Tuttle v. Arlington County

CORRECTED OPINION

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GRACE TUTTLE, a minor by Her Next

Friend, Steven Tuttle; RACHEL

SECHLER, a minor by Her Next

Friend, Charlotte Sechler,

Plaintiffs-Appellees,

v.

ARLINGTON COUNTY SCHOOL BOARD;

MARY H. HYNES, individually and in

her official capacity as Member,

Arlington County School Board;

DARLENE MICKEY, individually and

in her capacity as Member,

Arlington County School Board;

ELIZABETH GARVEY, individually and

in her official capacity as Member, No. 98-1604

Arlington County School Board;

ELAINE FURLOW, individually and in

her official capacity as Member,

Arlington County School Board;

FRANK WILSON, individually and in

his capacity as Member, Arlington

County School Board; ROBERT

SMITH, individually and in his

capacity as Superintendent of

Schools, Arlington County,

Defendants-Appellants,

and

DOUGLAS HUFF,

Movant.

CORRECTIONS MADE BEGINNING ON PAGE 11

AMERICAN ASSOCIATION OF SCHOOL

ADMINISTRATORS; COUNCIL OF THE

GREAT CITY SCHOOLS; MAGNET

SCHOOLS OF AMERICA; NATIONAL

SCHOOL BOARDS ASSOCIATION; UNITED

STATES OF AMERICA; NATIONAL

ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE; THE ARLINGTON

COUNTY CHAPTER OF THE NATIONAL

ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE;

THE LEAGUE OF UNITED LATIN

AMERICAN CITIZENS,

Amici Curiae.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-98-418-A)

Argued: January 27, 1999

Decided: September 24, 1999

Corrected opinion filed: November 1, 1999

Before ERVIN, LUTTIG, and KING, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by published per

curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Steven John Routh, HOGAN & HARTSON, L.L.P.,

Washington, D.C., for Appellants. Linda Frances Thome, UNITED

2

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Amicus Curiae United States. Philip Andrew Sechler, WILLIAMS &

CONNOLLY, Washington, D.C., for Appellees. ON BRIEF: Audrey

J. Anderson, HOGAN & HARTSON, L.L.P., Washington, D.C.;

Carol W. McCoskrie, Assistant County Attorney, ARLINGTON

COUNTY ATTORNEY'S OFFICE, Arlington, Virginia, for Appel-

lants. Bill Lann Lee, Acting Assistant Attorney General, Mark L.

Gross, UNITED STATES DEPARTMENT OF JUSTICE, Washing-

ton, D.C., for Amicus Curiae United States. Bethany E. Matz, WIL-

LIAMS & CONNOLLY, Washington, D.C.; Steven M. Levine, LAW

OFFICE OF STEVEN M. LEVINE, Washington, D.C., for Appel-

lees. Naomi E. Gittins, Staff Attorney, Julie Underwood, NSBA Gen-

eral Counsel, NATIONAL SCHOOL BOARDS ASSOCIATION,

Alexandria, Virginia; AMERICAN ASSOCIATION OF SCHOOL

ADMINISTRATORS, Arlington, Virginia; COUNSEL OF THE

GREAT CITY SCHOOLS, Washington, D.C.; MAGNET SCHOOLS

OF AMERICA, The Woodlands, Texas, for Amici Curiae Associa-

tion of School Administrators, et al. Barbara R. Arnwine, Thomas J.

Henderson, Robin A. Lenhardt, LAWYERS' COMMITTEE FOR

CIVIL RIGHTS UNDER LAW, Washington, D.C.; Jeh C. Johnson,

PAUL, WEISS, RIFKIND, WHARTON & GARRISON, New York,

New York, for Amici Curiae NAACP, et al.

_________________________________________________________________

OPINION

PER CURIAM:1

The question before this Court is whether an oversubscribed public

school may use a weighted lottery in admissions to promote racial and

ethnic diversity in its student body. The current appeal is the latest

chapter in the history of this Court's involvement in the Arlington

County, Virginia public school system.

_________________________________________________________________

1 The opinion in this case was prepared by Judge Ervin, who died

before it was filed. The remaining members of the panel continue to con-

cur in what Judge Ervin wrote. The opinion is accordingly filed by a quo-

rum of the panel pursuant to 28 U.S.C. § 46(d).

3

Our earlier involvement concerned the desegregation of the Arling-

ton County school system.2 This preceding chapter was brought to a

close in Hart v. County School Bd. of Arlington County, Virginia,

where we affirmed the remedial policy of the Arlington County

School Board ("School Board") to achieve a unitary school district.

459 F.2d 981, 982 (4th Cir. 1972). The current chapter brings us full

circle. In the present case, we examine the admissions policy

("Policy") of the Arlington Traditional School ("ATS"), whose goal

was not to remedy past discrimination, but rather to promote racial,

ethnic, and socioeconomic diversity.

Two ATS applicants, Grace Tuttle ("Tuttle") and Rachel Sechler

("Sechler"), filed suit under 28 U.S.C.A.§§ 2201, 2202 (West 1994)

and 42 U.S.C.A. §§ 1981, 1983 (West 1994) to enjoin the School

Board permanently from implementing its Policy. The district court

granted the injunction and ordered the School Board to conduct a

double-blind random lottery for future ATS admissions. The School

Board appealed the decision.

Today, we hold that the School Board's Policy violated the Equal

Protection Clause of the Fourteenth Amendment. Since the Supreme

Court has not resolved the question of whether diversity is a compel-

ling governmental interest, we assume without deciding that diversity

may be a compelling interest and find that the Policy was not suffi-

ciently narrowly tailored to pass constitutional muster.

Although we affirm the district court's holding that the Policy was

unconstitutional, we find that the district court abused its discretion

when it ordered the School Board to adopt a specific admissions pol-

icy. We therefore vacate the permanent injunction and remand to

allow an evidentiary hearing in which the School Board may present

alternative admissions policies for the district court's review.

_________________________________________________________________

2 Our involvement in the desegregation of the Arlington County public

school system is summarized in Brooks v. County School Bd. of Arling-

ton County, Virginia, 324 F.2d 303, 304-05 (4th Cir. 1963).

4

I.

ATS is an alternative kindergarten, one of three alternative schools

operated by the School Board that claims to teach students in a "tradi-

tional" format. Admission is not based upon merit but rather solely

upon availability.

The currently challenged Policy was created in response to prior

litigation. In the earlier case of Tito v. Arlington County School Bd.,

the district court permanently enjoined ATS from implementing its

former admissions policy and ordered the School Board to make "in-

vitations for admissions to the alternative schools[like ATS] in strict

order of the lottery selections, for all grade levels, as long as a random

lottery procedure continues to be employed." In so doing, the district

court concluded that diversity could never constitute a compelling

governmental interest and, in the alternative, even if it could, that the

earlier program was not sufficiently narrowly tailored to further diver-

sity.

The plaintiff in Tito submitted a proposed Order Granting Declara-

tory Relief and Permanent Injunction containing a provision that "per-

manently restrained and enjoined [the School Board] from using race,

color or ethnicity as a factor in offering invitations for admission" to

ATS. The district court found this provision "overbroad" because

"[t]his proposal would go beyond what is necessary to decide the case

at hand." The district court added, "[t]he court has ruled that the alter-

native schools' admissions policy `as implemented' . . . is unconstitu-

tional. The court declines to anticipate and foreclose any attempt by

the [S]chool [B]oard to achieve by other means the goals expressed

in its admissions policy."

Instead of appealing the Tito decision, the School Board adopted

a new Policy in February 1998. This Policy had two goals: (1) "to

prepare and educate students to live in a diverse, global society" by

"reflect[ing] the diversity of the community" and (2) to help the

School Board "serve the diverse groups of students in the district,

including those from backgrounds that suggest they may come to

school with educational needs that are different from or greater than

others."

5

The Policy defined diversity using three equally weighted factors:

(1) whether the applicant was from a low-income or special family

background, (2) whether English was the applicant's first or second

language, and (3) the racial or ethnic group to which the applicant

belonged. Through this Policy, ATS sought to obtain a student body

"in proportions that approximate the distribution of students from

those groups in the district's overall student population."

Under the Policy that ATS implemented in 1998-99 and that is

challenged here, ATS accepted applications from the general public

without restriction. Because the applicant pool was larger than the

number of available positions, ATS offered admission to applicants

based on a lottery. In 1998, ATS had 185 applicants for only 69 avail-

able positions.

First, ATS offered admission to applicants who were the siblings

of older students already attending ATS.3 In 1998, there were 23 ATS

sibling-applicants, leaving 46 positions available for admission to

ATS. Next, because the total ATS applicant pool, including siblings,

was not within 15% of the county-wide student population percent-

ages for all three factors, a sequential, weighted random lottery

among the 162 non-sibling applicants determined the remaining 46

_________________________________________________________________

3 This sibling preference was not challenged in either Tito or the current

case.

6

offers for admission to ATS.4 The probabilities associated with each

applicant's lottery number were weighted, so that applicants from

under-represented groups, as defined by the Policy, had an increased

probability of selection.5

_________________________________________________________________

4 The following table summarizes relevant data on offers of admission

at ATS for the 1998-99 school year (J.A. 64, 65, 133):

Population Subset Relative Percent

lottery of each

weights applicant

of each subgroup

County- Applicant Applicants applicant (excluding

wide pool offered subgroup siblings)

public (including admission offered

school siblings) (including admission

students siblings)

___________________________________________________________________

Income Factor

Low income 40 % 13.5 % 25 % 2 67 %

High income 60 % 86.5 % 75 % 1 22 %

___________________________________________________________________

First Language Factor

English 57 % 88.1 % 77 % 1 22 %

Non-English 43 % 11.9 % 23 % 3 70 %

___________________________________________________________________

Race/Ethnicity Factor

Asian/Pacific 10 % 13.5 % 13 % 4 20 %

Islander

Black 17 % 8.6 % 10 % 11 36 %

Hispanic 31 % 10.8 % 22 % 9 71 %

White 41 % 67 % 55 % 5 23 %

Other <1% -- % -- %

__________________________________________________________________

5 Each applicant's "lottery weight" was calculated as the product of the

individual weights for the three factors. For the relative weights utilized

in the lottery for each of the three separate factors, see table supra note

4.

7

Tuttle and Sechler (the "Applicants") did not have siblings attend-

ing ATS. Moreover, they had no increased probability of selection in

the lottery based on their diversity factor classifications, and they

were not selected for admission in the lottery process. As a result,

they did not receive admission offers. The Applicants, by and through

their Next Friends, parents Steven Tuttle and Charlotte Sechler, filed

a Complaint and a Motion for Preliminary Injunction against the

School Board to stop ATS' weighted admission process.

During the preliminary injunction motion hearing, the Applicants

moved to consolidate the hearing with a trial on the merits pursuant

to Fed. R. Civ. P. 65(a)(2). The School Board objected, arguing that

unless the district court accepted as a matter of law that diversity was

a compelling state interest, the School Board should be given an

opportunity to present evidence on that point. The district court

refused to grant the School Board an evidentiary hearing.

On April 14, 1998, without further proceedings, the district court

ruled in an unpublished memorandum opinion that the Applicants

were entitled to permanent injunctive relief. See Tuttle v. Arlington

County School Bd., No. CA-98-418-A, at 11 (E.D. Va. April 14,

1998) (unpublished memorandum opinion). In so ruling, the district

court reiterated that as a matter of law, "diversity was not a compel-

ling governmental interest" because the only compelling governmen-

tal interest to justify racial classifications was"to remedy the effects

of past discrimination." Id. at 8. At the district court's request, the

Applicants submitted a proposed order.

The School Board filed two objections to the proposed order. First,

the School Board argued that the district court had impermissibly

intruded upon the School Board's discretion by ordering it to institute

a "double-blind random lottery without the use of any preferences" to

admit students to ATS. Second, the School Board objected to being

permanently enjoined from not only using race, color, and national

origin, but also family income and first language in admitting students

to ATS. On April 23, 1998, the district court overruled these objec-

tions and entered the proposed order. The next day, the School Board

appealed to this Court.

We address three issues on appeal. First, the Applicants argued that

the School Board was collaterally estopped from disputing the district

8

court's conclusion of law that diversity is not a compelling interest.

Second, the School Board argued that the Policy does not violate the

Equal Protection Clause of the Fourteenth Amendment. Third, the

School Board argued that the district court's permanent injunction

was overbroad.

II.

We review the grant or denial of collateral estoppel de novo. See

United States v. Fiel, 35 F.3d 997, 1005 (4th Cir. 1994).

We review racial classifications under strict scrutiny. See Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).

There is disagreement among the parties concerning our standard

of review of the district court's injunction. The School Board argued

that since the district court based its injunction solely upon its inter-

pretation of the applicable law, we should review de novo. See

Williams v. United States Merit Sys. Protection Bd. , 15 F.3d 46, 48

(4th Cir. 1994) ("This court reviews a decision pertaining to injunc-

tive relief de novo when it rests solely on a premise as to the applica-

ble rule of law, and the facts are established or of no controlling

relevance.") (citation omitted). Since the School Board does not chal-

lenge the district court's authority to grant an injunction but rather the

scope of the injunction granted, we believe that Williams is inapposite

here and review the district court's permanent injunction for an abuse

of discretion. See Wilson v. Office of Civilian Health and Med. Pro-

grams of the Uniformed Servs., 65 F.3d 361, 363 (4th Cir. 1995).

This Court has appellate jurisdiction pursuant to 28 U.S.C.A.

§ 1292(a)(1) (West 1993 & Supp. 1998) because the present case is

an appeal of an interlocutory order granting an injunction.

III.

As a threshold matter, we must address whether the School Board

is collaterally estopped from claiming that diversity is a compelling

governmental interest because it never appealed the issue in the dis-

trict court's earlier Tito decision. Collateral estoppel "means simply

9

that when an issue of ultimate fact has once been determined by a

valid and final judgment, that issue cannot again be litigated between

the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S.

436, 443 (1970).6

After analyzing the relevant factors, we find that the School Board

is not collaterally estopped from appealing the district court's legal

conclusion that diversity is not a compelling governmental interest.

Because the admissions policy in Tito was markedly different than the

current Policy, the issues decided in Tito were hardly "identical" to

the issues currently before this Court. Since the district court also con-

cluded that the Tito policy was not narrowly tailored, the district

court's conclusion of law that diversity could never be a compelling

interest was not "necessary" in Tito. Furthermore, the decision in Tito

was hardly "final and valid." The Tito injunction was qualified with

"as long as [a] random lottery selection procedure continues to be

employed," implying that the School Board retained the discretion to

choose another random lottery selection procedure. Collateral estop-

pel, therefore, does not apply in this case.

IV.

The second issue is whether the Policy violates the Equal Protec-

tion Clause of the Fourteenth Amendment. Although race and ethnic-

ity comprise only one of the Policy's three diversity factors, it is

undisputed that the Policy involves a racial classification. All racial

classifications are subject to strict scrutiny. See Adarand, 515 U.S. at

227. Under strict scrutiny, a racial classification must (1) serve a com-

pelling governmental interest and (2) be narrowly tailored to achieve

that interest. Id.

_________________________________________________________________

6 "For collateral estoppel to apply, the proponent must establish that:

(1) the issue sought to be precluded is identical to one previously liti-

gated; (2) the issue must have been actually determined in the prior pro-

ceeding; (3) determination of the issue must have been a critical and

necessary part of the decision in the prior proceeding; (4) the prior judg-

ment must be final and valid; and (5) the party against whom estoppel

is asserted must have had a full and fair opportunity to litigate the issue

in the previous forum." Sedlack v. Braswell Servs. Group, 134 F.3d 219,

224 (4th Cir. 1998).

10

A.

The first question is whether diversity is a compelling governmen-

tal interest. This question remains unresolved. The only circuit to hold

that diversity is not a compelling interest is the Fifth Circuit. See

Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996) ("[A]ny consid-

eration of race or ethnicity . . . for the purpose of achieving a diverse

student body is not a compelling interest under the Fourteenth

Amendment."), cert. denied, 518 U.S. 1033 (1996). In Hopwood, the

Fifth Circuit went on to conclude that the only compelling interest to

justify racial classifications was remedying past discrimination. 78

F.3d at 944. Other circuits have not resolved the issue. In Lutheran

Church-Missouri Synod v. Federal Communications Comm'n, 141

F.3d 344 (D.C. Cir. 1998), the District of Columbia Circuit com-

mented that it did "not think diversity can be elevated to the `compel-

ling' level," id. at 354, but struck down a challenged regulation as not

narrowly tailored. Id. at 356. The Seventh Circuit observed that the

question of whether there may be compelling interests other than rem-

edying past discrimination remains "unsettled." McNamara v. City of

Chicago, 138 F.3d 1219, 1222 (7th Cir. 1998). The First Circuit is the

only court of appeals to have addressed the issue of diversity as a

compelling state interest in the context confronting us today -- the

use of race-based classifications in an admissions policy in a public

elementary or secondary school. Wessman v. Gittens, 160 F.3d 790,

796 (1st Cir. 1998) (assuming, without deciding, that diversity may

be a compelling governmental interest).

We have never decided the question of whether diversity is a com-

pelling interest. All of our cases cited by the Applicants are distin-

guishable because they concerned programs to remedy past

discrimination,7 a justification which both sides agree does not apply

in the present case. Even in the remedial context, we have explicitly

_________________________________________________________________

7 See Alexander v. Estepp, 95 F.3d 312, 315 (4th Cir. 1996) (holding

a remedial hiring program unconstitutional); Podberesky v. Kirwan, 38

F.3d 147, 151-52 (4th Cir. 1994) (Podberesky II) (holding a remedial

race-based scholarship unconstitutional); Maryland Troopers Ass'n. v.

Evans, 993 F.2d 1072, 1074 (4th Cir. 1993) (holding a remedial hiring

program unconstitutional).

11

avoided deciding the question of whether diversity is a compelling

interest.8

Nor has the Supreme Court directly decided this issue. The only

applicable Supreme Court precedent is Justice Powell's concurrence

in Regents of Univ. of California v. Bakke, where Justice Powell

wrote that diversity "furthers a compelling state interest." 438 U.S. at

313. We have interpreted Bakke as holding that the state "is not abso-

lutely barred from giving any consideration to race" in a nonremedial

context. Talbert, 648 F.2d at 928. Although no other Justice joined

the diversity portion of Powell's concurrence, nothing in Bakke or

subsequent Supreme Court decisions clearly forecloses the possibility

that diversity may be a compelling interest.9 Until the Supreme Court

provides decisive guidance, we will assume, without so holding, that

diversity may be a compelling governmental interest and proceed to

examine whether the Policy is narrowly tailored to achieve diversity.

Since we conclude below that the Policy was not narrowly tailored,

we leave the question of whether diversity is a compelling interest

_________________________________________________________________

8 See Alexander, 95 F.3d at 316 (concluding that "even assuming,

arguendo, that the asserted interests [which included, among others,

diversity] are compelling, the program is not narrowly tailored . . .");

Hayes v. North State Law Enforcement Officers Ass'n , 10 F.3d 207, 213

(4th Cir. 1993) (holding that evidence presented was insufficient to sur-

vive summary judgment "[w]ithout deciding whether achieving a greater

racial diversity . . . is a compelling state interest"); Podberesky v.

Kirwan, 956 F.2d 52, 56 n.4 (4th Cir. 1992) (Podberesky I) ("The district

court did not cite the need for diversity for this program, and it does not

appear that . . . [the] Program was established with this goal in mind.").

But see Talbert v. City of Richmond, 648 F.2d 925, 929 (4th Cir. 1981)

(holding that the attainment of racial diversity was"a legitimate inter-

est").

9 The Supreme Court did not directly address either the question of

whether diversity is a compelling interest or the current precedential

value of Bakke in its most recent affirmative action equal protection

opinion, Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). As

Justice Stevens pointed out, the "proposition that fostering diversity may

provide a sufficient interest to justify such a program is not inconsistent

with the Court's holding today--indeed, the question is not remotely

presented in this case . . . ." Id. at 258 (Stevens, J., dissenting) (citation

omitted).

12

unanswered. See Lying v. Northwest Indian Cemetery Prot. Ass'n,

485 U.S. 439, 445 (1988) ("A fundamental and longstanding principle

of judicial restraint requires that courts avoid reaching constitutional

questions in advance of the necessity of deciding them.").

B.

The second question to address is whether the Policy was narrowly

tailored to achieve diversity. Before we can address that question, we

first must determine if we can examine the race/ethnicity factor sepa-

rately from the income and language factors. The School Board

argued that the race/ethnicity factor cannot be divorced from the

income and first language factors. We disagree. Although the Policy

is indeed composed of not one but three factors, each factor works

independently of the other. We therefore limit our inquiry to the

race/ethnicity factor and do not reach the income and language fac-

tors.

Examining the race/ethnicity factor, we conclude that even under

Bakke it was not narrowly tailored because it relies upon racial bal-

ancing. Such nonremedial racial balancing is unconstitutional.10

When reviewing whether a state racial classification is narrowly

tailored, we consider factors such as: "(1) the efficacy of alternative

race-neutral policies, (2) the planned duration of the policy, (3) the

relationship between the numerical goal and the percentage of minor-

ity group members in the relevant population or work force, (4) the

_________________________________________________________________

10 See Freeman v. Pitts, 503 U.S. 467, 494 (1992) ("Racial balance is

not to be achieved for its own sake."); Bakke, 438 U.S. at 315 ("In a most

fundamental sense the argument misconceives the nature of the state

interest . . . . It is not an interest in simple ethnic diversity, in which a

specified percentage of the student body is in effect guaranteed to be

members of selected ethnic groups . . ."); Wessman, 160 F.3d at 799

("The Policy is, at bottom, a mechanism for racial balancing--and plac-

ing our imprimatur on racial balancing risks setting a precedent that is

both dangerous to our democratic ideals and almost always constitution-

ally forbidden."); Podberesky II, 38 F.3d at 160 ("[T]he program more

resembles outright racial balancing . . . [and a]s such, it is not narrowly

tailored . . .").

13

flexibility of the policy, including the provision of waivers if the goal

cannot be met, and (5) the burden of the policy on innocent third par-

ties." Hayes, 10 F.3d at 216, citing United States v. Paradise, 480

U.S. 149, 171 (1987). We acknowledge "that these factors are particu-

larly difficult to assess where, as here, the Policy is not tied to identi-

fied past discrimination." Hayes, 10 F.3d at 216 n.8.

First, we consider whether there are alternative race-neutral poli-

cies to promote diversity. With regard to judicial policymaking in the

educational context, we agree with Justice Blackmun that "the judi-

ciary is ill-equipped and poorly trained for this." Bakke, 438 U.S. at

404 (Blackmun, J., concurring in part and dissenting in part). As Jus-

tice Blackmun noted, "The administration and management of educa-

tional institutions are beyond the competence of judges and are within

the special competence of educators, provided always that the educa-

tors perform within legal and constitutional bounds." Id. Fortunately,

we need not engage in judicial policymaking today because the

School Board's own Alternative Schools Admission Study Commit-

tee offered one or more alternative race-neutral policies in its Report

to the Superintendent.11 While the Committee ultimately recom-

_________________________________________________________________

11 These three alternatives were:

1. Assign a small geographic area to identified alternative

schools as the home school for that area, and fill the remaining

spaces in the entering class by means of an unweighted random

lottery from a self-selected applicant pool. The geographic area

would presumably be selected so that its residents would posi-

tively effect the diversity of the school

***

2. An additional option was to have all names of an entering

class in the county automatically put into the lottery. All students

are then selected at random and offered admission until the class

is full. Another method would be to offer randomly selected

families the opportunity to have their child's name placed in a

second lottery from which those students selected would be

offered admission. This method would require all families, even

those not interested in alternative schools, to make an active

choice

***

14

mended the currently challenged Policy, the fact that the Committee

also proposed one or more race-neutral alternatives demonstrates that

the School Board has race-neutral means to promote diversity.

Second, we consider the planned duration of the Policy. The Policy

states that the weighted lottery will be conducted"for the 1999-2000

school year and thereafter." Because a racial classification cannot

continue in perpetuity but must have a "logical stopping point," the

Policy is not narrowly tailored. City of Richmond v. Croson, 488 U.S.

469, 498 (1989).

Third, we consider the relationship between the numerical goal and

the percentage of minority group members in the relevant population

or work force. The Policy seeks to achieve racial and ethnic diversity

in its classes "in proportions that approximate the distribution of stu-

dents from [racial] groups in the district's overall student population."

The means employed by the Policy to achieve such numerical racial

and ethnic diversity is racial balancing.

It is clear that the Policy engages in racial balancing. The School

Board attempted to distinguish its Policy by arguing that, unlike other

programs where a percentage of spots is reserved solely for minori-

ties, this program allows every applicant, regardless of race, to com-

pete for every available spot. The School Board also argued that it

was not engaging in straight racial balancing because of the deviation

inherent in the lottery.

We conclude that these are distinctions without differences.

Although the Policy does not explicitly set aside spots solely for cer-

tain minorities, it has practically the same result by skewing the odds

of selection in favor of certain minorities. Even if the final results

may have some statistical variation, what drives the entire weighted

_________________________________________________________________

3. Each neighborhood school would be allotted a certain num-

ber of slots at each alternative school. The number of slots per

school would be determined either by the percentage of that

school's population relative to ATS student population or by the

extent of overcrowding at the school . . . .

15

lottery process--the determination of whether it applies and the val-

ues of its weights--is racial balancing. The Policy's two goals, to pro-

vide students with the educational benefits of diversity and to help the

School Board better serve the diverse groups of students in its district,

do not require racial balancing.

Fourth, we consider the flexibility of the Policy. The School Board

argued that the Policy was extremely flexible because instead of a set

numerical goal, the final random results of the weighted lottery ulti-

mately determined admissions. We disagree. Since ATS admissions

are based on availability, if the applicant pool does not reflect the

required 15% racial and ethnic diversity, each child's probability of

selection in the lottery is adjusted corresponding to his or her stated

race. In Bakke, Justice Powell explained that constitutionally permis-

sible programs such as the Harvard College admissions program pro-

mote diversity by "treat[ing] each applicant as an individual in the

admissions process." 438 U.S. at 318. The Policy, like the Davis

admissions program in Bakke, does not treat applicants as individuals.

The race/ethnicity factor grants preferential treatment to certain appli-

cants solely because of their race.

Fifth, we consider the burden of the Policy on innocent third par-

ties. The innocent third parties in this case are young kindergarten-age

children like the Applicants who do not meet any of the Policy's

diversity criteria. We find it ironic that a Policy that seeks to teach

young children to view people as individuals rather than members of

certain racial and ethnic groups classifies those same children as

members of certain racial and ethnic groups.12

_________________________________________________________________

12 The district court concurred during the earlier Tito case:

The court finds it both unfortunate and potentially pernicious

that four year old children are directed by the state to identify

themselves for admissions purposes as African American, Asian,

Caucasian, [or] Hispanic . . . Although presumably the children's

parents complete the applications, and most likely the children

themselves do not fully understand the significance and conse-

quences of their self-designation, it is not unreasonable to view

the process as the first step in the state-sponsored perpetuation

of an educational system which continues to rely upon racial dis-

16

On balance, we conclude that the Policy was not narrowly tailored

to further diversity and thereby find it unconstitutional.

V.

In the alternative, the School Board argued that the district court

abused its discretion with its permanent injunction. We have previ-

ously held:

An injunction should be tailored to restrain no more than

what is reasonably required to accomplish its ends .. .

Although injunctive relief should be designed to grant the

full relief needed to remedy the injury to the prevailing

party, it should not go beyond the extent of the established

violation.

Hayes, 10 F.3d at 217 (citations omitted).

In Hayes, we held that the district court's injunction, enjoining the

use of racially based criteria by the City of Charlotte in its employ-

ment decisions, was overbroad. Id. We conclude that the district

court's injunction in the current case suffers the same infirmity.

Although the Applicants were entitled to an injunction, they were

not entitled to a permanent injunction ordering the School Board to

adopt a particular admissions policy. The district court should have

taken the less intrusive step of continuing to monitor and review alter-

native programs proposed by the School Board. Although the district

court was apparently unsettled by what it characterized as the School

Board's attempt "to achieve the same end that was held unconstitu-

tional in Tito, merely by a different process," Tuttle, No. CA-98-418-

_________________________________________________________________

tinctions. If it is true that the Equal Protection Clause seeks ulti-

mately to render the issue of race irrelevant in governmental

decisionmaking . . ., it might not be overly utopian to begin by

abandoning the insistence that young children categorize them-

selves according to race in a manner that will follow them

throughout their education and, often, professional life.

(Citations omitted.)

17

A, at 1, there was no reason to suspect bad faith or abdication of

responsibility by the School Board that might warrant such an

extreme measure. The district court did not give the School Board an

opportunity to explain how the new Policy was different from the one

struck down in Tito. In Tito, the district court deleted a provision from

the proposed order "permanently restraining [the School Board] from

using race, color or ethnicity as a factor" in admissions. In so doing,

the district court stated that it declined "to anticipate and foreclose

any attempt by the [S]chool [B]oard to achieve by other means the

goals expressed in its admissions policy." Given these facts, it is

understandable that the School Board read the Tito order as not fore-

closing the School Board's discretion to create a new admissions pol-

icy.

Although we have held that an evidentiary hearing is not required

before issuing a permanent injunction, see Lone Star Steakhouse &

Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 938 (4th Cir.

1995), we conclude that the district court should have allowed an evi-

dentiary hearing in this case to give the School Board an opportunity

to present alternative admissions policies.

VI.

We affirm the district court's holding that the Policy was unconsti-

tutional, vacate the district court's permanent injunction, and remand

for an evidentiary hearing.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

18