PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2312
RONDA EVERETT; MELISSA GRIMES; CAROLINE SUTTON; CHRISTOPHER
W. TAYLOR, next friends of minor children attending Pitt
County Schools; PITT COUNTY COALITION FOR EDUCATING BLACK
CHILDREN,
Plaintiffs – Appellants,
and
JUVENILE FEMALE 1; THE GREENVILLE PARENTS ASSOCIATION,
Intervenors/Plaintiffs,
v.
PITT COUNTY BOARD OF EDUCATION, public body corporate,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (6:69-cv-00702-H)
Argued: December 9, 2014 Decided: June 3, 2015
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the majority
opinion, in which Judge Niemeyer joined. Judge Wynn wrote a
dissenting opinion.
ARGUED: Mark Dorosin, UNIVERSITY OF NORTH CAROLINA CENTER FOR
CIVIL RIGHTS, Chapel Hill, North Carolina, for Appellants.
Kenneth Alexander Soo, THARRINGTON SMITH LLP, Raleigh, North
Carolina, for Appellee. ON BRIEF: Ezra D. Rosenberg, Princeton,
New Jersey, Lauren Kurtz, New York, New York, C.B. Buente,
DECHERT LLP, Washington, D.C.; Brenda Shum, LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., for Appellants.
Deborah R. Stagner, THARRINGTON SMITH LLP, Raleigh, North
Carolina, for Appellee.
2
DIAZ, Circuit Judge:
This appeal arises from two desegregation orders entered in
1970 by the United States District Court for the Eastern
District of North Carolina. The district court determined then
that the Greenville City and Pitt County Boards of Education
were operating racially segregated schools and directed them to
submit desegregation plans that would establish a nonracial,
unitary school district. Following the school boards’ initial
compliance with the orders, the cases were administratively
closed and lay dormant for over thirty-five years.
In 2008, a dispute arose between the Pitt County Board of
Education (the “Board”) 1 and the Greenville Parents Association
(the “Association”) concerning the Board’s explicit
consideration of race when devising student assignment plans.
The parties ultimately settled, and the district court entered a
consent order approving the settlement and directing the parties
to work together toward attaining unitary status for the school
district.
Three years later, a group of parents and the Pitt County
Coalition for Educating Black Children (“Plaintiffs”) moved to
enjoin the implementation of the Board’s 2011-12 student
1
By this date, the Greenville City and Pitt County schools
had been consolidated into a single school district.
3
assignment plan, arguing that it failed to move the school
district toward unitary status. The district court denied
relief, but we vacated that ruling, holding that the district
court erred when it failed to place the burden on the Board to
show that the 2011-12 student assignment plan moved the school
district toward unitary status. On remand, the Board filed a
motion requesting that the district court declare the school
district unitary. After a five-day bench trial, the district
court granted the Board’s motion and dismissed Plaintiffs’
request for an injunction as moot.
We conclude that the district court acted within its
discretion in choosing to address the Board’s motion for
declaration of unitary status before ruling on Plaintiffs’
motion for injunctive relief. And because the court did not
clearly err in determining that the school district is unitary,
we affirm.
I.
A.
In January 1965, a group of plaintiffs representing black
students filed suit against the Pitt County Board of Education,
alleging that the board unlawfully operated and maintained
racially segregated schools. Teel v. Pitt County Board of
Education, No. 6:65-CV-569 (E.D.N.C. filed Jan. 4, 1965). The
4
district court entered an injunction restraining the Board from
refusing admission, assignment, or transfer of any student on
the basis of race. The Board attempted to comply with the court
order by adopting a freedom-of-choice plan, which allowed
students to choose the school they wished to attend. The plan,
however, resulted in only a small percentage of black students
attending predominantly white schools. As a result, the
district court rejected it, ruling that it failed to advance the
Board’s constitutional duty to establish a unitary school
district. It took several more years for the Board to devise a
desegregation plan that met with the district court’s approval.
A separate but substantially similar action came before the
district court in November 1969. Like Teel, Edwards v.
Greenville City Board of Education, No. 6:69-CV-702 (E.D.N.C.
filed Nov. 12 1969), involved representatives of black students
asking the district court to enjoin the Greenville City school
board’s continued operation of a racially segregated school
system. Again, the district court granted the injunction. The
court rejected the board’s first proposed desegregation plan and
ordered it to submit a plan that achieved racial integration in
not only student assignment, but also faculty and staff
assignment, extracurricular activities, and transportation.
Shortly thereafter, the board submitted an amended plan that met
with both the plaintiffs’ and the court’s approval.
5
The district court continued to monitor the progress of the
desegregation plans until January 1972, when it issued orders
determining that the cases had been decided on the merits and
removed them from the pending docket, subject to being reopened
as circumstances warranted. The cases remained administratively
closed for thirty-five years. In the meantime, the two school
districts merged in 1986 and their separate boards of education
were replaced by a single, consolidated Board.
The consolidated Board sought to reopen Teel and Edwards in
2008. The impetus was the Board’s adoption, three years
earlier, of a new student assignment plan for the 2006-07
academic year. 2 Under the then-existing attendance area policy,
the assignment plan considered students’ race, with the goal of
achieving a 70/30 3 racial balance in each school. To achieve
this balance, the new plan relied on satellite attendance areas 4
and busing.
2
Only schools within the Greenville city limits were
subject to the 2006-07 student assignment plan.
3
By 70/30 racial balance, the Board intended no school to
have more than a seventy percent white or black population and
no less than a thirty percent black or white population.
4
Satellite attendance areas are created by attaching
“relatively homogenous neighborhoods of mostly one race” to
“non-contiguous school zones some distance away that need[] that
race for racial balance.” J.A. 802.
6
Objecting to the explicit use of race in student
assignment, the Association filed a discrimination complaint
with the United States Department of Education Office for Civil
Rights (the “OCR”). While the complaint was pending, the Board
revised its attendance area policy, adding student achievement
and socioeconomic status as factors that, along with race, the
Board would consider when establishing student attendance areas.
Ultimately, the Board and the OCR settled the complaint.
The settlement required the school district to seek a ruling
from the district court as to whether the desegregation orders
in Teel and Edwards authorized the Board to consider race in its
student assignment plan. In accordance with the settlement, the
Board asked the district court to approve its 2006-07 student
assignment plan as well as its revised attendance area policy.
In response, the district court reopened and consolidated
Teel and Edwards and re-captioned the new action under its
current name. In addition, the court allowed the Association to
intervene. The Association then asked the district court to
reject both the 2006-07 student assignment plan and the revised
attendance area policy, and instead declare the school district
unitary. Plaintiffs joined the Board in opposing the motion.
After court-ordered mediation, the parties reached a
settlement. The Board agreed to involve Plaintiffs and the
Association in developing the next student assignment plan. In
7
exchange, the Association withdrew its motion for a declaration
of unitary status, and consented to the Board’s motion for
approval of the 2006-07 student assignment plan and the revised
attendance area policy. The parties also “pledge[d] to work
together to achieve” unitary status for the school district.
J.A. 195.
The district court approved the settlement and entered a
consent order in November 2009. The court’s order directed “the
parties to work toward attaining unitary status so that the
court may relinquish jurisdiction over this case and restore to
the School Board full responsibility for the operation of its
schools.” J.A. 204.
B.
In 2010, the Board began developing a student assignment
plan for the 2011-12 school year to accommodate the opening of a
new elementary school and the closing of an existing one. The
Board worked with the Operations Research and Education
Laboratory of North Carolina State University (“OREd”) 5 to draw
up proposed attendance area maps. In designing the maps, the
Board and OREd considered: (1) students’ proximity to their
5
OREd “is a non-profit organization that provides school
districts with scientific tools to project future enrollment, to
evaluate utilization of existing school facilities, to locate
placement of new schools, and to develop attendance boundaries.”
J.A. 492.
8
assigned schools; (2) building capacity; (3) academic
proficiency; and (4) impact area 6. Notably, academic proficiency
was the sole diversity input factor the Board used when
designing the maps, even though the Board’s attendance area
policy permitted it to consider student race.
The Board invited the Association and Plaintiffs to attend
two workshop retreats to solicit their input regarding the
proposed maps. During the first retreat, the Board presented
two proposals. The first proposed map considered only student
proximity and school capacity in developing attendance
boundaries (“Scenario 1”). This map resulted in an increase in
racially identifiable schools, with six impacted schools falling
short of the Board’s target student proficiency index. The
second proposed map factored in student proficiency along with
proximity and school capacity (“Scenario 2”). It resulted in
increased student diversity, and a greater balance of student
proficiency levels across the impacted schools. Scenario 2,
unlike Scenario 1, required the use of satellite attendance
areas and busing.
After receiving input from the parties, the Board directed
OREd to generate a new map. This map (“Scenario 3”) aimed to
6
Impact area refers to the location and number of school
attendance areas affected by the reassignment plan.
9
limit satellite attendance areas, but still considered student
proficiency in an attempt to increase diversity. The proposed
map was then further modified based on community input. The
final Scenario 3 map resulted in schools that were more racially
diverse than in Scenario 1, but less diverse than Scenario 2.
It also required fewer satellite attendance areas than Scenario
2. Over Plaintiffs’ objections, the Board adopted the Scenario
3 map as its 2011-12 student assignment plan.
Plaintiffs moved to enjoin the implementation of the 2011-
12 plan, arguing that it created racially identifiable schools
and failed to move the district toward unitary status. The
district court denied the motion, ruling that Plaintiffs “ha[d]
not demonstrated a likelihood of success on the merits of their
claim so as to justify the extraordinary relief they
request[ed].” Everett v. Juvenile Female 1, No. 6:69-CV-702-H,
2011 WL 3606539, at *2 (E.D.N.C. Aug. 16, 2011).
On appeal, we vacated the district court’s ruling and
remanded. We found that:
Given that there is no dispute that the school
district has not attained unitary status, the
evidentiary burden should have been on the School
Board to prove that the 2011-12 Assignment Plan is
consistent with the controlling desegregation orders
and fulfills the School Board’s affirmative duty to
eliminate the vestiges of discrimination and move
toward unitary status.
10
Everett v. Pitt Cnty. Bd. of Educ., 678 F.3d 281, 290 (4th Cir.
2012).
When the case returned to the district court, the Board
moved for a declaration of unitary status. After a five-day
bench trial, the district court ruled for the Board. It found
that, even before the 1986 merger, both Pitt County and
Greenville City schools were unitary with respect to student
assignment. The court also found that the consolidated school
district was now unitary in terms of faculty and staff
assignment, facilities, transportation, and extracurricular
activities.
The Board, said the district court, had proven that “the
vestiges of state-mandated discrimination practiced over forty
years ago have been eliminated to the extent practicable and
that the School Board, as well as its predecessor boards, has
complied in good faith with this court’s desegregation orders.”
Everett v. Pitt Cnty Bd. of Educ., No. 6:69-CV-702-H, slip op.
at 42 (E.D.N.C. Sept. 25, 2013). Because the school district
was unitary in all respects, the court denied Plaintiffs’ motion
for injunctive relief as moot. This appeal followed.
II.
A.
11
In Brown v. Board of Education, 347 U.S. 483 (1954) (Brown
I), the Supreme Court held that laws mandating racial
segregation in public schools violate the Equal Protection
Clause of the Fourteenth Amendment. A year later, the Court
ordered those school boards operating racially segregated school
systems to “effectuate a transition to a racially
nondiscriminatory school system.” Brown v. Bd. of Educ., 349
U.S. 294, 301 (1955) (Brown II). The federal district courts
were tasked with undertaking “such proceedings and enter[ing]
such orders and decrees” as necessary to desegregate school
districts with “all deliberate speed.” Id.
Thirteen years later, the Court clarified that the
“transition to a unitary, nonracial system of public education
was and is the ultimate end to be brought about” by Brown II.
Green v. Cnty. Sch. Bd. of New Kent Cnty., 391 U.S. 430, 436
(1968). School boards operating “dual systems,” whereby black
children attend black schools and white children attend white
schools, retained “the affirmative duty to take whatever steps
might be necessary to convert to a unitary system in which
racial discrimination would be eliminated root and branch.” Id.
at 437-38.
Generally, courts “have used the terms ‘dual’ to denote a
school system which has engaged in intentional segregation of
students by race, and ‘unitary’ to describe a school system
12
which has been brought into compliance with the command of the
Constitution.” Bd. of Educ. of Okla. City Pub. Schs. v. Dowell,
498 U.S. 237, 246 (1991). However, the Supreme Court has
declined to give the term “unitary” a “fixed meaning or
content.” Freeman v. Pitts, 503 U.S. 467, 487 (1992). Rather,
the Court has left it to district courts overseeing the
desegregation process to determine when a school district “no
longer discriminates between children on the basis of race.”
Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 318
(4th Cir. 2001).
In making this determination, a district court considers
“whether the Board [has] complied in good faith with the
desegregation decree since it was entered, and whether the
vestiges of past discrimination [have] been eliminated to the
extent practicable.” Dowell, 498 U.S. at 249-50. Only when it
is satisfied that a school district is operating a unitary
system may the court dissolve a desegregation order, thereby
relinquishing its supervisory authority over the school
district. See id. at 246 (“If [a desegregation] decree is to be
terminated or dissolved, respondents as well as the school board
are entitled to a like statement from the court.”); Riddick by
Riddick v. Sch. Bd. of Norfolk, 784 F.2d 521, 530 (4th Cir.
1986) (“[The district court] is required to retain jurisdiction
13
until it determines that the school system has become
unitary.”).
The district court’s “end purpose must be to remedy the
violation and, in addition, to restore state and local
authorities to the control of a school system that is operating
in compliance with the Constitution.” Freeman, 503 U.S. at 489.
Indeed, “[r]eturning schools to the control of local authorities
at the earliest practicable date is essential to restore their
true accountability in our governmental system.” Id. at 490.
B.
With these principles in mind, we consider the merits of
Plaintiffs’ legal challenges. We first address Plaintiffs’
claim that the Board was estopped from seeking a retroactive
declaration of unitary status given its “numerous judicial
admissions . . . that it had not attained unitary status at any
time prior to 2009.” 7 Appellant’s Br. at 36. We reject this
contention.
7
Plaintiffs and the dissent assert (incorrectly) that the
district court determined that the school district was unitary
as of the mid-1980s. In fact, the court found that the two
then-separate districts were unitary only as to student
assignment, see Everett v. Pitt Cnty. Bd. of Educ., No. 6:69-CV-
702-H, slip op. at 20, 23 (E.D.N.C. Sept. 25, 2013), which was
not sufficient to support a declaration of unitary status. The
court implicitly recognized this fact, as it went on to conclude
that the school district remained unitary with respect to
student assignment after the merger, and then conducted a
thorough examination of the remaining Green factors. Yet, by
(Continued)
14
A judicial admission is a representation made by a party
that, “unless allowed by the court to be withdrawn, is
conclusive in the case.” Meyer v. Berkshire Life Ins. Co., 372
F.3d 261, 264 (4th Cir. 2004) (quoting Keller v. United States,
58 F.3d 1194, 1199 n.8 (7th Cir. 1995)). Judicial admissions
“go to matters of fact which, otherwise, would require
evidentiary proof.” New Amsterdam Cas. Co. v. Waller, 323 F.2d
20, 24 (4th Cir. 1963). In addition, judicial admissions
“include intentional and unambiguous waivers that release the
opposing party from its burden to prove the facts necessary to
establish the waived conclusion of law.” Minter v. Wells Fargo
Bank, N.A., 762 F.3d 339, 347 (4th Cir. 2014) (internal
quotation marks omitted). A purported judicial admission is
binding only if the statement is “deliberate, clear, and
unambiguous.” Id.
Included among the statements that Plaintiffs rely on as
examples of judicial admissions are the Board’s statements in
its motion for approval of the 2006-07 student assignment plan
and revised attendance area policy that the school district “was
determining that Plaintiffs’ motion to enjoin the 2011-12
student assignment plan was moot, the district court necessarily
found--even if it did not say so expressly--that the school
district was unitary at the time of the implementation of the
2011-12 plan. As we explain, however, we do not think this
problematic.
15
permitted to consider racial balance in student assignment under
Edwards and Teel,” and could “adopt a racial balance ratio and
otherwise . . . consider race as a factor” in its student
assignment plans. J.A. 90, 93, 95. Plaintiffs also cite the
Board’s motion in support of the 2009 consent order in which the
Board acknowledged that “the Proposed Consent Order would not
dispose of the unitary status issue once and for all.” J.A.
178.
These statements, however, merely acknowledged the judicial
reality on the ground, i.e. that the school district remained
subject to the district court’s desegregation orders until the
court declared the schools unitary. They fall far short of
deliberate, clear, and unambiguous admissions that the Board
continued to operate a dual school district.
In any event, Plaintiffs’ contention suffers from a more
fundamental flaw. Simply put, whether a school district is
unitary is not something that can be judicially admitted (or
denied); rather, it is entirely the province of the district
court to decide the issue. This conclusion is compelled by our
decision in Belk.
There, the school board insisted to the district court that
it “had not pursued the dismantlement of the dual system with
the requisite zeal.” Belk, 269 F.3d at 333. The court
nonetheless declined to defer to the board’s claim that its
16
school district was not unitary. Indeed, it highlighted several
reasons why the board might have wanted to remain subject to the
desegregation orders, including avoiding the “long, drawn-out
process” and expense involved with a unitary status hearing,
fears that it might lose eligibility for certain federal funding
should it be declared unitary, and a desire to continue racially
balancing its schools. Id. We approved of the district court’s
finding on this issue, concluding that a school board’s
representation that it is not unitary may reflect the self-
interested desire of a board to use a desegregation order as a
“mechanism[] for the attainment of different goals.” Id. at
334.
Consequently, even if the Board in this case had admitted
that it continued to operate a dual school district, the
district court was under no obligation to treat the Board’s
statements as conclusive in deciding whether the school district
was unitary.
C.
Plaintiffs next contend that the district court violated
the “law of the case” by considering the unitary status question
before first deciding whether the 2011-12 student assignment
plan moved the school district toward that status. The law of
the case doctrine “posits that when a court decides upon a rule
of law, that decision should continue to govern the same issues
17
in subsequent stages in the same case.” Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting
Arizona v. California, 460 U.S. 605, 618 (1983)). Once a court
has established the law of the case,
it must be followed in all subsequent proceedings in
the same case in the trial court or on a later
appeal . . . unless: (1) a subsequent trial produces
substantially different evidence, (2) controlling
authority has since made a contrary decision of law
applicable to the issue, or (3) the prior decision was
clearly erroneous and would work manifest injustice.
United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999)
(internal quotation marks omitted). Because we find the first
exception applicable here, we reject Plaintiffs’ contention.
According to Plaintiffs, we established the law of the case
during the first appeal when we directed the district court to
place the evidentiary burden on the Board “to prove that the
2011-12 Assignment Plan is consistent with the controlling
desegregation orders and fulfills the School Board’s affirmative
duty to eliminate the vestiges of discrimination and move toward
unitary status.” Everett, 678 F.3d at 290. Plaintiffs say that
the district court’s finding that the school district was
already unitary at the time of the implementation of the 2011-12
student assignment plan effectively ignores our prior holding.
When we first considered this case, however, the only issue
decided by the district court was whether the 2011-12 student
assignment plan was consistent with the Board’s obligation to
18
work toward attaining unitary status. On remand, the Board
moved for just such a declaration. In response, the district
court held a trial during which the parties, for the first time,
presented evidence on that issue. Once the district court took
evidence on the question, it was no longer bound by the law of
the case, but was instead free to determine whether the school
district was unitary. Accordingly, we find no error in the
manner in which the district court elected to address the issues
before it.
D.
We turn now to the heart of Plaintiffs’ challenge to the
process by which the district court resolved this case. In
essence, Plaintiffs contend that the Board first had to prove
that the 2011-12 student assignment plan moved the school
district toward unitary status before the district court could
declare the schools unitary. Plaintiffs say that by flipping
the issues--that is, by first declaring the schools unitary and
then refusing, on mootness grounds, to assess the merits of
2011-12 student assignment plan--the district court improperly
gave the unitary status determination retroactive effect. We do
not agree.
1.
Plaintiffs contend that a declaration of unitary status is
effective only as of the date it is issued. Therefore, until
19
September 25, 2013 (the date of the district court’s order
declaring the school district unitary), any Board action had to
be consistent with its obligations under the desegregation
orders, and the later 2009 consent order. By deciding the
unitary status issue before evaluating the 2011-12 student
assignment plan, Plaintiffs say that the district court made an
unlawful retroactive declaration of unitary status.
It is of course true that, until declared unitary, a school
district retains a continuing duty to work toward eliminating
the vestiges of its past discrimination. Riddick, 784 F.2d at
535; Vaughns by Vaughns v. Bd. of Educ. of Prince George’s
Cnty., 758 F.2d 983, 988 (4th Cir. 1985) (“Until a school system
has discharged its duty to liquidate the dual system and replace
it with a unitary one, the school’s duty remains in place.”).
Whether a school district has eliminated the vestiges of
discrimination is judged against what are known as the Green
factors. See Green v. Cnty. Sch. Bd. of New Kent Cnty., 391
U.S. 430 (1968). Under Green, “a school district has achieved
unitary status when it is devoid of racial discrimination in
regard to faculty, staff, transportation, extracurricular
activities, facilities, and pupil assignment.” Sch. Bd. of
Richmond v. Baliles, 829 F.2d 1308, 1312 (4th Cir. 1987).
A dual school district operates under a presumption “that
current disparities are causally related to prior segregation,
20
and the burden of proving otherwise rests on the [school
board].” Id. at 1311. That presumption, however, ends when the
school has achieved unitary status, at which point the burden of
proof shifts back to the plaintiffs “to prove discriminatory
intent on the part of the school board of a unitary school
[district].” Riddick, 782 F.2d at 537.
Importantly, the burden of proof shifts, not when the
school district is declared unitary, but when the district court
determines it first achieved that status. This proposition is
exemplified by our decision in School Board of Richmond v.
Baliles. In that case, after a court-ordered freedom-of-choice
plan proved unsuccessful, the district court ordered the School
Board of the City of Richmond to implement a desegregation plan
that “required extensive busing of students, proximal geographic
zoning, pairing, clustering, satellites and racial balance among
faculty.” Bradley v. Baliles, 639 F. Supp. 680, 682 (E.D. Va.
1986).
Twelve years later, the board came before the district
court asking to be realigned as plaintiffs and to have certain
state officials, including the Governor of Virginia, joined as
defendants. It argued that Virginia had “engaged in various
activities which contributed to the segregation that existed in”
Richmond Public Schools. Id. Consequently, the board “sought
to compel the state to fund remedial and compensatory programs
21
to eliminate the lingering effects of the state’s former dual
system.” Baliles, 829 F.2d at 1310.
The district court found that Richmond Public Schools had
achieved unitary status sometime between 1972 and 1986.
Bradley, 639 F. Supp. at 687. Because the school district had
become unitary, the court concluded that the burden had shifted
to the board to prove that any vestiges of past state-mandated
segregation remained in Richmond Public Schools. Id. at 689.
The court then proceeded to address and deny the board’s request
for relief.
On appeal, we affirmed the district court’s shifting of the
burden. Baliles, 829 F.2d at 1312. Thus, Baliles demonstrates
that a district court may assess unitary status before
addressing the request for relief that brought the plaintiff
before the court in the first place. This is true, even though
the declaration may weaken (or even eliminate) the plaintiff’s
claim for relief.
The only authority that Plaintiffs cite in support of their
claim that a unitary status determination cannot relate back is
Capacchione v. Charlotte-Mecklenburg Schools, 57 F. Supp. 2d
228, 285 (W.D.N.C. 1999), aff’d in part, rev’d in part by Belk,
269 F.3d 305. There, the district court stated that “the
termination of court supervision today cannot ‘relate back’ to
an earlier time.” Id. However, in context, that statement was
22
part of a larger discussion on whether school officials acting
pursuant to a court’s desegregation order enjoyed immunity from
damages. Indeed, the court held that the school district “was
still under court order [and there was] no legal basis for a
finding of de facto unitary status that would abrogate [the
district’s] immunity retroactively.” Id.
This, of course, must be the case given the “well-
established insistence that those who are subject to the
commands of an injunctive order must obey those commands.”
Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 439
(1976). It follows that school officials, acting pursuant to
their obligations under a desegregation order, cannot be held
liable for damages on account of those actions. However,
Capacchione has little relevance here, where the court’s
“retroactive” unitary status declaration merely shifts the
burden of proving discriminatory intent.
2.
The district court’s decision to assess unitary status
first comports with its obligation to “restore state and local
authorities to the control of a school system that is operating
in compliance with the Constitution.” Freeman, 503 U.S. at 489.
The Supreme Court has repeatedly emphasized that district court
supervision is a “temporary measure.” Id.; Dowell, 498 U.S. at
247; see also Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 410
23
(1977) (“[O]ur cases have . . . firmly recognized that local
autonomy of school districts is a vital national tradition.”);
Milliken v. Bradley, 418 U.S. 717, 741 (1974) (“No single
tradition in public education is more deeply rooted than local
control over the operation of schools . . . .”). It would be
anathema to the goal of quickly and efficiently returning a
school district to local control if the district court were
required to ignore its conviction that the Pitt County school
district is unitary, and instead analyze the 2011-12 student
assignment plan through a prism of state-mandated segregation
that no longer exists.
We recognize that the district court declined altogether to
entertain Plaintiffs’ request for injunctive relief, finding
that “an order enjoining the continued implementation of this
plan would be pointless since the school district has been
declared unitary and no longer has an affirmative duty to ensure
that its policies move the district toward unitary status.”
Everett v. Pitt Cnty. Bd. of Educ., No. 6:69-CV-702-H, slip op.
at 40-41 (E.D.N.C. Sept. 25, 2013). Still, if Plaintiffs had
made credible allegations that the Board was taking
intentionally segregative actions, an injunction should
nonetheless issue. But here, Plaintiffs’ request to enjoin the
2011-12 student assignment plan depends entirely on their
allegation that the plan “moves the district further from
24
unitary status.” J.A. 214. Because the district court held
that the school district was unitary at the time of the plan’s
implementation (and has remained so), it did not err in
dismissing Plaintiffs’ motion for injunctive relief as moot.
III.
A.
Having determined that the district court did not err in
the manner in which it addressed the issues before it, we now
reach the merits of its finding that the school district is
unitary. We review this determination for clear error. Belk,
269 F.3d at 317. “A finding is clearly erroneous when, although
there is evidence to support it, on the entire evidence the
reviewing court is left with the definite and firm conviction
that a mistake has been committed.” Id. at 317-18 (quoting
Faulconer v. Comm’r, 748 F.2d 890, 895 (4th Cir. 1984)). We may
not overturn the district court so long as its “unitary status
determination rests on a permissible view of the evidence,” even
if we might have ruled differently had we been sitting as the
trier of fact. Id. If the “district court’s account of the
evidence is plausible in light of the record viewed in its
entirety,” then we must affirm. Id. at 319 (quoting Anderson v.
City of Bessemer City, 470 U.S. 564, 573-74 (1985)).
25
The test for determining whether a school district is
unitary is twofold. The district court must find that the
school district has “complied in good faith with the
desegregation decree since it was entered,” and it must be
satisfied that “the vestiges of past discrimination [have] been
eliminated to the extent practicable.” Dowell, 498 U.S. at 249-
50. We have said previously that “[i]mplicit in the . . . term
‘practicable’ is ‘a reasonable limit on the duration of federal
supervision.’” Belk, 269 F.3d at 318 (quoting Coal. to Save Our
Children v. State Bd. of Educ., 90 F.3d 752, 760 (3d Cir. 1996))
(alteration omitted).
When deciding whether a school district has eliminated the
vestiges of past discrimination, the district court considers
the six Green factors: student assignment, faculty assignment,
staff assignment, transportation, extracurricular activities,
and facilities. See Belk, 269 F.3d at 318-19 (citing Green, 391
U.S. at 435). In addition, the court has discretion to consider
other factors not listed in Green. Freeman, 503 U.S. at 492-93.
Before a school district is declared unitary, there is a
presumption that racial disparities in any of the Green factors
are traceable to segregation. Baliles, 829 F.2d at 1311.
However, that presumption is overcome when a school district
demonstrates that racial disparities are a result, not of its
present or past discrimination, but rather external factors,
26
such as demographic changes, beyond the district’s control.
Missouri v. Jenkins, 515 U.S. 70, 102 (1995); Swann v.
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26 (1971); see
also NAACP v. Duval Cnty. Sch., 273 F.3d 960, 966 (11th Cir.
2001). Moreover, “with the passage of time, the degree to which
racial imbalances continue to represent vestiges of a
constitutional violation may diminish.” Freeman, 503 U.S. at
491.
As we explain below, we find that the district court did
not clearly err in finding that the school district has
eliminated the vestiges of its past discrimination.
B.
1.
The first and “perhaps the most critical Green factor” is
whether there remains any racial disparity in student
assignment. See Belk, 269 F.3d at 319. When analyzing racial
imbalances in student assignment, district courts generally
compare the variance between an individual school’s ratio of
black students to white students to a broader measure of the
entire school district’s population of black students and white
students. See id.
The parties called competing expert witnesses to testify as
to the Board’s efforts to eliminate racial disparity in student
assignment. The Board’s witness, Dr. David Armor, reviewed
27
student enrollment data for the Pitt County schools (and the
Greenville City schools, pre-merger) from 1968 to 2011. 8 To
determine whether the schools were racially balanced post-
merger, Dr. Armor applied a plus-or-minus 20% variance comparing
the percentage of black students at a particular school to the
percentage of black students enrolled at that grade level (i.e.,
K-5, 6-8, 9-12). Pre-merger, Dr. Armor compared the percentage
of black students at a particular school to the overall
percentage of black students enrolled in the school district.
Dr. Armor found that, pre-merger, the school boards were
successfully able to desegregate their schools and maintain
racial balance. He thus concluded that the school district was
unitary with respect to student assignment, even before the
merger. Following the merger, Pitt County saw substantial
population growth with attendant demographic changes. Even so,
Dr. Armor found that twenty-six of the thirty-seven schools in
the district were racially balanced for twenty or more years,
and were also balanced as of the 2011-12 school year.
8
For the years 1968 to 1984, Dr. Armor only had access to
student enrollment data for even-numbered years. We do not
believe that Dr. Armor’s lack of data for odd-numbered years
substantially undermines the credibility of his testimony and
report. We also note that Plaintiffs’ expert relied on this
same data for her analysis.
28
On the other hand, Plaintiffs’ student assignment expert,
Dr. Genevieve Siegel-Hawley, applied a plus-or-minus 15%
variance in comparing the share of black or white students at a
particular school to the district-wide share of black or white
students. 9 She found that, since 1987, an average of eight
schools were racially imbalanced each year. By 2011, fourteen
schools were racially imbalanced. Since 2001, three new schools
were built that opened with a racial imbalance.
Overall, Dr. Siegel-Hawley concluded that “[d]ownturns in
levels of racial imbalance were quickly followed by increases,
indicating that [the school district] did not sustain an
effective desegregation program for more than a year.” J.A.
656. Indeed, she testified that the 2011-12 student assignment
plan resulted in a post-merger high of 40% of students attending
a racially imbalanced school. Thus, according to Dr. Siegel-
Hawley, the Board had failed to eliminate the vestiges of past
discrimination in regard to student assignment.
The district court adopted Dr. Armor’s metrics and relied
primarily on his analysis in finding the school district unitary
with respect to student assignment. First, it found that Dr.
9
Before the merger, Dr. Siegel-Hawley compared the white
population of an individual school to the white population of
the entire school district. Post-merger, Dr. Siegel-Hawley
compared the black population of an individual school to that of
the entire school district.
29
Armor’s use of a plus-or-minus 20% variance was reasonable.
While we have previously specifically approved the plus-or-minus
15% variance that Dr. Siegel-Hawley applied, we have also noted
approvingly that higher variances have been used by other
courts. See Belk, 269 F.3d at 319 (citing the plus-or-minus 20%
variance used in Manning v. Hillsborough County School Board,
244 F.3d 927, 935 (11th Cir. 2001)).
Moreover, the district court found that Dr. Armor’s
comparison (post-merger) of an individual school’s racial
composition to the student population of that particular grade
level was a superior metric to Dr. Siegel-Hawley’s comparison to
the student population of the school district as a whole. The
court agreed with Dr. Armor “that the racial composition of
students attending elementary schools within a particular
district may be far different from the racial composition of
that district’s high schools.” Everett v. Pitt Cnty. Bd. of
Educ., No. 6:69-CV-702-H, slip op. at 14 (E.D.N.C. Sept. 25,
2013).
We believe that the district court’s decision to rely on
Dr. Armor’s report and testimony was not clearly erroneous. See
FTC v. Ross, 743 F.3d 886, 894 (4th Cir. 2014) (“In cases in
which a district court’s factual findings turn on . . . the
weighing of conflicting evidence during a bench trial, such
findings are entitled to even greater deference.” (internal
30
quotation marks omitted)). And we agree with the district court
that, to the extent that racial imbalance remains an issue in
the school district, there is substantial evidence indicating
that it was caused by white students either leaving the public
school system, or moving to more racially segregated
neighborhoods.
The Supreme Court has been clear that school districts need
not take affirmative measures to correct racial imbalances
caused by demographic changes once they have remedied the
effects of prior de jure segregation. Freeman, 503 U.S. at 494
(“Once the racial imbalance due to the de jure violation has
been remedied, the school district is under no duty to remedy
imbalance that is caused by demographic factors.”); Swann, 402
U.S. at 31-32. Moreover, “[t]he continued existence of a small
number of one race schools within . . . a school district does
not establish in and of itself a constitutional violation.”
Riddick, 784 F.2d at 535.
Here, the most striking instance of “white flight” came in
response to the Board’s aggressive 2006-07 student assignment
plan, which “used satellite school [attendance areas] and racial
balancing ratios in an effort to reduce the racial isolation of
elementary schools in the former Greenville City school
district.” J.A. 201. The implementation of that plan
ultimately resulted in a significant decline in the white
31
student population, much of which left the impacted schools for
private schools, home schooling, or other schools in the County.
While the Board was under no duty to implement intensive
desegregation efforts given that many of the remaining racially
identifiable schools were a consequence of demographic shifts
within Greenville, its failed efforts at bringing greater racial
balance to Greenville City schools illustrate that any remaining
segregation in the school district is a consequence of outside
forces that cannot properly be attributed to the Board’s prior
discriminatory acts. We therefore find no clear error in the
district court’s finding that the school district is unitary
with respect to student assignment.
2.
Next, we consider two Green factors together, faculty and
staff assignment. Here, all of the Board’s data comes from 2004
and later. Dr. Armor employed a variance of plus-or-minus 10%
to compare the number of black faculty and staff at an
individual school with the districtwide percentage of black
faculty and staff. 10 He found that, since 2004, thirty-one out
10
Plaintiffs argue that there was no basis for Dr. Armor’s
use of the plus-or-minus 10% variance. We have, however,
previously approved the use of an even greater variance--plus-
or-minus 15%--with respect to faculty assignment. Belk, 269
F.3d at 326.
32
of thirty-six schools maintained racial balance in faculty and
staff, or were only slightly imbalanced for one or two years.
Furthermore, Dr. Armor testified that nearly all of the
schools during that time had a racially mixed administrative
staff. In addition, the former district superintendent
testified that she specifically considered the diversity that a
candidate for a vacant principal or assistant principal position
could offer to the school. The Board also introduced evidence
showing the efforts the district has made to recruit minority
teachers. In short, the district court had sufficient evidence
before it to conclude that the Board undertook diligent efforts
that ultimately resulted in a racially diverse faculty and
administrative staff at its schools.
3.
The next Green factor we consider is the Board’s
maintenance and provision of adequate school facilities.
Plaintiffs do not say that the school district is not unitary
with respect to quality of facilities. Rather, they claim that
the Board failed to prove that siting decisions are made
consistently with the Board’s obligation to eliminate the
vestiges of past discrimination. The district court disagreed,
and we believe that it did not clearly err.
The Board uses a Long Range Facility Plan to “strategically
locate schools where residential growth is anticipated.” J.A.
33
1029. It determines when improvements or new construction are
necessary based on the overall needs of the individual school
and the school district in general. Since 1990, the district
has worked with OREd to determine where to locate new schools.
OREd uses a computer model that determines the “optimal location
for a new site that will relieve the current crowding and
provide room for anticipated growth.” J.A. 2402. The Board’s
evidence adequately demonstrates that new schools are sited
according to the needs of the district overall, and that the
Board works with OREd in a race-neutral manner to make siting
decisions.
4.
We also discern no error in the district court’s finding
that the school district is unitary with respect to
transportation. The school district provides bus service to all
eligible students. Students qualify for bus transportation,
regardless of race, based on the distance between their
residences and their assigned schools. Moreover, travel times
are actually longer for white and Hispanic students than for
black students. Thus, we find no basis for questioning the
district court’s view that students receive transportation to
school on a racially nondiscriminatory basis.
5.
34
Finally, the district court did not clearly err in
concluding that the school district is unitary with respect to
extracurricular activities. The Board’s evidence showed that
such activities are available in all schools, and there are no
race-based barriers to participation. Moreover, students
throughout the district are adequately informed about the
availability of extracurricular activities. Nor are there
financial barriers to participation. We think the Board’s
evidence was sufficient for the district court to conclude that
the district is unitary with respect to this final Green
factor. 11
C.
Our analysis of the Board’s efforts to eliminate the
vestiges of past discrimination to the extent practicable
satisfies us that the district court did not clearly err in also
finding that the Board has complied in good faith with the Teel
and Edwards desegregation orders. A school district can
demonstrate its good faith compliance by showing its “commitment
to a constitutional course of action [in which] its policies
11
Despite Plaintiffs’ urging, the district court refused to
consider disparity in student discipline as an ancillary factor
in addition to the Green factors. We find no abuse of
discretion in this decision because there was not sufficient
evidence in the record demonstrating that the school district
targets black students for discipline or otherwise treats them
differently in disciplinary matters. See Belk, 269 F.3d at 332.
35
form a consistent pattern of lawful conduct directed to
eliminating earlier violations.” Freeman, 503 U.S. at 491. We
agree with the district court that the Board has demonstrated
commendable good faith in complying with the desegregation
orders.
Indeed, we need look no further for proof than the fact
that the desegregation orders remained administratively closed
for over thirty-five years, during which time the Board
undertook the task of integrating the schools relatively
undisturbed. Until 2008, no party came before the district
court accusing the Board of neglecting or disregarding its
obligations under the desegregation orders. And when this case
was reopened, it was as a consequence of a dispute regarding the
2006-07 student assignment plan in which certain parents
essentially argued that the Board went too far in its efforts to
desegregate the schools. Moreover, in the proceedings leading
up to the district court’s 2009 consent order, Plaintiffs and
the Board were both aligned in opposition to the Association’s
motion for declaration of unitary status.
From the date the district court entered its desegregation
orders, school administrators took immediate steps to
effectively integrate their schools and move them toward unitary
status. In very short order, both school districts had almost
completely eliminated racially identifiable schools. While
36
racial imbalance returned over the succeeding years, the
respective boards consistently took measures to bring their
schools back into balance.
Post-merger, the consolidated Board used satellite
attendance areas and busing to maintain racial balance. When
demographic factors caused an increase in racially identifiable
schools, the Board took reasonable steps to restore balance.
Ultimately, a substantial number of schools were able to achieve
racial balance, and maintain it as of the 2011-12 school year.
In short, we are convinced that the Board has acted in good
faith since the entry of the desegregation orders in 1970. We
therefore conclude that the district court did not clearly err
in finding that the Board satisfied this prong of the unitary
status inquiry.
IV.
In sum, the district court did not err by first determining
that the Pitt County school district is unitary, and then
denying Plaintiffs’ motion to enjoin the 2011-12 student
assignment plan as moot. And because the district court did not
clearly err in finding that the school district is in fact
unitary, the judgment of the district court is
AFFIRMED.
37
WYNN, Circuit Judge, dissenting:
In 2010 parents of minor children attending schools in Pitt
County and the Pitt County Coalition for Educating Black
Children (“Appellants”) sought to enjoin implementation of the
Pitt County Board of Education’s (“Board”) 2011-2012 student
assignment plan (“2011-2012 Plan”). Appellants alleged that the
2011-2012 Plan, which resulted in the opening of a racially
identifiable school and increased racial imbalance across the
school district, and which the Board’s own members described as
“disappointing . . . for racial balance,” J.A. 618, violated the
Board’s obligations under controlling desegregation orders,
including a 2009 consent order that directed the Board to “work
toward attaining unitary status.” J.A. 204.
The first time the district court considered Appellants’
motion, it improperly placed the burden of proof on Appellants.
On appeal, we vacated the district court’s denial of the motion,
and remanded with instructions to apply the Supreme Court-
mandated presumption that any racial disparities in 2011-2012
Plan resulted from the School Board’s prior unconstitutional
conduct in operating a racially segregated school district.
Everett v. Pitt Cnty. Bd. of Educ., 678 F.3d 281, 288 (4th Cir.
2012) (“Everett I”). We further held that the School Board bore
the burden of proving that the plan “moves the school district
toward unitary status” in compliance with a 2009 Consent Order
38
issued by the district court. Id. To be sure, at the time of
the appeal in 2013, the Board did not dispute that it had yet to
obtain unitary status and thus had a duty to eliminate the
vestiges of past discrimination and demonstrate good faith
compliance with prior desegregation orders.
Our words, it would appear, have fallen upon deaf ears.
The district court expressly did not consider whether the Board
had met its burden with respect to the 2011-2012 Plan. Nor did
the court substantially take the plan into account when deciding
whether the Board had complied in good faith with the 2009
Consent Order. Instead, it ruled that the school district
became unitary in 1986, and thus deemed the Board “released”
from the burden that we and the district court’s own prior order
said it had. The district court concluded:
Even assuming, arguendo, that the School Board is
unable to meet its burden of proof as to the 2011-2012
plan, an order enjoining the continued implementation
of this plan would be pointless since the district
court has been declared unitary and no longer has an
affirmative duty to ensure that its policies move the
district towards unitary status.
J.A. 568-569 (emphasis added).
Yet how could the school district be declared unitary if it
never met “its burden of proof as to the 2011-2012 Plan”? As
Everett I stated, in no uncertain terms, satisfying this burden
was a condition precedent to the declaration of unitary status.
39
Our consideration of this case does not occur in a vacuum.
The rapid rate of de facto resegregation in our public school
system in recent decades is well-documented. As one scholar put
it, “Schools are more segregated today than they have been for
decades, and segregation is rapidly increasing.” Erwin
Chemerinsky, Separate and Unequal: American Public Education
Today, 52 Am. U. L. Rev. 1461, 1461 (2003) (footnote omitted);
see also Lia B. Epperson, Resisting Retreat: The Struggle for
Equity in Educational Opportunity in the Post-Brown Era, 66 U.
Pitt. L. Rev. 131, 145 (2004) (“American public schools have
been steadily resegregating for more than a decade, dismantling
the integrative successes of hundreds of districts that
experienced significant levels of integration in the wake of
Brown and its progeny. Such racial isolation in public schools
is worse today than at any time in the last thirty years.”).
Today the majority upholds the Board’s promulgation of a
student assignment plan that, Appellants argue, furthers this
trend. The majority reaches that result out of deference to a
district court decision that utterly fails to analyze the facts
in this case in compliance with this Court’s instructions and
established Supreme Court precedent.
Though it is pleasing to hear that the district court takes
comfort in the Supreme Court’s recent proclamation in Shelby
County v. Holder, 133 S. Ct. 2612, 2625-26 (2013), that “our
40
Nation has made great strides” in ensuring the civil rights of
minorities since the 1960s, see J.A. 569, these words are not a
panacea for difficult cases involving race, particularly when
the “facts on the ground” “caution[] . . . against” resting on
the laurels of prior generations. League of Women Voters of N.
Carolina v. N. Carolina, 769 F.3d 224, 243 (4th Cir. 2014) cert.
denied, No. 14-780, 2015 WL 1510878 (U.S. Apr. 6, 2015).
Undeniably, in certain cases, there are other famous words that
ring all the more true: “The past is never dead. It’s not even
past.” 1
The district court’s errors here are twofold and
interrelated: First, the district court failed to consider the
effects of the 2011-2012 Plan when determining whether the
School Board complied in good faith with prior orders, a
condition precedent to the district court’s declaration of
unitary status. Second, and relatedly, the district court gave
retroactive effect to its declaration of unitary status so as to
retroactively release the Board of its obligations under
controlling desegregation orders in direct contravention of this
Court’s opinion in Everett I. The district court’s order should
not be affirmed. It should be vacated and remanded for
proceedings consistent with our opinion in Everett I and
1
William Faulkner, Requiem for a Nun 92 (1951).
41
controlling Supreme Court precedent. Accordingly, I
respectfully dissent.
I.
The Supreme Court declared discrimination on the basis of
race in public education unconstitutional in 1955, yet, the
“deliberate speed,” Brown v. Bd. of Educ. of Topeka, Kan., 349
U.S. 294, 301 (1955), of integration did not reach Pitt County,
North Carolina until 1970. Two separate lawsuits filed in the
1960s in the Eastern District of North Carolina seeking the
desegregation of Pitt County and Greenville City Schools, which
at the time were operated as two separate school systems. See
Teel v. Pitt County Board of Education, Civ. A. No. 569
(E.D.N.C. filed August 10, 1970); Edwards v. Greenville City
Board of Education, Civ. A. No. 702 (E.D.N.C. filed July 7,
1970). In those cases, from which this case arises, the
district court determined that Pitt County and Greenville City
Schools were operating racially segregated dual school districts
in violation of the Fourteenth Amendment.
As the majority describes, after the school systems’
proposed desegregation plans were finally approved, the Teel and
Edwards cases remained dormant for over three decades until the
Greenville Parents Association (“GPA”), a group of predominantly
white parents, filed a complaint with the U.S. Department of
42
Education Office for Civil Rights, objecting to the Board’s use
of race in its student assignment plan for the 2006–2007
academic year.
The GPA’s challenge to that plan culminated in a 2009
settlement to which Appellants and the Board were parties. The
settlement recognized that the parties “believe that unitary
status for [Pitt County Schools] is a salutary goal, and all
parties pledge to work together to achieve that goal.” J.A.
195. On November 4, 2009, the district court issued an order
approving the settlement (“2009 Consent Order”). In addition to
incorporating the terms of the parties’ settlement agreement,
the 2009 Consent Order further obligated the parties to “work
toward attaining unitary status so that the [district] court may
relinquish jurisdiction over this case and restore to the School
Board full responsibility for the operation of its schools.”
J.A. 204 (emphasis added). The 2009 Consent Order also directed
the parties to submit, on or before December 31, 2012, “a report
detailing the School Board’s efforts and progress in achieving
unitary status and eliminating the vestiges of past
discrimination to the extent practicable.” J.A. 204.
To assist in its formulation of the 2011-2012 Plan, the
Board enlisted the Operations Research and Education Laboratory
of North Carolina State University. After considering the three
scenarios outlined in the majority opinion, in November 2010 the
43
Board settled on the 2011-2012 Plan. Plaintiff’s expert
testified that the plan adopted by the Board was the most
segregative option it considered. And even according to the
Board’s expert’s methodology, three schools—C.M. Eppes, South
Greenville, and G.R. Whitfield—became racially imbalanced as a
result of the 2011-2012 Plan. Also, Lakeforest Elementary
opened as a “racially identifiable school,” with nearly 80%
black enrollment. J.A. 558.
Some of the Board’s own members appeared to question
whether the 2011-2012 Plan was consistent with the Board’s
obligations under controlling desegregation orders. For
instance, Board Member Tolmie, noting that the plan would open
Lakeforest with only 12% white enrollment and make South
Greenville Elementary 17% white, found the plan “disappointing .
. . for racial balance.” J.A. 618. He believed that “there
must be a better map for diversity.” J.A. 618. Others believed
the plan would compromise opportunity for some students and
inhibit the district’s efforts to achieve unitary status.
On April 19, 2011, Appellants filed a motion for injunctive
and other appropriate relief seeking to enjoin the
implementation of the 2011-2012 Plan, arguing that it violated
the Board’s obligation to move the district toward unitary
status. The district court construed Appellants’ motion as a
request for a preliminary injunction. Because the court
44
determined that Appellants had failed to demonstrate a
likelihood of success on the merits, it denied the motion.
Appellants appealed to the Fourth Circuit, and this panel
vacated the decision and remanded, concluding that the district
court had improperly placed the evidentiary burden on
Appellants. Everett I, 678 F.3d at 289. Specifically, we held:
Given that there is no dispute that the school
district has not attained unitary status, the
evidentiary burden should have been on the School
Board to prove that the 2011–12 Assignment Plan is
consistent with the controlling desegregation orders
and fulfills the School Board's affirmative duty to
eliminate the vestiges of discrimination and move
toward unitary status.
Id. at 290. We further noted that “the 2009 Consent Order does
not settle the core dispute that arose in the 1960s and 1970s,
namely, the School Board’s unconstitutional operation of a dual
school system and its continuing affirmative obligation to
eliminate the vestiges of discrimination and move toward unitary
status.” Id. at 290 n.8 (emphasis added).
On July 6, 2012, the Board filed a motion for unitary
status, arguing that the school system was unitary as of 2000.
Over Appellants’ objection, the district court decided to
consider the Board’s motion for unitary status together with
Appellants’ remanded motion to enjoin the 2011-2012 Plan.
The district court conducted a five-day bench trial in July
2013. The Board’s expert, Dr. Armor, concluded that as of 1986,
45
nearly three decades ago, Greenville City Schools and Pitt
County Schools had each obtained unitary status and that any
subsequent imbalance was not a vestige of de jure
discrimination, but rather was due to demographic changes. In
reliance on Dr. Armor’s testimony, the district court concluded
that prior to the 1986 merger, both the Greenville City Schools
and the Pitt County Board of Education successfully implemented
their court-ordered plans, fully desegregated all schools within
both districts, and maintained a high level of integration until
merger.
The district court further concluded that post-merger, the
Board adopted policies to maintain racial balance and succeeded
in the vast majority of schools and found that significant
demographic shifts had occurred in the post-merger period. In
this analysis, the district court only briefly mentioned the
2011–12 Plan. Importantly, the district court acknowledged that
it made no effort to determine whether the Board met its burden
of demonstrating that “the 2011–12 Assignment Plan is consistent
with the controlling desegregation orders and fulfills the
School Board’s affirmative duty to eliminate the vestiges of
discrimination and move toward unitary status.” Id. at 290 n.8.
Rather, the court assumed that it did not, without deciding the
issue, and determined that Appellants’ motion for injunctive
relief was moot, stating:
46
Even assuming, arguendo, that the School Board is
unable to meet its burden of proof as to the 2011-2012
plan, an order enjoining the continued implementation
of this plan would be pointless since the school
district has been declared unitary and no longer has
an affirmative duty to ensure that its policies move
the district toward unitary status.
J.A. 568-569 (emphasis added). 2
II.
A.
For a court to release a school district from prior
desegregation orders, a school district must “comply in good
faith with [school desegregation orders].” Everett I, 678 F.3d
281 (citing Bd. of Educ. v. Dowell, 498 U.S. 237, 248–50
(1991)). In determining whether a school board has shown a good
faith commitment to prior desegregation orders, courts look to
whether the school board’s policies “form a consistent pattern
of lawful conduct directed to eliminating earlier violations.”
Freeman v. Pitts, 503 U.S. 467, 491 (1992).
The Supreme Court has explained the rationale for requiring
a showing of good faith compliance:
2
Even the majority opinion concedes in footnote 7 that “by
determining that Plaintiffs’ motion to enjoin the 2011-12
student assignment plan was moot, the district court necessarily
found--even if it did not say so expressly--that the school
district was unitary at the time of the implementation of the
2011-12 plan,” and that the district court had found that the
two then-separate districts were unitary as to student
assignment. Ante at 14.
47
A history of good-faith compliance is evidence that
any current racial imbalance is not the product of a
new de jure violation, and enables the district court
to accept the school board’s representation that it
has accepted the principle of racial equality and will
not suffer intentional discrimination in the future.
Id. at 498-99. The importance of the good faith requirement is
particularly salient in this case, where the parties entered
into a settlement in 2009, memorialized in the district court’s
2009 Consent Order, which required the Board to move the
district towards unitary status. As a result of the settlement,
parents of school children forwent legal action in favor of a
cooperative agreement premised on the Board’s commitment to
working towards the laudable goal of a racially balanced school
system. Whether the board complied in good faith with that
directive would be undeniably probative of its commitment to
maintaining a racially balanced school system even after the
desegregation orders were lifted and the district court
relinquished jurisdiction over the case. Such a determination
is important not only to instill confidence in the district
court when it decides whether to release the district from its
purview, but also to the stakeholders in this litigation
consisting primarily of parents of minor school children.
In concluding that the Board had complied in good faith
with prior desegregation orders, the district court found that
the pre-merged school systems had fully implemented the Teel and
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Edwards orders in a short period of time and had sought
faithfully to comply with those orders notwithstanding
considerable demographic shifts in the district in the
intervening years. The district court also stated that the
Board’s reluctance to seek a declaration of unitary status was
evidence that the Board was committed to continued integration
of its schools.
Yet the district court failed to substantially account for
the Board’s actions in the wake of the 2009 Consent Order.
Appellants argue that the Board’s adoption of the 2011-2012
Plan, which came on the heels of the 2009 Consent Order and
resulted in more rather than fewer racially imbalanced schools
in the district constituted a violation of the Board’s
obligation to move towards unitary status under with the 2009
Order. Indeed, applying Dr. Armor’s metrics for assessing
racial imbalance, C.M. Eppes, South Greenville, and G.R.
Whitfield schools all became racially imbalanced as a result of
the 2011-2012 Plan. Lakeforest Elementary opened as a racially
identifiable school with a black population of nearly 80%. In
the view of Appellants’ expert, the plan adopted by the Board
was the most segregative option it considered. Board members
questioned whether the 2011-2012 Plan satisfied the Board’s
obligations to eliminate racial imbalance in its schools. Board
Member Tolmie found the plan “disappointing . . . for racial
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balance” and believed that “there must be a better map for
diversity.” J.A. 618. Others echoed similar sentiments.
As has long been recognized, a court clearly errs when it
fails to consider substantial evidence contrary to its ultimate
finding. Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361 (4th
Cir. 1983). Given that the Board had alternatives available
that would result in higher levels of racial balance in the
district, and acted with full awareness of the regressive
impacts on the school district’s racial balance, the Board’s
decision to adopt that approach, at the very least, ought to
have received closer scrutiny from the district court.
Thus, the district court’s finding that the Board complied
in good faith with prior desegregation orders should be vacated
and the case remanded for further consideration.
B.
What is perhaps even more troubling about the district
court’s decision is that by failing to consider the impacts of
the 2011-2012 Plan, the district court effectively made
retroactive its declaration of unitary status.
In Everett I, we stated:
Even if we assume that the district court will fully
consider the issue of unitary status in December 2012,
this does not absolve the School Board from the burden
of demonstrating to the district court, as Green v.
Cnty. Sch. Bd., 391 U.S. 430 (1968), and its progeny
require, that the 2011–2012 Assignment Plan moves the
school district toward unitary status, particularly
50
where this plan allegedly causes immediate and
substantial adverse effects on students.
678 F.3d at 288. We further explained, “Any other conclusion
would necessarily, but impermissibly, provide the School Board
with latitude to discriminate pending the resolution of some
future hearing.” Id. at 288. Cf. Capachione v. Charlotte-
Mecklenburg Bd. of Educ., 57 F. Supp. 2d 228, 285 (W.D.N.C.
1999) (“[A] unitary status determination is not retroactive, and
therefore, the termination of court supervision today cannot
relate back to an earlier time.”). By declaring the district
unitary and its burden with respect to the 2011-2012 plan moot,
the district court has directly contravened our instructions.
That is precisely what the district court’s decision and the
majority’s affirmance of that decision does here. Such a
holding has troubling implications: will others bound by
desegregation orders take the majority’s holding as a signal
that de facto unitary status in the eyes of a school district
gives the school district license to act as though it were not
under court order?
The majority justifies its ruling by pointing to School
Board of Richmond v. Baliles, 829 F.2d 1308, 1312 (4th Cir.
1987), yet the procedural posture of this case differs
significantly from that of Baliles, particularly in light of the
2009 Consent Order in this case. Moreover, the majority
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opinion’s reading of Baliles directly conflicts with our holding
in Everett I. In Baliles, plaintiffs sought to force Virginia
to fund programs designed to eliminate vestiges of segregation.
The district court ruled that, because the school district had
already achieved unitary status as a factual matter, the burden
shifted to the plaintiffs to prove their case. 639 F. Supp. at
687 & n.3 (citing Riddick v. Sch. Bd., 784 F.2d 521, 534, 538
(4th Cir. 1986)).
This Court ruled in Everett I that the burden of proof
remained with the Board to prove “that the 2011–12 Assignment
Plan is consistent with the controlling desegregation orders and
fulfills the School Board's affirmative duty to eliminate the
vestiges of discrimination and move toward unitary status.”
Everett, 678 F.3d at 29. The Board was further obligated to
demonstrate good faith compliance with prior orders including
the 2009 Consent Order which immediately preceded the
promulgation of the 2011-2012 Plan. Nothing in Baliles entitles
the district court to ignore that directive.
III.
In failing to fully address the impacts of the 2011-2012
Plan, the district court declined to determine whether the
School Board complied in good faith with prior orders, and
retroactively relieved the Board of obligations under those
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orders. The district court’s declaration of unitary status
should be vacated, and this case remanded. For the foregoing
reasons, I respectfully dissent.
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