Belk v. Charlotte-Mecklenburg Board of Education

which the consumer first encountered the V. mark. Isolated instances of ‘direct’ confu For reasons, the foregoing we will af- sion may occur in a case, reverse confusion firm the judgment of the District Court. and vice-versa.” 237 at F.3d 233. We declined “to create a strict bar to the use

of ‘direct’ confusion evidence in a ‘reverse’ case,

confusion or vice versa.” Under Id.34 view, evidence that public thought

Check Point Software origin was the Systems’s Checkpoint products just as Terry BELK; Dwayne Collins, on be- probative of likely confusion evidence half of they themselves and the class public thought Checkpoint Sys represent, Plaintiffs-Appellants, tems the origin of Check Point Soft ware’s products.35 Here, the District Capacchione, William Individually and Court properly examined the evidence on behalf of Christina Capacchione, a actual confusion36 and found it to be de minor; Grant; Michael P. Richard minimis. We no see error. Easterling; Lawrence Gauvreau; Finally, Checkpoint Systems contends Karen Bentley; Thompson; Charles the District Court erred in requiring evi- Scott Willard, C. Plaintiffs-Appellees, dence of actual confusion purchasers point of sale to prove its reverse confu- The sion claim. But as discussed, we have CHARLOTTE-MECKLENBURG BOARD have OF EDUCATION; mischaracterized the court’s Eric analysis. Smith, Superintendent, court factored Checkpoint in his official Systems’s capacity; evidence of initial Griffin, interest and Arthur Chairman of investor confusion into its confusion analy- Charlotte-Mecklenburg School sis but found the Board, evidence insubstantial. capacity, his official Defen- We see no clear error. dants. 34. We noted that “as a matter of intuition” Checkpoint both Systems's direct and reverse might one assume public evidence that the confusion claims. thought that the senior origin user was the junior products users would support 36.The District stated: Court direct confusion claim while evidence that the Though plaintiff did have incentive and public thought junior was the user source ability to find [instances of actual] confu- product senior user’s would support a occurred, sion if it by asking per- its sales stated, reverse confusion claim. But we "In sons, distributors, customers, [Check- view, our if we rigid were to create a division point Systems] did not offer testimony between 'direct' and 'reverse' confusion evi- trial, of a purchaser confused showing an dence, we run would denying risk of re- (i.e., absence of reverse confusion where a covery to plaintiffs.” meritorious A & H Systems] [Checkpoint customer seeks Sportswear, 237 at 233. F.3d purchase [Checkpoint Systems] product because the customer originated believes it However, we noted in Sportswear & HA Software]). from [Check Point Similarly, working "evidence in the same direction plaintiff located no [Check Point Software] as the preferred, claim is 'misfitting' evi- customers who they indicated became in- dence must be carefully, treated large in a terested [Check Point prod- Software] type amounts of one confusion a claim uct because they thought originated for a different type may in against fact work from[Checkpoint Systems]. plaintiff.” 237 F.3d at 233. Here the Checkpoint Sys., (inter- F.Supp.2d at 464 found minimal evidence supporting omitted). nal citations America; Car North of States United America; Car North of States

United Association; Na Association; Boards Na olina School Boards olina School Association, Am Association, Am Boards Boards tional School tional School ici Curiae. ici Curiae. Individually and Capacchione,

William Individually and Capacchione, William Capacchione, a of Christina on behalf Capacchione, Christina of on behalf Grant; Richard P. minor; Michael Grant; Richard minor; P. Michael Gauvreau; Easterling; Lawrence Gauvreau; Easterling; Lawrence Thompson; Bentley; Charles Karen Thompson; Bentley; Charles Karen Plaintiffs-Appellees, Willard, C. Scott Plaintiffs-Appellees, Willard, C. Scott and and Collins, behalf Dwayne Belk; Terry they the class themselves of Collins, Dwayne on behalf Terry Belk; Plaintiffs, represent, they the class themselves of v. Plaintiffs, represent, Charlotte-Mecklenburg Board The Smith, Superinten Education; Eric v. capacity; Arthur dent, in his official Charlotte-Mecklenburg Board The Charlotte- Griffin, Chairman Smith, Superinten Education; Eric Board, his of Mecklenburg School capacity; Arthur dent, his official Defendants-Appel capacity, ficial Griffin, of the Charlotte- Chairman lants. Board, in his of Mecklenburg School America; North Car States

United Defendants-Appel capacity, ficial Association; Na Boards olina School lants. Association, Am Boards School tional ici Curiae. America; Car North States United Association; Na Boards olina School Individually and Capacchione, William Association, Am Boards tional School Capacchione, a of Christina on behalf ici Curiae. Grant; Richard minor; P. Michael Gauvreau;

Easterling; Lawrence 99-2391, 99-2389, 00- Nos. Thompson; Bentley; Charles Karen 1098 and 00-1432. Plaintiffs-Appellees, Willard, C. Scott Appeals, States Court United Fourth Circuit. Collins, Dwayne Belk; on behalf Terry they the class themselves 27, 2001. Argued Feb. Plaintiffs, represent, 21, 2001. Sept. Decided Charlotte-Mecklenburg Board of Smith, Superinten Education; Eric capacity; Arthur

dent, in his official

Griffin, the Charlotte- Chairman Board, in his of

Mecklenburg School Defendants-Appel capacity,

ficial

lants. Largess, Luke Stephen

ARGUED: II, Ferguson, Ferguson, Elliot James Sumter, & Adkins, Wallas, Stein, Gresham Borkowski, Charlotte, NC; P.A., W. John L.L.P., Hartson, Washington, & Hogan Parks, Lee DC, Allan Appellants. for GA, P.C., Atlanta, Miller, & Parks, Chesin Gres- John W. BRIEF: ON Appellees. Ferguson, Errington, ham, Margaret C. Sumter, & Adkins, Wallas, Stein, Gresham Jones, Di- Charlotte, NC; R. P.A., Elaine Chachkin, Glo- rector-Counsel, Norman J. & Browne, Legal Defense NAACP ria J. York, NY; Fund, Inc., New Educational Sneed, & Hogan Maree Snyder, Allen R. DC; L.L.P., James Hartson, Washington, Brenner, Amy Middlebrooks, Irving M. G. & Smith, Helms, Mulliss Langdon, Rickner Charlotte, NC; L.L.P., Leslie Win- Moore, Counsel, ner, Charlotte-Mecklen- General NC, Charlotte, Education, Board of burg Parks, Parsons, Kevin V. Appellants. for Atlanta, GA; Miller, P.C., John & Chesin McGuire, Woods, & Pollard, Battle Charlotte, NC; Hel- Boothe, William S. Robinson, Bateman, fand, Magenheim, TX; Houston, Helfand, Wrotenbery & NC, Charlotte, Ashcraft, for Thomas J. Lee, Acting Assis- Lann Bill Appellees. Gross, General, L. Mark Attorney tant Troth, Depart- States K. United Rebecca DC, Justice, Ami- Washington, for ment Michael Cro- United States. cus Curiae Smith, Lukasik, Tharrington well, Lisa Schafer, NC; B. L.L.P., Allison Raleigh, Counsel, School North Carolina General NC; K. Association, Julie Raleigh, Boards Counsel, Underwood, National General Alexandria, Association, Boards School VA, Associations. Amici Curiae WILKINSON, Wilkins, Before Judge, Chief and Niemeyer, Luttig, Williams and WIDENER, WILKINS, NIEMEYER, affirmative), Traxler sys- the school LUTTIG, WILLIAMS, MICHAEL, status, tem has achieved unitary by but MOTZ, TRAXLER, KING, and (Chief 6-5 vote Judge Wilkinson and GREGORY, Judges. Circuit Judges Niemeyer, Michael, Motz, King affirmative) and Gregory attorneys’ part Affirmed in part by and reversed in fees for work done on the unitary status published opinions. perA curiam opinion denied; (2) (Chief issue are by a 6-5 vote the judgment announced of the court. Judge Wilkinson Judges and Niemeyer, Judge TRAXLER opinion delivered the of Michael, Motz, King, Gregory and in the I, respect II, IV, the court with to Parts affirmative), the Board did not forfeit its V, in which Judge Chief WILKINSON immunity for the establishment of the WIDENER, WILKINS, Judges schools program, and nominal NIEMEYER, and joined, WILLIAMS damages and attorneys’ fees in that regard opinion an with respect to Parts III and (3) denied; vote, a unanimous VI, in Judges which WILKINS and injunction (4) vacated; a unani- joined. Judge WILLIAMS Chief vote, mous the imposition of sanctions is opinion WILKINSON wrote concurring an affirmed. part in Judge which NIEMEYER judgment of the district court is joined. Judge WIDENER wrote an therefore affirmed finding on the of uni- opinion concurring in part and dissenting tary status and imposition sanctions, part. Judge LUTTIG wrote an opinion reversed as to the finding of liability for concurring in judgment in part and nominal damages for the establishment of dissenting judgment from the in part. the magnet program, reversed as Judges MOTZ and separate KING wrote a to the imposition of attorneys’ fees for any opinion which Judges MICHAEL and reason, and reversed the issuance of the joined. GREGORY injunction. OPINION Unitary achieved, status having been PER CURIAM: judgment of the district court vacating and dissolving injunctive prior all orders and This case argued before the en banc decrees is affirmed. The is to oper- Board 27, Court on February parties ate the school without the stric- presented a number issues for our con- tures of these decrees no later than the sideration, including whether the district 2002-2003 year. school (1) in court erred finding unitary that sta- tus had been achieved awarding and attor- AFFIRMED PART IN AND RE- neys’ fees to plaintiff-intervenors based on VERSED IN PART. (2) finding;

this that the holding establish- TRAXLER, Judge: Circuit magnet ment of a program schools anwas vires, ultra unconstitutional act justifying This case is hopefully the final chapter an award of nominal damages and attor- saga the of federal court control over (3) fees; neys’ enjoining the Charlotte- the Charlotte-Mecklenburg Schools Mecklenburg School Board from consider- (“CMS”). Since 1971 CMS operated has ing race the assignment future of stu- under a federally supervised desegregation dents or allocation of educational re- plan that included limited use of racial sources; (4) and sanctioning the Board for ratios, pairing grouping of and school failing to comply with the district court’s zones, and busing. extensive So successful discovery order. was plan the that the district court re-

Having considered argu- the briefs and moved the case from the active docket in 1975, ments of the parties, a majority of the expressing belief that its the once (1) (Chief Court holds: by a 7-4 vote reluctant school board was committed to Judge Widener, Wilkinson and Judges achieving desegregation and was already col- majority my However, a while school unitary a toward way on the

well uni- achieved has that CMS agree leagues then, generations two system. Since joined me status, graciously and have and, tary through CMS passed have students from depart respectfully I point, this on case, has person one present until the reverse the majority’s decision separate segregative that alleging to court returned magnet holding CMS’s court’s district or revived. been continued have practices implemented was which program, schools and later decades Now, nearly three vires, 1992, unconstitution- an was ultra white by a filed lawsuit prompted dam- of nominal award justifying act an al ad- magnet schools challenging the student chil- By denying fees. attorney ages and of whether question policy, missions race, equal an their dren, account of on been status has has achieved CMS open, un- for compete opportunity In our courts. before placed mag- extraordinary slots claimed CMS’s and court, hearing lengthy after a the school board I believe program, net that CMS inquiry, concluded searching either than far did more too pushed unitary status achieved had indeed as the Just permitted. required was discrimina- vestiges past eliminating the unconsti- 1960s of the process educational This con- practicable. to the extent tion edu- black children tutionally deprived haste; was not reached clusion account of solely opportunities on cational an hearing a two-month result of race, schools admissions magnet their testimony and ev- of extensive examination of edu- children deprives white policy aspect of relating every CMS’s idence account of solely opportunities on cational system. educational depart I Consequently, race. their affirms now majority A of this court af- I would separate majority issue, satis- holding district court’s conclusion court’s the district firm dual dismantled the has fied violated the program sharp contrast to In system. Fourteenth Protection Clause Equal 1960s, when black the late situation in the school liability Amendment in black schools segregated were students the violation. board for staff, black by predominantly taught in an I. today educated CMS students by an integrated environment integrated upheld a Supreme Court to an we over control faculty. Nor do turn separate “providing statute Louisiana uncommitted board. indecisive and and colored carriages for the white railway firm operates under the currently Ferguson, 163 U.S. Plessy v. races.” school board integrated an guidance of (1896). 41 L.Ed. com- clearly has demonstrated which majority characterized Plessy The desegregated system. mitment to a necessarily implying] as “not statute 544, race,” 16 at id. inferiority of either sum, of federal purpose” “end In Harlan, 1138, first Justice has but the segregation S.Ct. remedy to intervention aim of dissent, the true aptly described served, complete to and it is time been statute in knows that the “Everyone charged show law: we were task which —to purpose, in the origin this had its question have who achieved those confidence persons white local to exclude to state and so much to restore success and blacks, as to occupied cars sys- railroad their school the control of authorities occu- from coaches people colored majority of exclude Consequently, a tem. id. persons,” to white assigned or pied by court’s affirms the district (Harlan, J., dissent- 557, at 16 S.Ct. determination. status ing). Educ., 483, Justice Harlan further 686, “den[ied] 347 U.S. 74 S.Ct. 98 L.Ed. any legislative body judicial tribunal (1954) (Brown I). Presented with a may regard have to the race of citizens direct attack on Plessy in a secondary rights when the civil of those citizens are case, education the Court held that “segre- 554-55, involved.” Id. 16 S.Ct. 1138 gation of children in public'schools solely (Harlan, J., dissenting). Unfortunately, on the basis of race” violated Equal the principle “separate equal” but Protection Clause of the Fourteenth reached much farther than rail- Louisiana 493, Amendment. Id. at 74 S.Ct. 686. ways, applied and was to other public ser- The Court emphasized that an educational vices, including education. The march of “opportunity, where a state has undertak- progress eventually proved the correctness it, en to principled provide Justice Harlan’s is a Seg- right stand. which must be manifestations, regation, all of its was made available to all on equal terms.” Id. “arbitrary” “wholly inconsistent with Recognizing segregation differed from equality civil freedom and the before locality locality, to Supreme Court sub- the law established the Constitution.” sequently broad, to craft declined one- 561-62, (Harlan, J., Id. at 16 S.Ct. 1138 size-fits-all remedy, and instead instructed dissenting). the federal district courts to oversee the Early efforts aimed at combating the implementation of appropriate relief based injustice wrought by Plessy educational on the dictates of local circumstances. See settings often centered on state-funded Educ., Brown 294, v. Board 349 U.S. graduate See, professional schools. 299, 753, (1955) 75 S.Ct. 99 L.Ed. 1083 e.g., Canada, Missouri ex rel. Gaines (Brown II) (“Because of their proximity to 232, 83 L.Ed. 208 local and the possible conditions need for (1938); Tushnet, generally see Mark V. further hearings, the original- courts which The Legal Strategy Against NAACP’s Seg- (1987). ly heard cases can regated perform these best th[e] Education 1925-1950 Gaines, an African-American judicial student was appraisal.”). The district courts denied admission to the University of Mis- were to directed make use of the “tradi- souri of Law on account of School his race. tional equity power,” attributes of id. at had “separate Missouri no but equal” law 300, to ensure that S.Ct. students school for its African-American citizens public were “admit[ted] schools on a pay instead offered to Gaines’ tuition racially basis,” nondiscriminatory id. at expenses for a legal in an- education However, 75 S.Ct. 753. under the other state. Court held that opinions Brown it was unclear whether a Missouri’s offer denied equal pro- Gaines required district was affir- take of the tection laws. The Court observed mative steps remedy the constitutional admissibility “[t]he of laws separating violation, see, Elliott, e.g., Briggs v. enjoyment races privileges (E.D.S.C.1955) F.Supp. (holding by the State wholly upon afforded rests merely prohibited Brown school dis- equality privileges which the laws give separated to the groups within tricts from using, the force of law sepa- Gaines, the State.” races), rate the and very progress little Though S.Ct. 232. providing only small resulted. victories, cases like exposed “sepa- Gaines Supreme Before the provided Court fur- equal” rate proposi- but for the untenable tion that it was. guidance courts, ther to the lower federal plaintiffs, 1965 the Swann who the were 1954, the recognized Court original action plaintiffs representing class futility the measuring equality of in segre gated facilities. See Brown v. Board the of interests African-American children of

314 of courses; in individual evaluation nor district, constitutional challenged as in the in com at 1372. efforts of Id. the students.” ly inadequate district’s The school Brown. plying to sub court directed CMS The district on freedom plan based desegregation desegrega faculty for plan positive mit “a child, re without whereby “any of choice 1969, plan and a fall of in the tion effective minori race, regard to without and gard to popula pupil of desegregation for effective any particular of race in ty majority or in the tion, effective predominantly to be to another transfer school, freely might fall by the completed to be fall of 1969 and v. Charlotte- Swann of ’choice.” school his pro The board Id. at 1360. of 1970.” Educ., F.Supp. 243 Mecklenburg Bd. of an crastinated, eventually submitted but (W.D.N.C.1965). The district 667, 668 dis the desegregation plan enervated observing plan, approved court reluc great “with court mixing approved of trict done “to increase could be more “no imposed law v. races,” that the basis. Swann temporary but tance” on Board.” the School duty upon Educ., ... such 306 Charlotte-Mecklenburg Bd. of at 670. Id. (W.D.N.C.1969). 1291, 1298 F.Supp. pace officials, however, drag their at the slow continued to Concerned nation, the throughout

desegregation forced to feet, court was and the district that school in 1968 held Supreme Court Fin Dr. A. expert, John its own appoint to end duty” an “affirmative boards had desegregation efficacious to craft an ger, of edu- dual state-imposed v. Charlotte-Mecklen See Swann plan. Bd., 391 County Sch. cation. Green Educ., F.Supp. burg Bd. of 1689, L.Ed.2d 430, 437, 88 S.Ct. plan, (W.D.N.C.1970). Dr. Finger’s (1968). The underscored Justices court, lim district included adopted by the system plan a dual desegregating “in ratios, pairing of mathematical ited use an end of choice’ is utilizing ‘freedom zones, busing. of school grouping in itself.” Id. S.Ct. plan, portion affirmed See id. We in the district then filed Swann dealing with provisions but vacated “seeking] relief for further a motion be elementary school students busing of of the speed greater on small burdens schools, of the perceived cause and re- Charlotte-Mecklenburg al- new purchasing other cost of elimination certain children and the questing] v. Char- inequalities.” Swann leged racial v. Charlotte-Mecklen See Swann buses. Educ., 300 lotte-Mecklenburg Bd. (4th. Educ., F.2d burg Bd. of (W.D.N.C.1969). The 1358, 1360 F.Supp. (en banc). Cir.1970) “for We remanded court, mandate of guided by the district pupils assignment of the reconsideration Swann, Green, F.Supp. at see The Su elementary schools.” Id. in the findings of factual made a number and rein certiorari granted preme Court remained the school concluded that plan pending court’s the district stated highly segregated. v. Char See Swann proceedings. further that over half court noted The district Educ., 399 U.S. lotte-Mecklenburg Bd. of 24,000 students African-American CMS’s (1970). 26 L.Ed.2d 791 black, very that are all “attend schools days of eight conducted The district court 24,000 black, nearly all most de five and examined different hearings at 1360. Id. white teachers.” have no court con The district plans. segregation “in However, violations court found no the best of to be Finger plan cluded funds; use of mobile federal the use of ... five, “a encompassing reasonable classrooms; buildings and quality of school prob solving collection methods activities; athletics; facilities; PTA v. Char- system. Swann books; of the dual lunches; elective lem” fees; free

315 Educ., lotte-Mecklenburg Bd. 318 declined to craft “rigid light rules” of of (W.D.N.C.1970). 786, F.Supp. As for circumstances, differing 29, local id. at buses, busing and the cost of new 1267. Finally, S.Ct. the Court tackled the Finger plan district court found that the busing issue. The Court confirmed that a “proper advantage took of traffic move- district court transporta- could order “bus only ment” and that new buses would cost tion as one tool of desegregation,” school $660,000, a far cry from the millions of but within reasonable time and distance originally dollars that CMS had estimated. 30, restrictions. Id. at 91 S.Ct. 1267. later, See id. at 797-98. Two months Shortly after the Supreme Court issued Supreme granted certiorari un- Court and its landmark opinion, Swann CMS asked in-depth dertook an power review of the the district court to Finger abandon the the federal district courts to craft such plan permit and the substitution of a “feed- sweeping desegregation remedies. See er plan” whereby pu- v. schools would draw Charlotte-Mecklenburg Swann Bd. of Educ., 1, 1267, pils designated S.Ct. attendance areas in (1971). L.Ed.2d 554 an effort keep together children public their entire career. school Supreme deseg- Court affirmed the Swann v. Charlotte-Mecklenburg Bd. court, regation plan adopted by the district Educ., (W.D.N.C.1971). 328 F.Supp. 1346 and in opinion the course of its identified Citing resegregation concerns of and the guidance problem offered “four ar- placement of additional burdens on Afri- 22, First, eas.” Id. at 1267. S.Ct. children, can-American the district court Court addressed the issue of the district questioned the plan. feeder See id. at court’s use of racial ratios. While the 1350-53. then approved original Court of a withdrew its limited use plan plan began of mathematical in a feeder ratios crafted work on modified court, a district emphasized that such version. See id. at 1353. The district starting point ratios were “a ... rather court eventually approved a revised feeder 25, than an inflexible requirement.” Id. at plan reopened several former black S.Ct. The Court reminded dis- prevented schools and over- under- trict courts that constitutional com- “[t]he utilization of facilities. v. See Swann mand desegregate schools does not Educ., Charlotte-Mecklenburg Bd. mean that every every communi- (W.D.N.C.1971). F.Supp. 623 ty always must composi- reflect the racial However, just years within two it be tion of the school as a whole.” Id. plan came clear that revised feeder CMS’s Second, 91 S.Ct. 1267. the Court inadequate dealing “for with foresee single-race dealt with Though schools. problems” able dismantling Court concluded that schools consisting system. dual Swann Charlotte-Meck predominantly one race per were not se Educ., lenburg Bd. 362 F.Supp. unconstitutional, the Court instructed the (W.D.N.C.1973). The district court district courts to utilize scrutiny “close found “that various formerly black schools determine that school assignments are not and other schools will turn black under the part of state-enforced segregation.” Id. at “[rjacial id., plan,” feeder and that Third, discrim 91 S.Ct. 1267. the Court consid- through ination official action has not ered end alterations attendance zones. The system,” ed in this pairing Court held “that the id. at 1230. The grouping noncontiguous permis- again school zones is a district court instructed CMS to de tool,” sible sign id. at pupil assignment plan but new “on the and exhibits ad- upon relied a few of laws is written protection equal premise Id. at 1321. pleadings.” from the missions Id. at 1238. stay.” here to reject- district court the surprisingly, Not the district and adopted In 1974 CMS the student challenge to parents’ the ed policies and approved guidelines new court for praised CMS assignment plan and v. Char- See Swann assignment. pupil system. the dual dismantling in zeal Educ., 379 lotte-Mecklenburg Bd. of plaintiffs the Swann (W.D.N.C.1974). In CMS and plan The F.Supp. 1102 court. The to district again returned the advisory group designed by a citizens that the the district court informed parties in an effort to the board working with population in African-American student on school consensus” acceptable reach “an grown from elementary had The CMS’s schools Id. at 1103. CMS. desegregation forty percent, to mak twenty-nine percent features were promising most plan’s black predominantly it difficult to ing schools avoid any majority black avoidance of the board with provide To (with Valley, an student bodies. of Hidden exception permit court flexibility, school), equal distri- some a more exempted elementary with operation of id. at ted busing burden. See bution of plus bodies of making African-American student the board for Praising 1105-1110. the district-wide av essentially percent ‘reluc- fifteen above with the “a clean break v. erage. ac- See Swann Charlotte-Mecklen dominated Board tant’ attitude which (W.D.N.C. Educ., Apr. Bd. burg court No.1974 many years,” the district tions for 17, 1980). positive at- policies that the predicted eventually in a would result

titude nor the board Since neither system. Id. at approached dis- plaintiffs Swann have alteration of the ear- regarding trict court Swann The district court closed And, until the active lier orders. the case from and removed litigation, the Swann present Swann v. Charlotte-Mecklen docket. See Educ., reopen the case in attempted have never 67 F.R.D. 648 burg Bd. of (W.D.N.C.1975). any alleged failure doing, In the district order to address so the district court’s comply “active board to that the board was court observed desegregation orders. addressing” recurrent ly intelligently related to dismantlement problems controversy today us arose The before system. Id. 649. The district dual Capac September 1997 when William progress with the court was so satisfied against (“Capacchione”) filed suit chione whether it being questioned made that Cristina, daughter, on behalf his CMS a motion to ever be confronted with would unconstitution that she been alleging had reopen litigation. See id. magnet to a ally denied admission In of her race. program on account years three there was no action For approval, CMS had prior when a without changed case. This desegregation plan focused enjoin adopted parents sought of white group mainly the use of schools. 4000 students reassigning over schools, had instituted filling magnet racial balance in an effort maintain lottery to achieve a black and non-black certain schools. See Martin Charlotte- Educ., If racial balance. a sufficient number of Mecklenburg F.Supp. Bd. fill (W.D.N.C.1979). apply at- or whites did parents blacks races, respective seats allotted their assignment plan the 1978 tacking student actively recruit children would live but offered and then CMS “offered no evidence id. despite lengthy waiting the desired race at 292 n. 52. The district court children of the other race. up lists made Capacchione damages awarded nominal faded, If the recruitment drive CMS usual- recognition of the constitutional violation Cristina, available slots vacant. ly left the and plaintiff-intervenors also awarded the white, placed waiting who was on a list is attorney fees. CMS and the plain- Swann eventually pro- and denied admission to a appeal, tiffs filed notices of and CMS gram magnet the Olde Providence stay injunction, moved to except the school, which marketed as “a school schools, applied magnet to the until the XXXII-15,670. everyone.” to benefit J.A. year. plaintiffs 2001-02 school The Swann for a complete stay pending moved appeal. original Swann moved to 15, 1999, On November the district court reactivate Sivann and to consolidate it denied the motions. CMS and the Swann Capacchione’s They suit. asserted with plaintiffs, pursuant to Federal Rule Ap- vestiges that the of the dual school 8(a)(2), pellate Procedure moved this court had not been abolished and that the use of 30, 1999, stay. for a On December we race in magnet policy admissions was stayed injunction pend- district court’s necessary comply for the school ing further order of this court. prior desegregation with the orders. The granted district court the motion and later After briefing appellate arguments, and permitted Capacchione intervene panel a divided of this court vacated and litigation. Seeking a finding Swann unitary remanded the district court’s sta- vestiges past had eradicated the determination, holding tus that the district discrimination, group parents, another findings court’s were insufficient in the (“Grant”),1 P. led Michael Grant was assignment, areas of student facilities and permitted litiga- also to intervene in the resources, transportation, and student tion. achievement. for magnet As CMS’s trial, After a two-month bench the dis- policy, panel schools admissions held trict court determined that CMS had policy specifically permitted that the status, unitary achieved the race- by prior policy court orders and that the policy based admissions CMS’s pan- did not violate the Constitution. The prior schools fell outside orders and was injunc- el also vacated the district court’s narrowly compel- tailored to achieve a tion, damages, the award of nominal interest, ling injunction and that an state attorney the award of fees. See Belk v. was warranted. The district court “en- Educ., Charlotte-Mecklenburg Bd. joinfed] CMS from further use of race- (4th Cir.2000). A majority F.3d 232 lotteries, based preferences, set-asides judges active circuit thereafter voted to assignment.” Capacchione student v. hear en appeal banc. Schs., Charlotte-Mecklenburg (W.D.N.C.1999). F.Supp.2d Citing Unitary II. Status stability, interests in district court con- injunction unitary The district court’s sta cluded that the would not affect tus is reviewed for clear error. assignments finding student for the 1999 2000 Bd., year, apply but would to student See Riddick v. School 784 F.2d (4th 52(a). Cir.1986); “A assignments year. for the 2000-2001 school Fed.R.Civ.P. represented by Capacchione 1. Those intervenors." "plaintiff- Grant will be referred to as the Freeman, when, although supervision.

finding clearly erroneous 494, 112 it, S.Ct. 1430. support there is evidence reviewing court is left entire evidence undertaking status In firm that a conviction the definite ask “whether inquiry, a court must Faulconer been committed.” mistake has good faith with complied ha[s] Board (4th Commissioner, F.2d en decree since was Cir.1984). clearly errone- clarifying tered, vestiges past and whether standard, has ex- Supreme Court ous eliminated to ha[ve] been discrimination plained: Board practicable.” the extent of Educ. Dowell, 237, 249-50, 111 of the evi- S.Ct. court’s account 498 U.S. If the district (1991). 630, in Implicit 112 715 light in of the record L.Ed.2d is plausible dence term use of the ap- Supreme Court’s entirety, the court of viewed in its limit on the is “a reasonable “practicable” though it even may not reverse peals supervision.” ... federal Co duration of sitting as the that had it been convinced v. State Bd. alition to Save Our Children fact, weighed the it would have trier (3d Cir.1996); Educ., 752, 760 90 F.3d differently. Where there evidence Dowell, 247, 111 498 U.S. at S.Ct. evidence, see also of the permissible views two (“From first, very supervi federal 630 between them the factfinder’s choice intended systems of local school sion clearly cannot be erroneous. remedy past measure to temporary as a City, 470 City Anderson v. Bessemer discrimination.”). Hence, goals of a 564, 573-74, 1504, 84 105 S.Ct. U.S. only encompass a desegregation order (1985). Supreme The Court L.Ed.2d 518 violation, prompt also remedy for the but re- appellate stressed that even when also Freeman, restoration of local control. See documentary on primarily view is based 490, (“Returning 112 503 at S.Ct. 1430 U.S. evidence, clearly erroneous standard of control of local authorities at schools to the 574, at review remains the same. See id. date essential to practicable the earliest the district long 105 1504. So S.Ct. in accountability their true our restore rests unitary status determination court’s system.... Where control governmental evidence, it permissible view of the lies, responsibility.”); Milliken so too does be affirmed. must (“No I, 741-42, 418 at 94 S.Ct. 3112 U.S. is more single public tradition education Supreme Court has declined control over the deeply rooted than local meaning” for the provide define or a “fixed schools; autonomy local has operation of Pitts, “unitary.” Freeman v. 503 term essential to the long thought been both 467, 487, 1430, L.Ed.2d U.S. S.Ct. community maintenance of concern and (1992). However, in of the aim of light public quality schools and to support I, which was “the elimination Brown process.”). the educational maintained deliberately state-mandated refer Bradley, Among important the most systems,” Milliken v. dual 717, 737, 3112, determining points 41 ence whether 418 U.S. 94 S.Ct. (Milliken (1974) I), has fulfilled its duties so that a school school board L.Ed.2d 1069 may resumed are the fac unitary when it local control system must be declared assignment, student children tors set out in Green: longer no discriminates between race, Green, facilities and re faculty assignment, on the basis of see sources, 442, transportation, assignment, staff proof The burden of 88 S.Ct. 1689. Green, extracurricular activities. See seeking an end to court party falls on the In its The district court did not err in U.S. at adopting a discretion, plus/minus percent fifteen vari conducting a court ance. Considering only variance may consider other relevant hearing status approved by ever the district court Free factors not mentioned Green. See course of the Swann man, litigation was a 503 U.S. at S.Ct. 1430. We “ ‘plus from the 15%’ district-wide aver the district court’s consideration address age,” id. at the addition aof minus turn, only each factor in but to deter Moreover, percent fifteen is reasonable. “the district account mine whether court’s permitted Court has a “limit plausible light of the evidence is ... ed use of mathematical ratios” dis Anderson, entirety.” record viewed courts, Swann, trict 573-74, 105 470 U.S. at S.Ct. 1504. higher

S.Ct. and much variances have been desegregation, used to define Assignment A. Student Manning see v. Hillsborough County Sch. perhaps the assignment Student is Bd., (11th Cir.2001) (us 244 F.3d 935 factor most critical Green because state- variance); a ing plus/minus twenty percent separation pupils mandated of on the basis Armor, generally, see David J. Forced Jus system. of race is the essence of the dual Desegregation tice: School and the Law Freeman, 474, 112 See 503 U.S. at S.Ct. (1995) (observing seventy 160 that in over (observing that the issue of student percent of the school deseg districts with assignment “un is “fundamental” because regation plans where racial balance is mea jure regimes der the former de racial ex standards, by sured numerical a variance clusion was the means and the both end plus/minus fifteen percent greater is policy used).2 a disparagement motivated sum, plus/minus In fifteen per race”). ... the disfavored To determine clearly cent variance is within accepted whether a racially standards, school was balanced or provides a reasonable start imbalanced, adopted the district court ing point unitary status determina plus/minus percent fifteen variance from tion.

the district-wide ratio of black to white Compliance 1. CMS’s Record Capacehione, F.Supp.2d students. See However, at 246. the district court empha began by observing The district court “that compliance sized there is no level of in oper- since of the 126 schools (16%) ation, with the standard that is determinative.” “only twenty schools have had variance, Id. When schools are outside the than higher black student bodies 15% supportable explana a “reasonable and than above the district-wide ratio for more years, only will Id. three ]” suffice. seventeen schools tion! trial, Smith, superin- panel many 2. At Dr. Eric the current issue of how "[t]he CMS, unitary tendent ques- testified that status schools are balanced has never been a depended every being on in balance. App. Tr. tion this case.” 91. The racial J.A. & composition goes See XV-7187 7239. This is not law. the heart of a schools Swann, case, 402 U.S. at S.Ct. very key to a and is much ("The desegregate constitutional command to review of the district court’s declaration every Swann, schools does not mean that school in F.Supp. status. See every community always reflect the ra- must (ordering assign pupils CMS to "in such composition cial of the school as way nearly practicable that as the various ao whole.”). grade have about the various levels equally proportion plain- We find erroneous the Swann same and white stu- black dents”). argument appellate tiffs’ assertion at before correctly (13%) and the Swann bodies lower had black student have suggest point out that the data ratio for than 15% below the district-wide in- has years recent racial imbalance Capacchione, 57 years.” than three more Aware of this creased in some schools. omitted). (footnote F.Supp.2d at 248 trend, the district court made a number of addition, the district court found findings growth demographic single-race school since operated has not Charlotte-Mecklenburg in the change id. 1970. See revealing findings The most are as area. turned to two The district court also follows: in- dissimilarity desegregation indices: increased county population has (cid:127) exposure. and the index of interracial dex 354,656 613,310 from 1970 to degree of racial The former “measures the imbalance, by comparing and it is derived in 1970 the school district was the (cid:127) composition of each school to the the racial forty-third largest in the nation and XXXIII- composition,” J.A. district-wide today twenty-third largest 16,172, and the latter measures “the aver- 500,000 with more than among cities (cid:127) percent white in schools attended age people, Charlotte ranks second students, weighted by proportion black growth in the 1990s population in each school.” J.A. of black students composition county the racial (cid:127) XXXIII-16,172. According report to the seventy-six per- changed has witness, expert plaintiff-intervenors’ of the twenty-four percent cent white and Armor, dissimilarity Dr. David J. value sixty-eight percent black 1970 to twenty signifies highly or “a bal- below white, black, percent twenty-seven system” under anced school and a score percent and five in 1997 other thirty signifies substantially desegregat- “a composition the current racial (cid:127) XXXIII-16,172. system.” ed CMS’s J.A. white, fifty percent schoolchildren is in 1980 and dissimilarity score was sixteen black, forty-two percent eight it is clear twenty-six 1995. From this percent other desegregated in the quickly that CMS county as the has become more sub- (cid:127) 1970s and continues to maintain “sub- city nearby urban the inner sub- stantially desegregated system.” The dis- large urbs have lost numbers of similarity index also indicates CMS they spread far- white residents than several com- has better racial balance formerly ther out into the rural sec- they de- parable districts did when were county tions of the XXXIII-16,173. unitary. clared See J.A. some middle suburban communities (cid:127) white are now that were once all exposure, like The index of interracial predominately black index, dissimilarity shows CMS population the rural black in the (cid:127) A great leaps progress. has made score county has re- part southern signifies index exposure of zero on the while the relatively mained constant fifty while a score of segregation, total population tripled white has because “highly desegregated above indicates a of suburbanization XXXIII-16,172. system.” J.A. Schools typically fifty, score above whereas Capacchione, F.Supp.2d at 236-39. findings supported by report before the order the schools’ “These twenty expert in de- plaintiff-intervenors’ scores hovered or below. See of the near XXXIII-16,194-96. Dr. William See J.A. mographics, Clark. J.A. Freeman, 494, 112 Accordingly, the dis tors.” XXXIII-16230-306. S.Ct. concluded that can be 1430. “[t]here trict court demography geography

no doubt Swann contend that con- largest causing role in played have sideration demographics and the ratio- Capacchione, F.Supp.2d imbalance.” nale of misplaced Freeman are because 250. growth shifting demographics of Testimony Murphy, from Dr. John County, DeKalb Georgia, the school dis- superintendent from 1991 to CMS’s Freeman, trict under court order in ex- corroborates the district court’s conclusion. ceeded that of Charlotte-Mecklenburg. Murphy Dr. testified that when he as- growth While CMS’s rates and demo- quite sumed his duties he “was concerned graphic certainly shifts do not equal those difficulty bringing increasing about DeKalb,3 experienced in we can find noth- ... about racial balance because of the ing limiting Freeman holding to the occurring.” that were demographic shifts specific County facts of DeKalb or estab- Population growth translat- J.A. VI-2712. lishing DeKalb as the standard for meas- road, ed into more automobiles on the uring imbalance caused demographic be- making busing impracticable increased contrary, opinion factors. On the youngsters cause “the travel time to move speaks in general terms. The city from the suburbs into the with the Court observed that in the United States a problem.” flow of rush hour traffic was demographic “it is inevitable that In the fall of J.A. VI-2732. districts, makeup they of school based as hired Dr. Michael J. Stolee to examine the political are on subdivisions such as coun- problem and offer solutions. Dr. Stolee municipalities, may ties and undergo rapid also concluded that CMS’s task “has been 495, 112 change.” Id. at S.Ct. 1430. Mo- complicated by population growth,” J.A. noted, bility, the Court “is a distinct char- XXXII-15,571, and he recommended the acteristic of our Id. at society.” adoption program, of a S.Ct.

which promptly implemented. CMS Similarly, the Swann contend Court has dealt with simi- County, that unlike DeKalb Mecklenburg population growth shifting lar demo- County integrated has become more as the graphics in the context of status. This is population black has increased. Freeman, unequivocally In the court stat- simply example, report not true. For ... ed that “racial imbalance not tanta- in prepared [is] 1992 the Charlotte-Meck showing lenburg Planning mount to a that the school district Staff for Chairman Ar noncompliance in with the decree or thur concluded that [is] Griffin “Charlotte- Mecklenburg city seg law.” with its duties under the 503 U.S. continues be I, course, regated neighborhoods” 1430. Brown with S.Ct. “Concentra mandate that racial balance be Black ... generally does not tions of households pursued perpetuity. original city.” in Once the located in the central J.A. XXI- (1992 10,485; XXVIII-13,803 racial aby imbalance caused constitutional see also J.A. rectified, assignment plan stating violation has “the school student been duty remedy “housing county racially district is under no imba- across the is not by demographic integrated. Approximately lance that is caused fae- 50% of all percent example, population grew 3. For of DeKalb in the district from 5.6 70,000 450,000 Freeman, County grew forty-seven percent in 1950 to in 1986. See percentage and the of black students 503 U.S. at 112 S.Ct. 1430. J.A. district, twenty-five years. See twelve to within one live black students XXXIII-16,176. students reside of white only while 10% (CMS XXII-10,575 district.”); J-A. addition, Armor examined the Dr. pop- of the black chronicling growth

report that exceeded schools seventeen population the white decline of ulation and three variance for plus percent fifteen hous- Clearly, increased city). during in the inner the last decade. See years or more XXXIII-16,174 of the necessarily a corol- 76.4 Sixteen integration is not J.A. ing rang- periods balanced for seventeen were population lary African-American twenty-six years, ing from nineteen Hence, plain- despite the Swann growth. balance for sixteen experiencing one school efforts, cannot be dis- Freeman tiffs’ best pupil the extent that CMS’s years. To nor does the nothingness, tinguished into assessed, Ar- could Dr. reassignments this court to permit review standard of changes instituted mor concluded changes in reweigh the evidence to maintain or re- “attempts were CMS. in the face of over- store racial balance confronted with also note that when We and mobili- whelming demographic growth schools, in certain growing imbalance Indeed, XXXIII-16,176. Dr. ty.” J.A. cogent sup- court demanded that imbalance had been Armor concluded plaintiff- from the explanations portable schools because reduced in several of the intervenors, special attention to the paying magnet program attracted white CMS’s still in use. See jure de reaches of the former students from the outer at 246. Evi- F.Supp.2d county. Capacchione, indicated that presented at trial dence compli- Long periods perfect of almost that are former black schools the 16

“[o]f guide- racial ance with the court’s balance currently 13 are balanced open, still lines,5 in the coupled with some imbalance periods rang- desegregated have been shifts, demographic massive wake of years. Of the 3 that ing from to 28 court’s find- strongly supports the district variance, black currently exceed the 4-15% of imbalance ing present levels for at least each balanced has been jure with the de way no connected XXXIII-16,176. Interesting- years.” J.A. segregation practiced once CMS. seventy-two Freeman, former white schools ly, of the S.Ct. (“Where majority resegregation product fifteen are now is a not of open, that are still choices, it private action but of does periods in balance for state black were XXXIII-16,174 (footnote omitted); see predominant- J.A. did not include the 4. Dr. Armor 26, Swann, analysis ly on three white schools in this 402 U.S. at 91 S.Ct. 1267 also grounds: (observing the existence of some small "that one-race, one-race, (1) virtually court order did not establish a mini- the number of or enrollment, (2) percent black the half- mum within a district is not in and of itself schools have had low black en- dozen schools that segre- practices the mark of a still years past three more rollment for the or law”). gation by operating have been and that were in 1972 years[,] racially balanced for at least ten plaintiffs ten 5. Even the Swann admit that (3) demographic analysis of Dr. the and charged years the district court after have be- Clark shows that these schools deseg- taking steps to board with affirmative opened were imba- come imbalanced or schools, nearly regate system "w[as] 100% of the substantial white en- lanced because compliant or- statistically with the court’s growth in the outskirts of the rollment Appellants’ Brief at 38. ders.” Plaintiff county. implications.”); entering hundred seats class for have constitutional not “ (“Where [par 244 F.3d at 944 Manning, applicants ‘economically who were and/or ” finding status] ty seeking educationally disadvantaged’ and who demographic shifts are sub shows that minority groups, were members of certain imbalances, racial [the cause of the stantial Bakke, 274, 2733. The U.S. S.Ct. presumption of de has overcome party] distinguished court Martin v. Meri segregation.”); United States jure Spangler by observing that it was but a (11th County, 171 F.3d wether restatement of the Swann Court’s admoni- Cir.1999) (observing that a “school district quotas tion about the use of racial against demograph a battle wage need not that, City, unlike Pasadena CMS had not balance”). perfect ics to achieve racial racially pat- achieved neutral attendance adequately at trial presented The evidence Martin, F.Supp. terns. See at 1340. have why a few schools become explained decision, As for the Bakke the district imbalanced, and we can discern no evi out that no student in pointed CMS that indicate clear er dence or omissions “an equal opportu- was denied educational regard. ror has been committed nity” policy admissions implemented “against Bakke was a back- Unitary 2. Martin and Status judicial drop specific findings devoid of plaintiffs point The Swann also to school acknowledgments administrative of the burdens, transportation and school sitings, segregated sys- status of the school prior growing that the im- transfers as evidence Accordingly, tem.” Id. the Mar- rather balance is caused state action court concluded that reassign- tin CMS’s choices, and that has not private than ment of students was “within constitutional complied with the district court’s orders upheld.” limits and should be Id. at 1321. good advancing argument, faith. their pains The district court took to ensure that rely chiefly on Mar- plaintiffs the Swann too opinion interpreted would not be Charlotte-Mecklenburg tin v. Board Ed- broadly: simply upholds “This order ucation, (W.D.N.C.1979), F.Supp. against the at- actions of the 1978 Board group parents sought in which a plaintiffs.” Id. at 1347. In tacks enjoin reassigning over 4000 opinion, the Martin the dis- course of in order to maintain racial bal- students trict court observed that CMS had fallen ance in certain schools. The short in four areas: construction and loca- position on Pasadena Martin based their parts county of facilities in tion City Spangler, Education v. Board of likely desegregation, placement to enhance 49 L.Ed.2d 599 96 S.Ct. kindergarten grades in elementary (1976), University Regents county, monitoring throughout Bakke, California prevent as to re- of student transfers so (1978). In the for- 57 L.Ed.2d 750 and allocation of the burdens segregation, case, mer Court reaffirmed However, busing. id. at 1328-29. could order a that district courts noted that had the district court also rearrange “to its attendance school district and that a return to great progress made year to ensure that the zones each so as “has not segregation the old by racial mix desired the court was main- Board, who tempted present School in perpetuity,” Spangler, tained U.S. in to run standing fast their endeavor 2697, at and in the latter the 96 S.Ct. according provid- to law while the schools struck down a medical school admis- Court Id. at 1347. ing quality that reserved sixteen of one education.” policy sions (“The law does County, 171 F.3d at 1339 the district Capacchione, In prisoner based “Martin was not not make a school district correctly observed factors, tenden- hearing,” Capacchione, demographic such as unitary status on control.”). “the cies, at and that because F.Supp.2d beyond that are its We fledgling in plan was still its desegregation court’s Martin will examine the district keep was inclined stages, Court in findings turn. CMS,” Capac id. at 251. The

pressure post- court further observed chione Siting a. School Charlotte-Mecklenburg in changes Martin found that The district court the “concerns looking [of counseled under the law had not shirked its duties The district light.” in a new Id. ] Martin sitings. Capac regard with to school of Martin is reason interpretation court’s chione, F.Supp.2d at 251-53. The rec the rule in this and in accord with able has, extent ord that CMS to the reveals court, that a district as a continuous circuit continually endeavored to site practicable, institution, interpret its is “best able integration, in order to foster schools Educ., Vaughns orders.” v. Board own in policy building schools adopted has (4th Cir.1985) (school 758 F.2d equally areas accessible to blacks and case). Moreover, the Mar mem Testimony whites. of current board years thirteen before tin order was issued to fulfill this bers indicated that efforts in Free Supreme Court made clear property in low policy, purchased CMS has the affirmative measures man man that growth for school construction even areas remedy are not meant to dated Green white though predominantly resegrega choices” that lead to “private high growth areas were overcrowded. See Freeman, tion. reaffirmed J.A. V-1986-87. 1992 CMS the law and the under 1430. The state of that, and resolved “when siting policy standing upon of duties school districts possible,” ever new schools would be built was hand were far different when Martin “provide that would black student areas Hence, a ed down. number assertions percent enrollment of not less than 10 squared cannot be Martin serving from the census tracts the new See, e.g., present state of the law. Martin XXXII-15,686. impetus school.” J.A. F.Supp. (stating segregat at 1346 in the growth behind the resolution was necessarily lead housing patterns ed must county which the board periphery of the segregation the unconstitutional patterns continue speculated would schools). changes in Char Ignoring housing segregation, making thus it more lotte-Mecklenburg the law erect difficult to maintain racial balance in the ing Martin as framework presented schools. Evidence at trial indi status, plaintiffs urged as the Swann be percent cated that the ten rule was des low, defy common sense and run would possi tined for failure because it was not developments afoul of implement ble to the rule and still “meet desegregation jurispru Court’s limit.” XXII- the 60-minute bus ride J.A. Gypsum dence. See United States Co. 10,869. Nevertheless, (3d extensive evidence Bros., 668 F.2d Cir. Schiavo 1981) showing that CMS never presented judge that a (concluding successor segregation in order to foster sited schools legal to reconsider empowered [the “is “every try effort was made to predecessor] conclusions of an unavailable bring people find school sites that would prede to the same extent that his or her have”); together in balanced numbers.” J.A. VI- cessor could see also Meriwether racial indicates that the board coordinated 2752; County, 171 F.3d see Meriwether sitings of evidence balance and school as best could (stating that “the absence played racial motives under the circumstances. The evidence indicating that decisionmaking pro- Board’s part in the does not indicate that the abandonment accessing compliance in is relevant percent cess” ten rule or other decisions orders). example, For with siting were the result of a regarding school planning executive director CMS’s sys- the dual school perpetuate desire to siting that in testified placement student court’s or- tem or circumvent the district at both African- schools CMS “looked ders. in only populations

American and all plaintiffs, citing CMS and the Swann to site, but in the entire vicinity orders, prior counter that the board has dedicated VII-2920. So district.” J.A. not done all that it could do in the area of in siting integrated to was CMS standard, of such a siting. Erection refusing gift a contemplated areas that it however, effectively replace practi- would the land was of land for school use because cability possibility. Manning, with white area. See J.A. predominantly in a (observing at 945 that “the law F.3d V-1985. board require does not a defendant school in growth predominantly Faced with step attempt- in every to take conceivable north, regions of the far south white implies The former ing desegregate”). to XXXIII-16,261, CMS was com- see J.A. reasonably imple- can be measures that in those areas pelled populations to serve circumstances, under the while mented sitings. via school CMS’s data show require- omits the reasonableness latter 1990s, population student the late instance, possible it was for ment. For 4,000 per students “growing nearly percent ten rule CMS to adhere to the XXIX-14,133, consequently year,” J.A. in the far north and ignoring growth while “just trying keep up” to the board was would county. Youngsters south building population explosion with the long compelled have been to ride buses schools, Overcrowding was a J.A. V-2249. the flow of periods traveling while with “the aver- the late 1990s problem, traffic, but it was nonetheless rush hour expected operate at 109 age high percent to the ten rule. possible to adhere XXIX-14,- capacity.” of its J.A. percent course, practicability of a refusal Of was forced to though 133. Even CMS growth Charlotte-Mecklen- respond to serve an rapid build schools at rate burg is another matter. population, pupil as- expanding student vein, In the same Swann described signment plans which CMS siting decisions were contend that school growth “major as a consider- population imper- which is an response flight, to white im- replete with efforts to ]” ation [ failing comply reason for missible XXIX-14,133. balance. J.A. prove racial Growth, course, desegregation order. example, assignment plan For the 1997-98 flight. experts And of- far different from highlighted expansion the creation and boom in of “the economic fered evidence de- magnet programs specially several Metropolitan area the last the Charlotte in a num- to reduce the black ratio signed XXXIII-16,233. XXIX-14,147-51. decade.” J.A. Charlotte- ber of schools. See J.A. dynamic the most Mecklenburg is one of practicable, did not To the extent South; different from in the it is far areas popula- racial balance concerns to sacrifice Swann, and Charlotte-Mecklenburg of pulled the two often growth. Though tion directions, from that of Martin. changed the record much in different (alteration in county original). in and a 250 n. 10 This growth light of erroneous, nor can we demonstrating finding clearly evidence is not plethora of on findings efforts to site discern the need for more this the board used best integration, light post-Martin changes. issue in schools in order to foster error when it district court did not commit 3. Conclusion con- “continuing

concluded that there is no in the area of school violation[ ] stitutional sum, findings In on the district court’s F.Supp.2d at siting.” Capacchione, 57 in assignment “plausible light student entirety.” in its of the record viewed Anderson, 470 U.S. at 105 S.Ct. 1504. of Busing b. Burdens in system assignment The dual of student CMS has been eradicated “to the extent busing, As for the burdens of the district Dowell, practicable.” court found that the most recent school existing S.Ct. 630. The imbalance some 11,184 15,533 year, black non- students to the former dual schools is not traceable balancing black students were bused for system discriminatory or to renewed ac- earlier, traffic purposes. Id. As stated tions, growth but rather is result of patterns busing make students suburban shifting demographics. Consequently, we city into the inner far more difficult than findings hold that the district court’s on busing inner-city children into the suburbs. assignment clearly student are not errone- VI-2732; Though See J.A. J.A. V-2228. ous. disproportionate number of African-Amer- bused, growth, ican students are hous- Faculty Assignment B.

ing patterns, patterns support and traffic the district court’s conclusion that the real- examining faculty assignment, In ities of the current situation should not again plus/minus district court used a fif- block a status determination. See percent teen variance. Of the 126 schools County, Meriwether 171 F.3d at 1341 CMS, operating in found (finding no constitutional violation when only 1997-98 ten schools were out white students are “somewhat less bur- plaintiffs point of balance. The Swann out transportation dened scheme” be- grew that this number sixteen 1998- factors). demographic cause of 99, but this means that a mere twelve

percent the schools were out of balance. c. Student Transfers cry This is a far from the dual 24,000 which “most of the [black students] Finally, Martin’s concern with student Swann, no white teachers.” ha[d] appears transfers to have based been on F.Supp. simply at 1360. There is no evi- assumption experi- would assigns dence that CMS black teachers to average growth. ence Courts are not om- predominantly black schools and white niscient, and the district court predominantly teachers to white schools. changing could not have foreseen the de- Thus, the district court’s conclusion that mographics make would student factor has Green been satisfied is not transfers the least of CMS’s worries. clearly erroneous. present litigation, the district court ‘kept eye observed “that an [mag- C. Facilities and Resources net so that there wouldn’t be a transfers] run speak on the bank so to one The Swann and CMS contend Capacchione, F.Supp.2d impermissibly school.’” that the district court shift- proof carefully analyzed ed the burden of on this factor. As a testimony the and re- law, Gardner, of alleged port Dwayne result of the error CMS and of Dr. an expert plaintiffs the Swann contend that this is- witness for CMS. Dr. Gardner analyzed seventy-three must remanded to the every sue identifiably schools— court. black school in sampling CMS and a of balanced predominantly schools and white previously This court has made clear schools. Dr. Gardner measured the ade- that “once a court found an has unlawful quacy, safety, healthfulness, accessibility, system, alleging dual school the ex [those flexibility, efficiency, expansibility, ap- disparities] istence of racial are entitled to pearance of the schools. Based on the the that current presumption disparities inspection grouped he schools as follows: causally are related to prior segregation, (suggests “0-44 replacement), 45-59 and the burden of proving otherwise rests (needs (needs major improvement), 60-74 on the defendants.” City School Bd. the of (serves minor improvement), 75-89 pro- Baliles, v. Richmond 829 F.2d needs), gram (exceptional and 90-100 qual- (4th Cir.1987). case, however, In this ity).” Id. at survey 264. The revealed the district court noted that none of the that of the four schools that warranted prior long history orders entered the white, replacement, two were majority the litigation Swann had ever found racial two were imbalanced black. See J.A. disparities regard to exist with to school XXV-12,182-86. Thirty-four schools fell facilities and concluded that CMS and the major into the improvement” “needs cate- Swann bore the burden of estab gory, of which sixteen were imbalanced lishing regard discrimination with to facili black and eighteen identifiably white. ties. Capacchione, F.Supp.2d (“[I]t defy logic place would now the The district court determined that Dr. burden of proof on the Plaintiff Interve- testimony Gardner’s established that nors, requiring them to prove vestiges disparities current were functions of the discrimination facilities have been issue, age of the facilities because remedied, when originally the Court found building different apply standards when exist.”). view, vestiges no In our this a new facility is constructed as com- assignment erroneous of the burden of pared to when an facility older is reno- proof, which did not affect the manner in words, vated or upgraded. other the which parties the tried the case or other renovation of an older facility usually prejudice wise rights, their harmless complies with the code under which the does not undermine the district court’s facility was built. Because most facili- factual regarding conclusions the facilities predominately ties the black inner factor.6 city are older while pre- facilities

Immediately assigning newer, after dominately burden white suburbs are plaintiffs, to CMS and the Swann the dis- inference is that in building differences trict court’s order nonetheless summarized standards tend to affect black students weighed pre- disproportionately. facilities evidence This does not parties. sented The district court amount to racial discrimination. In- alignment disparity 6. Given the counter-intuitive existence of racial in its facilities. case, parties argued Yonkers, in this it could be that the City See United States 181 F.3d presumption and burden allocation set forth (2d Cir.1999), reh'g, 309-11 vacated on applied, in Balites should not be and that (2d Cir.1999). 197 F.3d 41 required prove CMS should instead be deed, of the racial regardless regardless practice applies composition disparities racial school. of the school. These makeup Thus, predomi- that are older schools generally the result of the relative nately white—several of which were facilities, with an ages combined 1920s—are likewise affected built ongoing funding lack of and the need to by practice. unprecedented growth. accommodate (foot- F.Supp.2d at 265 Capacchione, 57 Id. omitted). transcript note and references finding clearly This is determinative of Thus, Dr. court concluded from the district question unitary the status as facili- testimony report and “that Gardner’s ties, regardless party of which carried the spread across CMS’s facilities needs is, proof. burden of That the district regard to the racial without court, carefully considering after Id. composition of its schools.” weighing presented all the evidence on this considered the The district court also factor, any disparity concluded that as to testimony superinten- of CMS’s assistant might the condition of the facilities that services, building dent of who testified that by any exist intentional caused renovations, out of 108 schools need of CMS, by discrimination but instead was a percent racially were balanced eighty-one age function of the and location of the J.A. VIII-3810 identifiably white. See ever-present problem facilities and the The district court concluded that & 3818. if allocating all too scarce funds. Even testimony demon- this witness’s likewise assigned district court had the burden of strated that the deficiencies CMS’s facil- proof plaintiff-intervenors, to the this fac- jure ities were unrelated to the former de finding compelled ruling tual would have system. fact, in their favor. Finally, the court considered CMS’s much, acknowledged stating “that the facilities, in renovating track record old proven, Plaintiff-intervenors have to the praising practice allocating funds on possible, extent the absence of intent and noting that per-pupil basis “CMS Capacchione, causation.” F.Supp.2d spent large portion has bond mon- of[its] 267 n. 38.7 ey improving predominantly on F.Supp.2d Capacchione, black areas.” Therefore, because the district court’s at 266. findings, which were based on the court’s After an extensive discussion of this evi- weighing of all of the relevant evidence dence, following the court made the find- trial, presented yielded would have ing regard of fact with to facilities: proper assign- same conclusion under a proof, any ment of the burden of error Judge thirty

Just as McMillan found years ago, today regard proof finds that with to the burden of Court inequities throughout Washington Dep’t facilities exist harmless. See State this footnote and the district From court's Swann Plaintiffs have failed to overcome the detailed the cause discussion about previous findings Court’s on facilities es- facilities, disparity appears in CMS’s that tablishing requisite discriminatory intent really the district court made alternative rul- causation.”). The court then ruled in the ings question: facilities The court first alternative, as indicated the footnote and concluded that CMS and the Swann findings, plaintiff-intervenors proof regard bore the burden of to facili- proved any disparities were the result of they carry ties failed to that burden. factors unrelated to state action. (”[T]he Capacchione, F.Supp.2d at 267 Co., Washington finding provides Natural Gas trict court’s “CMS Transp. v. Cir.1995) (9th (finding transportation free bus to all students F.3d who not live within a a half improper assignment of do mile and of their district court’s Id. The to be harmless because schools.” focus of the Swann proof burden of plaintiffs’ argument record established on this factor deals review of the entire assignment opinion. of the with the Martin As proper previously “that under the discussed, provide court would Martin does not proof, the district burden decision”); Apple framework for a status determina- have reached the same wood, Nursery interpretation Co. v. Holl tion and the district court’s Landscape & (1st Martin, along finding F.2d Cir. of with the that the ingsworth, 884 1989) that, (concluding present busing “may if the district court state of be about the do,” Capacchione, on a best CMS can improperly proof allocated burden issue, does not constitute F.Supp.2d the error was harmless er- particular that the district court’s decision on ror. because the evidence weight

issue turned on the Assignment E.Staff proof in the record and not on burden of rules); Vaughns, 758 F.2d at 992 cf. court, findings The noting district shifting in (recognizing that an error in staffing of discrimination were in proof burden of a school made, never concluded has com- that.CMS if may ease be harmless the record is such plied with its constitutional duties. The that the court can conclude that substan parties point contrary this court to no rights prejudiced). tial have not been evidence, in nor have we discovered such Therefore, the record. we hold that the Because error associated with fifth findings regarding district court’s harmless, only proof the burden of is clearly factor are not erroneous. Green the dis question that remains is whether findings factual about the fa trict court’s F.Extracurricular Activities Though the clearly cilities are erroneous. weighed differ

evidence could have been that there The district court concluded factor, there are two ently “[w]here on this vestiges of dis- was no discrimination evidence, views of the the fact- permissible regard to extracurricular crimination finder’s choice between them cannot be presented activities. The evidence at trial Anderson, clearly erroneous.” 470 U.S. at ratios of blacks and whites showed In the district 105 S.Ct. 1504. activities, in extracurricular participating court found that there was no constitution year though varying somewhat “quality al of school build violation equal. J.A. year, approximately is See Swann, ings F.Supp. and facilities.” XXIV-11,634. there are dis- Areas where Capacchione at 1372. The court found to the parities were not shown to be linked today, true and the evi that this remains example, For blacks system. former dual finding indicates that this dence as a whole holding elective often outnumber whites clearly not erroneous. is whites government, offices in student but higher representation have a level of

D.Transportation No evidence is found programs. honors to indicate that CMS somehow year, five out of the record During African-Americans toward student pushes rode a school every six students pro- away from honors Capacchione, F.Supp.2d government bus. See Consequently, the district court’s dispute grams. do not the dis- parties 267. The degrees, held advanced while for- that CMS has satisfied this teachers conclusion clearly not erroneous. the teachers in imba- ty-six percent factor is Green high white held advanced lanced schools Ancillary Factors G. degrees. Capacchione, F.Supp.2d experience, at 271. it was with teacher As Quality 1. Teacher that the testimony establishing was offered The court found that there was possesses a teacher degrees number quality in the of teach- no discrimination necessarily compe- translate into does ing. contend Swann quality VII- tence or instruction. See J.A. clearly finding erroneous because According Superinten- to former in imbalanced African-American students “the level was not a Murphy, degree dent likely inexperi- are more to have per- significant getting indicator better “experience gap,” enced teachers. This part formance on the of the teacher.” J.A. exists, the extent is minuscule. The Expert reports VI-2795. submitted in imba- district court found “teachers plaintiff-intervenors also indicated that lanced-black schools had 0.7 to 1.3 fewer significant relationship” there is “no be- experience averages than the district years black achievement and teacher edu- tween years experience and had 1.6 to 2.9 fewer XXXIII-16,221. cation levels. J.A. than teachers imbalanced-white sum, the that district court’s conclusion Capacchione, F.Supp.2d schools.” 57 at equal African-American receive students 271. To middle school teachers as an use quality clearly access to teachers is not example, the statistics reveal that the av- erroneous. erage middle school teacher an imba- lanced African-American school had 8.2 2. Student Achievement

years experience years versus 9.8 for his counterpart in an imbalanced white school. The district court found that the exis- clearly support Id. These numbers a find- gap tence of an achievement between black ing equality disparity, rather than vestige and white students was not a of the cannot undermine the district court’s con- dual or evidence of discrimination clusion on this factor. operation the current of CMS. This was pointed

The court also to evi- trial, disagreement an area of immense at indicating experience dence that does parties presented and the mountain of necessarily competency. relate to For ex- subject. data on this the Four- Though ample, according Superintendent to former guarantees equal pro- teenth Amendment Murphy, it is not uncommon to “ex- have outcomes, equal tection but not if low Afri- first-year “very cellent teachers” and weak can-American achievement is result of 35th-year J.A. VI-2795. Other teachers.” jure system, the former de it must be witnesses that the observed newer teach- to the practicable. eliminated extent “knowledge ers had better of various Dowell, 249-50, 498 111 S.Ct. 630. com- teaching strategies” and were more Conversely, to the extent that low achieve- fortable with diverse classrooms. J.A. factors, beyond ment is linked to other it is VII-3275. authority. reach of court’s Most issue, appeals confronting courts of

The Swann also assert court, including this have declined to con- imbalanced African-American schools have gap vestige sider the achievement as a degrees. fewer teachers with advanced instance, high For imbalanced black discrimination or as evidence of current Baliles, only thirty-one percent of the discrimination. See 829 F.2d at

331 startling vealed findings lower court’s differences between black (upholding 1313 “primarily is attributable low achievement and white children in CMS. in the poverty” incidence of high

to the $31,000 Average family black income is district); v. see also United States $59,000 whites, compared to for only (2d Yonkers, 197 F.3d 54 Cir. City of [percent] parents college of black 1999) (observing “using achievement graduates, compared percent to 58 measure, direct or test scores as a either A parents. huge poverty gap white is indirect, system’s a school movement revealed, percent also with 63 of black away segregation deeply problematic”), students on free lunch compared only denied, t. cer percent Finally, of white students. (2000); People S.Ct. 146 L.Ed.2d 956 percent par- of white students have both Educ., Bd. Who Care Rockford home, compared only ents at 42 per- (7th Cir.1997) (explaining F.3d cent for black students. variables, than that a number of other discrimination, account for the achieve XXXIII-16,179. According J.A. to Dr. Ar- gap); ment Coalition to Save Our Chil mor, the socioeconomic plus factors dren, “a causal link (finding 90 F.3d scores, grade second which are the earliest ... socioeconomic factors and between available, explain “nearly percent of the achievement”). student reading gap percent and over 70 XXXIII-16,180. gap.” math J.A. Former witness, expert plaintiff-intervenors’ Superintendent Murphy testified that Armor, indicating Dr. presented evidence his experience “[p]oor students come be- Afri- that there is no correlation between Charlotte, stay way. hind and And performance can-American and the racial XXXIII-16,- majority poor happen students to be balance of schools. See J.A. African-American.” VI-2696. Dan example, 178. For Dr. Armor’s studies J.A. Saltrick, in former superintendent showed African-American students assistant services, through grades attending the third fifth for instructional also testified that twenty-five percent Afri- schools sixteen in experience his low student test scores can-American scored the same on stan- in parental support related to which turn counterparts dardized tests as their in was “a matter of ... socioeconomiclevels.” seventy-five or percent schools black VII-3280. While socioeconomic dis- J.A. 16,214. greater. Similarly, See J.A. at pupils and white parities between black African-American students in the sixth troubling, they are are not the result grades through eighth attending schools actions or inactions and therefore CMS’s percent sixteen black or less scored the beyond original deseg- scope as their coun- same on standardized tests Baliles, regation 829 F.2d at order. See in terparts seventy-five percent (“Educational that result deficiencies XXXIII-16,215. greater. black or See J.A. problems poverty from such as are best by programs remedied directed toward light In order to shed on the true causes eliminating by indirect solu- poverty, gap, of the achievement Dr. Armor turned Ac- through programs.”).8 data re- tions to socioeconomic factors. The performance, urged Despite gap black students to 8. evidence that the achievement dent control, higher placement other CMS's take advanced and results from factors outside classes, challenged under- level all students re- the district court found that CMS has curriculum, gap. moving from the sundry measures to eliminate the "fluff courses” taken sup- example, adopted provided and other forms of staff For CMS financial incen- tutors preparedness, principals port to accelerate student tives for teachers and tied to stu- Freeman, 503 faith. See clearly good decree court did not cordingly, the district gap (requiring achievement finding at S.Ct. err students is not and white good- between school board “to demonstrate black evidence vestige past discrimination to a constitutional faith commitment present discrimination. action”). sup- factors course of Seven ported good-faith the district court’s find- Discipline 8. Student (1) sought ing: no further relief has been any court found “that The district court removed the case since the district area of disci that exist disparities (2) 1975; from the active docket dual causally related to the pline are not the court’s gone beyond above and has F.Supp.2d system.” Capacchione, to achieve by continually striving orders is prior the court’s orders In none of un- balance even when the imbalance was ever that CMS has there indication (3) the system; connected to the dual meting punishment out discriminated community input open board has been However, recent disruptive students. for community support for its inte- sought 13,206 that of the students statistics show (4) efforts; the board has re- grative 1996-98, sixty-six percent disciplined from to de- peatedly reaffirmed its commitment African-American. See J.A. XXIV- were resolutions; segregation through various noted, 11,637. “dis the district court As (5) currently occupy Arican-Anericans not, itself, constitute dis parity does board, nine on the school four of the seats F.Supp.2d Capacchione, 57 crimination.” (6) chair; actions including the board’s should have a at 281. The idea that CMS absurd, past thirty years over the do not evince disciplinary quota patently (7) motives; discriminatory “no evi- no evidence the record there is targets presented African-Anerican students dence been that school au- has Instead, the evidence indi discipline. guilty easily correctable thorities were guidelines adopted cates that CMS has F.Supp.2d Capacchione, errors.” the same level of whereby students receive 282-83. for certain offenses to ensure punishment board members Testimony from former punishment will not amount has been indicated that the court’s order

vary school to school. A student V-2222, “institutionalized,” J.A. and that may infraction charged disciplinary “always to what the rules the board stuck appeal charge may “and assert also Superinten- Former were.” J.A. V-2234. charge that was due to racial bias.” that when he ar- Murphy dent testified in the simply Id. There is no evidence in Charlotte-Mecklenburg rived he found record that CMS treats Arican-Anerican “unique” “everybody a environment where in mat differently disciplinary students wanted to make sure that their schools Hence, ters. the district court’s conclusion racially were balanced.” J.A. VI-2686. unre disciplinary disparities that the magnet plan suggested Dr. Stolee jure system is not lated to the former de and, in integration, to increase the course clearly erroneous. recommendations, that of his observed H. Faith Good twenty years, the last Charlotte- “[f]or Mecklenburg Board of Education and Lastly, the district court found have, community Charlotte-Mecklenburg complied has with the Capacchione, F.Supp.2d at adopted pre-kindergarten programs accel- dents. See preparedness youngest of stu- 273-275. erate faith, pupil assignment plan). with the orders of good complied Finally, in Dr. Mur- XXXII-15,570. He fur- the court.” J.A. phy thought best to remain under court ther observed “that the Charlotte-Meck- order so CMS could continue to racially community Board and have a lenburg though balance schools even jure the de great pride they deal of the fact that violation had been remedied.

successfully challenge met a and made the Purser, Dr. Susan the current associate XXXII-15,571. solution work.” J.A. superintendent of education services of course, court Of both the district and CMS, expressed a similar desire for CMS appellate arguments, current CMS offi- to remain Though under court order. Dr. engaged cials in much self-recrimination Purser testified that she believed that the they not pursued and claimed that had board, superintendent, and adminis- dismantlement of the dual with the tration were dedicated to enhancing edu- cue, requisite Right zeal. the Swann cational for all of opportunities CMS’s stu- “unique” describe this case as race, regardless dents she nonetheless acknowledged because CMS “has its own expressed preference supervi- for court comply specific failure to directives” Dr. pointed sion. Purser out that the cur- of the district court. Swann Plaintiffs’ time, only rent “Board has a limited be- Response Rehearing to Petition for at 10. positions,” cause these are elected J.A. gave weight The district court little XVII-8076, and that “superin- over time CMS’s assertions that the board had not change, people tendents will in- [and] effort, put enough forth and the evidence change.” volved will J.A. XVII- [CMS] presented at trial amply supports the dis- At point this the cross examina- regard. Super- trict court Former tion, you counsel asked Dr. Purser: “But Murphy despite intendent testified that don’t know what future Board School report indicating unitary was way, administration will do either do definitely and his belief that CMS “w[as] you?” J.A. XVII-8077. Dr. re- Purser in compliance,” no effort was made to dis- sponded: exactly my point.” “That’s J.A. solve the court order. J.A. VI-2706. Dr. XVII-8077. Dr. Purser’s testimony and Murphy gave three reasons for the avoid- Dr. Murphy exemplify why First, unitary ance of a hearing. status he Supreme Court has stressed that “federal advised board members systems of local supervision “a hearing long, pro- would be drawn-out temporary intended as a measure to reme- dollars, cess which would cost millions of Dowell, dy past discrimination.” money away and that would be taken 630; see also Coalition to program.” instructional J.A. VI-2706. Children, Save 90 F.3d at 761 n. 6 Our Second, Murphy Dr. feared that if CMS (warning potential of “the for the en- was declared “we would not be putatively trenchment of [a] transitional eligible funding for federal for our scheme”). desegregation The district VI-2706; see schools.” J.A. also J.A. in- (CMS desegregation court’s orders were not XXII-10,563 report observing that tended to continue after CMS remedied “school to districts intend use violation, jure they the de nor were intend- desegregation purposes ap- schools for can process ed to the democratic with suspend for ply grants govern- from the federal (1996-1997 ment”); XXI-10,521 prospect no of restoration. Yet the orders J.A. Fed- Magnet Program point eral School Assistance have been institutionalized to the Report imagine Evaluation in which describes officials cannot life CMS CMS funding integral part” yoke federal as “an without them. Once a meant to steer be reversed. court’s order must the district with the Consti- compliance towards CMS two-part test is divined proffered This tution, now used CMS orders are the in- cases which have Court for the attainment as mechanisms officials to ask “whether truth, district courts structed CMS officials goals. of different faith complied good the Board ha[s] de- unitary a status little desire for have it decree since was desegregation keep struggling termination and entered, past vestiges whether the place. firmly orders been eliminated ha[ve] discrimination tempo- to the clinging Ironically, CMS’s Dowell, 498 U.S. practicable.” the extent buttresses desegregation orders rary 249-50, 630; see also Free- at S.Ct. unlikely finding that it is court’s district man, 112 S.Ct. 503 U.S. intentionally- an return to “CMS would Capacchione, 57 system.” segregative prong of agree with the first While we go If will to such at 284. F.Supp.2d test, examining agree we do not in place court’s orders keep lengths vestiges past discrimina- “whether balancing continue racial may so that been eliminated to the extent tion ha[ve] policies, it is unthinkable and other 249-50, Dowell, practicable,” sys- dual attempt to revive the CMS will court—as requires district S.Ct. Accordingly, judge’s the district tem. of law—to consider a remedial matter clearly errone- faith is not finding good drafted, conceived, by one and offered plan ous. as an parties during the lawsuit of the meaning plain defense to it. The obvious I. Remedial Plan CMS’s language relevant is that some of the simple compliance cases plaintiff-interve- response As a status, enough orders is not for unitary devel- with the court’s push nors’ for place. meaningful desegregation to take addressing many of oped plan” a “remedial Swann, fac- 402 U.S. at ancillary and other the Green factors XXIII-11,028. court’s remedial (stating that “a district The district tors. See J.A. judged by its effective- plan as a decree is to be court dismissed the remedial “ ness”). example, For a decree entered strategy’ plan” and declined to ‘litigation 1970s could have underesti- F.Supp.2d at the 1960s or Capacchione, consider it. remedy required, mated the extent of the plaintiffs and the Swann char- 256. CMS in the district could have changes treatment of or acterize the district court’s In either error rendered the decree obsolete. plan the remedial fundamental case, beyond court must look unitary reversal of the a district requires of law that First, compliance original with the decree CMS and mere status determination. vestiges whether the of the dual aver that the district and ask Swann been eliminated to the extent the test have court misconstrued case, present In the the dis- practicable. the test crafted Adopting status. inquiry. undertook such an Not plain- and the trict court panel opinion, CMS Swann only compli- the district court address that a court must con- did tiffs assert (1) done, ance, original beyond but it also looked a school district has sider what (2) the extensive may do in the decree and examined how and what a school district Belk, Charlotte-Mecklenburg changes in the 233 F.3d at 252-53. Be- future. See dismantling undertake area have affected cause the district court did not Hence, system. the district remedial former dual inquiry plan, latter as to the Dowell and required court was not under plaintiffs argue CMS and Swann ing considered elev- the amount of presented Freeman to have CMS’s evidence plan. enth-hour remedial every aspect of operations during CMS’s trial, other phases of the bench two-month Likewise, the district did we cannot hold that the. exclusion of the run afoul of Rule of not Federal Evidence plan remedial affected CMS’s substantial 402 when it refused to consider the reme rights. Mower, Ingram See Coal v.Co. course, plan. dial Rule declares L.P., (4th Cir.1989) 892 F.2d (ap- relevant evidence is admissible.” “[a]ll 61). plying Rule Because the exclusion of Fed.R.Evid. 402. Even relevant evidence the remedial plan way no renders the excluded, however, may when proba judgment suspect, below the district substantially outweighed tive value is plan court’s treatment of the sup- cannot presentation considerations of the needless port reversal. of cumulative evidence. Fed.R.Evid. plan 403. And remedial was cer CMS’s J. Conclusion cumulative, tainly citing and summarizing Pursuant to the foregoing, we affirm the expert reports several which had been ad unitary court’s status determina- example, mitted into evidence. For findings tion toto. The district court’s plan’s faculty assignment discussion of is on the factors and the ancillary Green Trent, reports based on the of Dr. William factors are bereft of clear error and we Peterkin, Roslyn Dr. Robert and Dr. Mick cannot discern affecting error of law elson; plan’s discussion of facilities is the substantial rights parties. After Dr. report; plan’s based on Gardner’s more than three decades of federal court gap discussion of the achievement between supervision, complied CMS has in good blacks and whites is based on the reports faith with the mandate of Brown embodied Trent, Peterkin, of Dr. Dr. Dr. and Mickel in the district court’s orders son; plan’s assignment and the student system. to achieve a school discussion is based on Dr. Gordon Foster’s system dual has been dismantled and the All report. reports of the aforementioned vestiges prior discrimination have been were admitted into evidence and the au practicable. eliminated to the extent reports hearing thors of the testified at the subject and were to cross-examination. say perfect This is not to that CMS is a Hence, plan much of the remedial was sys- is not. Like school —it cumulative, providing district court nation, tems ex- across the CMS faces an rehashing expert with but a reports and facilities, panding pupil population, aging testimony. difficulties, scarcity of funds. These however, vestiges are not of the former de

To the extent the remedial plan jure system and therefore do not have appearing contained relevant evidence no- implications. Considering constitutional record, where else in the we hold that the exemplary eradicating CMS’s efforts in exclusion of such evidence was harmless. segregated system, we confi- According to Federal Rule of Civil Proce- jure segregation history. dent that de every dure a “court at stage of the proceeding disregard any must error or Magnet III. Schools proceeding defect which does rights challenge affect the I turn parties.” Capacchione’s substantial now to deficiencies, Listing myriad objectives, plan. Specifi- CMS’s strategies, thirty-one page cally, Capacchione remedial contends that his plan specifics. daughter unconstitutionally is often short on Consider- Cristina demo- ments,” in order to combat but that pro- magnet a to

denied admission adopt plan a should graphic shifts CMS Capacchione race. of her on account gram XXXII-15,581; on voluntarism. J.A. based not have race should argue that does Jenkins, Missouri see also admissions magnet in a factor the been (1995) L.Ed.2d 63 quotas, inflexible the but process, III) (Jenkins the schools have (“Magnet in these leave seats operated which voluntary move- encouraging advantage of long despite vacant specialized schools in a school district ment of students within per- lists, beyond what was went waiting on a desegregation aids pattern a the court orders and prior under missible basis, requiring exten- voluntary without Constitution. redrawing of district busing sive operated previously, CMS As noted XXVIII-13,796 lines.”); boundary J.A. racial balance nearly perfect in (student plan boasting that assignment pupil assign- a twenty years under almost “Charlotte, city prides the which itself ap- by the board plan, adopted ment through integration the nation in leading which court by the district proved to become opportunity now has the busing, elementary paired primarily utilized voluntary city lead nation the zones, schools, a feed- attendance satellite plan using A busing”). “option- experimental system, and three er Stolee, schools, to Dr. according magnet Swann, F.Supp. at al schools.” See opportunity each an “give[ parent would ] XXVIII-13,536-44. 1103-05; J.A. serving a school to make a choice between however, hired Dr. Stolee to CMS resides, a family in which the area being that was examine racial imbalance area, or a school school in some other shifts demographic caused anew pro- attractive offering very specific a Mecklenburg growth population XXXII-15,580. Dr. Stolee gram.” J.A. Dr. labors County. The result of Stolee’s magnet-centered that the recognized also plan, entitled pupil assignment a new was shift from plan would be dramatic Plan: A New Assignment “CMS Student featured desegregation plan which prior plan This new Generation of Excellence.” schools, satellite attend- paired elementary schools, emphasized use Thus, zones, system. ance and a feeder phase allow out which would CMS plan, he recommended part of elementary paired schools. unpopular from the district approval secure schools, were locat- many of which Magnet Indeed, making any changes. court before neighborhoods, predominately black ed 1,”# Dr. Stolee’s “RECOMMENDATION curriculum or innova- specialized offered forty-four, out read: styles not found tive instructional BOARD, THROUGH THE SCHOOL system. other schools COUNSEL, AP- SHOULD LEGAL THE FEDERAL COURT PROACH Murphy over- Superintendent Former APPROVAL TO TO SECURE plan of the Stolee implementation saw THE COURT-ORDERED CHANGE magnet program testified PLAN. DESEGREGATION “wanted to attract because CMS adopted city XXXII-15,578. the inner youngsters into This recommendation more white J.A. racial- district court prior in order to meet CMS’s schools” was consistent apply Dr. to the dis- directing VI-2709. Stolee order goals. balance J.A. any material making report in his that “Charlotte- trict “before observed desegrega- approved from the long departure” and successful Mecklenburg has had 270; Swann, see F.Supp. assign- plan. tion mandatory school experience with

337 (board XXVIII-13,790 member for also J.A. status but as a discrimination arising that Dr. Stolee “review the fed- suit out requesting of Cristina Capacchione’s if mag- eral court order” to determine denial of admission to a magnet school However, based her race.” plan permissible). Capacchione, net CMS 57 F.Supp.2d at ignored Dr. Stolee’s advice and the district 284. The district court rec instruction, ognized that school officials choosing acting pursu court’s instead to ant to a order were changes desegrega- withhold these immune from liability for actions taken plan tion from the district court. consistent Alexander, that order. See Fowler v. problem The crux of the with CMS’s (4th Cir.1973) (law 478 F.2d 696 en magnet plan is its pro- admissions forcement officials who plain confined the aptly cess. As described by district pursuant tiff to a court order were immune court, it operates as follows: suit); § from 1983 see City also v.Wolfe At the start of the process, CMS first (3d Cir.1998) Pittsburgh, 140 F.3d 240 fills seats with preferences based on (officials acting pursuant to court order whether applicant prox- lives close establishing quotas for promotions are not imity ap- to the school and whether the subject § liability); Turney v. plicant any siblings has in the school. O’Toole, (10th 898 F.2d 1472-73 Cir. remaining CMS then fills the seats 1990) (holding that long so as a court order selecting students from a lottery black valid, facially acting officials pursuant to lottery and a non-black until the precise that order are damages immune from a racial balance is achieved. suit); Department Coverdell v. Soc. & (internal Capacchione, F.Supp.2d at 287 Servs., (9th Health 834 F.2d Cir. omitted). citations As originally explained 1987) (social worker is immune from board, to the the plan sought a balance of § liability when executing facially sixty percent forty percent white and black order). However, valid court the district magnet schools with a plus or minus magnet concluded that the use of percent fifteen deviation. See J.A. XXVI- approved schools had never been and that 11-13,705. Unfortunately, opted rigid magnet racial limitations of the sixty percent a strict ratio of white and policy “beyond admissions were the scope black, forty percent and decreed in its Capacchione, of the Court’s mandate.” assignment plan 1992 student that magnet F.Supp.2d at 285. The court then district “slots reserved for one race will not be subjected policy the admissions to strict filled students of another race.” J.A. scrutiny, holding policy violated XXXII-15,702. policy The result of this the Equal Protection Clause of the Four if was that a sufficient number of blacks teenth Amendment nar because was not apply whites did not and fill the seats rowly compelling tailored to achieve the races, respective allotted to their then remedying state interest of past discrimi those seats would be left vacant. Though nation. This court reviews made, exceptions some were Superinten- findings court’s of fact for clear error and dent Eric gener- Smith testified legal conclusions de novo. See Ruther ally policy. adhered to the See J.A. XV- Hosp., Inc. v. RNH Partnership, ford (4th Cir.1999). F.3d The district court appropriately Immunity A. magnet through examined the lens, pre-unitary observing status “that the I begin question with the of whether litigation current a petition immunity started CMS officials are entitled to be- in the wake optional schools created imple- adopting their actions cause “emphasis placed order more program of the 1974 the Stolee menting than nor- and were traditional education open to pursuant taken on 1992 were orders schools.” desegregation in conventional mally the offered consistent with XXXII-15,683. court by the district schools’ optional issued The opinions and J.A. early in the 1970s. Court an en- programs “offer[ed] and traditional to main, education,” that it is entitled asserts the CMS highly and structured riched implementing immunity for its act XXXII-15,732, pro- open whereas the J.A. without program magnet schools envi- offered a “student-centered” grams desegre- prior approval court because “encouraged [students] that ronment “op- the use of authorized gation orders their behavior and responsibility for take goal for and a racial balance tional schools” XXXII-15,- learning.” own J.A. for their court, I Like the district filling them. by the optional approved schools 733. as magnet plan, schools that the conclude special- and were not as diverse 1974 order by the not authorized was implemented, imple- magnet program school ized as that, rea- and for the court orders prior suggested program in 1992. The mented hereafter, officials CMS sons stated specializing schools by Dr. Stolee offered immunity. are not entitled meth- open educational in traditional schools featur- specialized ods and created Program MagneNCentered 1. science, method; ing the Montessori matter, prior I note that initial As an mathematics, technology; foreign lan- imple- countenance did not court orders immersion; learning pro- immersion guage desegregation plan based of a mentation children; young enhanced edu- grams for Never was magnet schools. primarily on students; academically gifted cation for adopt such given carte blanche CMS programs. See and communication studies approval. court review program absent However, XXXII-15730-41. both J.A. magnet-centered that a CMS counters magnet schools optional schools and the as the district permissible insofar plan was the same end designed to achieve were of a few the establishment approved court of students to a result —the attraction in 1974 as optional schools experimental by using a particular in a location elementary utilizing paired part plan of a teaching tech- curriculum or specialized zones, schools, and a attendance satellite Thus, Stolee, recommending nique. Dr. Swann, F.Supp. system. feeder observed magnet program recognize CMS fails 1103-04. What schools, CMS, “had optional via some its part a small were but optional schools specialized schools.” experience such be- likely plan approved of the XXXII-15,580. J.A. very skeptical court was cause district di- the district court’s 1970 Despite efficacy their about approval obtain court rective CMS order, the In the course of its technique. the court-im- material modifications to for history court noted plan, the court’s posed desegregation by “failure” was marked optional schools schools, approv- skepticism optional and warned CMS regards in a number of ensuing in the process place that took al Id. at creating them. to be cautious specific Dr. recom- years, and Stolee’s began with Consequently, court in 1992 that CMS seek mendation in 1974 experimental optional three schools pro- magnet the new schools approval for only six the number to and increased not to re- chose inexplicably gram, early 1990s. ap turn to the district court to obtain magnet program it might wish to proval plan. At in place see does not flow from this gener- argument before the al appellate proposition. entire court, language CMS contended that I must forcefully disagree with CMS’s in the requiring approv 1970 order contention that the mention of optional al material departures superceded schools in the provided 1974 order legal points the 1974 order. CMS to no implementation cover for the of an assign language in the 1974 order supporting plan ment depending entirely almost argument repeated citations magnet portions schools. The of the dis to and rebanee on pre 1974 orders re trict court authorizing order “optional garding aspects other of this case further perhaps schools” could be read in isolation call into doubt this new line argument. authorizing “magnet CMS’s use of Moreover, the 1974 order made clear that diverse, specialized areas, schools” more herein, “[e]xcept as modified all previous but the order did not CMS to authorize orders court remain effect.” satellites, unilaterally abandon pairing,

Swann, F.Supp. (emphasis at 1105 in exchange magnet-centered feeders for a added). Hence, require the 1970 order’s plan. Despite the import of the 1974 or ment that CMS obtain leave of court “be der, and without even a nod to the district making any departure fore material from court, CMS in 1992 ap abandoned the any specific requirement set out in the proved desegregation plan mag favor of binding order” remained on school offi nets. By the end of the decade CMS had Swann, F.Supp. cials. at 270. fifty-eight magnet created programs — a Nevertheless, cry far from the recognize optional I six schools in operation in year just schools are the school frequently prior used school dis- order, adoption of the Stolee desegregation plan. tricts under a See J.A. see XXXIV-16,721-30. 267, 272, Bradley, Milliken 433 U.S. describes this (1977) (Millik- prior plan as but an S.Ct. 53 L.Ed.2d 745 abandonment II) expansion of the (approving approved optional en use of magnet schools as a tool), Clearly, schools. desegregation “expansion” this was in and that the district reality restructuring court a substantial can “encouraged to use [CMS officials] squared not be unambiguous full with the di their ‘know-how’and resources to at- prior rectives of orders. desegregated system, tain” Swann, Indeed, F.Supp. at 269. 2. Ratios Strict plaintiff-intervenors’ expert own has tout- magnet programs way ed as an “effective if I magnet- Even could conclude that a to attract sizable numbers of white plan permitted stu- centered was prior under orders, dents predominately minority schools.” court plan implemented by Armor, David J. Forced Justice: School CMS is nonetheless ultra vires because it (1995). Desegregation and the Law 223 a rigid sixty percent combines ratio of Thus, a magnet program, properly forty percent schools white and pobey black with a implemented, can no doubt be an decreeing effective that “slots reserved for one race However, desegregation tool. a conclusion will not be filled students of another XXXII-15,702.9 adopt any that CMS was free to form of race.” J.A. My colleagues majority ing desegregation

9. in the on this issue orders. With this I eloquently argue permitted agree deseg- that CMS was school district under order to —a comply- regate take race-conscious measures when must of course take race into account (1971) 31 L.Ed.2d 92 S.Ct. order court issued a chambers) C.J., (describing as (Burger, was “not CMS, that the order noting board’s “under- “disturbing” bal the school of ‘racial upon any requirement based ” (em to achieve required it was Swann, F.Supp. standing at 267 ance.’ to- added). “that that reflected the reiterated ‘racial The fixed balance’ phasis district”). a 71-29 the school composition to reach be made tal should efforts the condi- only upon that there upheld, so goal various in the ratio ratios that one of mathematical contending that “use made tion be no basis will others, in the starting point than a racially different was no more may remedy, norm rather than from the process shaping variations ... but (internal Swann, requirement.” at 267-68 Id. an inflexible unavoidable.” omitted). appeal, On marks quotation set guidelines affirmed Supreme Court Court, years Just two after and also order court’s the district

forth case, clear that strict very made subject quotas. of racial addressed the district unacceptable, ratios were 23-25, 91 S.Ct. Swann, court, permit carefully worded order in a schools, ap optional to create ting CMS goal court’s district regard With the intentionally flexible enrollment an proved seventy-one a racial balance achieving or above 20% black stu of “about formula twenty-nine percent white and percent (em Swann, at 1104 F.Supp. dents.” black, note that took care to the Court added). recog court The district phasis desegre- command constitutional “[t]he enrollment nized that the “actual every that not mean schools does gate by guided may have to optional school always community must every in school by the number composition racial its of the school composition racial the reflect area, by from each not drawn other Swann, 402 U.S. a whole.” system as only.” program space considerations the central to issue 1267. But Additionally, the district at 1108. Id. us, held that had the Court now before “[r]eassign- order directed court’s district jeop must not optional schools ments as a matter of substantive require[d], other composition the racial ardize any particular de- right, constitutional modifications, however, Id. school.” These mixing, or of racial balance gree the type a racial ratio of at no time set disapproved and we would be approach by the district court in disapproved of obliged to reverse. would be by Supreme Court earlier orders and court’s district Winston-Salem/Forsyth its 1971 review Coun also Id.See Scott, 1221, 1970 order.10 Educ. v. ty Bd. of discretion, board, exercising its could primary ques- assigning when students. however, prepare stu- magnet program, ... in order to regarding the "conclude tion Supreme society afoul of the pluralistic CMS ran is whether to live in a each dents ratios, against prohibitions inflexible Court's prescribed ratio of Ne- have a school should per- measures whether race-conscious reflecting proportion gro to white students missible. whole,” 402 U.S. at the district as for a certainly is not the state of S.Ct. this disagree that the the assertion

10. 1 also today it the state of the law law nor was ra- disapproval of inflexible Supreme Court’s adopted. magnet plan At 1992 when the solely tool quotas a a cial least, Supreme very Court decisions pow- remedial on a court’s limitation Education, 476 Wygant v. Board Jackson imply that Court did a er. While the Swann CMS asserts that the inflexible racial CMS’s tortured reading. just Under a adopted limits the 1992 magnet-cen- construction, it is clear that the 1974 order plan tered were countenanced the 1974 did not approve a use of race to the extent discussing optional order schools.11 that CMS could deny eager applicants an making argument, this ignores CMS otherwise available slot in magnet a pro- district court’s choice of words the 1974 gram solely on account of the applicant’s (“about order or above 20% black stu- race. Both the district court and the Su- dents”), Swann, F.Supp. see preme Court in very consistently case points to an attachment to the order rejected the rigid use of such quotas. racial designated exhibit, as Exhibit A. This I also find no authorization for the proposed pupil assignment plan drafted board’s adoption advisory group, citizens called program in Court’s 1971 ap- optional school enrollment “at or above proval in of a Swann majority-to-minority approximately a black 20% ratio.” Id. at policy transfer that would prevent, for ex- added). (emphasis From this lan- ample, an African-American child in a ma- guage, quotas CMS concludes strict jority white school from to a transferring permitted. were CMS’s concentration majority black school because the transfer just (“at portion of the relevant language would degree increase the of segregation above”) edits out the word “approxi- Swann, the affected schools. See mately,” which does not suggest rigidity. U.S. at 91 S.Ct. 1267. Because Even if A Exhibit could requir- be read as majority-to-minority transfer like policy, ing rigid quotas, disregards the fact magnet the admissions policy, prevents a that the district approved court guide- the child enrolling in public the school of “subject lines to the further conditions choice, his argues that the magnet stated” the 1974 in order. Id. at 1103. admissions policy permissible. is By defi- With the Supreme Court’s admonition nition, however, specialized CMS’s mind, magnet quotas about strict in the district programs are not court tantamount language chose its conven- observ- carefully, public tional ing optional schools. While a child schools should “have denied about or above a transfer 20% black from one conventional students.” Id. school to Hence, at 1104. it is the another still general district court’s receives the same ed- ucation, understanding pu- modification a of child denied spe- admission to a pil controls, assignment plan that not program cialized does not receive magnet 267, 283, 1842, III.B, U.S. 106 S.Ct. 90 L.Ed.2d 260 policy section the admissions in no was (1986) opinion (plurality applying scru- strict narrowly sense tailored. tiny to layoff pro- a school board's race-based gram), Co., City Richmond v. J.A. Croson contending rigid In ratios were not 469, 494, 706, U.S. 488 109 S.Ct. CMS, by my used colleagues several of ob- (1989) (applying L.Ed.2d scrutiny strict single magnet serve that not a school program), to a racial set-aside should have precise achieved sixty ratio percent rely alerted CMS that it could not on the forty percent white students and black stu- “pluralistic society” passage from the 1971 surprising dents. This is not insofar as the opinion crafting magnet when a admissions policy designed was to leave seats vacant. policy scope deseg- that was outside the very leaving act seats vacant will com- regation By orders. 1992 such a use of race pel goal. a deviation from the stated Howev- merely discretionary. Prevailing er, way this in finding no undermines a required case law that the racial classification Instead, rigidity. such a result illustrates narrowly compelling tailored to achieve a policy’s inflexibility. Co., state interest. See J.A. Croson at 488 U.S. 494, S.Ct. 706. And as demonstrated nei systems”), existing nate dual in a school. conventional benefit

a similar nor the district opinions the Brown magnet ther words, in a an education In other ever con them implementing orders lan- foreign example, offering, for race, like use of that remedial interchangeable templated immersion, is not guage deny some system, would old dual public in a conventional an education solely opportunities educational students Hence, the effect of school.12 I, 347 race. See Brown of their from the because different is far policy admissions that an (holding 74 S.Ct. 686 at U.S. policy. transfer majority-to-minority by the provided opportunity educational the end result of Unfortunately, to all on available “must be made state poli admissions magnet schools challenged Bakke, terms”); see also equal ahead quotas of racial cy placement (“When J.) (Powell, a 98 S.Ct. re inappropriate educating students —an opportu an individual denies classification in the district countenanced sult nowhere solely by others enjoyed nities or benefits Court’s orders or court’s background, race or ethnic of his because Wright decisions. desegregation Cf. In suspect.”).13 regarded as it must be U.S. Emporia, 407 City Council deed, the Swann bringing suit 451, 463, 33 L.Ed.2d opin with the Brown in accord plaintiffs, (1972) ap should not (holding that courts “into ions, that CMS convert simply asked plan if plan prove “ wherein unitary nonracial chil to some education’ ‘quality offers offered opportunities educational effect dren, adverse has a substantial [but] students available to are made [CMS] available quality of education upon or color.” J.A. to race regard without others”). fact, I struck down Brown XXXIII-16,162 filed complaint (original because children schooling segregated plaintiffs). the Swann opportuni equal denied educational were ra- rigid policy uses I, An admissions Brown ties. See available, unclaimed deny an quotas to cial per were boards 686. While school S.Ct. magnet school to specialized in a slot assigning students to use race mitted white, account child, or whether black unitary system, see to a to order convert with cannot be squared child’s race v. of the Bd. Educ. State North Carolina of Supreme orders or the 1284, court’s 43, 46, 28 the district Swann, 91 S.Ct. U.S. 402 Since decisions. (1971) the use of Court’s (holding that 586 L.Ed.2d that math- clear perfectly it has been abso 1971 is “one tool pupil assignments race starting used “a may ratios as school ematical [a to fulfillment lutely essential remedy,” shaping a process in the point to elimi obligation constitutional board’s] brought on Though present case was might perceive 13. recognize parents 12. I a is "fungible” child denied admission school of white that one conventional behalf school, of a number could superior policy to another because as written magnet reputation of intangibles teachers such as easily child admis- just denied black have However, these of facilities. or newness Hampton v. magnet school. to the See sion rise to level "personal preferences” do not Educ., F.Supp.2d County Bd. 102 Jefferson Hampton significance. See of constitutional (racial 358, quota in a (W.D.Ky.2000) 377 Educ., County 102 Bd. of Jefferson be- resulting in students magnet black school 358, (W.D.Ky.2000). F.Supp.2d 380 n. though the school even ing denied admission hand, schools, are a other Magnet on the capaci- students hundred below several and therefore completely different animal ty). closely process must be more used admissions scrutinized. but not requirement.” as “an inflexible dais’ act of implementing policy with- Swann, See 1267. S.Ct. out prior court approval, albeit while under The district court took heed of this admo- an order desegregate schools, runs afoul permitted nition it when the cre- of the Equal Protection I clause. would optional ation of schools with or “about hold that it does. Swann,

above 20% black students.” added). F.Supp. at (emphasis Under How- the Fourteenth Amend ever, ment, CMS in 1992 ran afoul of rule “[n]o State shall ... deny Supreme announced person Court jurisdiction when within its the equal Const, crafted strict racial ratios designed protection of the laws.” U.S. open leave magnet XIV, empty, § seats amend By 1. guaranteeing equal rather than permitting waitlisted protection, students the Amendment recognizes that to compete for the nothing slots. Because “[d]istinctions between solely citizens be short of gymnastics intellectual can trans- cause of ancestry their very their form the clear meaning of the Supreme nature odious to a people free whose insti opinion Court’s Swann or the district tutions upon are founded the doctrine of court’s 1974 order into vehicles counte- equality.” Hirabayashi States, v. United nancing ratios, the rigid use of racial I 81, 100, 320 U.S. 63 S.Ct. 87 L.Ed. agree with the district court policy (1943). The Supreme Court has re is ultra vires and that CMS officials are fused to make exceptions for so-called “be not entitled to immunity. nign” classifications, racial see Adarand Constructors, Pena, Inc. v. Equal

B. Protection 115 S.Ct. 132 L.Ed.2d 158 Having (1995), determined that offi- and the Court has made clear that cials are not entitled to immunity classifications, for the “all racial imposed by what implementation of federal, the strict state, ever race-based governmental or local assignment policy, actor, I now analyzed must be aby reviewing turn to the question of whether the offi- court under strict scrutiny,” id.14 Supreme 14. application Court’s ignores of strict pillars of the two three scrutiny unwavering. has indeed been equal protection Court's analysis: skepticism Adarand, the apply Court refused to a lesser preferences of all appli- racial and consistent scrutiny standard of to racial classifications heightened scrutiny cation regardless by Congress. Though enacted Congress itself person race of the burdened benefitted. charged enforcing Adarand, 223-24, Fourteenth 515 U.S. at promise equal Amendment's protection via Contrary to the of CMS assertions Const, "appropriate legislation,” U.S. amend. plaintiffs, the approach Swann the I would XIV, 5,§ the interpreting Court in adopt deprive not does a school board under the Fifth Congress Amendment held to the necessary required order of the to tools rigorous same applicable standards to states system. establish a Adarand, and localities. See 515 U.S. at point carefully examining The of the inter- (observing 115 S.Ct. any person, "that government est support asserted the race, of whatever right has the to demand classification, of a racial the and evidence any governmental that subject actor to the offered to show that the classification is justify any Constitution racial classification needed, precisely distinguish is legiti- to subjecting person unequal that to treatment illegitimate mate gov- uses of race in judicial under the scrutiny”). strictest decisionmaking.... ernmental Strict scruti- CMS and the ny Swann contend that not does “trea[t] dissimilar race-based scrutiny strict apply does not though when they equally a decisions ob- were district is under court order to jectionable”; the contrary, dismantle to the it evaluates however, system. approach, dual Such an carefully governmental all race-based deci- remedying of scrutiny, compelling to the interest strict CMS’s

To survive pro past admissions magnet use of race in the discrimination. (1) govern compelling a gram “must serve First, policy was magnet the admissions (2) tai narrowly be mental interest necessary comply not with the court’s v. that interest.” Tuttle lored to achieve the dual educational order to dismantle Bd., County 195 F.3d

Arlington Sch. of system. options had a number CMS (4th Cir.1999), dismissed, 529 cert. deprived it that not have would available 1552, 146 L.Ed.2d 364 120 S.Ct. race, children, of their an solely on account (2000). magnet ad avers the that magnet pro- in a specialized available seat remedy the policy adopted missions Instead, for racial gram. opted rigid system previous effects of the dual school by the clearly prohibited that were limits Mecklenburg County. ly operated and the Supreme district court’s orders the remedying effects of question, Without is desegregation decisions. Nor Court’s compelling a state past discrimination is record that added there evidence the City interest. Richmond v. J.A. of flexibility provision or a waiver would have Co., 469, 493, 109 488 U.S. S.Ct. Croson magnet the of schools as undermined use 706, 102 (1989). L.Ed.2d 854 technique. evidence reviewing policy is In whether magnet not simply does reveal narrowly compelling tailored serve policy only was the effica- admissions used interest, a court factors state considers cious available to CMS. option as: such Second, emphasized this circuit has (1) necessity policy of the must preferences use racial be “[t]he poli- race neutral efficacy alternative not their they limited so do outlast cies; need; may on a their they not take life of (2) of the planned policy; duration v. Law Hayes own.” North State Enforce- (3) relationship the numeri- between (4th Cir.1993) Ass’n, ment F.3d minority goal percentage cal and the (internal omitted). quotation marks Like group popula- the relevant members court, I find “no district can mention tion; racially the duration CMS would use (4) flexibility policy, including vacancies, lotteries, wait- segregated provision goal if the can- of waivers ing Capacchione, F.Supp.2d lists.” met; not remain light CMS’s desire to (5) on innocent policy the burden future, order under court for the indefinite third parties. II.H, see Part the lack of a duration supra magnet policy is not admissions Paradise, See United States content, apparently surprising. CMS was 149, 171, 94 L.Ed.2d instances, (1987) in a to leave number available Like the (plurality opinion). court, magnet empty despite waiting I hold seats would that the CMS narrowly lists. policy admissions tailored ensuring process are while that in the in order to decide which constitu- remedies sions objectionable tionally government and which not. desegregating a actor not does 228, (internal

Id. at S.Ct. citations equal protection by denying on its head stand omitted) (alteration original). This careful opportunities students educational sole- some Court evaluation demanded ly of their because race. preserve proper desegregation will inviolate Third, agree I with the district court CMS unnecessarily causes much agonizing that “the 60-40 goal numerical is related to when it places children of the “wrong col- i.e., population, relevant the racial com or” on waiting lists while it actively re- position of schoolchildren in CMS.” Capac cruits children of the “right color” fill chione, 57 F.Supp.2d However, 289. empty magnet school seats. there is no evidence that CMS considered sum, magnet admissions is policy “practicability achieving precise not narrowly tailored. The policy is not ratio in every school,” magnet id. at necessary to dismantle jure the de system, or the very danger real that magnet is for an duration, unlimited provides for schools would be underutilized because virtually no flexibility, and burdens inno seats would open be left despite an abun cent children and their families. poli The dance of applicants. The result of the cy quixotically purports to equal establish admissions policy is but another indication protection of the laws in the realm of administration, the CMS in the words public education by denying children an Superintendent former Murphy, “was equal opportunity to compete open, more focused on balance than on [edu unclaimed slots CMS’s extraordinary cational] outcomes.” J.A. VI-2687. magnet schools. The withholding of seats Fourth, the district court aptly de- from white students after all African- the inflexibility scribed magnet ad- American wishing children seats have been policy: missions “The Court is hard- given them is most certainly not a narrow pressed to find a more restrictive means of ly program. tailored Such a result calls to using race than process that results in why mind strict scrutiny is used in the holding seats vacant long while waiting first place: “Of all the criteria which lists full of eager applicants are virtually men and women can be judged, the most ignored.” Capacchione, 57 F.Supp.2d at pernicious is that of race.” Maryland 289. policy “restrictive,” is indeed but Troopers Evans, Ass’n v. 993 F.2d it also borders obduracy. The policy (4th Cir.1993). Teaching young chil contained no written provision waiver dren that to a admission specialized aca which, again, once shows a lack of concern demic program with available seats is con highly these specialized schools could tingent on their race is pernicious, indeed and would be underutilized. magnet CMS’s policy admissions can way no

Finally, the described as parties narrowly innocent tai affected are lored to achieve the compelling children denied magnet solely interest slots be- remedying past cause of their discrimination.15 parents race and who “must wait for months without knowing where C. Award of Nominal Damages

their children eventually placed.” will be Id. at 290. A child’s education is one of finding After a constitutional violation greatest concerns of family, schools, and the magnet the district court held presented also diversity as diversity an alter may interest, compelling be a state I 15. compelling native state Capac interest. See magnet would hold that-the policy admissions chione, circuit, 57 F.Supp.2d at again In this fails it is narrowly because tailored. it is unsettled diversity may whether be a Whether remedying past interest is dis- compelling state interest. Eisenberg diversity, crimination poli- admissions Montgomery County Schs., Pub. 197 F.3d cy currently is written sense no narrow. Cir.1999), (4th denied, rt. imagine It is difficult to ce interest for which 146 L.Ed.2d policy narrowly admissions tai- (2000). Assuming deciding without whether lored. to In order the child’s race. count of of in the amount “nominally liable CMS Capac- damages, Cristina nominal at recover F.Supp.2d Capacchione, one dollar.” the un- that absent prove not need chione nominal dam- the argues that 290. CMS been she would have policy constitutional the unjustified because were ages awarded The magnet program. to the admitted viola- in a constitutional resulting actions ulti- is not the case injury present in the fears faith. CMS good taken tion were magnet in the to enroll inability mate the “open will award damages the compete for school, inability to but the other students suits to numerous door Northeastern equal an basis. seats did suffer actual they claim could who Gen. the Associated Chapter estoppel Florida that collateral argue damages and of Jacksonville, 508 City liability.” Contractors denying from CMS prevents of 2297, 124 L.Ed.2d 656, 666, 113 S.Ct. 24. Re- at Brief Defendants-Appellants’ (1993). open “black the two Though the damages, nominal garding magnet Providence at the Olde seats” observed: has Court to white eventually awarded school were have traditionally courts Common-law the official children, the fact remains certain “abso- of deprivations vindicated chil- prohibited policy admissions magnet to have are not shown rights that lute” competing dren like Cristina through the award injury actual caused fact, left two In CMS open slots. making money. By of a nominal of sum Providence seats” at Olde “black available actionable rights of such deprivation while summer unfilled for most proof of damages without for nominal white other and over one hundred Cristina the im- recognizes injury, the law actual In waiting languished on a list. children society that those organized portance fashion, Olde marketed Orwellian observed; but scrupulously rights every- as “a school to benefit Providence time, true it remains same only select one,” reality permitted but damages substantial principle bestowed. for the benefits compete few compensate only to awarded should be or, exempla- in the injury case actual recog- this case award in nominal pun- to deter or damages, ry punitive protection equal importance nizes rights. deprivations malicious ish measure provides some the law under worry about forAs CMS’s vindication. Piphus, 435 U.S. Carey v. already liability has estoppel, (1978) (nominal collateral 55 L.Ed.2d S.Ct. established, vacating the nominal been procedural for denial of damages available change this. Conse- damages would (footnote omitted); see rights) due process district court’s I affirm the quently, would Charlotte, F.3d City Price v. also damages. nominal Cir.1996) award (4th “the (stating that 1241, 1246 dam- of nominal for the award rationale Injunctive Relief IV. pro- should being that federal courts ages for a con- vindication marginal vide some recounting After violation”). stitutional and the constitutional determination status policy, admissions a violation was indeed case there present enjoined “CMS from district court ran afoul violation. constitutional lotteries, prefer use of race-based further when Protection Clause Equal assign ences, in student set-asides designed quota racial a strict adopted F.Supp.2d Capacchione, spe- ment.” available, slot unclaimed deny an injunc- court’s challenges the district ac- CMS to a child on magnet school cialized

347 operation tion as unwarranted overbroad. We constitutional manner in the of injunction grant permanent magnet review the of a or schools other schools in the Tuttle, for an of discretion. See 195 system. abuse represented CMS to the district F.3d at 703. during court both and after trial that it had no of continuing intention a grants perma Before a court plan. for moving stay injunc- a court injunction, nent must first find tion, CMS did not ask that the injunction of necessity—a danger future violations. stayed schools, be to the magnet as Massachusetts, See Connecticut v. 282 prepared was to comply immediately 660, 674, 286, 51 75 L.Ed. 602 U.S. S.Ct. requested court’s order. stay CMS a (1931) (stating injunction that an “will not non-magnet over because granted against something merely 50,000 likely students were to be reas- at feared as liable to occur some indefinite signed in period a short of time. More- future”); time in the United v. Ore States over, there was no presented evidence 326, 333, gon Soc’y, State Med. 343 72 U.S. trial about what proposed CMS to do as a (1952) (“All 690, S.Ct. 96 L.Ed. 978 it takes system. A sta- post-unitary to make the cause of action relief for assignment plan tus student was never injunction is a real threat of future viola court, given to the district and the evi- tion or of a contemporary violation na simply dence does not indicate that “there likely recur.”); ture to continue or to an imminent illegal is threat of action.” 470, v. Bloodgood Garraghty, 783 F.2d 475 Bloodgood, 783 F.2d at 475. (4th Cir.1986) (“An injunction a drastic is remedy and will not issue there A of finding unless is brings unitariness a fresh action.”). an imminent of illegal threat start for the school opportunity board—an tool, Though injunction an may operate flexible a school system compliance “punishment repara be used for with the prospective Constitution. The re- ... past Oregon tions for violations.” lief awarded district court is Soc., 333, State 72 Med. S.Ct. tension with the resumption of local con- trol, 690. which one of ultimate of goals Freeman, any desegregation order. See finding The district a threat court’s Freeing 503 U.S. at S.Ct. future violations centered on CMS’s offer the school district from one court order ing diversity compelling as a state inter only to it with an shackle another was here est. This interest was offered after the discretion, abuse the district court’s district court decided the admissions injunctive we therefore vacate the grant policy using should be reviewed strict scru relief. tiny. Because in circuit it this is unsettled diversity may whether be a compelling Discovery V. Sanctions interest, state Eisenberg Montgom see v. Schs., County

ery Pub. 197 F.3d The district court sanctioned (4th Cir.1999), denied, failing cert. for to supplement its answers (2000), sought 146 L.Ed.2d wit interrogatories S.Ct. list of improper for the base nesses. We review the district court’s injunction management discovery CMS’s unsuccessful de under the abuse policy. At point, fense of we can of discretion standard. See Anderson Advancement, nothing indicating discern in the record Foundation & Educ. Indians, will ignore Employment the district court Am. F.3d (4th Cir.1998). order and to use in an un- re- continue race The record witness” every proposed name of the was fact witnesses list of that no veals the first court on with the until be filed should plaintiff-intervenors to the presented provision This 1-150. trial. J.A. day trial date. At the days before five witness, the clearly for order was pre-trial a list of 174 time, the presented CMS could not reason- twenty-six. and cut to convenience later court’s was which to disclosures apply for sanctions to ably interpreted moved plaintiff-intervenors Besides, if the motion such granted even parties. court other and district to the the reasonable, the the dis- continued court were interpretation The district an part. the inter- plaintiff- supplement week to for one so court’s command trial trict newly dis- the order. depose pre-trial could the superceded intervenors rogatories CMS witnesses, the court held and is evident. Accordingly, closed bad faith expenses and the fees for accountable a of such Second, presentation the depositions. these to trial on the eve of witness list lengthy four-part developed prejudicial. have was plaintiff-intervenors We the court, deter plain- to use when court the the for a district the action of test Without under impose oppor- to had have no mining what sanctions would tiff-intervenors Spe witnesses, Procedure less Rule of Civil much tunity depose Federal to the (1) Thus, must determine CMS’s court trial. cifically, prepare “[t]he properly acted in party non-complying interrogatories was supplement whether the failure (2) faith, prejudice amount bad prejudicial. (3) adversary,

noncompliance caused with the dis- Third, non-compliance such particular for deterrence the need certainly to be needed court’s orders trict (4) whether non-compliance, sort of court’s condonation The district deterred. ef would have been sanctions less drastic to the at a time so close faith bad CMS’s four fective.” Id. An examination encouraged have trial could beginning of of discretion no factors reveals abuse As found improper conduct. repetition of court. the district court, indicates the record by the district of bad First, ample evidence there is interrogato- supplement that the failure case, plaintiff-inter- Early in the faith. “was first time CMS not the ries was interroga- an CMS with presented venors disclosing relevant lacking in candor in wit- of trial asking for disclosure tory 1-305. J.A. important information.” interrogatory, to the response In nesses. prop- Hence, essential to was deterrence appro- provide that it stated would CMS case. management of this er witnesses at concerning priate information sanctions would Finally, less drastic specified in the manner time Permitting plain- have been effective. plaintiff-interve- court. The the district depose witnesses tiff-intervenors discovery, and compel nors moved expenses pay fees and CMS to requiring request that the agreed with CMS CMS appropriate. depositions was for the However, court in- premature. was light sanc- such fortunate to receive respons- its to “supplement CMS structed mea- tion, whether lesser and it is doubtful promised, interrogatories], as es [to the any effect CMS’s have had on would sures known.” becomes when information such conduct. untimely an excuse for 1-195. As J.A. sum, imposed discovery sanctions witnesses, fact relies disclosure of district an abuse of the order, amount to did not which pre-trial court’s discretion. containing court’s list witness provides “[a] VI. Attorney Fees Swann plaintiffs started. If deny we plaintiff-intervenors the ability to be com- argues that the district court erred pensated in a situation such as this— in awarding attorney plaintiff- fees to the where an incredible amount of legal work intervenors. While conceding that Grant required board, and the for improper is entitled to fees if the district court’s reasons, clings to the court’s order —then unitary finding status is upheld, CMS ar- give we to litigants like the plain- Swann gues that Capacchione prevail- cannot be a tiffs effective control over the decision of ing party on this issue. CMS also chal- “when” or even “if’ a unitary status hear- lenges Capacchione’s receipt of fees based ing will sought be they because would be on the district magnet court’s schools rul- only ones who could ever obtain reim- (1) ing because Capacchione only received bursement for their legal prac- fees. The (2) nominal damages, young Capac- tical consequences scarcely are ap- more chione would not have been admitted to parent case, than in this only where the magnet program even if race was not a party ruled entitled to attorney obtain fees factor lottery insofar as her number was for finishing job opposed seeing high. so The district court’s decision to unitary This, status declared. coupled attorney award fees is reviewed an for with the fact plaintiff-intervenors that the abuse discretion. See Hitachi Credit received a court order in their favor on the Bank, Corp. Signet 614, Am. v. 166 F.3d unitary question status as a continuation of (4th Cir.1999). 631 I would affirm. original § action, 1983 leaves me at a loss to how the see district court’s award Attorney A. for Unitary Fees Status of attorney fees § to them under 1988 can be reversed. view, my In plaintiff-intervenors 1988(b) (West 42 Under § U.S.C.A. § entitled under to attorney 1988 fees Supp.2000), “[i]n action or proceeding their successful litigation of the unitary to enforce a provision of 1983 and [§ other Indeed, status issue. CMS has conceded civil rights court, ... laws] its dis- if we upheld unitary the declaration of cretion, may allow the party, prevailing status, Grant would be attorney entitled to States, other than the United a reasonable fees. attorney’s part fee as of the costs.” To be Capacchione, Unlike the Grant interve- a prevailing considered party, party a granted nors were declaratory and in- must “succeed on any significant issue junctive relief related to the issues of litigation which achieves some bene- unitary status magnet and CMS’ fit the parties sought in bringing suit.” policies. Therefore, admission the enti- 103, 109, Farrar Hobby, 506 113 tlement of the Grant intervenors to re- 566, (1992) (internal S.Ct. 121 L.Ed.2d 494 attorneys’ cover directly fees is tied omitted). quotation marks the merits of those claims. began This § case 1965 aas CMS’s Brief at 39-40. de- Surprisingly, action with the Swann plaintiffs seeking spite concession, CMS’s a majority of this conversion of CMS unitary “into a nonra- court vacates the award of fees to both cial system wherein the oppor- educational Capacchione and Grant. tunities offered [the board] are made

By a obtaining of unitary declaration available to regard students without status, plaintiffs, the Grant along XXXIII-16,162 with Ca- race or color.” J.A. (origi- pacchione, finished original what nal complaint Swann commencing an ac- sought original plaintiffs v. what 1988); Monell also § see under tion greatly have Servs., plaintiff-intervenors and the 436 U.S. Social

Department of (1978) litigation of this stages final L.Ed.2d 611 assisted S.Ct. reality. Hence- ac- a unitariness in making (observing that been exception racial classifica- without use of forth, CMS’s “have almost tions unless continua- suits”). essentially a strict requirements § tions satisfies 1965, Capac- begun will no child’s skin of what was scrutiny, tion color a established had chione, believing that assigning, basis for longer permissible pur- brought suit system, unitary school child to a conven- assign, a refusing to dis- that the prayed § suant specialized school or public tional a declaration enter trict court Farrar, See program. (Capacchione I—110 J.A. status. relief declaratory (observing that S.Ct. declaration seeking a complaint amended § ] “if[ relief under may constitute 1-140 status); also J.A. see unitary of to- the defendant behavior of affects of a declaration (Grant seeking complaint (internal quotation plaintiff’) ward the Mgmt. Hold- status); Waste unitary cf. omitted). Moreover, this declara- marks (4th Gilmore, 252 F.3d ings, Inc. v. is status enforceable unitary of tion Cir.2001) (§ seeking declarato- 1983 action it later unlikely event in the against CMS relief). filed Capacchione Shortly after ry po- assignment prior to continue attempts to reacti- moved suit, plaintiffs the Swann of vestiges lices, ground on the say, it with Ca- consolidate and to Swann vate eradi- not been discrimination have prior court The district action. pacchione’s (ex- 113 S.Ct. 566 id. cated. See motion and plaintiffs’ the Swann granted an party prevailing to be plaining that intervene to Capacchione permitted later obtained). be must judgment enforceable a dec- Grant, sought who also in Swann. status, moved to unitary case, then of laration with counter- present In the action, and in the consolidated the plaintiff- intervene of alignment parties, intuitive Af- his motion. granted of into the stepped shoes have intervenors plaintiff-inter- litigation, of origi ter months continued the plaintiffs, the Swann having CMS declared succeeded venors case to action, brought this § nal affirmed on court has unitary, pri plaintiffs, as the Swann a close. Just appeal. active from the to removal case for their ser docket, compensated were dis- now court orders prior With Charlotte-Mecklenburg vices, see Swann using the orders solved, cease CMS must (W.D.N.C. Educ., 66 F.R.D. Bd. as all well children as assign Grant’s of 1975) plaintiffs (awarding the Swann account of students on school public other costs), so too $204,072.33 in fees system is unitary A race.16 their Cir.1998) (not- (4th Hunt, F.3d Capacchione no argues because 16. CMS standing "se- plaintiffs unitary ing that when Carolina longer resides North sought,” they precisely the relief cure[ ] be- CMS's does not alter status declaration standing but who lack plaintiff-intervenors conse- Capacchione and young toward havior litigation may also be to the party contributed prevailing quently Capacchione is not Grant, fees). words, attorney who awarded CMS con- In other to fees. entitled fees, standing entitled has standing concedes Capacchione's lack tends sought decla- originally relief disagree. achieved the I against award of fees. counsels an —a greatly Capacchione unitary status. least, ration of Capacchione’s very because At the result, Shaw is Swann, and under to this Ca- contributed plaintiff-intervenor as a status just fees as Grant. entitled to See Shaw v. pacchione is still entitled fees. should plaintiff-intervenors compen- most of vital information was in the sated for a continuation of the legal efforts hands officials, of CMS’s who were often unitary achieve a and to uncooperative in the discovery process, see remove federal court control. In this re- Capacchione, 57 F.Supp.2d. (ca- at 292-293 gard plaintiff-intervenors have acted as taloging sanctions and threats sanctions “private attorney[s] general,” Independent against CMS), plaintiff-intervenors Fed’n Flight Attendants v. Zipes, 491 persevered and ultimately obtained a dec- 754, 758-60, 105 laration unitary status. But for the (1989) (internal L.Ed.2d 639 quotation actions of the plaintiff-intervenors, CMS, omitted) (alteration marks original), and though having dismantled the system, dual a finding unitariness, obtained which would still be using the district court’s was the objective ultimate of the original orders as mechanisms for attaining other action. XXXIII-16,162 See J.A. (original goals. Despite the progress of the last complaint seeking “reorganization of the decades, three apparently con- school system into a unitary nonracial sys- tent to forestall a finding of unitariness for tem”). Indeed, no disputes one that the the foreseeable Freeman, future. See Swann would have been entitled U.S. at 112 S.Ct. 1430 (observing that to fees if they had taken the initiative to restoration of local control “at the earliest petition for a declaration status practicable date” is a goal of any desegre- instead of oppose acting the result we order). gation Consequently, I believe reach today. that the plaintiff-intervenors, for stepping Without question, the monitoring of a in and finishing begun 1965, what was in school desegregation decree is crucial to are entitled to attorney § fees under 1988 the dismantling of the system. dual for their litigation of the unitary status Missouri, Jenkins v. 1248, 967 F.2d 1251 issue. (8th Cir.1992) (awarding fees in desegrega 1988).

tion pursuant § case According ly, efforts “to insure full compliance and to I would also plaintiff-interve- affirm the ensure that the plan is indeed working to nors’ award of attorney fees, based on the desegregate the school systemf ] are com- unitary declaration, status under this pensable cir services.” Northcross v. Board cuit’s exceptional Educ., circumstances (6th 611 doctrine. Cir.1979). F.2d See Rolax v. Here, Co., Atlantic Coast R. Line plaintiff-intervenors the observed (4th Cir.1950) 186 F.2d progress (holding CMS’s in dismantling the dual system, absent a attorney and statute fees once convinced that full com normally pliance achieved, had been unavailable unless “the they taxation for moved ’ a of such declaration of costs is unitary essential to doing status. In the so do ing, justice plaintiff-intervenors ... cases”). exceptional were faced To with a a recalcitrant school avoid status, board that declaration unitary insist ed none of the Green has clung factors had to the desegregation been decree for satisfied. The Sivann plaintiffs, improper reasons, though II.H, see supra part and having never returned to court complain equitable remedy ordered about the continuation or revival of “would segre- be far complete, justice and gative practices, suddenly claimed attained, that the would not be if reasonable coun dual was not being dismantled sel fees were not awarded” to the plaintiff-intervenors. joined the school board in the quest for Bell School Bd. Powha continuation of court supervision. Though County, (4th tan 321 F.2d Cir. circumstances exceptional on the attorney fees based (en banc)

1963) (awarding Rolax. excep doctrine on case based school when the circumstances tional Magnet for the Attorney Fees B. of evasion “pattern in a engaged board Litigation Schools heavy burden a “cast[ ] which obstruction” A parents”). and their the children on Capacchione also find that would I the involve hamper would contrary result prevailing a he is fees because entitled deseg in school citizens concerned ment of issue. magnet schools on the party permit litigation regation magnet schools that the court held under to remain are inclined boards Pro- Equal violated policy admissions status a eschew order to Amend- Fourteenth tection Clause hearing. damages in awarded nominal ment violation. the constitutional light of re- Court Supreme that the recognize I Farrar, ad- specifically Court as a catalyst theory cently rejected damages and nominal the issue of dressed attorney fees. See awarding for basis status: party prevailing v. West Bd. & Care Home Buckhannon who plaintiff that a hold therefore We Res., Human Health & Dep’t Virginia prevailing a damages is nominal wins L.Ed.2d S.Ct. may plaintiff A § 1988.... under party (2001). However, of fees award damages for nominal payment demand based has been never present case payment may he demand less than no posits that theory, “which catalyst compensatory dollars millions of for if it achieves party prevailing plaintiff is damages judgment damages. A the lawsuit result because desired amount, compensatory whether voluntary change in brought about nominal, the behav- modifies defendant’s (internal Id. at 1838 conduct.” defendant’s forcing benefit for the ior omitted). case, In this marks quotation of mon- amount pay to an defendant the in change voluntary CMS’s was no there pay. would not ey he otherwise clung to the conduct. CMS (internal 112-13, in defense up vigorous a put and orders omitted). of nominal The award final citations trial. A of a two-month course the on the merits constitutes relief down, damages handed and judgment was Capac toward affects behavior to CMS’s be due will in CMS’s behavior change pay. to forcing CMS only by if decree, voluntary chione anot court’s the Hence, prevailing party. ais Capacchione in “voluntary change conduct aWhile act. Hunt, F.3d also Shaw imprima- See necessary judicial the ... lacks Cir.1998) (4th (noting “persons within plaintiff a be change” for tur on the category plaintiff-interve- generic a declara- prevailing party, a considered to fit by courts been found Id. nors have often is far different. status tion of for fees party’ ‘prevailing the rubric in violation of within found be at 1840. Once had Capacchione young That Constitution, purposes”). a district cannot school for a irrelevant lottery number is high a of a the order unitary without declared party status. order, prevailing determination court’s the district Because court. stated, injury in previously act, impetus As voluntary is the not open for inability compete was case rejection any change, behind seats, of admission not the denial magnet Buckhannon does theory catalyst I Because would magnet program. to a attorney fees an award of undermine find that Capaechione rightly prevailed on race or ethnicity deserving is equal dig- issue, magnet I schools would affirm nity under the law. the district attorney court’s award of fees The more question difficult for work this area as well. whether the adoption magnet program at a time when the school VII. board was a court desegregation under reasons,

For the foregoing a majority of order, stripped the Board of its immunity. this court affirms the district court’s decla- I would hold that it did not. Inasmuch as ration of unitary status and imposition the Board did not forfeit its immunity, I discovery sanctions. We vacate the dis- would vacate the award of damages trict injunction court’s because we can dis- against it and the fees and costs assessed cern danger no of future violations. Addi- thereon.1 I tionally, affirm would the finding of a Both the Supreme opin- Court’s Swann constitutional violation in ion and various lower court opinions relied admissions policy, the award of many years upon numerical bench- nominal damages, attorney and the fees marks as an progress indicia of in achiev- pursuant awarded § U.S.C.A. ing school desegregation. That emphasis, however, primarily the work of the WILKINSON, Judge, Chief concurring courts, not the school judicial board. And part: decisions further made clear I, II, I IV, concur in Parts and V of Charlotte-Meeklenburg school could board Judge thorough Trader's opinion. With take the approach numerical of the courts VI, respect to III Parts respectfully I even further in the of devising course de- take different view. segregative remedies of its own. instance, Swann, For the Supreme I. Court itself held that: “School authorities There can be no doubt if the 1992 are traditionally charged pow- with broad Charlotte-Meeklenburg magnet er to formulate implement education- program adopted were today, it would be policy al and might well ... conclude unconstitutional and in violation our in order to prepare students to live holdings in Tuttle v. Arlington County pluralistic society each school should have Bd., (4th Cir.1999), Sch. 195 F.3d 698 prescribed Negro ratio to stu- white of Eisenberg v. Montgomery County Pub. reflecting dents the proportion the for Schs., (4th Cir.1999). 197 123 F.3d Those district as To do whole. this an edu- holdings properly emphasize the ecumeni policy cational within is the broad discre- cal premise of the Fourteenth Amendment tionary powers of school authorities.” every that American citizen regardless of v. Swann Charlotte-Meeklenburg Bd. of Although plaintiffs 1. prevailed Grant Virginia the Dept. have Health and Re Human of regard with to sources, the 598, status determina- 1835, 121 S.Ct 1837- tion, their prevailing basis for was not an 39, (2001) (internal quota 149 L.Ed.2d 855 § action under 42 Accordingly, U.S.C. omitted). tion And the Court has statutory there exists no basis here for deviat- emphasized judiciary that the enjoys no “rov ing rule, from the American Rule. Under ing authority” to award counsel fees "when generally fees are not prevailing to awarded might ever the courts deem them warranted.” parties explicit statutory authority.” "absent Id. at 1843. Home, Buckhannon Board & Care Inc. v. West

354 in to ments) order school optional each 1267, to 28 1, 16, 91 S.Ct. Educ., 402 U.S. these that necessary ends added). fulfill the (1971) (emphasis L.Ed.2d or by grade at integrated ... be schools Likewise, v. Charlotte-Meck in Swann ratio.” a 20% black approximately above (4th Educ., F.2d 383 Bd. lenburg of Bd. Charlotte-Mecklenburg v. Swann of banc) curiam), Cir.1974) (en parents (per (W.D.N.C. 1102, 1108 Educ., F.Supp. the against brought suit students of white added). 1974) (emphasis had es allegedly it board because school the from was removed this case While African-American for a set-aside tablished not Judge McMillan docket active gifted students part to its take students many orders case contains “This ed that: court affirmed This Id. at 383. program. be re effect, could continuing the prohibiting injunction an that those showing proper upon opened held court. We in state proceeding v. being observed.” Swann not are the orders affect suit could plaintiffs’ the Educ,, 67 Charlotte-Mecklenburg Bd. prior comply to efforts board’s school (W.D.N.C.1975); also see orders, F.R.D. includ desegregation court federal Charlotte-Mecklenburg Bd. v. assign Martin Board to the required which ing one (W.D.N.C. Educ., F.Supp. that the schools a manner in such students 1979) board’s the school (upholding proportion the same have about would con which took into plan assignment pupil Id. students. and white African-American student). the race of the sideration at 384. deseg- widely are a used Magnet desegregation court’s the district And It is true device. regation to fairly be read can in this case orders 1990’s, in its board school foreclose, early con rather than encourage, invi- the courts’ accepted eagerly program en here school board duct which the benchmarks. rely upon numerical to instance, Judge tation For gaged. necessary to however, it believe, I “the defendants ordered McMillan latitude at- oyer board some afford race control continuing maintain a obli- desegregative to meet tempting school, ... arid main in each of children rule are not to undermine if we gations each school make-up the racial tain Board leaves the To otherwise law. do encouraged The defendants .... Namely, place. and a hard a rock between resources full ‘know-how’and use their carry out board fails described, if above attain the results order, can cited it by court end achieve the constitutional thus to have not to achieved contempt or held The test is disposal. any means at their aggres- acts if the Board But unitariness. results.” plan, but method order, sively implement Bd. Charlotte-Mecklenburg Swann (W.D.N.C. facing judicial condemnation risks Educ., F.Supp. 268-69 that it grounds on the added). litigation of threat 1970) years And four (emphasis is not vires. This acting ultra addressing optional was later, in an order we should into which quandary of kind schools, precursors of which were are, for better institutions force schools, Judge McMillan ordered an worse, judicial Such under decree.2 must central control that: “Strict respect for undermining risks (reassign- approach all admissions over exercised strongly efforts, just as others believe by this four illustrated quandary in fact is 2. The enough. go far the court did of Board five members very case where its too remedial went far the Board feel and, indeed, just courts encouraging the Board attempts liable its implement opposite. the very policies, and attain very ends, which the courts had it ordered to do. My fine colleague, Judge Luttig, insists point answer is to to a unitary future that the solely issue here has to do with in which the principle of non-discrimina- racial I quotas. have strongly disapproved tion will guide public its actions. See, quotas. the use of such e.g., J.A. Richmond, Croson Co. v. City 822 F.2d II. (4th Cir.1987), 469, aff'd, 488 U.S. 706, (1989);

S.Ct. 102 L.Ed.2d 854 Mary I fully concur in Judge Traxler’s view Ass’n, Troopers Evans, land Inc. v. 993 that the Charlotte-Mecklenburg (4th Cir.1993). F.2d 1072 I Indeed believe has achieved status. I rec- them to be inimical to a national ognize future that some Charlotte, citizens of founded, as the Fourteenth Amendment society’s aware of shortcomings on matters requires, upon respect race, individual and mu may see in unitariness a mocking tual self-regard. Yet to see the issue phrase. sole may Others today’s view embrace here as racial quotas is to miss the of local governance forest as an act judicial for the trees. The cumulative message of abandonment. The luminosity of Brown v. innumerable court conveyed orders to the Board Education is such that many Charlotte-Mecklenburg board over have come to look at courts as our sole many years course of was to do everything guiding lights. Yet they were never possible to desegregate Charlotte schools. meant to be such. If it important See, Swann, e.g., 402 U.S. at courts nurture the task (“[Sjchool authorities ‘clearly infancy, equally is essential that a charged with the duty affirmative to take school district day one depart the comfort- steps might whatever be necessary judicial to con ing homestead and strike out on its vert to a unitary system in which racial own. School districts will be stronger for discrimination would be root finding eliminated way. their own in the long For ”) and branch.’ (quoting run, v. County Green courts cannot serve as the sole source Bd., 430, 437-38, Sch. 391 U.S. hope S.Ct. in the difficult area of desegrega- (1968)) tion, L.Ed.2d (emphasis nor democracy object as the of fear. added). And the school board attempted “Returning schools to the control of local just to do that. To now condemn the authorities at the practicable earliest date Board would be to sanction the future essential restore their true accounta- disrespect disregard for court bility orders governmental system. our When of all sorts. This I am unwilling to do. all state entities participating with it in operating the If an existing infirm, court order is schools make decisions in the absence of better course is modify it through cus- judicial supervision, they be held ac- can tomary processes. Today, we follow countable to the citizenry, political to the approach with our determination that process, and to the ordinary courts in the the school district has attained unitary sta- Pitts, course.” Freeman v. tus. This puts holding the school district 112 S.Ct. 118 L.Ed.2d 108 on a forward, race-neutral footing going (1992). thereby granting truly it a fresh start. The solution to the fundamental Four- question The then is whether the Char- teenth problems Amendment with the 1992 lotte-Mecklenburg system ready for is this plan is not to hold step. the The district court concluded that it dismantled indeed been era have City fensible Bd. v. School Riddick

was. of to right Cir.1986) earned has (4th Charlotte and that 521, 533 F.2d Norfolk, of sensi- more decisions are anew. No unitary begin court’s (holding that involving pub- error). those than tive and difficult for clear is reviewed finding status wrench- schools, is more process no and lic reweigh to for us is, possible suppose, I It matching limited resources that of ing than or or refract evidence needs. educational array of limitless to a myriad a through decision board bymet better dissected, challenges are these But record, thus lenses. While and, thir- after by courts than im- communities its share reveal found to would supervi- judicial sporadic years of ty-five court’s the district a reversal perfection, If come to conclude. sion, time has profound do a unitariness would finding of human is a now, Each child when? not The of Charlotte. people to the disservice task of If this essential to educate. Charlotte, being Trax- Judge as history recent de- daunting for too demonstrates, has become not education is opinion careful ler’s or we are not who then I know mocracy, Rath- intransigence. and one of resistance we shall become. struggling what community a er it shows pe- a obligations in desegregative meet its Judge Niem- say I am authorized change. demographic staggering riod of opinion. in this joins eyer are African-Americans importantly, Most in the elective both vigorous participants concurring WIDENER, Judge, Circuit regard to with process and deliberative dissenting: and schools. Charlotte’s parts of from in or dissent I concur prog- course, majority’s sense of Of vari- and its the court opinions of various great sense of the dissent’s may be ress below, I members, indicated as ous suppose let us And business. unfinished the failure dissent respectfully also right. are both moment that just judg- the items to review the court pro- court Still, that interminable I doubt ap- from which court the district ment of to Americans convey ceedings can peal is taken. enterprise we are in sense depends litigation For together. education I. alignments, on adversarial energy for its plaintiffs i.e., Swann board and the school e.g. opinions, judgments, review We tentatively aligned, but Swann are USA, Res. v. Natural Inc. Chevron Def. plaintiffs Capacchione Council, democracy has And while decidedly not. Sullivan, (1984); Hyatt 81 L.Ed.2d conflict, reaching decision shortage of no Cir.1990). (4th n. 10 F.2d the communi- compromise within court, copy the district judgment of compulsion to the external ty, opposed A, is as Exhibit hereto is attached of which order, a better mutual promises which into five are: parts, divided firmer common understanding and a Charlotte-Mecklenburg 1. The ground. in all respects; are declared sense, In this hope. is the That at least de- injunctive orders prior 2. All an act of abandon- then, is not unitariness case are vacated in the Swann crees It reflects of faith. a covenant ment but and the case dismissed rec- dissolved belief, by this supported well judicial prejudice; inde- of an ord, practices invidious

3. The Charlotte-Mecklenburg 1,1 as to Item vote that the attorneys’ fees pay shall damages nominal to the for work done on unitary issue, status Plaintiff $1; Intervenors in the amount of other case, issue tried in this except a few dollars relating to Miss Ca- 4. Charlotte-Mecklenburg schools are pacchione’s moving, should granted. enjoined assigning children to schools however, The majority, while it denies fees or to allocate opportunities educational on on issue,” “the status apparently race; the basis of does not immediately mention the fees 5. The Charlotte-Mecklenburg school Capacchione’s Miss attorneys, amounting system will pay fees, attorneys reasonable to the $700,000, sum of about and one expert fees and costs of the Plaintiff-In- might think from reading the per curiam tervenors. opinion that they yet were awarded were it court, And the district order, another not for the next-to-the-last line of per imposed sanctions on the A defendants. curiam opinion denying fees “for any rea- copy of parts relevant of that order is also son.” attached as Exhibit B. As per Item of the curiam opinion, I I vote to affirm judgment am in agreement with court, the district district court each respect, including the the school board should have come order, sanctions that I except would vacate to it back for authority to magnet establish judgment of the district court as to schools in which race of the applicant above, Item listed in Part I only on the was considered deciding whether or not ground it is unnecessary, the school board grant admission. The district court so having given no indication that it will not construed orders, own which it is best comply with the orders court do, able to and to which we must give due case. deference. Anderson v. Stephens, 875 (4th F.2d Cir.1989); 80 n. 8 Vaughns II. Board Educ. Prince George’s County, Despite universally accepted appellate (4th Cir.1985). 758 F.2d I need procedure that we judgments, review not go no to affirm further the holding of the opinions, the other court, members of this district court. I am opinion that Miss without mention of judgment of the Capacchione’s Constitutional rights were court, have per divided a curiam violated she when was not considered for opinion issues, into four only the last two admission school program which, injunctive concerning relief and notwithstanding her race and that she is sanctions, relate directly to judgment entitled to damages nominal ac- of the district we are reviewing. count. Bain, Norwood v. 166 F.3d 243 issues, The first two per stated in the (4th Cir.1999) (en banc). court, curiam opinion of the are phrased Also as Item although I feel by a floating majority. question of immunity has little or noth- Only because majorities each of those ing case, to do with this because it being declines to vote to affirm or reverse the used to rationalize that the at- successful various items of judgment of the dis- torneys do get attorneys’ their fees court, trict I will attempt to relate my and that nominal for a damages Constitu- votes to the per opinion. curiam due, tional violation are not I vote that the As to Item I vote the school did not board have immunity from system has achieved unitary status. payment fees, Also the nor attorneys’ immu- later, de- over the and million say, almost $1.5 is to that damages, nominal nity from board, of the school opposition termined opinion, curiam per the language

in the to be held has been the school forfeited. been has may no magnet schools the unitary and 4, curiam per the and As to Items applicant race of the the longer consider my votes. correctly states opinion is All this denying admission. granting Capacchione. Christina at the instance of III. their filed the Swann plaintiffs When this case interruptions, only slight With ago, their years 1965, than 35 more suit 22 years for status inactive had on been of students the race was that complaint the started Capacchione Christina until as- determining their was considered her first filed when she litigation present schools, same precisely to signment 5, 1997, seeking September on complaint had Capacchione that complaint Christina mag- to the for admission to considered be de- the Swann case was When in 1997. to her regard without program net school the district inactive clared to 6,1998, the district When, March on race. time, attorneys’ fees court, awarded reacti- the Swann litigation ordered court attorneys, for plaintiffs’ to the and costs Swann vated, motion upon the in the amount through service the Capacchione it consolidated plaintiffs, other doubtless $204,072.33, there are and Miss Ca- litigation. Swann suit with readily available not presently such items complaint on her then amended pacchione Capac- hold now me. For us to a declaration to request March are plaintiffs child and Grant chione reached system had that the consideration, as same to the not entitled on March and status moved eradicating the Swann plaintiffs, were Swann litiga- reactivated in the intervene fair and certainly not assignments racial granted. tion, which motion we are How my opinion. legal, in not even their filed subsequently plaintiffs Grant and Capacchione hold able to in the intervene motion to complaint in this and intervenors plaintiffs Grant 8,1998. April Swann litigation § in a parties are not successful case her filed Capacchione Christina When breaking beyond reason action strains Charlotte-Mecklenburg suit, costs, they are due opinion, my point. mag- admitting students only were fees, under attorneys’ etc. expenses, consid- having program after net school § 1988. 42 U.S.C. system was race, and the school their ered the en banc holding of to the Especially racially-based pupil to the submitting itself eand Grant court, Capacchion to the response imposed in assignments entitled and intervenors years some the district orders of etc., costs, respect I attorneys’ fees inactive been before, having then suit fully dissent.* Now, years four years. for some

* C. as Exhibit attached and costs is summary fees My of such A

EXHIBIT IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN OF DISTRICT CAROLINA NORTH

CHARLOTTE DIVISION

JUDGMENT of Decision and Order filed with the Memorandum accordance ADJUDGED, IT IS ORDERED with this Judgment, simultaneously ("CMS") Schools Charlotte-Mecklenburg DECREED that AND in all declared hereby respects. ORDERED, ADJUDGED, AND DECREED that rr IS FURTHER or decrees entered in Swann v. orders Charlotte- all prior injunctive Educ., (W.D.N.C.), Bd. No. are VACATED Mecklenburg DISSOLVED, DISMISSED WITH and Swann is PREJ- hereby AND UDICE. ORDERED, ADJUDGED,

IT FURTHER AND DECREED IS Intervenors") and Grant et al. "Plaintiff (the not enti- Capacchione to an award of actual but CMS shall nominal tled dam- damages, pay to the Plaintiff-Intervenors in the amount of one dollar ($1.00). ages ORDERED, ADJUDGED, IT IS FURTHER AND DECREED that children to schools or enjoined edu- assigning allocating lotteries, benefits cational race-based through opportunities pref- erences, set-asides, or other means that students an deny equal footing on race. based ORDERED, ADJUDGED,

IT IS FURTHER AND DECREED that fees, fees, shall reasonable attorneys’ costs pay expert Plaintiff-Intervenors. This the 9th day September

Is/ D. POTTER ROBERT SENIOR UNITED STATES DISTRICT JUDGE

EXHIBIT B IN THE UNITED STATES DISTRICT COURT THE FOR WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

ORDER THESE MATTERS are before the Court on a Motion by Plaintiff Capacchione and Plaintiff-Intervenors Grant (hereinafter et al. collec- "Grant"), filed tively April for Sanctions against Charlotte- Mecldenburg Board of Education for Non-Disclosure of Witnesses 152], no. [document Defendants Charlotte-Mecldenburg et Schools al. ("CMS") filed response April

NOW, THEREFORE, IS IT ORDERED that Grant’s Motion for Sanctions against Board of Charlotte-Mecldenburg Education for Non-Disclosure of Witnesses be, no. hereby is, [document and 152] GRANTED.

This the 23rd day April

Is/ The Honorable Robert D. Potter Senior United States District Judge EXHIBIT C

Fees and Hours Firm by Total on of the suit both merits Grant and expended Capacchione = $1,481,295.47 6,428.95 and costs of Fees hours = Total on fee both Grant and Fees expended petition Capacchione $17,721.00 and costs of and 74.35 hours

Total on all fee all expended litigation (including petition) by plain- = $1,499,016.47 6,503.2 tiffs hours

A. Counsel for Capacchione

(1) McGuire Woods Battle & Booth (John Pollard & Kevin Parsons) = $390,791.98

Fees on the merits = 1,954.5 Attorney Hours the merits staff = $4,000.00 Fees bringing petition for fee = Attorney hours 21.2 bringing petition staff fee (2) Bateman, Robinson, Magenheim, & Helfand Wrotenbery (William Helfand) = $325,331.51

Fees on the merits . - and Attorney 1,553.85 Hours on the merits staff = Fees $3,372.50 bringing petition for fee - and Attorney hours 17.8 bringing petition staff for fee = $716,123.49 for Total on the Capaccione merits 3,508.35 and hours = for Total for Capaccione $7,372.50 fee petition bringing and 38.9 hours

B. Counsel for Grant Plaintiffs Parks,

(1) Chesin & Miller (A. Lee Parks) =

Fees on the $471,794.00 merits = Attorney and Hours on 2,160.7 the merits staff = $9,750.00 petition bringing Fees fee for = 32.50 petition bringing hours fee Attorney for staff Ashcraft Thomas (2) = $159,579.00 merits on Fees = 759.9 merits Hours Attorney staff = $598.50 petition bringing Fees fee for = 2.85 petition bringing hours Attorney fee for staff Parks and awarded Potter order, Judge a supplemental (3) litigating incurred $133,798.98 expenses for jointly Ashcroft merits. = 2,920.6 $765,171.98 and merits on the Plaintiffs for Grant

Total hours = $10,348.50 and fee petition bringing Plaintiffs for Grant

Total hours 35.35 (and I seats been allotted have norities

LUTTIG, concurring Judge, Circuit context dissenting remedial fixed ratios judgment part assume insufficiently tai- part: constitutional), judgment to be scrutiny. to withstand lored the court opinion I concur System Charlotte-Mecklenburg School only to the separately myself I address of feder- following years unitary, is now autho- the district court question whether agree with I also supervision. al court quota mathematical strict rized Judge Traxler reached conclusion in 1992 to Board by the School adopted the re- acted without the School Board govern admissions Charlotte-Mecklen- from the district quired authorization program, quota magnet school burg’s expansive magnet it created both when noted, literally to that, officials required imposed when program and all even after interest- seats unfilled leave admissions quota govern fixed an minority been afforded students had ed the creation program. Neither attend the opportunity to imposition nor the program magnet school choice. their into admission quota governing of a rigid by the dis- authorized program were court, clearly constituted trict and both I. the district from changes”

“material pro magnet school respect to the With orders, requiring prior court’s remedial holding of the policy, gram’s admission agree with I also approval. prior court is that court that we review district that, conclusion narrowest Judge Trader’s rigid rejected the use “firmly had court such, an necessity for proven absent a 228, 286 F.Supp.2d quotas,” racial em- permanently program admissions that, (W.D.N.C.1999), in contravention and students, deny certain ratios to ploys fixed Court’s Supreme orders and the of those race, opportuni- solely because their Charlotte-Mecklen decision Swann will otherwise compete for seats that ty to Educ., 1, 25, 91 S.Ct. burg mi- Bd. targeted after all be left even unfilled (1971), 28 L.Ed.2d 664 the School and all conduct that is merely unforbidden Board had mathematical ratios by judicial “us[ed] not order. starting as a point ending point.” but as an And finally, the issue is not whether 57 F.Supp.2d policy at 289. “In racial quotas are or are not constitutional. practice, the[magnet schools’] ratio 60/40 There simply is no occasion in this case for requirement an quota[,]” [was] inflexible general expression viewpoint as to the found, the district court id. at and, use of racial quotas although I am “slots reserved for one race not be [would] given pause Judge over Wilkinson’s ex- by filled students of another race.” Id. at press categorical rejection of racial Indeed, observed, the court “it was quotas, circumstance, whatever the I cer- not year uncommon for the begin to tainly express general no such view herein. remaining seats vacant stu- because I might presented well be with circum- dents of one race would disrupt the de- stances in which I would conclude that sired racial balance.” Id. Accordingly, the racial quotas were essential to the vindica- district court held that tion of right. constitutional IAnd would program constituted a “material depar- be most reluctant to myself foreclose ture” prior from the court’s remedial or- such a conclusion an appropriate cir- ders. Id. at 287. by cumstance statements in a case in As to rigid quota whether the imposed which the issue was not even before the by the School Board was by the authorized court. court, question is not whether Rather, only issue relevant to the the court’s orders authorized race-con- question of whether the School Board is decisions, scious admission as the School entitled immunity to is the district whether argues, Board see Br. of Appellants Char- court specifically the School authorized Education, lotte-Mecklenburg Board of et imposition (i.e., Board’s rigid quotas (“The al. at particular whether the Board pursuant was acting

tool struck by Judge mag- down Potter — court in imposing order quotas), fixed net schools with race conscious admissions which denied students the opportunity guidelines repeatedly been recog- —has compete for solely unfilled seats because of by nized Court and other their If race. the court specifically did courts as a valid exercise of the broad authorize the use of fixed quotas, then the remedial discretion of both district courts School Board is immunity; entitled to if it authorities.”), and school Judge not, did immunity then is unavailable. Motz and Judge Wilkinson by contend way See, on this authorities score are uniform. of strawman. It indisputable that race- e.g., McCray v. Maryland, 456 F.2d conscious admission decisions were autho- (4th Cir.1972) (observing pro- that the law orders; rized the district court’s immunity vides for those even the whose actions are argue that they were “in judicial not. taken obedience Neither is the order or question whether par- direction”); required orders, ties are under the court’s obey see also Rog- (8th only question ers v. Bruntrager, 841 addressed F.2d authorities Cir.1988) Motz; upon by Judge course, relied (holding of that clerks of court are they are. question Nor is the immune damages arising from from whether acts quotas they were “foreclosed” by “specifically the district required to do under orders, direction”) (inter- court’s Judge court judge’s as Wilkinson at a alterna- order maintains; tively omitted) it should be that nal added); evident (emphasis citations party Hoenstine, does not receive immunity for Lockhart v. 411 F.2d litigation, both very in this itself Cir.1969) immunity for offi States (3d (providing disavowed order); consistently and explicitly to” a court “pursuant act cers who rigid of Educ., legitimacy constitutional Bd. use and Philadelphia v. DeFelice of cf. year his- thirty-plus (E.D.Pa.1969) (extending throughout the quotas F.Supp. desegre- Charlotte-Mecklenburg’s take ac tory that of boards immunity to school fact, of com the course order of a state gation to an efforts. pursuant tions Forst, mission). v. even the Charlotte- Compare very litigation, Wilkinson Cir.1987) (2d 1330, 1334 (granting has strenuous- Board Mecklenburg 832 F.2d School who conducted officers immunity to fact the constitu- against the and ly argued by court authorized” “specifically quotas searches any judicially-imposed tionality of orders) City Baton Wooley v. court. Cir.2000) (5th 913, 927 211 F.3d Rouge, re to officers who immunity (denying A. “spe a home without child from moved a court). by a Whether cific authorization” years ago, thirty-two Beginning over matter, are, general aas quotas racial McMillan litigation, Judge this identical to nothing whatsoever has constitutional well-recognized acknowledged the himself If the of this issue. do with resolution between distinction and well-understood quo strict racial district court authorized rigid quotas, decisions race-conscious tas, Board is entitled then the School and vari- by Judge Motz ignored which is quotas strict or not such immunity whether by Judge misunderstood ously ignored and are constitutional. not have today. And he could Wilkinson this is- misunderstands Judge Wilkinson permit that he would been clearer his evident from both altogether, as is sue integration of pursuit former unnecessary discussion extended but Charlotte-Mecklenburg system, mistaken and his quotas general racial he never wavered latter —and forbid the here I “the that “insist” issue observation McMillan Judge position. Said from quotas.” with racial solely do has time, import is in terms whose at that contrast, Motz, in understands Judge us, al- for the issue before unmistakable resolution but errs presented, issue in elimi- may be considered though “[r]ace fundamentally upon of a reliance because system,” in a school nating segregation inapplicable authorities. Bd. Charlotte-Mecklenburg Swann (1969), Educ., F.Supp. II. be set.” pupils not ratios will “[flixed court did certainly the district Most added). Judge McMillan’s (emphasis Id. Board School specifically authorize ratios repeating: “Fixed bear words in the admission quotas fixed employ in emphasis not be set.” And pupils will schools, the dis- to its students between fixed he drew of the distinction even There is not held. trict itself race-consciousness, he noted ratios Indeed, although it did. argument an be made “efforts should although the board is holding that fatal to them ratio in the various 71-29 reach a immunity, Judges Motz entitled to contend- no there will be basis so that otherwise. suggest do not even Wilkinson racially different is one school ing that they. Nor could others, necessary] to under- [it from the may norm variations stand that ques- very district court only Not added). (emphasis Id. be unavoidable.” tion, of the United Court but

367 later, Judge two months Only only McMillan order on the condition that it not be repeated that his order “[was] not based read to authorize fixed rigid quotas: ” balance,’ upon any requirement of ‘racial we were to read the holding If of v. Charlotte-Mecklenburg Swann Bd. District require, Court as matter of of Educ., 265, (1970). F.Supp. 311 267 He substantive right, constitutional any explained no uncertain terms that the particular degree racial balance or of ratio, earlier-referenced 71-29 which our mixing, that approach disap- would be today court holds specifically authorized proved we would be obliged re- imposition of an inflexible was quota, verse. The constitutional command to a starting point in merely pursuit of the desegregate schools does not mean that goal desegregation. of See id. at 267-68. every in every school community must always reflect the composition racial of later, year

And a Judge again McMillan school as a whole. rejected fixed, explicitly rigid quotas, re- “ emphasizing that ‘racial balance’ is not Swann v. Charlotte-Mecklenburg Bd. of Educ., required by 1, 24, this court.” Swann v. 1267, Char- 91 S.Ct. Educ., (1971) lotte-Mecklenburg Bd. L.Ed.2d added); (emphasis see of (1970). Indeed, F.Supp. also the court Winston-Salem/Forsyth County Bd. recited, Scott, previous order “expressly 1221, 1227, con- Educ. v. of templated (1971) wide variations S.Ct. permissible 31 L.Ed.2d 441 (Burger, C.J., Chambers) population.” Id. (describing as “disturb- ing” the School Board’s “understanding B. required was to achieve a fixed ‘racial balance’ that reflected the total McMillan, only Not did Judge in his own district”). composition of the school Only orders, repeatedly reject the use fixed a “very limited use” of ra- “mathematical quotas, Supreme Court of the United tios,” as a “starting point,” was within the States, in reviewing Judge McMillan’s or- “equitable remedial discretion of the Dis- ders, categorically rejected an urged even Court,” trict id. at 91 S.Ct. held construction these orders that would the Supreme Court.1 quotas. authorize fixed In reviewing Judge McMillan’s Order February, And, in perhaps the powerful most testa- (Swann v. Charlotte-Mecklenburg Bd. ment of all to the fact that this district Educ., (1970)), 311 F.Supp. intended, the Su- court never much specifical- less preme stated, Court unambiguously ly quota authorized a of a type majori- passage that should be dispositive ty did, today holds that it the School Board the district previously, whether itself expressly argued to the certainly any thereafter, specifical- time Court of United States Swann both (or otherwise) ly authorized use of Judge McMillan in- “disclaim[ed] quotas, that it affirmed Judge McMillan’s require tent to racial balancing,” Respon- Swann, opinion In the course of its holding imposition that the School Board's board, course, stated that a opposed Court as quotas permissible. fixed Of court, to a possess realizes, federal would the discre- even the School Board this is mis- tionary power reliance, to direct placed that its schools main- for whether or not the Board prescribed tain “a Negro ratio possessed to white independent authority impose reflecting proportion students rigid quotas for the dis- entirely irrelevant trict as a whole.” 402 only question U.S. at before us of whether the Board Judges 1267. Both Motz and seize immunity acting Wilkinson is entitled to because it was upon passage as if it supported upon their order of the district court. of explicit condemnation Supreme lan- Court’s plain that the Br. at and dent’s Swann, equal with it was dealing in answered order such court district of the guage in court (“about the district by or above clarity repeatedly enrollment with student Swann, in In- 20%”) quotas.2 wake of not set the actually did orders entered court undeni- before and deed, that was at obvious the Board the which were authorized quotas Supreme that racial Court’s argues respect the pains able the Su- McMillan, before argued be set. by Judge not quotas that inflexible injunction the consti- beyond that it preme Court after same month issued the In an order court to district authority of the tutional Swann, decision Supreme the Court’s (“absolutes”), would as such impose quotas he confirmed that again Judge McMillan court’s own on the district based have been ra strict permitted nor neither authorized wrong, right and “subjective” notions First, Board the School when quotas. cial Constitution, of the mandates not on the racial improve a school to to close asked violate Br., and would at Respondent’s pro the balance, rejected Judge McMillan by the Four- rights guaranteed individual finding deviations decisively, posal and those blacks “of Amendment teenth justifi an insufficient percentages targeted move- the forced mass up in caught whites v. Char such action. Swann cation for neigh- their away from children ment of Educ., lotte-Mecklenburg Bd. of In an 1267. Id. at borhoods.” (1971) 1346, 1348 (refusing to close F.Supp. over- ironic acquires that now observation stu of white the number a school where the School light its own tones of that by percent two than less dents was were that posture quotas current Board’s beginning in the the school assigned to court, Board the by the authorized district the greater “than year percent one the and posi- respect to argued in Swann plan”). for under called proportion Court) (also by Supreme rejected tion any that contention belies language And Judge by that, intended although not quotas, strict authorized that the court McMillan, should nonetheless his order flat rejected a ban Judge McMillan racial effectively requiring construed tar that alter the would student transfers the coun- ironic that is balancing, “[i]t school, or instead geted a composition compulsion outlawed terpart could that the Board only School dering II in the I employed now Brown a child to a school allow assign Is it trite name of Constitution. a different from child to attend make a wrongs do not that two suggest at the start of the attending one he was Id. right?” year, if “the cumulative result C. tends any given period assignment such substantially to restore or to increase Judge any question as If there were trans- in either segregation degree rejection of fixed quotas, McMillan’s school.” Id. transferee feror or the in the face of can be none there frankly added). (emphasis own disavowal Judge McMillan’s employed Swann, the court School doners maintained petitioners like 2. "starting merely as a ratio Board, argued Judge nei- 71% 29% McMillan also " goal,” yet 'ex- guide,” specific, flexible imposed a in his "a quota intended nor ther accept degree of willingness pressed In construction desegregation order. " ” modification,' 'departed from it where tracked the only that not court's order " Br., required.' Petitioners' circumstances language, was ulti- unambiguous but order's Court, peti- mately adopted later, years Two Judge McMillan em familiar with the of history litigation, ployed essentially the same carefully craft and especially Supreme Court’s then- ed language, again distinguishing between recent explicit rejection of any construc- “racial on identifiability” one hand and tion of Judge McMillan’s orders that would quotas other, strict on the Swann Char impose a quota on the Board, School as lotte-Meckleriburg Educ., Bd. 362 was Board, of the School the purposeful dis- F.Supp. (1973), 1228-30 invoking the tinction between race consciousness and language of “reasonably stable [pupil dis rigid quota by drawn Judge McMillan in tribution],” “substantial [leeway for use of his 1974 order could not any clearer. sense],” discretion and common and “[rem edy gross for] unfairness ‘legiti [as the III. target court,’ mate of a as contrasted with Indeed, foregoing the implausible argu- ‘perfect fairness’ which ‘impossible ments by embraced the majority, not even 1229, 1231, 1238. Id. at attain’].” the School Board seriously argues before And, finally, the district court us that the district court authorized strict entered the order that the School Board quotas should be giv- unsurprising, —which contends, and Judges Motz and Wilkinson en its argument own early as 1970 that accept, rigid authorized the quotas in dis- such were unconstitutional and its first- pute. Contrary to the Board’s assertion hand knowledge that Supreme Court and my colleagues’ belief, however, that had categorically rejected the use of such order, too, likewise carefully and deliber- in this very litigation. To the Board’s ately preserved the elementary distinction credit, it does not even attempt argu- between flexible ratios starting as a point ment made Judges Motz and Wilkinson to bring segregation end, to an which the that the language of the district court or- Supreme Court had held were constitu- ders itself authorized quotas. Rather than tionally permissible, and quotas, strict focus on whether the district court orders which the Supreme Court had held were imposed or rigid authorized quotas, as to constitutionally impermissible. Retaining says which it nothing, Board noticeably just that amount of flexibility essential and notably passes instead very to the the exercise of Supreme what the Court different argument that poli- its admission only years two before had admonished was not, cies were practical matter, as a tanta- limit its power, constitutional Judge mount to insistence upon rigid quotas as McMillan ordered only optional “[t]hat the evidenced by the ultimate variation in the enrollments will be controlled start- racial make-up of ing with 1974 schools. so they are open to all Appellants’ 15; county Reply Br. at residents Appellants’ and have or above about Br. at 21 (suggesting 20% black students.” that the Swann v. “manner in Charlotte- Mecklenburg which Educ., Bd. CMS admitted students mag- to its F.Supp. (1974) added). net schools (emphasis fully Fully consistent with these aware that the Court orders and not rigid had forbid- and inflexible” be- den imposition quotas, cause of the School Board existence of “[significant vari- itself did not even request ance” authorization goal). the initial “[signif- This impose quotas. strict Tellingly, variance,” icant course, the Board is not due only submitted for the district ap- flexibility court’s process, admissions but proval policy requiring that each school instead to rigidity to the extent of maintain a black population student leaving of “at unfilled seats that were reserved approximately above 20%.” anyone To particular race, for a in the even of a face palpable lack as best evidenced races. different students

waiting list of opin- by the combined demographics support summoned event, ultimate and Wilkinson Judges Motz to the thresh- ions of whatever no relevance have insupporta- simply holding, the dis- us of whether behalf before question old autho- specifically or did ble. trict did rigid quotas employ to

rize Board the message of innumera- “The cumulative ques- magnet to its schools—a admissions conveyed to the Char- court orders ble silence Board’s which the School tion toas the course lotte-Mecklenburg over board speaks volumes. not, Judge actually was many years” asserts, possi- everything “to do Wilkinson IV. schools.” desegregate to Charlotte ble and explicit repeated facts of the “everything to do It was Post at 366. this dis- quotas by rejection of consistent desegregate Charlotte-Meck- to possible” for over very litigation in this trict court schools, ra- except employ strict lenburg’s by rejection categorical years; the thirty quotas. cial States of the United Court the court’s or- the district any construction of rigid quotas; require KING, that would

ders & MOTZ DIANA GRIBBON before the argument Board’s own School Judges: Circuit rigid quotas Swann Supreme Court today reverses majority of the Court A by the or ordered never intended

were the use of a finding that court’s the district been, that, court, if had they district by the Char- policy race-based admission unconstitutional; and the such would of Education Board lotte-Mecklenburg (and candid, if indi- frankly, tacit Board’s “Board”) (“CMS” mag- expanded in its rect) before this its briefs concession Equal program violated net schools not autho- court did that the court district of the Constitution Protection Clause any ar- beyond renders rigid quotas, rize thus vacates the the United States —and that the contention gument relief, and monetary injunction, attendant scope outside Board acted School significant Every award. attorney’s fees adopted when it orders the district court’s magnet expanded schools aspect permit stu- refused to rigid quotas pro- including the use of racial program, based open for seats compete dents to to assigning students portions merely had race Not upon their alone. schools, judicial de- authorized the School authorized court never case. governing this orders segregation It ex- quotas. had rigid use of Board’s obey court obligation to these The Board’s so, as do it would not pressly stated that at- constitutional it from orders insulates And, if this well. the Board itself knew compliance with taken in tack for actions very School enough, at alone were not injustice be the rankest them. It would behest, had been the district Board’s a constitutional Board liable for find the authority than the an by no instructed less violation, monetary dam- subject that it of the United States Supreme Court fees, when attorney’s ages enormous have been without constitutional would program was expanded magnet schools require- an inflexible power impose such comply with attempt to simply good-faith a of Charlotte- county on the officials ment by fed- imposed desegregation orders to. The had it wanted Mecklenburg, even an unlawful dual remedy eral courts the district on this record holding Thus, is, for reasons system. quotas use of strict court authorized the III, IV, V, fully explained parts more segregation litigation, in which CMS has opinion, and VI of this the magnet played prominent role.

ruling must be reversed and accompa- Even slavery after had been abolished injunction, nying monetary damages, and for almost full century, African-Ameri attorney’s fees award must be vacated. were, can children part, the most either excluded from public schools or edu

However, separate majority severely cated separately from white children. “In in upholding errs the district deter- court’s fact, any Negroes education of was forbid mination CMS has achieved unitary den law in some states.” Brown v. Bd. majority expresses status. This its “satis- Educ., 483, 490, faction that CMS has dismantled the dual (1954) (“Brown I”); 98 L.Ed. see also system.” Traxler Op. at 7. For the Martin v. Charlotte-Mecklenburg Bd. reasons set forth in II parts and VIII of of Educ., (W.D.N.C. 1318, F.Supp. 475 opinion, this no one should be satisfied at 1979) (“For three centuries racial segrega this Nothing yet time. demonstrates land.”). tion was Indeed, the law of the has eliminated all vestiges of the throughout early part 1900s, the of the unlawful long discrimination that per- has operated a segregated school system meated its system. school In holding to within the by safe harbor created the Su the contrary, majority the only has suc- preme Court’s “separate doctrine of but in dashing ceeded here the hopes of the equal” in Plessy articulated v. Ferguson, citizens of Mecklenburg County, particu- 537, 1138, 163 U.S. 16 S.Ct. 41 L.Ed. 256 descent, those of larly African-American (1896). long fought who have fair the equitable implementation of desegre- 1900s, In the of middle the Supreme gation plan approved by Judge McMillan began Court dismantling great wall of thirty years ago. some successive These segregation constructed under the impri generations of parents and children have matur Plessy. of The Court initially slowly been by starved a well-meaning— sought to determine whether “sep various but governing body, whose sins arate” African-American schools were irresolute — been by have absolved the court below genuinely “equal” to white schools eval (and Court) now a majority of this uating quality facilities, of physical cur without anything but the most cursory ricula, ex- faculty, and certain “intangible” Although amination. clearly CMS has See, e.g., considerations. v. Sweatt Paint achieved status in respects, er, 629, certain 848, 339 U.S. 70 S.Ct. 94 L.Ed. there remain several primary areas of con- (1950); Sipuel v. Regents Board of cern that have subjected not been any- to of Okla., 631, 299, Univ. 332 U.S. 68 S.Ct. thing approaching a proper (1948). constitutional instance, 92 L.Ed. 247 In each analysis. deplore, We believe Court they concluded that were not. Id. may day regret, Court itself one the refus- 1954, Supreme Court at last over- al a present majority recognize this. Plessy, declaring ruled that “in the field

public education the ‘separate doctrine of I. equal’ but place. Separate has no edu- cational are inherently unequal.” facilities A. I, 495, Brown U.S. 74 S.Ct. 686. later, In order to better year the issues understand Just one the Court mandated case, presented in this we briefly must that federal courts and school authorities country’s our history review school de- take steps affirmative to achieve desegre- disestablishing toward Educ., progress immediate Bd. v. gation. Brown 439, (1955) Id. at segregation.” state-imposed 753, 99 L.Ed. 1083 75 S.Ct. very in this Subsequently, ”) courts federal S.Ct. 1689. (“Brown Specifically, II feder- case, significant desegrega approved over Court jurisdiction to retain were transition, a school into period al court intervention during the tion cases super “root and powers equitable segregation to eliminate wielding their in order to effectuate efforts branch,” busing of students including school boards’ vise 300-01, 75 S.Ct. Id. at their homes integration. close to from schools obligations important most of race-based away, One the use farther schools to ensure ratios,” the federal courts and the alteration “mathematical good proceeding were boards zones. Swann attendance of student public desegregate Educ., faith Charlotte-Mecklenburg Bd. of Id. speed.” all deliberate “with 30-31, 15, 25, 28, seminal decisions— 753. With these S.Ct. (1971). L.Ed.2d 554 Supreme II —the I and Brown Brown clear, made has Court coun citizens of promised Court however, pur- court’s “end that a federal African-American particularly try, and, the violation remedy be to pose must “in which all ves children, systems addition, and local au- state to restore have segregation racial of enforced tiges system of a school to the control thorities v. Wright Council eliminated.” been of the compliance operating that 463, 451, 92 407 U.S. Emporia, City of Freeman, 489, 503 U.S. Constitution.” (1972). 2196, 51 33 L.Ed.2d S.Ct. Hence, a school 1430. repeated Notwithstanding the Court’s seg- past of official vestiges eliminates vestig- and its segregation admonition opera- of its from certain facets regation branch,” Green be eliminated “root es authority to re- tions, possess courts County, Kent New County Sch. Bd. v. of a commensurate linquish supervision 1689, 430, 437-38, 20 S.Ct. 88 391 U.S. 489-91, 112 S.Ct. Id. at 1430. fashion. (1968), many school boards— L.Ed.2d 716 “an all famil- adopted context, too steps examine the In we this included-— II, of the mandate Brown response to of vestiges iar” by taken CMS to eliminate giv- speed” “as “all interpreting deliberate segregation. steps desegregate.” to latitude to delay

ing 467, 472, Pitts, 112 v.

Freeman B. (1992). 1430, And 108 118 L.Ed.2d S.Ct. courts, so, guidance with the federal lower 1. Court, be- oversight of the initial significant North Carolina’s most to con- equitable remedies gan fashioning Brown II was to the mandate of response For recalcitrance. with school board tend 1955-56, un- “Pupil Assignment Act Gixen, Supreme Court example, power the sole had] der which Board [the plan, which a of choice” “freedom held schools, and children assign pupils race— regardless of permitted students — the schools to required to attend attend, [were] they would choose the school they assigned.” Swann [were] which man- to meet the by itself insufficient Educ., 300 Charlotte-Mecklenburg Bd. S.Ct. 88 of Brown. 391 date (W.D.N.C.1969). This F.Supp. recognized holding, In so Court 1689. perhaps in- was an ineffectual neces- efforts would be more intensive measure — 1964, no more than tentionally so—and “meaningful and order to make sary in (out 20,000) However, few dozen of more than in the wake of the Supreme African-American children in were Court’s Green, decision which attending schools with white children. Id. struck down a desegregation plan founded at 1362. predominantly on choice,” “freedom

became clear that school pos- boards did sess an affirmative obligation desegre- 2. gate, merely an obligation to imple- Green, ment policies. race-neutral In parents of African-Ameri 437-38, U.S. at Invigorated S.Ct. 1689. (hereinafter can children attending CMS law, the developing plain- Swann the “Swann plaintiffs”)1 filed a class action tiffs promptly filed a motion for further injunctive relief, seeking claiming that the court, relief with the district seeking to policies Board’s practices perpet were expedite the desegregation process. uating segregated system.

Swann v. Charlotte-Mecklenburg Bd. of Educ., (W.D.N.C. F.Supp.

1965). 14, 1965, Judge McMillan, James B. July On new- district court ly assigned case,2 to the approved Swann reexam- Board-proposed plan that ined the Board’s actions in schools, light closed certain black Green built new and determined schools, its “freedom established school attendance choice” when plan, coupled with geograph- zones based on neighborhoods. But the ic were “not zoning, furthering desegrega- linchpin plan grant per was its tion.” F.Supp. at 1372. On the funda- mission to each regardless of student — mental matters of assigning students and freely race—to transfer to a different faculty, schools, and the siting of (often new described as a “freedom of court made the following findings: choice” plan). Id. In approving plan, this assignment: the district (cid:127) Student court held that The court CMS had no not- that a ratio duty seventy percent affirmative ed to “increase the mixing of races”; instead, white students to thirty percent the the obligation Board’s students, II, black court, approximated under which according Brown to the the ratio of white to black was to act without students perpetuate the intent to county, the segregation. tended to aid “better Id. at 670. The following holding] students year, pace, [in their Court affirmed the district improvement substantial court’s for the interpretation of Brown II. See poorer students.” Swann Id. at 1369. v. Charlotte-Mecklenburg Bd. of Educ., (4th Cir.1966) 369 F.2d Faculty assignment: (cid:127) Although fac- (“Whatever may the Board in response do ulty members were not being as- to its own initiative or that of the commu signed with a discriminatory pur- nity, we have held that there is no consti pose, there was also “no sustained requirement tutional that it act with the effort to desegregate faculties.” Id. conscious purpose achieving the maxi at 1370. The court ordered to CMS mum mixture of the races the school actively work to the facul- integrate population.”). ties, that attending any so “a child sake, 1. Since this case was first filed in clarity's the 2. For we will refer within often various successor have been re- presiding judge by to the district name. plaintiffs, ferred to as practice the Swann a we continue to observe here. an plan approving In at 1298-99. face about will in the basis, noted that the district interim a black having chances same bearing dispropor- were black children he would teacher a white desegregation ef- tionate burden Id. any other school.” concluded forts, nonetheless the court but under- The court siting: School (cid:127) if interim —was action—even that some desirability imple- scored Id. 1298. all. at to none at preferable school” “neighborhood menting a Board to ordered the also Judge McMillan were which efforts under policy, within desegregation plan another submit neighbor- schools in to locate made three months. walking distance hoods within 1969, the and December In children, override November could not court determined desegregate. duty to constitutional de- the interim time, compliance with system’s At the same 1369. at Id. unsatisfactory, find- plan was segregation new facili- locating to avoid not continuing per- to at Board was ing Id. neighborhoods. in black ties petuate segregation: sharply Board divided The School Green, McMillan also Judge light of its members. expressed views new, amended to submit ordered members, and testimony of its From the certain and he outlined plan, desegregation con- it cannot be report, latest from the remedies, busing and re including possible majority of its members cluded that 1360; Swann, F.Supp. zoning. rep- orders as accepted the court’s have Charlotte-Mecklenburg Bd. v. Swann to the applies law resenting the which (W.D.N.C. 1299, 1302 Educ., F.Supp. to the By responses schools. local 1969). in- has the Board questions, October however, slow CMS was again, Once accept its members do dicated McMillan to im Judge respond, prompting the schools desegregate duty August deadline of pose a time; they have ascertainable a detailed Board was submit which the they intend not clearly indicated that plan to court. They fall of 1970. do effective Bd. Charlotte-Mecklenburg Swann gap yawning demonstrated have also 1381, 1382, 1386 Educ., F.Supp. 300 performance. and predictions between (W.D.N.C.1969). and its complied, time, At Swann, 1306. F.Supp. 306 at to appeared plan desegregation proposed reject- also court reviewed the district time, the constitutional for the accept, first newly amended Board’s submitted ed the teachers, students, duty desegregate to “ at plan. Id. 1313-14. desegregation pos ‘at the earliest and staffs principals, ” Dr. A. Then, appointed the court John v. Charlotte-Meck Swann sible date.’ pre- consultant expert Jr. as an Finger, Educ., F.Supp. 306 Bd. lenburg ap- plan. This acceptable a more pare (W.D.N.C.1969). pro Board’s The nearly years two after came pointment by the plan, approved posed more decision and Green Supreme Court’s (“interim interim court on an basis district Brown I. years after than fifteen programs included desegregation plan”), Dr. ultimately adopted The district closing desegregation, faculty for elementary plan Finger’s schools, reassign proposed and the seven all-black plan, as modified the Board’s schools and schools to pupils from closed ment of (col- secondary schools Finger, for Id. Dr. white outlying, predominantly schools. Plan”). leetively the “Finger Swann v. Finger Plan was challenged on sev- Educ., Charlotte-Mecklenburg Bd. and, 311 eral occasions the Supreme (W.D.N.C.1970). F.Supp. 265, 268-70 In Court upheld it as a valid exercise of the so, doing again the court observed the district equitable court’s powers. Swann, Board’s failure to make an begin- effective 31-32, at Indeed, S.Ct. 1267. ning to Board, desegregation: “The School the Court specifically found that the dis- after opportunities four nearly ten trict court’s adoption of a assign- student time, months of have failed submit a plan ment that used race-based “mathe- (one lawful plan which all desegregates the matical ratios” as a starting point was well schools). This default part on their leaves within the “equitable court’s remedial dis- the court in position of being forced to cretion.” Id. at 91 S.Ct. 1267.

prepare or choose lawful plan.” Id. at Even after Court’s decision 267. Swann, the district court found that the

The Finger Plan several included com- Board’s desegregation efforts failed to First, ponents. students were to be as- meet constitutional requirements. For ex- “in signed such a way nearly that as ample, as Judge McMillan ordered student practicable the various assignment schools various proposals revised in June grade levels have about the same propor- finding that proposals “were discrimi- tion of black white students.” Id. at natory in result; detail overall they Second, 268. “no school operat- placed [could] increasing upon burdens black pa- ed with an all-black or predominantly trons while partially white relieving pa- body.” Third, black student Id. in redraw- trons of similar burdens.” Swann v. Char- ing system’s the school zones, attendance lotte-Mecklenburg Educ., Bd. the Board was authorized to use bus trans- F.Supp. (W.D.N.C.1971). Dur- portation and noncontiguous “satellite ing the 1971-72 and 1972-73 school years, zones”3 to accomplish goals. Id. the district court attempted a “hands-off’ Fourth, the district court restricted the approach, leaving the Board remedy student policy transfer to safe- problems arose, order they but the court guard against resegregation. Id. at 268- twice found that the Board had not still Fifth, the race of faculty members at adopted sufficient guard measures each school approximate had to the ratio of against resegregation and ensure that black and white faculty through- members whites were bearing an appropriate share system. out the Sixth, Id. at 268. of the desegregation burden. See Swann competence overall formerly teachers at Educ., Charlotte-Mecklenburg Bd. of black could not be inferior to those F.Supp. 1223, (W.D.N.C.1973); formerly Finally, white schools. Id. the Swann v. Charlotte-Mecklenburg Bd. of Educ., court mandated that the Board (W.D.N.C.1974); 379 F.Supp. 1102 monitor report and progress on its in im- see also specific discussion of findings in- plementing plan. the at Id. 269. fra.

3. CMS used "satellite zones" tary in connection predominantly schools—students from a method, elementary with schools. this neighborhood Under black were bused to a school in students geographic from a small area located a predominantly neighborhood white for elementary K-3, outside an primary grades at- school's predomi- and students from assigned tendance area were to that nantly school. neighborhood white were bused to a 15571, 16052; Swann, J.A. see also 402 U.S. school predominantly neighbor- in a black 3, at 9 & n. S.Ct. 15571, 16052; 91 1267. use grades The of satellite hood for 4-6. J.A. see implemented by Swann, zones was "pairing” 9-10, elemen- also U.S. at 402 S.Ct. 1267. 91

376 mat as an active to close Swann McMillan expressed somewhat 1974 order

The it from the to desegre- litigation and remove Board’s ter of the about optimism more acting, order, In so Judge Id. at 649-50. that docket. In court’s efforts. gation its orders still assignment that a student reaffirmed approved McMillan that, many orders of properly, if contains implemented case proposal “[t]his stood: effect, re-opened and stable in “a fair and could be continuing would result to the court permit would and those orders operation” showing that upon proper See 379 an active matter. the case close Id. at 649. being observed.” pro- made proposal 1103. The F.Supp. at “optional schools”-— for several

visions specialized offer some that would schools 1992, significant and two Between thereby attract and or curriculum program with the taken connection actions were across races from Charlotte of all students litigation. desegregation Although County. Mecklenburg incorpo- approved McMillan Judge a. plan, he schools into the

ration of these would schools optional cautioned First, 1978, parents group of white board’s with the school inconsistent CMS, against brought suit and children they merely if obligations constitutional the Board prohibiting an order seeking choice.” “freedom of to re-institute served pursuant assigning children (“ was a ‘Freedom of choice’ at 1104 Id. student-assignment plan. latest Board’s many years, for segregation for synonym Martin, at 1320. F.Supp. ... not be resurrected should the Su- plaintiffs claimed Martin with- ‘optional schools’ late date sub nom. decisions then-recent preme Court’s discrimi- safeguards against adequate out Spangler, Educ. v. City Bd. Pasadena results.”). op- To ensure that natory 2697, 436, purpose their stated tional served (1976), University Cal. L.Ed.2d desegregation, furthering process Bakke, 305, 98 v. Regents “optional decreed that Judge McMillan (1978), prohibit- 57 L.Ed.2d S.Ct. be controlled start- enrollments will of race student ed consideration ... about they have ing with 1974 so at 1321. The assignment. F.Supp. Id. black students.” or above 20% Martin, intervened in Swann twenty years July over Finally, in con- to the joining opposition the Board’s II, Judge Brown after mandate Id. plaintiffs. the Martin tentions of observed, time albeit first McMillan Bakke is Spangler A brief review reservations, was ac that the Board understanding an of Martin. necessary to desegregation: tually toward working held Spangler, Court positive taken a “The new has more Board School Dis- the Pasadena Unified because and has attitude toward (“PUSD”) had racial neutral- trict achieved affirmative action openly supported last “the pattern, ity in its school attendance pu problems racial cope with recurrent require was not entitled to Court District assignment.” Swann Charlotte- pil attendance rearrange Educ., PUSD Mecklenburg 67 F.R.D. Bd. of that the so as ensure year zones (W.D.N.C.1975). each Although main- court was remained, desired racial mix problems cautioned that court 436, 96 427 U.S. at perpetuity.” in was tained which the vigor the new Board agreed Spangler All in parties 2697. Judge S.Ct. desegregation persuaded pursuing plan initially that the achieved racial neu- ended; found that discrimination had not attendance; nonetheless, indeed, trality in student it was very finding this that led the the district court had believed it was em- uphold to the 1978 race-conscious powered annually readjust assignment policy. student Id. at 1346-47. in perpetuity boundaries to ensure that Also, although for the first time the dis- majority any minority there would be no trict court praised the efforts of the Board race at Pasadena school. Id. at reservation, without yet underscored Bakke, 96 S.Ct. 2697. In the Su- again patience the need for and continued preme public Court determined that a uni- efforts:

versity with history no of discrimination It took three centuries to develop a could not constitutionally reserve sixteen culture, fight war, slave a bloody civil out of one hundred admission slots for through and to live century of racial 319-20, racial minorities. 438 U.S. at turmoil after war. In striking S.Ct. 2733. down this admis- plan, sions the Court had made clear that The culture and attitudes and results of a classification “[w]hen denies an individu- three centuries of segregation cannot be opportunities al enjoyed by benefits oth- eliminated nor years. corrected in ten solely ers because of his race or ethnic Human nature practices don’t background, regarded [it must] be as [con- fast, change that in even the hands of stitutionally] suspect.” at Id. people good will like the members of 2733. present They School Board. need McMillan, Judge jurisdic who retained time to experiments, work their own tion presided over Swann and over Mar ways to find their own producing tin, first held that because CMS had not operation sustained system of a achieved racial neutrality student at schools which racial discrimination tendance, consideration of race student play part. will I no vote to their uphold assignment policies appropriate was under date, give efforts to and to them that

Swann. See Martin v. Charlotte-Meck time. Educ., (4th lenburg Bd. 626 F.2d 1165 Id. at 1347. In we affirmed the Cir.1980). explained He that because the court’s decision Martin. assignment student policy the CMS F.2d had independently been Board, adopted by the it was not estab b. lished, been, Spangler policy as the had via significant phase litigation The second

judicial coercion or order. 475 F.Supp. between 1975 and 1992 was initiated in Second, Judge 1340-43. McMillan ruled time, 1980. At that CMS and the Swann that Bakke inapposite to the claims of plaintiffs notified the district court that the the Martin plaintiffs. Specifically, the black student population CMS elemen- court reasoned that no child was being tary had grown twenty-nine denied access to equal oppor educational forty percent percent, making it increas- race, tunity because of see id. at and ingly comply desegre- difficult to with the the actions of the Board were therefore gation majority- order’s mandate to avoid constitutionally suspect under Bakke. black In elementary response schools. upholding independent change, Judge actions of McMillan approved a Board, Judge McMillan made desegregation plan. several modification to the important findings. example, prohibiting “predominantly For he Instead of and, simultaneously, almost chione’s suit body,” permitted the court student black moved to reactivate the Swann plaintiffs elementary schools with operate CMS Swann, yet in that was not claiming CMS “plus per- population black student desegregation orders compliance past average. the district-wide cent” above unitary status. yet achieved and had not forty Thus, averaged if the school died, had Judge McMillan Because students, any individual percent black Judge Rob assigned to Senior cases were fifty-five percent black have could Potter, who restored Swann D. ert students. docket, consolidated"

district court’s 5. dismiss, cases, motion to denied CMS’s interv Capacchione’s motion to granted continued the Board From 1981 to ene.4 ap- as desegregation plan its operate court, focusing, inter by the district Capacchione plaintiffs proved claimed that The zones, alia, a feeder attendance vestig- on satellite long since eliminated had students schools, middle-school (assigning plan in and that its segregation es of its identified neighborhood to from a certain and black formerly dual of white schools), closings, and con- high had, time, unitary. been for some schools Then, CMS, of new schools. struction while still They also contended reliance substantially increased its the court’s operating under (the “ex- magnet schools “optional” on orders, violated those orders and had program”). The magnet schools panded students rights of white constitutional emphasis magnet Board new placed sys- the school desegregate its efforts to “pairing” and phase in order to out schools assign- by employing a race-conscious tem busing, give par- and to heavy reliance on magnet lottery expanded ment It in school selection. more choice ents Swann plaintiffs The program. schools magnet program schools expanded was system had not countered that the school present phase ultimately led to ac- yet unitary achieved status. CMS litigation. compli- knowledged yet that it was not past desegregation orders

ance with declared to agreed that it should not be also unitary achieved status. CMS Capac- have September In William event, that, expanded chione, his contended individually and on behalf of en- Cristina, program constituted an claiming magnet schools daughter sued CMS inte- tirely appropriate constitutional and unconstitutionally denied ad Cristina desegre- under the gration tool authorized magnet to a school. Christina mission Swann Caucasian, un orders this case. gation and her suit Hispanic and endorsing concept declaratory, plaintiffs, § while sought der U.S.C. schools, expanded that the magnet argued injunctive, compensatory relief. implemented, program, Capac- to dismiss response, CMS moved suit, (W.D.N.C.1999). group Another filing Capacchiones have 4. Since parents in the consolidated white intervened California. Based on that fact moved to group, represented by plaintiff and that findings, determined action other the district court Grant, has longer pos- claimed that CMS Capacchione no Michael William groups various injunctive achieved status. The standing seek or declara- sessed relief, Capacchione's joined in standing to that have tory but that he did have to as "the Ca- Capacchione v. claims are hereinafter referred pursue compensatory relief. Schs., plaintiffs.” F.Supp.2d pacchione Charlotte-Mecklenburg Educ., contributing resegregation lotte-Mecklenburg was to the Bd. 238 F.3d (4th Cir.2000). system. Thereafter, the school on Janu- 17, 2001, ary majority a of the active mem- trial Following bench conducted from bers of the Court voted to hear this case 22, 1999, court, April 19 to June en banc. 9, 1999, September filed its Memorandum Order, of Decision and from which this II.

appeal Capacchione is taken. See v. Char- Schs., lotte-Mecklenburg F.Supp.2d 228 We first address the district uni court’s (W.D.N.C.1999). Although the Board tary status decision. The determination of unitary claimed that status had not been whether any part system of a school has achieved, the district court found that it one; unitary achieved is a status factual ruling, had. In its the district court then therefore, the district findings court’s as to expanded magnet found that the Board’s unitary status are for clear error. reviewed program, though even instituted to See Riddick v. City School Bd. desegregation, effect court-ordered (4th Cir.1986); Norfolk, 784 F.2d Furthermore, unconstitutional. the court Branch, see also Jacksonville NAACP v. enjoined “assigning the Board from chil- Bd., County Duval Sch. 883 F.2d allocating dren to schools or educational (11th Cir.1989) n. 3 (citing United States v. opportunities through and benefits race- Educ. Agency, Texas 647 F.2d lotteries, set-asides, preferences, based (5th 1981)). deference, Cir. AUnit No deny other means that an equal students however, is owed to the district court on footing based on race.” Id. at Final- 294. law, conclusions of including the district ly, the court Capacchione awarded the court’s understanding controlling law or monetary damages nominal and the proof presump burdens of various attorney’s substantial fees. tions; consequently, all such conclusions of See, e.g., law are reviewed de novo. In re

C. (4th Cir.1999). Brice, 188 F.3d plaintiffs appeal- The Board and Swann every portion

ed of the district court’s A. Court,

judgment. A panel of this with one

judge dissenting, vacated and remanded the district court’s Indisputably, status determi- the school of Char- nation, holding lotte-Meeklenburg County subjected that the district court’s uni- Afri- tary findings status nearly century seg- were insufficient with can-Americans to facilities, Indeed, respect to student assignment, regation and discrimination. transportation, and student achievement. recognized Court as much Swann, panel noting also reversed the district court’s North Carolina was holding that the expanded magnet long history schools one of the states with “a program Equal maintaining single violated the Protection two sets of schools in a Clause, reasoning program system deliberately operated com- to car- plied respects gov- ry governmental separate all with court policy orders out erning any way pupils solely the case and did not in schools on the basis of 5-6, Finally, pan- violate the Constitution. race.” 402 1267. In injunction, el vacated the forcefully district court’s this context the remedies en- II, damages, including the award of nominal and the in Brown dorsed use of measures, attorney necessary award of fees. Belk v. are Char- race-conscious entitled, in their discre but courts also segregation at the invidious eradicate tion, (“ancillary identify factors other they are which aimed. factors”)5 whether minori and “determine Moreover, over local supervision court disadvantaged in being ty students were boards, in Brown also embraced school of new required formulation ways that the entirely appropriate is progeny, and compli full further to ensure and remedies fail their authorities whenever “school 503 U.S. at decree.” ance with court’s whatever “to take obligations” affirmative 492, 112 1430. S.Ct. a to convert to necessary steps might discrimina- system which racial unitary Swann, 402 would be eliminated.” tion 2. 15, only Not are the at 91 S.Ct. 1267. U.S. through systems proceeding For school supervise and courts entitled federal process desegregation, of the difficult local school boards the actions of direct adopted goal of Supreme Court has circumstances, scope those but under Freeman, 503 unitary achieving status. plenary: is almost authority of federal 1430; 486-87, 112 Board at S.Ct. U.S. a have been right and violation “Once Dowell, City v. 498 U.S. Educ. Okla. shown, equi- court’s scope of a district 630, 112 237, 245-46, 715 111 L.Ed.2d S.Ct. is remedy past wrongs powers table (1991). Do- Although prior to the Court’s in- broad, flexibility are for breadth courts and Freeman decisions federal well Id. equitable remedies.” There herent “unitary status” somewhat used the term justifiably sub- no that CMS was doubt Freeman, 503 U.S. at inconsistently, see fact, supervision;

jected to federal court 437-38, 486-87; Green, at 88 391 U.S. subjected after the Board had been even 1689, the term has now come S.Ct. repeated- supervision, to court it had to be system has been mean that the school process desegre- ly begin ordered to segrega vestiges that the unified such gation. the extent have been eliminated to tion however, deseg- in a Ultimately, goal Freeman, 487, at 503 U.S. practicable. this is to reach regation case such as 437-38, 1430; Green, at 112 391 U.S. S.Ct. no supervision is point at which federal system a school 88 S.Ct. 1689. When the use of race- longer warranted and status, courts unitary federal achieves necessary. longer conscious measures is no the local supervision must withdraw over Freeman, 489, 112 S.Ct. 503 U.S. school board. Supreme The Court has identified case, Judge Potter declared that (collectively “original six factors Green every unitary achieved status CMS had factors”) from racial that must be free Court has directed respect. the mandate of discrimination before an review a district (1) (2) appellate court assignment, is met: Brown student (4) unitary by ap- determination court’s status facilities, (3) transportation, physical (the two-part inquiry “Freeman (5) (6) plying a staff, extracurricular faculty, An court must de- Green, 435, inquiries”). appellate 391 U.S. at 88 S.Ct. activities. (1) has, in good if Board termine school only reviewing courts to 1689. Not faith, de- complied with the original fac- ascertain whether these Green (2) entered; discrimination, cree since it was free from racial tors are convenience, factors.” original fied the district as "Green refer to the 5. For we ancillary factors identi- Green factors and

381 Penick, in the lumbus Bd. Educ. v. jure segregation vestiges of de 449, 13, 2941, have been eliminated to the 465 & n. 99 S.Ct. 61 L.Ed.2d system (1979) Freeman, Keyes 503 666 v. School Dist. No. practicable. See U.S. extent Denver, Dowell, n. (citing & S.Ct. 630). (1973)) (court 249-50, L.Ed.2d must U.S. at S.Ct. remedy order affirmative where school party seeking If the declaration board’s conduct “create[d] contribute[d] unitary cannot demonstrate status schools). identifiability to” racial We has achieved status meaning adhere to the most common-sense entirety, in its we then undertake to deter- “vestige”: it is a condition or occurrence system mine whether the school has causally jure sys- related to the former de unitary respect status with to one achieved tem of segregation. (“partial the factors uni- or some of Green status”). system’s duty Because a tary point, apply, we to elimi .At factor, the respect vestiges with to each Green two nate such is restricted inquiries along availability practicable with one addition- measures Freeman for do so, Freeman, 492, ing “whether see 112 inquiry: al Freeman-mandated 503 U.S. at 1430, judicial retention of control one as- S.Ct. it is also incumbent on us to [over system] necessary practicability. determining of the school is consider In pect measures, compliance practicability to achieve with the of further practicable sys- of the school district court must to decree other facets look numerous indi Freeman, system’s operation. at 112 cia of the tem.” 503 U.S. S.Ct. Practicabili inquiry recog- ty depends feasibility pro third Freeman on the of the 1430. This method, posed nizes that factors are—to a from both a financial and an Green interrelated, great perspective. and when de- administrative id. at 481- extent — Cf. 83, 493-97, 112 termining judicial supervision whether S.Ct. 1430. Whether a withdrawn, may practicable a school board be is depends over measure also curing the effects overlap between the factors is a whether is “directed Green violation,” whether it is specific crucial consideration. of the at 112 1430. likely to do so. Id. S.Ct. brings us to the analysis The Freeman duty, reviewing Judge Potter’s questions presented any most difficult Our decision, at desegregation present Capacchione, F.Supp.2d case: whether ra see vestige past segrega cial isolation is a is clear. We must examine each and, so, whether uni- tion if whether a school board can factor and ascertain Green respect with tary reduce that racial isolation. It status has been achieved practicably “vestige” even difficult to define in this or all of them. Because (Scalia, J., sys- concur court declared the entire CMS school context. See id. (“We status, unitary tem to have achieved we ring) sought have never to describe assess, ... each ‘vestige’ respect how one identifies a or a must with Green ”). factor, complied, in past ‘remnant’ of discrimination.... whether the Board has faith, good of the with the decree vestiges “that are the concern vestiges segregation whether the may intangible law be subtle and but none practi- to the extent they they must be so real that have have been eliminated theless Freeman, 492, 112 jure being link to the de violation cable. See causal Dowell, at 249- (citing remedied.” Id. at S.Ct. 1430 S.Ct. 630). J.); 512, 112 If (Kennedy, see also id. at S.Ct. S.Ct. (Souter, J., unitary status in its en- concurring) (citing has not achieved Co- Freeman, then, phase. They we further maintained first

tirety, consistent proposed interrelated- contained weigh degree the Remedial Plan also must if only implemented the various existing between Green remedies that could ness have achieved factors. was determined not to unitary unitary status. Because the status B. resolved, yet they question had been (which analysis the Remedial Plan By way to our claimed that of introduction case, Capacchione plaintiffs address a fundamental characterized as we first proceedings damages report) court’s was irrelevant. flaw the district —-a failure arising from the district court’s flaw exclusion of the Remedial opposing any consideration to a remedial give Plan, and the Swann relied admitted as evidence plan sought to be analysis. on the Court’s Freeman Following filing Capac- CMS. Specifically, they asserted that J.A. Complaint Interven- plaintiffs’ chione each status determination encom- tion, produce Board undertook to phase in the first of the trial turned passed vestig- whether comprehensive analysis of vestiges on “whether the have been jure segregation existed in CMS es of de practicable.” remedied to the extent Id. any vestiges could be and whether such added). Plan, (emphasis Remedial ana- practicably remedied. The Board claimed, relevant, they merely was not but lyzed available data and identified several crucial, establishing both the existence then, vestiges in line with the remaining; vestiges segregation practica- and the Freeman, Superintendent mandate of the bility of remedial measures. containing practi- developed plan of CMS steps. indepen- cable remedial The Board responded with two rul- Judge Potter and, dently plan reviewed this on March First, ings. Judge explained Potter 30, 1999, adopted the “Charlotte-Mecklen- assessing uni- whether CMS had achieved burg Remedial Plan to Address Schools’ tary re- status he believed Freeman Remaining Vestiges Segregation” the quired just thing: him to consider one Plan”). (the “Plan” or “Remedial J.A. done, “only ... has not what what CMS 11029. may it in the future.” do See Order of Second, at 4. on April based deadlines, pretrial with

Consistent and uni- understanding Freeman the Plan filed the Remedial with the district test, tary Potter Judge status concluded potential court as a exhibit at trial. J.A. the Remedial Plan was irrelevant: pretrial 11028. At the conference conduct- 13, 1999, “If the Court later determines that addi- April Capacchione ed on needed, moved in limine to exclude the tional remedial measures are plaintiffs essence, Capac- may plan. Remedial Plan. consider the Until that time comes, however, get chione maintained that the trial the Court will not phases complex had been bifurcated into two and mired details and mechan- only unitary proposed plan.” status was at in the ics of a at 5.6 issue Id. Furthermore, Judge proffering adopted. precipi- Potter also chided CMS for been a more proposal incorporated the Remedial Plan "after the deadline for fact tant could not have discovery expert discovery perspectives developed during expert witness had various expired.” contrary, plan discovery. On the CMS fulfilled all A similar submitted earlier in rules, litigation necessarily appropri- duties under the federal would of its the course ately supplementing responses discovery largely speculation have been based requests supposition, as soon as the Remedial Plan had and therefore would have been “having any make tendency Potter erred in both dence as Judge believe We First, misapprehend- any he fact rulings. of these the existence” of material “more unitary status. Freeman and its test for probable probable ed or less than it would be outset, rejects, evidence”). explicitly At Freeman Consequently, without law, very analysis a matter of relevancy typically presents rather low is, That by the district court. adopted See, admissibility. e.g., barrier to United Freeman, must con- a district court under Metre, v. Van 150 F.3d States (1) (ie., orders compliance prior sider (4th Cir.1998) (citing United States v. (2) done”), whether “what CMS has (4th Powers, 59 F.3d Cir. eliminated to the extent vestiges have been 1995)). (ie., may do practicable [CMS] “what However, mini- rely we need not on the future”). Freeman, encompassed mal threshold the test for 1430; see also Order relevancy because this Remedial Plan By construing at 4. Free-

April would be relevant under reasonable unitary status test to include man’s test. The Remedial Plan identified record (“what done”) but not the former CMS has (including deposition evidence testimo- (“what fu- may do in the [CMS] latter ny experts) supporting of several ture”), a matter of Judge Potter erred as jure vestiges seg- Board’s belief that de law. (1) regation apparent in CMS remain directly Plan addresses The Remedial (2) faculty assignment quality, physical in an inquiry, the latter and it does so facilities and the allocation of instructional manner, relying on the con- apt, informed (3) (4) resources, achievement, and student profes- opinions highly capable sidered assignment. importantly, student More analyze the latest sionals retained specific steps the Remedial Plan detailed words, In the dis- available data. other proposed that the Board to undertake over excluding reason for trict court’s second ensuing years the five “with the course of relevancy—also fails to with- the Plan-— unitary status at that goal achieving scrutiny.7 There is no doubt stand time.” J.A. 11029. on this Judge Potter had wide discretion doubt, possess courts issue, Without a federal relevancy concept is a fluid un- but deciding par- final whether Evidence. the word der the Federal Rules of See system operating within evi- ticular school is (defining Fed.R.Evid. 401 relevant was, disparity pertinent. the stark in basic resources As it the dress far less useful and non-jury tendered in advance of the Plan was trial, and, media such as instructional materials and great significance, almost five centers, 11040, strongly suggests that J.A. see court issued its months before implemented fully the Board had not parties decision. Neither the court nor prior long-standing dictates of the orders. could have been inconvenienced the neces- observed that "while The court nonetheless sary timing of the Remedial Plan’s submis- compliance goal perfect with court sion. elusive, no evidence has orders has remained presented authorities were been that school Taking the district court at its word that Capac guilty easily correctable errors.” only question initially was the extent before chione, F.Supp.2d at 283. To the con compliance prior de- the Board's with the trary, thoroughly documented the the Plan orders, segregation was the Remedial Plan facility failings with which Board's and the pur- highly relevant for even that nonetheless court they be rectified. The district could pro- pose. The with which some of the ease ignore highly relevant realized, simply chose e.g., posed Plan remedies could be merely distributing funding ad- evidence. available before Ap- questions The fundamental us parameters of the Constitution. however, given, must be racial isolation in preciable weight present whether by the com- sys- to the views of those selected may vestige be a of the former dual system. See Do- munity tem, so, to administer and, practica- if whether there are well, (noting 498 U.S. S.Ct. could take to reduce or ble measures CMS knowledge possessed by local specialized considering In eliminate isolation. officials).8 refusing to consider we are bound to focus questions, these Plan, erroneously the district court particularly the Board’s record of com- position failed to accord the Board’s official pliance desegrega- with the district court’s any weight, respect much that it less tion orders. id. at S.Ct. due. Dowell). (citing significant Because racial growing imbalances student as- completely court so

That the district CMS, telling. signment do exist because the disregarded this crucial evidence Nonetheless, comply ever mindful of the deference Board for decades has failed to factfinder, upon accorded the we embark specific with certain decrees of the district examining the court’s conclu- the task of (particularly regarding siting sions. schools), may new because these failures isolation, have to current racial contributed assignment

1. Student compliance might prac- and because future factors, promi- isolation, all the the most ticably Of Green reduce this racial we degree nent of racial imbalance in is the finding would the district court’s vacate Freeman, assignment. student that CMS has achieved status with Uniformity in the S.Ct. 1430. respect assignment. to student given racial composition of school was discrimination, hallmark of official “for a. jure regimes under the former de racial In the wake of the 1970

exclusion was both the means and the end order, virtually all of the schools in CMS of, by disparagement of a policy motivated operated in racial balance for a considera- towards, hostility or the disfavored race.” however, By time. nearly ble 1998-99 desegregation Id. Court-ordered was de- in head-on; thirty percent system of the schools signed enemy to meet the racially had become identifiable.9 Of the long-term stability attempts at racial desegre- in 126 schools included in the balancing assignment student is often CMS gation plan, twenty-three conspicuous identifiably seen as the most indication of (or thereof) identifiably lack in black and thirteen more are courts’ success Further, underlying combating virtually societal evil. white. J.A. 11587. all Though grant Judge 8. we need not CMS the same 9. McMillan’s final order mandated, alia, promulgations deference afforded ad and inter that no school should judications agency, of a federal administrative Swann, "racially become identifiable.” governing the formal declarations of its F.Supp. Judge interpreted at 268. Potter body experience Board "do constitute a phrase synonymously "racially with imba- judgment and informed to which courts and lanced,” which, within, as noted describes a litigants may properly guidance.” resort for school with an African-American student County Housing v. Ritter Cecil & Office of population deviating points more than fifteen Dev., 323, (4th Community 33 F.3d Cir. county-wide in either direction from the Co., 1994) (quoting Skidmore & Swift Capacchione, F.Supp.2d norm. See at 246. 134, 140, L.Ed. 124 (1944)). identifiably integrated black schools are located more as the result of these city shifts, in inner or in the immediate either the disproportionately large number suburbs, the northwest-to-northeast areas in contig- African-Americans still reside Mecklenburg County highest with the generally uous clusters north and west of In concentration of African-Americans. the down-town area. contrast, stark all thirteen of the identifi- The threshold issue to be addressed is ably white are found in the ex- thirty-six whether the racially identifiable treme northern and southern areas of the represent schools in vestige CMS (and county, particularly both of which is, segregation present whether the —that latter) have seen dramatic increases in racial causally isolation is related to the population during thirty

white the past prior system jure segregation. of de in years. resegre- The trend CMS toward plaintiffs argue, Swann agrees, gation of its schools has accelerated mark- isolation, that current racial like the racial edly deemphasize since the move to satel- 1970s, isolation of the 1960s results mandatory lite zones and in busing 1992. that, past inequities both from to some years, the last seven the number of extent, have persisted day, to this African-American students who at- from the Board’s failure to comply (now racially tend identifiable schools al- specific certain in the directives remedial ten) three in fifty percent. most has risen decrees this case. J.A. 9589. previously Because CMS has not been Indisputably, until from 1981 adjudged to have achieved system through signifi CMS school went status assignment, student we are demographic changes. example, cant For bound under the total population Mecklenburg presume Coun Swann to that the current racial 354,656 ty grown has 1970 to population imbalance the school consti 100,000 1997. J.A. 16247. Almost a continuing vestige segregation. tutes CMS, making children attend it the twen Capac- 402 U.S. at 91 S.Ct. 1267. The ty-third largest in the coun chione have the burden of show try. During period J.A. 7107. from ing that present predomi existence of school-age popula 1970 to the black nantly one-race schools CMS “is not the 17) (ages through county tion in the has present past discriminatory result of .10,000. by approximately increased J.A. Id.; Riddick, action.” see also 784 F.2d at period, 16247. Over the same the corre sponding school-age population white has unwillingness Our to conclude that CMS 3,000, id., by approximately decreased is respect assign- with to student African-Americans comprised ment centers on the Board’s failure to percent county’s school-age popula of the comply regarding with court orders selec- tion, the total of which approxi numbered tion of the construction new sites for of 108,600. mately Evidence before the dis siting schools. The role of school that, trict court revealed since the achieving sustainable should growing population African-American has fact, impor- In the be underestimated. migrated city outward from the inner into apparent tance of site selection has been turn, formerly many white In suburbs. early stages since the of this case. As the formerly populated

white citizens who the Supreme explained in 1971: Court city’s periphery have moved even farther past In the choices ... county’s outlying [site selection] into the reaches. Though parts county potent weapon of the have become have been used as a in ... maintaining state-segregat- insuring a not determinative role

creating or authori- system.... any given assignment plan [S]chool ed school and feeder will sometimes, Brown, have since ties rather provide meaningful desegregation, appeared likely closed schools which to just predictably ap- than lived short racially through changes become mixed pearance desegregation.” Id. at 1332. patterns. in neighborhood residential years In since this decree is- accompanied by This was sometimes sued, twenty-five twenty- has built CMS building new schools the areas of in predominantly seven new schools white expansion white suburban farthest from 1980s, suburban communities. In the mid in order to Negro centers population adopted policy building a formal separation maintain the of the races mid- “midpoint” schools—schools located minimum departure with a for- way population between black and white “neighborhood zoning.” mal principles of evidence, however, There little centers. simply more than policy Such does suggest faithfully adhered composition influence the short-run Rather, policy. record evidence body the student of a new school. It strongly policy indicates that influ- may promote segregated well residential for, most, enced the site selection at four which, patterns when combined twenty-seven new schools. See J.A. “neighborhood zoning,” further lock Meanwhile, infra, 15404-06. as we discuss separa- into the mold of there is substantial evidence CMS has ascertaining tion of the races.... In many allowed of its older school facilities legally imposed seg- existence of city in dispropor- attended —schools regation, pattern the existence of a tionate numbers African-American stu- school construction and abandonment is dents —to fall into a state of disrepair. great weight. thus factor of Swann, 91 S.Ct. 1267. building great The Board’s record of majority of its new predomi- schools on the

Subsequent Supreme to the de- Court’s nantly fringe white suburban county Swann, cision in Judge specifi- McMillan supports possible two conclusions. On one cally ordered that site selection for new hand, CMS could have been responding predicated popula- could not “be demographic reality demand for new tion trends alone.” 379 F.Supp. at 1107. —a high population classrooms areas of they New schools were “to be built where growth (although we note that the number readily can serve both races.” Id. decision,10 of white students in CMS has decreased Judge 1979 Martin McMillan since while the black popula- devoted an entire student opinion section his increased). “construction, greatly tion has the other demonstrating that location On hand, the closing buildings pattern of school Board’s of school con- continue to promote segregation.” F.Supp. struction could have facilitated or even Judge explained McMillan hastened white flight to the suburbs. As Swann, plays large location of schools if explained “[t]he Court herein, Judge incorrectly parents, Potter declared that American like those main- 10. unitary hearing!.]” "Martin was not a status contrary. actuality, tained to the In there is fact, Capacchione, F.Supp.2d 57 at 250. today's little difference between case and indicates, accompanying as the text the white Martin, Judge findings McMillan’s in the contended, parents Capac- in Martin as the binding parties any latter are as on the plaintiffs today, chione do that CMS had litigation. others made in the course of this Intervening achieved status. African-

387 facilities, in this inference is viewed combina- When toward “[p]eople gravitate Capac- borne response in to tion with burden are located just as schools to show that current ra- location of chione people. the needs of past have no causal link to of cial imbalances patterns influence the may thus discrimination, compelled to con- metropolitan we are development of a residential court is clude that a remand to district impact compo important and have area required. neighborhoods.” 402 inner-city sition 20-21, The Board’s at 91 S.Ct. 1267. court’s Although we defer to well evidence siting policies could erroneous, findings clearly of fact unless in the face of political will

its lack of in Judge ap- Potter’s error here came his poli desegregative pressure to abandon legal standard to the evi- plication con from families who “are pressure cies— siting the Board’s school regarding dence composition racial of a cerned about the (1) that policies. Judge Potter found CMS will make [who] school and prospective not on the basis of race had discriminated Free accordingly.” residential decisions choosing in sites for new schools and that 513, man, 112 at S.Ct. 1430 503 U.S. (2) incorporated diversity had racial CMS (Blackmun, J., concurring). selection. Even as one of its factors site findings that assuming arguendo that both certainly no evidence CMS There is erroneous, clearly neither is sufficient intentionally sought, through its school has legal conclusion that sit- support the school siting policies, to “lock compliance acted in ing the races” in new schools CMS separation mold of into the court orders and Con- governing described with the way that the Court Swann, vestiges segre- eliminate the 1267. stitution to 402 U.S. at practicable. to the extent gation Board has made But the actual choices the siting may in fact be regard to school with duty, school officials are “To fulfill this “pattern of school con- quite similar to the only to avoid official obligated not described and abandonment” struction perpetuating the effect of action has Court, the actual effect that the reestablishing system, a dual school but “lock[ingj sys- the school feared of Court deseg that further also to render decisions of racial isolation. tem” into a condition effects help to eliminate the regation cannot 1267. We 402 U.S. S.Ct. system.” Har previous dual school conclude, further at least in the absence of Educ., Bd. County ris Crenshaw CMS, choosing sites fact-finding, (11th Cir.1992) (citing F.2d schools, “meaningful pursued new has Freeman, 755 F.2d Pitts v. just pre- rather than desegregation, Cir.1985)). (11th Therefore, had to desegre- dictably appearance lived short new merely sites for more than select do F.Supp. at 1332. gation.” nondiseriminatory It basis. schools on too, more, give some Rather, simply do than siting had to practice the Board’s “diversity” its selection rea- consideration they could not new schools such practicable, extent racially of sites. To the to serve a sonably expected they can schools “where Judge had to site new population and balanced student F.Supp. at prac- readily serve this both races.” McMillan’s determination Swann, 1107; tice, see also represented the school past, 1267; Martin, at 1329- F.Supp. vestiges of eliminate the S.Ct. system’s failure to that CMS Potter never found strong Judge infer- together raise a segregation, standard, as outlined today. had met vestiges remain ence that those within, that, political pres- there is substantial record evidence clusion in the face of sure, that did not do so. CMS has not done all that it could do vestiges segregation. to eliminate the Swann, In accordance with the burden Finally, the Board has itself taken the Capacchione plaintiffs prove is on the step admitting remarkable its noncom- vestiges past discrimination do not remain, in A pliance prior with orders this case. nothing practicably or that can in acquiescence po- school board’s frank remedy done to them. We note that (in case, McMillan, inuring sition to its detriment this Judge published his last deci- case, judicial potential ongoing interven- clearly sion this evidenced his tion), conclusive, if not treated as should at understanding both that CMS had least be considered with the utmost gravi- done all that it could do in the area circumstances, ty. Under these we siting school and that future have siting difficulty determining no practicably could the dis- decisions advance the trict court’s It in- conclusion that the Board’s process desegregation. was thus compliance level of was “full and satisfac- Capacchione plaintiffs cumbent on tory” demonstrate that should be vacated. conditions Charlotte Mecklenburg County changed have b. sufficiently such that siting long- no represents practicable opportunity er If vestiges of official discrimination vestiges eliminate the of segregation. have indeed been eliminated to the extent practicable respect assign- to student The Swann have identified ad- ment, then there is little prolong reason to ditional areas which CMS has fallen supervision. light In of the district short of its obligations under the court failure, however, court’s to recognize the orders. For the life of the Board’s continuing noncompliance with re- orders, consistently placed CMS has spect assignment to student —administered heaviest burden of mandatory busing on recently twenty years ago as in a man- African-American Currently, students. reinforcing ner the once-official notion 80% of those students who ride the bus as African-Americans are inferior —we have mandatory a result of a assignment are no confidence in the court’s ultimate find- African-American. J.A. Judge ing vestiges these disap- have now repeatedly McMillan ordered CMS to dis- peared. fairly. tribute this burden more See 475 1339-40, F.Supp. at F.Supp. at 1103- neglected district court to deter- Yet, whether, F.Supp. 1232-33. CMS has mine Judge since McMillan’s de- addition, utterly Martin, failed to do so. CMS cision in CMS has fulfilled its developed has never an system effective constitutional court-imposed obli- monitoring for student gations transfers to ensure with regard to site selection for that the overall effect of such transfers is new schools. Had the Board’s efforts not to increase the racial imbalance been deemed lacking, the court below Again, represents as a whole. proceeded should have to decide whether a failure comply explicit with the in- present this failure contributed to the con- structions of the court. See 475 sys- dition of racial isolation in the school 1337-38, F.Supp. at F.Supp. at 1103- tem. If the district court then found that F.Supp. at 1229-30. We are trou- up CMS had failed to live to its constitu- bled failings these on the part judicially CMS. tional and obligations, decreed They provide support additional a con- if that failure did contribute to the imbalances, community Additionally, the court will not suffice. then present racial whether investigate further logistical merely making was bound to barriers “diffi reme- practicable, is a proper site selection transport outlying cult” the inward of effects of the Board’s lingering dy for likewise, reasonably if white students will if Only discriminatory practices. past surmountable, enough. Capac not be Cf. were not a viable site selection proper (district chione, F.Supp.2d court have relin- option could the district “transport[ing] court’s observation that assignment; control over student quished ... white students from satellite zones further that CMS nothing there would be given pat is difficult the rush hour traffic do to eliminate the ves- practicably could terns”). Although “practicable” what is prior jure system. de tiges “possible,” not extend to all that is need If, however, to proper sites were found rectifying grievous constitutional available, assignment be then student wrongs surely justifies past reaching the district should have remained under beyond purely “proble the “difficult” or remedy, In fashioning court’s control. matic.” directed, might have for exam- ple, that most or all new schools construct- Physical 2. Facilities. years be located ed over the next several city midpoint the inner or in proximate to describing After how CMS has allocated already residentially. integrated areas physical among its facilities and resources Conversely, might the district court have students, Judge Potter concluded that flexibility required concluded that more “the Swann have failed to over- costs, crushing because of real estate de- findings on fa- previous come the Court’s fringes, in the or for some mand suburban establishing requisite dis- by cilities vein, other sufficient reason. this criminatory intent and causation.” Id. at Board’s Remedial Plan could have been “previous mention of Judge 267. Potter’s remedy a limited term for considered as excerpts findings” refers various the racial isolation that would otherwise by Judge opinions and orders authored newly continue until the Board’s to exist McMillan: siting begin can policies redirected school to take effect.11 1969—“No racial discrimination or April quality in the .... inequality is found day corrective action one

Should buildings equipment.... the school and case, justified in deemed some reasons described witnesses Schools deny African- will not be sufficient on both ranged up ‘white’ well and down remedy. American students a For exam- average per-pupil expendi- [the sides of ple, political pressure perceived resis- ture], described wit- change by groups tance to certain ethnic, attendance, racial, strategies sibling described in the Remedial particular help deciding Plan would be of diversity. The Plan also outlines economic practicable whether measures are available. to disseminate informa- a formal mechanism proposes, among things, The Plan other regarding process, and the enrollment tion Mecklenburg County divide into three provides the Board will work with “clusters,” demographically five similar community govern- business and local may to attend within which students choose disadvantaged ment to secure subsidies school, magnet or otherwise. Where wishing to relocate to areas families given the demand for a school exceeds housing J.A. which low-cost is scarce. See room, spots assigned by available would be 11053-59. lottery proximity, based on factors such as nesses as showed a similar ‘black’ varia- The district court’s burden-shifting anal tion.” at F.Supp. 300 1366. ysis was an error of law. Once the exis tence system of an unlawful dual school August 1969—-“The defendants contend- has been established and court supervision ed and the court found in its April begun, presumed it is that racial dispari 1969 order that facilities and teachers arising during period ties of interven the various black schools were not meas- causally tion “are related prior segrega to urably inferior to those in the various tion.” School Bd. the City Richmond white schools. It is too late now to (4th Baliles, 829 F.2d 1311 Cir. expect proceed upon the court to an 1987). Following imposition judicial opposite assumption.” 306 F.Supp. control, a party seeking to end the status 1298. quo bears the overcoming burden of October formerly “[T]he black 1971— presumption of causation. If this burden suggested schools are not shown nor is met and the school is declared to in faculty, plant, be inferior equipment have unitary achieved status as to the program.” F.Supp. 334 at 625. issue, particular factor at presumption prior Toward the close of the proceedings Generally, any ends. Id. subsequent (and above), 1975 consistent with the proceeding involving allegations new Judge attorney’s McMillan awarded fees to treatment, disparate the complaining party plaintiffs the Swann prevailing parties, must purposeful show discrimination. “[e]xcept for the refusal of the court to Riddick, 784 F.2d at (concluding 537 find in the plaintiffs’ favor ... regarding progeny require Swann and its proof of adequacy physical plants equipment “discriminatory intent on the part of the Swann, quality.” teacher 66 F.R.D. unitary system” board of a at 484. order to supervision).12 resume court Judge acknowledged Potter that no granted unitary sure, “ha[d] [ status To be the absence heretofore of lever CMS, nor ... partially any withdrawn su- finding to contrary would have pervision as to facilities or other important Green been an consideration in deter- Capacchione, factor.” 57 F.Supp.2d at mining whether the Capacchione plaintiffs 262. The court proved nevertheless relied on the had CMS to have unitary achieved above 1969 and 1971 findings to respect However, release status with to facilities. Capacchione plaintiffs from their bur- that Judge McMillan did not intend his den of proving unitary respect initial observations regarding facilities to facilities, stating that to proceed other- be construed as a finding unitary status “defy wise would logic.” Id. at 263. subsequent obvious from his actions. Judge Potter thus accepted premise Judge McMillan assumed control that Judge resources, McMillan’s 1969 and 1971 find- over facilities and found inequi- ings ties, “constitute collateral estoppel and law remedy ordered CMS to those facilities, regarding case” “thereby Swann, disparities. F.Supp. shifting the burden to CMS and the (finding Double Elementary Oaks ac- Swann to show discriminatory still undeveloped cess road years two after intent.” Id. at 262. court’s identification of problem —“No However, Freeman, if a juris- district court unitary retains attained status. 503 U.S. at factors, diction over one or more Green 508-09, (Souter, J., 112 S.Ct. 1430 concur- may, upon proper showing, reassert control ring). previously over a adjudged factor to have Branches Georgia id. State powerless.”); is so $80,000,000 budget Conference of not restored n. library Georgia, 775 F.2d Double Oaks NAACP v. (finding fire); id. after years (11th Dowell, Cir.1985), standards several quoted facilities at West (ordering athletic at 1238 distinc (noting U.S. at S.Ct. immediately up- High School Charlotte operating in systems between school tion with other comparable to level graded those that have an fashion and conclude county). We must in the schools status, unitary observing and that achieved the subject to Board has been unitary and former “could be called its facilities since jurisdiction as to court’s vestiges past nevertheless still contain Dowell, at least 1973. See discrimination”). (school entitled to a boards 111 S.Ct. 630 Thirty-five years passed have since a terminating statement” precise “rather facilities, order). equalize Board first acted to questions remain as whether yet serious prior a adverse lack of The asserted finally goal. realized that Dr. it has been determinative finding should not have Gardner, impressively quali- an Dwayne E. issue, court as the district especially of the consultant, and planner educational fied sys- focusing on a school in was not report for the compiled an exhaustive judicial are- suddenly thrust into tem suitability in which he evaluated Board na, examining one was instead but Dr. ex- facilities.13 Gardner of its school subject supervision to court been had more than personally visited the com- amined Between nearly years. four all of (including in in the initial Swann lawsuit half of the schools CMS mencement of schools), first mention court’s a host of fac- high analyzing 1965 and the district April in the facilities issue For the quality. educational affecting tors The Board’s sixteen black schools. closed Dr. divided study, of his Gardner purposes an almost rise to gives masse action (1) en groups: subject schools into three these schools inference undeniable (2) schools; all racial- all imbalanced-black were inferi- they because were shut down in imbalanced-black ly balanced schools strongly or, suggests timing and the also (3) tracts; remaining high each census by the prompted were the closures elementary and school, a along with set underway. then judicial proceedings from the randomly selected middle schools context, plausible in the most Viewed equal approximately remaining schools equality putative is that conclusion already included within to those in number by the district mentioned groups. the first two of the actually an endorsement 1971 was study assigned Each school in the by the Board to had taken steps that been 0-100, indicating its from composite score inequities facilities. remedy the lower scoring Schools worthiness. event, to have not be said CMS could were, so deficient opinion, in Dr. Gardner’s finding by absent a achieved status those with while replacement, as to merit Board had “elimi- court that the the lower classified 45-59 were scores between discrimina- vestiges prior of its nated the Any “major improvements.” needing tion,” “adjudication] ... in an embodied above was “consid- scored 60 or school that judicial procedures.” through proper Capacchione, subject. See testimony on the expert that the district court found 13. The plaintiffs, Capacchione F.Supp.2d 264. of the called on behalf Armor, offer no reliable J. could Dr. David Houk) ability (testimony ered to have the to serve the edu- J.A. 4769 of Annelle (“[T]he 12174. program adequately.” cational J.A. schools that were the worst repair poorest supply and had the of re- study of Dr. Gardner’s The results ... sources were on the west side and troubling. average forty score for the they were predominantly populated by (racially Group 3 schools balanced or imba- students.”). Kramer, black A. John co- predominantly lanced-white in white or advisory chair of an task force created areas) Although balanced was 61.7. Board, made formal visits to several data indicate a situation that is far Group 3 Among CMS schools the locales (racial- ideal, Group the ten itinerary on Mr. Kramer’s were areas) Elizabeth ly predominantly black balanced Lane Elementary, predominantly white worse, an average fared much score prosperous school located suburban twenty-three of the 56.3. The scores (imbalanced-black) area county, and Shamrock 1 Gardens Group schools were still, trial, just Elementary, a downtown averaging worse 53.3.14 At school with an disparities Dr. confirmed that the African-American population Gardner student ex- apparent from the above ceeding sixty percent. numbers were Mr. Kramer’s de- respect “substantial” with to the facilities scriptions of his visits sharply: contrasted generally available to white and African- compare Elizabeth Lane [T]o Elemen- attending American children CMS. J.A. tary an example, which is a relatively 6196-99. Matthews, new in located I school, walked into

The anecdotal accounts of a that I was over- number of effectively whelmed because I witnesses corroborated Dr. had never set foot in See, e.g., Gardner’s conclusions. J.A. 4992 school that was like that before. It clean, (testimony of Board member Pamela was light airy, R. was it was a (schools Mange) with prob- facility.... “more severe” beautiful My overwhelming black); lems predominantly was, wow, tended to be feeling I my wish kids could famously (by 14. It has been said either Mark Group average by would lower the 1 more or, earlier, Disraeli, Benjamin depend- Twain point. than a full Or we could state without source), ing on one’s "There are three kinds twenty-three error that Group seven of the lies, (more damned lies and statistics.” A percent) schools than lies— scored below difficulty dealing common statistics is only forty while Group five of the by illustrated analysis district court's (12.5 percent) similarly. scored In- study. Dr. Gardner's The court first noted deed, Group high we note that none of the that, scoring of the four schools in the lowest higher yet schools scored than all those in category, Group two were in 1 and two were Groups 2 and 3 scored at 50 or above. Of Group Capacchione, F.Supp.2d 3. course, rightly one would view this latter dec- Next, 264-65. the court observed that the skepticism laration with some once it became highest ratings elementary two accorded known high there are but fourteen again split Groups schools were between CMS, only schools in two of which were in- and 3. Id. at 265. Based on this selective by Group cluded Dr. Gardner in data, culling of the the lower court concluded pick-and-choose gets The method us no- analysis that "the results of Dr. Gardner’s do where. The value of Dr. Gardner's research disparities along not show racial lines.” Id. general lies in the conclusions that can be at 264. entirety drawn from the of the data. The that, most sufficiently general The forest that obvious conclusion is as a is is not matter, mapped by the documentation of a few imbalanced-black schools in CMS are trees. accurately shape We say, example, by larger could for in worse than those attended Group proportions omission from 1 of the brand-new ele- of white students. Once we ac- mentary by cept premise, school referred remaining ques- the lone having highest ratings any significance court as one of the "Why?” tion of maintain that Capacchione plaintiffs another observa- And to this school. go facilities, exist discrepancies I no was that when very was clear tion that do, they discrepancies if such virtu- and even body, it was at the student looked students, benign origin. Capac- Had the obviously, totally afflu- all white ally theory, their we plaintiffs proved time. chione ent, having great happy kids the district be constrained to affirm would hand, my experience, the other On status has court’s conclusion Gardens at Shamrock example, to the facilities respect achieved with been I had never shocking by comparison. however, court, re The district factor. be- of these schools either one visited prove Capacchione plaintiffs quired fore, which is to visit that school but erroneously placed it instead nothing; predomi- students are city, inner and the Swann burden on CMS students, me of it reminded nantly black in affirmatively present show that the lit- There was 1950s motel. a rundown of official vestige in facilities are a equities except to the rooms erally no access discrimination, ie., to the causally related walkways that were covered outer jure system segregation. Ca prior fix- de rusted, overhead dilapidated at 267. F.Supp.2d using pacchione, were closets They .... tures carpets in. The children things to teach a matter of The district court erred as just It threadbare.... stained and were development of evi- foreclosing law clean, good. it didn’t feel feel didn’t analy- proper vestige dence relevant to honestly say parent, that as And I can por- remand this We would therefore sis. my relief that heartfelt reaction was my parties permit the case to tion of go to school didn’t have children the additional court to elicit the district there. ques- necessary fully consider facts those Board members 6098-99. Even J.A. to the cur- respect causation with tion of a determination pursue who voted to Because inequities racial facilities. rent court ad- the district unitary status before adjudged to previously not been CMS has was a in facilities disparity mitted that status, we would unitary have attained (tes- 1817, 1820 within CMS. J.A. problem on re- plaintiffs charge Capacchione Puckett); H. J.A.1918-19 timony James demonstrating mand with the burden Lassiter); J.A. (testimony of John W. jure de racial vestiges past Kakadelis). Lindalyn (testimony of 2095-96 context of the school discrimination eliminated have been system’s facilities reasonably clear that it seems Although practica- to the extent in “root and branch” facilities exists disparity in a racial CMS, ble.15 apparent. is somewhat less its cause uniformity in resources proposes to achieve findings no district court made

15. The allocations imbalanced with re- across practicable remedies exist whether gaps and resource schools' current reflect the light of the court's re- spect to facilities. In Likewise, the 11038-40. imbalances. J.A. proposed five- the Board's fusal to consider disparities Plan, associated Plan identifies Remedial it cannot be determined year Remedial facilities, and the instructional with race in practicable reme- whether in the first instance renovating note, building replacements or proposes disparities exist. We the current dies to schools that are however, existing for sixteen specifically facilities that the Remedial Plan or are racially as black identifiable either disparities associated with race identifies tract. predominantly black census in a mate- located instructional needs for schools' baseline centers, building maintenance Uniform J.A. 11041-42. the lack of rials and media proposed. J.A. procedures are adequacy standards and to evaluate standardized criteria evaluation, develop- Monitoring, Plan 11043. J.A. 11037-38. The resources. of these Transportation S. white children. provides Because CMS all children, race, regardless of access transportation at School bus transportation, Judge Potter concluded epicenter original litigation, Swann that CMS had achieved status degree to which involun- specifically respect to this factor. Green tary could used to busing implement desegregation remedial decree. The Su- We must be mindful of the Swann, course, preme ap- Court Court’s command to consider the interre- proved busing accepted as a “normal and latedness of the various Green factors. at policy,” tool educational U.S. Freeman, at S.Ct. at least to the extent that (court must consider “whether reten- rigors pose of time and distance would judicial tion of necessary prac- control is little risk to the affected students’ health compliance ticable to achieve with the de- process or to the educational as a whole. cree in other system”). facets of the school 30-31, at See id. 91 S.Ct. 1267. In the context, In this we can only conclude that intervening twenty-nine years, has factor of transportation Green is so heart; taken the license to during Court’s inextricably intertwined with the Green year, every 1998-99 school five of six assignment factors of student and facilities system students in the school rode a school that vacatur on these latter issues would bus. also mandate vacatur on the former.16 Upon review of the Green factor of The Swann maintain and offer transportation, Judge Potter concluded substantial record evidence that the may grant unitary that “a court bur- status transportation busing when dens of provided purposes on a non- being borne discriminatory disproportionately basis.” 57 and un- F.Supp.2d words, fairly according other to the African-American children. court, 31-32, 33-35; a school Brief Appellants achieves see Swann, (district unitary with respect transporta- status F.Supp.

tion it provides once access to in transporta- commenting initial stages of remedia- tion non-discriminatorily to black and tion that it did not intend “to endorse or appropriate (2) ment of jure segregation criteria for evaluation could not be remed proposed equity are also to maintain across by any practicable ied Capac measure. system’s the school resources and facilities. chione, F.Supp.2d analysis at 280-81. An 11038-40, J.A. 11042-43. disparities may of in student achievement only appropriate system once the school Freeman, 16. Pursuant to the district court ac- unitary respects. has achieved status in other cepted the invitation of the Board and the Swann, ("Until F.Supp. See at 1309 un vestiges Swann to consider whether eliminated, segregation lawful is it is idle to of official concerning discrimination remain speculate whether some of this [achievement] ancillary factors of student achievement gap charged can be to racial differences or to discipline. and student The court found in lag.”). very socio-economic-cultural’ At the negative, concluding that CMS had at- least, student achievement in case this is inex unitary agree tained status in both areas. We tricably intertwined with the other Green fac judgment regarding the district court’s tors, particularly assignment. discipline student student There should be affirmed. fore, for reasons akin to those discussed in respect ancillary With to the factor of stu- analysis achievement, however, our transporta Green factor of dent we would vacate tion, Judge we holding would likewise Potter’s conclude that status had Judge been requires achieved. Potter student achievement found that dis- factor further parities in student achievement existed but consideration. (1) disparities that the vestiges were not of de formerly recently black schools will not or plan puts which any future approve formerly inferior to those or upon be primarily desegregation burden race”). recently system”). white schools percent of students Eighty one a a result of currently ride the bus as who evidence at trial demonstrated that African-Ameri- mandatory assignment faculty in substantial assigned rejected any consider- Judge Potter can. order compliance desegregation with the evidence, holding that ation of principals until when school at least unitary status has achieved school district actively granted leeway recruit were as soon as it transportation respect with teachers without the strictures new basis. The on a race-neutral provided is racial maintaining specific proportion. evidence, however, the close demonstrates from central- gravitation a result of this As interrelationship transportation faculty assign- ized to site-based control of In of our con- assignment. view student ments, away proportionality trend unitary with yet is not clusion that CMS 1998-99, In one-third of the emerged. has think it assignment, we regard to student by the remedial decree 126 schools covered over relinquish control premature to is faculty deviating proportion had a of black stage.17 transportation at this percent system- than ten from the more (about twenty-one percent).

wide norm Faculty change policy, A no more Prior to the 1992 had ever been than one-sixth of the schools take analysis of this factor must two Our so situated. account. must deter- concerns into We that the current trend generally We are satisfied whether CMS has mine both a ves- faculty imbalance is neither toward vestiges of discrimination eliminated product nor the tige of the dual and whether the teach- faculty assignment, There no subsequent discrimination. black assigned predominantly ers legal trend results from to those evidence that this comparable quality schools are within CMS compulsion administrative large numbers of or teaching schools with Swann, desirability about students.18 F.Supp. perceptions or from white (final undesirability teaching positions directing at 268 order predomi- serve students of faculty as- schools that composition racial that the short, per- race. we do nantly that of the one to each school reflect signed de relationship past between that “the ceive a causal large, proviso with the assign- jure segregation present in and of teachers competence experience and particular specifi- court considered 18. The district the Remedial Plan does not 17. While propor- racially if its factor, school to be imbalanced cally transportation a Green address varied students tion of African-American propose siting in a man- new schools it does percent district- from the more than fifteen promote racial balance ner calculated 1998-99, average. African-Ameri- wide CMS chooses sites for CMS. J.A. 11042. If elementary stu- represented of the cans 42.7% to the that are more accessible new schools CMS, of the middle school dents in students, 41.7% presume population, we majority of the black high school stu- and of the 39.6% would have to be that fewer black students elementary An school dents. J.A. 11574. desegre- purposes bused to the suburbs designated be imbalanced- would therefore siting approach gation. A new its students are if more than black African-American; 57.7% vestiges past discrimina- would address conversely, if African- remain, tion, vestiges areas in in those if such of the less than Americans constituted 27.7% designated yet sta- body, CMS has not achieved the school would which student imbalanced-white. tus. faculty Although give ment of members to schools within these facts us reason for concern, CMS.19 we think it imprudent to disturb the district court’s conclusion that the trial Nor do we think that this trend toward affirmatively evidence no link disclosed be- racially more imbalanced faculties has re- past tween discrimination and the current disparities quality sulted of teach- asymmetry. revealing point Most on this ing, years as measured the instructors’ that, now, until is the issue of teacher In- experience post-graduate work. quality within deed, CMS has not been contest- significant there is no difference in desegregation ed. The 1970 order man- experience between faculties imba- compared dating equal competence experience lanced-black schools as to those that are imbalanced-white. faculty assignments Faculties at was not meant to rem- year black schools are about one expe- less edy disparities then in- existing, but was rienced than the average, district-wide against stead intended caution future while faculties at white schools are corre- imbalances. In the intervening thirty spondingly disparity more seasoned. This years, there is little indication that CMS concerns, may arouse initial some until one neglected has to heed warning inher- typical is informed that the teacher ent that order. We therefore agree that spent has more than years ten in the class- the district court did clearly err room. The upshot is that black and white concluding that developing disparities are, students alike meaningful with no dis- in teacher assignments (perhaps tinction, enjoying the benefits of their superficial) deficiency in quality of in- experience. teachers’ substantial currently struction afforded African- post-graduate difference in edu- American children are unrelated to the de cation between black-school and white- jure segregation prevalent once in the school faculties pronounced. is more For system.20 every three teachers holding advanced de- grees ply who their craft at imbalanced- 5. Staff schools,

white only similarly there are two In substantially the same manner as it qualified assigned teachers to schools that teachers, spoke to the allocation of Compared imbalanced-black. to the final provided order average, white schools have a school, operation “the internal larger somewhat of each proportion high- of these ly instructors, assignment trained and management while the allotment of school granted to slightly employees, black schools is of course less be conducted on a than the norm. non-racial, non-discriminatory basis.” pattern faculty assignments Even if the shortage national teacher .... [which] were vestige past somehow shown to be a especially pronounced regard to black discrimination, official teachers, the evidence before particularly region in this upon the district court casts substantial doubt country. ability practicable the Board’s to effect a rem- edy. Capacchione, F.Supp.2d Although 258- position, 20. the Board’s official as Plan, 59: outlined in its Remedial is remedia- vestiges jure segregation ble of de do remain losing significant CMS runs the risk of faculty assignments quality, as to faculty assign- numbers of teachers if its policies weight clear contrary. ment of the evidence is to the become too restrictive.... practical problem Another The district court's faced the dis- failure to consider the trict constantly is the fact that it must Plan was hire therefore harmless in this narrow respect. thousands of new teachers in the midst of a American students certain activities re- Swann, Inasmuch as F.Supp. at 269. to exclude them. challenge to flects the efforts of CMS raised no the Swann in the court’s with the discern no error compliance We system’s the school regarding conclusions this Green factor. regard, in this desegregation order to have achieved found CMS court below support to its

unitary regard status with C. of the agree aspect this staff. We foregoing, agree Pursuant to the we be af- judgment should district court’s should affirmed in its the district court be firmed. re- determination of status with staff, faculty, extracurricular ac- spect 6. Extracurricular activities tivities, However, discipline. and student trial, Afri the evidence at According to judgment we believe that the court’s participate can-American students CMS should be vacated and the case remanded class office at a rate in athletics and hold in the for further consideration areas to their These proportionate numbers. facilities, transporta- assignment, student behind, however, lag far same students tion, and student achievement. co-curri participating when it comes programs. J.A. cular clubs and honors III. However, scope inquiry of our question turn to the of whether We now lim concerning extracurricular activities is adoption expanded mag- the Board’s whether only need determine ited. We with its race-con- program net schools students system permits its the school assignment policy violates Con- scious activities, access to extracurricular equal it does not.21 conclude that stitution. We to Save regard without to race. Coalition Op. also at 353-355. See Wilkinson Bd. Educ. Our Children State (3d outset, note that it is undis- Delaware, At the we Cir. 90 F.3d 768-69 1996) (citation omitted); Swann, expanded magnet that this schools puted see also (“[T]he respects in critical 18-19, differs program assignment plans all race-based student responsibility of school au first remedial held to be conflict racial that have been to eliminate invidious thorities is Equal Protection Clause. Unlike such matters respect to distinctions. With to have violated the districts found personnel, transportation, supporting Constitution, challenged activities, adopted the no more and extracurricular dual, segregat- operating while program In these may necessary.... than myriad of court areas, system, ed school under practice normal administrative commanding the Board to eliminate orders quality, of like fa produce should staffs.”). segregation. the unlawful cilities, and record at- public The court orders —the surely equal The criterion access numerosity and demands— in tests to their regard. Participation in this satisfied and best expertise require clubs is use programs honors and co-curricular prompt- its schools desegregate efforts to voluntary, and there is no evidence strictly directed repeatedly ly. African- The federal participation the lack of (5th Cir.1998); Rock Sch. Little 306 n. 8 the district court's factual find 21. We review Dist., legal conclusions ings for clear error and its 109 F.3d Rock Sch. Dist. v. North Little Freeman, U.S. at 112 de novo. See 503 (8th Cir.1997). 516 Texas, 1430; 158 F.3d S.Ct. United States 398 acknowledged employ Judge properly its “full ‘know- Potter

the school board to “any means at governing how’ and resources” to use both the court orders and the away with the uncon disposal” to do [its] fact that the remedial measures CMS took stitutionally segregated system. them, pursuant including expansion ; Swann, at F.Supp. 311 accord magnet program, its schools could not be 269 Swann, F.Supp. (characterizing at 802 318 analyzed by if a “de facto” uni- taken important single this directive as “most tary Capacchione, school district. 57 order); Swann, element” of its see. also (“The F.Supp.2d at 285 Court finds no (“[S]chool at 91 S.Ct. 1267 U.S. legal finding unitary basis for a of de facto ‘clearly charged with the authorities abrogate status that would immu- CMS’s duty steps affirmative to take whatever words, retroactively. In other nity necessa'ty unitary to convert to a might supervision termination of court cannot which racial discrimination time.”). Yet, ‘relate back’ to an earlier ”) would be eliminated root and branch.’ notwithstanding undisputed CMS’s status Green, 437-38, (quoting multiple as a dual school district under 1689) Swann, added); (emphasis S.Ct. schools, desegregate court orders to its F.Supp. (giving authority at 1105 CMS judge adoption held that the Board’s continuing to resolve “the prob sizeable expanded magnet program schools yet ... remaining by spontaneous lems Equal violated the Protection Clause. board”); Swann, action staff or 306 Furthermore, he found this constitutional F.Supp. (leaving at 1297 choice of “[t]he violation rendered liable to the Ca- job desegregation” how to do the to pacchione plaintiffs damages and enor- CMS, noting and it “has wide discretion in attorney’s mous fees. methods”) added); choosing (emphasis Swann, Capacchione plaintiffs up- seek to F.Supp. (providing hold that ruling grounds. on several First authority CMS with “to consider all ”) ways (emphasis principally, they known contend that added). Freeman, Accord magnet 503 U.S. at Board’s increased reliance on (“The duty responsibili S.Ct. “voluntary desegre- schools constituted a ty segregated by of a school district once gation plan implemented to de- counteract steps necessary law is to take all to elimi mographic change,” good rather than a vestiges nate the of the unconstitutional de faith vestiges effort to eliminate the (first added). jure system.”) emphasis required by discrimination as the court Second, governing they orders this case. Nor is there doubt that at the time argue expanded that the program’s race- adopted expanded magnet assignment policy conscious violated the plan, schools a unitary was not existing desegregation Finally, orders. system. This if Judge is because even that, they expanded maintain even if CMS Potter did not err in decreeing that CMS (and program pursuant has unitary now achieved status we did), compliance decision, governing prior believe he to his no orders, scrutiny strict applies court had ever nonetheless determined that CMS had requires program be held Capac- attained status. As the concede, chione unconstitutional. The district court Judge prop- Potter’s rejected erly decision—not some the first and third argu- earlier event—“termi- ments, injunction” by Judge issued and the dissent not seek nated[the] does McMillan and Accordingly, although affirmed resurrect them. we contentions, Appellees Court. Brief of at 3. all of address these we initial-

399 second, jurisdiction on order issued a court with only one ly examine the court, dissent, expected obey to that decree until it is or the which the district reversed, they modified or even have relies. if grounds object proper to to order.” A. Sylvania, Inc. v. Consumers GTE Union States, 875, 386, 445 100 United U.S. mag- concluding expanded that the (1980) 1194, (empha- S.Ct. 63 L.Ed.2d 467 violated the Constitu- program net schools added); sis see also & W.R. Grace Co. tion, committed two fa- the district court 759, 757, 766, 461 Local Union U.S. it the extent Initially, ignored tal errors. (1983). 2177, 76 L.Ed.2d 298 S.Ct. entity gov- an protection of the afforded Then, orders. erned federal court only possible exceptions to this “im recognize to district court refused Grace, portant public policy,” W.R. expansive terms of broad directives and 766, 2177, at 103 S.Ct. arise if a court U.S. orders, and so failed controlling jurisdiction subject lacks over the matter “ expanded its appreciate to that the Board ‘only of the order or the order has ” faith to program good GTE, pretense validity.’ frivolous orders, comply with these and thus cannot 386, at 1194 (quoting U.S. S.Ct. Walk be held to have violated Constitution. 307, City Birmingham, er v. 388 U.S. both errors. replicates The dissent (1967)). 1824, 18 87 S.Ct. L.Ed.2d 1210 had question,

Without the federal court jurisdiction subject matter of the over the 1. dissent, ease Potter, desegregation orders issued pay like the does Judge suggests and no one those orders “immunity” the Board lip service to pretense subject “only it to numer- constituted frivolous enjoyed because was decrees, see, validity.” judicial desegregation ous e.g., F.Supp.2d at Capacchione, Accordingly, obey CMS had to those (“CMS immunity enjoys liability notwithstanding orders. This is so with the any actions took consistent required the Board may those orders have injunction.”); Op. at 46. Court’s Traxler see forego competing obligations, W.R. ap- But the district court and the dissent Grace, 767-68, 461 U.S. at 103 S.Ct. what the nu- parently do understand seemingly required including obligations required merous court orders this case GTE, statute, see at by a federal protection and the breadth of the 2, 386-87, n. or the 378 & S.Ct. Thus, it. both those orders afforded to itself, Walker, see 388 U.S. Constitution Judge Potter and the dissent mention the Indeed, Súpreme 87 S.Ct. 1824. subject passing, failing even to cite only that an explained has that to hold Court controlling Supreme point. Court cases on obeying a valid entity “improperly” acts id. to the com- court order “would do violence understanding ‘improper- of the term entity subject judicial A to a mon person or ” (as if the order is later held unlaw- injunction indisputably ly,’ even

decree or GTE, dual, segregated ful or unconstitutional. operating was when its Moreover, a court with that de- system) comply must specific precise order need not mandate injunction, notwithstanding pos- cree or Thus, Thqs, compel obedience. procedures sible unlawfulness. the Court noted the “breadth unequivocally although direct- clearly Court has challenged in injunction subject injunctive vagueness” to an “persons ed that 400 order,

Walker, until it objections held that the in- to the is modified it nonetheless reversed.”). obeyed until “modified junction had to be or Walker, 317, 388 at 87 or dissolved.” U.S. Dowell, Similarly, in the refused Court S.Ct. 1824. interpret arguably ambiguous to an court punish order are [a court] “Violations having desegrega- order as terminated the contempt though criminal even the able as previously against entered the tion decree appeal.” aside on United order is set Instead, City school board. the Oklahoma Workers, 330 States v. United Mine U.S. the the district Court remanded case to (1947). 258, 294, 677, 91 L.Ed. 884 court for a determination of “whether the 427 at 96 Spangler,

Accord U.S. S.Ct. showing made a sufficient of consti- Board (“Violation injunctive an decree ... 2697 injunc- compliance tutional ... to allow the punishment contempt can result in for Dowell, at tion to be dissolved.” 498 U.S. imprison the form of either fine or so, doing 111 630. In S.Ct. Court ment”). Conversely, person when a or judicial explained carry orders bind- entity good comply acts in faith to with a authority they ing until are modified or order, punished. court should not be dissolved. Thus, here, in words that resound the Su preme explained Court has that “a school Moreover, rejected the Dowell Court constituency board and a school which at precisely argument Capac- the kind of tempt comply de a[court-ordered make chione seek to here. segregation] plan to the best of their abili Dowell, here, those challenging ty penalized.” Dayton should not be Bd. (and argued school board’s actions Brinkman, 406, 421, Educ. v. found) appeals court of the school (1977). 97 L.Ed.2d S.Ct. 53 851 “unilaterally contrary specific board provisions” controlling of the court orders

Indeed, twice Court has contemplated by “acted a manner not expressly held that school boards under the court in its earlier decrees.” Dowell court desegregate comply orders to must Okla., by Dowell v. Bd. Educ. desegregation with those decrees until ab (10th Cir.1986). F.2d The Su obligation by solved of that a subsequent preme acknowledged that might Court order, if the existing desegrega even so, well but concluded that nonetheless improper unnecessary. tion decrees are it did “not think that the Board should be In Spangler, the Court concluded that the penalized relying for on the lan express district court exceeded its remedial discre Dowell, guage of that order.” 498 U.S. at tion when it ordered the Pasadena school 1,n. if Similarly, S.Ct. 630. even reconfigure its student attend CMS had “acted a manner not contem annually ance zones so there would be plated” in governing orders—and majority any minority” “no not, clearly infra, part it did see at III. 434-35, school. 427 96 S.Ct. 2697. penalized rely A.2—it should not “be order, Despite impropriety of this ing express language” on the of those or Court held that the school board had to ders, Dowell, 498 U.S. at 249 n. obey properly the order until it was modi 630, i.e., [its] S.Ct. “to use full ‘know-how fied or reversed court. See id. at (“[T]hose 439-40, ... and resources to achieve the constitu S.Ct. 2697 who are [i.e., subject injunctive to the commands of an tional end commands, obey by any disposal.” order must schools] [its] those notwith means Swann, standing eminently and proper F.Supp. reasonable at 802. BD. OF EDUC.

BELK CHARLOTTE-MECKLENBURG (4th 2001) Cite as 269 F.3d 305 Cir. course, vestiges Capacchione plaintiffs segregated sys- inate the Of instance, tem “root and branch.” For sought modify have or dissolve could Judge inconsistent with then- 1970 McMillan mandated: orders as Swann Constitution; they what under the rights That the defendants maintain a continu- injunction, an or not do is obtain could ing control over the race of children in declaration, compelled that a to ad- party each school ... and maintain racial violated the Constitu- here to those orders make-up (including any each school of doing. obliged to tion in so schools) any and reopened pre- new desegregation orders governing follow the becoming racially vent school thus the Board injunctions, and and duty imposed by identifiable.... Brinkman, 433 penalized,” not be “should by desegre- the law and this order is the actions, at S.Ct. for its U.S. 97 gation of schools and the maintenance of comply taken to with those which were that condition.... The are defendants found, the district court orders and which encouraged to use their ‘know-how’ full dispute, does not were and the dissent to attain the results above and resources Op. in Trader at 41. good taken faith. See described, con- and thus to achieve the by any stitutional end means at their mind, we turn principles these With disposal. The test is not the method or in this case desegregation to the orders plan, but the results. response and the Board’s actions (emphasis 311 at 268-69 added F.Supp. those orders. omitted); emphasis and see also 362 (same); F.Supp. at 1225 at F.Supp. (same); F.Supp. (approv- at 1342 Throughout desegrega- the course of the “if ing counsel’s statement that this Board case, federal tion efforts in this run integrated of Education chose to an level to the Su- courts—from the district preconceived basis preme Court—have told the Board that it ratios, right”) it has that constitutional authority steps take “whatever has the (or- added); (emphasis F.Supp. at 801 might necessary to convert to a “[tjhat ‘freedom of choice’ or ‘free- dering Swann, system.” by allowed may dom of transfer’ not be Swann, 1267; F.Supp. at 1360 see also any given if Board the cumulative effect (“The Board is free to consider all known in- group transfer or of transfers is to added). ways desegregation.’’) (emphasis substantially degree segrega- crease Thus, continually acted under CMS has tion in the school from which the transfer judicial directives that choice of how “[t]he in the school to which the requested job is for the to do the desired”). transfer is Swann, School Board —not for the court.” Moreover, Burger’s opin- Justice Chief also F.Supp. at 1297. See Wilkinson pro- ion for the Court Swann Op. at 353-355. explicit sanction of the Board’s use vides proportions assigning racial “ratios” or beyond broad discretion to

Even CMS’s students to schools: eliminating choose its own methods of its schools, traditionally authorities unconstitutionally segregated School power with broad to formulate repeatedly charged McMillan’s orders en- Judge and implement policy education general power dorsed the Board’s conclude, example, that in might racial well for duty to maintain control over the to live prepare to elim- order to students composition of the schools order may guided have to be society each school should pluralistic by the number Negro composition racial prescribed ratio have a area, drawn from each other school reflecting proportion white students space program considerations of as a whole. To do this the district only. policy an is within the broad educational authori- discretionary powers of school added). (emphasis Id. at 1108 ties; finding absent a of a constitutional directives, in the response to these violation, however, not be that would 1970s CMS established some authority of a federal court. within schools, “optional schools.” which called (emphasis 91 S.Ct. 1267 two curricu- special These schools offered added).22 “open” and “traditional” —both of la— only empowered “very rigorous to use which constituted academic Not assignments generally, program[s]” ratios student not offered “conventional 1992, 2489, specifically was also authorized to use In schools.” J.A. 15683. “ap- assignment policies race-conscious expanded magnet pro- its schools Board propriately integrated optional schools.” gram into a district-wide with a Swann, F.Supp. Judge at 1103. curricular range wider choices. approved policy,

McMillan the Board’s expanded magnet program, schools provided: which the curricula Board retained first available early magnet “optional” in the or Strict and central control must be exer- schools— (reassign- “open” emphasizing cised over all admissions curriculum “inter- ments) optional disciplinary approaches,” to each school in order and “tradi- necessary fulfill the that these featuring “highly ends tional” curriculum a open county schools be to all residents program.” structured 16722-23. J.A. integrated by grade Furthermore, and be at or above early magnet six of the approximately 20% black ratio. curricula prior schools offered such Reassignments optional schools must Park, Elizabeth, Hawthorne, Myers 1992— jeopardize composition the racial Avenue, Piedmont, Irwin and West Char- any other school. today lotte—continue to do so under the expanded magnet program. and central monitoring

Guidelines schools Com- 13448, 13529-40,15683 Pupil Assignment staff with the re- pare (pre-1992 J.A. spective principals “open” magnets) are to' be and “traditional” (1998-99 up. Capacities “open” drawn and allocation of J.A. 16722-23 and “tradi- (re- maximum that may magnets); numbers students tional” see also J.A. 10061 port indicating be drawn from each other school attend- that pre-1992 magnet area, race, designated. incorporated ance are to be schools were into the 1992 The actual enrollment the optional expanded magnet program).23 schools Swann, 16, suggestion holding 22. The dissent’s that this 402 U.S. at 91 S.Ct. 1267. This is attempting not an instance in which CMS is abrogated by Wygant in Swann was somehow analogous Supreme an Educ., 267, 283, to extend Court hold- Bd. Jackson Rather, ing to fit its own needs. (1986) 106 S.Ct. 90 L.Ed.2d 260 and specifically, Court authorized CMS's actions Co., City Richmond v. J.A. Croson and that authorization has never been over- 469, 494, 102 L.Ed.2d 854 such, ruled. As CMS is entitled to follow it. overruled, (1989) baffling. is Neither case infra, part at III.C. explicitly implicitly, or the Swann Court's au- assign thorization for school board to Judge recognized optional 23. Potter that the according "prescribed students to a ratio.” magnet today's "were similar schools Educ., Yonkers Bd. expanded magnet program schools 837 F.2d The Missouri, (2d Cir.1987); Liddell v. desegregation 1237-39 typical appropriate is a (8th Cir.1984). developed large, F.2d 1310-11 tool “conceived suggestion dissent’s that CMS somehow seeking voluntary districts urban school by expanding violated the Constitution of de busing alternative to as means magnet program schools and “aban creasing segregation.” racial J.A. satellites, feeders,” don[ing] pairings, recognize that “a Even the dissenters Op. particularly Traxler seems ex imple magnet program, properly schools traordinary. Magnet generally schools are mented, be an de can no doubt effective regarded being as a less onerous more at 50. But segregation Op. tool.” Traxler desegregation pairing, successful tool than they suggest expand nonetheless that the satellites, magnet or feeders because it program, ed schools and of provide more opportunity for stu self, may violate the Constitution. See id. See, Stell, e.g., dent choice. 888 F.2d at suggestion surprising, This 352-354. 85; Yonkers, 837 F.2d at 1239. the federal courts have consis given tently approved magnet plans as course, warned, Judge Of McMillan See, e.g., Milliken v. tools. approving early magnet optional 272, 2749, Bradley, 433 267, schools, assignment pupils to such II); (1977) {Milliken Stell L.Ed.2d 745 53 in schools must be undertaken a manner Bd. County v. Savannah-Chatham that ... “provide[s] appropriate- access to Educ., (11th 82, Cir.1989); schools,” 888 F.2d 85-86 ly integrated optional “pre- County Little Rock Dist. v. Pulaski Sch. significant jeopardy to the racial vent[s] Swann, Special Dist. No. Sch. 839 F.2d composition of other schools.” 379 (8th Cir.1988); reason, is, States v. United F.Supp. 1309-12 at 1103.24For this race schools,” having "countywide Charlotle-Mecklenburg good examples” both enroll schools, balancing target.” Capac specialty ment and a racial of curriculum "sometimes chione, schools”). all, magnet F.Supp.2d. called After 57 at 286. He nonetheless it was only optional because the schools did offer concluded that the schools established after magnet "specialized parents curricula” that expanded pro certain 1992 under the schools Grant, Capac (including one gram optional Michael in that "differ schools 2489) plaintiffs, willing, chione J.A. were well magnets specialized [the new] offer curricula expanded prior magnet to the 1992 schools thereby confer a benefit above and be program, desegre to enroll their children in yond regular program.” Id. at academic gated optional J.A. schools. See 286-87 n. 49. The dissent allies itself with fact, view, original "open” six Op. nothing 15616. this Traxler but among "traditional” schools remain CMS's any support the record offers for it. To the magnets. heavily more subscribed See J.A. contrary, assuming arguendo "special that Traditional, "benefit,” Myers 10292-340. Park for ex a ized curricula” constitute ample, waiting had students list magnet provide on its schools instituted after 1992 year. the 1998-99 school See J.A. 2159. precisely pre the same "benefit” as the (proposed "optional schools.” See J.A. 10552 pupil assignment plan recommending Judge The dissent's contention that McMil- against creating magnet already op- "cautio[ned]” continuation of six schools lan (1993 noting place); J.A. 15504 letter tional schools because the schools were magnet "optional in the schools were called marked "failure” flies face of fact, 1992); (Sum Op. prior J.A. Traxler at 49. In schools” orders. Magnet only warnings Judge gave mary Findings From Research on McMillan re- optional garding optional against repeat- explaining that schools were "[o]ur Schools schools”); provide adequate magnet ing past “failure” to schools function as J.A. (Stolee provide explaining transportation against failing to Plan presently existing safeguards against discriminatory "adequate traditional “[t]he schools by the be, particular schools will not be set” assigning stu-

and must considered court, held that “ef- Judge instituted un- McMillan also magnet schools dents to just [by program, board] as forts should be made the school expanded der CMS’s original students to reach a 71-29 ratio the various assigning was in See 379 optional schools. so that there will be no basis for magnet or schools Specifically, under the contending racially at 1108. that one school is dif- F.Supp. Swann, program, CMS allocates 40% expanded ferent from the others.” added). schools for black magnet the seats in its Judge F.Supp. (emphasis at 1312 of other and 60% for students students Potter transmuted this statement —an au- pop- reflects the student races. This ratio “ef- thorization for the Board to make ap- which is system, the school ulation of forts” to “reach a 71-29 ratio”—into a black, white, 41.0% 52.2% proximately assigning prohibition against Board Asian, Hispanic, 2.5% and 0.5% 3.7% to schools on the basis of students generally assigns American Indian. CMS Capacchione, fixed ratio. using to its schools two students F.Supp.2d accept at 286. We cannot this lotteries, one for black students parallel Tak- reading Judge McMillan’s order. white students. When there and one for whole, paragraph provides en interest from black has been insufficient that Judge some of the clearest evidence fill the allocated to them students to seats only McMillan not authorized the Board to school, in a CMS has sometimes particular in assigning use fixed ratios students to allow students of other races to refused to encouraged Recog- but it to do so. Thus, may fill those slots. race affect impracticability adopting a nizing the being assigned student’s chances of court-ordered, system-wide racial balance magnet school. adhere, Judge to which all schools must McMillan did observe that “variations from portion expanded mag-

It is this of the may that be unavoidable.” [71-29 ratio] Judge that Potter program net schools Swann, F.Supp. at 1312. But that unconstitutional, reasoning regarded as imposes statement no limitations on the Judge “firmly rejected McMillan scope permissible Board action. Rath- rigid quotas.” Capacchione, use of racial er, ac- suggests it that “variations” were Swann, F.Supp.2d (relying at 286 on 1312). ceptable only they because were “unavoid- In F.Supp. reaching this able.” conclusion, Judge Potter misread the or- assertedly ig- which he relied and der on accomplished The Board could not have in- multiple nored the other orders and required what orders

junctions governing this case. “using way without race” in the in Actually, very paragraph expanded in the on which “used race” the context of the relied, in In Judge Judge magnet program. Potter which schools the 1970 or- der, Court, pupils by Supreme McMillan held that ratios of affirmed “[f]ixed results,” facts, prevent optional change so as to schools and the critical facts here "resurrecting]” expanded magnet pro- "freedom of choice” are that the schools Swann, plans gram simply expansion under a new name. an of the court- F.Supp. at 1103-04. appointed optional schools. Even if this were so, Moreover, ignore not the Board's decision to a rec- heavy emphasis the dissent’s ommendation from one educational adviser Dr. Stolee’s recommendation to the Board (not certainly lawyer) legal on a matter does approval expanded that it seek court render program puzzling. That not evidence the Board's bad faith or is suggest any one this does not its action violative of court order. advisor should Judge pupils McMillan decreed student majority “[t]hat at a black school could grades assigned way freely all such a transfer into majority the same nearly practicable as as the various schools white school to which the white student grade at various levels have might about be denied admission. The Supreme proportion same black white stu- Court approved this use of majority-to- Swann, F.Supp. minority dents.” at 268. We policies transfer “a part useful cannot fathom how the Board could set out every desegregation plan” and “an indis- proportion Swann, to achieve “about the same of pensable remedy.” fact, black and white students” in each grade 91 S.Ct. 1267. Judge McMillan level in each of its over specifically one hundred upheld majority-to-minori- employing schools without ty plan, fixed racial ra- despite former Superinten- tios as the central components of its stu- dent Dr. J.M. complaints Robinson’s about Neither, assignment dent plan. apparent- Martin, the rigidity of the limit. 50% ly, (“I could Judge McMillan. F.Supp. at 1343 would like to have flexibility had more percent than the 50 To achieve “about proportion,” the same instances, some but I opposed would be necessarily Board had to set fixed recommending any went, plan upper and lower limits on the proportion of going the schools over more than a few white and black students it permit would percentage points above 50 percent.”). grade Only each each school. these fixed racial proportions as its lode- It is certainly true that Judge McMil- stars could the assign Board students to lan’s orders and the Supreme opin- Court’s schools, and approve deny individual consistently ion Swann signaled concern requests to transfer. The Board could with imposition of racial proportions or justified never have a denial concern, of a transfer ratios courts. That federal request having however, without conception fixed problem rooted of feder- exactly how few white or black students al exceeding courts their remedial discre- particular tion, in a school would be too few. in any objection to the use of racial proportions or ratios Indeed, Judge McMillan expressly ap- boards in their desegregation themselves proved many aspects of desegre- the CMS Thus, plans. noted Court gation plan that explicitly were on based that, “[t]he constitutional command to de- strict racial example, ratios. For the segregate schools does not mean that ev- Board’s majority-to-minority poli- transfer ery every community school in al- must cy, which was specifically authorized ways composition reflect the racial orders, governing the takes whole,” school as a on to but went race account in way into much the same very conclude that “the limited use made the magnet assignment policy. of mathematical ratios within equi- the policy, Under the transfer a student in the table remedial discretion of the District majority racial in his current school could Swann, 24-25, Court.” at freely a in transfer to school which he S.Ct. 1267. in minority. would be the racial A white school, student in a majority white for That this concern with ratios is rooted in example, freely majori- judicial could transfer to a power the limits of to order reme- school, ty action, black but that same student dial not in impropriety using of majority could be denied admission to a racial proportions remedy vestiges to school, solely white rigid segregation, the basis of a of apparent is nowhere more Meanwhile, ceiling. 50% racial a Burger’s black than Chief Justice statement 70/30, Board should the School about There, Justice noted the Chief in Swann. a white children on basis 70% assign it circumstances in certain that while black, them to all the and bus and 30% a federal court inappropriate might that it does not feel This court ratio schools. prescribed to “a adherence require to specific such a to make power has the reflecting” white students Negro of to Nevertheless, does whole,” the Board order. as a the “district population power to establish discretionary- have the “within the broad would be formula provide transportation. to do so. Id. authorities” of school powers also Wilkinson 1267. See at 91 S.Ct. Swann, (emphasis F.Supp. at 1371 at 354. Op. added). case,

Indeed, companion Moreover, “the validi- upheld Swann’s this Court Bd. Educ. v. State stu- reassign North Carolina decision to ty of the Board’s 45-46, Swann, ratios,” racial in order to maintain dents (1971), Supreme Court Board is vest- 28 L.Ed.2d that the “School and stated to or ob- any attempt “inhibit discretionary powers held that over broad ed with ratios use of racial the Board’s struct” is well within its policy educational that, explained The Court “must fall.” matter of it decides that as a powers when continuing constitutional past majority “when have a schools should not policy they Martin, had been [as violations are found minority students.” [over 50%] Charlotte-Mecklenburg sys- school repeatedly Having at 1167. been 626 F.2d tem], likely to be useful ratios some that it had the “con- told federal courts An shaping remedy. starting points “maintain racial ratios” right” to stitutional against use of such prohibition segregation, absolute CMS cannot remedy past implicit com- ... device contravenes held to have violated the Constitu- now be 91 S.Ct. 1284. Id. exactly mand Green.” what the courts have doing tion for that a recognized expressly The Court power to do. said it had against assignment prohibition “flat short, again, the federal time and creating racial purpose students for the authorized the courts at all levels have inevitably balance must conflict remedy ratios to employ racial Board authorities to disestablish duty Al- system. unlawfully segregated add- (emphasis Id. systems.” dual school repeatedly the dissent contends though ed). 52, 54, 55, no contrary, Op. Traxler (rather authority employ racial The Board’s prohibited has ever court it) only explicit ratios is supervising than the federal Judge McMil- but also opinions, Court’s “racial ratios.” The dissent’s imposing the effect that statements to repeated lan’s Judge McMillan’s order— contention if any order ... “[independent population student mandating black to run an Education chose this Board of in optional or above 20%” “about the basis integrated schools, proposed instead of the Board’s ratios, it has that constitu- preconceived 20%” lan- approximately “at or above Martin, F.Supp. at 1342 right.” tional ra- rejection “rigid guage—constitutes omitted). (internal In marks quotation Op. singular- is quotas,” cial Traxler fact, litigation Judge in McMillan early unlikely by It seems ly unconvincing. held that: Judge McMillan slight word difference disapproval of the Board’s even indicated a says that since for the

Counsel other- which would “rigid” quotas, use of to black students is the ratio of white permitted have under wise been be allowed to fluctuate.” J.A. 15702. The policy. likely Board’s It seems far more Board’s Executive Director Planning Judge McMillan believed that his or- and Student Placement testified that sev- permitting considerations, der a racial ratio “about or eral race-neutral such as attendance, equivalent sibling above 20%” was to the Board’s would allow a school to policy permitting “depart- a racial ratio “at or from goal.” 3217; the 60-40 J.A. event, approximately any 3091-92, above 20%.” In see also J.A. Contrary 3193-94. linguistic prohibits neither formulation to the dissent’s rigidity, claims of not a adopting Board from an 80-20 ratio for the single magnet school actually manifested a schools, early or optional the 60-40 ratio 60-40 ratio. A J.A. 3185. number of mag- magnet subsequently for schools that net schools came goal, close to the stated in adopted especially light in of the but the percentage of black in students explicit Board’s broad discretion and au- magnet CMS’s schools ranged from 7% to 82%, id., thorization to use strict racial ratios and students that failed gain desegregation other areas of its plan. admission to magnet one school “often a seat waiting ha[d] them at another Similarly, the suggestion dissent’s that magnet school of them choosing.” J.A. expanded magnet program schools dif- fact, 3076. In the two “black seats” about from “optional program fers schools” Capacchione which Christina originally quotas” because the Board set “inflexible complained were ultimately filled two .44, expanded plan, Traxler atOp. students, despite white “in- supposedly simply not borne out the record. In sum, flexible” ratio. the 60-40 ratio truth, implemented a 60—40 was not an “quota,” unbendable either white-black ratio with an eye reaching a policy practice, any or in more than the racial corresponded balance that with the earlier ratio had been. make-up of the population entire student system, just the school as in 1974 it Both the Judge Court and implemented the 80-20 white-black ratio to McMillan provided CMS with “wide discre- correspond popula- with the entire student tion” to fashion appropriate remedies tion at that time. The 60-40 light particular ratio was not pupils needs of its applied rigid more of a system’s “inflexi- and the school experience with ratio; ble” manner than the earlier Board desegregation Additionally, other tools. policy provided magnet that “all schools Judge approved specific McMillan race- would maintain a 60-40 assignment white-black ratio conscious generally measures ” 15%, 13705; plus or minus specifically J.A. see also as to magnet schools.25 3187, 3193, Thus, Assign- J.A. and the adopting assignment Student when a 60—40 permitted ment Plan “racial [to] balance formula in the expanded dissent, Op. 25. The attempt ability see Traxler makes an to limit the Board’s Judge much aggressively McMillan’s 1970 instruction choose its own methods to move schools, that "leave of the court be obtained before forward with the of its making any departure any spe- message material previously but rather was a that this herein,” Swann, requirement cific set out recalcitrant school district should not use its backward, i.e., F.Supp. at 270. steps But dissent fails to ac- “discretion” to take knowledge Judge obligation that this statement departure,” followed “material from its to "goal” McMillan’s declaration that the Board had achieve the of "com- court-ordered plete desegregation "maximum system discretion ... to choose methods the entire to the Swann, accomplish required possible.” that will the Id. result.” maximum extent departure” provision F.Supp. The "material was not at 1298-99. the constitutional end” thorized “to achieve only acted within Board program, discretion,” F.Supp. at desegregation. in accor- Swann 311 but also “wide its Swann, 268-69; F.Supp. at procedures approved see also specific with dance Swann, 1225; As F.Supp. court. at 631. by the district such, Equal not violate the the Board did (and the dis- Potter’s conclusion Judge in ratios adopting such Protection Clause contention) contrary simply to the sent’s program. expanded magnet in schools Supreme reconciled with cannot be Swann, opinions our opinion Court B. case, Judge McMillan’s decrees.

this assign- schools’ race-conscious magnet contention, Capac- principal As their necessary safe- policy ment constitutes argue expanded that the chione unchecked the risk that guard against response was a to magnet program schools increase magnet to schools could transfers than a true demographic change rather racially identifiable schools the number of remedy discrimination. attempt past to continuing of the Board’s obli- violation agree.26 cannot We orders. gation under First, Judge “accept[ed] Potter that the (“Racially at 1105 identifi- F.Supp. See 379 remedy[ acting to ... ] was In may operated.”). not be able schools racial discrimination” past the effects of vein, own Capacchione plaintiffs’ schools expanding magnet the number of Dr. desegregation, David expert on school Capacchione, F.Supp.2d 1992. Armor, per- agreed quotas that racial supports evidence Ample 289. record desegregation plan. in a J.A. missible See, (testimony finding. e.g., J.A. 2716 “race is an Dr. Armor testified that 3627. Murphy, Superinten- former CMS John satelliting, of integral part pairing, dent, magnet plan expand that 1992 schools, running lotteries for magnet among the “creative program was plan predi- The entire magnet schools. stay in controls, strategies up we could come with to on race and race because cated order”); the court J.A. way you compliance the court only that’s the can meet Schiller, plan (testimony an effective is to 3869-74 of Jeff former order and to have research, quo- and racial for as- employ requirements superintendent race assistant sessment, CMS, 3434. basically explain- tas for all schools.” J.A. planning assignment plan, ing that the 1992 student sum, contrary Judge Potter’s con- including magnet schools expanded clusion, Judge specifically McMillan autho- objectives “had the same as the program, of fixed ratios based on race rized the use replace, maintain- going one that it was assigning magnet students to schools. order,” objective ing the court and that the Furthermore, F.Supp. at 1104. expanded magnet program specifi- authorization, specific even without such cally integration “to maintain the granted by the Board the broad discretion means”); through voluntary J.A. in Swann and opinion Court’s (1993 to the 15503-05 letter injunctions other court orders and discussing Department of Education permitted governing this case identify- Judge McMillan’s 1974 order and magnet racially schools with bal- fashion ing the creation of additional The decrees make anced enrollments. ways “more effective among schools as among that ratios based on race were

plain guidelines Board was au- ... established [to] meet[ ] the “means” which the argument. Tellingly, does not even men- tion this the dissent (Stolee Court”); by the J.A. community were not an deseg- obstacle to Plan regation. “[t]he recommendation Char- sense, In a Swann’s basic lotte-Mecklenburg desegregation school teaching is that the Constitution some- plan gradually changed should be from a requires times schools to “counter demo- mandatory plan little with voluntarism to a graph[y]” in order to desegrega- achieve voluntary plan mandatory with few fac- Swann tion. Court noted that ets”). process of “local authorities ... meeting] their constitutional obligations” had “been Furthermore, the Capac- dichotomy rendered more difficult changes ... chione suggest between “coun- patterns structure and communities, of tering] change,” demographic on the one the growth of student population, [and] hand, and remedying past discrimination, movement of families.” 402 at U.S. other, on the oversimplifies both the law of S.Ct. 1267. The expressed Court concern desegregation, school particularly the Su- that “segregated residential patterns ... Green, Swann, preme Court’s decisions lock [would] the school system into the Freeman, and practical and the reality of mold of of the races.” Id. separation achieving desegregation in a large urban Thus, 91 S.Ct. 1267. simply followed school district. early From the stages of the Supreme in Swann guidance Court’s the Swann litigation, all have concerned regarding change problem as a inhibiting understood demographic patterns progress its toward unitary status.27 would complicate process of de- school Indeed, segregation. Moreover, remedies such as Freeman simply did not hold, busing and satellite Capacchione attendance as plaintiffs necessarily zones would never have been necessary imply, that demographic changes in a met- place first the demography if ropolitan independently area eliminate the that, Capacchione plaintiffs 27. The compliance contend with the Swann orders and to given the concern of obvious school officials eliminating vestiges of discrimination demographic changes, "CMS could not system, the school not as the condition that by any have been comply motivated desire to See, itself remedy. e.g., necessitated a J.A. duty with its court-ordered ves- eradicate 13597-98, (Stolee 15572-73 identifying Plan tiges segregation." of Appellees Brief of growing moving "a population” of one analysis 85. But this stands the on head. creating several instability factors in student A court determines from the their of effect assignment pre under the acts, motives, not from their whether school pairing (1993 satelliting); J.A. let- comply desegregation authorities with a de- Department ter from CMS the U.S. of Edu- Wright Emporia, cree. See v. Council listing "demographic cation and residential 451, 462, L.Ed.2d patterns" increasing as one of several strains (1972) ("It impossible any difficult or pairing system); (testimony J.A. 2712 court to determine the sole or dominant moti- Superintendent Murphy former John vation behind group legisla- of a choices really going bringing "[w]e weren’t to be tors, may and the same be said of the choices about racially balanced of a school we board.... Thus have focused began we unless to address the issue upon purpose the effect—not the or motiva- time.”). housing at the same The Board tion—of a school board’s action in determin- may have chosen sites for new schools in ing permissible whether is a method to, response of, or even in furtherance these (internal dismantling system.") quota- dual trends, demographic supra, see but omitted). Moreover, tions marks even if mo- relevant, clearly event the Board also evidenced aware- argument tivation were would population changes, ness that the reading particularly fail. A fair of the record demon- greater although strates that distance between officials ob- white black were shifts, centers, viously demographic population aware of they put greater would strain viewed achieving process these as an desegregation. shifts obstacle to on the 410 pursu- magnet program schools expanded Nor does

vestiges past of discrimination. govern- conformity targeting racial ant to and from courts Freeman bar decrees, part from violated significant resulting ing desegregation isolation is also a choice,” if that isolation Judge Potter “private doing so. the Constitution The effect of (and vestige past discrimination. argument, as do we rejected this have Freeman would holding in a it, such dissent, mentioning apparently in never Green, the Su- which to overrule been it). plain- Capacchione The rejects also to do. In purport did not Court preme attempt- law in rely inapposite case tiffs al- board Green, though the school even taken Board actions ing to establish that as of choice” “freedom every student lowed desegregation to court-ordered pursuant attend, formerly to school to which can be held unconstitutional. decrees and the all black remained black school recent deci they rely on Specifically, predomi- remained formerly white school voluntary, race-conscious finding sions result, a in some white-wholly as nantly (not developed programs school choice.” Green sense, “private order) governing under a that, private although held Court v. Eisenberg Mont their families were unconstitutional. See choices of students Schs., continuing racial iso- 197 F.3d County Pub. gomery for responsible (4th Cir.1999); populations, Arlington student of the schools’ Tuttle v. lation 125 finding (4th a that Bd., fact did not preclude that F.3d 698 Cir. County Sch. vestige a was also Gittens, the racial isolation 1999); see also Wessmann Indeed, the Court past discrimination. (1st Cir.1998). fact, the courts F.3d 790 only permissible that it was held that the school emphasized in those cases to take further action board the school to a court order had not been under system was re- the board desegregate, but that at Eisenberg, 197 F.3d desegregate, to see to action in order take further quired to magnet program a adopted and had desegregate. to duty” fulfill its “affirmative discrimination, remedy past but “not to 437-38, Green, 88 S.Ct. 1689. 391 U.S. at racial, ethnic, and socio promote rather that, at recognized Tuttle, a Although 195 F.3d at diversity.” Freeman economic desegrega- process point added); certain see also Wess (emphasis tion, may present determine that a court mann, (noting prior F.3d at by- a cannot be considered racial isolation instituting magnet program its segregation, past regime product of “had unitariness achieved empow- even require does not the case assignments” and —or the area of student judicial deseg- a under er—a school board relinquished thereupon court “the district determination order to regation make area). Indeed, in Eisen- control over” Rather, was long so as CMS on its own. permissibility berg we endorsed desegregate, court under order situations,” “in race-based classifications racial isolation to treat required hand, past constitution like that at “where and to vestige segregation, as remedial require race-based al violations to eliminate that appropriate take action Swann, (citing 197 F.3d action.” Swann, 402 vestige. 1267); see also 402 U.S. at 91 S.Ct. S.Ct. Wessmann, 160 F.3d at 795. C. The distinction between system under system and a school main- Capacchione plaintiffs Finally, is, legal desegregate order that, even if CMS administered tain Furthermore, Moreover, standpoint, fundamental. if even Tuttle and Eisenberg judicial it supra, finding generally is the of governmental discussed to applied acts status, unitary any particular by performed not action to pursuant desegre- remedial (which gation the board or condition in the school they not), school orders do the which system, upon the distinction turns. expanded magnet Board’s schools program course, for a formerly segregated Of would withstand constitutional scrutiny. school the attainment of system, unitary This is so if precedent because the years status reflects or gradual Supreme decades of Court “has direct application in a change, case,” not an overnight policy shift inferior courts must follow that pre- outlook. Although CMS will not look cedent if appear “even later cases to call it much day different the unitary question, becomes into leaving to Supreme] [the than it have looked previous day, will the prerogative Court the of overruling its own unitary sig- Felton, attainment status triggers Agostini decisions.” See 521 legal 203, 237, nificant consequences. In a nonuni- U.S. 138 L.Ed.2d tary (1997). system, school all or pre- one-race 391 dominantly one-race schools are presumed hardly There could be a clearer case for vestiges segregation,

to be the bur- application Here, principle. this the challenging den is the party to show Supreme Court’s Sivann decision itself nondiscriminatory. schools are those directly controlling precedent. constitutes Swann, See 402 U.S. 91 1267 S.Ct. Swann, the Court concluded that CMS (“The schools, should court scrutinize such constitutionally could be required to make upon and the the school burden authorities efforts “to reach a 71-29 ratio” in the satisfy will be the court that their racial authority, schools assign under and to composition is not the result of present or way students “in such a nearly that as as past discriminatory action on part.”). their practicable the various schools at various aOnce court has declared a school grade levels have about the same propor- unitary, hand, on the other the presump- tion of black and white students.” tion is vestiges of segregation 23-25, U.S. at (approving S.Ct. 1267 eliminated, have been and a plaintiff seek- order). Judge Indeed, McMillan’s the Su- ing to demonstrate a viola- constitutional preme again noted in Court Freeman that tion on the basis of the existence of one- its decision in specifically Swann approved race or predominantly one-race schools racial balancing by achieve “prove must discriminatory on the intent remedial eliminating end of vestiges Riddick, part of school board.” segregation. S.Ct. F.2d at 537. (In Swann, confirmed that ra- “[w]e cial assignments balance school was a Judge recognized, As Potter Capac see necessary part of remedy the cir- chione, F.Supp.2d at imple presented.”). cumstances there Under the mented and expanded administered its principle Agostini, only articulated magnet program prior to ever modify itself can de- Court unitary status and still achieving while un crees in this prohibit case to what Swann der order remedy vestiges clearly so permitted. Therefore, segregation. decisions, recent Tuttle, Eisenberg like addressing the D. constitutionality magnet assign policies ment systems The Supreme Court’s decision in Swann order, case; under court are simply inapposite. is the law of the it must be followed. (1952). made no case, Judge Potter L.Ed. 978 this the law of just than But more finding. func- such also has years Swann thirty almost desegrega- blueprint for school as a

tioned Indeed, Judge only CMS action throughout this Na- tion in school districts to violate the Constitution Potter held law, controlling long as Swann is tion. As (a program magnet schools expanded .the pursuant acts the Board long as reversed); has now holding that Court it did orders —as the Swann the constitu- did not consider judge expanded implementing method of student tionality any other held to cannot be program schools —it allocation. Yet assignment or resource the Constitution. have violated injunction by prohibits its terms the race CMS student

consideration of of educational assignment or allocation IV. equal an students “den[ies] benefits that enjoined from Potter also CMS Judge Capacchione, F.Supp.2d 57 footing.” allocating children to schools “assigning goes much fur- injunction thus 294. The and benefits opportunities educational simply prohibiting than ther lotteries, preferences, race-based through magnet schools reinstituting expanded set-asides, deny that stu- or other means assignment race-conscious and its program race.” footing based on equal dents an policy. In at 294. F.Supp.2d Capacchione, held similar repeatedly This court has injunction, of an considering propriety broad, injunctions explaining “[a]l- too findings only for clear factual we review designed should be though injunctive relief error, application “district court’s but the remedy needed to grant to the relief legal ... presents legal principles not injury prevailing party, should to North Car- reviewed de novo.” question beyond the extent of the established go Beach, F.2d Virginia City olina v. 217; 10 F.3d at see also Hayes, violation.” Cir.1992). (4th 596, 601 Tuttle, Similarly, at 708. 195 F.3d has directed Supreme Court “fflederal holding today the Court’s Given directly must address court decrees not violate the constitutional CMS did violation itself.” to the constitutional relate by con- Capacchione plaintiffs rights of Milliken, 2749. 433 U.S. at 97 S.Ct. magnet expanded race in its sideration of injunction issued this case Because the we would program, because schools this, it must be vacated. did not do yet not achieved also hold that CMS has is, view, status, no there in our unitary V. injunc- court’s legal basis for the district relief, injunctive to the dis- Moreover, if addition even the district tion. damages of court awarded nominal had at- trict determined that CMS properly plaintiffs “to status, Capacchione to the injunction still one dollar tained rights of chil- vindicate the constitutional is so because the must vacated. This equal footing applying injunction only dren denied an issue an district court could Capacchione, schools.” magnet the extent that it concluded majority at 290. Because F.Supp.2d likely persist practices in current magnet expanded holds that the if un- the Court violate the Constitution that would the Consti- program did violate context. schools outside of the remedial dertaken tution, damages nominal it follows that the Med. Oregon States v. State See United also be vacated. 96 award must Soc’y, 343 U.S.

VI. Capacchione plaintiffs’ constitutional rights adopting the expanded magnet The district court awarded the Capac- schools program, but also reverses and $1,499,016.47, chione plaintiffs plus inter vacates the district court’s est, fees, attendant or- attorney’s pursuant injunctive ders for (1994). monetary § relief. U.S.C. Capacchione Capacchione As the Schs., Charlotte-Mecklenburg themselves recognize, it is (W.D.N.C.1999) (amended “self-evident” they can- F.Supp.2d 557 not recover attorney’s “if 16, 1999, orders fees of December Court J.A. reverses on 1313-15, 6, 2000, 1356-62). appealed the order March from.” J.A. Brief of Appellees § Under 113 n. only court is 51. Given permitted to reversal of award “party, fees when a ruling, other than award attorney’s United prevails States” fees an “action to attendant to it enforce” the. must be vacated. Constitution or feder specific al civil rights § statutes. U.S.C. maintains, The dissent however, that be Because Capacchione the plaintiffs have cause this Court has upheld also Judge prevailed not on any constitutional or oth unitary Potter’s status ruling, Capac the er claim providing a basis for statutory plaintiffs chione are entitled to an award of fees, attorney’s the $1.49 million fee award some attorney’s fees. See Op. Traxler at

must be entirety. its vacated 66.28 Our Court properly rejects this no We note initially that this Court’s rever- tion because the unitary status determina sal of the district court’s finding that tion alone provides simply no basis for an magnet CMS’s schools program violates award of attorney’s fees. See Wilkin also the obviously Constitution that all means son atOp. 353 & n. 1. attorney’s fees awarded in connection with a Just few Capacchione ago, weeks plaintiffs’ previous Supreme suc- on removed cess this Court all doubt in issue must be this area. In vacated. The Home, district court Buckhannon Bd. apparently and Care much of Inc. v. based attorney’s Va. Dept. Res., fees award on W. Health ground. See Human Capacchione, (award- 598, 1835, 1839, 532 U.S. F.Supp.2d. 80 121 S.Ct. ing attorney’s (2001), part fees in L.Ed.2d 855 because the Court reiterated “Court found States, for Plaintiff Capacchione parties “[i]n United the core his claim that ordinarily required CMS violated to bear their own at Cristina Capacchione’s torney’s constitutional prevailing fees—the party is not Clause”) rights under Equal Protection entitled to collect from the loser.” In ac added). (emphasis Our today Court cord Rule,” with the traditional “American only holds that did not violate the may courts attorney’s not award fees to contentions, Contrary 28. Therefore, dissent’s the entitlement of the Grant in- did not attorneys’ concede if the tervenors to Grant intervenors recover is tied fees status, directly only to the obtained a merits of those unitary declaration of claims. Appellants Brief (emphasized at 40 lan- without injunction an or determination that dissent, guage omitted Op. see Constitution, Traxler CMS violated they would be 66). course, plaintiff Of prevailed no on the attorney's entitled to actually fees. CMS stat- “magnet claim that the poli- school admission ed: Constitution, cies" violated the other Capacchione, Unlike the Grant intervenors provided claim that statutory for attor- basis granted declaratory were injunctive re- Moreover, ney’s fees. even if CMS had con- lief related to the unitary issues of status contrary, ceded to the there would be no basis and CMS’ policies. school admission for a fee award. that, §if 1988 somehow even We note explicit statu absent prevailing party status, unitary finding of to a mere applied (citing Key Tronic tory authority. See id. finding of a additional consti- some absent 809, 819, States, 511 U.S. Corp. v. United violation, Capac- rights or civil tutional (1994)). 1960, L.Ed.2d 797 114 S.Ct. entitled still not be chione would Buckhannon, Indeed, they do not attorney’s because fees authority to statutory noted that Court parties].” order qualify “prevailing critical, for “Con fees is attorney’s award seeking party “prevailing party,” to be au any roving not ‘extended gress ha[s] “an enforceable must have obtained fees allow counsel Judiciary to thority to the ... decree or settle- judgment consent whenever the as costs or otherwise fees 103, ” Hobby, v. ment.” Farrar them warranted.’ deem might courts (1992). 566, 111, L.Ed.2d 113 S.Ct. Buckhannon, (quoting at 1843 121 S.Ct some defen- Additionally, there must be Serv. Co. Wilderness Alyeska Pipeline “prevailed in the case who has been dant 1612, 95 S.Ct. Soc’y, 421 U.S. with a id. at 113 S.Ct. against,” (1975)). L.Ed.2d legal resulting “material alteration relationship” defendant ease, statutory between simply no In this there is fees, id. at party seeking Capac- of fees to the for an award basis sole issue on which plaintiffs on the chione namely the prevailed, have

they requirement party This prevailing majority Although a determination. Buckhannon, status the in crucial: and we be- regrettably, has this Court “catalyst theo- rejected the so-called Court that mistakenly, CMS lieve determined ground the that ry” attorney’s fees on status, unitary no member of attained there is no has an award “where might permit so, doing or in suggests change legal that in the judicially the Court sanctioned Buckhannon, sooner, parties.” CMS violated of the doing relationship not so 1981, 1983, 2000d, obtaining a By simply the Four- at 1840. §§ S.Ct. U.S.C. Constitution, Board has achieved declaration that the of the or Amendment teenth status, Capacchione plaintiffs unitary the provision law or constitutional any other judg- “an enforceable have not obtained an award of attor- give would rise to decree, settlement;” ment, they consent any § other stat- under 1988 or ney’s fees CMS; nor “prevailed against” have not Capacchione While some of ute.29 “material alteration of they have a effected CMS’s failure to plaintiffs alleged had relationship” parties. between legal it had attained a declaration that obtain their constitutional unitary status violated Indeed, unitary status the declaration so held. Tell- rights, Judge Potter never parties to the status merely restores the Capacchione plaintiffs ingly, appeal, on desegrega- of the quo prior to the issuance offer position, this let alone not not assert a declaration do tion decree. Such does any member any support judgment” for it. does “an Nor constitute enforceable unprecedented plaintiffs. The dissent Capacchione this Court embrace unitary that a Thus, in its assertion there is no basis for an mistaken theory. against declaration is “enforceable status attorney’s here. fees award this, Given how can an award fees. note that if itself had succeeded We operating "private Capacchione plaintiffs, as a obtaining simply a declaration that Board, attorneys general” on behalf of the unitary, no one would was now to fees? Op. at be entitled Traxler would be entitled to contend that the Board unlikely attempts CMS the event it later under court order to remedy past discrimi prior assignment policies.” continue nation (although certain race-conscious Op. Any challenge Traxler at 68. to future policies might longer no be permissible). assignment policies race-based would be Accordingly, this declaration of Board suc ground they cess, violate the Consti- and attendant broadening of the tution, that they not violate a declaration discretion, Board’s does not constitute an Thus, unitary status. a future challenge alteration of parties’ legal relationship Constitution, would seek to “enforce” the way “in a that directly plaintiff.” benefits not unitary rar, status determination. This Far 113 S.Ct. point highlights added). the heart of the dissent’s (emphasis more, Without misunderstanding. Section 1988 exists to declaration that CMS has unitary achieved provide attorney’s fees for plaintiffs those status does not place any direct benefit on they who demonstrate that depri- suffered the Capacchione plaintiffs, who “obtain[ ] rights vations of under rights federal civil nothing from the defendants.” Hewitt v. majori- Helms, laws or the Today, Constitution. 755, 761-62, ty of this Court Capac- 2672, (1987).30 has held that the 96 L.Ed.2d 654 plaintiffs chione have suffered no such de- Moreover, “only those changes a de- thus, privation; they are not entitled to fendant’s conduct which mandated by statutory attorney’s fees. ... judgment in the may case at bar Although the declaration of sta- considered the court determining the represents rejection legal tus posi- success trial” for purposes of tion that CMS has taken in this litigation, attorney’s § fees under 1988. Clark v. such a defeat is not tantamount to being Sims, (4th Cir.1994) 28 F.3d 420 (emphasis “prevailed § against” under 1988. See added). In affirming the district court’s Buckhannon, (“We 121 S.Ct. at 1841 can- determination, unitary status this Court agree ‘prevailing the term party’ does not mandate that engage authorizes federal courts to award attor- whatsoever, “conduct” but simply holds ney’s plaintiff fees to a ... who has complied has in good “CMS faith with reached the ‘sought-after destination’ with- Brown,” the mandate of and that the “dual relief.”). obtaining any judicial Rather, out system has been dismantled.” Traxler Op. primary significance the aof declaration of By at 43. vacating the award of nominal unitary status is that CMS has been suc- injunctive relief, damages and this Court cessful; it has vestiges eradicated the any has removed “mandate” on the actions past discrimination to the extent practica- of the district Having court. been deter- and, ble Capacchione as the plaintiffs put unitary, mined to be CMS is now free to it, obtained a “return of control to local take whatever action it wishes consistent authorities.” Brief of Appellees 34. with the Constitution. Board, upon a declaration of unitari- ness, Thus, actually now has wider Capacchione latitude to the plaintiffs’ suit assign students than it did while it seeking a declaration of status was Capac- 30. The dissent’s rights contention that the former is an action to "enforce” civil plaintiffs helped making chione "in unitari- laws and the Constitution—and con- therefore reality” ness the underscores dissent’s con- templated by § 1988—and the latter ais state- seeking fusion as to the difference between ment that earlier enforcement efforts have injunctive illegal segrega- relief to eliminate having nothing succeeded for reasons to do tion connected awith dual school with with Capacchione plaintiffs' the lawsuit. a declaration that this has been done. The disclo- compel motion to plaintiffs’ rights chione the civil to enforce” an “action not estab- prior the date witnesses to Rather, sure of plain- § these under 1988. laws for disclosure pretrial in the order lished has sought a declaration tiffs witnesses, the court stated but expert by the judgments obtained complied with responses, its supplement must “CMS actions previous plaintiffs Swann such information be- promised, it when Although Capac- rights. the civil enforce awarding In J.A. 195. comes known.” § separate brought plaintiffs chione sanctions, also indicated district court asserting expanded that the claims “lacking been that CMS had its concern Pro- Equal violated program impor- disclosing relevant candor Clause, “prevailed]” not they have tection stage, during pretrial tant information” claims. on those potential of a list of 174 disclosure statutory sum, only is there no In not trial was in the week before witnesses here, attorney’s fees authority to award coun- opposing “extremely prejudicial authority present, if were but even such sel,” on the many of the witnesses and that prevail- are not Capacchione plaintiffs unneces- or may list have been “irrelevant § these rea- 1988. For ing parties under result, As a sarily J.A. cumulative.” sons, for an there is no basis award re- a one-week court ordered attorney’s in this case. fees plaintiffs’ pre- Capacchione cess after depose, at trial to allow them to sentation VII. any of the system’s expense, at the school court’s the district Finally, appeals re- on the Board’s twenty-six witnesses legal including awarding order sanctions— did the Board vised list. Witnesses whom Capacchione plain- and costs—-to fees inter- deposition available make discovery dispute. arising tiffs from the mid-trial recess were during view trial, not re- CMS did the months before testifying. barred Capac- interrogatories spond to of fact seeking disclosure plaintiffs chione 37(d) Rules of Civil of the Federal “Rule Instead, until the Board waited witnesses. court wide gives the district Procedure reveal names before trial to the week party’s for a impose sanctions discretion witnesses, providing fact of its most discovery or- comply failure to with a Capacchione list Loan Ass’n v. Mutual Fed. Sav. & ders.” ultimately narrowed names which Associates, Inc., F.2d Richards & Board twenty-six potential witnesses. The Cir.1989). (4th plausibly CMS could complied with its actions maintains for disclo- the have understood deadline order, which pretrial the district court’s in the witnesses sure of fact contained a list of parties provide the required in effect to have continued pretrial order later each other fact “[n]o witnesses September 1998 or- subsequent after the trial.” day of the first morning than the the order’s cen- given subsequent der J.A. 150. the deadline was to tral effect reaffirm for disclo- however, in order court, pretrial the the granted contained

The district Nonetheless, we expert witnesses. for sanc- sure of plaintiffs’ motion Capacchione court abused say that the district it estab- cannot held that had tions. The court Sep- finding in that its discretion fact wit- broad the for disclosure of lished rules supersede fact 1998 order did in tember September an nesses in order order, and the Board’s pretrial pretrial order. superseded which unnecessarily had conduct been Capac- pretrial order denied the September 1998 dilatory prejudicial Capacchione to the ination and to vindicate promise of the Amendment, plaintiffs. Dowell, Therefore the order of sanc- Fourteenth cf. 266-68, against (Marshall, tions CMS must be affirmed. U.S. at J., S.Ct. 630 dissenting); or it may be in viewed some VIII. way other that we cannot now anticipate. But we are certain that the end of this sympathize We must and do with those great task accomplished must be in an impatient who are with continued federal manner, orderly consistent with and true operation involvement of local origin. certain, too, to its We are that if might thirty-five schools. One consider courts, point, some come to view the years long a time for a school district to effort to vestiges eliminate the segrega- operate judicial under desegregation de- tion as having overly been “race-con- However, crees. Supreme when the Court scious,” they must do so with a clear as- decided Swann 1971 no one could rea- sessment of the historical record. sonably have thought that the substantial task described quickly there would be course, Race neutrality, of represents CMS, easily accomplished. which main- one of our constitutional ideals. Properly a separate, decidedly unequal tained dual understood, an ideal not at all in system educational decades—and tension with our obligation society as a which mightily desegregation resisted of undo the slavery effects of and of the years sort for after it became the law racial system caste perpetuated, of the long land —has come a Al- way. for more than century, in slavery’s wake. though CMS has now achieved unitary sta- mindful, But we must be ever as we strive tus in respects, certain record for race neutrality, that a reductive and case simply does not support determina- willfully a historical conception of race tion that process of desegregation is at was, era, neutrality in an earlier used as a an end. against blunt instrument aspirations African-Americans merely seeking to For more than a years, hundred in fits claim full entitlement to citizenship. starts, our nation has attempted to undo the effects of its shameful heritage striking early down civil rights legis- slavery. nearly fifty years, lation, For federal Court embraced this courts struggled have with the task of neutrality, misconceived race reasoning, dismantling legally segre only enforced racial twenty years after the issuance of the gation many Proclamation, of our schools. Emancipation This task legis- that the has given rise to one preeminent lation at issue would illegitimately make issues of constitutional law our time. black citizens “the special favorite of the yet We do not history Cases, know how will Rights 3, 25, re laws.” Civil gard the (1883). courts’ role adjudicating Indeed, 27 L.Ed. 835 presiding over segregation with which we may schools. It be seen as a brief justified are concerned was inception at its jurisprudential unfortunate anomaly, justi by particular conception of race neutrali- fied only by immediacy ty of the evil it regime of racial separation —that Freeman, uproot, intended to 503 could constitutionally justified be long so cf. 505-07, (Scalia, at J., U.S. 112 S.Ct. 1430 it applied neutrally as equally per- and concurring); or it may recognized be as sons of all races. Plessy Ferguson, v. necessarily 537, 551, 1138, sustained effort to eradi 163 U.S. 16 S.Ct. 41 L.Ed. (1896) (“We deep-seated cate vestiges of racial discrim- 256 consider the underlying favoritism, deseg- rights with civil con- disease: argument to fallacy of As American segregation. regation the enforced assumption that sist citizens, we know better. stamps two races separation inferiority.”). of- badge awith colored race Judge to state are honored We join in this Harlan, Gregory dissenting Judge and Michael The first Justice opinion. be our Constitution Plessy, declared 559, id.,

“color-blind,” 16 S.Ct. one of the

1138, doing provided so articulations compelling famous

most equality. guarantee of the constitutional race, to be “blind” urging us

But not, is sometimes did as

Justice Harlan ignorant suggest we

suggested, America, only member of was the Plessy, he UNITED STATES it. most Plaintiff-Appellee, acknowledge the willing to the Court “Every- segregation: about obvious truth question had that the statute knows one DINNALL, Widney Trevor not so much to purpose, in the origin Defendant-Appellant. railroad persons from cars exclude white blacks, colored as to exclude occupied by No. 99-4936. assigned occupied coaches

people from Appeals, Court of United States Id. at 16 S.Ct. persons.” to white Fourth Circuit. earlier, dissenting in years Thirteen 1138. Cases, Harlan re- Justice Rights the Civil Argued Jan. 2001. rights legisla- that civil jected notion Oct. 2001. Decided favorite of the “special blacks a tion made laws,” id., 109 reasoning majority’s criticized the

he 26, 3 Id. at S.Ct. artificial.”

“narrow and now, Harlan as Justice recognize

We then, simple syllogism no

recognized burdens history’s all of

can enfold race-conscious-

complexities. Eliminating making decision government

ness from among our worthiest regarded as

must be aspi- But that aspirations.

constitutional rigid cannot be so surely

ration the “race conscious- distinguish

refuses to sys- segregated created

ness” that neces- race-conscious efforts

tem and the most system. eliminate that While

sary to historians, must be will- we

judges are not our histo- acknowledge and

ing to confront so, falling risk into fail to do

ry. If we we cure with the equates the

a mode that

Case Details

Case Name: Belk v. Charlotte-Mecklenburg Board of Education

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 21, 2001

Citation: 269 F.3d 305

Docket Number: 99-2389, 99-2391, 00-1098 and 00-1432

Court Abbreviation: 4th Cir.