Belk v. Charlotte-Mecklenburg Board of Education

Volume 1 of 4

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,

v.

 No. 99-2389

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg

School Board, in his official

capacity,

Defendants.

UNITED STATES OF AMERICA; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION; NATIONAL SCHOOL

BOARDS ASSOCIATION,

Amici Curiae.



2 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

WILLIAM CAPACCHIONE, Individually 

and on behalf of Christina

Capacchione, a minor; MICHAEL P.

GRANT; RICHARD EASTERLING;

LAWRENCE GAUVREAU; KAREN

BENTLEY; CHARLES THOMPSON; SCOTT

C. WILLARD,

Plaintiffs-Appellees,

and

TERRY BELK; DWAYNE COLLINS, on

behalf of themselves and the class

they represent,

Plaintiffs,

v.  No. 99-2391

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg

School Board, in his official

capacity,

Defendants-Appellants.

UNITED STATES OF AMERICA; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION; NATIONAL SCHOOL

BOARDS ASSOCIATION,

Amici Curiae.



BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 3

WILLIAM CAPACCHIONE, Individually 

and on behalf of Christina

Capacchione, a minor; MICHAEL P.

GRANT; RICHARD EASTERLING;

LAWRENCE GAUVREAU; KAREN

BENTLEY; CHARLES THOMPSON; SCOTT

C. WILLARD,

Plaintiffs-Appellees,

and

TERRY BELK; DWAYNE COLLINS, on

behalf of themselves and the class

they represent,

Plaintiffs,

v.  No. 00-1098

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg

School Board, in his official

capacity,

Defendants-Appellants.

UNITED STATES OF AMERICA; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION; NATIONAL SCHOOL

BOARDS ASSOCIATION,

Amici Curiae.



4 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

WILLIAM CAPACCHIONE, Individually 

and on behalf of Christina

Capacchione, a minor; MICHAEL P.

GRANT; RICHARD EASTERLING;

LAWRENCE GAUVREAU; KAREN BENTLEY;

CHARLES THOMPSON; SCOTT C.

WILLARD,

Plaintiffs-Appellees,

and

TERRY BELK; DWAYNE COLLINS, on

behalf of themselves and the class

they represent,

v.

Plaintiffs,

 No. 00-1432

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg School

Board, in his official capacity,

Defendants-Appellants.

UNITED STATES OF AMERICA; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION; NATIONAL SCHOOL

BOARDS ASSOCIATION,

Amici Curiae. 

Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

(CA-97-482-3-P, CA-65-1974-3-P)

Argued: February 27, 2001

Decided: September 21, 2001

Before WILKINSON, Chief Judge, and WIDENER, WILKINS,

NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,

TRAXLER, KING, and GREGORY, Circuit Judges.

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 5

Affirmed in part and reversed in part by published opinions. A per

curiam opinion announced the judgment of the court. Judge Traxler

delivered the opinion of the court with respect to Parts I, II, IV, and

V, in which Chief Judge Wilkinson and Judges Widener, Wilkins,

Niemeyer, and Williams joined, and an opinion with respect to Parts

III and VI, in which Judges Wilkins and Williams joined. Chief Judge

Wilkinson wrote an opinion concurring in part in which Judge Nie-

meyer joined. Judge Widener wrote an opinion concurring in part and

dissenting in part. Judge Luttig wrote an opinion concurring in the

judgment in part and dissenting from the judgment in part. Judges

Motz and King wrote a separate opinion in which Judges Michael and

Gregory joined.

COUNSEL

ARGUED: Stephen Luke Largess, James Elliot Ferguson, II, FER-

GUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUMTER,

P.A., Charlotte, North Carolina; John W. Borkowski, HOGAN &

HARTSON, L.L.P., Washington, D.C., for Appellants. Allan Lee

Parks, PARKS, CHESIN & MILLER, P.C., Atlanta, Georgia, for

Appellees. ON BRIEF: John W. Gresham, C. Margaret Errington,

FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUM-

TER, P.A., Charlotte, North Carolina; Elaine R. Jones, Director-

Counsel, Norman J. Chachkin, Gloria J. Browne, NAACP LEGAL

DEFENSE & EDUCATIONAL FUND, INC., New York, New York;

Allen R. Snyder, Maree Sneed, HOGAN & HARTSON, L.L.P.,

Washington, D.C.; James G. Middlebrooks, Irving M. Brenner, Amy

Rickner Langdon, SMITH, HELMS, MULLISS & MOORE, L.L.P.,

Charlotte, North Carolina; Leslie Winner, General Counsel,

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, Char-

lotte, North Carolina, for Appellants. Kevin V. Parsons, PARKS,

CHESIN & MILLER, P.C., Atlanta, Georgia; John O. Pollard,

MCGUIRE, WOODS, BATTLE & BOOTHE, Charlotte, North Caro-

lina; William S. Helfand, MAGENHEIM, BATEMAN, ROBINSON,

WROTENBERY & HELFAND, Houston, Texas; Thomas J. Ash-

craft, Charlotte, North Carolina, for Appellees. Bill Lann Lee, Acting

Assistant Attorney General, Mark L. Gross, Rebecca K. Troth,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

6 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

D.C., for Amicus Curiae United States. Michael Crowell, Lisa Luka-

sik, THARRINGTON SMITH, L.L.P., Raleigh, North Carolina; Alli-

son B. Schafer, General Counsel, NORTH CAROLINA SCHOOL

BOARDS ASSOCIATION, Raleigh, North Carolina; Julie K. Under-

wood, General Counsel, NATIONAL SCHOOL BOARDS ASSOCI-

ATION, Alexandria, Virginia, for Amici Curiae Associations.

OPINION

PER CURIAM:

This case was argued before the en banc Court on February 27,

2001. The parties presented a number of issues for our consideration,

including whether the district court erred in (l) finding that unitary

status had been achieved and awarding attorneys’ fees to plaintiff-

intervenors based on this finding; (2) holding that the establishment

of a magnet schools program was an ultra vires, unconstitutional act

justifying an award of nominal damages and attorneys’ fees; (3)

enjoining the Charlotte-Mecklenburg School Board from considering

race in the future assignment of students or allocation of educational

resources; and (4) sanctioning the Board for failing to comply with

the district court’s discovery order.

Having considered the briefs and arguments of the parties, a major-

ity of the Court holds: (1) by a 7-4 vote (Chief Judge Wilkinson and

Judges Widener, Wilkins, Niemeyer, Luttig, Williams and Traxler in

the affirmative), the school system has achieved unitary status, but by

a 6-5 vote (Chief Judge Wilkinson and Judges Niemeyer, Michael,

Motz, King and Gregory in the affirmative) attorneys’ fees for work

done on the unitary status issue are denied; (2) by a 6-5 vote (Chief

Judge Wilkinson and Judges Niemeyer, Michael, Motz, King, and

Gregory in the affirmative), the Board did not forfeit its immunity for

the establishment of the magnet schools program, and nominal dam-

ages and attorneys’ fees in that regard are denied; (3) by a unanimous

vote, the injunction is vacated; and (4) by a unanimous vote, the

imposition of sanctions is affirmed.

The judgment of the district court is therefore affirmed on the find-

ing of unitary status and the imposition of sanctions, reversed as to

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 7

the finding of liability for nominal damages for the establishment of

the magnet schools program, reversed as to the imposition of attor-

neys’ fees for any reason, and reversed on the issuance of the injunc-

tion.

Unitary status having been achieved, the judgment of the district

court vacating and dissolving all prior injunctive orders and decrees

is affirmed. The Board is to operate the school system without the

strictures of these decrees no later than the 2002-2003 school year.

AFFIRMED IN PART AND REVERSED IN PART

TRAXLER, Circuit Judge:

This case is hopefully the final chapter in the saga of federal court

control over the Charlotte-Mecklenburg Schools ("CMS"). Since

1971 CMS has operated under a federally supervised desegregation

plan that included limited use of racial ratios, pairing and grouping of

school zones, and extensive busing. So successful was the plan that

the district court removed the case from the active docket in 1975,

expressing its belief that the once reluctant school board was commit-

ted to achieving desegregation and was already well on the way

toward a unitary school system. Since then, two generations of stu-

dents have passed through CMS and, until the present case, not one

person has returned to court alleging that segregative practices have

been continued or revived.

Now, nearly three decades later and prompted by a lawsuit filed by

a white student challenging the magnet schools admissions policy, the

question of whether CMS has achieved unitary status has been placed

before our courts. In 1999, the district court, after a lengthy hearing

and searching inquiry, concluded that CMS had indeed achieved uni-

tary status by eliminating the vestiges of past discrimination to the

extent practicable. This conclusion was not reached in haste; it was

the result of a two-month hearing and an examination of extensive

testimony and evidence relating to every aspect of CMS’s educational

system.

A majority of this court now affirms the district court’s holding on

this issue, satisfied that CMS has dismantled the dual school system.

8 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

In sharp contrast to the situation in the late 1960s, when black stu-

dents were segregated in black schools and taught by a predominantly

black staff, CMS students today are educated in an integrated envi-

ronment by an integrated faculty. Nor do we turn over control to an

indecisive and uncommitted school board. CMS currently operates

under the firm guidance of an integrated school board which has

clearly demonstrated its commitment to a desegregated school sys-

tem.

In sum, the "end purpose" of federal intervention to remedy segre-

gation has been served, and it is time to complete the task with which

we were charged—to show confidence in those who have achieved

this success and to restore to state and local authorities the control of

their school system. Consequently, a majority of this court affirms the

district court’s unitary status determination.

However, while a majority of my colleagues agree that CMS has

achieved unitary status, and have graciously joined me on this point,

I respectfully depart from a separate majority’s decision to reverse the

district court’s holding that CMS’s magnet schools program, which

was implemented in 1992, was an ultra vires, unconstitutional act jus-

tifying an award of nominal damages and attorney fees. By denying

children, on account of their race, an equal opportunity to compete for

open, unclaimed slots in CMS’s extraordinary magnet program, I

believe the school board pushed too far and did more than either was

required or permitted. Just as the educational process of the 1960s

unconstitutionally deprived black children of educational opportuni-

ties solely on account of their race, the magnet schools admissions

policy deprives white children of educational opportunities solely on

account of their race. Consequently, I depart from the separate major-

ity in that I would affirm the district court’s conclusion that the mag-

net schools program violated the Equal Protection Clause of the

Fourteenth Amendment and the liability of the school board for the

violation.

I.

In 1896, the Supreme Court upheld a Louisiana statute "providing

for separate railway carriages for the white and colored races." Plessy

v. Ferguson, 163 U.S. 537, 540 (1896). The Plessy majority charac-

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 9

terized the statute as "not necessarily imply[ing] the inferiority of

either race," id. at 544, but the first Justice Harlan, in dissent, aptly

described the true aim of the law: "Everyone knows that the statute

in question had its origin in the purpose, not so much to exclude white

persons from railroad cars occupied by blacks, as to exclude colored

people from coaches occupied by or assigned to white persons," id.

at 557 (Harlan, J., dissenting). Justice Harlan further "den[ied] that

any legislative body or judicial tribunal may have regard to the race

of citizens when the civil rights of those citizens are involved." Id. at

554-55 (Harlan, J., dissenting). Unfortunately, the principle of "sepa-

rate but equal" reached much farther than Louisiana railways, and was

applied to other public services, including education. The march of

progress eventually proved the correctness of Justice Harlan’s princi-

pled stand. Segregation, in all of its manifestations, was "arbitrary"

and "wholly inconsistent with the civil freedom and the equality

before the law established by the Constitution." Id. at 561-62 (Harlan,

J., dissenting).

Early efforts aimed at combating the injustice wrought by Plessy

in educational settings often centered on state-funded graduate and

professional schools. See, e.g., Missouri ex rel. Gaines v. Canada,

305 U.S. 337 (1938); see generally Mark V. Tushnet, The NAACP’s

Legal Strategy Against Segregated Education 1925-1950 (1987). In

Gaines, an African-American student was denied admission to the

University of Missouri School of Law on account of his race. Mis-

souri had no "separate but equal" law school for its African-American

citizens and instead offered to pay Gaines’ tuition and expenses for

a legal education in another state. The Supreme Court held that Mis-

souri’s offer denied Gaines equal protection of the laws. The Court

observed that "[t]he admissibility of laws separating the races in the

enjoyment of privileges afforded by the State rests wholly upon the

equality of the privileges which the laws give to the separated groups

within the State." Gaines, 305 U.S. at 349. Though providing only

small victories, cases like Gaines exposed "separate but equal" for the

untenable proposition that it was.

In 1954, the Supreme Court recognized the futility of measuring

equality in segregated facilities. See Brown v. Board of Educ., 347

U.S. 483 (1954) (Brown I). Presented with a direct attack on Plessy

in a secondary education case, the Court held that "segregation of

10 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

children in public schools solely on the basis of race" violated the

Equal Protection Clause of the Fourteenth Amendment. Id. at 493.

The Court emphasized that an educational "opportunity, where a state

has undertaken to provide it, is a right which must be made available

to all on equal terms." Id. Recognizing that segregation differed from

locality to locality, the Supreme Court subsequently declined to craft

a broad, one-size-fits-all remedy, and instead instructed the federal

district courts to oversee the implementation of appropriate relief

based on the dictates of local circumstances. See Brown v. Board of

Educ., 349 U.S. 294, 299 (1955) (Brown II) ("Because of their prox-

imity to local conditions and the possible need for further hearings,

the courts which originally heard these cases can best perform th[e]

judicial appraisal."). The district courts were directed to make use of

the "traditional attributes of equity power," id. at 300, to ensure that

students were "admit[ted] to public schools on a racially nondiscrimi-

natory basis," id. at 301. However, under the Brown opinions it was

unclear whether a school district was required to take affirmative

steps to remedy the constitutional violation, see, e.g., Briggs v. Elliott,

132 F. Supp. 776, 777 (E.D.S.C. 1955) (holding that Brown merely

prohibited school districts from using the force of law to separate the

races), and very little progress resulted.

Before the Supreme Court provided further guidance to the lower

federal courts, in 1965 the Swann plaintiffs, who were the original

class action plaintiffs representing the interests of African-American

children in the district, challenged as constitutionally inadequate the

efforts of CMS in complying with Brown. The school district’s deseg-

regation plan was based on freedom of choice whereby "any child,

without regard to race, and without regard to minority or majority of

race in any particular school, might freely transfer to another school

of his choice." Swann v. Charlotte-Mecklenburg Bd. of Educ., 243 F.

Supp. 667, 668 (W.D.N.C. 1965). The district court approved the

plan, observing that more could be done "to increase mixing of the

races," but that the law imposed "no such duty upon . . . the School

Board." Id. at 670.

Concerned at the slow pace of school desegregation throughout the

nation, the Supreme Court held in 1968 that school boards had an "af-

firmative duty" to end the state-imposed dual system of education.

Green v. County Sch. Bd., 391 U.S. 430, 437 (1968). The Justices

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 11

underscored that "in desegregating a dual system a plan utilizing

‘freedom of choice’ is not an end in itself." Id. at 440. The Swann

plaintiffs then filed in the district court a motion for further relief

"seek[ing] greater speed in desegregation of the Charlotte-

Mecklenburg schools, and request[ing] elimination of certain other

alleged racial inequalities." Swann v. Charlotte-Mecklenburg Bd. of

Educ., 300 F. Supp. 1358, 1360 (W.D.N.C. 1969). The district court,

guided by the mandate of Green, see Swann, 300 F. Supp. at 1362,

made a number of factual findings and concluded that the school dis-

trict remained highly segregated.

The district court noted that over half of CMS’s 24,000 African-

American students "attend schools that are all black, or very nearly

all black, and most of the 24,000 have no white teachers." Id. at 1360.

However, the court found no violations "in the use of federal funds;

the use of mobile classrooms; quality of school buildings and facili-

ties; athletics; PTA activities; school fees; free lunches; books; elec-

tive courses; nor in individual evaluation of students." Id. at 1372.

The district court directed CMS to submit "a positive plan for fac-

ulty desegregation effective in the fall of 1969, and a plan for effec-

tive desegregation of pupil population, to be predominantly effective

in the fall of 1969 and to be completed by the fall of 1970." Id. at

1360. The board procrastinated, but eventually submitted an ener-

vated desegregation plan that the district court approved "with great

reluctance" on a temporary basis. Swann v. Charlotte-Mecklenburg

Bd. of Educ., 306 F. Supp. 1291, 1298 (W.D.N.C. 1969). CMS offi-

cials, however, continued to drag their feet, and the district court was

forced to appoint its own expert, Dr. John A. Finger, to craft an effi-

cacious desegregation plan. See Swann v. Charlotte-Mecklenburg Bd.

of Educ., 311 F. Supp. 265 (W.D.N.C. 1970). Dr. Finger’s plan,

adopted by the district court, included limited use of mathematical

ratios, pairing and grouping of school zones, and busing. See id. We

affirmed a portion of the plan, but vacated provisions dealing with the

busing of elementary school students because of the perceived bur-

dens on small children and the cost of purchasing new buses. See

Swann v. Charlotte Mecklenburg Bd. of Educ., 431 F.2d 138, 147

(4th. Cir. 1970) (en banc). We remanded "for reconsideration of the

assignment of pupils in the elementary schools." Id. The Supreme

Court granted certiorari and reinstated the district court’s plan pend-

ing further proceedings. See Swann v. Charlotte-Mecklenburg Bd. of

12 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

Educ., 399 U.S. 926 (1970). The district court conducted eight days

of hearings and examined five different desegregation plans. The dis-

trict court concluded the Finger plan to be the best of the five, encom-

passing "a reasonable . . . collection of methods for solving the

problem" of the dual system. Swann v. Charlotte-Mecklenburg Bd. of

Educ., 318 F. Supp. 786, 800 (W.D.N.C. 1970). As for busing and the

cost of new buses, the district court found that the Finger plan took

"proper advantage of traffic movement" and that new buses would

cost only $660,000, a far cry from the millions of dollars that CMS

had originally estimated. See id. at 797-98. Two months later, the

Supreme Court granted certiorari and undertook an in-depth review

of the power of the federal district courts to craft such sweeping

desegregation remedies. See Swann v. Charlotte-Mecklenburg Bd. of

Educ., 402 U.S. 1 (1971).

The Supreme Court affirmed the desegregation plan adopted by the

district court, and in the course of its opinion identified and offered

guidance in "four problem areas." Id. at 22. First, the Court addressed

the issue of the district court’s use of racial ratios. While the Supreme

Court approved of a limited use of mathematical ratios in a plan

crafted by a district court, it emphasized that such ratios were "a start-

ing point . . . rather than an inflexible requirement." Id. at 25. The

Court reminded district courts that "[t]he constitutional command to

desegregate schools does not mean that every school in every commu-

nity must always reflect the racial composition of the school system

as a whole." Id. at 24. Second, the Court dealt with single-race

schools. Though the Court concluded that schools consisting of pre-

dominantly one race were not per se unconstitutional, the Court

instructed the district courts to utilize "close scrutiny to determine that

school assignments are not part of state-enforced segregation." Id. at

26. Third, the Court considered alterations of attendance zones. The

Court held "that the pairing and grouping of noncontiguous school

zones is a permissible tool," id. at 28, but declined to craft "rigid

rules" in light of differing local circumstances, id. at 29. Finally, the

Court tackled the busing issue. The Court confirmed that a district

court could order "bus transportation as one tool of school desegrega-

tion," but within reasonable time and distance restrictions. Id. at 30.

Shortly after the Supreme Court issued its landmark Swann opin-

ion, CMS asked the district court to abandon the Finger plan and per-

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 13

mit the substitution of a "feeder plan" whereby schools would draw

pupils from designated attendance areas in an effort to keep children

together for their entire public school career. See Swann v. Charlotte-

Mecklenburg Bd. of Educ., 328 F. Supp. 1346 (W.D.N.C. 1971). Cit-

ing concerns of resegregation and the placement of additional burdens

on African-American children, the district court questioned the feeder

plan. See id. at 1350-53. CMS then withdrew its original feeder plan

and began work on a modified version. See id. at 1353. The district

court eventually approved a revised feeder plan that reopened several

former black schools and prevented over- and under-utilization of

facilities. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 334 F.

Supp. 623 (W.D.N.C. 1971).

However, within just two years it became clear that CMS’s revised

feeder plan was inadequate "for dealing with foreseeable problems"

in the dismantling of the dual system. Swann v. Charlotte-

Mecklenburg Bd. of Educ., 362 F. Supp. 1223, 1229 (W.D.N.C.

1973). The district court found "that various formerly black schools

and other schools will turn black under the feeder plan," id., and that

"[r]acial discrimination through official action has not ended in this

school system," id. at 1230. The district court again instructed CMS

to design a new pupil assignment plan "on the premise that equal pro-

tection of laws is here to stay." Id. at 1238.

In 1974 CMS adopted and the district court approved new guide-

lines and policies for pupil assignment. See Swann v. Charlotte-

Mecklenburg Bd. of Educ., 379 F. Supp. 1102 (W.D.N.C. 1974). The

plan was designed by a citizens advisory group working with the

board in an effort to reach "an acceptable consensus" on school deseg-

regation in CMS. Id. at 1103. The plan’s most promising features

were the avoidance of any majority black schools (with the exception

of Hidden Valley, an exempted school), and a more equal distribution

of the busing burden. See id. at 1105 1110. Praising the board for

making "a clean break with the essentially ‘reluctant’ attitude which

dominated Board actions for many years," the district court predicted

that the policies and positive attitude would eventually result in a uni-

tary school system. Id. at 1103.

The district court closed Swann in 1975 and removed the case from

the active docket. See Swann v. Charlotte-Mecklenburg Bd. of Educ.,

14 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

67 F.R.D. 648 (W.D.N.C. 1975). In so doing, the district court

observed that the board was "actively and intelligently addressing"

recurrent problems related to dismantlement of the dual system. Id. at

649. The district court was so satisfied with the progress being made

that it questioned whether it would ever be confronted with a motion

to reopen the litigation. See id.

For three years there was no action in the case. This changed in

1978 when a group of white parents sought to enjoin CMS from reas-

signing over 4000 students in an effort to maintain racial balance in

certain schools. See Martin v. Charlotte-Mecklenburg Bd. of Educ.,

475 F. Supp. 1318 (W.D.N.C. 1979). The parents attacking the 1978

student assignment plan "offered no live evidence but offered and

relied upon a few written exhibits and admissions from the plead-

ings." Id. at 1321. Not surprisingly, the district court rejected the par-

ents’ challenge to the student assignment plan and praised CMS for

its zeal in dismantling the dual system.

In 1980, CMS and the Swann plaintiffs again returned to the dis-

trict court. The parties informed the district court that the African-

American student population in CMS’s elementary schools had grown

from twenty-nine percent to forty percent, making it difficult to avoid

predominantly black student bodies. To provide the board with some

flexibility, the district court permitted operation of elementary schools

with African-American student bodies of plus fifteen percent above

the district-wide average. See Swann v. Charlotte-Mecklenburg Bd. of

Educ., No. 1974 (W.D.N.C. Apr. 17, 1980).

Since 1980, neither the board nor the Swann plaintiffs have

approached the district court regarding alteration of the earlier deseg-

regation orders. And, until the present litigation, the Swann plaintiffs

have never attempted to reopen the case in order to address any

alleged failure by the board to comply with the district court’s deseg-

regation orders.

The controversy before us today arose in September 1997 when

William Capacchione ("Capacchione") filed suit against CMS on

behalf of his daughter, Cristina, alleging that she had been unconstitu-

tionally denied admission to a magnet school program on account of

her race. In 1992, without prior court approval, CMS had adopted a

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 15

desegregation plan focused mainly on the use of magnet schools. In

filling magnet schools, CMS had instituted a black and a non-black

lottery to achieve racial balance. If a sufficient number of blacks or

whites did not apply and fill the seats allotted to their respective races,

then CMS would actively recruit children of the desired race despite

lengthy waiting lists made up of children of the other race. If the

recruitment drive failed, CMS usually left the available slots vacant.

Cristina, who is white, was placed on a waiting list and eventually

denied admission to a program at the Olde Providence magnet school,

which CMS marketed as "a school to benefit everyone." J.A. XXXII-

15,670.

The original Swann plaintiffs moved to reactivate Swann and to

consolidate it with Capacchione’s suit. They asserted that the vestiges

of the dual school system had not been abolished and that the use of

race in the magnet admissions policy was necessary for the school

district to comply with the prior desegregation orders. The district

court granted the motion and later permitted Capacchione to intervene

in the Swann litigation. Seeking a finding that CMS had eradicated

the vestiges of past discrimination, another group of parents, led by

Michael P. Grant ("Grant"),1 was also permitted to intervene in the lit-

igation.

After a two-month bench trial, the district court determined that

CMS had achieved unitary status, that the race-based admissions pol-

icy for CMS’s magnet schools fell outside prior orders and was not

narrowly tailored to achieve a compelling state interest, and that an

injunction was warranted. The district court "enjoin[ed] CMS from

any further use of race-based lotteries, preferences, and set-asides in

student assignment." Capacchione v. Charlotte-Mecklenburg Sch., 57

F. Supp. 2d 228, 292 (W.D.N.C. 1999). Citing interests in stability,

the district court concluded that the injunction would not affect stu-

dent assignments for the 1999-2000 school year, but would apply to

student assignments for the 2000-2001 school year. See id. at 292

n.52. The district court awarded Capacchione nominal damages in

recognition of the constitutional violation and also awarded the

plaintiff-intervenors attorney fees. CMS and the Swann plaintiffs filed

1

Those represented by Capacchione and Grant will be referred to as the

"plaintiff-intervenors."

16 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

notices of appeal, and CMS moved to stay the injunction, except as

applied to the magnet schools, until the 2001-02 school year. The

Swann plaintiffs moved for a complete stay pending appeal. On

November 15, 1999, the district court denied the motions. CMS and

the Swann plaintiffs, pursuant to Federal Rule of Appellate Procedure

8(a)(2), moved this court for a stay. On December 30, 1999, we

stayed the district court’s injunction pending further order of this

court.

After briefing and appellate arguments, a divided panel of this

court vacated and remanded the district court’s unitary status determi-

nation, holding that the district court’s findings were insufficient in

the areas of student assignment, facilities and resources, transporta-

tion, and student achievement. As for CMS’s magnet schools admis-

sions policy, the panel held that the policy was specifically permitted

by prior court orders and that the policy did not violate the Constitu-

tion. The panel also vacated the district court’s injunction, the award

of nominal damages, and the award of attorney fees. See Belk v.

Charlotte-Mecklenburg Bd. of Educ., 233 F.3d 232 (4th Cir. 2000).

A majority of the active circuit judges thereafter voted to hear this

appeal en banc.

II. Unitary Status

The district court’s unitary status finding is reviewed for clear

error. See Riddick v. School Bd., 784 F.2d 521, 533 (4th Cir. 1986);

Fed. R. Civ. P. 52(a). "A finding is clearly erroneous when, although

there is evidence to support it, on the entire evidence the reviewing

court is left with the definite and firm conviction that a mistake has

been committed." Faulconer v. Commissioner, 748 F.2d 890, 895 (4th

Cir. 1984). In clarifying the clearly erroneous standard, the Supreme

Court has explained:

If the district court’s account of the evidence is plausible in

light of the record viewed in its entirety, the court of appeals

may not reverse it even though convinced that had it been

sitting as the trier of fact, it would have weighed the evi-

dence differently. Where there are two permissible views of

the evidence, the factfinder’s choice between them cannot

be clearly erroneous.

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 17

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985). The

Supreme Court also stressed that even when appellate review is based

primarily on documentary evidence, the clearly erroneous standard of

review remains the same. See id. at 574. So long as the district court’s

unitary status determination rests on a permissible view of the evi-

dence, it must be affirmed.

The Supreme Court has declined to define or provide a "fixed

meaning" for the term "unitary." Freeman v. Pitts, 503 U.S. 467, 487

(1992). However, in light of the aim of Brown I, which was "the elim-

ination of state-mandated or deliberately maintained dual school sys-

tems," Milliken v. Bradley, 418 U.S. 717, 737 (1974) (Milliken I), a

school system must be declared unitary when it no longer discrimi-

nates between children on the basis of race, see Green, 391 U.S. at

442. The burden of proof falls on the party seeking an end to court

supervision. See Freeman, 503 U.S. at 494.

In undertaking a unitary status inquiry, a court must ask "whether

the Board ha[s] complied in good faith with the desegregation decree

since it was entered, and whether the vestiges of past discrimination

ha[ve] been eliminated to the extent practicable." Board of Educ. v.

Dowell, 498 U.S. 237, 249-50 (1991). Implicit in the Supreme Court’s

use of the term "practicable" is "a reasonable limit on the duration of

. . . federal supervision." Coalition to Save Our Children v. State Bd.

of Educ., 90 F.3d 752, 760 (3d Cir. 1996); see also Dowell, 498 U.S.

at 247 ("From the very first, federal supervision of local school sys-

tems was intended as a temporary measure to remedy past discrimina-

tion."). Hence, the goals of a desegregation order not only encompass

a remedy for the violation, but also prompt restoration of local con-

trol. See Freeman, 503 U.S. at 490 ("Returning schools to the control

of local authorities at the earliest practicable date is essential to

restore their true accountability in our governmental system. . . .

Where control lies, so too does responsibility."); Milliken I, 418 U.S.

at 741-42 ("No single tradition in public education is more deeply

rooted than local control over the operation of schools; local auton-

omy has long been thought essential both to the maintenance of com-

munity concern and support for public schools and to quality of the

educational process.").

Among the most important reference points in determining whether

a school board has fulfilled its duties so that local control may be

18 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

resumed are the factors set out in Green: student assignment, faculty

assignment, facilities and resources, transportation, staff assignment,

and extracurricular activities. See Green, 391 U.S. at 435. In its dis-

cretion, a court conducting a unitary status hearing may consider

other relevant factors not mentioned in Green. See Freeman, 503 U.S.

at 492. We address the district court’s consideration of each factor in

turn, but only to determine whether "the district court’s account of the

evidence is plausible in light of the record viewed in its entirety."

Anderson, 470 U.S. at 573-74.

A. Student Assignment

Student assignment is perhaps the most critical Green factor

because state-mandated separation of pupils on the basis of race is the

essence of the dual system. See Freeman, 503 U.S. at 474 (observing

that the issue of student assignment is "fundamental" because "under

the former de jure regimes racial exclusion was both the means and

the end of a policy motivated by disparagement of . . . the disfavored

race"). To determine whether a school was racially balanced or imbal-

anced, the district court adopted a plus/minus fifteen percent variance

from the district-wide ratio of black to white students. See Capacch-

ione, 57 F. Supp. 2d at 246. However, the district court emphasized

"that there is no level of compliance with the standard that is determi-

native." Id. When schools are outside the variance, a "reasonable and

supportable explanation[ ]" will suffice. Id.

The district court did not err in adopting a plus/minus fifteen per-

cent variance. Considering that the only variance ever approved by

the district court in the course of the Swann litigation was a "‘plus

15%’ from the district-wide average," id. at 245, the addition of a

minus fifteen percent is reasonable. Moreover, the Supreme Court has

permitted a "limited use . . . of mathematical ratios" by district courts,

Swann, 402 U.S. at 25, and much higher variances have been used to

define desegregation, see Manning v. Hillsborough County Sch. Bd.,

244 F.3d 927, 935 (11th Cir. 2001) (using a plus/minus twenty per-

cent variance); see generally, David J. Armor, Forced Justice: School

Desegregation and the Law 160 (1995) (observing that in over sev-

enty percent of the school districts with desegregation plans where

racial balance is measured by numerical standards, a variance of

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 19

2

plus/minus fifteen percent or greater is used). In sum, the plus/minus

fifteen percent variance is clearly within accepted standards, and pro-

vides a reasonable starting point in the unitary status determination.

1. CMS’s Compliance Record

The district court began by observing that since 1970, of the 126

schools in operation, "only twenty schools (16%) have had black stu-

dent bodies higher than 15% above the district-wide ratio for more

than three years, and only seventeen schools (13%) have had black

student bodies lower than 15% below the district-wide ratio for more

than three years." Capacchione, 57 F. Supp. 2d at 248 (footnote omit-

ted). In addition, the district court found that CMS has not operated

a single-race school since 1970. See id.

The district court also turned to two desegregation indices: the dis-

similarity index and the index of interracial exposure. The former

"measures the degree of racial imbalance, and it is derived by com-

paring the racial composition of each school to the districtwide com-

position," J.A. XXXIII-16,172, and the latter measures "the average

percent white in schools attended by black students, weighted by the

proportion of black students in each school." J.A. XXXIII-16,172.

According to the report of the plaintiff-intervenors’ expert witness,

Dr. David J. Armor, a dissimilarity value of twenty or below signifies

2

At trial, Dr. Eric Smith, the current superintendent of CMS, testified

that unitary status depended on every school being in balance. See J.A.

XV-7187 & 7239. This is not the law. See Swann, 402 U.S. at 24 ("The

constitutional command to desegregate schools does not mean that every

school in every community must always reflect the racial composition of

the school system as a whole.").

We find equally erroneous the Swann plaintiffs’ assertion at appellate

argument before the panel that "[t]he issue of how many schools are bal-

anced has never been a question in this case." App. Tr. 91. The racial

composition of schools goes to the heart of a desegregation case, and is

very much key to a review of the district court’s declaration of unitary

status. See Swann, 311 F. Supp. at 268 (ordering CMS to assign pupils

"in such a way that as nearly as practicable the various schools at various

grade levels have about the same proportion of black and white stu-

dents").

20 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

"a highly balanced school system" and a score under thirty signifies

"a substantially desegregated system." J.A. XXXIII-16,172. CMS’s

dissimilarity score was sixteen in 1980 and twenty-six in 1995. From

this it is clear that CMS quickly desegregated in the 1970s and contin-

ues to maintain a "substantially desegregated system." The dissimilar-

ity index also indicates that CMS has better racial balance than

several comparable districts did when they were declared unitary. See

J.A. XXXIII-16,173.

The index of interracial exposure, like the dissimilarity index,

shows that CMS has made great leaps of progress. A score of zero on

the exposure index signifies total segregation, while a score of fifty

or above indicates a "highly desegregated system." J.A. XXXIII-

16,172. Schools in CMS typically score above fifty, whereas before

the desegregation order the schools’ scores hovered near twenty or

below. See J.A. XXXIII-16,194-96.

CMS and the Swann plaintiffs correctly point out that the data sug-

gest that in recent years racial imbalance has increased in some

schools. Aware of this trend, the district court made a number of find-

ings on growth and demographic change in the Charlotte-

Mecklenburg area. The most revealing findings are as follows:

• the county population has increased from 354,656 in

1970 to 613,310 in 1997

• in 1970 the school district was the forty-third largest in

the nation and is today the twenty-third largest

• among cities with more than 500,000 people, Charlotte

ranks second in population growth in the 1990s

• the racial composition of the county has changed from

seventy-six percent white and twenty-four percent black

in 1970 to sixty-eight percent white, twenty-seven per-

cent black, and five percent other in 1997

• the current racial composition of schoolchildren is fifty

percent white, forty-two percent black, and eight percent

other

• as the county has become more suburban the inner city

and nearby suburbs have lost large numbers of white res-

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 21

idents as they spread farther out into the formerly rural

sections of the county

• some middle suburban communities that were once all

white are now predominately black

• the rural black population in the southern part of the

county has remained relatively constant while the white

population has tripled because of suburbanization

See Capacchione, 57 F. Supp. 2d at 236-39. These findings are sup-

ported by the report of the plaintiff-intervenors’ expert in demograph-

ics, Dr. William Clark. See J.A. XXXIII-16230-306. Accordingly, the

district court concluded that "[t]here can be no doubt that demography

and geography have played the largest role in causing imbalance."

Capacchione, 57 F. Supp. 2d at 250.

Testimony from Dr. John Murphy, CMS’s superintendent from

1991 to 1995, corroborates the district court’s conclusion. Dr. Murphy

testified that when he assumed his duties he "was quite concerned

about the increasing difficulty in bringing about racial balance . . .

because of the demographic shifts that were occurring." J.A. VI-2712.

Population growth translated into more automobiles on the road, mak-

ing increased busing impracticable because "the travel time to move

youngsters from the suburbs into the city with the flow of rush hour

traffic was a problem." J.A. VI-2732. In the fall of 1991, CMS hired

Dr. Michael J. Stolee to examine the problem and offer solutions. Dr.

Stolee also concluded that CMS’s task "has been complicated by pop-

ulation growth," J.A. XXXII-15,571, and he recommended the adop-

tion of a magnet schools program, which CMS promptly

implemented.

The Supreme Court has dealt with similar population growth and

shifting demographics in the context of unitary status. In Freeman,

the court unequivocally stated that "racial imbalance . . . [is] not tanta-

mount to a showing that the school district [is] in noncompliance with

the decree or with its duties under the law." 503 U.S. at 494. Brown

I, of course, does not mandate that racial balance be pursued in perpe-

tuity. Once the original racial imbalance caused by a constitutional

violation has been rectified, "the school district is under no duty to

remedy imbalance that is caused by demographic factors." Freeman,

503 U.S. at 494.

22 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

The Swann plaintiffs contend that consideration of demographics

and the rationale of Freeman are misplaced because the growth and

shifting demographics of DeKalb County, Georgia, the school district

under court order in Freeman, exceeded that of Charlotte-

Mecklenburg. While CMS’s growth rates and demographic shifts cer-

tainly do not equal those experienced in DeKalb,3 we can find nothing

in Freeman limiting its holding to the specific facts of DeKalb

County or establishing DeKalb as the standard for measuring imbal-

ance caused by demographic factors. On the contrary, the opinion

speaks in general terms. The Supreme Court observed that in the

United States "it is inevitable that the demographic makeup of school

districts, based as they are on political subdivisions such as counties

and municipalities, may undergo rapid change." Id. at 495. Mobility,

the Court noted, "is a distinct characteristic of our society." Id. at 494.

Similarly, the Swann plaintiffs contend that unlike DeKalb County,

Mecklenburg County has become more integrated as the black popu-

lation has increased. This is simply not true. For example, a report

prepared in 1992 by the Charlotte-Mecklenburg Planning Staff for

Chairman Arthur Griffin concluded that "Charlotte-Mecklenburg con-

tinues to be a city of segregated neighborhoods" with "[c]oncentra-

tions of Black households . . . generally located in the central city."

J.A. XXI-10,485; see also J.A. XXVIII-13,803 (1992 student assign-

ment plan stating that "housing across the county is not racially inte-

grated. Approximately 50% of all black students live within one

district, while only 10% of white students reside in that district.");

J.A. XXII-10,575 (CMS report chronicling growth of the black popu-

lation and decline of the white population in the inner city). Clearly,

increased housing integration is not necessarily a corollary of

African-American population growth. Hence, despite the Swann

plaintiffs’ best efforts, Freeman cannot be distinguished into nothing-

ness, nor does the standard of review permit this court to reweigh the

evidence of the changes in CMS.

We also note that when confronted with growing imbalance in cer-

tain schools, the district court demanded cogent and supportable

3

For example, the population of DeKalb County grew from 70,000 in

1950 to 450,000 in 1985, and the percentage of black students in the dis-

trict grew from 5.6 percent in 1969 to forty-seven percent in 1986. See

Freeman, 503 U.S. at 475.

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 23

explanations from the plaintiff-intervenors, paying special attention to

the former de jure schools still in use. See Capacchione, 57 F. Supp.

2d at 246. Evidence presented at trial indicated that "[o]f the 16 for-

mer black schools that are still open, 13 are currently balanced and

have been desegregated for periods ranging from 22 to 28 years. Of

the 3 that currently exceed the +15% black variance, each has been

balanced for at least 22 years." J.A. XXXIII-16,176. Interestingly, of

the seventy-two former white schools that are still open, fifteen are

now majority black and were in balance for periods of twelve to

twenty-five years. See J.A. XXXIII-16,176.

In addition, Dr. Armor examined the seventeen schools in CMS

that exceeded the plus fifteen percent variance for three or more years

during the last decade. See J.A. XXXIII-16,174-76.4 Sixteen of the

seventeen were balanced for periods ranging from nineteen to twenty-

six years, with one school experiencing balance for sixteen years. To

the extent that CMS’s pupil reassignments could be assessed, Dr.

Armor concluded that changes instituted by CMS were "attempts to

maintain or restore racial balance in the face of overwhelming demo-

graphic growth and mobility." J.A. XXXIII-16,176. Indeed, Dr.

Armor concluded that imbalance had been reduced in several of the

schools because CMS’s magnet program attracted white students

from the outer reaches of the county.

4

Dr. Armor did not include the predominantly white schools in this

analysis on three grounds:

(1) the court order did not establish a minimum percent black

enrollment, (2) the half-dozen schools that have had low black

enrollment for the past three or more years and that were operat-

ing in 1972 have been racially balanced for at least ten years[,]

and (3) the demographic analysis of Dr. Clark shows that these

schools have become imbalanced or were opened imbalanced

because of the substantial white enrollment growth in the out-

skirts of the county.

J.A. XXXIII-16,174 (footnote omitted); see also Swann, 402 U.S. at 26

(observing "that the existence of some small number of one-race, or vir-

tually one-race, schools within a district is not in and of itself the mark

of a system that still practices segregation by law").

24 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

Long periods of almost perfect compliance with the court’s racial

balance guidelines,5 coupled with some imbalance in the wake of

massive demographic shifts, strongly supports the district court’s

finding that the present levels of imbalance are in no way connected

with the de jure segregation once practiced in CMS. See Freeman,

503 U.S. at 495 ("Where resegregation is a product not of state action

but of private choices, it does not have constitutional implications.");

Manning, 244 F.3d at 944 ("Where a [party seeking a finding of uni-

tary status] shows that demographic shifts are a substantial cause of

the racial imbalances, [the party] has overcome the presumption of de

jure segregation."); United States v. Meriwether County, 171 F.3d

1333, 1339 (11th Cir. 1999) (observing that a "school district need not

wage a battle against demographics to achieve perfect racial bal-

ance"). The evidence presented at trial adequately explained why a

few schools have become imbalanced, and we can discern no evi-

dence or omissions that indicate clear error has been committed in

this regard.

2. Martin and Unitary Status

The Swann plaintiffs also point to school sitings, transportation

burdens, and school transfers as evidence that the growing imbalance

is caused by state action rather than private choices, and that CMS has

not complied with the district court’s orders in good faith. In advanc-

ing their argument, the Swann plaintiffs rely chiefly on Martin v.

Charlotte-Mecklenburg Board of Education, 475 F. Supp. 1318

(W.D.N.C. 1979), in which a group of parents sought to enjoin CMS

from reassigning over 4000 students in order to maintain racial bal-

ance in certain schools. The plaintiffs in Martin based their position

on Pasadena City Board of Education v. Spangler, 427 U.S. 424

(1976), and Regents of the University of California v. Bakke, 438 U.S.

265 (1978). In the former case, the Supreme Court reaffirmed that

district courts could not order a school district "to rearrange its atten-

dance zones each year so as to ensure that the racial mix desired by

the court was maintained in perpetuity," Spangler, 427 U.S. at 436,

5

Even the Swann plaintiffs admit that ten years after the district court

charged the board with taking affirmative steps to desegregate schools,

the system "w[as] nearly 100% statistically compliant with the court’s

orders." Plaintiff-Appellants’ Brief at 38.

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 25

and in the latter the Court struck down a medical school admissions

policy that reserved sixteen of one hundred seats in the entering class

for applicants who were "‘economically and/or educationally disad-

vantaged’" and who were members of certain minority groups, Bakke,

438 U.S. at 274. The district court in Martin distinguished Spangler

by observing that it was but a restatement of the Swann Court’s admo-

nition about the use of racial quotas and that, unlike Pasadena City,

CMS had not achieved racially neutral attendance patterns. See Mar-

tin, 475 F. Supp. at 1340. As for the Bakke decision, the district court

pointed out that no student in CMS was denied "an equal educational

opportunity" and that the admissions policy in Bakke was imple-

mented "against a backdrop devoid of specific judicial findings or

administrative acknowledgments of the prior segregated status of the

school system." Id. at 1345. Accordingly, the Martin court concluded

that CMS’s reassignment of students was "within constitutional limits

and should be upheld." Id. at 1321. The district court took pains to

ensure that its opinion would not be interpreted too broadly: "This

order simply upholds the actions of the 1978 Board against the attacks

by the plaintiffs." Id. at 1347. In the course of the Martin opinion, the

district court observed that CMS had fallen short in four areas: con-

struction and location of facilities in parts of the county likely to

enhance desegregation, placement of elementary and kindergarten

grades in schools throughout the county, monitoring of student trans-

fers so as to prevent resegregation, and allocation of the burdens of

busing. See id. at 1328-29. However, the district court also noted that

CMS had made great progress and that a return to the old system of

segregation "has not tempted the present School Board, who are

standing fast in their endeavor to run the schools according to law

while providing quality education." Id. at 1347.

In Capacchione, the district court correctly observed that "Martin

was not a unitary status hearing," Capacchione, 57 F. Supp. 2d at 250,

and that because "the desegregation plan was still in its fledgling

stages, the Court was inclined to keep the pressure on CMS," id. at

251. The Capacchione court further observed that post-Martin

changes in Charlotte-Mecklenburg counseled looking at the "concerns

[of Martin] in a new light." Id. The district court’s interpretation of

Martin is reasonable and in accord with the rule in this circuit that a

district court, as a continuous institution, is "best able to interpret its

own orders." Vaughns v. Board of Educ., 758 F.2d 983, 989 (4th Cir.

26 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

1985) (school desegregation case). Moreover, the Martin order was

issued thirteen years before the Supreme Court made clear in Free-

man that the affirmative measures mandated by Green are not meant

to remedy "private choices" that lead to resegregation. Freeman, 503

U.S. at 495. The state of the law and the understanding of duties upon

school districts were far different when Martin was handed down.

Hence, a number of assertions in Martin cannot be squared with the

present state of the law. See, e.g., Martin 475 F. Supp. at 1346 (stating

that segregated housing patterns must necessarily lead to the unconsti-

tutional segregation of schools). Ignoring the changes in Charlotte-

Mecklenburg and in the law by erecting Martin as the framework for

unitary status, as the Swann plaintiffs urged below, would defy com-

mon sense and run afoul of developments in the Supreme Court’s

school desegregation jurisprudence. See United States Gypsum Co. v.

Schiavo Bros., 668 F.2d 172, 176 (3d Cir. 1981) (concluding that a

successor judge "is empowered to reconsider [the legal conclusions of

an unavailable predecessor] to the same extent that his or her pre-

decessor could have"); see also Meriwether County, 171 F.3d at 1339

("The law does not make a school district a prisoner based on factors,

such as demographic tendencies, that are beyond its control."). We

will examine the district court’s Martin findings in turn.

a. School Siting

The district court found that CMS had not shirked its duties under

the law with regard to school sitings. See Capacchione, 57 F. Supp.

2d at 251-53. The record reveals that CMS has, to the extent practica-

ble, continually endeavored to site schools in order to foster integra-

tion, and has adopted a policy of building schools in areas equally

accessible to blacks and whites. Testimony of current board members

indicated that in efforts to fulfill this policy, CMS has purchased

property in low growth areas for school construction even though

schools in predominantly white high growth areas were overcrowded.

See J.A. V-1986-87. In 1992 CMS reaffirmed its siting policy and

resolved that, "whenever possible," new schools would be built in

areas that would "provide black student enrollment of not less than 10

percent from the census tracts serving the new school." J.A. XXXII-

15,686. The impetus behind the resolution was growth in the periph-

ery of the county which the board speculated would continue patterns

of housing segregation, thus making it more difficult to maintain

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 27

racial balance in the schools. Evidence presented at trial indicated that

the ten percent rule was destined for failure because it was not possi-

ble to implement the rule and still "meet the 60-minute bus ride

limit." J.A. XXII-10,869. Nevertheless, extensive evidence was pre-

sented showing that CMS never sited schools in order to foster segre-

gation and that "every effort was made to try to find school sites that

would bring people together in balanced numbers." J.A. VI-2752; see

Meriwether County, 171 F.3d at 1337 (stating that "the absence of

evidence indicating that racial motives played any part in the Board’s

decisionmaking process" is relevant in accessing compliance with

desegregation orders). For example, CMS’s executive director of

planning and student placement testified that in siting schools CMS

"looked at both African-American and all populations not only in the

vicinity of the site, but in the entire district." J.A. VII-2920. So dedi-

cated was CMS to siting schools in integrated areas that it contem-

plated refusing a gift of land for school use because the land was in

a predominantly white area. See J.A. V-1985.

Faced with growth in the predominantly white regions of the far

south and north, see J.A. XXXIII-16,261, CMS was compelled to

serve populations in those areas via school sitings. CMS’s data show

that in the late 1990s, student population was "growing at nearly

4,000 students per year," J.A. XXIX-14,133, and consequently the

board was "just trying to keep up" with the population explosion in

building schools, J.A. V-2249. Overcrowding was a problem, and in

the late 1990s "the average high school expected to operate at 109

percent of its capacity." J.A. XXIX-14,133. Even though CMS was

forced to build schools at a rapid rate to serve an expanding student

population, pupil assignment plans in which CMS described popula-

tion growth as a "major consideration[ ]" are replete with efforts to

improve racial balance. J.A. XXIX-14,133. For example, the 1997-98

assignment plan highlighted the creation and expansion of several

magnet programs specially designed to reduce the black ratio in a

number of schools. See J.A. XXIX-14,147-51. To the extent practica-

ble, CMS did not sacrifice racial balance concerns to population

growth. Though the two often pulled CMS in different directions, the

record indicates that the board coordinated racial balance and school

sitings as best it could under the circumstances. The evidence does

not indicate that the abandonment of the ten percent rule or other

28 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

decisions regarding school siting were the result of a desire to perpet-

uate the dual school system or circumvent the district court’s orders.

CMS and the Swann plaintiffs, citing to prior orders, counter that

the board has not done all that it could do in the area of school siting.

Erection of such a standard, however, would effectively replace prac-

ticability with possibility. See Manning, 244 F.3d at 945 (observing

that "the law does not require a defendant school board to take every

conceivable step in attempting to desegregate"). The former implies

measures that can be reasonably implemented under the circum-

stances, while the latter omits the reasonableness requirement. For

instance, it was possible for CMS to adhere to the ten percent rule

while ignoring growth in the far north and south of the county.

Youngsters would have been compelled to ride buses for long periods

while traveling with the flow of rush hour traffic, but it was nonethe-

less possible to adhere to the ten percent rule. Of course, the practica-

bility of a refusal to respond to growth in Charlotte-Mecklenburg is

another matter.

In the same vein, the Swann plaintiffs contend that school siting

decisions were a response to white flight, which is an impermissible

reason for failing to comply with a desegregation order. Growth, of

course, is far different from flight. And experts offered evidence of

"the economic boom in the Charlotte Metropolitan area in the last

decade." J.A. XXXIII-16,233. Charlotte-Mecklenburg is one of the

most dynamic areas in the South; it is far different from the Charlotte-

Mecklenburg of Swann, and much changed from that of Martin. In

light of the growth in the county and a plethora of evidence demon-

strating that the board used its best efforts to site schools in order to

foster integration, the district court did not commit error when it con-

cluded that there is no "continuing constitutional violation[ ] in the

area of school siting." Capacchione, 57 F. Supp. 2d at 253.

b. Burdens of Busing

As for the burdens of busing, the district court found that in the

most recent school year, 15,533 black students and 11,184 non-black

students were bused for balancing purposes. Id. As stated earlier, traf-

fic patterns make busing suburban students into the inner city far

more difficult than busing inner-city children into the suburbs. See

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 29

J.A. VI-2732; J.A. V-2228. Though a disproportionate number of

African-American students are bused, the growth, housing patterns,

and traffic patterns support the district court’s conclusion that the

realities of the current situation should not block a unitary status

determination. See Meriwether County, 171 F.3d at 1341 (finding no

constitutional violation when white students are "somewhat less bur-

dened by the transportation scheme" because of demographic factors).

c. Student Transfers

Finally, Martin’s concern with student transfers appears to have

been based on the assumption that CMS would experience average

growth. Courts are not omniscient, and the district court in 1979 could

not have foreseen the changing demographics that would make stu-

dent transfers the least of CMS’s worries. In the present litigation, the

district court observed "that CMS ‘kept an eye on [magnet transfers]

so that there wouldn’t be a run on the bank so to speak from any one

school.’" Capacchione, 57 F. Supp. 2d at 250 n.10 (alteration in origi-

nal). This finding is not clearly erroneous, nor can we discern the

need for more findings on this issue in light of post-Martin changes.

3. Conclusion

In sum, the district court’s findings on student assignment are

"plausible in light of the record viewed in its entirety." Anderson, 470

U.S. at 573. The dual system of student assignment in CMS has been

eradicated "to the extent practicable." Dowell, 498 U.S. at 250. The

imbalance existing in some schools is not traceable to the former dual

system or to renewed discriminatory actions, but rather is a result of

growth and shifting demographics. Consequently, we hold that the

district court’s findings on student assignment are not clearly errone-

ous.

B. Faculty Assignment

In examining faculty assignment, the district court again used a

plus/minus fifteen percent variance. Of the 126 schools operating in

CMS, the district court found that in 1997-98 only ten schools were

out of balance. The Swann plaintiffs point out that this number grew

30 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

to sixteen in 1998-99, but this means that a mere twelve percent of

the schools were out of balance. This is a far cry from the dual system

in which "most of the 24,000 [black students] ha[d] no white teach-

ers." Swann, 300 F. Supp. at 1360. There is simply no evidence that

CMS assigns black teachers to predominantly black schools and white

teachers to predominantly white schools. Thus, the district court’s

conclusion that this Green factor has been satisfied is not clearly erro-

neous.

C. Facilities and Resources

The Swann plaintiffs and CMS contend that the district court

impermissibly shifted the burden of proof on this factor. As a result

of the alleged error of law, CMS and the Swann plaintiffs contend that

this issue must be remanded to the district court.

This court has previously made clear that "once a court has found

an unlawful dual school system, [those alleging the existence of racial

disparities] are entitled to the presumption that current disparities are

causally related to prior segregation, and the burden of proving other-

wise rests on the defendants." School Bd. of the City of Richmond v.

Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987). In this case, however,

the district court noted that none of the prior orders entered in the

long history of the Swann litigation had ever found racial disparities

to exist with regard to school facilities and concluded that CMS and

the Swann plaintiffs bore the burden of establishing discrimination

with regard to facilities. See Capacchione, 57 F. Supp. 2d at 263 ("[I]t

would defy logic to place now the burden of proof on the Plaintiff-

Intervenors, requiring them to prove that vestiges of discrimination in

facilities have been remedied, when the Court originally found no

vestiges to exist."). In our view, this erroneous assignment of the bur-

den of proof, which did not affect the manner in which the parties

tried the case or otherwise prejudice their rights, is harmless and does

not undermine the district court’s factual conclusions regarding the

facilities factor.6

6

Given the counter-intuitive alignment of the parties in this case, it

could be argued that the presumption and burden allocation set forth in

Baliles should not be applied, and that CMS should instead be required

to prove the existence of racial disparity in its facilities. See United

States v. City of Yonkers, 181 F.3d 301, 309-11 (2d Cir. 1999), vacated

on reh’g, 197 F.3d 41 (2d Cir. 1999).

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 31

Immediately after assigning the burden to CMS and the Swann

plaintiffs, the district court’s order nonetheless summarized and

weighed the facilities evidence presented by the parties. The district

court carefully analyzed the testimony and report of Dr. Dwayne

Gardner, an expert witness for CMS. Dr. Gardner analyzed seventy-

three schools—every identifiably black school in CMS and a sam-

pling of balanced schools and predominantly white schools. Dr. Gard-

ner measured the adequacy, safety, healthfulness, accessibility,

flexibility, efficiency, expansibility, and appearance of the schools.

Based on the inspection he grouped schools as follows: "0-44 (sug-

gests replacement), 45-59 (needs major improvement), 60-74 (needs

minor improvement), 75-89 (serves program needs), and 90-100

(exceptional quality)." Id. at 264. The survey revealed that of the four

schools that warranted replacement, two were majority white, and two

were imbalanced black. See J.A. XXV-12,182-86. Thirty-four schools

fell into the "needs major improvement" category, of which sixteen

were imbalanced black and eighteen identifiably white.

The district court determined that Dr. Gardner’s testimony estab-

lished that any current disparities were functions of the age of the

facilities at issue, because

different building standards apply when a new facility is

constructed as compared to when an older facility is reno-

vated or upgraded. In other words, the renovation of an

older facility usually complies with the code under which

the facility was built. Because most facilities in the predomi-

nately black inner city are older while facilities in the pre-

dominately white suburbs are newer, the inference is that

differences in building standards tend to affect black stu-

dents disproportionately. This does not amount to racial dis-

crimination. Indeed, this practice applies regardless of the

racial composition of the school. Thus, older schools that

are predominately white—several of which were built in the

1920s—are likewise affected by this practice.

Capacchione, 57 F. Supp. 2d at 265 (footnote and transcript refer-

ences omitted). Thus, the district court concluded from Dr. Gardner’s

testimony and report "that CMS’s facilities needs are spread across

the system without regard to the racial composition of its schools." Id.

32 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

The district court also considered the testimony of CMS’s assistant

superintendent of building services, who testified that out of 108

schools in need of renovations, eighty-one percent were racially bal-

anced or identifiably white. See J.A. VIII-3810 & 3818. The district

court concluded that this witness’s testimony likewise demonstrated

that the deficiencies in CMS’s facilities were unrelated to the former

de jure system.

Finally, the court considered CMS’s track record in renovating old

facilities, praising its practice of allocating funds on a per-pupil basis

and noting that "CMS has spent a large portion of [its] bond money

on improving schools in predominantly black areas." Capacchione,

57 F. Supp. 2d at 266.

After an extensive discussion of this evidence, the court made the

following finding of fact with regard to facilities:

Just as Judge McMillan found thirty years ago, the Court

finds today that inequities in facilities exist throughout the

system regardless of the racial makeup of the school. These

disparities are generally the result of the relative ages of the

facilities, combined with an ongoing lack of funding and the

need to accommodate unprecedented growth.

Id.

This finding is clearly determinative of the question of unitary sta-

tus as to facilities, regardless of which party carried the burden of

proof. That is, the district court, after carefully considering and

weighing all the evidence presented on this factor, concluded that any

disparity as to the condition of the facilities that might exist was not

caused by any intentional discrimination by CMS, but instead was a

function of the age and location of the facilities and the ever-present

problem of allocating all too scarce funds. Even if the district court

had assigned the burden of proof to the plaintiff-intervenors, this fac-

tual finding would have compelled a ruling in their favor. In fact, the

district court acknowledged as much, stating "that the Plaintiff-

Intervenors have proven, to the extent possible, the absence of intent

and causation." Capacchione, 57 F. Supp. 2d at 267 n.38.7

7

From this footnote and the district court’s detailed discussion about

the cause of any disparity in CMS’s facilities, it appears that the district

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 33

Therefore, because the district court’s findings, which were based

on the court’s weighing of all of the relevant evidence presented at

trial, would have yielded the same conclusion under a proper assign-

ment of the burden of proof, any error with regard to the burden of

proof is harmless. See Washington State Dep’t of Transp. v. Washing-

ton Natural Gas Co., 59 F.3d 793, 801 (9th Cir. 1995) (finding dis-

trict court’s improper assignment of the burden of proof to be

harmless because review of the entire record established "that under

the proper assignment of the burden of proof, the district court would

have reached the same decision"); Applewood Landscape & Nursery

Co. v. Hollingsworth, 884 F.2d 1502, 1506 (1st Cir. 1989) (conclud-

ing that, if the district court improperly allocated burden of proof on

a particular issue, the error was harmless because the district court’s

decision on that issue turned on the weight of the evidence in the

record and not on burden of proof rules); cf. Vaughns, 758 F.2d at 992

(recognizing that an error in shifting the burden of proof in a school

desegregation case may be harmless if the record is such that the court

can conclude that substantial rights have not been prejudiced).

Because any error associated with the burden of proof is harmless,

the only question that remains is whether the district court’s factual

findings about the facilities are clearly erroneous. Though the evi-

dence could have been weighed differently on this factor, "[w]here

there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous." Anderson, 470

U.S. at 574. In 1969, the district court found that there was no consti-

tutional violation in the "quality of school buildings and facilities."

Swann, 300 F. Supp. at 1372. The Capacchione court found that this

remains true today, and the evidence as a whole indicates that this

finding is not clearly erroneous.

court really made alternative rulings on the facilities question: The court

first concluded that CMS and the Swann plaintiffs bore the burden of

proof with regard to facilities and that they failed to carry that burden.

See Capacchione, 57 F. Supp. 2d at 267 ("[T]he Swann Plaintiffs have

failed to overcome the Court’s previous findings on facilities by estab-

lishing the requisite discriminatory intent and causation."). The court

then ruled in the alternative, as indicated by the footnote and the find-

ings, that the plaintiff-intervenors proved that any disparities were the

result of factors unrelated to state action.

34 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

D. Transportation

During the 1998 school year, five out of every six students in CMS

rode a school bus. See Capacchione, 57 F. Supp. 2d at 267. The par-

ties do not dispute the district court’s finding that "CMS provides free

bus transportation to all students who do not live within a mile and

a half of their schools." Id. The focus of the Swann plaintiffs’ argu-

ment on this factor deals with the Martin opinion. As previously dis-

cussed, Martin does not provide the framework for a unitary status

determination and the district court’s interpretation of Martin, along

with the finding that the present state of busing "may be about the

best CMS can do," Capacchione, 57 F. Supp. 2d at 253, does not con-

stitute error.

E. Staff Assignment

The district court, noting that findings of discrimination in school

staffing were never made, concluded that CMS has complied with its

constitutional duties. The parties point this court to no contrary evi-

dence, nor have we discovered such in the record. Therefore, we hold

that the district court’s findings regarding the fifth Green factor are

not clearly erroneous.

F. Extracurricular Activities

The district court concluded that there was no discrimination or

vestiges of discrimination with regard to extracurricular activities.

The evidence presented at trial showed that the ratios of blacks and

whites participating in extracurricular activities, though varying

somewhat from year to year, is approximately equal. See J.A. XXIV-

11,634. Areas where there are disparities were not shown to be linked

to the former dual system. For example, blacks often outnumber

whites in holding elective offices in student government, but whites

have a higher level of representation in honors programs. No evidence

is found in the record to indicate that CMS somehow pushes African-

Americans toward student government and away from honors pro-

grams. Consequently, the district court’s conclusion that CMS has

satisfied this Green factor is not clearly erroneous.

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 35

G. Ancillary Factors

1. Teacher Quality

The district court found that there was no discrimination in the

quality of teaching. The Swann plaintiffs contend that this finding is

clearly erroneous because students in imbalanced African-American

schools are more likely to have inexperienced teachers. This "experi-

ence gap," to the extent it exists, is minuscule. The district court

found that "teachers in imbalanced-black schools had 0.7 to 1.3 fewer

years experience than the district averages and had 1.6 to 2.9 fewer

years experience than teachers in imbalanced-white schools." Capa-

cchione, 57 F. Supp. 2d at 271. To use middle school teachers as an

example, the statistics reveal that the average middle school teacher

in an imbalanced African-American school had 8.2 years experience

versus 9.8 years for his counterpart in an imbalanced white school. Id.

These numbers clearly support a finding of equality rather than dis-

parity, and cannot undermine the district court’s conclusion on this

factor.

The district court also pointed to evidence indicating that experi-

ence does not necessarily relate to competency. For example, accord-

ing to former Superintendent Murphy, it is not uncommon to have

"excellent first-year teachers" and "very weak 35th-year teachers."

J.A. VI-2795. Other witnesses observed that the newer teachers had

better "knowledge of various teaching strategies" and were more com-

fortable with diverse classrooms. J.A. VII-3275.

The Swann plaintiffs also assert that imbalanced African-American

schools have fewer teachers with advanced degrees. For instance, in

imbalanced black high schools only thirty-one percent of the teachers

held advanced degrees, while forty-six percent of the teachers in

imbalanced white high schools held advanced degrees. See Capacch-

ione, 57 F. Supp. 2d at 271. As it was with teacher experience, testi-

mony was offered establishing that the number of degrees a teacher

possesses does not necessarily translate into competence or quality

instruction. See J.A. VII-3276. According to former Superintendent

Murphy, "the degree level was not a significant indicator of getting

better performance on the part of the teacher." J.A. VI-2795. Expert

reports submitted by the plaintiff-intervenors also indicated that there

36 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

is "no significant relationship" between black achievement and

teacher education levels. J.A. XXXIII-16,221. In sum, the district

court’s conclusion that African-American students receive equal

access to quality teachers is not clearly erroneous.

2. Student Achievement

The district court found that the existence of an achievement gap

between black and white students was not a vestige of the dual system

or evidence of discrimination in the current operation of CMS. This

was an area of immense disagreement at trial, and the parties pre-

sented a mountain of data on this subject. Though the Fourteenth

Amendment guarantees equal protection but not equal outcomes, if

low African-American achievement is a result of the former de jure

system, it must be eliminated to the extent practicable. See Dowell,

498 U.S. at 249-50. Conversely, to the extent that low achievement

is linked to other factors, it is beyond the reach of the court’s author-

ity. Most courts of appeals confronting this issue, including this court,

have declined to consider the achievement gap as a vestige of dis-

crimination or as evidence of current discrimination. See Baliles, 829

F.2d at 1313 (upholding lower court’s findings that low achievement

is "primarily attributable to the high incidence of poverty" in the

school district); see also United States v. City of Yonkers, 197 F.3d

41, 54 (2d Cir. 1999) (observing that "using achievement test scores

as a measure, either direct or indirect, of a school system’s movement

away from segregation is deeply problematic"), cert. denied, 120

S. Ct. 2005 (2000); People Who Care v. Rockford Bd. of Educ., 111

F.3d 528, 537 (7th Cir. 1997) (explaining that a number of variables,

other than discrimination, account for the achievement gap); Coali-

tion to Save Our Children, 90 F.3d at 778 (finding "a causal link

between . . . socioeconomic factors and student achievement").

The plaintiff-intervenors’ expert witness, Dr. Armor, presented evi-

dence indicating that there is no correlation between African-

American performance and the racial balance of schools. See J.A.

XXXIII-16,178. For example, Dr. Armor’s studies showed that

African-American students in the third through fifth grades attending

schools sixteen to twenty-five percent African-American scored the

same on standardized tests as their counterparts in schools seventy-

five percent black or greater. See J.A. at 16,214. Similarly, African-

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 37

American students in the sixth through eighth grades attending

schools sixteen percent black or less scored the same on standardized

tests as their counterparts in schools seventy-five percent black or

greater. See J.A. XXXIII-16,215.

In order to shed light on the true causes of the achievement gap,

Dr. Armor turned to socioeconomic factors. The data revealed star-

tling differences between black and white children in CMS.

Average black family income is $31,000 compared to

$59,000 for whites, and only 15 [percent] of black parents

are college graduates, compared to 58 percent for white par-

ents. A huge poverty gap is also revealed, with 63 percent

of black students on free lunch compared to only 9 percent

of white students. Finally, 83 percent of white students have

both parents at home, compared to only 42 percent for black

students.

J.A. XXXIII-16,179. According to Dr. Armor, the socioeconomic fac-

tors plus the second grade scores, which are the earliest available,

explain "nearly 80 percent of the reading gap and over 70 percent of

the math gap." J.A. XXXIII-16,180. Former Superintendent Murphy

testified that in his experience "[p]oor students come behind and stay

that way. And in Charlotte, a majority of poor students happen to be

African-American." J.A. VI-2696. Dan Saltrick, former assistant

superintendent for instructional services, also testified that in his

experience low student test scores related to parental support which

in turn was "a matter of . . . socioeconomic levels." J.A. VII-3280.

While socioeconomic disparities between black and white pupils are

troubling, they are not the result of CMS’s actions or inactions and

therefore are beyond the scope of the original desegregation order.

See Baliles, 829 F.2d at 1314 ("Educational deficiencies that result

from problems such as poverty are best remedied by programs

directed toward eliminating poverty, not by indirect solutions through

school programs.").8 Accordingly, the district court did not clearly err

8

Despite evidence that the achievement gap results from factors out-

side CMS’s control, the district court found that CMS has undertaken

sundry measures to eliminate the gap. For example, CMS adopted finan-

cial incentives for teachers and principals tied to student performance,

urged black students to take advanced placement and other higher level

38 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

in finding that the achievement gap between black and white students

is not a vestige of past discrimination or evidence of present discrimi-

nation.

3. Student Discipline

The district court found "that any disparities that exist in the area

of discipline are not causally related to the dual system." Capacch-

ione, 57 F. Supp. 2d at 281. In none of the court’s prior orders is there

any indication that CMS has ever discriminated in meting out punish-

ment for disruptive students. However, recent statistics show that of

the 13,206 students disciplined from 1996-98, sixty-six percent were

African-American. See J.A. XXIV-11,637. As the district court noted,

"disparity does not, by itself, constitute discrimination." Capacchione,

57 F. Supp. 2d at 281. The idea that CMS should have a disciplinary

quota is patently absurd, and there is no evidence in the record that

CMS targets African-American students for discipline. Instead, the

evidence indicates that CMS has adopted guidelines whereby students

receive the same level of punishment for certain offenses to ensure

that the amount of punishment will not vary from school to school.

A student charged with a disciplinary infraction may also appeal the

charge "and may assert that the charge was due to racial bias." Id.

There is simply no evidence in the record that CMS treats African-

American students differently in disciplinary matters. Hence, the dis-

trict court’s conclusion that the disciplinary disparities are unrelated

to the former de jure system is not clearly erroneous.

H. Good Faith

Lastly, the district court found that CMS has complied with the

desegregation decree in good faith. See Freeman, 503 U.S. at 491

(requiring school board "to demonstrate its good-faith commitment to

a constitutional course of action"). Seven factors supported the district

classes, challenged all students by removing "fluff courses" from the cur-

riculum, provided tutors and other forms of staff support to accelerate

student preparedness, and adopted pre-kindergarten programs to acceler-

ate preparedness for the youngest of students. See Capacchione, 57 F.

Supp. 2d at 273-275.

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 39

court’s good-faith finding: (1) no further relief has been sought since

the district court removed the case from the active docket in 1975; (2)

CMS has gone above and beyond the court’s orders by continually

striving to achieve balance even when the imbalance was uncon-

nected to the dual system; (3) the board has been open to community

input and sought community support for its integrative efforts; (4) the

board has repeatedly reaffirmed its commitment to desegregation

through various resolutions; (5) African-Americans currently occupy

four of the nine seats on the school board, including the chair; (6) the

board’s actions over the past thirty years do not evince discriminatory

motives; and (7) "no evidence has been presented that school authori-

ties were guilty of easily correctable errors." Capacchione, 57 F.

Supp. 2d at 282-83.

Testimony from former board members indicated that the court’s

order has been "institutionalized," J.A. V-2222, and that the board "al-

ways stuck to what the rules were." J.A. V-2234. Former Superinten-

dent Murphy testified that when he arrived in Charlotte-Mecklenburg

he found a "unique" environment where "everybody wanted to make

sure that their schools were racially balanced." J.A. VI-2686. In 1992,

Dr. Stolee suggested a magnet plan to increase integration, and, in the

course of his recommendations, observed that "[f]or the last twenty

years, the Charlotte-Mecklenburg Board of Education and the

Charlotte-Mecklenburg community have, in good faith, complied

with the orders of the court." J.A. XXXII-15,570. He further observed

"that the Charlotte-Mecklenburg Board and community have a great

deal of pride in the fact that they successfully met a challenge and

made the solution work." J.A. XXXII-15,571.

Of course, both in the district court and in appellate arguments,

current CMS officials engaged in much self-recrimination and

claimed that they had not pursued the dismantlement of the dual sys-

tem with the requisite zeal. Right on cue, the Swann plaintiffs

describe this case as "unique" because CMS "has acknowledged its

own failure to comply with specific directives" of the district court.

Swann Plaintiffs’ Response to Petition for Rehearing at 10. The dis-

trict court gave little weight to CMS’s assertions that the board had

not put forth enough effort, and the evidence presented at trial amply

supports the district court in this regard. Former Superintendent Mur-

phy testified that despite a report indicating that CMS was unitary and

his belief that CMS "w[as] definitely in compliance," no effort was

40 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

made to dissolve the court order. J.A. VI-2706. Dr. Murphy gave

three reasons for the avoidance of a unitary status hearing. First, he

advised board members that the court hearing would be "a long,

drawn-out process which would cost millions of dollars, and that

would be money taken away from the instructional program." J.A. VI-

2706. Second, Dr. Murphy feared that if CMS was declared unitary

"we would not be eligible for federal funding for our magnet

schools." J.A. VI-2706; see also J.A. XXII-10,563 (CMS report

observing that "school districts that intend to use magnet schools for

desegregation purposes can apply for grants from the federal govern-

ment"); J.A. XXI-10,521 (1996-1997 Federal Magnet School Assis-

tance Program Evaluation Report in which CMS describes federal

funding as "an integral part" of its pupil assignment plan). Finally, Dr.

Murphy thought it best to remain under court order so CMS could

continue to racially balance schools even though the de jure violation

had been remedied.

Dr. Susan Purser, the current associate superintendent of education

services of CMS, expressed a similar desire for CMS to remain under

court order. Though Dr. Purser testified that she believed that the

school board, superintendent, and administration were dedicated to

enhancing educational opportunities for all of CMS’s students regard-

less of race, she nonetheless expressed a preference for court supervi-

sion. Dr. Purser pointed out that the current "Board has only a limited

time, because these are elected positions," J.A. XVII-8076, and that

over time "superintendents will change, [and] the people involved in

[CMS] will change." J.A. XVII-8077. At this point in the cross exam-

ination, counsel asked Dr. Purser: "But you don’t know what any

future School Board or administration will do either way, do you?"

J.A. XVII-8077. Dr. Purser responded: "That’s exactly my point."

J.A. XVII-8077. Dr. Purser’s testimony and that of Dr. Murphy exem-

plify why the Supreme Court has stressed that "federal supervision of

local school systems was intended as a temporary measure to remedy

past discrimination." Dowell, 498 U.S. at 247; see also Coalition to

Save Our Children, 90 F.3d at 761 n.6 (warning of "the potential for

the entrenchment of [a] putatively transitional desegregation

scheme"). The district court’s desegregation orders were not intended

to continue after CMS remedied the de jure violation, nor were they

intended to suspend the democratic process with no prospect of resto-

ration. Yet the orders have been institutionalized to the point that

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 41

CMS officials cannot imagine life without them. Once a yoke meant

to steer CMS towards compliance with the Constitution, the orders

are now used by CMS officials as mechanisms for the attainment of

different goals. In truth, CMS officials have little desire for a unitary

status determination and are struggling to keep the orders firmly in

place.

Ironically, CMS’s clinging to the temporary desegregation orders

buttresses the district court’s finding that it is unlikely "CMS would

return to an intentionally-segregative system." Capacchione, 57 F.

Supp. at 284. If CMS will go to such lengths to keep the court’s

orders in place so that it may continue racial balancing and other poli-

cies, it is unthinkable that CMS will attempt to revive the dual system.

Accordingly, the district judge’s finding of good faith is not clearly

erroneous.

I. CMS’s Remedial Plan

As a response to the plaintiff-intervenors’ push for unitary status,

CMS developed a "remedial plan" addressing many of the Green fac-

tors and other ancillary factors. See J.A. XXIII-11,028. The district

court dismissed the remedial plan as a "‘litigation strategy’ plan" and

declined to consider it. Capacchione, 57 F. Supp. 2d at 256. CMS and

the Swann plaintiffs characterize the district court’s treatment of the

remedial plan as a fundamental error of law that requires reversal of

the unitary status determination. First, CMS and the Swann plaintiffs

aver that the district court misconstrued the test for unitary status.

Adopting the test crafted by the panel opinion, CMS and the Swann

plaintiffs assert that a district court must consider (1) what a school

district has done, and (2) what a school district may do in the future.

See Belk, 233 F.3d at 252-53. Because the district court did not under-

take the latter inquiry as to the remedial plan, CMS and the Swann

plaintiffs argue that the district court’s order must be reversed. This

proffered two-part test is divined from Supreme Court cases which

have instructed district courts to ask "whether the Board ha[s] com-

plied in good faith with the desegregation decree since it was entered,

and whether the vestiges of past discrimination ha[ve] been elimi-

nated to the extent practicable." Dowell, 498 U.S. at 249-50; see also

Freeman, 503 U.S. at 491.

While we agree with the first prong of the test, we do not agree that

examining "whether the vestiges of past discrimination ha[ve] been

42 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

eliminated to the extent practicable," Dowell, 498 U.S. at 249-50,

requires a district court—as a matter of law—to consider a remedial

plan conceived, drafted, and offered by one of the parties during the

lawsuit as an obvious defense to it. The plain meaning of the relevant

language is that in some desegregation cases simple compliance with

the court’s orders is not enough for meaningful desegregation to take

place. See Swann, 402 U.S. at 25 (stating that "a district court’s reme-

dial decree is to be judged by its effectiveness"). For example, a

decree entered in the 1960s or 1970s could have underestimated the

extent of the remedy required, or changes in the school district could

have rendered the decree obsolete. In either case, a district court must

look beyond mere compliance with the original decree and ask

whether the vestiges of the dual system have been eliminated to the

extent practicable. In the present case, the district court undertook

such an inquiry. Not only did the district court address compliance,

but it also looked beyond the original decree and examined how the

extensive changes in the Charlotte-Mecklenburg area have affected

the dismantling of the former dual system. Hence, the district court

was not required under Dowell and Freeman to have considered

CMS’s eleventh-hour remedial plan.

Likewise, the district court did not run afoul of Federal Rule of

Evidence 402 when it refused to consider the remedial plan. Rule 402,

of course, declares that "[a]ll relevant evidence is admissible." Fed.

R. Evid. 402. Even relevant evidence may be excluded, however,

when its probative value is substantially outweighed by consider-

ations of the needless presentation of cumulative evidence. See Fed.

R. Evid. 403. And CMS’s remedial plan was certainly cumulative, cit-

ing and summarizing several expert reports which had been admitted

into evidence. For example, the plan’s discussion of faculty assign-

ment is based on the reports of Dr. William Trent, Dr. Robert

Peterkin, and Dr. Roslyn Mickelson; the plan’s discussion of facilities

is based on Dr. Gardner’s report; the plan’s discussion of the achieve-

ment gap between blacks and whites is based on the reports of Dr.

Trent, Dr. Peterkin, and Dr. Mickelson; and the plan’s student assign-

ment discussion is based on Dr. Gordon Foster’s report. All of the

aforementioned reports were admitted into evidence and the authors

of the reports testified at the hearing and were subject to cross-

examination. Hence, much of the remedial plan was cumulative, pro-

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 43

viding the district court with but a rehashing of expert reports and tes-

timony.

To the extent that the remedial plan contained relevant evidence

appearing nowhere else in the record, we hold that the exclusion of

such evidence was harmless. According to Federal Rule of Civil Pro-

cedure 61, a "court at every stage of the proceeding must disregard

any error or defect in the proceeding which does not affect the sub-

stantial rights of the parties." Listing myriad deficiencies, objectives,

and strategies, the thirty-one page remedial plan is often short on spe-

cifics. Considering the amount of evidence presented on every aspect

of CMS’s operations during other phases of the two-month bench

trial, we cannot hold that the exclusion of the remedial plan affected

CMS’s substantial rights. See Ingram Coal Co. v. Mower, L.P., 892

F.2d 363, 366 (4th Cir. 1989) (applying Rule 61). Because the exclu-

sion of the remedial plan in no way renders the judgment below sus-

pect, the district court’s treatment of the plan cannot support reversal.

J. Conclusion

Pursuant to the foregoing, we affirm the district court’s unitary sta-

tus determination in toto. The district court’s findings on the Green

factors and the ancillary factors are bereft of clear error and we cannot

discern any error of law affecting the substantial rights of the parties.

After more than three decades of federal court supervision, CMS has

complied in good faith with the mandate of Brown embodied in the

district court’s desegregation orders to achieve a unitary school sys-

tem. The dual system has been dismantled and the vestiges of prior

discrimination have been eliminated to the extent practicable.

This is not to say that CMS is a perfect school system—it is not.

Like school systems across the nation, CMS faces an expanding pupil

population, aging facilities, and a scarcity of funds. These difficulties,

however, are not vestiges of the former de jure system and therefore

do not have constitutional implications. Considering CMS’s exem-

plary efforts in eradicating the segregated school system, we are con-

fident that de jure segregation is history.

III. Magnet Schools

I turn now to Capacchione’s challenge to CMS’s 1992 magnet

schools plan. Specifically, Capacchione contends that his daughter

44 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

Cristina was unconstitutionally denied admission to a magnet school

program on account of her race. Capacchione does not argue that race

should not have been a factor in the magnet admissions process, but

that the inflexible quotas, which operated to leave seats in these spe-

cialized schools vacant despite long waiting lists, went beyond what

was permissible under prior court orders and the Constitution.

As noted previously, CMS operated its schools in nearly perfect

racial balance for almost twenty years under a pupil assignment plan,

adopted by the board and approved by the district court in 1974,

which primarily utilized paired elementary schools, satellite atten-

dance zones, a feeder system, and three experimental "optional

schools." See Swann, 379 F. Supp. at 1103-05; J.A. XXVIII-13,536-

44. In 1991, however, CMS hired Dr. Stolee to examine racial imbal-

ance that was being caused anew by the demographic shifts and popu-

lation growth in Mecklenburg County. The result of Dr. Stolee’s

labors was a new pupil assignment plan, entitled "CMS Student

Assignment Plan: A New Generation of Excellence." This new plan

emphasized the use of magnet schools, which would allow CMS to

phase out the unpopular paired elementary schools. Magnet schools,

many of which were located in predominately black neighborhoods,

offered a specialized curriculum or innovative instructional styles not

found in the other schools in the system.

Former Superintendent Murphy oversaw implementation of the

Stolee plan and testified that the magnet program was adopted

because CMS "wanted to attract more white youngsters into the inner

city schools" in order to meet CMS’s racial-balance goals. J.A. VI-

2709. Dr. Stolee observed in his report that "Charlotte-Mecklenburg

has had a long and successful experience with mandatory school

assignments," but that in order to combat demographic shifts CMS

should adopt a plan based on voluntarism. J.A. XXXII-15,581; see

also Missouri v. Jenkins, 515 U.S. 70, 92 (1995) (Jenkins III)

("Magnet schools have the advantage of encouraging voluntary move-

ment of students within a school district in a pattern that aids desegre-

gation on a voluntary basis, without requiring extensive busing and

redrawing of district boundary lines."); J.A. XXVIII-13,796 (student

assignment plan boasting that "Charlotte, the city which prides itself

on leading the nation in integration through busing, now has the

opportunity to become the city to lead the nation in voluntary bus-

ing"). A desegregation plan using magnet schools, according to Dr.

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 45

Stolee, would "give[ ] each parent an opportunity to make a choice

between a school serving the area in which the family resides, a

school in some other area, or a school offering a very specific attrac-

tive program." J.A. XXXII-15,580. Dr. Stolee also recognized that the

magnet-centered plan would be a dramatic shift from the prior deseg-

regation plan which featured paired elementary schools, satellite

attendance zones, and a feeder system. Thus, as part of the plan, he

recommended that CMS secure approval from the district court before

making any changes. Indeed, Dr. Stolee’s "RECOMMENDATION

#1," out of forty-four, read:

THE SCHOOL BOARD, THROUGH LEGAL COUNSEL,

SHOULD APPROACH THE FEDERAL COURT TO

SECURE APPROVAL TO CHANGE THE COURT-

ORDERED DESEGREGATION PLAN.

J.A. XXXII-15,578. This recommendation was consistent with the

prior district court order directing CMS to apply to the district court

"before making any material departure" from the approved desegrega-

tion plan. Swann, 311 F. Supp. at 270; see also J.A. XXVIII-13,790

(board member requesting that Dr. Stolee "review the federal court

order" to determine if the magnet plan was permissible). However,

CMS ignored Dr. Stolee’s advice and the district court’s instruction,

choosing instead to withhold these changes in the desegregation plan

from the district court.

The crux of the problem with CMS’s magnet school plan is its

admissions process. As aptly described by the district court, it oper-

ates as follows:

At the start of the process, CMS first fills seats with prefer-

ences based on whether the applicant lives in close proxim-

ity to the school and whether the applicant has any siblings

in the school. CMS then fills the remaining seats by select-

ing students from a black lottery and a non-black lottery

until the precise racial balance is achieved.

Capacchione, 57 F. Supp. 2d at 287 (internal citations omitted). As

originally explained to the board, the plan sought a balance of sixty

percent white and forty percent black in the magnet schools with a

plus or minus fifteen percent deviation. See J.A. XXVIII-13,705.

Unfortunately, CMS opted for a strict ratio of sixty percent white and

forty percent black, and decreed in its 1992 student assignment plan

46 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

that magnet "slots reserved for one race will not be filled by students

of another race." J.A. XXXII-15,702. The result of this policy was

that if a sufficient number of blacks or whites did not apply and fill

the seats allotted to their respective races, then those seats would be

left vacant. Though some exceptions were made, Superintendent Eric

Smith testified that CMS generally adhered to the policy. See J.A.

XV-7217.

The district court appropriately examined the magnet schools

through a pre-unitary status lens, observing "that the current litigation

started not as a petition for unitary status but as a discrimination suit

arising out of Cristina Capacchione’s denial of admission to a magnet

school based on her race." Capacchione, 57 F. Supp. 2d at 284. The

district court recognized that school officials acting pursuant to a

desegregation order were immune from liability for actions taken con-

sistent with that order. See Fowler v. Alexander, 478 F.2d 694, 696

(4th Cir. 1973) (law enforcement officials who confined the plaintiff

pursuant to a court order were immune from § 1983 suit); see also

Wolfe v. City of Pittsburgh, 140 F.3d 236, 240 (3d Cir. 1998) (offi-

cials acting pursuant to court order establishing quotas for promotions

are not subject to § 1983 liability); Turney v. O’Toole, 898 F.2d 1470,

1472-73 (10th Cir. 1990) (holding that so long as a court order is

facially valid, officials acting pursuant to that order are immune from

a damages suit); Coverdell v. Department of Soc. & Health Servs.,

834 F.2d 758, 764 (9th Cir. 1987) (social worker is immune from

§ 1983 liability when executing a facially valid court order). How-

ever, the district court concluded that the use of magnet schools had

never been approved and that the rigid racial limitations of the magnet

admissions policy were "beyond the scope of the Court’s mandate."

Capacchione, 57 F. Supp. 2d at 285. The district court then subjected

the admissions policy to strict scrutiny, holding that the policy vio-

lated the Equal Protection Clause of the Fourteenth Amendment

because it was not narrowly tailored to achieve the compelling state

interest of remedying past discrimination. This court reviews the dis-

trict court’s findings of fact for clear error and its legal conclusions

de novo. See Rutherford Hosp., Inc. v. RNH Partnership, 168 F.3d

693, 698 (4th Cir. 1999).

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 47

Volume 2 of 4

48 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

A. Immunity

I begin with the question of whether CMS officials are entitled to

immunity because their actions in adopting and implementing the

Stolee magnet program in 1992 were taken pursuant to and were con-

sistent with the desegregation orders and opinions issued by the dis-

trict court and Supreme Court in the early 1970s. In the main, CMS

asserts that it is entitled to immunity for its act of implementing the

1992 magnet schools program without court approval because the

prior desegregation orders authorized the use of "optional schools"

and a racial balance goal for filling them. Like the district court, I

conclude that the magnet schools plan, as implemented, was not

authorized by the prior court orders and that, for the reasons stated

hereafter, the CMS officials are not entitled to immunity.

1. Magnet-Centered Program

As an initial matter, I note that prior court orders did not counte-

nance implementation of a desegregation plan based primarily on

magnet schools. Never was CMS given carte blanche to adopt such

a program absent court review and approval. CMS counters that a

magnet-centered plan was permissible insofar as the district court

approved the establishment of a few experimental optional schools in

1974 as part of a plan utilizing paired elementary schools, satellite

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 49

attendance zones, and a feeder system. See Swann, 379 F. Supp. at

1103-04. What CMS fails to recognize is that optional schools were

but a small part of the plan approved in 1974, likely because the dis-

trict court was very skeptical about their efficacy as a desegregation

technique. In the course of its order, the district court noted that the

history of optional schools was marked by "failure" in a number of

regards and warned CMS to be cautious in creating them. Id. at 1103.

Consequently, CMS began with three experimental optional schools

in 1974 and increased the number to only six by the early 1990s.

The optional schools created in the wake of the 1974 order placed

more "emphasis on open or traditional education than normally

offered in conventional schools." J.A. XXXII-15,683. The optional

schools’ traditional programs "offer[ed] an enriched and highly struc-

tured education," J.A. XXXII-15,732, whereas the open programs

offered a "student-centered" environment that "encouraged [students]

to take responsibility for their behavior and for their own learning."

J.A. XXXII-15,733. The optional schools approved by the 1974 order

were not as diverse and specialized as the magnet school program

implemented in 1992. The program suggested by Dr. Stolee offered

schools specializing in traditional and open educational methods and

created specialized schools featuring the Montessori method; science,

mathematics, and technology; foreign language immersion; learning

immersion programs for young children; enhanced education for aca-

demically gifted students; and communication studies programs. See

J.A. XXXII-15730-41. However, both the optional schools and the

magnet schools were designed to achieve the same end result—the

attraction of students to a school in a particular location by using a

specialized curriculum or teaching technique. Thus, Dr. Stolee, in rec-

ommending the magnet program in 1992, observed that CMS, via its

optional schools, "had some experience in such specialized schools."

J.A. XXXII-15,580.

Despite the district court’s 1970 directive that CMS obtain court

approval for material modifications to the court-imposed desegrega-

tion plan, the court’s skepticism of optional schools, the approval pro-

cess that took place in the ensuing years, and Dr. Stolee’s specific

recommendation in 1992 that CMS seek court approval for the new

magnet schools program, CMS inexplicably chose not to return to the

district court to obtain approval of the magnet schools plan. At appel-

50 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

late argument before the entire court, CMS contended that the lan-

guage in the 1970 order requiring court approval for material

departures was superceded by the 1974 order. CMS points to no lan-

guage in the 1974 order supporting this argument and its repeated

citations to and reliance on pre-1974 orders regarding other aspects

of this case further call into doubt this new line of argument. More-

over, the 1974 order made clear that "[e]xcept as modified herein, all

previous orders of court remain in effect." Swann, 379 F. Supp. at

1105 (emphasis added). Hence, the 1970 order’s requirement that

CMS obtain leave of court "before making any material departure

from any specific requirement set out in the order" remained binding

on school officials. Swann, 311 F. Supp. at 270.

Nevertheless, I recognize that magnet schools are frequently used

by school districts under a desegregation order, see Milliken v. Brad-

ley, 433 U.S. 267, 272 (1977) (Milliken II) (approving of magnet

schools as a desegregation tool), and that the district court "encour-

aged [CMS officials] to use their full ‘know-how’ and resources to

attain" a desegregated school system, Swann 311 F. Supp. at 269.

Indeed, the plaintiff-intervenors’ own expert has touted magnet pro-

grams as an "effective way to attract sizable numbers of white stu-

dents to predominately minority schools." David J. Armor, Forced

Justice: School Desegregation and the Law 223 (1995). Thus, a mag-

net schools program, properly implemented, can no doubt be an effec-

tive desegregation tool. However, a conclusion that CMS was free to

adopt any form of magnet school program it might wish to see in

place does not flow from this general proposition.

I must forcefully disagree with CMS’s contention that the mention

of optional schools in the 1974 order provided legal cover for the

implementation of an assignment plan depending almost entirely on

magnet schools. The portions of the district court order authorizing

"optional schools" could perhaps be read in isolation as authorizing

CMS’s use of "magnet schools" in more diverse, specialized areas,

but the order did not authorize CMS to unilaterally abandon pairing,

satellites, and feeders in exchange for a magnet-centered plan.

Despite the import of the 1974 order, and without even a nod to the

district court, CMS in 1992 abandoned the approved desegregation

plan in favor of magnets. By the end of the decade CMS had created

fifty-eight magnet programs—a far cry from the six optional schools

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 51

in operation in the school year just prior to the adoption of the Stolee

plan. See J.A. XXXIV-16,721-30. CMS describes this abandonment

of the prior plan as but an expansion of the approved use of optional

schools. Clearly, this "expansion" was in reality a substantial restruc-

turing and cannot be squared with the unambiguous directives of prior

orders.

2. Strict Ratios

Even if I could conclude that a magnet-centered plan was permitted

under prior court orders, the plan implemented by CMS is nonetheless

ultra vires because it combines a rigid ratio of sixty percent white and

forty percent black with a policy decreeing that "slots reserved for one

race will not be filled by students of another race." J.A. XXXII-15,702.9

In 1970, the district court issued a desegregation order to CMS, not-

ing that the order was "not based upon any requirement of ‘racial bal-

ance.’" Swann, 311 F. Supp. at 267 (emphasis added). The court

reiterated "that efforts should be made to reach a 71-29 ratio in the

various schools so that there will be no basis for contending that one

school is racially different from the others, but . . . that variations

from the norm may be unavoidable." Id. at 267-68 (internal quotation

marks omitted). On appeal, the Supreme Court affirmed the guide-

lines set forth in the district court’s order and also addressed the sub-

ject of racial quotas. See Swann, 402 U.S. at 23-25.

With regard to the district court’s goal of achieving a racial balance

of seventy-one percent white and twenty-nine percent black, the Court

took care to note that "[t]he constitutional command to desegregate

schools does not mean that every school in every community must

always reflect the racial composition of the school system as a

whole." Swann, 402 U.S. at 24. But central to the issue now before

us, the Court held that had the district court

9

My colleagues in the majority on this issue eloquently argue that

CMS was permitted to take race-conscious measures when complying

with desegregation orders. With this I agree—a school district under

order to desegregate must of course take race into account when assign-

ing students. The primary question regarding the magnet program, how-

ever, is whether CMS ran afoul of the Supreme Court’s prohibitions

against inflexible ratios, not whether race-conscious measures are per-

missible.

52 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

require[d], as a matter of substantive constitutional right,

any particular degree of racial balance or mixing, that

approach would be disapproved and we would be obliged to

reverse.

Id. See also Winston-Salem/Forsyth County Bd. of Educ. v. Scott, 404

U.S. 1221, 1227 (1971) (Burger, C.J., in chambers) (describing as

"disturbing" the school board’s "understanding that it was required to

achieve a fixed ‘racial balance’ that reflected the total composition of

the school district"). The goal was upheld, only upon the condition

that "use made of mathematical ratios was no more than a starting

point in the process of shaping a remedy, rather than an inflexible

requirement." Swann, 402 U.S. at 25.

Just two years after the Supreme Court, in this very case, made

clear that strict ratios were unacceptable, the district court, in a care-

fully worded order permitting CMS to create optional schools,

approved an intentionally flexible enrollment formula of "about or

above 20% black students." Swann, 379 F. Supp. at 1104 (emphasis

added). The district court recognized that the "actual enrollment of the

optional school may have to be guided by its racial composition and

by the number drawn from each other school area, not by consider-

ations of space and program only." Id. at 1108. Additionally, the dis-

trict court’s order directed that "[r]eassignments to optional schools

must not jeopardize the racial composition of any other school." Id.

These modifications, however, at no time set a racial ratio of the type

disapproved of by the district court in its earlier orders and by the

Supreme Court in its 1971 review of the district court’s 1970 order.10

10

I also disagree with the assertion that the Supreme Court’s disap-

proval of inflexible racial quotas as a desegregation tool is solely a limi-

tation on a district court’s remedial power. While the Swann Court did

imply that a school board, exercising its discretion, could "conclude . . .

that in order to prepare students to live in a pluralistic society each

school should have a prescribed ratio of Negro to white students reflect-

ing the proportion for the district as a whole," 402 U.S. at 16, this is cer-

tainly not the state of the law today nor was it the state of the law in 1992

when the magnet plan was adopted. At the very least, the Supreme Court

decisions in Wygant v. Jackson Board of Education, 476 U.S. 267, 283

(1986) (plurality opinion applying strict scrutiny to a school board’s

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 53

CMS asserts that the inflexible racial limits adopted in the 1992

magnet-centered plan were countenanced by the 1974 order discuss-

ing optional schools.11 In making this argument, CMS ignores the dis-

trict court’s choice of words in the 1974 order ("about or above 20%

black students"), see Swann, 379 F. Supp. at 1104, and points to an

attachment to the order designated as Exhibit A. This exhibit, a pro-

posed pupil assignment plan drafted by CMS and a citizens advisory

group, called for optional school enrollment "at or above approxi-

mately a 20% black ratio." Id. at 1108 (emphasis added). From this

language, CMS concludes that strict quotas were permitted. CMS’s

concentration on just a portion of the relevant language ("at or

above") edits out the word "approximately," which does not suggest

rigidity. Even if Exhibit A could be read as requiring rigid quotas,

CMS disregards the fact that the district court approved the guidelines

"subject to the further conditions stated" in the 1974 order. Id. at

1103. With the Supreme Court’s admonition about strict quotas in

mind, the district court chose its language carefully, observing that

optional schools should "have about or above 20% black students."

Id. at 1104. Hence, it is the district court’s understanding and modifi-

cation of the pupil assignment plan that controls, not CMS’s tortured

reading. Under a just construction, it is clear that the 1974 order did

not approve a use of race to the extent that CMS could deny eager

race-based layoff program), and City of Richmond v. J.A. Croson Co.,

488 U.S. 469, 494 (1989) (applying strict scrutiny to a racial set-aside

program), should have alerted CMS that it could not rely on the "pluralis-

tic society" passage from the 1971 opinion when crafting a magnet

admissions policy that was outside the scope of the desegregation orders.

By 1992 such a use of race was not merely discretionary. Prevailing case

law required that the racial classification be narrowly tailored to achieve

a compelling state interest. See J.A. Croson Co., 488 U.S. at 494. And

as demonstrated in section III.B, the admissions policy was in no sense

narrowly tailored.

11

In contending that rigid ratios were not used by CMS, several of my

colleagues observe that not a single magnet school achieved the precise

ratio of sixty percent white students and forty percent black students.

This is not surprising insofar as the policy was designed to leave seats

vacant. The very act of leaving seats vacant will compel a deviation from

the stated goal. However, this in no way undermines a finding of rigidity.

Instead, such a result illustrates the policy’s inflexibility.

54 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

applicants an otherwise available slot in a magnet program solely on

account of the applicant’s race. Both the district court and the

Supreme Court in this very case consistently rejected the use of such

rigid racial quotas.

I also find no authorization for the board’s adoption of the magnet

schools program in the Supreme Court’s 1971 approval in Swann of

a majority-to-minority transfer policy that would prevent, for exam-

ple, an African-American child in a majority white school from trans-

ferring to a majority black school because the transfer would increase

the degree of segregation in the affected schools. See Swann, 402 U.S.

at 26. Because the majority-to-minority transfer policy, like the mag-

net admissions policy, prevents a child from enrolling in the public

school of his choice, CMS argues that the magnet admissions policy

is permissible. By definition, however, CMS’s specialized magnet

programs are not tantamount to conventional public schools. While a

child denied a transfer from one conventional school to another still

receives the same general education, a child denied admission to a

specialized magnet program does not receive a similar benefit in a

conventional school. In other words, an education in a magnet school

offering, for example, foreign language immersion, is not inter-

changeable with an education in a conventional public school.12

Hence, the effect of the magnet admissions policy is far different from

the majority-to-minority transfer policy.

Unfortunately, the end result of the challenged magnet schools

admissions policy is placement of racial quotas ahead of educating

students—an inappropriate result nowhere countenanced in the dis-

trict court’s orders or in the Supreme Court’s desegregation decisions.

Cf. Wright v. Council of the City of Emporia, 407 U.S. 451, 463

(1972) (holding that courts should not approve a desegregation plan

12

I recognize that parents might perceive that one "fungible" conven-

tional school is superior to another because of a number of intangibles

such as the reputation of teachers or the newness of facilities. However,

these "personal preferences" do not rise to a level of constitutional signif-

icance. See Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d

358, 380 n.43 (W.D. Ky. 2000). Magnet schools, on the other hand, are

a completely different animal and therefore the admissions process used

must be more closely scrutinized.

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 55

if the plan offers "‘quality education’ to some children, [but] has a

substantial adverse effect upon the quality of education available to

others"). In fact, Brown I struck down segregated schooling because

children were denied equal educational opportunities. See Brown I,

347 U.S. at 493. While school boards were permitted to use race in

assigning students in order to convert to a unitary system, see North

Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 46 (1971) (hold-

ing that the use of race in pupil assignments is "one tool absolutely

essential to fulfillment of [a school board’s] constitutional obligation

to eliminate existing dual school systems"), neither the Brown opin-

ions nor the district court orders implementing them ever contem-

plated that remedial use of race, like the old dual system, would deny

some students educational opportunities solely because of their race.

See Brown I, 347 U.S. at 493 (holding that an educational opportunity

provided by the state "must be made available to all on equal terms");

see also Bakke, 438 U.S. at 305 (Powell, J.) ("When a classification

denies an individual opportunities or benefits enjoyed by others solely

because of his race or ethnic background, it must be regarded as sus-

pect.").13 Indeed, in bringing suit in 1965, the Swann plaintiffs, in

accord with the Brown opinions, simply asked that CMS convert "into

a unitary nonracial system wherein the educational opportunities

offered by [CMS] are made available to students without regard to

race or color." J.A. XXXIII-16,162 (original complaint filed by the

Swann plaintiffs).

An admissions policy that uses rigid racial quotas to deny an avail-

able, unclaimed slot in a specialized magnet school to a child,

whether black or white, on account of the child’s race cannot be

squared with the district court’s orders or the Supreme Court’s deseg-

regation decisions. Since 1971 it has been perfectly clear that mathe-

matical ratios may be used as "a starting point in the process of

shaping a remedy," but not as "an inflexible requirement." See Swann,

13

Though the present case was brought on behalf of a white child

denied admission to a magnet school, the policy as written could have

just as easily denied a black child admission to the magnet school. See

Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d 358, 377

(W.D. Ky. 2000) (racial quota in a magnet school resulting in black stu-

dents being denied admission even though the school was several hun-

dred students below capacity).

56 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

402 U.S. at 25. The district court took heed of this admonition in 1974

when it permitted the creation of optional schools with "about or

above 20% black students." Swann, 379 F. Supp. at 1104 (emphasis

added). However, CMS in 1992 ran afoul of the rule announced by

the Supreme Court when it crafted strict racial ratios designed to

leave open magnet school seats empty, rather than permitting wait-

listed students to compete for the slots. Because nothing short of intel-

lectual gymnastics can transform the clear meaning of the Supreme

Court’s Swann opinion or the district court’s 1974 order into vehicles

countenancing the rigid use of racial ratios, I agree with the district

court that the policy is ultra vires and that CMS officials are not enti-

tled to immunity.

B. Equal Protection

Having determined that the CMS officials are not entitled to immu-

nity for the implementation of the strict race-based magnet school

assignment policy, I now turn to the question of whether the officials’

act of implementing the policy without prior court approval, albeit

while under an order to desegregate schools, runs afoul of the Equal

Protection clause. I would hold that it does.

Under the Fourteenth Amendment, "[n]o State shall . . . deny to any

person within its jurisdiction the equal protection of the laws." U.S.

Const. amend XIV, § 1. By guaranteeing equal protection, the

Amendment recognizes that "[d]istinctions between citizens solely

because of their ancestry are by their very nature odious to a free peo-

ple whose institutions are founded upon the doctrine of equality."

Hirabayashi v. United States, 320 U.S. 81, 100 (1943). The Supreme

Court has refused to make exceptions for so-called "benign" racial

classifications, see Adarand Constructors, Inc. v. Pena, 515 U.S. 200,

227 (1995), and the Court has made clear that "all racial classifica-

tions, imposed by whatever federal, state, or local governmental actor,

must be analyzed by a reviewing court under strict scrutiny," id.14

14

The Supreme Court’s application of strict scrutiny has indeed been

unwavering. In Adarand, the Court refused to apply a lesser standard of

scrutiny to racial classifications enacted by Congress. Though Congress

itself is charged with enforcing the Fourteenth Amendment’s promise of

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 57

To survive strict scrutiny, CMS’s use of race in the magnet admis-

sions program "must (1) serve a compelling governmental interest and

(2) be narrowly tailored to achieve that interest." Tuttle v. Arlington

County Sch. Bd., 195 F.3d 698, 704 (4th Cir. 1999), cert. dismissed,

120 S. Ct. 1552 (2000). CMS avers that the magnet admissions policy

was adopted to remedy the effects of the dual school system previ-

ously operated in Mecklenburg County. Without question, remedying

equal protection via "appropriate legislation," U.S. Const. amend. XIV,

§ 5, the Supreme Court in interpreting the Fifth Amendment held Con-

gress to the same rigorous standards applicable to states and localities.

See Adarand, 515 U.S. at 224 (observing "that any person, of whatever

race, has the right to demand that any governmental actor subject to the

Constitution justify any racial classification subjecting that person to

unequal treatment under the strictest judicial scrutiny").

CMS and the Swann plaintiffs contend that strict scrutiny does not

apply when a school district is under court order to dismantle the dual

system. Such an approach, however, ignores two of the three pillars of

Supreme Court’s equal protection analysis: skepticism of all racial pref-

erences and consistent application of heightened scrutiny regardless of

the race of the person burdened or benefitted. See Adarand, 515 U.S. at

223-24. Contrary to the assertions of CMS and the Swann plaintiffs, the

approach I would adopt does not deprive a school board under court

order of the necessary tools required to establish a unitary school system.

The point of carefully examining the interest asserted by the gov-

ernment in support of a racial classification, and the evidence

offered to show that the classification is needed, is precisely to

distinguish legitimate from illegitimate uses of race in govern-

mental decisionmaking. . . . Strict scrutiny does not "trea[t] dis-

similar race-based decisions as though they were equally

objectionable"; to the contrary, it evaluates carefully all govern-

mental race-based decisions in order to decide which are consti-

tutionally objectionable and which are not.

Id. at 228 (internal citations omitted) (alteration in original). This careful

evaluation demanded by the Supreme Court will preserve inviolate

proper desegregation remedies while ensuring that in the process of

desegregating a government actor does not stand equal protection on its

head by denying some students educational opportunities solely because

of their race.

58 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

the effects of past discrimination is a compelling state interest. See

City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).

In reviewing whether a policy is narrowly tailored to serve a com-

pelling state interest, a court considers factors such as:

(1) the necessity of the policy and the efficacy of alterna-

tive race neutral policies;

(2) the planned duration of the policy;

(3) the relationship between the numerical goal and the

percentage of minority group members in the relevant popu-

lation;

(4) the flexibility of the policy, including the provision of

waivers if the goal cannot be met; and

(5) the burden of the policy on innocent third parties.

See United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality

opinion). Like the district court, I would hold that the CMS magnet

admissions policy is not narrowly tailored to the compelling interest

of remedying past discrimination.

First, the magnet admissions policy was not necessary to comply

with the court’s order to dismantle the dual educational system. CMS

had a number of options available to it that would not have deprived

children, solely on account of their race, an available seat in a special-

ized magnet program. Instead, CMS opted for rigid racial limits that

were clearly prohibited by the district court’s orders and the Supreme

Court’s desegregation decisions. Nor is there evidence in the record

that added flexibility or a waiver provision would have undermined

the use of magnet schools as a desegregation technique. The evidence

simply does not reveal that the magnet admissions policy used was

the only efficacious option available to CMS.

Second, this circuit has emphasized that "[t]he use of racial prefer-

ences must be limited so that they do not outlast their need; they may

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 59

not take on a life of their own." Hayes v. North State Law Enforce-

ment Ass’n, 10 F.3d 207, 216 (4th Cir. 1993) (internal quotation

marks omitted). Like the district court, I can find "no mention of the

duration that CMS would use racially segregated lotteries, vacancies,

and waiting lists." Capacchione, 57 F. Supp. 2d at 290. In light of

CMS’s desire to remain under court order for the indefinite future, see

supra Part II.H, the lack of a duration for the magnet admissions pol-

icy is not surprising. CMS was apparently content, in a number of

instances, to leave available magnet seats empty despite the waiting

lists.

Third, I agree with the district court that "the 60-40 numerical goal

is related to the relevant population, i.e., the racial composition of

schoolchildren in CMS." Capacchione, 57 F. Supp. 2d at 289. How-

ever, there is no evidence that CMS considered the "practicability of

achieving this precise ratio in every magnet school," id. at 290, or the

very real danger that magnet schools would be underutilized because

seats would be left open despite an abundance of applicants. The

result of the admissions policy is but another indication that the CMS

administration, in the words of former Superintendent Murphy, "was

more focused on balance than on [educational] outcomes." J.A. VI-

2687.

Fourth, the district court aptly described the inflexibility in the

magnet admissions policy: "The Court is hard-pressed to find a more

restrictive means of using race than a process that results in holding

seats vacant while long waiting lists full of eager applicants are virtu-

ally ignored." Capacchione, 57 F. Supp. 2d at 289. The policy is

indeed "restrictive," but it also borders on obduracy. The policy con-

tained no written waiver provision which, once again, shows a lack

of concern that these highly specialized schools could and would be

underutilized.

Finally, the innocent parties affected are children denied magnet

slots solely because of their race and parents who "must wait for

months without knowing where their children eventually will be

placed." Id. at 290. A child’s education is one of the greatest concerns

of the family, and CMS unnecessarily causes much agonizing when

it places children of the "wrong color" on waiting lists while it

60 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

actively recruits children of the "right color" to fill empty magnet

school seats.

In sum, the magnet admissions policy is not narrowly tailored. The

policy is not necessary to dismantle the de jure system, is for an

unlimited duration, provides for virtually no flexibility, and burdens

innocent children and their families. The policy quixotically purports

to establish equal protection of the laws in the realm of public educa-

tion by denying children an equal opportunity to compete for open,

unclaimed slots in CMS’s extraordinary magnet schools. The with-

holding of seats from white students after all African-American chil-

dren wishing seats have been given them is most certainly not a

narrowly tailored program. Such a result calls to mind why strict scru-

tiny is used in the first place: "Of all the criteria by which men and

women can be judged, the most pernicious is that of race." Maryland

Troopers Ass’n v. Evans, 993 F.2d 1072, 1076 (4th Cir. 1993). Teach-

ing young children that admission to a specialized academic program

with available seats is contingent on their race is indeed pernicious,

and CMS’s magnet admissions policy can in no way be described as

narrowly tailored to achieve the compelling interest of remedying past

discrimination.15

C. Award of Nominal Damages

After finding a constitutional violation in the magnet schools, the

district court held CMS "nominally liable in the amount of one dol-

lar." Capacchione, 57 F. Supp. 2d at 290. CMS argues that the nomi-

nal damages awarded were unjustified because the actions resulting

in a constitutional violation were taken in good faith. CMS fears that

15

CMS also presented diversity as an alternative compelling state inter-

est. See Capacchione, 57 F. Supp. 2d at 289. In this circuit, it is unsettled

whether diversity may be a compelling state interest. See Eisenberg v.

Montgomery County Pub. Schs., 197 F.3d 123, 130 (4th Cir. 1999), cert.

denied, 120 S. Ct. 1420 (2000). Assuming without deciding whether

diversity may be a compelling state interest, I would hold that the magnet

admissions policy again fails because it is not narrowly tailored. Whether

the interest is remedying past discrimination or diversity, the admissions

policy as currently written is in no sense narrow. It is difficult to imagine

any interest for which the magnet admissions policy is narrowly tailored.

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 61

the damages award will "open the door to numerous suits by other

students who could claim that they did suffer actual damages and

argue that collateral estoppel prevents CMS from denying liability."

Defendants-Appellants’ Brief at 24. Regarding nominal damages, the

Supreme Court has observed:

Common-law courts traditionally have vindicated depriva-

tions of certain "absolute" rights that are not shown to have

caused actual injury through the award of a nominal sum of

money. By making the deprivation of such rights actionable

for nominal damages without proof of actual injury, the law

recognizes the importance to organized society that those

rights be scrupulously observed; but at the same time, it

remains true to the principle that substantial damages should

be awarded only to compensate actual injury or, in the case

of exemplary or punitive damages, to deter or punish mali-

cious deprivations of rights.

Carey v. Piphus, 435 U.S. 247, 266 (1978) (nominal damages avail-

able for denial of procedural due process rights) (footnote omitted);

see also Price v. City of Charlotte, 93 F.3d 1241, 1246 (4th Cir. 1996)

(stating that "the rationale for the award of nominal damages being

that federal courts should provide some marginal vindication for a

constitutional violation").

In the present case there was indeed a constitutional violation.

CMS ran afoul of the Equal Protection Clause when it adopted a strict

racial quota designed to deny an available, unclaimed slot in a spe-

cialized magnet school to a child on account of the child’s race. In

order to recover nominal damages, Cristina Capacchione need not

prove that absent the unconstitutional policy she would have been

admitted to the magnet program. The injury in the present case is not

the ultimate inability to enroll in the magnet school, but the inability

to compete for seats on an equal basis. See Northeastern Florida

Chapter of the Associated Gen. Contractors v. City of Jacksonville,

508 U.S. 656, 666 (1993). Though the two open "black seats" at the

Olde Providence magnet school were eventually awarded to white

children, the fact remains that the official magnet admissions policy

prohibited children like Cristina from competing for the open slots.

In fact, CMS left the two available "black seats" at Olde Providence

62 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

unfilled for most of the summer while Cristina and over one hundred

other white children languished on a waiting list. In Orwellian fash-

ion, CMS marketed Olde Providence as "a school to benefit every-

one," but in reality permitted only a select few to compete for the

benefits bestowed.

The nominal award in this case recognizes the importance of equal

protection under the law and provides some measure of vindication.

As for CMS’s worry about collateral estoppel, liability has already

been established, and vacating the nominal damages would not

change this. Consequently, I would affirm the district court’s award

of nominal damages.

IV. Injunctive Relief

After recounting the unitary status determination and the constitu-

tional violation in the magnet admissions policy, the district court

enjoined "CMS from any further use of race-based lotteries, prefer-

ences, and set-asides in student assignment." Capacchione, 57 F.

Supp. 2d at 292. CMS challenges the district court’s injunction as

unwarranted and overbroad. We review the grant of a permanent

injunction for an abuse of discretion. See Tuttle, 195 F.3d at 703.

Before a court grants a permanent injunction, the court must first

find necessity—a danger of future violations. See Connecticut v. Mas-

sachusetts, 282 U.S. 660, 674 (1931) (stating that an injunction "will

not be granted against something merely feared as liable to occur at

some indefinite time in the future"); United States v. Oregon State

Med. Soc’y, 343 U.S. 326, 333 (1952) ("All it takes to make the cause

of action for relief by injunction is a real threat of future violation or

a contemporary violation of a nature likely to continue or to recur.");

Bloodgood v. Garraghty, 783 F.2d 470, 475 (4th Cir. 1986) ("An

injunction is a drastic remedy and will not issue unless there is an

imminent threat of illegal action."). Though a flexible tool, an injunc-

tion may not be used for "punishment or reparations for . . . past vio-

lations." Oregon State Med. Soc., 343 U.S. at 333.

The district court’s finding of a threat of future violations centered

on CMS’s offering of diversity as a compelling state interest. This

interest was offered after the district court decided that the admissions

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 63

policy should be reviewed using strict scrutiny. Because in this circuit

it is unsettled whether diversity may be a compelling state interest,

see Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123, 130

(4th Cir. 1999), cert. denied, 120 S. Ct. 1420 (2000), it was improper

for the district court to base its injunction on CMS’s unsuccessful

defense of the policy. At this point, we can discern nothing in the

record indicating that CMS will ignore the district court order and

continue to use race in an unconstitutional manner in the operation of

the magnet schools or other schools in the system. CMS represented

to the district court both during and after trial that it had no intention

of continuing the magnet plan. In moving for a stay of the injunction,

CMS did not ask that the injunction be stayed as to the magnet

schools, and was prepared to comply immediately with the court’s

order. CMS requested a stay as to the non-magnet schools because

over 50,000 students were likely to be reassigned in a short period of

time. Moreover, there was no evidence presented at trial about what

CMS proposed to do as a unitary school system. A post-unitary status

student assignment plan was never given to the district court, and the

evidence simply does not indicate that "there is an imminent threat of

illegal action." Bloodgood, 783 F.2d at 475.

A finding of unitariness brings a fresh start for the school board—

an opportunity to operate a school system in compliance with the

Constitution. The prospective relief awarded by the district court is in

tension with the resumption of local control, which is one of the ulti-

mate goals of any desegregation order. See Freeman, 503 U.S. at 490.

Freeing the school district from one court order only to shackle it with

another was here an abuse of the district court’s discretion, and we

therefore vacate the grant of injunctive relief.

V. Discovery Sanctions

The district court sanctioned CMS for failing to supplement its

answers to interrogatories that sought a list of witnesses. We review

the district court’s management of discovery under the abuse of dis-

cretion standard. See Anderson v. Foundation for Advancement, Educ.

& Employment of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998).

The record reveals that no list of fact witnesses was presented to the

plaintiff-intervenors until five days before the trial date. At that time,

CMS presented a list of 174 witness, which was later cut to twenty-

64 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

six. The plaintiff-intervenors moved for sanctions and the district

court granted the motion in part. The district court continued the trial

for one week so that the plaintiff-intervenors could depose the newly

disclosed witnesses, and the court held CMS accountable for the fees

and expenses of these depositions.

We have developed a four-part test for a district court to use when

determining what sanctions to impose under Federal Rule of Civil

Procedure 37. Specifically, "[t]he court must determine (1) whether

the non-complying party acted in bad faith, (2) the amount of preju-

dice that noncompliance caused the adversary, (3) the need for deter-

rence of the particular sort of non-compliance, and (4) whether less

drastic sanctions would have been effective." Id. An examination of

the four factors reveals no abuse of discretion by the district court.

First, there is ample evidence of bad faith. Early in the case, the

plaintiff-intervenors presented CMS with an interrogatory asking for

disclosure of trial witnesses. In response to the interrogatory, CMS

stated that it would provide appropriate information concerning wit-

nesses at the time and in the manner specified by the district court.

The plaintiff-intervenors moved to compel discovery, and the court

agreed with CMS that the request was premature. However, the court

instructed CMS to "supplement its responses [to the interrogatories],

as it promised, when such information becomes known." J.A. I-195.

As an excuse for its untimely disclosure of fact witnesses, CMS relies

on the district court’s pre-trial order, which provides that "[a] witness

list containing the name of every proposed witness" should be filed

with the court on the first day of trial. J.A. I-150. This provision of

the pre-trial order was clearly for the court’s convenience and could

not reasonably be interpreted to apply to disclosures to the other par-

ties. Besides, even if such an interpretation were reasonable, the dis-

trict court’s command to supplement interrogatories superceded the

pre-trial order. Accordingly, bad faith is evident.

Second, the presentation of such a lengthy witness list on the eve

of trial to the plaintiff-intervenors was prejudicial. Without the action

of the court, the plaintiff-intervenors would have had no opportunity

to depose the witnesses, much less properly prepare for trial. Thus,

CMS’s failure to supplement interrogatories was prejudicial.

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 65

Third, such non-compliance with the district court’s orders cer-

tainly needed to be deterred. The district court’s condonation of

CMS’s bad faith at a time so close to the beginning of trial could have

encouraged repetition of improper conduct. As found by the district

court, the record indicates that the failure to supplement interrogato-

ries was not the first time CMS "was lacking in candor in disclosing

relevant and important information." J.A. I-305. Hence, deterrence

was essential to a proper management of this case.

Finally, less drastic sanctions would not have been effective. Per-

mitting the plaintiff-intervenors to depose witnesses and requiring

CMS to pay fees and expenses for the depositions was appropriate.

CMS was fortunate to receive such a light sanction, and it is doubtful

whether lesser measures would have had any effect on CMS’s con-

duct.

In sum, the discovery sanctions imposed did not amount to an

abuse of the district court’s discretion.

VI. Attorney Fees

CMS argues that the district court erred in awarding attorney fees

to the plaintiff-intervenors. While conceding that Grant is entitled to

fees if the district court’s unitary status finding is upheld, CMS argues

that Capacchione cannot be a prevailing party on this issue. CMS also

challenges Capacchione’s receipt of fees based on the district court’s

magnet schools ruling because (1) Capacchione received only nomi-

nal damages, and (2) young Capacchione would not have been admit-

ted to the magnet program even if race was not a factor insofar as her

lottery number was so high. The district court’s decision to award

attorney fees is reviewed for an abuse of discretion. See Hitachi

Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 631 (4th Cir. 1999).

I would affirm.

A. Attorney Fees for Unitary Status

1.

In my view, the plaintiff-intervenors are entitled under § 1988 to

attorney fees for their successful litigation of the unitary status issue.

66 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

Indeed, CMS has conceded that if we upheld the declaration of uni-

tary status, Grant would be entitled to attorney fees.

Unlike Capacchione, the Grant intervenors were granted

declaratory and injunctive relief related to the issues of uni-

tary status and CMS’ magnet school admission policies.

Therefore, the entitlement of the Grant intervenors to

recover attorneys’ fees is tied directly to the merits of those

claims.

CMS’s Brief at 39-40. Surprisingly, despite CMS’s concession, a

majority of this court vacates the award of fees to both Capacchione

and Grant.

By obtaining a declaration of unitary status, the Grant plaintiffs,

along with Capacchione, finished what the original Swann plaintiffs

started. If we deny the plaintiff-intervenors the ability to be compen-

sated in a situation such as this—where an incredible amount of legal

work is required and the board, for improper reasons, clings to the

court’s order—then we give to litigants like the Swann plaintiffs

effective control over the decision of "when" or even "if" a unitary

status hearing will be sought because they would be the only ones

who could ever obtain reimbursement for their legal fees. The practi-

cal consequences are scarcely more apparent than in this case, where

the only party ruled entitled to obtain attorney fees for finishing the

job was opposed to seeing unitary status declared. This, coupled with

the fact that the plaintiff-intervenors received a court order in their

favor on the unitary status question as a continuation of the original

§ 1983 action, leaves me at a loss to see how the district court’s award

of attorney fees to them under § 1988 can be reversed.

Under 42 U.S.C.A. § 1988(b) (West Supp. 2000), "[i]n any action

or proceeding to enforce a provision of [§ 1983 and other civil rights

laws] . . . the court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s fee as part of the

costs." To be considered a prevailing party, a party must "succeed on

any significant issue in litigation which achieves some of the benefit

the parties sought in bringing suit." Farrar v. Hobby, 506 U.S. 103,

109 (1992) (internal quotation marks omitted).

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 67

This case began in 1965 as a § 1983 action with the Swann plain-

tiffs seeking conversion of CMS "into a unitary nonracial system

wherein the educational opportunities offered by [the board] are made

available to students without regard to race or color." J.A. XXXIII-

16,162 (original Swann complaint commencing an action under

§ 1983); see also Monell v. Department of Social Servs., 436 U.S.

658, 697 (1978) (observing that school desegregation actions "have

almost without exception been § 1983 suits"). In essentially a continu-

ation of what was begun in 1965, Capacchione, believing that CMS

had established a unitary school system, brought suit pursuant to

§ 1983 and prayed that the district court enter a declaration of unitary

status. See J.A. I-110 (Capacchione amended complaint seeking a

declaration of unitary status); see also JA. I-140 (Grant complaint

seeking a declaration of unitary status); cf. Waste Mgmt. Holdings,

Inc. v. Gilmore, No. 00-1185, 2001 WL 604325 (4th Cir. June 4,

2001) (§ 1983 action seeking declaratory relief). Shortly after Capac-

chione filed suit, the Swann plaintiffs moved to reactivate Swann and

to consolidate it with Capacchione’s action. The district court granted

the Swann plaintiffs’ motion and later permitted Capacchione to inter-

vene in Swann. Grant, who also sought a declaration of unitary status,

then moved to intervene in the consolidated action, and the district

court granted his motion. After months of litigation, the plaintiff-

intervenors succeeded in having CMS declared unitary, and this court

has affirmed on appeal.

With the prior court orders now dissolved, CMS must cease using

the orders to assign Grant’s children as well as all other public school

students on account of their race.16 A unitary school system is what

16

CMS argues that because Capacchione no longer resides in North

Carolina the unitary status declaration does not alter CMS’s behavior

toward young Capacchione and consequently Capacchione is not a pre-

vailing party entitled to fees. In other words, CMS contends that Capac-

chione’s lack of standing counsels against an award of fees. I disagree.

At the very least, because of Capacchione’s status as a plaintiff-

intervenor in Swann, Capacchione is still entitled to fees. See Shaw v.

Hunt, 154 F.3d 161, 167 (4th Cir. 1998) (noting that when plaintiffs with

standing "secure[ ] precisely the relief that they sought," plaintiff-

intervenors who lack standing but contributed to the litigation may also

be awarded attorney fees). Grant, who CMS concedes has standing and

is entitled to fees, achieved the relief originally sought—a declaration of

unitary status. Capacchione greatly contributed to this result, and under

Shaw is entitled to fees just as Grant.

68 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

the original plaintiffs sought in 1965, and the plaintiff-intervenors

have greatly assisted in the final stages of this litigation in making

unitariness a reality. Henceforth, unless CMS’s use of racial classifi-

cations satisfies the requirements of strict scrutiny, the color of a

child’s skin will no longer be a permissible basis for assigning, or

refusing to assign, a child to a conventional public school or a special-

ized magnet program. See Farrar, 506 U.S. at 110 (observing that

declaratory relief may constitute relief under § 1988 "if[ ] it affects

the behavior of the defendant toward the plaintiff") (internal quotation

marks omitted). Moreover, this declaration of unitary status is

enforceable against CMS in the unlikely event it later attempts to con-

tinue prior assignment polices, say, on the ground that vestiges of

prior discrimination have not been eradicated. See id. at 111 (explain-

ing that to be a prevailing party an enforceable judgment must be

obtained).

In the present case, with its counter-intuitive alignment of parties,

the plaintiff-intervenors have stepped into the shoes of the Swann

plaintiffs, continued the original § 1983 action, and brought this case

to a close. Just as the Swann plaintiffs, prior to removal of the case

from the active docket, were compensated for their services, see

Swann v. Charlotte-Mecklenburg Bd. of Educ., 66 F.R.D. 483

(W.D.N.C. 1975) (awarding the Swann plaintiffs $204,072.33 in fees

and costs), so too should the plaintiff-intervenors be compensated for

a continuation of the legal efforts to achieve a unitary school system

and to remove federal court control. In this regard the plaintiff-

intervenors have acted as "private attorney[s] general," Independent

Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 758-60 (1989)

(internal quotation marks omitted) (alteration in original), and

obtained a finding of unitariness, which was the ultimate objective of

the original action. See J.A. XXXIII-16,162 (original complaint seek-

ing "reorganization of the school system into a unitary nonracial sys-

tem"). Indeed, no one disputes that the Swann plaintiffs would have

been entitled to fees if they had taken the initiative to petition for a

declaration of unitary status instead of acting to oppose the result we

reach today.

Without question, the monitoring of a school desegregation decree

is crucial to the dismantling of the dual system. See Jenkins v. Mis-

souri, 967 F.2d 1248, 1251 (8th Cir. 1992) (awarding fees in desegre-

BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 69

gation case pursuant to § 1988). Accordingly, efforts "to insure full

compliance and to ensure that the plan is indeed working to desegre-

gate the school system[ ] are compensable services." Northcross v.

Board of Educ., 611 F.2d 624, 637 (6th Cir. 1979). Here, the plaintiff-

intervenors observed CMS’s progress in dismantling the dual system,

and once convinced that full compliance had been achieved, they

moved for a declaration of unitary status. In so doing, the plaintiff-

intervenors were faced with a recalcitrant school board that insisted

none of the Green factors had been satisfied. The Swann plaintiffs,

though having never returned to court to complain about the continua-

tion or revival of segregative practic

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