Opinion

Capacchione v. Charlotte-Mecklenburg Schools

57 F. Supp. 2d 228
1999 U.S. Dist. LEXIS 13990
1999 WL 709975

Court: District Court, W.D. North Carolina
Filed: Sep 9, 1999
Status: Published
Author: Potter
On the bench: Robert D. Potter
Cited by: 10 cases
Authority: More cited than 60.9%

noting that remedial measures had resulted in a seven-fold increase in black students' enrollment in advanced placement courses, a greater percentage of black students being prepared for the next grade level, and a reduction in the gap in achievement scores

How later courts described this case

noting that remedial measures had resulted in a seven-fold increase in black students' enrollment in advanced placement courses, a greater percentage of black students being prepared for the next grade level, and a reduction in the gap in achievement scores
"[T]he Swann Plaintiffs have failed to overcome the Court's previous findings on facilities by establishing the requisite discriminatory intent and causation."
district court's observation that "transport[ing] white students in from satellite zones . . . is difficult given the rush hour traffic patterns"
"CMS enjoys immunity from liability for any actions it took consistent with the Court's injunction."

Written by the judges who cited it.

The opinion

MEMORANDUM OF DECISION AND ORDER

ROBERT D. POTTER, Senior District Judge

TABLE OF CONTENTS

INTRODUCTION.232

I.FACTUAL BACKGROUND AND PROCEDURAL HISTORY.232

Swann v. Charlotte-Mecklenburg Board of

Education.232

B. 1975-1998:

Swan

Inactive.236

Cavacchione v. Charlotte-Mecklenburg Schools

Swann

Reactivated .239

II. DISCUSSION AND ANALYSIS .'.240

A. The Constitutional Basis for Race Conscious Desegregation Orders.240

B. Unitary Status.242

1. Student Assignment .244

a. The Standard for Compliance.244

b. The Level of CMS’s Compliance .246

c. Desegregation and Demographic Trends.249

d. The Concerns of

Martin-.

School Siting and Transportation Burdens .250

e. The Historical Status of Imbalanced Schools.253

f. Possibilities of Further Racial Balance.255

2. Faculty Assignment.257

3. Facilities and Resources.261

4. Transportation.267

5. Staff Assignment.268

6. Extracurricular Activities.268

7. Ancillary Considerations. 269

a. Teacher Quality .270

b. Student Achievement.!.272

i. The Requirements of

Stvann

.272

ii. CMS’s Efforts to Close the Gap.273

iii. Experts’ Explanations of the Gap .275

e. Student Discipline.281

8. Good Faith .282

C. Constitutional Injuries.284

1. Immunity under the

Swann

Orders.285

2. The Magnet School Admissions Policy.287

3. Nominal Damages.290

D. Injunctive Relief.290

E. Attorneys Fees.292

CONCLUSION 293

*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. of 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.”

Milliken v. Bradley,

418 U.S. 717, 741 , 94 S.Ct. 3112, 3125 , 41 L.Ed.2d 1069 (1974)

(“Milliken 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”

) has reached that end by creating a “unitary school 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 of- 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 “Swarm Plaintiffs”

). 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 evidentia-ry 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 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

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.

Brown v. Board of Educ.,

347

*233

U.S. 483, 74 S. Ct. 686 , 98 L.Ed. 873 (1954)

(“Brown I”).

In a subsequent decision, the Supreme Court further mandated desegregation “with all deliberate speed.”

Brown v. Board of Educ.,

349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955)

(“Brown II

”). Despite the holdings of

Broum I

and

Brown II

many 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

Broum,

public schools had been segregated on the basis of race as a matter of state law and school board policy-was likewise slow to dismantle its dual school system.

See generally Swann v. Charlotte-Mecklenburg Bd. of Educ.,

300 F.Supp. 1358 (W.D.N.C.1969) (detailing the history of segregation in Charlotte, North Carolina).

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. of Educ.,

243 F.Supp. 667 (W.D.N.C.1965),

aff'd,

369 F.2d 29 (1966).

“Freedom of choice” transfer plans were a common response to the mandate of Brown,

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 a school system which had been enforcing

de jure

segregation at the time of

Broum

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

Broum

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,

ruled that the plan based upon geographic zoning with a free-trans

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fer 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 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. of Educ.,

300 F.Supp. 1381, 1382 (W.D.N.C.1969) (noting the “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. of 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 earned out as advertised.”

Swann v. Charlotte-Mecklenburg Bd. of 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 reseg-regation.

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 .

On December 2, 1969, the Court appointed Dr. John A. Finger, Jr.,

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. of 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:

• Similar to the 1969 board-proposed plan, 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

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• “[N]o school [could] be operated with an all-black or predominately black student body.”

Id.

• In redrawing the school system’s attendance zones, the Court authorized the use of bus transportation and non-contiguous “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 grouping

elementary schools imposed an undue burden on the board.

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

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. of Educ.,

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. of Educ.,

318 F.Supp. 786, 788 (W.D.N.C.1970). Thus, the District Court again directed the board to implement the Finger Plan 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 of

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 .

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. of Educ.,

328 F.Supp. 1346 (W.D.N.C.1971);

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

334 F.Supp. 623 (W.D.N.C.1971). The Court kept a “hands off’ 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. of 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 was finally on its way to producing a unitary school' system.

Swann v. Charlotte-Mecklenburg Bd. of 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 “CAG 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. of Educ.,

67 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 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

Inactive

The

Swannc&se

remained inactive from 1975 until the present litigation. During this time, Mecklenburg County saw significant population growth and demographic change. The total population of Mecklen-burg County has grown from 354,656 in 1970 to 613,310 in 1997. (PX 138 Table I (Clark Rpt.).)

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.)

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.

(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 N185 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.

(IcL,

at 8.)

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 43d 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.

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, and 8% other. (DX 215 (1998-99 CMS 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 real

*238

ized 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 modest increases in the 1990s.

(Id,

at 4U5, 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 of 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. of 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 1974 CAG Plan. The parents relied on the Supreme Court’s then-recent decisions in

Pasadena City Bd. of Educ. v. Spangler,

427 U.S. 424 , 96 S.Ct. 2697 , 49 L.Ed.2d 599 (1976), and

Regents of the Univ. of 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 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 . In

Bakke ,

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 of 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.”

(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 dis

*239

trict-wide average.

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

No. 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 noncomphance.

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 satelhte 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 pohey occurred in 1992, when CMS implemented a modified pupil assignment program that emphasized the use of “magnet” schools.

(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, of Jeffrey Schiller).) The plan also contemplated the increased use of “stand alone” and “mid-point” schools,

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 of 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.

Capacchione v. Charlotte-Mecklen-burg Schools I Swann

Reactivated

On September 5, 1997, William Capac-chione 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.

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

Capacchione

litigation. 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 of law and fact. The Court denied CMS’s motion to dismiss, finding that Capac-chione 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 the 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 al., a group of 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.

In August 1998, Capacchione and his family moved to California. In deposition testimony, Capacchione stated that his family had no intent

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 of Charlotte,

93 F.3d 1241, 1248-57 (4th Cir.1996), ce

rt. 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.

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 of Education,

347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 , stood for the proposition that separate treatment for people of 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

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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 of 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.

Adarand Constructors, 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 they are narrowly tailored measures that further compelling governmental interests.”

Id.

at 227 , 115 S.Ct. at 2113 . Modern 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 of Richmond v. J.A. Croson Co.,

488 U.S. 469, 493 , 109 S.Ct. 706, 722 , 102 L.Ed.2d 854 (1989);

Hopwood v. State of 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,

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 (“ ‘[l]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 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

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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.

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-eourt 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.”

Board of Educ. 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 Bd., of Educ.,

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 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 terminated or dissolved. To the contrary, Judge McMillan stated that the orders in this case remained in continuing effect,

Swann,

67 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 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 of proof for showing whether CMS is free of the vestiges of segregation falls on the parties seeking to end court supervision: the Plaintiff-Inter-

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venors.

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 of 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 (Sealls, J., concurring);

Jenkins v. Missouri,

122 F.3d 588 , 595 (8th Cir.1997). As to any facets of school operations where the Court expressly found that the school system was free of 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, 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 of 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. at 22-24 , 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 predominately black student body”

(2) “[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,” 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-de

jure

black schools. Fifteen years after

Brown I,

a large num

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ber 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.

(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).)

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. (PX 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 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 Highland 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

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of schools with large white majorities as part of 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 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.

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 of 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 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

The Court emphasizes, however, that there is no level of 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.

Manning v. 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 ).

b. The Level of CMS’s Compliance

The parties’ expert witnesses testified about the degree of compliance with differ

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ent conclusions based on how they manipulated the data and on what standard they applied. Some experts overstated the level of noncompliance by counting schools that are not within the scope of 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-lf (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.

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 of 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 of 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 of 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 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

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level of desegregation since 1970.

Of the 126 elementary, middle, and high schools currently operating, 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

(13%) have had black student bodies lower than 15% below the district-wide ratio for more than three years

In other words, relatively few schools in the system have long histories of racial imbalance.

What is more, a great deal of the imbalance has involved borderline discrepancies of 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 DX

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.)

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 1.)

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 of them' — -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, Amay James Elementary, and Wilmore Elementary.

(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 bal-anee.

(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 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, of Eric Smith).) In particular, Ashley Park, J.T. Williams, Spaugh, Harding, and Northwest each had trends of about four to six years of 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%,

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.

(Tr. 6/9 at 88-90

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(Test, of 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 of 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 of 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.

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

Martin :

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 that “ ‘[r]aeially 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

ease in context.

Martin

was not a unitary status hearing; it was an action by parents to 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.

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 reestablish 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 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 of 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 of 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, of 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. 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 predominate

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ly white, southern area of the county.

(SX 119 at 4-5 (CMS Board Minutes of 5/28/96); Tr. 4/22 at 15-16 (Test, of Linda-lyn 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 OI-OS (Test, of 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.

(Compare DX

266 (CMS School Construction 1980 to Present)

with DX

3 (CMS Enrollment Rpts.).)

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 of the

T&ces,” 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 of racial balance, and the number of stand alone schools in naturally integrated areas continues to increase. (Tr. 6/22 at 27 (Test, of Arthur Griffin).) As of the 1998-99 school year, twenty-two stand alone schools have been created.

(Id.)

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 Lindalyn Kakadelis).) 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-eritically 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 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 of 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.”

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.) Of 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 of 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-

de 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 predomi

*254

nately 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 longstanding open enrollment program, did not become imbalanced until 1996.

(Id.;

PX 137 at 10 (Armor Rpt.).) Druid Hills and Oaklawn are currently imbalanced by 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, of 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, Dérita, 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, Devon-shire, 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 population. (PX 137 at 9 (Armor Rpt.); 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.).)

Of 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.).) Of 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, and almost all of these schools closely bordered census tracts that were 95% or more white.

(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 of 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 of 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 of Sch. Comm’rs,

402 U.S. 33,37 , 91 S.Ct. 1289,1292 , 28 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 Flax,

915 F.2d at 163 (upholding a unitary status declaration as to faculty even though six schools lay more

*261

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 of 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 of 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.

3. Facilities and Resources

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 whether vestiges of the dual system remained. In its Order of 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 of 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, 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 prograni." 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 "[ejxcept for the refusal of the court to find in the plaintiffs' favor ... regarding adequacy of physical plants and equipment and teacher quality." Swann v. Charlotte-Mecklenburg Bd. of 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 Swawn 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 of 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 of segregation that are causally linked to the dual system. The Plaintiff-Interve-nors counter that Judge McMillan's findings on facilities constitute collateral estop-pel 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 es-toppel 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 disparities are causally linked to the dual system, and the burden of proof shifts back to the plaintiffs alleging 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 discriniina-tory 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 of 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 the contrary. Dayton Bd. of Educ. 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 ex

*263

press 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 of Yonkers,

181 F.3d 301 , 305 n. *1 (“[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, of John Lassiter) (“[A]ll schools are not equal.”); Tr. 4/21 at 126 (Test, of Lindalyn Kakadelis) (“[Fjacil-ities need to be upgraded.”); (Tr. 4/22 at 108 (Test, of Velma Leake) (“[Fjacilities 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.

Wessmann v. Gittens,

160 F.3d 790, 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.

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 of 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 with 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), McAl-pine appeared to have much greater needs than Hidden Valley.

Id.

Thus, 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 surveys

and by visiting selected schools.

(Id.

at 108-09.) Such non-random methodologies provide an inadequate basis to form a reliable expert opinion under Rules 702 and 703 of 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. 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, of 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 Ele

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mentary — both 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 of the schools scored in the 45-59 category, indicating a need for major improvements. (Id.) Sixteen 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 standards

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 of the school.

(Id.

at 142-143.) Thus, older schools that are predominately white — several of which were built in the 1920s, (DX 13, Att. C, Ex. 1 at 4 (Gardner Rpt.)) — are likewise affected by this practice.

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 of schools-108 out of 135 or roughly 80% of them — are in need of renovations, and most of these needy schools-80 out of 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 of funds and the need to focus scarce resources on critical areas first.

(Id.

at 151-54.)

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, of 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. (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 of Lee Parks).)

Nevertheless, CMS continues to use its best efforts to renovate old facilities. (Tr. 4/30 at 156 (Test, of William Booker).) Perhaps the most crucial “equity safeguard” in place is CMS’s practice of allocating funds on a per-pupil basis.

(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, of Velma Leake); Tr. 5/24 at 26 (Test, of 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.

Moreover, CMS has spent a large portion of bond money on improving schools in predominately black areas. (DX 63 (compilation of 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 to improve inner city schools by magnetizing them. (Tr. 4/22 at 27-28 (Test, of 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 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. As one former board member remarked:

[N]obody 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 of 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, of course, 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

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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.

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, of 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 of facilities.

4. Transportation

With regard to the factor of transportation, a court may grant unitary status when transportation is provided on a nondiscriminatory 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.,

974 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 of 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, of Eric Becoates).) According to a 1994 report, this cost CMS roughly $75,000 per day. (DX 52 at 8 (Committee of 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 of Educ.,

778 F.Supp. 1144, 1177 (W.D.Okla.1991) (“[F]ar from being a vestige of prior segregation, transportation was actually the principal tool utilized to eliminate prior segregation.”).

The Swann 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 argue that prolonged supervision of 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.

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Staff Assignment

During the early active phases of

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 of racial discrimination or disparities in the hiring or assignment of staff.

Indeed, the parties’ post-trial briefs do 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

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 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 (Peter-kin 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 discrimi-

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extracurricular activities is voluntary or, in the case of honors societies, requires a certain level of 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 Our Children v. State Bd. of 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 of extracurricular involvement), aff'

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 of 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, of 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).) 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, of Arthur Griffin).) 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 Peter-kin).) 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 con-

*270

eerns

for the Court to

consider

determining unitary status. Such factors, which a court may 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 observed in 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.

Cf. Keyes v. Congress of Hispanic Educators,

902 F.Supp. 1274, 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 of teacher experience and education on student achievement. (Tr. 5/27 at 44^5 (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, of Richard McEIrath); 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 teacher’s competence. (Tr. 5/28 at 45 (Test, of 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 of teaching experience and also have a higher proportion of advanced de

*271

grees. 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, of 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 schools, 24% for middle schools, and 31% for high schools.

(Id.)

In iinbalanced-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 of these teacher characteristics on academic achievement. (PX 137 (Armor Rebuttal Rpt.); Tr. 6/21 át 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, of 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, of Dan Saltrick).) Thus, in terms of allocating teacher competence as an educational resource, students in schools with higher black 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 of Yonkers,

181 F.3d 301, 316 (“As other 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,

515 U.S. at 101 , 115 S.Ct. at 2055 ;

People Who Care v. Rockford Bd. of

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. 1,

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.”),

aff'd,

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).

i. The Requirements of

Swann

The issue of student achievement disparities was addressed during the early stages of

Swann,

when Judge McMillan observed a radal disparity in test scores and surmised that “segregation in Mecklenburg County has 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 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 ah 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 of 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.l. Nevertheless, an achievement gap remains. While test scores for black students have made significant improvements over time, and blacks in CMS have outperformed blacks statewide and nationwide,

the black-white achievement gap has remained relatively constant regardless of the year or type of test because white students have made progress as well. (PX 137 at 12 (Armor Rpt.); DX 7 Exs. D1-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 of 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 of 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. CMS’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 of 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 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 of CMS with a primary goal of improving student test scores, particularly among black students. (Tr. 4/26 at 8-10 (Test, of 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, of John Murphy).) CMS offered incentives to teachers and principals to improve test scores and tied bonuses specifically to increasing black participation in more challenging 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 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 of only two imbalanced-black high schools operating last year, offered the second highest number of 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 of 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 programs. (Tr. 6/14 at 49-50 (Test, of Susan Purser).) CMS started a large-scale prekindergarten 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

educational resources in schools with large black populations, CMS started an Equity

*275

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 was offset 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).)

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 of 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 of known SES factors that impact achievement,

explain nearly 50% of the reading gap and over 40% of 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, of Dr. David Armor).)

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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, of 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 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 9-2

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