Belk v. Charlotte-Mecklenburg

Filed: September 19, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 99-2389(L)

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

Terry Belk, et al.,

Plaintiffs - Appellants,

versus

William Capacchione, etc., et al.,

Plaintiffs - Appellees.

O R D E R

The court amends its opinion filed November 30, 2000, as

follows:

On page 3 -- the list of amici curiae is corrected to read

“United States of America; North Carolina School Boards

Association; National School Boards Association.”

On page 4, section 2, line 4 -- the district court numbers are

corrected to read “CA-97-482-3-P, CA-65-1974-3-P.”

On page 23, first full paragraph, line 12 -- a comma is added

after “(1979)” to complete the cite.

- 2 -

On page 60, indented quotation, line 8 -- the single quotation

marks around “know-how” are corrected to double quotation marks.

On page 108, first paragraph, last line -- “See Ante at 34" is

corrected to read “See ante at 34.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

Rehearing en banc granted by order filed 1/17/01;

published opinion filed 11/30/00 is vacated

Volume 1 of 3

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,

v.

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

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.

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,

No. 99-2391

v.

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg

School Board, in his official

capacity,

Defendants-Appellants.

UNITED STATES OF AMERICA; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION; NATIONAL SCHOOL

BOARDS ASSOCIATION,

Amici Curiae.

2

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,

No. 00-1098

v.

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg

School Board, in his official

capacity,

Defendants-Appellants.

v.

UNITED STATES OF AMERICA; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION; NATIONAL SCHOOL

BOARDS ASSOCIATION,

Amici Curiae.

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,

No. 00-1432

v.

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg School

Board, in his official capacity,

Defendants-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: June 7, 2000

Decided: November 30, 2000

Before MOTZ, TRAXLER, and KING, Circuit Judges.

4

Affirmed in part, reversed in part, vacated in part, and remanded by

published opinion. Judge Motz and Judge King wrote the opinion.

Judge Traxler wrote a concurring and dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Stephen Luke Largess, FERGUSON, 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: James E. Fergu-

son, II, John W. Gresham, C. Margaret Errington, FERGUSON,

STEIN, WALLAS, ADKINS, GRESHAM & SUMTER, P.A., Char-

lotte, North Carolina; Elaine R. Jones, Director-Counsel, Norman J.

Chachkin, Gloria J. Browne, NAACP LEGAL DEFENSE & EDU-

CATIONAL 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 J. Winner, General Counsel, CHARLOTTE-

MECKLENBURG BOARD OF EDUCATION, Charlotte, North Car-

olina, for Appellants. Kevin V. Parsons, PARKS, CHESIN & MIL-

LER, P.C., Atlanta, Georgia; John O. Pollard, MCGUIRE, WOODS,

BATTLE & BOOTHE, Charlotte, North Carolina; William S. Hel-

fand, MAGENHEIM, BATEMAN, ROBINSON, WROTENBERY &

HELFAND, Houston, Texas; Thomas J. Ashcraft, Charlotte, North

Carolina, for Appellees. Bill Lann Lee, Acting Assistant Attorney

General, Mark L. Gross, Rebecca K. Troth, UNITED STATES

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

United States. Michael Crowell, Lisa Lukasik, THARRINGTON

SMITH, L.L.P., Raleigh, North Carolina; Allison B. Schafer, General

Counsel, NORTH CAROLINA SCHOOL BOARDS ASSOCIA-

TION, Raleigh, North Carolina; Julie K. Underwood, General Coun-

sel, NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria,

Virginia, for Amici Curiae Associations.

_________________________________________________________________

5

OPINION

DIANA GRIBBON MOTZ

& ROBERT BRUCE KING, Circuit Judges:

Since 1954, the school boards throughout this country, including

the Charlotte-Mecklenburg Board of Education, have been operating

under a standing Supreme Court mandate to integrate their school sys-

tems and eliminate all vestiges of de jure segregation. Brown v. Board

of Educ., 347 U.S. 483, 490 (1954) ("Brown I"). During the twenty

years following the Supreme Court's mandate, the Charlotte-

Mecklenburg Board of Education ("CMS" or the"Board") resisted all

efforts to expedite desegregation, essentially arguing that, in light of

the centuries over which the dual system of education had come to

fruition, the Board would need a proportional period of time to

develop remedies aimed at correcting past wrongs. Faced with this

intransigence, the Supreme Court unanimously decided in 1971 that

the Constitution required the Board to take affirmative measures,

including the use of race-based ratios in student assignment, to eradi-

cate vestiges of its invidious discrimination. See Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).

Finally, in 1975, the Board began seeking to fulfill the Supreme

Court's mandate that public schools be desegregated with "all deliber-

ate speed." Brown v. Board of Educ., 349 U.S. 294, 299 (1955)

("Brown II"). Today, with the Board having had less than twenty-six

years to implement appropriate remedies, we must decide whether the

task of desegregating the Charlotte-Mecklenburg schools has reached

its end.

We hold that it has not. Over the Board's own admission to the

contrary, the district court concluded that the school system had

achieved unitary status across the board. While the district court made

findings sufficient to hold that CMS had achieved unitary status in

some respects, the court failed to adequately explore the return of pre-

dominantly one-race schools as a vestige of segregation, rendering its

findings insufficient to conclude that CMS has achieved unitary status

in every respect.

In an equally unprecedented ruling, the district court held that the

school system, although operating under court orders to desegregate

6

its schools, violated the Constitution by employing a magnet school

program that considered race in student assignment. On the contrary,

because the Board's expanded magnet schools program -- and the

race-sensitive method of student selection it employed -- was

undertaken both to remedy the effects of past segregation and to com-

ply with governing court orders, they did not and could not violate the

Constitution.

In this appeal, we consider the above rulings along with a number

of related issues. As explained below, we affirm in part, reverse in

part, vacate in part, and remand this case for further proceedings.

I.

A.

In order to better understand the issues presented in this case, we

must briefly review our country's history of school desegregation liti-

gation, in which CMS has played a prominent role.

Even after slavery had been abolished for almost a full century,

African-American children were, for the most part, either excluded

from the public schools or educated separately from white children.

"In fact, any education of Negroes was forbidden by law in some

states." Brown I, 347 U.S. at 490; see also Martin v. Charlotte-

Mecklenburg Bd. of Educ., 475 F. Supp. 1319, 1324 (W.D.N.C. 1979)

("For three centuries racial segregation was the law of the land.").

Indeed, throughout the early part of the 1900s, CMS operated a segre-

gated school system within the safe harbor created by the Supreme

Court's doctrine of "separate but equal" articulated in Plessy v. Fergu-

son, 163 U.S. 537 (1896).

In the middle of the 1900s, the Supreme Court began dismantling

the great wall of segregation constructed under the imprimatur of

Plessy. The Court initially sought to determine whether various "sepa-

rate" African-American schools were genuinely "equal" to white

schools by evaluating the quality of physical facilities, curricula, fac-

ulty, and certain "intangible" considerations. See, e.g., Sweatt v.

Painter, 339 U.S. 629 (1950); Sipuel v. Board of Regents of Univ. of

7

Okla., 332 U.S. 631 (1948). In each instance, the Court concluded

that they were not. Id.

In 1954, the Supreme Court at last overruled Plessy, declaring that

"in the field of public education the doctrine of `separate but equal'

has no place. Separate educational facilities are inherently unequal."

Brown I, 347 U.S. at 495. Just one year later, the Court mandated that

federal courts and school authorities take affirmative steps to achieve

desegregation. Brown II, 349 U.S. at 299. Specifically, federal courts

were to retain jurisdiction over desegregation cases during the period

of transition, wielding their equitable powers to supervise school

boards' efforts to effectuate integration. Id. at 300-01. One of the

most important obligations of the federal courts was to ensure that

school boards were proceeding in good faith to desegregate the public

schools "with all deliberate speed." Id. at 301. With these seminal

decisions -- Brown I and Brown II-- the Supreme Court promised

the citizens of this country, and particularly African-American chil-

dren, school systems "in which all vestiges of enforced racial segrega-

tion have been eliminated." Wright v. Council of the City of Emporia,

407 U.S. 451, 463 (1972).

Notwithstanding the Court's repeated admonition that segregation

and its vestiges be eliminated "root and branch," Green v. County Sch.

Bd. of New Kent County, 391 U.S. 430, 437-48 (1968), many school

boards -- CMS included -- adopted "an all too familiar" response to

the mandate of Brown II, interpreting "all deliberate speed" "as giving

latitude to delay steps to desegregate." Freeman v. Pitts, 503 U.S.

467, 472 (1992). And so, lower federal courts, with the guidance and

oversight of the Supreme Court, began fashioning equitable remedies

to contend with school board recalcitrance. For example, in Green,

the Supreme Court held that a "freedom of choice" plan, which per-

mitted students -- regardless of race -- to choose the school they

would attend, was by itself insufficient to meet the mandate of Brown.

391 U.S. at 430. In so holding, the Court recognized that more inten-

sive efforts would be necessary in order to make "meaningful and

immediate progress toward disestablishing state-imposed segrega-

tion." Id. at 439. Subsequently, in this very case, the Court approved

significant federal court intervention into a school system in order to

eliminate segregation "root and branch," including the busing of stu-

dents from schools close to their homes to schools farther away, the

8

use of race-based "mathematical ratios," and the alteration of student

attendance zones. Swann, 402 U.S. at 15, 25, 28, 30-31.

The Supreme Court has made clear, however, that a federal court's

"end purpose must be to remedy the violation and, in addition, to

restore state and local authorities to the control of a school system that

is operating in compliance with the Constitution." Freeman, 503 U.S.

at 489. Hence, as a school system eliminates the vestiges of past offi-

cial segregation from certain facets of its operations, courts possess

the authority to relinquish supervision in a commensurate fashion. Id.

at 489-91.

In this context, we examine the steps taken by CMS to eliminate

the vestiges of segregation.

B.

1.

North Carolina's most significant initial response to the mandate of

Brown II was the "Pupil Assignment Act of 1955-56, under which

[the Board had] the sole power to assign pupils to schools, and chil-

dren [were] required to attend the schools to which they [were]

assigned." Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F.

Supp. 1358, 1361 (W.D.N.C. 1969). This was an ineffectual measure

-- perhaps intentionally so -- and by 1964, no more than a few dozen

(out of more than 20,000) African-American children in CMS were

attending schools with white children. Id. at 1362.

2.

In 1965, the parents of African-American children attending CMS

(hereinafter the "Swann plaintiffs")11 filed a class action seeking

injunctive relief, claiming that the Board's policies and practices were

perpetuating a segregated school system. Swann v. Charlotte-

Mecklenburg Bd. of Educ., 243 F. Supp. 667, 668 (W.D.N.C. 1965).

_________________________________________________________________

1 Since this case was first filed in 1965, the various successor plaintiffs

have been referred to as the Swann plaintiffs, a practice we continue to

observe here.

9

On July 14, 1965, the district court approved a Board-proposed plan

that closed certain black schools, built new schools, and established

school attendance zones based on neighborhoods. But the linchpin of

this plan was its grant of permission to each student -- regardless of

race -- to freely transfer to a different school (often described as a

"freedom of choice" plan). Id. In approving this plan, the district court

held that CMS had no affirmative duty to "increase the mixing of the

races"; instead, the Board's obligation under Brown II, according to

the court, was to act without the intent to perpetuate segregation. Id.

at 670. The following year, this Court affirmed the district court's

interpretation of Brown II. See Swann v. Charlotte-Mecklenburg Bd.

of Educ., 369 F.2d 29, 32 (4th Cir. 1966) ("Whatever the Board may

do in response to its own initiative or that of the community, we have

held that there is no constitutional requirement that it act with the con-

scious purpose of achieving the maximum mixture of the races in the

school population.").

However, in the wake of the Supreme Court's 1968 decision in

Green, which struck down a desegregation plan founded predomi-

nantly on "freedom of choice," it became clear that school boards did

possess an affirmative obligation to desegregate, not merely an obli-

gation to implement race-neutral policies. Green, 391 U.S. at 437-38.

Invigorated by the developing law, the Swann plaintiffs promptly

filed a motion for further relief with the district court, seeking to

expedite the desegregation process.

3.

In 1969, Judge James B. McMillan, newly assigned to the Swann

case,2

2 reexamined the Board's actions in light of Green and deter-

mined that its "freedom of choice" plan, when coupled with geo-

graphic zoning, were "not furthering desegregation." 300 F. Supp. at

1372. On the fundamental matters of assigning students and faculty,

and the siting of new schools, the court made the following findings:

- Student assignment: The court noted that a ratio of seventy percent

white students to thirty percent black students, which approxi-

_________________________________________________________________

2 For clarity's sake, we will often refer within to the presiding district

judge by name.

10

mated the ratio of white to black students in the county, tended to

aid "better students [in holding] their pace, with substantial

improvement for the poorer students." Id. at 1369.

- Faculty assignment: Although faculty members were not being

assigned with a discriminatory purpose, there was also "no sus-

tained effort to desegregate faculties." Id. at 1370. The court

ordered CMS to work actively to integrate the faculties, so that "a

child attending any school in the system will face about the same

chances of having a black or a white teacher as he would in any

other school." Id.

- School siting: The court underscored that the desirability of imple-

menting a "neighborhood school" policy, under which efforts were

made to locate schools in neighborhoods and within walking dis-

tance for children, could not override the constitutional duty to

desegregate. Id. at 1369. At the same time, CMS was not to avoid

locating new facilities in black neighborhoods. Id. at 1371.

In light of Green, Judge McMillan also ordered CMS to submit a

new, amended desegregation plan, and he outlined certain possible

remedies, including busing and re-zoning. Swann, 300 F. Supp. at

1360; Swann v. Charlotte-Mecklenburg Bd. of Educ., 306 F. Supp.

1299, 1302 (W.D.N.C. 1969).

Once again, however, CMS was slow to respond, prompting Judge

McMillan to impose a deadline of August 4, 1969, by which the

Board was to submit a detailed desegregation plan to the court. See

Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F. Supp. 1381,

1382, 1386 (W.D.N.C. 1969). CMS complied, and its proposed

desegregation plan appeared to accept, for the first time, the constitu-

tional duty to desegregate students, teachers, principals, and staffs "`at

the earliest possible date.'" Swann v. Charlotte-Mecklenburg Bd. of

Educ., 306 F. Supp. 1291, 1293 (W.D.N.C. 1969). The Board's pro-

posed desegregation plan, approved by the district court on an interim

basis ("interim desegregation plan"), included programs for faculty

desegregation, the closing of seven all-black schools, and the reas-

signment of pupils from the closed schools to outlying, predominantly

white schools. Id. at 1298-99. In approving the plan on an interim

basis, the district court noted that black children were bearing a dis-

11

proportionate burden of the desegregation efforts, but the court none-

theless concluded that some action -- even if interim -- was

preferable to none at all. Id. at 1298. Judge McMillan also ordered the

Board to submit another desegregation plan within three months.

In November and December 1969, the district court determined

that the school system's compliance with the interim desegregation

plan was unsatisfactory, finding that the Board was continuing to per-

petuate segregation:

The School Board is sharply divided in the expressed views

of its members. From the testimony of its members, and

from the latest report, it cannot be concluded that a majority

of its members have accepted the court's orders as repre-

senting the law which applies to the local schools. By the

responses to the October 10 questions, the Board has indi-

cated that its members do not accept the duty to desegregate

the schools at any ascertainable time; and they have clearly

indicated that they intend not to do it effective in the fall of

1970. They have also demonstrated a yawning gap between

predictions and performance.

Swann, 306 F. Supp. at 1306. At that time, the district court also

reviewed and rejected the Board's newly submitted amended desegre-

gation plan. Id. at 1313-14. Then, the court appointed Dr. John A.

Finger, Jr. as an expert consultant to prepare a more acceptable plan.

This appointment came nearly two years after the Supreme Court's

Green decision and more than fifteen years after Brown I.

The district court ultimately adopted Dr. Finger's proposed plan for

elementary schools and the Board's plan, as modified by Dr. Finger,

for secondary schools (collectively the "Finger Plan"). Swann v.

Charlotte-Mecklenburg Bd. of Educ., 311 F. Supp. 265, 268-70

(W.D.N.C. 1970). In doing so, the court again observed the Board's

failure to make an effective beginning to desegregation: "The School

Board, after four opportunities and nearly ten months of time, have

failed to submit a lawful plan (one which desegregates all the

schools). This default on their part leaves the court in the position of

being forced to prepare or choose a lawful plan." Id. at 267.

12

The Finger Plan included several components. First, students were

to be assigned "in such a way that as nearly as practicable the various

schools at various grade levels have about the same proportion of

black and white students." Id. at 268. Second, "no school [could] be

operated with an all-black or predominantly black student body." Id.

Third, in redrawing the school system's attendance zones, the Board

was authorized to use bus transportation and noncontiguous "satellite

zones"33 to accomplish its goals. Id. Fourth, the district court restricted

the student transfer policy in order to safeguard against resegregation.

Id. at 268-69. Fifth, the race of faculty members at each school had

to approximate the ratio of black and white faculty members through-

out the system. Id. at 268. Sixth, the overall competence of teachers

at formerly black schools could not be inferior to those at formerly

white schools. Id. Finally, the district court mandated that the Board

monitor and report on its progress in implementing the plan. Id. at

269.

The Finger Plan was challenged on several occasions and, in 1971,

the Supreme Court upheld it as a valid exercise of the district court's

equitable powers. Swann, 402 U.S. at 31-32. Indeed, the Court specif-

ically found that the district court's adoption of a student assignment

plan that used race-based "mathematical ratios" as a starting point was

well within the court's "equitable remedial discretion." Id. at 25.

Even after the Supreme Court's decision in Swann, the district

court found that the Board's desegregation efforts failed to meet con-

stitutional requirements. For example, Judge McMillan ordered stu-

dent assignment proposals revised in June 1971, finding that the

proposals "were discriminatory in detail and in overall result; they

_________________________________________________________________

3 CMS used "satellite zones" in connection with elementary schools.

Under this method, students from a small geographic area located outside

an elementary school's primary attendance area were assigned to that

school. J.A. 15571, 16052; see also Swann, 402 U.S. at 9 & n.3. The use

of satellite zones was implemented by "pairing" elementary schools --

students from a predominantly black neighborhood were bused to a

school in a predominantly white neighborhood for grades K-3, and stu-

dents from a predominantly white neighborhood were bused to a school

in a predominantly black neighborhood for grades 4-6. J.A. 15571,

16052; see also Swann, 402 U.S. at 9-10.

13

placed increasing burdens upon black patrons while partially relieving

white patrons of similar burdens." Swann v. Charlotte-Mecklenburg

Bd. of Educ., 328 F. Supp. 1346, 1347 (W.D.N.C. 1971). During the

1971-72 and 1972-73 school years, the district court attempted a

"hands-off" approach, leaving the Board to remedy problems as they

arose, but the court twice found that the Board still had not adopted

sufficient measures to guard against resegregation and ensure that

whites were bearing an appropriate share of the desegregation burden.

See Swann v. Charlotte-Mecklenburg Bd. of Educ., 362 F. Supp.

1223, 1230 (W.D.N.C. 1973); Swann v. Charlotte-Mecklenburg Bd.

of Educ., 379 F. Supp. 1102 (W.D.N.C. 1974); see also discussion of

specific findings infra.

The 1974 order expressed somewhat more optimism about the

Board's desegregation efforts. In that order, Judge McMillan

approved a student assignment proposal that, if implemented prop-

erly, would result in "a fair and stable school operation" and would

permit the court to close the case as an active matter. See 379 F. Supp.

at 1103. The proposal made provisions for several "optional schools"

-- schools that would offer some specialized program or curriculum

and thereby attract students of all races from across Charlotte and

Mecklenburg County. Although Judge McMillan approved the incor-

poration of these schools into the plan, he cautioned that the optional

schools would be inconsistent with the school board's constitutional

obligations if they merely served to re-institute "freedom of choice."

Id. at 1104 ("`Freedom of choice' was a synonym for segregation for

many years, and . . . it should not be resurrected at this late date sub

nom. `optional schools' without adequate safeguards against discrimi-

natory results."). To ensure that the optional schools served their

stated purpose of furthering the process of desegregation, Judge

McMillan decreed that "optional school enrollments will be con-

trolled starting with 1974 so that they . . . have about or above 20%

black students." Id.

Finally, in July 1975, over twenty years after the mandate of Brown

II, Judge McMillan for the first time observed, albeit with reserva-

tions, that the Board was actually working toward desegregation:

"The new Board has taken a more positive attitude toward desegrega-

tion and has at last openly supported affirmative action to cope with

recurrent racial problems in pupil assignment." Swann v. Charlotte-

14

Mecklenburg Bd. of Educ., 67 F.R.D. 648, 649 (W.D.N.C. 1975).

Although the district court cautioned that problems remained, the new

vigor with which the Board was pursuing desegregation persuaded

Judge McMillan to close Swann as an active matter of litigation and

to remove it from the court's docket. Id. at 649-50. In so acting, the

court reaffirmed that its orders still stood: "[t]his case contains many

orders of continuing effect, and could be re-opened upon proper

showing that those orders are not being observed." Id. at 649.

4.

Between 1975 and 1992, two significant actions were taken in con-

nection with the CMS desegregation litigation.

a.

First, in 1978, a group of white parents and children brought suit

against CMS, seeking an order prohibiting the Board from assigning

children pursuant to the Board's latest student-assignment plan. See

Martin, 475 F. Supp. at 1320. The Martin plaintiffs claimed that the

Supreme Court's then-recent decisions in Pasadena City Bd. of Educ.

v. Spangler, 427 U.S. 424, 436 (1976), and University of Cal. Regents

v. Bakke, 438 U.S. 265, 305 (1978), prohibited any consideration of

race in student assignment. 475 F. Supp. at 1321. The Swann plain-

tiffs intervened in Martin, joining the Board's opposition to the con-

tentions of the Martin plaintiffs. Id.

A brief review of Spangler and Bakke is necessary to an under-

standing of Martin. In Spangler, the Supreme Court held that because

the Pasadena Unified School District ("PUSD") had achieved racial

neutrality in its school attendance pattern, "the District Court was not

entitled to require the PUSD to rearrange its attendance zones each

year so as to ensure that the racial mix desired by the court was main-

tained in perpetuity." 427 U.S. at 436. All parties in Spangler agreed

that the plan initially achieved racial neutrality in student attendance;

nonetheless, the district court had believed it was empowered to annu-

ally readjust school boundaries to ensure in perpetuity that there

would be no majority of any minority race at any Pasadena school.

Id. at 433, 436. In Bakke, the Supreme Court determined that a public

university with no history of discrimination could not constitutionally

15

reserve sixteen out of one hundred admission slots for racial minori-

ties. 438 U.S. at 319-20. In striking down this admissions plan, the

Court had made clear that "[w]hen a classification denies an individ-

ual opportunities or benefits enjoyed by others solely because of his

race or ethnic background, [it must] be regarded as [constitutionally]

suspect." Id. at 305.

Judge McMillan, who retained jurisdiction over Swann and pre-

sided over Martin, first held that because CMS had not achieved

racial neutrality in student attendance, consideration of race in student

assignment policies was appropriate under Swann . See Martin v.

Charlotte-Mecklenburg Bd. of Educ., 626 F.2d 1165 (4th Cir. 1980).

He explained that because the student assignment policy in the CMS

school system had been independently adopted by the Board, it was

not established, as the Spangler policy had been, via judicial coercion

or order. 475 F. Supp. at 1340-43. Second, Judge McMillan ruled that

Bakke was inapposite to the claims of the Martin plaintiffs. Specifi-

cally, the court reasoned that no child was being denied access to

equal educational opportunity because of race, see id. at 1321, and the

actions of the Board were therefore not constitutionally suspect under

Bakke.

In upholding the independent actions of the Board, Judge McMil-

lan made several important findings. For example, he found that dis-

crimination had not ended; indeed, it was this very finding that led the

court to uphold the 1978 race-conscious student assignment policy.

Id. at 1346-47. Also, although for the first time the district court

praised the efforts of the Board without reservation, it underscored yet

again the need for patience and continued efforts:

It took three centuries to develop a slave culture, to fight a

bloody civil war, and to live through the century of racial

turmoil after that war.

***

The culture and attitudes and results of three centuries of

segregation cannot be eliminated nor corrected in ten years.

Human nature and practices don't change that fast, even in

the hands of people of good will like the members of the

16

present School Board. They need time to work their own

experiments, and to find their own ways of producing the

sustained operation of a system of schools in which racial

discrimination will play no part. I vote to uphold their

efforts to date, and to give them that time.

Id. at 1347. In 1980, we affirmed the district court's decision in Mar-

tin. See 626 F.2d at 1165.

b.

The second significant phase of litigation between 1975 and 1992

was initiated in 1980. At that time, CMS and the Swann plaintiffs

notified the district court that the black student population in CMS

elementary schools had grown from twenty-nine percent to forty per-

cent, making it increasingly difficult to comply with the desegregation

order's mandate to avoid majority-black elementary schools. In

response to this change, Judge McMillan approved a modification to

the desegregation plan. Instead of prohibiting a "predominantly black

student body," the court permitted CMS to operate elementary

schools with a black student population of "plus 15 percent" above

the district-wide average. Thus, if the school district averaged forty

percent black students, any individual school could have fifty-five

percent black students.

5.

From 1981 to 1992, the Board continued to operate its desegrega-

tion plan as approved by the district court, focusing, inter alia, on sat-

ellite attendance zones, a feeder plan (assigning middle-school

students from a certain neighborhood to identified high schools),

school closings, and construction of new schools. Then, in 1992,

CMS substantially increased its reliance on "optional" or magnet

schools (the "expanded magnet schools program"). The Board placed

new emphasis on magnet schools in order to phase out"pairing" and

heavy reliance on busing, and to give parents more choice in school

selection. It was the expanded magnet schools program that ultimately

led to the present phase of this litigation.

17

6.

In September 1997, William Capacchione, individually and on

behalf of his daughter Christina, sued CMS claiming that Christina

was unconstitutionally denied admission to a magnet school. Chris-

tina is Hispanic and Caucasian, and her suit under 42 U.S.C. § 1983

sought declaratory, injunctive, and compensatory relief. In response,

CMS moved to dismiss Capacchione's suit and, almost simulta-

neously, the Swann plaintiffs moved to reactivate Swann, claiming

that CMS was not yet in compliance with past desegregation orders

and had not yet achieved unitary status. Because Judge McMillan had

died, the cases were assigned to Senior Judge Robert D. Potter, who

restored Swann to the district court's docket, consolidated the cases,

denied CMS's motion to dismiss, and granted Capacchione's motion

to intervene.44

The Capacchione plaintiffs claimed that CMS had long since elim-

inated the vestiges of segregation in its schools, and that its formerly

dual system of white and black schools had, for some time, been uni-

tary. They also contended that CMS, while still operating under the

court's desegregation orders, had violated those orders and the consti-

tutional rights of white students in its efforts to desegregate the school

system by employing a race-conscious assignment lottery in its

expanded magnet schools program. The Swann plaintiffs countered

that the school system had not yet achieved unitary status. CMS

acknowledged that it was not yet in compliance with past desegrega-

tion orders and agreed that it should not be declared to have achieved

unitary status. CMS also contended that, in any event, the expanded

magnet schools program constituted an entirely constitutional and

_________________________________________________________________

4 Since filing suit, the Capacchiones have moved to California. Based

on that fact and other findings, the district court determined that William

Capacchione no longer possessed standing to seek injunctive or declara-

tory relief, but that he did have standing to pursue compensatory relief.

Capacchione v. Charlotte-Mecklenburg Sch., 57 F. Supp. 2d 228, 240

(W.D.N.C. 1999). Another group of white parents intervened in the con-

solidated action and that group, represented by plaintiff Michael Grant,

claimed that CMS has achieved unitary status. The various groups of

plaintiffs that have joined in Capacchione's claims are hereinafter

referred to as "the Capacchione plaintiffs."

18

appropriate integration tool authorized under the desegregation orders

in this case. The Swann plaintiffs, while endorsing the concept of

magnet schools, argued that the expanded magnet schools program,

as implemented, was contributing to the resegregation of the school

system.

Following a bench trial conducted from April 19 to June 22, 1999,

the court, on September 9, 1999, filed its Memorandum of Decision

and Order, from which this appeal is taken. See Capacchione v.

Charlotte-Mecklenburg Sch., 57 F. Supp. 2d 228 (W.D.N.C. 1999).

Although the Board claimed that unitary status had not been achieved,

the district court found that it had. In its ruling, the district court then

found that the Board's expanded magnet schools program, even

though instituted to effect court-ordered desegregation, was unconsti-

tutional. Furthermore, the court enjoined the Board from "assigning

children to schools or allocating educational opportunities and bene-

fits through race-based lotteries, preferences, set-asides, or other

means that deny students an equal footing based on race." Id. at 294.

Finally, the court awarded the Capacchione plaintiffs nominal mone-

tary damages and substantial attorney's fees.

Following the filing of timely notices of appeal, the Swann plain-

tiffs and CMS sought a stay of Judge Potter's September 9, 1999

injunction. On December 30, 1999, we granted the requested stay

pending further order of this court. Thereafter, the Capacchione plain-

tiffs petitioned for an initial hearing en banc, which was denied by an

eight-to-three vote of the Court. Belk v. Charlotte-Mecklenburg Bd.

of Educ., 211 F.3d 853 (4th Cir. 2000). The panel heard argument in

these appeals on June 7, 2000.

C.

We are now called upon to review the district court's various deter-

minations relating to these consolidated appeals. Having reviewed

and carefully considered each of the important questions determined

by the district court, we affirm in part; however, we must reverse in

part, and we must vacate and remand on certain issues.

The district court's findings suffice to uphold its determination that

the Board achieved progress toward desegregation in the 1970s and

19

1980s, and the court was therefore justified in concluding that CMS

had achieved unitary status in some respects. However, the district

court's findings do not support its conclusion that CMS has attained

unitary status in every respect. Moreover, even if CMS could now

properly be found to have achieved unitary status in toto, it would be

inappropriate to assess the expanded magnet schools program as if

there had been no court order in place. The expanded magnet schools

program and the race-conscious lottery it employed were undertaken

to remedy the effects of past segregation and were in compliance with

court orders governing this case; they do not violate the Constitution.

Consequently, the award of nominal damages, substantial attorney's

fees, and an overbroad injunction barring any future consideration of

race in school assignments and other fundamental aspects of school

operations cannot stand.

II.

We first address the district court's unitary status decision. The

determination of whether any part of a school system has achieved

unitary status is a factual one; therefore, we review the district court's

findings as to unitary status for clear error. See Riddick v. School Bd.

of the City of Norfolk, 784 F.2d 521, 533 (4th Cir. 1986); see also

Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F.2d

945, 952 n.3 (11th Cir. 1989) (citing United States v. Texas Educ.

Agency, 647 F.2d 504, 506 (5th Cir. Unit A 1981)). We do not, how-

ever, defer to the district court on conclusions of law, including the

district court's understanding of controlling law or the various bur-

dens of proof and presumptions; consequently, we review any such

conclusions of law de novo. See, e.g., In re Brice, 188 F.3d 576, 577

(4th Cir. 1999).

A.

1.

Indisputably, the school system of Charlotte-Mecklenburg County

subjected African-Americans to nearly a century of segregation and

discrimination. Indeed, the Supreme Court recognized as much in

Swann, noting that North Carolina was one of the states with "a long

history of maintaining two sets of schools in a single school system

20

deliberately operated to carry out a governmental policy to separate

pupils in schools solely on the basis of race." 402 U.S. at 5-6. In this

context the remedies forcefully endorsed in Brown II, including the

use of race conscious measures, are necessary to eradicate the invidi-

ous segregation at which they are aimed.

Moreover, court supervision over local school boards, also

embraced in Brown and its progeny, is entirely appropriate whenever

"school authorities fail in their affirmative obligations" "to take what-

ever steps might be necessary to convert to a unitary system in which

racial discrimination would be eliminated." Swann, 402 U.S. at 15.

Not only are the federal courts entitled to supervise and direct the

actions of local school boards under those circumstances, but the

scope of federal authority is almost plenary: "Once a right and a vio-

lation have been shown, the scope of a district court's equitable pow-

ers to remedy past wrongs is broad, for breadth and flexibility are

inherent in equitable remedies." Id. There is no doubt that CMS was

justifiably subjected to federal court supervision; in fact, even after

the Board had been subjected to court supervision, it had to be repeat-

edly ordered to begin the process of desegregation.

Ultimately, however, the goal in a desegregation case such as this

is to reach the point at which federal supervision is no longer war-

ranted and the use of race-conscious measures is no longer necessary.

See Freeman, 503 U.S. at 489. The Supreme Court has identified six

factors (collectively the "original Green factors") that must be free

from racial discrimination before the mandate of Brown is met: (1)

student assignment, (2) physical facilities, (3) transportation, (4) fac-

ulty, (5) staff, and (6) extracurricular activities. Green, 391 U.S. at

435. Not only are reviewing courts to ascertain whether these original

Green factors are free from racial discrimination, but courts also are

entitled, in their discretion, to identify other factors ("ancillary factors")5

5

and "determine whether minority students were being disadvantaged

in ways that required the formulation of new and further remedies to

ensure full compliance with the court's decree." 503 U.S. at 492.

_________________________________________________________________

5 For convenience, we refer to the original Green factors and any ancil-

lary factors identified by the district court as "Green factors."

21

2.

For school systems proceeding through the difficult process of

desegregation, the Supreme Court has adopted the goal of achieving

unitary status. Freeman, 503 U.S. at 486-87; Board of Educ. of Okla.

City Pub. Sch. v. Dowell, 498 U.S. 237, 245-46 (1991). Although

prior to the Court's Dowell and Freeman decisions federal courts used

the term "unitary status" somewhat inconsistently, see Freeman, 503

U.S. at 486-87; Green, 391 U.S. at 437-38, the term has now come

to mean that the school system has been unified such that the vestiges

of segregation have been eliminated to the extent practicable. Free-

man, 503 U.S. at 487; Green, 391 U.S. at 437-38. When a school sys-

tem achieves unitary status, federal courts must withdraw supervision

over the local school board.

In this case, Judge Potter declared that CMS had achieved unitary

status in every respect. The Supreme Court has directed that an appel-

late court review a district court's unitary status determination by

applying a two-part inquiry (the "Freeman inquiries"). An appellate

court must determine if (1) a school Board has, in good faith, com-

plied with the desegregation decree since it was entered; and (2) the

vestiges of de jure segregation in the school system have been elimi-

nated to the extent practicable. See Freeman, 503 U.S. at 492 (citing

Dowell, 498 U.S. at 249-50).

If the party seeking a declaration of unitary status cannot demon-

strate that the school system has achieved unitary status in its entirety,

we then undertake to determine whether the school system has

achieved unitary status with respect to one or some of the Green fac-

tors ("partial unitary status"). At that point, we apply, with respect to

each Green factor, the two Freeman inquiries along with one addi-

tional Freeman-mandated inquiry: "whether retention of judicial con-

trol [over one aspect of the school system] is necessary or practicable

to achieve compliance with the decree in other facets of the school

system." Freeman, 503 U.S. at 491. This third Freeman inquiry rec-

ognizes that the Green factors are -- to a great extent -- interrelated,

and when determining whether judicial supervision over a school

board may be withdrawn, the overlap between the Green factors is a

crucial consideration.

22

The Freeman analysis brings us to the most difficult questions

presented in any desegregation case: whether present racial isolation

is a vestige of past segregation and, if so, whether a school board can

practicably reduce that racial isolation. It is even difficult to define

"vestige" in this context. See id. at 502 (Scalia, J., concurring) ("We

have never sought to describe how one identifies . . . a `vestige' or

a `remnant' of past . . . ."). The vestiges "that are the concern of the

law may be subtle and intangible but nonetheless they must be so real

that they have a causal link to the de jure violation being remedied."

Id. at 496 (Kennedy, J.); see also id. at 512 (Souter, J., concurring)

(citing Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 465 & n.13

(1979), and Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 211

& n.17 (1973)) (court must order affirmative remedy where school

board's conduct "create[d] or contribute[d] to" racial identifiability of

schools). We adhere to the most common-sense meaning of "vestige":

it is a condition or occurrence causally related to the former de jure

system of segregation.

Because a school system's duty to eliminate such vestiges is

restricted by the availability of practicable measures for doing so, see

Freeman, 503 U.S. at 492, it is also incumbent on us to consider prac-

ticability. In determining the practicability of further measures, the

district court must look to numerous indicia of the system's operation.

Practicability depends on the feasibility of the proposed method, from

both a financial and an administrative perspective. Cf. id. at 481-83,

493-97. Whether a measure is practicable also depends on whether it

is "directed to curing the effects of the specific violation," and

whether it is likely to do so. Id. at 497.

Our duty, in reviewing Judge Potter's decision, see Capacchione,

57 F. Supp. 2d at 228, is clear. We must examine each Green factor

and ascertain whether unitary status has been achieved with respect

to any or all of them. Because the district court declared the entire

CMS school system to have achieved unitary status, we must assess,

with respect to each Green factor, whether the Board has complied,

in good faith, with the desegregation decree and whether the vestiges

of segregation have been eliminated to the extent practicable. See

Freeman, 503 U.S. at 492 (citing Dowell, 498 U.S. at 249-50). If the

school system has not achieved unitary status in its entirety, then,

23

consistent with Freeman, we also must weigh the degree of interre-

latedness existing between the various Green factors.

B.

By way of introduction to our analysis of this case, we first address

a fundamental flaw in the district court's proceedings -- a flaw aris-

ing from the district court's failure to give any consideration to a

remedial plan sought to be admitted as evidence by CMS. Following

the filing of the Capacchione plaintiffs' Complaint in Intervention,

the Board undertook to produce a comprehensive analysis of whether

vestiges of de jure segregation existed in CMS and whether any such

vestiges could be practicably remedied. The Board analyzed available

data and identified several vestiges remaining; then, in line with the

mandate of Freeman, the Superintendent of CMS developed a plan

containing practicable remedial steps. The Board independently

reviewed this plan and, on March 30, 1999, adopted the "Charlotte-

Mecklenburg Schools' Remedial Plan to Address the Remaining Ves-

tiges of Segregation" (the "Plan" or "Remedial Plan"). J.A. 11029.

Consistent with pretrial deadlines, CMS filed the Remedial Plan

with the district court as a potential exhibit at trial. J.A. 11028. At the

pretrial conference conducted on April 13, 1999, the Capacchione

plaintiffs moved in limine to exclude the Remedial Plan. In essence,

the Capacchione plaintiffs maintained that the trial had been bifur-

cated into two phases and that only unitary status was at issue in the

first phase. They further maintained that the Remedial Plan contained

proposed remedies that could only be implemented if CMS was deter-

mined not to have achieved unitary status. Because the unitary status

question had not yet been resolved, they claimed that the Remedial

Plan (which the Capacchione plaintiffs characterized as a damages

report) was irrelevant.

In opposing exclusion of the Remedial Plan, CMS and the Swann

plaintiffs relied on the Supreme Court's Freeman analysis. J.A. 1421.

Specifically, they asserted that each unitary status determination

encompassed in the first phase of the trial turned on "whether the ves-

tiges have been remedied to the extent practicable." Id. (emphasis

added). The Remedial Plan, they claimed, was not merely relevant,

24

but crucial, to establishing both the existence of vestiges of segrega-

tion and the practicability of remedial measures.

Judge Potter responded with two rulings. First, Judge Potter

explained in assessing whether CMS had achieved unitary status that

he believed Freeman required him to consider just one thing: "only

. . . what CMS has done, not what it may do in the future." See Order

of April 14, 1999 at 4. Second, based on this understanding of Free-

man and the unitary status test, Judge Potter concluded that the Reme-

dial Plan was irrelevant: "If the Court later determines that additional

remedial measures are needed, it may consider the plan. Until that

time comes, however, the Court will not get mired in the complex

details and mechanics of a proposed plan." Id. at 5.6

6

We believe Judge Potter erred in both of these rulings. First, he

misapprehended Freeman and its test for unitary status. At the outset,

Freeman explicitly rejects, as a matter of law, the very analysis

adopted by the district court. That is, under Freeman, a district court

must consider (1) compliance with prior orders (i.e., "what CMS has

done"), and (2) whether vestiges have been eliminated to the extent

practicable (i.e., "what [CMS] may do in the future"). See Freeman,

503 U.S. at 491; see also Order of April 14, 1999 at 4. By construing

Freeman's unitary status test to include the former ("what CMS has

done") but not the latter ("what [CMS] may do in the future"), Judge

Potter erred as a matter of law.

_________________________________________________________________

6 Judge Potter also chided CMS for proffering the Remedial Plan "after

the deadline for fact discovery and expert witness discovery had

expired." On the contrary, CMS fulfilled all of its duties under the fed-

eral rules, appropriately supplementing its responses to discovery

requests as soon as the Remedial Plan had been adopted. Furthermore,

a more precipitant proposal could not have incorporated the various

expert perspectives developed during discovery. A similar plan submit-

ted earlier in the course of the litigation necessarily would have been

based largely on speculation and supposition, and therefore would have

been far less useful and pertinent. As it was, the Plan was tendered in

advance of the non-jury trial, and, of great significance, almost five

months before the district court issued its decision. Neither the court nor

the parties could have been inconvenienced by the necessary timing of

the Remedial Plan's submission.

25

The Remedial Plan directly addresses the latter inquiry, and it does

so in an apt, informed manner, relying on the considered opinions of

highly capable professionals retained to analyze the latest available

data. In other words, the district court's second reason for excluding

the Plan -- relevancy -- also fails to withstand scrutiny.77 There is no

doubt that Judge Potter had wide discretion on this issue, but rele-

vancy is a fluid concept under the Federal Rules of Evidence. See

Fed. R. Evid. 401 (defining relevant evidence as "having any ten-

dency to make the existence" of any material fact"more probable or

less probable than it would be without the evidence"). Consequently,

relevancy typically presents a rather low barrier to admissibility. See,

e.g., United States v. Van Metre, 150 F.3d 339, 349 (4th Cir. 1998)

(citing United States v. Powers, 59 F.3d 1460, 1465 (4th Cir. 1995)).

However, we need not rely on the minimal threshold encompassed

in the test for relevancy because this Remedial Plan would be relevant

under any reasonable test. The Remedial Plan identified record evi-

dence (including the deposition testimony of several experts) support-

ing the Board's belief that vestiges of de jure segregation in CMS

remain apparent in (1) faculty assignment and quality, (2) physical

facilities and the allocation of instructional resources, (3) student

achievement, and (4) student assignment. More importantly, the

Remedial Plan detailed specific steps that the Board proposed to

undertake over the course of the ensuing five years "with a goal of

achieving unitary status at that time." J.A. 11029.

_________________________________________________________________

7 Taking the district court at its word that the only question before it

initially was the extent of the Board's compliance with the prior desegre-

gation orders, the Remedial Plan was nonetheless highly relevant for

even that purpose. The ease with which some of the proposed Plan reme-

dies could be realized, e.g., merely distributing available funding to

address the stark disparity in basic resources such as instructional materi-

als and media centers, see J.A. 11040, strongly suggests that the Board

had not fully implemented the long-standing dictates of the prior orders.

The court nonetheless observed that "while the goal of perfect compli-

ance with court orders has remained elusive, no evidence has been

presented that school authorities were guilty of easily correctable errors."

Capacchione, 57 F. Supp. 2d at 283. To the contrary, the Plan thoroughly

documented the Board's failings and the facility with which they could

be rectified. The district court simply chose to ignore this highly relevant

evidence.

26

Without a doubt, federal courts possess the final word in deciding

whether a particular school system is operating within the parameters

of the Constitution. Appreciable weight must be given, however, to

the views of those selected by the community to administer the sys-

tem. See Dowell, 498 U.S. at 248 (noting specialized knowledge pos-

sessed by local school officials).8

8 In refusing to consider the Plan, the

district court erroneously failed to accord the Board's official position

any weight, much less the respect that it was due.

That the district court so completely disregarded this crucial evi-

dence is telling. Nonetheless, we have carefully examined each con-

clusion below, ever mindful of the deference accorded the factfinder.

The manifest importance of this case (quite apart from the substantial

time and energy invested by the parties and the court below) demands

that we carefully explain the myriad aspects of our decision today.

We now embark upon that task.

1. Student Assignment

Of all the Green factors, the most fundamental is the degree of

racial imbalance in student assignment. Freeman, 503 U.S. at 474.

Uniformity in the racial composition of a given school was the hall-

mark of official discrimination, "for under the former de jure regimes

racial exclusion was both the means and the end of a policy motivated

by disparagement of, or hostility towards, the disfavored race." Id.

Court-ordered desegregation was designed to meet the enemy head-

on; the long-term stability of attempts at racial balancing in student

assignment is often seen as the most conspicuous indication of the

courts' success (or lack thereof) in combating the underlying societal

evil.

_________________________________________________________________

8 Though we need not grant CMS the same deference afforded the pro-

mulgations and adjudications of a federal administrative agency, the for-

mal declarations of its governing Board "do constitute a body of

experience and informed judgment to which courts and litigants may

properly resort for guidance." Ritter v. Cecil County Office of Housing

& Community Dev., 33 F.3d 323, 328 (4th Cir. 1994) (quoting Skidmore

v. Swift & Co., 323 U.S. 134, 140 (1944)).

27

We must now determine whether present racial isolation in CMS

may be a vestige of the former dual system, and, if so, whether there

are practicable measures CMS could take to reduce or eliminate that

isolation. In doing so, we are bound to focus particularly on the

Board's record of compliance with the district court's desegregation

orders. See id. at 492 (citing Dowell). Because significant and grow-

ing racial imbalances in student assignment do exist in CMS, because

the Board for decades has failed to comply with certain specific

decrees of the district court (particularly regarding the siting of new

schools), because these failures may have contributed to current racial

isolation, and because future compliance might practicably reduce

this racial isolation, we must vacate the district court's finding that

CMS has achieved unitary status with respect to student assignment.

a.

In the wake of the 1970 desegregation order, virtually all of the

schools in CMS operated in racial balance for a considerable time. By

1998-99 however, nearly thirty percent of the schools in the system

had become racially identifiable.9

9 Of the 126 schools included in the

CMS desegregation plan, twenty-three are identifiably black and thir-

teen more are identifiably white. J.A. 11587. Further, virtually all of

the identifiably black schools are located in either the inner city or in

the immediate northwest-to-northeast suburbs, the areas of Mecklen-

burg County with the highest concentration of African-Americans. In

stark contrast, all thirteen of the identifiably white schools are found

in the extreme northern and southern areas of the county, both of

which (and particularly the latter) have seen dramatic increases in

white population during the past thirty years. The trend in CMS

toward resegregation of its schools has accelerated markedly since the

move to de-emphasize satellite zones and mandatory busing in 1992.

In the last seven years, the number of CMS African-American stu-

_________________________________________________________________

9 Judge McMillan's final desegregation order mandated, inter alia, that

no school should become "racially identifiable." Swann, 311 F. Supp. at

268. Judge Potter interpreted the phrase synonymously with "racially

imbalanced," which, as noted within, describes a school with an African-

American student population deviating more than fifteen points in either

direction from the county-wide norm. See Cappachione, 57 F. Supp. 2d

at 246.

28

dents who attend racially identifiable schools (now almost three in

ten) has risen fifty percent. J.A. 9589.

Indisputably, from 1981 until 1997, the CMS school system went

through significant demographic changes. For example, the total pop-

ulation of Mecklenburg County has grown from 354,656 in 1970 to

613,310 in 1997. J.A. 16247. Almost 100,000 children attend CMS,

making it the twenty-third largest school system in the country. J.A.

7107. During the period from 1970 to 1997, the black school-age pop-

ulation (ages 5 through 17) in the county has increased by approxi-

mately 10,000. J.A. 16247. Over the same period, the corresponding

white school-age population has decreased by approximately 3,000,

id., and by 1997, African-Americans comprised 34 percent of the

county's school-age population, the total of which numbered approxi-

mately 108,600. Evidence before the district court revealed that, since

1970, the growing African-American population has migrated out-

ward from the inner city into formerly white suburbs. In turn, many

white citizens who formerly populated the city's periphery have

moved even farther into the county's outlying reaches. Though parts

of the county have become more integrated as the result of these

shifts, a disproportionately large number of African-Americans still

reside in contiguous clusters generally north and west of the down-

town area.

The primary issue we must address is whether the thirty-six racially

identifiable schools in CMS represent a vestige of segregation -- that

is, whether the present racial isolation is causally related to the prior

system of de jure segregation. The Swann plaintiffs argue, and CMS

agrees, that current racial isolation, like the racial isolation of the

1960s and 1970s, results both from past inequities that, to some

extent, have persisted to this day, and from the Board's failure to

comply with certain specific directives in the remedial decrees in this

case.

Because CMS has not previously been adjudged to have achieved

unitary status in student assignment, we are bound under Swann to

presume that the current racial imbalance in the school population

constitutes a continuing vestige of segregation. 402 U.S. at 26. The

Capacchione plaintiffs have the burden of showing that the present

existence of predominantly one-race schools in CMS "is not the result

29

of present or past discriminatory action." Id.; see also Riddick, 784

F.2d at 535.

Our unwillingness to affirm the conclusion that CMS is unitary

with respect to student assignment centers on the Board's failure to

comply with court orders regarding selection of sites for the construc-

tion of new schools. The role of school siting in achieving sustainable

desegregation should not be underestimated. In fact, the importance

of site selection has been apparent since the early stages of this case.

As the Supreme Court explained in 1971:

In the past [site selection] choices . . . have been used as a

potent weapon for creating or maintaining a state-segregated

school system. . . . [S]chool authorities have sometimes,

since Brown, closed schools which appeared likely to

become racially mixed through changes in neighborhood

residential patterns. This was sometimes accompanied by

building new schools in the areas of white suburban expan-

sion farthest from Negro population centers in order to

maintain the separation of the races with a minimum depar-

ture from the formal principles of "neighborhood zoning."

Such a policy does more than simply influence the short-run

composition of the student body of a new school. It may

well promote segregated residential patterns which, when

combined with "neighborhood zoning," further lock the

school system into the mold of separation of the races. . . .

In ascertaining the existence of legally imposed school seg-

regation, the existence of a pattern of school construction

and abandonment is thus a factor of great weight.

Swann, 402 U.S. at 21.

Subsequent to the Supreme Court's decision in Swann, Judge

McMillan specifically ordered that site selection for new schools

could not "be predicated on population trends alone." 379 F. Supp. at

1107. New schools were "to be built where they can readily serve

both races." Id. In the 1979 Martin decision,10

10 Judge McMillan

_________________________________________________________________

10 Judge Potter incorrectly declared that "Martin was not a unitary sta-

tus hearing[.]" Capacchione, 57 F. Supp. 2d at 250. In fact, as the accom-

30

devoted an entire section of his opinion to demonstrating that "con-

struction, location and closing of school buildings continue to pro-

mote segregation." 475 F. Supp. at 1329. Judge McMillan explained

that "[t]he location of schools plays a large if not determinative role

in . . . insuring that any given assignment and feeder plan will provide

meaningful desegregation, rather than just the predictably short lived

appearance of desegregation." Id. at 1332.

In the years since this decree was issued, CMS has built twenty-

five of twenty-seven new schools in predominantly white suburban

communities. In the mid-1980s, CMS adopted a formal policy of

building "midpoint" schools -- schools located midway between

black and white population centers. There is little evidence, however,

to suggest that CMS faithfully adhered to this policy. Rather, record

evidence strongly indicates that the policy influenced the site selec-

tion for, at most, four of the twenty-seven new schools. See J.A.

15404-06. Meanwhile, as we discuss infra, there is substantial evi-

dence that CMS has allowed many of its older school facilities in the

city -- schools attended in disproportionate numbers by African-

American students -- to fall into a state of disrepair.

The Board's record of building the great majority of its new

schools on the predominantly white suburban fringe of the county

supports two possible conclusions. On one hand, CMS could have

been responding to demographic reality -- a demand for new class-

rooms in areas of high population growth (although we note that the

number of white students in CMS has decreased since 1970, while the

black student population has greatly increased). On the other hand,

the Board's pattern of school construction could have facilitated or

even hastened white flight to the suburbs. As the Supreme Court

explained in Swann, "[p]eople gravitate toward school facilities, just

as schools are located in response to the needs of people. The location

of schools may thus influence the patterns of residential development

_________________________________________________________________

panying text indicates, the white parents in Martin contended, as the

Capacchione plaintiffs do today, that CMS had achieved unitary status.

Intervening African-American parents, like those herein, maintained to

the contrary. In actuality, there is little difference between today's case

and Martin, and Judge McMillan's findings in the latter are as binding

on the parties as any others made in the course of this litigation.

31

of a metropolitan area and have important impact on composition of

inner-city neighborhoods." 402 U.S. at 20-21. The Board's school sit-

ing policies could well evidence its lack of political will in the face

of pressure to abandon desegregative policies -- pressure from fami-

lies who "are concerned about the racial composition of a prospective

school and [who] will make residential decisions accordingly." Free-

man, 503 U.S. at 513 (Blackmun, J., concurring).

There is certainly no evidence that CMS has intentionally sought,

through its school siting policies, to "lock the school system into the

mold of separation of the races" in the way that the Supreme Court

described in Swann. But the actual choices the Board has made with

regard to school siting may in fact be quite similar to the "pattern of

school construction and abandonment" described by the Court, with

the actual effect that the Court feared of "lock[ing] the school system"

into a condition of racial isolation. 402 U.S. at 21. We cannot con-

clude, at least in the absence of further fact-finding, that CMS, in

choosing sites for new schools, has pursued "meaningful desegrega-

tion, rather than just the predictably short lived appearance of deseg-

regation." 475 F. Supp. at 1332.

Rather, the Board's practice of siting new schools such that they

could not reasonably be expected to serve a racially balanced student

population and Judge McMillan's determination that this practice, in

the past, represented the school system's failure to eliminate the ves-

tiges of segregation, together raise a strong inference that those ves-

tiges remain today. When this inference is viewed in combination

with the burden borne by the Capacchione plaintiffs to show that cur-

rent racial imbalances have no causal link to past discrimination, we

are compelled to conclude that a remand to the district court is

required.

Although we defer to a district court's findings of fact unless

clearly erroneous, Judge Potter's error here came in his application of

the legal standard to the evidence regarding the Board's school siting

policies. Judge Potter found that (1) CMS had not discriminated on

the basis of race in choosing sites for new schools and that (2) CMS

had incorporated racial diversity as one of its factors in site selection.

Even assuming arguendo that both findings are not clearly erroneous,

neither is sufficient to support the legal conclusion that in siting new

32

schools CMS acted in compliance with the governing court orders and

Constitution to eliminate the vestiges of segregation to the extent

practicable.

"To fulfill this duty, school officials are obligated not only to avoid

any official action that has the effect of perpetuating or reestablishing

a dual school system, but also to render decisions that further desegre-

gation and help to eliminate the effects of the previous dual school

system." Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090,

1095 (11th Cir. 1992) (citing Pitts v. Freeman , 755 F.2d 1423, 1427

(11th Cir. 1985)). Therefore, CMS had to do more than merely select

sites for new schools on a nondiscriminatory basis. It had to do more,

too, than simply give some consideration to "diversity" in its selection

of sites. To the extent practicable, CMS had to site new schools

"where they can readily serve both races." 379 F. Supp. at 1107; see

also Swann, 402 U.S. at 21; Martin, 475 F. Supp. at 1329-32. Judge

Potter never found that CMS had met this standard, and as outlined

within, there is substantial record evidence that CMS did not do so.

In accordance with Swann, the burden is on the Capacchione plain-

tiffs to prove that vestiges of past discrimination do not remain, or

that nothing can practicably be done to remedy them. We note that

Judge McMillan, in his last published decision in this case, clearly

evidenced his understanding both that CMS had not done all that it

could do in the area of school siting and that future school siting deci-

sions could practicably advance the process of desegregation. On

remand, it is thus incumbent on the Capacchione plaintiffs to demon-

strate that conditions in Charlotte and Mecklenburg County have

changed sufficiently such that school siting no longer represents a

practicable opportunity to eliminate the vestiges of segregation.

The Swann plaintiffs have identified additional areas in which

CMS has fallen short of its obligations under the court orders. For the

life of the desegregation orders, CMS has consistently placed the

heaviest burden of mandatory busing on African-American students.

Currently, 80% of those students who ride the bus as a result of a

mandatory assignment are African-American. J.A. 11515. Judge

McMillan repeatedly ordered CMS to distribute this burden more

fairly. See 475 F. Supp. at 1339-40; 379 F. Supp. at 1103-04; 362 F.

Supp. at 1232-33. Yet, CMS has utterly failed to do so. In addition,

33

CMS has never developed an effective system for monitoring student

transfers to ensure that the overall effect of such transfers is not to

increase the racial imbalance in the system as a whole. Again, this

represents a failure to comply with the explicit instructions of the dis-

trict court. See 475 F. Supp. at 1337-38; 379 F. Supp. at 1103-04; 362

F. Supp. at 1229-30. We are troubled by these failings on the part of

CMS. They provide additional support for a conclusion that, in the

face of political pressure, CMS has not done all that it could do to

eliminate the vestiges of segregation.

Finally, the Board has itself taken the remarkable step of admitting

its noncompliance with prior orders in this case. A school board's

frank acquiescence in a position inuring to its detriment (in this case,

the potential of ongoing judicial intervention), if not treated as con-

clusive, should at least be considered with the utmost gravity. Under

these circumstances, we have no difficulty in determining that the dis-

trict court's conclusion that the Board's level of compliance was "full

and satisfactory" must be vacated.

b.

If the vestiges of official discrimination have indeed been elimi-

nated to the extent practicable with respect to student assignment,

then there is little reason to prolong court supervision. In light of the

district court's failure, however, to recognize the Board's continuing

noncompliance with respect to student assignment -- administered as

recently as twenty years ago in a manner reinforcing the once-official

notion that African-Americans are inferior -- we have no confidence

in the court's ultimate finding that these vestiges have now disap-

peared. We are therefore obliged to vacate the portion of the judgment

below relating to student assignment and remand for further proceed-

ings.

On remand, the district court must first determine whether, since

Judge McMillan's decision in Martin, CMS has fulfilled its constitu-

tional and court-imposed obligations with regard to site selection for

new schools. If CMS has failed to fulfill its obligations, the district

court must then determine whether this failure contributed to the pres-

ent condition of racial isolation in the school system. Finally, if CMS

did fail to live up to its constitutional and judicially decreed obliga-

34

tions, and if that failure did contribute to the present racial imbal-

ances, then the court must determine if proper site selection is a

practicable remedy for the lingering effects of the Board's past dis-

criminatory practices. If not, then the district court should relinquish

control over student assignment: there is nothing further that CMS

can practicably do to eliminate the vestiges of the prior de jure sys-

tem.

If, however, proper sites can be found, then the district court should

retain control over student assignment. The court might decide, for

example, that most or all new schools constructed over the next sev-

eral years be located proximate to the inner city or in midpoint areas

already integrated residentially. Conversely, the district court may

conclude that more flexibility is required because of real estate costs,

crushing demand in the suburban fringes, or for some other sufficient

reason. The court should also consider the efficacy of the Board's

Remedial Plan as a limited term remedy for the racial isolation that

would otherwise continue to exist until the Board's newly redirected

school siting policies can begin to take effect.11

11

Of course, some reasons will not be sufficient to deny African-

American students a remedy, should corrective action be deemed jus-

tified. For example, political pressure and perceived resistance to

change by certain groups in the community will not suffice. Addition-

ally, logistical barriers merely making "difficult" the transport inward

of outlying white students will likewise, if reasonably surmountable,

not be enough. Cf. Capacchione, 57 F. Supp. 2d at 253 (district

_________________________________________________________________

11 The strategies described in the Remedial Plan may be of particular

help to the court in deciding whether practicable measures are available.

The Plan proposes, among other things, to divide Mecklenburg County

into three to five demographically similar "clusters," within which stu-

dents may choose to attend any school, magnet or otherwise. Where the

demand for a given school exceeds the available room, spots would be

assigned by lottery based on factors such as proximity, sibling atten-

dance, and racial, ethnic, and economic diversity. The Plan also outlines

a formal mechanism to disseminate information regarding the enrollment

process, and it provides that the Board will work with the business com-

munity and local government to secure subsidies for disadvantaged fami-

lies wishing to relocate to areas in which low-cost housing is scarce. See

J.A. 11053-59.

35

court's observation that "transport[ing] white students in from satel-

lite zones . . . is difficult given the rush hour traffic patterns").

Although what is "practicable" need not extend to all that is "possi-

ble," rectifying the grievous constitutional wrongs of the past surely

justifies reaching beyond the "difficult" or purely "problematic."

2. Physical Facilities

After describing how CMS has allocated its physical facilities and

resources among its students, Judge Potter concluded that "the Swann

plaintiffs have failed to overcome the Court's previous findings on

facilities by establishing the requisite discriminatory intent and causa-

tion." Id. at 267. Judge Potter's mention of "previous findings" refers

to excerpts from various opinions and orders authored by Judge

McMillan:

April 1969 -- "No racial discrimination or inequality is

found in the . . . . quality of the school buildings and equip-

ment. . . . Schools described by witnesses as `white' ranged

well up and down on both sides of [the average per-pupil

expenditure], and schools described by witnesses as `black'

showed a similar variation." 300 F. Supp. at 1366.

August 1969 -- "The defendants contended and the court

found in its April 23, 1969 order that facilities and teachers

in the various black schools were not measurably inferior to

those in the various white schools. It is too late now to

expect the court to proceed upon an opposite assumption."

306 F. Supp. at 1298.

October 1971 -- "[T]he formerly black schools are not

shown nor suggested to be inferior in faculty, plant, equip-

ment or program." 334 F. Supp. at 625.

Toward the close of the prior proceedings in 1975 (and consistent

with the above), Judge McMillan awarded attorney's fees to the

Swann plaintiffs as prevailing parties, "[e]xcept for the refusal of the

court to find in the plaintiffs' favor . . . regarding adequacy of physi-

cal plants and equipment and teacher quality." Swann, 66 F.R.D. at

484.

36

Judge Potter acknowledged that no court "ha[d] [ ]ever granted uni-

tary status to CMS, nor . . . partially withdrawn supervision as to

facilities or any other Green factor." Capacchione, 57 F. Supp. 2d at

262. The court nevertheless relied on the above 1969 and 1971 find-

ings to release the Capacchione plaintiffs from their burden of prov-

ing CMS unitary with respect to facilities, stating that to proceed

otherwise would "defy logic." Id. at 263. Judge Potter thus accepted

the premise that Judge McMillan's 1969 and 1971 findings "consti-

tute collateral estoppel and law of the case" regarding facilities,

"thereby shifting the burden to CMS and the Swann plaintiffs to show

discriminatory intent." Id. at 262.

We hold the district court's burden-shifting analysis to constitute

an error of law. Once the existence of an unlawful dual school system

has been established and court supervision begun, it is presumed that

racial disparities arising during the period of intervention "are caus-

ally related to prior segregation." School Bd. of the City of Richmond

v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987). Following the imposi-

tion of judicial control, a party seeking to end the status quo bears the

burden of overcoming the presumption of causation. If this burden is

met and the school system is declared to have achieved unitary status

as to the particular factor at issue, the presumption ends. Id. Gener-

ally, in any subsequent proceeding involving new allegations of dis-

parate treatment, the complaining party must show purposeful

discrimination. Riddick, 784 F.2d at 537 (concluding that Swann and

its progeny require proof of "discriminatory intent on the part of the

school board of a unitary school system" in order to resume court super-

vision).12

12

To be sure, the absence heretofore of any finding to the contrary

would have been an important consideration in determining whether

the Capacchione plaintiffs had proved CMS to have achieved unitary

status with respect to facilities. However, that Judge McMillan did not

intend his initial observations regarding facilities to be construed as

a finding of unitary status is obvious from his subsequent actions. In

_________________________________________________________________

12 However, if a district court retains jurisdiction over one or more

Green factors, it may, upon a proper showing, reassert control over a fac-

tor previously adjudged to have attained unitary status. Freeman, 503

U.S. at 508-09 (Souter, J., concurring).

37

1973, Judge McMillan assumed control over facilities and resources,

found inequities, and ordered CMS to remedy those disparities. See

Swann, 362 F. Supp. at 1235 (finding Double Oaks Elementary access

road still undeveloped two years after court's identification of the

problem -- "No $80,000,000 budget is so powerless."); id. (finding

Double Oaks library not restored to standards several years after fire);

id. at 1238 (ordering athletic facilities at West Charlotte High School

immediately upgraded to level comparable with other schools in the

county). We must conclude that the Board has been subject to the

court's jurisdiction as to its facilities since at least 1973. See Dowell,

498 U.S. at 246 (school boards entitled to a "rather precise statement"

terminating a desegregation order).

The asserted lack of a prior adverse finding should not have been

determinative of the issue, especially as the district court in 1969 was

not focusing on a school system suddenly thrust into the judicial

arena, but was instead examining one that had been subject to court

supervision for nearly four years. Between the commencement of the

initial Swann lawsuit in 1965 and the district court's first mention of

the facilities issue in April 1969, CMS closed sixteen black schools.

The Board's en masse action gives rise to an almost undeniable infer-

ence that these schools were shut down because they were inferior,

and the timing also suggests strongly that the closures were prompted

by the judicial proceedings then underway.

Viewed in context, the most plausible conclusion is that the puta-

tive equality mentioned by the district court in 1969 and 1971 was

actually an endorsement of the steps that had been taken by the Board

to remedy the inequities in facilities. In any event, CMS could not be

said to have achieved unitary status absent a finding by the lower

court that the Board had "eliminated the vestiges of its prior discrimi-

nation," embodied in an "adjudicat[ion] . . . through the proper judi-

cial procedures." Georgia State Conference of Branches of NAACP v.

Georgia, 775 F.2d 1403, 1413 n.12 (11th Cir. 1985), quoted in

Dowell, 498 U.S. at 245 (noting distinction between school systems

operating in an unitary fashion and those that have achieved unitary

status, and observing that the former "could be called unitary and nev-

ertheless still contain vestiges of past discrimination").

38

Thirty-five years have passed since the Board first acted to equalize

its facilities, yet serious questions remain as to whether it has finally

realized that goal. Dr. Dwayne E. Gardner, an impressively qualified

educational planner and consultant, compiled an exhaustive report for

the Board in which he evaluated the suitability of its school facilities.13

13

Dr. Gardner examined and personally visited more than half of the

schools in CMS (including all of the high schools), analyzing a host

of factors affecting educational quality. For the purposes of his study,

Dr. Gardner divided the subject schools into three groups: (1) all

imbalanced-black schools; (2) all racially balanced schools in

imbalanced-black census tracts; and (3) each remaining high school,

along with a set of elementary and middle schools randomly selected

from the remaining schools and approximately equal in number to

those already included within the first two groups.

Each school in the study was assigned a composite score from 0-

100, indicating its worthiness. Schools scoring 44 or lower were, in

Dr. Gardner's opinion, so deficient as to merit replacement, while

those with scores between 45-59 were classified as needing "major

improvements." Any school that scored 60 or above was "considered

to have the ability to serve the educational program adequately." J.A.

12174.

The results of Dr. Gardner's study are troubling. The average score

for the forty Group 3 schools (racially balanced or imbalanced-white

in predominantly white or balanced areas) was 61.7. Although the

Group 3 data indicate a situation that is far from ideal, the ten Group

2 schools (racially balanced in predominantly black areas) fared much

worse, with an average score of 56.3. The scores of the twenty-three

Group 1 schools (imbalanced-black) were worse still, averaging just

53.3.14

14 At trial, Dr. Gardner confirmed that the disparities apparent

_________________________________________________________________

13 The district court found that the expert called on behalf of the Capac-

chione plaintiffs, Dr. David J. Armor, could offer no reliable testimony

on the subject. See Capacchione, 57 F. Supp. 2d at 264.

14 It has been famously said (by either Mark Twain or, earlier, Benja-

min Disraeli, depending on one's source), "There are three kinds of lies

-- lies, damned lies and statistics." A common difficulty in dealing with

statistics is illustrated by the district court's analysis of Dr. Gardner's

39

from the above numbers were "substantial" with respect to the facili-

ties generally available to white and African-American children

attending CMS. J.A. 6196-99.

The anecdotal accounts of a number of witnesses effectively cor-

roborated Dr. Gardner's conclusions. See, e.g., J.A. 4992 (testimony

of Board member Pamela R. Mange) (schools with "more severe"

problems tended to be predominantly black); J.A. 4769 (testimony of

Annelle Houk) ("[T]he schools that were in the worst repair and had

the poorest supply of resources . . . were on the west side and they

were predominantly populated by black students."). John A. Kramer,

co-chair of an advisory task force created by the Board, made formal

visits to several CMS schools in 1997. Among the locales on Mr.

_________________________________________________________________

study. The court first noted that, of the four schools scoring in the lowest

category, two were in Group 1 and two were in Group 3. Capacchione,

57 F. Supp. 2d at 264-65. Next, the court observed that the two highest

ratings accorded elementary schools were again split between Groups 1

and 3. Id. at 265. Based on this selective culling of the data, the lower

court concluded that "the results of Dr. Gardner's analysis do not show

disparities along racial lines." Id. at 264.

The forest that is CMS is not sufficiently mapped by the documenta-

tion of a few trees. We could accurately say, for example, that omission

from Group 1 of the brand-new elementary school referred to by the dis-

trict court as having one of the highest ratings would lower the Group 1

average by more than a full point. Or we could state without error that

seven of the twenty-three Group 1 schools (more than 30 percent) scored

below 50, while only five of the forty Group 3 schools (12.5 percent)

scored similarly. Indeed, we note that none of the Group 1 high schools

scored higher than 46, yet all those in Groups 2 and 3 scored at 50 or

above. Of course, one would rightly view this latter declaration with

some skepticism once it became known that there are but fourteen high

schools in CMS, only two of which were included by Dr. Gardner in

Group 1.

The pick-and-choose method gets us nowhere. The value of Dr. Gard-

ner's research lies in the general conclusions that can be drawn from the

entirety of the data. The most obvious conclusion is that, as a general

matter, imbalanced-black schools in CMS are in worse shape than those

attended by larger proportions of white students. Once we accept that

premise, the lone remaining question of any significance is "Why?"

40

Kramer's itinerary were Elizabeth Lane Elementary, a predominantly

white school located in a prosperous suburban area of the county, and

Shamrock Gardens Elementary, a downtown school with an African-

American student population exceeding sixty percent. Mr. Kramer's

descriptions of his visits contrasted sharply:

[T]o compare Elizabeth Lane Elementary as an example,

which is a relatively new school located in Matthews, I

walked into that school, I was overwhelmed because I had

never set foot in a school that was like that before. It was

clean, it was light and airy, it was a beautiful facility. . . .

My overwhelming feeling was, wow, I wish my kids could

go to this school. And another observation that was very

clear was that when I looked at the student body, it was vir-

tually all white students, obviously, affluent, happy kids

having a great time.

On the other hand, my experience, for example, at Sham-

rock Gardens was shocking by comparison. I had never vis-

ited either one of these schools before, but to visit that

school which is in the inner city, the students are predomi-

nantly black students, it reminded me of a rundown 1950s

motel. There was literally no access to the rooms except by

outer walkways that were covered by rusted, dilapidated

overhead fixtures. . . . They were using closets and things

to teach children in. The carpets were stained and thread-

bare. . . . It just didn't feel clean, it didn't feel good. And

I can honestly say that as a parent, my heartfelt reaction was

relief that my children didn't have to go to school there.

J.A. 6098-99. Even those Board members who voted to pursue a

determination of unitary status before the district court admitted that

disparity in facilities was a problem within CMS. J.A. 1817, 1820

(testimony of James H. Puckett); J.A. 1918-19 (testimony of John W.

Lassiter); J.A. 2095-96 (testimony of Lindalyn Kakadelis).

Although it seems reasonably clear that a racial disparity in facili-

ties exists in CMS, its cause is somewhat less apparent. The Capacch-

ione plaintiffs maintain that no discrepancies exist in CMS facilities,

and even if they do, such discrepancies are totally benign in origin.

41

Had the Capacchione plaintiffs proved their theory, we would be con-

strained to affirm the district court's conclusion that unitary status has

been achieved with respect to the facilities factor. The district court,

however, required the Capacchione plaintiffs to prove nothing; it

instead erroneously placed the burden on CMS and the Swann plain-

tiffs to affirmatively show that the present inequities in facilities are

a vestige of official discrimination, i.e., causally related to the prior

de jure system of segregation. Capacchione, 57 F. Supp. 2d at 267.

The district court erred as a matter of law in foreclosing the devel-

opment of evidence relevant to a proper vestige analysis. We must

therefore remand this portion of the case to permit the parties and the

district court to elicit the additional facts necessary to fully consider

the question of causation with respect to the current racial inequities

in facilities. Because CMS has not been previously adjudged to have

attained unitary status, the Capacchione plaintiffs are charged on

remand with the burden of demonstrating that the vestiges of past de

jure racial discrimination in the context of the school system's facili-

ties have been eliminated "root and branch" to the extent practicable.15 15

_________________________________________________________________

15 The district court made no findings as to whether practicable reme-

dies exist with respect to facilities. In light of the court's refusal to con-

sider the Board's proposed five-year Remedial Plan, we cannot

determine in the first instance whether practicable remedies to the current

disparities exist. We therefore remand to the district court for develop-

ment on this point. We note, however, that the Remedial Plan specifi-

cally identifies disparities associated with race in baseline needs for

schools' instructional materials and media centers, and the lack of any

standardized criteria to evaluate the adequacy of these resources. J.A.

11037-38. The Plan proposes to achieve uniformity in resources across

schools by imbalanced allocations that reflect the schools' current

resource gaps and imbalances. J.A. 11038-40. Likewise, the Remedial

Plan identifies disparities associated with race in the instructional facili-

ties, and proposes building replacements or renovating existing facilities

for sixteen schools that are either racially identifiable as black or are

located in a predominantly black census tract. J.A. 11041-42. Uniform

building maintenance standards and procedures are proposed. J.A.

11043. Monitoring, evaluation, and development of appropriate criteria

for evaluation are also proposed to maintain equity across the school sys-

tem's resources and facilities. J.A. 11038-40, 11042-43.

42

3. Transportation

School bus transportation was at the epicenter of the original

Swann litigation, specifically the degree to which involuntary busing

could be used to implement a remedial desegregation decree. The

Supreme Court in Swann, of course, approved busing as a "normal

and accepted tool of educational policy," 402 U.S. at 29, at least to

the extent that the rigors of time and distance would pose little risk

to the affected students' health or to the educational process as a

whole. See id. at 30-31. In the intervening twenty-nine years, CMS

has taken the Court's license to heart; during the 1998-99 school year,

five of every six students in the school system rode a school bus.

Upon review of the Green factor of transportation, Judge Potter

concluded that "a court may grant unitary status when transportation

is provided on a non-discriminatory basis." 57 F. Supp. 2d at 267. In

other words, according to the district court, a school system achieves

unitary status with respect to transportation once it provides access to

transportation non-discriminatorily to black and white children.

Because CMS provides all children, regardless of race, access to

transportation, Judge Potter concluded that CMS had achieved unitary

status with respect to this Green factor.

We must be mindful of the Supreme Court's command to consider

the interrelatedness of the various Green factors. See Freeman, 503

U.S. at 491 (court must consider "whether retention of judicial control

is necessary or practicable to achieve compliance with the decree in

other facets of the school system"). In this context, we can only con-

clude that the Green factor of transportation is so inextricably inter-

twined with the Green factors of student assignment and facilities that

our vacatur on those issues also mandates vacatur on the factor of trans-

portation.16

16

_________________________________________________________________

16 Pursuant to Freeman, the district court accepted the invitation of the

Board and the Swann plaintiffs to consider whether vestiges of official

discrimination remain concerning the ancillary factors of student

achievement and student discipline. The court found in the negative, con-

cluding that CMS had attained unitary status in both areas.

With respect to the ancillary factor of student achievement, we must

vacate Judge Potter's holding that unitary status had been achieved, and

43

The Swann plaintiffs maintain and offer substantial record evidence

that the burdens of busing for desegregation purposes are being borne

disproportionately and unfairly by African-American children. Brief

of Appellants at 31-32, 33-35; see Swann, 306 F. Supp. at 1298 (dis-

trict court commenting in initial stages of remediation that it did not

intend "to endorse or approve any future plan which puts the burden

of desegregation primarily upon one race"). Eighty percent of stu-

dents who currently ride the bus as a result of a mandatory assignment

are African-American. Judge Potter rejected any consideration of this

evidence, holding that a school district has achieved unitary status

with respect to transportation as soon as it is provided on a race-

neutral basis. The evidence, however, demonstrates the close interre-

lationship of transportation with student assignment. In view of our

conclusion that CMS is not yet unitary with regard to student assign-

ment, we think it is premature to relinquish control over transporta-

tion at this stage. On remand, if the district court determines that CMS

must remain under court order to correct the current imbalances in

student assignment, it should also retain control over transportation to

ensure that those imbalances are corrected in a way that is fair to all

students.17

17

_________________________________________________________________

we do so on a basis similar to our analysis of the Green factor of trans-

portation. Judge Potter found that disparities in student achievement

existed but that the disparities (1) were not vestiges of de jure segrega-

tion and (2) could not be remedied by any practicable measure. Capacch-

ione, 57 F. Supp. 2d at 280-81. An analysis of disparities in student

achievement may only be appropriate once the school system has

achieved unitary status in other respects. See Swann, 306 F. Supp. at

1309 ("Until unlawful segregation is eliminated, it is idle to speculate

whether some of this [achievement] gap can be charged to racial differ-

ences or to `socio-economic-cultural' lag."). At the very least, as with

transportation, student achievement in this case is inextricably inter-

twined with the other Green factors, particularly student assignment.

Therefore, having vacated certain of the district court's rulings on unitary

status, including its ruling with respect to student assignment, we must

also vacate the district court's conclusion on student achievement.

We have reviewed and considered the district court's consideration of

student discipline, and we affirm the district court's resolution as to this

ancillary factor.

17 While the Remedial Plan does not specifically address transportation

as a Green factor, it does propose siting new schools in a manner calcu-

44

4. Faculty

Our analysis of this factor must take two concerns into account. We

must determine both whether CMS has generally eliminated the ves-

tiges of discrimination in faculty assignment, and whether the teach-

ers assigned to predominantly black schools are of comparable quality

to those teaching in schools with large numbers of white students.1818

See Swann, 311 F. Supp. at 268 (final desegregation order directing

that the racial composition of faculty assigned to each school reflect

that of the system at large, with the proviso that "the competence and

experience of teachers in formerly or recently black schools will not

be inferior to those in the formerly or recently white schools in the

system").

The evidence at trial demonstrated that CMS assigned its faculty

in substantial compliance with the desegregation order at least until

1992, when school principals were granted the leeway to actively

recruit new teachers without the strictures of maintaining a specific

racial proportion. As a result of this gravitation from centralized to

site-based control of faculty assignments, a trend away from propor-

tionality has emerged. In 1998-99, one-third of the 126 schools cov-

ered by the remedial decree had a proportion of black faculty

deviating more than ten percent from the system-wide norm (about

_________________________________________________________________

lated to promote racial balance in CMS. J.A. 11042. If CMS chooses

sites for new schools that are more accessible to the majority of the black

population, we presume that fewer black students would have to be

bused to the suburbs for purposes of desegretation. A new approach to

school siting would address the vestiges of past discrimination, if such

vestiges remain, in those areas in which CMS has not yet achieved uni-

tary status.

18 The district court considered a particular school to be racially imbal-

anced if its proportion of African-American students varied more than

fifteen percent from the district-wide average. In 1998-99, African-

Americans represented 42.7% of the elementary students in CMS, 41.7%

of the middle school students, and 39.6% of the high school students.

J.A. 11574. An elementary school would therefore be designated

imbalanced-black if more than 57.7% of its students are African-

American; conversely, if African-Americans constituted less than 27.7%

of the student body, the school would be designated imbalanced-white.

45

twenty-one percent). Prior to the 1992 change in policy, no more than

one-sixth of the schools had ever been so situated.

We are satisfied that the current trend toward faculty imbalance is

neither a vestige of the dual system nor the product of subsequent dis-

crimination. There is no evidence that this trend results from legal or

administrative compulsion within CMS or from perceptions about the

desirability or undesirability of teaching positions in schools that

serve students of predominantly one race. In short, we do not perceive

a causal relationship between past de jure segregation and the present

assignment of faculty members to schools within CMS.19 19

Nor do we think that this trend toward more racially imbalanced

faculties has resulted in disparities in the quality of teaching, as mea-

sured by the instructors' years of experience and post-graduate work.

Indeed, there is no significant difference in experience between facul-

ties at imbalanced-black schools as compared to those that are

imbalanced-white. Faculties at black schools are about one year less

experienced than the district-wide average, while faculties at white

schools are correspondingly more seasoned. This disparity may

arouse some initial concerns, until one is informed that the typical

CMS teacher has spent more than ten years in the classroom. The

upshot is that black and white students alike are, with no meaningful

distinction, enjoying the benefits of their teachers' substantial experi-

ence.

The difference in post-graduate education between black-school

and white-school faculties is more pronounced. For every three teach-

_________________________________________________________________

19 Even if the pattern of faculty assignments were somehow shown to

be a vestige of past official discrimination, the evidence before the dis-

trict court casts substantial doubt upon the Board's ability to effect a

practicable remedy. See Capacchione, 57 F. Supp. 2d at 258-59:

CMS runs the risk of losing significant numbers of teachers if its

faculty assignment policies become too restrictive. . . . Another

practical problem faced by the district is the fact that it must con-

stantly hire thousands of new teachers in the midst of a national

teacher shortage . . . [which] is especially pronounced with

regard to black teachers, particularly in this region of the coun-

try.

46

ers holding advanced degrees who ply their craft at imbalanced-white

schools, there are only two similarly qualified teachers assigned to

schools that are imbalanced-black. Compared to the district average,

white schools have a somewhat larger proportion of these highly

trained instructors, while the allotment granted to black schools is

slightly less than the norm.

Although these facts give us reason for concern, we think it impru-

dent to disturb the district court's conclusion that the trial evidence

affirmatively disclosed no link between past discrimination and the

current asymmetry. Most revealing on this point is that, until now, the

issue of teacher quality within CMS has not been contested. The 1970

desegregation order mandating equal competence and experience in

faculty assignments was not meant to remedy disparities then exist-

ing, but was instead intended to caution against future imbalances. In

the intervening thirty years, there is little indication that CMS has

neglected to heed the warning inherent in that order.

The district court did not clearly err in concluding that the develop-

ing disparities in teacher assignments and any (perhaps superficial)

deficiency in the quality of instruction currently afforded African-

American children are unrelated to the de jure segregation once prev-

alent in the school system. We therefore affirm the lower court's find-

ing that CMS has attained unitary status with respect to faculty.20

20

5. Staff

In substantially the same manner as it spoke to the allocation of

teachers, the final desegregation order provided that "the internal

operation of each school, and the assignment and management of

school employees, of course be conducted on a non-racial, non-

discriminatory basis." Swann, 311 F. Supp. at 269. Inasmuch as the

Swann plaintiffs raised no challenge to the school system's compli-

ance with the desegregation order in this regard, the court below

_________________________________________________________________

20 Although the Board's official position, as outlined in its Remedial

Plan, is that remediable vestiges of de jure segregation do remain as to

faculty assignments and quality, the clear weight of the evidence is to the

contrary. The district court's failure to consider the Plan was therefore

harmless in this narrow respect.

47

found CMS to have achieved unitary status with regard to its support

staff. We agree, and we affirm that aspect of the district court's judg-

ment.

6. Extracurricular activities

According to the evidence at trial, African-American students in

CMS participate in athletics and hold class office at a rate proportion-

ate to their numbers. These same students lag far behind, however,

when it comes to participating in co-curricular clubs and honors pro-

grams. J.A. 11634. However, the scope of our inquiry concerning

extracurricular activities is limited. We need only determine whether

the school system permits its students equal access to extracurricular

activities, without regard to race. Coalition to Save Our Children v.

State Bd. of Educ. of Delaware, 90 F.3d 752, 768-69 (3d Cir. 1996)

(citation omitted); see also Swann, 402 U.S. at 18-19 ("[T]he first

remedial responsibility of school authorities is to eliminate invidious

racial distinctions. With respect to such matters as transportation, sup-

porting personnel, and extracurricular activities, no more than this

may be necessary. . . . In these areas, normal administrative practice

should produce schools of like quality, facilities, and staffs.").

The criterion of equal access is surely satisfied in this regard. Par-

ticipation in honors programs and co-curricular clubs is strictly volun-

tary, and there is no evidence that the lack of participation by African-

American students in certain activities reflects the efforts of CMS to

exclude them. We discern no error in the district court's conclusions

regarding this Green factor, and we therefore affirm its finding that

CMS has achieved unitary status with respect to extracurricular activ-

ities.

C.

Pursuant to the foregoing, we conclude that the district court

should be affirmed in its determination of unitary status with respect

to faculty, staff, extracurricular activities, and student discipline.

However, we also conclude that we must vacate and remand for fur-

ther consideration in the areas of student assignment, facilities, trans-

portation, and student achievement.

48

Volume 2 of 3

49

III.

We now turn to the question of whether the Board's expanded

magnet schools program violates the Constitution.

Even if we had concluded that the district court was correct in

decreeing that CMS has now achieved unitary status in all respects,

any preceding remedial measures could not be analyzed as if they had

been taken by a "de facto" unitary school district. Prior to the decision

below, no court had ever determined that CMS had attained unitary

status as to any Green factor. As the Capacchione plaintiffs concede,

Judge Potter's decision -- not some earlier event-- "terminated [the]

injunction" issued by Judge McMillan and affirmed by the Supreme

Court. Brief of Appellees at 3.

The Supreme Court has made it clear that unitary status is a legal

concept that has no "fixed meaning or content" independent of the

judicial proceeding in which "unitariness" is conferred. Freeman, 503

U.S. at 486-87. The Court has consistently held that desegregation

decrees remain in effect until they are terminated by a court in unam-

biguous terms. See Dowell, 498 U.S. at 244-46 (finding district

court's prior determination of "unitariness" too ambiguous to dissolve

desegregation decree and emphasizing that litigants are entitled to a

"rather precise statement" if a decree is to be terminated); Spangler,

427 U.S. at 438-40 (holding that even an unconstitutional court order

remains in effect until a "definitive disposition" is reached on the con-

50

stitutional objection). Thus, Judge Potter properly acknowledged that

the law would not support a judicial finding that a school district had

attained unitary status at a point in time prior to the court's own uni-

tariness determination. See Capacchione, 57 F. Supp. 2d at 285 ("The

Court finds no legal basis for a finding of de facto unitary status that

would abrogate CMS's immunity retroactively. In other words, the

termination of court supervision cannot `relate back' to an earlier

time.").

Judge Potter nevertheless held that the expanded magnet schools

program was "ultra vires," beyond the scope of action authorized

under the series of injunctions and orders governing desegregation of

CMS. Id. After holding that the magnet schools program exceeded the

scope of these injunctions and orders, the district court proceeded to

analyze whether the program violated the Capacchione plaintiffs'

constitutional rights. Applying strict scrutiny, the court concluded that

the expanded magnet schools program could not be legally justified.

Id. at 287-90.

We review the district court's factual findings for clear error and

its legal conclusions de novo. See Freeman, 503 U.S. at 474; United

States v. Texas, 158 F.3d 299, 306 n.8 (5th Cir. 1998); Little Rock

Sch. Dist. v. North Little Rock Sch. Dist., 109 F.3d 514, 516 (8th Cir.

1997).

For the reasons that follow, we must reverse. In fact, the injunc-

tions and orders governing this case specifically authorize every sig-

nificant aspect of the expanded magnet schools program, including

the use of racial proportions in assigning students to magnet schools.

Furthermore, the Board's obligation to obey these court orders insu-

lates it from constitutional attack for actions taken in compliance with

them.

A.

Magnet schools are designed to achieve desegregation by offering

some kind of special program or curriculum that will attract students,

regardless of race, from throughout a school district. See Missouri v.

Jenkins, 495 U.S. 33, 40 n.6 (1990); see also 20 U.S.C. § 7204 (1999)

(a magnet school is "a public elementary or secondary school . . . that

51

offers a special curriculum capable of attracting substantial numbers

of students of different racial backgrounds"). Magnets "were first con-

ceived and developed in large, urban school districts seeking a volun-

tary alternative to busing as a means of decreasing racial segregation."

J.A. 10654. Critical to the magnet school concept is voluntary choice

-- students choose to attend magnet schools because of their desire

for the special programs such schools offer. Thus, magnet schools,

when not permitted to become dominated by one race, act as "incen-

tives for parents to keep their children in the public school system and

to send their children to integrated schools." J.A. 15509.

Since the 1970s, school boards throughout the country have uti-

lized magnet schools as part of desegregation plans that have been

routinely approved by the courts. See, e.g., Milliken v. Bradley, 433

U.S. 267, 272 (1977) (Milliken II); Stell v. Savannah-Chatham

County Bd. of Educ., 888 F.2d 82, 85-86 (11th Cir. 1989); Little Rock

Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 839 F.2d 1296,

1309-12 (8th Cir. 1988); United States v. Yonkers Bd. of Educ., 837

F.2d 1181, 1237-39 (2d Cir. 1987); Liddell v. Missouri, 731 F.2d

1294, 1310-11 (8th Cir. 1984).

Almost invariably, magnet school programs include an assignment

policy that takes race into account "to assure to the greatest extent

possible that these voluntary attendance schools not work to under-

mine the progress of desegregation." Davis v. East Baton Rouge Par-

ish Sch. Bd., 721 F.2d 1425, 1440 (5th Cir. 1983). Such a policy is

necessary to prevent magnet schools from "serv[ing] as a haven for

those seeking to attend a school predominantly composed of their

own race". Morgan v. Kerrigan, 530 F.2d 401, 423 (1st Cir. 1976);

see also Jenkins v. Missouri, 942 F.2d 487, 488-89 (8th Cir. 1991);

Stell, 888 F.2d at 83; Little Rock Sch. Dist., 839 F.2d at 1311; Yonkers

Bd. of Educ., 837 F.2d at 1215; Liddell, 731 F.2d at 1310.

The various court decisions reflect a cautious enthusiasm for the

utilization of magnet schools, both because such schools allow for

more flexibility in student assignment and because they rely more

heavily on voluntary choice than mandatory busing. See, e.g., Jenkins,

515 U.S. at 92 ("Magnet schools have the advantage of encouraging

voluntary movement of students within a school district in a pattern

that aids desegregation on a voluntary basis, without requiring exten-

52

sive busing and redrawing of district boundary lines.").21

21 Further, no

authority suggests that magnet programs with race-conscious assign-

ment policies constitute an inappropriate vehicle for achieving deseg-

regation under a court-sponsored plan. Indeed, it is difficult to see

how a magnet program devised, with court approval, to eliminate ves-

tiges of segregated schools could do so if school authorities were not

permitted to control the racial composition of magnet school enroll-

ment.

By the 1970s, CMS had established some magnet schools, which

it called "optional schools." These early magnet schools had race-

conscious assignment policies. See 379 F. Supp. at 1106, 1108; J.A.

2489. Moreover, they offered two special curricula -- "open" and

"traditional" -- both of which constituted "very rigorous academic

program[s]" not offered in "conventional schools." J.A. 2489, 15683.

Judge McMillan approved these magnet schools, including their race-

conscious assignment policies. See 379 F. Supp. at 1105-106.

In 1992, the Board expanded its magnet schools program into a

district-wide system with a wider range of curricular choices. In the

expanded magnet schools program, the Board retained the curricula

first available in the early magnet or "optional" schools -- the "open"

curriculum, emphasizing "interdisciplinary approaches," and the "tra-

ditional" curriculum, featuring a "highly structured program." J.A.

16722-23. Furthermore, six of the early magnets that offered such

curricula prior to 1992 -- Myers Park, Elizabeth, Hawthorne, Irwin

Avenue, Piedmont, and West Charlotte -- continue to do so today

under the expanded magnet schools program. Compare J.A. 13448,

13529-40, 15683 (pre-1992 "open" and "traditional" magnets) with

J.A. 16722-23 (1998-99 "open" and "traditional" magnets); see also

J.A. 10061 (report indicating that pre-1992 magnet schools were

incorporated into the 1992 expanded magnet schools program).22 22

_________________________________________________________________

21 The courts' caution essentially anticipates the position of the Swann

plaintiffs in this case: that magnet schools are insufficiently desegrega-

tive at best, and that at worst they simply provide an "escape hatch" for

white students who would otherwise attend majority black schools, leav-

ing those majority black schools even more segregated than they had

been before.

22 Judge Potter recognized that the optional schools "were similar to

today's magnet schools," both having countywide enrollment and a racial

53

Race is considered in assigning students to the magnet schools

instituted under the 1992 expanded program, just as it was in assign-

ing students to the original magnet or optional schools. See 379 F.

Supp. at 1108. Specifically, under the expanded program, CMS allo-

cates 40% of the seats in its magnet schools for black students and

60% for students of other races. This ratio reflects the student popula-

tion of the school system, which is approximately 41.0% black,

52.2% white, 3.7% Asian, 2.5% Hispanic, and .5% American Indian.23

23

CMS generally assigns students to its magnet schools using two paral-

lel lotteries, one for black students and one for students of other races.

When there has been insufficient interest from black students to fill

the seats allocated to them in a particular school, CMS has sometimes

_________________________________________________________________

balancing target." Capacchione, 57 F. Supp. 2d. at 286. He nonetheless

concluded that the schools established after 1992 under the expanded

magnet schools program "differ from optional schools in that [the new]

magnets offer specialized curricula and thereby confer a benefit above

and beyond the regular academic program." Id. at 286-87 n. 49. But

nothing in the record supports this view. To the contrary, assuming

arguendo that "specialized curricula" constitute a "benefit," the magnet

schools instituted after 1992 provide precisely the same "benefit" as the

pre-1992 "optional schools." See J.A. 10552 (proposed 1992 pupil

assignment plan recommending continuation of six magnet schools

already in place); J.A. 15504 (1993 letter noting that magnet schools

were called "optional schools" prior to 1992); J.A. 10651 (Summary of

Findings From Research on Magnet Schools explaining that "[o]ur

optional schools function as magnet schools"); J.A. 13606, 15581 (Stolee

Plan explaining that "[the traditional schools presently existing in

Charlotte-Mecklenburg are good examples" of curriculum specialty

schools, "sometimes called magnet schools"). After all, it was only

because the optional schools did offer certain "specialized curricula" that

parents (including Michael Grant, one of the Capacchione plaintiffs, J.A.

2489) were willing, well prior to the 1992 expanded magnet schools pro-

gram, to enroll their children in desegregated optional schools. See J.A.

13641, 15616. In fact, the original six "open" and "traditional" schools

remain among CMS's more heavily subscribed magnets. See J.A. 10292-

340. Myers Park Traditional, for example, had 245 students on its wait-

ing list for the 1998-99 school year. See J.A. 2159.

23 For simplicity, we often refer within to non-African-American stu-

dents in the magnet schools as "white."

54

refused to allow students of other races to fill those slots. Thus, race

may affect a student's chances of being assigned to a magnet school.

B.

The Capacchione plaintiffs contend that the expanded magnet

schools program violates the Equal Protection Clause. Recognizing,

if only implicitly, the difficulty in maintaining that actions taken pur-

suant to court orders violate the Constitution, they principally argue

that the expanded magnet program was not implemented under the

court orders governing this case. Specifically, they first contend that

the Board's increased reliance on magnet schools constituted a "vol-

untary desegregation plan implemented to counteract demographic

change," rather than a good faith effort to eliminate the vestiges of

discrimination as required by the existing desegregation orders. Sec-

ond, they argue that the expanded program's race-conscious assign-

ment lottery violated the desegregation orders. Finally, they maintain

that even if CMS expanded its magnet schools program pursuant to

and in compliance with governing court orders, strict scrutiny none-

theless applies and requires that the program be held unconstitutional.

We consider each contention in turn.

1.

The Capacchione plaintiffs note that implementation of the

expanded magnet schools program followed on the heels of demo-

graphic changes in the Charlotte-Mecklenburg area. As discussed in

connection with student assignment, supra, the Charlotte-

Mecklenburg area has experienced in recent decades both strong pop-

ulation growth overall and intensive out-migration from the city to the

suburbs and from older, inner-ring suburbs to newer suburbs in the far

northern and southern areas of the county. For these reasons, the

Capacchione plaintiffs insist that the expanded magnet program was

necessarily a response to demographic change rather than a true

attempt to remedy past discrimination.

We cannot agree. First, Judge Potter "accept[ed] that the school

system was acting to . . . remedy[ ] the effects of past racial discrimi-

nation" in expanding the number of magnet schools in 1992. Capac-

chione, 57 F. Supp. 2d at 289. Ample record evidence supports this

55

finding. See, e.g., J.A. 2716 (testimony of John Murphy, former CMS

Superintendent, that 1992 plan to expand the magnet school program

was among the "creative strategies we could come up with to stay in

compliance with the court order"); J.A. 3869-74 (testimony of Jeff

Schiller, former assistant superintendent for research, assessment, and

planning for CMS, explaining that the 1992 student assignment plan,

including the expanded magnet schools program, "had the same

objectives as the one that it was going to replace, maintaining the

court order," and that the objective of the expanded magnet program

specifically was "to maintain the integration of schools through vol-

untary means"); J.A. 15503-05 (1993 letter from CMS to the U.S.

Department of Education discussing Judge McMillan's 1974 order

and identifying the creation of additional magnet schools as among

the "more effective ways . . . [to] meet[ ] the guidelines established

by the Court"); J.A. 13607, 15582 (Stolee Plan recommendation that

"[the Charlotte-Mecklenburg school desegregation plan should be

gradually changed from a mandatory plan with little voluntarism to

a voluntary plan with few mandatory facets").

Furthermore, the dichotomy the Capacchione plaintiffs suggest

between "counter[ing] demographic change," on the one hand, and

remedying past discrimination, on the other, oversimplifies both the

law of school desegregation, particularly the Supreme Court's deci-

sions in Green, Swann, and Freeman, and the practical reality of

achieving desegregation in a large urban school district. From the

early stages of the Swann litigation, it has been understood that demo-

graphic patterns would complicate the process of school desegrega-

tion. Indeed, remedies like school busing and satellite attendance

zones would never have been necessary in the first place if the

demography of the community were not an obstacle to desegregation.

In a sense, Swann's basic teaching is that the Constitution sometimes

requires schools to "counter demograph[y]" in order to achieve deseg-

regation. The Swann Court noted that the process of "local authorities

. . . meet[ing] their constitutional obligations" had "been rendered

more difficult by changes . . . in the structure and patterns of commu-

nities, the growth of student population, [and] movement of families."

402 U.S. at 14. The Court expressed concern that"segregated residen-

tial patterns . . . [would] lock the school system into the mold of sepa-

ration of the races." Id. at 21. Thus, CMS simply followed the

56

Supreme Court's guidance in Swann in regarding demographic

change as a problem inhibiting its progress toward unitary status.24

24

Moreover, Freeman simply did not hold, as the Capacchione plain-

tiffs necessarily imply, that demographic changes in a metropolitan

area independently eliminate the vestiges of past discrimination. Nor

does Freeman bar courts from targeting racial isolation resulting in

significant part from "private choice," if that isolation is also a vestige

_________________________________________________________________

24 The Capacchione plaintiffs contend that, given the obvious concern

of school officials with demographic changes, "CMS could not have

been motivated by any desire to comply with its court-ordered duty to

eradicate vestiges of segregation." Brief of Appellees at 85. But this

stands the analysis on its head. A court determines from the effect of their

acts, not from their motives, whether school authorities comply with a

desegregation decree. See Wright v. Council of Emporia, 407 U.S. 451,

462 (1972) ("It is difficult or impossible for any court to determine the

sole or dominant motivation behind choices of a group of legislators, and

the same may be said of the choices of a school board. . . . Thus we have

focused upon the effect -- not the purpose or motivation -- of a school

board's action in determining whether it is a permissible method of dis-

mantling a dual system.") (internal quotations marks omitted). Moreover,

even if motivation were relevant, the argument would fail. A fair reading

of the record demonstrates that although school officials were obviously

aware of the demographic shifts, they viewed these shifts as an obstacle

to achieving compliance with the Swann orders and to eliminating the

vestiges of discrimination in the school system, not as the condition that

itself necessitated a remedy. See, e.g., J.A. 13597-98, 15572-73 (Stolee

Plan identifying "a growing and moving population" as one of several

factors creating instability in student assignment under the pre-1992 sys-

tem of pairing and satelliting); J.A. 15504 (1993 letter from CMS to the

U.S. Department of Education listing "demographic and residential pat-

terns" as one of several increasing strains on the pairing system); J.A.

2712 (testimony of former CMS Superintendent John Murphy that "[w]e

really weren't going to be bringing about desegregation and racially bal-

anced schools unless we began to address the issue of housing at the

same time."). The Board may have chosen sites for new schools in

response to, or even in furtherance of, these demographic trends, see

supra, but in any event the Board also clearly evidenced awareness that

the population changes, particularly the greater distance between white

and black population centers, would put a greater strain on the process

of desegregation.

57

of past discrimination. The effect of such a holding in Freeman would

have been to overrule Green, which the Supreme Court did not pur-

port to do. In Green, even though the school board allowed every stu-

dent "freedom of choice" as to which school to attend, the formerly

black school remained all black and the formerly white school

remained predominantly white -- wholly as a result, in some sense,

of this "private choice." The Green Court held that, although the pri-

vate choices of students and their families were responsible for the

continuing racial isolation of the schools' student populations, that

fact did not preclude a finding that the racial isolation was also a ves-

tige of past discrimination. Indeed, the Court held not only that it was

permissible for the school board to take further action to desegregate,

but that the board was required to take further action in order to fulfill

its "affirmative duty" to desegregate. Green, 391 U.S. at 437-38.

Although Freeman recognized that, at a certain point in the process

of desegregation, a court may determine that present racial isolation

cannot be considered a by-product of the past regime of segregation,

the case does not require -- or even empower -- a school board

under a judicial desegregation order to make that determination on its

own. Rather, so long as CMS was under court order to desegregate,

it was required to treat racial isolation in its schools as a vestige of

segregation, and to take appropriate action to eliminate that vestige.

See Swann, 402 U.S. at 26.

2.

The Capacchione plaintiffs next contend that the expanded magnet

program's race-conscious assignment policy violated the desegrega-

tion orders governing this case. With this argument, Judge Potter

agreed, concluding that "the way that CMS's magnet program uses

race . . . is significantly different from any assignment policy ordered

or approved of in Swann," and thus constituted a "material departure"

from the governing desegregation orders. Capacchione, 57 F. Supp.

2d at 286-87.

That holding constituted clear error. Actually, Judge McMillan spe-

cifically authorized and incorporated into his decree a race-conscious

assignment policy for "appropriately integrated optional schools." 379

F. Supp. at 1103. The policy provided:

58

Strict and central control must be exercised over all admis-

sions (reassignments) to each optional school in order to

fulfill the necessary ends that these schools be open to all

county residents and be integrated by grade at or above

approximately a 20% black ratio. Reassignments to optional

schools must not jeopardize the racial composition of any

other school.

Guidelines and central monitoring by the Pupil Assign-

ment staff with the respective school principals are to be

drawn up. Capacities and allocation of maximum numbers

of students that may be drawn from each other school atten-

dance area, by race, are to be designated. The actual enroll-

ment 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 considerations of space and pro-

gram only.

Id. at 1108 (emphasis added).25

25

Moreover, one need look no further than Chief Justice Burger's

opinion for the Supreme Court in Swann to find explicit sanction of

the use of racial "ratios" or proportions in assigning students to

schools:

School authorities are traditionally charged with broad

power to formulate and implement education policy and

might well conclude, for example, that in order to prepare

students to live in a pluralistic society each school should

have a prescribed ratio of Negro to white students reflecting

the proportion for the district as a whole. To do this as an

educational policy is within the broad discretionary powers

of school authorities; absent a finding of a constitutional

violation, however, that would not be within the authority of

a federal court.

_________________________________________________________________

25 In accord with this court-approved policy, from 1975 to 1991, prior

to expansion of the magnet schools plan, CMS continued to use a race-

conscious lottery system to control enrollment in optional, or magnet,

schools. See J.A. 2489-91, 2822-23, 14502, 16885-89.

59

402 U.S. at 16 (emphasis added).

Judge McMillan's orders also repeatedly endorse the Board's

power and duty to maintain control over the racial composition of the

schools in order to eliminate the vestiges of the segregated system

"root and branch." For instance, in 1970 Judge McMillan mandated:

That the defendants maintain a continuing control over the

race of children in each school . . . and maintain the racial

make-up of each school (including any new and any re-

opened schools) to prevent any school from becoming

racially identifiable. . . . The duty imposed by the law and

by this order is the desegregation of schools and the mainte-

nance of that condition. . . . The defendants are encouraged

to use their full “know-how” and resources to attain the

results above described, and thus to achieve the constitu-

tional end by any means at their disposal. The test is not the

method or plan, but the results.

311 F. Supp. at 268-69 (emphasis added and emphasis omitted); see

also 475 F. Supp. at 1342 (approving counsel's statement that "if this

Board of Education chose to run an integrated school system on the

basis of preconceived ratios, it has that constitutional right") (empha-

sis added); 318 F. Supp. at 801 (ordering "[t]hat `freedom of choice'

or `freedom of transfer' may not be allowed by the Board if the cumu-

lative effect of any given transfer or group of transfers is to increase

substantially the degree of segregation in the school from which the

transfer is requested or in the school to which the transfer is desired").

Thus, even if Judge McMillan had not specifically approved a race-

conscious assignment policy for magnet schools, the Board's adop-

tion of the 60-40 formula and lottery in the expanded magnet program

would not be an "ultra vires" act. Rather, that policy would fall within

the Board's broad discretion, recognized by both Judge McMillan and

the Supreme Court in Swann, to fashion appropriate remedies in light

of the particular needs of its pupils and the school system's experi-

ence with other desegregation tools.2626

_________________________________________________________________

26 Judge McMillan's orders and the Supreme Court's opinion in Swann

did consistently signal concern with the imposition of racial proportions

60

Judge Potter's conclusion to the contrary simply cannot be recon-

ciled with the Supreme Court opinion in Swann and Judge McMil-

lan's decrees. The race-conscious assignment policy constitutes a

necessary safeguard against the risk that unchecked transfers to mag-

net schools could increase the number of racially identifiable schools

in violation of the Board's continuing obligation under the desegrega-

tion orders. See 379 F. Supp. at 1105 ("Racially identifiable schools

may not be operated."). In that vein, the Capacchione plaintiffs' own

expert on school desegregation, Dr. David Armor, agreed that racial

quotas are permissible in a desegregation plan. J.A. 3627. Dr. Armor

testified that "race is an integral part of pairing, of satelliting, of mag-

net schools, of running lotteries for magnet schools. The entire plan

is predicated on race and race controls, because that's the only way

you can meet the court order and to have an effective plan is to

employ race requirements and racial quotas basically for all schools."

J.A. 3434.

Nor can Judge Potter's disapproval of the expanded magnet

schools program be reconciled with other court-approved aspects of

the CMS desegregation plan. For example, the magnet schools assign-

ment policy takes race into account in much the same way as the

Board's majority-to-minority transfer policy, which was also specifi-

_________________________________________________________________

or ratios by federal courts. That concern, however, is rooted in the prob-

lem of federal courts exceeding their remedial discretion, not in any

objection to the use of racial proportions or ratios by school boards in

their desegregation plans. Thus, the Supreme Court noted 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," but went on to conclude that "the very

limited use made of mathematical ratios was within the equitable reme-

dial discretion of the District Court." Swann, 402 U.S. at 24-25. That this

concern with ratios is rooted in the limits of judicial power to order

remedial action, not in the impropriety of using racial proportions to rem-

edy the vestiges of segregation, is nowhere more apparent than in Chief

Justice Burger's statement in Swann. There the Chief Justice noted that

while in certain circumstances it might be inappropriate for a federal

court to require adherence to "a prescribed ratio of Negro to white stu-

dents reflecting" the population of the "district as a whole", it would be

"within the broad discretionary powers of school authorities" to do so. Id.

at 16.

61

cally authorized by the governing desegregation orders. Under the

transfer policy, a student in the racial majority in his current school

could freely transfer to a school in which he would be in the racial

minority. A white student in a majority white school, for example,

could freely transfer to a majority black school, but that same student

could be denied admission to a different majority white school, solely

on the basis of a rigid 50% racial ceiling. Meanwhile, a black student

at a majority black school could freely transfer into the same majority

white school to which the white student might be denied admission.

The Supreme Court approved this use of majority-to-minority transfer

policies as "a useful part of every desegregation plan" and "an indis-

pensable remedy." Swann, 402 U.S. at 26.

Judge Potter misread the orders and injunctions governing this case

by focusing solely on isolated words and phrases to conclude that the

desegregation decrees "firmly rejected the use of rigid racial quotas."

Capacchione, 57 F. Supp. 2d at 286. Actually, in the same paragraph

that Judge McMillan held that "[f]ixed ratios of pupils in particular

schools will not be set" by the court, he also held that "efforts should

be made [by the school board] 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." 306 F. Supp. at 1312 (emphasis

added). Judge Potter transmuted this statement -- a requirement that

the Board make "efforts" to "reach a 71-29 ratio" -- into a prohibition

against the Board assigning students to schools on the basis of that

fixed ratio. See Capacchione, 57 F. Supp. 2d at 286. We cannot

accept this reading of Judge McMillan's order. Taken as a whole, this

paragraph provides some of the clearest evidence that Judge McMil-

lan not only authorized the Board to use fixed ratios in assigning stu-

dents to schools but encouraged it to do so. Recognizing the

impracticability of adopting a court-ordered, system-wide racial bal-

ance to which all schools must adhere, Judge McMillan did observe

that "variations from that [71-29 ratio] may be unavoidable." 306 F.

Supp. at 1312. But that statement imposes no limitations on the scope

of permissible Board action. Rather, it suggests that "variations" were

acceptable only because they were "unavoidable."

Indeed, the Board could not have accomplished what the desegre-

gation orders required it to accomplish without "using race" in the

way that it "used race" in the context of the expanded magnet schools

62

program. In the 1970 order that was affirmed by the Supreme Court,

Judge McMillan decreed "[t]hat pupils of all grades be assigned in

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

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

dents." 311 F. Supp. at 268. We cannot fathom how the Board could

set out to achieve "about the same proportion of black and white stu-

dents" in each grade level in each of its over one hundred schools

without employing fixed racial ratios as the central components of its

student assignment plan. Neither, apparently, could Judge McMillan.

To achieve "about the same proportion," the Board necessarily had

to set fixed upper and lower limits on the proportion of white and

black students it would permit in each grade in each school. Only

with these fixed racial proportions as its lodestars could the Board

assign students to schools, and approve or deny individual requests to

transfer. The Board could never have justified a denial of a transfer

request without having a fixed conception of how few white or black

students in a particular school would be too few.

In sum, contrary to Judge Potter's conclusion, Judge McMillan

specifically authorized the use of fixed ratios based on race in assign-

ing students to magnet schools. See 379 F. Supp. at 1104. Further-

more, even without such specific authorization, the broad discretion

granted the Board by the Supreme Court's opinion in Swann and by

the other court orders and injunctions governing this case permitted

CMS to fashion magnet schools with racially balanced enrollments.

The decrees make plain that ratios based on race were among the

"means" by which the Board was authorized"to achieve the constitu-

tional end" of desegregation.

3.

Finally, the Capacchione plaintiffs maintain that, even if CMS

administered the expanded magnet schools program pursuant to and

in conformity with the governing desegregation decrees, CMS vio-

lated the Constitution in doing so. Judge Potter rejected this argument,

as do we.

a.

In fact, court-ordered remedial action cannot be found violative of

the Constitution. Rather, as Judge Potter recognized, actions taken by

63

CMS pursuant to the desegregation decrees are immune from consti-

tutional attack. See Capacchione, 57 F. Supp. 2d at 285 ("CMS enjoys

immunity from liability for any actions it took consistent with the

Court's injunction.").

The Supreme Court has clearly and unequivocally proclaimed that

"persons subject to an injunctive order issued by a court with jurisdic-

tion are expected to obey that decree until it is modified or reversed,

even if they have proper grounds to object to the order." GTE Syl-

vania, Inc. v. Consumers Union of the United States, 445 U.S. 375,

386 (1980) (emphasis added); see also W.R. Grace & Co. v. Local

Union 759, 461 U.S. 757, 766 (1983). Under this "established doc-

trine," GTE, 445 U.S. at 386, an injunction unconstitutional on its

face must nonetheless be obeyed. See Walker v. City of Birmingham,

388 U.S. 307, 317 (1967). "[D]isobedience of such an outstanding

order of a federal court subjects the violator to contempt even though

his constitutional claim might be later upheld." Spangler, 427 U.S. at

439. Thus, so long as CMS acts -- as it has -- to desegregate its

schools in accordance with existing injunctive orders, its actions can-

not be challenged as unconstitutional.

Indeed, the Supreme Court has twice expressly held that school

boards under court orders to desegregate must comply with those

orders until absolved of that obligation by a subsequent court order,

even when the existing desegregation order is improper or unneces-

sary. In Spangler, the Court concluded that the district court exceeded

its remedial discretion when it ordered the Pasadena school district to

reconfigure its student attendance zones annually so that there would

be "no majority of any minority" in any school. 427 U.S. at 434-35.

Despite the impropriety of this order, the Court held that the school

board was obliged to obey it until it was properly and explicitly modi-

fied by a court. See id. at 438-40.

Similarly, in Dowell, the Court refused to interpret an arguably

ambiguous court order as having terminated the desegregation decree

previously entered against the Oklahoma City school board. Instead,

the Court remanded the case to the district court for a clear determina-

tion of "whether the Board made a sufficient showing of constitu-

tional compliance . . . to allow the injunction to be dissolved." 498

U.S. at 249. In doing so, the Court explained that judicial orders carry

64

binding authority until they are modified or dissolved and admon-

ished district courts to provide the parties with a "precise statement"

when modifying or dissolving a desegregation decree. Id. at 246; see

also Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 421 ("a school

board and a school constituency which attempt to comply with a

[desegregation] plan to the best of their ability should not be penal-

ized").

In short, the Capacchione plaintiffs could have sought to modify

or dissolve the Swann orders as inconsistent with their rights under

the Constitution; what they could not do is obtain an injunction, or

declaration, that a party compelled to adhere to those orders violated

the Constitution in doing so. CMS's obligation to follow the desegre-

gation orders and injunctions in this case provides it with a complete

defense to the Capacchione plaintiffs' challenge to the expanded

magnet schools program.

b.

The Capacchione plaintiffs ignore the controlling authority set

forth above and instead rely on inapposite case law in attempting to

establish that Board actions taken pursuant to court-ordered desegre-

gation decrees can be held unconstitutional.

Specifically, they rely on recent decisions finding voluntary, race-

conscious magnet school programs (not developed under a governing

desegregation order) unconstitutional. See Eisenberg v. Montgomery

County Pub. Sch., 197 F.3d 123, 125 (4th Cir. 1999); Tuttle v. Arling-

ton County Sch. Bd., 195 F.3d 698 (4th Cir. 1999); see also Wess-

mann v. Gittens, 160 F.3d 790 (1st Cir. 1998). In fact, in those cases,

the courts emphasized that the school system had not been under a

court order to desegregate, see Eisenberg, 197 F.3d at 124, and had

adopted a magnet program "not to remedy past discrimination, but

rather to promote racial, ethnic, and socioeconomic diversity." Tuttle,

195 F.3d at 700 (emphasis added); see also Wessman, 160 F.3d at 792

(noting that prior to instituting its magnet program the school system

"had achieved unitariness in the area of student assignments" and that

"the district court thereupon relinquished control over" that area).

Indeed, in Eisenberg we endorsed the permissibility of race-based

classifications "in situations," like that at hand, "where past constitu-

65

tional violations require race-based remedial action." 197 F.3d at 130

(citing Swann, 402 U.S. at 1); see also Wessmann, 160 F.3d at 795.

The distinction between a unitary school system and a school sys-

tem under court order to desegregate is, from a legal standpoint, fun-

damental. Furthermore, as discussed supra, it is the judicial finding

of unitary status, not any particular action by the school board or con-

dition in the school system, upon which the distinction turns. Of

course, for a formerly segregated school system, the attainment of

unitary status reflects years or decades of gradual change, not an over-

night shift in policy or outlook. Although CMS will not look much

different the day it becomes unitary than it will have looked the previ-

ous day, attainment of unitary status triggers significant legal conse-

quences. In a non-unitary school system, all one-race or

predominantly one-race schools are presumed to be vestiges of segre-

gation, and the burden is on the challenging party to show that those

schools are nondiscriminatory. See Swann, 402 U.S. at 26 ("The court

should scrutinize such schools, and the burden upon the school

authorities will be to satisfy the court that their racial composition is

not the result of present or past discriminatory action on their part.").

Once a court has declared a school system unitary, on the other hand,

the presumption is that the vestiges of segregation have been elimi-

nated, and a plaintiff seeking to demonstrate a constitutional violation

on the basis of the existence of one-race or predominantly one-race

schools must "prove discriminatory intent on the part of the school

board." Riddick, 784 F.2d at 537.

As Judge Potter recognized, see Capacchione, 57 F. Supp. 2d at

285, CMS implemented and administered its expanded magnet

schools program prior to ever achieving unitary status and while still

under court order to remedy the vestiges of segregation. Therefore,

recent decisions, like Eisenberg and Tuttle, addressing the constitu-

tionality of magnet school assignment policies in unitary school sys-

tems not under court order, are simply inapposite here.

Moreover, even if Tuttle and Eisenberg generally applied to gov-

ernmental acts performed pursuant to remedial desegregation order

(which they do not), the Board's expanded magnet schools program

would withstand constitutional scrutiny. This is so because if a prece-

dent of the Supreme Court "has direct application in a case," inferior

66

courts must follow that precedent "even if later cases appear to call

it into question, leaving to [the Supreme] Court the prerogative of

overruling its own decisions." See Agostini v. Felton, 521 U.S. 203,

237 (1997).

There could hardly be a clearer case for application of this princi-

ple. Here the Supreme Court's Swann decision itself constitutes

directly controlling precedent. In Swann, the Court concluded that

CMS could be constitutionally required to make efforts "to reach a

71-29 ratio" in the schools under its authority, and to assign students

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

ious grade levels have about the same proportion of black and white

students." See 402 U.S. at 23-25 (approving Judge McMillan's order).

Indeed, the Supreme Court again noted in Freeman that its decision

in Swann specifically approved racial balancing by CMS to achieve

the remedial end of eliminating the vestiges of segregation. 503 U.S.

at 493 (In Swann, "[w]e confirmed that racial balance in school

assignments was a necessary part of the remedy in the circumstances

there presented."). Under the principle articulated in Agostini, only

the Supreme Court itself can modify the decrees in this case to pro-

hibit what Swann so clearly permitted.

C.

The Supreme Court's decision in Swann is the law of the case; it

must be followed. But more than just the law of this case, for almost

thirty years Swann also has functioned as a blueprint for school

desegregation in school districts throughout this Nation. As long as

Swann is controlling law, and as long as the Board acts pursuant to

the Swann desegregation orders -- as it did in implementing the

expanded magnet schools program -- it cannot be held to have vio-

lated the Constitution.

IV.

Judge Potter also enjoined CMS from "assigning children to

schools or allocating educational opportunities and benefits through

race-based lotteries, preferences, set-asides, or other means that deny

students an equal footing based on race." Capacchione, 57 F. Supp.

2d at 294. In considering the propriety of an injunction, we review

67

factual findings only for clear error, but the "district court's applica-

tion of legal principles . . . presents a legal question reviewed de

novo." North Carolina v. City of Virginia Beach, 951 F.2d 596, 601

(4th Cir. 1992). Given our holding that CMS has not yet reached uni-

tary status and did not violate the constitutional rights of the Capac-

chione plaintiffs by consideration of race in its expanded magnet

schools program, there is no legal basis for the district court's injunc-

tion. Accordingly, we must vacate it.

Moreover, because "federal court decrees must directly address and

relate to the constitutional violation itself," Milliken, 433 U.S. at 282,

we would be compelled to vacate the injunction as overly broad even

if some form of injunctive relief had been warranted. The expanded

magnet schools program was the only CMS action that the district

court found to violate the Constitution -- Judge Potter did not con-

sider the constitutionality of any other method of student assignment

or resource allocation. Yet the injunction by its terms encompasses

any consideration of race by CMS in student assignment or allocation

of educational benefits that "den[ies] students an equal footing."

Capacchione, 57 F. Supp. 2d at 294. The injunction thus goes much

farther than simply prohibiting CMS from reinstituting the expanded

magnet schools program and its race-conscious assignment policy.

We have repeatedly held similar injunctions too broad, explaining that

"[a]lthough injunctive relief should be designed to grant the relief

needed to remedy the injury to the prevailing party, it should not go

beyond the extent of the established violation." Hayes, 10 F.3d at 217;

see also Tuttle, 195 F.3d at 708.

If the district court determines on remand, based on the standards

set forth herein, that CMS has attained unitary status, it may issue an

injunction only to the extent that it concludes that CMS is likely to

persist in current practices that would violate the Constitution if

undertaken outside of the remedial context. See United States v. Ore-

gon State Med. Soc'y, 343 U.S. 326, 333 (1952). Even then, the dis-

trict court should be reluctant to issue such an injunction because "the

ultimate objective" of federal court involvement in school desegrega-

tion has always been "to return school districts to the control of local

authorities." Freeman, 503 U.S. at 489. Absent compelling evidence

to the contrary, it must be assumed that CMS, when it is found to

have achieved unitary status, will act in conformity with the law.

68

V.

In addition to injunctive relief, the district court awarded nominal

damages of one dollar to the Capacchione family "to vindicate the

constitutional rights of children denied an equal footing in applying

to magnet schools." Capacchione, 57 F. Supp. 2d at 290. Because we

hold that the expanded magnet schools program did not violate the

Constitution, we must also vacate this nominal damages award.

VI.

The district court also awarded the Capacchione plaintiffs

$1,499,016.47 plus interest in attorney's fees, pursuant to 42 U.S.C.

§ 1988. See Capacchione v. Charlotte-Mecklenburg Sch., 80 F. Supp.

2d 557 (W.D.N.C. 1999) (amended by orders of December 16, 1999,

J.A. 1313-15, and March 6, 2000, J.A. 1356-62). Under that statute,

a court in a civil rights case "may allow the prevailing party, other

than the United States, a reasonable attorney's fee as part of the

costs." 42 U.S.C. § 1988.

It appears that the district court principally based the award of

attorney's fees on the Capacchione plaintiffs' success in obtaining

nominal damages and injunctive relief. Because we have vacated

those awards, we must vacate the award of attorney's fees as well. As

the Capacchione plaintiffs recognize, it is "self-evident" that they

cannot recover fees "if this court reverses the order appealed from."

Brief of Appellees at 113 n.51.

Moreover, we would vacate the fee award even if it were based on

the district court's declaration that CMS had achieved unitary status.

Our affirmance of a portion of that declaration -- that CMS has

achieved unitary status with respect to four of the eight Green factors

it considered -- does not entitle the Capacchione plaintiffs to attor-

ney's fees. In order to be considered a "prevailing party" under

§ 1988, the party seeking fees must have obtained "an enforceable

judgment, consent decree, or settlement." S-1 & S-2 v. State Bd. of

Educ., 21 F.3d 49, 51 (4th Cir. 1994) (en banc). Additionally, there

must be some defendant in the case who has been "prevailed against,"

Farrar v. Hobby, 506 U.S. 103, 109 (1992), with a resulting "material

alteration of the legal relationship" between that defendant and the

69

party seeking fees. Id. at 111. In obtaining a declaration that the

Board has achieved unitary status as to four Green factors, the Capac-

chione plaintiffs have not obtained "an enforceable judgment, consent

decree, or settlement"; they have not "prevailed against" CMS; nor

have they effected a "material alteration of the legal relationship"

between the parties.

Furthermore, even if the Capacchione plaintiffs succeed on remand

in proving that CMS has achieved unitary status in all respects, they

would not, for these same reasons, be entitled to attorney's fees. A

declaration of unitary status merely restores the parties to the status

quo prior to the issuance of the desegregation decree. Such a declara-

tion would not constitute "an enforceable judgment" for the Capacch-

ione plaintiffs. And though a declaration of unitary status would

obviously represent a defeat for the legal position that CMS has taken

in this litigation, such a defeat would not be tantamount to being "pre-

vailed against" under § 1988. Rather, the primary significance of a

declaration of unitary status would be that CMS has succeeded in

eradicating the vestiges of past discrimination to the extent practica-

ble and, as the Capacchione plaintiffs put it, in obtaining a "return to

local control." Brief of Appellees at 34. The Board, upon a declara-

tion of unitariness, would actually have wider latitude to assign stu-

dents as it sees fit than it did while it was under court order to remedy

past discrimination (although certain race-conscious policies might no

longer be permissible). We are unable to see how a broadening of the

Board's discretion can be viewed as a "material alteration of the legal

relationship" between CMS and the Capacchione plaintiffs.

We note that the predominant pattern in the desegregat

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