Belk v. Charlotte-Mecklenburg Board of Education

FILED: May 8, 2000

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TERRY BELK; DWAYNE COLLINS, on

behalf of themselves and the class

they represent,

Plaintiffs-Appellants,

WILLIAM CAPACCHIONE, Individually

and on behalf of Christina

Capacchione, a minor; MICHAEL P.

GRANT; RICHARD EASTERLING;

LAWRENCE GAUVREAU; KAREN

BENTLEY; CHARLES THOMPSON; SCOTT

C. WILLARD,

Plaintiffs-Appellees,

No. 99-2389(L)

v.

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg

School Board, in his official

capacity,

Defendants.

UNITED STATES OF AMERICA,

Amicus Curiae.

_________________________________________________________________

ORDER

Plaintiffs-appellees filed a petition for an initial hearing en banc. A

member of the court requested a poll on whether this case should be

heard initially en banc. A majority of the judges in active service

voted that it should not be heard initially en banc.

Chief Judge Wilkinson and Judges Widener, Murnaghan, Nie-

meyer, Michael, Motz, Traxler, and King voted to deny initial en banc

hearing. Judges Wilkins, Luttig, and Williams voted to grant initial en

banc hearing.

Chief Judge Wilkinson filed an opinion concurring in the denial of

an initial hearing en banc. Judge Luttig filed an opinion dissenting

from denial of hearing en banc.

The petition for initial hearing en banc is hereby denied. Entered

at the direction of Chief Judge Wilkinson for the court.

WILKINSON, Chief Judge, concurring in the denial of an initial hear-

ing en banc:

Before us is a preliminary procedural motion. I regret the need for

this debate, but I think it is important to respond briefly to my broth-

er's dissenting statement. The question is simply whether this case

should be heard initially by the Fourth Circuit en banc or by a three-

judge panel. I am pleased that the court has decided to handle this

case procedurally in the manner that we customarily handle our other

cases and refer it to a three-judge panel in the first instance. In voting

to pursue that course, I express a commitment to the orderly and cus-

tomary procedures of this court. I express no view whatsoever on the

merits of the underlying action.

The Fourth Circuit refers cases initially to three-judge panels for

good reason. Congress has decided that the basic unit for hearing an

appeal from the judgment of the district court is a panel of three. See

28 U.S.C. § 46 (1994 & Supp. III 1997) (authorizing three-judge pan-

els as the ordinary manner of proceeding for courts of appeals). Panel

decisions refine, narrow, and focus issues before the court. In the vast

majority of cases, panel decisions are the end of the matter. Panel

decisions hold out the prospect of finality and repose every bit as

much as en banc decisions do. Quite often the work of the panel ren-

ders an en banc decision unnecessary.

2

In cases too numerous to mention, we have rejected the request of

litigants for an initial hearing en banc. An en banc proceeding has

proven no guarantee of a brief or clean resolution of all the issues in

a case. Just as at the Supreme Court level, a court of nine or more (in

our case eleven) has the potential for producing splintered decisions.

That potential is magnified when there has been no prior panel con-

sideration of a case. Hearing the case for the first time en banc would

be like the Supreme Court bypassing the winnowing function of the

court of appeals, which it routinely refuses to do.

No one can say at this point whether or not en banc review will

occur. My dissenting brother urges that we bypass the three-judge

panel altogether because that panel previously ruled on a stay motion

in this case. In doing so, he states his opinion that the appellants and

the public are "entitled to the presumption that the [appellants] will

ultimately prevail" before the hearing panel. He also announces his

belief that "the panel, presumptively only but presumptively no less,

will invalidate" the district court's dissolution of the desegregation

decree and the district court's injunction. My dissenting colleague

thus seems to say that the three-judge panel's disposition is all but

foreordained and that we should remove the case from its hands

instanter.

With all respect for my fine colleague, I believe this would be an

inappropriate course of action. The stay order made only the briefest

and most fleeting reference to the merits. It is clear from the order that

the panel was predominantly concerned with the balance of hardships

involved in this case. The panel stated at the outset of its analysis that

"[i]rreparable harm to the party seeking the stay and harm to the

opponent of the stay are the most important factors" in deciding

whether to grant the stay motion. The panel stated that, having con-

cluded that the balance of hardships favored the appellants, the bur-

den of showing likelihood of success on the merits correspondingly

diminished and the appellants "need only show grave or serious ques-

tions for litigation." Without any elaboration of the merits, the panel

then concluded that this element had been met.

Regardless of one's view of the stay order, it does not afford a

basis for taking the decision out of the panel's hands. I am certain that

all of us would be reluctant to prejudge how any of our colleagues on

3

the court will adjudicate a case. We have long urged that the public

resist a predetermined view of the judicial function-- the notion that

certain judges invariably resolve certain cases in certain ways. If we

wish the public to resist this view of us, we must surely first resist this

view of ourselves.

The panel in this case has not had the benefit of briefing or oral

argument. The judges have not been able to discuss among them-

selves the insights that briefing and argument invariably provide.

They have not been able to craft an opinion and receive the benefit

of their colleagues' views upon the same. In short, the panel has not

been able to do any of the things that make judging a truly delibera-

tive act. I sincerely doubt that the panel knows at this point what the

outcome of its deliberations will be. But I am prepared to say that,

whatever the outcome, it will represent the conscientious and dedi-

cated efforts of three esteemed judges.

I am aware that it is desirable to resolve all litigation as promptly

as possible. School desegregation cases in particular exact a heavy

toll upon a community, as parents and students, teachers and adminis-

trators all desire a stable environment in which the primary business

of education can move forward. My brother Luttig makes the good

point that indeterminacy is in no one's best interest. Legal procedures

do, of course, provide for flexibility and expedition -- but not when

expedition would sacrifice the orderly course of judicial deliberation

and when the consequences of bypassing our customary procedures

are uncertain in their own right.

My dissenting colleague posits all sorts of hypothetical scenarios

concerning the subsequent timetable of events. These hypotheticals,

however, rest on a long chain of assumptions which may or may not

occur, and they fail to take account of the fact that our customary

route of proceeding may turn out to be the more efficient. None of us

really possesses the ability to look so far into the future when so many

independent factors, including the choices of the litigants themselves,

cannot be foretold. We should therefore not engage in so speculative

an endeavor at this stage.

Early on, when we were a smaller court, we resolved a number of

school desegregation cases initially en banc. However, this practice

4

has long since ceased. Since 1975, every school desegregation/pupil

assignment appeal in this circuit has been decided initially by a three-

judge panel. See Wheeler v. Durham County Bd. of Educ., 521 F.2d

1136 (4th Cir. 1975); Martin v. Charlotte-Mecklenburg Bd. of Educ.,

626 F.2d 1165 (4th Cir. 1980); Goldsboro City Bd. of Educ. v. Wayne

County Bd. of Educ., 745 F.2d 324 (4th Cir. 1984); Vaughns v. Board

of Educ., 758 F.2d 983 (4th Cir. 1985); Riddick v. School Bd., 784

F.2d 521 (4th Cir. 1986); School Bd. v. Baliles , 829 F.2d 1308 (4th

Cir. 1987); United States v. Charleston County Sch. Dist., 960 F.2d

1227 (4th Cir. 1992); Stone v. Prince George's County Bd. of Educ.,

977 F.2d 574 (4th Cir. 1992) (unpublished table decision); Tuttle v.

Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999) (per curiam);

Eisenberg v. Montgomery County Pub. Sch., 197 F.3d 123 (4th Cir.

1999). There is no reason to disturb this practice of referring these

cases to panels in the first instance.

This is a case that arouses keen interest. It is my belief that courts

should respond to that circumstance in a calm, orderly, and delibera-

tive fashion in accordance with the best traditions of the law. Judicial

orders warrant the utmost respect when they are perceived by the pub-

lic to have been reached in the most regular and careful manner. This

observance of process is, I think, fundamental to the rule of law, just

as a legally sound decision on the merits is. Indeed, the one abets the

other, and that argues for not attempting to resolve what is a sensitive

case in a procedurally atypical way. I therefore concur in the denial

of the petition for an initial en banc hearing.

LUTTIG, Circuit Judge, dissenting from denial of hearing en banc:

Typically, of course, a case is first heard by a panel of the court and

then is followed by en banc consideration if the court concludes that

such is justified. However, I would reluctantly grant the plaintiffs

appellees' motion for initial hearing en banc in this particular case,

not because of the importance of the case alone-- although that alone

would be sufficient -- but, rather, because of what I believe will be

the unintended effect of the combination of the unusual stay entered

by the panel; the protracted period of time that now will lapse before

the case can receive consideration by the full court; and the unavoid-

able implementation period that will follow upon any decision of the

full court. The likely effect of this combination of circumstances and

5

events will be, in my judgment, that the district court's decision will

remain without effect for the balance of this academic year, the entire

2000-2001 academic year, the entire 2001-2002 academic year, and

possibly even some portion, if not all, of the 2002-2003 academic

year. In a case of this magnitude, where the district court has held that

after thirty-five years of federal court supervision the jurisdiction's

school system is, and has been for over twenty years, unitary and fully

integrated, but where the massive bussing of school children contin-

ues and there remain classroom seats literally unfilled because of the

assignment of students on the basis of race authorized now by this

court, I believe that we have an obligation to act more expeditiously

to decide whether the district court's injunction was in error or not.

I come to the conclusion that we should hear this case en banc, not,

of course, for the reason that Judge Wilkinson ascribes to me in

hyperbole, see ante at 3 (stating that I"urge[ ] that we bypass the

three-judge panel altogether because that panel previously ruled on a

stay motion in this case"), but, rather, for the following reasons. The

district court's injunction to the Charlotte-Mecklenburg Board of

Education required nothing of the Board during the current academic

year; rather, appreciating the legitimate needs for avoidance of disrup-

tion and for implementation, the district court did not order compli-

ance until the 2000-2001 academic year -- that is, until this coming

September. Thus, given that the district court entered its order on Sep-

tember 9, 1999, the Board was provided approximately a full year to

implement the district court's order. And the school system testified,

through its superintendent, that full and timely compliance with the

district court's injunction was indeed possible. Although the plaintiffs

appellants moved the district court for a complete stay of its injunc-

tion, the Board requested only a partial stay of the district court's

order, agreeing to comply fully with the order insofar as it prohibited

the assignment of pupils to the jurisdiction's magnet schools on the

basis of race, and requesting only that it be given until 2001-2002 to

remove racial considerations from its system-wide assignment of stu-

dents. Indeed, the Board requested the extra year with respect to the

system-wide aspect of the district court's order because it plans to

open four new schools during 2001-2002, and thus could minimize

the total disruption by implementing the district court's order and

introducing its new schools in the same year.

6

Although the plaintiffs appellants moved in this court for a com-

plete stay of the district court's injunction, the Board requested of us

only the partial stay that it had requested of the district court. The

panel of our court, however, granted a complete stay of the district

court's injunction and indefinitely pending further order.

There are three aspects of the panel's stay decision that are signifi-

cant insofar as the present motion for initial en banc consideration is

concerned. First, the panel granted the stay in part on the reasoning

that nine months was an insufficient amount of time for the School

Board to implement what the panel described as the"mammoth

changes mandated by the [district court's] injunction." Stay Order at

4. Second, although the panel ordered expedited briefing and argu-

ment, it did not schedule argument until June -- some six months

from the date of its stay order. And third, the panel concluded that it

is likely that the School Board and the plaintiffs appellants will pre-

vail on the actual merits of their challenge to the district court's

injunction.*

_________________________________________________________________

*The panel's discussion of the merits of the challenge comprises three

sentences. Stay Order at 5. In the first sentence, which Judge Wilkinson

omits to quote, the panel recited that "[w]e next consider the likelihood

that CMS and the Swann plaintiffs will prevail on the merits." In the

third sentence, the panel states its conclusion that"CMS and the Swann

plaintiffs have met this element," a conclusion that it said it had reached

"[a]fter examination of the parties' memoranda and the relevant case

law." Id. Then in the conclusion to its entire opinion, the panel states

that, "[i]n sum, the balance of hardships, likelihood of success on appeal,

and the public interest favor staying the injunction." Id. at 6 (emphasis

added).

In the second sentence, the panel said that the party moving for the

stay "need only show grave or serious questions for litigation." Id. Even

assuming that the panel intended, by articulating the "likelihood of suc-

cess" test in this manner, to raise and answer a question different from

"likelihood of success on the merits" -- contrary to what it stated -- the

only reasonable way to understand this question is as requiring that the

plaintiffs raise a "grave" or "serious" question as to whether the district

court's injunction was in error. Thus, even if (despite its contrary state-

ments) the panel concluded only that such a grave question had been

raised, it necessarily reached a preliminary conclusion that the plaintiffs

likely will succeed on the merits.

7

Because the full court has today denied the plaintiffs appellees'

motion for en banc consideration, the appeal of the district court's

injunction will be argued, at the earliest, this coming June.

One can never predict with any confidence the amount of time that

will elapse between the argument of an appeal and the disposition of

that appeal by a panel of this court. However, the legal issues pre-

sented by this appeal are quite important and the factual record is

extensive, constituting, as it does, the culmination of a litigation that

spans some thirty-five years. Under these circumstances, it would not

be unreasonable at all to expect that a considered opinion by the panel

on the important questions raised could take as many as six months,

if not longer, especially given that the first three months of delibera-

tion time will arrive during the summer months when, with family

responsibilities, vacations, law clerk turnover, etc., the preparation of

opinions invariably proceeds at a more irregular pace than during the

non-summer months. And such an expectation presupposes that the

panel would be unanimous in its disposition. If there is a dissent, then,

obviously, several months more might reasonably be added to the

_________________________________________________________________

I am at a loss to understand why Judge Wilkinson would so strain to

suggest that the panel did not conclude, as it said it did, that the School

Board and the plaintiffs appellants are likely to succeed on the merits of

their challenge to the district court's injunction. He implies, for example,

that it is my personal opinion alone that the panel so concluded. See ante

at 3. And he characterizes the panel's stay order as making "only the

briefest and most fleeting reference" to its conclusion that a likelihood

of success on the merits had been proven, as if to suggest that the panel's

short, clearly-stated conclusion of law is not a conclusion of law at all

because it was clear and brief. Id. If Judge Wilkinson believes that the

panel did not conclude as it stated or that its conclusion is of no legal

import because of its brevity, notwithstanding the panel's statement that

it had reached its conclusion "[a]fter examination of the parties' memo-

randa and the relevant case law," then he should forthrightly so state, and

then explain his reasons for that conclusion. But not even he ultimately

denies that the panel did so conclude. And more importantly, not one

member of the panel that entered the stay (or one other member of the

court as a whole for that matter) writes to agree with Judge Wilkinson's

curiously extra-legal suggestion that the panel really did not mean what

it stated in its stay order.

8

opinion's preparation time, to which might be added even additional

time for the majority's response to the dissent and to any concerns

raised by non-panel members.

Thus, it would not be unreasonable to expect a final panel decision

in this case no sooner than approximately March or April of 2001, a

year from now. At that time, the case would be ripe for the full court's

consideration of a petition for rehearing en banc, should the losing

parties choose to avail themselves of the option under rule and statute

to seek en banc review of the panel decision.

Our panel, as noted, in staying the district court's injunction con-

cluded that the Board and the plaintiffs appellants are likely to suc-

ceed on the merits of their challenge to the district court's injunction.

A stay by this court is just that; it is not a final disposition of the

underlying merits of the dispute. And a panel is always free to come

to any conclusion it deems appropriate when the case is thereafter

finally briefed, argued, and deliberated upon. Nonetheless, where, as

here, the panel stays the district court's injunction in part specifically

on the ground that the movant is likely to prevail on the merits of the

dispute, not only the movant, but also the public, is entitled to the pre-

sumption that the movant will ultimately prevail in the case. Here,

that would mean that the panel, presumptively only but presumptively

no less, will invalidate the district court's dissolution of the thirty-

five-year-long injunction to which the Board has been subject and

invalidate that court's negative injunction that the Board is not hence-

forth to bus or base student assignments on racial considerations.

If, consistent with its preliminary conclusion on the motion for

stay, the panel does ultimately conclude that the long-standing injunc-

tion to the Board should continue and that the Board is free to con-

tinue to bus and assign its students on the basis of race, then

presumably the plaintiffs appellees will move this court for en banc

consideration, as they have already done at this stage of the appeal.

If they do so on the grounds inter alia that upholding the Board's

race-based assignment of students to magnet schools is inconsistent

with this court's recent decisions in Tuttle v. Arlington County, 195

F.3d 698 (4th Cir. 1999), and Eisenberg v. Montgomery County, 197

F.3d 123 (4th Cir. 1999), then the threshold criteria of our rules for

en banc review will be satisfied and full court consideration will be

9

authorized. Those criteria would likewise be satisfied if the panel ulti-

mately concludes, differently, that the district court's dissolution of

the long-standing decree and its negative injunction to the Board

should be sustained.

Regardless of the panel decision, one cannot possibly predict

whether this court would agree to hear the case en banc, any more

than one can predict the amount of time that might elapse between the

oral argument on appeal and the panel's final disposition. However,

under our rules, the losing party would have fourteen days in which

to seek rehearing en banc and the prevailing party ten days in which

to respond. Because the federal government is a participant in this

case, it might be permitted to file its brief even later, as we and all

courts customarily allow a longer response time for the federal gov-

ernment due to the vagaries of official authorization.

Should the court then decide to hear the case en banc following the

panel's decision some further not insignificant amount of time will

pass before the case is actually argued before the en banc court. For

example, typically there is a two- or three-month interim period

between the court's order of en banc consideration and the argument

itself before the full court. Thus, if the panel decision is released in

or about March or April of next year, and the court does decide to

hear the case en banc, it would be reasonable to assume that that en

banc argument would not occur until, at the soonest, June of 2001,

and, most likely September 2001, absent a special session of court.

Upon the grant of a motion to rehear a case en banc, the court

could, by rule, act upon the panel's stay of the district court's injunc-

tion. In other words, if the panel had left its stay in place, it would,

by rule, be possible for the court to lift the stay pending en banc con-

sideration of the case. However, I, for one, would not look favorably

upon a motion to lift a stay at that time. At that point, it will be con-

tended that preservation of the status quo counsels against any lifting

of the stay pending our own further review of the case. A carefully

considered panel decision is presumptively correct, and no other inter-

vening circumstance would exist to suggest that the stay should not

continue. Moreover, at that time, the beginning of the 2001-2002 aca-

demic year would be less than three months away, if not actually

underway. (It would be less than nine months away even if the panel

10

decision is released in December 2000, rather than in March or April,

2001, because this court would not be in a position to grant rehearing

en banc until January or February, 2001). Given that our panel has

determined that nine months is insufficient time within which for the

Board to prepare for an implementation of the district court's deci-

sion, it could fairly be argued that nothing would be served and much

would be disserved by lifting the stay with so little time before the

beginning of the new academic year. This argument would have all

the more force were the academic year in fact already underway, as

is possible.

In another case, it might fairly be assumed that the Board will be

proceeding throughout with the development of plans that would

bring the school system into compliance immediately in the event that

such is ultimately ordered by this court. However, given that the panel

of our court concluded that the Board and the plaintiffs appellants are

likely to prevail in the case, I think that this otherwise normal

assumption would be in error. In fact, I would think that the Board

would be subject to criticism were it to expend funds in the develop-

ment of contingency plans, even as only to the magnet school assign-

ments, given this court's order that the Board is likely to prevail in

its defense of the school system's existing plan for the bussing and

assignment of students.

Once the case was argued en banc, because there is no reason to

believe that the en banc court's opinions could be prepared in any

shorter time than the panel's opinions -- and in fact every reason to

believe that it might take longer given the statistically greater likeli-

hood of multiple writings -- it would not be unreasonable to expect

that a final en banc opinion would not be rendered before March or

June of 2002, the middle if not end of the 2001-2002 academic year.

Of course, even if the court affirmed the district court's dissolution

and negative injunction at that time and no further proceedings were

had, the district court's decision could not even possibly be imple-

mented until the 2002-2003 academic year was well underway. And

given the lead time necessary for implementation and our reluctance

to order implementation during a school year, it could well not be

ordered implemented until the 2003-2004 academic year. Of course,

the losing party could well choose to seek certiorari in the Supreme

11

Court of the United States, which would even further delay any

ordered implementation.

Therefore, because of the court's decision today to deny the plain-

tiffs appellees' request for initial hearing en banc, which I acknowl-

edge is the ordinary course (at least in most cases), it would not be

unreasonable at all to expect any implementation of the district

court's injunction to be delayed until, at the earliest, the 2002-2003

academic year and most likely the 2003-2004 academic year -- a full

three and one half years from today and almost four years from entry

of the stay of the district court's judgment by the panel of our court.

Even if the reasonable expectation is off a month or two here or there,

because of the panel's conclusion that nine months is insufficient to

implement the district court's injunction, then implementation would

still not be possible until 2003-2004. And implementation in any year

after 2001-2002 would not take account of the Board's concern that

students will face significant disruptions in multiple years.

I understand that ordinarily a case is first heard by a panel of the

court. But I doubt that anyone would argue that this is the ordinary

case, and this court certainly has not previously treated it as ordinary.

I believe that a case that calls the organization of an entire school sys-

tem into question is not the ordinary case. Unlike private corporations

or businesses that can be expected to implement our decisions and

orders with reasonable dispatch, school systems, as institutions of

local government, cannot be expected to respond instantly to our

orders. If the school system is to be run locally and not by this court,

then there must be time during which the community can participate

in the assignment plans of its more than 100,000 students, and time

during which the community can allocate the budgetary resources

necessary to finance the endeavor. School systems also face the

restraints of the academic year calendar, which further limit flexibility

in responding to court orders. This is why the panel was rightly con-

cerned about the timetable for implementation and that we will like-

wise be so concerned in the future about ordering significant changes

during the middle of a school year or even shortly before a school

year begins.

I have no opinion on even the preliminary question decided by the

panel of whether the plaintiffs appellants are likely to succeed on the

12

merits of their challenge, and I certainly have no opinion on the fun-

damental questions presented by the underlying appeal. It does seem

to me, however, that, because of the indisputably important issues

raised, this court is obliged to resolve them as quickly as practically

possible.

I respect Judge Wilkinson's profession of "commitment to the

orderly and customary procedures of this court," ante at 2. However,

I am as unconvinced by his impassioned plea for procedural regularity

now, as the public, and certainly these parties, will be. Our court has

with some frequency considered cases en banc initially, as contem-

plated and authorized by statute, see 28 U.S.C. § 46(c), and Federal

Rule of Appellate Procedure 35, and, to my knowledge, Judge Wil-

kinson has never previously expressed the view that he does today

that such is inappropriate. Indeed, as the parties themselves point out,

the five prior published opinions in Swann v. Charlotte-Mecklenburg

Board of Education have all been initially decided by our court en

banc. Thus, "observance of process" and"procedural regularity," see

ante at 5, if anything, in this case counsel in favor of en banc review,

and effectively operate to put the burden upon Judge Wilkinson to

explain why we depart from our prior practice in this litigation today.

Nor am I at all tempted to a different conclusion because of Judge

Wilkinson's mischievous insinuation that to vote for initial en banc

hearing in this case is to bare to public view a belief "that certain

judges invariably resolve certain cases in certain ways," ante at 4; see

also id. ("I am certain that all of us would be reluctant to prejudge

how any of our colleagues on the court will adjudicate a case."). A

vote to hear this case en banc no more (and no less) bespeaks this

belief than does a vote to deny hearing en banc . Neither vote is to say

anything about one's views of the results likely to be reached by the

panel members. But if one is to indulge in the mischievous inferences

that Judge Wilkinson does, then the public and the parties should con-

clude from Judge Wilkinson's opinion that he agrees with the panel

that the School Board and the plaintiff appellants are likely to succeed

on the merits of their challenge to the district court's judgment and

that he votes to deny the motion for en banc consideration because

he shares that view, not for any reason of procedural regularity.

However, as I say, Judge Wilkinson's insinuation is inapt in any

event, unless one believes that the public and the parties may not and

13

should not accept at face value the court's order. Here, three of our

colleagues concluded after a month and a half of careful deliberation

on this sensitive case, that the School Board and the plaintiffs appel-

lants are likely to succeed on the merits of their challenge, and they

committed this considered view to written opinion. Thus, this is not

at all the case that Judge Wilkinson needs for his insinuation. Here,

by virtue of the court's own carefully considered opinion, the public

and the parties are entitled as a matter of law to the presumption that

the panel will invalidate the district court's order-- and not because

of any illicit opinion about the individual panel members' politics, as

Judge Wilkinson implies, but because of the judicial conclusion they

have expressed in a written opinion for the court. And to deny this,

as Judge Wilkinson would do, is simply to deny to positive law all

meaning whatsoever.

I fully respect my colleagues' contrary judgment as to how to pro-

ceed procedurally to accomplish this needed expeditious consider-

ation. But, as I explain, in the peculiar circumstances with which we

are presented, where the panel has entered a stay considerably broader

than that requested by the relevant School Board, the panel has con-

cluded that the plaintiffs appellants are likely to prevail ultimately on

the merits, and the panel has determined that even nine full months

would be an insufficient amount of time for the Board to bring its

school system into compliance with the district court's order even

were that order to be sustained, the most responsible course is to have

this case heard en banc in the first instance. Were we to hear this case

in June, and en banc rather than by panel, I believe that a final deci-

sion of this court could be rendered to the parties and to the public

in sufficient time for the Charlotte-Mecklenburg School Board to

implement any ordered decision, whether that of the district court or

a different one of this court, prior to commencement of the 2001-2002

academic year. Even this amount of delay is regrettable, but I do not

see how it can be shortened consistent with our obligation to give the

matter our most careful consideration. It seems to me that the parties

and the community of Charlotte-Mecklenburg are entitled to this

small additional effort by the court.

14