Appendix — Capacchione v. Charlotte-Mecklenburg Board of Education
Supreme Court brief2002
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Opinions of the Court of Appeals
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Opinion of the District Court
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Order of the District Court
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Judgment of the Court of Appeals
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Order of the Court of Appeals on Rehearing
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Opinions of the Court of Appeals of September 21, 2001
United States Court of Appeals,
Fourth Circuit.
Terry BELK; Dwayne Collins, on behalf of themselves and
the class they represent, Plaintiffs-Appellants,
William Capacchione, Individually and on behalf of
Christina Capacchione, a minor; Michael P. Grant; Richard
Easterling; Lawrence Gauvreau; Karen Bentley; Charles
Thompson; Scott C. Willard, Plaintiffs-Appellees,
v.
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,
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.
,
;
i
i
,
2a
Opinions of the Court of Appeals of September 21, 2001
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, Piaintiffs,
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.
William Capacchione, Individually and on behalf of
Christina Capacchione, a minor; Michael P. Grant; Richard
Easterling; Lawrence Gauvreau; Karen Bentley; Charles
Thompson; Scott C. Willard, Plaintiffs-Appellees,
and
Terry Belk; Dwayne Collins, on behalf of themselves and
the class they represent, Plaintiffs,
v.
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.
3a
Opinions of the Court of Appeals of September 21, 2001
United States of America; North Carolina School Boards
Association; National School Boards Association,
Amici Curiae.
Nos. 99-2389, 99-2391, 00-1098 and 00-1432.
Argued Feb. 27, 2001.
Decided Sept. 21, 2001
[269 F.3d 305]
*310 ARGUED: Stephen Luke Largess, James Elliot
Ferguson, II, Ferguson, Stein, Wallas, Adkins, Gresham &
Sumter, P.A., Charlotte, NC; John W. Borkowski, Hogan &
Hartson, L.L.P., Washington, DC, for Appellants. Allan Lee
Parks, Parks, Chesin & Miller, P.C., Atlanta, GA, for
Appellees. ON BRIEF: John W. Gresham, C. Margaret
Errington, Ferguson, Stein, Wallas, Adkins, Gresham &
Sumter, P.A., Charlotte, NC; Elaine R. Jones,
Director-Counsel, Norman J. Chachkin, Gloria J. Browne,
NAACP Legal Defense & Educational Fund, Inc., New York,
NY; Allen R. Snyder, Maree Sneed, Hogan & Hartson, L.L.P..,
Washington, DC; James G. Middlebrooks, Irving M. Brenner,
Amy Rickner Langdon, Smith, Helms, Mulliss & Moore,
L.L.P., Charlotte, NC; Leslie Winner, General Counsel,
Charlotte- Mecklenburg Board of Education, Charlotte, NC, for
Appellants. Kevin V. Parsons, Parks, Chesin & Miller, P.C.,
Atlanta, GA; ‘John O. Pollard, McGuire, Woods, Battle &
Boothe, Charlotte, NC; William S. Helfand, Magenheim,
Bateman, Robinson, Wrotenbery & Helfand, Houston, TX;
Thomas J. Ashcraft, Charlotte, NC, for Appellees. Bill Lann
Lee, Acting Assistant Attorney General, Mark L. Gross,
Rebecca K. Troth, United States Department of Justice,
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Opinions of the Court of Appeals of September 21, 2001
Washington, DC, for Amicus Curiae United States. Michael
Crowell, Lisa Lukasik, Tharrington Smith, L.L.P., Raleigh, NC;
Allison B. Schafer, General Counsel, North Carolina School
Boards Association, Raleigh, NC; Julie K. Underwood,
General Counsel, National School Boards Association,
Alexandria, VA, for Amici Curiae Associations.
*311 Before WILKINSON, Chief Judge, and WIDENER,
WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL,
MOTZ, TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed in part and reversed in part by published opinions.
A per curiam opinion announced the judgment of the court.
Judge TRAXLER delivered the opinion of the court with
respect to Parts I, Il, IV, and V, in which Chief Judge
WILKINSON and Judges WIDENER, WILKINS,
NIEMEYER, and WILLIAMS joined, and an opinion with
respect to Parts III and VI, in which Judges WILKINS and
WILLIAMS joined. Chief Judge WILKINSON wrote an
opinion concurring in part in which Judge NIEMEYER joined.
Judge WIDENER wrote an opinion concurring in part and
dissenting in part. Judge LUTTIG wrote an opinion concurring
in the judgment in part and dissenting from the judgment in
part. Judges MOTZ and KING wrote a separate opinion in
which Judges MICHAEL and GREGORY joined.
OPINION
PER CURIAM:
This case was argued before the en banc Court on
February 27, 2001. The parties presented a number of issues
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Opinions of the Court of Appeals of September 21, 2001
for our consideration, including whether the district court erred
in (1) finding that unitary status had been achieved and
awarding attorneys’ fees to plaintiff-intervenors based on this
finding; (2) holding that the establishment of a magnet schools
program was an ultra vires, unconstitutional act justifying an
award of nominal damages and attorneys’ fees; (3) enjoining
the Charlotte-Mecklenburg School Board from considering race
in the future assignment of students or allocation of educational
resources; and (4) sanctioning the Board for failing to comply
with the district court's discovery order.
Having considered the briefs and arguments of the
parties, a majority of the Court holds: (1) by a 7-4 vote (Chief
Judge Wilkinson and Judges Widener, Wilkins, Niemeyer,
Luttig, Williams and Traxler in the affirmative), the school
system has achieved unitary status, but by a 6-5 vote (Chief
Judge Wilkinson and Judges Niemeyer, Michael, Motz, King
and Gregory in the affirmative) attorneys’ fees for work done on
the unitary status issue are denied; (2) by a 6-5 vote (Chief
Judge Wilkinson and Judges Niemeyer, Michael, Motz, King,
and Gregory in the affirmative), the Board did not forfeit its
immunity for the establishment of the magnet schools program,
and nominal damages and attorneys’ fees in that regard are
denied; (3) by a unanimous vote, the injunction is vacated;
and (4) by a unanimous vote, the imposition of sanctions is
affirmed.
The judgment of the district court is therefore affirmed
on the finding of unitary status and the imposition of sanctions,
reversed as to the finding of liability for nominal damages for
the establishment of the magnet schools program, reversed as
to the imposition of attorneys’ fees for any reason, and reversed
on the issuance of the injunction.
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Opinions of the Court of Appeals of September 21, 2001
Unitary status having been achieved, the judgment of
the district court vacating and dissolving all prior injunctive
orders and decrees is affirmed. The Board is to operate the
school system without the strictures of these decrees no later
than the 2002-2003 schoo! year.
AFFIRMED IN PART AND REVERSED IN PART.
TRAXLER, Circuit Judge:
This case is hopefully the final chapter in the saga of
federal court control over the Charlotte-Mecklenburg Schools
("CMS"). -Since 1971 CMS has operated under a federally
supervised desegregation plan that included limited use of
racial ratios, pairing and grouping of school zones, and
extensive busing. So successful was the plan that the district
court removed the case from the active docket in 1975,
expressing its belief that the once reluctant school board was
committed to achieving desegregation and was already *312
well on the way toward a unitary school system. Since then,
two generations of students have passed through CMS and,
until the present case, not one person has returned to court
alleging that segregative practices have been continued or
revived.
Now, nearly three decades later and prompted by a
lawsuit filed by a white student challenging the magnet schools
admissions policy, the question of whether CMS has achieved
unitary status has been placed before our courts. In 1999, the
district court, after a lengthy hearing and searching inquiry,
concluded that CMS had indeed achieved unitary status by
eliminating the vestiges of past discrimination to the extent
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Opinions of the Court of. Appeals of September 21, 200]
practicable. This conclusion was not reached in haste; it was
the result of a two-month hearing and an examination of
extensive testimony and evidence relating to every aspect of
CMS's educational system.
A majority of this court now affirms the district court's
holding on this issue, satisfied that CMS has dismantled the
dual school system. In sharp contrast to the situation in the late
1960s, when black students were segregated in black schools
and taught by a predominantly black staff, CMS students today
are educated in an integrated environment by an integrated
faculty. Nor do we turn over control to an indecisive and
uncommitted school board. CMS Currently operates under the
firm guidance of an integrated school board which has clearly
demonstrated its commitment to a desegregated school system.
In sum, the "end purpose" of federal intervention to
remedy segregation has been served, and it is time to complete
the task with which we were charged--to show confidence in
those who have achieved this success and to restore to state and
local authorities the control of their school system.
Consequently, a majority of this court affirms the district
court's unitary status determination.
However, while a majority of my colleagues agree that
CMS has achieved unitary status, and have graciously joined
me on this point, I respectfully depart from a separate majority's
decision to reverse the district court's holding that CMS's
magnet schools program, which was implemented in 1992, was
an ultra vires, unconstitutional act justifying an award of
nominal damages and attorney fees. By denying children, on '
account of their race, an equal Opportunity to compete for open,
unclaimed slots in CMS's extraordinary magnet program, |
a neers
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Opinions of the Court of Appeals of September 21, 200]
believe the school board pushed too far and did more than
either was required or permitted. Just as the educational
process of the 1960s unconstitutionally deprived black children
of educational opportunities so/ely on accdunt of their race, the
magnet schools admissions policy deprives white children of
educational opportunities solely on account of their race.
Consequently, I depart from the separate majority in that |
would affirm the district court's conclusion that the magnet
schools program violated the Equal Protection Clause of the
Fourteenth Amendment and the liability of the school board for
the violation.
I.
In 1896, the Supreme Court upheld a Louisiana statute
"providing for separate railway carriages for the white and
colored races." Plessy v. Ferguson, 163 U.S. 537,540, 16S.Ct.
1138, 41 L.Ed. 256 (1896). The Plessy majority characterized
the statute as "not necessarily imply[ing] the inferiority of
either race," id. at 544, 16 S.Ct. 1138, but the first Justice
Harlan, in dissent, aptly described the true aim of the law:
"Everyone knows that the statute in question had its origin in
the purpose, not so much to exclude white persons from
railroad cars occupied by blacks, as to exclude colored people
from coaches occupied by or assigned to white persons,” id. at
557, 16 S.Ct. 1138 (Harlan, J., dissenting). *313 Justice Harlan
further "den[ied] that any legislative body or judicial tribunal
may have regard to the race of citizens when the civil rights of
those citizens are involved." Jd. at 554- 55, 16 S.Ct. 1138
(Harlan, J., dissenting). Unfortunately, the principle of
"separate but equal” reached much farther than Louisiana
railways, and was applied to other public services, including
education. The march of progress eventually proved the
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Opinions of the Court of Appeals of September 21, 2001
correctness of Justice Harlan's principled stand. Segregation, in
all of its manifestations, was "arbitrary" and "wholly
inconsistent with the civil freedom and the equality before the
law established by the Constitution." Jd. at 561-62, 16 S.Ct.
1138 (Harlan, J., dissenting).
Early efforts aimed at combating the injustice wrought
by Plessy in educational settings often centered on state-funded
graduate and professional schools. See, e.g., Missouri ex rel.
Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208
(1938); see generally Mark V. Tushnet, The NAACP's Legal
Strategy Against Segregated Education 1925-1950 (1987). In
Gaines, an African-American student was denied admission to
the University of Missouri School of Law on account of his
race. Missouri had no "separate but equal" law school for its
African-American citizens and instead offered to pay Gaines’
tuition and expenses for a legal education in another state. The
Supreme Court held that Missouri's offer denied Gaines equal
protection of the laws. The Court observed that "(t]he
admissibility of laws separating the races in the enjoyment of
privileges afforded by the State rests wholly upon the equality
of the privileges which the laws give to the separated groups
within the State." Gaines, 305 U.S. at 349, 59 S.Ct. 232.
Though providing only small victories, cases like Gaines
exposed "separate but equal" for the untenable proposition that
it was.
In 1954, the Supreme Court recognized the futility of
measuring equality in segregated facilities. See Brown v. Board
of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)
(Brown I). Presented with a direct attack on Plessy in a
secondary education case, the Court held that "segregation of
children in public schools solely on the basis of race" violated
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Opinions of the Court of Appeals of September 21, 200]
the Equal Protection Clause of the Fourteenth Amendment. /d.
at 493, 74 S.Ct. 686. The Court emphasized that an educational
"opportunity, where a state has undertaken to provide it, is a
right which must be made available to all on equal terms." Jd.
Recognizing that segregation differed from locality to locality,
the Supreme Court subsequently declined to craft a broad,
one-size- fits-all remedy, and instead instructed the federal
district courts to oversee the implementation of appropriate
relief based on the dictates of local circumstances. See Brown
v. Board of Educ., 349 U.S. 294, 299, 75 S.Ct. 753, 99 L.Ed.
1083 (1955) (Brown II ) ("Because of their proximity to local
conditions and the possible need for further hearings, the courts
which originally heard these cases can best perform th[e]
judicial appraisal."). The district courts were directed to make
use of the "traditional attributes of equity power," id. at 300, 75
S.Ct. 753, to ensure that students were "admit [ted] to public
schools on a racially nondiscriminatory basis," id. at 301, 75
S.Ct. 753. However, under the Brown opinions it was unclear
whether a school district was required to take affirmative steps
to remedy the constitutional violation, see, e.g., Briggs v.
Elliott, 132 F.Supp. 776, 777 (E.D.S.C.1955) (holding that
Brown merely prohibited school districts from using the force
of law to separate the races), and very little progress resulted.
Before the Supreme Court provided further guidance to
the lower federal courts, in 1965 the Swann plaintiffs, who
were the original class action plaintiffs representing the
interests of African-American children *314 in the district,
challenged as constitutionally inadequate the efforts of CMS in
complying with Brown. The school district's desegregation
plan was based on freedom of choice whereby "any child,
without regard to race, and without regard to minority or
majority of race in any particular school, might freely transfer
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Opinions of the Court of Appeals of September 21, 200]
to another school of his choice." Swann y.
Charlotte-Mecklenburg Bd. of Educ., 243 F Supp. 667, 668
(W.D.N.C.1965). The district court approved the plan,
observing that more could be done "to increase mixing of the
races," but that the law imposed "no such duty upon ... the
School Board." Jd. at 670.
Concerned at the slow pace of school desegregation
throughout the nation, the Supreme Court held in 1968 that
school boards had an "affirmative duty” to end the
State-imposed dual system of education. Green v. County Sch.
Bd., 391 U.S. 430, 437, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).
The Justices underscored that "in desegregating a dual system
a plan utilizing ‘freedom of choice’ is not an end in itself." Id.
at 440, 88 S.Ct. 1689. The Swann plaintiffs then filed in the
district court a motion for further relief "seek[ing] greater speed
in desegregation of the Charlotte-Mecklenburg schools, and
request[ing] elimination of certain other alleged racial
inequalities." Swann v. Charlotte-Mecklenburg Bd. of Educ.,
300 F.Supp. 1358, 1360 (W.D.N.C.1969). The district court,
guided by the mandate of Green, see Swann, 300 F.Supp. at
1362, made a number of factual findings and concluded that the
school district remained highly segregated.
The district court noted that over half of CMS's 24,000
African-American students "attend schools that are all black, or
very nearly all black, and most of the 24,000 have no white
teachers." Jd. at 1360. However, the court found no violations
"in the use of federal funds; the use of mobile classrooms;
quality of school buildings and facilities; athletics; PTA
activities; school fees; free lunches; books; elective courses;
nor in individual evaluation of students." Jd at 1372.
OO BON Bel eT re a aa
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Opinions of the Court of Appeals of September 21, 2001
The district court directed CMS to submit "a positive
plan for faculty desegregation effective in the fall of 1969, and
; a plan for effective desegregation of pupil population, to be
predominantly effective in the fall of 1969 and to be completed
by the fall of 1970." Jd. at 1360. The board procrastinated, but
eventually submitted an enervated desegregation plan that the
district court approved "with great reluctance” on a temporary
basis. Swann v. Charlotte-Mecklenburg Bd. of Educ., 306
F.Supp. 1291, 1298 (W.D.N.C.1969). CMS officials, however,
continued to drag their feet, and the district court was forced to
appoint its own expert, Dr. John A. Finger, to craft an
efficacious desegregation plan. See Swann y.
Charlotte-Mecklenburg Bd. of Educ., 311 F.Supp. 265
(W.D.N.C.1970). Dr. Finger’s plan, adopted by the district
court, included limited use of mathematical ratios, pairing and
grouping of school zones, and busing. See id. We affirmed a
portion of the plan, but vacated provisions dealine .th the
busing of elementary school students because of* perceived
burdens on small children and the cost of p:.chasing new
buses. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 431
F.2d 138, 147 (4th. Cir.1970) (en banc). We remanded "for
reconsideration of the assignment of pupils in the elementary
schools." Jd. The Supreme Court granted certiorari and
reinstated the district court's plan pending further proceedings.
See Swann v. Charlotte-Mecklenburg Bd. of Educ., 399 U.S.
926, 90 S.Ct. 2247, 26 L.Ed.2d 791 (1970). The district court
conducted eight days of hearings and examined five different
desegregation plans. The district court concluded the Finger
plan to be the best of the five, encompassing "a reasonable ...
collection of methods for solving the problem" of the dual
system. *315Swann v. Charlotte- Mecklenburg Bd. of Educ.,
318 F.Supp. 786, 800 (W.D.N.C.1970). As for busing and the
cost of new buses, the district court found that the Finger plan
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Opinions of the Court of Appeals of September 2] , 200]
dollars that CMS had originally estimated. See id at 797-98.
Two months later, the Supreme Court granted certiorari and
mean that every school in very Community must always reflect
the racial composition of the school system as a whole." Jd at
24, 91 S.Ct. 1267. Second, the Court dealt with single-race
schools. Though the Court concluded that schools consisting of
predominantly one race were not per se unconstitutional, the
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Opinions of the Court of Appeals of September 21], 2001
"bus transportation as one tool of school desegregation," but
within reasonable time and distance restrictions. Jd. at 30, 91
S.Ct. 1267.
Shortly after the Supreme Court issued its landmark
Swann opinion, CMS asked the district court to abandon the
Finger plan and permit the substitution of a "feeder plan"
whereby schools would draw pupils from designated attendance
areas in an effort to keep children together for their entire
public school career. See Swann v. Charlotte-Mecklenburg Bd.
of Educ., 328 F.Supp. 1346 (W.D.N.C.1971). Citing concerns
of resegregation and the placement of additional burdens on
African-American children, the district court questioned the
feeder plan. See id at 1350-53. CMS then withdrew its
original feeder plan and began work on a modified version. See
id. at 1353. The district court eventually approved a revised
feeder plan that reopened several former black schools and
prevented over- and under-utilization of facilities. See Swann
v. Charlotte-Mecklenburg Bd. of Educ., 334 F.Supp. 623
(W.D.N.C.1971).
However, within just two years it became clear that
CMS's revised feeder plan was inadequate "for dealing with
foreseeable problems" in the dismantling of the dual system.
Swann v. Charlotte-Mecklenburg Bd. of Educ., 362 F.Supp.
1223, 1229 (W.D.N.C.1973). The district court found "that
various formerly black schools and other schools will turn
black under the feeder plan," id, and that "[rjacial
discrimination through official action has not ended in this
school system," id. at 1230. The district court again instructed
CMS to design a new pupil assignment plan "on the *316
premise that equal protection of laws is here to stay." Jd. at
1238.
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Opinions of the Court of Appeals of September 21, 2001
In 1974 CMS adopted and the district court approved
new guidelines and policies for pupil assignment. See Swann
v. Charlotte-Mecklenburg Bd. of Educ., 379 F Supp. 1102
(W.D.N.C.1974). The plan was designed by a citizens advisory
group working with the board in an effort to reach "an
acceptable consensus" on school desegregation in CMS. Jd. at
1103. The plan's most promising features were the avoidance
of any majority black schools (with the exception of Hidden
Valley, an exempted school), and a more equal distribution of
the busing burden. See id. at 1105-1110. Praising the board for
making "a clean break with the essentially 'reluctant' attitude
which dominated Board actions for many years," the district
court predicted that the policies and positive attitude would
eventually result in a unitary school system. Jd. at 1103.
The district court closed Swann in 1975 and removed
the case from the active docket. See Swann vy.
Charlotte-Mecklenburg Bd. of Educ., 67 F.R.D. 648
(W.D.N.C.1975). In so doing, the district court observed that
the board was "actively and intelligently addressing" recurrent
problems related to dismantlement of the dual system. /d. at
649. The district court was so satisfied with the progress being
made that it questioned whether it would ever be confronted
with a motion to reopen the litigation. See id
For three years there was no action in the case. This
changed in 1978 when a group of white parents sought to
enjoin CMS from reassigning over 4000 students in an effort to
maintain racial balance in certain schools. See Martin v.
Charlotte-Mecklenburg Bd. of Educ., 475 F Supp. 1318
(W.D.N.C.1979). The parents attacking the 1978 student
assignment plan "offered no live evidence but offered and
relied upon a few written exhibits and admissions from the
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Opinions of the Court of Appeals of September 21, 2001
pleadings." Jd. at 1321. Not surprisingly, the district court
rejected the parents' challenge to the student assignment plan
__ and praised CMS for its zeal in dismantling the dual system.
In 1980, CMS and the Swann plaintiffs again returned
to the district court. The parties informed the district court that
the African-American student population in CMS's elementary
schools had grown from twenty-nine percent to forty percent,
making it difficult to avoid predominantly black student bodies.
To provide the board with some flexibility, the district court
permitted operation of elementary schools with
African-American student bodies of plus fifteen percent above
the district-wide average. See Swann v. Charlotte-Mecklenburg
Bd. of Educ., No.1974 (W.D.N.C. Apr. 17, 1980).
Since 1980, neither the board nor the Swann plaintiffs
have approached the district court regarding alteration of the
earlier desegregation orders. And, until the present litigation,
the Swann plaintiffs have never attempted to reopen the case in
order to address any alleged failure by the board to comply with
the district court's desegregation orders.
The controversy before us today arose in September
1997 when William Capacchione ("Capacchione") filed suit
against CMS on behalf of his daughter, Cristina, alleging that
she had been unconstitutionally denied admission to a magnet
school program on account of her race. In 1992, without prior
court approval, CMS had adopted a desegregation plan focused
mainly on the use of magnet schools. In filling magnet schools,
CMS had instituted a black and a non-black lottery to achieve
racial balance. If a sufficient number of blacks or whites did
not apply and fill the seats allotted to their respective races,
then CMS would actively recruit children *317 of the desired
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Opinions of the Court of Appeals of September 21, 200]
race despite lengthy waiting lists made up of children of the
other race. If the recruitment drive failed, CMS usually left the
available slots vacant. Cristina, who is white, was placed on a
waiting list and eventually denied admission to a program at the
Olde Providence magnet school, which CMS marketed as "a
school to benefit everyone." J.A. XXXII-15,670.
The original Swann plaintiffs moved to reactivate
Swann and to consolidate it with Capacchione's suit. They
asserted that the vestiges of the dual school system had not
been abolished and that the use of race in the magnet
admissions policy was necessary for the school district to
comply with the prior desegregation orders. The district court
granted the motion and later permitted Capacchione to
intervene in the Swann litigation. Seeking a finding that CMS
had eradicated the vestiges of past discrimination, another
group of parents, led by Michael P. Grant ("Grant"),' was also
permitted to intervene in the litigation.
After a two-month bench trial, the district court
determined that CMS had achieved unitary status, that the
race-based admissions policy for CMS's magnet schools fell
outside prior orders and was not narrowly tailored to achieve a
compelling state interest, and that an injunction was warranted.
The district court "enjoinfed] CMS from any further use of
race-based lotteries, preferences, and set-asides in student
assignment." Capacchione v. Charlotte- Mecklenburg Schs.,
57 F.Supp.2d 228, 292 (W.D.N.C.1999). Citing interests in
stability, the district court concluded that the injunction would
not affect student assignments for the 1999 2000 school year,
‘Those represented by Capacchione and Grant will be referred to
as the "plaintiff-intervenors."
.
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Opinions of the Court of Appeals of September 21, 2001
but would apply to student assignments for the 2000-2001
school year. See id. at 292 n. 52. The district court awarded
Capacchione nominal damages in recognition of the
constitutional violation and also awarded the
plaintiff-intervenors attorney fees. CMS and the Swann
plaintiffs filed notices of appeal, and CMS moved to stay the
injunction, except as applied to the magnet schools, until the
2001-02 school year. The Swann plaintiffs moved for a
complete stay pending appeal. On November 15, 1999, the
district court denied the motions. CMS and the Swann
plaintiffs, pursuant to Federal Rule of Appellate Procedure
8(a)(2), moved this court for a stay. On December 30, 1999,
we stayed the district court's injunction pending further order
of this court.
After briefing and appellate arguments, a divided panel
of this court vacated and remanded the district court's unitary
status determination, holding that the district court's findings
were insufficient in the areas of student assignment, facilities
and resources, transportation, and student achievement. As for
CMS's magnet schools admissions policy, the panel held that
the policy was specifically permitted by prior court orders and
that the policy did not violate the Constitution. The panel also
vacated the district court's injunction, the award of nominal
damages, and the award of attorney fees. See Belk v.
Charlotte-Mecklenburg Bd. of Educ., 233 F.3d 232 (4th
Cir.2000). A majority of the active circuit judges thereafter
voted to hear this appeal en banc.
II. Unitary Status
The district court's unitary status finding is reviewed for
clear error. See Riddick v. School Bd., 784 F.2d 521, 533 (4th
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Cir.1986); Fed.R.Civ.P. 52(a). "A *318 finding is Clearly
erroneous when, although there is evidence to support it, on the
entire evidence the reviewing court is left with the definite and
firm conviction that a mistake has been committed." Faulconer
v Commissioner, 748 F.2d 890, 895 (4th Cir.1984). In
clarifying the clearly erroneous standard, the Supreme Court
has explained:
If the district court's account of the evidence is
plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though
convinced that had it been Sitting as the trier of fact, it
would have weighed the evidence differently. Where
there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly
erroneous.
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105
S.Ct. 1504, 84 L.Ed.2d 518 (1985). The Supreme Court also
stressed that even when appellate review is based primarily on
documentary evidence, the clearly erroneous standard of review
remains the same. See id. at 574, 105 S.Ct. 1504. So long as
the district court's unitary status determination rests on a
permissible view of the evidence, it must be affirmed.
The Supreme Court has declined to define or provide a
“fixed meaning" for the term "unitary." Freeman v. Pitts, 503
U.S. 467, 487, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992).
However, in light of the aim of Brown I, which was "the
elimination of state-mandated or deliberately maintained dual
school systems," Milliken v. Bradley, 418 U.S. 717, 737, 94
S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I ), a school
system must be declared unitary when it no longer
et ine
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Opinions of the Court of Appeals of September 21, 2001
discriminates between children on the basis of race, see Green,
391 U.S. at 442, 88 S.Ct. 1689. The burden of proof falls on
the party seeking an end to court supervision. See Freeman,
503 U.S. at 494, 112 S.Ct. 1430.
In undertaking a unitary status inquiry, a court must ask
"whether the Board ha[s] complied in good faith with the
desegregation decree since it was entered, and whether the
vestiges of past discrimination ha[ve] been eliminated to the
extent practicable." Board of Educ. v. Dowell, 498 U.S. 237,
249-50, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). Implicit in the
Supreme Court's use of the term "practicable" is "a reasonable
limit on the duration of ... federal supervision." Coalition to
Save Our Children v. State Bd. of Educ., 90 F.3d 752, 760 (3d
Cir.1996); see also Dowell, 498 U.S. at 247, 111 S.Ct. 630
("From the very first, federal supervision of local school
systems was intended as a temporary measure to remedy past
discrimination."). Hence, the goals of a desegregation order not
only encompass a remedy for the violation, but also prompt
restoration of local control. See Freeman, 503 U.S. at 490, 112
S.Ct. 1430 ("Returning schools to the control of local
authorities at the earliest practicable date is essential to restore
their true accountability in our governmental system.... Where
control lies, so too does responsibility."); Milliken I, 418 U.S.
at 741-42, 94 S.Ct. 3112 ("No single tradition in public
education is more deeply rooted than local control over the
operation of schools; local autonomy has long been thought
essential both to the maintenance of community concern and
support for public schools and to quality of the educational
process.").
Among the most important reference points in
determining whether a school board has fulfilled its duties so
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Opinions of the Court of Appeals of September 21, 2001
that local control may be resumed are the factors set out in
Green: student assignment, faculty assignment, facilities and
resources, transportation, staff assignment, and extracurricular
activities. See *319Green, 391 U.S. at 435, 88 S.Ct. 1689. In
its discretion, a court conducting a unitary status hearing may
consider other relevant factors not mentioned in Green. See
Freeman, 503 U.S. at 492, 112 S.Ct. 1430. We address the
district court's consideration of each factor in turn, but only to
determine whether "the district court's account of the evidence
is plausible in light of the record viewed in its entirety."
Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504.
A. Student Assignment
Student assignment is perhaps the most critical Green
factor because state-mandated separation of pupils on the basis
of race is the essence of the dual system. See Freeman, 503
U.S. at 474, 112 S.Ct. 1430 (observing that the issue of student
assignment is "fundamental" because "under the former de jure
regimes racial exclusion was both the means and the end of a
policy motivated by disparagement of ... the disfavored race").
To determine whether a school was racially balanced or
imbalanced, the district court adopted a plus/minus fifteen
percent variance from the district-wide ratio of black to white
students. See Capacchione, 57 F -Supp.2d at 246. However, the
district court emphasized "that there is no level of compliance
with the standard that is determinative." Jd When schools are
outside the variance, a "reasonable and supportable
explanation{ }" will suffice. Jd
The district court did not err in adopting a plus/minus
fifteen percent variance. Considering that the only variance
ever approved by the district court in the course of the Swann
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litigation was a" ‘plus 15%' from the district-wide average," id.
at 245, the addition of a minus fifteen percent is reasonable.
Moreover, the Supreme Court has permitted a "limited use ...
of mathematical ratios" by district courts, Swann, 402 U.S. at
25, 91 S.Ct. 1267, and much higher variances have been used
to define desegregation, see Manning v. Hillsborough County
Sch. Bd., 244 F.3d 927, 935 (llth Cir.2001) (using a
plus/minus twenty percent variance); see generally, David J.
Armor, Forced Justice: School Desegregation and the Law
160 (1995) (observing that in over seventy percent of the
school districts with desegregation plans where racial balance
is measured by numerical standards, a variance of plus/minus
fifteen percent or greater is used).’ In sum, the plus/minus
fifteen percent variance is clearly within accepted standards,
and provides a reasonable starting point in the unitary status
determination.
1. CMS's Compliance Record
2At trial, Dr. Eric Smith, the current superintendent of CMS,
testified that unitary status depended on every school being in balance. See
J.A. XV-7187 & 7239. This is not the law. See Swann, 402 U.S. at 24, 91
S.Ct. 1267 ("The constitutional command to desegregate schools does not
mean that every school in every community must always reflect the racial
composition of the school system as a whole.").
We find equally erroneous the Swann plaintiffs’ assertion at
appellate argument before the panel that "[tJhe issue of how many schools
are balanced has never been a question in this case." App. Tr. 91. The
racial composition of schools goes to the heart of a desegregation case, and
is very much key to a review of the district court's declaration of unitary
status. See Swann, 311 F.Supp. at 268 (ordering CMS to assign pupils "in
such a way that as nearly as practicable the various schools at various grade
levels have about the same proportion of black and white students").
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Opinions of the Court of Appeals of September 21, 2001
The district court began by observing that since 1970,
of the 126 schools in operation, "only twenty schools (16%)
have had black student bodies higher than 15% above the
district-wide ratio for more than three years, and only seventeen
schools *320 (13%) have had black student bodies lower than
15% below the district-wide ratio for more than three years."
Capacchione, 57 F.Supp.2d at 248 (footnote omitted). In
addition, the district court found that CMS has not operated a
single-race school since 1970. See id.
The district court also turned to two desegregation
indices: the dissimilarity index and the index of interracial
exposure. The former "measures the degree of racial
imbalance, and it is derived by comparing the racial
composition of each school to the district-wide composition,"
J.A. XXXill-16,172, and the latter measures "the average
percent white in schools attended by black students, weighted
by the proportion of black students in each school." J.A.
XXXIII-16,172. According to the report of the plaintiff-
intervenors’ expert witness, Dr. David J. Armor, a dissimilarity
value of twenty or below signifies "a highly balanced school
system" and a score under thirty signifies “a substantially
desegregated system." J.A. XXXIII-16,172. CMS's dissimilarity
score was sixteen in 1980 and twenty-six in 1995. From this it
is clear that CMS quickly desegregated in the 1970s and
continues to maintain a "substantially desegregated system."
The dissimilarity index also indicates that CMS has better
racial balance than several comparable districts did when they
were declared unitary. See J.A. XXXIII-16,173.
The index of interracial exposure, like the dissimilarity
index, shows that CMS has made great leaps of progress. A
score of zero on the exposure index signifies total segregation,
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Opinions of the Court of Appeals of September 21, 2001
while a score of fifty or above indicates a "highly desegregated
system.” J.A. XXXIII-16,172. Schools in CMS typically score
above fifty, whereas before the desegregation order the schools’
scores hovered near twenty or below. See J.A.
XXXIII-16,194-96.
CMS and the Swann plaintiffs correctly point out that
the data suggest that in recent years racial imbalance has
increased in some schools. Aware of this trend, the district
court made a number of findings on growth and demographic
change in the Charlotte-Mecklenburg area. The most revealing
findings are as follows:
¢ the county population has increased from 354,656 in
1970 to 613,310 in 1997
¢ in 1970 the school district was the forty-third largest in
the nation and is today the twenty-third largest
* among cities with more than 500,000 people, Charlotte
ranks second in population growth in the 1990s
¢ the racial composition of the county has changed from
seventy-six percent white and twenty-four percent black
in 1970 to sixty-eight percent white, twenty-seven
percent black, and five percent other in 1997
¢ the current racial composition of schoolchildren is fifty
percent white, forty-two percent black, and eight
percent other
¢ as the county has become more suburban the inner city
and nearby suburbs have lost large numbers of white
residents as they spread farther out into the formerly
rural sections of the county
¢ some middle suburban communities that were once all
white are now predominately black
¢ the rural black population in the southern part of the
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Opinions of the Court of Appeals of September 21, 200]
county has remained relatively constant while the white
population has tripled because of suburbanization
See Capacchione, 57 F .Supp.2d at 236-39. These findings are
supported by the report of the plaintiff-intervenors' expert in
demographics, Dr. William Clark. See J.A. *321
XXXIII-16230-306. Accordingly, the district court concluded
that "[tJhere can be no doubt that demography and geography
have played the largest role in causing imbalance."
Capacchione, 57 F.Supp.2d at 250.
Testimony from Dr. John Murphy, CMS's
superintendent from 1991 to 1995, corroborates the district
court's conclusion. Dr. Murphy testified that when he assumed
his duties he "was quite concerned about the increasing
difficulty in bringing about racial balance ... because of the
demographic shifts that were occurring." J.A. VI-2712.
Population growth translated into more automobiles on the
road, making increased busing impracticable because "the
travel time to move youngsters from the suburbs into the city
with the flow of rush hour traffic was a problem." J.A.
VI-2732. In the fall of 1991,.CMS hired Dr. Michael J. Stolee
to examine the problem and offer solutions. Dr. Stolee also
concluded that CMS's task “has been complicated by
population growth," J.A. XXXII-15,571, and he recommended
the adoption of a magnet schools program, which CMS
promptly implemented.
The Supreme Court has dealt with similar population
growth and shifting demographics in the context of unitary
status. In Freeman, the court unequivocally stated that "racial
imbalance ... [is] not tantamount to a showing that the school
district [is] in noncompliance with the decree or with its duties
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Opinions of the Court of Appeals of September 21, 2001
under the law." 503 U.S. at 494, 112 S.Ct. 1430. Brown J, of
course, does not mandate that racial balance be pursued in
perpetuity. Once the original racial imbalance caused by a
constitutional violation has been rectified, "the school district
is under no duty to remedy imbalance that is caused by
demographic factors." Freeman, 503 U.S. at 494, 112 S.Ct.
1430.
The Swann plaintiffs contend that consideration of
demographics and the rationale of Freeman are misplaced
because the growth and shifting demographics of DeKalb
County, Georgia, the school district under court order in
Freeman, exceeded that-of Charlotte-Mecklenburg. While
CMS's growth rates and demographic shifts certainly do not
equal those experienced in DeKalb,’ we can find nothing in
Freeman limiting its holding to the specific facts of DeKalb
County or establishing DeKalb as the standard for measuring
imbalance caused by demographic factors. On the contrary, the
opinion speaks in general terms. The Supreme Court observed
that in the United States "it is inevitable that the demographic
makeup of school districts, based as they are on political
subdivisions such as counties and municipalities, may undergo
rapid change." Jd. at 495, 112 S.Ct. 1430. Mobility, the Court
noted, "is a distinct characteristic of our society." Jd. at 494,
112 S.Ct. 1430.
Similarly, the Swann plaintiffs contend that unlike
DeKalb County, Mecklenburg County has become more
>For example, the population of DeKalb County grew from 70,000
in 1950 to 450,000 in 1985, and the percentage of black students in the
district grew from 5.6 percent in 1969 to forty-seven percent in 1986. See
Freeman, 503 U.S. at 475, 112 S.Ct. 1430.
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Opinions of the Court of Appeals of September 21, 2001
integrated as the black population has increased. This is simply
not true. For example, a report prepared in 1992 by the
Charlotte-Mecklenburg Planning Staff for Chairman Arthur
Griffin concluded that "Charlotte-Mecklenburg continues to be
a city of segregated neighbothoods" with "(c]oncentrations of
Black households ... generally located in the central city.” J.A.
XXI-10,485; see also J.A. XXVII-13,803 (1992 student
assignment plan stating that "housing across the county is not
racially integrated. Approximately 50% of all *322 black
students live within one district, while only 10% of white
students reside in that district."); J.A. XXII-10,575 (CMS
report chronicling growth of the black population and decline
of the white population in the inner city). Clearly, increased
housing integration is not necessarily a corollary of
African-American population growth. Hence, despite the
Swann plaintiffs' best efforts, Freeman cannot be distinguished
into nothingness, nor does the standard of review permit this
court to reweigh the evidence of the changes in CMS.
We also note that when confronted with growing
imbalance in certain schools, the district court demanded
cogent and supportable explanations from the
plaintiff-intervenors, paying special attention to the former de
jure schools still in use. See Capacchione, 57 F Supp.2d at
246. Evidence presented at trial indicated that "(o]f the 16
former black schools that are still open, 13 are currently
ba anced and have been desegregated for periods ranging from
22 to 28 years. Of the 3 that currently exceed the +15% black
variance, each has been balanced for at least 22 years.” J.A.
XXXIII-16,176. Interestingly, of the seventy-two former white
schools that are still open, fifteen are now majority black and
were in balance for periods of twelve to twenty-five years. See
J.A. XXXIII-16,176.
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In addition, Dr. Armor examined the seventeen schools
in CMS that exceeded the plus fifteen percent variance for three
or more years during the last decade. See J.A. XXXIII-16,174
76.4 Sixteen of the seventeen were balanced for periods
ranging from nineteen to twenty-six years, with one school
experiencing balance for sixteen years. To the extent that
CMS's pupil reassignments could be assessed, Dr. Armor
concluded that changes instituted by CMS were "attempts to
maintain or restore racial balance in the face of overwhelming
demographic growth and mobility." J.A. XXXIII-16,176.
Indeed, Dr. Armor concluded that imbalance had been reduced
in several of the schools because CMS's magnet program
attracted white students from the outer reaches of the county.
*O Armor did not include the predominantly white schools in this
analysis on three grounds:
(1) the court order did not establish a minimum percent black
carollment, (2) the half-dozen schools that have had low black —
enrollment for the past three or more years and that were operating
in 1972 have been racially balanced for at least ten years[,] and (3)
the demographic analysis of Dr. Clark shows that these schools
have become imbalanced or were opened imbalanced because of
the substantial white enrollment growth in the outskirts of the
county.
J.A. XXXIII-16,174 (footnote omitted); see also Swann, 402 U.S. at 26,91
S.Ct. 1267 (observing “that the existence of some small number of one-
race, or virtually one-race, schools within a district is not in and of itself the
mark of a system that still practices segregation by law").
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Opinions of the Court of Appeals of September 21, 200]
Long periods of almost perfect compliance with the
court's racial balance guidelines,’ coupled with some imbalance
in the wake of massive demographic shifis, strongly supports
the district court's finding that the present levels of imbalance
are in no way connected with the de jure segregation once
practiced in CMS. See Freeman, 503 U.S. at 495, 112 S.Ct.
1430 ("Where resegregation is a product not of state action but
of private choices. it does *323 not have constitutional
implications."); Manning, 244 F.3d at 944 ("Where a [party
seeking a finding of unitary status] shows that demographic
shifts are a substantial cause of the racial imbalances, [the
party] has overcome the presumption of de jure segregation.");
United States v. Meriwether County, 171 F.3d 1333, 1339(11th
Cir.1999) (observing that a "school district need not wage a
battle against demographics to achieve perfect racial balance").
The evidence presented at trial adequately explained why a few
schools have become imbalanced, and we can discern no
evidence or omissions that indicate clear error has been
committed in this regard.
2. Martin and Unitary Status
The Swann plaintiffs also point to school sitings,
transportation burdens, and school transfers as evidence that the
growing imbalance is caused by state action rather than private
choices, and that CMS has not complied with the district court's
orders in good faith. In advancing their argument, the Swann
plaintiffs rely chiefly on Martin v. Charlotte-Mecklenburg
"Even the Swann plaintiffs admit that ten years after the district
court charged the board with taking affirmative steps to desegregate
schools, the system “w(as] nearly 100% statistically compliant with the
court's orders.” Plaintiff Appellants’ Brief at 38.
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Opinions of the Court of Appeals of September 21, 2001
Board of Education, 475 F.Supp. 1318 (W.D.N.C.1979), in
which a group of parents sought to enjoin CMS from
reassigning over 4000 students in order to maintain racial
balance in certain schools. The plaintiffs in Martin based their
position on Pasadena City Board of Education v. Spangler, 427
U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), and Regents
of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct.
2733, 57 L.Ed.2d 750 (1978). In the former case, the Supreme
Court reaffirmed that district courts could not order a school
district "to rearrange its attendance zones each year so as to
ensure that the racial mix desired by the court was maintained
in perpetuity," Spangler, 427 U.S. at 436, 96 S.Ct. 2697, and in
the latter the Court struck down a medical school admissions
policy that reserved sixteen of one hundred seats in the entering
class for applicants who were " ‘economically and/or
educationally disadvantaged’ " and who were members of
certain minority groups, Bakke, 438 U.S. at 274, 98 S.Ct. 2733.
The district court in Martin distinguished Spangler by
observing that it was but a restatement of the Swann Court's
admonition about the use of racial quotas and that, unlike
Pasadena City, CMS had not achieved racially neutral
attendance patterns. See Martin, 475 F.Supp. at 1340. As for
the Bakke decision, the district court pointed out that no student
in CMS was denied "an equal educational opportunity" and that
the admissions policy in Bakke was implemented "against a
backdrop devoid of specific judicial findings or administrative
acknowledgments of the prior segregated status of the school
system." Jd. at 1345. Accordingly, the Martin court concluded
that CMS's reassignment of students was "within constitutional
limits and should be upheld." Jd at 1321. The district court
took pains to ensure that its opinion would not be interpreted
too broadly: "This order simply upholds the actions of the
1978 Board against the attacks by the plaintiffs." Jd. at 1347.
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Opinions of the Court of Appeals of September 21, 2001
In the course of the Martin opinion, the district court observed
that CMS had fallen short in four areas: construction and
location of facilities in parts of the county likely to enhance
desegregation, placement of elementary and kindergarten
grades in schools throughout the county, monitoring of student
transfers so as to prevent resegregation, and allocation of the
burdens of busing. See id. at 1328-29. However, the district
court also noted that CMS had made great progress and that a
return to the old system of segregation "has not tempted the
present School Board, who are standing fast in their endeavor
to run the schools according to law while providing quality
education." Jd. at 1347.
*324 In Capacchione, the district court correctly
observed that "Martin was not a unitary status hearing,"
Capacchione, 57 F.Supp.2d at 250, and that because "the
desegregation plan was still in its fledgling stages, the Court
was inclined to keep the pressure on CMS," id. at 251. The
Capacchione court further observed that post-Martin changes
in Charlotte-Mecklenburg counseled looking at the "concerns
[of Martin ] in a new light.". Jd The district court's
interpretation of Martin is reasonable and in accord with the
rule in this circuit that a district court, as a continuous
institution, is "best able to interpret its own orders." Vaughns
v. Board of Educ., 758 F.2d 983, 989 (4th Cir.1985) (school
desegregation case). Moreover, the Martin order was issued
thirteen years before the Supreme Court made clear in Freeman
that the affirmative measures mandated by Green are not meant
to remedy "private choices" that lead to resegregation.
Freeman, 503 U.S. at 495, 112 S.Ct. 1430. The state of the law
and the understanding of duties upon school districts were far
different when Martin was handed down. Hence, a number of
assertions in Martin cannot be squared with the present state of
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Opinions of the Court of Appeals of September 21, 2001
the law. See, e.g., Martin 475 F.Supp. at 1346 (stating that
segregated housing patterns must necessarily lead to the
unconstitutional segregation of schools). Ignoring the changes
in Charlotte-Mecklenburg and in the law by erecting Martin as
the framework for unitary status, as the Swann plaintiffs urged
below, would defy common sense and run afoul of
developments in the Supreme Court's school desegregation
jurisprudence. See United States Gypsum Co. v. Schiavo Bros.,
668 F.2d 172, 176 (3d Cir.1981) (concluding that a successor
judge "is empowered to reconsider [the legal conclusions of an
unavailable predecessor] to the same extent that his or her
predecessor could have"); see also Meriwether County, 171
F.3d at 1339 ("The law does not make a school district a
prisoner based on factors, such as demographic tendencies, that
are beyond its control."). We will examine the district court's
Martin findings in turn.
a. School Siting
The district court found that CMS had not shirked its
duties under the law with regard to school sitings. See
Capacchione, 57 F .Supp.2d at 251-53. The record reveals that
CMS has, to the extent practicable, continually endeavored to
site schools in order to foster integration, and has adopted a
policy of building schools in areas equally accessible to blacks
and whites. Testimony of current board members indicated that
in efforts to fulfill this policy, CMS has purchased property in
low growth areas for school construction even though schools
in predominantly white high growth areas were overcrowded.
See J.A. V-1986-87. In 1992 CMS reaffirmed its siting policy
and resolved that, "whenever possible," new schools would be
built in areas that would "provide black student enrollment of
not less than 10 percent from the census tracts serving the new
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Opinions of the Court of Appeals of September 21, 2001
school." J.A. XXXII-15,686. The impetus behind the
resolution was growth in the periphery of the county which the
board speculated would continue patterns of housing
segregation, thus making it more difficult to maintain racial
balance in the schools. Evidence presented at trial indicated
that the ten percent rule was destined for failure because it was
not possible to implement the rule and still "meet the 60-minute
bus ride limit." J.A. XXII-10,869. Nevertheless, extensive
evidence was presented showing that CMS never sited schools
in order to foster segregation and that “every effort was made
to try to find school sites that would bring people together in
balanced numbers." J.A. VI-*325 2752; see Meriwether
County, 171 F.3d at 1337 (stating that "the absence of evidence
indicating that racial motives played any part in the Board's
decisionmaking process" is relevant in accessing compliance
with desegregation orders). For example, CMS's executive
director of planning and student placement testified that in
siting schools CMS "looked at both African-American and all
populations not only in the vicinity of the site, but in the entire
district." J.A. VII-2920. So dedicated was CMS to siting
schools in integrated areas that it contemplated refusing a gift
of land for school use because the land was in a predominantly
white area. See J.A. V- 1985.
Faced with growth in the predominantly white regions
of the far south and north, see J.A. XXXIII-16,261, CMS was
compelled to serve populations in those areas via school
sitings. CMS's data show that in the late 1990s, student
population was "growing at nearly 4,000 students per year,”
J.A. XXIX-14,133, and consequently the board was "just trying
to keep up" with the population explosion in building schools,
J.A. V-2249. Overcrowding was a problem, and in the late
1990s "the average high school expected to operate at 109
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Opinions of the Court of Appeals of September 21, 2001
percent of its capacity." J.A. XXIX-14,133. Even though CMS
was forced to build schools at a rapid rate to serve an
expanding student population, pupil assignment plans in which
CMS described population growth as a "major consideration [
]" are replete with efforts to improve racial balance. J.A.
XXIX-14,133. For example, the 1997-98 assignment plan
highlighted the creation and expansion of several magnet
programs specially designed to reduce the black ratio in a
number of schools. See J.A. XXIX-14,147-51. To the extent
practicable, CMS did not sacrifice racial balance concerns to
population growth. Though the two often pulled CMS in
different directions, the record indicates that the board
coordinated racial balance and school sitings as best it could
under the circumstances. The evidence does not indicate that
the abandonment of the ten percent rule or other decisions
regarding school siting were the result of a desire to perpetuate
the dual school system or circumvent the district court's orders.
CMS and the Swann plaintiffs, citing to prior orders,
counter that the board has not done all that it could do in the
area of school siting. Erection of such a standard, however,
would effectively replace practicability with possibility. See
Manning, 244 F.3d at 945 (observing that "the law does not
require a defendant school board to take every conceivable step
in attempting to desegregate"). The former implies measures
that can be reasonably implemented under the circumstances,
while the latter omits the reasonableness requirement. For
instance, it was possible for CMS to adhere to the ten percent
rule while ignoring growth in the far north and south of the
county. Youngsters would have been compelled to ride buses
for long periods while traveling with the flow of rush hour
traffic, but it was nonetheless possible to adhere to the ten
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Opinions of the Court of Appeals of September 21, 2001
percent rule. Of course, the practicability of a refusal to
respond to growth in Charlotte-Mecklenburg is another matter.
In the same vein, the Swann plaintiffs contend that
school siting decisions were a response to white flight, which
is an impermissible reason for failing to comply with a
desegregation order. Growth, of course, is far different from
flight. And experts offered evidence of "the economic boom in
the Charlotte Metropolitan area in the last decade." J.A.
XXXIII-16,233. Charlotte- Mecklenburg is one of the most
dynamic areas in the South; it is far different from the
Charlotte-Mecklenburg of Swann, and much changed from that
of Martin. In *326 light of the growth in the county and
aplethora of evidence demonstrating that the board used its best
efforts to site schools in order to foster integration, the district
court did not commit error when it concluded that there is no
"continuing constitutional violation[{ ] in the area of school
siting." Capacchione, 57 F Supp.2d at 253.
b. Burdens of Busing
As for the burdens of busing, the district court found
that in the most recent school year, 15,533 black students and
11,184 non-black students were bused for balancing purposes.
Id. As stated earlier, traffic patterns make busing suburban
students into the inner city far more difficult than busing
inner-city children into the suburbs. See J.A. VI-2732; J.A.
V-2228. Though a disproportionate number of
African-American students are bused, the growth, housing
patterns, and traffic patterns support the district court's
conclusion that the realities of the current situation should not
block a unitary status determination. See Meriwether County,
171 F.3d at 1341 (finding no constitutional violation when
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white students are "somewhat less burdened by the
transportation scheme" because of demographic factors).
c. Student Transfers
Finally, Martin's concern with student transfers appears
to have been based on the assumption that CMS would
experience average growth. Courts are not omniscient, and the
district court in 1979 could not have foreseen the changing
demographics that would make student transfers the least of
CMS's worries. In the present litigation, the district court
observed "that CMS ‘kept an eye on [magnet transfers] so that
there wouldn't be a run on the bank so to speak from any one
school.'" Capacchione, 57 F .Supp.2d at 250 n. 10 (alteration
in original). This finding is not clearly erroneous, nor can we
discern the need for more findings on this issue in light of
post-Martin changes.
3. Conclusion
In sum, the district court's findings on student
assignment are "plausible in light of the record viewed in its
entirety." Anderson, 470 U.S. at 573, 105 S.Ct. 1504. The dual
system of student assignment in CMS has been eradicated "to
the extent practicable." Dowell, 498 U.S. at 250, 111 S.Ct.
630. The imbalance existing in some schools is not traceable
to the former dual system or to renewed discriminatory actions,
but rather is a result of growth and shifting demographics.
Consequently, we hold that the district court's findings on
student assignment are not clearly erroneous.
B. Faculty Assignment
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Opinions of the Court of Appeals of September 21, 2001
In examining faculty assignment, the district court again
used a plus/minus fifteen percent variance. Of the 126 sch: ols
operating in CMS, the district court found that in 1997-98 only
ten schools were out of balance. The Swann plaintiffs point out
that this number grew to sixteen in 1998-99, but this means that
a mere twelve percent of the schools were out of balance. This
is a far cry from the dual system in which "most of the 24,000
[black students] ha [d] no white teachers." Swann, 300 F.Supp.
at 1360. There is simply no evidence that CMS assigns black
teachers to predominantly black schools and white teachers to
predominantly white schools. Thus, the district court's
conclusion that this Green factorhas been satisfied is not clearly
erroneous.
C. Facilities and Resources
The Swann plaintiffs and CMS contend that the district
court impermissibly shifted *327 the burden of proof on this
factor. As a result of the alleged error of law, CMS and the
Swann plaintiffs contend that this issue must be remanded to
the district court.
This court has previously made clear that "once a court
has found an unlawful dual school system, [those alleging the
existence of racial disparities] are entitled to the presumption
that current disparities are causally related to prior segregation,
and the burden of proving otherwise rests on the defendants."
School Bad. of the City of Richmond v. Baliles, 829 F.2d 1308,
1311 (4th Cir.1987). In this case, however, the district court
noted that none of the prior orders entered in the long history of
the Swann litigation had ever found racial disparities to exist
with regard to school facilities an cuneluded that CMS and the
Swann plaintiffs bore the burden 0% *eteblishing discrimination
hha eee
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Opinions of the Court of Appeals of September 21, 2001
with regard to facilities. See Capacchione, 57 F .Supp.2d at 263
("{I}t would defy logic to place now the burden of proof on the
Plaintiff Intervenors, requiring them to prove that vestiges of
discrimination in facilities have been remedied, when the Court
originally found no vestiges to exist."). In our view, this
erroneous assignment of the burden of proof, which did not
affect the manner in which the parties tried the case or
otherwise prejudice their rights, is harmless and does not
undermine the district court's factual conclusions regarding the
facilities factor.°
Immediately after assigning the burden to CMS and the
Swann plaintiffs, the district court's order nonetheless
summarized and weighed the facilities evidence presented by
the parties. The district court carefully analyzed the testimony
and report of Dr. Dwayne Gardner, an expert witness for CMS.
Dr. Gardner analyzed seventy-three schools--every identifiably
black school in CMS and a sampling of balanced schools and
predominantly white schools. Dr. Gardner measured the
adequacy, safety, healthfulness, accessibility, flexibility,
efficiency, expansibility, and appearance of the schools. Based
on the inspection he grouped schools as follows: "0-44
(suggests replacement), 45-59 (needs major improvement),
60-74 (needs minor improvement), 75-89 (serves program
needs), and 90-100 (exceptional quality)." Jd at 264. The
survey revealed that of the four schools that warranted
‘Given the counter-intuitive alignment-of the parties in this case,
it could be argued that the presumption and burden allocation set forth in
Baliles should not be applied, and that CMS should instead be required to
prove the existence of racial disparity in its facilities. See United States v.
City of Yonkers, 181 F.3d 301, 309-11 (2d Cir.1999), vacated on reh'g, 197
F.3d 41 (2d Cir.1999).
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Opinions of the Court of Appeals of September 21, 200]
replacement, two were majority white, and two were
imbalanced black. See J.A. XXV-12,182-86. Thirty-four
schools fell into the "needs major improvement” category, of
which sixteen were imbalanced black and eighteen identifiably
white.
The district court determined that Dr. Gardner's
testimony established that any current disparities were
functions of the age of the facilities at issue, because
different building standards apply wher a new facility
is constructed as compared to when an older facility is
renovated or upgraded. In other words, the renovation
of an older facility usually complies with the code
under which the facility was built. Because most
facilities in the predominately black inner City are older
while facilities in the predominately white suburbs are
newer, the inference is that differences in building
Standards tend to affect black students
disproportionately. This does not amount to racial
discrimination. Indeed, *328 this practice applies
regardless of the racial composition of the school.
Thus, older schools that are predominately white--
several of which were built in the 1920s--are likewise
affected by this practice.
Capacchione, 57 F.Supp.2d at 265 (footnote and transcript
references omitted). Thus, the district court concluded from
Dr. Gardner's testimony and report "that CMS's facilities needs
are spread across the system without regard to the racial
composition of its schools." Jd
The district court also considered the testimony of
CMS's assistant superintendent of building services, who
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Opinions of the Court of Appeals of September 21, 2001
testified that out of 108 schools in need of renovations,
eighty-one percent were racially balanced or identifiably white.
See J.A. VIII-3810 & 3818. The district court concluded that
this witness's testimony likewise demonstrated that the
deficiencies in CMS's facilities were unrelated to the former de
jure system.
Finally, the court considered CMS's track record in
renovating old facilities, praising its practice of allocating funds
on a per-pupil basis and noting that "CMS has spent a large
portion ofits} bond money on improving schools in
predominantly black areas." Capacchione, 57 F.Supp.2d at 266.
After an extensive discussion of this evidence, the court ~
made the following finding of fact with regard to facilities: _
Just as Judge McMillan found thirty years ago, the
Court finds today that inequities in facilities exist
throughout the system regardless of the racial makeup
of the school. These disparities are generally the result
of the relative ages of the facilities, combined with an
ongoing lack of funding and the need to accommodate
unprecedented growth.
Id.
This finding is clearly determinative of the question of
unitary status as to facilities, regardless of which party carried
the burden of proof. That is, the district court, after carefully
considering and weighing all the evidence presented on this
factor, concluded that any disparity as to the condition of the
facilities that might exist was not caused by any intentional
discrimination by CMS, but instead was a function of the age
and location of the facilities and the ever-present problem of
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Opinions of the Court of Appeals of September 21, 2001
allocating all too scarce funds. Even if the district court had
assigned the burden of proof to the plaintiff-intervenors, this
factual finding would have compelled a ruling in their favor.
In fact, the district court acknowledged as much, stating "that
the Plaintiff-Intervenors have proven, to the extent possible, the
absence of intent and causation." Capacchione, 57 F .Supp.2d
at 267 n. 38.”
Therefore, because the district court's findings, which
were based on the court's weighing of all of the relevant
evidence presented at trial, would have yielded the same
conclusion under a proper assignment of the burden of proof,
any error with regard to.the burden of proof is harmless. See
*329Washington State Dep't of Transp. v. Washington Natural
Gas Co., 59 F.3d 793, 801 (9th Cir.1995) (finding district
court's improper assignment of the burden of proof to be
harmless because review of the entire record established "that
under the proper assignment of the burden of proof, the district
court would have reached the same decision"); Applewood
Landscape & Nursery Co. v. Hollingsworth, 884 F.2d 1502,
1506 (1st Cir.1989) (concluding that, if the district court
improperly allocated burden of proof on a particular issue, the
"From this footnote and the district court's detailed discussion
about the cause of any disparity in CMS's facilities, it appears that the
district court really made alternative rulings on the facilities question: The
court first concluded that CMS and the Swann plaintiffs bore the burden of
proof with regard to facilities and that they failed to carry that burden. See
Capacchione, 57 F Supp.2d at 267 ("[T]he Swann Plaintiffs have failed to
overcome the Court's previous findings on facilities by establishing the
requisite discriminatory intent and causation."). The court then ruled in the
alternative, as indicated by the foomote and the findings, that the
plaintiff-intervenors proved that any disparities were the result of factors
unrelated to state action.
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Opinions of the Court of Appeals of September 21, 2001
error was harmless because the district court's decision on that
issue turned on the weight of the evidence in the record and not
on burden of proof rules); cf Vaughns, 758 F.2d at 992
(recognizing that an error in shifting the burden of proof in a
school desegregation case may be harmless if the record is such
that the court can conclude that substantial rights have not been
prejudiced).
Because any error associated with the burden of proof
is harmless, the only question that remains is whether the
district court's factual findings about the facilities are clearly
erroneous. Though the evidence could have been weighed
differently on this factor, "[wJhere there are two permissible
views of the evidence, the factfinder's choice between them
cannot be clearly erroneous." Anderson, 470 U.S. at 574, 105
S.Ct. 1504. In 1969, the district court found that there was no
constitutional violation in the "quality of school buildings and
facilities." Swann, 300 F.Supp. at 1372. The Capacchione
court found that this remains true today, and the evidence as a
whole indicates that this finding is not clearly erroneous.
D. Transportation
During the 1998 school year, five out of every six
students.in CMS rode a school bus. See Capacchione, 57
F.Supp.2d at 267. The parties do not dispute the district court's
finding that "CMS provides free bus transportation to all —
students who do not live within a mile and a half of their
schools." Jd. The focus of the Swann plaintiffs' argument on
this factor deals with the Martin opinion. As previously
discussed, Martin does not provide the framework for a unitary
status determination and the district court's interpretation of
Martin, along with the finding that the present state of busing
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Opinions of the Court of Appeals of September 21, 2001
"may be about the best CMS can do," Capacchione, 57
F.Supp.2d at 253, does not constitute error.
E. Staff Assignment
The district court, noting that findings of discrimination
in school staffing were never made, concluded that CMS has
complied with its constitutional duties. The parties point this
court to no contrary evidence, nor have we discovered such in
the record. Therefore, we hold that the district court's findings
regarding the fifth Green factor are not clearly erroneous.
F. Extracurricular Activities
The district court concluded that there was no
discrimination or vestiges of discrimination with regard to
extracurricular activities. The evidence presented at trial
showed that the ratios of blacks and whites participating in
extracurricular activities, though varying somewhat from year
to year, is approximately equal. See J.A. XXIV-11,634. Areas
where there are disparities were not shown to be linked to the
former dual system. For example, blacks often outnumber
whites in holding elective offices in student government, but
whites have a higher level of representation in honors
programs. No evidence is found in the record to indicate that
CMS somehow pushes African-Americans toward student
government and away from honors programs. Consequently,
the district court's *330 conclusion that CMS has satisfied this
Green factor is not clearly erroneous.
G. Ancillary Factors
1. Teacher Quality
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Opinions of the Court of Appeals of September 21, 2001
The district court found that there was no discrimination
in the quality of teaching. The Swann plaintiffs contend that
this finding is clearly erroneous because students in imbalanced
African-American schools are more likely to have
inexperienced teachers. This "experience gap," to the extent it
exists, is minuscule. The district court found that "teachers in
imbalanced- black schools had 0.7 to 1.3 fewer years
experience than the district averages and had 1.6 to 2.9 fewer
years experience than teachers in imbalanced-white schools."
Capacchione, 57 F.Supp.2d at 271. To use middle school
teachers as an example, the statistics reveal that the average
middle school teacher in an imbalanced African-American
school had 8.2 years experience versus 9.8 years for his
counterpart in an imbalanced white school. Jd. These numbers
clearly support a finding of equality rather than disparity, and
cannot undermine the district court's conclusion on this factor.
The district court also pointed to evidence indicating
that experience does not necessarily relate to competency. For
example, according to former Superintendent Murphy, it is not
uncommon to have "excellent first-year teachers" and "very
weak 35th-year teachers." J.A. VI-2795. Other witnesses
observed that the newer teachers had better "knowledge of
various teaching strategies" and were more comfortable with
diverse classrooms. J.A. VII-3275.
The Swann plaintiffs also assert that imbalanced
African-American schools have fewer teachers with advanced
degrees. For instance, in imbalanced black high schools only
thirty-one percent of the teachers held advanced degrees, while
forty-six percent of the teachers in imbalanced white high
schools held advanced degrees. See Capacchione, 57
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Opinions of the Court of Appeals of September 21, 2001
F.Supp.2d at 271. As it was with teacher experience, testimony
was Offered establishing that the number of degrees a teacher
possesses does not necessarily translate into competence or
quality instruction. See J.A. VII-3276. According to former
Superintendent Murphy, "the degree level was not a significant
indicator of getting better performance on the part of the
teacher." J.A. VI-2795. Expert reports submitted by the
plaintiff-intervenors also indicated that there is "no significant
relationship" between black achievement and teacher education
levels. J.A. XXXIII-16,221. In sum, the district court's
conclusion that African-American students receive equal access
to quality teachers is not clearly erroneous.
2. Student Achievement |
The district court found that the existence of an
achievement gap between black and white students was not a
vestige of the dual system or evidence of discrimination in the
current operation of CMS. This was an area of immense
disagreement at trial, and the parties presented a mountain of
data on this subject. Though the Fourteenth Amendment
guarantees equal protection but not equal outcomes, if low
African-American achievement is a result of the former de jure
System, it must be eliminated to the extent practicable. See
Dowell, 498 U.S. at 249-50, 111 S.Ct. 630. Conversely, to the
extent that low achievement is linked to other factors, it is
beyond the reach of the court's authority. Most courts of
appeals confronting this issue, including this court, have
decli to consider the achievement gap as a vestige of
discrimination or as evidence of current discrimination. See
*331Baliles, 829 F.2d at 1313 (upholding lower court's
findings that low achievement is "primarily attributable to the /
high incidence of poverty" in the school district); see also
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Opinions of the Court of Appeals of September 21, 2001
United States v. City of Yonkers, 197 F.3d 41, 54 (2d Cir.1999)
(observing that "using achievement test scores as a measure,
either direct or indirect, of a school system's movement away
from segregation is deeply problematic"), cert. denied, 529 U.S.
1130, 120 S.Ct. 2005, 146 L.Ed.2d 956 (2000); People Who
Care v. Rockford Bd. of Educ., 111 F.3d 528, 537 (7th .
Cir.1997) (explaining that a number of variables, other than
discrimination, account for the achievement gap); Coalition to
Save Our Children, 90 F.3d at 778 (finding "a causal link
between ... socioeconomic factors and student achievement").
The plaintiff-intervenors' expert witness, Dr. Armor,
presented evidence indicating that there is no correlation
between African-American performance and the racial balance
of schools. See J.A. XXXIII-16,178. For example, Dr. Armor's
studies showed that African-American students in the third
through fifth grades attending schools sixteen to twenty-five
percent African- American scored the same on standardized
tests as their counterparts in schools seventy-five percent black
or greater. See J.A. at 16,214. Similarly, African-American
students in the sixth through eighth grades attending schools
sixteen percent black or less scored the same on standardized
tests as their counterparts in schools seventy-five percent black
or greater. See J.A. XXXIII-16,215.
In order to shed light on the true causes of the
achievement gap, Dr. Armor turned to socioeconomic factors.
The data revealed startling differences between black and white
children in CMS.
Average black family income is $31,000 compared to
$59,000 for whites, and only 15 [percent] of black
parents are college graduates, compared to 58 percent
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for white parents. A huge poverty gap is also revealed,
with 63 percent of black students on free lunch
compared to only 9 percent of white students. Finally,
83 percent of white students have both parents at home,
compared to only 42 percent for black students.
J.A. XXXIII-16,179, According to Dr. Armor, the
socioeconomic factors plus the second grade scores, which are
the earliest available, explain "nearly 80 percent of the reading
gap and over 70 percent of the math gap." J.A. XXXIII-
16,180. Former Superintendent Murphy testified that in his
experience "[p]oor students come behind and stay that way.
And in Charlotte, a majority of poor students happen to be
African-American." J.A. VI-2696. Dan Saltrick, former
assistant superintendent for instructional services, also testified
that in his experience low student test scores related to parental
Support which in turn was "a matter of ... socioeconomic
levels." J.A. VII-3280. While socioeconomic disparities
between black and white pupils are troubling, they are not the
result of CMS's actions or inactions and therefore are beyond
the scope of the original desegregation order. See Baliles, 829
F.2d at 1314 ("Educational deficiencies that result from
problems such as poverty are best remedied by programs
directed toward eliminating poverty, not by indirect solutions
through school programs.").* Accordingly, *332 the district
"Despite evidence that the achievement gap results from factors
outside CMS's control, the district court found that CMS has undertaken
incentives for teachers and principals tied to student performance, urged
black students to take advanced placement and other higher level classes,
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Opinions of the Court of Appeals of September 21, 2001
court did not clearly err in finding that the achievement gap
between black and white students is not a vestige of past
discrimination or evidence of present discrimination.
3. Student Discipline
The district court found "that any disparities that exist
in the area of discipline are not causally related to the dual
system." Capacchione, 57 F.Supp.2d at 281. In none of the
court's prior orders is there any indication that CMS has ever
discriminated in meting out punishment for disruptive students.
However, recent statistics show that of the 13,206 students
disciplined from 1996-98, sixty-six percent were
African-American. See J.A. XXIV-11,637. As the district
court noted, "disparity does not, by itself, constitute
discrimination." Capacchione, 57 F.Supp.2d at 281. The idea
that CMS should have a disciplinary quota is patently absurd,
and there is no evidence in the record that CMS targets
African-American students for discipline. Instead, the evidence
indicates that CMS has adopted guidelines whereby students
receive the same level of punishment for certain offenses to
ensure that the amount of punishment will not vary from school
to school. A student charged with a disciplinary infraction may
also appeal the charge "and may assert that the charge was due
to racial bias." /d. There is simply no evidence in the record
that CMS treats African-American students differently in
disciplinary matters. Hence, the district court's conclusion that
the disciplinary disparities are unrelated to the former de jure
system is not clearly erroneous.
preparedness for the youngest of students. See Capacchione, 57 F .Supp.2d
at 273-275.
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H. Good Faith
Lastly, the district court found that CMS has complied
with the desegregation decree in good faith. See Freeman, 503
U.S. at 491, 112 S.Ct. 1430 (requiring school board "to
demonstrate its good-faith commitment to a constitutional
course of action"). Seven factors supported the district court's
good-faith finding: (1) no further relief has been sought since
the district court removed the case from the active docket in
1975; (2) CMS has gone above and beyond the court's orders
by continually striving to achieve balance even when the
imbalance was unconnected to the dual system: (3) the board
has been open to community input and sought community
support for its integrative efforts; (4) the board has repeatedly
reaffirmed its commitment to desegregation through various
resolutions; (5) African-Americans currently occupy four of
the nine seats on the school board, including the chair. (6) the
board's actions over the past thirty years do not evince
discriminatory motives; and (7) "no evidence has been
presented that school authorities were guilty of easily
correctable errors." Capacchione, 57 F.Supp.2d at 282-83.
Testimony from former board members indicated that
the court's order has been "imstitutionalized," J.A. V-2222, and
that the board "always stuck to what the rules were.” J.A:
V-2234. Former Superintendent Murphy testified that when he
arrived in Charlotte-Mecklenburg he found a “unique”
: Suggested a magnet pian to increase integration, and, in
the course of his recommendations, observed that "[flor the last
twenty years, the Charlotte-Mecklenburg Board of Education
and the Charlotte-Mecklenburg community have, *333 in good
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Opinions of the Court of Appeals of September 21, 2001
faith, complied with the orders of the court.” J.A.
XXXII-15,570. He further observed "that the
Charlotte-Mecklenburg Board and community have a great deal
of pride in the fact that they successfully met a challenge and
made the solution work." J.A. XXXII-15,571.
Of course, both in the district court and in appellate
arguments, current CMS officials engaged in much
self-recrimination and claimed that they had not pursued the
dismantlement of the dual system with the requisite zeal. Right
on cue, the Swann plaintiffs describe this case as "unique"
because CMS "has acknowledged its own failure to comply
with specific directives" of the distriet court. Swann Plaintiffs’
Response to Petition for Rehearing at 10. The district court
gave little weight to CMS's assertions that the board had not put
forth enough effort, and the evidence presented at trial amply
supports the district court in this regard. Former
Superintendent Murphy testified that despite a report indicating
that CMS was unitary and his belief that CMS "w[as] definitely
in compliance," no effort was made to dissolve the court order.
J.A. VI-2706. Dr. Murphy gave three reasons for the avoidance
of a unitary status hearing. First, he advised board members
that the court hearing would be "a long, drawn-out process
which would cost millions of dollars, and that would be money
taken away from the instructional program.” J.A. V1I-2706.
Second, Dr. Murphy feared that if CMS was declared unitary
"we would not be eligible for federal funding for our magnet
schools." J.A. VI- 2706; see also J.A. XXII-10,563 (CMS
report observing that "school districts that intend to use magnet
schools for desegregation purposes can apply for grants from
the federal government"); J.A. XXI-10,521 (1996-1997
Federal Magnet School Assistance Program Evaluation Report
in which CMS describes federal funding as "an integral part" of
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Opinions of the Court of Appeals of September 21, 2001
its pupil assignment plan). Finally, Dr. Murphy thought it best
to remain under court order so CMS could continue to racially
balance schools even though the de jure violation had been
remedied.
Dr. Susan Purser, the current associate superintendent
of education services of CMS, expressed a similar desire for
CMS to remain under court order. Though Dr. Purser testified
that she believed that the school board, superintendent, and
administration were dedicated to enhancing educational
opportunities for all of CMS's students regardless of race, she
nonetheless expressed a preference for court supervision. Dr.
Purser pointed out that the current "Board has only a limited
time, because these are elected positions," J.A. XVII-8076, and
that over time "superintendents will change, [and] the people
involved in [CMS] will change." J.A. XVII-8077. At this
point in the cross examination, counsel asked Dr. Purser: "But
you don't know what any future School Board or administration
will do either way, do you?" J.A. XVII- 8077. Dr. Purser
responded: "That's exactly my point." J.A. XVII-8077. Dr.
Purser's testimony and that of Dr. Murphy exemplify why the
Supreme Court has stressed that "federal supervision of local
school systems was intended as a temporary measure to remedy
past discrimination." Dowell, 498 U.S. at 247, 111 S.Ct. 630;
see also Coalition to Save Our Children, 90 F.3d at 761 n. 6
(warning of "the potential for the entrenchment of [a] putatively
transitional desegregation scheme"). The district court's
desegregation orders were not intended to continue after CMS
remedied the de jure violation, nor were they intended to
suspend the democratic process with no prospect of restoration.
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Opinions of the Court of Appeals of September 21, 2001
the orders are now used by CMS officials as mechanisms for
the attainment of different goals. In truth, CMS officials have
little desire for a unitary status determination and are struggling
to keep the orders firmly in place.
Ironically, CMS's clinging to the temporary
desegregation orders buttresses the district court's finding that
itis unlikely "CMS would return to an intentionally-segregative
system." Capacchione, 57 F.Supp.2d at 284. If CMS will go
to such lengths to keep the court's orders in place so that it may
continue racial balancing and other policies, it is unthinkable
that CMS will attempt to revive the dual system. Accordingly,
the district judge's finding of good faith is not clearly
erroneous.
I. CMS's Remedial Plan
As a response to the plaintiff-intervenors' push for
unitary status, CMS developed a "remedial plan" addressing
many of the Green factors and other ancillary factors. See J.A.
XXIII-11,028. The district court dismissed the remedial plan
as a " ‘litigation strategy’ plan" and declined to consider it.
Capacchione, 57 F.Supp.2d at 256. CMS and the Swann
plaintiffs characterize the district court's treatment of the
remedial plan as a fundamental error of law that requires
reversal of the unitary status determination. First, CMS and the
Swann plaintiffs aver that the district court misconstrued the
test for unitary status. Adopting the test crafted by the panel
opinion, CMS and the Swann plaintiffs assert that a district
court must consider (1) what a school district has done, and (2)
what a school district may do in the future. See Belk, 233 F.3d
at 252-53. Because the district court did not undertake the
latter inquiry as to the remedial plan, CMS and the Swann
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plaintiffs argue that the district court's order must be reversed.
This proffered two-part test is divined from Supreme Court
cases which have instructed district courts to ask "whether the
Board ha[s] complied in good faith with the desegregation
decree since it was entered, and whether the vestiges of past
discrimination ha[ve] been eliminated to the extent
practicable." Dowell, 498 U.S. at 249-50, 111 S.Ct. 630; see
also Freeman, 503 U.S. at 491, 112 S.Ct. 1430.
While we agree with the first prong of the test, we do
not agree that examining "whether the vestiges of past
discrimination ha[ve] been eliminated to the extent
practicable," Dowell, 498 U.S. at 249-50, 111 S.Ct. 630,
requires a district court--as a matter of law--to consider a
remedial plan conceived, drafted, and offered by one of the
parties during the lawsuit as an obvious deiense to it. The plain
meaning of the relevant language is that in some desegregation
cases simple compliance with the court's orders is not enough
for meaningful desegregation to take place. See Swann, 402
U.S. at 25, 91 S.Ct. 1267 (stating that "a district court's
remedial decree is to be judged by its effectiveness"). For
example, a decree entered in the 1960s or 1970s could have
underestimated the extent of the remedy required, or changes
in the school district could have rendered the decree obsolete.
In either case, a district court must look beyond mere
compliance with the original decree and ask whether the
vestiges of the dual system have been eliminated to the extent
practicable. In the present case, the district court undertook
such an inquiry. Not only did the district court address
compliance, but it also looked beyond the original decree and
examined how the extensive changes in the
Charlotte-Mecklenburg area have affected the dismantling of
the former dual system. Hence, the district court was not
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Opinions of the Court of Appeals of September 21, 2001
required under Dowell and *335 Freeman to have considered
CMS's eleventh-hour remedial plan.
Likewise, the district court did not run afoul of Federal
Rule of Evidence 402 when it refused to consider the remedial
plan. Rule 402, of course, declares that "[a]ll relevant evidence
is admissible." Fed.R.Evid. 402. Even relevant evidence may
be excluded, however, when its probative value is substantially
outweighed by considerations of the needless presentation of
cumulative evidence. See Fed.R.Evid. 403. And CMS's
remedial plan was certainly cumulative, citing and
summarizing several expert reports which had been admitted
into evidence. For example, the plan's discussion of faculty
assignment is based on the reports of Dr. William Trent, Dr.
Robert Peterkin, and Dr. Roslyn Mickelson; the plan's
discussion of facilities is based on Dr. Gardner's report; the
plan's discussion of the achievement gap between blacks and
whites is based on the reports of Dr. Trent, Dr. Peterkin, and
Dr. Mickelson; and the plan's student assignment discussion is
based on Dr. Gordon Foster's report. All of the aforementioned
reports were admitted into evidence and the authors of the
reports testified at the hearing and were subject to
cross-examination. Hence, much of the remedial plan was
cumulative, providing the district court with but a rehashing of
expert reports and testimony.
To the extent that the remedial plan contained relevant
evidence appearing nowhere else in the record, we hold that the
exclusion of such evidence was harmless. According to
Federal Rule of Civil Procedure 61, a "court at every stage of
the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties." Listing myriad deficiencies, objectives, and strategies,
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the thirty-one page remedial plan is often short on specifics.
Considering the amount of evidence presented on every aspect
of CMS's operations during other phases of the two- month
bench trial, we cannot hold that the exclusion of the remedial
plan affected CMS's substantial rights. See Ingram Coal Co. v.
Mower, L.P., 892 F.2d 363, 366 (4th Cir.1989) (applying Rule
61). Because the exclusion of the remedial plan in no way
renders the judgment below suspect, the district court's
treatment of the plan cannot support reversal.
. J. Conclusion
Pursuant to the foregoing, we affirm the district court's
unitary status determination in toto. The district court's
findings on the Green factors and the ancillary factors are bereft
of clear error and we cannot discern any error of law affecting
the substantial rights of the parties. After more than three
decades of federal court supervision, CMS has complied in
good faith with the mz» date of Brown embodied in the district
court's desegregation orders to achieve a unitary school system.
The dual system has been dismantled and the vestiges of prior
discrimination have been eliminated to the extent practicable.
This is not to say that CMS is a perfect school
system--it is not. Like school systems across the nation, CMS
faces an expanding pupil population, aging facilities, and a
scarcity of funds. These difficulties, however, are not vestiges
of the former de jure system and therefore do not have
constitutional implications. Considering CMS's exemplary
efforts in eradicating the segregated school system, we are
confident that de jure segregation is history.
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Ill. Magnet Schools
I turn now to Capacchione's challenge to CMS's 1992
magnet schools plan. Specifically, Capacchione contends that
his daughter Cristina was unconstitutionally *336 denied
admission to a magnet school program on account of her race.
Capacchione does not argue that race should not have been a
factor in the magnet admissions process, but that the inflexible
quotas, which operated to leave seats in these specialized
schools vacant despite long waiting lists, went beyond what
was permissible under prior court orders and the Constitution.
As noted previously, CMS operated its schools in nearly
perfect racial balance for almost twenty years under a pupil
assignment plan, adopted by the board and approved by the
district court in 1974, which primarily utilized paired
elementary schools, satellite attendance Zones, a feeder system,
and three experimental "optional schools." See Swann, 379
F.Supp. at 1103-05; J:A. XXVIII-13,536-44. In 1991,
however, CMS hired Dr. Stolee to examine racial imbalance
that was being caused anew by the demographic shifts and
population growth in Mecklenburg County. The result of Dr.
Stolee's labors was a new pupil assignment plan, entitled "CMS
Student Assignment Plan: A New Generation of Excellence."
This new plan emphasized the use of magnet schools, which
would allow CMS to phase out the unpopular paired
elementary schools. Magnet schools, many of which were
located in predominately black neighborhoods, offered a
specialized curriculum or innovative instructional styles not
found in the other schools in the system.
Former Superintendent Murphy oversaw
implementation of the Stolee plan and testified that the magnet
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Opinions of the Court of Appeals of September 2], 200]
program was adopted because CMS "wanted to attract more
white youngsters into the inner city schools" in order to meet
CMS's racial-balance goals. J.A. VI-2709. Dr. Stolee observed
in his report that "Charlotte-Mecklenburg has had a long and
successful experience with mandatory school assignments," but
that in order to combat demographic shifts CMS should adopt
a plan based on voluntarism. J.A. XXXII-15,581; see also
Missouri v. Jenkins, 515 U.S. 70, 92, 115 S.Ct. 2038, 132
L.Ed.2d 63 (1995) (Jenkins III ) ("Magnet schools have the
advantage of encouraging voluntary movement of students
within a schoo! district in a pattern that aids desegregation on
a voluntary basis, without requiring extensive busing and
redrawing of district boundary lines."); J.A. XXVIII-13,796
(student assignment plan boasting that "Charlotte, the city
which prides itself on leading the nation in integration through
busing, now has the opportunity to become the city to lead the
nation in voluntary busing"). A desegregation plan using
magnet schools, according to Dr. Stolee, would "give[ ] each
parent an opportunity to make a choice between a school
serving the area in which the family resides, a school in some
other area, or a school offering a very specific attractive
program.” J.A. XXXII- 15,580. Dr. Stolee also recognized that
the magnet-centered plan would be a dramatic shift from the
prior desegregation plan which featured paired elementary
schools, satellite attendance zones, and a feeder systei. Thus,
as part of the plan, he recommended that CMS secure approval
from the district court before making any changes. Indeed, Dr.
Stolee's "RECOMMENDATION # 1," out of forty-four, read:
THE SCHOOL BOARD, THROUGH LEGAL
COUNSEL, SHOULD APPROACH THE FEDERAL
COURT TO SECURE APPROVAL TO CHANGE
THE COURT-ORDERED DESEGREGATION PLAN.
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Opinions of the Court of Appeals of September 21, 200]
J.A. XXXII-15,578. This recommendation was consistent with
the prior district court order directing CMS to apply to the
district court "before making any material departure" from the
approved desegregation plan. Swann, 311 F.Supp. at 270; see
*337 also J.A. XXVII-13,790 (board member requesting that
Dr. Stolee "review the federal court order" to determine if the
magnet plan was permissible). However, CMS ignored Dr.
Stolee's advice and the district court's instruction, choosing
instead to withhold these changes in the desegregation plan
from the district court.
The crux of the problem with CMS's magnet school
plan is its admissions process. As aptly described by the
district court, it operates as follows:
At the start of the process, CMS first fills seats with
preferences based on whether the applicant lives in
close proximity to the school and whether the applicant
has any siblings in the school. CMS then fills the
remaining seats by selecting students from a black
lottery and a non-black lottery until the precise racial
balance is achieved.
Capacchione, 57 F .Supp.2d at 287 (internal citations omitted).
As originally explained to the board, the plan sought a balance
of sixty percent white and forty percent black in the magnet
schools with a plus or minus fifteen percent deviation. See J.A.
XXVII-13,705. Unfortunately, CMS opted for a strict ratio of
sixty percent white and forty percent black, and decreed in its
1992 student assignment plan that magnet "slots reserved for
one race will not be filled by students of another race." J.A.
XXXII-15,702. The result of this policy was that if a sufficient
number of blacks or whites did not apply and fill the seats
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Opinions of the Court of Appeals of September 21, 2001
allotted to their respective races, then those seats would be left
vacant. Though some exceptions were made, Superintendent
Eric Smith testified that CMS generally adhered to the policy.
See J.A. XV-7217.
The district court appropriately examined the magnet
schools through a pre-unitary status lens, observing "that the
current litigation started not as a petition for unitary status but
as a discrimination suit arising out of Cristina Capacchione's
denial of admission to a magnet school based on her race."
Capacchione, 57 F.Supp.2d at 284. The district court
recognized that school officials acting pursuant to a
desegregation order were immune from liability for actions
taken consistent with that order. See Fowler v. Alexander, 478
F.2d 694, 696 (4th Cir.1973) (law enforcement officials who
confined the plaintiff pursuant to a court order were immune
from § 1983 suit); see also Wolfe v. City of Pittsburgh, 140
F.3d 236, 240 (3d Cir.1998) (officials acting pursuant to court
order establishing quotas for promotions are not subject to §
1983 liability); Turney v. O'Toole, 898 F.2d 1470, 1472-73
(10th Cir.1990) (holding that so long as a court order is facially
valid, officials acting pursuant to that order are immune from
a damages suit); Coverdell v. Department of Soc. & Health
Servs., 834 F.2d 758, 764 (9th Cir.1987) (social worker is
immune from § 1983 liability when executing a facially valid
court order). However, the district court concluded that the use
of magnet schools had never been approved and that the rigid
racial limitations of the magnet admissions policy were
"beyond the scope of the Court's mandate." Capacchione, 57
F.Supp.2d at 285. The district court then subjected the
admissions policy to strict scrutiny, holding that the policy
violated the Equal Protection Clause of the Fourteenth
Amendment because it was not narrowly tailored to achieve the
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Opinions of the Court of Appeals of September 21, 200]
compelling state interest of remedying past discrimination.
This court reviews the district court's findings of fact for clear
error and its legal conclusions de novo. See Rutherford Hosp.,
Inc. v. RNH Partnership, 168 F.3d 693, 698 (4th Cir.1999).
A. Immunity
I begin with the question of whether CMS officials are
entitled to immunity because *338 their actions in adopting and
implementing the Stolee magnet program in 1992 were taken
pursuant to and were consistent with the desegregation orders
and opinions issued by the district court and Supreme Court in
the early 1970s. In the main, CMS asserts that it is entitled to
immunity for its act of implementing the 1992 magnet schools
program without court approval because the prior desegregation
orders authorized the use of "optional schools" and a racial
balance goal for filling them. Like the district court, I conclude
that the magnet schools plan, as implemented, was not
authorized by the prior court orders and that, for the reasons
stated hereafter, the CMS officials are not entitled to immunity.
1. Magnet-Centered Program
As an initial matter, I note that prior court orders did not
countenance implementation of a desegregation plan based
primarily on magnet schools. Never was CMS given carte
blanche to adopt such a program absent court review and
approval. CMS counters that a magnet-centered plan was
permissible insofar as the district court approved the
establishment of a few experimental optional schools in 1974
as part of a plan utilizing paired elementary schools, satellite
attendance zones, and a feeder system. See Swann, 379 F.Supp.
at 1103-04. What CMS fails to recognize is that optional
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Opinions of the Court of Appeals of September 21, 2001
schools were but a small part of the plan approved in 1974,
likely because the district court was very skeptical about their
efficacy as a desegregation technique. In the course of its
order, the district court noted that the history of optional
schools was marked by "failure" in a number of regards and
warned CMS to be cautious in creating them. /d at 1103.
Consequently, CMS began with three experimental optional
schools in 1974 and increased the number to only six by the
early 1990s.
The optional schools created in the wake of the 1974
order placed more "emphasis on open or traditional education
than normally offered in conventional schools." J.A.
XXXII-15,683. The optional schools’ traditional programs
"offer[ed] an enriched and highly structured education," J.A.
XXXII- 15,732, whereas the open programs offered a
"student-centered" environment that "encouraged [students] to
take responsibility for their behavior and for their own
learning.” J.A. XXXII-15,733. The optional schools approved
by the 1974 order were not as diverse and specialized as the
magnet school program implemented in 1992. The program
suggested by Dr. Stolee offered schools specializing in
traditional and open educational methods and created
specialized schools featuring the Montessori method; science,
mathematics, and technology; foreign language immersion;
learning immersion programs for young children; enhanced
education for academically gifted students; and communication
studies programs. See J.A. XXXII-15730-41. However, both
the optional schools and the magnet schools were designed to
achieve the same end result--the attraction of students to a
school in a particular location by using a specialized curriculum
or teaching technique. Thus, Dr. Stolee, in recommending the
magnet program in 1992, observed that CMS, via its optional
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Opinions of the Court of Appeals of September 21, 2001
schools, "had some experience in such specialized schools."
J.A. XXXTI-15,580.
Despite the district court's 1970 directive that CMS
obtain court approval for material modifications to the
court-imposed desegregation plan, the court's skepticism of
optional schools, the approval process that took place in the
ensuing years, and Dr. Stolee's specific recommendation in
1992 that CMS seek court approval for the new magnet schools
program, CMS inexplicably chose not to return *339 to the
district court to obtain approval of the magnet schools plan. At
appellate argument before the entire court, CMS contended that
the language in the 1970 order requiring court approval for
material departures was superceded by the 1974 order. CMS
points to no language in the 1974 order supporting this
argument and its repeated citations to and reliance on pre 1974
orders regarding other aspects of this case further call into
doubt this new line of argument. Moreover, the 1974 order
made clear that "[e]xcept as modified herein, all previous
orders of court remain in effect." Swann, 379 F.Supp. at 1105
(emphasis added). Hence, the 1970 order's requirement that
CMS obtain leave of court "before making any material
departure from any specific requirement set out in the order"
remained binding on school officials. Swann, 311 F.Supp. at
270.
Nevertheless, I recognize that magnet schools are
frequently used by school districts under a desegregation order,
see Milliken v. Bradley, 433 U.S. 267, 272, 97 S.Ct. 2749, 53
L.Ed.2d 745 (1977) (Milliken IT) (approving of magnet schools
as a desegregation tool), and that the district court "encouraged
[CMS officials] to use their full ‘know-how and resources to
attain" a desegregated school system, Swann, 311 F.Supp. at
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Opinions of the Court of Appeals of September 21, 2001
269. Indeed, the plaintiff-intervenors' own expert has touted
magnet programs as an "effective way to attract sizable
numbers of white students to predominately minority schools."
David J. Armor, Forced Justice: School Desegregation and the
Law 223 (1995). Thus, a magnet schools program, properly
implemented, can no doubt be an effective desegregation tool.
However, a conclusion that CMS was free to adopt any form of
magnet school program it might wish to see in place does not
flow from this general proposition.
I must forcefully disagree with CMS's contention that
the mention of optional schools in the 1974 order provided
legal cover for the implementation of an assignment plan
depending almost entirely on magnet schools. The portions of
the district court order authorizing "optional schools" could
perhaps be read in isolation as authorizing CMS's use of
"magnet schools" in more diverse, specialized areas, but the
order did not authorize CMS to unilaterally abandon pairing,
satellites, and feeders in exchange for a magnet-centered plan.
Despite the import of the 1974 order, and without even a nod
to the district court, CMS in 1992 abandoned the approved
desegregation plan in favor of magnets. By the end of the
decade CMS had created fifty-eight magnet programs--a far cry
from the six optional schools in operation in the school year
just prior to the adoption of the Stolee plan. See J.A.
XXXIV-16,721-30. CMS describes this abandonment of the
prior plan as but an expansion of the approved use of optional
schools. Clearly, this "expansion" was in reality a substantial
restructuring and cannot be squared with the unambiguous
directives of prior orders.
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Opinions of the Court of Appeals of September 21, 200]
2. Strict Ratios
Even if I could conclude that a magnet-centered plan
was permitted under prior court orders, the plan implemented
by CMS is nonetheless ultra vires because it combines a rigid
ratio of sixty percent white and forty percent black with a
policy decreeing that "slots reserved for one race will not be
filled by students of another race." J.A. XXXII-15,702.’ In
1970, the *340 district court issued a desegregation order to
CMS, noting that the order was "not based upon any
requirement of ‘racial balance.'" Swann, 311 F.Supp. at 267
(emphasis added). The court reiterated "that efforts should be
made to reach a 71-29 ratio in the various schools so that there
will be no basis for contending that one school is racially
different from the others, but ... that variations from the norm
may be unavoidable." Jd. at 267-68 (internal quotation marks
omitted). On appeal, the Supreme Court affirmed the
guidelines set forth in the district court's order and also
addressed the subject of racial quotas. See Swann, 402 US. at
23-25, 91 S.Ct. 1267.
With regard to the district court's goal of achieving a
racial balance of seventy-one percent white and twenty-nine
percent black, the Court took care to note that "(t]he
constitutional command to desegregate schools does not mean
that every school in every community must always reflect the
*My colleagues in the majority on this issue eloquently argue that
CMS was permitted to take race-conscious measures when complying with
desegregation orders. With this I agree--a school district under order to
desegregate must of course take race into account when assigning students.
The primary question regarding the magnet program, however, is whether
CMS ran afoul of the Supreme Court's prohibitions against inflexible ratios,
not whether race-conscious measures are permissible.
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Opinions of the Court of Appeals of September 21, 2001
racial composition of the school system as a whole." Swann,
402 u.%. at 24, 91 S.Ct. 1267. But central to the issue now
before us, the Court held that had the district court
require[d], as a matter of substantive constitutional
right, any particular degree of racial balance or mixing,
that approach would be disapproved and we would be
obliged to reverse.
Id. See also Winston-Salem/Forsyth County Bd. of Educ. v.
Scott, 404 U.S. 1221, 1227, 92 S.Ct. 1236, 31 L.Ed.2d 441
(1971) (Burger, C.J., in chambers) (describing as "disturbing"
the school board's "understanding that it was required to
achieve a fixed ‘racial balance’ that reflected the total
composition of the school district"). The goal was upheld, only
upon the condition that "use made of mathematical ratios was
no more than a starting point in the process of shaping a
remedy, rather than an inflexible requirement." Swann, 402
USS. at 25, 91 S.Ct. 1267.
Just two years after the Supreme Court, in this very
case, made clear that strict ratios were unacceptable, the district
court, in a carefully worded order permitting CMS to create
optional schools, approved an intentionally flexible enroliment
formula of "about or above 20% black students." Swann, 379
F.Supp. at 1104 (emphasis added). The district court
recognized that the "actual enrollment of the optional school
may have to be guided by its racial composition and by the
number drawn from each other school area, not by
considerations of space and program only." Jd. at 1108.
Additionally, the district court's order directed that
"[rleassignments to optional schools must not jeopardize the
racial composition of any other school." Jd These
——————— ee
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Opinions of the Court of Appeals of September 21, 2001
modifications, however, at no time set a racial ratio of the type
disapproved of by the district court in its earlier orders and by
the Supreme Court in its 1971 review of the district court's
1970 order.'°
*341 CMS asserts that the inflexible racial limits
adopted in the 1992 magnet-centered plan were countenanced
by the 1974 order discussing optional schools.'' In making this
'T also disagree with the assertion that the Supreme Court's
disapproval of inflexible racial quotas as a desegregation tool is solely a
limitation on a district court's remedial power. While the Swann Court did
imply that a school board, exercising its discretion, could "conclude ... that
in order to prepare students to live in a pluralistic society each school
should have a prescribed ratio of Negro to white students reflecting the
proportion for the district as a whole,” 402 U.S. at 16, 91 S.Ct. 1267, this
is certainly not the state of the law today nor was it the state of the law in
1992when the magnet plan was adopted. At the very least, the Supreme
Court decisions in Wygant v. Jackson Board of Education, 476 U.S. 267,
283, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plur=lity opinion applying
strict scrutiny to a school board's race-based layoff program), and City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 494, 109 S.Ct. 706, 102
L.Ed.2d 854 (1989) (applying strict scrutiny to a racial set-aside program),
should have alerted CMS that it could not rely on the "pluralistic society"
passage from the 1971 opinion when crafting a magnet admissions policy
that was outside the scope of the desegregation orders. By 1992 such a use
of race was not merely discretionary. Prevailing case law required that the
racial classification be narrowly tailored to achieve a compelling state
interest. See J.A. Croson Co., 488 U.S. at 494, 109 S.Ct. 706. And as
demonstrated in section III.B, the admissions policy was in no sense
narrowly tailored.
"In contending that rigid ratios were not used by CMS, several of
my colleagues observe that not a single magnet school achieved the precise
ratio of sixty percent white students and forty percent black students. This
is not surprising insofar as the policy was designed to leave seats vacant.
The very act of leaving seats vacant will compel a deviation from the stated
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argument, CMS ignores the district court's choice of words in
the 1974 order ("about or above 20% black students"), see \
Swann, 379 F.Supp. at 1104, and points to an attachment to the
order designated as Exhibit A. This exhibit, a proposed pupil
assignment plan drafted by CMS and a citizens advisory group,
called for optional school enrollment "at or above
approximately a 20% black ratio." Jd at 1108 (emphasis
added). From this language, CMS concludes that strict quotas
were permitted. CMS's concentration on just a portion of the
relevant language ("at or above") edits out the word
“approximately,” which does not suggest rigidity. Even if
Exhibit A could be read as requiring rigid quotas, CMS
disregards the fact that the district court approved the
guidelines "subject to the further conditions stated" in the 1974
order. /d. at 1103. With the Supreme Court's admonition about
strict quotas in mind, the district court chose its language
carefully, observing that optional schools should "have about
or above 20% black students." Jd. at 1104. Hence, it is the
district court's understanding and modification of the pupil
assignment plan that controls, not CMS's tortured reading.
Under a just construction, it is clear that the 1974 order did not
approve a use of race to the extent that CMS could deny eager
applicants an otherwise available slot in a magnet program
solely on account of the applicant's race. Both the district court
and the Supreme Court in this very case consistently rejected
the use of such rigid racial quotas.
I also find no authorization for the board's adoption of
the magnet schools program in the Supreme Court's 1971
approval in Swann of a majority-to- minority transfer policy
goal. However, this in no way undermines a finding of rigidity. Instead,
such a result illustrates the policy's inflexibility.
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Opinions of the Court of Appeals of September 21, 2001
that would prevent, for example, an African-American child in
a majority white school from transferring to a majority black
school because the transfer would increase the degree of
segregation in the affected schools. See Swann, 402 U.S. at 26,
91 S.Ct. 1267. Because the majority-to-minority transfer
policy, like the magnet admissions policy, prevents a child from
enrolling in the public school of his choice, CMS argues that
the magnet admissions policy is permissible. By definition,
however, CMS's specialized magnet programs are not
tantamount to conventional public schools. While a child
denied a transfer from one conventional school to another still
receives the same general education, a child denied admission
to a specialized magnet program does not receive *342 a
similar benefit in a conventional school. In other words, an
education in a magnet school offering, for example, foreign
language immersion, is not interchangeable with an education
in a conventional public school.'? Hence, the effect of the
magnet admissions policy is far different fim the
majority-to-minority transfer policy.
Unfortunately, the end result of the challenged magnet
schools admissions policy is placement of racial quotas ahead
of educating students--an inappropriate result nowhere
countenanced in the district court's orders or in the Supreme
"21 recognize that parents might perceive that one "fungible"
conventional school is superior to another because of a number of
intangibles such as the reputation of teachers or the newness of facilities.
However, these “personal preferences" do not rise to a level of
constitutional significance. See Hampton v. Jefferson County Bd. of Educ.,
102 F.Supp.2d 358, 380 n. 43 (W.D.Ky.2000). Magnet schools, on the
other hand, are a completely different animal and therefore the admissions
process used must be more closely scrutinized.
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Court's desegregation decisions. Cf Wright v. Council of the
City of Emporia, 407 U.S. 451, 463, 92 S.Ct. 2196, 33 L.Ed.2d
51 (1972) (holding that courts should not approve a
desegregation plan if the plan offers " ‘quality education’ to
some children, [but] has a substantial adverse effect upon the
quality of education available to others"). In fact, Brown J
struck down segregated schooling because children were denied
equal educational opportunities. See Brown I, 347 U.S. at 493,
74 S.Ct. 686. While school boards were permitted to use race
in assigning students in order to convert to a unitary system, see
North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 46,
91 S.Ct. 1284, 28 L.Ed.2d 586 (1971) (holding that the use of
race in pupil assignments is "one tool absolutely essential to
fulfillment of [a school board's] constitutional obligation to
eliminate existing dual school systems"), neither the Brown
opinions nor the district court orders implementing them ever
contemplated that remedial use of race, like the old dual
system, would deny some students educational opportunities
solely because of their race. See Brown I, 347 U.S. at 493, 74
S.Ct. 686 (holding that an educational opportunity provided by
the state "must be made available to all on equal terms"); see
also Bakke, 438 U.S. at 305, 98 S.Ct. 2733 (Powell, J.) ("When
a Classification denies an individual opportunities or benefits
enjoyed by others solely because of his race or ethnic
background, it must be regarded as suspect.").'? Indeed, in
bringing suit in 1965, the Swann plaintiffs, in accord with the
"Though the present case was brought on behalf of a white child
denied admission to a magnet school, the policy as written could have just
as easily denied a black child admission to the magnet school. See
Hampton v. Jefferson County Bd. of Educ., 102 F.Supp.2d 358, 377
(W.D.Ky.2000) (racial quota in a magnet school resulting in black students
being denied admission even though the school was several hundred
students below capacity).
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Brown opinions, simply asked that CMS convert "into a unitary
nonracial st;stem wherein the educational opportunities offered
by [CMS] are made available to students without regard to race
or color." J.A. XXXIII-16,162 (original complaint filed by the
Swann plaintiffs).
An admissions policy that uses rigid racial quotas to
deny an available, unclaimed slot in a specialized magnet
school to a child, whether black or white, on account of the
child's race cannot be squared with the district court's orders or
the Supreme Court's desegregation decisions. Since 1971 it has
been perfectly clear that mathematical ratios may be used as "a
starting point in the process of shaping a remedy," *343 but not
as "an inflexible requirement." See Swann, 402 U.S. at 25, 91
S.Ct. 1267. The district court took heed of this admonition in
1974 when it permitted the creation of optional schools with
"about or above 20% black students." Swann, 379 F.Supp. at
1104 (emphasis added). However, CMS in 1992 ran afoul of
the rule announced by the Supreme Court when it crafted strict
racial ratios designed to leave open magnet school seats empty,
rather than permitting waitlisted students to compete for the
slots. Because nothing short of intellectual gymnastics can
transform the clear meaning of the Supreme Court's Swann
opinion or the district court's 1974 order into vehicles
countenancing the rigid use of racial ratios, I agree with the
district court that the policy is ultra vires and that CMS
officials are not entitled to immunity.
B. Equal Protection
Having determined that the CMS officials are not
entitled to immunity for the implementation of the strict
race-based magnet school assignment policy, I now turn to the
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question of whether the officials’ act of implementing the
policy without prior court approval, albeit while under an order
to desegregate schools, runs afoul of the Equal Protection
clause. I would hold that it does.
Under the Fourteenth Amendment, "[n]o State shall ...
deny to any person within its jurisdiction the equal protection
of the laws." U.S. Const. amend XIV, § 1. By guaranteeing
equal protection, the Amendment recognizes that
"[d]istinctions between citizens solely because of their ancestry
are by their very nature odious to a free people whose
institutions are founded upon the doctrine of equality."
Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375,
87 L.Ed. 1774 (1943). The Supreme Court has refused to make
exceptions for so-called "benign" racial classifications, see
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115
S.Ct. 2097, 132 L.Ed.2d 158 (1995), and the Court has made
clear that "all racial classifications, imposed by whatever
federal, state, or local governmental actor, must be analyzed by
a reviewing court under strict scrutiny,” id.“
“The Supreme Court's application of strict scrutiny has indeed
been unwavering. In Adarand, the Court refused to apply a lesser standard
of scrutiny to racial classifications enacted by Congress. Though Congress
itself is charged with enforcing the Fourteenth Amendment's promise of
equal protection via "appropriate legislation," U.S. Const. amend. XIV, §
5, the Supreme Court in interpreting the Fifth Amendment held Congress
to the same rigorous standards applicable to states and localities. See
Adarand, 515 U.S. at 224, 115 S.Ct. 2097 (observing "that any person, of
whatever race, has the right to demand that any governmental actor subject
to the Constitution justify any racial classification subjecting that person to
unequal treatment under the strictest judicial scrutiny").
CMS and the Swann plaintiffs contend that strict scrutiny does not
apply when a school district is under court order to dismantle the dual
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*344 [19] To survive strict scrutiny, CMS's use of race
in the magnet admissions program "must (1) serve a compelling
governmental interest and (2) be narrowly tailored to achieve
that interest." Tuttle v. Arlington County Sch. Bd., 195 F.3d
698, 704 (4th Cir.1999), cert. dismissed, 529 U.S. 1050, 120
S.Ct. 1552, 146 L.Ed.2d 364 (2000). CMS avers that the
magnetadmissions policy was adopted to remedy the effects of
the dual school system previously operated in Mecklenburg
County. Without question, remedying the effects of past
discrimination is a compelling state interest. See City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct.
706, 102 L.Ed.2d 854 (1989).
system. Such an approach, however, ignores two of the three pillars of
Supreme Court's equal protection analysis: skepticism of all racial
preferences and consistent application of heightened scrutiny regardless of
the race of the person burdened or benefitted. See Adarand, 515 U.S. at
223-24, 115 S.Ct. 2097. Contrary to the assertions of CMS and the Swann
plaintiffs, the approach I would adopt does not deprive a school board
under court order of the necessary tools required to establish a unitary
school system.
The point of carefully examining the interest asserted by the
government in support of a racial classification, and the evidence offered
. to show that the classification is needed, is precisely to distinguish
legitimate from illegitimate uses of race in governmental decisionmaking...
Strict scrutiny does not "trea[t] dissimilar race-based decisions as though
they were equally objectionable"; to the contrary, it evaluates carefully all
governmental race-based decisions in order to decide which are
constitutionally objectionable and which are not. /d. at 228, 115 S.Ct. 2097
(internal citations omitted) (alteration in original). This careful evaluation
demanded by the Supreme Court will preserve inviolate proper
desegregation remedies while ensuring that in the process of desegregating
a government actor does not stand equal protection on its head by denying
some students educational opportunities solely because of their race.
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In reviewing whether a policy is narrowly tailored to
serve a compelling state interest, a court considers factors such
as:
(1) the necessity of the policy and the efficacy of
alternative race neutral policies;
(2) the planned duration of the policy;
(3) the relationship between the numerical goal and the
percentage of minority group members in the relevant
population;
(4) the flexibility of the policy, including the provision of
waivers if the goal cannot be met; and
(5) the burden of the policy on innocent third parties.
See United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct.
1053, 94 L.Ed.2d 203 (1987) (plurality opinion). Like the
district court, I would hold that the CMS magnet admissions
policy is not narrowly tailored to the compelling interest of
remedying past discrimination.
First, the magnet admissions policy was not necessary
to comply with the court's order to dismantle the dual
educational system. CMS had a number of options available to
it that would not have deprived children, solely on account of
their race, an available seat in a specialized magnet program.
Instead, CMS opted for rigid racial limits that were clearly
prohibited by the district court's orders and the Supreme Court's
desegregation decisions. Nor is there evidence in the record
that added flexibility or a waiver provision would have
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undermined the use of magnet schools as a desegregation
technique. The evidence simply does not reveal that the magnet
admissions policy used was the only efficacious option
available to CMS.
Second, this circuit has emphasized that "[tJhe use of
racial preferences must be limited so that they do not outlast
their need; they may not take on a life of their own." Hayes v.
North State Law Enforcement Ass'n, 10 F.3d 207, 216 (4th
Cir.1993) (internal quotation marks omitted). Like the district
court, I can find "no mention of the duration that CMS would
use racially segregated lotteries, vacancies, and waiting lists."
Capacchione, 57 F .Supp.2d at 290. In light of CMS's desire to
remain under court order for the indefinite future, see supra
Part II.H, the lack of a duration for the magnet admissions
policy is not surprising. CMS was apparently content, in a
number of instances, to leave available magnet seats empty
despite the waiting lists.
*345 Third, I agree with the district court that "the
60-40 numerical goal is related to the relevant population, i.e.,
the racial composition of schoolchildren in CMS."
Capacchione, 57 F.Supp.2d at 289. However, there is no
evidence that CMS considered the "practicability of achieving
this precise ratio in every magnet school," id. at 290, or the very
real danger that magnet schools would be underutilized because
seats would be left open despite an abundance of applicants.
The result of the admissions policy is but another indication
that the CMS administration, in the words of former
Superintendent Murphy, "was more focused on balance than on
[educational] outcomes." J.A. VI- 2687.
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Fourth, the district court aptly described the inflexibility
in the magnet admissions policy: "The Court is hard-pressed
to find a more restrictive means of using race than a process
that results in holding seats vacant while long waiting lists full
of eager applicants are virtually ignored." Capacchione, 57
F.Supp.2d at 289. The policy is indeed "restrictive," but it also
borders on obduracy. The policy contained no written waiver
provision which, once again, shows a lack of concern that these
highly specialized schools could and would be underutilized.
Finally, the innocent parties affected are children denied
magnet slots solely because of their race and parents who "must
wait for months without knowing where their children
eventually will be placed." Jd. at 290. A child's education is
one of the greatest concerns of the family, and CMS
unnecessarily causes much agonizing when it places children
of the "wrong color" on waiting lists while it actively recruits
children of the "right color" to fill empty magnet school seats.
In sum, the magnet admissions policy is not narrowly
tailored. The policy is not necessary to dismantle the de jure
system, is for an unlimited duration, provides for virtually no
flexibility, and burdens innocent children and their families.
The policy quixotically purports to establish equal protection of
the laws in the realm of public education by denying children
an equal opportunity to compete for open, unclaimed slots in
CMS's extraordinary magnet schools. The withholding of seats
from white students after all African- American children
wishing seats have been given them is most certainly not a
narrowly tailored program. Such a result calls to mind why
strict scrutiny is used in the first place: "Of all the criteria by
which men and women can be judged, the most pernicious is
that of race." Maryland Troopers Ass'n v. Evans, 993 F.2d
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1072, 1076 (4th Cir.1993). Teaching young children that
admission to a specialized academic program with available
seats is contingent on their race is indeed pernicious, and
CMS's magnet admissions policy can in no way be described as
narrowly tailored to achieve the compelling interest of
remedying past discrimination.’
C. Award of Nominal Damages
After finding a constitutional violation in the magnet
schools, the district court held *346 CMS "nominally liable in
the amount of one dollar." Capacchione, 57 F.Supp.2d at 290.
CMS argues that the nominal damages awarded were
unjustified because the actions resulting in a constitutional
violation were taken in good faith. CMS fears that the damages
award will "open the door to numerous suits by other students
who could claim that they did suffer actual damages and argue
that collateral estoppel prevents CMS from denying liability."
Defendants-Appellants’ Brief at 24. Regarding nominal
damages, the Supreme Court has observed:
'SCMS also presented diversity as an alternative compelling state
interest. See Capacchione, 57 F.Supp.2d at 289. In this circuit, it is
unsettled whether diversity may be a compelling state interest. See
Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123, 130 (4th
Cir.1999), cert. denied, 529 U.S. 1019, 120 S.Ct. 1420, 146 L.Ed.2d 312
(2000). Assuming without deciding whether diversity may be a compelling
state interest, I would hold that the magnet admissions policy again fails
because it is not narrowly tailored. Whether the interest is remedying past
discrimination or diversity, the admissions policy as currently written is in
no sense narrow. It is difficult to imagine any interest for which the magnet
admissions policy is narrowly tailored.
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Opinions of the Court of Appeals of September 21, 2001
Common-law courts traditionally have vindicated
deprivations of certain "absolute" rights that are not
shown to have caused actual injury through the award
of a nominal sum of money. By making the deprivation
of such rights actionable for nominal damages without
proof of actual injury, the law recognizes the
importance to organized society that those rights be
scrupulously observed; but at the same time, it remains
true to the principle that substantial damages should be
awarded only to compensate actual injury or, in the case
of exemplary or punitive damages, to deter or punish
malicious deprivations of rights.
Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d
252 (1978) (nominal damages available for denial of procedural
due process rights) (footnote omitted); see also Price v. City of
Charlotte, 93 F.3d 1241, 1246 (4th Cir.1996) (stating that "the
rationale for the award of nominal damages being that federal
courts should provide some marginal vindication for a
constitutional violation").
In the present case there was indeed a constitutional
violation. CMS ran afoul of the Equal Protection Clause when
it adopted a strict racial quota designed to deny an available,
unclaimed slot in a specialized magnet school to a child on
account of the child's race. In order to recover nominal
damages, Cristina Capacchione need not prove that absent the
unconstitutional policy she would have been admitted to the
magnet program. The injury in the present case is not the
ultimate inability to enroll in the magnet school, but the
inability to compete for seats on an equal basis. See
Northeastern Florida Chapter of the Associated Gen.
Contractors v. City of Jacksonville, 508 U.S. 656, 666, 113
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S.Ct. 2297, 124 L.Ed.2d 586 (1993). Though the two open
"black seats" at the Olde Providence magnet school were
eventually awarded to white children, the fact remains that the
official magnet admissions policy prohibited children like
Cristina from competing for the open slots. In fact, CMS left
the two available "black seats" at Olde Providence unfilled for
most of the summer while Cristina and over one hundred other
white childien languished on a waiting list. In Orwellian
fashion, CMS marketed Olde Providence as "a school to benefit
everyone," but in reality permitted only a select few to compete
for the benefits bestowed.
The nominal award in this case recognizes the
importance of equal protection under the law and provides
some measure of vindication. As for CMS's worry about
collateral estoppel, liability has already been established, and
vacating the nominal damages would not change this.
Consequently, I would affirm the district court's award of
nominal damages.
IV. Injunctive Relief
After recounting the unitary status determination and
the constitutional violation in the magnet admissions policy, the
district court enjoined "CMS from any further use of race-based
lotteries, preferences, and set-asides in student assignment."
Capacchione, 57 F.Supp.2d at 292. CMS challenges the district
court's injunction *347 as unwarranted and overbroad. We
review the grant of a permanent injunction for an abuse of
discretion. See Tuttle, 195 F.3d at 703.
Before a court grants a permanent injunction, the court
must first find necessity--a danger of future violations. See
a seinen esttheeeapeneunse
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Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286,
75 L.Ed. 602 (1931) (stating that an injunction "will not be
granted against something merely feared as liable to occur at
some indefinite time in the future"); United States v. Oregon
State Med. Soc'y, 343 U.S. 326, 333, 72 S.Ct. 690, 96 L.Ed.
978 (1952) ("All it takes to make the cause of action for relief
by injunction is a real threat of future violation or a
contemporary violation of a nature likely to continue or to
recur."); Bloodgood v. Garraghty, 783 F.2d 470, 475 (4th
Cir. 1986) ("An injunction is a drastic remedy and will not issue
unless there is an imminent threat of illegal action."). Though
a flexible tool, an injunction may not be used for "punishment
or reparations for ... past violations." Oregon State Med. Soc.,
343 U.S. at 333, 72 S.Ct. 690.
The district court's finding of a threat of future
violations centered on CMS's offering of diversity as a
compelling state interest. This interest was offered after the
district court decided that the admissions policy should be
reviewed using strict scrutiny. Because in this circuit it is
unsettled whether diversity may be a compelling state interest,
see Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123,
130 (4th Cir.1999), cert. denied, 529 U.S. 1019, 120 S.Ct.
1420, 146 L.Ed.2d 312 (2000), it was improper for the district
court to base its injunction on CMS's unsuccessful defense of
the policy. At this point, we can discern nothing in the record
indicating that CMS will ignore the district court order and
continue to use race in an unconstitutional manner in the
operation of the magnet schools or other schools in the system.
CMS represented to the district court both during and after trial
that it had no intention of cortinuing the magnet plan. In
moving for a stay of the injunc. n, CMS did not ask that the
injunction be stayed as to the magnet schools, and was prepared
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to comply immediately with the court's order. CMS requested
a stay as to the non-magnet schools because over 50,000
students were likely to be reassigned in a short period of time.
Moreover, there was no evidence presented at trial about what
CMS proposed to do as a unitary school system. A post-unitary
status student assignment plan was never given to the district
court, and the evidence simply does not indicate that "there is
an imminent threat of illegal action." Bloodgood, 783 F.2d at
475.
A finding of unitariness brings a fresh start for the
school board--an opportunity to operate a school system in
compliance with the Constitution. The prospective relief
awarded by the district court is in tension with the resumption
of local control, which is one of the ultimate goals of any
desegregation order. See Freeman, 503 U.S. at 490, 112 S.Ct.
1430. Freeing the school district from one court order only to
shackle it with another was here an abuse of the district court's
discretion, and we therefore vacate the grant of injunctive
relief. x
V. Discovery Sanctions
The district court sanctioned CMS for failing to
supplement its answers to interrogatories that sought a list of
witnesses. We review the district court's management of
discovery under the abuse of discretion standard. See Anderson
v. Foundation for Advancement, Educ. & Employment of Am.
Indians, 155 F.3d 500, 504 (4th Cir.1998). The record reveals
*348 that no list of fact witnesses was presented to the plaintiff-
intervenors until five days before the trial date. At that time,
CMS presented a list of 174 witness, which was later cut to
twenty-six. The plaintiff- intervenors moved for sanctions and
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Opinions of the Court of Appeals of September 21, 2001
the district court granted the motion in part. The district court
continued the trial for one week so that the plaintiff-intervenors
could depose the newly disclosed witnesses, and the court held
CMS accountable for the fees and expenses of these
depositions.
We have developed a four-part test for a district court
to use when determining what sanctions to impose under
Federal Rule of Civil Procedure 37. Specifically, "[t]he court
must determine (1) whether the non-complying party acted in
bad faith, (2) the amount of prejudice that noncompliance
caused the adversary, (3) the need for deterrence of the
particular sort of non- compliance, and (4) whether less drastic
sanctions would have been effective." Jd. An examination of
the four factors reveals no abuse of discretion by the district
court.
First, there is ample evidence of bad faith. Early in the
case, the plaintiff-intervenors presented CMS with an
interrogatory asking for disclosure of trial witnesses. In
response to the interrogatory, CMS stated that it would provide
appropriate information concerning witnesses at the time and
in the manner specified by the district court. The
plaintiff-intervenors moved to compel discovery, and the court
agreed with CMS that the request was premature. However,
the court instructed CMS to "supplement its responses [to the
interrogatories], as it promised, when such information
becomes known." J.A. I-195. As an excuse for its untimely
disclosure of fact witnesses, CMS relies on the district court's
pre-trial order, which provides that "[a] witness list containing
the name of every proposed witness" should be filed with the
court on the first day of trial. J.A. I-150. This provision of the
pre-trial order was clearly for the court's convenience and could
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Opinions of the Court of Appeals of September 21, 2001
not reasonably be interpreted to apply to disclosures to the
other parties. Besides, even if such an interpretation were
reasonable, the district court's command to supplement
interrogatories superceded the pre-trial order. Accordingly, bad
faith is evident.
Second, the presentation of such a lengthy witness list
on the eve of trial to the plaintiff-intervenors was prejudicial.
Without the action of the court, the plaintiff-intervenors would
have had no opportunity to depose the witnesses, much less
properly prepare for trial. Thus, CMS's failure to supplement
interrogatories was prejudicial.
Third, such non-compliance with the district court's
orders certainly needed to be deterred. The district court's
condonation of CMS's bad faith at a time so close to the
beginning of trial could have encouraged repetition of improper
conduct. As found by the district court, the record indicates
that the failure to supplement interrogatories was not the first
time CMS "was lacking in candor in disclosing relevant and
important information." J.A. I- 305. Hence, deterrence was
essential to a proper management of this case.
Finally, less drastic sanctions would not have been
effective. Permitting the plaintiff-intervenors to depose
witnesses and requiring CMS to pay fees and expenses for the
depositions was appropriate. CMS was fortunate to receive
such a light sanction, and it is doubtful whether lesser measures
would have had any effect on CMS's conduct.
In sum, the discovery sanctions imposed did not amount
to an abuse of the district court's discretion. -
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*349 VI. Attorney Fees
CMS argues that the district court erred in awarding
attorney fees to the plaintiff-intervenors. While conceding that
Grant is entitled to fees if the district court's unitary status
finding is upheld, CMS argues that Capacchione cannot be a
prevailing party on this issue. CMS also challenges
Capacchione's receipt of fees based on the district court's
magnet schools ruling because (1) Capacchione received only
nominal damages, and (2) young Capacchione would not have
been admitted to the magnet program even if race was not a
factor insofar as her lottery number was so high. The district
court's decision to award attorney fees is reviewed for an abuse
of discretion. See Hitachi Credit Am. Corp. v. Signet Bank,
166 F.3d 614, 631 (4th Cir.1999). I would affirm.
A. Attorney Fees for Unitary Status
l.
In my view, the plaintiff-intervenors are entitled under
§ 1988 to attorney fees for their successful litigation of the
unitary status issue. Indeed, CMS has conceded that if we
upheld the declaration of unitary status, Grant would be entitled
to attorney fees.
Unlike Capacchione, the Grant intervenors were
granted declaratory and injunctive relief related to the
issues of unitary status and CMS' magnet school
admission policies. Therefore, the entitlement of the
Grant intervenors to recover attorneys’ fees is tied
directly to the merits of those claims.
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CMS's Brief at 39-40. Surprisingly, despite CMS's concession,
a majority of this court vacates the award of fees to both
Capacchione and Grant.
By obtaining a declaration of unitary status, the Grant
plaintiffs, along with Capacchione, finished what the original
Swann plaintiffs started. If we deny the plaintiff-intervenors
the ability to be compensated in a situation such as this--where
an incredible amount of legal work is required and the board,
for improper reasons, clings to the court's order--then we give
to litigants like the Swann plaintiffs effective control over the
decision of "when" or even "if" a unitary status hearing will be
sought because they would be the only ones who could ever
obtain reimbursement for their legal fees. The practical
consequences are scarcely more apparent than in this case,
where the only party ruled entitled to obtain attorney fees for
finishing the job was opposed to seeing unitary status declared.
This, coupled with the fact that the plaintiff-intervenors
received a court order in their favor on the unitary status
question as a continuation of the original § 1983 action, leaves
me at a loss to see how the district court's award of attorney
fees to them under § 1988 can be reversed.
Under 42 U.S.C.A. § 1988(b) (West Supp.2000), "[iJn
any action or proceeding to enforce a provision of [§ 1983 and
other civil rights laws] ... the court, in its discretion, may allow
the prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs." To be considered a
prevailing party, a party must "succeed on any significant issue
in litigation which achieves some of the benefit the parties
sought in bringing suit." Farrar v. Hobby, 506 U.S. 103, 109,
113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (internal quotation
marks omitted).
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This case began in 1965 as a § 1983 action with the
Swann plaintiffs seeking conversion of CMS "into a unitary
nonracial system wherein the educational opportunities offered
by [the board] are made available to students without regard to
race or color." J.A. XXXIII-16,162 (original Swann complaint
commencing an action *350 under § 1983); see also Monell v.
Department of Social Servs., 436 U.S. 658, 697, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978) (observing that school desegregation
actions "have almost without exception been § 1983 suits"). In
essentially a continuation of what was begun in 1965,
Capacchione, believing that CMS had established a unitary
school system, brought suit pursuant to § 1983 and prayed that
the district court enter a declaration of unitary status. See J.A.
I-110 (Capacchione amended complaint seeking a declaration
of unitary status); see also J.A. I-140 (Grant complaint seeking
a declaration of unitary status); cf Waste Mgmt. Holdings, Inc.
v. Gilmore, 252 F.3d 316 (4th Cir.2001) (§ 1983 action seeking
declaratory relief). Shortly after Capacchione filed suit, the
Swann plaintiffs moved to reactivate Swann and to consolidate
it with Capacchione's action. The district court granted the
Swann plaintiffs' motion and later permitted Capacchione to
intervene in Swann. Grant, who also sought a declaration of
unitary status, then moved to intervene in the consolidated
action, and the district court granted his motion. After months
of litigation, the plaintiff-intervenors succeeded in having CMS
declared unitary, and this court has affirmed on appeal.
With the prior court orders now dissolved, CMS must
cease using the orders to assign Grant's children as well as all
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Opinions of the Court of Appeals of September 21, 2001
other public school students on account of their race."© A
unitary school system is what the original plaintiffs sought in
1965, and the plaintiff-intervenors have greatly assisted in the
final stages of this litigation in making unitariness a reality.
Henceforth, unless CMS's use of racial classifications satisfies
the requirements of strict scrutiny, the color of a child's skin
will no longer be a permissible basis for assigning, or refusing
to assign, a child to a conventional public school or a
specialized magnet program. See Farrar, 506 U.S. at 110, 113
S.Ct. 566 (observing that declaratory relief may constitute relief
under § 1988 "if] ] it affects the behavior of the defendant -
toward the plaintiff") (internal quotation marks omitted).
Moreover, this declaration of unitary status is enforceable
against CMS in the unlikely event it later attempts to continue
prior assignment polices, say, on the ground that vestiges of
prior discrimination have not been eradicated. See id. at 111,
113 S.Ct. 566 (explaining that to be a prevailing party an
enforceable judgment must be obtained). ;
In the present case, with its counter-intuitive alignment
of parties, the plaintiff-intervenors have stepped into the shoes
'6CMS argues that because Capacchione no longer resides in North
Carolina the unitary status declaration does not alter CMS's behavior toward
young Capacchione and consequently Capacchione is not a prevailing party
entitled to fees. In other words, CMS contends that Capacchione's lack of
standing counsels against an award of fees. I disagree. At the very least,
because of Capacchione's status as a plaintiff-intervenor in Swann,
Capacchione is still entitled to fees. See Shaw v. Hunt, 154 F.3d 161, 167
(4th Cir. 1998) (noting that when plaintiffs with standing "secure[ ] precisely
the relief that they sought,” plaintiff-intervenors who lack standing but
contributed to the litigation may also be awarded attorney fees). Grant, who
CMS concedes has standing and is entitled to fees, achieved the relief
originally sought--a declaration of unitary status. Capacchione greatly
contributed to this result, and under Shaw is entitled to fees just as Grant.
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Opinions of the Court of Appeals of September 21, 2001
of the Swann plaintiffs, continued the original § 1983 action,
and brought this case to a close. Just as the Swann plaintiffs,
prior to removal of the case from the active docket, were
compensated for their services, see Swann v. Charlotte-
Mecklenburg Bd. of Educ., 66 F.R.D. 483 (W.D.N.C.1975)
(awarding the Swann plaintiffs $204,072.33 in fees and costs),
so too *351 should the plaintiff- intervenors be compensated
for a continuation of the legal efforts to achieve a unitary
school system and to remove federal court control. In this
regard the plaintiff-intervenors have acted as "private
attorney[s] general," Independent Fed'n of Flight Attendants v.
Zipes, 491 U.S. 754, 758-60, 109 S.Ct. 2732, 105 L.Ed.2d 639
(1989) (internal quotation marks omitted) (alteration in
original), and obtained a finding of unitariness, which was the
ultimate objective of the original action. See J.A.
XXXIII-16,162 (original complaint seeking "reorganization of
the school system into a unitary nonracial system"). Indeed, no
one disputes that the Swann plaintiffs would have been entitled
to fees if they had taken the initiative to petition for a
declaration of unitary status instead of acting to oppose the
result we reach today.
Without question, the monitoring of a school
desegregation decree is crucial to the dismantling of the dual
system. See Jenkins v. Missouri, 967 F.2d 1248, 1251 (8th
Cir.1992) (awarding fees in desegregation case pursuant to §
1988). Accordingly, efforts "to insure full compliance and to
ensure that the plan is indeed working to desegregate the school
system[ ] are compensable services." Northcross v. Board of
Educ., 611 F.2d 624, 637 (6th Cir.1979). Here, the
plaintiff-intervenors observed CMS's progress in dismantling
the dual system, and once convinced that full compliance had
been achieved, they moved for a declaration of unitary status.
88a
Opinions of the Court of Appeals of September 21, 2001
In so doing, the plaintiff-intervenors were faced with a
recalcitrant school board that insisted none of the Green factors
had been satisfied. The Swann plaintiffs, though having never
returned to court to complain about the continuation or revival
of segregative practices, suddenly claimed that the dual system
was not being dismantled and joined the school board in the
quest for continuation of court supervision. Though most of the
vital information was in the hands of CMS's officials, who were
often uncooperative in the discovery process, see Capacchione,
57 F.Supp.2d. at 292-293 (cataloging sanctions and threats of
sanctions against CMS), the plaintiff-intervenors persevered
and ultimately obtained a declaration of unitary status. But fo
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