Eisenberg v. Montgomery County

Filed: November 19, 1999

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-2503

(CA-98-2797-AW)

Jeffrey Eisenberg, etc.,

Plaintiff - Appellant,

versus

Montgomery County Public Schools, et al,

Defendants - Appellees.

O R D E R

The court amends its opinion filed October 6, 1999, as

follows:

On the cover sheet, section 3, line 3 -- the district court

number is corrected to read “CA-98-2797-AW.”

On page 11, first full paragraph, line 12 -- the reference to

Tuttle “at 10-11" is corrected to read “at 11-12.”

On page 13, first paragraph, line 4 -- the reference to Tuttle

“at 10" is corrected to read “at 11.”

- 2 -

On page 14, first paragraph, line 1 -- the reference to Tuttle

“at 12 & n. 11" is corrected to read “at 11 & n. 10.”

On page 17, first full paragraph, line 3 -- the reference to

Tuttle “at 12" is corrected to read “at 13.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEFFREY EISENBERG, on behalf of

Jacob Eisenberg,

Plaintiff-Appellant,

and

ELINOR MERBERG, on behalf of Jacob

Eisenberg,

Plaintiff,

v.

No. 98-2503

MONTGOMERY COUNTY PUBLIC

SCHOOLS; PAUL VANCE, Dr.,

Superintendent, in his official and

personal capacity; MONTGOMERY

COUNTY BOARD OF EDUCATION,

Members, in their official and

personal capacity,

Defendants-Appellees.

UNITED STATES OF AMERICA,

Amicus Curiae.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(CA-98-2797-AW)

Argued: June 10, 1999

Decided: October 6, 1999

Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.

_________________________________________________________________

Reversed and remanded with instructions by published opinion. Judge

Widener wrote the opinion, in which Judge Niemeyer and Judge

Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Jeffrey Eisenberg, Silver Spring, Maryland, for Appel-

lant. Patricia Ann Brannan, HOGAN & HARTSON, L.L.P., Wash-

ington, D.C., for Appellees. Rebecca K. Troth, UNITED STATES

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

Curiae. ON BRIEF: Maree F. Sneed, Audrey J. Anderson, HOGAN

& HARTSON, L.L.P., Washington, D.C.; Judith S. Bresler, REESE

& CARNEY, L.L.P., Columbia, Maryland, for Appellees. Bill Lann

Lee, Acting Assistant Attorney General, Mark L. Gross, UNITED

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

Amicus Curiae.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

The issue in this case is whether the Montgomery County Board of

Education may deny a student's request to transfer to a magnet school

because of his race. We hold that it may not.

Jacob Eisenberg appeals the district court's denial of his motion for

a preliminary injunction to compel his admittance to the math and sci-

ence magnet program at Rosemary Hills Elementary School. Jacob

originally applied for a transfer to Rosemary Hills Elementary School

for the 1998-99 school year, his first grade year, and was denied his

request by Montgomery County on May 15, 1998 due to the "impact

on diversity." Jacob is currently preparing to enter the second grade

at Glen Haven Elementary, his assigned school, based on his resi-

dence. On his transfer request application, Jacob identified his

racial/ethnic group as "White, not of Hispanic origin," and accord-

ingly, under Montgomery County's transfer policy, particularly its

2

"diversity profile,"1 he was not allowed to transfer out of Glen Haven

Elementary School. We reverse the district court's order denying

Jacob's motion for a preliminary injunction and remand this case for

action consistent with this opinion.

I.

Montgomery County educates more than 125,000 elementary and

secondary students enrolled at over 183 schools spread throughout

500 square miles. The County has never been subject to a court order

for desegregation,2 rather, Montgomery County by its voluntary

efforts dismantled the former segregated school system. One aspect

of its efforts included the implementation of magnet school programs,3

which would attract and retain diverse student enrollment on a volun-

tary basis to schools outside the area in which the student lives. A

magnet program emphasizing math and science is located at Rose-

_________________________________________________________________

1 The Superintendent, Dr. Paul L. Vance, stated in his August 6, 1998

letter regarding Jacob's Transfer Appeal that "[t]he diversity profile

group ... means that white students cannot transfer out of Glen Haven

Elementary School unless there is a unique hardship circumstance."

2 Likewise, there has never been a judicial finding of a constitutional

violation within Montgomery County's educational setting. In 1981,

however, the Office of Civil Rights investigated a parent's complaint

filed against Montgomery County alleging that it was"resegregating

Rosemary Hills Primary School by improperly approving student trans-

fers ... without the approval of the Quality Integrated Education team,"

thereby failing to prevent minority isolation at Rosemary Hills. Mont-

gomery County's transfer policy at issue here was adopted in response

to this complaint. The fact that Rosemary Hills was the subject of the

1981 action is entirely coincidental to, and has no relevance to, the fact

that the Rosemary Hills magnet school program is the subject of this

case.

3 Magnet programs offer enriched curricula emphasizing specific areas;

e.g., science, math, or a foreign language. In fact, admission to Rosemary

Hills magnet school is not based on merit. Montgomery County points

out that if Rosemary Hills receives more transfer requests than it has

seats, the names of the eligible students are placed in a lottery and

selected randomly. See County Br. at 9, n.4. This being true, Jacob would

not have been eligible for the lottery because he was not allowed to

transfer out of Glen Haven based on his race.

3

mary Hills Elementary School. Montgomery County permits volun-

tary transfers from an assigned school to another school under certain

circumstances as outlined in its School Transfer Information Booklet.4

Montgomery County considers, in stages, several factors in the

consideration of a voluntary transfer request: first, school stability;5

second, utilization/enrollment; third, diversity profile; and last, the

reason for the request. All of the transfer applications are considered

concurrently, and if the assigned school and the requested school are

ruled stable, the transfer request is reviewed for utiliza-

tion/enrollment. An underutilized school is operating below 80%

capacity and an overutilized school is operating above 100% capacity.

_________________________________________________________________

4 Throughout its Transfer Booklet and its briefs, Montgomery County

uses the terms "county-wide average," "average county-wide range," and

in one footnote in its Reply Brief, "one-and-one-half standard devia-

tions," to describe the method used to compare the racial/ethnic student

population in each particular school to that of other schools and to the

overall racial/ethnic student population enrolled in Montgomery County

Public Schools. These terms are interchangeably and indistinguishably

used by Montgomery County with no apparent recognition of the ordi-

nary true meanings of each term. For instance, an average is "exactly or

approximately the quotient obtained by dividing the sum total of a set of

figures by the number of figures." Webster's Ninth New Collegiate

Dictionary 119 (9th ed. 1985). A range is defined as "the difference

between the least and the greatest values of an attribute." Webster's

Ninth New Collegiate Dictionary 974 (9th ed. 1985); see also David W.

Barnes, Statistics as Proof 77 (1983) (explaining a range as "the distance

between the largest and smallest numbers."). A standard deviation "rep-

resents the typical [variation] from the mean or expected value for a pop-

ulation (or list of numbers)." David W. Barnes, Statistics as Proof 81

(1983). For our purposes in this opinion, we have assumed that each of

these terms refers to the actual percentage of students in a racial/ethnic

group within the student population enrolled in each of the Montgomery

County Public Schools, and, as well, the percentage of students in each

of the various racial/ethnic groups in the student population of the Mont-

gomery County Public Schools, taken as a whole.

5 Stability refers to whether the assigned school and the requested

school are undergoing a boundary change, consolidation, or renovation

that requires students to attend school at an alternative site or whether

either school is undergoing some other change that requires the enroll-

ment to remain stabilized.

4

The utilization factor for each school is determined prior to the receipt

of transfer requests and is indicated, for each school in the system, in

the Transfer Booklet. Overutilization or underutilization may affect a

transfer request, in fact, Montgomery County states that these transfer

request(s) usually will be denied.6 Along with utilization, enrollment

is considered to ensure that schools remain within the preferred range

of enrollment.7 If these factors are not a concern, Montgomery County

looks to the diversity of the student body of the assigned and the

requested schools.

A. Diversity Profile

According to the Transfer Booklet, "[t]ransfers that negatively

affect diversity are usually denied." Students are identified according

to their racial/ethnic group: African American, Asian, Hispanic, and

White. Montgomery County compares the countywide percentage for

each racial/ethnic group to the percentage of each group attending a

particular school, and also determines whether the percentage of each

racial/ethnic group in that school has either increased or decreased

over the past three years. Based on that information, Montgomery

County then assigns to each racial/ethnic group within each school a

diversity category.8

Categories 1 and 2 are reserved for the racial/ethnic group popula-

tions within a school, the percentages of which are higher than the

countywide percentage for that particular group. Category 1 refers to

racial groups, the percentage of which is higher than the countywide

percentage for that group and has increased over time rather than

_________________________________________________________________

6 Each school has an "O" or a "U" or a blank space (if the utilization

is optimal).

7 The preferred range of enrollment refers to the number of classes of

students per grade for elementary schools. For example, 2 to 4 classes of

students per grade is preferred in elementary schools. If a school with

sufficient capacity fails to meet [has fewer classes than] the preferred

range, transfers out of that school are usually not permitted.

8 If the percentage of the identified racial/ethnic group within a school

is within the countywide percentage for that group and is expected to

remain the same for the near future, that racial/ethnic group will not be

assigned a diversity category.

5

moved closer to the countywide percentage. Transfers usually will not

be permitted by a student into a school with a designated category 1

for his racial/ethnic group because his racial/ethnic group percentage

at that requested transfer school is already higher than the countywide

percentage. Category 2 refers to racial/ethnic populations which,

although higher than the countywide percentage, have tended to

decline over time. Some transfers are permitted into this group. Cate-

gories 3 and 4 indicate a racial/ethnic percentage within a school that

is below the countywide percentage. Category 3 is reserved for those

racial/ethnic groups, the percentage of which has tended to decline

over time; while category 4 includes those populations the percentage

of which has tended to increase. For example, "if a particular school

has had a declining white enrollment over the preceding three year

period and is substantially below the average [c]ounty-wide enroll-

ment of white students [a Category 3], the District may restrict trans-

fers of white students out of that school because they would

contribute to that school becoming racially isolated."9 County Br. at

7. As is the County's, the diversity profile for each school is

reevaluated and adjusted annually.

B. Jacob's Transfer Application

In March of 1998, Jacob's parents submitted a request that he be

transferred from Glen Haven to Rosemary Hills to begin the first

grade, reasoning that Jacob's "personal and academic potential"

would benefit from the school's math and science emphasis. His

transfer request was approved by his kindergarten teaching team.

Jacob, as a white student, was part of a category 3 group at Glen

_________________________________________________________________

9 Jacob faced this very situation. Glen Haven, his assigned school, and

Rosemary Hills, his requested school, had the following notations for uti-

lization and for diversity profile:

School UtilizationAfrican- Asian Hispanic White

American

___________________________________________________________

Glen Haven Overutiliz. 1 1 3

___________________________________________________________

Rosemary 3

Hills

___________________________________________________________

6

Haven Elementary School because at the time of Jacob's transfer

request, Glen Haven's student body was 24.1% white compared to the

Montgomery County-wide percentage of 53.4%, and the white enroll-

ment at Glen Haven dropped from 38.9% in 1994-95 to 24.1% in

1997-98. See Eisenberg v. Montgomery County Public Sch., 19 F.

Supp. 2d 449, 451 (D. Md. 1998). On May 15, 1998, his transfer was

denied. The sole reason given by Montgomery County for the denial

was "impact on diversity," that is to say because Jacob was white.

Jacob did not demonstrate a "unique personal hardship"10 to obtain an

exemption from the denial based on the negative impact on diversity.

The Eisenbergs submitted their appeal first to the Superintendent, and

then to the Board of Education, which denied the transfer request on

August 26, 1998.

Jacob's parents sought declaratory and injunctive relief as well as

damages on behalf of Jacob in the district court under 42 U.S.C.

§ 1983, the Equal Protection Clause, and under 42 U.S.C. § 2000(d).

The district court denied the Eisenbergs' motion for a preliminary

injunction on September 9, 1998 on the basis that the Eisenbergs

made an insufficient showing of likelihood of success on the merits.11

_________________________________________________________________

10 Five white students, out of 19 who applied, were permitted to trans-

fer out of Glen Haven for the 1998-99 school year on a personal hardship

basis. Four of these transfers were permitted because the transferring stu-

dent had a sibling already attending the requested school.

11 The district court applied the Fourth Circuit's standards for injunc-

tive relief, see Blackwelder Furniture Co. of Statesville, Inc. v. Seilig.

Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977), and first considered the

threat of irreparable harm to Jacob should the court not issue an injunc-

tion, and the likely harm to Montgomery County if an injunction should

be ordered, and then balanced these two interests. See Eisenberg, 19 F.

Supp. 2d at 452 (citing Manning v. Hunt, 119 F.3d 254, 263 (4th Cir.

1997)). Next, the court considered the likelihood that the plaintiff would

succeed on the merits noting that as the likelihood of harm to the defen-

dant increased, the burden on the plaintiff to demonstrate likelihood of

success also increased. See Eisenberg, 19 F. Supp. 2d at 452. Finally, the

court accounted for the public interest. See Eisenberg, 19 F. Supp. 2d at

452.

In this instance, the district court concluded that the balance of hard-

ships favored Montgomery County, though only slightly. Thus, the court

looked to the Eisenbergs to make a strong showing regarding their likeli-

hood of success on the merits. Finding none, the district court denied

their motion for preliminary injunction.

7

The district court concluded that Montgomery County's asserted

interests in both the diversity of its student body and avoidance of

potential segregative enrollment patterns were each sufficiently com-

pelling governmental interests to justify the transfer policy's race

based classifications under a "strict scrutiny" review applied in Equal

Protection cases.12 See Eisenberg, 19 F. Supp. 2d at 453-54. The dis-

trict court further concluded that the transfer policy had "been

designed as narrowly as possible while still furthering [Montgomery

County's] stated interests." Eisenberg, 19 F. Supp. 2d at 455.

Following the denial of the preliminary injunction, the Eisenbergs

appealed to this court and Jacob entered the first grade at his assigned

school, Glen Haven. We review the denial of the preliminary injunc-

tion de novo since the district court based its decision solely on a

premise and interpretation of the applicable rule of law and the facts

are established. See Williams v. United States Merit Sys. Protection

Bd., 15 F.3d 46, 48 (4th Cir. 1994).

II.

"Race is the perpetual American dilemma." J. H. Wilkinson, III,

From Brown to Bakke 8 (1979). Once again, we find ourselves

addressing a most difficult issue in the familiar setting of our public

schools. The facts also appear all too familiar-- a child has been

denied access to a state funded educational opportunity because of the

color of his skin.13 In this case there is no denial that racial classifica-

tions result in the denial of a certain number of transfers because

Montgomery County fears racial imbalance within its schools, and to

_________________________________________________________________

12 The district court said that it applied the strict scrutiny review fash-

ioned in Richmond v. Croson, 488 U.S. 469, 493 (1989) (plurality opin-

ion). "A challenged policy or decision can survive such `strict scrutiny'

review only if it is justified by a `compelling governmental interest' and

is `narrowly tailored' to accomplish that goal." Eisenberg, 19 F. Supp.

2d at 452.

13 Although the Montgomery County transfer policy uses the same

method in considering all students within all racial/ethnic groups, at the

individual school level, an African American student may be denied

access due to his category designation, where a White student would be

granted his transfer request, and vice versa.

8

combat this potential problem, Montgomery County employs a race-

conscious nonremedial transfer policy which amounts to racial bal-

ancing.

A.

Initially, the district court erred when it failed to adhere to, or even

to mention, the presumption against race based classifications. See

Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 272 (1979)

("racial classification, regardless of purported motivation, is presump-

tively invalid and can be upheld only on extraordinary justification.").

In Podberesky v. Kirwan, (Podberesky II), a case involving an exclu-

sively African-American scholarship program at the University of

Maryland, we emphasized that presumption and "the constitutional

premise that race is an impermissible arbiter of human fortunes," even

when using race as a "reparational device" or as a "remedial measure"

for past discrimination. 38 F.3d 147, 152 (4th Cir. 1994), cert. denied,

Kirwan v. Podberesky, 514 U.S. 1128 (1995); Maryland Troopers

Ass'n, Inc. v. Evans, 993 F.2d 1072, 1076 (4th Cir. 1993). In accor-

dance with that principle, we concluded that government institutions

that choose to employ racial classifications face"the presumption that

[such a] choice can not be sustained." Podberesky II, 38 F.3d at 152.

Montgomery County was burdened with this presumption, and

although the district court analyzed the transfer policy under strict

scrutiny review, it failed to take the presumption into account when

it denied Jacob's request for a preliminary injunction. There is noth-

ing in the record to overcome this presumption.

B.

It is undisputed that the transfer policy considers race as the sole

determining factor, absent a "unique personal hardship," if the

assigned school and the requested school are both stable and their uti-

lization/enrollment factor are acceptable for transfers. While whites

and non-whites are not singled out for different treatment, they are all

subject to being denied a transfer request solely on the basis of their

race. Any racial classification, including that present here, must sur-

vive strict scrutiny review; failing such review manifests a violation

of Jacob's constitutional rights.14 See Adarand Constructors, Inc. v.

_________________________________________________________________

14 In its review of Jacob's asserted irreparable harm, the district court

stated that, if proven, a violation of Jacob's constitutional rights consti-

9

Pena, 515 U.S. 200, 227 (1995). Strict scrutiny review requires the

racial classification to serve a compelling governmental interest and

be narrowly tailored to achieve that interest. See Adarand, 515 U.S.

at 227. The diversity profile factor of the transfer policy employs such

racial classifications which "are simply too pernicious to permit any

but the most exact connection between justification and classifica-

tion." Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 (1986)

(quoting Fullilove v. Klutznick, 448 U.S. 448, 537 (1980) (Stevens, J.,

dissenting)).

The district court's determination that the Eisenbergs did not have

a strong likelihood of success on the merits stemmed from its strict

scrutiny review. The district court labeled its review as exacting and

determined that each of the two interests advanced by Montgomery

County were sufficiently compelling; the first interest in avoiding the

creation of segregative enrollment by racial isolation, and the second

interest in promoting a diverse student population. See Eisenberg, 19

F. Supp. 2d at 452-55. A further examination of these two interests,

and application of this court's reasoning in our recent case regarding

racial classifications within an elementary school setting, Tuttle v.

Arlington County Sch. Bd., No. 98-1604 (4th Cir. Sept. 24, 1999),

reveals that Montgomery County's transfer policy cannot pass consti-

tutional muster.

Moreover, we believe the district court erred in its finding that the

Eisenbergs are not likely to succeed on the merits, given that the

record demonstrates that Montgomery County's transfer policy is not

a remedial race-conscious policy. See Eisenberg, 19 F. Supp. 2d at

451-52. Montgomery County has never been under a court order to

desegregate, having acted voluntarily to dismantle segregation after

the Supreme Court's decision in Brown v. Board of Educ., 347 U.S.

483 (1954). See Eisenberg v. Montgomery County Public Sch., 19 F.

Supp. 2d at 451; County Br. at 4. Montgomery County formed a

_________________________________________________________________

tutes per se irreparable harm. See Eisenberg, 19 F. Supp. 2d at 452 (cit-

ing Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978); Henry v.

Greenville Airport Comm'n, 284 F.2d 631, 632-33 (4th Cir. 1960)). The

district court found the irreparable harm to be slight and balanced the

hardships in favor of Montgomery County.

10

Quality Integrated Education policy in 1975,15 and the present transfer

policy reflects the Quality Integrated Education policy goals of

"avoiding racial isolation and promoting diverse enrollments." See

County Br. at 4. Notwithstanding that race based classifications have

been tolerated in situations where past constitutional violations

require race based remedial action, see Swann v. Charlotte Mecklen-

burg Bd. of Educ., 402 U.S. 1 (1971); Brewer v. School Bd. of City

of Norfolk, 456 F.2d 943 (4th Cir.), cert. denied, School Bd. of City

of Norfolk v. Brewer, 406 U.S. 933 (1972), we do not face that type

of scenario in this case. No court has ever made a finding that Mont-

gomery County Public Schools were not unitary, therefore, the trans-

fer policy does not correct any past constitutional violations.

III.

We next examine whether a compelling governmental interest

exists. Although Montgomery County advances two interests, each of

which it argues constitutes a sufficiently compelling state interest

under strict scrutiny, we are of opinion that, despite the different

nomenclature, these interests are one and the same. 16 See Brewer v.

West Irondequoit Cent. Sch. Dist., 32 F. Supp. 2d 619, 627

(W.D.N.Y. 1999) (describing the avoidance of racial isolation as "a

negatively-phrased expression for attaining the opposite of racial iso-

lation which is racial diversity."). Tuttle notes that whether diversity

is a compelling governmental interest remains unresolved, and in this

case, we also choose to leave it unresolved. See Tuttle, No. 98-1604,

slip op. at 11-12 (4th Cir. Sept. 24, 1999); but see Hopwood v. Texas,

78 F.3d 932, 944 (5th Cir. 1996), reh'g en banc denied, 84 F.3d 720

_________________________________________________________________

15 Montgomery County asserts that the Quality Integrated Education

policy was part of the voluntary effort to support integrated schools. This

policy was adopted more than 20 years after Brown, and we note that

today, over 45 years have passed since Brown.

We especially note that at about the time of inception of the transfer

policy, 1981, a complaint of the U. S. Department of Education was that

the "racial balance" was being upset in certain schools by the county

transfer policy. This was prior to Freeman, infra, of course.

16 The district court considered each interest separately and concluded

that each was sufficiently compelling to justify the questioned policy.

See Eisenberg, 19 F. Supp. 2d at 453-54.

11

(5th Cir.), cert. denied, 518 U.S. 1033 (1996) (holding that "consider-

ation of race or ethnicity by the [University of Texas] law school for

the purposes of achieving a diverse student body is not a compelling

interest under the Fourteenth Amendment."). We will assume, without

holding, as the Tuttle court assumed,17 that diversity may be a compel-

ling governmental interest, and proceed to examine whether the trans-

fer policy is narrowly tailored to achieve diversity. See Tuttle, No. 98-

1604, slip op. at 11-12 (4th Cir. Sept. 24, 1999). No inference may

here be taken that we are of opinion that racial diversity is a compel-

ling governmental interest.

The present case and Tuttle are nearly indistinguishable in that both

involve public school policies, here the Montgomery County transfer

policy and in Tuttle, the Arlington County admissions policy for the

Arlington Traditional School, in place "not to remedy past discrimina-

tion, but rather to promote racial [and] ethnic" diversity. Tuttle, No.

98-1604, slip op. at 3 (4th Cir. Sept. 24, 1999). Even in the remedial

_________________________________________________________________

17 The First Circuit assumed that diversity may suffice as compelling

without so holding, see Wessmann v. Gittens, 160 F.3d 790 (1st Cir.

1998) (declining to decide, in the context of a race based admissions pro-

gram to one of Boston's better public secondary schools, that diversity

can never be a compelling state interest but, instead, determining that it

was not narrowly tailored to achieve the desired end). Other circuits have

faced related issues in different circumstances, see Taxman v. Board of

Educ. of the Township of Piscataway, 91 F.3d 1547 (3d Cir. 1996)

(refusing to find support in the Court's Equal Protection cases for the

notion that diversity or affirmative action were sufficient justifications

for making race a factor in the termination decision of one of two equally

qualified teachers in a nonremedial situation under Title VII); Lutheran

Church-Missouri Synod v. Federal Communications Comm'n, 141 F.3d

344 (D.C. Cir. 1998) (holding that "diversity of programming" was an

insufficient justification to uphold aspects of the FCC's licensing pro-

gram (which, in essence, pressured stations to maintain a workforce that

mirrored the racial composition of their area) under strict scrutiny's com-

pelling state interest test); McNamara v. City of Chicago; 138 F.3d 1219,

1222 (7th Cir. 1998) (referring to the issue as unsettled.). We should not

leave the various opinions of the courts of appeal without noting that

Lutheran Church also reasoned that ". . . it is impossible to conclude that

the government's interest, no matter how articulated, is a compelling

one." 141 F.3d at 355.

12

context, where the state-sponsored program or policy exists to remedy

the proximately caused present effects of past discrimination, we have

not decided the question of whether diversity is a compelling govern-

mental interest. See Tuttle, No. 98-1604, slip op. at 11 n. 7 (4th Cir.

Sept. 24, 1999) (citing Alexander v. Esteep, 95 F.3d 312, 316 (4th Cir.

1996); Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d

207, 213 (4th Cir. 1993) (holding that there was insufficient evidence

to prove that race based promotion to achieve racial diversity was a

compelling interest); Podberesky v. Kirwan, 956 F.2d 52, 56 n.4 (4th

Cir. 1992) (Podberesky I)). Similarly, the Supreme Court has not

decided this issue. See Regents of Univ. of California v. Bakke, 438

U.S. 265, 269 (1978). We thus do not decide that racial/ethnic diver-

sity is a compelling state interest and proceed to the second part of

the strict scrutiny analysis.

IV.

This court's mention of Bakke in Talbert v. City of Richmond18

does not lead us to conclude that Montgomery County's use of racial

classifications in its transfer decisions is narrowly tailored to the inter-

est of obtaining diversity. In fact, we find that it is mere racial balanc-

ing in a pure form, even at its inception. The County annually

ascertains the percentage of enrolled public school students by race

on a countywide basis, and then does the same for each school. It then

assigns a numbered category for each race at each school, and admin-

isters the transfer policy so that the race and percentage in each school

to which students are assigned by residence is compared to the per-

centage of that race in the countywide system. The transfer policy is

administered with an end toward maintaining this percentage of racial

balance in each school. This is, by definition, racial balancing. As we

have only recently held in Tuttle "[s]uch nonremedial racial balancing

_________________________________________________________________

18 Talbert v. City of Richmond, 648 F.2d 925, 931 (4th Cir. 1981),

involved police officer promotion and stated that "the attainment of

racial diversity in the top ranks of the police department was a legitimate

interest of the city." In Hayes v. North State Law Enforcement Officers

Ass'n, 10 F.3d 207 (4th Cir. 1993), however, we held that legitimate is

not necessarily compelling. 10 F.3d at 213 ("We did not determine that

the interest was sufficiently `compelling' to justify racial classifications

under the strict scrutiny standard.").

13

is unconstitutional." Tuttle, No. 98-1604, slip op. at 13 & n.10 (4th

Cir. Sept. 24, 1999). Montgomery County's transfer policy, at its

inception, was to "further provide[ ] for transfers ... providing that the

transfer does not adversely affect the racial balance in either the

sending or the receiving school." Letter from U. S. Department of

Education to Superintendent Andrews, Feb. 28, 1981 (italics added).

Although the transfer policy does not necessarily apply "hard and fast

quotas,"19 its goal of keeping certain percentages of racial/ethnic

groups within each school to ensure diversity is racial balancing.20

The Court dealt with the issue of nonremedial racial pupil assign-

ment in both Pasadena Bd. of Educ. v. Spangler, 427 U.S. 424

(1976), and Freeman v. Pitts, 503 U.S. 467 (1992). In Spangler, the

Supreme Court affirmed the Ninth Circuit's finding that it would be

beyond the remedial authority of the district court to require the

annual readjustment of school attendance zones to counteract changes

in the racial makeup of the schools.21 See Spangler, 427 U.S. at 436.

_________________________________________________________________

19 The district court pointed to the fact that some transfers are allowed

based on "personal hardship and family unity" as evidence that the trans-

fer policy was not rigidly applied. See Eisenberg, 19 F. Supp. 2d at 455.

This does not detract from the wrong done by denial of a transfer, as

here, on the basis of race.

20 Although the district court decided that, in its opinion, diversity was

a compelling governmental interest, its finding that "the [county] does

not apply hard and fast quotas" is a tacit acknowledgment that if such

were the case, its decision would have been different. Eisenberg, 19 F.

Supp. 2d at 454. The fact that, for any reason personal to him, only a dis-

tinct personal hardship can save any student, regardless of his race, from

having his transfer request decided on the basis of race, makes it tempt-

ing to decide the general question of whether or not diversity is a com-

pelling governmental interest. However persuasive the arguments, and

however tantalizing the facts in this case are, we resist that temptation

and do not decide the question because it is not absolutely necessary to

our decision. See Ashwander v. TVA, 297 U.S. 288, 341, 346-47 (1936)

(Brandeis, J., concurring).

21 Clearly, Montgomery County has not been found to initially assign

students to schools based on race, rather students are assigned by resi-

dence. Nonetheless, Montgomery County is attempting to keep schools

racially balanced by controlling and monitoring transfers. Jacob's request

to transfer to Rosemary Hills is one of them.

14

In the Ninth Circuit's subsequent opinion in Spangler v. Pasadena

Bd. of Educ., the court recognized the Supreme Court's emphasis on

the idea "that when a large percentage of minority students in a neigh-

borhood school results from housing patterns for which school

authorities are not responsible, the school board may not be charged

with unconstitutional discrimination if a racially neutral assignment

method is adopted." 611 F.2d 1239, 1244 (9th Cir. 1979). Thus, in the

situation before us, if racial isolation, meaning low or high percent-

ages of either racial minorities or non-minorities may be feared

because transfer requests are granted to students when the assigned

and requested schools are both stable and at appropriate utilization

levels, any found racial imbalance would not be a vestige of a prior

de jure system. If racial imbalance occurs in some of the Montgomery

County schools because students like Jacob, for example, are permit-

ted to transfer to magnet schools to get a better education, any racial

or ethnic imbalance is a product of "private choices [and] it does not

have constitutional implications." Freeman v. Pitts, 503 U.S. 467, 495

(1992).

In Freeman, racial disparities surfaced because of great growth in

the DeKalb area after 1986; from 70,000 to 450,000 and the attraction

of African-Americans to the area contributed to a racial imbalance

within the school district after the district had been declared unitary

in the student assignment area. 503 U.S. at 480. In this case, Mont-

gomery County has implemented magnet schools to attract students

of all racial/ethnic backgrounds to be a part of a different learning

environment. Predictably, students of all backgrounds are attracted to

the magnet school and, as a result, racial imbalance may then occur

in some other schools, if it occurs at all. A potential racial imbalance

does not, however, justify the transfer policy's use of race as a factor

to determine eligibility for transfers.22

The fact that the "County engages in periodic review ... [and the]

diversity profile for each school is reviewed and adjusted" each year

to avoid the facilitation and the creation of a racially isolated environ-

ment does not make the policy narrowly tailored. See Eisenberg, 19

_________________________________________________________________

22 Montgomery County is not required to grant transfers, but nonethe-

less, it may not refuse to grant such requests to achieve a racial makeup

in each school mirroring the county's racial makeup.

15

F. Supp. 2d at 455. Instead, it manifests Montgomery County's

attempt to regulate transfer spots to achieve the racial balance or

makeup that most closely reflects the percentage of the various races

in the county's public school population. Periodic review does not

make the transfer policy more narrow. Similarly, because a student

may be granted a transfer request because he can demonstrate a

unique personal hardship23 does not limit or narrow the transfer policy

so that racial balancing is suddenly a narrow fit to achieve diversity.

It is true that the racial/ethnic background is not the only factor in

transfer request considerations, however, in Jacob's situation, his race

was the only factor that led to the denial of his request. Montgomery

County admits that it denies transfer requests solely on the basis of

race, absent personal hardship, "where the consideration of the

racial/ethnic diversity factor is reached" and the transfer would con-

tribute to racial isolation. County Br. at 8.

In Tuttle, one of the reasons for holding that the admissions policy

in question in that case was invalid was that it "skew[ed] the odds of

selection in favor of certain minorities." No. 98-1604, slip op. at 15

(4th Cir. Sept. 24, 1999). The Montgomery County transfer policy

does not allow every applicant for a transfer to be eligible for every

available spot. Here Rosemary Hills was stable and was not overutil-

ized and Glen Haven was stable and overutilized, yet spots at Rose-

mary Hills were foreclosed to Jacob simply because Glen Haven's

percentage of white school population would decrease, which would

cause a greater departure from the countywide percentage for the

white student population. If Jacob had been African-American or

Asian or Hispanic, he would have been granted his transfer request

from Glen Haven to Rosemary Hills because his transfer would not

have caused a racial imbalance at Glen Haven. It does not matter that,

as the County argues, "at some schools, African-Americans are gener-

ally not allowed to transfer out" and that the"policy does not single

out whites, African-Americans, or other minorities," a denial of trans-

fer to African-Americans or other minorities on account of their race

is no less unconstitutional than the denial to Jacob was here. An

example makes clear the evil of the system in place. Suppose an

_________________________________________________________________

23 The personal hardship exemption, among other things, refers to

allowing a transfer to keep siblings in the same school and ease the bur-

den on families.

16

African-American and an Hispanic student at Travilah Elementary

School (J.A. 20) wanted to transfer to Rosemary Hills (J.A. 20) to

participate in the magnet program of math and science and get a better

education. Their diversity profile numbers being category 3, the same

as Jacob's, their transfers would likewise have been refused because

of their race. The fact that these two theoretical students would have

been unconstitutionally denied a transfer does not ameliorate the fact

that Jacob's denial was invalid. As Justice Scalia put it in his concur-

ring opinion in Adarand:

Individuals who have been wronged by such unlawful racial

discrimination should be made whole; but, under our Con-

stitution, there can be no such thing as either a creditor or

debtor race. That concept is alien to the Constitution's focus

upon the individual. . . .

515 U.S. at 239.

V.

To summarize, Montgomery County's transfer policy here in ques-

tion is engaging in racial balancing, which we have just held to be

unconstitutional in Tuttle. In Tuttle, No. 98-1604, slip op. at 13 (4th

Cir. Sept. 24, 1999), and Podberesky v. Kirwan, 38 F.3d 147, 160 (4th

Cir. 1994), we also held that racial balancing was not a narrowly tai-

lored remedy. Therefore, even if we went no further, the complained

of action on the part of Montgomery County would have to be invali-

dated because it was giving effect to an unconstitutional policy.

But that is not all. Added to the racial balancing is the fact that

Jacob's transfer request was refused because of his race. As we have

pointed out, such race based governmental actions are presumed to be

invalid and are subject to strict scrutiny. Nothing in this record over-

comes that presumption.

On remand the district court will forthwith enter its preliminary

injunction requiring the school authorities in Montgomery County to

admit Jacob to the Rosemary Hills Elementary School magnet pro-

gram to which he had applied. Following that, the district court will

17

enter its final injunction requiring the school authorities in Montgom-

ery County to reconsider the application of Jacob to transfer to the

Rosemary Hills Elementary School magnet program without consid-

eration of his race. Such consideration will re-examine that request

for admission "as of the date it was made." Podberesky II, 38 F.3d at

162.

We are justified in requiring the entry of an injunction finally dis-

posing of this case without an evidentiary hearing because the record

clearly establishes the plaintiff's right to an injunction and such a

hearing would not have altered the result. See Lone Star Steakhouse

& Saloon v. Alpha of Virginia, 43 F.3d 922, 938 (4th Cir. 1995). This

is so because no fact on which we have based our opinion is chal-

lenged and in this case we have the compound constitutional wrongs

of an invalid racially based transfer policy sustaining invalid racial

balancing.

Our decision is very narrow. We feel that we should point out what

is not decided. See Loving v. Alexander, 745 F.2d 861, 867 (4th Cir.

1984). We have not enjoined any aspect of the transfer policy of

Montgomery County except that it may not consider the race of the

applicant in granting or denying the transfer. We have not decided

that diversity, as the term is used here, either is or is not a compelling

governmental interest. The absence of any rigid academic qualifica-

tions for transfer and selection by lot if a surplus of applications, for

example, seem to open the opportunity to transfer to magnet schools

to all students in the system, without respect to their race or any other

qualification except their implicit desire to obtain a better education.

Desire is not race based. Nothing in this record would indicate that

the other aspects of the transfer policy--stability, utilization, enroll-

ment and personal hardship--are race based, and we do not disturb

them.

REVERSED AND REMANDED WITH INSTRUCTIONS

18