Belk v. Charlotte-Mecklenburg Board of Education Petition for Writ of Certiorari
Public Court Documents
January 1, 2000
Cite this item
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Brief Collection, LDF Court Filings. Belk v. Charlotte-Mecklenburg Board of Education Petition for Writ of Certiorari, 2000. 8a9e1597-c69a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c995c07c-be2b-4572-ab75-e1e9260193c5/belk-v-charlotte-mecklenburg-board-of-education-petition-for-writ-of-certiorari. Accessed December 04, 2025.
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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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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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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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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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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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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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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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*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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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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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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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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Opinions o f the Court o f Appeals o f September 21, 2001
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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Opinions o f the Court o f Appeals o f September 21, 2001
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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Opinions o f the Court o f Appeals o f September 21, 2001
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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Opinions o f the Court o f Appeals o f September 21, 2001
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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Opinions o f the Court o f Appeals o f September 21, 2001
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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Opinions o f the Court o f Appeals o f September 21, 2001
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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Opinions o f the Court o f Appeals o f September 21, 2001
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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Opinions o f the Court o f Appeals o f September 21, 2001
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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Opinions o f the Court o f Appeals o f September 21, 2001
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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Opinions o f the Court o f Appeals o f September 21, 2001
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
221a
Opinions o f the Court o f Appeals o f September 21, 2001
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,
223a
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
225a
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,
227a
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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Opinion o f the District Court o f September 9, 1999
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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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
238a
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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Opinion o f the District Court o f September 9, 1999
"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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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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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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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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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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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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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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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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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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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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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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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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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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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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Opinion o f the District Court o f September 9, 1999
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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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,
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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
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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.
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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.
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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,
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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
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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.
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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.
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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.