359 EXHIBIT A

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF NORTH CAROLINA 
CHARLOTTE DIVISION

William CAPACCHIONE, Individually and on behalf of 
Cristina Capacchione, a Minor,

Plaintiff,
and

Michael P. Grant et ah,

Plaintiff-Intervenors, 3:97-CV-482-P

v.

CHARLOTTE-MECKLENBURG SCHOOLS et al„

Defendants. 

JAMES E. SWANN et al., 

Plaintiffs,

v. 3:65-CV-1974~P

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et 
al.,

Defendants.



Opinions o f  the Court o f  Appeals o f  September 21, 2001

*360 JUDGMENT

In accordance with the Memorandum of Decision and Order 
filed simultaneously with this Judgment, IT IS ORDERED 
ADJUDGED, AND DECREED that the Charlotte - 
Mecklenburg Schools (“CMS”) are hereby declared unitary' 
in all respects,

IT IS FURTHER, ADJUDGED, AND DECREED that all 
prior injunctive orders or decrees entered in Swann v. 
Charlotte Mecklenburg Bd. of Educ., No. 1975 (W.D.N.C.) 
are VACATED AND DISSOLVED, and Swann is hereby 
DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED, ADJUDGED AND 
DECREED that Capacchione and grant et al. (the “Plaintiff 
Intervenors”) are not entitled to an awarded of actual 
damages, but CMS shall pay nominal damages to the 
Plaintiff-Intervenors in the amount of one dollar ($1.00).

IT IS FURTHER ORDERED, ADJUDGED, AND 
DECREED that CMS is enjoined for assigned 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.

IT IS FURTHER ORDERED, ADJUDGED, AND 
DECREED that CMS shall pay the reasonable attorneys’ 
fees, experts fees, and costs of the Plaintiff-Intervenors.

This the 9th day of September 1999.



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

*361 EXHIBIT B

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF NORTH CAROLINA 
CHARLOTTE DIVISION

William CAPACCHIONE, Individually and on behalf of 
Cristina Capacchione, a Minor,

Plaintiff,
and

Michael P. Grant et al.,

Plaintiff-Intervenors, 3:97-CV-482-P

v.

CHARLOTTE-MECKLENBURG SCHOOLS et a l, 

Defendants.

JAMES E. SWANN et al.,

Plaintiffs,

v. 3:65-CV-1974-P

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et
al.,

Defendants.



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

*362 MICHAEL P. GRANT et al., 

Plaintiff-Intervenors,

V. Case No. 3:65-CV-1974-P

THE CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION et al.,

Defendants.

ORDER

THESE MATTERS are before the Court on a Motion by 
Plaintiff Capacchione and Plaintiff-Intervenors Grant et al. 
(hereinafter collectively “Grant”), filed April 16,1999, for 
Sanctions against Charlotte-Mecklenburg Board of 
Education for Non-Disclosure of Witnesses [document no. 
152]. Defendants Charlotte-Mecklenburg Schools et al.

NOW, THEREFORE, IT IS ORDERED that Grant’s Motion 
for Sanctions against Charlotte-Mecklenburg Board of 
Education for Non-Disclosure of Witness [document no.
152] be, and hereby is, GRANTED.

This the 23rd day of April 1999.



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

*363 EXHIBIT C 

Fees and Hours by Firm

Total expended on merits of the suit by both Grant and 
Cappachione = Fees and costs of $1,481,295.47 and 6,428.95 
hours

Total expended on fee petition by both Grant and 
Cappachione = Fees and costs of $17,721.00 and 74.35 hours

Total expended on all litigation (including a fee petition) by 
all plaintiffs = $1,499,016.47 and 6,503.2 hours

A. Counsel for Cappachione

(1) McGuire Woods Battle & Booth (John Pollard & 
Kevin Parsons)

Fees on the merits = $390,791.98 
Attorney and staff Hours on the merits = $1,954.5 
Fees for bringing fee petition = $4,000.00 
Attorney and staff hours for bringing fee petition = 
21.2

(2) Magenheim, Bateman, Robinson, Wrotenbery & 
Helfand (William Helfand)

Fees on the merits = $325,331.51 
Attorney and staff Hours on the merits = $1,553.85 
Fees for bringing fee petition = $3,372.50 
Attorney and staff hours for bringing fee petition = 
17.8



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Opinions o f  the Court o f Appeals o f  September 21, 2001

Total for Cappachione on the merits = $716,123.49 and
3,508.35 hours
Total for Cappachione for bringing fee petition = $7,372.50
and 38.9 hours

B. Counsel for Grant Plaintiff

(1) Parks, Chesin & Miller (A. Lee Parks)
Fees on the merits = $471,794.00 

Attorney and staff Hours on the merits = 2,160.7 
*364 Fees for bringing fee petition = $9,750.00 
Attorney and staff hours for bringing fee petition = 
32.50

(2) Thomas Ashcraft
Fees on the merits = $9,750.00 

Attorney and staff hours for brining fee petition = 
759.9
Fees for bringing fee petition = $598.50 
Attorney and staff hours for bringing fee petition = 
2.85

(3) In a supplemental order, Judge Potter awarded Parks 
and Ashcroft jointly $133,798.98 for expenses 
incurred litigation the merits.

Total for Grant Plaintiffs on the merits= $765,171.98 and
2,920.6 hours

Total for Grant Plaintiffs for bringing fee petition =
$10,348.50 and 35.35 hours.



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

LUTTIG, Circuit Judge, concurring in the judgment in part and 
dissenting from the judgment in part:

I concur in the opinion o f the court that the 
Charlotte-Mecklenburg School System is now unitary, 
following 35 years o f federal court supervision. I also agree 
with the conclusion reached by Judge Traxler that the School 
Board acted without the required authorization from the district 
court both when it created its expansive magnet school program 
and when it imposed a fixed quota to govern admissions to that 
program. Neither the creation of the magnet school program 
nor the imposition of a rigid quota governing admission into 
that program  were authorized by the district court, and both 
clearly constituted "material changes" from the district court's 
prior remedial orders, requiring prior court approval. I also 
agree with Judge Traxler's narrowest conclusion that, absent a 
proven necessity for such, an admissions program that 
permanently employs fixed ratios to deny certain students, 
solely because of their race, the opportunity to compete for 
seats that will otherwise be left unfilled even after all targeted 
minorities have been allotted seats (and I assume fixed ratios in 
a remedial context to be constitutional), is insufficiently 
tailored to withstand scrutiny.

I address myself separately only to the question whether 
the district court authorized the strict mathematical quota 
adopted by the School Board in 1992 to govern admissions to 
Charlotte-Mecklenburg's magnet school program, a quota that, 
as noted, required officials literally to leave seats unfilled even 
after all interested minority students had been afforded an 
opportunity to attend the magnet school of their choice.



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

I.

With respect to the magnet school program's admission 
policy, the holding o f the district court that we review is that 
that court had "firmly rejected the use of rigid racial quotas," 57 
F.Supp.2d 228,286 (W.D.N.C. 1999), and that, in contravention 
of those orders and the Supreme Court's decision in *365Swann 
v. Charlotte-Mecklenburg Bd. o f Educ., 402 U.S, 1, 25, 91 
S.Ct. 1267, 28 L.Ed.2d 554 (1971), the School Board had 
"us[ed] mathematical ratios not as a starting point but as an 
ending point." 57 F.Supp.2d at 289. "In policy and in practice, 
the[magnet schools'] 60/40 ratio requirement [was] an 
inflexible quota[,]" the district court found, id, at 288, and 
"slots reserved for one race [would] not be filled by students of 
another race." Id. at 289. Indeed, the court observed, "it was 
not uncommon for the school year to begin with seats 
remaining vacant because students of one race would disrupt 
the desired racial balance." Id. Accordingly, the district court 
held that the magnet school program constituted a "material 
departure" from the court's prior remedial orders. Id. at 287.

As to whether the rigid quota imposed by the School 
Board was authorized by the district court, the question is not 
whether the court's orders authorized race-conscious admission 
decisions, as the School Board argues, see Br. of Appellants 
Charlotte-Mecklenburg Board of Education, et al. at 20 ("The 
particular desegregation tool struck down by Judge 
Potter-magnet schools with race conscious admissions 
guidelines-has been repeatedly recognized by the Supreme 
Court and other courts as a valid exercise of the broad remedial 
discretion o f both district courts and school authorities."), and 
as Judge Motz and Judge Wilkinson contend by way of 
strawman. It is indisputable that race-conscious admission



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Opinions o f the Court o f Appeals o f  September 21, 2001

decisions were authorized by the district court's orders; not 
even the plaintiffs argue that they were not. Neither is the 
question whether parties are required to obey court orders, the 
only question addressed by the authorities relied upon by Judge 
Motz; of course, they are. Nor is the question whether quotas 
were "foreclosed" by the district court's orders, as Judge 
Wilkinson alternatively maintains; it should be evident that a 
party does not receive immunity for any and all conduct that is 
merely unforbidden by judicial order.

And finally, the issue is not whether racial quotas are or 
are not constitutional. There simply is no occasion in this case 
for a general expression of viewpoint as to the use o f racial 
quotas and, although I am given pause over Judge Wilkinson's 
express and categorical rejection of racial quotas, whatever the 
circumstance, I certainly express no such general view herein. 
I might well be presented with circumstances in which I would 
conclude that racial quotas were essential to the vindication of 
constitutional right. And I would be most reluctant to foreclose 
myself from such a conclusion in an appropriate circumstance 
by statements in a case in which the issue was not even before 
the court.

Rather, the only issue relevant to the question of 
whether the School Board is entitled to immunity is whether the 
district court specifically authorized the School Board's 
imposition of rigid quotas (i.e., whether the Board was acting 
pursuant to court order in imposing the fixed quotas), which 
denied students the opportunity to compete for unfilled seats 
solely because of their race. If the court did specifically 
authorize the use of fixed quotas, then the School Board is 
entitled to immunity; if  it did not, then immunity is 
unavailable. The authorities on this score are uniform. See,



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Opinions o f the Court o f Appeals o f  September 21, 2001

e.g., McCray v. Maryland, 456 F.2d 1, 5 (4th Cir.1972) 
(observing that the law provides immunity' for those whose 
actions are taken "in obedience to a judicial order or under the 
court's direction"); see also Rogers v. Bruntrager, 841 F.2d 
853, 856 (8th Cir.1988) (holding that clerks of court are 
immune from damages arising from acts they are "specifically 
required to do under court order at a judge’s direction") 
(internal citations omitted) (emphasis added); *366Lockhartv. 
Hoenstine, 411 F.2d 455, 460 (3d Cir.1969) (providing
immunity for officers who act "pursuant to" a court order); cf. 
DeFelice v. Philadelphia Bd. o f  Educ., 306 F.Supp. 1345 
(E.D.Pa. 1969) (extending immunity to school boards that take 
actions pursuant to an order of a state commission). Compare 
Wilkinson v. Forst, 832 F.2d 1330, 1334 (2d Cir.1987) 
(granting immunity to officers who conducted searches 
"specifically authorized" by court orders) with Wooley v. City 
o f Baton Rouge, 211 F.3d 913, 927 (5th Cir.2000) (denying 
immunity to officers who removed a child from a home without 
"specific authorization" by a court). Whether racial quotas are, 
as a general matter, constitutional has nothing whatsoever to do 
with the resolution of this issue. If the district court authorized 
strict racial quotas, then the School Board is entitled to 
immunity whether or not such strict quotas are constitutional.

Judge Wilkinson misunderstands this issue altogether, 
as is evident from both his extended and unnecessary 
discussion of racial quotas in general and his mistaken 
observation that I "insist" "the issue here has solely to do with 
racial quotas." Judge Motz, in contrast, understands the issue 
presented, but errs in its resolution because of a reliance upon 
fundamentally inapplicable authorities.



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

II.

Most certainly the district court did not specifically 
authorize the School Board to employ fixed quotas in the 
admission of students to its magnet schools, as the district court 
itself held. There is not even an argument that it did. Indeed, 
although fatal to their holding that the board is entitled to 
immunity, Judges Motz and Wilkinson do not even suggest 
otherwise. Nor could they.

Not only the very district court in question, but the 
Supreme Court of the United States itself in this very litigation, 
both explicitly and consistently disavowed the use and 
constitutional legitimacy of rigid quotas throughout the 
thirty-plus year history of Charlotte-Mecklenburg's 
desegregation efforts. In fact, in the course o f this very 
litigation, even the Charlotte-Mecklenburg School Board has 
strenuously argued against the fact and the constitutionality of 
any judicially-imposed quotas by the district court.

A.

Beginning over thirty-two years ago, in this identical 
litigation, Judge McMillan himself acknowledged the 
well-recognized and well-understood distinction between 
race-conscious decisions and rigid quotas, which is ignored by 
Judge Motz and variously ignored and misunderstood by Judge 
Wilkinson today. And he could not have been clearer that he 
would permit the former in pursuit of integration of the 
Charlotte-Mecklenburg school system, but forbid the latter—and 
he never wavered from that position. Said Judge McMillan at 
that time, in terms whose import is unmistakable for the issue 
before us, although "[r]ace may be considered in eliminating



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

segrega t ion  in a school system,"  Sw ann  v. 
Charlotte-Mecklenburg Bd. ofEduc., 306F.Supp. 1299,1312
(1969) , "[fjixed ratios o f  pupils will not be set." Id. (emphasis 
added). Judge McMillan's words bear repeating: "Fixedratios 
o f pupils will not be set." And in emphasis of the distinction he 
drew between fixed ratios and race-consciousness, he noted 
that although "efforts should be made to reach a 71-29 ratio in 
the various schools so that there will be no basis for contending 
that one school is racially different from the others, [it is 
necessary] to understand that variations from that norm may 
be unavoidable." Id. (emphasis added).

*367 Only two months later, Judge McMillan repeated 
that his order "[was] not based upon any requirement of'racial 
balance,'" Swann v. Charlotte- Mecklenburg Bd. ofEduc., 311 
F.Supp. 265, 267 (1970). He explained in no uncertain terms 
that the earlier-referenced 71-29 ratio, which our court today 
holds specifically authorized imposition of an inflexible quota, 
was merely a starting point in pursuit of the goal of 
desegregation. See id. at 267-68.

And a year later, Judge McMillan again explicitly 
rejected fixed, rigid quotas, re-emphasizing that " 'racial 
balance' is not required by this court." Swann v. 
Charlotte-Mecklenburg Bd. ofEduc., 318 F.Supp. 786, 792
(1970) . Indeed, the court recited, the previous order "expressly 
contemplated wide variations in permissible school 
population." Id.

B.

Not only did Judge McMillan, in his own orders, 
repeatedly reject the use of fixed quotas, the Supreme Court of



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

the United States, in reviewing Judge McMillan's orders, 
categorically rejected even an urged construction of these 
orders that would authorize fixed quotas. In reviewing Judge 
M cM illan's Order of February, 1970 {Swann v. 
Charlotte-MecklenburgBd. ofEduc., 311 F.Supp. 265 (1970)), 
the Supreme Court unambiguously stated, in a passage that 
should be dispositive of whether the district court previously, 
and certainly at any time thereafter, specifically (or otherwise) 
authorized the use of quotas, that it affirmed Judge McMillan's 
order only on the condition that it not be read to authorize fixed 
rigid quotas:

I f  we were to read the holding o f  the District Court to 
require, as a matter o f substantive constitutional right, 
any particular degree o f racial balance or mixing, that 
approach would be disapproved and we would be 
obliged to reverse. The constitutional command to 
desegregate schools does not mean that every school in 
every community must always reflect the racial 
composition of the school system as a whole.

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 402 U.S. 1, 24, 
91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (emphasis added); see 
also Winston- Salem/Forsyth County Bd. ofEduc. v. Scott, 404 
U.S. 1221, 1227, 92 S.Ct. 1236, 31 L.Ed.2d 441 (1971) 
(Burger, C.J., in Chambers) (describing as "disturbing" the 
School Board's "understanding that it was required to achieve 
a fixed 'racial balance' that reflected the total composition of 
the school district"). Only a "very limited use" of 
"mathematical ratios," as a "starting point," was within the 
"equitable remedial discretion of the District Court," id. at 25,



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Opinions o f the Court o f  Appeals o f  September 21, 2001 

91 S.Ct. 1267, held the Supreme Court.1

And, in perhaps the most powerful testament of all to 
the fact that this district court never intended, much less 
specifically authorized a quota of a type the majority holds 
today that it did, the School Board itself expressly argued to the 
Supreme Court of the United States in Swann both that Judge 
McMillan "disclaim[ed] any intent to require racial balancing," 
Respondent's *368 Br. at 24, and that the plain language of the 
district court order dealing with student enrollment ("about or 
above 20%") actually did not set quotas.2 Indeed, the Board 
that before this court argues that racial quotas were authorized 
by Judge McMillan, argued before the Supreme Court that it 
was beyond the constitutional authority of the district court to

'In the course of its opinion in Swann, the Court stated that a 
school board, as opposed to a federal court, would possess the discretionary 
power to direct that its schools maintain "a prescribed ratio of Negro to 
white students reflecting the proportion for the district as a whole." 402 
U .S.atl6,91 S.Ct. 1267. Both Judges Motz and Wilkinson seize upon this 
passage as if it supported their holding that the School Board's imposition 
of fixed quotas was permissible. Of course, as even the School Board 
realizes, this is misplaced reliance, for whether or not the Board possessed 
independent authority to impose the rigid quotas is entirely irrelevant to the 
only question before us of whether the Board is entitled to immunity 
because it was acting upon order of the district court.

2The petitioners in Swann, like the School Board, also argued that 
Judge McMillan neither intended nor imposed a quota in his desegregation 
order. In a construction of the district court's order that not only tracked the 
order's unambiguous language, but was ultimately adopted by the Supreme 
Court, petitioners maintained that the court employed the 71% 29% ratio 
merely as a "starting guide," "a specific, yet flexible goal," ’"expressed a 
willingness to accept a degree of modification,"’ and '"departed from it 
where circumstances required.’" Petitioners' Br., at 36, 38, 66.



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impose quotas ("absolutes"), as such would have been based on 
the district court's own "subjective" notions of right and wrong, 
not on the mandates of the Constitution, Respondent's Br., at 
35, and would violate individual rights guaranteed by the 
Fourteenth Amendment "of those blacks and whites caught up 
in the forced mass movement of children away from their 
neighborhoods." Id. at 52, 91 S.Ct. 1267. In an observation 
that now acquires ironic overtones of its own in light of the 
School Board's current posture that quotas were authorized by 
the district court, the Board in Swann argued with respect to its 
position (also rej ected by the Supreme Court) that, although not 
intended by Judge McMillan, his order should nonetheless be 
construed as effectively requiring racial balancing, that "[i]t is 
ironic that the counterpart of the compulsion outlawed by 
Brown I  and II  is now employed in the name of the 
Constitution. Is it trite to suggest that two wrongs do not make 
a right?" Id.

C.

If there were any question as to Judge McMillan's 
rejection of fixed quotas, and frankly there can be none in the 
face o f Judge McMillan's own disavowal and the Supreme 
Court's explicit condemnation of such in Swann, it was 
answeredwith equal clarity repeatedly by the district court in 
orders entered in the wake of Swann, in which the court was at 
obvious and undeniable pains to respect the Supreme Court's 
injunction that inflexible quotas not be set.

In an order issued the same month after the Supreme 
Court's decision in Swann, Judge McMillan again confirmed 
that he neither authorized nor permitted strict racial quotas. 
First, when the School Board asked to close a school to



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improve racial balance, Judge McMillan rejected the proposal 
decisively, finding deviations from targeted percentages an 
insufficient justification for such action. Swann v. 
Charlotte-Mecklenburg Bd. ofEduc., 328 F.Supp. 1346, 1348
(1971) (refusing to close a school where the number of white 
students was less by two percent than that assigned to the 
school in the beginning of the year and one percent greater 
"than the proportion called for under the plan"). And in 
language that belies any contention that the court authorized 
strict quotas, Judge McMillan rejected a flat ban on any student 
transfers that would alter the targeted composition of a school, 
instead ordering only that the School Board could not assign a 
child to a school or allow that child to attend a school different 
from the one he was attending at the start of the school year, if 
"the cumulative result of such assignment in any given period 
tends substantially to restore or to increase the degree of 
segregation in either the transferor or the transferee school ."Id. 
at 1350 (emphasis added).

*369 Two years later, Judge McMillan employed 
essentially the same carefully crafted language, again 
distinguishing between "racial identifiability" on one hand and 
strict quotas on the other, Swann v. Charlotte-Mecklenburg Bd. 
ofEduc., 362 F.Supp. 1223, 1228-30 (1973), invoking the 
language of "reasonably stable [pupil distribution]," 
"substantial [leeway for use of discretion and common sense]," 
and "[remedy for] gross unfairness [as the 'legitimate target of 
a court,' as contrasted with 'perfect fairness' which is 
'impossible to attain']." Id. at 1229,1231, 1238.

And, finally, in 1974, the district court entered the order 
that the School Board contends, and Judges Motz and 
Wilkinson accept, authorized the rigid quotas in dispute.



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Contrary to the Board's assertion and my colleagues' belief, 
however, that order, too, likewise carefully and deliberately 
preserved the elementary distinction between flexible ratios as 
a starting point to bring segregation to an end, which the 
Supreme Court had held were constitutionally permissible, and 
strict quotas, which the Supreme Court had held were 
constitutionally impermissible. Retaining just that amount of 
flexibility essential to the exercise of what the Supreme Court 
only two years before had admonished was the limit of its 
constitutional power, Judge McMillan ordered only "[t]hat the 
optional school enrollments will be controlled starting with 
1974 so that they are open to all county residents and have 
about or above 20% black students." Swann v. 
Charlotte-Mecklenburg Bd. ofEduc., 379 F.Supp. 1102,1104 
(1974) (emphasis added). Fully aware that the Supreme Court 
had forbidden imposition of quotas, the School Board itself did 
not even request authorization to impose strict quotas. 
Tellingly, the Board only submitted for the district court's 
approval a policy requiring that each school maintain a black 
student population of "at or above approximately 20%." To 
anyone familiar with the history of the litigation, and especially 
the Supreme Court's then-recent explicit rejection of any 
construction of Judge McMillan's orders that would impose a 
quota on the School Board, as was the School Board, the 
purposeful distinction between race consciousness and rigid 
quota drawn by Judge McMillan in his 1974 order could not be 
any clearer.

III.

Indeed, foregoing the implausible arguments embraced 
by the majority, not even the School Board seriously argues 
before us that the district court authorized strict quotas—which



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

should be unsurprising, given its own argument as early as 
1970 that such were unconstitutional and its firsthand 
knowledge that the Supreme Court had categorically rejected 
the use of such in this very litigation. To the Board's credit, it 
does not even attempt the argument made by Judges Motz and 
Wilkinson that the language of the district court orders itself 
authorized quotas. Rather than focus on whether the district 
court orders imposed or authorized rigid quotas, as to which it 
says nothing, the Board noticeably and notably passes instead 
to the very different argument that its admission policies were 
not, as a practical matter, tantamount to insistence upon rigid 
quotas as evidenced by the ultimate variation in the racial 
make-up of the magnet schools. See Appellants' Reply Br. at 
15; Appellants' Br. at 21 (suggesting that the "manner in which 
CMS admitted students to its magnet schools was fully 
consistent with these orders and not rigid and inflexible" 
because of the existence o f " [significant variance" from the 
initial goal). This "[significant variance," of course, is not due 
to the flexibility of the admissions process, but instead to its 
rigidity to the extent of leaving unfilled seats that were reserved 
for a particular race, even in the face of a *370 waiting list of 
students of different races. In any event, the ultimate 
demographics have no relevance whatever to the threshold 
question before us of whether the district court did or did not 
specifically authorize the Board to employ rigid quotas in 
admissions to its magnet schools-a question as to which the 
School Board's silence speaks volumes.

IV.

The facts o f the repeated explicit and consistent 
rejection of quotas by this district court in this very litigation 
for over thirty years; the categorical rejection by the Supreme



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

Court of the United States of any construction of the district 
court's orders that would require rigid quotas; the School 
Board's own argument before the Supreme Court in Swann that 
rigid quotas were never intended or ordered by the district 
court, and that, if they had been, such would be 
unconstitutional; and the Board's tacit (and frankly, candid, if 
indirect) concession in its briefs before this court that the 
district court did not authorize rigid quotas, renders beyond any 
argument the plaintiffs contention that the School Board acted 
outside the scope of the district court's orders when it adopted 
rigid quotas and refused to permit students to compete for open 
seats based upon their race alone. Not merely had the district 
court never authorized the School Board's use of rigid quotas. 
It had expressly stated that it would not do so, as the Board 
itself knew well. And, if  this alone were not enough, at this 
very School Board's behest, the district court had been 
instructed by no less an authority than the Supreme Court of the 
United States that it would have been without the constitutional 
power to impose such an inflexible requirement on the county 
officials of Charlotte- Mecklenburg, even had it wanted to. The 
holding on this record that the district court authorized the use 
o f strict quotas is, as best evidenced by the palpable lack of 
support summoned by the combined opinions of Judges Motz 
and Wilkinson on behalf of that holding, simply insupportable.

"The cumulative message of innumerable court orders 
conveyed to the Charlotte-Mecklenburg board over the course 
o f many years" actually was not, as Judge Wilkinson asserts, 
"to do everything possible to desegregate Charlotte schools." 
Post at 366. It was to do "everything possible" to desegregate 
Charlotte-Mecklenburg's schools, except employ strict racial 
quotas.



Opinions o f  the Court o f  Appeals o f  September 21, 2001

DIANA GRIBBON MOTZ & KING, Circuit Judges:

A majority of the Court today reverses the district 
court's finding that the use of a race-based admission policy by 
the Charlotte-Mecklenburg Board of Education ("CMS" or 
"Board") in its expanded magnet schools program violated the 
Equal Protection Clause of the Constitution of the United 
States—and thus vacates the attendant injunction, monetary 
relief, and attorney's fees award. Every significant aspect of the 
expanded magnet schools program, including the use of racial 
proportions in assigning students to magnet schools, was 
authorized by the judicial desegregation orders governing this 
case. The Board's obligation to obey these court orders 
insulates it from constitutional attack for actions taken in 
compliance with them. It would be the rankest injustice to find 
the Board liable for a constitutional violation, and subject to 
monetary damages and enormous attorney's fees, when its 
expanded magnet schools program was simply a good-faith 
attempt to comply with the desegregation orders imposed by 
federal courts to remedy an unlawful dual school system. Thus, 
for the reasons *371 more fully explained in parts III, IV, V, 
and VI of this opinion, the magnet schools ruling must be 
reversed and the accompanying injunction, monetary damages, 
and attorney's fees award must be vacated.

Elowever, a separate maj ority severely errs in upholding 
the district court's determination that CMS has achieved unitary 
status. This majority expresses its "satisfaction that CMS has 
dismantled the dual school system." Traxler Op. at 7. For the 
reasons set forth in parts II and VIII of this opinion, no one 
should be satisfied at this time. Nothing yet demonstrates that 
CMS has eliminated all vestiges of the unlawful discrimination



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that has long permeated its school system. In holding to the 
contrary, the majority has only succeeded here in dashing the 
hopes of the citizens of Mecklenburg County, particularly those 
of African-American descent, who have long fought for the fair 
and equitable implementation of the desegregation plan 
approved by Judge McMillan some thirty years ago. These 
successive generations of parents and children have been 
slowly starved by a well-meaning—but irresolute-governing 
body, whose sins have been absolved by the court below (and 
now by a majority of this Court) without anything but the most 
cursory examination. Although CMS has clearly achieved 
unitary status in certain respects, there remain several areas of 
primary concern that have not been subjected to anything 
approaching a proper constitutional analysis. We deplore, and 
believe the Court itself may one day regret, the refusal o f a 
present majority to recognize this.

I.

A.

In order to better understand the issues presented in this 
case, we must briefly review our country's history of school 
desegregation litigation, in which CMS has played a prominent 
role.

Even after slavery had been abolished for almost a full 
century, African- American children were, for the most part, 
either excluded from the public schools or educated separately 
from white children. "In fact, any education of Negroes was 
forbidden by law in some states." Brown v. Bd. ofEduc., 347 
U.S. 483,490, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ("Brown /" ); 
see also Martin v. Charlotte-Mecklenburg Bd. o f  Educ., 475



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F.Supp. 1318, 1324 (W.D.N.C.1979) ("For three centuries 
racial segregation was the law of the land."). Indeed, 
throughout the early part of the 1900s, CMS operated a 
segregated school system within the safe harbor created by the 
Supreme Court's doctrine of "separate but equal" articulated in 
Plessy v. Ferguson, 163 U.S. 537,16 S.Ct. 1138,41 L.Ed. 256 
(1896).

In the middle of the 1900s, the Supreme Court began 
dismantling the great wall of segregation constructed under the 
imprimatur of Plessy. The Court initially sought to determine 
whether various "separate" African-American schools were 
genuinely "equal" to white schools by evaluating the quality of 
physical facilities, curricula, faculty, and certain "intangible" 
considerations. See, e.g., Sweatt v. Painter, 339 U.S. 629, 70 
S.Ct. 848,94 L.Ed. 1114 (1950); Sipuel v. Board o f Regents o f  
Univ. o f  Okla., 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247 
(1948). In each instance, the Court concluded that they were 
not. Id.

In 1954, the Supreme Court at last overruled Plessy, 
declaring that "in the field of public education the doctrine of 
'separate but equal' has no place. Separate educational facilities 
are inherently unequal." Brown I, 347 U.S. at 495, 74 S.Ct. 
686. Just one year later, the Court mandated that federal courts 
and school authorities take affirmative steps to achieve 
desegregation. *372 Brown v. Bd. ofEduc., 349 U.S. 294,299, 
75 S.Ct. 753,99 L.Ed. 1083 (1955) ("BrownII"). Specifically, 
federal courts were to retain jurisdiction over desegregation 
cases during the period of transition, wielding their equitable 
powers to supervise school boards' efforts to effectuate 
integration. Id. at 300-01, 75 S.Ct. 753. One of the most 
important obligations of the federal courts was to ensure that



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school boards were proceeding in good faith to desegregate the 
public schools "with all deliberate speed." Id. at 301, 75 S.Ct. 
753. With these seminal decisions-Brown /and  Brown I I - the 
Supreme Court promised the citizens of this country, and 
particularly African-American children, school systems "in 
which all vestiges of enforced racial segregation have been 
eliminated." Wright v. Council o f the City o f  Emporia, 407 U.S. 
451, 463, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972).

Notwithstanding the Court's repeated admonition that 
segregation and its vestiges be eliminated "root and branch," 
Green v. County Sch. Bd. o f  New Kent County, 391 U.S. 430, 
437-38, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), many school 
boards—CMS included-adopted "an all too familiar" response 
to the mandate of Brown II, interpreting "all deliberate speed" 
"as giving latitude to delay steps to desegregate." Freeman v. 
Pitts, 503 U.S. 467, 472, 112 S.Ct. 1430, 118 L.Ed.2d 108 
(1992). And so, lower federal courts, with the guidance and 
oversight of the Supreme Court, began fashioning equitable 
remedies to contend with school board recalcitrance. For 
example, in Green, the Supreme Court held that a "freedom of 
choice" plan, which permitted students-regardless of race-to 
choose the school they would attend, was by itself insufficient 
to meet the mandate of Brown. 391 U.S. at 430, 88 S.Ct. 1689. 
In so holding, the Court recognized that more intensive efforts 
would be necessary in order to make "meaningful and 
immediate progress toward disestablishing state-imposed 
segregation." Id. at 439, 88 S.Ct. 1689. Subsequently, in this 
very case, the Court approved significant federal court 
intervention into a school system in order to eliminate 
segregation "root and branch," including the busing of students 
from schools close to their homes to schools farther away, the 
use of race-based "mathematical ratios," and the alteration of



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student attendance zones. Swann v. Charlotte-Mecklenburg 
Bd. ofEduc., 402 U.S. 1,15, 25, 28, 30-31, 91 S.Ct. 1267, 28 
L.Ed.2d 554 (1971).

The Supreme Court has made clear, however, that a 
federal court's "end purpose must be to remedy the violation 
and, in addition, to restore state and local authorities to the 
control o f a school system that is operating in compliance with 
the Constitution." Freeman, 503 U.S. at 489, 112 S.Ct. 1430. 
Hence, as a school system eliminates the vestiges of past 
official segregation from certain facets of its operations, courts 
possess the authority to relinquish supervision in a 
commensurate fashion. Id. at 489-91, 112 S.Ct. 1430.

In this context, we examine the steps taken by CMS to 
eliminate the vestiges of segregation.

B.

1.

North Carolina's most significant initial response to the 
mandate o f Brown II was the "Pupil Assignment Act of 
1955-56, under which [the Board had] the sole power to assign 
pupils to schools, and children [were] required to attend the 
schools to which they [were] assigned." Swann v. 
Charlotte-Mecklenburg Bd. ofEduc., 300 F.Supp. 1358,1361 
(W.D.N.C.1969). This was an ineffectual measure-perhaps 
intentionally so-and by 1964, no more than *373 a few dozen 
(out of more than 20,000) African-American children in CMS 
were attending schools with white children. Id. at 1362.



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2 .

In 1965, the parents of African-American children 
attending CMS (hereinafter the "Swann plaintiffs")1 filed a 
class action seeking injunctive relief, claiming that the Board’s 
policies and practices were perpetuating a segregated school 
system. Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 243 
F.Supp. 667, 668 (W.D.N.C.1965). On July 14, 1965, the 
district court approved a Board-proposed plan that closed 
certain black schools, built new schools, and established school 
attendance zones based on neighborhoods. But the linchpin of 
this plan was its grant of permission to each student-regardless 
of race— to freely transfer to a different school (often described 
as a "freedom of choice" plan). Id. In approving this plan, the 
district court held that CMS had no affirmative duty to 
"increase the mixing of the races"; instead, the Board's 
obligation under Brown II, according to the court, was to act 
without the intent to perpetuate segregation. Id. at 670. The 
following year, this Court affirmed the district court's 
in te rp re ta tio n  o f  B row n II. See Sw ann  v. 
Charlotte-Mecklenburg Bd. o f Educ., 369 F.2d 29, 32 (4th 
Cir. 1966) ("Whatever the Board may do in response to its own 
initiative or that of the community, we have held that there is 
no constitutional requirement that it act with the conscious 
purpose of achieving the maximum mixture of the races in the 
school population.").

However, in the wake of the Supreme Court's 1968 
decision in Green, which struck down a desegregation plan

‘Since this case was first filed in 1965, the various successor 
plaintiffs have been referred to as the Swann plaintiffs, a practice we 
continue to observe here.



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founded predominantly on "freedom of choice," it became clear 
that school boards did possess an affirmative obligation to 
desegregate, not merely an obligation to implement race-neutral 
policies. Green, 391 U.S. at 437-38, 88 S.Ct. 1689. 
Invigorated by the developing law, the Swann plaintiffs 
promptly filed a motion for further relief with the district court, 
seeking to expedite the desegregation process.

3.

In 1969, Judge James B. McMillan, newly assigned to 
the Swann case,2 reexamined the Board's actions in light of 
Green and determined that its "freedom of choice" plan, when 
coupled with geographic zoning, were "not furthering 
desegregation." 300 F.Supp. at 1372. On the fundamental 
matters of assigning students and faculty, and the siting of new 
schools, the court made the following findings:

• Student assignment: The court noted that a ratio of 
seventy percent white students to thirty percent black 
students, which approximated the ratio of white to 
black students in the county, tended to aid "better 
students [in holding] their pace, with substantial 
improvement for the poorer students." Id. at 1369.

• Faculty assignment: Although faculty members were 
not being assigned with a discriminatory purpose, there 
was also "no sustained effort to desegregate faculties." 
Id. at 1370. The court ordered CMS to work actively to 
integrate the faculties, so that "a child attending any

2For clarity's sake, we will often refer within to the presiding 
district judge by name.



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*374 school in the system will face about the same 
chances of having a black or a white teacher as he 
would in any other school." Id.

• School siting: The court underscored that the 
desirability of implementing a "neighborhood school" 
policy, under which efforts were made to locate schools 
in neighborhoods and within walking distance for 
children, could not override the constitutional duty to 
desegregate. Id. at 1369. At the same time, CMS was 
not to avoid locating new facilities in black 
neighborhoods. Id. at 1371.

In light of Green, Judge McMillan also ordered CMS to 
submit a new, amended desegregation plan, and he outlined 
certain possible remedies, including busing and re-zoning. 
Swann, 300F.Supp. at 1360; Swannv. Charlotte-Mecklenburg 
Bd. ofEduc., 306 F.Supp. 1299, 1302 (W.D.N.C.1969).

Once again, however, CMS was slow to respond, 
prompting Judge McMillan to impose a deadline of August 4, 
1969, by which the Board was to submit a detailed 
desegregation plan to the court. See Swann v. Charlotte- 
Mecklenburg Bd. o f  Educ., 300 F.Supp. 1381, 1382, 1386 
(W.D.N.C.1969). CMS complied, and its proposed 
desegregation plan appeared to accept, for the first time, the 
constitutional duty to desegregate students, teachers, principals, 
and staffs " 'at the earliest possible date.' " Swann v. Charlotte- 
Mecklenburg Bd. o f  Educ., 306 F.Supp. 1291, 1293 
(W.D.N.C.1969). The Board's proposed desegregation plan, 
approved by the district court on an interim basis ("interim 
desegregation plan"), included programs for faculty 
desegregation, the closing of seven all-black schools, and the



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reassignment of pupils from the closed schools to outlying, 
predominantly white schools. Id. at 1298-99. In approving the 
plan on an interim basis, the district court noted that black 
children were bearing a disproportionate burden of the 
desegregation efforts, but the court nonetheless concluded that 
some action— even if interim—was preferable to none at all. Id. 
at 1298. Judge McMillan also ordered the Board to submit 
another desegregation plan within three months.

In November and December 1969, the district court 
determined that the school system's compliance with the 
interim desegregation plan was unsatisfactory, finding that the 
Board was continuing to perpetuate segregation:

The School Board is sharply divided in the expressed 
views of its members. From the testimony of its 
members, and from the latest report, it cannot be 
concluded that a maj ority of its members have accepted 
the court's orders as representing the law which applies 
to the local schools. By the responses to the October 10 
questions, the Board has indicated that its members do 
not accept the duty to desegregate the schools at any 
ascertainable time; and they have clearly indicated that 
they intend not to do it effective in the fall of 1970. 
They have also demonstrated a yawning gap between 
predictions and performance.

Swann, 306 F.Supp. at 1306. At that time, the district court 
also reviewed and rejected the Board's newly submitted 
amended desegregation plan. Id. at 1313-14. Then, the court 
appointed Dr. John A. Finger, Jr. as an expert consultant to 
prepare a more acceptable plan. This appointment came nearly



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two years after the Supreme Court's Green decision and more 
than fifteen years after Brown I.

The district court ultimately adopted Dr. Finger's 
proposed plan for elementary schools and the Board's plan, as 
modified by Dr. Finger, for secondary schools (collectively 
*375 the "Finger Plan"). Swann v. Charlotte-Mecklenburg Bd. 
ofEduc., 311 F.Supp. 265,268-70 (W.D.N.C.1970). In doing 
so, the court again observed the Board's failure to make an 
effective beginning to desegregation: "The School Board, after 
four opportunities and nearly ten months of time, have failed to 
submit a lawful plan (one which desegregates all the schools). 
This default on their part leaves the court in the position o f 
being forced to prepare or choose a lawful plan." Id. at 267.

The Finger Plan included several components. First, 
students were to 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." Id. at 
268. Second, "no school [could] be operated with an all- black 
or predominantly black student body." Id. Third, in redrawing 
the school system's attendance zones, the Board was authorized 
to use bus transportation and noncontiguous "satellite zones"3

3CMS used "satellite zones" in connection with elementary 
schools. Under this method, students from a small geographic area located 
outside an elementary school’s primary attendance area were assigned to 
that school. J.A. 15571,16052; see also Swann, 402 U.S. at 9 & n. 3, 91 
S.Ct. 1267. The use of satellite zones was implemented by "pairing" 
elementary schools—students from a predominantly black neighborhood 
were bused to a school in a predominantly white neighborhood for grades 
K-3, and students from a predominantly white neighborhood were bused to 
a school in a predominantly black neighborhood for grades 4-6. J.A. 15571, 
16052; see also Swann, 402 U.S. at 9-10, 91 S.Ct. 1267.



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to accomplish its goals. Id. Fourth, the district court restricted 
the student transfer policy in order to safeguard against 
resegregation. Id. at 268-69. Fifth, the race of faculty members 
at each school had to approximate the ratio of black and white 
faculty members throughout the system. Id. at 268. Sixth, the 
overall competence of teachers at formerly black schools could 
not be inferior to those at formerly white schools. Id. Finally, 
the district court mandated that the Board monitor and report 
on its progress in implementing the plan. Id. at 269.

The Finger Plan was challenged on several occasions 
and, in 1971, the Supreme Court upheld it as a valid exercise of 
the district court's equitable powers. Swann, 402 U.S. at 31-32, 
91 S.Ct. 1267. Indeed, the Court specifically found that the 
district court's adoption of a student assignment plan that used 
race-based "mathematical ratios" as a starting point was well 
within the court's "equitable remedial discretion." Id. at 25, 91 
S.Ct. 1267.

Even after the Supreme Court's decisionin Swann, the 
district court found that the Board's desegregation efforts failed 
to meet constitutional requirements. For example, Judge 
McMillan ordered student assignment proposals revised in June 
1971, finding that the proposals "were discriminatory in detail 
and in overall result; they placed increasing burdens upon 
black patrons while partially relieving white patrons of similar 
burdens." Swann v. Charlotte- Mecklenburg Bd. ofEduc., 328 
F.Supp. 1346,1347 (W.D.N.C.1971). During the 1971-72 and 
1972-73 school years, the district court attempted a "hands-off’ 
approach, leaving the Board to remedy problems as they arose, 
but the court twice found that the Board still had not adopted 
sufficient measures to guard against resegregation and ensure 
that whites were bearing an appropriate share of the



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desegregation burden. See Swann v. Charlotte-Mecklenburg 
Bd. ofEduc., 362F.Supp. 1223,1230(W.D.N.C.1973); Swann 
v. Charlotte- Mecklenburg Bd. o f  Educ., 379 F.Supp. 1102 
(W.D.N.C. 1974); see also discussion of specific findings infra.

*376 The 1974 order expressed somewhat more 
optimism about the Board's desegregation efforts. In that order, 
Judge McMillan approved a student assignment proposal that, 
if  implemented properly, would result in "a fair and stable 
school operation" and would permit the court to close the case 
as an active matter. See 379 F.Supp. at 1103. The proposal 
made provisions for several "optional schools"—schools that 
would offer some specialized program or curriculum and 
thereby attract students of all races from across Charlotte and 
Mecklenburg County. Although Judge McMillan approved the 
incorporation of these schools into the plan, he cautioned that 
the optional schools would be inconsistent with the school 
board's constitutional obligations if they merely served to 
re-institute "freedom of choice." Id. at 1104 (" 'Freedom of 
choice' was a synonym for segregation for many years, and ... 
it should not be resurrected at this late date sub nom. 'optional 
schools' without adequate safeguards against discriminatory 
results."). To ensure that the optional schools served their 
stated purpose of furthering the process of desegregation, Judge 
McMillan decreed that "optional school enrollments will be 
controlled starting with 1974 so that they ... have about or 
above 20% black students." Id.

Finally, in July 1975, over twenty years after the 
mandate of Brown II, Judge McMillan for the first time 
observed, albeit with reservations, that the Board was actually 
working toward desegregation: "The new Board has taken a 
more positive attitude toward desegregation and has at last



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openly supported affirmative action to cope with recurrent 
racial problems in pupil assignment." Swann v. 
Charlotte-Mecklenburg Bd. o f  Educ., 67 F.R.D. 648, 649 
(W.D.N.C.1975). Although the district court cautioned that 
problems remained, the new vigor with which the Board was 
pursuing desegregation persuaded Judge McMillan to close 
Swann as an active matter of litigation and to remove it from 
the court's docket. Id. at 649-50. In so acting, the court 
reaffirmed that its orders still stood: " [t]his case contains many 
orders of continuing effect, and could be re-opened upon proper 
showing that those orders are not being observed." Id. at 649.

4.

Between 1975 and 1992, two significant actions were 
taken in connection with the CMS desegregation litigation.

a.

First, in 1978, a group of white parents and children 
brought suit against CMS, seeking an order prohibiting the 
Board from assigning children pursuant to the Board's latest 
student-assignment plan. See Martin, 475 F.Supp. at 1320. 
The Martin plaintiffs claimed that the Supreme Court's 
then-recent decisions in Pasadena City Bd. o f  Educ. v. 
Spangler, A ll  U.S. 424, 436, 96 S.Ct. 2697, 49 L.Ed.2d 599 
(1976), and University o f  Cal. Regents v. Bakke, 438 U.S. 265, 
305, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), prohibited any 
consideration of race in student assignment. 475 F.Supp. at 
1321. The Swann plaintiffs intervened in Martin, joining the 
Board's opposition to the contentions of the Martin plaintiffs. 
Id.



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A  brief review of Spangler and Bakke is necessary to an 
understanding of Martin. In Spangler, the Supreme Court held 
that because the Pasadena Unified School District ("PUSD") 
had achieved racial neutrality in its school attendance pattern, 
"the District Court was not entitled to require the PUSD to 
rearrange its attendance zones each year so as to ensure that the 
racial mix desired by the court was maintained in perpetuity." 
427 U.S. at 436,96 S.Ct. 2697. All parties in Spangler agreed 
*377 that the plan initially achieved racial neutrality in student 
attendance; nonetheless, the district court had believed it was 
empowered to annually readjust school boundaries to ensure in 
perpetuity that there would be no majority of any minority race 
at any Pasadena school. Id. at 433, 436, 96 S.Ct. 2697. In 
Bakke, the Supreme Court determined that a public university 
with no history of discrimination could not constitutionally 
reserve sixteen out of one hundred admission slots for racial 
minorities. 438 U.S. at 319-20,98 S.Ct. 2733. In striking down 
this admissions plan, the Court had made clear that "[wfhen a 
classification denies an individual opportunities or benefits 
enjoyed by others solely because of his race or ethnic 
background, [it must] be regarded as [constitutionally] 
suspect." Id. at 305, 98 S.Ct. 2733.

Judge McMillan, who retained jurisdiction over Swann 
and presided over Martin, first held that because CMS had not 
achieved racial neutrality in student attendance, consideration 
of race in student assignment policies was appropriate under 
Swann. See Martin v. Charlotte-Mecklenburg Bd. o f  Educ., 
626 F.2d 1165 (4th Cir.1980). He explained that because the 
student assignment policy in the CMS school system had been 
independently adopted by the Board, it was not established, as 
the Spangler policy had been, via judicial coercion or order. 
475 F.Supp. at 1340-43. Second, Judge McMillan ruled that



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Bakke was inapposite to the claims of the Martin plaintiffs. 
Specifically, the court reasoned that no child was being denied 
access to equal educational opportunity because of race, see id. 
at 1321, and the actions of the Board were therefore not 
constitutionally suspect under Bakke.

In upholding the independent actions of the Board, 
Judge McMillan made several important findings. For 
example, he found that discrimination had not ended; indeed, 
it was this very finding that led the court to uphold the 1978 
race-conscious student assignment policy. Id. at 1346-47. 
Also, although for the first time the district court praised the 
efforts of the Board without reservation, it underscored yet 
again the need for patience and continued efforts:

It took three centuries to develop a slave culture, to 
fight a bloody civil war, and to live through the century 
of racial turmoil after that war.

The culture and attitudes and results of three centuries 
of segregation cannot be eliminated nor corrected in ten 
years. Human nature and practices don't change that 
fast, even in the hands of people of good will like the 
members of the present School Board. They need time 
to work their own experiments, and to find their own 
ways of producing the sustained operation of a system 
of schools in which racial discrimination will play no 
part. I vote to uphold their efforts to date, and to give 
them that time.



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Id. at 1347. In 1980, we affirmed the district court's decision
in Martin. See 626 F.2d at 1165.

b.

The second significant phase of litigation between 1975 
and 1992 was initiated in 1980. At that time, CMS and the 
Swann plaintiffs notified the district court that the black student 
population in CMS elementary schools had grown from 
twenty-nine percent to forty percent, making it increasingly 
difficult to comply with the desegregation order's mandate to 
avoid majority-black elementary schools. In response to this 
change, Judge McMillan approved a modification to the 
desegregation plan. Instead of prohibiting a "predominantly 
*378 black student body," the court permitted CMS to operate 
elementary schools with a black student population o f "plus 15 
percent" above the district-wide average. Thus, if  the school 
district averaged forty percent black students, any individual 
school could have fifty-five percent black students.

5.
From 1981 to 1992, the Board continued to operate its 

desegregation plan as approved by the district court, focusing, 
inter alia, on satellite attendance zones, a feeder plan 
(assigning middle-school students from a certain neighborhood 
to identified high schools), school closings, and construction of 
new schools. Then, in 1992, CMS substantially increased its 
reliance on "optional" or magnet schools (the "expanded 
magnet schools program"). The Board placed new emphasis on 
magnet schools in order to phase out "pairing" and heavy 
reliance on busing, and to give parents more choice in school 
selection. It was the expanded magnet schools program that 
ultimately led to the present phase of this litigation.



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6 .

In September 1997, William Capacchione, individually 
and on behalf of his daughter Cristina, sued CMS claiming that 
Cristina was unconstitutionally denied admission to a magnet 
school. Christina is Hispanic and Caucasian, and her suit under 
42 U.S.C. § 1983 sought declaratory, injunctive, and 
compensatory relief. In response, CMS moved to dismiss 
Capacchione's suit and, almost simultaneously, the Swann 
plaintiffs moved to reactivate Swann, claiming that CMS was 
not yet in compliance with past desegregation orders and had 
not yet achieved unitary status. Because Judge McMillan had 
died, the cases were assigned to Senior Judge Robert D. Potter, 
who restored Swann to the district court's docket, consolidated 
the cases, denied CMS's motion to dismiss, and granted 
Capacchione's motion to intervene.4

The Capacchione plaintiffs claimed that CMS had long 
since eliminated the vestiges of segregation in its schools, and 
that its formerly dual system of white and black schools had, 
for some time, been unitary. They also contended that CMS, 
while still operating under the court's desegregation orders, had

4Since filing suit, the Capacchiones have moved to California. 
Based on that fact and other findings, the district court determined that 
William Capacchione no longer possessed standing to seek injunctive or 
declaratory relief, but that he did have standing to pursue compensatory 
relief. Capacchione v. Charlotte-Mecklenburg Schs., 57 F.Supp.2d 228, 
240 (W.D.N.C.1999). Another group of white parents intervened in the 
consolidated action and that group, represented by plaintiff Michael Grant, 
claimed that CMS has achieved unitary status. The various groups of 
plaintiffs that have joined in Capacchione's claims are hereinafter referred 
to as "the Capacchione plaintiffs."



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violated those orders and the constitutional rights of white 
students in its efforts to desegregate the school system by 
employing a race- conscious assignment lottery in its expanded 
magnet schools program. The Swann plaintiffs countered that 
the school system had not yet achieved unitary status. CMS 
acknowledged that it was not yet in compliance with past 
desegregation orders and agreed that it should not be declared 
to have achieved unitary status. CMS also contended that, in 
any event, the expanded magnet schools program constituted an 
entirely constitutional and appropriate integration tool 
authorized under the desegregation orders in this case. The 
Swann plaintiffs, while endorsing the concept of magnet 
schools, argued that the expanded magnet schools program, as 
implemented, *379 was contributing to the resegregation of the 
school system.

Following a bench trial conducted from April 19 to June 
22, 1999, the court, on September 9, 1999, filed its 
Memorandum of Decision and Order, from which this appeal 
is taken. See Capacchione v. Charlotte-MecklenburgSchs., 57 
F.Supp.2d228 (W.D.N.C.1999). Although the Board claimed 
that unitary status had not been achieved, the district court 
found that it had. In its ruling, the district court then found that 
the Board's expanded magnet schools program, even though 
instituted to effect court-ordered desegregation, was 
unconstitutional. Furthermore, the court enjoined the Board 
from "assigning children to schools or allocating educational 
opportunities and benefits through race-based lotteries, 
preferences, set-asides, or other means that deny students an 
equal footing based on race." Id. at 294. Finally, the court 
awarded the Capacchione plaintiffs nominal monetary damages 
and substantial attorney's fees.



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C.

The Board and Swam  plaintiffs appealed every portion 
o f the district court's judgment. A panel of this Court, with one 
judge dissenting, vacated and remanded the district court's 
unitary status determination, holding that the district court's 
unitary status findings were insufficient with respect to student 
assignment, facilities, transportation, and student achievement. 
The panel also reversed the district court’s holding that the 
expanded magnet schools program violated the Equal 
Protection Clause, reasoning that the program complied in all 
respects with court orders governing the case and did not in any 
way violate the Constitution. Finally, the panel vacated the 
district court's injunction, the award of nominal damages, and 
the award of attorney fees. SeeBelkv. Charlotte-Mecklenburg 
Bd. o f  Educ., 233 F.3d 232 (4th Cir.2000). Thereafter, on 
January 17,2001, a majority of the active members of the Court 
voted to hear this case en banc.

II.

We first address the district court's unitary status 
decision. The determination of whether any part of a school 
system has achieved unitary status is a factual one; therefore, 
the district court's findings as to unitary status are reviewed for 
clear error. See Riddick v. School Bd. o f  the City o f  Norfolk, 
784 F.2d 521, 533 (4th Cir.1986); see also Jacksonville 
Branch, NAACP v. Duval County Sch. Bd, 883 F.2d 945, 952 
n. 3 (11th Cir. 1989) (citing United States v. Texas Educ. 
Agency, 647 F.2d 504, 506 (5th Cir. Unit A 1981)). No 
deference, however, is owed to the district court on conclusions 
o f law, including the district court's understanding of 
controlling law or the various burdens of proof and



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presumptions; consequently, all such conclusions of law are 
reviewed de novo. See, e.g., In re Brice, 188 F.3d 576, 577 
(4th Cir. 1999).

A.

1.

I n d i s p u t a b l y ,  the  s c h o o l  s y s t e m  o f  
Charlotte-Mecklenburg County subjected African-Americans 
to nearly a century of segregation and discrimination. Indeed, 
the Supreme Court recognized as much in Swann, noting that 
North Carolina was one of the states with "a long history of 
maintaining two sets of schools in a single school system 
deliberately operated to carry out a governmental policy to 
separate pupils in schools solely on the basis of race." 402 U. S. 
at 5-6, 91 S.Ct. 1267. In this context the remedies forcefully 
endorsed in Brown II, including the use of race-conscious 
measures, are necessary to *380 eradicate the invidious 
segregation at which they are aimed.

Moreover, court supervision over local school boards, 
also embraced in Brown and its progeny, is entirely appropriate 
whenever "school authorities fail in their affirmative 
obligations" "to take whatever steps might be necessary to 
convert to a unitary system in which racial discrimination 
would be eliminated." Swann, 402 U.S. at 15, 91 S.Ct. 1267. 
Not only are the federal courts entitled to supervise and direct 
the actions of local school boards under those circumstances, 
but the scope of federal authority is almost plenary: "Once a 
right and a violation have been shown, the scope of a district 
court's equitable powers to remedy past wrongs is broad, for 
breadth and flexibility are inherent in equitable remedies." Id.



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There is no doubt that CMS was justifiably subjected to federal 
court supervision; in fact, even after the Board had been 
subjected to court supervision, it had to be repeatedly ordered 
to begin the process of desegregation.

Ultimately, however, the goal in a desegregation case 
such as this is to reach the point at which federal supervision is 
no longer warranted and the use of race-conscious measures is 
no longer necessary. See Freeman, 503 U.S. at 489,112 S.Ct. 
1430. The Supreme Court has identified six factors 
(collectively the "original Green factors") that must be free 
from racial discrimination before the mandate of Brown is met: 
(1) student assignment, (2) physical facilities, (3) 
transportation, (4) faculty, (5) staff, and (6) extracurricular 
activities. Green, 391 U.S. at 435, 88 S.Ct. 1689. Not only are 
reviewing courts to ascertain whether these original Green 
factors are free from racial discrimination, but courts also are 
entitled, in their discretion, to identify other factors ("ancillary 
factors")5 and "determine whether minority students were being 
disadvantaged in ways that required the formulation of new and 
further remedies to ensure full compliance with the court's 
decree." 503 U.S. at 492, 112 S.Ct. 1430.

2 .

For school systems proceeding through the difficult 
process of desegregation, the Supreme Court has adopted the 
goal of achieving unitary status. Freeman, 503 U.S. at 486-87, 
112 S.Ct. 1430; Board o f Educ. o f  Okla. Cityv. Dowell, 498 
U.S. 237, 245-46, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991).

5For convenience, we refer to the original Green factors and any 
ancillary factors identified by the district court as "Green factors."



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Although prior to the Court's Dowell and Freeman decisions 
federal courts used the term "unitary status" somewhat 
inconsistently, see Freeman, 503 U.S, at 486-87; Green, 391 
U.S. at 437-38, 88 S.Ct. 1689, the term has now come to mean 
that the school system has been unified such that the vestiges 
of segregation have been eliminated to the extent practicable. 
Freeman, 503 U.S. at 487,112 S.Ct. 1430; Green, 391 U.S. at 
437-38,88 S.Ct. 1689. When a school system achieves unitary 
status, federal courts must withdraw supervision over the local 
school board.

In this case, Judge Potter declared that CMS had 
achieved unitary status in every respect. The Supreme Court 
has directed that an appellate court review a district court's 
unitary status determination by applying a two-part inquiry (the 
"Freeman inquiries"). An appellate court must determine if (1) 
a school Board has, in good faith, complied with the 
desegregation decree since it was entered; and (2) the *381 
vestiges of de jure  segregation in the school system have been 
eliminated to the extent practicable. See Freeman, 503 U.S. at 
492, 112 S.Ct. 1430 (citing Dowell, 498 U.S. at 249-50, 111 
S.Ct. 630).

If the party seeking a declaration of unitary status 
cannot demonstrate that the school system has achieved unitary 
status in its entirety, we then undertake to determine whether 
the school system has achieved unitary status with respect to 
one or some o f the Green factors ("partial unitary status"). At 
that point, we apply, with respect to each Green factor, the two 
Freem an  inquir ies  along w i th  one addit ional  
Freeman-mandated inquiry: "whether retention of judicial 
control [over one aspect o f the school system] is necessary or 
practicable to achieve compliance with the decree in other



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facets of the school system." Freeman, 503 U.S. at 491, 112 
S.Ct. 1430. This third Freeman inquiry recognizes that the 
Green factors a re - to a great extent-interrelated, and when 
determining whether judicial supervision over a school board 
may be withdrawn, the overlap between the Green factors is a 
crucial consideration.

The Freeman analysis brings us to the most difficult 
questions presented in any desegregation case: whether present 
racial isolation is a vestige of past segregation and, if so, 
whether a school board can practicably reduce that racial 
isolation. It is even difficult to define "vestige" in this context. 
See id. at 502 (Scalia, J., concurring) ("We have never sought 
to describe how one identifies ... a 'vestige' or a 'remnant' of 
past discrimination...."). The vestiges "that are the concern of 
the law may be subtle and intangible but nonetheless they must 
be so real that they have a causal link to the de jure violation 
being remedied." Id. at 496,112 S.Ct. 1430 (Kennedy, J.); see 
also id. at 512, 112 S.Ct. 1430 (Souter, J., concurring) (citing 
Columbus Bd. ofEduc. v. Penick, 443 U.S. 449, 465 & n. 13, 
99S.Ct. 2941,61 L.Ed.2d 666 (1979) and Keyes v. School Dist. 
No. 1, Denver, 413 U.S. 189, 211 & n. 17, 93 S.Ct. 2686, 37 
L.Ed.2d 548 (1973)) (court must order affirmative remedy 
where school board’s conduct "create[d] or contribute[d] to" 
racial identifiability of schools). We adhere to the most 
common-sense meaning of "vestige": it is a condition or 
occurrence causally related to the former de jure system of 
segregation.

Because a school system's duty to eliminate such 
vestiges is restricted by the availability of practicable measures 
for doing so, see Freeman, 503 U.S. at 492, 112 S.Ct. 1430, it 
is also incumbent on us to consider practicability. In



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determining the practicability of further measures, the district 
court must look to numerous indicia of the system's operation. 
Practicability depends on the feasibility of the proposed 
method, from both a financial and an administrative 
perspective. C f id. at 481-83, 493-97, 112 S.Ct. 1430. 
Whether a measure is practicable also depends on whether it is 
"directed to curing the effects of the specific violation," and 
whether it is likely to do so. Id. at 497, 112 S.Ct. 1430.

Our duty, in reviewing Judge Potter's decision, see 
Capacchione, 57 F.Supp.2d at 228, is clear. We must examine 
each Green factor and ascertain whether unitary status has been 
achieved with respect to any or all of them. Because the district 
court declared the entire CMS school system to have achieved 
unitary status, we must assess, with respect to each Green 
factor, whether the Board has complied, in good faith, with the 
desegregation decree and whether the vestiges of segregation 
have been eliminated to the extent practicable. See Freeman, 
503 U.S. at 492, 112 S.Ct. 1430 (citing Dowell, 498 U.S. at 
249-50, 111 S.Ct. 630). If the school system has not achieved 
unitary status in its entirety, *382 then, consistent with 
Freeman, we also must weigh the degree of interrelatedness 
existing between the various Green factors.

B.

By way of introduction to our analysis of this case, we 
first address a fundamental flaw in the district court's 
proceedings—a flaw arising from the district court's failure to 
give any consideration to a remedial plan sought to be admitted 
as evidence by CMS. Following the filing of the Capacchione 
plaintiffs' Complaint in Intervention, the Board undertook to 
produce a comprehensive analysis of whether vestiges of de



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jure segregation existed in CMS and whether any such vestiges 
could be practicably remedied. The Board analyzed available 
data and identified several vestiges remaining; then, in line 
with the mandate of Freeman, the Superintendent of CMS 
developed a plan containing practicable remedial steps. The 
Board independently reviewed this plan and, on March 30, 
1999, adopted the "Charlotte-Mecklenburg Schools' Remedial 
Plan to Address the Remaining Vestiges of Segregation" (the 
"Plan" or "Remedial Plan"). J.A. 11029.

Consistent with pretrial deadlines, CMS filed the 
Remedial Plan with the district court as a potential exhibit at 
trial. J.A. 11028. At the pretrial conference conducted on 
April 13, 1999, the Capacchione plaintiffs moved in limine to 
exclude the Remedial Plan. In essence, the Capacchione 
plaintiffs maintained that the trial had been bifurcated into two 
phases and that only unitary status was at issue in the first 
phase. They further maintained that the Remedial Plan 
contained proposed remedies that could only be implemented 
if CMS was determined not to have achieved unitary status. 
Because the unitary status question had not yet been resolved, 
they claimed that the Remedial Plan (which the Capacchione 
plaintiffs characterized as a damages report) was irrelevant.

In opposing exclusion of the Remedial Plan, CMS and 
the Swann plaintiffs relied on the Supreme Court's Freeman 
analysis. J.A. 1421. Specifically, they asserted that each 
unitary status determination encompassed in the first phase of 
the trial turned on "whether the vestiges have been remedied to 
the extent practicable." Id  (emphasis added). The Remedial 
Plan, they claimed, was not merely relevant, but crucial, to 
establishing both the existence of vestiges o f segregation and 
the practicability of remedial measures.



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Judge Potter responded with two rulings. First, Judge 
Potter explained in assessing whether CMS had achieved 
unitary status that he believed Freeman required him to 
consider just one thing: "only... what CMS has done, not what 
it may do in the future." See Order of April 14, 1999 at 4. 
Second, based on this understanding o f Freeman and the 
unitary status test, Judge Potter concluded that the Remedial 
Plan was irrelevant: "If the Court later determines that 
additional remedial measures are needed, it may consider the 
plan. Until that time comes, however, the Court will not get 
mired in the complex details and mechanics of a proposed 
plan." Id. at 5.6

*383 We believe Judge Potter erred in both of these 
rulings. First, he misapprehended Freeman and its test for 
unitary status. At the outset, Freeman explicitly rejects, as a 
matter of law, the very analysis adopted by the district court. 
That is, under Freeman, a district court must consider (1) 
compliance with prior orders (i.e., "what CMS has done"), and 
(2) whether vestiges have been eliminated to the extent 
practicable (i.e., "what [CMS] may do in the future"). See

6Judge Potter also chided CMS for proffering the Remedial Plan 
"after the deadline for fact discover}' and expert witness discovery had 
expired." On the contrary, CMS fulfilled all of its duties under the federal 
rules, appropriately supplementing its responses to discovery requests as 
soon as the Remedial Plan had been adopted. Furthermore, a more 
precipitant proposal could not have incorporated the various expert 
perspectives developed during discovery. A similar plan submitted earlier 
in the course of the litigation necessarily would have been based largely on 
speculation and supposition, and therefore would have been far less useful 
and pertinent. As it was, the Plan was tendered in advance of the non-jury 
trial, and, of great significance, almost five months before the district court 
issued its decision. Neither the court nor the parties could have been 
inconvenienced by the necessary timing of the Remedial Plan's submission.



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Freeman, 503 U.S. at 491, 112 S.Ct. 1430; see also Order of 
April 14,1999 at 4. By construing Freeman 's unitary status test 
to include the former ("what CMS has done") but not the latter 
("what [CMS] may do in the future"), Judge Potter erred as a 
matter of law.

The Remedial Plan directly addresses the latter inquiry, 
and it does so in an apt, informed manner, relying on the 
considered opinions of highly capable professionals retained to 
analyze the latest available data. In other words, the district 
court's second reason for excluding the Plan~relevancy-also 
fails to withstand scrutiny.7 There is no doubt that Judge Potter 
had wide discretion on this issue, but relevancy is a fluid 
concept under the Federal Rules o f Evidence. See Fed.REvid. 
401 (defining relevant evidence as "having any tendency to 
make the existence" of any material fact "more probable or less 
probable than it would be without the evidence ). 
Consequently, relevancy typically presents a rather low barrier 
to admissibility. See, e.g., United States v. Van Metre, 150 
F.3d 339, 349 (4th Cir.1998) (citing United States v. Powers,

7Taking the district court at its word that the only question before 
it initially was the extent of the Board's compliance with the prior 
desegregation orders, the Remedial Plan was nonetheless highly relevant for 
even that purpose. The ease with which some of the proposed Plan 
remedies could be realized, e.g., merely distributing available funding to 
address the stark disparity in basic resources such as instructional materials 
and media centers, see J. A. 11040, strongly suggests that the Board had not 
fully implemented the long-standing dictates of the prior orders. The court 
nonetheless observed that "while the goal of perfect compliance with court 
orders has remained elusive, no evidence has been presented that school 
authorities were guilty of easily correctable errors. Capacchione, 57 
F,Supp.2d at 283. To the contrary, the Plan thoroughly documented the 
Board's failings and the facility with which they could be rectified. The 
district court simply chose to ignore this highly relevant evidence.



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59 F.3d 1460, 1465 (4th Cir.1995)).

However, we need not rely on the minimal threshold 
encompassed in the test for relevancy because this Remedial 
Plan would be relevant under any reasonable test. The 
Remedial Plan identified record evidence (including the 
deposition testimony of several experts) supporting the Board's 
belief that vestiges of de jure segregation in CMS remain 
apparent in (1) faculty assignment and quality, (2) physical 
facilities and the allocation of instructional resources, (3) 
student achievement, and (4) student assignment. More 
importantly, the Remedial Plan detailed specific steps that the 
Board proposed to undertake over the course of the ensuing 
five years "with a goal of achieving unitary status at that time." 
J.A. 11029.

Without a doubt, federal courts possess the final word 
in deciding whether a particular school system is operating 
within *384 the parameters of the Constitution. Appreciable 
weight must be given, however, to the views of those selected 
by the community to administer the system. See Dowell, 498 
U.S. at 248, l l lS .Ct.  630 (noting specialized knowledge 
possessed by local school officials).8 In refusing to consider the 
Plan, the district court erroneously failed to accord the Board's 
official position any weight, much less the respect that it was 
due.

sThough we need not grant CMS the same deference afforded the 
promulgations and adjudications of a federal administrative agency, the 
formal declarations of its governing Board "do constitute a body of 
experience and informed judgment to which courts and litigants may 
properly resort for guidance." Ritter v. Cecil County Office o f Housing & 
Community Dev., 33 F.3d 323, 328 (4th Cir.1994) (quoting Skidmore v. 
Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).



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That the district court so completely disregarded this 
crucial evidence is telling. Nonetheless, ever mindful of the 
deference accorded the factfinder, we embark upon the task of 
examining the court's conclusions.

1. Student assignment

Of all the Green factors, the most prominent is the 
degree of racial imbalance in student assignment. Freeman, 
503 U.S. at 474, 112 S.Ct. 1430. Uniformity in the racial 
composition of a given school was the hallmark of official 
discrimination, "for under the former de jure regimes racial 
exclusion was both the means and the end of a policy motivated 
by disparagement of, or hostility towards, the disfavored race." 
Id. Court-ordered desegregation was designed to meet the 
enemy head-on; the long-term stability of attempts at racial 
balancing in student assignment is often seen as the most 
conspicuous indication of the courts' success (or lack thereof) 
in combating the underlying societal evil.

The fundamental questions before us are whether 
present racial isolation in CMS may be a vestige of the former 
dual system, and, if  so, whether there are practicable measures 
CMS could take to reduce or eliminate that isolation. In 
considering these questions, we are bound to focus particularly 
on the Board's record of compliance with the district court's 
desegregation orders. See id. at 492, 112 S.Ct. 1430 (citing 
Dowell). Because significant and growing racial imbalances 
in student assignment do exist in CMS, because the Board for 
decades has failed to comply with certain specific decrees of 
the district court (particularly regarding the siting of new 
schools), because these failures may have contributed to current 
racial isolation, and because future compliance might



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practicably reduce this racial isolation, we would vacate the 
district court's finding that CMS has achieved unitary status 
with respect to student assignment.

a.

In the wake of the 1970 desegregation order, virtually 
all of the schools in CMS operated in racial balance for a 
considerable time. By 1998-99 however, nearly thirty percent 
of the schools in the system had become racially identifiable.9 
Of the 126 schools included in the CMS desegregation plan, 
twenty-three are identifiably black and thirteen more are 
identifiably white. J.A. 11587. Further, virtually all *385 of 
the identifiably black schools are located in either the inner city 
or in the immediate northwest-to- northeast suburbs, the areas 
of Mecklenburg County with the highest concentrationof 
African-Americans. In stark contrast, all thirteen of the 
identifiably white schools are found in the extreme northern 
and southern areas of the county, both of which (and 
particularly the latter) have seen dramatic increases in white 
population during the past thirty years. The trend in CMS 
toward resegregation of its schools has accelerated markedly 
since the move to deemphasize satellite zones and mandatory 
busing in 1992. In the last seven years, the number of CMS 
African-American students who attend racially identifiable 
schools (now almost three in ten) has risen fifty percent. J. A.

9Judge McMillan's final desegregation order mandated, inter alia, 
that no school should become "racially identifiable." Swann, 311 F.Supp. 
at 268. Judge Potter interpreted the phrase synonymously with "racially 
imbalanced," which, as noted within, describes a school with an 
African-American student population deviating more than fifteen points in 
either direction from the county-wide norm. See Capacchione, 57 
F.Supp.2d at 246.



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9589.

Indisputably, from 1981 until 1997, the CMS school 
system went through significant demographic changes. For 
example, the total population of Mecklenburg County has 
grown from 354,656 in 1970 to 613,310 in 1997. J.A. 16247. 
Almost 100,000 children attend CMS, making it the 
twenty-third largest school system in the country. J.A. 7107. 
During the period from 1970 to 1997, the black school-age 
population (ages 5 through 17) in the county has increased by 
approximately 10,000. J.A. 16247. Over the same period, the 
corresponding white school-age population has decreased by 
approximately 3,000, id., and by 1997, African-Americans 
comprised 34 percent of the county's school-age population, the 
total of which numbered approximately 108,600. Evidence 
before the district court revealed that, since 1970, the growing 
African-American population has migrated outward from the 
inner city into formerly white suburbs. In turn, many white 
citizens who formerly populated the city's periphery have 
moved even farther into the county's outlying reaches. Though 
parts of the county have become more integrated as the result 
of these shifts, a disproportionately large number of 
African-Americans still reside in contiguous clusters generally 
north and west of the down-town area.

The threshold issue to be addressed is whether the 
thirty-six racially identifiable schools in CMS represent a 
vestige of segregation—that is, whether the present racial 
isolation is causally related to the prior system of de jure 
segregation. The Swann plaintiffs argue, and CMS agrees, that 
current racial isolation, like the racial isolation of the 1960s and 
1970s, results both from past inequities that, to some extent, 
have persisted to this day, and from the Board's failure to



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comply with certain specific directives in the remedial decrees 
in this case.

Because CMS has not previously been adjudged to have 
achieved unitary status in student assignment, we are bound 
under Swann to presume that the current racial imbalance in the 
school population constitutes a continuing vestige of 
segregation. 402 U.S. at 26, 91 S.Ct. 1267. The Capacchione 
plaintiffs have the burden of showing that the present existence 
of predominantly one-race schools in CMS "is not the result of 
present or past discriminatory action." Id.; see also Riddick, 
784 F.2d at 535.

Our unwillingness to conclude that CMS is unitary with 
respect to student assignment centers on the Board's failure to 
comply with court orders regarding selection of sites for the 
construction of new schools. The role of school siting in 
achieving sustainable desegregation should not be 
underestimated. In fact, the importance of site selection has 
been apparent since the early stages of this case. As the 
Supreme Court explained in 1971:

In the past [site selection] choices ... have been used as 
a potent weapon for *386 creating or maintaining a 
state-segregated school system.... [Sjchool authorities 
have sometimes, since Brown, closed schools which 
appeared likely to become racially mixed through 
changes in neighborhood residential patterns. This was 
sometimes accompanied by building new schools in the 
areas of white suburban expansion farthest from Negro 
population centers in order to maintain the separation of 
the races with a minimum departure from the formal 
principles of "neighborhood zoning." Such a policy



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does more than simply influence the short-run 
composition of the student body of a new school. It 
may well promote segregated residential patterns 
which, when combined with "neighborhood zoning," 
further lock the school system into the mold of 
separation of the races.... In ascertaining the existence 
of legally imposed school segregation, the existence of 
a pattern of school construction and abandonment is 
thus a factor o f great weight.

Swann, 402 U.S. at 21, 91 S.Ct. 1267.

Subsequent to the Supreme Court's decision in Swann, 
Judge McMillan specifically ordered that site selection for new 
schools could not "be predicated on population trends alone." 
379 F.Supp. at 1107. New schools were "to be built where they 
can readily serve both races." Id. In the 1979 Martin decision,10 
Judge McMillan devoted an entire section of his opinion to 
demonstrating that "construction, location and closing of school 
buildings continue to promote segregation." 475 F.Supp. at 
1329. Judge McMillan explained that "[t]he location of 
schools plays a large if not determinative role in ... insuring that 
any given assignment and feeder plan will provide meaningful 
desegregation, rather than just the predictably short lived 
appearance of desegregation." Id. at 1332.

10Judge Potter incorrectly declared that "Martin was not a unitary 
status hearing^]" Capacchione, 57 F.Supp.2d at 250. In fact, as the 
accompanying text indicates, the white parents in Martin contended, as the 
Capacchione plaintiffs do today, that CMS had achieved unitary status. 
Intervening African-American parents, like those herein, maintained to the 
contrary. In actuality, there is little difference between today's case and 
Martin, and Judge McMillan's findings in the latter are as binding on the 
parties as any others made in the course of this litigation.



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In the years since this decree was issued, CMS has built 
twenty-five of twenty-seven new schools in predominantly 
white suburban communities. In the mid 1980s, CMS adopted 
a formal policy of building "midpoint" schools-schools located 
midway between black and white population centers. There is 
little evidence, however, to suggest that CMS faithfully adhered 
to this policy. Rather, record evidence strongly indicates that 
the policy influenced the site selection for, at most, four of the 
twenty-seven new schools. See J.A. 15404-06. Meanwhile, as 
we discuss infra, there is substantial evidence that CMS has 
allowed many of its older school facilities in the city—schools 
attended in disproportionate numbers by African-American 
students-to fall into a state of disrepair.

The Board's record of building the great majority of its 
new schools on the predominantly white suburban fringe of the 
county supports two possible conclusions. On one hand, CMS 
could have been responding to demographic reality-a demand 
for new classrooms in areas of high population growth 
(although we note that the number of white students in CMS 
has decreased since 1970, while the black student population 
has greatly increased ). On the other hand, the Board's pattern 
o f school construction could have facilitated or even hastened 
white flight to the suburbs. As the Supreme Court explained in 
Swann, *387 "[pjeople gravitate toward school facilities, just 
as schools are located in response to the needs of people. The 
location of schools may thus influence the patterns of 
residential development of a metropolitan area and have 
important impact on composition of inner-city neighborhoods." 
402 U.S. at 20-21, 91 S.Ct. 1267. The Board's school siting 
policies could well evidence its lack of political will in the face 
of pressure to abandon desegregative policies-pressure from 
families who "are concerned about the racial composition of a



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prospective school and [who] will make residential decisions 
accordingly." Freeman, 503 U.S. at 513, 112 S.Ct. 1430 
(Blackmun, J., concurring).

There is certainly no evidence that CMS has 
intentionally sought, through its school siting policies, to "lock 
the school system into the mold of separation of the races" in 
the way that the Supreme Court described in Swann, 402 U.S. 
at 21, 91 S.Ct. 1267. But the actual choices the Board has 
made with regard to school siting may in fact be quite similar 
to the "pattern of school construction and abandonment" 
described by the Court, with the actual effect that the Court 
feared of "lock[ing] the school system" into a condition of 
racial isolation. 402 U.S. at 21, 91 S.Ct. 1267. We cannot 
conclude, at least in the absence of further fact-finding, that 
CMS, in choosing sites for new schools, has pursued 
"meaningful desegregation, rather than just the predictably 
short lived appearance o f desegregation." 475 F.Supp. at 1332.

Rather, the Board's practice o f siting new schools such 
that they could not reasonably be expected to serve a racially 
balanced student population and Judge McMillan's 
determination that this practice, in the past, represented the 
school system's failure to eliminate the vestiges of segregation, 
together raise a strong inference that those vestiges remain 
today. When this inference is viewed in combination with the 
burden borne by the Capacchione plaintiffs to show that 
current racial imbalances have no causal link to past 
discrimination, we are compelled to conclude that a remand to 
the district court is required.

Although we defer to a district court's findings of fact 
unless clearly erroneous, Judge Potter's error here came in his



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application o f the legal standard to the evidence regarding the 
Board's school siting policies. Judge Potter found that (1) CMS 
had not discriminated on the basis of race in choosing sites for 
new schools and that (2) CMS had incorporated racial diversity 
as one of its factors in site selection. Even assuming arguendo 
that both findings are not clearly erroneous, neither is sufficient 
to support the legal conclusion that in siting new schools CMS 
acted in compliance with the governing court orders and 
Constitution to eliminate the vestiges o f segregation to the 
extent practicable.

"To fulfill this duty, school officials are obligated not 
only to avoid any official action that has the effect of 
perpetuating or reestablishing a dual school system, but also to 
render decisions that further desegregation and help to 
eliminate the effects of the previous dual school system." 
Harris v. Crenshaw County Bd. ofEduc., 968 F.2d 1090,1095 
(11th Cir. 1992) (citing Pitts v. Freeman, 755 F.2d 1423, 1427 
(11th Cir.1985)). Therefore, CMS had to do more than merely 
select sites for new schools on a nondiscriminatory basis. It 
had to do more, too, than simply give some consideration to 
"diversity" in its selection of sites. To the extent practicable, 
CMS had to site new schools "where they can readily serve 
both races." 379 F.Supp. at 1107; see also Swann, 402 U.S. at 
21, 91 S.Ct. 1267; Martin, 475 F.Supp. at 1329-32. Judge 
Potter never found that CMS had met this standard, and as 
outlined *388 within, there is substantial record evidence that 
CMS did not do so.

In accordance with Swann, the burden is on the 
Capacchione plaintiffs to prove that vestiges o f past 
discrimination do not remain, or that nothing can practicably be 
done to remedy them. We note that Judge McMillan, in his last



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published decision in this case, clearly evidenced his 
understanding both that CMS had not done all that it could do 
in the area of school siting and that future school siting 
decisions could practicably advance the process of 
desegregation. It was thus incumbent on the Capacchione 
plaintiffs to demonstrate that conditions in Charlotte and 
Mecklenburg County have changed sufficiently such that 
school siting no longer represents a practicable opportunity to 
eliminate the vestiges of segregation.

The Swann plaintiffs have identified additional areas in 
which CMS has fallen short o f its obligations under the court 
orders. For the life of the desegregation orders, CMS has 
consistently placed the heaviest burden of mandatory busing on 
African-American students. Currently, 80% of those students 
who ride the bus as a result of a mandatory assignment are 
African-American. J.A. 11515. Judge McMillan repeatedly 
ordered CMS to distribute this burden more fairly. See 475 
F.Supp. at 1339-40, 379 F.Supp. at 1103-04, 362 F.Supp. at 
1232-33. Yet, CMS has utterly failed to do so. In addition, 
CMS has never developed an effective system for monitoring 
student transfers to ensure that the overall effect of such 
transfers is not to increase the racial imbalance in the system as 
a whole. Again, this represents a failure to comply with the 
explicit instructions of the district court. See 475 F.Supp.at 
1337-38,379 F.Supp. at 1103-04,362 F.Supp. at 1229- 30. We 
are troubled by these failings on the part of CMS. They provide 
additional support for a conclusion that, in the face of political 
pressure, CMS has not done all that it could do to eliminate the 
vestiges of segregation.

Finally, the Board has itself taken the remarkable step 
of admitting its noncompliance with prior orders in this case.



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A school board's frank acquiescence in a position inuring to its 
detriment (in this case, the potential of ongoing judicial 
intervention), if not treated as conclusive, should at least be 
considered with the utmost gravity. Under these circumstances, 
we have no difficulty in determining that the district court's 
conclusion that the Board's level of compliance was "full and 
satisfactory" should be vacated.

b.

If the vestiges of official discrimination have indeed 
been eliminated to the extent practicable with respect to student 
assignment, then there is little reason to prolong court 
supervision. In light of the district court's failure, however, to 
recognize the Board's continuing noncompliance with respect 
to student assignment-administered as recently as twenty years 
ago in a manner reinforcing the once-official notion that 
African-Americans are inferior-we have no confidence in the 
court's ultimate finding that these vestiges have now 
disappeared.

The district court neglected to determine whether, since 
Judge McMillan's decision in Martin, CMS has fulfilled its 
constitutional and court-imposed obligations with regard to site 
selection for new schools. Had the Board's efforts been 
deemed lacking, the court below should have proceeded to 
decide whether this failure contributed to the present condition 
of racial isolation in the school system. If the district court then 
found that CMS had failed to live up to its constitutional and 
judicially decreed obligations, and if that failure did contribute 
to the *389 present racial imbalances, then the court was bound 
to further investigate whether proper site selection is a 
practicable remedy for the lingering effects of the Board's past



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discriminatory practices. Only if proper site selection were not 
a viable option could the district court have relinquished 
control over student assignment; there would be nothing 
further that CMS could practicably do to eliminate the vestiges 
o f the prior de jure system.

If, however, proper sites were found to be available, 
then student assignment should have remained under the 
district court's control. In fashioning a remedy, the court might 
have directed, for example, that most or all new schools 
constructed over the next several years be located proximate to 
the inner city or in midpoint areas already integrated 
residentially. Conversely, the district court might have 
concluded that more flexibility is required because of real estate 
costs, crushing demand in the suburban fringes, or for some 
other sufficient reason. In this vein, the Board's Remedial Plan 
could have been considered as a limited term remedy for the 
racial isolation that would otherwise continue to exist until the 
Board's newly redirected school siting policies can begin to 
take effect.11

"The strategies described in the Remedial Plan would be of 
particular help in deciding whether practicable measures are available. The 
Plan proposes, among other things, to divide Mecklenburg County into 
three to five demographically similar "clusters," within which students may 
choose to attend any school, magnet or otherwise. Where the demand for 
a given school exceeds the available room, spots would be assigned by 
lottery based on factors such as proximity, sibling attendance, and racial, 
ethnic, and economic diversity. The Plan also outlines a formal mechanism 
to disseminate information regarding the enrollment process, and it provides 
that the Board will work with the business community and local government 
to secure subsidies for disadvantaged families wishing to relocate to areas 
in which low-cost housing is scarce. See J.A. 11053-59.



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Should corrective action one day be deemed justified in 
this case, some reasons will not be sufficient to deny 
African-American students a remedy. For example, political 
pressure and perceived resistance to change by certain groups 
in the community will not suffice. Additionally, logistical 
barriers merely making "difficult" the transport inward of 
outlying white students will likewise, if  reasonably 
surmountable, not be enough. Cf. Capacchione, 57F.Supp.2d 
at 253 (district court's observation that "transporting] white 
students in from satellite zones ... is difficult given the rush 
hour traffic patterns"). Although what is "practicable" need not 
extend to all that is "possible," rectifying the grievous 
constitutional wrongs of the past surely justifies reaching 
beyond the "difficult" or purely "problematic."

2. Physical Facilities

After describing how CMS has allocated its physical 
facilities and resources among its students, Judge Potter 
concluded that "the Swann plaintiffs have failed to overcome 
the Court's previous findings on facilities by establishing the 
requisite discriminatory intent and causation." Id. at 267. 
Judge Potter's mention of "previous findings" refers to excerpts 
from various opinions and orders authored by Judge McMillan:

April 1969—"No racial discrimination or inequality is 
found in the .... quality of the school buildings and 
equipment.... Schools described by witnesses as 'white' 
ranged well up and down on both sides of [the average 
per- pupil expenditure], and schools described by 
witnesses *390 as 'black' showed a similar variation." 
300 F.Supp. at 1366.



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August 1969—"The defendants contended and the court 
found in its April 23, 1969 order that facilities and 
teachers in the various black schools were not 
measurably inferior to those in the various white 
schools. It is too late now to expect the court to 
proceed upon an opposite assumption." 306 F.Supp. at 
1298.

October i97i--"[T]he formerly black schools are not 
shown nor suggested to be inferior in faculty, plant, 
equipment or program." 334 F.Supp. at 625.

Toward the close of the prior proceedings in 1975 (and 
consistent with the above), Judge McMillan awarded attorney's 
fees to the Swann plaintiffs as prevailing parties, "[ejxcept for 
the refusal of the court to find in the plaintiffs' favor ... 
regarding adequacy of physical plants and equipment and 
teacher quality." Swann, 66 F.R.D. at 484.

Judge Potter acknowledged that no court "ha[d] [ ]ever 
granted unitary status to CMS, nor ... partially withdrawn 
supervision as to facilities or any other Green factor." 
Capacchione, 57 F.Supp.2d at 262. The court nevertheless 
relied on the above 1969 and 1971 findings to release the 
Capacchione plaintiffs from their burden of proving CMS 
unitary with respect to facilities, stating that to proceed 
otherwise would "defy logic." Id. at 263. Judge Potter thus 
accepted the premise that Judge McMillan's 1969 and 1971 
findings "constitute collateral estoppel and law o f the case" 
regarding facilities, "thereby shifting the burden to CMS and 
the Swann plaintiffs to show discriminatory intent." Id. at 262.



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The district court's burden-shifting analysis was an error 
of law. Once the existence of an unlawful dual school system 
has been established and court supervision begun, it is 
presumed that racial disparities arising during the period of 
intervention "are causally related to prior segregation." School 
Bd. o f  the City o f  Richmond v. Baliles, 829 F.2d 1308, 1311 
(4th Cir.1987). Following the imposition of judicial control, a 
party seeking to end the status quo bears the burden of 
overcoming the presumption of causation. If this burden is met 
and the school system is declared to have achieved unitary 
status as to the particular factor at issue, the presumption ends. 
Id. Generally, in any subsequent proceeding involving new 
allegations of disparate treatment, the complaining party must 
show purposeful discrimination. Riddick, 784 F.2d at 537 
(concluding that Swann and its progeny require proof of 
"discriminatory intent on the part of the school board of a 
unitary school system" in order to resume court supervision).12

To be sure, the absence heretofore of any finding to the 
contrary would have been an important consideration in 
detemiining whether the Capacchione plaintiffs had proved 
CMS to have achieved unitary status with respect to facilities. 
However, that Judge McMillan did not intend his initial 
observations regarding facilities to be construed as a finding of 
unitary status is obvious from his subsequent actions. In 1973, 
Judge McMillan assumed control over facilities and resources, 
found inequities, and ordered CMS to remedy those disparities. 
See Swann, 362 F.Supp. at 1235 (finding Double Oaks

l2However, if a district court retains jurisdiction over one or more 
Green factors, it may, upon a proper showing, reassert control over a factor 
previously adjudged to have attained unitary status. Freeman, 503 U.S. at 
508-09, 112 S.Ct. 1430 (Souter, J., concurring).



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Elementary access road still undeveloped two years after court's 
identification of the problem—"No *391 $80,000,000 budget is 
so powerless."); id. (finding Double Oaks library not restored 
to standards several years after fire); id. at 1238 (ordering 
athletic facilities at West Charlotte High School immediately 
upgraded to level comparable with other schools in the county). 
We must conclude that the Board has been subject to the court's 
jurisdiction as to its facilities since at least 1973. See Dowell, 
498 U.S. at 246, 111 S.Ct. 630 (school boards entitled to a 
"rather precise statement" terminating a desegregation order).

The asserted lack of a prior adverse finding should not 
have been determinative of the issue, especially as the district 
court in 1969 was not focusing on a school system suddenly 
thrust into the judicial arena, but was instead examining one 
that had been subject to court supervision for nearly four years. 
Between the commencement of the initial Swann lawsuit in 
1965 and the district court's first mention of the facilities issue 
in April 1969, CMS closed sixteen black schools. The Board's 
en masse action gives rise to an almost undeniable inference 
that these schools were shut down because they were inferior, 
and the timing also suggests strongly that the closures were 
prompted by the judicial proceedings then underway.

Viewed in context, the most plausible conclusion is that 
the putative equality mentioned by the district court in 1969 
and 1971 was actually an endorsement of the steps that had 
been taken by the Board to remedy the inequities in facilities. 
In any event, CMS could not be said to have achieved unitary 
status absent a finding by the lower court that the Board had 
"eliminated the vestiges of its prior discrimination," embodied 
in an "adjudication]... through the proper judicial procedures." 
Georgia State Conference o f  Branches ofNAACP v. Georgia,



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775 F.2d 1403, 1413 n. 12 (11th Cir.1985), quoted in Dowell, 
498 U.S. at 245, 111 S.Ct. 630 (noting distinction between 
school systems operating in an unitary fashion and those that 
have achieved unitary status, and observing that the former 
"could be called unitary and nevertheless still contain vestiges 
of past discrimination").

Thirty-five years have passed since the Board first acted 
to equalize its facilities, yet serious questions remain as to 
whether it has finally realized that goal. Dr. Dwayne E. 
Gardner, an impressively qualified educational planner and 
consultant, compiled an exhaustive report for the Board in 
which he evaluated the suitability o f its school facilities.13 Dr. 
Gardner examined and personally visited more than half of the 
schools in CMS (including all of the high schools), analyzing 
a host of factors affecting educational quality. For the purposes 
of his study, Dr. Gardner divided the subject schools into three 
groups: (1) all imbalanced-black schools; (2) all racially 
balanced schools in imbalanced-black census tracts; and (3) 
each remaining high school, along with a set of elementary and 
middle schools randomly selected from the remaining schools 
and approximately equal in number to those already included 
within the first two groups.

Each school in the study was assigned a composite 
score from 0-100, indicating its worthiness. Schools scoring 44 
or lower were, in Dr. Gardner's opinion, so deficient as to merit 
replacement, while those with scores between 45-59 were 
classified as needing "major improvements." Any school that

I3The district court found that the expert called on behalf of the 
Capacchione plaintiffs, Dr, David J. Armor, could offer no reliable 
testimony on the subject. See Capacchione, 57 F.Supp.2d at 264.



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scored 60 or above was "considered *392 to have the ability to 
serve the educational program adequately." J.A.12174.

The results of Dr. Gardner's study are troubling. The 
average score for the forty Group 3 schools (racially balanced 
or imbalanced-white in predominantly white or balanced areas) 
was 61.7. Although the Group 3 data indicate a situation that 
is far from ideal, the ten Group 2 schools (racially balanced in 
predominantly black areas) fared much worse, with an average 
score of 56.3. The scores of the twenty-three Group 1 schools 
(imbalanced-black) were worse still, averaging just 53.3.14 At

14It has been famously said (by either Mark Twain or, earlier, 
Benjamin Disraeli, depending on one's source), "There are three kinds of 
lies—lies, damned lies and statistics." A common difficulty in dealing with 
statistics is illustrated by the district court's analysis of Dr. Gardner's study. 
The court first noted that, of the four schools scoring in the lowest category, 
two were in Group 1 and two were in Group 3. Capacchiorte, 57 F.Supp.2d 
at 264-65. Next, the court observed that the two highest ratings accorded 
elementary schools were again split between Groups 1 and 3. Id. at 265. 
Based on this selective culling of the data, the lower court concluded that 
"the results of Dr. Gardner's analysis do not show disparities along racial 
lines." Id. at 264.

The forest that is CMS is not sufficiently mapped by the 
documentation of a few trees. We could accurately say, for example, that 
omission from Group 1 of the brand-new elementary school referred to by 
the district court as having one of the highest ratings would lower the Group 
1 average by more than a full point. Or we could state without error that 
seven of the twenty-three Group 1 schools (more than 30 percent) scored 
below 50, while only five of the forty Group 3 schools (12.5 percent) scored 
similarly. Indeed, we note that none of the Group 1 high schools scored 
higher than 46, yet all those in Groups 2 and 3 scored at 50 or above. Of 
course, one would rightly view this latter declaration with some skepticism 
once it became known that there are but fourteen high schools in CMS, only 
two of which were included by Dr. Gardner in Group 1.



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trial, Dr. Gardner confirmed that the disparities apparent from 
the above numbers were "substantial" with respect to the 
facilities generally available to white and African-American 
children attending CMS. J.A. 6196-99.

The anecdotal accounts of a number of witnesses 
effectively corroborated Dr. Gardner's conclusions. See, e.g., 
J.A. 4992 (testimony of Board member Pamela R. Mange) 
(schools with "more severe" problems tended to be 
predominantly black); J.A. 4769 (testimony o f Anneile Houk) 
("[T]he schools that were in the worst repair and had the 
poorest supply of resources ... were on the west side and they 
were predominantly populated by black students."). John A. 
Kramer, co-chair of an advisory task force created by the 
Board, made formal visits to several CMS schools in 1997. 
Among the locales on Mr. Kramer's itinerary were Elizabeth 
Lane Elementary, a predominantly white school located in a 
prosperous suburban area of the county, and Shamrock Gardens 
Elementary, a downtown school with an African-American 
student population exceeding sixty percent. Mr. Kramer's 
descriptions of his visits contrasted sharply:

[T]o compare Elizabeth Lane Elementary as an 
example, which is a relatively new school located in 
Matthews, I walked into that school, I was 
overwhelmed because I had never set foot in a school

The pick-and-choose method gets us nowhere. The value of Dr. 
Gardner's research lies in the general conclusions that can be drawn from 
the entirety of the data. The most obvious conclusion is that, as a general 
matter, imbalanced-black schools in CMS are in worse shape than those 
attended by larger proportions of white students. Once we accept that 
premise, the lone remaining question of any significance is "Why?"



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that was like that before. It was clean, it was light and 
airy, it was a beautiful facility.... My overwhelming 
feeling was, wow, I wish my kids could *393 go to this 
school. And another observation that was very clear 
was that when I looked at the student body, it was 
virtually all white students, obviously, affluent, happy 
kids having a great time.

On the other hand, my experience, for example, at 
Shamrock Gardens was shocking by comparison. I had 
never visited either one of these schools before, but to 
visit that school which is in the inner city, the students 
are predominantly black students, it reminded me of a 
rundown 1950s motel. There was literally no access to 
the rooms except by outer walkways that were covered 
by rusted, dilapidated overhead fixtures.... They were 
using closets and things to teach children in. The 
carpets were stained and threadbare.... It just didn't feel 
clean, it didn't feel good. And I can honestly say that as 
a parent, my heartfelt reaction was relief that my 
children didn't have to go to school there.

J.A. 6098-99. Even those Board members who voted to pursue 
a determination of unitary status before the district court 
admitted that disparity in facilities was a problem within CMS. 
J.A. 1817,1820 (testimony of James H. Puckett); J.A.1918-19 
(testimony of John W. Lassiter); J.A.2095-96 (testimony of 
Lindalyn Kakadelis).

Although it seems reasonably clear that a racial 
disparity in facilities exists in CMS, its cause is somewhat less 
apparent. The Capacchione plaintiffs maintain that no 
discrepancies exist in CMS facilities, and even if they do, such



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discrepancies are totally benign in origin. Had the 
Capacchione plaintiffs proved their theory, we would be 
constrained to affirm the district court’s conclusion that unitary 
status has been achieved with respect to the facilities factor. 
The district court, however, required the Capacchione plaintiffs 
to prove nothing; it instead erroneously placed the burden on 
CMS and the Swann plaintiffs to affirmatively show that the 
present inequities in facilities are a vestige of official 
discrimination, i.e., causally related to the prior de jure system 
of segregation. Capacchione, 57 F.Supp.2d at 267.

The district court erred as a matter of law in foreclosing 
the development of evidence relevant to a proper vestige 
analysis. We would therefore remand this portion of the case 
to permit the parties and the district court to elicit the additional 
facts necessary to fully consider the question of causation with 
respect to the current racial inequities in facilities. Because 
CMS has not been previously adjudged to have attained unitary 
status, we would charge the Capacchione plaintiffs on remand 
with the burden of demonstrating that the vestiges of past de 
jure racial discrimination in the context of the school system's 
facilities have been eliminated "root and branch" to the extent 
practicable.15

15The district court made no findings as to whether practicable 
remedies exist with respect to facilities. In light of the court's refusal to 
consider the Board's proposed five-year Remedial Plan, it cannot be 
determined in the first instance whether practicable remedies to the current 
disparities exist. We note, however, that the Remedial Plan specifically 
identifies disparities associated with race in baseline needs for schools’ 
instructional materials and media centers, and the lack of any standardized 
criteria to evaluate the adequacy of these resources. J.A. 11037-38. The 
Plan proposes to achieve uniformity in resources across schools by 
imbalanced allocations that reflect the schools' current resource gaps and



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*394 3. Transportation
School bus transportation was at the epicenter of the 

original Swann litigation, specifically the degree to which 
involuntary busing could be used to implement a remedial 
desegregation decree. The Supreme Court in Swann, of course, 
approved busing as a "normal and accepted tool of educational 
policy," 402 U.S. at 29,91 S.Ct. 1267, at least to the extent that 
the rigors of time and distance would pose little risk to the 
affected students' health or to the educational process as a 
whole. See id. at 30-31, 91 S.Ct. 1267. In the intervening 
twenty-nine years, CMS has taken the Court’s license to heart; 
during the 1998-99 school year, five of every six students in the 
school system rode a school bus.

Upon review of the Green factor of transportation, 
Judge Potter concluded that "a court may grant unitary status 
when transportation is provided on a non-discriminatory basis." 
57 F.Supp.2d at 267. In other words, according to the district 
court, a school system achieves unitary status with respect to 
transportation once it provides access to transportation 
non-discriminatorily to black and white children. Because 
CMS provides all children, regardless of race, access to 
transportation, Judge Potter concluded that CMS had achieved 
unitary status with respect to this Green factor.

imbalances. J.A. 11038-40. Likewise, the Remedial Plan identifies 
disparities associated with race in the instructional facilities, and proposes 
building replacements or renovating existing facilities for sixteen schools 
that are either racially identifiable as black or are located in a predominantly 
black census tract. J.A. 11041-42. Uniform building maintenance standards 
and procedures are proposed. J.A. 11043. Monitoring, evaluation, and 
development of appropriate criteria for evaluation are also proposed to 
maintain equity across the school system's resources and facilities. J.A. 
11038-40, 11042-43.



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We must be mindful of the Supreme Court's command 
to consider the interrelatedness of the various Green factors. 
See Freeman, 503 U.S. at 491, 112 S.Ct. 1430 (court must 
consider "whether retention of judicial control is necessary or 
practicable to achieve compliance with the decree in other 
facets of the school system"). In this context, we can only 
conclude that the Green factor o f transportation is so 
inextricably intertwined with the Green factors o f student 
assignment and facilities that vacatur on these latter issues 
would also mandate vacatur on the former.16

l6Pursuant to Freeman, the district court accepted the invitation of 
the Board and the Swam  plaintiffs to consider whether vestiges of official 
discrimination remain concerning the ancillary factors of student 
achievement and student discipline. The court found in the negative, 
concluding that CMS had attained unitary status in both areas. We agree 
that the district court's judgment regarding student discipline should be 
affirmed.

With respect to the ancillary factor of student achievement, 
however, we would vacate Judge Potter's holding that unitary status had 
been achieved. Judge Potter found that disparities in student achievement 
existed but that the disparities (1) were not vestiges of de jure segregation 
and (2) could not be remedied by any practicable measure. Capacchione, 
57 F.Supp.2d at 280-81. An analysis of disparities in student achievement 
may only be appropriate once the school system has achieved unitary status 
in other respects. See Swann, 306 F.Supp. at 1309 ("Until unlawful 
segregation is eliminated, it is idle to speculate whether some of this 
[achievement] gap can be charged to racial differences or to 
'socio-economic-cultural' lag."). At the very least, student achievement in 
this case is inextricably intertwined with the other Green factors, 
particularly student assignment. Therefore, for reasons akin to those 
discussed in our analysis of the Green factor of transportation, we would 
likewise conclude that the student achievement factor requires further 
consideration.



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The Swann plaintiffs maintain and offer substantial 
record evidence that the burdens of busing for desegregation 
purposes are being borne disproportionately and unfairly by 
African-American children. Brief of Appellants at 31-32, 
33-35; see Swann, 306 F.Supp. at 1298 (district court 
commenting in initial stages of remediation that it did not 
intend "to endorse or *395 approve any future plan which puts 
the burden of desegregation primarily upon one race"). Eighty 
percent of students who currently ride the bus as a result o f a 
mandatory assignment are African-American. Judge Potter 
rejected any consideration of this evidence, holding that a 
school district has achieved unitary status with respect to 
transportation as soon as it is provided on a race-neutral basis. 
The evidence, however, dem onstrates the close 
interrelationship of transportation with student assignment. In 
view of our conclusion that CMS is not yet unitary with regard 
to student assignment, we think it is premature to relinquish 
control over transportation at this stage.17

4. Faculty

Our analysis of this factor must take two concerns into 
account. We must determine both whether CMS has generally 
eliminated the vestiges of discrimination in faculty assignment,

!7While the Remedial Plan does not specifically address 
transportation as a Green factor, it does propose siting new schools in a 
manner calculated to promote racial balance in CMS. J.A. 11042. If CMS 
chooses sites for new schools that are more accessible to the majority of the 
black population, we presume that fewer black students would have to be 
bused to the suburbs for purposes of desegregation. A new approach to 
school siting would address the vestiges of past discrimination, if such 
vestiges remain, in those areas in which CMS has not yet achieved unitary 
status.



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and whether the teachers assigned to predominantly black 
schools are o f comparable quality to those teaching in schools 
with large numbers of white students.18 See Swann, 311 
F.Supp. at 268 (final desegregation order directing that the 
racial composition o f faculty assigned to each school reflect 
that o f the system at large, with the proviso that "the 
competence and experience of teachers in formerly or recently 
black schools will not be inferior to those in the formerly or 
recently white schools in the system").

The evidence at trial demonstrated that CMS assigned 
its faculty in substantial compliance with the desegregation 
order at least until 1992, when school principals were granted 
the leeway to actively recruit new teachers without the 
strictures o f maintaining a specific racial proportion. As a 
result o f this gravitation from centralized to site-based control 
of faculty assignments, a trend away from proportionality has 
emerged. In 1998-99, one- third of the 126 schools covered by 
the remedial decree had a proportion of black faculty deviating 
more than ten percent from the system-wide norm (about 
twenty-one percent). Prior to the 1992 change in policy, no 
more than one- sixth o f the schools had ever been so situated.

18The district court considered a particular school to be racially 
imbalanced if its proportion of African-American students varied more than 
fifteen percent from the district-wide average. In 1998-99, 
African-Americans represented 42.7% of the elementary students in CMS, 
41.7% o f the middle school students, and 39.6% of the high school 
students. J.A. 11574. An elementary school would therefore be designated 
imbalanced-black if more than 57.7% of its students are African-American; 
conversely, if African-Americans constituted less than 27.7% of the student 
body, the school would be designated imbalanced-white.



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We are satisfied that the current trend toward faculty 
imbalance is neither a vestige of the dual system nor the 
product of subsequent discrimination. There is no evidence 
that this trend results from legal or administrative compulsion 
within CMS or from perceptions about the desirability or 
undesirability of teaching positions in schools that serve 
students of predominantly one race. In short, we do not 
perceive a causal relationship between past de jure segregation 
and the present assignment *396 of faculty members to schools 
within CMS.19

Nor do we think that this trend toward more racially 
imbalanced faculties has resulted in disparities in the quality of 
teaching, as measured by the instructors'years of experience and 
post-graduate work. Indeed, there is no significant difference 
in experience between faculties at imbalanced- black schools 
as compared to those that are imbalanced-white. Faculties at 
black schools are about one year less experienced than the 
district-wide average, while faculties at white schools are 
correspondingly more seasoned. This disparity may arouse 
some initial concerns, until one is informed that the typical 
CMS teacher has spent more than ten years in the classroom.

19Even if the pattern of faculty assignments were somehow shown 
to be a vestige o f past official discrimination, the evidence before the 
district court casts substantial doubt upon the Board's ability to effect a 
practicable remedy. See Capacchione, 57 F.Supp.2d at 258-59:

CMS runs the risk of losing significant numbers of teachers if its 
faculty assignment policies become too restrictive.... Another 
practical problem faced by the district is the fact that it must 
constantly hire thousands of new teachers in the midst of a 
national teacher shortage.... [which] is especially pronounced with 
regard to black teachers, particularly in this region of the country.



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The upshot is that black and white students alike are, with no 
meaningful distinction, enjoying the benefits of their teachers' 
substantial experience.

The difference in post-graduate education between 
black-school and white- school faculties is more pronounced. 
For every three teachers holding advanced degrees who ply 
their craft at imbalanced-white schools, there are only two 
similarly qualified teachers assigned to schools that are 
imbalanced-black. Compared to the district average, white 
schools have a somewhat larger proportion o f these highly 
trained instructors, while the allotment granted to black schools 
is slightly less than the norm.

Although these facts give us reason for concern, we 
think it imprudent to disturb the district court's conclusion that 
the trial evidence affirmatively disclosed no link between past 
discrimination and the current asymmetry. Most revealing on 
this point is that, until now, the issue of teacher quality within 
CMS has not been contested. The 1970 desegregation order 
mandating equal competence and experience in faculty 
assignments was not meant to remedy disparities then existing, 
but was instead intended to caution against future imbalances. 
In the intervening thirty years, there is little indication that 
CMS has neglected to heed the warning inherent in that order. 
We therefore agree that the district court did not clearly err in 
concluding that the developing disparities in teacher 
assignments and any (perhaps superficial) deficiency in the 
quality of instruction currently afforded African-American 
children are unrelated to the de jure segregation once prevalent



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in the school system.20
5. Staff

In substantially the same manner as it spoke to the 
allocation of teachers, the final desegregation order provided 
that "the internal operation of each school, and the assignment 
and management of school employees, o f course be conducted 
on a non-racial, non-discriminatory basis." *397 Swann, 311 
F.Supp. at 269. Inasmuch as the Swann plaintiffs raised no 
challenge to the school system's compliance with the 
desegregation order in this regard, the court below found CMS 
to have achieved unitary status with regard to its support staff. 
We agree that this aspect of the district court's judgment should 
be affirmed.

6. Extracurricular activities

According to the evidence at trial, African-American 
students in CMS participate in athletics and hold class office at 
a rate proportionate to their numbers. These same students lag 
far behind, however, when it comes to participating in 
co-curricular clubs and honors programs. J.A. 11634. 
However, the scope of our inquiry concerning extracurricular 
activities is limited. We need only determine whether the 
school system permits its students equal access to 
extracurricular activities, without regard to race. Coalition to 
Save Our Children v. State Bd. o f  Educ. o f  Delaware, 90 F.3d

20Although the Board's official position, as outlined in its Remedial 
Plan, is that remediable vestiges of de jure segregation do remain as to 
faculty assignments and quality, the clear weight of the evidence is to the 
contrary. The district court's failure to consider the Plan was therefore 
harmless in this narrow respect.



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752,768-69 (3d Cir.1996) (citation omitted); see also Swann, 
402 U.S. at 18-19, 91 S.Ct. 1267 (”[T]he first remedial 
responsibility of school authorities is to eliminate invidious 
racial distinctions. With respect to such matters as 
transportation, supporting personnel, and extracurricular 
activities, no more than this may be necessary.... In these areas, 
normal administrative practice should produce schools of like 
quality, facilities, and staffs.").

The criterion of equal access is surely satisfied in this 
regard. Participation in honors programs and co-curricular 
clubs is strictly voluntary, and there is no evidence that the lack 
of participation by African-American students in certain 
activities reflects the efforts o f CMS to exclude them. We 
discern no error in the district court's conclusions regarding this 
Green factor.

C.

Pursuant to the foregoing, we agree that the district 
court should be affirmed in its determination of unitary status 
with respect to faculty, staff, extracurricular activities, and 
student discipline. However, we believe that the court's 
judgment should be vacated and the case remanded for farther 
consideration in the areas o f student assignment, facilities, 
transportation, and student achievement.

III.

We now turn to the question of whether the Board's 
adoption o f the expanded magnet schools program with its 
race-conscious assignment policy violates the Constitution. We



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conclude that it does not.21 See also Wilkinson Op. at 353-355.

At the outset, we note that it is undisputed that this 
expanded magnet schools program differs in critical respects 
from all race-based student assignment plans that have been 
held to be in conflict with the Equal Protection Clause. Unlike 
school districts found to have violated the Constitution, CMS 
adopted the challenged program while operating a dual, 
segregated school system, under a myriad of court orders 
commanding the Board to eliminate the unlawful segregation.

The court orders—the public record attests to their 
numerosity and demands- require CMS to use its expertise and 
best efforts to desegregate its schools promptly. The federal 
court repeatedly directed *398 the school board to employ its 
"full 'know-how' and resources" to use "any means at [its] 
disposal" to do away with the unconstitutionally segregated 
school system. Swann, 311 F.Supp. at 269; accord Swann, 
318 F.Supp. at 802 (characterizing this directive as the "most 
important single element" o f its order); see also Swann, 402 
U.S. at 15, 91 S.Ct. 1267 ("[SJchool authorities are 'clearly 
charged with the affirmative duty to take whatever steps might 
be necessary to convert to a unitary system in which racial 
discrimination would be eliminated root and branch."') (quoting 
Green, 391 U.S. at 437-38, 88 S.Ct. 1689) (emphasis added); 
Swann, 379 F.Supp. at 1105 (giving CMS the authority to 
resolve "the sizeable continuing problems yet remaining ... by

21We review the district court's factual findings for clear error and 
its legal conclusions de novo. See Freeman, 503 U.S. at 474, 112 S.Ct. 
1430; United States v. Texas, 158 F.3d299, 306 n. 8 (5th Cir.1998); Little 
Rock Sch. Dist. v. North Little Rock Sch. Dist., 109 F.3d 514, 516 (8th 
Cir.1997).



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spontaneous action by staff or board"); Swann, 306 F.Supp. at 
1297 (leaving "[t]he choice of how to do the job of 
desegregation" to CMS, and noting it "has wide discretion in 
choosing methods") (emphasis added); Swann, 300 F.Supp. at 
1360 (providing CMS with authority "to consider all known 
ways o f  desegregation ") (emphasis added). Accord Freeman, 
503 U.S. at 485, 112 S.Ct. 1430 ("The duty and responsibility 
of a school district once segregated by law is to take all steps 
necessary to eliminate the vestiges of the unconstitutional de 
jure  system.") (first emphasis added).

Nor is there any doubt that at the time CMS adopted the 
expanded magnet schools plan, it was not a unitary school 
system. This is because even if Judge Potter did not err in 
decreeing that CMS has now achieved unitary status (and we 
believe he did), prior to his decision, no court had ever 
determined that CMS had attained unitary status. As the 
Capacchione plaintiffs concede, Judge Potter's decision—not 
some earlier event—"terminated[the] injunction" issued by 
Judge McMillan and affirmed by the Supreme Court. Brief of 
Appellees at 3.

Judge Potter properly acknowledged both the governing 
court orders and the fact that the remedial measures CMS took 
pursuant to them, including expansion of its magnet schools 
program, could not be analyzed as if taken by a "de facto" 
unitary' school district. See Capacchione, 57 F.Supp.2d at 285 
("The Court finds no legal basis for a finding of de facto  unitary 
status that would abrogate CMS's immunity retroactively. In 
other words, the termination of court supervision cannot 'relate 
back' to an earlier time."). Yet, notwithstanding CMS's 
undisputed status as a dual school district under multiple court 
orders to desegregate its schools, the judge held that the Board's



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adoption of the expanded magnet schools program violated the 
Equal Protection Clause. Furthermore, he found this 
constitutional violation rendered CMS liable to the 
Capacchione plaintiffs for damages and enormous attorney's 
fees.

The Capacchione plaintiffs seek to uphold that ruling 
on several grounds. First and principally, they contend that the 
Board's increased reliance on magnet schools constituted a 
"voluntary desegregation plan implemented to counteract 
demographic change," rather than a good faith effort to 
eliminate the vestiges of discrimination as required by the court 
orders governing this case. Second, they argue that the 
expanded program's race-conscious assignment policy violated 
the existing desegregation orders. Finally, they maintain that, 
even if CMS expanded its magnet schools program pursuant to 
and in compliance with governing court orders, strict scrutiny 
nonetheless applies and requires that the program be held 
unconstitutional. The district court properly rejected the first 
and third arguments, and the dissent does not seek to resurrect 
them. Accordingly, although we address all o f these 
contentions, we initially *399 examine the second, the only one 
on which the district court, or the dissent, relies.

A.

In concluding that the expanded magnet schools 
program violated the Constitution, the district court committed 
two fatal errors. Initially, it ignored the extent of the protection 
afforded an entity governed by federal court orders. Then, the 
district court refused to recognize the broad directives and 
expansive terms of the controlling court orders, and so failed to 
appreciate that the Board expanded its magnet schools program



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in good faith to comply with these orders, and thus cannot be 
held to have violated the Constitution. The dissent replicates 
both errors.

1.

Judge Potter, like the dissent, does pay lip service to the 
"immunity" the Board enjoyed because it was subject to 
numerous judicial desegregation decrees, see, e.g., 
Capacchione, 57 F.Supp.2d at 285 ("CMS enjoys immunity 
from liability for any actions it took consistent with the Court's 
injunction."); Traxler Op. at 46. But the district court and the 
dissent apparently do not understand what the numerous court 
orders in this case required o f CMS and the breadth of the 
protection those orders afforded to it. Thus, both Judge Potter 
and the dissent mention the subject only in passing, failing even 
to cite controlling Supreme Court cases on point. See id.

A person or entity subject to a judicial decree or 
injunction (as CMS indisputably was when operating its dual, 
segregated school system) must comply with that decree or 
injunction, notwithstanding its possible unlawfulness. Thus, the 
Supreme Court has clearly and unequivocally directed that 
"persons subject to an injunctive order issued by a court with 
jurisdiction are expected to obey that decree until it is modified 
or reversed, even i f  they have proper grounds to object to the 
order." GTE Sylvania, Inc. v. Consumers Union o f the United 
States, 445 U.S. 375, 386, 100 S.Ct. 1194, 63 L.Ed.2d 467 
(1980) (emphasis added); see also W.R. Grace & Co. v. Local 
Union 759, 461 U.S. 757,766,103 S.Ct. 2177, 76 L.Ed.2d 298 
(1983).



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The only possible exceptions to this "important public 
policy," W.R. Grace, 461 U.S. at 766, 103 S.Ct. 2177, arise if 
a court lacks jurisdiction over the subject matter of the order or 
the order has " 'only a frivolous pretense to validity.'" GTE, 
445 U.S. at 386, 100 S.Ct. 1194 (quoting Walker v. City o f  
Birmingham, 388 U.S. 307, 315, 87 S.Ct. 1824, 18 L.Ed.2d 
1210 (1967)). Without question, the federal court had 
jurisdiction over the subject matter of the desegregation orders 
issued in this case and no one suggests that those orders 
constituted "only a frivolous pretense to validity."

Accordingly, CMS had to obey those orders. This is so 
notwithstanding that those orders may have required the Board 
to forego competing obligations, see W.R. Grace, 461 U.S. at 
767-68, 103 S.Ct. 2177, including obligations seemingly 
required by a federal statute, see GTE, 445 U.S. at 378 & n. 2, 
386-87,100 S.Ct. 1194, or the Constitution itself, see Walker, 
388 U.S. at 317,87 S.Ct. 1824. Indeed, the Supreme Court has 
explained that to hold that an entity acts "improperly" in 
obeying a valid court order "would do violence to the common 
understanding of the term 'improperly,'" even if the order is 
later held unlawful or unconstitutional. GTE, 445 U.S. at 387, 
100 S.Ct. 1194. Moreover, a court order need not mandate 
specific or precise procedures to compel obedience. Thus, 
although the Court noted the "breadth and vagueness" o f the 
injunction challenged in *400 Walker, it nonetheless held that 
the injunction had to be obeyed until "modified or dissolved." 
Walker, 388 U.S. at 317, 87 S.Ct. 1824.

"Violations of [a court] order are punishable as criminal 
contempt even though the order is set aside on appeal." United 
States v. United Mine Workers, 330 U.S. 258, 294, 67 S.Ct. 
677, 91 L.Ed. 884 (1947). Accord Spangler, 427 U.S. at 438,



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96 S.Ct. 2697 ("Violation of an injunctive decree ... can result 
in punishment for contempt in the form of either a fine or 
imprisonment."). Conversely, when a person or entity acts in 
good faith to comply with a court order, it should not be 
punished. Thus, in words that resound here, the Supreme Court 
has explained that "a school board and a school constituency 
which attempt to comply with a[court-ordered desegregation] 
plan to the best of their ability should not be penalized." 
Dayton Bd. ofEduc. v. Brinkman, 433 U.S. 406,421, 97 S.Ct. 
2766, 53 L.Ed.2d 851 (1977).

Indeed, the Supreme Court has twice expressly held that 
school boards under court orders to desegregate must comply 
with those desegregation decrees until absolved of that 
obligation by a subsequent court order, even if the existing 
desegregation decrees are improper or unnecessary. In 
Spangler, the Court concluded that the district court exceeded 
its remedial discretion when it ordered the Pasadena school 
district to reconfigure its student attendance zones annually so 
that there would be "no majority o f any minority" in any school. 
427 U.S. at 434-35, 96 S.Ct. 2697. Despite the impropriety of 
this order, the Court held that the school board had to obey the 
order until it was properly modified or reversed by a court. See 
id. at 439-40, 96 S.Ct. 2697 ("[TJhose who are subject to the 
commands of an injunctive order must obey those commands, 
notwithstanding eminently reasonable and proper objections to 
the order, until it is modified or reversed.").

Similarly, in Dowell, the Court refused to interpret an 
arguably ambiguous court order as having terminated the 
desegregation decree previously entered against the Oklahoma 
City school board. Instead, the Court remanded the case to the 
district court for a determination of "whether the Board made



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a sufficient showing of constitutional compliance ... to allow 
the injunction to be dissolved." Dowell, 498 U.S. at 249, 111 
S.Ct. 630. In doing so, the Court explained that judicial orders 
carry binding authority until they are modified or dissolved.

Moreover, the Dowell Court rejected precisely the kind 
of argument the Capacchione plaintiffs seek to make here. In 
Dowell, as here, those challenging the school board's actions 
argued (and the court of appeals found) that the school board 
"unilaterally and contrary to specific provisions" of the 
controlling court orders "acted in a manner not contemplated by 
the court in its earlier decrees." Dowell by Dowell v. Bd. o f  
Educ. ofO kla., 795 F.2d 1516, 1521 (10th Cir.1986). The 
Supreme Court acknowledged that this might well be so, but 
concluded that nonetheless it did "not think that the Board 
should be penalized for relying on the express language of that 
order." Dowell, 498 U.S. at 249 n. 1, 111 S.Ct. 630. Similarly, 
even if CMS had "acted in a manner not contemplated" in the 
governing orders—and clearly it did not, see infra, at part 
ffl.A.2—it should not "be penalized for relying on the express 
language" o f those orders, Dowell, 498 U.S. at 249 n. 1, 111 
S.Ct. 630, i.e., "to use [its] M l 'know-how' and resources ... to 
achieve the constitutional end [i.e., desegregation of the 
schools] by any means at [its] disposal." Swann, 318 F.Supp. 
at 802.

*401 O f course, the Capacchione plaintiffs could have 
sought to modify or dissolve the Swann orders as inconsistent 
with their rights under the Constitution; what they could not do 
is obtain an injunction, or declaration, that a party compelled to 
adhere to those orders violated the Constitution in so doing. 
CMS was obliged to follow the governing desegregation orders 
and injunctions, and thus the Board "should not be penalized,"



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Brinkman, 433 U.S. at 421, 97 S.Ct. 2766, for its actions, 
which were taken to comply with those orders and which the 
district court found, and the dissent does not dispute, were 
taken in good faith. See Traxler Op. at 41.

With these principles in mind, we turn to the 
desegregation orders in this case and the Board's actions in 
response to those orders.

2 .

Throughout the course of the desegregation efforts in 
this case, the federal courts—from the district level to the 
Supreme Court—have told the Board that it has the authority to 
take "whatever steps might be necessary to convert to a unitary 
system." Swann, 402 U.S. at 15, 91 S.Ct. 1267; see also 
Swann, 300 F.Supp. at 1360 ("The Board is free to consider all 
known ways o f  desegregation.") (emphasis added). Thus, CMS 
has continually acted under judicial directives tha t" [t]he choice 
of how to do the job of desegregation is for the School 
Board—not for the court." Swann, 306 F.Supp. at 1297. See 
also Wilkinson Op. at 353-355.

Even beyond CMS's broad discretion to choose its own 
methods of eliminating its unconstitutionally segregated 
schools, Judge McMillan's orders repeatedly endorsed the 
Board's general power and duty to maintain control over the 
racial composition of the schools in order to eliminate the 
vestiges of the segregated system "root and branch." For 
instance, in 1970 Judge McMillan mandated:

That the defendants maintain a continuing control over
the race of children in each school... and maintain the



Opinions o f  the Court o f Appeals o f  September 21, 2001

racial make-up o f  each school (including any new and 
any reopened schools) to prevent any school from 
becoming racially identifiable.... The duty imposed by 
the law and by this order is the desegregation of schools 
and the maintenance of that condition.... The defendants 
are encouraged to use their fu ll 'know-how’ and 
resources to attain the results above described, and 
thus to achieve the constitutional end by any means at 
their disposal. The test is not the method or plan, but 
the results. 311 F.Supp. at 268-69 (emphasis added 
and emphasis omitted); see also 362 F.Supp. at 1225 
(same); 334 F.Supp. at 631 (same); 475 F.Supp. at 
1342 (approving counsel's statement that "if this Board 
of Education chose to run an integrated school system 
on the basis of preconceived ratios, it has that 
constitutional right") (emphasis added); 318 F.Supp. at 
801 (ordering "[t]hat 'freedom of choice' or 'freedom of 
transfer' may not be allowed by the Board if the 
cumulative effect of any given transfer or group of 
transfers is to increase substantially the degree of 
segregation in the school from which the transfer is 
requested or in the school to which the transfer is 
desired").

Moreover, Chief Justice Burger's opinion for the 
Supreme Court in Swann provides explicit sanction of the 
Board's use of racial "ratios" or proportions in assigning 
students to schools:

School authorities are traditionally charged with broad 
power to formulate and implement education policy and 
might well conclude, for example, that in order to 
prepare students to live in a *402 pluralistic society



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each school should have a prescribed ratio o f  Negro to 
white students reflecting the proportion fo r  the district 
as a whole. To do this as an educational policy is 
within the broad discretionary powers of school 
authorities; absent a finding of a constitutional 
violation, however, that would not be within the 
authority of a federal court. 402 U.S. at 16, 91 S.Ct. 
1267 (emphasis added).22

Not only was CMS empowered to use ratios in student 
assignments generally, it was also specifically authorized to use 
race-conscious assignment policies for "appropriately 
integrated optional schools." Swann, 379 F.Supp. at 1103. 
Judge McMillan approved the Board’s policy, which provided:

Strict and central control must be exercised over all 
admissions (reassignments) to each optional school in 
order to fulfill the necessary ends that these schools be 
open to all county residents and be integrated by grade 
at or above approximately a 20% black ratio. 
Reassignments to optional schools must not jeopardize 
the racial composition of any other school.

22The dissent's suggestion that this holding in Swann was somehow 
abrogated by Wygantv. Jackson Bd. ofEduc., 476 U.S. 267,283,106 S.Ct. 
1842,90L.Ed.2d260(1986)and City o f Richmond v. J. A. CrosonCo., 488 
U.S. 469,494, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) is baffling. Neither 
case overruled, explicitly or implicitly, the Swann Court's authorization for 
this school board to assign students according to a "prescribed ratio." 
Swann, 402 U.S. at 16, 91 S.Ct. 1267. This is not an instance in which 
CMS is attempting to extend an analogous Supreme Court holding to fit its 
own needs. Rather, the Supreme Court authorized CMS's actions 
specifically, and that authorization has never been overruled. As such, 
CMS is entitled to follow it. See infra, at part III.C.



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Guidelines and central monitoring by the Pupil 
Assignment staff with the respective school principals 
are to be drawn up. Capacities and allocation of 
maximum numbers of students that may be drawn from 
each other school attendance area, by race, are to be 
designated. The actual enrollment o f  the optional 
school may have to be guided by its racial composition 
and by the number drawn from each other school area, 
not by considerations of space and program only.

Id. at 1108 (emphasis added).

In response to these directives, in the 1970s CMS 
established some magnet schools, which it called "optional 
schools." These schools offered two special curricula—"open" 
and "traditional"—both o f which constituted "very rigorous 
academic program[s]" not offered in "conventional schools." 
J.A. 2489, 15683. In 1992, the Board expanded its magnet 
schools program into a district-wide system with a wider range 
of curricular choices. In the expanded magnet schools 
program, the Board retained the curricula first available in the 
early magnet or "optional" schools—the "open" curriculum 
emphasizing "interdisciplinary approaches," and the 
"traditional" curriculum featuring a "highly structured 
program." J.A. 16722-23. Furthermore, six of the early 
magnet schools that offered such curricula prior to 
1992—Myers Park, Elizabeth, Hawthorne, Irwin Avenue, 
Piedmont, and West Charlotte—continue to do so today under 
the expanded magnet schools program. Compare J.A. 13448, 
13529-40,15683 (pre-1992 "open" and "traditional" magnets) 
with J.A. 16722-23 (1998-99 "open" and "traditional" 
magnets); see also J.A. 10061 (report indicating that pre-1992



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magnet schools were incorporated into the 1992 expanded 
magnet schools program).2̂

*403 The expanded magnet schools program is a typical 
and appropriate desegregation tool "conceived and developed 
in large, urban school districts seeking a voluntary alternative 
to busing as a means of decreasing racial segregation." J.A. 
10654. Even the dissenters recognize that "a magnet schools

“ Judge Potter recognized that the optional schools "were similar 
to today's magnet schools," both having "countywide enrollment and a 
racial balancing target." Capacchione, 57 F.Supp.2d. at 286. He 
nonetheless concluded that the schools established after 1992 under the 
expanded magnet schools program "differ from optional schools in that [the 
new] magnets offer specialized curricula and thereby confer a benefit above 
and beyond the regular academic program." Id. at 286-87 n. 49. The 
dissent allies itself with this view, Traxler Op. at 49, but nothing in the 
record offers any support for it. To the contrary, assuming arguendo that 
"specialized curricula" constitute a "benefit," the magnet schools instituted 
after 1992 provide precisely the same "benefit" as the pre 1992 "optional 
schools." See J.A. 10552 (proposed 1992 pupil assignment plan 
recommending continuation of six magnet schools already in place); J.A. 
15504 (1993 letter noting that magnet schools were called "optional 
schools" prior to 1992); J.A. 10651 (Summary of Findings From Research 
on Magnet Schools explaining that "[o]ur optional schools function as 
magnet schools"); J.A. 13606, 15581 (Stolee Plan explaining that "[t]he 
traditional schools presently existing in Charlotte-Mecklenburg are good 
examples" of curriculum specialty schools, "sometimes called magnet 
schools"). After all, it was only because the optional schools did offer 
certain "specialized curricula" that parents (including Michael Grant, one 
of the Capacchione plaintiffs, J.A. 2489) were willing, well prior to the 
1992 expanded magnet schools program, to enroll their children in 
desegregated optional schools. SeeJ.A. 13641,15616. In fact, the original 
six "open" and "traditional" schools remain among CMS's more heavily 
subscribed magnets. See J.A. 10292-340. Myers Park Traditional, for 
example, had 245 students on its waiting list for the 1998-99 school year. 
See J.A. 2159.



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program, properly implemented, can no doubt be an effective 
desegregation tool." Traxler Op. at 50. But they nonetheless 
suggest that the expanded magnet schools program, in and of 
itself, may violate the Constitution. See id. at 352-354. This 
suggestion is surprising, given that the federal courts have 
consistently approved magnet school plans as desegregation 
tools. See, e.g., Milliken v. Bradley, 433 U.S. 267, 272, 97 
S.Ct. 2749, 53 L.Ed.2d 745 (1977) {Milliken I I ); Stell v. 
Savannah- Chatham County Bd. ofEduc., 888 F.2d 82, 85-86 
(11th Cir.1989); Little Rock Sch. Dist. v. Pulaski County 
Special Sch. Dist. No. 1, 839 F.2d 1296, 1309-12 (8th 
Cir.1988); United States v. Yonkers Bd. o f Educ., 837 F.2d 
1181, 1237-39 (2d Cir.1987); Liddell v. Missouri, 731 F.2d 
1294, 1310-11 (8th Cir.1984). The dissent's suggestion that 
CMS somehow violated the Constitution by expanding its 
magnet schools program and "abandon[ing] pairings, satellites, 
and feeders," Traxler Op. at 50, seems particularly 
extraordinary. Magnet schools are generally regarded as being 
a less onerous and more successful desegregation tool than 
pairing, satellites, or feeders because magnet schools provide 
more opportunity for student choice. See, e.g., Stell, 888 F.2d 
at 85; Yonkers, 837 F.2d at 1239.

Of course, as Judge McMillan warned, in approving the 
early magnet or optional schools, assignment of pupils to such 
schools must be undertaken in a manner that "provide[s] ... 
access to appropriately integrated optional schools," and 
"prevent[s] significant jeopardy to the racial composition of 
other schools." Swann, 379F.Supp. at 1103.24 For this reason,

24The dissent's contention that Judge McMillan "cautiojned]" CMS 
against creating optional schools because the schools were marked by 
"failure" flies in the face of the court orders. Traxler Op. at 49. In fact, the



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race is, *404 and must be, considered in assigning students to 
the magnet schools instituted under CMS's expanded program, 
just as it was in assigning students to the original magnet or 
optional schools. See 379 F.Supp. at 1108. Specifically, under 
the expanded program, CMS allocates 40% of the seats in its 
magnet schools for black students and 60% for students of 
other races. This ratio reflects the student population o f the 
school system, which is approximately 41.0% black, 52.2% 
white, 3.7% Asian, 2.5% Hispanic, and 0.5% American Indian. 
CMS generally assigns students to its magnet schools using two 
parallel lotteries, one for black students and one for white 
students. When there has been insufficient interest from black 
students to fill the seats allocated to them in a particular school, 
CMS has sometimes refused to allow students of other races to 
fill those slots. Thus, race may affect a student's chances of 
being assigned to a magnet school.

It is this portion of the expanded magnet schools 
program that Judge Potter regarded as unconstitutional,

only warnings that Judge McMillan gave regarding optional schools were 
against repeating the past "failure" to provide adequate transportation and 
against failing to provide "adequate safeguards against discriminatory 
results," so as to prevent optional schools from "resurrect [ing]" "freedom 
of choice" plans under a new name. Swann, 379 F.Supp. at 1103-04.

Moreover, the dissent’s heavy emphasis on Dr. Stolee’s 
recommendation to the Board that it seek court approval of the expanded 
magnet schools program is puzzling. That one advisor should suggest this 
does not change the facts, and the critical facts here are that the expanded 
magnet schools program was simply an expansion of the court-appointed 
optional schools. Even if this were not so, the Board's decision to ignore a 
recommendation from one educational adviser (not a lawyer) on a legal 
matter certainly does not evidence the Board's bad faith or render its action 
violative of any court order.



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reasoning that Judge McMillan "firmly rejected the use of rigid 
racial quotas." Capacchione, 57 F.Supp.2d at 286 (relying on 
Swann, 306 F.Supp. at 1312). In reaching this conclusion, 
Judge Potter misread the order on which he assertedly relied 
and ignored the multiple other orders and injunctions governing 
this case.

Actually, in the very paragraph on which Judge Potter 
relied, in which Judge McMillan held that "[fjixed ratios of 
pupils in particular schools will not be set" by the court, Judge 
McMillan also held that "efforts should be made [by the school 
board] to reach a 71 -29 ratio in the various schools so that there 
will be no basis for contending that one school is racially 
different from the others." Swann, 306 F.Supp. at 1312 
(emphasis added). Judge Potter transmuted this statement~an 
authorization for the Board to make "efforts" to "reach a 71 -29 
ratio"—into a prohibition against the Board assigning students 
to schools on the basis of that fixed ratio. See Capacchione, 57 
F.Supp.2d at 286. We cannot accept this reading of Judge 
McMillan's order. Taken as a whole, this paragraph provides 
some of the clearest evidence that Judge McMillan not only 
authorized the Board to use fixed ratios in assigning students to 
schools but encouraged it to do so. Recognizing the 
impracticability of adopting a court-ordered, system-wide racial 
balance to which all schools must adhere, Judge McMillan did 
observe that "variations from that [71-29 ratio] may be 
unavoidable." Swann, 306 F.Supp. at 1312. But that statement 
imposes no limitations on the scope o f permissible Board 
action. Rather, it suggests that "variations" were acceptable 
only because they were "unavoidable."

The Board could not have accomplished what the 
desegregation orders required without "using race" in the way



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that it "used race” in the context of the expanded magnet 
schools program. In the 1970 order, affirmed by the Supreme 
Court, *405 Judge McMillan decreed "[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." Swann, 311 F.Supp. 
at 268. We cannot fathom how the Board could set out to 
achieve "about the same proportion of black and white 
students" in each grade level in each of its over one hundred 
schools without employing fixed racial ratios as the central 
components of its student assignment plan. Neither, apparently, 
could Judge McMillan.

To achieve "about the same proportion," the Board 
necessarily had to set fixed upper and lower limits on the 
proportion o f white and black students it would permit in each 
grade in each school. Only with these fixed racial proportions 
as its lodestars could the Board assign students to schools, and 
approve or deny individual requests to transfer. The Board 
could never have justified a denial of a transfer request without 
having a fixed conception of exactly how few white or black 
students in a particular school would be too few.

Indeed, Judge McMillan expressly approved many 
aspects o f the CMS desegregation plan that were explicitly 
based on strict racial ratios. For example, the Board's 
majority-to-minority transfer policy, which was specifically 
authorized by the governing desegregation orders, takes race 
into account in much the same way as the magnet schools 
assignment policy. Under the transfer policy, a student in the 
racial majority in his current school could freely transfer to a 
school in which he would be in the racial minority. A white 
student in a majority white school, for example, could freely



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transfer to a majority black school, but that same student could 
be denied admission to a majority white school, solely on the 
basis of a rigid 50% racial ceiling. Meanwhile, a black student 
at a majority black school could freely transfer into the same 
majority white school to which the white student might be 
denied admission. The Supreme Court approved this use of 
majority-to-minority transfer policies as "a useful part of every 
desegregation plan" and "an indispensable remedy." Swann, 
402 U.S. at 26, 91 S.Ct. 1267. In fact, Judge McMillan 
specifically upheld this majority-to-minority plan, despite 
former CMS Superintendent Dr. J.M. Robinson's complaints 
about the rigidity of the 50% limit. See Martin, 475 F.Supp. at 
1343 ("I would like to have had more flexibility than the 50 
percent in some instances, but I would be opposed to 
recommending any plan that went, any of the schools going 
over more than a few percentage points above 50 percent.").

It is certainly true that Judge McMillan's orders and the 
Supreme Court's opinion in Swann consistently signaled 
concern with the imposition of racial proportions or ratios by 
federal courts. That concern, however, is rooted in the problem 
of federal courts exceeding their remedial discretion, not in any 
objection to the use of racial proportions or ratios by school 
boards themselves in their desegregation plans. Thus, the 
Supreme Court noted that, "[t]he constitutional command to 
desegregate schools does not mean that every school in every 
community must always reflect the racial composition of the 
school system as a whole," but went on to conclude that "the 
very limited use made of mathematical ratios was within the 
equitable remedial discretion of the District Court." Swann, 
402 U.S. at 24-25, 91 S.Ct. 1267.



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That this concern with ratios is rooted in the limits of 
judicial power to order remedial action, not in the impropriety 
of using racial proportions to remedy the vestiges of 
segregation, is nowhere more apparent than in Chief Justice 
Burger's statement *406 in Swann. There, the Chief Justice 
noted that while in certain circumstances it might be 
inappropriate for a federal court to require adherence to "a 
prescribed ratio of Negro to white students reflecting" the 
population of the "district as a whole," it would be "within the 
broad discretionary powers of school authorities" to do so. Id. 
at 16, 91 S.Ct. 1267. See also Wilkinson Op. at 354.

Indeed, in Sw ann 's companion case, North Carolina 
State Bd. ofEduc. v. Swann, 402 U.S. 43,45-46,91 S.Ct. 1284, 
28 L.Ed,2d 586 (1971), the Supreme Court held that any 
attempt to "inhibit or obstruct" the Board's use of racial ratios 
"must fall." The Court explained that, "when past and 
continuing constitutional violations are found [as they had been 
in the Charlotte- Mecklenburg school system], some ratios are 
likely to be useful starting points in shaping a remedy. An 
absolute prohibition against use of such a device... contravenes 
the implicit command of Green." Id. at 46,91 S.Ct. 1284. The 
Court expressly recognized that a "flat prohibition against 
assignment of students for the purpose of creating racial 
balance must inevitably conflict with the duty o f  school 
authorities to disestablish dual school systems." Id. (emphasis 
added).

The Board's authority to employ racial ratios is explicit 
not only in the Supreme Court's opinions, but also in Judge 
McMillan's repeated statements to the effect that 
"[independent of any court order... if  this Board o f Education 
chose to run an integrated school system on the basis o f



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preconceived ratios, it has that constitutional right." Martin, 
475 F.Supp. at 1342 (internal quotation marks omitted). In 
fact, early in the litigation Judge McMillan held that:

Counsel for the plaintiffs says that since the ratio of 
white to black students is about 70/30, the School 
Board should assign the children on a basis 70% white 
and 30% black, and bus them to all the schools. This 
court does not feel that it has the power to make such a 
specific order. Nevertheless, the Board does have the 
power to establish a form ula  and provide 
transportation.

Swann, 300 F.Supp. at 1371 (emphasis added).

Moreover, this Court upheld "the validity of the Board's 
decision to reassign students in order to maintain racial ratios, " 
and stated that the "School Board is vested with broad 
discretionary powers over educational policy and is well within 
its powers when it decides that as a matter of policy schools 
should not have a majority [over 50%] of minority students." 
Martin, 626 F.2d at 1167. Having been repeatedly told by 
federal courts that it had the "constitutional right" to "maintain 
racial ratios" to remedy past segregation, CMS cannot now be 
held to have violated the Constitution for doing exactly what 
the courts have said it had the power to do.

In short, time and again, the federal courts at all levels 
have authorized the Board to employ racial ratios to remedy its 
unlawfully segregated school system. Although the dissent 
repeatedly contends to the contrary, Traxler Op. at 52, 54, 55, 
no court has ever prohibited CMS (rather than the federal court 
supervising it) from imposing "racial ratios." The dissent's



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contention that Judge McMillan's order-mandating a black 
student population "about or above 20%" in the optional 
schools, instead of the Board's proposed "at or above 
approximately 20%" language—constitutes a rejection of "rigid 
racial quotas," Traxler Op. at 53, is singularly unconvincing. 
It seems unlikely that by this slight word difference Judge 
McMillan even indicated a disapproval of the Board's use of 
"rigid" quotas, which would otherwise *407 have been 
permitted under the Board's policy. It seems far more likely 
that Judge McMillan believed that his order permitting a racial 
ratio "about or above 20%" was equivalent to the Board's policy 
of permitting a racial ratio "at or above approximately 20%." 
In any event, neither linguistic formulation prohibits the Board 
from adopting an 80-20 ratio for the early optional schools, or 
the 60-40 ratio for magnet schools that it subsequently adopted 
in 1992, especially in light of the Board's broad discretion and 
explicit authorization to use strict racial ratios in other areas of 
its desegregation plan.

Similarly, the dissent's suggestion that the expanded 
magnet schools program differs from the "optional schools" 
program because the Board set "inflexible quotas" in the 
expanded plan, Traxler Op. at 44, is simply not borne out by 
the record. In truth, in 1992, CMS implemented a 60-40 
white-black ratio with an eye to reaching a racial balance that 
corresponded with the make-up of the entire student population 
of the school system, just as in 1974 it implemented the 80-20 
white-black ratio to correspond with the entire student 
population at that time. The 60-40 ratio was not applied in any 
more of a rigid or "inflexible" manner than the earlier ratio; 
Board policy provided that "all magnet schools would maintain 
a 60-40 white-black ratio plus or minus 15%," J.A. 13705; see 
also J.A. 3187, 3193, and the Student Assignment Plan



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permitted "racial balance [to] be allowed to fluctuate." J.A. 
15702. The Board's Executive Director of Planning and 
Student Placement testified that several race-neutral 
considerations, such as sibling attendance, would allow a 
school to "depart from the 60-40 goal." J.A. 3217; see also 
J.A. 3091-92, 3193-94. Contrary to the dissent's claims of 
rigidity, not a single magnet school actually manifested a 60-40 
ratio. J.A. 3185. A number o f magnet schools came close to 
the stated goal, but the percentage of black students in CMS's 
magnet schools ranged from 7% to 82%, id., and students that 
failed to gain admission to one magnet school "often ha[d] a 
seat waiting for them at another magnet school of their 
choosing." J.A. 3076. In fact, the two "black seats" about 
which Christina Capacchione originally complained were 
ultimately filled by two white students, despite the supposedly 
"inflexible" ratio. In sum, the 60-40 ratio was not an 
unbendable "quota," either in policy or in practice, any more 
than the earlier ratio had been.

Both the Supreme Court and Judge McMillan provided 
CMS with "wide discretion" to fashion appropriate remedies in 
light of the particular needs of its pupilsand the school system's 
experience with other desegregation tools. Additionally, Judge 
McMillan approved specific race-conscious assignment 
measures generally and specifically as to magnet schools.25

25The dissent, see Traxler Op. at 50, makes much of Judge 
McMillan's 1970 instruction that "leave of the court be obtained before 
making any material departure from any specific requirement set out 
herein," Swann, 311 F.Supp. at 270. But the dissent fails to acknowledge 
that this statement followed Judge McMillan's declaration that the Board 
had "maximum discretion ... to choose methods that will accomplish the 
required result." Id. The "material departure" provision was not an attempt 
to limit the Board's ability to choose its own methods to move aggressively



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Thus, when adopting a 60-40 assignment formula in the 
expanded magnet schools *408 program, the Board not only 
acted within its "wide discretion," but also in accordance with 
specific procedures approved by the district court.

Judge Potter's conclusion (and the dissent's contention) 
to the contrary simply cannot be reconciled with the Supreme 
Court opinion in Swann, our opinions in this case, and Judge 
McMillan's decrees. The magnet schools' race- conscious 
assignment policy constitutes a necessary safeguard against the 
risk that unchecked transfers to magnet schools could increase 
the number of racially identifiable schools in violation of the 
Board's continuing obligation under the desegregation orders. 
See 379 F.Supp. at 1105 ("Racially identifiable schools may not 
be operated."). In that vein, the Capacchione plaintiffs' own 
expert on school desegregation, Dr. David Armor, agreed that 
racial quotas are permissible in a desegregation plan. J.A. 
3627. Dr. Armor testified that "race is an integral part of 
pairing, of satelliting, of magnet schools, of running lotteries 
for magnet schools. The entire plan is predicated on race and 
race controls, because that's the only way you can meet the 
court order and to have an effective plan is to employ race 
requirements and racial quotas basically for all schools." J.A. 
3434.

In sum, contrary to Judge Potter's conclusion, Judge 
McMillan specifically authorized the use of fixed ratios based

forward with the desegregation of its schools, but rather was a message that 
this previously recalcitrant school district should not use its "discretion" to 
take steps backward, i.e., a "material departure," from its obligation to 
achieve the court-ordered "goal" of "complete desegregation of the entire 
system to the maximum extent possible." Swann, 306 F.Supp. at 1298-99.



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on race in assigning students to magnet schools. See 379 
F.Supp. at 1104. Furthermore, even without such specific 
authorization, the broad discretion granted the Board by the 
Supreme Court's opinion in Swann and by the other court 
orders and injunctions governing this case permitted CMS to 
fashion magnet schools with racially balanced enrollments. 
The decrees make plain that ratios based on race were among 
the "means" by which the Board was authorized "to achieve the 
constitutional end" of desegregation. Swann 311 F.Supp. at 
268-69; see also Swann, 362 F.Supp. at 1225; Swann, 334 
F.Supp. at 631. As such, the Board did not violate the Equal 
Protection Clause in adopting such ratios in its expanded 
magnet schools program.

B.

As their principal contention, the Capacchione plaintiffs 
argue that the expanded magnet schools program was a 
response to demographic change rather than a true attempt to 
remedy past discrimination. We cannot agree.26

First, Judge Potter ”accept[ed] that the school system 
was acting to ... remedy[ ] the effects of past racial 
discrimination" in expanding the number of magnet schools in 
1992. Capacchione, 57 F.Supp.2d at 289. Ample record 
evidence supports this finding. See, e.g., J.A. 2716 (testimony 
of John Murphy, former CMS Superintendent, that 1992 plan 
to expand the magnet school program was among the "creative 
strategies we could come up with to stay in compliance with 
the court order"); J.A. 3869-74 (testimony of Jeff Schiller, 
former assistant superintendent for research, assessment, and

“ Tellingly, the dissent does not even mention this argument.



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planning for CMS, explaining that the 1992 student assignment 
plan, including the expanded magnet schools program, "had the 
same objectives as the one that it was going to replace, 
maintaining the court order," and that the objective o f the 
expanded magnet program specifically was "to maintain the 
integration of schools through voluntary means"); J.A. 
15503-05 (1993 letter from CMS to the U.S. Department of 
Education discussing Judge McMillan's 1974 order and 
identifying the creation of additional magnet schools as among 
the "more effective ways ... [to] meet[ ] the guidelines 
established *409 by the Court"); J.A. 13607, 15582 (Stolee 
Plan recommendation that "[t]he Charlotte-Mecklenburg school 
desegregation plan should be gradually changed from a 
mandatory plan with little voluntarism to a voluntary plan with 
few mandatory' facets").

Furthermore, the dichotomy the Capacchione plaintiffs 
suggest between "countering] demographic change," on the 
one hand, and remedying past discrimination, on the other, 
oversimplifies both the law of school desegregation, 
particularly the Supreme Court's decisions in Green, Swann, 
and Freeman, and the practical reality of achieving 
desegregation in a large urban school district. From the early 
stages of the Swann litigation, all concerned have understood 
that demographic patterns would complicate the process of 
school desegregation. Indeed, remedies such as school busing 
and satellite attendance zones would never have been necessary 
in the first place if the demography of the community were not 
an obstacle to desegregation. In a sense, Swann 's basic 
teaching is that the Constitution sometimes requires schools to 
"counter demograph[y]" in order to achieve desegregation. The 
Swann Court noted that the process o f "local authorities ... 
meeting] their constitutional obligations" had "been rendered



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more difficult by changes ... in the structure and patterns of 
communities, the growth of student population, [and] 
movement of families." 402 U.S. at 14, 91 S.Ct. 1267. The 
Court expressed concern that "segregated residential patterns... 
[would] lock the school system into the mold o f separation of 
the races." Id. at 21, 91 S.Ct. 1267. Thus, CMS simply 
followed the Supreme Court's guidance in Swann in regarding 
change as a problem inhibiting its progress toward unitary 
status.27

27The Capacchione plaintiffs contend that, given the obvious 
concern of school officials with demographic changes, "CMS could not 
have been motivated by any desire to comply with its court-ordered duty to 
eradicate vestiges of segregation." Brief of Appellees at 85. But this stands 
the analysis on its head. A court determines from the effect of their acts, not 
from their motives, whether school authorities comply with a desegregation 
decree. See Wright v. Council o f Emporia, 407 U.S. 451, 462, 92 S.Ct. 
2196, 33 L.Ed.2d 51 (1972) ("It is difficult or impossible for any court to 
determine the sole or dominant motivation behind choices of a group of 
legislators, and the same may be said of the choices of a school board.... 
Thus we have focused upon the effect—not the purpose or motivation—of a 
school board's action in determining whether it is a permissible method of 
dismantling a dual system.") (internal quotations marks omitted). 
Moreover, even if motivation were relevant, the argument would fail. A 
fair reading of the record demonstrates that although school officials were 
obviously aware of the demographic shifts, they viewed these shifts as an 
obstacle to achieving compliance with the Swann orders and to eliminating 
the vestiges of discrimination in the school system, not as the condition that 
itself necessitated a remedy. See, e.g., J.A. 13597-98, 15572-73 (Stolee 
Plan identifying "a growing and moving population" as one of several 
factors creating instability in student assignment under the pre 1992 system 
of pairing and satelliting); J.A. 15504 (1993 letter from CMS to the U.S. 
Department of Education listing "demographic and residential patterns" as 
one of several increasing strains on the pairing system); J.A. 2712 
(testimony of former CMS Superintendent John Murphy that "[w]e really 
weren't going to be bringing about desegregation and racially balanced 
schools unless we began to address the issue of housing at the same time.").



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Moreover, Freeman simply did not hold, as the 
Capacchione plaintiffs necessarily imply, that demographic 
changes in a metropolitan area independently eliminate the 
*410 vestiges o f past discrimination. Nor does Freeman bar 
courts from targeting racial isolation resulting in significant 
part from "private choice," if that isolation is also a vestige of 
past discrimination. The effect of such a holding in Freeman 
would have been to overrule Green, which the Supreme Court 
did not purport to do. In Green, even though the school board 
allowed every student "freedom of choice" as to which school 
to attend, the formerly black school remained all black and the 
formerly white school remained predominantly white-wholly as 
a result, in some sense, of this "private choice." The Green 
Court held that, although the private choices of students and 
their families were responsible for the continuing racial 
isolation o f the schools' student populations, that fact did not 
preclude a finding that the racial isolation was also a vestige of 
past discrimination. Indeed, the Court held not only that it was 
permissible for the school board to take further action to 
desegregate, but that the board was required to take further 
action in order to fulfill its "affirmative duty" to desegregate. 
Green, 391 U.S. at 437-38, 88 S.Ct. 1689.

Although Freeman recognized that, at a certain point in 
the process o f desegregation, a court may determine that 
present racial isolation cannot be considered a by-product of the 
past regime of segregation, the case does not require—or even

The Board may have chosen sites for new schools in response to, or even 
in furtherance of, these demographic trends, see supra, but in any event the 
Board also clearly evidenced awareness that the population changes, 
particularly the greater distance between white and black population 
centers, would put a greater strain on the process of desegregation.



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em power-a school board under a judicial desegregation order 
to make that determination on its own. Rather, so long as CMS 
was under court order to desegregate, it was required to treat 
racial isolation in its schools as a vestige of segregation, and to 
take appropriate action to eliminate that vestige. See Swann, 
402 U.S. at 26, 91 S.Ct. 1267.

C.

Finally, the Capacchione plaintiffs maintain that, even 
if  CMS administered the expanded magnet schools program 
pursuant to and in conformity with the governing desegregation 
decrees, CMS violated the Constitution in doing so. Judge 
Potter rejected this argument, as do we (and the dissent, in 
never mentioning it, apparently also rejects it). The 
Capacchione plaintiffs rely on inapposite case law in 
attempting to establish that Board actions taken pursuant to 
court-ordered desegregation decrees can be held 
unconstitutional.

Specifically, they rely on recent decisions finding 
voluntary, race-conscious magnet school programs (not 
developed under a governing desegregation order) 
unconstitutional. See Eisenberg v. Montgomery County Pub. 
Schs., 197 F.3d 123, 125 (4th Cir.1999); Tuttle v. Arlington 
County Sch. Bd„ 195 F.3d 698 (4th Cir.1999); see also 
Wessmann v. Gittens, 160 F.3d 790 (1st Cir.1998). In fact, the 
courts emphasized in those cases that the school system had not 
been under a court order to desegregate, see Eisenberg, 197 
F.3d at 124, and had adopted a magnet program "not to remedy 
past discrimination, but rather to promote racial, ethnic, and 
socioeconomic diversity." Tuttle, 195 F.3d at 700 (emphasis 
added); see also Wessmann, 160 F.3d at 792 (noting that prior



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to instituting its magnet program the school system "had 
achieved unitariness in the area of student assignments" and 
that "the district court thereupon relinquished control over" that 
area). Indeed, in Eisenberg we endorsed the permissibility of 
race-based classifications "in situations," like that at hand, 
"where past constitutional violations require race-based 
remedial action." 197 F.3d at 130 (citing Swann, 402 U.S. at 
1, 91 S.Ct. 1267); see also Wessmann, 160 F.3d at 795.

The distinction between a unitary school system and a 
school system under court order to desegregate is, from a legal 
*411 standpoint, fundamental. Furthermore, as discussed 
supra, it is the judicial finding of unitary status, not any 
particular action by the school board or condition in the school 
system, upon which the distinction turns. O f course, for a 
formerly segregated school system, the attainment of unitary 
status reflects years or decades o f gradual change, not an 
overnight shift in policy or outlook. Although CMS will not 
look much different the day it becomes unitary than it will have 
looked the previous day, attainment o f unitary status triggers 
significant legal consequences. In a nonunitary school system, 
all one-race or predominantly one-race schools are presumed to 
be vestiges of segregation, and the burden is on the challenging 
party to show that those schools are nondiscriminatory. See 
Swann, 402 U.S. at 26, 91 S.Ct. 1267 ("The court should 
scrutinize such schools, and the burden upon the school 
authorities will be to satisfy the court that their racial 
composition is not the result of present or past discriminatory 
action on their part."). Once a court has declared a school 
system unitary, on the other hand, the presumption is that the 
vestiges of segregation have been eliminated, and a plaintiff 
seeking to demonstrate a constitutional violation on the basis 
of the existence of one-race or predominantly one-race schools



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must "prove discriminatory intent on the part of the school 
board." Riddick, 784 F.2d at 537.

As Judge Potter recognized, see Capacchione, 57 
F.Supp.2d at 285, CMS implemented and administered its 
expanded magnet schools program prior to ever achieving 
unitary status and while still under court order to remedy the 
vestiges of segregation. Therefore, recent decisions, like 
Eisenberg and Tuttle, addressing the constitutionality of magnet 
school assignment policies in unitary school systems not under 
court order, are simply inapposite.

Moreover, even if  Tuttle and Eisenberg generally 
applied to governmental acts performed pursuant to remedial 
desegregation orders (which they do not), the Board's expanded 
magnet schools program would withstand constitutional 
scrutiny. This is so because if a precedent of the Supreme 
Court "has direct application in a case," inferior courts must 
follow that precedent "even if  later cases appear to call it into 
question, leaving to [the Supreme] Court the prerogative of 
overruling its own decisions." See Agostini v. Felton, 521 U.S. 
203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).

There could hardly be a clearer case for application of 
this principle. Here, the SupremeCourf s Swann decision itself 
constitutes directly controlling precedent. In Swann, the Court 
concluded that CMS could be constitutionally required to make 
efforts "to reach a 71-29 ratio" in the schools under its 
authority, and to assign students "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." See 
402 U.S. at 23-25, 91 S.Ct. 1267 (approving Judge McMillan's 
order). Indeed, the Supreme Court again noted in Freeman that



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its decision in Swann specifically approved racial balancing by 
CMS to achieve the remedial end of eliminating the vestiges of 
segregation. 503 U.S. a t493,112 S.Ct. 1430 (InSwann, "[w]e 
confirmed that racial balance in school assignments was a 
necessary part of the remedy in the circumstances there 
presented."). Under the principle articulated in Agostini, only 
the Supreme Court itself can modify the decrees in this case to 
prohibit what Swann so clearly permitted.

D.

The Supreme Court's decision in Swann is the law of 
the case; it must be followed. *412 But more than just the law 
of this case, for almost thirty years Swann also has functioned 
as a blueprint for school desegregation in school districts 
throughout this Nation. As long as Swann is controlling law, 
and as long as the Board acts pursuant to the Swann 
desegregation orders-as it did in implementing the expanded 
magnet schools program—it cannot be held to have violated the 
Constitution.

IV.

Judge Potter also enjoined 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." 
Capacchione, 57 F.Supp.2d at 294. In considering the 
propriety o f an injunction, we review factual findings only for 
clear error, but the "district court's application of legal 
principles ... presents a legal question reviewed de novo." 
North Carolina v. City o f  Virginia Beach, 951 F.2d 596, 601 
(4th Cir.1992).



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Given the Court's holding today that CMS did not 
violate the constitutional rights of the Capacchione plaintiffs by 
consideration of race in its expanded magnet schools program, 
and because we would also hold that CMS has not yet achieved 
unitary status, there is, in our view, no legal basis for the 
district court's injunction. Moreover, even if  the district court 
properly determined that CMS had attained unitary status, the 
injunction still must be vacated. This is so because the district 
court could issue an injunction only to the extent that it 
concluded that CMS was likely to persist in current practices 
that would violate the Constitution if undertaken outside of the 
remedial context. See United States v. Oregon State Med. 
Soc'y, 343 U.S. 326, 333, 72 S.Ct. 690, 96 L.Ed. 978 (1952). 
Judge Potter made no such finding.

Indeed, the only CMS action that Judge Potter held to 
violate the Constitution was the expanded magnet schools 
program (a holding that this Court has now reversed); the 
judge did not consider the constitutionality of any other method 
o f student assignment or resource allocation. Yet the 
injunction by its terms prohibits any consideration of race by 
CMS in student assignment or allocation of educational 
benefits that "den[ies] students an equal footing." Capacchione, 
57 F.Supp.2d at 294. The injunction thus goes much further 
than simply prohibiting CMS from reinstituting the expanded 
magnet schools program and its race-conscious assignm ent 
policy.

This court has repeatedly held similar injunctions too 
broad, explaining that " [although injunctive relief should be 
designed to grant the relief needed to remedy the injury to the 
prevailing party, it should not go beyond the extent of the 
established violation." Hayes, 10F.3dat217; see also Tuttle,



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195 F.3d at 708. Similarly, the Supreme Court has directed 
"[fjederal court decrees must directly address and relate to the 
constitutional violation itself." Milliken, 433 U.S. at 282, 97 
S.Ct. 2749. Because the injunction issued in this case did not 
do this, it must be vacated.

V.

In addition to injunctive relief, the district court 
awarded nominal damages of one dollar to the Capacchione 
plaintiffs "to vindicate the constitutional rights of children 
denied an equal footing in applying to magnet schools." 
Capacchione, 57 F.Supp.2d at 290. Because a majority o f the 
Court holds that the expanded magnet schools program did not 
violate the Constitution, it follows that the nominal damages 
award must also be vacated.

*413 VI.

The district court awarded the Capacchione plaintiffs 
$1,499,016.47, plus interest, in attorney's fees, pursuant to 42 
U .S.C. § 1988 (1994). See Capacchione  v.
Charlotte-M ecklenburg Schs., 80 F.Supp.2d 557 
(W.D.N.C.1999) (amended by orders of December 16, 1999, 
J.A. 1313-15, and March 6, 2000, J.A. 1356-62). Under § 
1988, a court is only permitted to award fees when a "party, 
other than the United States" prevails in an "action to enforce" 
the Constitution or specific federal civil rights statutes. 42 
U.S.C. § 1988. Because the Capacchione plaintiffs have not 
prevailed on any constitutional or other claim providing a basis 
for statutory attorney's fees, the $1.49 million fee award must 
be vacated in its entirety.



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We note initially that this Court's reversal of the district 
court's finding that CMS's magnet schools program violates the 
Constitution obviously means that all attorney's fees awarded 
in connection with the Capacchione plaintiffs' previous success 
on this issue must be vacated. The district court apparently 
based much of its attorney's fees award on this ground. See 
Capacchione, 80 F.Supp.2d. at 559 (awarding attorney's fees in 
part because the "Court found for Plaintiff Capacchione on the 
core o f  his claim that CMS violated Cristina Capacchione's 
constitutional rights under the Equal Protection Clause") 
(emphasis added). Our Court today not only holds that CMS 
did not violate the Capacchione plaintiffs' constitutional rights 
in adopting the expanded magnet schools program, but also 
reverses and vacates the district court's attendant orders for 
injunctive and monetary relief. As the Capacchione plaintiffs 
themselves recognize, it is "self-evident" that they cannot 
recover attorney's fees "if this Court reverses on the order 
appealed from." Brief of Appellees at 113 n. 51. Given the 
reversal of the magnet schools ruling, the award of attorney's 
fees attendant to it must be vacated.

The dissent maintains, however, that because this Court 
has also upheld Judge Potter’s unitary status ruling, the 
Capacchione plaintiffs are entitled to an award of some 
attorney's fees. See Traxler Op. at 66.28 Our Court properly

“ Contrary to the dissent's contentions, CMS did not concede that 
if the Grant intervenors obtained only a declaration of unitary status, 
without an injunction or determination that CMS violated the Constitution, 
they would be entitled to attorney's fees. CMS actually stated:

Unlike Capacchione, the Grant intervenors were granted 
declaratory and injunctive relief related to the issues of unitary 
status and CMS'magnet school admission policies. Therefore, the



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rejects this notion because the unitary status determination 
alone simply provides no basis for an award of attorney's fees. 
See also Wilkinson Op. at 353 & n. 1.

Just a few weeks ago, the Supreme Court removed all 
doubt in this area. In Buckhannon Bd. and Care Home, Inc. v.
W. Va. Dept, o f  Health and Human Res., 532 U.S. 598, 121 
S.Ct. 1835,1839,149 L.Ed.2d 855 (2001), the Court reiterated 
that "[i]n the United States, parties are ordinarily required to 
bear their own attorney's fees—the prevailing party is not 
entitled to collect from the loser." In accord with the traditional 
"American Rule," courts may not award attorney's fees to *414 
the prevailing party absent explicit statutory authority. See id. 
(citing Key Tronic Corp. v. United States, 511 U.S. 809, 819, 
114 S.Ct. 1960, 128 L.Ed.2d 797 (1994)). Indeed, in 
Buckhannon, the Supreme Court noted that statutory authority 
to award attorney's fees is critical, for "Congress ha[s] not 
'extended any roving authority to the Judiciary to allow counsel 
fees as costs or otherwise whenever the courts might deem 
them warranted.'" Buckhannon, 121 S.Ct at 1843 (quoting 
Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 
260, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)).

In this case, there is simply no statutory basis for an 
award o f fees to the Capacchione plaintiffs on the sole issue

entitlement of the Grant interveners to recover attorneys' fees is 
tied directly to the merits of those claims.

Brief of Appellants at 40 (emphasized language omitted in dissent, see 
Traxler Op. at 66). Of course, no plaintiff prevailed on the claim that the 
"magnet school admission policies" violated the Constitution, or any other 
claim that provided a statutory basis for attorney's fees. Moreover, even if 
CMS had conceded to the contrary, there would be no basis for a fee award.



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on which they have prevailed, namely the unitary status 
determination. Although a maj ority of this Court has regrettably, 
and we believe mistakenly, determined that CMS has attained 
unitary status, no member of the Court suggests that in doing 
so, or in not doing so sooner, CMS violated 42 U.S.C. §§1981, 
1983, 2000d, the Fourteenth Amendment of the Constitution, 
or any other law or constitutional provision that would give rise 
to an award of attorney's fees under § 1988 or any other 
statute.29 While some of the Capacchione plaintiffs had alleged 
that CMS's failure to obtain a declaration that it had attained 
unitary status violated their constitutional rights, Judge Potter 
never so held. Tellingly, on appeal, the Capacchione plaintiffs 
do not assert this position, let alone offer any support for it. 
Nor does any member o f this Court embrace this unprecedented 
theory. Thus, there is no basis for an award of attorney's fees 
here.

We note that, even if § 1988 somehow applied to a 
mere finding of unitary status, absent some additional finding 
of a constitutional or civil rights violation, the Capacchione 
plaintiffs would still not be entitled to attorney's fees because 
they do not qualify as "prevailing parties]." In order to be a 
"prevailing party," a party seeking fees must have obtained "an 
enforceable judgm ent... consent decree or settlement." Farrar 
v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d494 
(1992). Additionally, there must be some defendant in the case 
who has been "prevailed against," id. at 109, 113 S.Ct. 566,

29We note that if CMS itself had succeeded in simply obtaining a 
declaration that its school system was now unitary, no one would contend 
that the Board would be entitled to an award of fees. Given this, how can 
the Capacchione plaintiffs, operating as a "private attorneys general" on 
behalf of the Board, Traxler Op. at 68, be entitled to fees?



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with a resulting "material alteration of the legal relationship" 
between that defendant and the party seeking fees, id. at 111, 
113 S.Ct. 566.

This prevailing party requirement is crucial: in 
Buckhannon, the Supreme Court rejected the so-called "catalyst 
theory" of attorney's fees on the ground that it might permit an 
award "where there is no judicially sanctioned change in the 
legal relationship of the parties." Buckhannon, 121 S.Ct. at 
1840. By simply obtaining a declaration that the Board has 
achieved unitary status, the Capacchione plaintiffs have not 
obtained "an enforceable judgment, consent decree, or 
settlement;" they have not "prevailed against" CMS; nor have 
they effected a "material alteration of the legal relationship" 
between the parties.

Indeed, the declaration of unitary status merely restores 
the parties to the status quo prior to the issuance of the 
desegregation decree. Such a declaration does not constitute 
"an enforceable judgment" for the Capacchione plaintiffs. The 
dissent is mistaken in its assertion that a unitary status 
declaration is "enforceable against *415 CMS in the unlikely 
event it later attempts to continue prior assignment policies." 
Traxler Op. at 68. Any challenge to future race-based 
assignment policies would be on the ground that they violate 
the Constitution, not that they violate a declaration of unitary 
status. Thus, a future challenge would seek to "enforce" the 
Constitution, not the unitary status determination. This point 
highlights the heart of the dissent's misunderstanding. Section 
1988 exists to provide attorney's fees for those plaintiffs who 
demonstrate that they suffered deprivations of rights under 
federal civil rights laws or the Constitution. Today, a majority 
of this Court has held that the Capacchione plaintiffs have



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suffered no such deprivation; thus, they are not entitled to 
statutory attorney's fees.

Although the declaration of unitary status represents a 
rejection of the legal position that CMS has taken in this 
litigation, such a defeat is not tantamount to being "prevailed 
against" under § 1988. See Buckhannon, 121 S.Ct. at 1841 
("We cannot agree that the term 'prevailing party' authorizes 
federal courts to award attorney's fees to a plaintiff who ... has 
reached the 'sought- after destination' without obtaining any 
judicial relief."). Rather, the primary significance of a 
declaration of unitary status is that CMS has been successful; 
it has eradicated the vestiges of past discrimination to the 
extent practicable and, as the Capacchione plaintiffs put it, 
obtained a "return of control to local authorities." Brief of 
Appellees at 34. The Board, upon a declaration of unitariness, 
now actually has wider latitude to assign students than it did 
while it was under court order to remedy past discrimination 
(although certain race-conscious policies might no longer be 
permissible). Accordingly, this declaration of Board success, 
and attendant broadening of the Board's discretion, does not 
constitute an alteration of the parties' legal relationship "in a 
way that directly benefits the plaintiff." Farrar, 506 U.S. at 
112, 113 S.Ct. 566 (emphasis added). Without more, the 
declaration that CMS has achieved unitary status does not place 
any direct benefit on the Capacchione plaintiffs, who "obtain[ 
] nothing from the defendants." Hewitt v. Helms, 482 U.S. 755, 
761-62, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987).30

30The dissent's contention that the Capacchione plaintiffs helped 
"in making unitariness a reality" underscores the dissent's confusion as to 
the difference between seeking injunctive relief to eliminate illegal 
segregation connected with a dual school system with a declaration that this



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Moreover, "only those changes in a defendant's conduct 
which are mandated by a judgm ent... in the case at bar may be 
considered by the court in determining the plaintiffs success at 
trial" for purposes of attorney's fees under § 1988. Clark v. 
Sims, 28 F.3d 420 (4th Cir. 1994) (emphasis added). In 
affirming the district court's unitary status determination, this 
Court does not mandate that CMS engage in any "conduct" 
whatsoever, but simply holds that "CMS has complied in good 
faith with the mandate of Brown," and that the "dual system has 
been dismantled." Traxler Op. at 43. By vacating the award of 
nominal damages and injunctive relief, this Court has removed 
any "mandate" on the actions of the district court. Having been 
determined to be unitary, CMS is now free to take whatever 
action it wishes consistent with the Constitution.

Thus, the Capacchione plaintiffs' suit seeking a 
declaration of unitary status was *416 not an "action to 
enforce" the civil rights laws under § 1988. Rather, these 
plaintiffs sought a declaration that CMS has complied with 
judgments obtained by the Swann plaintiffs in previous actions 
to enforce civil rights. Although the Capacchione plaintiffs 
brought separate § 1983 claims asserting that the expanded 
magnet schools program violated the Equal Protection Clause, 
they have not "prevailjed]" on those claims.

In sum, not only is there no statutory authority to award 
attorney's fees here, but even if such authority were present, the 
Capacchione plaintiffs are not prevailing parties under § 1988.

has been done. The former is an action to "enforce" civil rights laws and 
the Constitution--and therefore contemplated by § 1988—and the latter is a 
statement that earlier enforcement efforts have succeeded for reasons 
having nothing to do with the Capacchione plaintiffs' lawsuit.



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For these reasons, there is no basis for an award of any 
attorney's fees in this case.

VII.

Finally, CMS appeals the district court's order awarding 
sanctions—including legal fees and costs—to the Capacchione 
plaintiffs arising from a discovery dispute. In the months 
before trial, CMS did not respond to interrogatories by the 
Capacchione plaintiffs seeking disclosure of fact witnesses. 
Instead, the Board waited until the week before trial to reveal 
the names of most of its fact witnesses, providing the 
Capacchione plaintiffs with a list of 174 names which it 
ultimately narrowed to twenty-six potential witnesses. The 
Board maintains that its actions complied with the district 
court's pretrial order, which required the parties to provide a list 
of fact witnesses to each other "[n]o later than the morning of 
the first day of trial." J.A. 150.

The district court, however, granted the Capacchione 
plaintiffs' motion for sanctions. The court held that it had 
established the rules for disclosure of fact witnesses in an order 
of September 1998, which superseded the pretrial order. The 
September 1998 order denied the Capacchione plaintiffs' 
motion to compel disclosure of witnesses prior to the date 
established in the pretrial order for disclosure of expert 
witnesses, but the court stated that "CMS must supplement its 
responses, as it promised, when such information becomes 
known." J.A. 195. In awarding sanctions, the district court 
also indicated its concern that CMS had been "lacking candor 
in disclosing relevant and important information" during the 
pretrial stage, that the disclosure of a list o f 174 potential 
witnesses in the week before trial was "extremely prejudicial to



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opposing counsel," and that many of the witnesses on the list 
may have been "irrelevant or unnecessarily cumulative." J.A. 
305. A sa  result, the district court ordered a one-week recess 
after the Capacchione plaintiffs' presentation at trial to allow 
them to depose, at the school system's expense, any of the 
twenty-six witnesses on the Board's revised list. Witnesses 
whom the Board did not make available for deposition or 
interview during the mid- trial recess were barred from 
testifying.

"Rule 37(d) of the Federal Rules of Civil Procedure 
gives the district court wide discretion to impose sanctions for 
a party's failure to comply with its discovery orders." Mutual 
Fed. Sav. & Loan Ass'n v. Richards & Associates, Inc., 872 
F.2d 88, 92 (4th Cir.1989). CMS could plausibly have 
understood the deadline for disclosure of fact witnesses 
contained in the pretrial order to have continued in effect after 
the subsequent September 1998 order given that the subsequent 
order's central effect was to reaffirm the deadline contained in 
the pretrial order for disclosure o f expert witnesses. 
Nonetheless, we cannot say that the district court abused its 
broad discretion in finding that its September 1998 order did in 
fact supersede the pretrial order, and that the Board’s pretrial 
conduct had been unnecessarily *417 dilatory and prejudicial 
to the Capacchione plaintiffs. Therefore the order of sanctions 
against CMS must be affirmed.

VIII.

We must and do sympathize with those who are 
impatient with continued federal court involvement in the 
operation o f local schools. One might consider thirty-five years 
a long time for a school district to operate under judicial



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

desegregation decrees. However, when the Supreme Court 
decided Swann in 1971 no one could reasonably have thought 
that the substantial task described there would be quickly or 
easily accomplished. CMS, which maintained a separate, 
decidedly unequal dual educational system for decades—and 
which mightily resisted desegregation of any sort for years after 
it became the law of the land—has come a long way. Although 
CMS has now achieved unitary status in certain respects, the 
record in this case simply does not support a determination that 
the process of desegregation is at an end.

For more than a hundred years, in fits and starts, our 
nation has attempted to undo the effects of its shameful heritage 
of slavery. For nearly fifty years, federal courts have struggled 
with the task of dismantling legally enforced racial segregation 
in many o f our schools. This task has given rise to one of the 
preeminent issues of constitutional law in our time. We do not 
yet know how history will regard the courts' role in adjudicating 
and presiding over the desegregation of schools. It may be seen 
as a brief and unfortunate jurisprudential anomaly, justified 
only by the immediacy of the evil it was intended to uproot, c f  
Freeman, 503 U.S. at 505-07, 112 S.Ct. 1430 (Scaiia, J., 
concurring); or it may be recognized as the necessarily 
sustained effort to eradicate deep-seated vestiges of racial 
discrimination and to vindicate the promise of the Fourteenth 
Amendment, c f  Dowell, 498 U.S. at 266-68, 111 S.Ct. 630 
(Marshall, J., dissenting); or it may be viewed in some other 
way that we cannot now anticipate.

But we are certain that the end of this great task must be 
accomplished in an orderly manner, consistent with and true to 
its origin. We are certain, too, that if  the courts, at some point, 
come to view the effort to eliminate the vestiges of segregation



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Opinions o f  the Court o f  Appeals o f  September 21, 2001

as having been overly "race-conscious," they must do so with 
a clear assessment of the historical record.

Race neutrality, of course, represents one of our 
constitutional ideals. Properly understood, it is an ideal not at 
all in tension with our obligation as a society to undo the effects 
of slavery and of the racial caste system that was perpetuated, 
for more than a century, in slavery's wake. But we must be 
ever mindful, as we strive for race neutrality, that a reductive 
and willfully a historical conception of race neutrality was, in 
an earlier era, used as a blunt instrument against the aspirations 
of African-Americans merely seeking to claim entitlement to 
full citizenship.

In striking down early civil rights legislation, the 
Supreme Court embraced this misconceived race neutrality, 
reasoning, only twenty years after the issuance of the 
Emancipation Proclamation, that the legislation at issue would 
illegitimately make black citizens "the special favorite of the 
laws." Civil Rights Cases, 109 U.S. 3 ,25,3  S.Ct. 18, 27 L.Ed. 
835 (1883). Indeed, the system of segregation with which we 
are concerned was justified at its inception by a particular 
conception of race neutrality-that a regime of racial separation 
could be constitutionally justified so long as it applied neutrally 
and equally to persons of all races. See Plessyv. Ferguson, 163 
U.S. 537, 551, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) ("We 
consider the underlying *418 fallacy of the plaintiffs argument 
to consist in the assumption that the enforced separation of the 
two races stamps the colored race with a badge of inferiority.").

The first Justice Harlan, dissenting in Plessy, declared 
our Constitution to be "color-blind," id., 163 U.S. at 559, 16 
S.Ct. 1138, and in doing so provided one of the most famous



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and compelling articulations of the constitutional guarantee of 
equality. But in urging us to be "blind" to race, Justice Harlan 
did not, as is sometimes suggested, suggest that we be ignorant 
of it. In Plessy, he was the only member of the Court willing 
to acknowledge the most obvious truth about segregation: 
"Everyone knows that the statute in question had its origin in 
the purpose, not so much to exclude white persons from 
railroad cars occupied by blacks, as to exclude colored people 
from coaches occupied or assigned to white persons." Id. at 
557, 16 S.Ct. 1138. Thirteen years earlier, dissenting in the 
Civil Rights Cases, Justice Harlan rejected the notion that civil 
rights legislation made blacks a "special favorite o f the laws," 
id., 109 U.S. at 61, 3 S.Ct. 18, and he criticized the majority's 
reasoning as "narrow and artificial." Id. at 26, 3 S.Ct. 18.

We recognize now, as Justice Harlan recognized then, 
that no simple syllogism can enfold all of history's burdens and 
complexities. Eliminating race-consciousness from 
government decision making must be regarded as among our 
worthiest constitutional aspirations. But that aspiration surely 
cannot be so rigid that it refuses to distinguish the "race 
consciousness" that created a segregated school system and the 
race-conscious efforts necessary to eliminate that system. 
While most judges are not historians, we must be willing to 
acknowledge and confront our history. If we fail to do so, we 
risk falling into a mode that equates the cure with the disease: 
civil rights with favoritism, desegregation with segregation. As 
American citizens, we know better.

We are honored to state that Judge Michael and Judge 
Gregory join in this opinion.



222a

Opinion o f  the District Court o f  September 9, 1999

United States District Court, W.D. North Carolina, 
Charlotte Division.

William CAPACCHIONE, Individually and on Behalf of 
Cristina Capacchione, a Minor, Plaintiff, 

and
Michael P. Grant et ah, Plaintiff-Intervenors,

v.
CHARLOTTE-MECKLENBURG SCHOOLS et ah, 

Defendants.

James E. Swann et al., Plaintiffs, 
v.

Charlotte-Mecklenburg Board o f Education et al., 
Defendants.

Nos. 3:97-CV-482-P, 3:65-CV-1974-P.

Sept. 9, 1999.

[57 F. Supp. 2d 228]

*230 John O. Pollard, Kevin V. Parsons, McGuire, 
Woods, Battle & Boothe, L.L.P., *231 Charlotte, NC, William 
S. Helfand, Stephen A. Katsurinis, Magenheim, Bateman, 
Robinson, Wrotenbery & Helfand, P.L.L.C., Houston, TX, Lee 
Myers, Meyers & Hulse, Charlotte, NC, for William 
Capacchione.

Anita S. Hodgkiss, James E. Ferguson, Luke Largess, 
Ferguson, Stein, Wallas, Gresham & Sumter, P.A., Charlotte,



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Opinion o f  the District Court o f  September 9, 1999

NC, Adam Stein, Ferguson, Stein, Wallas, Adkins, Gresham & 
Sumter, Chapel Hill, NC, Elaine Jones, Norman J. Chachkin, 
Gloria J. Browne, NAACP Legal Defense & Educational Fund, 
Inc., New York City, for Swann Plaintiffs, intervenor-plaintiff.

James G. Middlebrooks, Irving M. Brenner, Smith, 
Helms, Mulliss & Moore, LLP, Charlotte, NC, Allen R. 
Snyder, Kevin J. Lanigan, Maree Sneed, Rose Marie L. 
Audette, Hogan & Hartson, L.L.P., Washington, DC, Leslie J. 
Winner, Charlotte-Mecklenburg Board of Education, Charlotte, 
NC, for Charlotte- Mecklenburg Schools, defendant.

A. Lee Parks, K.Lee Adams, Kirwan, Parks, Chesin & 
Miller, P.C., Atlanta, GA, Thomas J. Ashcraft, Charlotte, NC, 
for Michael P. Grant, intervenor- plaintiff.

MEMORANDUM OF DECISION AND ORDER

ROBERT D. POTTER, Senior District Judge

TABLE OF CONTENTS

INTRODUCTION..........................................................  226a

I. FACTUAL BACKGROUND AND
PROCEDURAL H ISTORY..............................  228a

A. Swann v. Charlotte-Mecklenburg
Board of Education ..............................  228a



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Opinion o f the District Court o f  September 9, 1999

B. 1975-1998: Swann Inactive .................  237a

C. Capacchione v. Charlotte-Mecklenburg
Schools /Swann Reactivated . . . . . . . .  243a

II. DISCUSSION AND A NALYSIS............... .. 246a

A. The Constitutional Basis for Race
Conscious Desegregation O rders......... 246a

B. Unitary Status......................................... 250a

1. Student Assignment ...............  254a

a. The Standard for Compliance . . .  254a

b. The Level of CMS's Compliance . 260a

c. Desegregation and Demographic
T ren d s.........................    264a

d. The Concerns o f Martin: School
Siting and Transportation Burdens 268a

e. The Historical Status of Imbalanced
Schools ...........................................  275a

f. Possibilities of Further Racial
Balance ...........................................  279a

2. Faculty Assignment. . . . . . . . . . . . .  283a

3. Facilities and Resources . 292a



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Opinion o f  the District Court o f September 9, 1999

4. Transportation..................................  305a

5. Staff Assignment.............................. 307a

6. Extracurricular Activities ...............  308a

7. Ancillary Considerations.................  311a

a. Teacher Quality ................   312a

b. Student Achievement ....................  316a

i. The Requirements of Swann . 317a

ii. CMS's Efforts to Close the
G ap ........................................... 320a

iii. Experts’ Explanations of
the G ap ....................................  324a

c. Student Discipline............................  337a

8. Good Faith ........................................  339a

C. Constitutional Injuries ............................  346a

1. Immunity under the Swann Orders . .  346a

2. The Magnet School Admissions
Policy ................................................... 351a

3. Nominal Damages 358a



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Opinion o f  the District Court o f  September 9, 1999

D. Injunctive R elief.  ................................... 359a

E. Attorneys F e e s .........................................  363a

CONCLUSION ........................................... .....................  365a

*232 INTRODUCTION

Three decades ago, this Court-and ultimately the United 
States Supreme Court-provided the constitutional imprimatur 
for ordering local school systems to bus children away from 
their neighborhood schools in order to remedy the past vestiges 
of unlawful segregation. See Swann v. Charlotte-Mecklenburg 
Bd. o f  Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 
(1971). The usurpation of a local school system's student 
assignment policies by a federal court was an extraordinary 
event. As the Supreme Court has observed: "No single 
tradition in public education is more deeply rooted than local 
control over the operation of schools." Millikenv. Bradley, 418 
U.S. 717, 741, 94 S.Ct. 3112, 3125, 41 L.Ed.2d 1069 (1974) 
ifMilliken I "). Nevertheless, this Court's exercise of its equity 
power was deemed necessary to eliminate the conditions and 
redress the injuries caused by the "dual school system." The 
injunction entered by this Court, like any temporary equitable 
remedy, eventually must reach an end. Today, this Court 
decides whether the Defendant Charlotte-Mecklenburg Schools 
("CMS"1 has reached that end by creating a "unitary school

'Although originally sued in the Swann case as "the Charlotte- 
Mecklenburg Board of Education," the school system is now commonly 
referred to as "Charlotte-Mecklenburg Schools" or "CMS." For simplicity,



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Opinion o f  the District Court o f  September 9, 1999 

system."

CMS takes a bizarre posture in this late phase of the 
case, arguing that it has not complied with the Court's orders. 
In 1965, when the Swann litigation began, CMS strongly 
resisted federal supervision, but, today, the school system is 
equally fervent in resisting the removal o f the desegregation 
order because it now wishes to use that order as a pretext to 
pursue race-conscious, diversity-enhancing policies in 
perpetuity. Consequently, CMS, the defendants, are now allied 
with the original class action plaintiffs who represent parents of 
black children in the district (the "Swann Plaintiffs"2). A 
separate group of parents of children in the school system 
(collectively referred to as the "Plaintiff-Intervenors") seek an 
end to CMS's use of race-based policies.

After an extensive, two-month evidentiary trial, the 
Court is convinced that CMS, to the extent reasonably 
practicable, has complied with the thirty-year- old 
desegregation order in good faith; that racial imbalances 
existing in schools today are no longer vestiges of the dual 
system; and that it is unlikely that the school board will return 
to an intentionally-segregative system. For the reasons set 
forth below, the Court finds that CMS has achieved unitary

the Court will refer to the school system as "CMS" throughout the opinion.

2Not surprisingly, the original plaintiffs in Swann no longer have 
children attending schools in the district. Therefore, after the Court 
reactivated Swann, counsel for the original Swann Plaintiffs substituted as 
class representatives Terry Belk and Dwayne Collins, both of whom have 
children in the CMS system. (Order of 9/16/98 at 2.) Walter Gregory also 
was named as a substituted party but lost standing after he moved his family 
out of the state. (Order of 2/22/99 at 2.)



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status in all respects and therefore dissolves the desegregation 
order. The Court also finds that certain CMS student 
assignment practices went beyond constitutionally permissible 
bounds. Finally, to the extent that the continued use of certain 
race-based policies would violate the commands of the Equal 
Protection Clause absent a remedial purpose, such practices by 
CMS are hereinafter prohibited.

I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY

A, Swann v. Charlotte-Mecklenburg Board of Education

In 1954, the Supreme Court announced that the doctrine 
of "separate but equal" was unconstitutional, thereby 
prohibiting state-sponsored racial separation in public schools. 
*233Brownv. Board ofEduc., 347 U.S. 483, 74 S. Ct. 686, 98 
L.Ed. 873 (1954) (''Brown 1 "). In a subsequent decision, the 
Supreme Court further mandated desegregation "with all 
deliberate speed." Brown v. Board ofEduc., 349 U.S. 294,75 
S.Ct. 753, 99 L.Ed. 1083 (1955) ("Brown I I "). Despite the 
holdings of Brown /  and Brown //m any public school systems, 
particularly in the South, resisted taking any positive steps 
toward desegregation. See generally Geoffrey R. Stone et al., 
Constitutional Law 533 (3d ed. 1996); James R. Dunn, Title
VI. The Guidelines and School Desegregation in the South, 53 
Va. L. Rev. 42,42 (1967). The Charlotte-Mecklenburg school 
district in North Carolina-where, prior to Brown, public schools 
had been segregated on the basis of race as a matter o f state law 
and school board policy-was likewise slow to dismantle its dual 
school system. See generally Swann v. Charlotte-Mecklenburg 
Bd. ofEduc., 300 F.Supp. 1358 (W.D.N.C.1969) (detailingthe 
history o f segregation in Charlotte, North Carolina).



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Opinion o f  the District Court o f September 9, 1999

In 1965, the Swann Plaintiffs filed their complaint for 
injunctive relief in this Court, claiming that the policies and 
practices of the Charlotte- Mecklenburg Board of Education 
were perpetuating a segregated school system. On July 14, 
1965, United States District Judge Braxton Craven, Jr., 
presiding over the case, approved a school board-proposed 
desegregation plan that closed certain all-black schools, built 
some new schools, established school zones based on 
neighborhoods, and allowed for students of any race to freely 
transfer to a school of his or her choice. Swann v. 
Charlotte-Mecklenburg Bd. o f  Educ., 243 F.Supp. 667 
(W.D.N.C.1965), a ffd  369 F.2d 29 (1966).

"Freedom of choice" transfer plans were a common 
response to the mandate of Brown,3 but such policies had little 
effect on dismantling the dual systems. Dunn, supra, at 44. 
Only a small number of black children transferred to 
predominately white schools, and predominately black schools 
remained all or predominately black. Id. The Supreme Court 
addressed this concern in Green v. County School Bd., 391 U.S. 
430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), holding that " 
'freedom of choice' is not an end in itself;" rather, "it is only a 
means to a constitutionally required end." Id. at 440, 88 S. Ct. 
at 1695 (citation omitted). "If the means prove effective, it is 
acceptable, but if  it fails to undo segregation, other means must 
be used to achieve this end." Id. Thus, Green established that

3In fact, the use of freedom of choice was explicitly endorsed by 
the United States Department of Health, Education, and Welfare (HEW). 
U.S. Office of Education, HEW, General Statement of Policies Under Title 
VI of the Civil Rights Act of 1964 Respecting Desegregation of Elementary 
and Secondary Schools (April 1965); see United States v. Jefferson County 
Bd. o f Educ., 372 F.2d 836, 889 (5th Cir.1966).



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Opinion o f  the District Court o f  September 9, 1999

a school system which had been enforcing de jure segregation 
at the time of Brown had an "affirmative duty" to desegregate, 
not merely an obligation to implement race-neutral policies. Id. 
at 437-38, 88 S.Ct. at 1694. Green also identified six areas of 
school operations that must be free from racial discrimination 
before the mandate of Brown is met: student assignment, 
faculty, staff, transportation, extracurricular activities, and 
facilities. Id., at 435, 88 S. Ct. at 1693. These are commonly 
referred to as the "Green factors."

In 1968, the Swann Plaintiffs filed a motion for further 
relief, seeking greater speed in desegregation efforts in the 
spirit of Green. On April 23, 1969, following a six-day 
hearing, United States District Judge James B. McMillan, 
newly assigned to the case,4 ruled that the plan based upon 
geographic zoning with a free-transfer *234 provision had left 
the dual school system virtually intact. Swann, 300 F.Supp. at 
1372. The Court also concluded, however, that no racial 
discrimination or inequality was found in the following areas:

the use of federal finds; the use of mobile classrooms; 
quality of school buildings and facilities; athletics; 
PTA activities; school fees; free lunches; books; 
elective courses; [and] in individual evaluation of 
students.

Id. As to those areas where vestiges of discrimination were 
found to still exist-primarily, student and faculty

4Judge Craven was subsequently appointed to the United States 
Court of Appeals for the Fourth Circuit. Swann v. Charlotte-Mecklenburg 
Bd. ofEduc., 431 F.2d 135 (4th Cir.1970) (recusing himself in subsequent 
appellate review of Swann litigation).



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Opinion o f  the District Court o f  September 9, 1999

assignment-the Court directed the school board to submit a 
more aggressive desegregation plan and outlined the preferred 
changes, including busing, re-zoning, and other methods. Id. 
at 1373. The Court was hesitant to mandate precise racial 
quotas, stating: "This court does not feel that it has the power 
to make such a specific order." Id. at 1371.

At first, the school board was slow to act on the Court's 
recommendations. See Swann v. Charlotte-Mecklenburg Bd. 
ofEduc., 300 F.Supp. 1381,1382 (W.D.N.C. 1969) (notingthe 
"foot-dragging" by the board). On August 15,1969, the Court 
approved an interim plan that included programs for faculty 
desegregation and for closing seven all-black schools and 
assigning their pupils to outlying predominately white schools. 
Swann v. Charlotte- Mecklenburg Bd. o f  Educ., 306 F.Supp. 
1291,1298-99 (W.D.N.C. 1969). The Court noted that the plan 
represented substantial progress but expressed reservations that 
a disproportionate burden of desegregation was being placed on 
black children. Id. at 1298.

By November 1969, the Court reviewed the plan and 
determined that it had "not been carried out as advertised." 
Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 306 F.Supp. 
1299, 1302 (W.D.N.C.1969). The Court also disapproved of 
an amended plan because it suffered from the same defects in 
the previously- approved plan, i.e., it stated no definable 
desegregation goals and did not safeguard against 
resegregation. Id. at 1313. Concluding that the board had 
"shown no intention to comply by any particular time with the 
constitutional mandate to desegregate the schools," id. at 1306, 
the Court announced that it would designate a consultant to 
immediately prepare a desegregation plan. Id. at 1313-14.



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Opinion o f the District Court o f  September 9, 1999

On December 2,1969, the Court appointed Dr. John A. 
Finger, Jr.,5 to study the system and to recommend a 
desegregation plan. The school board also prepared a plan. 
On February 5, 1970, after two days of hearings, the Court 
adopted Dr. Finger's plan for elementary schools and the 
board's plan, as modified by Dr. Finger, for secondary schools 
(the "Finger Plan"). Swann v. Charlotte-Mecklenburg Bd. o f  
Educ., 311 F.Supp. 265, 268- 70 (W.D.N.C.1970). The Court 
ordered immediate compliance with the Finger Plan, which was 
the only plan ever mandated by the Court. The plan required 
the following:

• S im ilar to the 1969 board -p roposed  p lan , the 
assignment of faculty at each school had to approximate 
the same ratio of black and white faculty members 
throughout the system. Id. at 268.

• The overall competence of teachers at formerly black 
schools could not be inferior to those at formerly white 
schools. Id.

• Students had to 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." Id.

• *235"[N]o school [could] be operated with an all-black

5Dr. Finger, an expert in education administration from 
Providence, Rhode Island, had served as a witness for the Swarm Plaintiffs 
and thus had a familiarity with the case. The Fourth Circuit later cautioned 
that courts should avoid appointing a person who has appeared as a witness 
for one of the parties but determined that the error, if any, was harmless. 
Swann v. Charlotte-Mecklenburg Bd. o f Educ., 431 F.2d 138, 147-48 (4th 
Cir.1970).



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Opinion o f  the District Court o f  September 9, 1999

or predominately black student body." Id.
• In redrawing the school system's attendance zones, the 

Court authorized the use of bus transportation and 
noncontiguous "satellite zones" to accomplish its goals. 
Id.

• The student transfer policy was restricted in order to 
safeguard against any resegregation. Id. at 268-69.

• Finally, the board was required to monitor and report on
its progress in implementing the plan. Id.

The school board appealed the ruling, and the Fourth 
Circuit affirmed the District Court as to faculty desegregation 
and the secondary school plans but vacated the order as to 
elementary schools, determining that the provisions for pairing 
and grouping6 elementary schools imposed an undue burden on 
the board. Swann v. Charlotte-Mecklenburg Bd. ofEduc., 431
F.2d 138 (4th Cir.1970). The Fourth Circuit remanded the 
case for reconsideration and submission of additional plans. Id. 
The Supreme Court granted certiorari and reinstated the District 
Court's judgment pending further proceedings. Swann v. 
Charlotte-Mecklenburg Bd. ofEduc., 399 U.S. 926, 90 S.Ct. 
2247, 26 L. Ed.2d 791 (1970). On remand, Judge McMillan 
conducted eight more days of hearings, and, after reviewing the 
various options, he concluded that the Finger Plan was not 
unreasonable. Swann v. Charlotte-Mecklenburg Bd. ofEduc., 
318 F.Supp. 786, 788 (W.D.N.C.1970). Thus, the District 
Court again directed the board to implement the Finger Plan

6The technique of grouping and pairing involved matching an 
outlying white school attendance area with an inner-city black school 
attendance area, transporting black students from grades one through three 
to the outlying school, and transporting white students from the fourth 
through sixth grades to the inner-city black school.



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Opinion o f  the District Court o f  September 9, 1999

and also provided suggestions for successful implementation. 
Id. at 802-03.

In 1971, the Supreme Court reviewed the case to 
address the scope of authority of federal courts to enforce the 
mandates o f Brown and Green, Swann, 402 U.S. 1, 91 S.Ct. 
1267,28 L.Ed.2d 554. Holding that district courts have broad 
equitable powers to fashion remedies to eliminate segregated 
public schools that were established and maintained by state 
action, the Supreme Court affirmed Judge McMillan's order. 
Id. at 15, 91 S.Ct. at 1276; see id., at 15-16, 91 S. Ct. at 1276 
("[A] school desegregation case does not differ fundamentally 
from other cases involving the framing of equitable remedies 
to repair the denial of a constitutional right.").

Chief Justice Burger, writing for the unanimous court, 
stated that student assignment was the central issue involved in 
crafting desegregation orders, and he enunciated guidelines for 
four identified problems areas. Id. at 22, 91 S.Ct. at 1279.

1. With regard to racial balances or quotas, the limited 
use of mathematical ratios of white to black students is 
permissible "as a starting point" but not as "an 
inflexible requirement." Id. at 22-25, 91 S.Ct. at
1279- 80.

2. The existence of "one-race, or virtually one-race, 
schools" does not necessarily mean that desegregation 
has not been accomplished, but such schools "in a 
district of mixed population" should receive close 
scrutiny to determine that assignments are not part of 
state-enforced segregation. Id. at 25-27, 91 S.Ct. at
1280- 81.



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Opinion o f the District Court o f September 9, 1999

3. The remedial altering of attendance zones, including 
the pairing and grouping of noncontiguous zones, is 
not, as "an interim corrective measure," beyond the 
remedial powers of a district court. Id. at 27-29, 91 
S.Ct. at 1281-82.

4. The use of bus transportation to implement a 
remedial decree is permissible so long as "the time or 
distance of travel is [not] so great as to either risk the 
health of the children or significantly *236 impinge on 
the educational process." Id. at 29-31, 91 S.Ct. at 
1282-83.

With the affirmation of the Supreme Court, the District 
Court continued its supervision of the Charlotte-Mecklenburg 
school system but still encountered some difficulties. In the 
months following the Supreme Court decision, the Court had 
to make some adjustments and revisions to the desegregation 
plan and continued to express its dissatisfaction with the 
regressive and unstable nature and results of certain aspects of 
the plan. See Swann v. Charlotte- Mecklenburg Bd. o f  Educ., 
328 F.Supp. 1346 (W.D.N.C.1971); Swann v. Charlotte- 
Mecklenburg Bd. o f  Educ., 334 F.Supp. 623 (W.D.N.C.1971). 
The Court kept a "hands o f f  approach during the 1971-72 and 
1972-73 school years, in the hope that the board and its staff 
would undertake constructive remedial action. Swann v. 
Charlotte-Mecklenburg Bd. o f  Educ., 362 F.Supp. 1223, 1230 
(W.D.N.C.1973). By June 19, 1973, the Court observed that 
"schools in most areas reached a condition of relative 
educational and racial stability" but again found signs of 
continuing discrimination. Id., at 1230-37.

On July 30, 1974, the Court announced that the board



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Opinion o f the District Court o f  September 9, 1999

was finally on its way to producing a unitary school system. 
Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 379 F.Supp. 
1102, 1103 (W.D.N.C. 1974). The Court approved a new set 
of board-adopted guidelines and policies that marked "a clean 
break with the essentially 'reluctant' attitude which dominated 
Board actions for many years." Id. The Court stated: "If 
implemented according to their stated principles, they will 
produce a 'unitary' (whatever that is) school system." Id. The 
proposal-dubbed the "C AG Plan" because it was drafted by the 
Citizens Advisory Group-was intended to result in no school 
with a majority of minority students, with the exception of 
Hidden Valley Elementary School, which was exempted due to 
its unique history and its location in a recently integrated 
neighborhood. Id. at 1104. The proposal also allowed for the 
creation of "optional schools" that would be "open to all county 
residents and have about or above 20% black students." Id. 
Furthermore, under the CAG Plan, the burdens of busing were 
more equally distributed between blacks and whites, and 
safeguards would be implemented to prevent adverse trends in 
racial make-ups of schools. Id.

The board successfully implemented the new guidelines 
and policies, and, on July 11,1975, the Court closed Swann as 
an active matter of litigation and removed the case from the 
docket. Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 61 
F.R.D. 648, 649 (W.D.N.C. 1975). In this final order, which 
was referred to by Judge McMillan as the "Swann Song," the 
Court noted:

The new Board has taken a more positive attitude 
toward desegregation and has at last openly supported 
affirmative action to cope with recurrent racial 
problems in pupil assignment. Though continuing



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Opinion o f  the District Court o f  September 9, 1999

problems remain, as hangovers from previous active 
discrimination, defendants are actively and intelligently 
addressing these problems without court intervention.

Id. The Court added that the case could be re-opened upon a 
proper showing that the orders were not being observed, 
although such action was not anticipated. Id.

B. 1975-1998: Swann In active

The Swanncase remained inactive from 1975 until the 
present litigation. During this time, Mecklenburg County saw 
significant population growth and demographic change. The 
total population of Mecklenburg County has grown from 
354,656 in 1970 to 613,310 in 1997. (PX 138 Table I (Clark 
Rpt.).)7 According to 1998 census *237  figures, Charlotte is 
the twenty-fifth largest city in America and ranks second in 
population growth in the 1990s among cities with more than 
500,000 people. U.S. Census Bureau, Population Estimates 
for Cities with Populations of 100,000 and Greater (released 
June 30,1999) <http://www.census.gov/ population/ 
www/estimates/citypop.html>. The racial composition of the 
county has changed from 76% white and 24% black in 1970 to 
68% white, 27% black, and 5% other in 1997. (PX 138 Table 
I (Clark Rpt.).) This "other" category, which has doubled since 
1990, reflects the county's large gains in Asians and Hispanics. 
(Id. at 2.)

’Trial exhibits arc cited throughout as "PX" for the Plaintiff- 
Intervenors' exhibits, "DX" for the Swann Plaintiffs' exhibits, and "DX" for 
CMS’s exhibits. Transcripts of the hearing held from April 19, 1999, 
through June 22, 1999, are cited throughout by date, page, and witness.

http://www.census.gov/_population/www/estimates/citypop.html
http://www.census.gov/_population/www/estimates/citypop.html


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Opinion o f  the District Court o f  September 9, 1999

Similar to most large metropolitan areas, Charlotte has 
experienced an outward growth of its population from the inner 
city into the peripheral areas of the county.8 (PX 138 Figs. 2-8 
(Clark Rpt.).) The highest level of population growth in the 
county has been in the southern and southeastern regions and, 
to a lesser extent, in the northern outer region. Id., Figs. 2-8. 
During this suburbanization trend, the inner city and nearby 
suburbs lost large numbers of white residents as they spread 
further out into communities along the major arteries extending 
from downtown. (Id., at 6.) This growth has caused a great 
deal of traffic congestion and has required the building and 
expansion of several roads and highways, including the 1-485 
beltway.

Today, blacks are still more concentrated near the inner 
city, and whites have become highly concentrated in the outer 
peripheries. (PX 138 at 8, Fig. 8 (Clark Rpt.).) Nevertheless, 
there is a greater degree of residential integration in the county 
than there was thirty years ago. (Id. at 8, Table 3). As 
compared to the nation's major metropolitan areas, Charlotte 
has become one of the most racially integrated cities in 
America. (Id. Table 4). This is generally due to the dispersion 
of blacks into the suburbs. (Id. at 7- 8.) In fact, some of the 
middle suburban communities that were almost all white in 
1970 are now predominately black. (Id., at 8.)

8The Court defines the "inner city" as the central area of the 
county, bounded by 1-85 to the north, Billy Graham Parkway to the west, 
and Route 4 to the south and east. (DX 5 Attach. E (Foster Rpt.).) 
Surrounding the inner city is a doughnut-like "middle suburban" ring, with 
an approximately fifteen-mile diameter. (Id). The Court refers to the 
remaining area of the county as the "outer area." (Id.)



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Opinion o f  the District Court o f  September 9, 1999

The county's school system has experienced substantial 
growth and change as well. Of course, CMS was a large 
system at the beginning of the Swann litigation, as noted by the 
Supreme Court in 1971:

The Charlotte-Mecklenburg school system, the 43 d 
largest in the Nation, encompasses the city of Charlotte 
and surrounding Mecklenburg County, North Carolina.
The area is large-550 square miles—spanning roughly 

22 miles east- west and 36 miles north-south. During 
the 1968-1969 school year the system served more than 
84,000 pupils in 107 schools. Approximately 71% of 
the pupils were found to be white and 29% Negro.

Swann, 402 U.S. at 6, 91 S.Ct. at 1271. Today, CMS has 
become the twenty- third largest school system in the nation. 
(Tr. 6/8 at 6 (Test, of Eric Smith).) In the 1998-99 school year, 
CMS served 98,542 pupils in 135 schools, including 85 
elementary schools, 27 middle schools, 14 high schools, and 9 
special schools. (DX 3 (CMS Enrollment Rpts.).) The current 
racial composition of schoolchildren in CMS is approximately 
50% white,42% black,and8% other. (D X 215(1998-99CMS 
Facts).)

The growth in the school age population was relatively 
stable until the 1990s, at which time it experienced rapid yearly 
increases. (PX 138 4-5, Table I (Clark Rpt.).) Since about 
1992, CMS has realized *238 3% growth annually, which 
equates to roughly 3,000 additional students per year. (PX 139 
at 3 (CMS Student Assignment Proposal for 1998-99).) While 
the black student population in CMS has grown steadily since 
1970, the white student population declined sharply in the 
1970s and continued to decrease in the 1980s before realizing



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Opinion o f  the District Court o f  September 9, 1999

modest increases in the 1990s. (Id, at 4-5, Fig. 1). Between 
1970 and 1990, the number of white students in CMS 
decreased by more than 15,000. (Id., at 2, Fig. 1.) In the 1990s, 
CMS has attracted a higher number of white students into the 
system, but there is still a large proportion who do not attend 
public schools. (Id. 5.) In the 1997-98 school year, the county's 
private and home school enrollment totaled 15,835. (PX 138 
at 5 (Clark Rpt.) (citing statistics of the North Carolina 
Division of non-Public Education).) This represents a 14.2 
percent rate o f private school enrollment-almost double the 
national level. (Id.), By comparison, private school enrollment 
in the 1968-69 school year was only 2,150. (PX 26 (CMS 
Enrollment with Private School Data).)

When these demographic changes began occurring, 
CMS responded by modifying student assignments under the 
desegregation plan. In turn, on a couple occasions, the Court 
was called on to revisit the issues in Swann. First, in Martin 
v. Charlotte-Mecklenburg Bd. o f  Educ., 475 F.Supp. 1318 
(W.D.N.C.1979), a group of parents brought suit against the 
school board, seeking an order prohibiting the board from 
reassigning pupils during the 1978- 79 school year pursuant to 
a provision in the 1974CAG Plan. The parents relied on the 
Supreme Court's then-recent decisions in Pasadena City Bd. o f  
Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 
599 (1976), and Regents o f  the Univ. o f  Cal. v. Bakke, 438 U.S. 
265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), to argue that CMS 
could not assign students based on race.

The Court determined that Pasadena and Bakke were 
inapposite. Martin, 475 F.Supp. at 1321. In Pasadena, the 
Supreme Court prohibited a district court from requiring 
reassignment of students due to racial imbalance that was



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Opinion o f the District Court o f  September 9, 1999

caused not by school board action but by demographic changes. 
427 U.S. at 424, 96 S.Ct. at 2697. By contrast, in CMS, 
reassignment was not mandated by the Court but was 
voluntarily implemented by the board under a board-approved 
plan. Martin, 475 F.Supp. at 1322-23. InBakke, the Supreme 
Court found unconstitutional a public university's practice of 
reserving 16 out of 100 admissions slots for racial minorities. 
438 U.S. at 319-20, 98 S.Ct. at 2763. By contrast, in the 
Charlotte-Mecklenburg system, no slots were reserved for 
students by race; in fact, all students in the system were 
guaranteed admission into schools o f equal quality. Martin, 
475 F.Supp. at 1321. Hence, the Court found that no students 
were being denied "opportunities or benefits enjoyed by others 
solely because of [ ] race." Id. (quoting Bakke, 438 U.S. at 305, 
98 S.Ct. at 2756). The Court further reiterated that although 
the Swann case had been closed, jurisdiction had not yet been 
relinquished, so remedial race-based measures were still 
permissible. Id. at 1341. The Court observed that the board 
and its staff were "aggressively attacking the problems" and 
were committed to integration but jurisdiction was still needed 
due to lingering effects from past active discrimination. Id. at 
1341,1343.

During Swann's inactivity, the only other action in this 
Court affecting the Swann case occurred in 1980, when CMS 
and the Swann Plaintiffs notified the Court that the black 
student population of elementary schools had grown from 29% 
in 1969 to 40% in 1980, making it increasingly difficult to 
avoid majority black elementary schools. (PX 113 (Mot. to 
Modify Orders).) The Court approved a proposed modification 
that permitted CMS to operate elementary schools with black 
student populations of "plus 15%" from the district-*239 wide 
average. Swann v. Charlotte-Mecklenburg Bd. o f  Educ., No.



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Opinion o f  the District Court o f  September 9, 1999

1974, slip op. at 2 (W.D.N.C. April 17, 1980) (unpublished 
order). Other than this modification, the Swann case lay 
dormant for almost a quarter of a century without either side 
petitioning for further relief and without any complaints of 
noncompliance.

In the meantime, CMS's student assignment process 
continued to operate under the desegregation plan approved by 
the Court, which focused primarily on pairing elementary 
schools, using satellite attendance zones, and operating a feeder 
plan to assign students from certain neighborhoods to certain 
secondary schools. (DX 108 at 2 (Stolee Plan).) CMS 
periodically reassigned students as demographics changed, the 
population grew, new schools were opened, and old schools 
were closed. (Id. at 3-4.) The greatest change in student 
assignment policy occurred in 1992, when CMS implemented 
a modified pupil assignment program that emphasized the use 
of "magnet" schools.9 (DX 112 (CMS Student Assignment 
Plan: A New Generation of Excellence).) This change 
allowed CMS to phase out pairing, which had become 
increasingly unstable and unpopular. (DX 108 at 3-6 (Stolee 
Plan); Tr. 5/3 at 18-20, 22 (Test, o f Jeffrey Schiller).) The 
plan also contemplated the increased use of "stand alone" and

9 A  magnet school is "a public elementary or secondary school... 
that offers a special curriculum capable of attracting substantial numbers of 
students of different racial backgrounds." 20 U.S.C. § 7204 (1999). The 
special curricula offered in CMS’s magnet program include communication 
arts, Montessori, advanced math and science, visual and performing arts, 
classical studies, international baccalaureate, global studies, workplace 
training, finance, medical sciences, and foreign languages. (PX 43 (CMS 
Magnet Options 1998-99).)



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"mid-point" schools,10 so that satellite zones could be phased 
out. (Tr. 5/3 at 21 (Test, of Jeffrey Schiller).)

Dr. Michael Stolee, the consultant who drafted the new 
assignment plan, recommended that CMS secure approval from 
the Court before making any changes. (DX 108 at 9 (Stolee 
Plan).). CMS never sought Court approval, however, and 
implemented the plan without any direct judicial supervision. 
CMS claims that it relied on the provision for "optional 
schools" in the Swann Order o f July 30, 1974. 379 F.Supp. at 
1104. CMS had operated a few open enrollment "optional" 
schools since 1973; yet, none of these schools offered the 
distinct curricula of the magnet programs started in the 1990s. 
(See DX 5 Attach. B, Table 5 (Foster Rpt.).) The race-based 
admissions policies of these new magnet schools became the 
impetus for the current litigation.

C. Capacchione v. Charlotte-Mecklenburg Schools/Swann 
Reactivated

On September 5, 1997, William Capacchione filed a 
Complaint against CMS, claiming his daughter, Cristina, was 
unlawfully and unconstitutionally denied admission into a 
magnet school program due to a rigid racial enrollment quota. 
Cristina's racial identity is Hispanic and Caucasian, which 

CMS classifies as "non-black." The Complaint sought 
declaratory, injunctive, and compensatory relief under 42 
U.S.C. §§ 1983 and 2000d.

10A stand alone school is located in a naturally integrated 
neighborhood with a contiguous attendance zone. (PX 6 at 5 (Tidwell 
Rpt.).) A mid-point school draws on students from black and white 
neighborhoods and is located halfway between such neighborhoods, (id)



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Opinion o f  the District Court o f  September 9, 1999

On October 22, 1997, CMS moved for dismissal, 
asserting that the magnet school's race-based assignment 
policies were required under the Court's desegregation order in 
Swann. Almost simultaneously, counsel for the original 
Swann Plaintiffs moved to reactivate Swann and to consolidate 
it with the Capacchionelitigation. The Swann Plaintiffs, like 
CMS, contended that past vestiges of the dual school system 
remained unremedied.

On March 6, 1998, the Court granted the Swann 
Plaintiffs' motions to restore *240 Swann to the active docket 
and to consolidate it with Capacchione, finding that the cases 
involved several common issues o f law and fact. The Court 
denied CMS's motion to dismiss, finding that Capacchione had 
met his pleading burden and noting that the magnet school 
assignment plan had never been subject to judicial review.

On March 16, 1998, CMS filed an Answer to 
Capacchione's Complaint, again asserting that the magnet 
school program was instituted in an attempt to comply with the 
Court's orders. Capacchione filed an Amended Complaint, 
stating that the Court-ordered desegregation plan in Swann did 
not justify tlie discrimination in question because the school 
system had long-since achieved unitary status.

The Court permitted Capacchione to intervene in the 
Swann action on May 4,1998. On May 20, 1998, the Court 
granted another motion to intervene in the consolidated action 
by Michael P. Grant et a l , a group o f parents of students in the 
school system. Similar to Capacchione, these parents sought 
a finding that the school system had achieved unitary status as 
required by the Court's orders and urged an end to the school 
system's race-based policies.



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In August 1998, Capacchione and his family moved to 
California. In deposition testimony, Capacchione stated that 
his family had no intent of moving back to Charlotte. 
(Capacchione Dep. Tr. at 122-23.) In light of these 
circumstances, on November 12, 1998, the Court granted in 
part and denied in part a Motion for Summary Judgment filed 
by CMS. The Court found that Capacchione no longer had 
standing to assert injunctive or declaratory relief but found that 
Capacchione still had standing to pursue compensatory relief.

During the trial, Capaechione and Grant et al. 
consolidated their cases. They are collectively referred to in 
court documents and exhibits as the "Plaintiff-Intervenors." 
Following the presentation of the Plaintiff- Intervenors' 
evidence, CMS and the Swann Plaintiffs both filed motions to 
dismiss the various claims of the Plaintiff-Intervenors. The 
Court reserved ruling on most of these arguments because they 
involved factually justiciable issues or they involved issues 
where an immediate ruling did not reduce significantly the 
remaining amount of testimony. (Order of 5/28/99 at 1.) With 
regard to actual damages, however, the Court found that the 
Plaintiff- Intervenors did not prove actual injury as required for 
compensation for a constitutional claim. (Id.) citing Price v. 
City o f Charlotte, 93 F.3d 1241, 1248-57 (4th Cir.1996), cert, 
denied, 520 U.S. 1116, 117 S.Ct. 1246, 137 L.Ed.2d 328 
(1997).) Specifically, the Court found: "The Plaintiff- 
Intervenors only presented conclusory statements that their 
children suffered emotional distress; none of the 
Plaintiff-Intervenors ever sought medical or psychological 
treatment for their children. Moreover, the alleged injuries did 
not flow from the alleged equal protection violation." (Id.) The 
Court now addresses the remaining issues in this case.



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II. DISCUSSION AND ANALYSIS

A. The Constitutional Basis for Race Conscious 
Desegregation Orders

The Fourteenth Amendment provides that "[n]o state 
shall ... deny to any person within its jurisdiction the equal 
protection of the laws." U.S. Const, amend. XIV, § 1. In the 
school desegregation context, the watershed decision of Brown 
v. Board o f  Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 
873, stood for the proposition that separate treatment for people 
o f different races violates the Constitution's equal protection 
guarantee. Justice Harlan recognized this race neutrality 
principle in his prophetic dissent from the misguided "separate 
but equal" doctrine enunciated in Plessy v. Ferguson, when he 
stated: "In respect of civil rights, common to all citizens, the 
Constitution of the United States does not, I think, permit any 
public authority to know the race of *241 those entitled to be 
protected in the enjoyment of such rights." 163 U.S. 537, 554, 
16 S.Ct. 1138, 1145, 41 L.Ed. 256 (1896) (Harlan, J., 
dissenting).

Because o f the "odious" nature of racial classifications, 
"all legal restrictions which curtail the civil rights of a single 
racial group are immediately suspect" and are reviewed under 
the strictest judicial scrutiny, regardless of whether the 
classification is intended to burden or benefit a particular race. 
AdarandConstructors, Inc. v. Pena, 515 U.S. 200,215-16,115
S.Ct. 2097, 2107, 132 L.Ed.2d 158 (1995) (quoting 
Hirabayashi v. United States, 320 U.S. 81,100,63 S.Ct. 1375, 
1385, 87 L.Ed. 1774 (1943); Korematsu v. United States, 323 
U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944)). 
Consequently," [racial] classifications are constitutional only if



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they are narrowly tailored measures that further compelling 
governmental interests." Id. at 227, 115 S.Ct. at 2113. 
Modem Supreme Court precedent suggests that there is only 
one compelling state interest that will justify race-based 
classifications: remedying the effects of past racial
discrimination. Metro Broadcasting, Inc. v. Federal 
Communications Comm'n, 497 U.S. 547,612,110 S.Ct. 2997, 
3034,111 L.Ed.2d 445 (1990) (O'Connor, J., dissenting); City 
o f  Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 
706,722,102 L.Ed.2d 854 (1989); Hopwoodv. State o f  Texas, 
78 F.3d 932, 944 (5th Cir.1996).

It is in this remedial context that the race-conscious 
desegregation orders of Swann were constitutionally 
permissible; the District Court's injunction was specifically 
aimed at dismantling an unconstitutional school system. Swann, 
402 U.S. at 22,91 S.Ct. at 1279. While Swann, acknowledged 
the broad scope of courts' equitable authority,11 it also 
recognized the limitations and potential abuses that can come 
about from using race as a remedial device. Id. at 24-28, 91 
S.Ct. at 1280-82; see Spangler, 427 U.S. at 434, 96 S.Ct. at 
2704 (" '[1 ]t must be recognized that there are limits' beyond 
which a court may not go in seeking to dismantle a dual school 
system." (citing Swann 402 U.S. at 28, 91 S.Ct. at 1282)); Ho 
v. San Francisco Unified School Dist., 147 F.3d 854, 865 (9th 
Cir.1998) (holding that race-conscious provisions in a 
desegregation decree had to be narrowly tailored); see also 
Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 
207, 212 (4th Cir.1993) ("Of all the criteria by which men and

"O f course, even a court's equitable authority is limited in the 
sense that a court can only order that which is reasonable, feasible, and 
workable. Swann, 402 U.S. at 31, 91 S.Ct. at 1283.



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women can be judged, the most pernicious is that of race.... 
While the inequities and indignities visited by past 
discrimination are undeniable, the use of race as a reparational 
device risks perpetuating the very race-consciousness such a 
remedy purports to overcome." (quoting Maryland Troopers 
Ass'n. Inc. v. Evans, 993 F.2d 1072, 1076 (4th Cir.1993))).

For example, the Supreme Court in Swann upheld only 
"the very limited use made of mathematical ratios" in crafting 
student assignment plans, 402 U.S. at 25,91 S.Ct. at 1280, and 
allowed the gerrymandering of school attendance zones only as 
"an interim corrective measure." Id. at 27, 91 S.Ct. at 1282. 
Most importantly, any race-based remedies had to be 
specifically focused on remedying the constitutional violation 
in question and could not expand beyond that purpose. Id. at 
22-23, 91 S.Ct. at 1279. Stated the Supreme Court:

We are concerned in these cases with the elimination of 
the discrimination inherent in the dual school systems, 
not with myriad factors of human existence which can 
cause discrimination in a multitude of ways on racial, 
religious, or ethnic grounds. The target of the cases 
from Brown I  to the present was the dual school system. 
The elimination of racial discrimination in public 
schools is a large task and one that should not be *242 
retarded by efforts to achieve broader purposes lying 
beyond the jurisdiction of school authorities. One 
vehicle can carry only a limited amount of baggage. It 
would not serve the important objective of Brown I  to 
seek to use school desegregation cases for purposes 
beyond their scope, although desegregation of schools 
ultimately will have impact on other forms of 
discrimination.



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Opinion o f  the District Court o f September 9, 1999

Id.; see also Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 
2749, 2758, 53 L.Ed.2d 745 (1977) (".Milliken II  ") 
(" [FJederal-court decrees must directly address and relate to the 
constitutional violation itself. Because of this inherent 
limitation upon federal judicial authority, federal-court decrees 
exceed appropriate limits if  they are aimed at eliminating a 
condition that does not violate the Constitution or does not flow 
from such a violation.").

The temporal scope of desegregation orders is also 
limited in that such decrees "are not intended to operate in 
perpetuity." BoardofEduc. v. Dowell, 498 U.S. 237,248,111 
S.Ct. 630, 637, 112 L.Ed.2d 715 (1991). "From the very first, 
federal supervision of local school systems was intended as a 
temporary measure to remedy past discrimination." Id. at 247, 
111 S.Ct. at 637.

Dissolving a desegregation decree after the local 
authorities have operated in compliance with it for a 
reasonable period of time properly recognizes that 
'necessary concern for the important values of local 
control of public school systems dictates that a federal 
court's regulatory control of such systems not extend 
beyond the time required to remedy the effects of past 
intentional discrimination.'

Id., at 248, 111 S.Ct. at 637 (quoting Spangler v. Pasadena 
City B d , ofEduc., 611 F.2d 1239, 1245 n. 5 (9th Cir.1979) 
(Kennedy, J., concurring) (citing Milliken II, 433 U.S. at 
280-82, 97 S.Ct. at 2757-58)); see also Freeman v. Pitts, 503 
U.S. 467, 505, 112 S.Ct. 1430,1453,118 L.Ed.2d 108 (1992) 
(Scalia, J., concurring) ("But we also envisioned [federal 
supervision of local school systems] as temporary, I think,



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Opinion o f  the District Court o f  September 9, 1999

because the rational basis for the extraordinary presumption of 
causation simply must dissipate as the de jure  system and the 
school boards who produced it recede further into the past."). 
Thus, a desegregation order does not condemn a school board 
to "judicial tutelage for the indefinite future," as "[n]either the 
principles governing the entry and dissolution of injunctive 
decrees, nor the commands of the Equal Protection Clause of 
the Fourteenth Amendment, require any such Draconian result." 
Dowell, 498 U.S. at 249,111 S.Ct. at 638.

In addition to remedying a constitutional violation, the 
end purpose of a desegregation order is "to restore state and 
local authorities to the control of a school system that is 
operating in compliance with the Constitution." Freeman, 503 
U.S. at 489, 112 S.Ct. at 1445. As the law of school 
desegregation has developed, that withdrawal o f jurisdiction 
occurs when the district court finds that the school system has 
achieved unitary status. Id.; Dowell, 498 U.S. at 248, 111 S.Ct. 
at 637; Swann, 402 U.S. at 32, 91 S.C t at 1284.

B. Unitary Status

The term "unitary status" has no fixed meaning. 
Freeman, 503 U.S. at 486-87, 112 S.Ct. at 1443-44. In fact, 
the terms "unitary" and "dual" are nowhere found in the 
Constitution; they are simply descriptive words that identify 
school systems that are either in or out of compliance with the 
commands of the Equal Protection Clause. Id. at 486-87, 112 
S.Ct. at 1443- 44 (citingDowell, 498 U.S. at 245-46, 111 S.Ct. 
at 636). The concept of achieving unitary status was 
established in Green, where the Supreme Court stated that the 
goal o f equitable relief in a desegregation case was "to convert 
[a dual system] to a unitary system in which racial



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Opinion o f  the District Court o f  September 9, 1999

discrimination would be eliminated root and branch." 391 U.S. 
at 437-38, 88 S.Ct at 1694.

*243 Since Green, the use o f the term "unitary" has 
been inconsistent. Dowell, 498 U.S. at 245, 111 S.Ct. at 635. 
Sometimes the term is used to describe a school system that has 
been released from supervision after fully remedying all 
vestiges o f past discrimination. Id. (citing United States v. 
Overton, 834 F.2d 1171, 1175 (5th Cir.1987); Riddick v. 
School Bd., 784 F.2d 521, 533-34 (4th Cir.1986); Vaughns v. 
Board ofEduc., 758 F.2d 983, 988 (4th Cir.1985)). The term 
also has been used to describe a school system that has 
implemented a desegregation plan but has not yet eliminated 
the vestiges o f past discrimination. Id. (citing Georgia State 
Conference Branches ofNAACP v. Georgia, 775 F.2d 1403, 
1413n. 12 (11th Cir.1985)); seealso United States v. Georgia, 
171 F.3d 1344, 1347 (11th Cir.1999). In the latter 
circumstance, courts draw a distinction between a school 
system that is "unitary" and one that has achieved "unitary 
status." Dowell, 498 U.S. at 245,111 S.Ct. at 635-36. In other 
words, a school system that has achieved unitary status is one 
that "has eliminated the vestiges of its prior discrimination and 
has been adjudicated as such through the proper judicial 
procedures," i.e., a unitary status hearing or a consent order. Id. 
at 245, 111 S.Ct. at 636 (quoting Georgia State Conference 
775 F.2d at 1413 n. 12).

With regard to Swann, Judge McMillan closed the case 
in 1975 after the school system had adopted a desegregation 
plan that he previously declared would produce a "unitary" 
school system. Swann, 67 F.R.D. at 649; see Swann, 379 
F.Supp. at 1103. This did not constitute a finding that CMS 
had achieved unitary status or that the orders had been



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Opinion o f  the District Court o f  September 9, 1999

terminated or dissolved. To the contrary, Judge McMillan 
stated that the orders in this case remained in continuing effect, 
Swann, 61 F.R.D. at 649; Martin, 475 F.Supp. at 1341, and 
CMS has continued to operate under the assumption that it was 
still subject to federal court supervision. Thus, it may be said 
that CMS has been operating a unitary system since at least 
1975 but has not yet been granted unitary status. See Georgia, 
171 F.3d at 1347.

The appropriate analysis for determining whether CMS, 
at long last, has achieved unitary status is (1) whether the 
school board has eliminated the vestiges of past discrimination 
to the extent practicable and (2) whether the school board has 
in good faith fully and satisfactorily complied with, and shown 
a commitment to, the desegregation plan, such that it is unlikely 
for the board to return to its former ways. Freeman, 503 U.S. 
at 492, 112 S.Ct. at 1446; Dowell, 498 U.S. at 249-50,111 S. 
Ct. at 638. In determining whether a school board has 
eliminated the vestiges of de jure  segregation as far as 
practicable, a district court must carefully assess what the 
school system has accomplished with respect to the six "Green 
factors"- student assignment, faculty, staff, transportation, 
extra-curricular activities, and facilities. 391 U.S. at 435, 88 
S.Ct. at 1693. In its discretion, a court may consider any other 
ancillary factors. Freeman, 503 U.S. at 492,112 S.Ct. at 1446.

A district court may withdraw all judicial supervision 
over a school system if  it finds that the system has achieved 
unitary status in all respects, or it may withdraw supervision 
incrementally with respect to discrete categories when the 
system has achieved only partial compliance with a 
desegregation plan. Id. at 471, 112 S.Ct. at 1436. In the 
present case, the Plaintiff-Intervenors assert that the system has



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Opinion o f  the District Court o f September 9, 1999

achieved unitary status in all respects. CMS and the Swann 
Plaintiffs contend that the school system has not achieved 
unitary status as to any of the Green factors and further assert 
that CMS has discriminated in areas such as teacher quality, 
academic achievement, and discipline.

The burden o f proof for showing whether CMS is free 
of the vestiges of segregation falls on the parties seeking to end 
court supervision: the Plaintiff-Intervenors. *244 Id., at 494, 
112 S.Ct. at 1447. Evidentiary considerations inevitably will 
impact this burden. Given that school boards are "entitled to 
a rather precise statement of [their] obligations under a 
desegregation decree," Dowell, 498 U.S. at 246, 111 S.Ct. at 
636, the lack o f any prior remedial orders or findings of 
discrimination in certain areas of school operations tends to 
allay the Plaintiff-Intervenors' burden of proof as to those areas. 
Keyes v. School Dist. No. 1, 902 F.Supp. 1274, 1282 
(D.Colo. 1995). The passage of time is likewise an evidentiary 
consideration that affects the burden of proof. Freeman, 503 
U.S. at 491-92, 496, 112 S.Ct. at 1446, 1448; id., at 503, 112 
S.Ct. at 1452 (Scalls, J., concurring); Jenkins v. Missouri, 122 
F.3d 588, 595 (8th Cir.1997). As to any facets of school 
operations where the Courtexpressly found that the school 
system was free o f discrimination, such findings become the 
law of the case and shift the burden back to the parties trying to 
prolong judicial oversight: CMS and the Swann Plaintiffs. 
Riddick, 784 F.2d at 531; Jacksonville Branch, NAACP v. 
Duval County School Bd, No. 85-316-Civ-J-10C, slip op. at 
139 (M.D.Fla. May 27,1999). Underlying this burden-shifting 
scheme is a district court's ultimate duty to return control of 
school operations to local authorities when judicial supervision 
is no longer necessary. Missouri v. Jenkins, 515 U.S. 70, 99,



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Opinion o f the District Court o f  September 9, 1999

115 S.Ct. 2038, 2054, 132 L.Ed.2d 63 (1995) ("Jenkins III"); 
Freeman, 503 U.S. at 489-90, 112 S.Ct. at 1445.

1. Student Assignment

Like most desegregation cases, the orders entered 
during the active phase of Swann, from 1969 to 1975, focused 
primarily on erasing discrimination in student assignment, 
which was the hallmark of a segregated school system. See 
Swann, 402 U.S. at 18,91 S. Ct. at 1277 (”[T]he several related 
cases before us are primarily concerned with problems of 
student assignment."); id  at 22,91 S. Ct. at 1279 ("The central 
issue in this case is that of student assignment."). Accordingly, 
the "critical beginning point" and "fundamental" inquiry o f a 
unitary status determination is the degree of racial imbalance in 
student assignment. Freeman, 503 U.S. at 474, 112 S. Ct. at 
1437.

a. The Standard for Compliance

During the trial, there was disagreement about what the 
Swann orders required for numerical compliance. Given that 
Judge McMillan entered roughly fifteen orders addressing 
student assignment, it is not surprising that the applicable 
standard is somewhat hazy. Then again, the standard should 
be somewhat hazy. A court must constantly anchor itself in 
the constitutional violation and must not get caught up in 
bean-counting. Swann, 402 U.S. a t22-24,91 S. Ct. at 1279-80.

The Court's student assignment guidelines, which do not 
anticipate a simple quantitative analysis, are as follows: (1) 
"[t]hat no school be operated with an all-black or



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Opinion o f  the District Court o f  September 9, 1999

predominately black student body"12 (2) "[t]hat pupils o f 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," and (3) that CMS 
"prevent any school from becoming racially identifiable." 
Swann, 311 F.Supp. at 268.

The first guideline addressed the concern that CMS's 
slowest progress in dismantling the dual system was the 
desegregation of formerly-t/e jure black schools. Fifteen years 
after Brown I, a large number *245 of these schools were still 
99% to 100% black. Swann, 300 F.Supp. at 1368. While the 
Court did not define precisely what a "predominately black 
student body" was, the guideline has been interpreted to mean 
that no school should be operated with a majority black student 
body, i.e., one that is over 50% black.13 (See, e.g., PX 93 at 
CM095416 (CMS Student Assignment Proposals 1996-97); 
PX 113 at 2 (Joint Mot. to Modify Orders filed 4/16/80).)

I2Of course, an all-black or predominately black school is not per 
se unconstitutional, Swann, 402 U.S. at 25-26, 91 S.Ct. at 1280-81, and it 
would be insidious to assume that a school which is all or predominately 
black is inherently inferior. To the contraiy, "black schools can function 
as the center and symbol of black communities, and provide examples of 
independent black leadership, success, and achievement." Jenkins, 515 
U.S. at 122, 115 S.Ct. at 2065 (Thomas, J., concurring). The purpose of 
this guideline, rather, was to rid the system of its most conspicuous vestige 
of segregation.

13One finding that seems to contradict this interpretation is Judge 
McMillan's observation, in 1969, that Elizabeth Elementary, which was 
58% black at the time, had "a substantial degree of apparently stabilized 
desegregation." Id., at 1367-68.



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The second guideline requires the racial composition of 
each school to reflect the district-wide average. In 1970, when 
this guideline was mandated, the district's racial composition 
was 29% black and 71% non-black. While the Court 
acknowledged that "variations from that norm may be 
unavoidable," Swann, 311 F.Supp. at 268, it did not suggest 
how much variance from the norm-s a plus-or-minus 
percentage-would be tolerable. The only specific variance ever 
approved by the Court is found in the one-page unpublished 
order from 1980, which allowed elementary schools to operate 
with black student populations of "plus 15%" from the 
district-wide average. Swann, No. 1974, slip op. at 1 (April 17, 
1980). This upward variance acknowledged that it was no 
longer practicable to avoid majority black elementary schools 
given the increasing black enrollment. (P X 113 at 2 (Joint Mot. 
to Modify Orders).) At the time, the black student ratio in 
elementary schools had risen to 40%, which meant that an 
elementary school could have a 55% black student population. 
Id. The modification applied only to elementary schools 
because secondary schools had low enough black student 
populations that they could operate at roughly 15% above the 
system-wide ratio and still avoid being majority black. (DX 3 
(CMS Enrollment Rpts.)) high schools were 35% black in 
1980; middle schools were 37% black). Last year, on the 
other hand, the black student ratio was 42% in middle schools 
and 40% in high schools, (id., which provided breathing room 
of only 8% and 10% as an upper limit). Given that +10% was 
too constricting a ceiling for elementary schools in 1980, it 
would make little sense to impose an even more constricting 
ceiling of +8% for middle schools today. It is also worth 
noting that the Court, in 1970, allowed CMS an upper limit of 
21% above the district-wide black average based on the "no



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Opinion o f  the District Court o f  September 9, 1999

majority black schools" interpretation. So, even a +15% upper 
limit is a relatively strict standard.

The third guideline, prohibiting racially identifiable 
schools, seems to target the more extreme cases of racial 
isolation. Accord Jacksonville Branch, NAACP v. Duval 
County School Bd., No. 85-316-Civ.-J-10C, slip op. at 10-11 
(M.D.Fla. May 27,1999) (defining "identifiably black" as those 
schools with a black student population in excess of 75% and 
"identifiably white" as those schools with a black student 
enrollment of 15% or less). For example, it would be difficult 
to say that a school with a 51% black student body was racially 
identifiable, even though, under the no majority black schools 
interpretation, it might be viewed as such. Determining what 
is identifiably white is even more difficult. Early on, the Court 
classified "schools readily identifiable as white" as schools with 
white percentages above 85%. See Swann, 311 F.Supp. at 270; 
Swann, 306 F.Supp. at 1303. Yet, the Court acknowledged 
that Flighland Elementary, which was only 13% black, had 
achieved adequate desegregation. Swann, 300 F.Supp. at 
1367-68. Also, the 1970 court-mandated plan-which, the 
Court said, "achieves full desegregation" allowed black student 
percentages as low as 3% (Bain Elementary), 9% (Matthews 
Elementary), 12% (Newell Elementary), and 14% (Clear Creek 
Elementary). Swann, 311 F.Supp. at 270, Ex. J. The Court, 
therefore, was willing to accept a number *246 of schools with 
large white majorities as part o f a desegregated system.

In sum, the measuring stick for compliance in student 
assignment is not a model of clarity. The parties agree that the 
orders allow elementary schools to operate with black student 
bodies up to 15% above the district-wide black ratio and allow 
secondary schools to operate with black student bodies up to



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Opinion o f the District Court o f  September 9, 1999

50%. The Plaintiff-Intervenors only challenge the continuing 
validity of these upper limits. The parties disagree as to 
whether there is a lower limit for black student populations. 
CMS and the Swann Plaintiffs assert that common practice 
dictates a minimum black student body in all schools of at least 
"minus 15%" from the district-wide black ratio. The Plaintiff- 
Intervenors disagree with this "minus 15%" standard on the 
grounds that it appears nowhere in the prior orders.14

The Plaintiff-Intervenors are technically correct. As to 
the lower limit, the Court never adopted a "minus 15%" 
standard or any such downward variance. Nevertheless, Judge 
McMillan expressed concern about the presence o f all-white 
schools, Swann, 311 F.Supp. at 270, so the Court should not 
ignore completely those schools with small black student 
populations. But see Jacksonville NAACP, supra, slip op. at 
11 n. 10 ("The counting of [identifiably white] schools as 
segregated can tend to distort one's view of the school system 
as a whole in terms of deciding whether black children continue 
to be educated in a segregated environment."). As to the upper 
limit, the differing standards for elementary and secondary 
schools have become clumsy and obsolete. Given the rise in 
the black student population, the requirement that no secondary 
school operate with a majority black student population allows 
too little breathing room. The variance should be the same for 
both elementary and secondary schools to allow uniform

14CMS recently acknowledged this aspect of the Swann orders, 
stating that "only an upper limit for Black enrollment was set, with no 
reference to a lower limit." (PX 93 at CM095416 (CMS Student 
Assignment Proposals 1996-97).) Regardless, "whenever possible the 
Board also used a lower limit of 15% below the K-6 Black enrollment." 
(Id.) Thus, CMS used a lower limit only as a self-imposed "aspirational" 
goal.



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Opinion o f  the District Court o f  September 9, 1999

flexibility. Indeed, the purpose and result of the 1980 
modification, at that time, was to create uniform flexibility.

A singular standard will provide a more accurate 
evaluation of the system than will the mishmash of standards 
gleaned from several orders. The only specific variance ever 
approved by the Court was a "plus 15%" deviation, so the 
Court will use a +-15% standard. Unless otherwise noted, the 
Court will refer to racial "balance" and "imbalance" based on 
this variance. Admittedly, this standard differs somewhat from 
the explicit standards set by the Court and is more restrictive 
than necessary.15 The Court emphasizes, however, that there is 
no level o f compliance with the standard that is determinative; 
the standard is simply a helpful framework for examining the 
degree of ideal racial balance in the system. Schools that are 
substantially outside of the variance will need reasonable and 
supportable explanations for the imbalance. Mannings. School 
Bd, 28 F.Supp. 2d 1353, 1357-58 (M.D.Fla.1998) (citing 
Swann, 402 U.S. at 26, 91 S.Ct. at 1281).

15See, e.g., Reed v. Rhodes, 1 F.Supp. 2d 705, 716 (N.D.Ohio 
1998) (stating that "the common standard used throughout the United 
States" is "+/-20 percentage points of the percentage of black students 
enrolled in the District"); Stellv. Board ofPublic Educ., 724 F.Supp. 1384, 
1401 (S .D ,Ga. 1988) (applying a +-20% standard and observing that several 
other courts apply the same standard). Based on several of Judge 
McMillan's findings, it could be argued that the acceptable variance from 
the district-wide average is as high as +-25% to +-30%. After all, the 
Court approved of Bain when it was 26% below the district-wide average 
and commended Elizabeth when it was 29% above the district-wide 
average.



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Opinion o f  the District Court o f  September 9, 1999

b. The Level of CMS's Compliance

The parties' expert witnesses testified about the degree 
of compliance with different *247 conclusions based on how 
they manipulated the data and on what standard they applied.

Some experts overstated the level o f noncompliance by 
counting schools that are not within the scope o f the Court's 
orders. Witnesses for CMS and the Swann Plaintiffs 
sometimes labeled Hidden Valley as out of compliance, even 
though it is an exempt school. (See e.g., Tr. 6/10 at 113-16 
(Test, of Dr. Gordon Foster); DX 6 Attach. C, Exs. lb, Id 
(Peterkin Rpt.).) Dr. Robert Peterkin, a CMS expert, inflated 
the number of "racially identifiable" schools by including 
several "special" schools, such as schools for the mentally and 
physically disabled, management schools for students with 
disciplinary problems, and schools for pregnant teenagers. (DX 
6 Attach. C, Exs. la - l f  (Peterkin Rpt.); DX 7 at 4, Ex. 
A-138-52 (Peterkin Rebuttal Rpt.); Tr. 6/18 at 48-52 (Test, of 
Dr. Robert Peterkin).) These schools are not properly included 
because students do not attend such schools under normal 
student assignment policies. In addition, Dr. Peterkin and Dr. 
Leonard Stevens, an expert for the Swann Plaintiffs, improperly 
characterized certain racially balanced schools as racially 
identifiable on the grounds that in-school assignment and 
placement practices segregated black students in classrooms. 
(DX 7 at 6 (Peterkin Rebuttal Rpt.); SX 2 at 22 (Stevens 
Rpt.).) Specifically, they attacked the practice of ability 
tracking, which tends to result in predominately black and 
predominately white classrooms. As discussed further below, 
no credible evidence was offered to show that CMS has tacked 
children in a discriminatory manner. See infra part II.B.7.b.ii.



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Opinion o f  the District Court o f  September 9, 1999

Ultimately, the Court must look to the CMS enrollment 
data to determine the degree of compliance over time. It 
would be wrong to focus only on a few select years. Dr. 
Peterkin, for example, emphasized the two most recent school 
years, (DX 6 at 3 (Peterkin Rpt.), Dr. Stevens only looked at 
compliance during the 1990s, (SX 2 at 2 (Stevens Rpt.)), and 
Dr. Gordon Foster, a CMS expert, only looked at nine out of 
the last twenty years. (DX 5 at 4 (Foster Rpt.).) This is too 
narrow a lense to examine CMS's compliance. The potential 
for misleading interpretations was well-illustrated during the 
cross- examination o f Dr. Foster. When asked what was more 
important in determining unitary status, the fact that a school 
had been in compliance for twenty-eight years or has been out 
o f compliance for one year by two-tenths of a percentage point, 
Dr. Foster refused to say which one. (Tr. 6/10 at 81-82 (Test, 
of Dr. Gordon Foster).) This is simply unreasonable.

It is expected that some schools will exceed a given 
variance due to student mobility, inaccurate enrollment 
projections, and other factors beyond CMS's control. See Estes 
v. Metropolitan Branches o f  the Dallas NAACP, 444 U.S. 437, 
448,100 S.Ct. 716,722,62 L.Ed.2d 626 (Powell, J„ dissenting 
from denial of certiorari) ("[Pjerfect solutions may be 
unattainable in the context of the demographic, geographic, and 
sociological complexities of modem urban communities."); 
Swann, 402 U.S. at 31, 91 S. Ct. at 1283 ("Communities in our 
mobile society do not, however, remain demographically 
stable."). If, over the course of three decades, a school has had 
a racially balanced student body for 90% of the time or greater, 
it is certainly reasonable to conclude that CMS has complied 
fully and satisfactorily with the Court's orders as to that school. 
On the other hand, the continued existence of schools that are 
substantially racially imbalanced, especially when those



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Opinion o f  the District Court o f  September 9, 1999

schools are in areas of mixed population, requires close 
scrutiny. Swann, 402 U.S. at 25-26, 91 S. Ct. at 1281. It must 
be shown that assignments to such schools are genuinely 
non-discriminatory. Id. at 26, 91 S. Ct. at 1281.

The available student enrollment data reveal that CMS 
has maintained a high *248 level of desegregation since 1970.16 
O f the 126 elementary, middle, and high schools currently 
operating, only twenty schools17 (16%) have had black student 
bodies higher than 15% above the district-wide ratio for more 
than three years, and only seventeen schools18 (13%) have had 
black student bodies lower than 15% below the district-wide

I6CMS provided complete student enrollment data by race, by 
grade, and by school from the 1978-79 school year to the beginning of the 
1998-99 school year. (DX 3 (CMS Enrollment Rpts.).) Between 1970 and 
1978, student enrollment data is incomplete. CMS provided data only for 
the 1972-73 and 1974-75 school years. (PX 137 at 2, 4 (Armor Rpt.).) 
Using these data along with HEW-OCR enrollment data for 1970, Dr. 
Armor extrapolated the numbers to estimate enrollments for the missing 
years. (Id, at 2,4.) The Court accepts this unrebutted method as reasonable 
and as the best means available for getting the fall picture.

17Elementary Schools: Ashley Park, Briarwood, Derira, 
Devonshire, Druid Hills, Highland, Oaklawn, Sedgefield, Shamrock 
Gardens, Thomasboro, and Westerly Hills. Middle Schools: Cochrane, 
Eastway, J.T. Williams, Spaugh, and Wilson. High Schools: Garinger, 
Harding, Northwest, and West Charlotte.

18Elementary Schools: Bain, Clear Creek, Cornelius, Davidson 
Road, Huntersville, Lebanon Road, Long Creek, Mallard Creek, Matthews, 
McAlpine, and McKee. Middle Schools: Alexander, Davidson IB, 
Randolph, and South Charlotte. High Schools: East Mecklenburg and 
Providence.



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Opinion o f  the District Court o f  September 9, 1999

ratio for more than three years.19 In other words, relatively few 
schools in the system have long histories of racial imbalance.20 
What is more, a great deal of the imbalance has involved 
borderline discrepancies o f a few percentage points. In schools 
with relatively small student bodies, the displacement of only 
three or four black students would have put the school back 
into balance. (See Tr. 5/17 at 161-62 (Test, of Dr. Stephen 
Smith).)

Since 1970, an overwhelming majority of 
schools—generally, 70% to 100%—have been racially balanced 
in any given school year. (See, PX 137 Figs. 1-2 (Armor Rpt.); 
DX 6 Ex. le  (Peterkin Rpt.).) During this time, CMS has 

operated no all-black or all-white schools. (See D X  7 at Ex. A 
(Peterkin Rebuttal Rpt.).) Aside from Hidden Valley, which is 
exempted, no school's black population has ever risen above 
85%. (Id.) Only seven schools have ever had black populations 
in excess of 75%, and this did not occur until 1994. (Id. ) In 
fact, no school ever had a black population exceeding 60% 
until 1988. (Id.)

19Moreover, using the common +-20% standard, only nine schools 
(7%) exceed the standard for more than three years, and only fourteen 
schools (11 %) fall below the standard for more than three years. Using the 
explicit Court standards--i.e., the upper limits of 50% black for secondary 
schools and +15% from the district-wide ratio for elementary schools-only 
twenty-one of the district's current schools (17%) are out of compliance for 
more than three years since 1970.

20Of course, this cannot be interpreted to mean that all of the 
remaining schools have been balanced for twenty-six years or more because 
many schools were built during the last two decades.



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Opinion o f  the District Court o f  September 9, 1999

The remarkable level of desegregation shown by CMS's 
enrollment data is further confirmed using the two summary 
indices of desegregation that are used in the field of 
desegregation research: the index of dissimilarity, which 
measures the degree of racial imbalance, and the index of 
interracial exposure, which measures "the average percent 
white in schools attended by black students, weighted by the 
proportion of black students in each school." (PX 137 at 6 
(Armor Rpt.).) Dr. David Armor, an expert for the Plaintiff- 
Intervenors, analyzed CMS with these standard measures. The 
results show that CMS was "severely imbalanced" prior to 
1970, then "highly desegregated" for about twenty years, and 
"well desegregated" for the remaining years. (Id. at 6-7, Charts 
4-5.) Based on these indices, when CMS is compared to other 
school districts of similar size and racial composition, CMS has 
achieved a higher degree of racial balance than several other 
districts that *249 have been declared unitary. (Id. at 7, Table 
!•)

c. Desegregation and Demographic Trends

Focusing, next, on when, where, and how the racial 
balance and imbalance has occurred, the Court starts with the 
fact that, under the dual system, schools were either all black or 
all white. By 1969, two-thirds of black students in the city of 
Charlotte-approximately 14,000 ofthem-still attended schools 
that were either all black or more than 99% black. Swann, 402 
U.S. at 6-7, 91 S. Ct. at 1271. This statistic changed 
dramatically once the Court mandated a desegregation plan. 
In 1970, only four schools had majority black student 
populations: Barringer Elementary, Berryhill Elementary,



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Opinion o f the District Court o f  September 9, 1999

Amay James Elementary, and Wilmore Elementary.21 (PX 137 
at 4 (Armor Rpt.).) Between 1972 and 1978, available data 
show only two schools besides Hidden Valley with majority 
black student populations: Wilmore, which was 51 % in 1974, 
and Spaugh Middle, which was 51% in 1978. (Id.) In 1979, 
only three schools were above 50% black: Devonshire 
Elementary, Smith Elementary, and Cochrane Middle, each of 
which were 52% black. (Id. ) After the "plus 15%" rule came 
into play in 1980, only Briarwood Elementary, which was 56% 
black, exceeded the new standard. (Id.) In sum, during the first 
decade of the desegregation plan, almost every school complied 
with the Court's orders, and the few schools that exceeded the 
Court’s standards did so by just one or two percent. (Id.)

CMS remained in substantial compliance throughout 
the 1980s. (Id.) Although more schools fell out of balance 
during this period due to demographic changes, only a few 
schools were consistently out of balance. (Id.; PX 138 at 9-13 
(Clark Rpt.).) By this time, the school board had 
"institutionalized" the Court's racial balance guidelines such 
that the board was constantly adjusting boundaries, adding 
satellite zones, and reassigning students to different schools. 
(Tr 4/22 at 5-10 (Test, of Sharon Bynum).) This was a 
difficult process not just for the board members and school 
staff but for the families who were required to send their 
children to different schools every couple of years. (Id.)

In the 1990s, CMS—faced with a growing number of 
imbalanced schools and parents' concerns about stability and 
proximity of school assignments—made a major change to its

21Wilmore was closed in 1977. (PX 158 at CM035831 (Schools 
Closings List).)



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Opinion o f  the District Court o f  September 9, 1999

student assignment policies with its magnet school initiative. 
See supra part I.B. This change eliminated some of the longest 
mandatory bus rides and promoted a more voluntary system of 
desegregation. (Tr. 4/26 at 25-27 (Test, of John Murphy).) The 
implementation of magnet schools also helped to restore and 
maintain racial balance in schools that were rapidly becoming 
imbalanced. (PX 69 at CM098438 (Mem. of CMS Assistant 
Superintendent); Tr. 4/26 at 41-43 (Test, of John Murphy); Tr. 
6/8 at 86-87 (Test, o f Eric Smith).) In particular, Ashley Park, 
J.T. Williams, Spaugh, Harding, andNorthwest eachhad trends 
of about four to six years o f black enrollment above the Court's 
standards in the late 1980s. (DX 3 (CMS Enrollment Rpts.).)
After these schools implemented magnet programs, racial 

balance improved immediately by as much as 30%,22 and each 
of these schools has remained racially balanced for the last six 
or seven years. (DX 3 (CMS Enrollment Rpts.).) At the same 
time, however, if  enough students left their assignment zones 
for magnets, it would affect the balance of the schools to which 
they were otherwise assigned.23 (Tr. 6/9 at 88-90 *250 (Test, of

22For example, Spaugh went from 72% black in 1991-92 to 42% 
black in 1992-93, (id), which was the year it implemented a math, science, 
and technology magnet program. (DX 5 Attach. B, Table 5 at 4 (Foster 
Rpt.).)

23In contrast to Judge McMillan's warning about potential re. 
segregation from "optional schools" that did not have adequate safeguards, 
such as transportation and notification, the effects seen here have not 
wreaked "havoc" on or resulted in "significant jeopardy" to the underlying 
desegregation plan. Swann, 379 F.Supp. at 1103-04. To the contrary, 
magnet schools have had an overall effect of countering resegregntive 
trends, and a higher percentage of black students would have attended 
predominately black schools had the magnet schools not existed. (PX 1 at 
10 (CMS Staff Discussion Paper); PX 6 at 9, 22 Fig. 1 (Tidwell Rpt.).) 
Furthermore, Dr. Foster testified that CMS "kept an eye on [magnet



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Opinion o f  the District Court o f  September 9, 1999

Dr. Gordon Foster).) In addition, the large influx of new 
students in the system, the changing demographics of the 
county, and the expanding geographic distribution of 
school-age children continued to affect the racial balance of 
assignment zones. (See PX 137 at 5-6 (Armor Rpt.); PX 138 
at 2- 13, Figs. 1-8 (Clark Rpt.).)

CMS and the Swann Plaintiffs assert that because there 
is more residential integration in the county than there was 
thirty years ago, see supra part I.B, it should be easier to 
racially balance more schools. This is an overly simplistic 
assumption. The beginning stages o f desegregation involved 
a very high level of artificial school integration. Not 
surprisingly, this is difficult to maintain over time. 
Furthermore, the gradual increase in residential integration did 
not occur in a finite setting. The population in Mecklenburg 
county nearly doubled in the last three decades. See supra part 
I.B. At the same time, the population has expanded 
geographically into areas that were completely undeveloped at 
the time of the dual system. See supra part I.B. The fact that 
there are more pockets o f integration has made it easier to have 
more stand alone schools in naturally integrated areas, but, 
looking at the system as a whole, there are still stark 
demographic contrasts between the inner city and the 
southernmost and northernmost areas of the county.

This argument is also premised on an erroneous legal 
assumption: that racial balance is to be pursued wherever and 
whenever it is possible.

transfers] so that there wouldn't be a run on the bank so to speak from any 
one school.” (Tr. 6/9 at 88-89 (Test, of Dr. Gordon Foster).) The problem, 
in his view, is that CMS did not have rigid controls in place. (Id., at 89.)



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Opinion o f  the District Court o f  September 9, 1999

Racial balance is not to be achieved for its own sake. 
It is to be pursued when racial imbalance has been 
caused by a constitutional violation. Once the racial 
imbalance due to the de jure  violation has been 
remedied, the school district is under no duty to remedy 
imbalance that is caused by demographic factors.

Freeman, 503 U.S. at 494,112 S. Ct. at 1447; see Swann, 402 
U.S. at 24, 91 S. Ct. at 1280 ("The constitutional command to 
desegregate schools does not mean that every school in every 
community must always reflect the racial composition of the 
school system as a whole."). There can be no doubt that 
demography and geography have played the largest role in 
causing imbalance. There has been no showing that CMS has 
deliberately attempted to fix or alter demographic patterns to 
affect the racial composition of the schools. In fact, the 
opposite is true; CMS has openly encouraged and endorsed 
policy initiatives that promote integrated communities. See 
infra part II.B.8.

d. The Concerns of M artin : School Siting and 
Transportation Burdens

CMS and the Swann Plaintiffs also argue that the 
system cannot be declared unitary because there has been more 
imbalance in recent years than at any time since the 
desegregation orders have been in place. They point to the fact 
that, in the 1979 Martin decision, Judge McMillan observed 
th a t" '[rjacially neutral attendance patterns' ha[d] never been 
achieved," even though, at that time, there were only a few 
schools with majority black populations. 475 F.Supp. at 1340. 
It is important to look at the Martin case in context. Martin 

was not a unitary status hearing; it was an action by parents to



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Opinion o f the District Court o f September 9, 1999

prevent CMS's reassignment of students three *251 years after 
Swann was closed. Given that the desegregation plan was still 
in its fledgling stages, the Court was inclined to keep the 
pressure on CMS. Id. Thus, the Court stated that continued 
supervision of student assignment was needed due to ongoing 
concerns related to the siting of schools and the 
disproportionate transportation burdens on black children.24 Id. 
at 1341. Twenty years after Martin, the Court must look at 
those student assignment concerns in a new light. "[W]ith the 
passage of time, the degree to which racial imbalances continue 
to represent vestiges of a constitutional violation may diminish, 
and the practicability and efficacy of various remedies can be 
evaluated with more precision." Freeman, 503 U.S. at 491-92, 
112 S.Ct. at 1446.

With regard to school siting concerns, the Supreme 
Court stated that "it is the responsibility of local authorities and 
district courts to see to it that future school construction and 
abandonment are not used and do not serve to perpetuate or 
re-establish the dual system." Swann, 402 U.S. at 21, 91 S.Ct. 
at 1279. The Supreme Court recognized that, after Brown, 
school authorities opposed to integration had closed schools in 
racially mixed areas and simultaneously built new schools in 
the outer suburban areas, far away from black populations. Id. 
at 21, 91 S.Ct. at 1278. Such policies, "when combined with 
'neighborhood zoning,' further lock the school system into the 
mold of separation of the races." Id. District courts, therefore, 
must ascertain whether there is a discriminatory pattern in 
school siting practices. Id. at 21, 91 S.Ct. at 1278-79. In

“ These concerns did not modify any of the outstanding Swann 
orders. In fact, Swann remained inactive during the Martin case. Also, the 
Court did not impose any new injunctive orders against CMS.



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Opinion o f  the District Court o f  September 9, 1999

accordance with this admonition, the 1974 CAG Plan, 
approved by Judge McMillan, contained the following 
provision: "School planning is not to be predicated on 
population growth trends alone; consideration is to be given to 
the influence new building can be toward simplification o f an 
integrated pupil assignment plan. Buildings are to be built 
where they can readily serve both races." Swann, 379 F.Supp. 
at 1107.

The evidence shows that the school siting decisions of 
CMS have not constituted an intentional or neglectful pattern 
of discrimination. Even though CMS has been forced to deal 
with an extraordinary amount of growth in the system, it has 
not based its school planning on growth trends alone. The 
school board and its staff routinely consider racial diversity in 
school siting decisions. (Tr. 4/27 at 9-11,15-16,152-53 (Test, 
of Jonathan Wells); Tr. 4/21 at 13 (Test, of Lindalyn 
Kakadelis).) They also consider a host o f other important 
criteria, such as the system's finances, land values, site 
availability, zoning laws, topography, site size, building 
capacity, adequacy of public utilities, utilization of adjacent or 
feeder schools, traffic patterns, and the time and distance to 
transport students. (See Tr. 4/27 at 9 (Test, o f Jonathan Wells); 
Tr. 5/25 at 5-7 (Test, of William Booker); Tr. 4/22 at 33-36, 
72-73 (Test, of Sharon Bynum); Tr. 4/21 at 12 (Test, of 
Lindalyn Kakadelis).)

In 1992, CMS voluntarily resolved to build schools only 
in areas where blacks constituted at least 10% of the 
population. (PX 23 (CMS Resolution adopted 2/11/92).) 
Given that, in 1990, almost half of the county was comprised 
of census tracts that were less than 10% black, (DX 12 Fig. 17 
(Lord Rpt.)), sustained adherence to this goal was improbable.



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Opinion o f  the District Court o f  September 9, 1999

In 1994, Assistant Superintendent Jeffrey Schiller found that, 
under the so-called "10% rule," it would be impossible for 
CMS to populate all schools with a 60% non-black-40% black 
ratio and still meet a 60-minute bus ride limit. (SX 122 at 5 
(CMS Board Minutes of 4/26/94).) Despite these obstacles, 
the board still was mindful of its racial balancing goals and, at 
one point, even debated whether to accept a donation of free 
land for school use because it was located in the predominately 
*252 white, southern area of the county.25 (SX 119 at 4-5 (CMS 
Board Minutes o f 5/28/96); Tr. 4/22 at 15-16 (Test, of 
Lindalyn Kakadelis).)

Since 1980, CMS has built twenty-seven new schools, 
completely renovated and "reopened" several old schools, and 
transformed some administration buildings into schools. (DX 
266 (CMS School Construction 1980 to Present); PX 186 
(CMS Physical Facilities Buildings and Additions); PX 187 
(CMS Mem. re: Schools Opened and Renovated/Reopened); 
Tr. 4/26 at 61 -63 (Test, o f John Murphy).) With the exception 
of some of the newest schools in the southernmost and 
northernmost areas of the county, these schools have been able 
to accommodate racially balanced student populations.

2SThe board ultimately accepted the gift by a vote of five to four. 
(SX 119 at 5 (CMS Board Minutes of 5/28/96).) The donated land is 
located in the Ballentine development in the southernmost part of the 
county, which is the region experiencing some of the most intense growth. 
(PX 138 at 6, Fig. 4 (Clark Rpt.).) Thousands of residential building 
permits had been issued in this area years before this land was donated. (PX 
3 at CM073068 (CMS Board Minutes of 1/12/88).) The nearest schools 
are already seriously overcrowded; McKee Elementary, for example, had 
to use twenty-four mobile classrooms last year. (DX 4 (CMS Capacity and 
Utilization Rpts. 1990-91 to 1998-99); Tr. 4/21 at 11-12 (Test, of Lindalyn 
Kakadelis).)



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Opinion o f  the District Court o f September 9, 1999

(Compare DX266 (CMS School Construction 1980 to Present) 
with D X 3 (CMS Enrollment Rpts.).)26

If CMS was engaged in a pattern of closing its racially 
mixed suburban schools and simultaneously building schools 
in the county's outer areas, it could be seen as an attempt to 
"lock the school system into the mold of separation o f the 
races."Swann 402 U.S. at 21, 91 S.Ct. at 1278. That has not 
been the case here. CMS has not closed its racially balanced 
schools in the middle suburban area. Quite the contrary, 
schools in the middle suburban areas have maintained a high 
degree o f racial balance, and the number of stand alone schools 
in naturally integrated areas continues to increase. (Tr. 6/22 at 
27 (Test, o f Arthur Griffin).) As of the 1998-99 school year, 
twenty-two stand alone schools have been created. (Id.)

26The majority of new schools built since 1980-fifteen out of 
twenty-seven-have had racially balanced student bodies every year since 
they have been open. (DX 3 (CMS Enrollment Rpts.).) Only two schools 
built since 1980-Morehead Elementary (one year old) and Winding Springs 
Elementary (four years old)-have even' had black student bodies above 
+15% from the district-wide average, though only by one to three 
percentage points. (Id.) Six new schools—Crown Point Elementary (six 
years old), Lebanon Road Elementary (nine years old), Mallard Creek 
Elementary (twelve years old), McAlpine Elementary (thirteen years old), 
McKee Elementary (ten years old), and Providence High (ten years 
old)~have gone in and out of balance since opening. (Id.) Only four new 
schools-Elizabeth Lane Elementary (three years old), Crestdale Middle 
(one year old), Davidson IB Middle (five years old), and South Charlotte 
Middle (seven years old)-have never had black populations above -15% 
from the district-wide average. (Id.) Of these four schools, the black 
population was 16% during Crestdale's first year and has ranged from 2-4% 
at Elizabeth Lane, 24-26% at Davidson IB, and 12-19% at South Charlotte. 
(Id.)



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Opinion o f  the District Court o f  September 9, 1999

Meanwhile, the siting of schools in high-growth outer areas has 
been a pressing necessity in recent years. (See PX 3 at 
CM073068-69 (CMS Board Minutes of 1/12/88).) The 
schools currently operating there are overcrowded and in short 
supply. (Tr. 4/21 at 11-12 (Test, of LindalynKakadelis).) This 
is a problem that CMS, not the Court, needs to solve. See 
Swann, 334 F.Supp. at 631 (App., Mem. of Oct. 5, 1970) 
("Overcrowding,... though undesirable, is not a constitutional 
problem; its solution is unrelated to desegregation; it is a 
matter for the School Board, not the court, to deal with.").

CMS self-critically points out that, since 1980, almost 
all newly constructed schools have been built in predominately 
white areas, while the newly constructed and renovated schools 
that have opened in predominately black areas have been 
limited to magnet schools. (DX 266 (CMS School 
Construction 1980 to Present).) If anything, this trend is a 
consequence of racial *253 balancing requirements. Given the 
high concentration of blacks in the inner city, it is 
impracticable, if  not impossible, to draw contiguous assignment 
zones in the inner city and racially balance them. (See PX 138 
Fig. 9 (Clark Rpt.).) The only way to meet the racial balancing 
requirements in such a situation would be to transport white 
students in from satellite zones, which is difficult given the 
rush hour traffic patterns. (Tr. 4/22 at 12-14 (Test, of Sharon 
Bynum).) Also, experience has shown that it is more difficult 
to populate inner city black schools with suburban white 
students than vice versa. (PX 138 at 5 (Clark Rpt.); DX 108 
at 6 (Stolee Plan).) While "white flight" cannot be used as an 
excuse for failing to desegregate a school system, a school 
board may consider this phenomenon in trying to improve 
racial balance under a desegregation order. Riddick, 784 F.2d 
at 528-29. As a result of these realities and the racial balance



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Opinion o f the District Court o f  September 9, 1999

requirements, CMS has had to create dozens of tiny satellite 
zones in the inner city to disperse blacks away, while 
simultaneously drawing white students inward with magnet 
schools. (DX 262-64 (CMS Satellite Zones).) Building more 
schools in the inner city would have exacerbated this racial 
balancing dilemma.

Finally, the Court notes that neither the Swann Plaintiffs 
nor anyone else ever called on the Court to intervene in these 
school siting decisions. These decisions were the subject o f 
public hearings, televised meetings, and ballot referenda. (See 
Tr. 4/27 at 109 (Test, of Jonathan Wells).) Moreover, the 
board members who were the most aggressive advocates of 
desegregation policies, including CMS Chairman Arthur 
Griffin, supported and voted for many of these initiatives. (See,
e.g., Tr. 6/21 at 101-03,116,138 (Test, of Arthur Griffin); Tr. 
5/17 at 37 (Test, of Pamela Mange); SX 119 at 4-5 (CMS 
Board Minutes of 5/28/96).) Thus, the Court does not find any 
continuing constitutional violations in the area of school siting.

As to the transportation burdens on black children, 
Judge McMillan addressed this problem in an Order dated June 
29,1971, stating: "The court is not prepared, however, on the 
present record at least, to find that [the disproportionate burden 
of busing on black children] is unconstitutional; it may be the 
only practicable present way to deal with the problem." Swann, 
328 F.Supp. at 1349. The Court then predicted: "It is more 
likely to be a practical problem which the school board will 
eventually solve under the political realities of school 
administration." Id. The Court reaffirmed this view in its Order 
dated October 21, 1971, stating: "Absolute equality in 
apportioning the burdens of attaining desegregation in 
compliance with the Constitution is impossible to achieve."



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Swann, 334 F.Supp. at 626. CMS represents that, during the 
most recent school year, 11,184 non-black students (42%) and 
15,533 black students (58%) were transported for desegregation 
purposes. (CMS's Post-Trial Br. at 16.) O f course, a greater 
proportion of white students are bused voluntarily because they 
attend magnet programs, whereas more black students are 
bused due to mandatory assignments to certain schools. (Tr. 
6/21 at 224-25 (Test, of Dr. David Armor).) On the other 
hand, students in magnet programs generally face much longer 
bus rides. (PX 43 (CMS Magnet Options 1998-99).) Given 
the realities o f the situation, as noted above, the current 
situation may be about the best CMS can do while still 
adhering to racial balance guidelines.

e. The Historical Status of Imbalanced Schools

A look at the historical status of imbalanced schools, in 
light of demographic trends, further confirms that current 
imbalances are not traceable in a proximate way to the dual 
system. All of the former-fife jure  black schools still in 
operation have maintained consistent levels of racial balance 
for at least twenty-two years since 1970 despite the fact that 
they are located in neighborhoods that remain predominately 
*254 black. (PX 137 at 11, Table 2 (Armor Rpt); PX 138 
Fig. 9 (Clark Rpt.).) Only four of these schools— Druid Hills, 
First Ward, Oaklawn, and West Charlotte—were imbalanced 
during the most recent school year. (DX 3 (CMS Enrollment 
Rpts.).) First Ward became imbalanced last year for the first 
time since court supervision began and was still only 
imbalanced by two percentage points. (Id.) West Charlotte, 
which has had a long-standing open enrollment program, did 
not become imbalanced until 1996. (Id.; PX 137 at 10 (Armor 
Rpt.).) Druid Hills and Oaklawn are currently imbalanced by



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five percentage points. (DX 3 (CMS Enrollment Rpts.).) 
These two schools were originally desegregated through 
pairing, but, in the early 1990s, as their pairing areas grew 
substantially blacker, they were depaired and magnetized. (DX 
5 at 11 (Foster Rpt.).) The magnet program at Oaklawn 
restored balance for about four years before going out of 
balance. (PX 137 at 9 (Armor Rpt.).) The magnet program at 
Druid Hills has not drawn enough white students to be within 
the +-15% variance; though, without the magnet program, it 
would be nearly all black. (Id)

The overwhelming majority of former-dejure white 
schools have remained racially balanced since 1970. (Id. at 
10-11, Table 2.) Ironically, o f the schools that have been 
racially imbalanced and predominately black for more than 
three years, see supra note 17, most were historically white 
schools. They include: Briarwood, Derita, Devonshire, 
Highland, Sedgefield, Shamrock Gardens, Thomasboro, 
Westerly Hills, Cochrane, Eastway, Wilson, and Garinger. 
Since court-ordered desegregation began, CMS has made 
periodic adjustments to the assignment zones of these schools 
to counteract demographic trends. (DX 5 at 13-23 (Foster 
Rpt.); PX 137 at 8-10 (Armor Rpt.).) All of these schools, 
with the exception of Briarwood, Devonshire, and Cochrane, 
were racially balanced for twenty years or more, and almost 
none of the imbalance in these schools occurred until the 
1990s. (PX 137 at 11, Table 2 (Armor Rpt.).)

Briarwood, Devonshire, and Cochrane are all located in 
the same proximity in Eastern Charlotte, just outside the inner 
city. (DX 5 Attach. E (Foster Rpt.).) This area has 
experienced a dramatic decrease in the white school-age 
population and a simultaneous increase in the black school-age



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population. (PX 137 at 9 (ArmorRpt.); PX 138 Table 6, Figs. 
2-9 (Clark Rpt.).) Briarwood, which has had sixteen years of 
racial balance, fell in and out of balance a couple times in the 
1980s and has been imbalanced since 1990. (PX 137 at 11 
(Armor Rpt.).) It is currently 84% black, the highest black 
student population the district has seen in thirty years, aside 
from Hidden Valley. (DX 3 (CMS Enrollment Rpts.).) 
Devonshire experienced the same trend as Briarwood, but it has 
reduced its previously high black population of 82% to 66% by 
recently adding a magnet program. (DX 5 at 16-17 (Foster 
Rpt.).) Cochrane, which is currently 75% black, is surrounded 
by other majority black middle schools, making it impracticable 
to change its boundaries. (PX 137 at 9 (Armor Rpt.).) In 1997, 
Cochrane adopted a communication arts magnet to help correct 
its growing imbalance. (Id.; DX 5 Attach. B, Table 5 at 5 
(Foster Rpt.).) So far, the reduction in the black population at 
Cochrane has been slight. (PX 137 at 9 (Armor Rpt.).) Part of 
the racial balancing difficulties appear to stem from the high 
number of whites in this area who attend private schools. (PX 
138 at 11-12 (Clark Rpt.).)

O f the schools that have been racially imbalanced and 
predominately white for more than three years, see supra note 
18, most are located in the northernmost and southernmost 
regions of the county where the census tracts are virtually 
all-white. (PX 137 at 5 (Armor Rpt.); PX 138 Figs. 8-9 (Clark 
Rpt.).) O f these outer area schools, Bain, Matthews, McAlpine, 
McKee, South Charlotte, and Providence are located in census 
tracts that, in the *255 most recent census of 1990, were 95% 
or more white. (PX 138 Figs. 8-9 (Clark Rpt.).) Clear Creek, 
Cornelius, Davidson Road, Huntersville, Lebanon Road, 
Mallard Creek, Alexander, and Davidson IB are located in 
outer area census tracts that, in 1990, were 75% to 95% white,



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and almost all of these schools closely bordered census tracts 
that were 95% or more white.27 (Id. ) Only two of the schools in 
the imbalanced-white category—Randolph and East 
Mecklenburg-are located in the middle suburban ring around 
the inner city, an area that is closer to more racially mixed 
neighborhoods but which remains predominately white for 
these two schools. (Id.; DX 5 Attach. E (Foster Rpt.).) 
Randolph had a long history of racial balance until the 1992-93 
school year. (DX 7 Ex. A-115 (Peterkin Rebuttal Rpt.).) It fell 
out of balance for six years but never had a black student body 
lower than 19%. (Id.) In the most recent school year, it had a 
46% black student population. (Id.) East Mecklenburg fell out 
o f balance for five non-consecutive years during the 1980s but 
never by more than two percentage points. (Id. at Ex. A -125.) 
It has remained racially balanced since the 1988-89 school year 
and, most recently, was 32% black. (Id.)

Given that the Court's earliest plans allowed some 
schools with black populations as low as 3 %—coupled with the 
fact that the Court never explicitly established a minimum 
percent black enrollment—the Court is hesitant to find that the 
small black populations at schools in the outermost regions are 
vestiges o f the dual system. Cf. Jacksonville NAACP, supra 
slip op. at 11 n. 10. Such racially identifiable schools are 
inevitable due to "the practicalities of the situation." Davis v. 
Board ofSch. Comm'rs, 402 U.S. 33,37,91 S.Ct. 1289,1292,28

27Long Creek is the only outer area school in the imbalanced- white 
category that is located in a census tract that was 50% to 75% white in 
1990; however, the school closely borders a large census tract that was 
75% to 95% white. Long Creek did not fall out of balance until the 1991- 
92 school year and was back in balance with a 38% black population in the 
most recent school year. (Id.)



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L.Ed.2d 577 (1971); Swann, 402 U.S. at 25-26, 91 S.Ct. at 
1280-81. While many of these outer area schools maintained 
black enrollments at or near 20% in prior years, (DX 3 (CMS 
Enrollment Rpts.)), the white population in these areas has 
continued to grow. (PX 138 Fig. 8 (Clark Rpt.).) 
Consequently, it has become impracticable to achieve higher 
racial balance in the absence of large-scale mandatory busing 
efforts, which would only impose additional burdens on black 
students. (PX 137 at 5, 8 (Armor Rpt.); PX 138 at 12-13 
(Clark Rpt.).)

f. Possibilities of Further Racial Balance

CMS and the Swann Plaintiffs assert that the system can 
improve its racial balance by making further adjustments in 
assignment zones, creating new satellite zones, and so on. Such 
measures are not required. Swann, 402 U.S. at 31-32,91 S.Ct. 
at 1283-84 ("Neither school authorities nor district courts are 
constitutionally required to make year-by-year adjustments of 
the racial composition of student bodies once the affirmative 
duty to desegregate has been accomplished and racial 
discrimination through official action is eliminated from the 
system."); see also Freeman, 503 U.S. at 493,112 S.Ct. at 1447 
(" [The Constitution does not] require [ ] 'awkard,' 'inconvenient,' 
and 'evenbizarre' measures to achieve racial balance in student 
assignments in the late phases of carrying out a decree."); 
Morgan v. Nucci 831 F.2d 313, 325 (1st Cir.1987) ("[E]ven if 
some upgrading of attendance patterns were reasonably 
possible, such fine tuning would not warrant the court's 
continued indefinite involvement.").

Despite having no obligation to do so, CMS, for years, 
has attempted to fix growing imbalances that were attributable



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Opinion o f  the District Court o f  September 9, 1999

not to the prior de jure  system but to independent demographic 
forces and private choice. While the Court's original plan 
created nine noncontiguous satellite zones, *256 Swann, 402 
U.S. at 9, 91 S.Ct. at 1273, today, there are sixty-nine satellite 
zones. (DX 262-64 (CMS Satellite Zones).) During the last 
decade, the continued expansion of desegregation strategies has 
had diminishing returns in achieving racial balance, causing 
CMS and the Swann Plaintiffs to assert that the system needs 
to remedy these mixed results. Yet, the Court's authority is 
limited to remedying vestiges of segregation; it has no 
authority to order remedial action for the shortcomings of 
nonmandatory desegregation practices. Cf. United States v. 
City o f  Yonkers, 181 F.3d 301, 325 (2d Cir.1999) (Sack, J., 
concurring in part and dissenting in part) ("Integration is not 
necessarily a vestige of segregation.").

A complete overhaul of the student assignment plan, as 
alternatively suggested by CMS, is likewise unnecessary. As 
an eleventh hour strategy, CMS presented a proposed student 
assignment plan just one week before trial. (See DX I (CMS's 
Proposed Remedial Plan) (proffered).)28 This plan, which uses

28Court excluded the plan on the grounds that the initial phase of 
the trial involved whether CMS had complied with the Swann orders up to 
the time of the present lawsuit. (Order of 4/14/99.) The Court said it 
would consider the plan only if it found additional remedial action was 
needed. (Id.) The Court was especially concerned that the plan-which is 
purely speculative and based on numerous contingencies-was introduced 
after the deadlines for fact discovery and expert witness discovery had 
expired, a violation of the pretrial order. (Id)



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the technique known as "controlled choice,"29 was developed 
only in response to the Capacchione litigation. CMS and the 
Swann Plaintiffs insist that the Court must entertain the 
proposed plan before deciding unitary status. They argue that 
a unitary status determination may not focus solely on the 
existing court-ordered desegregation plan but also must inquire 
into whether there are other practicable means available to 
achieve further racial balance. The Court disagrees.

"A court should not remain involved in the assignment 
process indefinitely merely because some farther degree of 
compliance with assignment standards is conceivable." 
Morgan, 831 F,2d at 324; see Calhoun v. Cook, 525 F.2d 
1203, 1203 (5th Cir.1975) ("It would blink reality and 
authority, however, to hold the Atlanta School System to be 
nonunitary because further racial integration is theoretically 
possible and we expressly decline to do so." (citation omitted)); 
c f  James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 
542, 111 S.Ct. 2439, 2447, 115 L.Ed.2d481 (1991) ( "Public 
policy dictates that there be an end to litigation." (citations 
omitted)). It would greatly confound discovery and trial 
proceedings in a unitary status case if, at the last minute, the 
party seeking to prolong court supervision simply could offer 
up the latest 'soup du jour' in desegregation policy as an untried 
method. Here, CMS already has implemented numerous 
techniques under the guidelines of Swann including a feeder

2Tinder such a plan, the school system would be divided up into 
large racially diverse geographic zones, and students could apply to any 
school in their designated zone, (Tr. 6/9 at 171 (Test, of Dr. Gordon Foster) 
(proffered).) CMS would give preferences to those applicants who live in 
walking distance of the school and those with siblings in the school. (Id.) 
The remaining seats would be filled based on racial preferences with the 
goal of achieving a certain racial mix at each school. (Id. at 174.)



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Opinion o f  the District Court o f  September 9, 1999

plan, pairing and grouping, satellite zones, M-to-M transfers, 
stand alone schools, mid-point schools, and magnet schools. 
There always will be new, unused, and hypothetical education 
techniques and policies, just as there always will be new 
criticisms of the old policies. After all, the history of public 
education in America is a history o f continual reform.

The Court declined to consider CMS's "litigation 
strategy" plan and therefore makes no finding as to whether it 
would achieve its stated goal of further racial balance. Rather, 
the Court observes that controlled choice is a technique that 
was *257 never mandated by this Court, was not contemplated 
under the guidelines enunciated in Swann, 402 U.S. at 22-32,91 
S.Ct. at 1279-84, and was not even presented to the Court until 
the eve o f the most recent trial. C f Jacksonville NAACP, 
supra, slip op. at 118 -19 (rej ecting the argument that the board 
must "adopt measures [namely, controlled choice] in addition 
to, or substantially different from, those the parties agreed to, 
and which the Court ratified").

As such, consideration of the plan, at this late date, 
would not serve the broader objective of ensuring that court 
supervision not extend any longer than is strictly necessary. 
Jenkins III, 515 U.S. at 99, 115 S.Ct. at 2054; Freeman, 503 
U.S. at 489-90, 112 S.Ct. at 1445. Furthermore, on its face, 
the plan's cardinal fixation on racial preferences raises 
significant equal protection implications. As discussed above, 
there are limitations on using race, even in the desegregation 
context. See supra part II. A. A court would be remiss if-thirty 
years down the road, when any causal connection to the dual 
system necessarily has dissipated—it mandated compliance with 
a plan that was even more race conscious than the original plan. 
As stated in Freeman, "[a] remedy is justifiable only insofar as



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Opinion o f  the District Court o f  September 9, 1999

it advances the ultimate objective o f alleviating the initial 
constitutional violation." 503 U.S. at 489, 112 S.Ct. at 1445; 
see Swann, 402 U.S. at 16, 91 S.Ct. at 1276 (”[T]he nature of 
the violation determines the scope of the remedy."). Here, the 
complete overhaul of the system would exceed the proper 
remedial scope.

The Court finds that CMS has complied fully and 
satisfactorily with the student assignment aspects of the 
court-ordered desegregation plan. The plan has achieved its 
objective o f creating a unitary7 school system by eliminating the 
past vestiges of discrimination to the extent practicable.

2 . F a cu lty  A ssign m en t

In the Swann Order of April 23, 1969, the Court 
examined the post-Brown faculty desegregation efforts of 
CMS, finding: "The Board makes no sustained effort to 
desegregate faculties." 300 F.Supp. at 1370. CMS's "passive 
selection policy," whereby the principal of each school selected 
the teachers for that school, had produced the following results:

O f the thirteen all black schools in the system serving 
8,840 students, only four have any white teachers. 
Those four have ten white teachers and 161 black 
teachers for 3,662 students. Few predominantly black 
schools have any substantial number of white teachers, 
except a few schools which serve areas rapidly turning 
from white to black. Eight other schools 99% or more 
black had only six white teachers among them for 5,246 
black and 24 white pupils. Second Ward and West 
Charlotte High Schools, with 2,700 black students and



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Opinion o f  the District Court o f  September 9, 1999

three white students, have 131 black teachers and only 
nine white teachers.

All o f the white elementary schools have at least one 
and in a few cases as many as three or four black 
teachers. The proportions o f black teachers in the 
junior and senior high schools run slightly higher. The 
system has not operated, however, to produce any 
substantial teaching of black students by white teachers.

Id. At the time, the faculty of CMS was about 26% 
black-roughly 900 out of 3,500 teachers. Id. Having found 
that the faculties remained virtually all- white or all-black, the 
Court directed the school board to submit a plan for the active 
and complete desegregation of teachers. Id. at 1373.

By August 15, 1969, the Court observed: "In the 
formerly all-black faculties the Board has dramatically 
exceeded its goal It is assumed by the court that this process 
of faculty desegregation will continue and that the goal for 
1970-71 will be that faculties in all schools will approach a 
ratio under which all schools in the system will have 
approximately the same proportion o f black and white 
teachers." *25SSwann, 306 F.Supp. at 1295. On November 
7, 1969, the Court again commented that "[f] acuity 
desegregation ha[d] significantly and commendably improved" 
but noted that "only six 'black' schools and one 'black' 
kindergarten ha[d] predominantly white faculties; and 98 out 
of the 106 schools and kindergartens in the system [were] 
readily and obviously identifiable by the race o f the heavy 
majority of their faculties." Swann, 306 F.Supp. at 1302. In 
a Supplementary Opinion dated December 1, 1969, the Court 
stated that ”[t]he defendants have admitted their duty to



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Opinion o f the District Court o f  September 9, 1999

desegregate the schools; considerable progress has been made 
toward desegregation of faculties." Id. at 1306. Still, 
"[n]ine-tenths of the faculties [we]re still obviously 'black' or 
'white.'" Id. at 1308. The Court directed CMS to folly 
desegregate faculties by the beginning of the upcoming 
1970-71 school year. Id. at 1313.

When the Court mandated a desegregation plan on 
February 5, 1970, it left the board-proposed faculty plan 
essentially intact, ordering: "That desegregation o f faculty be 
accomplished, as previously ordered, by assigning faculty 
(specialized faculty positions excepted) so that the ratio of 
black and white faculty members of each school shall be 
approximately the same as the ratio of black and white faculty 
members throughout the system." Swann, 311 F.Supp. at 268.30 
The Court also directed CMS to implement a continuing 
program to assign teachers "in a condition o f desegregation." 
Id. at 269. By August 3, 1970, the Court acknowledged that 
[f] acuities have been assigned for all schools according to the 
February 5, 1970 order, so that when schools open in 
September all faculties will have about 75% White teachers and 
about 25% Black teachers. Swann. 318 F.Supp. at 790. 
Dioring the remainder of Swann, the Court entered no fiorther 
directives or findings regarding faculty assignment other than 
to restate the provisions of the Order o f February 5,1970. See 
Swann, 362 F.Supp. at 1225; Swann, 334 F.Supp. at 631.

30The Court also ordered: "That teachers be assigned so that the 
competence and experience of teachers in formerly or recently black 
schools will not be inferior to those in the formerly or recently white 
schools in the system." Id. Compliance with this provision is analyzed 
below as an ancillary quality of education issue. See supra part II.B.7.a.



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CMS maintained a centrally-controlled faculty 
assignment process until 1992, when it adopted a more 
site-based management system in which principals actively 
recruited teachers and were then held accountable for the 
results they achieved. (Tr. 5/28 at 25-26 (Test, of Gwendolyn 
Bradford); Tr. 4/26 at 118- 19 (Test, of John Murphy); Tr. 
4/28 at 124-28 (Test, o f Dan Saltrick).) Then-Superintendent 
John Murphy instituted this change as a way to improve the 
quality and competence o f faculty and to achieve his goal of 
higher test scores for students. (Tr. 4/26 at 118-19 (Test, of 
John Murphy).) Current- Superintendent Eric Smith stated 
that this policy basically has continued, with CMS assisting in 
the recruitment of teachers to the district. (Tr. 6/8 at 172- 73 
(Test, of Eric Smith).)

In addition, CMS recently implemented regulations that 
restrict the freedom of teachers to transfer schools if the 
transfer would affect the racial balance o f the school. (Tr. 5/28 
at 34,47 (Test, of Gwendolyn Bradford).) Of course, CMS runs 
the risk o f losing significant numbers o f teachers if  its faculty 
assignment policies become too restrictive. (Id. at 47-49.) 
Attracting good teachers often means giving them preferences 
in where they work, and teachers usually want to work near 
their homes. (Tr. 5/19 at 116-18, 121-22 (Test, of Calvin 
Wallace); Tr. 4/28 at 124 (Test, of Dan Saltrick).) In this way, 
residential demographics pose a practical obstacle to achieving 
and maintaining an ideal amount o f racial balance because 
CMS cannot control where teachers live. (Tr. 5/19 at 
116-18,121-22 (Test, o f Calvin Wallace); *259 Tr. 5/28 at 
59-62 (Test, o f Gwendolyn Bradford).)

Another practical problem faced by the district is the 
fact that it must constantly hire thousands of new teachers in



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Opinion o f  the District Court o f  September 9, 1999

the midst of a national teacher shortage and a high turnover rate 
for teachers in economically-impoverished areas. (Tr. 5/27 at 
45-47 (Test, of Dr. William Trent).) Gwendolyn Bradford, 
Executive Director of Human Resources for CMS, testified that 
the shortage of teachers is especially pronounced with regard to 
black teachers, particularly in this region of the country. (Tr. 
5/28 at 45 (Test, of Gwendolyn Bradford).) See also Coalition 
to Save Our Children v. State Bd. ofEduc. 90 F.3d 752, 767 
(3d Cir.1996) (observing that the "critical shortage o f black 
teachers in public schools" is "a manifestation of an unfortunate 
contemporary national trend"). The proportion of black faculty 
in CMS rose to about 30% in 1980 but has fallen to about 20% 
in the most recent year. (SX 3 at 6 (Smith Rpt.).) In response, 
CMS has instituted hiring policies aimed at drawing black 
teachers to the district. (Tr. 5/28 at 33-34, 79-80 (Test, of 
Gwendolyn Bradford).) Apparently, this has had some success 
because Bradford testified that CMS currently exceeds the state 
and national average for the number of minority teachers 
employed. {Id. at at 46.)

In assessing CMS's compliance with the faculty 
assignment order, the Court must be sensitive to these practical 
problems but also must scrutinize the level of racial balance in 
light of CMS's departure from the central monitoring o f faculty 
assignment. The Court first notes that the faculty assignment 
order was never made any more numerically specific than 
requiring the racial composition of faculty at each school to 
reflect the district-wide average. The Court will examine 
CMS's racial balance in faculty using a +-15% variance, which 
is a commonly accepted standard. See Coalition to Save Our 
Children, 90 F.3d at 766 n. 21 ("Courts addressing unitary 
status motions typically have considered faculties within +-15 
percentage point o f the district-wide minority composition to



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Opinion o f the District Court o f  September 9, 1999

be racially balanced). Indeed, recognizing the difficulty of 
achieving perfect balance, particularly with small elementary 
school faculties, some courts have applied a standard of +- 20 
percentage points." (citing Flax v. Potts, 725 F.Supp. 322, 
326-29 (N.D.Tex.1989), affd, 915 F.2d 155 (5th Cir.199)); 
Pitts v. Freeman, 887 F.2d 1438, 1447 (11th Cir.1989) 
affirm ing  a +- variance for faculty as within the district court's 
discretion).

During the trial, the bulk of the evidence focused on the 
most recent school years given that CMS and the Swann 
Plaintiffs asserted that the worst imbalances in faculties 
occurred in the 1990s when the system instituted site- based 
management. The calculations made by the parties’ experts 
varied due to the use o f differing standards for compliance, the 
rounding off to different decimals, and the counting of "special 
school" faculties, which are inapplicable to the analysis.31 The 
Court relies on the school-by- school faculty composition data 
presented in the report of Dr. William Trent, a CMS expert 
witness. (DX 10 App. C, Ex. 5, Tables 24-26 (Trent Rpt.).) 
Dr. Trent's report provided the racial percentages for faculty for 
school years 1995-96,1996-97, and 1997-98. (Id.)

31The Court does not include "special schools" in calculating 
faculty imbalance for the same reason that those schools are excluded from 
the student assignment analysis. See supra part I.B.l.b. Plus, "specialized 
faculty" are exempt from racial balancing requirements. Swann, 311 
F.Supp. at 268. A certain background would be needed for faculty that deal 
with students who are mentally or physically disabled or pregnant or who 
have severe disciplinary problems. It would be unfair to enforce a 
prescribed racial balance in such schools. Also, it is somewhat misleading 
to count them as imbalanced schools because the faculties for these 
programs tend to be small, sometimes as few as four teachers. {See Tr. 5/19 
at 55 (Test, of Calvin Wallace).)



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The evidence from these recent years reveals a stark 
contrast to the Court's findings in 1969. No school has had an 
all-black faculty. (Id) Only one school, Amay James 
Elementary, ever had an all-white *260 faculty. (Id.) During 
the 1995-96 school year, Amay James—interestingly, a 
former-Je jure  black school, located in the inner city-had no 
blacks among its fifteen teachers. (Id.) This may have been due 
to the fact that the school had recently started a Montessori 
magnet program, which uses certified Montessori teachers. 
(DX 5 Attach. B, Table 5 at 3 (Foster R pt); PX 212 (CMS 
Facts & Faces).) Notably, the Court's order on faculty 
assignment excludes "specialized faculty positions," Swann, 
311 F.Supp. at 268, and certified Montessori teachers are 
presumably included in this exemption.

Similarly, there have been no conspicuous cases of 
predominately black faculties. None of the 122 schools that 
CMS operated during the 1997-98 school year had majority 
black faculties. (Id. Ex. 5, Table 26.) As for the previous 
years, only two schools had black faculties exceeding 50%: 
Lincoln Heights Elementary was 59% black in 1995-96 and 
Cochrane Middle was 54% black in 1996-97. (Id. Ex. 5, Tables 
24-26.)

Applying the +- 15% standard, well over 90% of the 
system's schools were within this variance even during the 
school years with the "worst" racial imbalance. During the 
1997-98 school year, only ten schools exceeded the +- 15% 
variance: Briarwood Elementary (5.5% above), Druid Hills 
Elementary (7.4% above), First Ward Elementary (9.8% 
above), Oakdale Elementary (0.7% above), Westerly Hills 
Elementary (2.9% above), Albemarle Road Middle (2.5% 
above), Cochrane (8.3% above), Northeast Middle (2.1%



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Opinion o f  the District Court o f  September 9, 1999

above), Wilson Middle (3.2% above), and Garinger High (1.1 % 
above). (PX 137 (Armor Rebuttal Rpt.); c f  DX 10 App. C, 
Ex. 5, Table 26 (Trent Rpt.).) The previous school year saw 
only nine schools exceeding the +-15%  variance: Briarwood 
(12.5% above), Lincoln Heights (6.1% above), Tryon Hills 
Elementary (6.1% above), Westerly Hills (0.4% above), 
Cochrane (12.5% above), Ranson Middle (1.2% above), South 
Charlotte Middle (4.8% below), Wilson (4.2% above), and 
Garinger (3.3% above). (PX 137 (Armor Rebuttal Rpt.); c f  
DX 10 App. C, Ex. 5, Table 25 (Trent Rpt.).)

CMS and the Swann Plaintiffs claim that site-based 
management led to a total disregard of the faculty assignment 
order, and they point to a 1992 memorandum written by Dr. 
Stolce to then-superintendent Murphy, cautioning that the 
faculties of fifteen schools were racially identifiable using a +- 
10% variance from the district-wide ratio. (SX 56 (Mem. from 
Stolee to Murphy of 6/11/92); see also DX 71 (Mem. from 
Stolee to Murphy of 4/13/92).) It is unclear whether 
Superintendent Murphy ignored this warning. (Tr. 4/26 at 164- 
68 (Test, of John Murphy).) During the 1997-98 school year, 
only three of these fifteen schools remained outside a +- 10% 
variance: Eastover Elementary (1.9% below), Huntersville 
Elementary (1.7% above), and Albemarle Road Middle (7.5% 
above). (See DX 10 App. C, Ex. 5, Table 26 (Trent Rpt.); PX 
13 7 (Armor Rebuttal Rpt.).) O f these, only Albemarle Road 
was outside the +-15%  variance. Thus, either something was 
done about the imbalances in the fifteen schools or the problem 
corrected itself.

CMS undoubtedly has achieved the type of balance one 
would find in a desegregated system. For example, the Third 
Circuit affirmed a unitary status finding where a school district



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Opinion o f  the District Court o f  September 9, 1999

had satisfied a +-10 standard in 80% of its schools for fifteen 
years. Coalition to Save Our Children, 90 F.3d at 766- 67 n. 
21. CMS has matched this mark even according to the analysis 
of the district's own expert. Dr. Peterkin found that, from 1977 
to 1997, 75% to 95% of the district's schools had racially 
balanced faculties in any given year based on a restrictive +- 
10% variance; moreover, this analysis inflated the level of 
racial imbalance by including the faculties o f special schools. 
(DX 6 Ex. 13d (Peterkin Rpt.).) See also Flax, 915 F.2d at 163 
(upholding a unitary status declaration as to faculty even 
though six schools lay more *261 than twenty percentage 
points outside the system-wide ratio).

In sum, CMS complied with the Court's faculty 
assignment provisions by reassigning faculty in large numbers 
early on and by maintaining a high degree of racial balance for 
many years thereafter. The Court has not had to revisit the 
issue of faculty assignment since 1970. Given CMS's trend of 
compliance, the Court likely would have granted unitary status 
as to faculty when site- based management was instituted in 
1992. The remaining imbalance is too small to be considered 
indicative o f a school system that is segregating its faculty. 
Plus, the deficiencies are generally attributable to factors 
outside CMS's control, such as the shortage of teachers and the 
impact o f residential demographics on schools' faculty 
compositions. The Court therefore concludes that CMS has 
fulfilled the Court's mandate by desegregating its faculty to the 
extent practicable.



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Opinion o f the District Court o f  September 9, 1999

3. Facilities and Resources32

In contrast to student assignment and, to some extent, 
faculty assignment, where often a longer remedial period is 
expected, the remaining Green factors are amenable to more 
immediate compliance. As stated by the Supreme Court in 
Swann:

When a system has been dual ..., the first remedial 
responsibility of school authorities is to eliminate 
invidious racial distinctions. With respect to such 
matters as transportation, supporting personnel, and 
extracurricular activities, no more than this may be 
necessary. Similar corrective action must be taken with 
regard to the maintenance of buildings and the 
distribution of equipment.

402 U.S. at 18, 91 S.Ct. at 1277. Thus, disparities in these 
areas are not likely to be grounds for prolonged judicial 
supervision. See, e.g., Henry v. Clarksdale Municipal Separate 
School Dist., 433 F.2d 387, 388 n. 3 (5th Cir.1970) (finding 
immediate compliance with a desegregation order as to 
transportation, faculty, staff, extra-curricular activities, and 
facilities).

In the initial stage of the Swann case, the Court 
examined the various aspects of school operations to determine

32The Court's analysis of the facilities Green factor does not 
encompass the issue of school siting, which is more appropriately addressed 
as an aspect of student assignment. See supra part II.B.l; see also Martin, 
475 F.Supp. at 1328 (treating school siting as an aspect of pupil 
assignment).



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Opinion o f  the District Court o f  September 9, 1999

whether vestiges of the dual system remained. In its Order o f 
April 23, 1969, the Court concluded the following:

No racial discrimination or inequality is found in the 
following disputed matters:

The quality of the school buildings and equipment. 
The evidence showed the per pupil value of the land 
and buildings and equipment of the various schools. 
Average value of these items per pupil for elementary 
schools was $861; for high schools $1,229; and for 
senior high schools $1,567. Schools described by 
witnesses as 'white' ranged well up and down on both 
sides of that average figure and schools described by 
witnesses as 'black' showed a similar variation. 
Several of the oldest and most respected 'white' 
elementary schools in the county (Sharon Road and 
Steele Creek, for example) have very low per pupil 
facilities values. One of the newest but still all black 
high schools (West Charlotte) has one o f the highest per 
pupil facilities values. The highest priced school 
(Olympic High) is totally desegregated (522 white and 
259 black students). No racial discrimination in 
spending money or providing facilities appears.

Swann, 300 F.Supp. at 1366.

The Court reiterated this finding in its Order dated 
August 15, 1969: "The defendants contended and the court 
found in its April 23, 1969 order that facilities and teachers in 
the various black schools were *262 not measurably inferior to 
those in the various white schools. It is too late now to expect 
the court to proceed upon an opposite assumption." Swann,



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Opinion o f  the District Court o f  September 9, 1999

306 F.Supp. at 1298. In its Order dated October 21,1971, the 
Court again stated: "[T]he formerly black schools are not 
shown nor suggested to be inferior in faculty, plant, equipment 
or program." Swann, 334 F.Supp. at 625. In 1975, just prior 
to the final "Swann Song" order, the Court awarded attorneys' 
fees to the Swann Plaintiffs, observing that they were the 
prevailing party "jejxcept for the refusal of the court to find in 
the plaintiffs' favor ... regarding adequacy o f physical plants 
and equipm ent and teacher quality." Swann v. 
Charlotte-Mecklenburg Bd. o f  Educ., 66 F.R.D. 483, 484 
(W.D.N.C.1975).

These findings establish that there were no vestiges of 
discrimination in facilities and resources at the initial stages of 
the Swann case and at the close of the case in 1975. Moreover, 
at no time since the Swann case was filed has the Court ever 
imposed any remedial measures addressing discrimination in 
the quality o f facilities. Despite these findings, CMS and the 
Swann Plaintiffs assert that there are current disparities in 
facilities that require remedial action. They ask the Court to 
presume that such disparities are vestiges o f segregation that 
are causally linked to the dual system. The Plaintiff- 
Intervenors counter that Judge McMillan's findings on facilities 
constitute collateral estoppel and law of the case as to that 
Green factor, thereby shifting the burden to CMS and the 
Swann Plaintiffs to show discriminatory intent.

"The principles of collateral estoppel or issue preclusion 
are applicable to school desegregation cases." Riddick, 784 
F.2d at 531 (citations omitted). Thus, where a court previously 
granted unitary status, there can be no automatic presumption 
that racial disparitiesare causally linked to the dual system, and 
the burden of proof shifts back to the plaintiffs alleging



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Opinion o f the District Court o f  September 9, 1999

discrimination. Id. at 534. Here, the Court has never granted 
unitary status to CMS, nor has it partially withdrawn 
supervision as to facilities or any other Green factor. Then 
again, it was not clear that a court could incrementally 
■withdraw its supervision in a desegregation case until the 
Freeman decision in 1992. 503 U.S. at 490,112 S.Ct. at 1445.

Justice Souter's concurrence in Freeman suggests that, 
prior to the total dissolution of a desegregation order, a court 
may reassert control over a relinquished area without a new 
showing of discriminatory intent. Id. at 509,112 S.Ct. at 1455 
(Souter, J., concurring). Of course, the possible reassertion of 
control addressed by Justice Souter involved an aspect of 
school operations where discrimination was once found and 
subsequently remedied. Id. In the present case, the Court cannot 
"reassert" control over facilities because it never assumed 
control. Indeed, the Court refused to remedy any disparities in 
facilities because, after the issue was thoroughly litigated, it 
found no discrimination. Certainly, there was a reason for the 
Court to make such findings.

Because desegregation remedies must be premised upon 
constitutional violations, Swann, 402 U.S. at 22-23,91 S.Ct. at 
1279, "plaintiffs ... must prove intent and causation and not 
merely the existence of racial disparity." Freeman, 503 U.S. at 
506,112 S.Ct. at 1454 (Scalia, J., concurring) (citing Bazemore 
v. Friday, 478 U.S. 385,407-09, 106 S.Ct. 3000, 3012-13, 92 
L.Ed.2d 315 (1986) (White, J., concurring); Washington v. 
Davis, 426 U.S. 229,245,96 S.Ct. 2040,2050,48 L.Ed.2d 597 
(1976)). Of course, at the outset o f a desegregation case, a 
finding of intentional discrimination in one area of school 
operations warrants an inference that segregation in other parts 
of the system was also purposeful absent sufficient evidence to



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Opinion o f  the District Court o f  September 9, 1999

the contrary. Dayton Bd. ofEduc. v. Brinkman, 443 U.S. 526, 
537,99 S.Ct. 2971,2978-79, 61 L.Ed.2d 720 (1979); Keyes v. 
School Dist. No. 1, 413 U.S. 189, 206-14, 93 S.Ct. 2686, 
2696-700, 37 L.Ed.2d 548 (1973). The express *263 findings 
of the Court in Swann show that CMS overcame this inference 
as to certain areas of school operations, including the quality of 
facilities. 300 F.Supp. at 1366-67. Thus, it would defy logic 
to place now the burden of proof on the Plaintiff-Intervenors, 
requiring them to prove that vestiges of discrimination in 
facilities have been remedied, when the Court originally found 
no vestiges to exist. See City o f  Yonkers, 181 F.3d 301, 305 
n.*I ("[I]n the absence of findings that there are vestiges ....the 
burden is properly placed on the parties that desire to prolong 
judicial oversight.").

In any event, the Court heard a great deal of testimony 
on the alleged racial disparities in facilities. Many witnesses, 
including school board members, testified that there are 
disparities in the quality of facilities throughout the system. 
(See, e.g., Tr. 4/20 at 189) (Test, o f John Lassiter) (”[A]U 
schools are not equal."); Tr. 4/21 at 126 (Test, o f Lindalyn 
Kakadelis) ("[Facilities need to be upgraded."); (Tr. 4/22 at 
108 (Test, o f Velma Leake) ("[Facilities were not adequate 
across the district.").) This is not surprising in a system with 
135 schools. Witnesses debated whether such disparities 
appear along racial lines, however. For the most part, 
witnesses only offered anecdotal evidence, which rarely, if 
ever, suffices to show a systematic pattern of discrimination 
justifying remedial action. Wessmannv. Gittens, 160F.3d790, 
805-06 (1st Cir.1998) (citing Coral Const. Co. v. King County, 
941 F.2d 910, 919 (9th Cir. 1991)). Leaving aside the 
reliability problems of anecdotal evidence, the Court could not 
draw any consistent conclusions from such testimony.



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Opinion o f  the District Court o f  September 9, 1999

For example, Jane McIntyre, a school board member 
from 1987 to 1995, complained of disparities in facilities she 
observed in the mid-1970s when her daughters were bused to 
First Ward Elementary, which was located in the middle o f an 
inner city public housing area. (Tr. 5/13 at 126-32 (Test, of 
Jane McIntyre).) First Ward, as she described it, had "trash 
everywhere" and was surrounded by a chain-link fence with 
"barbed wire." (Id. at 128-30.) Compared to the "very well 
maintained" Landsdowne Elementary, the predominately white 
school where her daughters started their education, the 
conditions at First Ward were "unnerving." (Id. at 126-27, 
129.) Since that time, though, CMS has spent a great deal of 
money improving First Ward—$2,910,308 in 1987 and a 
proposed $1,848,000 from 1997 bond money—to the point 
where, today, it is arguably a more attractive school than 
Landsdowne. (Id. at 176-82, 184-85.)

The problem of comparing just a handful of schools was 
similarly illustrated w ith Susan Purser, Associate 
Superintendent of Educational Services for CMS. Purser 
testified that she visited a variety of schools when she first 
came to CMS in the 1996-97 school year, and, right away, she 
noticed the difference between Elizabeth Lane Elementary, a 
predominately white school that was "very adequately 
equipped," and Shamrock Gardens Elementary, a 
predominately black school with "dingy" classrooms. (Tr. 6/14 
at 81-82 (Test, of Susan Purser).) On cross-examination, 
counsel presented Purser with a recent inventory survey 
conducted by CMS to determine schools' baseline needs. Id. at 
112-31. In comparing Hidden Valley Elementary (95% black) 
with McAlpine Elementary (4% black), McAlpine appeared to 
have much greater needs than Hidden Valley. Id. Thus,



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Opinion o f the District Court o f  September 9, 1999

different generalizations can be made depending on which two 
schools one picks to compare.

Likewise, Annelle Houk, former chair of the League of 
Women Voters education committee, recited a number of 
problems she observed in predominately black schools, 
recounting that, in one school, the PTA had to raise money just 
to buy toilet paper. (Tr. 5/14 at 11-12 (Test, of Annelle Houk).) 
On cross- examination, counsel questioned Houk about a 1992 
survey conducted by the League of Women Voters *264 that 
compiled the "urgent basic needs" of various schools in the 
district. (Id. at 64.) Most of the schools listed in the survey 
with urgent needs were racially balanced, while others were 
identifiably white or black. (Id. at 64-85.) In fact, the survey 
revealed that the school she said was in need of toilet paper was 
Marie G. Davis Middle School, a racially balanced, majority 
white school. (Id. at 78-80.)

Expert witnesses also offered testimony on the quality 
of facilities. Dr. Armor testified for the Plaintiff-Intervenors 
that there were no racial disparities in facilities. (Tr. 4/29 at 
113 (Test, of Dr. David Armor).) While the Court ultimately 
concludes the same, it does not rely on Dr. Armor's testimony 
for two reasons. First, his testimony on facilities was of 
limited usefulness due to his lack of experience in facilities 
planning. (Id. at 7- 10.) Second, having no full database on 
the quality of CMS's facilities, he attempted to evaluate the 
system's facilities by reviewing CMS’s parental satisfaction 
surveys33 and by visiting selected schools.34 (Id. at 108-09.)

33The surveys showed that parents overall, black and white, were 
satisfied with the facilities where they sent their children and that, in some 
categories, black parents were more satisfied than white parents. (Id at



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Opinion o f the District Court o f  September 9, 1999

Such non-random methodologies provide an inadequate basis 
to form a reliable expert opinion under Rules 702 and 703 o f 
the Federal Rules of Evidence. See Daubert v. Merrell Dow 
Pharmaceuticals, Inc., 509 U.S. 579, 589-90, 113 S.Ct. 2786, 
2795, 125 L.Ed.2d 469 (1993). To his credit, Dr. Armor 
admitted that his samples were not random, (Tr. 4/29 at 113 
(Test, of Dr. David Armor)), and he offered no conclusion as to 
the unitariness of facilities, stating that he did not have 
adequate information. (Id. at 243-44.)

CMS called Dr. Dwayne Gardner as a facilities expert 
to testify that schools in predominately black areas are in 
greater need of improvement than those in predominately white 
areas. (Tr. 5/24 at 121 (Test, of Dr. Dwayne Gardner).) Dr. 
Gardner conducted physical inspections of 73 schools—slightly 
more than half of the system's 135 schools. (DX 13 at 5 
(Gardner Rpt.).) Each inspection lasted approximately two to 
three hours. (Id. at 2.) He visited all schools that CMS deemed 
either (1) identifiably black or (2) racially balanced but located 
in a predominately black area. (Id. at 5-6.) The remaining 
schools—a sampling of those that did not fall into the first two 
categories—were likewise selected by CMS, which raises 
obvious concerns about the independence and reliability of the 
sample. (Tr. 5/24 at 186-87 (Test, of Dr. Dwayne Gardner).) 
Based on these inspections and other CMS documents, Dr.

11- 12.)

34Armor visited thirteen schools, spending roughly an hour at each 
one, and also drove by various others to get a "representative sample." (Id. 
at 112-14.) He concluded that he was "impressed with the overall 
operations of these facilities." (Id. at 113.)



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Opinion o f  the District Court o f  September 9, 1999

Gardner assessed the quality of each school by assigning it a 
rating from 1-100 in the following areas: adequacy, safety, 
healthfulness, accessibility, flexibility, efficiency, expansibility, 
and appearance. (Id. at 2.) He then made a composite score for 
each school and grouped the schools into the following 
categories: 0-44 (suggests replacement), 45-59 (needs major 
improvement), 60-74 (needs minor improvement), 75-89 
(serves program needs), and 90-100 (exceptional quality). (Id. 
at 4-5.)

Aside from the lack of a truly random sample and the 
inherent subjectivity in rating schools based on criteria not 
rigidly quantifiable, the results of Dr. Gardner's analysis do not 
show disparities along racial lines. For example, o f all the 
schools he assessed, a total of four schools fell into the lowest 
category, which suggests that the facility is so inadequate it 
needs replacement. Druid Hills Elementary and Highland 
Elementary—both imbalanced- black schools based on the +- 
15% standard-had respective scores of 44 and 43. (Id., Att. C, 
Ex. I at 1.) Elizabeth Traditional Elementary and Myers Park 
Elementary-- *265bo th majority white schools in predominately 
white neighborhoods—had respective scores of 38 and 41, the 
two lowest scores in the district. (Id., Att. C, Ex. I at 4: Tr. 
5/24 at 175-78 (Test, of Dr. Dwayne Gardner.)) The two 
highest scores for CMS elementary schools were 82 for 
Davidson Elementary, a predominately white school in a 
predominately white neighborhood, and 79 for Morehead 
Elementary, a school with a 60% black student population. 
(DX 13, Att. C, Ex. I (Gardner Rpt.).)

While none of the schools scored in the 90-100 
category, a majority o f the schools scored in the 45-59 category, 
indicating a need for major improvements. (Id.) Sixteen



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Opinion o f  the District Court o f  September 9, 1999

identifiably black schools fell into the "needs major 
improvement" category, while eighteen identifiably white and 
eight racially balanced schools fell into that category. (Id.) It 
must be remembered that Dr. Gardner analyzed every 
identifiably black school in the system, while he analyzed only 
a sampling of schools deemed racially balanced or identifiably 
white, so the latter two categories are likely to have even more 
schools needing major improvements. (Id. at 5-6.)

In sum, Dr. Gardner's report demonstrates that CMS's 
facilities needs are spread across the system without regard to 
the racial composition of its schools. Dr. Gardner was unable 
to trace any current disparities to the dual system. (Tr. 5/24 at 
152-58 (Test, of Dr. Dwayne Gardner).) The only cause of 
disparities that Dr. Gardner identified was related to the age of 
respective facilities. He stated that different building 
standards35 apply when a new facility is constructed as 
compared to when an older facility is renovated or upgraded. 
(Id. at 125.) In other words, the renovation of an older facility 
usually complies with the code under which the facility was 
built. Because most facilities in the predominately black inner 
city are older while facilities in the predominately white 
suburbs are newer, the inference is that differences in building 
standards tend to affect black students disproportionately. This 
does not amount to racial discrimination. Indeed, this practice 
applies regardless of the racial composition o f the school. (Id. 
at 142-143.) Thus, older schools that are predominately 
white— several o f which were built in the 1920s, (DX 13, Att. 
C, Ex. 1 at 4 (Gardner Rpt.))—are likewise affected by this 
practice.

“ Curiously, Dr. Gardner was at a complete loss to explain what 
these standards were. (Id. at 147-50.)



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The testimony of the CMS employee ultimately 
responsible for the maintenance of facilities echoed the findings 
of Dr. Gardner. William Booker, Assistant Superintendent for 
Building Services, was similarly unaware of any evidence that 
would link present inequities with the de jure  discriminatory 
system. (Tr. 4/30 at 154-56 (Test, of William Booker).) 
Instead, he acknowledged that building codes and educational 
specifications change year-to- year and that the older a school 
gets, the more difficult it becomes to perform basic upgrades. 
(Tr. 5/25 at 19 (Test, of William Booker).) He testified that a 
large majority o f schools-108 out o f 135 or roughly 80% of 
them—are in need of renovations, and most of these needy 
schools-80 out o f 108 or roughly 75% of them—have racially 
balanced student populations. (Tr. 4/30 at 142-45 (Test, of 
William Booker).) The primary reason for these inequities has 
been a shortage o f funds and the need to focus scarce resources 
on critical areas first. (Id. at 151-54.)36

A particularly pressing need has been to build schools 
in areas with "significant growth and significant 
overcrowding." (Tr. 4/20 at 191 (Test, of John Lassiter).) 
Sharon Bynum, a former school board *266 member who 
served from 1986 to 1996, stated that the "extreme influx" of 
people into the outer regions of the county made it difficult to 
keep up with the maintenance of older facilities. (Tr. 4/22 at 26 
(Test, o f Sharon Bynum).) Plus, in the 1980s, the maintenance 
department was not managed well. (Id. at 25.) Once that 
department was reorganized, the problem of funding remained.

36Booker insisted that the Board’s failure to direct employees to 
upgrade older schools also contributed to inequities. (Id)  Of course, this 
still goes back to funding. Had there been sufficient funds, CMS would 
have been able to adequately address the inequities.



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Opinion o f the District Court o f  September 9, 1999 

(Id. at 25-26.)

In the early 1990s, CMS commissioned a report, known 
as the Heery Report, to determine the cost necessary to update 
and rehabilitate all physical facilities in the system. (Tr. 5/19 
at 28-30 (Test, of Calvin Wallace).) The estimated cost was 
roughly $750,000,000, an amount that CMS has never had 
available for such purposes. (Tr. at 29, 34.) To paraphrase a 
statement by one attorney, the problem is not black or white; 
it's green. (Tr. 6/22 at 141 (Closing Argument o f Lee Parks).)

Nevertheless, CMS continues to use its best efforts to 
renovate old facilities. (Tr. 4/30 at 156 (Test, o f William 
Booker).) Perhaps the most crucial "equity safeguard" in place 
is CMS's practice of allocating funds on a per-pupil basis.37 
(Tr. 6/14 at 102 (Test, of Susan Purser); Tr. 5/19 at 35-36 
(Test, of Calvin Wallace).) Most recently, CMS implemented 
baseline standards to assure that all facilities in the system are 
upgraded to comply with the most state-of-the-art standards. 
(DX 133 at 29-30 (Future School Planning Task Force Rpt.); 
Tr. 4/22 at 116 (Test, o f Velma Leake); Tr. 5/24 at 26 (Test, o f 
John Kramer); Tr. 6/14 at 58 (Test, of Susan Purser); Tr. 6/18 
at 177-78 (Test, of Arthur Griffin).) These were actions that 
CMS took on its own initiative; the Court did not order it to do 
so.

370 f  course, PTA funding and other outside contributions, such as 
corporate donations, may cause disparities, but CMS has no control over 
this. See Swann, 300 F.Supp. at 1366-67 ("Parents contribute to school 
projects through voluntary Parent-Teacher Associations. This voluntary 
parental action is not racial discrimination against children whose parents 
are less able to make such contributions, and it does not come about through 
state action.").



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Opinion o f  the District Court o f  September 9, 1999

Moreover, CMS has spent a large portion o f bond 
money on improving schools in predominately black areas. 
(DX 63 (compilation o f bond expenditures for 1985, 1987, 
1991,1993, and 1995).) One board member stated that "since 
1993, we have spent somewhere in the neighborhood of 
$500,000,000 trying to renovate older facilities that had gone 
untouched in prior Board activity." (Tr. 4/20 at 196 (Test, of 
John Lassiter).) As discussed above, several old facilities have 
been overhauled completely. CMS also has received an 
infusion of federal funds toimprove inner city schools by 
magnetizing them. (Tr. 4/22 at 27-28 (Test, o f Sharon 
Bynum).) While some magnet schools still need renovations, 
they have not failed to draw students. (Tr. 4/20 at 213-14 
(Test, of John Lassiter).) Also, some predominately black 
schools have won awards for their educational programs 
despite perceived deficiencies. (Tr. 5/18 at 24-25 (Test, of 
William McMillan).)

Just as Judge McMillan found thirty years ago, the 
Court finds today that inequities in facilities exist throughout 
the system regardless of the racial makeup o f the school. 
These disparities are generally the result of the relative ages o f 
the facilities, combined with an ongoing lack of funding and 
the need to accommodate unprecedented growth. As one 
former board member remarked:

[NJobody intentionally ever focused on particular 
schools and said, forget them, let's spend the money 
over here. We did what we had to do. When the 
growth got so out o f control in this county and we had 
to build new schools, we weren't going to put old 
resources in that school, you can't even buy those. You 
are going to put new resources in them. So, o f course,



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Opinion o f  the District Court o f  September 9, 1999

the new schools had better walls and better cabling and 
software and so forth than some of the other schools 
did. It was a game of *267 catch up constantly without 
enough money for it.

(Tr. 4/22 at 51 (Test, of Sharon Bynum).)

Most notably, the Swann Plaintiffs have failed to 
overcome the Court's previous findings on facilities by 
establishing the requisite discriminatory intent and causation.38 
Despite thorough questioning throughout the two-month trial, 
none of CMS's current and former board members or 
employees could testify about intentionally discriminatory 
policies in the area of facilities. (See, e.g., Tr. 4/20 at 196-98 
(Test, of John Lassiter); Tr. 4/21 at 15,218-19 (Test, of 
Lindalyn Kakadelis); Tr. 4/22 at 48-50 (Test, of Sharon 
Bynum).) Likewise, no witness was able to provide any 
evidence to show a causal link between current disparities in 
facilities and the dual system. (See Tr. 5/24 at 152-58 (Test, of 
Dr. Dwayne Gardner); Tr. 4/30 at 154-56 (Test, o f William 
Booker).) As such, there is no need for the Court to assume 
supervision over CMS's facilities. CMS is capable of 
addressing the inequities in its facilities without a court order 
and has shown that it is committed to doing so. Therefore, the 
Court belatedly grants unitary status to CMS as to the Green 
factor o f facilities,

4. T ransportation

With regard to the factor o f transportation, a court may

380 n  the other hand, the Court fmds that the Plaintiff- Intervenors 
have proven, to the extent possible, the absence of intent and causation.



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Opinion o f  the District Court o f  September 9, 1999

grant unitary status when transportation is provided on a 
non-discriminatory basis. Coalition to Save Our Children, 90 
F.3d at 768; Jacksonville NAACP, supra, slip op. at 136-37; 
United States v. Unified School Dist, 91A F.Supp. 1367, 
1380-81 (D.Kan.1997). Here, the Court ordered "[t]hat 
transportation be offered on a uniform non-racial basis to all 
children whose reassignment to any school is necessary to bring 
about the reduction of segregation, and who live farther from 
the school to which they are assigned than the Board 
determines to be walking distance." Swann, 311 F.Supp. at 
268. CMS has complied fully and satisfactorily with this 
requirement.

Indeed, CMS provides free bus transportation to all 
students who do not live within a mile and a half o f their 
schools, regardless of whether they attend their assigned 
schools or magnet schools. (PX 19 at 3 (CMS Facts); Tr. 5/21 
at 16 (Test, o f Eric Becoates).) According to a 1994 report, 
this cost CMS roughly $75,000 per day. (DX 52 at 8 
(Committee o f 25 Rpt.).) Last year, 81,967 students-roughly 
83% of CMS's current enrollment—were assigned to buses. 
(DX 215 (1998-99 CMS Facts).) Thus, rather than being a 
vestige of past discrimination, CMS's transportation practices 
have been designed to effectively remedy the remnants of 
segregation in student assignments. Accord Dowell v. Board o f  
Educ., 778 F.Supp. 1144,1177(W .D.Okla.l991)("[F]ar from 
being a vestige of prior segregation, transportation was actually 
the principal tool utilized to eliminate prior segregation.").

The S wann Plaintiffs concede that "[t]he district does 
not discriminate in providing transportation to students." 
(Swann PL's Proposed Findings of Fact and Conclusions of 
Law at 114.) Nevertheless, CMS and the Swann Plaintiffs



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Opinion o f  the District Court o f  September 9, 1999

argue that prolonged supervision o f transportation is needed 
because a disproportionate burden of busing falls on black 
children. This issue was addressed above, see supra part 
II.B.l.d, and the Court need not address it again here as it is 
most appropriately treated as an aspect of student assignment. 
See Martin, 475 F.Supp. at 1328-29 (treating transportation 

burdens as an aspect of pupil assignment).

The Court finds that CMS has complied with the order 
to provide bus transportation in a nondiscriminatory manner. 
As such, there is no need to extend supervision over this Green 
factor.

*268 5. Staff Assignment

During the early active phases o f Swann, the Court 
never made findings of discrimination in staff assignment. 
Perhaps as a precautionary measure, the Court simply ordered 
" [t]hat the internal operation of each school, and the assignment 
and management of school employees, of course be conducted 
on a non- racial, non-discriminatory basis." Swann, 311 
F.Supp. at 269. Since then, and during the recent trial in this 
case, CMS and the Swann Plaintiffs have presented no 
evidence o f racial discrimination or disparities in the hiring or 
assignment of staff.39 Indeed, the parties' post-trial briefs do

39Based on the racial identities of the CMS staff members who 
testified at trial, it is apparent that blacks hold many important positions of 
authority in the various areas of school operations. While this is obviously 
too small a sample size from which to base any conclusions, it simply 
shows that blacks occupy positions of influence in CMS's administrative 
hierarchy. See Morgan, 831 F.2d at 321 ("Minority presence in the power 
structure is a factor that might be expected to help prevent regression to a 
dual system once the court's presence is withdrawn." (citing Riddick, 784



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not even address the issue of staff assignment. While the 
parties addressed the issue of faculty assignment, which is a 
separate Green factor from staff assignment, they always 
focused solely on teachers and not on administrative staff or 
personnel. The Court finds that CMS has complied with the 
order on staff assignment; therefore, there is no basis for 
prolonged supervision over this Green factor.

6. Extracurricular Activities

At the initial stages of Swann, the Court made no 
comprehensive findings in the area of extracurricular activities. 
In its Order of April 23,1969, the Court found that there was 
"no racial discrimination or inequality" in the "coaching of 
athletics." 300 F.Supp. at 1366. Stated the Court: "Several 
black coaches have been employed at 'white' schools. No 
black coach was shown to have applied and been refused a job. 
No pattern of discrimination appears in the coaching ranks." 

Id. On June 20,1969, the Court struck a proposed provision in 
CMS's pupil assignment plan that had a racially discriminatory 
effect on black student athletes.40 Swann, 300 F.Supp. at 1384. 
Other than these narrow findings, the Court did not address 
whether vestiges of past discrimination existed in 
extracurricular activities.

In the current stage of the case, CMS and the Swann 
Plaintiffs assert that prolonged supervision is needed. Yet, the 
evidence persuasively shows otherwise. Dr. Peterkin, who

F.2d at 528)).

40The provision made students who transfer from one high school 
to another ineligible for high school athletics for one year.



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testified for CMS about the system's educational opportunities, 
tabulated the racial breakdown in extracurricular involvement 
for the three most recent school years. (DX 6, Ex. 5a (Peterkin 
Rpt.).) The results show that participation in athletics occurs 
proportionately to the district-wide racial average. (Id.) As for 
student government, participation is equal at a roughly 50-50 
ratio, and in two of the three years examined, blacks 
outnumbered whites as far as holding office. (Id. ) Blacks also 
generally participated at a higher rate in a category labeled 
"school activity." (Id.) On the other hand, black student 
participation in honors societies and other clubs was lower, 
representing approximately 20% of those students involved. 
(Id.)

The Swann Plaintiffs concede that "the evidence in the 
case shows generally favorable statistics on extracurricular 
involvement." (Swann Pl.'s Proposed Findings of Fact and 
Conclusions of Law at 114.) Still, CMS and the Swann 
Plaintiffs assert that lower black student participation in honors 
societies and other academically-related clubs is grounds for 
continued court supervision. While black student participation 
in certain clubs may be lower than white student participation, 
the Court can make no finding that this is discriminatory, *269 
especially when participation in extracurricular activities is 
voluntary or, in the case of honors societies, requires a certain 
level o f academic achievement for membership. As stated by 
the Third Circuit: "We cannot, however, expect a school 
district to compel or deny student participation in 
non-compulsory extracurricular activities merely to effect a 
racial balance." Coalition To Save Our Children, 90 F.3d at 
768. Furthermore, it would be beyond a court's power to require 
that student participation in extracurricular activities reach a 
prescribed racial percentage or ratio. See Coalition to Save



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Our Children v. State Bd. o f  Educ., 901 F.Supp. 784, 806 
(D.Del. 1995) (finding no precedent for imposing a measure of 
compliance to determine whether unitary status has been 
achieved in the area o f extracurricular involvement), affd, 90 
F.3d 752 (3d Cir.1996).

"[A] school district's extracurricular activities are 
unitary if  they 'are available to all students within the School 
District regardless o f race.'" Coalition to Save Our Children, 
90 F.3d at 768 (quoting Singleton v. Jackson Mun. Separate 
School Dist., 541 F.Supp. 904, 908 (S.D.Miss.1981)); 
Jacksonville NAACP, supra, slip op. at 138. Here, there is no 
evidence that CMS prevents any student from participating in 
any extracurricular activities. A wide variety of extracurricular 
activities are available in all schools. Some witnesses have 
suggested that the absence of a chess club at certain 
predominately black schools is discriminatory. (Tr. 6/14 at 
74-75 (Test, o f Susan Purser).) To suggest that Article III 
powers must be invoked to start chess clubs is a stretch. CMS 
is the party that raised this as a reason for continued 
supervision, and CMS could have started several chess clubs in 
the time that it took to put on such evidence. Even so, without 
student interest and initiative, a chess club will never last. 
Furthermore, there is no evidence that students, parents, 
faculty, or others are clamoring for such clubs in the schools 
where they do not exist.

CMS's anecdotal evidence regarding discrimination in 
extracurricular activities was unconvincing. School Board 
Chairman Griffin testified about a high school principal who 
was going to hold an unprecedented runoff election in the Miss 
South Mecklenburg competition after a black female received 
the most votes. (Tr. 6/18 at 172 (Test, of Arthur Griffin).)



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Superintendent Smith quickly intervened and prevented the 
runoff from happening. (Id. ) Here again, if  CMS is asserting 
that the extraordinary remedy of court supervision is needed to 
referee a beauty pageant, this is clearly overkill.

Griffin also asserted that the long distances students are 
bused to school inhibits after-school involvement in 
extracurricular activities. (Tr. 6/18 at 125 (Test, o f Arthur 
Griffm).) If anything, this is a strong argument for 
neighborhood schools. Griffin testified that special bus 
transportation is provided for students involved in athletics but 
not for non-athletic activities. (Id.) The Court heard no 
evidence as to the extent that this is a problem, but the fact that 
CMS raised the issue and stands ready to address it obviates the 
need for further court supervision.

Finally, CMS argues that it must monitor student 
participation in extracurricular activities by race in order to 
achieve unitary status. (DX 6 at 7 (Peterkin Rpt,); Tr. 6/17 at 
186 (Test, of Dr. Robert Peterkin).) Whatever good monitoring 
would do, this was never a requirement imposed by the Court, 
and the Court will not impose such a requirement at this late 
date. In sum, there was no credible evidence produced at trial 
regarding alleged discrimination in extracurricular activities. 
Therefore, the Court finds no basis for prolonged supervision 
over this Green factor.

7. Ancillary Considerations

CMS and the Swann Plaintiffs raised a laundry list of 
quality of education concerns *270 for the Court to consider in 
determining unitary status. Such factors, which a court may



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consider in its discretion, Freeman, 503 U.S. at 492,112 S.Ct. 
at 1446, are addressed below.

a. Teacher Quality

During Swann, the Court never found that there was 
discrimination in the quality of teaching. In fact, the Court 
observedin 1969 that "teachers in the various black schools are 
not inferior to those in the various white schools." Swann, 306 
F.Supp. at 1298. Nevertheless, as part of the desegregation 
plan mandated in 1970, the Court ordered: "That teachers be 
assigned so that the competence and experience of teachers in 
formerly or recently black schools will not be inferior to those 
in the formerly or recently white schools in the system." 
Swann, 311 F.Supp. at 268. This was likely a "safeguard" 
provision in light of the massive reassignment of faculty under 
the 1970 plan. See Swann, 300 F.Supp. at 1373. By 1971, the 
Court stated that "the formerly black schools are not shown nor 
suggested to be inferior in faculty." Swann, 334 F.Supp. at 625. 
Also, right before closing Swann in 1975, the Court reiterated 
that it did not find in the Swann Plaintiffs' favor on the issue of 
discrimination in teacher quality. Swann, 66 F.R.D. at 484.

In the present case, CMS and the Swann Plaintiffs assert 
that the district has been operating identifiably black schools 
with inferior faculties in violation of the Court's order. 
Determining whether CMS has violated the safeguard provision 
is a formidable task, however, because teacher competence is 
not easily measurable. Also, given that the provision was not 
remedial—in the sense that it was not aimed at eliminating a 
past condition in the schools—it is difficult to assess 
compliance by comparing past and present circumstances. C f 
Keyes v. Congress o f  Hispanic Educators, 902 F.Supp. 1274,



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1281 (D.Colo.1995) ("The constitutional authority of the 
federal courts is limited to compelling the elimination of 
negative effects of de jure  discrimination; it does not include 
the power to posit any particular affirmative achievements.").

CMS and the Swann Plaintiffs base their argument of 
noncompliance on a comparison of the district's schools during 
recent years, looking specifically at the years of teachers' 
experience and the percentage of teachers with advanced 
degrees. (DX 6 at 4-5 (Peterkin Rpt.); DX 10 at 2 (Trent 
Rpt.); SX 3 at 9-12, Tables III-V (Smith Rpt.).) It is unclear 
whether the inferiority or superiority of a given faculty in the 
district can be determined by these characteristics. In fact, 
there is a debate in the research literature regarding the effect 
o f teacher experience and education on student achievement. 
(Tr. 5/27 at 44-45 (Test, of Dr. William Trent).) Trial 
witnesses also debated the issue. Some CMS employees 
testified that veteran teachers generally provide better 
educational experiences for students. (Tr. 5/14 at 153-54 (Test, 
o f Richard McElrath); Tr. 5/25 at 182-83 (Test, of Teresa 
Cockerham); Tr. 6/14 at 25-26 (Test, of Susan Purser). On 
the other hand, Dan Saltrick, former-CMS Assistant 
Superintendent for Instructional Services, testified that he did 
not equate teachers who had less experience with those who 
were less qualified. (Tr. 4/28 at 125-26,128-29) (Test, of Dan 
Saltrick).) "It was just the opposite in many cases," stated 
Saltrick, who observed that many of the newest teachers were 
better prepared in their use of technology in the classroom, in 
their knowledge of various teaching strategies, and in their 
ability to deal with diversity. (Id.)

Also, CMS's Director of Human Resources testified that 
there is no correlation between the race of a teacher and a



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teacher's competence. (Tr. 5/28 at 45 (Test, o f Gwendolyn 
Bradford).) Apparently, this is so despite the fact that black 
teachers in the district, when compared to their white 
counterparts, have, on average, more years o f teaching 
experience and also have a higher proportion o f advanced 
degrees. (*271DX 10 App. C, Ex. 2, Tables 2-3 (Trent Rpt.).)

In any event, the differences in teachers' experience is 
relatively small among the district's schools. (PX 137 (Armor 
Rebuttal Rpt.); Tr. 6/21 at 190-92 (Test, o f Dr. David 
Armor).) During the 1998-99 school year, the average number 
of years of teaching experience in the district was 10.9 for 
elementary school teachers, 9.0 for middle school teachers, and 
12.5 for high school teachers. (DX 6 Ex. 2a (Peterkin Rpt.).) 
In imbalanced-black schools, i.e., schools with black student 

bodies above +15% from the district-wide average, the average 
experience was 9.6 years for elementary school teachers, 8.2 
years for middle school teachers, and 11.8 years for high school 
teachers. (Id.) In imbalanced-white schools, i.e., schools with 
black student bodies below -15% from the district-wide 
average, the average experience was 12.5 years for elementary 
school teachers, 9.8 years for middle school teachers, and 14.2 
years for high school teachers. (Id.) Thus, on average, teachers 
in imbalanced-black schools had 0.7 to 1.3 fewer years 
experience than the district averages and had 1.6 to 2.9 fewer 
years experience than teachers in imbalanced-white schools. 
(Id.)

During the same year, the average percentage of 
teachers with advanced degrees in the district was 31% for 
elementary schools, 27% for middle schools, and 37% for high 
schools. (DX 6 Ex. 2a (Peterkin Rpt.).) In imbalanced-black 
schools, the average percentage was 26% for elementary



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schools, 24% for middle schools, and 31% for high schools. 
(Id.) In imbalanced-white schools, the average percentage was 
36% for elementary schools, 33% for middle schools, and 46% 
for high schools. (Id.) While the difference with this teacher 
characteristic is more noticeable, it must be remembered that 
the large presence of teachers with master's degrees may be a 
relatively new phenomenon, which would mean that this 
disparity is not a vestige that is traceable to the dual era.

A more meaningful way to examine CMS's distribution 
of teacher experience and advanced degrees is to examine the 
impact of these characteristics on students' test scores. Dr. 
Trent suggested that differences in teachers' experience and 
education influence student performance in CMS, (DX 10 at 2 
(Trent Rpt.)), but the results of his regression analyses show 
that there is no statistically significant effect o f these teacher 
characteristics on academic achievement. (PX 137 (Armor 
Rebuttal R pt); Tr. 6/21 at 148-51 (Test, of Dr. David 
Armor).) Thus, it would appear that the competence and 
experience of faculty is not unevenly distributed.

Moreover, whatever small disparities exist are likely 
mitigated by the more favorable pupil-teacher ratios in 
predominately black schools. (PX 137 (Armor Rebuttal Rpt.);
Tr. 4/28 at 123-24 (Test, o f Dan Saltrick).) Classrooms in 

majority black elementary schools have, on average, a little 
over fifteen students, which is, on average, about five or six 
students less than in elementary schools that are more than 80% 
white, (PX 137 (Armor Rebuttal Rpt.).) Smaller class sizes 
mean that students receive more teacher attention and more 
instructional time. (Tr. 4/28 at 123-24 (Test, o f Dan Saltrick).) 
Thus, in terms of allocating teacher competence as an 
educational resource, students in schools with higher black



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ratios may receive fuller benefits from a teacher's experience 
and education. (Tr. 6/21 at 152-53 (Test, of Dr. David Armor); 
Tr. 4/28 at 123-24 (Test, of Dan Saltrick).)

Finally, CMS, like many school districts in metropolitan 
areas, faces the practical problem of a high turnover rate for 
teachers in economically- impoverished areas. See supra part
II. B.2. CMS is trying to combat this trend by offering incentive 
pay to highly qualified teachers who agree to work in these 
areas. (Tr. 5/28 at 79 (Test, of Gwendolyn Bradford).)

The Court finds that prolonged supervision over teacher 
quality is unnecessary given that no such discrimination was 
*272 found in Swann, the Court's order in Swann was 
precautionary and not remedial, the disparities in teacher 
competence are hard to define and difficult to measure, there 
are mitigating factors with the alleged disparities, there are 
practical problems in achieving and maintaining better results, 
and CMS appears committed to doing its best to improve 
teacher quality throughout the district.

b. Student Achievement

Because numerous external factors beyond the control 
of a school district affect educational outcomes, racial 
disparities in student test scores are generally not a bar to 
unitary status, and the authority of courts to require 
improvements in student achievement is very limited. Jenkins
III, 515 U.S. at 101-02,115 S.Ct. at 2055-56. As stated by the 
Supreme Court: "Insistence upon academic goals unrelated to 
the effects of legal segregation unwarrantably postpones the 
day when the [school district] will be able to operate on its 
own." Id.; see City o f  Yonkers, 181 F.3d 301, 316 ("As other



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Opinion o f the District Court o f  September 9, 1999

courts have recognized, using achievement test scores as a 
measure, either direct or indirect, of a school system's 
movement away from segregation is deeply problematic." 
(citing Jenkins, 515U.S.at 101,115 S.Ct. at 2055;People Who 
Care v. Rockford Bd. o f  Educ., 111 F.3d 528, 537 (7th 
Cir.1997); Coalition to Save Our Children, 90 F.3d at 
776-78)); Keyes, 902 F.Supp. at 1282 (" '[Tjhere is nothing in 
the law which does or could require equality in the results of 
educational services.... No school policy and no court order 
can assure any particular level of success in public schools any 
more than in any other aspect of life.'" (quoting Keyes v. School 
Dist. No. I, 609 F.Supp. 1491, 1515, 1498 (D.Colo.1985))); 
Flax, 725 F.Supp. at 330 ("Poor achievement scores are often 
an incidence of poverty and family environment, matters not 
remediable by a school desegregation plan."), affd, 915 F.2d 
155 (5th Cir. 1990); but see Jenkins v. Missouri, 122 F.3d 588, 
597-99 (8th Cir.1997) (affirming an order to partially remedy 
an achievement gap because the district court found that a 
portion of the gap was attributable to segregation).41

i. The Requirements of S w an n

The issue of student achievement disparities was 
addressed during the early stages of Swann, when Judge 
McMillan observed a racial disparity in test scores and 
surmised that "segregation in Mecklenburg County has

41In arguing that prolonged supervision is needed due to the 
achievement gap, the Swann Plaintiffs rely heavily on the Eighth Circuit's 
opinion in Jenkins, 122 F.3d 588. That opinion is puzzling considering 
that the Supreme Court had just reversed the Eighth Circuit on the issue of 
student achievement disparities, stating that, on remand, "the District Court 
should sharply limit, if not dispense with, its reliance on this factor." 
Jenkins, 515 U.S. at 101, 115 S.Ct. at 2055.



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produced its inevitable results in the retarded educational 
achievement and capacity of segregated school children." 306 
F.Supp. at 1296-97; see Swann, 300 F.Supp. at 1368-69; 
Swann, 318 F.Supp. at 791. While experts in Swann agreed 
that poverty and culture played a role in the underachievement 
of blacks, 300 F.Supp. at 1368-69, the Court did not 
conclusively identify the cause of the disparity. Stated the 
Court: "Until unlawful segregation is eliminated, it is idle to 
speculate whether some of this gap can be charged to racial 
differences or to 'socio-economic-cultural' lag." Swann, 306 
F.Supp. at 1309.

The Court never ordered CMS to adopt specific 
academic programs to remedy the achievement gap but, rather, 
assumed that racial balance in schools would provide "hopeful 
relief." Swann, 306 F.Supp. at 1297. In fact, the Court found 
that CMS's academic programs and educational opportunities 
related to achievement were not discriminatory. Swann, 300 
F.Supp. at 1367. With regard to the "individual evaluation of 
students," the Court stated:

Individual students are evaluated annually in terms of 
achievement in particular subjects, and divided into 
groups for *273 the study of particular subjects in 
accordance with their achievement.... Few black 
students are in the advanced sections and most are in 
regular or slow sections. Assignments to sections are 
made by the various schools based not on race but on 
the achievement of the individual students in a 
particular subject. There is no legal reason why fast 
learners in a particular subject should not be allowed to 
move ahead and avoid boredom while slow learners are 
brought along at their own pace to avoid frustration. It



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is an educational rather than a legal matter to say 
whether this is done with the students all in one 
classroom or separated into groups.

Id. The Court similarly found that there was no discrimination 
in "elective courses." Id.

Some elective courses such as German are offered at 
some but not all of the high schools. They are offered 
at a school only if enough students express a desire for 
the course. Not all schools therefore have all elective 
courses every year. This situation is not the result of 
discrimination on account o f race.

Id. Thus, in terms of complying with the Court's orders, CMS’s 
sole obligation with regard to the achievement gap was to 
eliminate segregated schools.

As set forth above, CMS has eliminated segregation in 
schools by achieving and maintaining a high level of racial 
balance in student assignment for many years, see supra part 
II.B. 1. Nevertheless, anachievement gap remains. While test 
scores for black students have made significant improvements 
over time, and blacks in CMS have outperformed blacks 
statewide and nationwide,42 the black-white achievement gap 
has remained relatively constant regardless of the year or type

42As regards SAT scores, from 1987, "the first year that ethnic 
comparisons were available from the College Board," to 1997, blacks in 
CMS scored at or above the statewide average for blacks every year and 
scored above the national average for blacks every year from 1992 to 1996. 
P X 171 (CMS College Entrance Examination Board Results.) Meanwhile, 
whites in CMS scored above the statewide average for whites every year but 
only scored above the national average for whites in 1994. (Id. )



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of test because white students have made progress as well. (PX 
137 at 12 (Armor Rpt); DX 7 Exs. D 1-D3 (Peterkin Rebuttal 
Rpt.); PX 74 at CM098914, CM098916 (Student Assessment 
Measures); PX 171 (CMS College Entrance Examination 
Board Results).) What is more, the black-white achievement 
gap in CMS is comparable to the gap found in North Carolina 
and throughout the nation. (PX 137 at 12 (Armor Rpt.); PX 
171 (CMS College Entrance Examination Board Results).)

Thus, contrary to the Court's prediction in 1969, the 
dramatic increase in racial balance throughout CMS did not 
result in a closure of the achievement gap. In fact, the 
maintenance o f racially balanced schools appears to have no 
effect on test score disparities and seems to make little 
difference in the level of black achievement. (PX 137 at 1,12, 
Charts 8-10 (Armor Rpt.); Tr. 4/28 at 131 (Test, of Dan 
Saltrick).) A  comparison of End-of-Grade (EOG) test scores 
shows that blacks generally achieved the same results 
regardless o f  the racial composition of the school. (PX 137 at 
12, Charts 9, 10 (Armor Rpt.); DX 10 at 7, App. C, Ex. 3, 
Tables 5b, 7b (Trent Rpt.).)

ii. CM S's Efforts to Close the Gap

The Court might end its inquiry there. Still, it is worth 
recapping some of CMS's efforts to address the gap. These 
efforts are best "characterized as general educational 
enrichments rather than remedies for prior segregation." City o f  
Yonkers, 181 F.3d 301, 318 (citing Swann, 402 U.S. at 16, 91
S.Ct. at 1276).

In 1983, CMS began a minority achievement program 
to provide additional academic support for black children and



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Opinion o f  the District Court o f  September 9, 1999

to increase black participation in the district's various academic 
programs. (Tr. 5/14 at 96-97 (Test, of may Howell).) At the 
time, *274 there was no similar program to this in North 
Carolina. (Id, at 96.) During the 1980s, however, the 
state-of-the-art practices for achieving maximum academic 
performance were not well-developed, so progress was limited. 
(Tr. 5/3 at 59-60, 151-57 (Test, of Jeffrey Schiller).) By the 
early 1990s, such strategies were more sophisticated. (Id. at 
151-57.) It was at that time that Dr. Murphy was hired as 
Superintendent o f CMS with a primary goal of improving 
student test scores, particularly among black students. (Tr. 4/26 
at 8-10 (Test, o f John Murphy); Tr. 4/28 at 97-98 (Test, of Dan 
Saltrick).)

During Superintendent Murphy's tenure, CMS instituted 
numerous programs to enhance the academic achievement of 
students. He immediately eliminated "fluff courses" and 
implemented a more demanding uniform curriculum. (Tr. 4/26 
at 23-24 (Test, o f John Murphy).) CMS offered incentives to 
teachers and principals to improve test scores and tied bonuses 
specifically  to increasing black participation in 
morechallenging courses. (Id. at 83-84, 118; Tr. 4/28 at 
126-27,166-68 (Test, of Dan Saltrick).) CMS "aggressively" 
recruited black students to enroll in Advanced Placement (AP) 
courses and in the rigorous International Baccalaureate (IB) 
program. (Tr. 4/26 at 80, 116 (Test, of John Murphy); see Tr. 
4/28 at 197 (Test, of Dan Saltrick) ("[W]e almost killed 
ourselves trying to get students into those courses.").) CMS 
set up Learning Immersion programs and instituted Project 
Start, a grant-funded program, to train teachers to use new 
methods to identify a broader range of students as academically 
gifted. (PX 83 at 11 (State of the System Address, 1993).) In 
order to accelerate the preparedness of students to take these



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more challenging courses, CMS provided tutors and support 
staff, extended school days, and instituted summer programs. 
(Tr. 4/26 at 88, 96 (Test, of John Murphy); Tr. 4/28 at 141-42 
(Test, of Dan Saltrick).)

As a result of these efforts, CMS experienced a 
seven-fold increase in black enrollment in AP courses from 
1991-92 to 1995-96. (PX 74 at CM098914 (Student 
Assessment Measures).) From 1992 to 1995, the percentage 
of blacks enrolled in higher level courses rose from 9.3% to 
25.9%. (Id.) The number of AP course offerings also increased 
in schools with large black populations. For example, West 
Charlotte, one o f only two imbalanced-black high schools 
operating last year, offered the second highest number o f AP 
courses in the system. DX 36 (CMS Students in AP Courses); 
Tr. 6/14 at 158-62 (Test, of Susan Purser).

Meanwhile, CMS also did what it could to provide 
remedial education to those lagging the furthest behind. As 
stated above, CMS reduced the number of students in 
classrooms in predominately black schools so as to increase 
student-teacher interaction. See supra part II.B.7.a. Teachers 
also received special training to assist the most needy students. 
(Tr. 4/26 at 18-19 (Test, of John Murphy); (PX 83 at 18) (State 
o f the System Address, 1993).) Having identified the 
connection of language skills with the black-white achievement 
gap, CMS created K -l-2 Literacy sites in elementary schools. 
(PX 83 at 18 (State of the System Address, 1993).)

CMS continues to implement more programs aimed at 
improving black achievement. Recently, CMS revised the 
process of identifying students as academically gifted and, as a 
result, has seen further increases in black enrollment in gifted



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programs. (Tr. 6/14 at 49-50 (Test, o f Susan Purser).) CMS 
started a large-scale pre-kindergarten program, Bright 
Beginnings, which was designed to enhance the academic 
achievement of educationally disadvantaged students at the 
earliest stages. (Tr. 4/20 at 46-47 (Test, of James Puckett).) 
Children in this program are screened for participation based 
upon educational needs, and, notably, 70% of the students 
participating are black. (Id. at 47,49.) To increase the amount 
of educational resources in schools with large black 
populations, CMS started an Equity *275 Plus program. (Tr. 
5/25 at 153-54 (Test, of Ron Dixon).) CMS also sought to 
increase parental involvement in these schools through its 
Comer Schools program. (Id. at 150-51.) Moreover, CMS 
continues to receive assistance from the State's ABC's program, 
which sends in remedial teams to overhaul low- performing 
schools. (Id. at 150.)

These enhanced educational opportunities aimed at 
black students have coincided with some notable 
improvements. From 1992 to 1994, CMS began to see a 
significantly greater percentage of blacks prepared for the next 
grade level than was seen in previous years. (PX 72 at 
CM084532 (Performance of Black Students).) During the 
1994-95 school year, the gap between black and white students 
decreased in twenty-nine out of thirty-nine test subject 
categories. (PX 74 at CM098913 (Student Assessment 
Measures).) In eight of the ten remaining categories, blacks 
still showed progress, but the increase wasoffset by a greater 
increase for whites. (Id.) With focused efforts, these gap­
narrowing trends continue today. (See, e.g., Tr. 6/8 at 21, 31 
(Test, of Eric Smith).)



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iii. Experts' Explanations of the Gap

Expert witnesses attempted to explain the causes of the 
gap using regression analyses. Dr. Armor concluded that the 
gap "is not causally related to past or present student 
assignment and is mostly explained by socioeconomic factors 
over which CMS has no control." (PX 137 at 1 (Armor Rpt.).) 
He identified the racial differences in the four socioeconomic 
status (SES) measures that were available for elementary 
students in 1998: poverty, as measured by students receiving 
free lunch; parental education; family income; and family 
size. (Id. at 13, Chart 8.) Each o f these SES factors were 
shown to have a statistically significant effect on student 
achievement. (Id. at 13, Appendix.)

The differences are revealing. The average black 
family income is $31,000, as compared to $59,000 for white 
families. (Id.) Only 15% of black parents have college degrees, 
whereas 58% of white parents do. (Id.) A large poverty gap is 
revealed, with 63% of black students receiving free lunch, as 
compared to 9% of white students. (Id.) Finally, 83% of white 
students have both parents at home, as compared to only 42% 
for black students, (Id.) These four SES factors alone, which do 
not represent the universe o f known SES factors that impact 
achievement,43 explain nearly 50% of the reading gap and over

43Other important SES factors include the age of mother at birth, 
birth weight, child-rearing practices, parents' cognitive abilities, parents’ 
occupational backgrounds, parental interest and involvement, and so on. 
(PX 137 at 13 (Armor Rpt.).) See City of Yonkers, 181 F.3d 301,316-17.
The evidence suggests that these other factors would be significant. A 

parental survey conducted by CMS at the start of the Murphy administration 
showed that black children, as compared to white children, generally were 
read to less, watched more television, and spent less time on homework.



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40% o f the math gap. (Id. at 14, Table 3.) When early test 
scores—the second grade is the earliest grade for which CMS 
has any test data—are added to the analysis to control for the 
skills children have close to the time they begin formal school 
training, nearly 80% of the reading gap and over 70% of the 
math gap are explained. (Id.) Dr. Armor testified that he likely 
could explain all of the existing gap if enough measures of SES 
and family background were available. (Tr. 4/29 at 129-31,229 
(Test, o f Dr. David Armor).)

*276 Dr. Trent, testifying for CMS, agreed that the 
largest reduction in the "race effect" occurs when one controls 
for SES factors. (Tr. 5/27 at 32- 39 (Test, of Dr. William 
Trent).) Nevertheless, he attempted to downplay the 
contribution of these factors by limiting the variables in his 
analysis. Dr. Trent only controlled for sex, free-or-reduced 
lunch status, and early test scores. (DX 10 App. C, Ex. 5, 
Tables 9-23 (Trent Rpt.).) While the free lunch variable is a 
useful standard-and an important one to use if  available-it is a 
relatively crude proxy for SES that does not provide the whole 
story. (Tr. 6/21 at 153 (Test, o f Dr. David Armor).) Free lunch 
status is nothing more than a single gross measure that 
distinguishes the poor from the non-poor according to a federal 
definition of poverty. (Id.) It does not account for the severity

(Tr. 4/28 at 139-40 (Test, of Dan Saltrick).) Low parental expectations for 
black students also appeared to be a pervasive problem. (Tr.at 17-18(Test. 
of John Murphy).) Additionally, in the most recent school year, roughly 
40% of black children in kindergarten were previously identified in the 
Bright Beginnings program as educationally disadvantaged. (Tr. 4/20 at 
45-50 (Test, of James Puckett).) Consequently, a large percentage of black 
children may lack the type of support system they need prior to entering the 
school system, and this can continue as those children go through the 
system.



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of a family's poverty, and it does not differentiate between 
children of highly affluent parents and children of middle or 
working class parents. (Id.) Dr. Trent further restricted the SES 
effect when he controlled for early test scores. Rather than 
using second grade scores, which are the earliest available 
scores, Dr. Trent used data from either the third, fourth, fifth, 
or sixth grades. (DX 10 App. C, Ex. 5, Tables 9-23 (Trent 
Rpt.).) The use of these later test scores attenuates the ability 
to control for skills that children have before they enter the 
school system. (Tr. 6/21 at 154-55 (Test, of Dr, David Armor).) 
Also, he only controlled for the percentage of students who 

were at low mastery levels, as opposed to the full range o f the 
variables. (Id. at 154.)

Despite the availability of data, Dr. Trent did not 
attempt to control for parental education, parental income, and 
other important SES variables that social scientists agree have 
a direct, cumulative impact on academic achievement. (Id., at 
153-54.) As stated in Wessmann: "[T]he requirement of 
considering various salient causal factors is part and parcel of 
a party's duty to limn a plausible causal relationship between 
particular independent and dependent variables." 160 F.3d at 
805 n. 8 (citation omitted); see also City o f  Yonkers, 181 F.3d 
301, 316 (rejecting a regression analysis that omitted several 
SES factors known to describe profound childhood influences). 
Because Dr. Trent restricted his consideration of crucial SES 

factors, the Court accords little or no weight to his regression 
analyses. See Bazemore, 478 U.S. at 400 & n. 10,106 S.Ct. at 
3009 & n. 10 ("Normally, failure to include variables will affect 
the analysis' probativeness, not its admissibility.... There may, 
o f course, be some regressions so incomplete as to be 
inadmissible as irrelevant."); Roger v. Reno, 98 F.3d 631, 637 
(D.C.Cir.1996) ("Courts have n o t ... understood Bazemore to



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Opinion o f  the District Court o f  September 9, 1999

require acceptance of regressions from which clearly major 
variables have been omitted.").

Dr. Trent also argued that the achievement gap, or at 
least a portion thereof, is explained by "school climate," that is, 
the extent to which teachers in a given school have high 
expectations o f and favorable attitudes toward their students. 
(DX 10 at 2, 7 (Trent Rpt.); Tr. 5/26 at 90 (Test, of Dr. 
William Trent).) Dr. Trent's methodologies and conclusions 
concerning school climate were sharply criticized and 
ultimately invalidated in Wessmann, 160 F.3d at 804-06. In 
Wessmann, the First Circuit stated:

Dr. Trent's charge was to trace the causal relationship, 
if  any, between teacher attitudes and poor student 
performance. His failure to obtain reliable data 
disabled him from taking even the first step, for he 
could not validly establish whether Boston teachers' 
attitudes in fact were discriminatory, let alone show that 
they caused (or even significantly contributed to) the 
achievement gap. This first step is a cornerstone of the 
entire research project; in its absence, Dr. Trent could 
not legitimately eliminate other variables (including 
societal discrimination) that might explain the 
achievement gap in the Boston public schools.... It 
follows inexorably that, with no methodological 
support, he *277 could not produce a meaningful 
analysis o f causation and, accordingly, his conclusions 
cannot bear the weight of the School Committee's 
thesis.

Id. at 805 (citations omitted). The Court finds that Dr. Trent's 
climate study in the case at bar suffers from many of the same



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defects.

Dr. Trent's analysis involved self-selected visits to 
twenty-five schools, interviews with various unnamed CMS 
employees, and reliance upon third-party survey data. (Tr. 5/26 
at 22-23, 197-98 (Test, of Dr. William Trent).) The 
self-selection o f visits to less than one-fifth of the district's 
schools suggests that his study may have been result-driven. 
These visits "lasted on average between 45 minutes to an hour," 
(DX 10 at 3 (Trent Rpt.)), and were conducted over the course 
of about six days. (Tr. 5/26 at 22 (Test, of Dr. William Trent).)
The Court finds it incredible that a school can be labeled as 

having lower student expectations based upon such brief visits. 
This limited amount of time fails to grasp the multitude of 
factors that impact upon a daily interaction between teachers 
and students and fails to do so in a way that permits 
system-wide inferences.

In addition, the survey information relied on by Dr. 
Trent is suspect. These data consisted of voluntary responses 
to a question from a CMS teacher survey conducted in three 
separate school years. Notably, the question was not worded 
the same every year. In the 1995-96 and 1996-97 school years, 
the question asked whether students of all races and 
backgrounds got along well at that school. (DX 10 App. C, Ex. 
4, Table 8 (Trent Rpt.).) This question cannot be a reliable 
measure of teacher attitudes because the responses said nothing 
about how the faculty or administration was treating students; 
it only asked how students treated each other. (Tr. 5/27 at 
41-42 (Test, of Dr. William Trent); Tr. 6/21 at 157 (Test, of 
Dr. David Armor).) The survey question from the 1997-98 
school year ambiguously asked whether students were treated 
fairly regardless of "cultural" background. (DX 10 App. C, Ex.



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4, Table 8 (Trent Rpt.).) This question is problematic because 
"culture" is a much broader concept than "race" and can be 
interpreted differently. (Id./ Tr. 5/26 at I 85-86 (Test, of Dr. 
William Trent); Tr. 6/21 at 157 (Test, of Dr. David Armor).) 
Also, the question does not distinguish between the treatment 
of blacks, whites, Hispanics, Asians, or others, so it is an 
unreliable indicator for racial discrimination against blacks. 
(Tr. 6/21 at 157-58 (Test, of Dr. David Armor).)

The survey questions relied upon by Dr. Trent do not 
provide—and, apparently, were not designed to provide-an 
accurate measure of teacher attitudes and expectations. (Id. at 
156.) Furthermore, Dr. Trent conceded that he made no effort 
to validate the survey data. (Tr. 5/26 at 203 (Test, o f Dr. 
William Trent).) Assuming arguendo that the survey 
responses are an accurate measure of student treatment, a 
school-by-school comparison of these data indicates a high 
level of fair treatment regardless of the racial composition of 
the school. (PX 137 (Armor Rebuttal Rpt.); Tr. 6/21 at 
158-59 (Test, o f Dr. David Armor).) In fact, the percentage of 
teachers who agree that students are treated fairly is as great or 
greater in schools with the highest percentage of black students 
than in schools that are racially balanced or imbalanced-white. 
(PX 137 (Armor Rebuttal Rpt.); Tr. 6/21 at 158-59 (Test, of 
Dr. David Armor).) Thus, the evidence would show, once 
again, that racial balance in student assignment is a factor not 
directly related to academic achievement.

Perhaps the most serious deficiency in Dr. Trent's 
analysis is that he did not attempt to show that the alleged 
differences in teacher expectations were attitudinal remnants of 
the segregation era. (Tr. 5/26 at 179 (Test, of Dr. William 
Trent).) Given that the vast majority of teachers in CMS came



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Opinion o f  the District Court o f  September 9, 1999

to the system in the post-segregation era, it would appear 
unlikely that any such differences could be traced to the dual 
system. In the end, *278 even if it could be demonstrated 
scientifically that teachers in CMS have lower expectations for 
black students, the Court would be hard-pressed to fashion and 
enforce a remedy. Requiring that teachers raise their 
expectations or that students get along is not the type o f "real 
and tangible relief' that courts can provide. Freeman, 503 U.S. 
at 493, 112 S.Ct. at 1447.

Dr. Rosalyn Mickelson, another CMS expert, similarly 
testified that the system deprives blacks of educational 
opportunities. The Plaintiff-Intervenors raised several 
credibility concerns with her testimony.44 Even leaving these 
concerns aside, much of Dr. Mickelson's report was rendered 
useless because she relied on a seriously flawed data matrix.

■̂ Dr. Mickelson failed to candidly disclose the terms of 
compensation for her services. (Tr. 6/15 at 106-12, 120-22 (Test, of Dr. 
Rosalyn Mickelson.) Fed. R. Civ. P. 26(a)(2)(B). In addition, she has had 
a long-standing relationship with CMS in "a number of capacities," 
including co-authoring the "Pupil Assignment Subcommittee Report" for 
the Committee of 25, a group assembled by CMS to examine school 
policies. (Tr. 6/15 at 122 (Test of Dr. Rosalyn Mickelson)); DX 128 
(Committee of 25 Pupil Assignment Rpt.) The reforms advocated in that 
report are similar to the reforms she advocates in this case. Finally, the 
language and format of Dr. Mickelson's report suggested that her work was 
not wholly independent and original. She insisted that, prior to filing her 
report, she never had any contact with Dr. Trent, who offered conclusions 
that were overlapping in subject matter. (Tr. 6/15 at 97-106 (Test, of Dr. 
Rosalyn Mickelson).) Yet, the introduction and point headings in her report 
showed a strikingly verbatim similarity with Dr. Trent's report. (Compare 
DX 8 (Mickelson Rpt,) with DX 10 (Trent Rpt.).) Dr. Mickelson 
emphatically slated that all of the language in her report was her own and 
could offer no simple explanation for the resemblance. (Tr. 6/15 at 113-17 
(Test of Dr. Rosalyn Mickelson).)



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Opinion o f  the District Court o f  September 9, 1999

(Tr. 6/17 at 3-12 (Stipulation by counsel and Test, of Dr. 
Rosalyn Mickelson).) In identifying schools that were racially 
imbalanced, she counted minority student enrollment rather 
than black student enrollment. (Id. at 6.) The effect of using 
minority enrollment almost invariably misstated the alleged 
black enrollment and caused many racially balanced schools to 
be incorrectly labeled as racially identifiable (Id. at 3-12.) 
After considerable debate over the discrepancies, the Court 
directed Dr. Mickelson to double-check her numbers overnight. 
(Tr. 6/16 at 121-74 (Test, of Dr. Rosalyn Mickelson).) The 
next day, she admitted that her data were wrong, and she 
withdrew her regression analysis to the extent that it attempted 
to link lower achievement with attending an imbalanced-black 
school. (Tr. 6/17 at 10 (Test, of Dr. Rosalyn Mickelson).)

Most troubling was the great length Dr. Mickelson went 
to deny an obvious error. She repeatedly sought to explain, 
under oath, that any discrepancies between her data and CMS's 
official enrollment figures were due to head counts being taken 
at different stages o f the school year. (Id. at 127, 136-37, 
161 -62.) She stuck by this explanation even though, in some 
schools, it meant that the racial balance would have fluctuated 
by as much as 20% within a period o f a few days, weeks, or 
months. (Id. at 128,162.) The Court finds that her willingness 
to prop up baseless excuses in an effort to cover up her errors 
raises serious doubts about her scientific objectivity and creates 
suspicions as to the rest o f her report. See Holm v, United 
States, 325 F.2d 44, 46- 47 (9th Cir.1963) (holding that the 
fact-finder may disregard all of an expert's testimony or 
consider it weakened if  the expert contradicts himself or is 
impeached).



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In any event, the remainder o f her report was irrelevant. 
She blamed the achievement gap on CMS's "hierarchically 

differentiated system of instructional delivery, commonly 
known as 'tracking.' " (DX 8 at 7 (Mickelson Rpt.).) She 
overlooked that, in Swann the Court explicitly approved of the 
ability grouping of students. 300 F.Supp. at 1367. 
Furthermore, even though 'in-school segregation' may result 
from this practice, as a matter of law, it is regarded as a 
legitimate means of educating *279 children. As Chief Judge 
Posner recently wrote in a Seventh Circuit opinion:

Tracking is a controversial educational policy, although 
just grouping students by age, something no one 
questions, is a form of 'tracking.' Lawyers and judges 
are not competent to resolve the controversy. The 
conceit that they are belongs to a myth o f the legal 
profession's omnicompetence that was exploded long 
ago. To abolish tracking is to say to bright kids, 
whether white or black, that they have to go at a slower 
pace than they're capable of; it is to say to the parents of 
the brighter kids that their children don't really belong 
in the public school system; and it is to say to the 
slower kids, of whatever race, that they may have 
difficulty keeping up, because the brighter kids may 
force the pace of the class.... [A]s the consensus o f the 
nation's educational authorities, [tracking] deserves 
some consideration by a federal court.

People Who Care, 111 F.3d at 536. Moreover, Dr. Mickelson 
conceded that CMS has flexibility in its 'tracking' practices. 
(Tr. 6/16 at 84-85 (Test, of Dr. Rosalyn Mickelson).) 
Placement in courses is due in part to choice, with choices 
structured and channeled based on prerequisites and prior



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Opinion o f the District Court o f  September 9, 1999

achievement. (Id.) Additionally, CMS allows parents to 
challenge their child's designation. (Id.)

Dr. Mickelson's assumption that CMS was 
discriminating against blacks in the assignment of students to 
academically gifted programs and special education programs 
also was flawed because she was not aware o f the a ss ig n m ent 
criteria used by CMS. (Id. at 11-12.) In fact, assignments to 
these programs involve the use of government standards. (Id. 
at 16.) Furthermore, the assignment processes are inherently 
fair because parents may have their children tested 
independently of the school system to determine whether they 
are academically gifted, (id. at 14), and CMS provides 
meaningful appellate procedures when students are assigned to 
special education programs. (Id. at 17; Tr. 5/19 at 132-35 
(Test, of Calvin Wallace).)

As to Dr. Mickelson's conclusion that the Court should 
order CMS to undertake further reforms, the Court notes that 
her prior research tends to undermine her recommendation. In 
an article published in 1990, she claimed that black students' 
attitudes and beliefs regarding the value o f long-term 
educational benefits were significantly different than for 
whites. (PX 219) (R.A. Mickelson, The Attitude-Achievement 
Paradox Among Black Adolescents, 63 Soc. Educ. 44 (1990).) 
This difference, she wrote, manifested itself in lower black 

achievement. (Id. at 45.) Her article concluded: "Without 
fundamental change in the larger opportunity structure, the 
underachievement o f minority and working-class students is 
likely to persist even in the face of the best-designed and most 
lavishly funded educational reforms." (Id. at 60.) As stated 
throughout equal protection case law, it is beyond the proper 
purpose of a desegregation decree to remedy societal



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Opinion o f  the District Court o f  September 9, 1999

discrimination. Swann, 402 U.S. at 22-23, 91 S.Ct. at 1279. 
Thus, her article indicates that the type of court-ordered remedy 
she envisions would be either improper or futile.

Like Drs. Trent and Mickelson, CMS expert Dr. 
Peterkin asserted that low teacher expectations and inadequate 
educational opportunities were the cause o f underachievement 
for blacks. (DX 6 at 3 (Peterkin Rpt.).) He conducted no 
regression analysis to substantiate this. (Tr. 6/17 at 216, 223 
(Test, of Dr. Robert Peterkin).) His report on student 
achievement was largely a compilation o f statistics without any 
analysis demonstrating a causal relationship between current 
racial disparities and any past or present discrimination. (Id. at 
216-27.) Similarly, Dr. Stevens, the Swann Plaintiffs' expert, 
did nothing more than compile raw statistics to show that 
blacks were underrepresented in gifted programs and 
overrepresented in learning disability programs. (SX 2 at 23-27 
(Stevens Rpt.).) As recognized in Wessmann, "*280 it is 
fallacious to maintain that an endless gaze at any set o f raw 
numbers permits a court to arrive at a valid etiology of complex 
social phenomena." 160 F.3d at 804. "[I]f such statistics axe 
to be at all probative of discrimination, they must link cause 
and effect variables in a manner which would permit such an 
inference." Id.

In asserting that black students were denied access to 
advanced classes, Dr. Peterkin completely ignored the great 
efforts o f CMS to recruit black students to take AP courses, see 
supra, and he overlooked the fact that AP courses are open to 
any students who have taken the prerequisite classes. (Tr. 6/18 
at 3 6 (Test, of Dr. Robert Peterkin).) He conceded that he had 
conducted no study to determine the rate o f black students' 
interest in taking these courses. (Id. at 38-39.) Without some



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Opinion o f  the District Court o f  September 9, 1999

empirical basis for finding similar rates of interest among black 
and white students in classes that are equally open to students, 
there is no rational way to infer lack of access from disparities 
in enrollment.

Though he opined extensively on teacher expectations, 
Dr. Peterkin conducted no interviews with teachers and 
conducted no teacher surveys. (Id. at 72- 73.) He based his 
conclusions on interviews he conducted with CMS central and 
building administrators and on a series often-minute visits to 
various classrooms in self-selected schools. (Id. at 80-81; DX 
6 at 3 (Peterkin Rpt.).) These subjective impressions are 
entitled to little or no weight. Wessmann. 160 F.3d at 806-07.

Finally, the Court notes that Dr. Peterkin was a school 
board witness in the Jacksonville NAACP case, supra, where 
he testified that, based on a comparison to the national 
achievement gap, the achievement gap in Duval County, 
Florida, was not a vestige o f past discrimination. "I find these 
conditions in school systems throughout the nation," he stated, 
adding that " [i]f s one o f those vexing problems in public 
education that we have struggled with," and "I wish I had the 
answers to why it persists in so many districts across this 
nation." (Tr. 6/18 at 70-71 (Test, of Dr. Robert Peterkin) 
(reading transcript from Jacksonville NAA CP).) Based on the 
similarity of facts recited in Jacksonville NAACP, supra slip 
op. at 96-109, 139, the Court finds it disconcerting that Dr. 
Peterkin could reach the exact opposite conclusion about the 
achievement gap in Charlotte.

When Judge McMillan observed the test score 
disparities in 1969, he acknowledged that the measure of a 
school system moving away from segregation is not dependent



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Opinion o f the District Court o f  September 9, 1999

upon student achievement, stating: "Segregation would not 
become lawful, however, if all children scored equally on the 
tests." Swann, 318 F.Supp. at 794 (emphasis deleted). Thirty 
years later, the Court finds no credible evidence that the 
"longstanding and seemingly intractable disparities" in student 
achievement are caused by discriminatory practices of CMS, 
past or present. Keyes, 902 F.Supp. at 1300. Instead, the 
evidence has shown that CMS is an innovative school system.
It has implemented a number o f programs to enhance the 

academic success of all students, black and white.

There always will be something more that CMS can do 
to improve the academic performance of black students, and it 
is encouraging that CMS believes that it can close the 
achievement gap, regardless of whether the system is under 
supervision. (Tr. 6/14 at 90-91 (Test, of Susan Purser).) Of 
course, the school system, not the Court, is best-equipped to 
take on this challenge. See Keyes, 902 F.Supp. at 1307 
("[C]ourts using the adversary system were not designed to 
accomplish institutional reform."); id. at 1281-82 
("[Educational policy is to be determined through the 
democratic process.").

In sum, most of the existing achievement gap is 
explained by available socioeconomic measures. As to the 
portion of the gap that may or may not be explained by 
socioeconomics, the Court cannot find *281 that this is related 
to any discriminatory practice by CMS and cannot identify a 
cause for which the Court can order a realistic and practical 
injunction. Therefore, the Court will not delay the finding of 
unitary status due to racial disparities in student achievement.



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c. Student Discipline

In Swann, the Court never made findings and never 
entered any remedial orders regarding student discipline. The 
Swarm Plaintiffs raise the issue now, however, asserting that 
black students are overrepresented in disciplinary matters. 
Their expert, Dr. Stevens, who has no expertise in the area of 
student disciplinary procedure, (Tr. 5/12 at 49 (Test, of Dr. 
Leonard Stevens)), pointed out that "Black pupils in the District 
are disciplined at rates disproportionate to their presence in the 
schools." (SX 2 at 27-30 (Stevens Rpt.).) Likewise, CMS 
accused itself of discrimination. Dr. Peterkin pointed out that, 
of the 13,206 students disciplined during school years 1995-96 
through 1997-98, 66.3% were black and 33.7% were white. 
(DX 6 Ex. 6a (Peterkin Rpt.).)

Of course, this disparity does not, by itself, constitute 
discrimination; rather, it is probably due to a disproportionate 
incidence of infractions committed by black students. This is 
the most likely explanation given that CMS has a uniform, 
race-neutral policy of discipline, which, CMS officials say, is 
applied to all students fairly. (Tr. 5/19 at 137-41 (Test, of 
Calvin Wallace); Tr. 5/28 at 133-34 (Test, of Ron Thompson).) 
Notably, any student who is charged with a violation has the 
right to an appeal and may assert that the charge was due to 
racial bias. (Tr. 5/19 at 138-41 (Test, of Calvin Wallace).) 
Regional Assistant Superintendent Calvin Wallace, a 
long-standing employee o f CMS who has been responsible for 
developing disciplinary guidelines, testified that he was 
unaware of any students alleging that race played a role in their 
being punished for a violation. (Id. at 141.)



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Despite CMS's uniform guidelines, Dr. Peterkin argued 
that blacks are more likely to face severer penalties than whites 
who commit the same offense. (DX 6 at 8, Ex. 6c (Peterkin 
Rpt.); DX 7 7-8, Exs. H 1-1423 (Peterkin Rebuttal Rpt.).) 
The evidence did not necessarily show this, however. From 
1995-96 to 1997-98, blacks accounted for 62% of in-school 
suspensions and 66% of out-of-school suspensions. These 
ratios almost exactly mirror the overall suspension rate for 
blacks, which, as stated above, was 66.3%. (Compare id., Ex. 
6a with id. Ex. 6c.) The only apparent disproportionality is 
with the assignment of blacks to management schools. O f the 
eighty-four students assigned to these schools from 1995-96 to 
1997-98, sixty-eight (81%) were black, whereas sixteen (19%) 
were white. (Id. Ex. 6c.) Given that a total of 13,206 students 
were disciplined during these three years, (id. Ex. 6a), it is 
difficult to conclude that a disparity among eighty-four students 
constitutes discrimination. Furthermore, the discipline 
imposed in each case will differ based upon the individual facts 
and circumstances. A student might be subject to severer 
penalties, even when the same offense is at issue, due to the 
egregiousness o f the student's conduct or because o f a history 
o f repeated offenses. Dr. Peterkin's analysis did not account 
for these factors. (Tr. 6/18 at 55-67 (Test, o f Dr. Robert 
Peterkin).)

There is little that the Court could do or should do to 
change the racial disparity in student discipline. As Chief 
Judge Posner stated: "Racial disciplinary quotas violate equity 
in its root sense. They entail either systematically 
overpunishing the innocent or systematically underpunishing 
the guilty. They place race at war with justice. They teach 
school children an unedifying lesson of racial entitlements." 
People Who Care, 111 F.3d at 538.



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The Court finds that any disparities that exist in the area 
of discipline are not causally related to the dual system. Given 
that CMS accuses itself for the disparity, it is *282 clear that 
the district is sensitive to the issue. Most importantly, CMS 
has even-handed disciplinary procedures, and it is expected that 
students will be disciplined regardless o f the effect on racial 
statistics. The Court therefore will not prolong supervision 
over CMS due to racial disparities in disciplinary matters.

8. Good Faith

In determining whether a school board has shown a 
good faith commitment to a desegregation plan, a district court 
must consider whether the school board's policies "form a 
consistent pattern of lawful conduct directed to eliminating 
earlier violations." Freeman, 503 U.S. at 491, 112 S.Ct. at 
1446; see Lockett v. Board o f  Educ., I l l  F.3d 839, 843-44 
(11th Cir.), reh'g denied, 121 F.3d 724 (11th Cir.1997). 
Without reservation, the Court finds that CMS has 
demonstrated a good faith commitment to complying with the 
Swann desegregation orders and that there is no concern that 
CMS will return to an unlawfully segregated school system. 
The Court bases this conclusion on several findings.

First, since the final order was entered in Swann in 
1975, the Swann Plaintiffs have never filed a motion for further 
relief, see Jenkins v. Missouri, 967 F.2d 1248, 1251 (8th 
Cir. 1992) ("Monitoring implementation o f the remedy is a 
crucial part of the plaintiffs' function in these cases."), and the 
Court has never had to enjoin or sanction CMS for 
noncompliance. In fact, the only sanctions imposed on CMS 
have been in the current Capacchione litigation, where CMS, 
in its overzealous attempt to keep the desegregation order in



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Opinion o f  the District Court o f September 9, 1999

place, refused to produce relevant documents in an appropriate 
manner and improperly concealed the identity of its trial 
witnesses. (See Order of 4123/99 (sanctioning CMS for 
non-disclosure of trial witnesses); see also Order of 9/16/98 
(ordering CMS to produce documents and warning that 
sanctions may be imposed); Order of 10/7/98 (observing 
CMS's lack of cooperation in releasing information); Order of 
11/23/98 (noting that CMS's pretrial tactics were causing 
"unnecessary obstruction and delay").)

Second, CMS has taken actions that have gone above 
and beyond what the Court's orders required. To cite just a 
few examples, CMS has continued to adjust student attendance 
zones when schools fell out of racial balance, even though 
imbalances were due to private choices and countervailing 
demographic forces. See supra part II.B.l. CMS also 
implemented and expanded a magnet school program, which 
has helped to achieve racial balance in schools where such 
balance otherwise had been difficult to attain.45 See supra parts 
I.B and II.B.l. In addition, CMS instituted a minority 
achievement program, a pre- kindergarten program, and other 
measures to address concerns over the achievement gap. See 
supra part II.B.7.b.ii. In a similar vein, the school board has 
attempted to recruit more black teachers so as to provide more 
minority role models. See supra part I1.B.2. While no 
remedial actions were required in facilities, CMS nevertheless 
adopted baseline standards to improve the quality of all its 
facilities. See supra part II.B.3. Many other examples 
undoubtedly exist, but the Court was unlikely to hear any of

4SIn fact, CMS went too far in trying to achieve racial balance in 
its magnet schools by imposing a prescribed admissions quota that was too 
inflexible. See infra part II.C.



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them from CMS, whose stance in the case was such that it 
offered no self-congratulatory evidence and strongly objected 
to anything that shed favorable light on the school system. 
{See, e.g. Tr. 5/27 at 116 (objection by CMS to document 
references indicating that black students in CMS had 
outperformed blacks nationally on the SAT).)

Third, CMS regularly sought input from the community 
on its desegregation efforts. In addition to regular school 
board meetings held in a public forum, CMS established 
various citizen advisory committees—*283 such as the Citizens 
Advisory Group, the Committee of 16, the Committee o f 25, 
the Committee of 33, and the Future School Planning Task 
Force-to provide suggestions and feedback on school policy.

Regardless o f whether CMS ultimately adopted specific 
committee proposals, the board demonstrated its accessibility 
and openness to criticism and its desire to build community 
support for integration.

Fourth, CMS routinely reaffirmed its commitment to 
integration. On September 10, 1991, CMS declared its 
ambition to be "the premier urban, integrated system in the 
nation" and incorporated this proclamation into its mission 
statement. (See PX 44 at CM035773 ("Student Assignment 
Plan: A New Generation of Excellence").) This mission 
statement has become CMS's mantra. (See id.; PX 104 at 
CM047928 (CMS Facilities Master Plan); PX 30 at 
CM207953 (CMS Resolution adopted 2/11/92); PX 2 at 
CM100533 (CMS Resolution adopted 4/12/94).) CMS even 
passed resolutions supporting integration policies that went 
beyond the school board's authority. For example, on February 
11, 1992, the board unanimously adopted a resolution that 
advocated the building of "low-moderate income housing"



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Opinion o f  the District Court o f  September 9, 1999

throughout the county. (DX 89 at 6 & attach. (CMS Board 
Minutes of 2/11/92); Tr. 6/21 at 95-96 (Test, o f Arthur 
Griffin).) On April 12, 1994, the board further resolved to 
"convene an affordable housing policy task force" to evaluate 
and recommend housing policy initiatives that promote 
integrated communities. (PX 2 (CMS Resolution adopted 
4/12/94).)

Fifth, blacks have maintained a significant presence on 
the school board. Currently, four of the nine school board 
members are black, including the board chairman, Arthur 
Griffin. (Tr. 6/18 at 72 (Test, of Arthur Griffin).) Accord 
Morgan v. Nucci, 831 F.2d 313,321 (1st Cir.1987) ("Minority 
presence in the power structure is a factor that might be 
expected to help prevent regression to a dual system once the 
court's presence is withdrawn."); Riddick, 784 F.2d at 528 
(noting that the racial integration of Norfolk's school board 
made discrimination unlikely). Moreover, white members of 
the board have consistently voted with black members on 
policy issues pertaining to integration. (Tr. 4/22 at 19 (Test, of 
Sharon Bynum).)

Sixth, there has been no evidence o f racial animus or 
discriminatory intent in any school board actions during the 
thirty years that CMS has been under court order. Even when 
the Court scolded the board for dragging its feet at the early 
stages of Swann, the Court never questioned "the motives or the 
judgment of the School Board members." See Swann, 300 
F.Supp. at 1372. Eventually, the board began to actively 
support the Court's desegregation plan, and the Court closed the 
Swann, case in 1975, expressing its confidence that the board 
would remain committed to the plan. Swann, 61 F.R.D. at 
649-50. One former school board member, who served with



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Opinion o f  the District Court o f  September 9, 1999

some fifteen to twenty board members from 1986 to 1996, 
stated that every board member she ever worked with was 
committed to complying with the desegregation order. (Tr. 
4/22 at 19 (Test, of Sharon Bynum).) Despite its 
self-accusatory position in this case, CMS stipulated that, while 
under court order, it never "acted with 'a racially segregative 
purpose.'" (Pl.'s Mem. Supp. Mot. Compel filed 8/17/98, Ex. 
B (CMS's Resp. Interrogs. at 11, no. 11).)

Seventh, while the goal of perfect compliance with 
court orders has remained elusive, no evidence has been 
presented that school authorities were guilty of easily 
correctable errors. Rather, school board members generally 
testified about the difficulties of reassigning students and 
building new facilities. (See, e.g., Tr. 4/22 at 51 (Test, o f 
Sharon Bynum).)

These findings are consistent with observations made 
by Dr. Stolee, the education consultant hired in 1991 to 
evaluate *284 and revise CMS's student assignment plan. 
Stated Dr. Stolee:

For the last twenty years, the Charlotte-Mecklenberg 
Board of Education and the Charlotte-Mecklenburg 
community have, in good faith, complied with the 
orders of the court.... [A] 11 desegregated. Each year 
adjustments have been made to the pupil assignment 
plan in order to keep schools "in balance." This task 
has been complicated by the population growth in the 
Charlotte-Mecklenburg area, with the concomitant need 
to build new schools.



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Opinion o f  the District Court o f  September 9, 1999

It must be said that the Charlotte-Mecklenburg Board 
and community have a great deal of pride in the fact 
that they successfully met a challenge and made the 
solution work. Schools in other parts o f the nation 
have looked to Charlotte-Mecklenburg as an exemplar.

The pride felt and the national respect are well 
deserved.

(DX 108 at 1-2 (Stolee Plan).)

There can be no serious contention that CMS has been 
uncommitted to the Swann desegregation orders. Arguments 
to the contrary are wholly unconvincing. One CMS official's 
unsubstantiated fear that discrimination might reappear in the 
absence o f a court order46 is no grounds for prolonging court

46Associate Superintendent Purser expressed such fear in her 
cross-examination:

Q. But you think that if suddenly the Court declares the school 
system unitary, that all of those things that you have done are 
going to drop off, is that what you are telling this Judge?

A. Yes, I think there would be a difference..,.

Q. So, ma'am, this school system's commitment to enhancing the 
educational opportunities of black students and increasing their 
academic achievement is something that this administration and 
this School Board is going to make sure happens regardless of 
what happens in this case, isn’t it?

A. Yes, this School Board will in fact be focused. But again, 
the School Board will change, superintendents will change, the 
people involved in this organization will change.



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Opinion o f  the District Court o f  September 9, 1999

supervision. Singleton v. Jackson Mun. Separate School Dist., 
541 F. Supp. 904, 914 (S.D.Miss.1981). Similarly, isolated 
incidents of racial insensitivity that never were condoned by 
CMS cannot be a basis for denying unitary status.47 In fact, the 
evidence consistently showed that persons involved in such 
incidents were investigated, reprimanded, suspended, or even 
fired. (See, e.g., Tr. 5/25 at 192-93, 217-19 (Test, of Teresa 
Cockerham); Tr. 5/28 at 94-96, 109-10 (Test, of Ron 
Thompson); Tr. 6/8 at 41-43 (Test, o f Eric Smith); Tr. 6/18 at 
169-70 (Test, of Arthur Griffin).)

The Court finds that CMS has eliminated the vestiges 
of past discrimination to the extent practicable and has 
complied with the Court's orders in good faith for almost thirty 
years. It is totally unforeseeable that CMS would return to an 
intentionally-segregative system. Accordingly, the Court 
declares that CMS has achieved unitary status in all respects 
and thereby vacates and dissolves all prior injunctive orders 
from Swann.

Q. But you don't know what any future School Board or
administration will do either way, do you?

A. That's exactly my point.
(Tr. 6/14 at 98-101 (Test, of Susan Purser).)

47While the law of employment discrimination under Title VII is 
inapplicable to this case, an instructive principle from that context is that no 
racially discriminatory intent can be established by "stray remarks and 
isolated statements by those unconnected to the final decision-making 
process." See Bodoy v. North Arundel Hosp., 945 F.Supp. 890, 895 
(D.Md.1996), ajfd, 112 F.3d 508 (4th Cir.1997).



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Opinion o f  the District Court o f  September 9, 1999 

H. Constitutional Injuries

It is important to remember that the current litigation 
started not as a petition for unitary status but as a 
discrimination suit arising out of Cristina Capacchione's denial 
of admission to a magnet school based on her race. CMS 
responded that it was required to use racial criteria in the *285 
school's admissions program based on the Swann desegregation 
orders. As such, CMS argues that it cannot be held liable for 
actions taken pursuant to a court order. CMS further argues 
that its race-based policies are constitutionally permissible 
under the theory that achieving diversity is a compelling state 
interest. The Plaintiff-Intervenors counter that CMS cannot 
use the Swann orders as a defense because the system has been 
de fa c to  unitary for years. A dditionally, the 
Plaintiff-Intervenors argue that various race-based policies 
instituted by CMS are unconstitutional because they are not 
narrowly tailored.

1. Immunity under the Sw an n  Orders

Public officials acting pursuant to court directives are 
immune from liability for damages in a suit challenging the 
prescribed conduct. Wolfe v. City o f  Pittsburgh, 140 F.3d 236, 
240 (3d Cir.1998). Up until this ruling, CMS was still under 
court order. The Court finds no legal basis for a finding of de 
facto  unitary status that would abrogate CMS's immunity 
retroactively. In other words, the termination of court 
supervision today cannot "relate back" to an earlier time. The 
relinquishment of court supervision in a desegregation case 
must be clear and unambiguous. Dowell, 498 U.S. at 246, 111
S.Ct. at 636. As stated in Dowell: "[A] school board is entitled 
to a rather precise statement of its obligations under a



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Opinion o f  the District Court o f  September 9, 1999

desegregation decree. If such a decree is to be terminated or 
dissolved,... the school board [is] entitled to a like statement 
from the court." Id. (citing Spangler, A l l  U.S. 424, 96 S.Ct. 
2697). Here even though the Swann case was closed in 1975 
and remained inactive for over twenty years, jurisdiction was 
expressly retained, Swann, 67 F.R.D. at 649; Martin, 475 
F.Supp. at 1341, and CMS continued to act as if  it were under 
court order. Consequently, CMS enjoys immunity from liability 
for any actions it took consistent with the Court's injunction.

This immunity has limits, however. CMS cannot enj oy 
immunity for ultra vires acts—that is, acts that are beyond the 
scope of the Court's mandate and that are not otherwise 
constitutionally authorized. As discussed above, the Supreme 
Court's decision in Swann recognized the limits of how race 
could be considered in crafting a desegregation order. See 
supra part II.A. In addition, the development of equal 
protection jurisprudence since Swann has further crystallized 
the limitations to which state actors must adhere when enacting 
race-based remedial policies. See supra part II.A. Thus, 
contrary to CMS's position in this case, the Swann 
desegregation order was not a license to pervade every aspect 
of school operations with an ever-expansive array of race-based 
policies. See People Who Care, 111 F.3d at 534 ("[A 
desegregation] remedy must be tailored to the violation, rather 
than the violation being a pretext for the remedy. Violations 
of law must be dealt with firmly, but not used to launch ... 
ambitious schemes of social engineering.").

Given the potential misuse o f race-conscious remedies 
and the plausible inadequacies of injunctive relief, it is 
conceivable that certain school board actions could open the 
door to liability for legal damages. For instance, involuntary



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Opinion o f the District Court o f  September 9, 1999

busing that is so unreasonably long that it jeopardizes the 
health, safety, or educational experience o f schoolchildren (of 
any race), coupled with a school system's refusal to make 
reasonable accommodations or provide reasonable alternatives, 
is the sort of unauthorized act that, in the most extreme cases, 
could give rise to liability. See Swann, 402 U.S. at 30-31, 91 
S.Ct. at 1283 ("An objection to transportation of students may 
have validity when the time or distance o f travel is so great as 
to either risk the health of the children or significantly impinge 
on the educational process."); see also *286Washington v. 
Seattle School Dist. No. 1, 458 U.S. 457, 492 n. 6, 102 S.Ct. 
3187,3206 n. 6,73 L.Ed.2d 896 (1982) (Powell, J„ dissenting) 
("Extensive pupil transportation may threaten liberty or privacy 
interests." (citations omitted)); cf. 20 U.S.C. § 1714 (1999) 
(prohibiting busing when it adversely affects students' health 
and educational experience). The evidence did not present 
such a situation here.

An area of liability that is, however, at issue in this case 
is the use of rigid racial quotas. One of the most basic tenets 
underlying Swann was that the use of mathematical ratios in 
desegregation plans could be used as a "starting point" but 
could not be used as an "inflexible requirement." Swann, 402 
U.S. at 25,91 S.Ct. at 1280. Of course, if  Judge McMillan had 
mandated the use of inflexible quotas, CMS could not be held 
liable, even though the Court's order would have been 
unconstitutional. See Turney v. O'Toole, 898 F.2d 1470, 
1472-73 (10th Cir.1990) ("[Ojfficials charged with the duty o f 
executing a facially valid court order enjoy absolute immunity 
from liability for damages in a suit challenging conduct 
prescribed in that order. .... 'Facially valid' does not mean 
'lawful.' An erroneous order can be valid." (citations and 
brackets omitted)). Judge McMillan, however, firmly rejected



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Opinion o f  the District Court o f  September 9, 1999

the use of rigid racial quotas, see Swann, 306 F.Supp. at 1312 
("Fixed ratios of pupils in particular schools will not be set."), 
and always allowed for flexibility in the use of racial balancing 
goals. See, e.g., Swann, 311 F.Supp. at 268 (stating that 
"variations from [the] norm may be unavoidable" and crafting 
guidelines with elastic terms, such as "approximately" and 
"about the same proportion"). CMS ran the risk o f  exposure 
to liability when, in instituting its magnet program without 
seeking judicial approval, it implemented a new regime o f rigid 
race-based assignment procedures.

A school board that is under a desegregation order is not 
barred from ever modifying a desegregation plan, but, prior to 
making substantial changes, the board is expected to seek 
approval from the supervising court. Riddick, 784 F.2d at 535.
Thus, in Swann the Court left "maximum discretion in the 

Board to choose methods that will accomplish the required 
results"48 but the Court also "directed that leave o f court be 
obtained before making any material departure from any 
specific requirement." 311 F.Supp. at 270. Dr. Stolee 
recognized this obligation when he drafted the proposed 
magnet plan in 1992. (DX 108 at 9 (Stolee Plan).) Of the 
forty-four recommendations he made to CMS in that plan, 
"RECOMMENDATION # 1" read: "THE SCHOOL BOARD, 
THROUGH LEGAL COUNSEL, SHOULD APPROACH THE 
FEDERAL COURT TO SECURE APPROVAL TO CHANGE

48Just because the Court gave CMS "maximum discretion" does 
not mean that the Court should allow an abuse of discretion. " [T]he Brown 
Court made it abundantly clear that constitutional principles cannot take a 
back seat to the discretion of local school officials in respect to matters such 
as the racial composition of student bodies." Wessmann, 160 F.3d at 797 
n. 3.



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Opinion o f  the District Court o f September 9, 1999

THE COURT-ORDERED DESEGREGATION PLAN." (Id. at 
9,606-8 (caps in original).) The board ignored this advice.

CMS now maintains that magnets schools are 
permissible under the existing Swann orders and, particularly, 
under the provision for "optional schools" in the 1974 CAG 
Plan. 379 F.Supp. at 1104. The Court acknowledges that a 
magnet school can be an acceptable desegregation tool. See, 
e.g., Milliken, 433 U.S. at 272, 97 S.Ct. at 2753. The Court 
also acknowledges that the optional schools of the 1970s, 
similar to today's magnet schools, involved countywide open 
enrollment and a racial balancing target. Id. Nonetheless, the 
way that CMS's magnet program uses race in its admissions 
process is significantly different from any assignment policy 
ordered or approved of in Swann.49 *287 This change in the 
student assignment process was a material departure from the 
Swann orders. Ultimately, however, what is important is not 
whether CMS departed from the desegregation order, but 
whether CMS departed from the order in a way that harmed 
someone's rights. Cf. Dowell, 498 U.S. at 249-50 n. 1, 111 
S.Ct. at 638 n.l.

49Furthermore, magnets differ from optional schools in that 
magnets offer specialized curricula and thereby convey to a subset of 
students a benefit above and beyond the regular academic program. (See 
PX 43 (CMS Magnet Options 1998-99).) in this way, the case at bar is 
distinguishable from the 1979 Martin case. See supra part I.B. In Martin, 
the Court rejected a challenge based on Bakke to CMS's race- conscious 
reassignment of students because, under that reassignment, all students were 
guaranteed admission into schools of equal quality; the question was 
simply where. Martin, 475 F.Supp. at 1321. Here, the magnet school 
program, as advertised by CMS, provides special benefits. (PX 43 (CMS 
Magnet Options 1998-99).) Thus, contrary to the situation in Martin 
students are being denied "opportunities or benefits enjoyed by others 
solely because of [ ] race." Bakke, 438 U.S. at 305, 98 S.Ct. at 2756.



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Opinion o f  the District Court o f  September 9, 1999

2. The Magnet School Admissions Policy

CMS's magnet school admissions policy has never been 
subject to judicial review or approval. The use of racial 
criteria in this process is constitutionally suspect, so the Court 
reviews the admissions policy under a strict scrutiny analysis. 
See Adarand, 515 U.S. at 215-16, 115 S.Ct. at 2107 (holding 

that strict scrutiny applies to all racial classifications). This 
analysis provides that racial classifications are constitutional 
only if they further compelling governmental interests and are 
narrowly tailored measures. Id. at 227, 115 S.Ct. at 2113.

That the magnet admissions process uses racial 
classifications is clear. At the start of the process, CMS first 
fills seats with preferences based on whether the applicant lives 
in close proximity to the school and whether the applicant has 
any siblings in the school. (PX 53 (1997-98 Magnet 
Application Process); PX 44 at CM035759 (1992 Student 
Assignment Plan).) CMS then fills the remaining seats by 
selecting students from a black lottery and a non-black lottery 
until the precise racial balance is achieved. (PX 53 (1997-98 
Magnet Application Process); Tr. 4/27 at 164-65 (Test, of 
David Wells).)

As stated in the 1992 student assignment plan: "Spaces 
in magnet schools will be allocated to a percentage of black 
students that equals the system-wide percentage of black 
students. Grade levels will maintain racial balance." (PX 44 
at CM035757 (1992 Student Assignment Plan).) The policy 
further states:

Racial balance will be maintained and applicants on a
waiting list will only be admitted if  the 40%/60% racial



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Opinion o f  the District Court o f  September 9, 1999

balance can be maintained. If there are insufficient 
applications to fill the program and create the 
appropriate racial balance, racial balance will be 
allowed to fluctuate, but slots reservedfor one race will 
not be filled  by students o f  another race.

(JId. at CM035760 (emphasis added); PX 8 at CM007233 
(Mem. from Schiller to the Board of 11/4/99).) As likewise 
explained in a memorandum by Dr. Stolee to 
then-Superintendent Murphy: "Each magnet school should 
enroll a student body of 60% white and 40% black. If one race 
were to be underenrolled, the other race should not be 
permitted to fill  the vacant slots." (SX 56 at CMI01611 (Mem. 
from Dr. Stolee to Dr. Murphy of 6/11/92) (emphasis added).)

CMS has argued that because the admissions process 
involves other criteria besides race, namely, proximity and 
sibling preferences, it cannot be deemed a racial quota. 
Similar semantics regarding the race-based admissions policy 
of the Boston Latin School were rejected by the First Circuit:

At a certain point in its application process... the Policy 
relies on race and ethnicity, and nothing else, to select 
a subset of entrants. Thus, whether the Policy is truly 
a quota or whether it is best described otherwise is 
entirely irrelevant for the purpose of equal protection 
analysis. Attractive labeling cannot alter the fact that 
any program which *288 induces schools to grant 
preferences based on race and ethnicity is 
constitutionally suspect.

Wessmann, 160 F.3d at 794; see also Bakke, 438 U.S. at 289, 
98 S. Ct. at 2747 (observing that regardless o f whether the



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Opinion o f  the District Court o f  September 9, 1999

limitation at issue was "described as a quota or a goal," it was 
"a line drawn on the basis of race and ethnic status.").

In policy and in practice, the 60-40 racial requirement 
is an inflexible quota. In the case of Olde Providence School, 
where Cristina Capacchione applied to kindergarten for the 
1996-97 school year, 104 seats were available for the incoming 
class; 42 of those seats were reserved for blacks, and 62 seats 
were reserved for non-blacks. (DX273 (1996-97 Magnet Seats 
for Olde Providence); Tr. 6/14 at 67 (Test, o f Susan Purser).) 
CMS received magnet applications for the 1996-97 school year 
in the early months of 1996. (Tr. 6/14 at 67 (Test, of Susan 
Purser); see PX 53 (Magnet Application Process.) After 
granting proximity and sibling preferences, 47 seats remained 
available: 26 black seats and 21 non-black seats. (DX 273 
(1996-97 Magnet Seats for Olde Providence); Tr. 6/14 at 67, 
173 (Test, of Susan Purser).) Then, in April 1996, CMS 
selected students from the black and non-black lotteries. (Tr. 
6/14 at 67 (Test, of Susan Purser). The dual lottery managed 
to fill every non- black seat at Olde Providence and all but two 
black seats. (Id.)

While all blacks who applied to Olde Providence were 
admitted, more than a hundred non-blacks were placed on a 
waiting list.50 (Id. at 178; PX 61 (1996-97 Magnet Waiting

50CMS argues that Cristina's lottery number was high enough that 
she would not have obtained admission to Olde Providence even if race 
were not considered. (Tr. 6/14 at 68-69 (Test, of Susan Purser).) Likewise, 
Benjamin Gavreau, a child of one of the Plaintiff-Intervenors, had a lottery 
number that was too high to obtain admission at his magnet school of 
choice, Davidson IB, even if race were not considered. (Id. at 72.) This is 
not the proper standard for analyzing an equal protection violation. As 
stated by the Supreme Court in Northeastern Fla. Chapter o f the Associated



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Opinion o f  the District Court o f  September 9, 1999

Lists).) Rather than fill the two black vacancies with 
wait-listed applicants-which would have resulted in a student 
body well within the court-ordered racial balancing 
guidelines-CMS continued to actively recruit black applicants 
and even sought late applications on into and through the 
summer. (Tr. 6/14 at 174 (Test, of Susan Purser).) As the 
school year began in the fall, Olde Providence finally filled the 
last two vacancies, and the kindergarten class consisted o f 41 
blacks (39.4%) and 63 non-blacks (60.6%). {Id. at 77; Tr. 4/27 
at 164-66 (Test, of Jonathan Wells); PX 64 (1996-97 Magnet 
Enrollment).) In this instance, Olde Providence deviated from 
official CMS policy; a non-black applicant received a black 
seat. In other magnet programs, however, where the 
admissions policy was strictly enforced, it was not uncommon 
for the school year to begin with seats remaining vacant 
because to admit students of one race would disrupt the desired 
racial balance. (Tr. at 4/27 at 164-66 (Test, of Jonathan Wells);

Gen. Contractors o f  Am. v. City o f Jacksonville, 508 U.S. 656, 666, 113 
S.Ct. 2297, 2303, 124 L.Ed.2d 586 (1993):

When the government erects a barrier that makes it more difficult 
for members of one group to obtain a benefit than it is for 
members of another group, a member of the former group seeking 
to challenge the barrier need not allege that he would have 
obtained the benefit but for the barrier in order to establish 
standing. The 'injury in fact' in an equal protection case of this 
variety is the denial of equal treatment resulting from the 
imposition of the barrier, not the ultimate inability to obtain the 
benefit.

See also Bakke, 438 U.S. at 280-81 n. 14, 98 S.Ct. at 2743 n. 14 (”[E]ven 
if Bakke had been unable to prove that he would have been admitted in the 
absence of the special program, it would not follow that he lacked 
standing.").



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Opinion o f  the District Court o f  September 9, 1999

Tr. 6/14 at 174-77, 195 (Test, of Susan Purser); PX 43 (CMS 
Magnet Options 1998- 99); PX 56 (Mem. from Henry to Smith 
of 10/1/96); PX 61 (1996-97 Magnet Waiting Lists); PX 63 
(Magnet School Vacancies).)

Because CMS was still under court order when it 
implemented this procedure, *289 the Court accepts that the 
school system was acting to further a compelling governmental 
interest, i.e., remedying the effects of past racial discrimination. 
CMS's alternative theory, that it has a compelling governmental 
interest in pursuing racial diversity, is therefore irrelevant. The 
Court notes, however, that a growing number of circuit courts 
have held, based on recent Supreme Court precedent, that 
diversity is never a compelling governmental interest, Lutheran 
Church-Mo. Synodv. FCC, 141 F .3d344,354 (D.C.Cir.1998); 
Hopwood, 78 F.3d at 948, and other courts have soundly 
rejected the diversity rationale based on the facts before them. 
Wessmann, 160 F.3d at 795-800, Hayes, 10F.3dat213.

In reviewing whether the magnet admissions procedure 
is narrowly tailored, the Court considers factors such as: (1) 
the necessity o f the policy; (2) the flexibility of the policy, 
including the availability of waiver provisions; (3) the 
relationship o f the numerical goal to the relevant population; 
(4) the burden o f the policy on innocent third parties; and (5) 
the duration o f the policy. United States v. Paradise, 480 U.S. 
149, 171, 107 S.Ct. 1053, 1066, 94 L.Ed.2d 203 (1987) 
(plurality opinion); Middleton v. City o f  Flint, 92 F.3d 396, 
409 (6th Cir.1996), cert, denied, 520 U.S. 1196, 117 S.Ct. 
1552, 137 L.Ed.2d 700 (1997); Hayes, 10F.3dat216.

As to the necessity of the magnet admissions policy, the 
Court observes that CMS never was required to implement the



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Opinion o f  the District Court o f  September 9, 1999

procedure in question, and, in fact, the procedure goes far afield 
from the guidelines set forth in Swann. 402 U.S. at 22-25, 91 
S .Ct. at 1279-81. Contrary to the Supreme Court's admonition 
in Swann, CMS is using mathematical ratios not as a "starting 
point" but as an "ending point." Id. at 25, 91 S.Ct. at 1280. 
CMS unreasonably prohibits any variance from the 60-40 
reservation of magnet seats by race. The result is that children 
are being denied the special benefits offered by magnet 
programs based solely on their race. This denial o f equal 
footing occurs even where seats are available and where racial 
balancing goals under the desegregation order would not be 
affected.

It was especially unnecessary for CMS, after twenty 
years of operating under a desegregation order, to institute 
racial policies that were even more race conscious than what 
were originally ordered. See Detroit Police Officers Ass'n v. 
Young, 989 F.2d 225,228 (6th Cir. 1993) (holding that the same 
affirmative action program that had been upheld in the 1970s 
was no longer narrowly tailored or required to serve a 
compelling state interest because circumstances had changed 
over two decades). The Court originally sought to desegregate 
schools by assigning students based on the racial compositions 
of geographic zones. By comparison, the magnet admissions 
process focuses primarily on individual students' racial 
identities.

The inflexibility of the magnet admissions policy is 
particularly troubling. The Court is hard-pressed to find a more 
restrictive means of using race than a process that results in 
holding seats vacant while long waiting lists full of eager 
applicants are virtually ignored. At the very least, the 
admissions policy should have contained a waiver provision to



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Opinion o f the District Court o f  September 9, 1999

overcome this inflexibility. Paradise, 480 U.S. at 177-78,107 
S.Ct. at 1070. The Court also notes that flexibility is not 
demonstrated by the fact that some of the magnet programs 
deviate from a precise 60-40 ratio. The issue is not whether 
the racial classification produces a consistent outcome; the 
issue is whether the set-aside unjustifiably curtails the rights o f 
others. Wessmann, 160 F.3d at 794. Thus, the fact that the 
magnet admissions policy allows for racial balance to 
"fluctuate" does not cure the fact that "slots reserved for one 
race will not be filled by students of another race." (PX 44 at 
CM035757 (1992 Student Assignment Plan).)

While the 60-40 numerical goal is related to the relevant 
population, i.e., the racial composition o f schoolchildren in 
CMS, *290 some consideration should have been given to the 
practicability of achieving this precise ratio in every magnet 
school. The Court notes that the system has one exception to 
the 60-40 target: Davidson IB, which has a 75% 
non-black—25% black enrollment requirement. (Tr. 5/19 at 
86-88 (Test, of Calvin Wallace).) Davidson IB is excepted, 
presumably, because it is located in the northernmost area o f 
the county, where achieving a 6040 ratio is impracticable. 
This 75-25 ratio is still well within the requirement o f the 1974 
CAG Plan that the black populations at optional schools be "at 
or above approximately 20%." Swann, 379 F.Supp. at 1108.

With regard to the burdens placed on third parties, the 
families with children placed on a waiting list must wait for 
months without knowing where their children eventually will 
be placed. Parents need to make accommodations regarding 
their child's education far in advance. It is unfair to allow this 
type o f delay when, as discussed above, the strict adherence to 
a 60-40 ratio is wholly unnecessary. See People Who Care,



358a

Opinion o f  the District Court o f  September 9, 1999

111 F.3d at 534 ("Children, the most innocent of the innocent 
persons brushed by draconian decrees, should not be made 
subjects of utopian projects.").

Finally, the 1992 magnet plan made no mention of the 
duration that CMS would use racially segregated lotteries, 
vacancies, and waiting lists. The temporal scope is important 
because preferences may remain in effect only so long as 
necessary to remedy the discrimination at which they are 
aimed; they may not take on a life of their own. Paradise, 480 
U.S. at 178-79, 107 S.Ct. at 1070.

In sum, the Court finds that the magnet school 
admissions policy is not properly tailored. In fact, there is no 
reasonable basis for the rigid set- asides. Essentially, CMS is 
"standing in the schoolhouse door" and turning students away 
from its magnet programs based on race, which is inconsistent 
with the movement towards race neutrality envisioned in 
Brown I.

3. Nominal Damages

As the Court already ruled out an award o f actual 
damages, (Order o f5/28/99 at 1), CMS shall be held nominally 
liable in the amount o f one dollar. The rationale for awarding 
nominal damages is that federal courts should provide some 
marginal vindication when a constitutional violation occurs, 
even if the injury is not measurably compensable. Price, 93 
F.3d at 1246. Here, the award of nominal damages serves to 
vindicate the constitutional rights of children denied an equal 
footing in applying to magnet schools.



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Opinion o f  the District Court o f  September 9, 1999

D. Injunctive Relief

Upon a declaration of unitary status, a district court 
must relinquish jurisdiction over a school system and restore 
control to state and local authorities. Freeman, 503 U.S. at 
489, 112 S.Ct. at 1445. Notwithstanding the relinquishment 
of jurisdiction, courts that have dissolved desegregation orders 
simultaneously have entered "permanent injunctions" to the 
effect that the school system shall not intentionally segregate 
students and shall comply with the commands of the Fourteenth 
Amendment. Wessmann, 160F.3dat800-01; c f  Dowell, 498 
U.S. at 250,111 S.Ct. at 638 ("A school district which has been 
released from an injunction... of course remains subject to the 
mandate of the Equal Protection Clause."). Such an injunction 
operates as a negative injunction rather than a requirement of 
affirmative action because a school system that has achieved 
unitary status has satisfied the mandate of Green and therefore 
has no more affirmative obligation to actively desegregate. 
Wessmann, 160 F.3d at 801; Riddick, 784 F.2d at 534-39. 
Indeed, once a school system is declared unitary, the remedial 
justification for using race-conscious policies is gone, and the 
district must reevaluate any continuing use o f race in school 
policy. See Keyes, 902 F.Supp. at 1282- 86 (declaring a school 
system unitary and cautioning that, "[i]n the future, the 
District's use of race *291 ... will be subject to the 
constitutional limitations articulated by the Supreme Court in 
recent opinions, including Adarand...., and the requirements of 
applicable state and federal statutes").

In conjunction with their request for a unitary status 
declaration, the Plaintiff-Intervenors seek an injunction barring 
CMS from assigning students or otherwise allocating benefits 
to students based on race. In their post-trial briefing, the



360a

Opinion o f the District Court o f  September 9, 1999

Plaintiff-Intervenors suggested that CMS should report to the 
Court to confirm that all race-based policies throughout the 
system have been terminated and to describe and provide 
justification for any such policy that CMS seeks to maintain. 
(Pl.-Intervenors' Proposed Findings of Fact and Conclusions of 
Law at 110.) The Court believes that such administrative 
entanglement would be inconsistent with the relinquishment of 
court supervision. For similar reasons, the Court will not 
demand clearance of any future student assignment plans prior 
to implementation. See Dowell, 498 U.S. at 250,111 S.Ct. at 
638 (stating that, when courts return control to local authorities, 
those school systems "no longer require [ ] court authorization 
for the promulgation o f policies and rules regulating matters 
such as assignment o f students and the like.").

On the other hand, the Court is not precluded from 
granting injunctive relief as to the underlying § 1983 action. 
See Evans v. Harnett County Bd. o f  Educ., 684 F.2d 304, 306 
(4th Cir.1982) (holding that the district court committed clear 
error in failing to grant the plaintiffs requested injunctive relief 
under § 1983 because the court found an underlying 
constitutional violation and there was a possibility of 
prospective harm to others). As set forth above, the Court 
found that CMS's magnet school admissions policy went 
beyond constitutionally permissible bounds because it was not 
narrowly tailored and was not within the guidelines of the 
desegregation plan. See supra part II.C.2. Given that CMS 
now has achieved unitary status, the magnet admissions process 
is a fortiori unconstitutional. The additional problem is that, 
in a non-remedial, unitary status setting, the use of race in the 
admissions process does not further a compelling governmental 
interest.



361a

Opinion o f  the District Court o f  September 9, 1999

CMS offers its "diversity" rationale as a justification for 
using race, but, as stated above, the emerging consensus is that 
achieving diversity is not a proper grounds for race-conscious 
action. See supra part II.C.2. CMS offered the testimony of a 
few lay witnesses to state for the record that racial diversity in 
classrooms is needed because as society becomes more racially 
heterogeneous, students must learn to communicate and 
cooperate with people of different backgrounds. (Tr. 6/9 at 
7-14 (Test, o f Ed Crutchfield); Tr. 6/17 at 63-70 (Test, of 
Jackie Fishman); Tr. 6/16 at 185-94 (Test, o f James 
Woodward).) While the bases offered for this testimony were 
vague and inconclusive,51 the Court accepts that children may 
derive benefits from encounters with students of different races.
Nevertheless, a major problem with the single-minded focus 
on racial diversity is that it produces diversity in nothing but 
race. Children are not viewed as individual students but as 
cogs in a social experimentation machine.

In Wessmann, the First Circuit addressed the diversity 
justification in the public school context. 160 F.3d at 796-800.

There, the court held that a student assignment policy that 
reserved school *292 seats based on race was not justified in 
the name o f achieving diversity. Id. at 800. In so holding, the

5IFor example, CMS called Ed Crutchfield, CEO of First Union 
Bank, to testify that employees enter the workplace with a handicap if they 
attended schools that are all or virtually one race. (Tr. 6/9 at 12-14 (Test, 
of Ed Crutchfield).) Yet, Crutchfield also testified that employees who 
attended historically black colleges are not limited in their potential for 
success. (Id. at 19.) Similarly, Jackie Fishman, a CMS teacher, testified 
that racial diversity in essential to having meaningful discussions in the 
classroom, but her basis for making such a statement was limited because 
she has never taught a class that was racially homogeneous. (Tr. 6/17 at 
71-73 (Test, of Jackie Fishman).)



362a

Opinion o f  the District Court o f  September 9, 1999

court rejected a similar litany of generalizations lauding the 
benefits of racial diversity. Stated the court: "[T]he potential 
for harmful consequences prevents us from succumbing to 
good intentions. The Policy is, at bottom, a mechanism for 
racial balancing—and placing our imprimatur on racial 
balancing risks setting a precedent that is both dangerous to our 
democratic ideals and almost always constitutionally 
forbidden." Id. at 799 (citing Freeman, 503 U.S. at 494, 112 
S.Ct. at 1447; Croson, 488 U.S. at 507,109 S.Ct. at 729); see 
also Metro Broadcasting, 497 U.S. at 602, 110 S.Ct. at 3029 
(O'Connor, J., dissenting) ("Social scientists may debate how 
peoples' thoughts and behavior reflect their background, but the 
Constitution provides that the Government may not allocate 
benefits and burdens among individuals based on the 
assumption that race or ethnicity determines how they act or 
think.").

In the present case, the Court finds that CMS's pursuit 
of diversity is likewise nothing more than a means for racial 
balancing. In addition, the Court finds that CMS's desire to 
use racial student assignments for diversity purposes suffers 
from the same fatal defect recognized with regard to the "role 
model theory" in Wygant v. Jackson Bd. o f  Educ., "no logical 
stopping point." 476 U.S. 267, 275, 106 S.Ct. 1842, 1847,90 
L.Ed.2d 260 (1986) (plurality opinion); see also Douglas W. 
Kmiec & Stephen B. Presser, The American Constitutional 
Order History Cases and Philosophy 1270-73 (1998) 
(observing that diversity as a rationale for racial preferences in 
public education appears to have been ruled off-limits, in part 
because its rationale applies in perpetuity).

Because, in a unitary setting, the magnet school 
admissions process cannot clear the first hurdle of strict



363a

Opinion o f  the District Court o f  September 9, 1999

scrutiny by showing a compelling governmental interest, the 
Court enjoins CMS from any further use of race-based lotteries, 
preferences, and set-asides in student assignment.52 Absent a 
constitutionally permissible remedial justification, CMS shall 
not foreclose students from consideration for admission into 
certain schools or educational programs simply because o f their 
racial or ethnic category.

E. Attorneys Fees

A prevailing party in a case brought under federal civil 
rights law is entitled to recover his or her reasonable attorneys' 
fees and expert witness fees. 42 U.S.C. § 1988(b)-(c) (1999); 
Hensley v. Eckerhart, 461 U .S.424,429,103 S.Ct. 1933,1937, 
76 L,Ed.2d 40 (1983). The awarding of attorneys' fees to a 
prevailing party is particularly appropriate in a school 
desegregation case.53 Jenkins, 967 F.2d at 1251; Swann, 66
F. R.D. at 484.

In the present case, the Plaintiff-Intervenors prevailed 
after taking on the extraordinary burden o f proving that CMS 
had achieved unitary status. This task was particularly 
challenging given that CMS was the party with the most ready 
access to the voluminous information on the issues before the 
Court. Moreover, the Court had to intervene in several 
discovery matters due to CMS's refusal to produce documents

52In the interest of stability, this injunction shall not affect 
assignments for the 1999-2000 school year that are already in place at the 
time of this order.

53The Swann Plaintiffs have acknowledged this point repeatedly. 
(Swann Pl.'s Trial Brf. at 26; Swann PL's Supplemental Br. on Damages at 
2; Swann Pl.'s Mot. Directed Verdict at 20.)



364a

Opinion o f  the District Court o f  September 9, 1999

and identify witnesses. (See Order of 9/16/98 (ordering CMS 
to produce documents with warning o f sanctions); Order of 
10/7/98 (observing CMS’s lack of cooperation in releasing 
information); Order o f 11/23/98 (noting that CMS's pretrial 
tactics were causing "unnecessary obstruction and delay"); 
Order *293 of 4/23/99 (sanctioning CMS for improperly 
concealing trial witnesses).)

The Court also considers the public interest involved. 
Prevailing third- party intervenors, similar to prevailing 
desegregation plaintiffs, should be compensated for their 
monumental efforts in keeping a school system in compliance 
with the Constitution. As noted by the Second Circuit in a 
similar case: "An open-ended remedial regime, in combination 
with a potentially collusive alignment of parties, can create a 
troubling dynamic." City o f  Yonkers, 181 F.3d 301, 317. In 
such circumstances, there is a danger that a school system 
might overextend its use of race-based remedies in a 
constitutionally impermissible way unless a third party 
intervenes. Given the tremendous expense of mounting such 
a challenge, intervening parties would be at a considerable 
disadvantage if they were barred from collecting fees after 
successfully litigating the suit. Of course, if  the intervenors' 
challenge to continued court supervision was "frivolous, 
unreasonable, or without foundation," they would end up 
paying the attorneys' fees of the plaintiffs responsible for 
monitoring a desegregation plan. Jenkins, 967 F.2d at 1250 
(citing Independent Fed'n o f  Flight Attendants v. Zipes, 491 
U.S. 754,761,109 S.Ct. 2732,2736,105 L.Ed.2d 639 (1989)).

The Court finds that the Plaintiff-Intervenors are the 
prevailing parties in this litigation and are therefore entitled to 
reasonable attorneys' fees, expert fees, and costs. See Texas



365a

Opinion o f  the District Court o f  September 9, 1999

Teachers Ass'n v. Garland School Dist., 489 U.S. 782,791,109 
S.Ct. 1486,1493,103 L.Ed.2d 866 (1989) ("A prevailing party 
must be one who has succeeded on any significant claim 
affording it some of the relief sought."). Plaintiff-Intervenors 
shall submit to the Court a list of their reasonable fees and costs 
within thirty days from entry of this Order. CMS will be given 
an opportunity to raise any objections before these fees and 
costs are taxed.

CONCLUSION

Federal court supervision is invoked in desegregation 
cases to ensure "equal racial access to schools, not access to 
racially equal schools." Freeman, 503 U.S. at 503, 112 S.Ct. 
at 1452 (Scalia, J., concurring); c f  Swann, 402 U.S. at 24, 91 
S.Ct. at 1280 (rejecting "as a matter of substantive 
constitutional right" any guarantee of racial balance in schools). 
Too often, as was illustrated here, this concept has gotten lost 
in a numbers game o f non- remedial racial balancing goals. 
Ultimately, a unitary status determination hinges on whether a 
school system has remedied a past constitutional violation. 
Freeman, 503 U.S. at 489,112 S.Ct. at 1445. The Court finds 
that CMS fulfilled this purpose quite some time ago.

It is likewise improper for a district court or a school 
board to prolong the life o f a desegregation order by using it as 
a pretext for launching institutional reforms unrelated to 
dismantling a dual system. CMS faces a Sysiphean challenge 
in assigning and educating students. In the absence o f any 
remedial necessity, the Court will not add to that conundrum by 
requiring additional affirmative obligations that address 
socioeconomic concerns or societal discrimination. It is telling 
that CMS's current superintendent was unable to articulate any



366a

Opinion o f the District Court o f  September 9, 1999

benefit from continued active court supervision. (Tr. 6/8 at 
89-92, 148-50 (Test, of Eric Smith).) In fact, he stated that 
CMS was aggressively attacking many problems and that it 
would be best for the Court to stay out of the way. (Id.) The 
Court will take the superintendent at his word.

To summarize, on the basis of the record in this 
consolidated action, the Court makes the following findings 
and conclusions:

1. CMS has eliminated, to the extent practicable, the 
vestiges of past discrimination in the traditional areas of 
school operations—student assignment, faculty 
assignment, facilities, transportation, staff, and 
extracurricular *294 activities—and no vestiges are 
found in the ancillary areas of teacher quality, student 
achievement, and student discipline.

2. CMS has complied in good faith with the 
desegregation orders since the close of Swann, and 
there is no indication that CMS will return to a de jure 
segregated system in the future.

3. CMS has achieved unitary status in all respects; 
therefore, all prior injunctive orders from Swann are 
vacated and dissolved.

4. In pursuing racial balance, CMS's magnet school 
admissions process went beyond the scope of the 
Swann orders and included an inflexible racial 
assignment provision that was not narrowly tailored.



367a

Opinion o f  the District Court o f  September 9, 1999

5. The Plaintiff-Intervenors are not entitled to an award 
of actual damages, but, given that the magnet school 
admissions policy was found to violate the Equal 
Protection Clause, CMS is nominally liable to the 
Plaintiff-Intervenors in the amount o f one dollar 
( $ 1.00).

6. CMS is enjoined 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.

7. The Court finds that the Plaintiff-Intervenors are the 
prevailing parties in this litigation and are therefore 
entitled to reasonable attorneys' fees, expert fees, and 
costs.

IT  IS SO ORDERED.



368a

Order o f  the District Court o f  April 14, 1999

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION

WILLIAM CAPACCHIONE, Individually )
and on Behalf of CRISTINA 
CAPACCHIONE, a Minor,

Plaintiff,

v.

CHARLOTTE-MECKLENBURG 
SCHOOLS et al.,

Defendants.

JAMES E. SWANN et al.,

Plaintiffs,

v.

CHARLOTTE-MECKLENBURG 
BOARD OF EDUCATION et al.,

Defendants.

MICHAEL P. GRANT et al.,

)
)
)
)
)
)3:97-CV-482-P
)
)
)
)
)

J
)
)
)
)
)
)3:65-CV-1974-P
)
)
)
)
)

J
) 
) 
)

Plaintiff-Intervenors, )



369a

Order o f  the District Court o f  April 14, 1999

CHARLOTTE-MECKLENBURG 
BOARD OF EDUCATION et al.,

v.

Defendants

)
)
)
)
)
)
3

PRETRIAL CONFERENCE SUMMARY AND ORDER

THESE MATTERS are before the Court on various 
pretrial motions raised during the pretrial briefs, proposed 
factual findings, and proposed issue statements. In addition, 
Plaintiff Capacchione and Plaintiff-Intervenors Grant et al. 
(hereinafter collectively (“Grant”) filed a Motion in Limine 
Regarding Undisclosed Witnesses [document no. 143, filed 
April 12,1999], and Defendant Charlotte-Mecklenburg Board 
of Education (“CMS”) filed a Motion in Limine to Exclude 
New Expert Opinions and Analyses by David Armor 
[documentno. 147, filed April 13,1999]. The Court addresses 
the various motions below.

As an initial administrative matter, all parties are 
directed to file any papers in these matters no later than 4:00 
p.m. on the day the filing is due. Additionally, all filings 
should include the original and four copies (an original for the 
Capacchione file, one copy for the Swann file, one copy for 
Judge Potter, one copy for the law clerk, and one copy for the 
filing party). Finally, the parties are reminded to double-check

I. Notice to Parties Regarding Filings



370a

Order o f the District Court o f  April 14, 1999

the case numbers on the captions of the filings, as many papers 
have been filed under the wrong case number.

II. Grant’s Motion in Limine Regarding Undisclosed 
Witnesses

Grant argues that CMS has engaged in sanctionable 
conduct by refusing to disclose the non-expert witnesses it 
plans to call at trial. Grant sought this information by 
interrogatories submitted May 21, 1998, and later moved the 
Court to compel this information from CMS. In its ruling of 
September 16, 1998, the Court stated that, at the time, it was 
premature for CMS to disclose its trial witnesses; yet, the Court 
ordered CMS to provide Grant with such information “when 
such information becomes known.” (Order of Sept. 16, 1998, 
at 7.)

As o f the pretrial conference, CMS only had identified 
one non-expert witness, Superintendent Eric Smith. Surely, 
CMS has known for some time which witnesses it intends to 
call and what the subject matter of each of its witnesses’ 
testimony will be. Nevertheless, CMS contends that it does not 
have to disclose its witnesses until the first day of trial because 
the Pretrial Order requires the submission o f a witness list to 
the Court at that time. (Pretrial Order and Case Management 
Plan §IV, |f(5))a)-(b).) This provision of the Pretrial Order 
was not intended to allow a party to conceal information from 
opposing counsel. Therefore, CMS, contrary to its assertion 
otherwise, would not be violating the Pretrial Order by 
disclosing its witnesses to opposing counsel prior to the first 
day of trial, especially when the Court ordered that such 
information be disclosed when it becomes available. Moreover, 
the Federal Rules of Civil Procedure clearly set forth a party’s 
duty to disclose and to supplement essential information such



371a

Order o f  the District Court o f April 14, 1999

as trial witnesses. Fed. R. Civ. P. 26, 33, 37. In a case o f this 
magnitude, CMS’s refusal to disclose such information 
evidences a lack of candor and runs contrary to the notions of 
fundamental fairness.

During the pretrial conference, the Court ordered CMS 
to provide lists of possible witnesses to Grant by Wednesday, 
April 14,1999, at 9:00a.m. To the extent that the other parties 
had not exchanged such information, they too were required to 
exchange witness lists by this deadline. Failure to comply with 
this Order may preclude the presentation of undisclosed 
witnesses. Grant’s request for sanctions—in addition to its 
previous requests for discovery sanctions—will be addressed by 
the Court at the end of trial.

III. Proposed Issues for Trial

The parties are in agreement that the central issue of this 
trial is whether the school system has achieved unitary status. 
The parties are also in agreement that the specific issue 
statements governing this trial will require some factual 
development.

The only objection raised at this time relates to Grant’s 
claims for damages pursuant to 42 U.S.C. § 1983. The Swann 
Plaintiffs and CMS argue that CMS cannot be held liable for 
compensatory relief because it was merely following the 
Court’s 1971 desegregation order by implementing race-based 
policies. Additionally, the Swann plaintiffs and CMS represent 
that black plaintiffs in school desegregation cases have never 
been awarded damages; therefore, the white plaintiffs in this 
case should not be entitled to such relief. Grant asserts that the 
Swann Plaintiffs never sought damages, only an injunction.



372a

Order o f  the District Court o f  April 14, 1999

Grant implicitly argues that damages were not at issue in other 
such cases because classes of black plaintiffs could not 
maintain their class action status if damages were sought; 
consequently, they only sought injunctive relief. As to this 
issue, the Court simply reiterates from a prior ruling that 
nominal damages are still appropriate when en equal protection 
violation has occurred, even without proof of factual injury. 
(Order of Dec. 22, 1998, at 5-7 (citing Northeastern Fla. 
Chapter of the Associated Gen. Contractors o f Am. v. City of 
Jacksonville. 508 U.S. 656,113 S. Ct. 2297,124 L. Ed. 2d 586 
(1993); Price v. City o f Charlotte. 93 F. 3d 1241,1246 (4th Cir. 
1996)).)

This issue would have been more properly raised in a 
summary judgment motion rather than as a oral request one 
week before trial. The Court will allow the parties to brief the 
issue further, if  desired. In any event, the Court does not 
anticipate that any damages evidenced presented by Grant 
would take up significant trial time.

IV. Order o f Witness Presentation

The order of witness presentation at trial shall be Grant 
first, the Swann Plaintiffs second, and CMS last, followed by 
the plaintiffs’ rebuttal.

V. Exchange of Exhibit Numbers

In order to facilitate the presentation o f documentary 
evidence and to avoid unnecessary objections and delays, all 
parties shall exchange trial exhibit numbers by close of 
business on Thursday, April 15, 1999.



373a

Order o f  the District Court o f  April 14, 1999

VI. Opening Statements and Closing Arguments

On Monday, April 19, 1999, the first day of trial, each 
party shall have thirty minutes to present opening statements. 
This time restriction is necessary due to Grant’s scheduling of 
an out-of-town witness for the first day o f trial. Should any 
party need additional time to present opening statements, that 
party will be given up to thirty minutes more on Tuesday, April 
20, 1999. Each party shall have one hour each for closing 
arguments.

VII. Daily Trial Schedule

The Court will be called by session each morning at 
9:30 a.m. and will conclude each day around 4:30 or 5:00 p.m. 
The parties are advised to consult each other regularly on the 
anticipated witnesses for the following day of trial.

VIII. Proposed Finding of Fact and Conclusions of Law

Obviously, the Court will defer any findings of fact until 
after the evidence is presented. The Court will set a deadline 
for post-trial briefs at the end of the trial.

IX. Admissibility of CMS’s New Remedial Plan

CMS seeks to introduce a new comprehensive school 
equity plan, which the School Board recently passed by a non- 
unanimous vote. CMS presented this plan to the Court late 
Monday afternoon, April 12, 1999, just a week before trial. 
This plan is not relevant or at issue in the current case. At this 
phase of the litigation, this case is only about what CMS has 
done, not what it may do in the future. There are far too many



374a

Order o f  the District Court o f  April 14, 1999

contingencies regarding the plan, including whether it will be 
funded or fully implemented. The Court will not deliver an 
advisory opinion on the constitutionality of a plan not in effect.

If the Court later determines that additional remedial 
measures are needed, it may consider the plan. Until that time 
comes, however, the Court will not get mired in the complex 
detail s and mechanics of a proposed plan.

X. Collateral Estoppel Effect of Prior Court Orders in Swann

Grant moves the Court to consider whether prior orders 
issued in the Swann litigation by Judge McMillan, specifically 
those orders finding that no vestiges o f de jure segregation 
existed in certain areas of school operation, have a preclusive 
effect in this case. The Court will certainly consider the 
relevant findings o f Judge McMillan and the scope of his 
desegregation order, but, in light of the Eleventh Circuit’s 
recent holding in United States v. Georgia. No. 97-9199,1999 
WL 193887 (11th Cir. April 8,1999), the Court is cognizant that 
a finding of “unitary status” involves a careful factual 
assessment o f many factors. Thus, the Court will examine the 
appropriate areas of inquiry set forth in Freeman v. Pitts. 503 
U.S. 467, 112 S. Ct. 1430, 118 L. Ed. 2d (1992), and will 
consider those areas as a whole in determine whether the school 
system has achieved unitary status. The Court further notes that 
because this is a bench trial, the Court has latitude to allow 
evidence during the hearing and to consider later whether such 
evidence is admissible.



375a

Order o f  the District Court o f  April 14, 1999

XI. CMS’s Motion in Limine to Exclude New Expert 
Opinions and Analyses by David Armor

CMS moves to exclude any expert opinions and 
analyses by Grant’s expert, Dr. David Armor, that were 
presented to CMS after the deadline for submitting rebuttal 
expert reports had expired. CMS represented that Dr. Armor 
submitted new analyses more than a month after the deadline 
and up to a week before trial, thereby prejudicing CMS denying 
them an adequate opportunity to depose Dr. Armor on the new 
opinions and to prepare for cross-examination.

Experts are prohibited from offering opinions that were 
not stated in a timely expert report. Fed. R. Civ. P. 26(a)(2), 
37(c)(1); see, e.g.. Williams v. Burlington Northern and Santa 
Fe Rv. Co.. 13 F. Supp. 2d 1125, 1127 (D. Kan. 1998) 
(“Pursuant to Fed. R. Civ. P. 26(a)(2)(B) and 37(c)(1), any 
opinions not expressed in Dr. Jetzer’s written reports must be 
excluded from this case.”); LaMarca v. United States. 31 F. 
Supp. 2d 110, 122 (E.D.N.Y. 1998) (excluding testimony that 
“exceed[ed] the bounds o f the expert’s report”). Absent a 
showing of substantial justification or harmlessness, Dr. 
Amor’s new opinions and analyses that were not provided by 
the applicable deadlines must be excluded. Thus, CMS’s 
motion is granted.

XII. Tentative Hearing Cancelled

The Court tentatively scheduled a hearing for Friday, 
April 26, at 10:00 a.m., to discuss any further matters that may 
arise. The Court sees no outstanding issues that need to be 
addressed at this time, so this tentative hearing is hereby 
cancelled.



376a

Order o f  the District Court o f  April 14, 1999

IT IS SO ORDERED.
This the 14th day of April 1999.

/s/ Robert D. P o tter_____
ROBERT D. POTTER 
SENIOR UNITED STATES 
DISTRICT JUDGE



377a

Judgment o f  the Court o f  Appeals 

JUDGMENT

FILED: SEPTEMBER 21, 2001 

UNITED STATES COURT OF APPEALS 

for the

Fourth Circuit

NO. 99-2389
CA-65-1974-3-P

CA-97-482-3-P

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

Plaintiffs - Appellants

WILLIAM CAPACCHIONE, Individually and on behalf of 
Cristina Capacchione, a minor, MICHAEL P. GRANT; 
RICHRD EASTERLING LAWRENCE GAUVREAU; 
KAREN BENTLEY; CHARLES THOMPSON; SCOTT C. 
WILLARD

Plaintiffs - Appellees

and

THE CHARLOTTE-MECKLENBERG BOARD OF 
EDUCATION; ERIC SMITH Superintendent in his official



378a

Judgment o f  the Court ofAppeals

capacity; ARTHUR GRIFFIN Chairman of the Charlotte- 
Mecklenburg School Board, in his official capacity

Defendants

UNITED STATES OF AMERICA; NORTH CAROLINA 
SCHOOL BOARDS ASSOCIATION; NATIONAL 
SCHOOL BOARDS ASSOCIATION

Amici Curiae

NO. 99-2391
CA-65-1974-3-P
CA-97-482-3-P

WILLIAM CAPACCHIONE, Individually and on behalf of 
Christina Capacchione, a minor; MICHAEL P. GRANT; 
RICHARD EASTERLING; LAWRENCE GAUVREAU; 
KAREN BENTLEY; CHARLES THOMPSON; SCOTT C. 
WILLARD

Plaintiff - Apellees

and

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

Plaintiffs

v.



379a

Judgment o f  the Court o f  Appeals

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

Defendants - Appellants

UNITED STATES OF AMERICA; NORTH CAROLINA 
SCHOOL BOARDS ASSOCIATION; NATIONAL 
SCHOOL BOARDS

Amici Curiae

No. 00-1098
CA-65-1974-3-P
CA-97-482-3-P

WILLIAM CAPACCHIONE, Individually and on behalf of 
Christina Capacchione, a minor; MICHAEL P. GRANT; 
RICHARD EASTERLING; LAWRENCE GAUVREAU; 
KAREN BENTLEY; CHARLES THOMPSON; SCOTT C. 
WILLARD

Plaintiffs - Appellees

and

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

Plaintiffs



380a

Judgment o f the Court o f  Appeals

v.

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

Defendants - Appellants

UNITED STATES OF AMERICA; NORTH CAROLINA 
SCHOOL BOARDS ASSOCIATION; NATIONAL 
SCHOOL BOARDS

Amici Curiae

No. 00-1432 
CA-97-482-3-P

WILLIAM CAPACCHIONE, Individually and on behalf of 
Christina Capacchione, a minor; MICHAEL P. GRANT; 
RICHARD EASTERLING; LAWRENCE GAUVREAU; 
KAREN BENTLEY; CHARLES THOMPSON; SCOTT C. 
WILLARD

Plaintiffs - Appellees

and

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



381a

Judgment o f the Court ofAppeals 

Plaintiffs

v.

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

Defendants - Appellants

UNITED STATES OF AMERICA; NORTH CAROLINA 
SCHOOL BOARDS ASSOCIATION; NATIONAL 
SCHOOL BOARDS

Amici Curiae

Appeal from the United States District Court for the 
Western District of North Carolina at Charlotte

In accordance with the written opinion of this Court 

filed this day, the Court affirms and reverses in part the 

judgment of the District Court.

/s/ Patricia S. Connor

CLERK



382a

Order o f the Court o f  Appeals on Rehearing

United States Court of Appeals,
Fourth Circuit.

Terry BELK; Dwayne Collins, on behalf o f themselves and 
the class they represent, Plaintiffs-Appellants, 

v.
William CAPACCHIONE, Individually and on behalf of 

Christina Capacchione, a minor; Michael P. Grant; Richard 
Easterling; Lawrence Gauvreau; Karen Bentley; Charles 

Thompson; Scott C. Willard, Plaintiffs-Appellees,
and

The Charlotte-Mecklenburg Board o f Education;
Eric Smith, Superintendent, in his official capacity; Arthur 

Griffin, Chairman of the Charlotte-Mecklenburg School 
Board, in his official capacity, Defendants.

United States of America; North Carolina School Boards 
Association; National School Boards Association, 

Amici Curiae.

William Capacchione, Individually and on behalf of 
Christina Capacchione, a minor; Michael P. Grant; Richard 

Easterling; Lawrence Gauvreau; Karen Bentley; Charles 
Thompson; Scott C. Willard, Plaintiffs-Appellees,

and
Terry Belk; Dwayne Collins, on behalf o f themselves 

and the class they represent, Plaintiffs, 
v.

The Charlotte-Mecklenburg Board o f Education;
Eric Smith, Superintendent, in his official capacity; Arthur 

Griffin, Chairman of the Charlotte-Mecklenburg School 
Board, in his official capacity, Defendants-Appellants.



383a

Order o f  the Court o f  Appeals on Rehearing

United States of America; North Carolina School Boards 
Association; National School Boards Association, 

Amici Curiae.

William Capacchione, Individually and on behalf of 
Christina Capacchione, a minor; Michael P. Grant; Richard 

Easterling; Lawrence Gauvreau; Karen Bentley; Charles 
Thompson; Scott C. Willard, Plaintiffs-Appellees,

and
Terry Belk; Dwayne Collins, on behalf of themselves 

and the class they represent, Plaintiffs, 
v.

The Charlotte-Mecklenburg Board of Education;
Eric Smith, Superintendent, in his official capacity; Arthur 

Griffm, Chairman o f the Charlotte-Mecklenburg School 
Board, in his official capacity, Defendants-Appellants.

United States o f America; North Carolina School Boards 
Association; National School Boards Association, 

Amicus Curiae.

William Capacchione, Individually and on behalf of 
Christina Capacchione, a minor; Michael P. Grant; Richard 

Easterling; Lawrence Gauvreau; Karen Bentley; Charles 
Thompson; Scott C. Willard, Plaintiffs-Appellees,

and
Terry Belk; Dwayne Collins, on behalf of themselves 

and the class they represent, Plaintiffs, 
v.

The Charlotte-Mecklenburg Boardof Education;
Eric Smith, Superintendent, in his official capacity; Arthur 

Griffin, Chairman o f the Charlotte-Mecklenburg School 
Board, in his official capacity, Defendants-Appellants.



384a

Order o f  the Court o f Appeals on Rehearing

United States of America; North Carolina School Boards 
Association; National School Boards Association, 

Amici Curiae.

No. 99-2389.

Dec. 14, 2001.

ORDER

*1 The Grant-Intervenors-Appellees and the 
Capacchione-Intervenor-Appellee each filed a motion to 
reconsider the issue of attorneys' fees and a motion to stay the 
mandate pending resolution of the motion to reconsider. The 
motion to reconsider is denied by a vote of 6-5 (Chief Judge 
Wilkinson and Judges Niemeyer, Michael, Motz, King, and 
Gregory in the majority). The motions to reconsider effectively 
stayed the mandate, but that stay is now lifted. Chief Judge 
Wilkinson filed an opinion concurring in the denial of 
rehearing. Judge Traxler filed an opinion dissenting from the 
denial o f rehearing in which Judges Widener and Wilkins 
joined.

The motion of the Belk plaintiffs for a stay of the 
mandate is denied.

WILKINSON, Chief Judge, concurring in the denial of 
reconsideration:

The matter of attorneys' fees has been extensively 
debated in the en banc decision of the court and I have no



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Order o f  the Court ofAppeals on Rehearing

desire to belabor it. In view of my good colleague's dissent, 
however, I shall briefly state the basis for my view that a 
departure from the American rule, whereby each side pays its 
own lawyers, is not warranted with respect to the unitary status 
determination.

Such a departure is not justified for the simple reason 
that Congress has not authorized it. The Supreme Court has 
made clear that Congress has not "extended any roving 
authority to the Judiciary to allow counsel fees as costs or 
otherwise whenever the courts might deem them warranted." 
Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 
260, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Under the 
American rule, "we follow a general practice o f not awarding 
fees to a prevailing party absent explicit statutory authority." 
Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept, o f  
Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 1839, 
149 L.Ed.2d 855 (2001) (internal quotation omitted). There is 
no such authority here.

The dissent attempts to analogize the unitary status 
proceedings to an action under 42 U.S.C. § 1983, for which 
attorney’s fees would be available to prevailing parties at the 
discretion of the court under 42 U.S.C. § 1988. What we have 
here, however, is the exact opposite of a § 1983 action. The 
essence of a § 1983 action is that the defendant has violated the 
plaintiffs federal rights under color of state law. In contrast, the 
entire point o f a unitary status determination is to prove that the 
school district is in compliance with federal law. And Congress 
has simply not authorized us to impose attorney's fees on a 
party whose actions have been adjudged compliant with federal 
statutes and our Constitution.



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Order o f  the Court o f  Appeals on Rehearing

While the dissent would have us believe that the Grant 
and Capacchione plaintiffs simply picked up where the Swann 
plaintiffs left off, this is simply not the case. The focus o f their 
respective efforts was quite different. The Swann plaintiffs 
sought to prove the school board in violation of the bedrock 
federal mandate that no student be denied an education on 
account of his or her race. The unitary status proceedings 
sought to determine, by contrast, that the rights of all school 
children under federal law had been vindicated and achieved.

*2 It is important that the judicial system not blow hot 
and cold with respect to the litigants who come before it. For 
m any decades the courts im pressed upon the 
Charlotte-Mecklenburg school district the singular importance 
of desegregating its public schools and affording each and 
every child an equal educational opportunity without regard to 
race. See, e.g, Swann v. Charlotte-Mecklenburg Bd. ofEduc., 
402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) 
("[Sjchool authorities are clearly charged with the affirmative 
duty to take whatever steps might be necessary to convert to a 
unitary system in which racial discrimination would be 
eliminated root and branch.") (internal quotation omitted). Now 
that this goal of unitariness has been reached, it would be 
inconsistent in the extreme to punish the school board for doing 
the very thing the courts have all along insisted that it do.

My good dissenting brother urges us to view this matter 
as one of equity or policy. I readily agree that the Grant and 
Capacchione plaintiffs have performed a substantial public 
service in achieving the unitary status determination and in 
returning the school system to the control of local authorities. 
As a matter of equity, however, there is also something to be 
said for looking to the future, putting this litigation behind us,



387a

Order o f  the Court ofAppeals on Rehearing

and spending public funds on the education o f school children 
rather than on opposing lawyers' bills. The dissent predicts that 
unitary status proceedings will become unaffordable in the 
absence of fee shifting, but it is quite possible that school 
boards in other locations will be moved to free themselves from 
court orders on their own without the need for private 
interveners to enter the suit. In all events, these are questions of 
pure policy and underscore the inadvisability o f courts debating 
the pros and cons of fee shifting in the absence of a 
congressional declaration.

It is simply untenable to impose a large fee obligation 
upon a public school district for desegregating its schools. 
Congress has not sanctioned such a course o f  action. It would 
mark a cruel sequel to the Brown decision if, at the end of the 
day, federal courts were to punish the successful completion of 
the desegregation process with an unauthorized departure from 
the American rule.

TRAXLER, Circuit Judge, dissenting:

I respectfully dissent from this court's denial of 
Capacchione's and Grant's motions to reconsider their claims to 
attorneys' fees for the role they played as private attorneys 
general in achieving a declaration of unitary status. As a result 
of this declaration, CMS must have a race-neutral student 
assignment plan in place no later than the 2002-2003 school 
year unless its use o f race is narrowly tailored to serve a 
compelling governmental interest. The plaintiff- intervenors 
have prevailed against CMS and have obtained a decree that 
alters the conduct o f CMS toward all children attending public 
school in Mecklenburg County. Yet, this court vacates the



388a

Order o f  the Court o f Appeals on Rehearing

district court's fee award on the ground that the 
plaintiff-intervenors have not prevailed.

*3 School desegregation cases are unique in the manner 
in which they proceed. There are two basic steps in the court 
process to obtain unitary status. In the first part, the plaintiffs 
seek to impose federal court control over the school system and 
to have federal courts dictate procedures for the operation of 
the schools. When the court-ordered procedures have worked, 
the second part begins with the parties returning to district court 
to obtain a declaration o f unitary status and the concomitant 
removal of federal court oversight.

This case began in 1965 when the original Swann 
plaintiffs brought a § 1983 action to convert CMS "into a 
unitary nonracial system wherein educational opportunities 
offered by [the board] are made available to all students 
without regard to race or color." J.A. XXXIII-16,162. The 
Swann plaintiffs succeeded in having CMS placed under court 
order and participated in proceedings whereby the district court 
adopted a sweeping desegregation plan. In 1975, the case was 
removed from the active docket and the Swann plaintiffs were 
deservedly and properly awarded $204,072.33 in fees and costs 
for their service as private attorneys general in the first phase of 
the desegregation effort.

For the most part, this case remained inactive until 
1997, when Capacchione challenged CMS's magnet schools 
program and, shortly thereafter, amended her complaint to seek 
a declaration of unitary status as well. Swann was reactivated 
and Capacchione intervened in that action. Grant then moved 
for a declaration of unitary status and also intervened in the 
Swann litigation. Thus began the second part of the process.



389a

Order o f  the Court o f Appeals on Rehearing

The Swann plaintiffs, however, did not want the second 
and final phase o f the judicial process to occur, so they fought 
a finding of unitary status. Capacchione and Grant had to step 
in and prove to the district court that what the Swann plaintiffs 
originally sought in their lawsuit under § 1983 had, in fact, 
been achieved--that what had been started in the 1960s had 
finally been completed and the vestiges of segregation removed 
to the extent practicable. And like the Swann plaintiffs, who 
received a fee award for work done before the case was 
removed from the active docket, the plaintiff- intervenors now 
seek, and are entitled to, their attorneys' fees.

No member of the court doubts that the Swann plaintiffs 
would be entitled to fees under § 1988 had they been the ones 
to successfully move for a declaration of unitary status. Yet in 
spite of the same measure o f success by the 
plaintiff-intervenors, we deny them their fees. By judicial fiat, 
plaintiff-intervenors in school desegregation cases have been 
written out of § 1988. Should another case like this arise where 
the original plaintiffs and the school board are content to let the 
desegregation order remain in place long after the dual system 
has been dismantled, parents demanding a return of local 
control will be helpless. As the present case demonstrates, a 
declaration o f unitary status can be expensive ($1.49 million). 
I have no doubt that if  our decision had been on the books in 
1997 neither Capacchione, nor Grant, nor virtually any other 
public school parent in Mecklenburg County could have 
afforded to seek a removal of the federal courts from control of 
the school system. I find it ironic that in affirming the district 
court's declaration of unitary status but denying the prevailing 
parties their fees, we simultaneously condemn other school 
districts in our circuit to prolonged and unnecessary federal 
court control.



390a

Order o f  the Court ofAppeals on Rehearing

*4 Finally, while unfortunate that the school board 
should have to pay such a large award, this is a risk it took 
when it decided to fight the unitary status determination-not 
unlike the ill-fated decision it made in the 1960s to fight the 
desegregation effort to begin with, when we made it pay the 
fees o f the original Swann plaintiffs. For attorneys' fees 
purposes, this court has decided that one party can get its fees 
under § 1988 for forcing the school board to abide by the law 
while the other cannot. Therefore, I respectfully dissent.

Judge WIDENER and Judge WILKINS have authorized me to 
indicate that they join in this dissent.