Belk v. Charlotte-Mecklenburg Board of Education

Volume 1 of 4

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

TERRY BELK; DWAYNE COLLINS, on 
behalf of themselves and the class
they represent,
Plaintiffs-Appellants,
WILLIAM CAPACCHIONE, Individually
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN
BENTLEY; CHARLES THOMPSON; SCOTT
C. WILLARD,
Plaintiffs-Appellees,
v.
 No. 99-2389
THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg
School Board, in his official
capacity,
Defendants.
UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
Amici Curiae.

2 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

WILLIAM CAPACCHIONE, Individually 
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN
BENTLEY; CHARLES THOMPSON; SCOTT
C. WILLARD,
Plaintiffs-Appellees,
and
TERRY BELK; DWAYNE COLLINS, on
behalf of themselves and the class
they represent,
Plaintiffs,
v.  No. 99-2391
THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg
School Board, in his official
capacity,
Defendants-Appellants.
UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
Amici Curiae.

 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 3

WILLIAM CAPACCHIONE, Individually 
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN
BENTLEY; CHARLES THOMPSON; SCOTT
C. WILLARD,
Plaintiffs-Appellees,
and
TERRY BELK; DWAYNE COLLINS, on
behalf of themselves and the class
they represent,
Plaintiffs,
v.  No. 00-1098
THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg
School Board, in his official
capacity,
Defendants-Appellants.
UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
Amici Curiae.

4 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

WILLIAM CAPACCHIONE, Individually 
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN BENTLEY;
CHARLES THOMPSON; SCOTT C.
WILLARD,
Plaintiffs-Appellees,
and
TERRY BELK; DWAYNE COLLINS, on
behalf of themselves and the class
they represent,

v.
Plaintiffs,
 No. 00-1432

THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg School
Board, in his official capacity,
Defendants-Appellants.
UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
Amici Curiae. 
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-97-482-3-P, CA-65-1974-3-P)
Argued: February 27, 2001
Decided: September 21, 2001
Before WILKINSON, Chief Judge, and WIDENER, WILKINS,
NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
TRAXLER, KING, and GREGORY, Circuit Judges.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 5
Affirmed in part and reversed in part by published opinions. A per
curiam opinion announced the judgment of the court. Judge Traxler
delivered the opinion of the court with respect to Parts I, II, IV, and
V, in which Chief Judge Wilkinson and Judges Widener, Wilkins,
Niemeyer, and Williams joined, and an opinion with respect to Parts
III and VI, in which Judges Wilkins and Williams joined. Chief Judge
Wilkinson wrote an opinion concurring in part in which Judge Nie-
meyer joined. Judge Widener wrote an opinion concurring in part and
dissenting in part. Judge Luttig wrote an opinion concurring in the
judgment in part and dissenting from the judgment in part. Judges
Motz and King wrote a separate opinion in which Judges Michael and
Gregory joined.

COUNSEL

ARGUED: Stephen Luke Largess, James Elliot Ferguson, II, FER-
GUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUMTER,
P.A., Charlotte, North Carolina; John W. Borkowski, HOGAN &
HARTSON, L.L.P., Washington, D.C., for Appellants. Allan Lee
Parks, PARKS, CHESIN & MILLER, P.C., Atlanta, Georgia, for
Appellees. ON BRIEF: John W. Gresham, C. Margaret Errington,
FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUM-
TER, P.A., Charlotte, North Carolina; Elaine R. Jones, Director-
Counsel, Norman J. Chachkin, Gloria J. Browne, NAACP LEGAL
DEFENSE & EDUCATIONAL FUND, INC., New York, New York;
Allen R. Snyder, Maree Sneed, HOGAN & HARTSON, L.L.P.,
Washington, D.C.; James G. Middlebrooks, Irving M. Brenner, Amy
Rickner Langdon, SMITH, HELMS, MULLISS & MOORE, L.L.P.,
Charlotte, North Carolina; Leslie Winner, General Counsel,
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, Char-
lotte, North Carolina, for Appellants. Kevin V. Parsons, PARKS,
CHESIN & MILLER, P.C., Atlanta, Georgia; John O. Pollard,
MCGUIRE, WOODS, BATTLE & BOOTHE, Charlotte, North Caro-
lina; William S. Helfand, MAGENHEIM, BATEMAN, ROBINSON,
WROTENBERY & HELFAND, Houston, Texas; Thomas J. Ash-
craft, Charlotte, North Carolina, for Appellees. Bill Lann Lee, Acting
Assistant Attorney General, Mark L. Gross, Rebecca K. Troth,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
6 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
D.C., for Amicus Curiae United States. Michael Crowell, Lisa Luka-
sik, THARRINGTON SMITH, L.L.P., Raleigh, North Carolina; Alli-
son B. Schafer, General Counsel, NORTH CAROLINA SCHOOL
BOARDS ASSOCIATION, Raleigh, North Carolina; Julie K. Under-
wood, General Counsel, NATIONAL SCHOOL BOARDS ASSOCI-
ATION, Alexandria, Virginia, for Amici Curiae Associations.

OPINION

PER CURIAM:

This case was argued before the en banc Court on February 27,
2001. The parties presented a number of issues for our consideration,
including whether the district court erred in (l) finding that unitary
status had been achieved and awarding attorneys’ fees to plaintiff-
intervenors based on this finding; (2) holding that the establishment
of a magnet schools program was an ultra vires, unconstitutional act
justifying an award of nominal damages and attorneys’ fees; (3)
enjoining the Charlotte-Mecklenburg School Board from considering
race in the future assignment of students or allocation of educational
resources; and (4) sanctioning the Board for failing to comply with
the district court’s discovery order.

Having considered the briefs and arguments of the parties, a major-
ity of the Court holds: (1) by a 7-4 vote (Chief Judge Wilkinson and
Judges Widener, Wilkins, Niemeyer, Luttig, Williams and Traxler in
the affirmative), the school system has achieved unitary status, but by
a 6-5 vote (Chief Judge Wilkinson and Judges Niemeyer, Michael,
Motz, King and Gregory in the affirmative) attorneys’ fees for work
done on the unitary status issue are denied; (2) by a 6-5 vote (Chief
Judge Wilkinson and Judges Niemeyer, Michael, Motz, King, and
Gregory in the affirmative), the Board did not forfeit its immunity for
the establishment of the magnet schools program, and nominal dam-
ages and attorneys’ fees in that regard are denied; (3) by a unanimous
vote, the injunction is vacated; and (4) by a unanimous vote, the
imposition of sanctions is affirmed.

The judgment of the district court is therefore affirmed on the find-
ing of unitary status and the imposition of sanctions, reversed as to
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 7
the finding of liability for nominal damages for the establishment of
the magnet schools program, reversed as to the imposition of attor-
neys’ fees for any reason, and reversed on the issuance of the injunc-
tion.

Unitary status having been achieved, the judgment of the district
court vacating and dissolving all prior injunctive orders and decrees
is affirmed. The Board is to operate the school system without the
strictures of these decrees no later than the 2002-2003 school year.

AFFIRMED IN PART AND REVERSED IN PART

TRAXLER, Circuit Judge:

This case is hopefully the final chapter in the saga of federal court
control over the Charlotte-Mecklenburg Schools ("CMS"). Since
1971 CMS has operated under a federally supervised desegregation
plan that included limited use of racial ratios, pairing and grouping of
school zones, and extensive busing. So successful was the plan that
the district court removed the case from the active docket in 1975,
expressing its belief that the once reluctant school board was commit-
ted to achieving desegregation and was already well on the way
toward a unitary school system. Since then, two generations of stu-
dents have passed through CMS and, until the present case, not one
person has returned to court alleging that segregative practices have
been continued or revived.

Now, nearly three decades later and prompted by a lawsuit filed by
a white student challenging the magnet schools admissions policy, the
question of whether CMS has achieved unitary status has been placed
before our courts. In 1999, the district court, after a lengthy hearing
and searching inquiry, concluded that CMS had indeed achieved uni-
tary status by eliminating the vestiges of past discrimination to the
extent practicable. This conclusion was not reached in haste; it was
the result of a two-month hearing and an examination of extensive
testimony and evidence relating to every aspect of CMS’s educational
system.

A majority of this court now affirms the district court’s holding on
this issue, satisfied that CMS has dismantled the dual school system.
8 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
In sharp contrast to the situation in the late 1960s, when black stu-
dents were segregated in black schools and taught by a predominantly
black staff, CMS students today are educated in an integrated envi-
ronment by an integrated faculty. Nor do we turn over control to an
indecisive and uncommitted school board. CMS currently operates
under the firm guidance of an integrated school board which has
clearly demonstrated its commitment to a desegregated school sys-
tem.

In sum, the "end purpose" of federal intervention to remedy segre-
gation has been served, and it is time to complete the task with which
we were charged—to show confidence in those who have achieved
this success and to restore to state and local authorities the control of
their school system. Consequently, a majority of this court affirms the
district court’s unitary status determination.

However, while a majority of my colleagues agree that CMS has
achieved unitary status, and have graciously joined me on this point,
I respectfully depart from a separate majority’s decision to reverse the
district court’s holding that CMS’s magnet schools program, which
was implemented in 1992, was an ultra vires, unconstitutional act jus-
tifying an award of nominal damages and attorney fees. By denying
children, on account of their race, an equal opportunity to compete for
open, unclaimed slots in CMS’s extraordinary magnet program, I
believe the school board pushed too far and did more than either was
required or permitted. Just as the educational process of the 1960s
unconstitutionally deprived black children of educational opportuni-
ties solely on account of their race, the magnet schools admissions
policy deprives white children of educational opportunities solely on
account of their race. Consequently, I depart from the separate major-
ity in that I would affirm the district court’s conclusion that the mag-
net schools program violated the Equal Protection Clause of the
Fourteenth Amendment and the liability of the school board for the
violation.

I.

In 1896, the Supreme Court upheld a Louisiana statute "providing
for separate railway carriages for the white and colored races." Plessy
v. Ferguson, 163 U.S. 537, 540 (1896). The Plessy majority charac-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 9
terized the statute as "not necessarily imply[ing] the inferiority of
either race," id. at 544, but the first Justice Harlan, in dissent, aptly
described the true aim of the law: "Everyone knows that the statute
in question had its origin in the purpose, not so much to exclude white
persons from railroad cars occupied by blacks, as to exclude colored
people from coaches occupied by or assigned to white persons," id.
at 557 (Harlan, J., dissenting). Justice Harlan further "den[ied] that
any legislative body or judicial tribunal may have regard to the race
of citizens when the civil rights of those citizens are involved." Id. at
554-55 (Harlan, J., dissenting). Unfortunately, the principle of "sepa-
rate but equal" reached much farther than Louisiana railways, and was
applied to other public services, including education. The march of
progress eventually proved the correctness of Justice Harlan’s princi-
pled stand. Segregation, in all of its manifestations, was "arbitrary"
and "wholly inconsistent with the civil freedom and the equality
before the law established by the Constitution." Id. at 561-62 (Harlan,
J., dissenting).

Early efforts aimed at combating the injustice wrought by Plessy
in educational settings often centered on state-funded graduate and
professional schools. See, e.g., Missouri ex rel. Gaines v. Canada,
305 U.S. 337 (1938); see generally Mark V. Tushnet, The NAACP’s
Legal Strategy Against Segregated Education 1925-1950 (1987). In
Gaines, an African-American student was denied admission to the
University of Missouri School of Law on account of his race. Mis-
souri had no "separate but equal" law school for its African-American
citizens and instead offered to pay Gaines’ tuition and expenses for
a legal education in another state. The Supreme Court held that Mis-
souri’s offer denied Gaines equal protection of the laws. The Court
observed that "[t]he admissibility of laws separating the races in the
enjoyment of privileges afforded by the State rests wholly upon the
equality of the privileges which the laws give to the separated groups
within the State." Gaines, 305 U.S. at 349. Though providing only
small victories, cases like Gaines exposed "separate but equal" for the
untenable proposition that it was.

In 1954, the Supreme Court recognized the futility of measuring
equality in segregated facilities. See Brown v. Board of Educ., 347
U.S. 483 (1954) (Brown I). Presented with a direct attack on Plessy
in a secondary education case, the Court held that "segregation of
10 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
children in public schools solely on the basis of race" violated the
Equal Protection Clause of the Fourteenth Amendment. Id. at 493.
The Court emphasized that an educational "opportunity, where a state
has undertaken to provide it, is a right which must be made available
to all on equal terms." Id. Recognizing that segregation differed from
locality to locality, the Supreme Court subsequently declined to craft
a broad, one-size-fits-all remedy, and instead instructed the federal
district courts to oversee the implementation of appropriate relief
based on the dictates of local circumstances. See Brown v. Board of
Educ., 349 U.S. 294, 299 (1955) (Brown II) ("Because of their prox-
imity to local conditions and the possible need for further hearings,
the courts which originally heard these cases can best perform th[e]
judicial appraisal."). The district courts were directed to make use of
the "traditional attributes of equity power," id. at 300, to ensure that
students were "admit[ted] to public schools on a racially nondiscrimi-
natory basis," id. at 301. However, under the Brown opinions it was
unclear whether a school district was required to take affirmative
steps to remedy the constitutional violation, see, e.g., Briggs v. Elliott,
132 F. Supp. 776, 777 (E.D.S.C. 1955) (holding that Brown merely
prohibited school districts from using the force of law to separate the
races), and very little progress resulted.

Before the Supreme Court provided further guidance to the lower
federal courts, in 1965 the Swann plaintiffs, who were the original
class action plaintiffs representing the interests of African-American
children in the district, challenged as constitutionally inadequate the
efforts of CMS in complying with Brown. The school district’s deseg-
regation plan was based on freedom of choice whereby "any child,
without regard to race, and without regard to minority or majority of
race in any particular school, might freely transfer to another school
of his choice." Swann v. Charlotte-Mecklenburg Bd. of Educ., 243 F.
Supp. 667, 668 (W.D.N.C. 1965). The district court approved the
plan, observing that more could be done "to increase mixing of the
races," but that the law imposed "no such duty upon . . . the School
Board." Id. at 670.

Concerned at the slow pace of school desegregation throughout the
nation, the Supreme Court held in 1968 that school boards had an "af-
firmative duty" to end the state-imposed dual system of education.
Green v. County Sch. Bd., 391 U.S. 430, 437 (1968). The Justices
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 11
underscored that "in desegregating a dual system a plan utilizing
‘freedom of choice’ is not an end in itself." Id. at 440. The Swann
plaintiffs then filed in the district court a motion for further relief
"seek[ing] greater speed in desegregation of the Charlotte-
Mecklenburg schools, and request[ing] elimination of certain other
alleged racial inequalities." Swann v. Charlotte-Mecklenburg Bd. of
Educ., 300 F. Supp. 1358, 1360 (W.D.N.C. 1969). The district court,
guided by the mandate of Green, see Swann, 300 F. Supp. at 1362,
made a number of factual findings and concluded that the school dis-
trict remained highly segregated.
The district court noted that over half of CMS’s 24,000 African-
American students "attend schools that are all black, or very nearly
all black, and most of the 24,000 have no white teachers." Id. at 1360.
However, the court found no violations "in the use of federal funds;
the use of mobile classrooms; quality of school buildings and facili-
ties; athletics; PTA activities; school fees; free lunches; books; elec-
tive courses; nor in individual evaluation of students." Id. at 1372.
The district court directed CMS to submit "a positive plan for fac-
ulty desegregation effective in the fall of 1969, and a plan for effec-
tive desegregation of pupil population, to be predominantly effective
in the fall of 1969 and to be completed by the fall of 1970." Id. at
1360. The board procrastinated, but eventually submitted an ener-
vated desegregation plan that the district court approved "with great
reluctance" on a temporary basis. Swann v. Charlotte-Mecklenburg
Bd. of Educ., 306 F. Supp. 1291, 1298 (W.D.N.C. 1969). CMS offi-
cials, however, continued to drag their feet, and the district court was
forced to appoint its own expert, Dr. John A. Finger, to craft an effi-
cacious desegregation plan. See Swann v. Charlotte-Mecklenburg Bd.
of Educ., 311 F. Supp. 265 (W.D.N.C. 1970). Dr. Finger’s plan,
adopted by the district court, included limited use of mathematical
ratios, pairing and grouping of school zones, and busing. See id. We
affirmed a portion of the plan, but vacated provisions dealing with the
busing of elementary school students because of the perceived bur-
dens on small children and the cost of purchasing new buses. See
Swann v. Charlotte Mecklenburg Bd. of Educ., 431 F.2d 138, 147
(4th. Cir. 1970) (en banc). We remanded "for reconsideration of the
assignment of pupils in the elementary schools." Id. The Supreme
Court granted certiorari and reinstated the district court’s plan pend-
ing further proceedings. See Swann v. Charlotte-Mecklenburg Bd. of
12 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Educ., 399 U.S. 926 (1970). The district court conducted eight days
of hearings and examined five different desegregation plans. The dis-
trict court concluded the Finger plan to be the best of the five, encom-
passing "a reasonable . . . collection of methods for solving the
problem" of the dual system. Swann v. Charlotte-Mecklenburg Bd. of
Educ., 318 F. Supp. 786, 800 (W.D.N.C. 1970). As for busing and the
cost of new buses, the district court found that the Finger plan took
"proper advantage of traffic movement" and that new buses would
cost only $660,000, a far cry from the millions of dollars that CMS
had originally estimated. See id. at 797-98. Two months later, the
Supreme Court granted certiorari and undertook an in-depth review
of the power of the federal district courts to craft such sweeping
desegregation remedies. See Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U.S. 1 (1971).

The Supreme Court affirmed the desegregation plan adopted by the
district court, and in the course of its opinion identified and offered
guidance in "four problem areas." Id. at 22. First, the Court addressed
the issue of the district court’s use of racial ratios. While the Supreme
Court approved of a limited use of mathematical ratios in a plan
crafted by a district court, it emphasized that such ratios were "a start-
ing point . . . rather than an inflexible requirement." Id. at 25. The
Court reminded district courts that "[t]he constitutional command to
desegregate schools does not mean that every school in every commu-
nity must always reflect the racial composition of the school system
as a whole." Id. at 24. Second, the Court dealt with single-race
schools. Though the Court concluded that schools consisting of pre-
dominantly one race were not per se unconstitutional, the Court
instructed the district courts to utilize "close scrutiny to determine that
school assignments are not part of state-enforced segregation." Id. at
26. Third, the Court considered alterations of attendance zones. The
Court held "that the pairing and grouping of noncontiguous school
zones is a permissible tool," id. at 28, but declined to craft "rigid
rules" in light of differing local circumstances, id. at 29. Finally, the
Court tackled the busing issue. The Court confirmed that a district
court could order "bus transportation as one tool of school desegrega-
tion," but within reasonable time and distance restrictions. Id. at 30.

Shortly after the Supreme Court issued its landmark Swann opin-
ion, CMS asked the district court to abandon the Finger plan and per-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 13
mit the substitution of a "feeder plan" whereby schools would draw
pupils from designated attendance areas in an effort to keep children
together for their entire public school career. See Swann v. Charlotte-
Mecklenburg Bd. of Educ., 328 F. Supp. 1346 (W.D.N.C. 1971). Cit-
ing concerns of resegregation and the placement of additional burdens
on African-American children, the district court questioned the feeder
plan. See id. at 1350-53. CMS then withdrew its original feeder plan
and began work on a modified version. See id. at 1353. The district
court eventually approved a revised feeder plan that reopened several
former black schools and prevented over- and under-utilization of
facilities. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 334 F.
Supp. 623 (W.D.N.C. 1971).

However, within just two years it became clear that CMS’s revised
feeder plan was inadequate "for dealing with foreseeable problems"
in the dismantling of the dual system. Swann v. Charlotte-
Mecklenburg Bd. of Educ., 362 F. Supp. 1223, 1229 (W.D.N.C.
1973). The district court found "that various formerly black schools
and other schools will turn black under the feeder plan," id., and that
"[r]acial discrimination through official action has not ended in this
school system," id. at 1230. The district court again instructed CMS
to design a new pupil assignment plan "on the premise that equal pro-
tection of laws is here to stay." Id. at 1238.

In 1974 CMS adopted and the district court approved new guide-
lines and policies for pupil assignment. See Swann v. Charlotte-
Mecklenburg Bd. of Educ., 379 F. Supp. 1102 (W.D.N.C. 1974). The
plan was designed by a citizens advisory group working with the
board in an effort to reach "an acceptable consensus" on school deseg-
regation in CMS. Id. at 1103. The plan’s most promising features
were the avoidance of any majority black schools (with the exception
of Hidden Valley, an exempted school), and a more equal distribution
of the busing burden. See id. at 1105 1110. Praising the board for
making "a clean break with the essentially ‘reluctant’ attitude which
dominated Board actions for many years," the district court predicted
that the policies and positive attitude would eventually result in a uni-
tary school system. Id. at 1103.

The district court closed Swann in 1975 and removed the case from
the active docket. See Swann v. Charlotte-Mecklenburg Bd. of Educ.,
14 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
67 F.R.D. 648 (W.D.N.C. 1975). In so doing, the district court
observed that the board was "actively and intelligently addressing"
recurrent problems related to dismantlement of the dual system. Id. at
649. The district court was so satisfied with the progress being made
that it questioned whether it would ever be confronted with a motion
to reopen the litigation. See id.

For three years there was no action in the case. This changed in
1978 when a group of white parents sought to enjoin CMS from reas-
signing over 4000 students in an effort to maintain racial balance in
certain schools. See Martin v. Charlotte-Mecklenburg Bd. of Educ.,
475 F. Supp. 1318 (W.D.N.C. 1979). The parents attacking the 1978
student assignment plan "offered no live evidence but offered and
relied upon a few written exhibits and admissions from the plead-
ings." Id. at 1321. Not surprisingly, the district court rejected the par-
ents’ challenge to the student assignment plan and praised CMS for
its zeal in dismantling the dual system.

In 1980, CMS and the Swann plaintiffs again returned to the dis-
trict court. The parties informed the district court that the African-
American student population in CMS’s elementary schools had grown
from twenty-nine percent to forty percent, making it difficult to avoid
predominantly black student bodies. To provide the board with some
flexibility, the district court permitted operation of elementary schools
with African-American student bodies of plus fifteen percent above
the district-wide average. See Swann v. Charlotte-Mecklenburg Bd. of
Educ., No. 1974 (W.D.N.C. Apr. 17, 1980).

Since 1980, neither the board nor the Swann plaintiffs have
approached the district court regarding alteration of the earlier deseg-
regation orders. And, until the present litigation, the Swann plaintiffs
have never attempted to reopen the case in order to address any
alleged failure by the board to comply with the district court’s deseg-
regation orders.

The controversy before us today arose in September 1997 when
William Capacchione ("Capacchione") filed suit against CMS on
behalf of his daughter, Cristina, alleging that she had been unconstitu-
tionally denied admission to a magnet school program on account of
her race. In 1992, without prior court approval, CMS had adopted a
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 15
desegregation plan focused mainly on the use of magnet schools. In
filling magnet schools, CMS had instituted a black and a non-black
lottery to achieve racial balance. If a sufficient number of blacks or
whites did not apply and fill the seats allotted to their respective races,
then CMS would actively recruit children of the desired race despite
lengthy waiting lists made up of children of the other race. If the
recruitment drive failed, CMS usually left the available slots vacant.
Cristina, who is white, was placed on a waiting list and eventually
denied admission to a program at the Olde Providence magnet school,
which CMS marketed as "a school to benefit everyone." J.A. XXXII-
15,670.

The original Swann plaintiffs moved to reactivate Swann and to
consolidate it with Capacchione’s suit. They asserted that the vestiges
of the dual school system had not been abolished and that the use of
race in the magnet admissions policy was necessary for the school
district to comply with the prior desegregation orders. The district
court granted the motion and later permitted Capacchione to intervene
in the Swann litigation. Seeking a finding that CMS had eradicated
the vestiges of past discrimination, another group of parents, led by
Michael P. Grant ("Grant"),1 was also permitted to intervene in the lit-
igation.

After a two-month bench trial, the district court determined that
CMS had achieved unitary status, that the race-based admissions pol-
icy for CMS’s magnet schools fell outside prior orders and was not
narrowly tailored to achieve a compelling state interest, and that an
injunction was warranted. The district court "enjoin[ed] CMS from
any further use of race-based lotteries, preferences, and set-asides in
student assignment." Capacchione v. Charlotte-Mecklenburg Sch., 57
F. Supp. 2d 228, 292 (W.D.N.C. 1999). Citing interests in stability,
the district court concluded that the injunction would not affect stu-
dent assignments for the 1999-2000 school year, but would apply to
student assignments for the 2000-2001 school year. See id. at 292
n.52. The district court awarded Capacchione nominal damages in
recognition of the constitutional violation and also awarded the
plaintiff-intervenors attorney fees. CMS and the Swann plaintiffs filed
1
Those represented by Capacchione and Grant will be referred to as the
"plaintiff-intervenors."
16 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
notices of appeal, and CMS moved to stay the injunction, except as
applied to the magnet schools, until the 2001-02 school year. The
Swann plaintiffs moved for a complete stay pending appeal. On
November 15, 1999, the district court denied the motions. CMS and
the Swann plaintiffs, pursuant to Federal Rule of Appellate Procedure
8(a)(2), moved this court for a stay. On December 30, 1999, we
stayed the district court’s injunction pending further order of this
court.

After briefing and appellate arguments, a divided panel of this
court vacated and remanded the district court’s unitary status determi-
nation, holding that the district court’s findings were insufficient in
the areas of student assignment, facilities and resources, transporta-
tion, and student achievement. As for CMS’s magnet schools admis-
sions policy, the panel held that the policy was specifically permitted
by prior court orders and that the policy did not violate the Constitu-
tion. The panel also vacated the district court’s injunction, the award
of nominal damages, and the award of attorney fees. See Belk v.
Charlotte-Mecklenburg Bd. of Educ., 233 F.3d 232 (4th Cir. 2000).
A majority of the active circuit judges thereafter voted to hear this
appeal en banc.

II. Unitary Status

The district court’s unitary status finding is reviewed for clear
error. See Riddick v. School Bd., 784 F.2d 521, 533 (4th Cir. 1986);
Fed. R. Civ. P. 52(a). "A finding is clearly erroneous when, although
there is evidence to support it, on the entire evidence the reviewing
court is left with the definite and firm conviction that a mistake has
been committed." Faulconer v. Commissioner, 748 F.2d 890, 895 (4th
Cir. 1984). In clarifying the clearly erroneous standard, the Supreme
Court has explained:

If the district court’s account of the evidence is plausible in
light of the record viewed in its entirety, the court of appeals
may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evi-
dence differently. Where there are two permissible views of
the evidence, the factfinder’s choice between them cannot
be clearly erroneous.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 17
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985). The
Supreme Court also stressed that even when appellate review is based
primarily on documentary evidence, the clearly erroneous standard of
review remains the same. See id. at 574. So long as the district court’s
unitary status determination rests on a permissible view of the evi-
dence, it must be affirmed.

The Supreme Court has declined to define or provide a "fixed
meaning" for the term "unitary." Freeman v. Pitts, 503 U.S. 467, 487
(1992). However, in light of the aim of Brown I, which was "the elim-
ination of state-mandated or deliberately maintained dual school sys-
tems," Milliken v. Bradley, 418 U.S. 717, 737 (1974) (Milliken I), a
school system must be declared unitary when it no longer discrimi-
nates between children on the basis of race, see Green, 391 U.S. at
442. The burden of proof falls on the party seeking an end to court
supervision. See Freeman, 503 U.S. at 494.

In undertaking a unitary status inquiry, a court must ask "whether
the Board ha[s] complied in good faith with the desegregation decree
since it was entered, and whether the vestiges of past discrimination
ha[ve] been eliminated to the extent practicable." Board of Educ. v.
Dowell, 498 U.S. 237, 249-50 (1991). Implicit in the Supreme Court’s
use of the term "practicable" is "a reasonable limit on the duration of
. . . federal supervision." Coalition to Save Our Children v. State Bd.
of Educ., 90 F.3d 752, 760 (3d Cir. 1996); see also Dowell, 498 U.S.
at 247 ("From the very first, federal supervision of local school sys-
tems was intended as a temporary measure to remedy past discrimina-
tion."). Hence, the goals of a desegregation order not only encompass
a remedy for the violation, but also prompt restoration of local con-
trol. See Freeman, 503 U.S. at 490 ("Returning schools to the control
of local authorities at the earliest practicable date is essential to
restore their true accountability in our governmental system. . . .
Where control lies, so too does responsibility."); Milliken I, 418 U.S.
at 741-42 ("No single tradition in public education is more deeply
rooted than local control over the operation of schools; local auton-
omy has long been thought essential both to the maintenance of com-
munity concern and support for public schools and to quality of the
educational process.").

Among the most important reference points in determining whether
a school board has fulfilled its duties so that local control may be
18 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
resumed are the factors set out in Green: student assignment, faculty
assignment, facilities and resources, transportation, staff assignment,
and extracurricular activities. See Green, 391 U.S. at 435. In its dis-
cretion, a court conducting a unitary status hearing may consider
other relevant factors not mentioned in Green. See Freeman, 503 U.S.
at 492. We address the district court’s consideration of each factor in
turn, but only to determine whether "the district court’s account of the
evidence is plausible in light of the record viewed in its entirety."
Anderson, 470 U.S. at 573-74.

A. Student Assignment

Student assignment is perhaps the most critical Green factor
because state-mandated separation of pupils on the basis of race is the
essence of the dual system. See Freeman, 503 U.S. at 474 (observing
that the issue of student assignment is "fundamental" because "under
the former de jure regimes racial exclusion was both the means and
the end of a policy motivated by disparagement of . . . the disfavored
race"). To determine whether a school was racially balanced or imbal-
anced, the district court adopted a plus/minus fifteen percent variance
from the district-wide ratio of black to white students. See Capacch-
ione, 57 F. Supp. 2d at 246. However, the district court emphasized
"that there is no level of compliance with the standard that is determi-
native." Id. When schools are outside the variance, a "reasonable and
supportable explanation[ ]" will suffice. Id.

The district court did not err in adopting a plus/minus fifteen per-
cent variance. Considering that the only variance ever approved by
the district court in the course of the Swann litigation was a "‘plus
15%’ from the district-wide average," id. at 245, the addition of a
minus fifteen percent is reasonable. Moreover, the Supreme Court has
permitted a "limited use . . . of mathematical ratios" by district courts,
Swann, 402 U.S. at 25, and much higher variances have been used to
define desegregation, see Manning v. Hillsborough County Sch. Bd.,
244 F.3d 927, 935 (11th Cir. 2001) (using a plus/minus twenty per-
cent variance); see generally, David J. Armor, Forced Justice: School
Desegregation and the Law 160 (1995) (observing that in over sev-
enty percent of the school districts with desegregation plans where
racial balance is measured by numerical standards, a variance of
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 19
2
plus/minus fifteen percent or greater is used). In sum, the plus/minus
fifteen percent variance is clearly within accepted standards, and pro-
vides a reasonable starting point in the unitary status determination.

1. CMS’s Compliance Record

The district court began by observing that since 1970, of the 126
schools in operation, "only twenty schools (16%) have had black stu-
dent bodies higher than 15% above the district-wide ratio for more
than three years, and only seventeen schools (13%) have had black
student bodies lower than 15% below the district-wide ratio for more
than three years." Capacchione, 57 F. Supp. 2d at 248 (footnote omit-
ted). In addition, the district court found that CMS has not operated
a single-race school since 1970. See id.

The district court also turned to two desegregation indices: the dis-
similarity index and the index of interracial exposure. The former
"measures the degree of racial imbalance, and it is derived by com-
paring the racial composition of each school to the districtwide com-
position," J.A. XXXIII-16,172, and the latter measures "the average
percent white in schools attended by black students, weighted by the
proportion of black students in each school." J.A. XXXIII-16,172.
According to the report of the plaintiff-intervenors’ expert witness,
Dr. David J. Armor, a dissimilarity value of twenty or below signifies
2
At trial, Dr. Eric Smith, the current superintendent of CMS, testified
that unitary status depended on every school being in balance. See J.A.
XV-7187 & 7239. This is not the law. See Swann, 402 U.S. at 24 ("The
constitutional command to desegregate schools does not mean that every
school in every community must always reflect the racial composition of
the school system as a whole.").
We find equally erroneous the Swann plaintiffs’ assertion at appellate
argument before the panel that "[t]he issue of how many schools are bal-
anced has never been a question in this case." App. Tr. 91. The racial
composition of schools goes to the heart of a desegregation case, and is
very much key to a review of the district court’s declaration of unitary
status. See Swann, 311 F. Supp. at 268 (ordering CMS to assign pupils
"in such a way that as nearly as practicable the various schools at various
grade levels have about the same proportion of black and white stu-
dents").
20 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
"a highly balanced school system" and a score under thirty signifies
"a substantially desegregated system." J.A. XXXIII-16,172. CMS’s
dissimilarity score was sixteen in 1980 and twenty-six in 1995. From
this it is clear that CMS quickly desegregated in the 1970s and contin-
ues to maintain a "substantially desegregated system." The dissimilar-
ity index also indicates that CMS has better racial balance than
several comparable districts did when they were declared unitary. See
J.A. XXXIII-16,173.
The index of interracial exposure, like the dissimilarity index,
shows that CMS has made great leaps of progress. A score of zero on
the exposure index signifies total segregation, while a score of fifty
or above indicates a "highly desegregated system." J.A. XXXIII-
16,172. Schools in CMS typically score above fifty, whereas before
the desegregation order the schools’ scores hovered near twenty or
below. See J.A. XXXIII-16,194-96.
CMS and the Swann plaintiffs correctly point out that the data sug-
gest that in recent years racial imbalance has increased in some
schools. Aware of this trend, the district court made a number of find-
ings on growth and demographic change in the Charlotte-
Mecklenburg area. The most revealing findings are as follows:
• the county population has increased from 354,656 in
1970 to 613,310 in 1997
• in 1970 the school district was the forty-third largest in
the nation and is today the twenty-third largest
• among cities with more than 500,000 people, Charlotte
ranks second in population growth in the 1990s
• the racial composition of the county has changed from
seventy-six percent white and twenty-four percent black
in 1970 to sixty-eight percent white, twenty-seven per-
cent black, and five percent other in 1997
• the current racial composition of schoolchildren is fifty
percent white, forty-two percent black, and eight percent
other
• as the county has become more suburban the inner city
and nearby suburbs have lost large numbers of white res-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 21
idents as they spread farther out into the formerly rural
sections of the county
• some middle suburban communities that were once all
white are now predominately black
• the rural black population in the southern part of the
county has remained relatively constant while the white
population has tripled because of suburbanization
See Capacchione, 57 F. Supp. 2d at 236-39. These findings are sup-
ported by the report of the plaintiff-intervenors’ expert in demograph-
ics, Dr. William Clark. See J.A. XXXIII-16230-306. Accordingly, the
district court concluded that "[t]here can be no doubt that demography
and geography have played the largest role in causing imbalance."
Capacchione, 57 F. Supp. 2d at 250.
Testimony from Dr. John Murphy, CMS’s superintendent from
1991 to 1995, corroborates the district court’s conclusion. Dr. Murphy
testified that when he assumed his duties he "was quite concerned
about the increasing difficulty in bringing about racial balance . . .
because of the demographic shifts that were occurring." J.A. VI-2712.
Population growth translated into more automobiles on the road, mak-
ing increased busing impracticable because "the travel time to move
youngsters from the suburbs into the city with the flow of rush hour
traffic was a problem." J.A. VI-2732. In the fall of 1991, CMS hired
Dr. Michael J. Stolee to examine the problem and offer solutions. Dr.
Stolee also concluded that CMS’s task "has been complicated by pop-
ulation growth," J.A. XXXII-15,571, and he recommended the adop-
tion of a magnet schools program, which CMS promptly
implemented.
The Supreme Court has dealt with similar population growth and
shifting demographics in the context of unitary status. In Freeman,
the court unequivocally stated that "racial imbalance . . . [is] not tanta-
mount to a showing that the school district [is] in noncompliance with
the decree or with its duties under the law." 503 U.S. at 494. Brown
I, of course, does not mandate that racial balance be pursued in perpe-
tuity. Once the original racial imbalance caused by a constitutional
violation has been rectified, "the school district is under no duty to
remedy imbalance that is caused by demographic factors." Freeman,
503 U.S. at 494.
22 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
The Swann plaintiffs contend that consideration of demographics
and the rationale of Freeman are misplaced because the growth and
shifting demographics of DeKalb County, Georgia, the school district
under court order in Freeman, exceeded that of Charlotte-
Mecklenburg. While CMS’s growth rates and demographic shifts cer-
tainly do not equal those experienced in DeKalb,3 we can find nothing
in Freeman limiting its holding to the specific facts of DeKalb
County or establishing DeKalb as the standard for measuring imbal-
ance caused by demographic factors. On the contrary, the opinion
speaks in general terms. The Supreme Court observed that in the
United States "it is inevitable that the demographic makeup of school
districts, based as they are on political subdivisions such as counties
and municipalities, may undergo rapid change." Id. at 495. Mobility,
the Court noted, "is a distinct characteristic of our society." Id. at 494.
Similarly, the Swann plaintiffs contend that unlike DeKalb County,
Mecklenburg County has become more integrated as the black popu-
lation has increased. This is simply not true. For example, a report
prepared in 1992 by the Charlotte-Mecklenburg Planning Staff for
Chairman Arthur Griffin concluded that "Charlotte-Mecklenburg con-
tinues to be a city of segregated neighborhoods" with "[c]oncentra-
tions of Black households . . . generally located in the central city."
J.A. XXI-10,485; see also J.A. XXVIII-13,803 (1992 student assign-
ment plan stating that "housing across the county is not racially inte-
grated. Approximately 50% of all black students live within one
district, while only 10% of white students reside in that district.");
J.A. XXII-10,575 (CMS report chronicling growth of the black popu-
lation and decline of the white population in the inner city). Clearly,
increased housing integration is not necessarily a corollary of
African-American population growth. Hence, despite the Swann
plaintiffs’ best efforts, Freeman cannot be distinguished into nothing-
ness, nor does the standard of review permit this court to reweigh the
evidence of the changes in CMS.
We also note that when confronted with growing imbalance in cer-
tain schools, the district court demanded cogent and supportable
3
For example, the population of DeKalb County grew from 70,000 in
1950 to 450,000 in 1985, and the percentage of black students in the dis-
trict grew from 5.6 percent in 1969 to forty-seven percent in 1986. See
Freeman, 503 U.S. at 475.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 23
explanations from the plaintiff-intervenors, paying special attention to
the former de jure schools still in use. See Capacchione, 57 F. Supp.
2d at 246. Evidence presented at trial indicated that "[o]f the 16 for-
mer black schools that are still open, 13 are currently balanced and
have been desegregated for periods ranging from 22 to 28 years. Of
the 3 that currently exceed the +15% black variance, each has been
balanced for at least 22 years." J.A. XXXIII-16,176. Interestingly, of
the seventy-two former white schools that are still open, fifteen are
now majority black and were in balance for periods of twelve to
twenty-five years. See J.A. XXXIII-16,176.

In addition, Dr. Armor examined the seventeen schools in CMS
that exceeded the plus fifteen percent variance for three or more years
during the last decade. See J.A. XXXIII-16,174-76.4 Sixteen of the
seventeen were balanced for periods ranging from nineteen to twenty-
six years, with one school experiencing balance for sixteen years. To
the extent that CMS’s pupil reassignments could be assessed, Dr.
Armor concluded that changes instituted by CMS were "attempts to
maintain or restore racial balance in the face of overwhelming demo-
graphic growth and mobility." J.A. XXXIII-16,176. Indeed, Dr.
Armor concluded that imbalance had been reduced in several of the
schools because CMS’s magnet program attracted white students
from the outer reaches of the county.

4
Dr. Armor did not include the predominantly white schools in this
analysis on three grounds:
(1) the court order did not establish a minimum percent black
enrollment, (2) the half-dozen schools that have had low black
enrollment for the past three or more years and that were operat-
ing in 1972 have been racially balanced for at least ten years[,]
and (3) the demographic analysis of Dr. Clark shows that these
schools have become imbalanced or were opened imbalanced
because of the substantial white enrollment growth in the out-
skirts of the county.
J.A. XXXIII-16,174 (footnote omitted); see also Swann, 402 U.S. at 26
(observing "that the existence of some small number of one-race, or vir-
tually one-race, schools within a district is not in and of itself the mark
of a system that still practices segregation by law").
24 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Long periods of almost perfect compliance with the court’s racial
balance guidelines,5 coupled with some imbalance in the wake of
massive demographic shifts, strongly supports the district court’s
finding that the present levels of imbalance are in no way connected
with the de jure segregation once practiced in CMS. See Freeman,
503 U.S. at 495 ("Where resegregation is a product not of state action
but of private choices, it does not have constitutional implications.");
Manning, 244 F.3d at 944 ("Where a [party seeking a finding of uni-
tary status] shows that demographic shifts are a substantial cause of
the racial imbalances, [the party] has overcome the presumption of de
jure segregation."); United States v. Meriwether County, 171 F.3d
1333, 1339 (11th Cir. 1999) (observing that a "school district need not
wage a battle against demographics to achieve perfect racial bal-
ance"). The evidence presented at trial adequately explained why a
few schools have become imbalanced, and we can discern no evi-
dence or omissions that indicate clear error has been committed in
this regard.

2. Martin and Unitary Status

The Swann plaintiffs also point to school sitings, transportation
burdens, and school transfers as evidence that the growing imbalance
is caused by state action rather than private choices, and that CMS has
not complied with the district court’s orders in good faith. In advanc-
ing their argument, the Swann plaintiffs rely chiefly on Martin v.
Charlotte-Mecklenburg Board of Education, 475 F. Supp. 1318
(W.D.N.C. 1979), in which a group of parents sought to enjoin CMS
from reassigning over 4000 students in order to maintain racial bal-
ance in certain schools. The plaintiffs in Martin based their position
on Pasadena City Board of Education v. Spangler, 427 U.S. 424
(1976), and Regents of the University of California v. Bakke, 438 U.S.
265 (1978). In the former case, the Supreme Court reaffirmed that
district courts could not order a school district "to rearrange its atten-
dance zones each year so as to ensure that the racial mix desired by
the court was maintained in perpetuity," Spangler, 427 U.S. at 436,
5
Even the Swann plaintiffs admit that ten years after the district court
charged the board with taking affirmative steps to desegregate schools,
the system "w[as] nearly 100% statistically compliant with the court’s
orders." Plaintiff-Appellants’ Brief at 38.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 25
and in the latter the Court struck down a medical school admissions
policy that reserved sixteen of one hundred seats in the entering class
for applicants who were "‘economically and/or educationally disad-
vantaged’" and who were members of certain minority groups, Bakke,
438 U.S. at 274. The district court in Martin distinguished Spangler
by observing that it was but a restatement of the Swann Court’s admo-
nition about the use of racial quotas and that, unlike Pasadena City,
CMS had not achieved racially neutral attendance patterns. See Mar-
tin, 475 F. Supp. at 1340. As for the Bakke decision, the district court
pointed out that no student in CMS was denied "an equal educational
opportunity" and that the admissions policy in Bakke was imple-
mented "against a backdrop devoid of specific judicial findings or
administrative acknowledgments of the prior segregated status of the
school system." Id. at 1345. Accordingly, the Martin court concluded
that CMS’s reassignment of students was "within constitutional limits
and should be upheld." Id. at 1321. The district court took pains to
ensure that its opinion would not be interpreted too broadly: "This
order simply upholds the actions of the 1978 Board against the attacks
by the plaintiffs." Id. at 1347. In the course of the Martin opinion, the
district court observed that CMS had fallen short in four areas: con-
struction and location of facilities in parts of the county likely to
enhance desegregation, placement of elementary and kindergarten
grades in schools throughout the county, monitoring of student trans-
fers so as to prevent resegregation, and allocation of the burdens of
busing. See id. at 1328-29. However, the district court also noted that
CMS had made great progress and that a return to the old system of
segregation "has not tempted the present School Board, who are
standing fast in their endeavor to run the schools according to law
while providing quality education." Id. at 1347.

In Capacchione, the district court correctly observed that "Martin
was not a unitary status hearing," Capacchione, 57 F. Supp. 2d at 250,
and that because "the desegregation plan was still in its fledgling
stages, the Court was inclined to keep the pressure on CMS," id. at
251. The Capacchione court further observed that post-Martin
changes in Charlotte-Mecklenburg counseled looking at the "concerns
[of Martin] in a new light." Id. The district court’s interpretation of
Martin is reasonable and in accord with the rule in this circuit that a
district court, as a continuous institution, is "best able to interpret its
own orders." Vaughns v. Board of Educ., 758 F.2d 983, 989 (4th Cir.
26 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
1985) (school desegregation case). Moreover, the Martin order was
issued thirteen years before the Supreme Court made clear in Free-
man that the affirmative measures mandated by Green are not meant
to remedy "private choices" that lead to resegregation. Freeman, 503
U.S. at 495. The state of the law and the understanding of duties upon
school districts were far different when Martin was handed down.
Hence, a number of assertions in Martin cannot be squared with the
present state of the law. See, e.g., Martin 475 F. Supp. at 1346 (stating
that segregated housing patterns must necessarily lead to the unconsti-
tutional segregation of schools). Ignoring the changes in Charlotte-
Mecklenburg and in the law by erecting Martin as the framework for
unitary status, as the Swann plaintiffs urged below, would defy com-
mon sense and run afoul of developments in the Supreme Court’s
school desegregation jurisprudence. See United States Gypsum Co. v.
Schiavo Bros., 668 F.2d 172, 176 (3d Cir. 1981) (concluding that a
successor judge "is empowered to reconsider [the legal conclusions of
an unavailable predecessor] to the same extent that his or her pre-
decessor could have"); see also Meriwether County, 171 F.3d at 1339
("The law does not make a school district a prisoner based on factors,
such as demographic tendencies, that are beyond its control."). We
will examine the district court’s Martin findings in turn.

a. School Siting

The district court found that CMS had not shirked its duties under
the law with regard to school sitings. See Capacchione, 57 F. Supp.
2d at 251-53. The record reveals that CMS has, to the extent practica-
ble, continually endeavored to site schools in order to foster integra-
tion, and has adopted a policy of building schools in areas equally
accessible to blacks and whites. Testimony of current board members
indicated that in efforts to fulfill this policy, CMS has purchased
property in low growth areas for school construction even though
schools in predominantly white high growth areas were overcrowded.
See J.A. V-1986-87. In 1992 CMS reaffirmed its siting policy and
resolved that, "whenever possible," new schools would be built in
areas that would "provide black student enrollment of not less than 10
percent from the census tracts serving the new school." J.A. XXXII-
15,686. The impetus behind the resolution was growth in the periph-
ery of the county which the board speculated would continue patterns
of housing segregation, thus making it more difficult to maintain
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 27
racial balance in the schools. Evidence presented at trial indicated that
the ten percent rule was destined for failure because it was not possi-
ble to implement the rule and still "meet the 60-minute bus ride
limit." J.A. XXII-10,869. Nevertheless, extensive evidence was pre-
sented showing that CMS never sited schools in order to foster segre-
gation and that "every effort was made to try to find school sites that
would bring people together in balanced numbers." J.A. VI-2752; see
Meriwether County, 171 F.3d at 1337 (stating that "the absence of
evidence indicating that racial motives played any part in the Board’s
decisionmaking process" is relevant in accessing compliance with
desegregation orders). For example, CMS’s executive director of
planning and student placement testified that in siting schools CMS
"looked at both African-American and all populations not only in the
vicinity of the site, but in the entire district." J.A. VII-2920. So dedi-
cated was CMS to siting schools in integrated areas that it contem-
plated refusing a gift of land for school use because the land was in
a predominantly white area. See J.A. V-1985.

Faced with growth in the predominantly white regions of the far
south and north, see J.A. XXXIII-16,261, CMS was compelled to
serve populations in those areas via school sitings. CMS’s data show
that in the late 1990s, student population was "growing at nearly
4,000 students per year," J.A. XXIX-14,133, and consequently the
board was "just trying to keep up" with the population explosion in
building schools, J.A. V-2249. Overcrowding was a problem, and in
the late 1990s "the average high school expected to operate at 109
percent of its capacity." J.A. XXIX-14,133. Even though CMS was
forced to build schools at a rapid rate to serve an expanding student
population, pupil assignment plans in which CMS described popula-
tion growth as a "major consideration[ ]" are replete with efforts to
improve racial balance. J.A. XXIX-14,133. For example, the 1997-98
assignment plan highlighted the creation and expansion of several
magnet programs specially designed to reduce the black ratio in a
number of schools. See J.A. XXIX-14,147-51. To the extent practica-
ble, CMS did not sacrifice racial balance concerns to population
growth. Though the two often pulled CMS in different directions, the
record indicates that the board coordinated racial balance and school
sitings as best it could under the circumstances. The evidence does
not indicate that the abandonment of the ten percent rule or other
28 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
decisions regarding school siting were the result of a desire to perpet-
uate the dual school system or circumvent the district court’s orders.

CMS and the Swann plaintiffs, citing to prior orders, counter that
the board has not done all that it could do in the area of school siting.
Erection of such a standard, however, would effectively replace prac-
ticability with possibility. See Manning, 244 F.3d at 945 (observing
that "the law does not require a defendant school board to take every
conceivable step in attempting to desegregate"). The former implies
measures that can be reasonably implemented under the circum-
stances, while the latter omits the reasonableness requirement. For
instance, it was possible for CMS to adhere to the ten percent rule
while ignoring growth in the far north and south of the county.
Youngsters would have been compelled to ride buses for long periods
while traveling with the flow of rush hour traffic, but it was nonethe-
less possible to adhere to the ten percent rule. Of course, the practica-
bility of a refusal to respond to growth in Charlotte-Mecklenburg is
another matter.

In the same vein, the Swann plaintiffs contend that school siting
decisions were a response to white flight, which is an impermissible
reason for failing to comply with a desegregation order. Growth, of
course, is far different from flight. And experts offered evidence of
"the economic boom in the Charlotte Metropolitan area in the last
decade." J.A. XXXIII-16,233. Charlotte-Mecklenburg is one of the
most dynamic areas in the South; it is far different from the Charlotte-
Mecklenburg of Swann, and much changed from that of Martin. In
light of the growth in the county and a plethora of evidence demon-
strating that the board used its best efforts to site schools in order to
foster integration, the district court did not commit error when it con-
cluded that there is no "continuing constitutional violation[ ] in the
area of school siting." Capacchione, 57 F. Supp. 2d at 253.

b. Burdens of Busing

As for the burdens of busing, the district court found that in the
most recent school year, 15,533 black students and 11,184 non-black
students were bused for balancing purposes. Id. As stated earlier, traf-
fic patterns make busing suburban students into the inner city far
more difficult than busing inner-city children into the suburbs. See
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 29
J.A. VI-2732; J.A. V-2228. Though a disproportionate number of
African-American students are bused, the growth, housing patterns,
and traffic patterns support the district court’s conclusion that the
realities of the current situation should not block a unitary status
determination. See Meriwether County, 171 F.3d at 1341 (finding no
constitutional violation when white students are "somewhat less bur-
dened by the transportation scheme" because of demographic factors).

c. Student Transfers

Finally, Martin’s concern with student transfers appears to have
been based on the assumption that CMS would experience average
growth. Courts are not omniscient, and the district court in 1979 could
not have foreseen the changing demographics that would make stu-
dent transfers the least of CMS’s worries. In the present litigation, the
district court observed "that CMS ‘kept an eye on [magnet transfers]
so that there wouldn’t be a run on the bank so to speak from any one
school.’" Capacchione, 57 F. Supp. 2d at 250 n.10 (alteration in origi-
nal). This finding is not clearly erroneous, nor can we discern the
need for more findings on this issue in light of post-Martin changes.

3. Conclusion

In sum, the district court’s findings on student assignment are
"plausible in light of the record viewed in its entirety." Anderson, 470
U.S. at 573. The dual system of student assignment in CMS has been
eradicated "to the extent practicable." Dowell, 498 U.S. at 250. The
imbalance existing in some schools is not traceable to the former dual
system or to renewed discriminatory actions, but rather is a result of
growth and shifting demographics. Consequently, we hold that the
district court’s findings on student assignment are not clearly errone-
ous.

B. Faculty Assignment

In examining faculty assignment, the district court again used a
plus/minus fifteen percent variance. Of the 126 schools operating in
CMS, the district court found that in 1997-98 only ten schools were
out of balance. The Swann plaintiffs point out that this number grew
30 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
to sixteen in 1998-99, but this means that a mere twelve percent of
the schools were out of balance. This is a far cry from the dual system
in which "most of the 24,000 [black students] ha[d] no white teach-
ers." Swann, 300 F. Supp. at 1360. There is simply no evidence that
CMS assigns black teachers to predominantly black schools and white
teachers to predominantly white schools. Thus, the district court’s
conclusion that this Green factor has been satisfied is not clearly erro-
neous.

C. Facilities and Resources

The Swann plaintiffs and CMS contend that the district court
impermissibly shifted the burden of proof on this factor. As a result
of the alleged error of law, CMS and the Swann plaintiffs contend that
this issue must be remanded to the district court.

This court has previously made clear that "once a court has found
an unlawful dual school system, [those alleging the existence of racial
disparities] are entitled to the presumption that current disparities are
causally related to prior segregation, and the burden of proving other-
wise rests on the defendants." School Bd. of the City of Richmond v.
Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987). In this case, however,
the district court noted that none of the prior orders entered in the
long history of the Swann litigation had ever found racial disparities
to exist with regard to school facilities and concluded that CMS and
the Swann plaintiffs bore the burden of establishing discrimination
with regard to facilities. See Capacchione, 57 F. Supp. 2d at 263 ("[I]t
would defy logic to place now the burden of proof on the Plaintiff-
Intervenors, requiring them to prove that vestiges of discrimination in
facilities have been remedied, when the Court originally found no
vestiges to exist."). In our view, this erroneous assignment of the bur-
den of proof, which did not affect the manner in which the parties
tried the case or otherwise prejudice their rights, is harmless and does
not undermine the district court’s factual conclusions regarding the
facilities factor.6
6
Given the counter-intuitive alignment of the parties in this case, it
could be argued that the presumption and burden allocation set forth in
Baliles should not be applied, and that CMS should instead be required
to prove the existence of racial disparity in its facilities. See United
States v. City of Yonkers, 181 F.3d 301, 309-11 (2d Cir. 1999), vacated
on reh’g, 197 F.3d 41 (2d Cir. 1999).
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 31
Immediately after assigning the burden to CMS and the Swann
plaintiffs, the district court’s order nonetheless summarized and
weighed the facilities evidence presented by the parties. The district
court carefully analyzed the testimony and report of Dr. Dwayne
Gardner, an expert witness for CMS. Dr. Gardner analyzed seventy-
three schools—every identifiably black school in CMS and a sam-
pling of balanced schools and predominantly white schools. Dr. Gard-
ner measured the adequacy, safety, healthfulness, accessibility,
flexibility, efficiency, expansibility, and appearance of the schools.
Based on the inspection he grouped schools as follows: "0-44 (sug-
gests replacement), 45-59 (needs major improvement), 60-74 (needs
minor improvement), 75-89 (serves program needs), and 90-100
(exceptional quality)." Id. at 264. The survey revealed that of the four
schools that warranted replacement, two were majority white, and two
were imbalanced black. See J.A. XXV-12,182-86. Thirty-four schools
fell into the "needs major improvement" category, of which sixteen
were imbalanced black and eighteen identifiably white.

The district court determined that Dr. Gardner’s testimony estab-
lished that any current disparities were functions of the age of the
facilities at issue, because

different building standards apply when a new facility is
constructed as compared to when an older facility is reno-
vated or upgraded. In other words, the renovation of an
older facility usually complies with the code under which
the facility was built. Because most facilities in the predomi-
nately black inner city are older while facilities in the pre-
dominately white suburbs are newer, the inference is that
differences in building standards tend to affect black stu-
dents disproportionately. This does not amount to racial dis-
crimination. Indeed, this practice applies regardless of the
racial composition of the school. Thus, older schools that
are predominately white—several of which were built in the
1920s—are likewise affected by this practice.

Capacchione, 57 F. Supp. 2d at 265 (footnote and transcript refer-
ences omitted). Thus, the district court concluded from Dr. Gardner’s
testimony and report "that CMS’s facilities needs are spread across
the system without regard to the racial composition of its schools." Id.
32 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
The district court also considered the testimony of CMS’s assistant
superintendent of building services, who testified that out of 108
schools in need of renovations, eighty-one percent were racially bal-
anced or identifiably white. See J.A. VIII-3810 & 3818. The district
court concluded that this witness’s testimony likewise demonstrated
that the deficiencies in CMS’s facilities were unrelated to the former
de jure system.
Finally, the court considered CMS’s track record in renovating old
facilities, praising its practice of allocating funds on a per-pupil basis
and noting that "CMS has spent a large portion of [its] bond money
on improving schools in predominantly black areas." Capacchione,
57 F. Supp. 2d at 266.
After an extensive discussion of this evidence, the court made the
following finding of fact with regard to facilities:
Just as Judge McMillan found thirty years ago, the Court
finds today that inequities in facilities exist throughout the
system regardless of the racial makeup of the school. These
disparities are generally the result of the relative ages of the
facilities, combined with an ongoing lack of funding and the
need to accommodate unprecedented growth.
Id.
This finding is clearly determinative of the question of unitary sta-
tus as to facilities, regardless of which party carried the burden of
proof. That is, the district court, after carefully considering and
weighing all the evidence presented on this factor, concluded that any
disparity as to the condition of the facilities that might exist was not
caused by any intentional discrimination by CMS, but instead was a
function of the age and location of the facilities and the ever-present
problem of allocating all too scarce funds. Even if the district court
had assigned the burden of proof to the plaintiff-intervenors, this fac-
tual finding would have compelled a ruling in their favor. In fact, the
district court acknowledged as much, stating "that the Plaintiff-
Intervenors have proven, to the extent possible, the absence of intent
and causation." Capacchione, 57 F. Supp. 2d at 267 n.38.7

7
From this footnote and the district court’s detailed discussion about
the cause of any disparity in CMS’s facilities, it appears that the district
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 33
Therefore, because the district court’s findings, which were based
on the court’s weighing of all of the relevant evidence presented at
trial, would have yielded the same conclusion under a proper assign-
ment of the burden of proof, any error with regard to the burden of
proof is harmless. See Washington State Dep’t of Transp. v. Washing-
ton Natural Gas Co., 59 F.3d 793, 801 (9th Cir. 1995) (finding dis-
trict court’s improper assignment of the burden of proof to be
harmless because review of the entire record established "that under
the proper assignment of the burden of proof, the district court would
have reached the same decision"); Applewood Landscape & Nursery
Co. v. Hollingsworth, 884 F.2d 1502, 1506 (1st Cir. 1989) (conclud-
ing that, if the district court improperly allocated burden of proof on
a particular issue, the error was harmless because the district court’s
decision on that issue turned on the weight of the evidence in the
record and not on burden of proof rules); cf. Vaughns, 758 F.2d at 992
(recognizing that an error in shifting the burden of proof in a school
desegregation case may be harmless if the record is such that the court
can conclude that substantial rights have not been prejudiced).

Because any error associated with the burden of proof is harmless,
the only question that remains is whether the district court’s factual
findings about the facilities are clearly erroneous. Though the evi-
dence could have been weighed differently on this factor, "[w]here
there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous." Anderson, 470
U.S. at 574. In 1969, the district court found that there was no consti-
tutional violation in the "quality of school buildings and facilities."
Swann, 300 F. Supp. at 1372. The Capacchione court found that this
remains true today, and the evidence as a whole indicates that this
finding is not clearly erroneous.

court really made alternative rulings on the facilities question: The court
first concluded that CMS and the Swann plaintiffs bore the burden of
proof with regard to facilities and that they failed to carry that burden.
See Capacchione, 57 F. Supp. 2d at 267 ("[T]he Swann Plaintiffs have
failed to overcome the Court’s previous findings on facilities by estab-
lishing the requisite discriminatory intent and causation."). The court
then ruled in the alternative, as indicated by the footnote and the find-
ings, that the plaintiff-intervenors proved that any disparities were the
result of factors unrelated to state action.
34 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
D. Transportation

During the 1998 school year, five out of every six students in CMS
rode a school bus. See Capacchione, 57 F. Supp. 2d at 267. The par-
ties do not dispute the district court’s finding that "CMS provides free
bus transportation to all students who do not live within a mile and
a half of their schools." Id. The focus of the Swann plaintiffs’ argu-
ment on this factor deals with the Martin opinion. As previously dis-
cussed, Martin does not provide the framework for a unitary status
determination and the district court’s interpretation of Martin, along
with the finding that the present state of busing "may be about the
best CMS can do," Capacchione, 57 F. Supp. 2d at 253, does not con-
stitute error.

E. Staff Assignment

The district court, noting that findings of discrimination in school
staffing were never made, concluded that CMS has complied with its
constitutional duties. The parties point this court to no contrary evi-
dence, nor have we discovered such in the record. Therefore, we hold
that the district court’s findings regarding the fifth Green factor are
not clearly erroneous.

F. Extracurricular Activities

The district court concluded that there was no discrimination or
vestiges of discrimination with regard to extracurricular activities.
The evidence presented at trial showed that the ratios of blacks and
whites participating in extracurricular activities, though varying
somewhat from year to year, is approximately equal. See J.A. XXIV-
11,634. Areas where there are disparities were not shown to be linked
to the former dual system. For example, blacks often outnumber
whites in holding elective offices in student government, but whites
have a higher level of representation in honors programs. No evidence
is found in the record to indicate that CMS somehow pushes African-
Americans toward student government and away from honors pro-
grams. Consequently, the district court’s conclusion that CMS has
satisfied this Green factor is not clearly erroneous.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 35
G. Ancillary Factors

1. Teacher Quality

The district court found that there was no discrimination in the
quality of teaching. The Swann plaintiffs contend that this finding is
clearly erroneous because students in imbalanced African-American
schools are more likely to have inexperienced teachers. This "experi-
ence gap," to the extent it exists, is minuscule. The district court
found that "teachers in imbalanced-black schools had 0.7 to 1.3 fewer
years experience than the district averages and had 1.6 to 2.9 fewer
years experience than teachers in imbalanced-white schools." Capa-
cchione, 57 F. Supp. 2d at 271. To use middle school teachers as an
example, the statistics reveal that the average middle school teacher
in an imbalanced African-American school had 8.2 years experience
versus 9.8 years for his counterpart in an imbalanced white school. Id.
These numbers clearly support a finding of equality rather than dis-
parity, and cannot undermine the district court’s conclusion on this
factor.

The district court also pointed to evidence indicating that experi-
ence does not necessarily relate to competency. For example, accord-
ing to former Superintendent Murphy, it is not uncommon to have
"excellent first-year teachers" and "very weak 35th-year teachers."
J.A. VI-2795. Other witnesses observed that the newer teachers had
better "knowledge of various teaching strategies" and were more com-
fortable with diverse classrooms. J.A. VII-3275.

The Swann plaintiffs also assert that imbalanced African-American
schools have fewer teachers with advanced degrees. For instance, in
imbalanced black high schools only thirty-one percent of the teachers
held advanced degrees, while forty-six percent of the teachers in
imbalanced white high schools held advanced degrees. See Capacch-
ione, 57 F. Supp. 2d at 271. As it was with teacher experience, testi-
mony was offered establishing that the number of degrees a teacher
possesses does not necessarily translate into competence or quality
instruction. See J.A. VII-3276. According to former Superintendent
Murphy, "the degree level was not a significant indicator of getting
better performance on the part of the teacher." J.A. VI-2795. Expert
reports submitted by the plaintiff-intervenors also indicated that there
36 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
is "no significant relationship" between black achievement and
teacher education levels. J.A. XXXIII-16,221. In sum, the district
court’s conclusion that African-American students receive equal
access to quality teachers is not clearly erroneous.

2. Student Achievement

The district court found that the existence of an achievement gap
between black and white students was not a vestige of the dual system
or evidence of discrimination in the current operation of CMS. This
was an area of immense disagreement at trial, and the parties pre-
sented a mountain of data on this subject. Though the Fourteenth
Amendment guarantees equal protection but not equal outcomes, if
low African-American achievement is a result of the former de jure
system, it must be eliminated to the extent practicable. See Dowell,
498 U.S. at 249-50. Conversely, to the extent that low achievement
is linked to other factors, it is beyond the reach of the court’s author-
ity. Most courts of appeals confronting this issue, including this court,
have declined to consider the achievement gap as a vestige of dis-
crimination or as evidence of current discrimination. See Baliles, 829
F.2d at 1313 (upholding lower court’s findings that low achievement
is "primarily attributable to the high incidence of poverty" in the
school district); see also United States v. City of Yonkers, 197 F.3d
41, 54 (2d Cir. 1999) (observing that "using achievement test scores
as a measure, either direct or indirect, of a school system’s movement
away from segregation is deeply problematic"), cert. denied, 120
S. Ct. 2005 (2000); People Who Care v. Rockford Bd. of Educ., 111
F.3d 528, 537 (7th Cir. 1997) (explaining that a number of variables,
other than discrimination, account for the achievement gap); Coali-
tion to Save Our Children, 90 F.3d at 778 (finding "a causal link
between . . . socioeconomic factors and student achievement").

The plaintiff-intervenors’ expert witness, Dr. Armor, presented evi-
dence indicating that there is no correlation between African-
American performance and the racial balance of schools. See J.A.
XXXIII-16,178. For example, Dr. Armor’s studies showed that
African-American students in the third through fifth grades attending
schools sixteen to twenty-five percent African-American scored the
same on standardized tests as their counterparts in schools seventy-
five percent black or greater. See J.A. at 16,214. Similarly, African-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 37
American students in the sixth through eighth grades attending
schools sixteen percent black or less scored the same on standardized
tests as their counterparts in schools seventy-five percent black or
greater. See J.A. XXXIII-16,215.
In order to shed light on the true causes of the achievement gap,
Dr. Armor turned to socioeconomic factors. The data revealed star-
tling differences between black and white children in CMS.
Average black family income is $31,000 compared to
$59,000 for whites, and only 15 [percent] of black parents
are college graduates, compared to 58 percent for white par-
ents. A huge poverty gap is also revealed, with 63 percent
of black students on free lunch compared to only 9 percent
of white students. Finally, 83 percent of white students have
both parents at home, compared to only 42 percent for black
students.
J.A. XXXIII-16,179. According to Dr. Armor, the socioeconomic fac-
tors plus the second grade scores, which are the earliest available,
explain "nearly 80 percent of the reading gap and over 70 percent of
the math gap." J.A. XXXIII-16,180. Former Superintendent Murphy
testified that in his experience "[p]oor students come behind and stay
that way. And in Charlotte, a majority of poor students happen to be
African-American." J.A. VI-2696. Dan Saltrick, former assistant
superintendent for instructional services, also testified that in his
experience low student test scores related to parental support which
in turn was "a matter of . . . socioeconomic levels." J.A. VII-3280.
While socioeconomic disparities between black and white pupils are
troubling, they are not the result of CMS’s actions or inactions and
therefore are beyond the scope of the original desegregation order.
See Baliles, 829 F.2d at 1314 ("Educational deficiencies that result
from problems such as poverty are best remedied by programs
directed toward eliminating poverty, not by indirect solutions through
school programs.").8 Accordingly, the district court did not clearly err
8
Despite evidence that the achievement gap results from factors out-
side CMS’s control, the district court found that CMS has undertaken
sundry measures to eliminate the gap. For example, CMS adopted finan-
cial incentives for teachers and principals tied to student performance,
urged black students to take advanced placement and other higher level
38 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
in finding that the achievement gap between black and white students
is not a vestige of past discrimination or evidence of present discrimi-
nation.
3. Student Discipline
The district court found "that any disparities that exist in the area
of discipline are not causally related to the dual system." Capacch-
ione, 57 F. Supp. 2d at 281. In none of the court’s prior orders is there
any indication that CMS has ever discriminated in meting out punish-
ment for disruptive students. However, recent statistics show that of
the 13,206 students disciplined from 1996-98, sixty-six percent were
African-American. See J.A. XXIV-11,637. As the district court noted,
"disparity does not, by itself, constitute discrimination." Capacchione,
57 F. Supp. 2d at 281. The idea that CMS should have a disciplinary
quota is patently absurd, and there is no evidence in the record that
CMS targets African-American students for discipline. Instead, the
evidence indicates that CMS has adopted guidelines whereby students
receive the same level of punishment for certain offenses to ensure
that the amount of punishment will not vary from school to school.
A student charged with a disciplinary infraction may also appeal the
charge "and may assert that the charge was due to racial bias." Id.
There is simply no evidence in the record that CMS treats African-
American students differently in disciplinary matters. Hence, the dis-
trict court’s conclusion that the disciplinary disparities are unrelated
to the former de jure system is not clearly erroneous.
H. Good Faith
Lastly, the district court found that CMS has complied with the
desegregation decree in good faith. See Freeman, 503 U.S. at 491
(requiring school board "to demonstrate its good-faith commitment to
a constitutional course of action"). Seven factors supported the district

classes, challenged all students by removing "fluff courses" from the cur-
riculum, provided tutors and other forms of staff support to accelerate
student preparedness, and adopted pre-kindergarten programs to acceler-
ate preparedness for the youngest of students. See Capacchione, 57 F.
Supp. 2d at 273-275.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 39
court’s good-faith finding: (1) no further relief has been sought since
the district court removed the case from the active docket in 1975; (2)
CMS has gone above and beyond the court’s orders by continually
striving to achieve balance even when the imbalance was uncon-
nected to the dual system; (3) the board has been open to community
input and sought community support for its integrative efforts; (4) the
board has repeatedly reaffirmed its commitment to desegregation
through various resolutions; (5) African-Americans currently occupy
four of the nine seats on the school board, including the chair; (6) the
board’s actions over the past thirty years do not evince discriminatory
motives; and (7) "no evidence has been presented that school authori-
ties were guilty of easily correctable errors." Capacchione, 57 F.
Supp. 2d at 282-83.
Testimony from former board members indicated that the court’s
order has been "institutionalized," J.A. V-2222, and that the board "al-
ways stuck to what the rules were." J.A. V-2234. Former Superinten-
dent Murphy testified that when he arrived in Charlotte-Mecklenburg
he found a "unique" environment where "everybody wanted to make
sure that their schools were racially balanced." J.A. VI-2686. In 1992,
Dr. Stolee suggested a magnet plan to increase integration, and, in the
course of his recommendations, observed that "[f]or the last twenty
years, the Charlotte-Mecklenburg Board of Education and the
Charlotte-Mecklenburg community have, in good faith, complied
with the orders of the court." J.A. XXXII-15,570. He further observed
"that the Charlotte-Mecklenburg Board and community have a great
deal of pride in the fact that they successfully met a challenge and
made the solution work." J.A. XXXII-15,571.
Of course, both in the district court and in appellate arguments,
current CMS officials engaged in much self-recrimination and
claimed that they had not pursued the dismantlement of the dual sys-
tem with the requisite zeal. Right on cue, the Swann plaintiffs
describe this case as "unique" because CMS "has acknowledged its
own failure to comply with specific directives" of the district court.
Swann Plaintiffs’ Response to Petition for Rehearing at 10. The dis-
trict court gave little weight to CMS’s assertions that the board had
not put forth enough effort, and the evidence presented at trial amply
supports the district court in this regard. Former Superintendent Mur-
phy testified that despite a report indicating that CMS was unitary and
his belief that CMS "w[as] definitely in compliance," no effort was
40 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
made to dissolve the court order. J.A. VI-2706. Dr. Murphy gave
three reasons for the avoidance of a unitary status hearing. First, he
advised board members that the court hearing would be "a long,
drawn-out process which would cost millions of dollars, and that
would be money taken away from the instructional program." J.A. VI-
2706. Second, Dr. Murphy feared that if CMS was declared unitary
"we would not be eligible for federal funding for our magnet
schools." J.A. VI-2706; see also J.A. XXII-10,563 (CMS report
observing that "school districts that intend to use magnet schools for
desegregation purposes can apply for grants from the federal govern-
ment"); J.A. XXI-10,521 (1996-1997 Federal Magnet School Assis-
tance Program Evaluation Report in which CMS describes federal
funding as "an integral part" of its pupil assignment plan). Finally, Dr.
Murphy thought it best to remain under court order so CMS could
continue to racially balance schools even though the de jure violation
had been remedied.
Dr. Susan Purser, the current associate superintendent of education
services of CMS, expressed a similar desire for CMS to remain under
court order. Though Dr. Purser testified that she believed that the
school board, superintendent, and administration were dedicated to
enhancing educational opportunities for all of CMS’s students regard-
less of race, she nonetheless expressed a preference for court supervi-
sion. Dr. Purser pointed out that the current "Board has only a limited
time, because these are elected positions," J.A. XVII-8076, and that
over time "superintendents will change, [and] the people involved in
[CMS] will change." J.A. XVII-8077. At this point in the cross exam-
ination, counsel asked Dr. Purser: "But you don’t know what any
future School Board or administration will do either way, do you?"
J.A. XVII-8077. Dr. Purser responded: "That’s exactly my point."
J.A. XVII-8077. Dr. Purser’s testimony and that of Dr. Murphy exem-
plify why the Supreme Court has stressed that "federal supervision of
local school systems was intended as a temporary measure to remedy
past discrimination." Dowell, 498 U.S. at 247; see also Coalition to
Save Our Children, 90 F.3d at 761 n.6 (warning of "the potential for
the entrenchment of [a] putatively transitional desegregation
scheme"). The district court’s desegregation orders were not intended
to continue after CMS remedied the de jure violation, nor were they
intended to suspend the democratic process with no prospect of resto-
ration. Yet the orders have been institutionalized to the point that
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 41
CMS officials cannot imagine life without them. Once a yoke meant
to steer CMS towards compliance with the Constitution, the orders
are now used by CMS officials as mechanisms for the attainment of
different goals. In truth, CMS officials have little desire for a unitary
status determination and are struggling to keep the orders firmly in
place.
Ironically, CMS’s clinging to the temporary desegregation orders
buttresses the district court’s finding that it is unlikely "CMS would
return to an intentionally-segregative system." Capacchione, 57 F.
Supp. at 284. If CMS will go to such lengths to keep the court’s
orders in place so that it may continue racial balancing and other poli-
cies, it is unthinkable that CMS will attempt to revive the dual system.
Accordingly, the district judge’s finding of good faith is not clearly
erroneous.
I. CMS’s Remedial Plan
As a response to the plaintiff-intervenors’ push for unitary status,
CMS developed a "remedial plan" addressing many of the Green fac-
tors and other ancillary factors. See J.A. XXIII-11,028. The district
court dismissed the remedial plan as a "‘litigation strategy’ plan" and
declined to consider it. Capacchione, 57 F. Supp. 2d at 256. CMS and
the Swann plaintiffs characterize the district court’s treatment of the
remedial plan as a fundamental error of law that requires reversal of
the unitary status determination. First, CMS and the Swann plaintiffs
aver that the district court misconstrued the test for unitary status.
Adopting the test crafted by the panel opinion, CMS and the Swann
plaintiffs assert that a district court must consider (1) what a school
district has done, and (2) what a school district may do in the future.
See Belk, 233 F.3d at 252-53. Because the district court did not under-
take the latter inquiry as to the remedial plan, CMS and the Swann
plaintiffs argue that the district court’s order must be reversed. This
proffered two-part test is divined from Supreme Court cases which
have instructed district courts to ask "whether the Board ha[s] com-
plied in good faith with the desegregation decree since it was entered,
and whether the vestiges of past discrimination ha[ve] been elimi-
nated to the extent practicable." Dowell, 498 U.S. at 249-50; see also
Freeman, 503 U.S. at 491.
While we agree with the first prong of the test, we do not agree that
examining "whether the vestiges of past discrimination ha[ve] been
42 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
eliminated to the extent practicable," Dowell, 498 U.S. at 249-50,
requires a district court—as a matter of law—to consider a remedial
plan conceived, drafted, and offered by one of the parties during the
lawsuit as an obvious defense to it. The plain meaning of the relevant
language is that in some desegregation cases simple compliance with
the court’s orders is not enough for meaningful desegregation to take
place. See Swann, 402 U.S. at 25 (stating that "a district court’s reme-
dial decree is to be judged by its effectiveness"). For example, a
decree entered in the 1960s or 1970s could have underestimated the
extent of the remedy required, or changes in the school district could
have rendered the decree obsolete. In either case, a district court must
look beyond mere compliance with the original decree and ask
whether the vestiges of the dual system have been eliminated to the
extent practicable. In the present case, the district court undertook
such an inquiry. Not only did the district court address compliance,
but it also looked beyond the original decree and examined how the
extensive changes in the Charlotte-Mecklenburg area have affected
the dismantling of the former dual system. Hence, the district court
was not required under Dowell and Freeman to have considered
CMS’s eleventh-hour remedial plan.
Likewise, the district court did not run afoul of Federal Rule of
Evidence 402 when it refused to consider the remedial plan. Rule 402,
of course, declares that "[a]ll relevant evidence is admissible." Fed.
R. Evid. 402. Even relevant evidence may be excluded, however,
when its probative value is substantially outweighed by consider-
ations of the needless presentation of cumulative evidence. See Fed.
R. Evid. 403. And CMS’s remedial plan was certainly cumulative, cit-
ing and summarizing several expert reports which had been admitted
into evidence. For example, the plan’s discussion of faculty assign-
ment is based on the reports of Dr. William Trent, Dr. Robert
Peterkin, and Dr. Roslyn Mickelson; the plan’s discussion of facilities
is based on Dr. Gardner’s report; the plan’s discussion of the achieve-
ment gap between blacks and whites is based on the reports of Dr.
Trent, Dr. Peterkin, and Dr. Mickelson; and the plan’s student assign-
ment discussion is based on Dr. Gordon Foster’s report. All of the
aforementioned reports were admitted into evidence and the authors
of the reports testified at the hearing and were subject to cross-
examination. Hence, much of the remedial plan was cumulative, pro-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 43
viding the district court with but a rehashing of expert reports and tes-
timony.
To the extent that the remedial plan contained relevant evidence
appearing nowhere else in the record, we hold that the exclusion of
such evidence was harmless. According to Federal Rule of Civil Pro-
cedure 61, a "court at every stage of the proceeding must disregard
any error or defect in the proceeding which does not affect the sub-
stantial rights of the parties." Listing myriad deficiencies, objectives,
and strategies, the thirty-one page remedial plan is often short on spe-
cifics. Considering the amount of evidence presented on every aspect
of CMS’s operations during other phases of the two-month bench
trial, we cannot hold that the exclusion of the remedial plan affected
CMS’s substantial rights. See Ingram Coal Co. v. Mower, L.P., 892
F.2d 363, 366 (4th Cir. 1989) (applying Rule 61). Because the exclu-
sion of the remedial plan in no way renders the judgment below sus-
pect, the district court’s treatment of the plan cannot support reversal.
J. Conclusion
Pursuant to the foregoing, we affirm the district court’s unitary sta-
tus determination in toto. The district court’s findings on the Green
factors and the ancillary factors are bereft of clear error and we cannot
discern any error of law affecting the substantial rights of the parties.
After more than three decades of federal court supervision, CMS has
complied in good faith with the mandate of Brown embodied in the
district court’s desegregation orders to achieve a unitary school sys-
tem. The dual system has been dismantled and the vestiges of prior
discrimination have been eliminated to the extent practicable.
This is not to say that CMS is a perfect school system—it is not.
Like school systems across the nation, CMS faces an expanding pupil
population, aging facilities, and a scarcity of funds. These difficulties,
however, are not vestiges of the former de jure system and therefore
do not have constitutional implications. Considering CMS’s exem-
plary efforts in eradicating the segregated school system, we are con-
fident that de jure segregation is history.
III. Magnet Schools
I turn now to Capacchione’s challenge to CMS’s 1992 magnet
schools plan. Specifically, Capacchione contends that his daughter
44 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Cristina was unconstitutionally denied admission to a magnet school
program on account of her race. Capacchione does not argue that race
should not have been a factor in the magnet admissions process, but
that the inflexible quotas, which operated to leave seats in these spe-
cialized schools vacant despite long waiting lists, went beyond what
was permissible under prior court orders and the Constitution.
As noted previously, CMS operated its schools in nearly perfect
racial balance for almost twenty years under a pupil assignment plan,
adopted by the board and approved by the district court in 1974,
which primarily utilized paired elementary schools, satellite atten-
dance zones, a feeder system, and three experimental "optional
schools." See Swann, 379 F. Supp. at 1103-05; J.A. XXVIII-13,536-
44. In 1991, however, CMS hired Dr. Stolee to examine racial imbal-
ance that was being caused anew by the demographic shifts and popu-
lation growth in Mecklenburg County. The result of Dr. Stolee’s
labors was a new pupil assignment plan, entitled "CMS Student
Assignment Plan: A New Generation of Excellence." This new plan
emphasized the use of magnet schools, which would allow CMS to
phase out the unpopular paired elementary schools. Magnet schools,
many of which were located in predominately black neighborhoods,
offered a specialized curriculum or innovative instructional styles not
found in the other schools in the system.
Former Superintendent Murphy oversaw implementation of the
Stolee plan and testified that the magnet program was adopted
because CMS "wanted to attract more white youngsters into the inner
city schools" in order to meet CMS’s racial-balance goals. J.A. VI-
2709. Dr. Stolee observed in his report that "Charlotte-Mecklenburg
has had a long and successful experience with mandatory school
assignments," but that in order to combat demographic shifts CMS
should adopt a plan based on voluntarism. J.A. XXXII-15,581; see
also Missouri v. Jenkins, 515 U.S. 70, 92 (1995) (Jenkins III)
("Magnet schools have the advantage of encouraging voluntary move-
ment of students within a school district in a pattern that aids desegre-
gation on a voluntary basis, without requiring extensive busing and
redrawing of district boundary lines."); J.A. XXVIII-13,796 (student
assignment plan boasting that "Charlotte, the city which prides itself
on leading the nation in integration through busing, now has the
opportunity to become the city to lead the nation in voluntary bus-
ing"). A desegregation plan using magnet schools, according to Dr.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 45
Stolee, would "give[ ] each parent an opportunity to make a choice
between a school serving the area in which the family resides, a
school in some other area, or a school offering a very specific attrac-
tive program." J.A. XXXII-15,580. Dr. Stolee also recognized that the
magnet-centered plan would be a dramatic shift from the prior deseg-
regation plan which featured paired elementary schools, satellite
attendance zones, and a feeder system. Thus, as part of the plan, he
recommended that CMS secure approval from the district court before
making any changes. Indeed, Dr. Stolee’s "RECOMMENDATION
#1," out of forty-four, read:
THE SCHOOL BOARD, THROUGH LEGAL COUNSEL,
SHOULD APPROACH THE FEDERAL COURT TO
SECURE APPROVAL TO CHANGE THE COURT-
ORDERED DESEGREGATION PLAN.
J.A. XXXII-15,578. This recommendation was consistent with the
prior district court order directing CMS to apply to the district court
"before making any material departure" from the approved desegrega-
tion plan. Swann, 311 F. Supp. at 270; see also J.A. XXVIII-13,790
(board member requesting that Dr. Stolee "review the federal court
order" to determine if the magnet plan was permissible). However,
CMS ignored Dr. Stolee’s advice and the district court’s instruction,
choosing instead to withhold these changes in the desegregation plan
from the district court.
The crux of the problem with CMS’s magnet school plan is its
admissions process. As aptly described by the district court, it oper-
ates as follows:
At the start of the process, CMS first fills seats with prefer-
ences based on whether the applicant lives in close proxim-
ity to the school and whether the applicant has any siblings
in the school. CMS then fills the remaining seats by select-
ing students from a black lottery and a non-black lottery
until the precise racial balance is achieved.
Capacchione, 57 F. Supp. 2d at 287 (internal citations omitted). As
originally explained to the board, the plan sought a balance of sixty
percent white and forty percent black in the magnet schools with a
plus or minus fifteen percent deviation. See J.A. XXVIII-13,705.
Unfortunately, CMS opted for a strict ratio of sixty percent white and
forty percent black, and decreed in its 1992 student assignment plan
46 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
that magnet "slots reserved for one race will not be filled by students
of another race." J.A. XXXII-15,702. The result of this policy was
that if a sufficient number of blacks or whites did not apply and fill
the seats allotted to their respective races, then those seats would be
left vacant. Though some exceptions were made, Superintendent Eric
Smith testified that CMS generally adhered to the policy. See J.A.
XV-7217.
The district court appropriately examined the magnet schools
through a pre-unitary status lens, observing "that the current litigation
started not as a petition for unitary status but as a discrimination suit
arising out of Cristina Capacchione’s denial of admission to a magnet
school based on her race." Capacchione, 57 F. Supp. 2d at 284. The
district court recognized that school officials acting pursuant to a
desegregation order were immune from liability for actions taken con-
sistent with that order. See Fowler v. Alexander, 478 F.2d 694, 696
(4th Cir. 1973) (law enforcement officials who confined the plaintiff
pursuant to a court order were immune from § 1983 suit); see also
Wolfe v. City of Pittsburgh, 140 F.3d 236, 240 (3d Cir. 1998) (offi-
cials acting pursuant to court order establishing quotas for promotions
are not subject to § 1983 liability); Turney v. O’Toole, 898 F.2d 1470,
1472-73 (10th Cir. 1990) (holding that so long as a court order is
facially valid, officials acting pursuant to that order are immune from
a damages suit); Coverdell v. Department of Soc. & Health Servs.,
834 F.2d 758, 764 (9th Cir. 1987) (social worker is immune from
§ 1983 liability when executing a facially valid court order). How-
ever, the district court concluded that the use of magnet schools had
never been approved and that the rigid racial limitations of the magnet
admissions policy were "beyond the scope of the Court’s mandate."
Capacchione, 57 F. Supp. 2d at 285. The district court then subjected
the admissions policy to strict scrutiny, holding that the policy vio-
lated the Equal Protection Clause of the Fourteenth Amendment
because it was not narrowly tailored to achieve the compelling state
interest of remedying past discrimination. This court reviews the dis-
trict court’s findings of fact for clear error and its legal conclusions
de novo. See Rutherford Hosp., Inc. v. RNH Partnership, 168 F.3d
693, 698 (4th Cir. 1999).
BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 47
Volume 2 of 4
48 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
A. Immunity

I begin with the question of whether CMS officials are entitled to
immunity because their actions in adopting and implementing the
Stolee magnet program in 1992 were taken pursuant to and were con-
sistent with the desegregation orders and opinions issued by the dis-
trict court and Supreme Court in the early 1970s. In the main, CMS
asserts that it is entitled to immunity for its act of implementing the
1992 magnet schools program without court approval because the
prior desegregation orders authorized the use of "optional schools"
and a racial balance goal for filling them. Like the district court, I
conclude that the magnet schools plan, as implemented, was not
authorized by the prior court orders and that, for the reasons stated
hereafter, the CMS officials are not entitled to immunity.

1. Magnet-Centered Program

As an initial matter, I note that prior court orders did not counte-
nance implementation of a desegregation plan based primarily on
magnet schools. Never was CMS given carte blanche to adopt such
a program absent court review and approval. CMS counters that a
magnet-centered plan was permissible insofar as the district court
approved the establishment of a few experimental optional schools in
1974 as part of a plan utilizing paired elementary schools, satellite
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 49
attendance zones, and a feeder system. See Swann, 379 F. Supp. at
1103-04. What CMS fails to recognize is that optional schools were
but a small part of the plan approved in 1974, likely because the dis-
trict court was very skeptical about their efficacy as a desegregation
technique. In the course of its order, the district court noted that the
history of optional schools was marked by "failure" in a number of
regards and warned CMS to be cautious in creating them. Id. at 1103.
Consequently, CMS began with three experimental optional schools
in 1974 and increased the number to only six by the early 1990s.

The optional schools created in the wake of the 1974 order placed
more "emphasis on open or traditional education than normally
offered in conventional schools." J.A. XXXII-15,683. The optional
schools’ traditional programs "offer[ed] an enriched and highly struc-
tured education," J.A. XXXII-15,732, whereas the open programs
offered a "student-centered" environment that "encouraged [students]
to take responsibility for their behavior and for their own learning."
J.A. XXXII-15,733. The optional schools approved by the 1974 order
were not as diverse and specialized as the magnet school program
implemented in 1992. The program suggested by Dr. Stolee offered
schools specializing in traditional and open educational methods and
created specialized schools featuring the Montessori method; science,
mathematics, and technology; foreign language immersion; learning
immersion programs for young children; enhanced education for aca-
demically gifted students; and communication studies programs. See
J.A. XXXII-15730-41. However, both the optional schools and the
magnet schools were designed to achieve the same end result—the
attraction of students to a school in a particular location by using a
specialized curriculum or teaching technique. Thus, Dr. Stolee, in rec-
ommending the magnet program in 1992, observed that CMS, via its
optional schools, "had some experience in such specialized schools."
J.A. XXXII-15,580.

Despite the district court’s 1970 directive that CMS obtain court
approval for material modifications to the court-imposed desegrega-
tion plan, the court’s skepticism of optional schools, the approval pro-
cess that took place in the ensuing years, and Dr. Stolee’s specific
recommendation in 1992 that CMS seek court approval for the new
magnet schools program, CMS inexplicably chose not to return to the
district court to obtain approval of the magnet schools plan. At appel-
50 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
late argument before the entire court, CMS contended that the lan-
guage in the 1970 order requiring court approval for material
departures was superceded by the 1974 order. CMS points to no lan-
guage in the 1974 order supporting this argument and its repeated
citations to and reliance on pre-1974 orders regarding other aspects
of this case further call into doubt this new line of argument. More-
over, the 1974 order made clear that "[e]xcept as modified herein, all
previous orders of court remain in effect." Swann, 379 F. Supp. at
1105 (emphasis added). Hence, the 1970 order’s requirement that
CMS obtain leave of court "before making any material departure
from any specific requirement set out in the order" remained binding
on school officials. Swann, 311 F. Supp. at 270.

Nevertheless, I recognize that magnet schools are frequently used
by school districts under a desegregation order, see Milliken v. Brad-
ley, 433 U.S. 267, 272 (1977) (Milliken II) (approving of magnet
schools as a desegregation tool), and that the district court "encour-
aged [CMS officials] to use their full ‘know-how’ and resources to
attain" a desegregated school system, Swann 311 F. Supp. at 269.
Indeed, the plaintiff-intervenors’ own expert has touted magnet pro-
grams as an "effective way to attract sizable numbers of white stu-
dents to predominately minority schools." David J. Armor, Forced
Justice: School Desegregation and the Law 223 (1995). Thus, a mag-
net schools program, properly implemented, can no doubt be an effec-
tive desegregation tool. However, a conclusion that CMS was free to
adopt any form of magnet school program it might wish to see in
place does not flow from this general proposition.

I must forcefully disagree with CMS’s contention that the mention
of optional schools in the 1974 order provided legal cover for the
implementation of an assignment plan depending almost entirely on
magnet schools. The portions of the district court order authorizing
"optional schools" could perhaps be read in isolation as authorizing
CMS’s use of "magnet schools" in more diverse, specialized areas,
but the order did not authorize CMS to unilaterally abandon pairing,
satellites, and feeders in exchange for a magnet-centered plan.
Despite the import of the 1974 order, and without even a nod to the
district court, CMS in 1992 abandoned the approved desegregation
plan in favor of magnets. By the end of the decade CMS had created
fifty-eight magnet programs—a far cry from the six optional schools
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 51
in operation in the school year just prior to the adoption of the Stolee
plan. See J.A. XXXIV-16,721-30. CMS describes this abandonment
of the prior plan as but an expansion of the approved use of optional
schools. Clearly, this "expansion" was in reality a substantial restruc-
turing and cannot be squared with the unambiguous directives of prior
orders.

2. Strict Ratios

Even if I could conclude that a magnet-centered plan was permitted
under prior court orders, the plan implemented by CMS is nonetheless
ultra vires because it combines a rigid ratio of sixty percent white and
forty percent black with a policy decreeing that "slots reserved for one
race will not be filled by students of another race." J.A. XXXII-15,702.9
In 1970, the district court issued a desegregation order to CMS, not-
ing that the order was "not based upon any requirement of ‘racial bal-
ance.’" Swann, 311 F. Supp. at 267 (emphasis added). The court
reiterated "that efforts should be made to reach a 71-29 ratio in the
various schools so that there will be no basis for contending that one
school is racially different from the others, but . . . that variations
from the norm may be unavoidable." Id. at 267-68 (internal quotation
marks omitted). On appeal, the Supreme Court affirmed the guide-
lines set forth in the district court’s order and also addressed the sub-
ject of racial quotas. See Swann, 402 U.S. at 23-25.

With regard to the district court’s goal of achieving a racial balance
of seventy-one percent white and twenty-nine percent black, the Court
took care to note that "[t]he constitutional command to desegregate
schools does not mean that every school in every community must
always reflect the racial composition of the school system as a
whole." Swann, 402 U.S. at 24. But central to the issue now before
us, the Court held that had the district court
9
My colleagues in the majority on this issue eloquently argue that
CMS was permitted to take race-conscious measures when complying
with desegregation orders. With this I agree—a school district under
order to desegregate must of course take race into account when assign-
ing students. The primary question regarding the magnet program, how-
ever, is whether CMS ran afoul of the Supreme Court’s prohibitions
against inflexible ratios, not whether race-conscious measures are per-
missible.
52 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
require[d], as a matter of substantive constitutional right,
any particular degree of racial balance or mixing, that
approach would be disapproved and we would be obliged to
reverse.

Id. See also Winston-Salem/Forsyth County Bd. of Educ. v. Scott, 404
U.S. 1221, 1227 (1971) (Burger, C.J., in chambers) (describing as
"disturbing" the school board’s "understanding that it was required to
achieve a fixed ‘racial balance’ that reflected the total composition of
the school district"). The goal was upheld, only upon the condition
that "use made of mathematical ratios was no more than a starting
point in the process of shaping a remedy, rather than an inflexible
requirement." Swann, 402 U.S. at 25.

Just two years after the Supreme Court, in this very case, made
clear that strict ratios were unacceptable, the district court, in a care-
fully worded order permitting CMS to create optional schools,
approved an intentionally flexible enrollment formula of "about or
above 20% black students." Swann, 379 F. Supp. at 1104 (emphasis
added). The district court recognized that the "actual enrollment of the
optional school may have to be guided by its racial composition and
by the number drawn from each other school area, not by consider-
ations of space and program only." Id. at 1108. Additionally, the dis-
trict court’s order directed that "[r]eassignments to optional schools
must not jeopardize the racial composition of any other school." Id.
These modifications, however, at no time set a racial ratio of the type
disapproved of by the district court in its earlier orders and by the
Supreme Court in its 1971 review of the district court’s 1970 order.10
10
I also disagree with the assertion that the Supreme Court’s disap-
proval of inflexible racial quotas as a desegregation tool is solely a limi-
tation on a district court’s remedial power. While the Swann Court did
imply that a school board, exercising its discretion, could "conclude . . .
that in order to prepare students to live in a pluralistic society each
school should have a prescribed ratio of Negro to white students reflect-
ing the proportion for the district as a whole," 402 U.S. at 16, this is cer-
tainly not the state of the law today nor was it the state of the law in 1992
when the magnet plan was adopted. At the very least, the Supreme Court
decisions in Wygant v. Jackson Board of Education, 476 U.S. 267, 283
(1986) (plurality opinion applying strict scrutiny to a school board’s
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 53
CMS asserts that the inflexible racial limits adopted in the 1992
magnet-centered plan were countenanced by the 1974 order discuss-
ing optional schools.11 In making this argument, CMS ignores the dis-
trict court’s choice of words in the 1974 order ("about or above 20%
black students"), see Swann, 379 F. Supp. at 1104, and points to an
attachment to the order designated as Exhibit A. This exhibit, a pro-
posed pupil assignment plan drafted by CMS and a citizens advisory
group, called for optional school enrollment "at or above approxi-
mately a 20% black ratio." Id. at 1108 (emphasis added). From this
language, CMS concludes that strict quotas were permitted. CMS’s
concentration on just a portion of the relevant language ("at or
above") edits out the word "approximately," which does not suggest
rigidity. Even if Exhibit A could be read as requiring rigid quotas,
CMS disregards the fact that the district court approved the guidelines
"subject to the further conditions stated" in the 1974 order. Id. at
1103. With the Supreme Court’s admonition about strict quotas in
mind, the district court chose its language carefully, observing that
optional schools should "have about or above 20% black students."
Id. at 1104. Hence, it is the district court’s understanding and modifi-
cation of the pupil assignment plan that controls, not CMS’s tortured
reading. Under a just construction, it is clear that the 1974 order did
not approve a use of race to the extent that CMS could deny eager

race-based layoff program), and City of Richmond v. J.A. Croson Co.,
488 U.S. 469, 494 (1989) (applying strict scrutiny to a racial set-aside
program), should have alerted CMS that it could not rely on the "pluralis-
tic society" passage from the 1971 opinion when crafting a magnet
admissions policy that was outside the scope of the desegregation orders.
By 1992 such a use of race was not merely discretionary. Prevailing case
law required that the racial classification be narrowly tailored to achieve
a compelling state interest. See J.A. Croson Co., 488 U.S. at 494. And
as demonstrated in section III.B, the admissions policy was in no sense
narrowly tailored.
11
In contending that rigid ratios were not used by CMS, several of my
colleagues observe that not a single magnet school achieved the precise
ratio of sixty percent white students and forty percent black students.
This is not surprising insofar as the policy was designed to leave seats
vacant. The very act of leaving seats vacant will compel a deviation from
the stated goal. However, this in no way undermines a finding of rigidity.
Instead, such a result illustrates the policy’s inflexibility.
54 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
applicants an otherwise available slot in a magnet program solely on
account of the applicant’s race. Both the district court and the
Supreme Court in this very case consistently rejected the use of such
rigid racial quotas.

I also find no authorization for the board’s adoption of the magnet
schools program in the Supreme Court’s 1971 approval in Swann of
a majority-to-minority transfer policy that would prevent, for exam-
ple, an African-American child in a majority white school from trans-
ferring to a majority black school because the transfer would increase
the degree of segregation in the affected schools. See Swann, 402 U.S.
at 26. Because the majority-to-minority transfer policy, like the mag-
net admissions policy, prevents a child from enrolling in the public
school of his choice, CMS argues that the magnet admissions policy
is permissible. By definition, however, CMS’s specialized magnet
programs are not tantamount to conventional public schools. While a
child denied a transfer from one conventional school to another still
receives the same general education, a child denied admission to a
specialized magnet program does not receive a similar benefit in a
conventional school. In other words, an education in a magnet school
offering, for example, foreign language immersion, is not inter-
changeable with an education in a conventional public school.12
Hence, the effect of the magnet admissions policy is far different from
the majority-to-minority transfer policy.

Unfortunately, the end result of the challenged magnet schools
admissions policy is placement of racial quotas ahead of educating
students—an inappropriate result nowhere countenanced in the dis-
trict court’s orders or in the Supreme Court’s desegregation decisions.
Cf. Wright v. Council of the City of Emporia, 407 U.S. 451, 463
(1972) (holding that courts should not approve a desegregation plan
12
I recognize that parents might perceive that one "fungible" conven-
tional school is superior to another because of a number of intangibles
such as the reputation of teachers or the newness of facilities. However,
these "personal preferences" do not rise to a level of constitutional signif-
icance. See Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d
358, 380 n.43 (W.D. Ky. 2000). Magnet schools, on the other hand, are
a completely different animal and therefore the admissions process used
must be more closely scrutinized.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 55
if the plan offers "‘quality education’ to some children, [but] has a
substantial adverse effect upon the quality of education available to
others"). In fact, Brown I struck down segregated schooling because
children were denied equal educational opportunities. See Brown I,
347 U.S. at 493. While school boards were permitted to use race in
assigning students in order to convert to a unitary system, see North
Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 46 (1971) (hold-
ing that the use of race in pupil assignments is "one tool absolutely
essential to fulfillment of [a school board’s] constitutional obligation
to eliminate existing dual school systems"), neither the Brown opin-
ions nor the district court orders implementing them ever contem-
plated that remedial use of race, like the old dual system, would deny
some students educational opportunities solely because of their race.
See Brown I, 347 U.S. at 493 (holding that an educational opportunity
provided by the state "must be made available to all on equal terms");
see also Bakke, 438 U.S. at 305 (Powell, J.) ("When a classification
denies an individual opportunities or benefits enjoyed by others solely
because of his race or ethnic background, it must be regarded as sus-
pect.").13 Indeed, in bringing suit in 1965, the Swann plaintiffs, in
accord with the Brown opinions, simply asked that CMS convert "into
a unitary nonracial system wherein the educational opportunities
offered by [CMS] are made available to students without regard to
race or color." J.A. XXXIII-16,162 (original complaint filed by the
Swann plaintiffs).

An admissions policy that uses rigid racial quotas to deny an avail-
able, unclaimed slot in a specialized magnet school to a child,
whether black or white, on account of the child’s race cannot be
squared with the district court’s orders or the Supreme Court’s deseg-
regation decisions. Since 1971 it has been perfectly clear that mathe-
matical ratios may be used as "a starting point in the process of
shaping a remedy," but not as "an inflexible requirement." See Swann,
13
Though the present case was brought on behalf of a white child
denied admission to a magnet school, the policy as written could have
just as easily denied a black child admission to the magnet school. See
Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d 358, 377
(W.D. Ky. 2000) (racial quota in a magnet school resulting in black stu-
dents being denied admission even though the school was several hun-
dred students below capacity).
56 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
402 U.S. at 25. The district court took heed of this admonition in 1974
when it permitted the creation of optional schools with "about or
above 20% black students." Swann, 379 F. Supp. at 1104 (emphasis
added). However, CMS in 1992 ran afoul of the rule announced by
the Supreme Court when it crafted strict racial ratios designed to
leave open magnet school seats empty, rather than permitting wait-
listed students to compete for the slots. Because nothing short of intel-
lectual gymnastics can transform the clear meaning of the Supreme
Court’s Swann opinion or the district court’s 1974 order into vehicles
countenancing the rigid use of racial ratios, I agree with the district
court that the policy is ultra vires and that CMS officials are not enti-
tled to immunity.

B. Equal Protection

Having determined that the CMS officials are not entitled to immu-
nity for the implementation of the strict race-based magnet school
assignment policy, I now turn to the question of whether the officials’
act of implementing the policy without prior court approval, albeit
while under an order to desegregate schools, runs afoul of the Equal
Protection clause. I would hold that it does.

Under the Fourteenth Amendment, "[n]o State shall . . . deny to any
person within its jurisdiction the equal protection of the laws." U.S.
Const. amend XIV, § 1. By guaranteeing equal protection, the
Amendment recognizes that "[d]istinctions between citizens solely
because of their ancestry are by their very nature odious to a free peo-
ple whose institutions are founded upon the doctrine of equality."
Hirabayashi v. United States, 320 U.S. 81, 100 (1943). The Supreme
Court has refused to make exceptions for so-called "benign" racial
classifications, see Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
227 (1995), and the Court has made clear that "all racial classifica-
tions, imposed by whatever federal, state, or local governmental actor,
must be analyzed by a reviewing court under strict scrutiny," id.14
14
The Supreme Court’s application of strict scrutiny has indeed been
unwavering. In Adarand, the Court refused to apply a lesser standard of
scrutiny to racial classifications enacted by Congress. Though Congress
itself is charged with enforcing the Fourteenth Amendment’s promise of
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 57
To survive strict scrutiny, CMS’s use of race in the magnet admis-
sions program "must (1) serve a compelling governmental interest and
(2) be narrowly tailored to achieve that interest." Tuttle v. Arlington
County Sch. Bd., 195 F.3d 698, 704 (4th Cir. 1999), cert. dismissed,
120 S. Ct. 1552 (2000). CMS avers that the magnet admissions policy
was adopted to remedy the effects of the dual school system previ-
ously operated in Mecklenburg County. Without question, remedying

equal protection via "appropriate legislation," U.S. Const. amend. XIV,
§ 5, the Supreme Court in interpreting the Fifth Amendment held Con-
gress to the same rigorous standards applicable to states and localities.
See Adarand, 515 U.S. at 224 (observing "that any person, of whatever
race, has the right to demand that any governmental actor subject to the
Constitution justify any racial classification subjecting that person to
unequal treatment under the strictest judicial scrutiny").
CMS and the Swann plaintiffs contend that strict scrutiny does not
apply when a school district is under court order to dismantle the dual
system. Such an approach, however, ignores two of the three pillars of
Supreme Court’s equal protection analysis: skepticism of all racial pref-
erences and consistent application of heightened scrutiny regardless of
the race of the person burdened or benefitted. See Adarand, 515 U.S. at
223-24. Contrary to the assertions of CMS and the Swann plaintiffs, the
approach I would adopt does not deprive a school board under court
order of the necessary tools required to establish a unitary school system.
The point of carefully examining the interest asserted by the gov-
ernment in support of a racial classification, and the evidence
offered to show that the classification is needed, is precisely to
distinguish legitimate from illegitimate uses of race in govern-
mental decisionmaking. . . . Strict scrutiny does not "trea[t] dis-
similar race-based decisions as though they were equally
objectionable"; to the contrary, it evaluates carefully all govern-
mental race-based decisions in order to decide which are consti-
tutionally objectionable and which are not.
Id. at 228 (internal citations omitted) (alteration in original). This careful
evaluation demanded by the Supreme Court will preserve inviolate
proper desegregation remedies while ensuring that in the process of
desegregating a government actor does not stand equal protection on its
head by denying some students educational opportunities solely because
of their race.
58 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
the effects of past discrimination is a compelling state interest. See
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).

In reviewing whether a policy is narrowly tailored to serve a com-
pelling state interest, a court considers factors such as:

(1) the necessity of the policy and the efficacy of alterna-
tive race neutral policies;

(2) the planned duration of the policy;

(3) the relationship between the numerical goal and the
percentage of minority group members in the relevant popu-
lation;

(4) the flexibility of the policy, including the provision of
waivers if the goal cannot be met; and

(5) the burden of the policy on innocent third parties.

See United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality
opinion). Like the district court, I would hold that the CMS magnet
admissions policy is not narrowly tailored to the compelling interest
of remedying past discrimination.

First, the magnet admissions policy was not necessary to comply
with the court’s order to dismantle the dual educational system. CMS
had a number of options available to it that would not have deprived
children, solely on account of their race, an available seat in a special-
ized magnet program. Instead, CMS opted for rigid racial limits that
were clearly prohibited by the district court’s orders and the Supreme
Court’s desegregation decisions. Nor is there evidence in the record
that added flexibility or a waiver provision would have undermined
the use of magnet schools as a desegregation technique. The evidence
simply does not reveal that the magnet admissions policy used was
the only efficacious option available to CMS.

Second, this circuit has emphasized that "[t]he use of racial prefer-
ences must be limited so that they do not outlast their need; they may
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 59
not take on a life of their own." Hayes v. North State Law Enforce-
ment Ass’n, 10 F.3d 207, 216 (4th Cir. 1993) (internal quotation
marks omitted). Like the district court, I can find "no mention of the
duration that CMS would use racially segregated lotteries, vacancies,
and waiting lists." Capacchione, 57 F. Supp. 2d at 290. In light of
CMS’s desire to remain under court order for the indefinite future, see
supra Part II.H, the lack of a duration for the magnet admissions pol-
icy is not surprising. CMS was apparently content, in a number of
instances, to leave available magnet seats empty despite the waiting
lists.

Third, I agree with the district court that "the 60-40 numerical goal
is related to the relevant population, i.e., the racial composition of
schoolchildren in CMS." Capacchione, 57 F. Supp. 2d at 289. How-
ever, there is no evidence that CMS considered the "practicability of
achieving this precise ratio in every magnet school," id. at 290, or the
very real danger that magnet schools would be underutilized because
seats would be left open despite an abundance of applicants. The
result of the admissions policy is but another indication that the CMS
administration, in the words of former Superintendent Murphy, "was
more focused on balance than on [educational] outcomes." J.A. VI-
2687.

Fourth, the district court aptly described the inflexibility in the
magnet admissions policy: "The Court is hard-pressed to find a more
restrictive means of using race than a process that results in holding
seats vacant while long waiting lists full of eager applicants are virtu-
ally ignored." Capacchione, 57 F. Supp. 2d at 289. The policy is
indeed "restrictive," but it also borders on obduracy. The policy con-
tained no written waiver provision which, once again, shows a lack
of concern that these highly specialized schools could and would be
underutilized.

Finally, the innocent parties affected are children denied magnet
slots solely because of their race and parents who "must wait for
months without knowing where their children eventually will be
placed." Id. at 290. A child’s education is one of the greatest concerns
of the family, and CMS unnecessarily causes much agonizing when
it places children of the "wrong color" on waiting lists while it
60 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
actively recruits children of the "right color" to fill empty magnet
school seats.

In sum, the magnet admissions policy is not narrowly tailored. The
policy is not necessary to dismantle the de jure system, is for an
unlimited duration, provides for virtually no flexibility, and burdens
innocent children and their families. The policy quixotically purports
to establish equal protection of the laws in the realm of public educa-
tion by denying children an equal opportunity to compete for open,
unclaimed slots in CMS’s extraordinary magnet schools. The with-
holding of seats from white students after all African-American chil-
dren wishing seats have been given them is most certainly not a
narrowly tailored program. Such a result calls to mind why strict scru-
tiny is used in the first place: "Of all the criteria by which men and
women can be judged, the most pernicious is that of race." Maryland
Troopers Ass’n v. Evans, 993 F.2d 1072, 1076 (4th Cir. 1993). Teach-
ing young children that admission to a specialized academic program
with available seats is contingent on their race is indeed pernicious,
and CMS’s magnet admissions policy can in no way be described as
narrowly tailored to achieve the compelling interest of remedying past
discrimination.15

C. Award of Nominal Damages

After finding a constitutional violation in the magnet schools, the
district court held CMS "nominally liable in the amount of one dol-
lar." Capacchione, 57 F. Supp. 2d at 290. CMS argues that the nomi-
nal damages awarded were unjustified because the actions resulting
in a constitutional violation were taken in good faith. CMS fears that
15
CMS also presented diversity as an alternative compelling state inter-
est. See Capacchione, 57 F. Supp. 2d at 289. In this circuit, it is unsettled
whether diversity may be a compelling state interest. See Eisenberg v.
Montgomery County Pub. Schs., 197 F.3d 123, 130 (4th Cir. 1999), cert.
denied, 120 S. Ct. 1420 (2000). Assuming without deciding whether
diversity may be a compelling state interest, I would hold that the magnet
admissions policy again fails because it is not narrowly tailored. Whether
the interest is remedying past discrimination or diversity, the admissions
policy as currently written is in no sense narrow. It is difficult to imagine
any interest for which the magnet admissions policy is narrowly tailored.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 61
the damages award will "open the door to numerous suits by other
students who could claim that they did suffer actual damages and
argue that collateral estoppel prevents CMS from denying liability."
Defendants-Appellants’ Brief at 24. Regarding nominal damages, the
Supreme Court has observed:

Common-law courts traditionally have vindicated depriva-
tions of certain "absolute" rights that are not shown to have
caused actual injury through the award of a nominal sum of
money. By making the deprivation of such rights actionable
for nominal damages without proof of actual injury, the law
recognizes the importance to organized society that those
rights be scrupulously observed; but at the same time, it
remains true to the principle that substantial damages should
be awarded only to compensate actual injury or, in the case
of exemplary or punitive damages, to deter or punish mali-
cious deprivations of rights.

Carey v. Piphus, 435 U.S. 247, 266 (1978) (nominal damages avail-
able for denial of procedural due process rights) (footnote omitted);
see also Price v. City of Charlotte, 93 F.3d 1241, 1246 (4th Cir. 1996)
(stating that "the rationale for the award of nominal damages being
that federal courts should provide some marginal vindication for a
constitutional violation").

In the present case there was indeed a constitutional violation.
CMS ran afoul of the Equal Protection Clause when it adopted a strict
racial quota designed to deny an available, unclaimed slot in a spe-
cialized magnet school to a child on account of the child’s race. In
order to recover nominal damages, Cristina Capacchione need not
prove that absent the unconstitutional policy she would have been
admitted to the magnet program. The injury in the present case is not
the ultimate inability to enroll in the magnet school, but the inability
to compete for seats on an equal basis. See Northeastern Florida
Chapter of the Associated Gen. Contractors v. City of Jacksonville,
508 U.S. 656, 666 (1993). Though the two open "black seats" at the
Olde Providence magnet school were eventually awarded to white
children, the fact remains that the official magnet admissions policy
prohibited children like Cristina from competing for the open slots.
In fact, CMS left the two available "black seats" at Olde Providence
62 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
unfilled for most of the summer while Cristina and over one hundred
other white children languished on a waiting list. In Orwellian fash-
ion, CMS marketed Olde Providence as "a school to benefit every-
one," but in reality permitted only a select few to compete for the
benefits bestowed.

The nominal award in this case recognizes the importance of equal
protection under the law and provides some measure of vindication.
As for CMS’s worry about collateral estoppel, liability has already
been established, and vacating the nominal damages would not
change this. Consequently, I would affirm the district court’s award
of nominal damages.

IV. Injunctive Relief

After recounting the unitary status determination and the constitu-
tional violation in the magnet admissions policy, the district court
enjoined "CMS from any further use of race-based lotteries, prefer-
ences, and set-asides in student assignment." Capacchione, 57 F.
Supp. 2d at 292. CMS challenges the district court’s injunction as
unwarranted and overbroad. We review the grant of a permanent
injunction for an abuse of discretion. See Tuttle, 195 F.3d at 703.

Before a court grants a permanent injunction, the court must first
find necessity—a danger of future violations. See Connecticut v. Mas-
sachusetts, 282 U.S. 660, 674 (1931) (stating that an injunction "will
not be granted against something merely feared as liable to occur at
some indefinite time in the future"); United States v. Oregon State
Med. Soc’y, 343 U.S. 326, 333 (1952) ("All it takes to make the cause
of action for relief by injunction is a real threat of future violation or
a contemporary violation of a nature likely to continue or to recur.");
Bloodgood v. Garraghty, 783 F.2d 470, 475 (4th Cir. 1986) ("An
injunction is a drastic remedy and will not issue unless there is an
imminent threat of illegal action."). Though a flexible tool, an injunc-
tion may not be used for "punishment or reparations for . . . past vio-
lations." Oregon State Med. Soc., 343 U.S. at 333.

The district court’s finding of a threat of future violations centered
on CMS’s offering of diversity as a compelling state interest. This
interest was offered after the district court decided that the admissions
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 63
policy should be reviewed using strict scrutiny. Because in this circuit
it is unsettled whether diversity may be a compelling state interest,
see Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123, 130
(4th Cir. 1999), cert. denied, 120 S. Ct. 1420 (2000), it was improper
for the district court to base its injunction on CMS’s unsuccessful
defense of the policy. At this point, we can discern nothing in the
record indicating that CMS will ignore the district court order and
continue to use race in an unconstitutional manner in the operation of
the magnet schools or other schools in the system. CMS represented
to the district court both during and after trial that it had no intention
of continuing the magnet plan. In moving for a stay of the injunction,
CMS did not ask that the injunction be stayed as to the magnet
schools, and was prepared to comply immediately with the court’s
order. CMS requested a stay as to the non-magnet schools because
over 50,000 students were likely to be reassigned in a short period of
time. Moreover, there was no evidence presented at trial about what
CMS proposed to do as a unitary school system. A post-unitary status
student assignment plan was never given to the district court, and the
evidence simply does not indicate that "there is an imminent threat of
illegal action." Bloodgood, 783 F.2d at 475.

A finding of unitariness brings a fresh start for the school board—
an opportunity to operate a school system in compliance with the
Constitution. The prospective relief awarded by the district court is in
tension with the resumption of local control, which is one of the ulti-
mate goals of any desegregation order. See Freeman, 503 U.S. at 490.
Freeing the school district from one court order only to shackle it with
another was here an abuse of the district court’s discretion, and we
therefore vacate the grant of injunctive relief.

V. Discovery Sanctions

The district court sanctioned CMS for failing to supplement its
answers to interrogatories that sought a list of witnesses. We review
the district court’s management of discovery under the abuse of dis-
cretion standard. See Anderson v. Foundation for Advancement, Educ.
& Employment of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998).
The record reveals that no list of fact witnesses was presented to the
plaintiff-intervenors until five days before the trial date. At that time,
CMS presented a list of 174 witness, which was later cut to twenty-
64 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
six. The plaintiff-intervenors moved for sanctions and the district
court granted the motion in part. The district court continued the trial
for one week so that the plaintiff-intervenors could depose the newly
disclosed witnesses, and the court held CMS accountable for the fees
and expenses of these depositions.

We have developed a four-part test for a district court to use when
determining what sanctions to impose under Federal Rule of Civil
Procedure 37. Specifically, "[t]he court must determine (1) whether
the non-complying party acted in bad faith, (2) the amount of preju-
dice that noncompliance caused the adversary, (3) the need for deter-
rence of the particular sort of non-compliance, and (4) whether less
drastic sanctions would have been effective." Id. An examination of
the four factors reveals no abuse of discretion by the district court.

First, there is ample evidence of bad faith. Early in the case, the
plaintiff-intervenors presented CMS with an interrogatory asking for
disclosure of trial witnesses. In response to the interrogatory, CMS
stated that it would provide appropriate information concerning wit-
nesses at the time and in the manner specified by the district court.
The plaintiff-intervenors moved to compel discovery, and the court
agreed with CMS that the request was premature. However, the court
instructed CMS to "supplement its responses [to the interrogatories],
as it promised, when such information becomes known." J.A. I-195.
As an excuse for its untimely disclosure of fact witnesses, CMS relies
on the district court’s pre-trial order, which provides that "[a] witness
list containing the name of every proposed witness" should be filed
with the court on the first day of trial. J.A. I-150. This provision of
the pre-trial order was clearly for the court’s convenience and could
not reasonably be interpreted to apply to disclosures to the other par-
ties. Besides, even if such an interpretation were reasonable, the dis-
trict court’s command to supplement interrogatories superceded the
pre-trial order. Accordingly, bad faith is evident.

Second, the presentation of such a lengthy witness list on the eve
of trial to the plaintiff-intervenors was prejudicial. Without the action
of the court, the plaintiff-intervenors would have had no opportunity
to depose the witnesses, much less properly prepare for trial. Thus,
CMS’s failure to supplement interrogatories was prejudicial.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 65
Third, such non-compliance with the district court’s orders cer-
tainly needed to be deterred. The district court’s condonation of
CMS’s bad faith at a time so close to the beginning of trial could have
encouraged repetition of improper conduct. As found by the district
court, the record indicates that the failure to supplement interrogato-
ries was not the first time CMS "was lacking in candor in disclosing
relevant and important information." J.A. I-305. Hence, deterrence
was essential to a proper management of this case.

Finally, less drastic sanctions would not have been effective. Per-
mitting the plaintiff-intervenors to depose witnesses and requiring
CMS to pay fees and expenses for the depositions was appropriate.
CMS was fortunate to receive such a light sanction, and it is doubtful
whether lesser measures would have had any effect on CMS’s con-
duct.

In sum, the discovery sanctions imposed did not amount to an
abuse of the district court’s discretion.

VI. Attorney Fees

CMS argues that the district court erred in awarding attorney fees
to the plaintiff-intervenors. While conceding that Grant is entitled to
fees if the district court’s unitary status finding is upheld, CMS argues
that Capacchione cannot be a prevailing party on this issue. CMS also
challenges Capacchione’s receipt of fees based on the district court’s
magnet schools ruling because (1) Capacchione received only nomi-
nal damages, and (2) young Capacchione would not have been admit-
ted to the magnet program even if race was not a factor insofar as her
lottery number was so high. The district court’s decision to award
attorney fees is reviewed for an abuse of discretion. See Hitachi
Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 631 (4th Cir. 1999).
I would affirm.

A. Attorney Fees for Unitary Status

1.

In my view, the plaintiff-intervenors are entitled under § 1988 to
attorney fees for their successful litigation of the unitary status issue.
66 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Indeed, CMS has conceded that if we upheld the declaration of uni-
tary status, Grant would be entitled to attorney fees.

Unlike Capacchione, the Grant intervenors were granted
declaratory and injunctive relief related to the issues of uni-
tary status and CMS’ magnet school admission policies.
Therefore, the entitlement of the Grant intervenors to
recover attorneys’ fees is tied directly to the merits of those
claims.

CMS’s Brief at 39-40. Surprisingly, despite CMS’s concession, a
majority of this court vacates the award of fees to both Capacchione
and Grant.

By obtaining a declaration of unitary status, the Grant plaintiffs,
along with Capacchione, finished what the original Swann plaintiffs
started. If we deny the plaintiff-intervenors the ability to be compen-
sated in a situation such as this—where an incredible amount of legal
work is required and the board, for improper reasons, clings to the
court’s order—then we give to litigants like the Swann plaintiffs
effective control over the decision of "when" or even "if" a unitary
status hearing will be sought because they would be the only ones
who could ever obtain reimbursement for their legal fees. The practi-
cal consequences are scarcely more apparent than in this case, where
the only party ruled entitled to obtain attorney fees for finishing the
job was opposed to seeing unitary status declared. This, coupled with
the fact that the plaintiff-intervenors received a court order in their
favor on the unitary status question as a continuation of the original
§ 1983 action, leaves me at a loss to see how the district court’s award
of attorney fees to them under § 1988 can be reversed.

Under 42 U.S.C.A. § 1988(b) (West Supp. 2000), "[i]n any action
or proceeding to enforce a provision of [§ 1983 and other civil rights
laws] . . . the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as part of the
costs." To be considered a prevailing party, a party must "succeed on
any significant issue in litigation which achieves some of the benefit
the parties sought in bringing suit." Farrar v. Hobby, 506 U.S. 103,
109 (1992) (internal quotation marks omitted).
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 67
This case began in 1965 as a § 1983 action with the Swann plain-
tiffs seeking conversion of CMS "into a unitary nonracial system
wherein the educational opportunities offered by [the board] are made
available to students without regard to race or color." J.A. XXXIII-
16,162 (original Swann complaint commencing an action under
§ 1983); see also Monell v. Department of Social Servs., 436 U.S.
658, 697 (1978) (observing that school desegregation actions "have
almost without exception been § 1983 suits"). In essentially a continu-
ation of what was begun in 1965, Capacchione, believing that CMS
had established a unitary school system, brought suit pursuant to
§ 1983 and prayed that the district court enter a declaration of unitary
status. See J.A. I-110 (Capacchione amended complaint seeking a
declaration of unitary status); see also JA. I-140 (Grant complaint
seeking a declaration of unitary status); cf. Waste Mgmt. Holdings,
Inc. v. Gilmore, No. 00-1185, 2001 WL 604325 (4th Cir. June 4,
2001) (§ 1983 action seeking declaratory relief). Shortly after Capac-
chione filed suit, the Swann plaintiffs moved to reactivate Swann and
to consolidate it with Capacchione’s action. The district court granted
the Swann plaintiffs’ motion and later permitted Capacchione to inter-
vene in Swann. Grant, who also sought a declaration of unitary status,
then moved to intervene in the consolidated action, and the district
court granted his motion. After months of litigation, the plaintiff-
intervenors succeeded in having CMS declared unitary, and this court
has affirmed on appeal.

With the prior court orders now dissolved, CMS must cease using
the orders to assign Grant’s children as well as all other public school
students on account of their race.16 A unitary school system is what
16
CMS argues that because Capacchione no longer resides in North
Carolina the unitary status declaration does not alter CMS’s behavior
toward young Capacchione and consequently Capacchione is not a pre-
vailing party entitled to fees. In other words, CMS contends that Capac-
chione’s lack of standing counsels against an award of fees. I disagree.
At the very least, because of Capacchione’s status as a plaintiff-
intervenor in Swann, Capacchione is still entitled to fees. See Shaw v.
Hunt, 154 F.3d 161, 167 (4th Cir. 1998) (noting that when plaintiffs with
standing "secure[ ] precisely the relief that they sought," plaintiff-
intervenors who lack standing but contributed to the litigation may also
be awarded attorney fees). Grant, who CMS concedes has standing and
is entitled to fees, achieved the relief originally sought—a declaration of
unitary status. Capacchione greatly contributed to this result, and under
Shaw is entitled to fees just as Grant.
68 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
the original plaintiffs sought in 1965, and the plaintiff-intervenors
have greatly assisted in the final stages of this litigation in making
unitariness a reality. Henceforth, unless CMS’s use of racial classifi-
cations satisfies the requirements of strict scrutiny, the color of a
child’s skin will no longer be a permissible basis for assigning, or
refusing to assign, a child to a conventional public school or a special-
ized magnet program. See Farrar, 506 U.S. at 110 (observing that
declaratory relief may constitute relief under § 1988 "if[ ] it affects
the behavior of the defendant toward the plaintiff") (internal quotation
marks omitted). Moreover, this declaration of unitary status is
enforceable against CMS in the unlikely event it later attempts to con-
tinue prior assignment polices, say, on the ground that vestiges of
prior discrimination have not been eradicated. See id. at 111 (explain-
ing that to be a prevailing party an enforceable judgment must be
obtained).

In the present case, with its counter-intuitive alignment of parties,
the plaintiff-intervenors have stepped into the shoes of the Swann
plaintiffs, continued the original § 1983 action, and brought this case
to a close. Just as the Swann plaintiffs, prior to removal of the case
from the active docket, were compensated for their services, see
Swann v. Charlotte-Mecklenburg Bd. of Educ., 66 F.R.D. 483
(W.D.N.C. 1975) (awarding the Swann plaintiffs $204,072.33 in fees
and costs), so too should the plaintiff-intervenors be compensated for
a continuation of the legal efforts to achieve a unitary school system
and to remove federal court control. In this regard the plaintiff-
intervenors have acted as "private attorney[s] general," Independent
Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 758-60 (1989)
(internal quotation marks omitted) (alteration in original), and
obtained a finding of unitariness, which was the ultimate objective of
the original action. See J.A. XXXIII-16,162 (original complaint seek-
ing "reorganization of the school system into a unitary nonracial sys-
tem"). Indeed, no one disputes that the Swann plaintiffs would have
been entitled to fees if they had taken the initiative to petition for a
declaration of unitary status instead of acting to oppose the result we
reach today.

Without question, the monitoring of a school desegregation decree
is crucial to the dismantling of the dual system. See Jenkins v. Mis-
souri, 967 F.2d 1248, 1251 (8th Cir. 1992) (awarding fees in desegre-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 69
gation case pursuant to § 1988). Accordingly, efforts "to insure full
compliance and to ensure that the plan is indeed working to desegre-
gate the school system[ ] are compensable services." Northcross v.
Board of Educ., 611 F.2d 624, 637 (6th Cir. 1979). Here, the plaintiff-
intervenors observed CMS’s progress in dismantling the dual system,
and once convinced that full compliance had been achieved, they
moved for a declaration of unitary status. In so doing, the plaintiff-
intervenors were faced with a recalcitrant school board that insisted
none of the Green factors had been satisfied. The Swann plaintiffs,
though having never returned to court to complain about the continua-
tion or revival of segregative practices, suddenly claimed that the dual
system was not being dismantled and joined the school board in the
quest for continuation of court supervision. Though most of the vital
information was in the hands of CMS’s officials, who were often
uncooperative in the discovery process, see Capacchione, 57 F. Supp.
2d. at 292-293 (cataloging sanctions and threats of sanctions against
CMS), the plaintiff-intervenors persevered and ultimately obtained a
declaration of unitary status. But for the actions of the plaintiff-
intervenors, CMS, though having dismantled the dual system, would
still be using the district court’s orders as mechanisms for attaining
other goals. Despite the progress of the last three decades, CMS was
apparently content to forestall a finding of unitariness for the foresee-
able future. See Freeman, 503 U.S. at 490 (observing that restoration
of local control "at the earliest practicable date" is a goal of any
desegregation order). Consequently, I believe that the plaintiff-
intervenors, for stepping in and finishing what was begun in 1965, are
entitled to attorney fees under § 1988 for their litigation of the unitary
status issue.

2.

I would also affirm the plaintiff-intervenors’ award of attorney
fees, based on the unitary status declaration, under this circuit’s
exceptional circumstances doctrine. See Rolax v. Atlantic Coast Line
R. Co., 186 F.2d 473, 481 (4th Cir. 1950) (holding that absent a stat-
ute attorney fees are normally unavailable unless "the taxation of such
costs is essential to the doing of justice . . . in exceptional cases"). To
avoid a declaration of unitary status, CMS has clung to the desegrega-
tion decree for improper reasons, see supra part II.H, and the equita-
ble remedy ordered in 1969 "would be far from complete, and justice
70 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
would not be attained, if reasonable counsel fees were not awarded"
to the plaintiff-intervenors. Bell v. School Bd. of Powhatan County,
321 F.2d 494, 500 (4th Cir. 1963) (en banc) (awarding attorney fees
in school desegregation case based on exceptional circumstances
when the school board engaged in a "pattern of evasion and obstruc-
tion" which "cast[ ] a heavy burden on the children and their par-
ents"). A contrary result would hamper the involvement of concerned
citizens in school desegregation litigation and permit school boards
that are inclined to remain under court order to eschew a unitary sta-
tus hearing.

I recognize that the Supreme Court recently rejected the catalyst
theory as a basis for awarding attorney fees. See Buckhannon Bd. &
Care Home v. West Virginia Dep’t of Health & Human Res., 121
S. Ct. 1835 (2001). However, the award of fees in the present case has
never been based on the catalyst theory, "which posits that a plaintiff
is a prevailing party if it achieves the desired result because the law-
suit brought about a voluntary change in the defendant’s conduct." Id.
at 1838 (internal quotation marks omitted). In this case, there was no
voluntary change in CMS’s conduct. CMS clung to the desegregation
orders and put up a vigorous defense in the course of a two-month
trial. A final judgment was handed down, and any change in CMS’s
behavior will be due to the district court’s decree, not a voluntary act.
While a "voluntary change in conduct . . . lacks the necessary judicial
imprimatur on the change" for a plaintiff to be considered a prevailing
party, a declaration of unitary status is far different. Id. at 1840. Once
found to be in violation of the Constitution, a school district cannot
be declared unitary without the order of a court. Because the district
court’s order, and not a voluntary act, is the impetus behind any
change, the rejection of the catalyst theory in Buckhannon does not
undermine an award of attorney fees based on the exceptional circum-
stances doctrine of Rolax.

B. Attorney Fees for the Magnet Schools Litigation

I would also find that Capacchione is entitled to fees because he
is a prevailing party on the magnet schools issue. The district court
held that the magnet schools admissions policy violated the Equal
Protection Clause of the Fourteenth Amendment and awarded nomi-
nal damages in light of the constitutional violation. In Farrar, the
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 71
Supreme Court specifically addressed the issue of nominal damages
and prevailing party status:

We therefore hold that a plaintiff who wins nominal dam-
ages is a prevailing party under § 1988. . . . A plaintiff may
demand payment for nominal damages no less than he may
demand payment for millions of dollars in compensatory
damages. A judgment for damages in any amount, whether
compensatory or nominal, modifies the defendant’s behav-
ior for the plaintiff’s benefit by forcing the defendant to pay
an amount of money he otherwise would not pay.

506 U.S. at 112-13 (internal citations omitted). The award of nominal
damages constitutes relief on the merits and affects CMS’s behavior
toward Capacchione if only by forcing CMS to pay. Hence, Capacch-
ione is a prevailing party. See also Shaw v. Hunt, 154 F.3d 161, 164
(4th Cir. 1998) (noting that "persons within the generic category of
plaintiff-intervenors have often been found by courts to fit within the
rubric ‘prevailing party’ for fees purposes"). That young Capacchione
had a high lottery number is irrelevant for a determination of prevail-
ing party status. As previously stated, the injury in this case was the
inability to compete for open magnet seats, not the denial of admis-
sion to a magnet program. Because I would find that Capacchione
rightly prevailed on the magnet schools issue, I would affirm the dis-
trict court’s award of attorney fees for work in this area as well.

VII.

For the foregoing reasons, a majority of this court affirms the dis-
trict court’s declaration of unitary status and the imposition of discov-
ery sanctions. We vacate the district court’s injunction because we
can discern no danger of future violations. Additionally, I would
affirm the finding of a constitutional violation in the magnet schools
admissions policy, the award of nominal damages, and the attorney
fees awarded pursuant to 42 U.S.C.A. § 1988.

WILKINSON, Chief Judge, concurring in part:

I concur in Parts I, II, IV, and V of Judge Traxler’s thorough opin-
ion. With respect to Parts III and VI, I respectfully take a different
view.
72 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
I.

There can be no doubt that if the 1992 Charlotte-Mecklenburg
magnet school program were adopted today, it would be unconstitu-
tional and in violation of our holdings in Tuttle v. Arlington County
Sch. Bd., 195 F.3d 698 (4th Cir. 1999), and Eisenberg v. Montgomery
County Pub. Schs., 197 F.3d 123 (4th Cir. 1999). Those holdings
properly emphasize the ecumenical premise of the Fourteenth
Amendment that every American citizen regardless of race or ethnic-
ity is deserving of equal dignity under the law.

The more difficult question is whether the adoption of the magnet
school program in 1992, at a time when the school board was under
a court desegregation order, stripped the Board of its immunity. I
would hold that it did not. Inasmuch as the Board did not forfeit its
immunity, I would vacate the award of damages against it and the
fees and costs assessed thereon.1

Both the Supreme Court’s Swann opinion and various lower court
opinions relied for many years upon numerical benchmarks as an
indicia of progress in achieving school desegregation. That emphasis,
however, was primarily the work of the courts, not the school board.
And judicial decisions further made clear that the Charlotte-
Mecklenburg school board could take the numerical approach of the
courts even further in the course of devising desegregative remedies
of its own.

For instance, in Swann, the Supreme Court itself held that: "School
authorities are traditionally charged with broad power to formulate
1
Although the Grant plaintiffs have prevailed with regard to the unitary
status determination, their basis for prevailing was not an action under
42 U.S.C. § 1983. Accordingly, there exists no statutory basis here for
deviating from the American Rule. Under this rule, fees are not generally
awarded to prevailing parties "absent explicit statutory authority." Buck-
hannon Board & Care Home, Inc. v. West Virginia Dept. of Health and
Human Resources, 532 U.S. ___, No. 99-1848, slip op. at 3-4 (May 29,
2001) (internal quotation omitted). And the Supreme Court has empha-
sized that the judiciary enjoys no "roving authority" to award counsel
fees "whenever the courts might deem them warranted." Id. at 12.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 73
and implement educational policy and might well conclude . . . that
in order to prepare students to live in a pluralistic society each school
should have a prescribed ratio of Negro to white students reflecting
the proportion for the district as a whole. To do this as an educational
policy is within the broad discretionary powers of school authorities."
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971)
(emphasis added).

Likewise, in Swann v. Charlotte-Mecklenburg Bd. of Educ., 501
F.2d 383 (4th Cir. 1974) (en banc) (per curiam), parents of white stu-
dents brought suit against the school board because it allegedly had
established a set-aside for African-American students to take part in
its gifted students program. Id. at 383. This court affirmed an injunc-
tion prohibiting the plaintiffs from proceeding in state court. We held
that the plaintiffs’ suit could affect the school board’s efforts to com-
ply with prior federal court desegregation orders, including one which
required the Board to assign students in such a manner that the
schools would have about the same proportion of African-American
and white students. Id. at 384.

And the district court’s desegregation orders in this case can fairly
be read to encourage, rather than foreclose, the conduct in which the
school board here engaged. For instance, in 1970, Judge McMillan
ordered that "the defendants maintain a continuing control over the
race of children in each school, . . . and maintain the racial make-up
of each school . . . . The defendants are encouraged to use their full
‘know-how’ and resources to attain the results above described, and
thus to achieve the constitutional end by any means at their disposal.
The test is not the method or plan, but the results." Swann v.
Charlotte-Mecklenburg Bd. of Educ., 311 F. Supp. 265, 268-69
(W.D.N.C. 1970) (emphasis added). And four years later, in an order
addressing optional schools, which were the precursors of the magnet
schools, Judge McMillan ordered that: "Strict and central control
must be exercised over all admissions (reassignments) to each
optional school in order to fulfill the necessary ends that these schools
. . . be integrated by grade at or above approximately a 20% black
ratio." Swann v. Charlotte-Mecklenburg Bd. of Educ., 379 F. Supp.
1102, 1108 (W.D.N.C. 1974) (emphasis added).

While this case was removed from the active docket in 1975, Judge
McMillan noted that: "This case contains many orders of continuing
74 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
effect, and could be re-opened upon proper showing that those orders
are not being observed." Swann v. Charlotte-Mecklenburg Bd. of
Educ., 67 F.R.D. 648, 649 (W.D.N.C. 1975); see also Martin v.
Charlotte-Mecklenburg Bd. of Educ., 475 F. Supp. 1318, 1340
(W.D.N.C. 1979) (upholding the school board’s 1978 pupil assign-
ment plan which took into consideration the race of the student).

Magnet schools are a widely used desegregation device. It is true
that in the early 1990’s, the school board in its magnet program
eagerly accepted the courts’ invitation to rely upon numerical bench-
marks. I believe, however, that it is necessary to afford a school board
some latitude in attempting to meet its desegregative obligations if we
are not to undermine the rule of law. To do otherwise leaves the
Board between a rock and a hard place. Namely, if the school board
fails to carry out the court desegregation order, it can be cited for con-
tempt or held not to have achieved unitariness. But if the Board acts
aggressively to implement the court order, it risks facing judicial con-
demnation and the threat of litigation on the grounds that it was acting
ultra vires. This is not the kind of quandary into which we should
force institutions that are, for better or worse, under judicial decree.2
Such an approach risks undermining respect for courts and, indeed,
encouraging just the opposite.

My fine colleague, Judge Luttig, insists that the issue here has
solely to do with racial quotas. I have strongly disapproved of the use
of such quotas. See, e.g., J. A. Croson Co. v. City of Richmond, 822
F.2d 1355 (4th Cir. 1987), aff’d, 488 U.S. 469 (1989); Maryland
Troopers Ass’n, Inc. v. Evans, 993 F.2d 1072 (4th Cir. 1993). Indeed
I believe them to be inimical to a national future founded, as the Four-
teenth Amendment requires, upon individual respect and mutual self-
regard. Yet to see the sole issue here as racial quotas is to miss the
forest for the trees. The cumulative message of innumerable court
orders conveyed to the Charlotte-Mecklenburg board over the course
of many years was to do everything possible to desegregate Charlotte
schools. See, e.g., Swann, 402 U.S. at 15 ("[S]chool authorities are
‘clearly charged with the affirmative duty to take whatever steps
2
The quandary in fact is illustrated by this very case where five mem-
bers of the court feel the Board went too far in its remedial efforts, and
four others believe just as strongly that the Board did not go far enough.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 75
might be necessary to convert to a unitary system in which racial dis-
crimination would be eliminated root and branch.’") (quoting Green
v. County Sch. Bd., 391 U.S. 430, 437-38 (1968)) (emphasis added).
And the school board attempted to do just that. To now condemn the
Board would be to sanction the future disrespect and disregard for
court orders of all sorts. This I am unwilling to do.

If an existing court order is infirm, the better course is to modify
it through customary court processes. Today, we follow this approach
with our determination that the school district has attained unitary sta-
tus. This holding puts the school district on a race-neutral footing
going forward, thereby granting it a truly fresh start. The solution to
the fundamental Fourteenth Amendment problems with the 1992
magnet school plan is not to hold the Board liable for its attempts to
implement the very policies, and attain the very ends, which the
courts had ordered it to do. The answer is to point to a unitary future
in which the principle of non-discrimination will guide its public
actions.

II.

I concur fully in Judge Traxler’s view that the Charlotte-
Mecklenburg school system has achieved unitary status. I recognize
that some citizens of Charlotte, aware of society’s shortcomings on
matters of race, may see in unitariness a mocking phrase. Others may
view today’s embrace of local governance as an act of judicial aban-
donment. The luminosity of Brown v. Board of Education is such that
many have come to look at courts as our sole guiding lights. Yet they
were never meant to be such. If it was important that courts nurture
the task of desegregation in its infancy, it is equally essential that a
school district one day depart the comforting judicial homestead and
strike out on its own. School districts will be stronger for finding their
own way. For in the long run, courts cannot serve as the sole source
of hope in the difficult area of desegregation, nor democracy as the
object of fear. "Returning schools to the control of local authorities
at the earliest practicable date is essential to restore their true account-
ability in our governmental system. When the school district and all
state entities participating with it in operating the schools make deci-
sions in the absence of judicial supervision, they can be held account-
76 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
able to the citizenry, to the political process, and to the courts in the
ordinary course." Freeman v. Pitts, 503 U.S. 467, 490 (1992).

The question then is whether the Charlotte-Mecklenburg system is
ready for this step. The district court concluded that it was. See Rid-
dick v. School Bd. of the City of Norfolk, 784 F.2d 521, 533 (4th Cir.
1986) (holding that the district court’s unitary status finding is
reviewed for clear error). It is, I suppose, possible for us to reweigh
the evidence or to refract this or that school board decision through
a myriad of lenses. While any record, thus dissected, would be found
to reveal its share of imperfection, a reversal of the district court’s
finding of unitariness would do a profound disservice to the people
of Charlotte. The recent history of Charlotte, as Judge Traxler’s care-
ful opinion demonstrates, is not one of resistance and intransigence.
Rather it shows a community struggling to meet its desegregative
obligations in a period of staggering demographic change. Most
importantly, African Americans are vigorous participants both in the
elective and deliberative process with regard to Charlotte’s schools.

Of course, the majority’s sense of progress may be the dissent’s
sense of great unfinished business. And let us suppose just for a
moment that both are right. Still, I doubt that interminable court pro-
ceedings can convey to Americans the sense that we are in the enter-
prise of education together. For litigation depends for its energy on
adversarial alignments, i.e., the school board and Swann plaintiffs are
tentatively aligned, but the Swann plaintiffs and Capacchione plain-
tiffs are decidedly not. And while democracy has no shortage of con-
flict, reaching decision and compromise from within the community,
as opposed to the external compulsion of court order, promises a bet-
ter mutual understanding and a firmer common ground.

That at least is the hope. In this sense, then, unitariness is not an
act of abandonment but a covenant of faith. It reflects a judicial belief,
well supported by this record, that the invidious practices of an inde-
fensible era have indeed been dismantled and that Charlotte has
earned the right to begin anew. No decisions are more sensitive and
difficult than those involving public schools, and no process is more
wrenching than that of matching limited resources to a limitless array
of educational needs. But these challenges are better met by commu-
nities than by courts and, after thirty-five years of sporadic judicial
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 77
supervision, the time has come to conclude. If not now, when? Each
child is a human being to educate. If this essential task of education
has become too daunting for democracy, then I know not who we are
or what we shall become.

I am authorized to say that Judge Niemeyer joins in this opinion.

WIDENER, Circuit Judge, concurring and dissenting:

I concur in or dissent from parts of the various opinions of the
court and its various members, as indicated below, and I also respect-
fully dissent to the failure of the court to review the items of the judg-
ment of the district court from which appeal is taken.

I.

We review judgments, not opinions, e.g. Chevron USA, Inc. v. Nat-
ural Res. Def. Council, 467 U.S. 837, 842 (1984); Hyatt v. Sullivan,
899 F.2d 329, 337 n.10 (4th Cir. 1990). The judgment of the district
court, a copy of which is attached hereto as Exhibit A, is divided into
five parts, which are:

1. The Charlotte-Mecklenburg schools are declared unitary in all
respects;

2. All prior injunctive orders or decrees in the Swann case are
vacated and dissolved and the case is dismissed with prejudice;

3. The Charlotte-Mecklenburg school system shall pay nominal
damages to the Plaintiff-Intervenors in the amount of $1;

4. Charlotte-Mecklenburg schools are enjoined from assigning
children to schools or to allocate educational opportunities on the
basis of race;

5. The Charlotte-Mecklenburg school system will pay reasonable
attorneys fees, expert fees and costs of the Plaintiff-Intervenors.

And the district court, in another order, imposed sanctions on the
defendants. A copy of relevant parts of that order is also attached as
Exhibit B.
78 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
I vote to affirm the judgment of the district court in each respect,
including the sanctions order, except that I would vacate the judgment
of the district court as to Item 4, listed in Part I above, only on the
ground it is unnecessary, the school board having given no indication
that it will not comply with the orders of the court in this case.

II.

Despite universally accepted appellate procedure that we review
judgments, not opinions, the other members of this court, without
mention of the judgment of the district court, have divided a per
curiam opinion into four issues, only the last two of which, concern-
ing injunctive relief and sanctions, relate directly to the judgment of
the district court we are reviewing. The first two issues, as stated in
the per curiam opinion of the court, are phrased by a floating major-
ity.

Only because each of those majorities declines to vote to affirm or
reverse the various items of the judgment of the district court, I will
attempt to relate my votes to the per curiam opinion.

As to Item 1, I vote that the school system has achieved unitary sta-
tus. Also as to Item 1, I vote that the attorneys’ fees for work done
on the unitary status issue, and any other issue tried in this case,
except a few dollars relating to Miss Capacchione’s moving, should
be granted. The majority, however, while it denies fees on "the uni-
tary status issue," apparently does not immediately mention the fees
of Miss Cappacione’s attorneys, amounting to the sum of about
$700,000, and one might think from reading the per curiam opinion
that they were yet awarded were it not for the next-to-the-last line of
the per curiam opinion denying fees "for any reason."

As to Item 2 of the per curiam opinion, I am in agreement with the
district court, that the school board should have come back to it for
authority to establish magnet schools in which the race of the appli-
cant was considered in deciding whether or not to grant admission.
The district court so construed its own orders, which it is best able to
do, and to which we must give due deference. Anderson v. Stephens,
875 F.2d 76, 80 n.8 (4th Cir. 1989); Vaughns v. Board Educ. v. Prince
Georges County, 758 F.2d 983, 989 (4th Cir. 1985). I need go no fur-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 79
ther to affirm the holding of the district court. I am of opinion that
Miss Capacchione’s Constitutional rights were violated when she was
not considered for admission to the magnet school program notwith-
standing her race and that she is entitled to nominal damages on that
account. Norwood v. Bain, 166 F.3d 2213 (4th Cir. 1999) (en banc).

Also as to Item 2, although I feel that the question of immunity has
little or nothing to do with this case, because it is being used to ratio-
nalize that the successful attorneys do not get their attorneys’ fees and
that nominal damages for a Constitutional violation are not due, I vote
that the school board did not have immunity from the payment of
attorneys’ fees, nor immunity from nominal damages, that is to say,
in the language of the per curiam opinion, it has been forfeited.

As to Items 3 and 4, the per curiam opinion correctly states my
votes.

III.

With only slight interruptions, this case had been on inactive status
for 22 years until Christina Capacchione started the present litigation
when she filed her first complaint on September 5, 1997, seeking to
be considered for admission to the magnet school program without
regard to her race. When, on March 6, 1998, the district court ordered
the Swann litigation reactivated, upon the motion of the Swann plain-
tiffs, it consolidated the Capacchione suit with the Swann litigation.
Miss Capacchione then amended her complaint on March 16, 1998,
to request a declaration that the school system had reached unitary
status and moved on March 19, 1998 to intervene in the reactivated
Swann litigation, which motion was granted. The Grant plaintiffs sub-
sequently filed their complaint and motion to intervene in the Swann
litigation on April 8, 1998.

When Christina Capacchione filed her suit, the Charlotte-
Mecklenburg schools were only admitting students to the magnet
school program after having considered their race, and the school sys-
tem was submitting itself to the racially-based pupil assignments
imposed in response to the orders of the district court some years
before, the suit having then been inactive for some 22 years. Now,
four years and almost $1.5 million later, and over the determined
80 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
opposition of the school board, the school system has been held to be
unitary and the magnet schools may no longer consider the race of the
applicant in granting or denying admission. All this is at the instance
of Christina Capacchione.

When the Swann plaintiffs filed their suit in 1965, more than 35
years ago, their complaint was that the race of students was consid-
ered in determining their assignment to schools, precisely the same
complaint that Christina Capacchione had in 1997. When the Swann
case was declared to be inactive in 1975, the district court, at that
time, awarded attorneys’ fees and costs to the plaintiffs’ attorneys, for
service through 1974, in the amount of $204,072.33, and there are
doubtless other such items not presently readily available to me. For
us to hold now that the Capacchione child and the Grant plaintiffs are
not entitled to the same consideration, as were the Swann plaintiffs,
for eradicating racial assignments is certainly not fair and not even
legal, in my opinion. How we are able to hold that the Capacchione
and Grant plaintiffs and intervenors in this case are not successful
parties in a § 1983 action strains reason beyond the breaking point. In
my opinion, they are due costs, expenses, and attorneys’ fees, etc.
under 42 U.S.C. § 1988.

Especially to the holding of the en banc court, that the Capacchione
and Grant plaintiffs and intervenors are not entitled to attorneys’ fees
and costs, etc., I respectfully dissent.*

*My summary of such fees and costs is attached as Exhibit C.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 81
EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

William CAPACCHIONE, 
Individually and on Behalf of Cristina
Capacchione, a Minor,
Plaintiff,
and
Michael P. Grant et al.,  3:97-CV-482-P
Plaintiff-Intervenors,
v.
CHARLOTTE-MECKLENBURG
SCHOOLS et al.,
Defendants. 
James E. SWANN et al., 
Plaintiffs,
v.
 3:65-CV-1974-P
CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION et al.,
Defendants. 
82 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
JUDGMENT

In accordance with the Memorandum of Decision and Order filed
simultaneously with this Judgment, IT IS ORDERED ADJUDGED,
AND DECREED that the Charlotte-Mecklenburg Schools ("CMS")
are hereby declared unitary in all respects.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that
all prior injunctive orders or decrees entered in Swann v. Charlotte-
Mecklenburg Bd. of Educ., No. 1974 (W.D.N.C.), are VACATED
AND DISSOLVED, and Swann is hereby DISMISSED WITH PREJ-
UDICE.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that
Capacchione and Grant et al. (the "Plaintiff Intervenors") are not enti-
tled to an award of actual damages, but CMS shall pay nominal dam-
ages to the Plaintiff-Intervenors in the amount of one dollar ($1.00).

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that
CMS is enjoined from assigning children to schools or allocating edu-
cational opportunities and benefits through race-based lotteries, pref-
erences, set-asides, or other means that deny students an equal footing
based on race.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that
CMS shall pay the reasonable attorneys’ fees, expert fees, and costs
of the Plaintiff-Intervenors.

This the 9th day of September 1999.

/s/

ROBERT D. POTTER
SENIOR UNITED STATES DISTRICT JUDGE
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 83
EXHIBIT B

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

WILLIAM CAPACCHIONE, 
Individually and on Behalf of
CRISTINA CAPACCHIONE, a
Minor,
Plaintiff,
 Case No. 3:97-CV-482-P
v.
THE CHARLOTTE-
MECKLENBURG SCHOOLS, et al.,
Defendants. 
JAMES E. SWANN et al., 
Plaintiffs,
v.
THE CHARLOTTE-  Case No. 3:65-CV-1974-P
MECKLENBURG BOARD OF
EDUCATION et al.,
Defendants. 
84 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

MICHAEL P. GRANT et al., 
Plaintiff-Intervenors,
v.
THE CHARLOTTE-  3:65-CV-1974-P
MECKLENBURG BOARD OF
EDUCATION et al.,
Defendants. 
ORDER

THESE MATTERS are before the Court on a Motion by Plaintiff
Capacchione and Plaintiff-Intervenors Grant et al. (hereinafter collec-
tively "Grant"), filed April 16, 1999, for Sanctions against Charlotte-
Mecklenburg Board of Education for Non-Disclosure of Witnesses
[document no. 152]. Defendants Charlotte-Mecklenburg Schools et al.
("CMS") filed a response on April 19, 1999.

***

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

This the 23rd day of April 1999.

/s/

The Honorable Robert D. Potter
Senior United States District Judge
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 85
EXHIBIT C

Fees and Hours by Firm

Total expended on merits of the suit by both Grant and Capacchione
= Fees and costs of $1,481,295.47 and 6,428.95 hours

Total expended on fee petition by both Grant and Capacchione = Fees
and costs of $17,721.00 and 74.35 hours

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

A. Counsel for Capacchione

(1) McGuire Woods Battle & Booth (John Pollard & Kevin
Parsons)
Fees on the merits = $390,791.98
Attorney and staff Hours on the merits = 1,954.5
Fees for bringing fee petition = $4,000.00
Attorney and staff hours for bringing fee petition = 21.2

(2) Magenheim, Bateman, Robinson, Wrotenbery & Helfand
(William Helfand)
Fees on the merits = $325,331.51
Attorney and staff Hours on the merits = 1,553.85
Fees for bringing fee petition = $3,372.50
Attorney and staff hours for bringing fee petition = 17.8

Total for Capaccione on the merits = $716,123.49 and 3,508.35 hours
Total for Capaccione for bringing fee petition = $7,372.50 and 38.9
hours

B. Counsel for Grant Plaintiffs

(1) Parks, Chesin & Miller (A. Lee Parks)
Fees on the merits = $471,794.00
Attorney and staff Hours on the merits = 2,160.7
86 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Fees for bringing fee petition = $9,750.00
Attorney and staff hours for bringing fee petition = 32.50

(2) Thomas Ashcraft
Fees on the merits = $159,579.00
Attorney and staff Hours on the merits = 759.9
Fees for bringing fee petition = $598.50
Attorney and staff hours for bringing fee petition = 2.85

(3) In a supplemental order, Judge Potter awarded Parks and
Ashcroft jointly $133,798.98 for expenses incurred litigating the
merits.

Total for Grant Plaintiffs on the merits = $765,171.98 and 2,920.6
hours

Total for Grant Plaintiffs for bringing fee petition = $10,348.50 and
35.35 hours
BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 87
Volume 3 of 4
88 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
LUTTIG, Circuit Judge, concurring in the judgment in part and dis-
senting from the judgment in part:

I concur in the opinion of the court that the Charlotte-Mecklenburg
School System is now unitary, following 35 years of federal court
supervision. I also agree with the conclusion reached by Judge Trax-
ler that the School Board acted without the required authorization
from the district court both when it created its expansive magnet
school program and when it imposed a fixed quota to govern admis-
sions to that program. Neither the creation of the magnet school pro-
gram nor the imposition of a rigid quota governing admission into
that program were authorized by the district court, and both clearly
constituted "material changes" from the district court’s prior remedial
orders, requiring prior court approval. I also agree with Judge Trax-
ler’s narrowest conclusion that, absent a proven necessity for such, an
admissions program that permanently employs fixed ratios to deny
certain students, solely because of their race, the opportunity to com-
pete for seats that will otherwise be left unfilled even after all targeted
minorities have been allotted seats (and I assume fixed ratios in a
remedial context to be constitutional), is insufficiently tailored to
withstand scrutiny.

I address myself separately only to the question whether the district
court authorized the strict mathematical quota adopted by the School
Board in 1992 to govern admissions to Charlotte-Mecklenburg’s mag-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 89
net school program, a quota that, as noted, required officials literally
to leave seats unfilled even after all interested minority students had
been afforded an opportunity to attend the magnet school of their
choice.

I.

With respect to the magnet school program’s admission policy, the
holding of the district court that we review is that that court had
"firmly rejected the use of rigid racial quotas," 57 F. Supp. 2d 228,
286 (W.D. N.C. 1999), and that, in contravention of those orders and
the Supreme Court’s decision in Swann v. Charlotte-Mecklenburg Bd.
of Educ., 402 U.S. 1, 25 (1971), the School Board had "us[ed] mathe-
matical ratios not as a starting point but as an ending point." 57 F.
Supp. 2d at 289. "In policy and in practice, the [magnet schools’]
60/40 ratio requirement [was] an inflexible quota[,]" the district court
found, id. at 288, and "slots reserved for one race [would] not be
filled by students of another race." Id. at 289. Indeed, the court
observed, "it was not uncommon for the school year to begin with
seats remaining vacant because students of one race would disrupt the
desired racial balance." Id. Accordingly, the district court held that the
magnet school program constituted a "material departure" from the
court’s prior remedial orders. Id. at 287.

As to whether the rigid quota imposed by the School Board was
authorized by the district court, the question is not whether the court’s
orders authorized race-conscious admission decisions, as the School
Board argues, see Br. of Appellants Charlotte-Mecklenburg Board of
Education, et al. at 20 ("The particular desegregation tool struck
down by Judge Potter — magnet schools with race conscious admis-
sions guidelines — has been repeatedly recognized by the Supreme
Court and other courts as a valid exercise of the broad remedial dis-
cretion of both district courts and school authorities."), and as Judge
Motz and Judge Wilkinson contend by way of strawman. It is indispu-
table that race-conscious admission decisions were authorized by the
district court’s orders; not even the plaintiffs argue that they were not.
Neither is the question whether parties are required to obey court
orders, the only question addressed by the authorities relied upon by
Judge Motz; of course, they are. Nor is the question whether quotas
were "foreclosed" by the district court’s orders, as Judge Wilkinson
90 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
alternatively maintains; it should be evident that a party does not
receive immunity for any and all conduct that is merely unforbidden
by judicial order.

And finally, the issue is not whether racial quotas are or are not
constitutional. There simply is no occasion in this case for a general
expression of viewpoint as to the use of racial quotas and, although
I am given pause over Judge Wilkinson’s express and categorical
rejection of racial quotas, whatever the circumstance, I certainly
express no such general view herein. I might well be presented with
circumstances in which I would conclude that racial quotas were
essential to the vindication of constitutional right. And I would be
most reluctant to foreclose myself from such a conclusion in an
appropriate circumstance by statements in a case in which the issue
was not even before the court.

Rather, the only issue relevant to the question of whether the
School Board is entitled to immunity is whether the district court spe-
cifically authorized the School Board’s imposition of rigid quotas
(i.e., whether the Board was acting pursuant to court order in impos-
ing the fixed quotas), which denied students the opportunity to com-
pete for unfilled seats solely because of their race. If the court did
specifically authorize the use of fixed quotas, then the School Board
is entitled to immunity; if it did not, then immunity is unavailable.
The authorities on this score are uniform. See, e.g., McCray v. Mary-
land, 456 F.2d 1, 5 (4th Cir. 1972) (observing that the law provides
immunity for those whose actions are taken "in obedience to a judicial
order or under the court’s direction"); see also Rogers v. Bruntrager,
841 F.2d 853, 856 (8th Cir. 1988) (holding that clerks of court are
immune from damages arising from acts they are "specifically
required to do under court order at a judge’s direction") (internal cita-
tions omitted) (emphasis added); Lockhart v. Hoenstine, 411 F.2d
455, 460 (3d Cir. 1969) (providing immunity for officers who act
"pursuant to" a court order); cf. DeFelice v. Philadelphia Bd. of
Educ., 306 F. Supp. 1345 (E.D. Pa. 1969) (extending immunity to
school boards that take actions pursuant to an order of a state commis-
sion). Compare Wilkinson v. Forst, 832 F.2d 1330, 1334 (2d Cir.
1987) (granting immunity to officers who conducted searches "specif-
ically authorized" by court orders) with Wooley v. City of Baton
Rouge, 211 F.3d 913, 927 (5th Cir. 2000) (denying immunity to offi-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 91
cers who removed a child from a home without "specific authoriza-
tion" by a court). Whether racial quotas are, as a general matter,
constitutional has nothing whatsoever to do with the resolution of this
issue. If the district court authorized strict racial quotas, then the
School Board is entitled to immunity whether or not such strict quotas
are constitutional.

Judge Wilkinson misunderstands this issue altogether, as is evident
from both his extended and unnecessary discussion of racial quotas
in general and his mistaken observation that I "insist" "the issue here
has solely to do with racial quotas." Judge Motz, in contrast, under-
stands the issue presented, but errs in its resolution because of a reli-
ance upon fundamentally inapplicable authorities.

II.

Most certainly the district court did not specifically authorize the
School Board to employ fixed quotas in the admission of students to
its magnet schools, as the district court itself held. There is not even
an argument that it did. Indeed, although fatal to their holding that the
board is entitled to immunity, Judges Motz and Wilkinson do not
even suggest otherwise. Nor could they.

Not only the very district court in question, but the Supreme Court
of the United States itself in this very litigation, both explicitly and
consistently disavowed the use and constitutional legitimacy of rigid
quotas throughout the thirty-plus year history of Charlotte-
Mecklenburg’s desegregation efforts. In fact, in the course of this
very litigation, even the Charlotte-Mecklenburg School Board has
strenuously argued against the fact and the constitutionality of any
judicially-imposed quotas by the district court.

A.

Beginning over thirty-two years ago, in this identical litigation,
Judge McMillan himself acknowledged the well-recognized and well-
understood distinction between race-conscious decisions and rigid
quotas, which is ignored by Judge Motz and variously ignored and
misunderstood by Judge Wilkinson today. And he could not have
92 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
been clearer that he would permit the former in pursuit of integration
of the Charlotte-Mecklenburg school system, but forbid the latter —
and he never wavered from that position. Said Judge McMillan at that
time, in terms whose import is unmistakable for the issue before us,
although "[r]ace may be considered in eliminating segregation in a
school system," Charlotte-Mecklenburg Bd. of Educ. v. Swann, 306
F. Supp. 1291, 1312 (1969), "[f]ixed ratios of pupils will not be set."
Id. (emphasis added). Judge McMillan’s words bear repeating: "Fixed
ratios of pupils will not be set." And in emphasis of the distinction he
drew between fixed ratios and race-consciousness, he noted that
although "efforts should be made to reach a 71-29 ratio in the various
schools so that there will be no basis for contending that one school
is racially different from the others, [it is necessary] to understand
that variations from that norm may be unavoidable." Id. (emphasis
added).

Only two months later, Judge McMillan repeated that his order
"[was] not based upon any requirement of ‘racial balance,’" Swann v.
Charlotte-Mecklenburg Bd. of Educ., 311 F. Supp. 265, 267 (1970).
He explained in no uncertain terms that the earlier-referenced 71-29
ratio, which our court today holds specifically authorized imposition
of an inflexible quota, was merely a starting point in pursuit of the
goal of desegregation. See id. at 267-68.

And a year later, Judge McMillan again explicitly rejected fixed,
rigid quotas, re-emphasizing that "‘racial balance’ is not required by
this court." Swann v. Charlotte-Mecklenburg Bd. of Educ., 318 F.
Supp. 786, 792 (1970). Indeed, the court recited, the previous order
"expressly contemplated wide variations in permissible school popu-
lation." Id.

B.

Not only did Judge McMillan, in his own orders, repeatedly reject
the use of fixed quotas, the Supreme Court of the United States, in
reviewing Judge McMillan’s orders, categorically rejected even an
urged construction of these orders that would authorize fixed quotas.
In reviewing Judge McMillan’s Order of February, 1970 (Swann v.
Charlotte-Mecklenburg Bd. of Educ., 311 F. Supp. 265 (1970)), the
Supreme Court unambiguously stated, in a passage that should be dis-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 93
positive of whether the district court previously, and certainly at any
time thereafter, specifically (or otherwise) authorized the use of quo-
tas, that it affirmed Judge McMillan’s order only on the condition that
it not be read to authorize fixed rigid quotas:

If we were to read the holding of the District Court to
require, as a matter of substantive constitutional right, any
particular degree of racial balance or mixing, that
approach would be disapproved and we would be obliged
to reverse. The constitutional command to desegregate
schools does not mean that every school in every commu-
nity must always reflect the racial composition of the school
system as a whole.

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 24 (1971)
(emphasis added); see also Winston-Salem/Forsyth County Bd. of
Educ. v. Scott, 404 U.S. 1221, 1227 (1971) (Burger, C.J., in Cham-
bers) (describing as "disturbing" the School Board’s "understanding
that it was required to achieve a fixed ‘racial balance’ that reflected
the total composition of the school district"). Only a "very limited
use" of "mathematical ratios," as a "starting point," was within the
"equitable remedial discretion of the District Court," id. at 25, held
the Supreme Court.1

And, in perhaps the most powerful testament of all to the fact that
this district court never intended, much less specifically authorized a
quota of a type the majority holds today that it did, the School Board
itself expressly argued to the Supreme Court of the United States in
1
In the course of its opinion in Swann, the Court stated that a school
board, as opposed to a federal court, would possess the discretionary
power to direct that its schools maintain "a prescribed ratio of Negro to
white students reflecting the proportion for the district as a whole." 402
U.S. at 16. Both Judges Motz and Wilkinson seize upon this passage as
if it supported their holding that the School Board’s imposition of fixed
quotas was permissible. Of course, as even the School Board realizes,
this is misplaced reliance, for whether or not the Board possessed inde-
pendent authority to impose the rigid quotas is entirely irrelevant to the
only question before us of whether the Board is entitled to immunity
because it was acting upon order of the district court.
94 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Swann both that Judge McMillan "disclaim[ed] any intent to require
racial balancing," Respondent’s Br. at 24, and that the plain language
of the district court order dealing with student enrollment ("about or
above 20%") actually did not set quotas.2 Indeed, the Board that
before this court argues that racial quotas were authorized by Judge
McMillan, argued before the Supreme Court that it was beyond the
constitutional authority of the district court to impose quotas
("absolutes"), as such would have been based on the district court’s
own "subjective" notions of right and wrong, not on the mandates of
the Constitution, Respondent’s Br., at 35, and would violate individ-
ual rights guaranteed by the Fourteenth Amendment "of those blacks
and whites caught up in the forced mass movement of children away
from their neighborhoods." Id. at 52. In an observation that now
acquires ironic overtones of its own in light of the School Board’s
current posture that quotas were authorized by the district court, the
Board in Swann argued with respect to its position (also rejected by
the Supreme Court) that, although not intended by Judge McMillan,
his order should nonetheless be construed as effectively requiring
racial balancing, that "[i]t is ironic that the counterpart of the compul-
sion outlawed by Brown I and II is now employed in the name of the
Constitution. Is it trite to suggest that two wrongs do not make a
right?" Id.

C.

If there were any question as to Judge McMillan’s rejection of
fixed quotas, and frankly there can be none in the face of Judge
McMillan’s own disavowal and the Supreme Court’s explicit con-
demnation of such in Swann, it was answered with equal clarity
repeatedly by the district court in orders entered in the wake of
2
The petitioners in Swann, like the School Board, also argued that
Judge McMillan neither intended nor imposed a quota in his desegrega-
tion order. In a construction of the district court’s order that not only
tracked the order’s unambiguous language, but was ultimately adopted
by the Supreme Court, petitioners maintained that the court employed the
71%-29% ratio merely as a "starting guide," "a specific, yet flexible
goal," "‘expressed a willingness to accept a degree of modification,’" and
"‘departed from it where circumstances required.’" Petitioners’ Br., at 36,
38, 66.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 95
Swann, in which the court was at obvious and undeniable pains to
respect the Supreme Court’s injunction that inflexible quotas not be
set.

In an order issued the same month after the Supreme Court’s deci-
sion in Swann, Judge McMillan again confirmed that he neither
authorized nor permitted strict racial quotas. First, when the School
Board asked to close a school to improve racial balance, Judge
McMillan rejected the proposal decisively, finding deviations from
targeted percentages an insufficient justification for such action.
Swann v. Charlotte-Mecklenburg Bd. of Educ., 328 F. Supp. 1346,
1348 (1971) (refusing to close a school where the number of white
students was less by two percent than that assigned to the school in
the beginning of the year and one percent greater "than the proportion
called for under the plan"). And in language that belies any contention
that the court authorized strict quotas, Judge McMillan rejected a flat
ban on any student transfers that would alter the targeted composition
of a school, instead ordering only that the School Board could not
assign a child to a school or allow that child to attend a school differ-
ent from the one he was attending at the start of the school year, if
"the cumulative result of such assignment in any given period tends
substantially to restore or to increase the degree of segregation in
either the transferor or the transferee school." Id. at 1350 (emphasis
added).

Two years later, Judge McMillan employed essentially the same
carefully crafted language, again distinguishing between "racial iden-
tifiability" on one hand and strict quotas on the other, Swann v.
Charlotte-Mecklenburg Bd. of Educ., 362 F. Supp. 1223, 1228-30
(1973), invoking the language of "reasonably stable [pupil distribu-
tion]," "substantial [leeway for use of discretion and common sense],"
and "[remedy for] gross unfairness [as the ‘legitimate target of a
court,’ as contrasted with ‘perfect fairness’ which is ‘impossible to
attain’]." Id. at 1229, 1231, 1238.

And, finally, in 1974, the district court entered the order that the
School Board contends, and Judges Motz and Wilkinson accept,
authorized the rigid quotas in dispute. Contrary to the Board’s asser-
tion and my colleagues’ belief, however, that order, too, likewise
carefully and deliberately preserved the elementary distinction
96 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
between flexible ratios as a starting point to bring segregation to an
end, which the Supreme Court had held were constitutionally permis-
sible, and strict quotas, which the Supreme Court had held were con-
stitutionally impermissible. Retaining just that amount of flexibility
essential to the exercise of what the Supreme Court only two years
before had admonished was the limit of its constitutional power,
Judge McMillan ordered only "[t]hat the optional school enrollments
will be controlled starting with 1974 so that they are open to all
county residents and have about or above 20% black students."
Swann v. Charlotte-Mecklenburg Bd. of Educ., 379 F. Supp. 1102,
1104 (1974) (emphasis added). Fully aware that the Supreme Court
had forbidden imposition of quotas, the School Board itself did not
even request authorization to impose strict quotas. Tellingly, the
Board only submitted for the district court’s approval a policy requir-
ing that each school maintain a black student population of "at or
above approximately 20%." To anyone familiar with the history of the
litigation, and especially the Supreme Court’s then-recent explicit
rejection of any construction of Judge McMillan’s orders that would
impose a quota on the School Board, as was the School Board, the
purposeful distinction between race consciousness and rigid quota
drawn by Judge McMillan in his 1974 order could not be any clearer.

III.

Indeed, foregoing the implausible arguments embraced by the
majority, not even the School Board seriously argues before us that
the district court authorized strict quotas — which should be unsur-
prising, given its own argument as early as 1970 that such were
unconstitutional and its firsthand knowledge that the Supreme Court
had categorically rejected the use of such in this very litigation. To
the Board’s credit, it does not even attempt the argument made by
Judges Motz and Wilkinson that the language of the district court
orders itself authorized quotas. Rather than focus on whether the dis-
trict court orders imposed or authorized rigid quotas, as to which it
says nothing, the Board noticeably and notably passes instead to the
very different argument that its admission policies were not, as a prac-
tical matter, tantamount to insistence upon rigid quotas as evidenced
by the ultimate variation in the racial make-up of the magnet schools.
See Appellants’ Reply Br. at 15; Appellants’ Br. at 21 (suggesting
that the "manner in which CMS admitted students to its magnet
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 97
schools was fully consistent with these orders and not rigid and
inflexible" because of the existence of "[s]ignificant variance" from
the initial goal). This "[s]ignificant variance," of course, is not due to
the flexibility of the admissions process, but instead to its rigidity to
the extent of leaving unfilled seats that were reserved for a particular
race, even in the face of a waiting list of students of different races.
In any event, the ultimate demographics have no relevance whatever
to the threshold question before us of whether the district court did
or did not specifically authorize the Board to employ rigid quotas in
admissions to its magnet schools — a question as to which the School
Board’s silence speaks volumes.

IV.

The facts of the repeated explicit and consistent rejection of quotas
by this district court in this very litigation for over thirty years; the
categorical rejection by the Supreme Court of the United States of any
construction of the district court’s orders that would require rigid quo-
tas; the School Board’s own argument before the Supreme Court in
Swann that rigid quotas were never intended or ordered by the district
court, and that, if they had been, such would be unconstitutional; and
the Board’s tacit (and frankly, candid, if indirect) concession in its
briefs before this court that the district court did not authorize rigid
quotas, renders beyond any argument the plaintiff’s contention that
the School Board acted outside the scope of the district court’s orders
when it adopted rigid quotas and refused to permit students to com-
pete for open seats based upon their race alone. Not merely had the
district court never authorized the School Board’s use of rigid quotas.
It had expressly stated that it would not do so, as the Board itself
knew well. And, if this alone were not enough, at this very School
Board’s behest, the district court had been instructed by no less an
authority than the Supreme Court of the United States that it would
have been without the constitutional power to impose such an inflexi-
ble requirement on the county officials of Charlotte-Mecklenburg,
even had it wanted to. The holding on this record that the district
court authorized the use of strict quotas is, as best evidenced by the
palpable lack of support summoned by the combined opinions of
Judges Motz and Wilkinson on behalf of that holding, simply insup-
portable.
98 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
"The cumulative message of innumerable court orders conveyed to
the Charlotte-Mecklenburg board over the course of many years"
actually was not, as Judge Wilkinson asserts, "to do everything possi-
ble to desegregate Charlotte schools." Post at 74. It was to do "every-
thing possible" to desegregate Charlotte-Mecklenburg’s schools,
except employ strict racial quotas.

DIANA GRIBBON MOTZ & ROBERT BRUCE KING, Circuit
Judges:

A majority of the Court today reverses the district court’s finding
that the use of a race-based admission policy by the Charlotte-
Mecklenburg Board of Education ("CMS" or "Board") in its expanded
magnet schools program violated the Equal Protection Clause of the
Constitution of the United States — and thus vacates the attendant
injunction, monetary relief, and attorney’s fees award. Every signifi-
cant aspect of the expanded magnet schools program, including the
use of racial proportions in assigning students to magnet schools, was
authorized by the judicial desegregation orders governing this case.
The Board’s obligation to obey these court orders insulates it from
constitutional attack for actions taken in compliance with them. It
would be the rankest injustice to find the Board liable for a constitu-
tional violation, and subject to monetary damages and enormous
attorney’s fees, when its expanded magnet schools program was sim-
ply a good-faith attempt to comply with the desegregation orders
imposed by federal courts to remedy an unlawful dual school system.
Thus, for the reasons more fully explained in parts III, IV, V, and VI
of this opinion, the magnet schools ruling must be reversed and the
accompanying injunction, monetary damages, and attorney’s fees
award must be vacated.

However, a separate majority severely errs in upholding the district
court’s determination that CMS has achieved unitary status. This
majority expresses its "satisfaction that CMS has dismantled the dual
school system." Traxler Op. at 7. For the reasons set forth in parts II
and VIII of this opinion, no one should be satisfied at this time. Noth-
ing yet demonstrates that CMS has eliminated all vestiges of the
unlawful discrimination that has long permeated its school system. In
holding to the contrary, the majority has only succeeded here in dash-
ing the hopes of the citizens of Mecklenburg County, particularly
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 99
those of African-American descent, who have long fought for the fair
and equitable implementation of the desegregation plan approved by
Judge McMillan some thirty years ago. These successive generations
of parents and children have been slowly starved by a well-meaning
— but irresolute — governing body, whose sins have been absolved
by the court below (and now by a majority of this Court) without any-
thing but the most cursory examination. Although CMS has clearly
achieved unitary status in certain respects, there remain several areas
of primary concern that have not been subjected to anything
approaching a proper constitutional analysis. We deplore, and believe
the Court itself may one day regret, the refusal of a present majority
to recognize this.

I.

A.

In order to better understand the issues presented in this case, we
must briefly review our country’s history of school desegregation liti-
gation, in which CMS has played a prominent role.

Even after slavery had been abolished for almost a full century,
African-American children were, for the most part, either excluded
from the public schools or educated separately from white children.
"In fact, any education of Negroes was forbidden by law in some
states." Brown v. Bd. of Educ., 347 U.S. 483, 490 (1954) ("Brown I");
see also Martin v. Charlotte-Mecklenburg Bd. of Educ., 475 F. Supp.
1319, 1324 (W.D.N.C. 1979) ("For three centuries racial segregation
was the law of the land."). Indeed, throughout the early part of the
1900s, CMS operated a segregated school system within the safe har-
bor created by the Supreme Court’s doctrine of "separate but equal"
articulated in Plessy v. Ferguson, 163 U.S. 537 (1896).

In the middle of the 1900s, the Supreme Court began dismantling
the great wall of segregation constructed under the imprimatur of
Plessy. The Court initially sought to determine whether various "sepa-
rate" African-American schools were genuinely "equal" to white
schools by evaluating the quality of physical facilities, curricula, fac-
ulty, and certain "intangible" considerations. See, e.g., Sweatt v.
Painter, 339 U.S. 629 (1950); Sipuel v. Board of Regents of Univ. of
100 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Okla., 332 U.S. 631 (1948). In each instance, the Court concluded
that they were not. Id.

In 1954, the Supreme Court at last overruled Plessy, declaring that
"in the field of public education the doctrine of ‘separate but equal’
has no place. Separate educational facilities are inherently unequal."
Brown I, 347 U.S. at 495. Just one year later, the Court mandated that
federal courts and school authorities take affirmative steps to achieve
desegregation. Brown v. Bd. of Educ., 349 U.S 294, 299 (1955)
("Brown II"). Specifically, federal courts were to retain jurisdiction
over desegregation cases during the period of transition, wielding
their equitable powers to supervise school boards’ efforts to effectuate
integration. Id. at 300-01. One of the most important obligations of
the federal courts was to ensure that school boards were proceeding
in good faith to desegregate the public schools "with all deliberate
speed." Id. at 301. With these seminal decisions — Brown I and
Brown II — the Supreme Court promised the citizens of this country,
and particularly African-American children, school systems "in which
all vestiges of enforced racial segregation have been eliminated."
Wright v. Council of the City of Emporia, 407 U.S. 451, 463 (1972).

Notwithstanding the Court’s repeated admonition that segregation
and its vestiges be eliminated "root and branch," Green v. County Sch.
Bd. of New Kent County, 391 U.S. 430, 437-38 (1968), many school
boards — CMS included — adopted "an all too familiar" response to
the mandate of Brown II, interpreting "all deliberate speed" "as giving
latitude to delay steps to desegregate." Freeman v. Pitts, 503 U.S.
467, 472 (1992). And so, lower federal courts, with the guidance and
oversight of the Supreme Court, began fashioning equitable remedies
to contend with school board recalcitrance. For example, in Green,
the Supreme Court held that a "freedom of choice" plan, which per-
mitted students — regardless of race — to choose the school they
would attend, was by itself insufficient to meet the mandate of Brown.
391 U.S. at 430. In so holding, the Court recognized that more inten-
sive efforts would be necessary in order to make "meaningful and
immediate progress toward disestablishing state-imposed segrega-
tion." Id. at 439. Subsequently, in this very case, the Court approved
significant federal court intervention into a school system in order to
eliminate segregation "root and branch," including the busing of stu-
dents from schools close to their homes to schools farther away, the
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 101
use of race-based "mathematical ratios," and the alteration of student
attendance zones. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. l, 15, 25, 28, 30-31 (1971).

The Supreme Court has made clear, however, that a federal court’s
"end purpose must be to remedy the violation and, in addition, to
restore state and local authorities to the control of a school system that
is operating in compliance with the Constitution." Freeman, 503 U.S.
at 489. Hence, as a school system eliminates the vestiges of past offi-
cial segregation from certain facets of its operations, courts possess
the authority to relinquish supervision in a commensurate fashion. Id.
at 489-91.

In this context, we examine the steps taken by CMS to eliminate
the vestiges of segregation.

B.

1.

North Carolina’s most significant initial response to the mandate of
Brown II was the "Pupil Assignment Act of 1955-56, under which
[the Board had] the sole power to assign pupils to schools, and chil-
dren [were] required to attend the schools to which they [were]
assigned." Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F.
Supp. 1358, 1361 (W.D.N.C. 1969). This was an ineffectual measure
— perhaps intentionally so — and by 1964, no more than a few dozen
(out of more than 20,000) African-American children in CMS were
attending schools with white children. Id. at 1362.

2.

In 1965, the parents of African-American children attending CMS
(hereinafter the "Swann plaintiffs")1 filed a class action seeking
injunctive relief, claiming that the Board’s policies and practices were
perpetuating a segregated school system. Swann v. Charlotte-
1
Since this case was first filed in 1965, the various successor plaintiffs
have been referred to as the Swann plaintiffs, a practice we continue to
observe here.
102 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Mecklenburg Bd. of Educ., 243 F. Supp. 667, 668 (W.D.N.C. 1965).
On July 14, 1965, the district court approved a Board-proposed plan
that closed certain black schools, built new schools, and established
school attendance zones based on neighborhoods. But the linchpin of
this plan was its grant of permission to each student — regardless of
race — to freely transfer to a different school (often described as a
"freedom of choice" plan). Id. In approving this plan, the district court
held that CMS had no affirmative duty to "increase the mixing of the
races"; instead, the Board’s obligation under Brown II, according to
the court, was to act without the intent to perpetuate segregation. Id.
at 670. The following year, this Court affirmed the district court’s
interpretation of Brown II. See Swann v. Charlotte-Mecklenburg Bd.
of Educ., 369 F.2d 29, 32 (4th Cir. 1966) ("Whatever the Board may
do in response to its own initiative or that of the community, we have
held that there is no constitutional requirement that it act with the con-
scious purpose of achieving the maximum mixture of the races in the
school population.").

However, in the wake of the Supreme Court’s 1968 decision in
Green, which struck down a desegregation plan founded predomi-
nantly on "freedom of choice," it became clear that school boards did
possess an affirmative obligation to desegregate, not merely an obli-
gation to implement race-neutral policies. Green, 391 U.S. at 437-38.
Invigorated by the developing law, the Swann plaintiffs promptly
filed a motion for further relief with the district court, seeking to
expedite the desegregation process.

3.

In 1969, Judge James B. McMillan, newly assigned to the Swann
case,2 reexamined the Board’s actions in light of Green and deter-
mined that its "freedom of choice" plan, when coupled with geo-
graphic zoning, were "not furthering desegregation." 300 F. Supp. at
1372. On the fundamental matters of assigning students and faculty,
and the siting of new schools, the court made the following findings:
2
For clarity’s sake, we will often refer within to the presiding district
judge by name.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 103
• Student assignment: The court noted that a ratio of sev-
enty percent white students to thirty percent black stu-
dents, which approximated the ratio of white to black
students in the county, tended to aid "better students [in
holding] their pace, with substantial improvement for the
poorer students." Id. at 1369.

• Faculty assignment: Although faculty members were not
being assigned with a discriminatory purpose, there was
also "no sustained effort to desegregate faculties." Id. at
1370. The court ordered CMS to work actively to inte-
grate the faculties, so that "a child attending any school
in the system will face about the same chances of having
a black or a white teacher as he would in any other
school." Id.

• School siting: The court underscored that the desirability
of implementing a "neighborhood school" policy, under
which efforts were made to locate schools in neighbor-
hoods and within walking distance for children, could
not override the constitutional duty to desegregate. Id. at
1369. At the same time, CMS was not to avoid locating
new facilities in black neighborhoods. Id. at 1371.

In light of Green, Judge McMillan also ordered CMS to submit a
new, amended desegregation plan, and he outlined certain possible
remedies, including busing and re-zoning. Swann, 300 F. Supp. at
1360; Swann v. Charlotte-Mecklenburg Bd. of Educ., 306 F. Supp.
1299, 1302 (W.D.N.C. 1969).

Once again, however, CMS was slow to respond, prompting Judge
McMillan to impose a deadline of August 4, 1969, by which the
Board was to submit a detailed desegregation plan to the court. See
Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F. Supp. 1381,
1382, 1386 (W.D.N.C. 1969). CMS complied, and its proposed
desegregation plan appeared to accept, for the first time, the constitu-
tional duty to desegregate students, teachers, principals, and staffs "‘at
the earliest possible date.’" Swann v. Charlotte-Mecklenburg Bd. of
Educ., 306 F. Supp. 1291, 1293 (W.D.N.C. 1969). The Board’s pro-
posed desegregation plan, approved by the district court on an interim
104 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
basis ("interim desegregation plan"), included programs for faculty
desegregation, the closing of seven all-black schools, and the reas-
signment of pupils from the closed schools to outlying, predominantly
white schools. Id. at 1298-99. In approving the plan on an interim
basis, the district court noted that black children were bearing a dis-
proportionate burden of the desegregation efforts, but the court none-
theless concluded that some action — even if interim — was
preferable to none at all. Id. at 1298. Judge McMillan also ordered the
Board to submit another desegregation plan within three months.

In November and December 1969, the district court determined
that the school system’s compliance with the interim desegregation
plan was unsatisfactory, finding that the Board was continuing to per-
petuate segregation:

The School Board is sharply divided in the expressed views
of its members. From the testimony of its members, and
from the latest report, it cannot be concluded that a majority
of its members have accepted the court’s orders as repre-
senting the law which applies to the local schools. By the
responses to the October 10 questions, the Board has indi-
cated that its members do not accept the duty to desegregate
the schools at any ascertainable time; and they have clearly
indicated that they intend not to do it effective in the fall of
1970. They have also demonstrated a yawning gap between
predictions and performance.

Swann, 306 F. Supp. at 1306. At that time, the district court also
reviewed and rejected the Board’s newly submitted amended desegre-
gation plan. Id. at 1313-14. Then, the court appointed Dr. John A.
Finger, Jr. as an expert consultant to prepare a more acceptable plan.
This appointment came nearly two years after the Supreme Court’s
Green decision and more than fifteen years after Brown I.

The district court ultimately adopted Dr. Finger’s proposed plan for
elementary schools and the Board’s plan, as modified by Dr. Finger,
for secondary schools (collectively the "Finger Plan"). Swann v.
Charlotte-Mecklenburg Bd. of Educ., 311 F. Supp. 265, 268-70
(W.D.N.C. 1970). In doing so, the court again observed the Board’s
failure to make an effective beginning to desegregation: "The School
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 105
Board, after four opportunities and nearly ten months of time, have
failed to submit a lawful plan (one which desegregates all the
schools). This default on their part leaves the court in the position of
being forced to prepare or choose a lawful plan." Id. at 267.

The Finger Plan included several components. First, students were
to be assigned "in such a way that as nearly as practicable the various
schools at various grade levels have about the same proportion of
black and white students." Id. at 268. Second, "no school [could] be
operated with an all-black or predominantly black student body." Id.
Third, in redrawing the school system’s attendance zones, the Board
was authorized to use bus transportation and noncontiguous "satellite
zones"3 to accomplish its goals. Id. Fourth, the district court restricted
the student transfer policy in order to safeguard against resegregation.
Id. at 268-69. Fifth, the race of faculty members at each school had
to approximate the ratio of black and white faculty members through-
out the system. Id. at 268. Sixth, the overall competence of teachers
at formerly black schools could not be inferior to those at formerly
white schools. Id. Finally, the district court mandated that the Board
monitor and report on its progress in implementing the plan. Id. at
269.

The Finger Plan was challenged on several occasions and, in 1971,
the Supreme Court upheld it as a valid exercise of the district court’s
equitable powers. Swann, 402 U.S. at 31-32. Indeed, the Court specif-
ically found that the district court’s adoption of a student assignment
plan that used race-based "mathematical ratios" as a starting point was
well within the court’s "equitable remedial discretion." Id. at 25.
3
CMS used "satellite zones" in connection with elementary schools.
Under this method, students from a small geographic area located outside
an elementary school’s primary attendance area were assigned to that
school. J.A. 15571, 16052; see also Swann, 402 U.S. at 9 & n.3. The use
of satellite zones was implemented by "pairing" elementary schools —
students from a predominantly black neighborhood were bused to a
school in a predominantly white neighborhood for grades K-3, and stu-
dents from a predominantly white neighborhood were bused to a school
in a predominantly black neighborhood for grades 4-6. J.A. 15571,
16052; see also Swann, 402 U.S. at 9-10.
106 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Even after the Supreme Court’s decision in Swann, the district
court found that the Board’s desegregation efforts failed to meet con-
stitutional requirements. For example, Judge McMillan ordered stu-
dent assignment proposals revised in June 1971, finding that the
proposals "were discriminatory in detail and in overall result; they
placed increasing burdens upon black patrons while partially relieving
white patrons of similar burdens." Swann v. Charlotte-Mecklenburg
Bd. of Educ., 328 F. Supp. 1346, 1347 (W.D.N.C. 1971). During the
1971-72 and 1972-73 school years, the district court attempted a
"hands-off" approach, leaving the Board to remedy problems as they
arose, but the court twice found that the Board still had not adopted
sufficient measures to guard against resegregation and ensure that
whites were bearing an appropriate share of the desegregation burden.
See Swann v. Charlotte-Mecklenburg Bd. of Educ., 362 F. Supp.
1223, 1230 (W.D.N.C. 1973); Swann v. Charlotte-Mecklenburg Bd.
of Educ., 379 F. Supp. 1102 (W.D.N.C. 1974); see also discussion of
specific findings infra.

The 1974 order expressed somewhat more optimism about the
Board’s desegregation efforts. In that order, Judge McMillan
approved a student assignment proposal that, if implemented prop-
erly, would result in "a fair and stable school operation" and would
permit the court to close the case as an active matter. See 379 F. Supp.
at 1103. The proposal made provisions for several "optional schools"
— schools that would offer some specialized program or curriculum
and thereby attract students of all races from across Charlotte and
Mecklenburg County. Although Judge McMillan approved the incor-
poration of these schools into the plan, he cautioned that the optional
schools would be inconsistent with the school board’s constitutional
obligations if they merely served to re-institute "freedom of choice."
Id. at 1104 ("‘Freedom of choice’ was a synonym for segregation for
many years, and . . . it should not be resurrected at this late date sub
nom. ‘optional schools’ without adequate safeguards against discrimi-
natory results."). To ensure that the optional schools served their
stated purpose of furthering the process of desegregation, Judge
McMillan decreed that "optional school enrollments will be con-
trolled starting with 1974 so that they . . . have about or above 20%
black students." Id.

Finally, in July 1975, over twenty years after the mandate of Brown
II, Judge McMillan for the first time observed, albeit with reserva-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 107
tions, that the Board was actually working toward desegregation:
"The new Board has taken a more positive attitude toward desegrega-
tion and has at last openly supported affirmative action to cope with
recurrent racial problems in pupil assignment." Swann v. Charlotte-
Mecklenburg Bd. of Educ., 67 F.R.D. 648, 649 (W.D.N.C. 1975).
Although the district court cautioned that problems remained, the new
vigor with which the Board was pursuing desegregation persuaded
Judge McMillan to close Swann as an active matter of litigation and
to remove it from the court’s docket. Id. at 649-50. In so acting, the
court reaffirmed that its orders still stood: "[t]his case contains many
orders of continuing effect, and could be re-opened upon proper
showing that those orders are not being observed." Id. at 649.

4.

Between 1975 and 1992, two significant actions were taken in con-
nection with the CMS desegregation litigation.

a.

First, in 1978, a group of white parents and children brought suit
against CMS, seeking an order prohibiting the Board from assigning
children pursuant to the Board’s latest student-assignment plan. See
Martin, 475 F. Supp. at 1320. The Martin plaintiffs claimed that the
Supreme Court’s then-recent decisions in Pasadena City Bd. of Educ.
v. Spangler, 427 U.S. 424, 436 (1976), and University of Cal. Regents
v. Bakke, 438 U.S. 265, 305 (1978), prohibited any consideration of
race in student assignment. 475 F. Supp. at 1321. The Swann plain-
tiffs intervened in Martin, joining the Board’s opposition to the con-
tentions of the Martin plaintiffs. Id.

A brief review of Spangler and Bakke is necessary to an under-
standing of Martin. In Spangler, the Supreme Court held that because
the Pasadena Unified School District ("PUSD") had achieved racial
neutrality in its school attendance pattern, "the District Court was not
entitled to require the PUSD to rearrange its attendance zones each
year so as to ensure that the racial mix desired by the court was main-
tained in perpetuity." 427 U.S. at 436. All parties in Spangler agreed
that the plan initially achieved racial neutrality in student attendance;
nonetheless, the district court had believed it was empowered to annu-
108 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
ally readjust school boundaries to ensure in perpetuity that there
would be no majority of any minority race at any Pasadena school.
Id. at 433, 436. In Bakke, the Supreme Court determined that a public
university with no history of discrimination could not constitutionally
reserve sixteen out of one hundred admission slots for racial minori-
ties. 438 U.S. at 319-20. In striking down this admissions plan, the
Court had made clear that "[w]hen a classification denies an individ-
ual opportunities or benefits enjoyed by others solely because of his
race or ethnic background, [it must] be regarded as [constitutionally]
suspect." Id. at 305.

Judge McMillan, who retained jurisdiction over Swann and pre-
sided over Martin, first held that because CMS had not achieved
racial neutrality in student attendance, consideration of race in student
assignment policies was appropriate under Swann. See Martin v.
Charlotte-Mecklenburg Bd. of Educ., 626 F.2d 1165 (4th Cir. 1980).
He explained that because the student assignment policy in the CMS
school system had been independently adopted by the Board, it was
not established, as the Spangler policy had been, via judicial coercion
or order. 475 F. Supp. at 1340-43. Second, Judge McMillan ruled that
Bakke was inapposite to the claims of the Martin plaintiffs. Specifi-
cally, the court reasoned that no child was being denied access to
equal educational opportunity because of race, see id. at 1321, and the
actions of the Board were therefore not constitutionally suspect under
Bakke.

In upholding the independent actions of the Board, Judge McMil-
lan made several important findings. For example, he found that dis-
crimination had not ended; indeed, it was this very finding that led the
court to uphold the 1978 race-conscious student assignment policy.
Id. at 1346-47. Also, although for the first time the district court
praised the efforts of the Board without reservation, it underscored yet
again the need for patience and continued efforts:

It took three centuries to develop a slave culture, to fight a
bloody civil war, and to live through the century of racial
turmoil after that war.

***
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 109
The culture and attitudes and results of three centuries of
segregation cannot be eliminated nor corrected in ten years.
Human nature and practices don’t change that fast, even in
the hands of people of good will like the members of the
present School Board. They need time to work their own
experiments, and to find their own ways of producing the
sustained operation of a system of schools in which racial
discrimination will play no part. I vote to uphold their
efforts to date, and to give them that time.

Id. at 1347. In 1980, we affirmed the district court’s decision in Mar-
tin. See 626 F.2d at 1165.

b.

The second significant phase of litigation between 1975 and 1992
was initiated in 1980. At that time, CMS and the Swann plaintiffs
notified the district court that the black student population in CMS
elementary schools had grown from twenty-nine percent to forty per-
cent, making it increasingly difficult to comply with the desegregation
order’s mandate to avoid majority-black elementary schools. In
response to this change, Judge McMillan approved a modification to
the desegregation plan. Instead of prohibiting a "predominantly black
student body," the court permitted CMS to operate elementary
schools with a black student population of "plus 15 percent" above
the district-wide average. Thus, if the school district averaged forty
percent black students, any individual school could have fifty-five
percent black students.

5.

From 1981 to 1992, the Board continued to operate its desegrega-
tion plan as approved by the district court, focusing, inter alia, on sat-
ellite attendance zones, a feeder plan (assigning middle-school
students from a certain neighborhood to identified high schools),
school closings, and construction of new schools. Then, in 1992,
CMS substantially increased its reliance on "optional" or magnet
schools (the "expanded magnet schools program"). The Board placed
new emphasis on magnet schools in order to phase out "pairing" and
heavy reliance on busing, and to give parents more choice in school
110 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
selection. It was the expanded magnet schools program that ultimately
led to the present phase of this litigation.

6.

In September 1997, William Capacchione, individually and on
behalf of his daughter Cristina, sued CMS claiming that Cristina was
unconstitutionally denied admission to a magnet school. Christina is
Hispanic and Caucasian, and her suit under 42 U.S.C. § 1983 sought
declaratory, injunctive, and compensatory relief. In response, CMS
moved to dismiss Capacchione’s suit and, almost simultaneously, the
Swann plaintiffs moved to reactivate Swann, claiming that CMS was
not yet in compliance with past desegregation orders and had not yet
achieved unitary status. Because Judge McMillan had died, the cases
were assigned to Senior Judge Robert D. Potter, who restored Swann
to the district court’s docket, consolidated the cases, denied CMS’s
motion to dismiss, and granted Capacchione’s motion to intervene.4

The Capacchione plaintiffs claimed that CMS had long since elim-
inated the vestiges of segregation in its schools, and that its formerly
dual system of white and black schools had, for some time, been uni-
tary. They also contended that CMS, while still operating under the
court’s desegregation orders, had violated those orders and the consti-
tutional rights of white students in its efforts to desegregate the school
system by employing a race-conscious assignment lottery in its
expanded magnet schools program. The Swann plaintiffs countered
that the school system had not yet achieved unitary status. CMS
acknowledged that it was not yet in compliance with past desegrega-
tion orders and agreed that it should not be declared to have achieved
4
Since filing suit, the Capacchiones have moved to California. Based
on that fact and other findings, the district court determined that William
Capacchione no longer possessed standing to seek injunctive or declara-
tory relief, but that he did have standing to pursue compensatory relief.
Capacchione v. Charlotte-Mecklenburg Schs., 57 F. Supp. 2d 228, 240
(W.D.N.C. 1999). Another group of white parents intervened in the con-
solidated action and that group, represented by plaintiff Michael Grant,
claimed that CMS has achieved unitary status. The various groups of
plaintiffs that have joined in Capacchione’s claims are hereinafter
referred to as "the Capacchione plaintiffs."
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 111
unitary status. CMS also contended that, in any event, the expanded
magnet schools program constituted an entirely constitutional and
appropriate integration tool authorized under the desegregation orders
in this case. The Swann plaintiffs, while endorsing the concept of
magnet schools, argued that the expanded magnet schools program,
as implemented, was contributing to the resegregation of the school
system.

Following a bench trial conducted from April 19 to June 22, 1999,
the court, on September 9, 1999, filed its Memorandum of Decision
and Order, from which this appeal is taken. See Capacchione v.
Charlotte-Mecklenburg Schs., 57 F. Supp. 2d 228 (W.D.N.C. 1999).
Although the Board claimed that unitary status had not been achieved,
the district court found that it had. In its ruling, the district court then
found that the Board’s expanded magnet schools program, even
though instituted to effect court-ordered desegregation, was unconsti-
tutional. Furthermore, the court enjoined the Board from "assigning
children to schools or allocating educational opportunities and bene-
fits through race-based lotteries, preferences, set-asides, or other
means that deny students an equal footing based on race." Id. at 294.
Finally, the court awarded the Capacchione plaintiffs nominal mone-
tary damages and substantial attorney’s fees.

C.

The Board and Swann plaintiffs appealed every portion of the dis-
trict court’s judgment. A panel of this Court, with one judge dissent-
ing, vacated and remanded the district court’s unitary status
determination, holding that the district court’s unitary status findings
were insufficient with respect to student assignment, facilities, trans-
portation, and student achievement. The panel also reversed the dis-
trict court’s holding that the expanded magnet schools program
violated the Equal Protection Clause, reasoning that the program com-
plied in all respects with court orders governing the case and did not
in any way violate the Constitution. Finally, the panel vacated the dis-
trict court’s injunction, the award of nominal damages, and the award
of attorney fees. See Belk v. Charlotte-Mecklenburg Bd. of Educ., 233
F.3d 232 (4th Cir. 2000). Thereafter, on January 17, 2001, a majority
of the active members of the Court voted to hear this case en banc.
112 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
II.

We first address the district court’s unitary status decision. The
determination of whether any part of a school system has achieved
unitary status is a factual one; therefore, the district court’s findings
as to unitary status are reviewed for clear error. See Riddick v. School
Bd. of the City of Norfolk, 784 F.2d 521, 533 (4th Cir. 1986); see also
Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F.2d
945, 952 n.3 (11th Cir. 1989) (citing United States v. Texas Educ.
Agency, 647 F.2d 504, 506 (5th Cir. Unit A 1981)). No deference,
however, is owed to the district court on conclusions of law, including
the district court’s understanding of controlling law or the various
burdens of proof and presumptions; consequently, all such conclu-
sions of law are reviewed de novo. See, e.g., In re Brice, 188 F.3d
576, 577 (4th Cir. 1999).

A.

1.

Indisputably, the school system of Charlotte-Mecklenburg County
subjected African-Americans to nearly a century of segregation and
discrimination. Indeed, the Supreme Court recognized as much in
Swann, noting that North Carolina was one of the states with "a long
history of maintaining two sets of schools in a single school system
deliberately operated to carry out a governmental policy to separate
pupils in schools solely on the basis of race." 402 U.S. at 5-6. In this
context the remedies forcefully endorsed in Brown II, including the
use of race-conscious measures, are necessary to eradicate the invidi-
ous segregation at which they are aimed.

Moreover, court supervision over local school boards, also
embraced in Brown and its progeny, is entirely appropriate whenever
"school authorities fail in their affirmative obligations" "to take what-
ever steps might be necessary to convert to a unitary system in which
racial discrimination would be eliminated." Swann, 402 U.S. at 15.
Not only are the federal courts entitled to supervise and direct the
actions of local school boards under those circumstances, but the
scope of federal authority is almost plenary: "Once a right and a vio-
lation have been shown, the scope of a district court’s equitable pow-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 113
ers to remedy past wrongs is broad, for breadth and flexibility are
inherent in equitable remedies." Id. There is no doubt that CMS was
justifiably subjected to federal court supervision; in fact, even after
the Board had been subjected to court supervision, it had to be repeat-
edly ordered to begin the process of desegregation.

Ultimately, however, the goal in a desegregation case such as this
is to reach the point at which federal supervision is no longer war-
ranted and the use of race-conscious measures is no longer necessary.
See Freeman, 503 U.S. at 489. The Supreme Court has identified six
factors (collectively the "original Green factors") that must be free
from racial discrimination before the mandate of Brown is met: (1)
student assignment, (2) physical facilities, (3) transportation, (4) fac-
ulty, (5) staff, and (6) extracurricular activities. Green, 391 U.S. at
435. Not only are reviewing courts to ascertain whether these original
Green factors are free from racial discrimination, but courts also are
entitled, in their discretion, to identify other factors ("ancillary factors")5
and "determine whether minority students were being disadvantaged
in ways that required the formulation of new and further remedies to
ensure full compliance with the court’s decree." 503 U.S. at 492.

2.

For school systems proceeding through the difficult process of
desegregation, the Supreme Court has adopted the goal of achieving
unitary status. Freeman, 503 U.S. at 486-87; Board of Educ. of Okla.
City v. Dowell, 498 U.S. 237, 245-46 (1991). Although prior to the
Court’s Dowell and Freeman decisions federal courts used the term
"unitary status" somewhat inconsistently, see Freeman, 503 U.S. at
486-87; Green, 391 U.S. at 437-38, the term has now come to mean
that the school system has been unified such that the vestiges of seg-
regation have been eliminated to the extent practicable. Freeman, 503
U.S. at 487; Green, 391 U.S. at 437-38. When a school system
achieves unitary status, federal courts must withdraw supervision over
the local school board.
5
For convenience, we refer to the original Green factors and any ancil-
lary factors identified by the district court as "Green factors."
114 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
In this case, Judge Potter declared that CMS had achieved unitary
status in every respect. The Supreme Court has directed that an appel-
late court review a district court’s unitary status determination by
applying a two-part inquiry (the "Freeman inquiries"). An appellate
court must determine if (1) a school Board has, in good faith, com-
plied with the desegregation decree since it was entered; and (2) the
vestiges of de jure segregation in the school system have been elimi-
nated to the extent practicable. See Freeman, 503 U.S. at 492 (citing
Dowell, 498 U.S. at 249-50).

If the party seeking a declaration of unitary status cannot demon-
strate that the school system has achieved unitary status in its entirety,
we then undertake to determine whether the school system has
achieved unitary status with respect to one or some of the Green fac-
tors ("partial unitary status"). At that point, we apply, with respect to
each Green factor, the two Freeman inquiries along with one addi-
tional Freeman-mandated inquiry: "whether retention of judicial con-
trol [over one aspect of the school system] is necessary or practicable
to achieve compliance with the decree in other facets of the school
system." Freeman, 503 U.S. at 491. This third Freeman inquiry rec-
ognizes that the Green factors are — to a great extent — interrelated,
and when determining whether judicial supervision over a school
board may be withdrawn, the overlap between the Green factors is a
crucial consideration.

The Freeman analysis brings us to the most difficult questions
presented in any desegregation case: whether present racial isolation
is a vestige of past segregation and, if so, whether a school board can
practicably reduce that racial isolation. It is even difficult to define
"vestige" in this context. See id. at 502 (Scalia, J., concurring) ("We
have never sought to describe how one identifies . . . a ‘vestige’ or
a ‘remnant’ of past discrimination. . . ."). The vestiges "that are the
concern of the law may be subtle and intangible but nonetheless they
must be so real that they have a causal link to the de jure violation
being remedied." Id. at 496 (Kennedy, J.); see also id. at 512 (Souter,
J., concurring) (citing Columbus Bd. of Educ. v. Penick, 443 U.S. 449,
465 & n.13 (1979) and Keyes v. School Dist. No. 1, Denver, 413 U.S.
189, 211 & n.17 (1973)) (court must order affirmative remedy where
school board’s conduct "create[d] or contribute[d] to" racial identifia-
bility of schools). We adhere to the most common-sense meaning of
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 115
"vestige": it is a condition or occurrence causally related to the former
de jure system of segregation.

Because a school system’s duty to eliminate such vestiges is
restricted by the availability of practicable measures for doing so, see
Freeman, 503 U.S. at 492, it is also incumbent on us to consider prac-
ticability. In determining the practicability of further measures, the
district court must look to numerous indicia of the system’s operation.
Practicability depends on the feasibility of the proposed method, from
both a financial and an administrative perspective. Cf. id. at 481-83,
493-97. Whether a measure is practicable also depends on whether it
is "directed to curing the effects of the specific violation," and
whether it is likely to do so. Id. at 497.

Our duty, in reviewing Judge Potter’s decision, see Capacchione,
57 F. Supp. 2d at 228, is clear. We must examine each Green factor
and ascertain whether unitary status has been achieved with respect
to any or all of them. Because the district court declared the entire
CMS school system to have achieved unitary status, we must assess,
with respect to each Green factor, whether the Board has complied,
in good faith, with the desegregation decree and whether the vestiges
of segregation have been eliminated to the extent practicable. See
Freeman, 503 U.S. at 492 (citing Dowell, 498 U.S. at 249-50). If the
school system has not achieved unitary status in its entirety, then,
consistent with Freeman, we also must weigh the degree of interre-
latedness existing between the various Green factors.

B.

By way of introduction to our analysis of this case, we first address
a fundamental flaw in the district court’s proceedings — a flaw aris-
ing from the district court’s failure to give any consideration to a
remedial plan sought to be admitted as evidence by CMS. Following
the filing of the Capacchione plaintiffs’ Complaint in Intervention,
the Board undertook to produce a comprehensive analysis of whether
vestiges of de jure segregation existed in CMS and whether any such
vestiges could be practicably remedied. The Board analyzed available
data and identified several vestiges remaining; then, in line with the
mandate of Freeman, the Superintendent of CMS developed a plan
containing practicable remedial steps. The Board independently
116 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
reviewed this plan and, on March 30, 1999, adopted the "Charlotte-
Mecklenburg Schools’ Remedial Plan to Address the Remaining Ves-
tiges of Segregation" (the "Plan" or "Remedial Plan"). J.A. 11029.

Consistent with pretrial deadlines, CMS filed the Remedial Plan
with the district court as a potential exhibit at trial. J.A. 11028. At the
pretrial conference conducted on April 13, 1999, the Capacchione
plaintiffs moved in limine to exclude the Remedial Plan. In essence,
the Capacchione plaintiffs maintained that the trial had been bifur-
cated into two phases and that only unitary status was at issue in the
first phase. They further maintained that the Remedial Plan contained
proposed remedies that could only be implemented if CMS was deter-
mined not to have achieved unitary status. Because the unitary status
question had not yet been resolved, they claimed that the Remedial
Plan (which the Capacchione plaintiffs characterized as a damages
report) was irrelevant.

In opposing exclusion of the Remedial Plan, CMS and the Swann
plaintiffs relied on the Supreme Court’s Freeman analysis. J.A. 1421.
Specifically, they asserted that each unitary status determination
encompassed in the first phase of the trial turned on "whether the ves-
tiges have been remedied to the extent practicable." Id. (emphasis
added). The Remedial Plan, they claimed, was not merely relevant,
but crucial, to establishing both the existence of vestiges of segrega-
tion and the practicability of remedial measures.

Judge Potter responded with two rulings. First, Judge Potter
explained in assessing whether CMS had achieved unitary status that
he believed Freeman required him to consider just one thing: "only
. . . what CMS has done, not what it may do in the future." See Order
of April 14, 1999 at 4. Second, based on this understanding of Free-
man and the unitary status test, Judge Potter concluded that the Reme-
dial Plan was irrelevant: "If the Court later determines that additional
remedial measures are needed, it may consider the plan. Until that
time comes, however, the Court will not get mired in the complex
details and mechanics of a proposed plan." Id. at 5.6
6
Judge Potter also chided CMS for proffering the Remedial Plan "after
the deadline for fact discovery and expert witness discovery had
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 117
We believe Judge Potter erred in both of these rulings. First, he
misapprehended Freeman and its test for unitary status. At the outset,
Freeman explicitly rejects, as a matter of law, the very analysis
adopted by the district court. That is, under Freeman, a district court
must consider (1) compliance with prior orders (i.e., "what CMS has
done"), and (2) whether vestiges have been eliminated to the extent
practicable (i.e., "what [CMS] may do in the future"). See Freeman,
503 U.S. at 491; see also Order of April 14, 1999 at 4. By construing
Freeman’s unitary status test to include the former ("what CMS has
done") but not the latter ("what [CMS] may do in the future"), Judge
Potter erred as a matter of law.

The Remedial Plan directly addresses the latter inquiry, and it does
so in an apt, informed manner, relying on the considered opinions of
highly capable professionals retained to analyze the latest available
data. In other words, the district court’s second reason for excluding
the Plan — relevancy — also fails to withstand scrutiny.7 There is no

expired." On the contrary, CMS fulfilled all of its duties under the fed-
eral rules, appropriately supplementing its responses to discovery
requests as soon as the Remedial Plan had been adopted. Furthermore,
a more precipitant proposal could not have incorporated the various
expert perspectives developed during discovery. A similar plan submit-
ted earlier in the course of the litigation necessarily would have been
based largely on speculation and supposition, and therefore would have
been far less useful and pertinent. As it was, the Plan was tendered in
advance of the non-jury trial, and, of great significance, almost five
months before the district court issued its decision. Neither the court nor
the parties could have been inconvenienced by the necessary timing of
the Remedial Plan’s submission.
7
Taking the district court at its word that the only question before it
initially was the extent of the Board’s compliance with the prior desegre-
gation orders, the Remedial Plan was nonetheless highly relevant for
even that purpose. The ease with which some of the proposed Plan reme-
dies could be realized, e.g., merely distributing available funding to
address the stark disparity in basic resources such as instructional materi-
als and media centers, see J.A. 11040, strongly suggests that the Board
had not fully implemented the long-standing dictates of the prior orders.
The court nonetheless observed that "while the goal of perfect compli-
ance with court orders has remained elusive, no evidence has been pre-
118 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
doubt that Judge Potter had wide discretion on this issue, but rele-
vancy is a fluid concept under the Federal Rules of Evidence. See
Fed. R. Evid. 401 (defining relevant evidence as "having any ten-
dency to make the existence" of any material fact "more probable or
less probable than it would be without the evidence"). Consequently,
relevancy typically presents a rather low barrier to admissibility. See,
e.g., United States v. Van Metre, 150 F.3d 339, 349 (4th Cir. 1998)
(citing United States v. Powers, 59 F.3d 1460, 1465 (4th Cir. 1995)).

However, we need not rely on the minimal threshold encompassed
in the test for relevancy because this Remedial Plan would be relevant
under any reasonable test. The Remedial Plan identified record evi-
dence (including the deposition testimony of several experts) support-
ing the Board’s belief that vestiges of de jure segregation in CMS
remain apparent in (1) faculty assignment and quality, (2) physical
facilities and the allocation of instructional resources, (3) student
achievement, and (4) student assignment. More importantly, the
Remedial Plan detailed specific steps that the Board proposed to
undertake over the course of the ensuing five years "with a goal of
achieving unitary status at that time." J.A. 11029.

Without a doubt, federal courts possess the final word in deciding
whether a particular school system is operating within the parameters
of the Constitution. Appreciable weight must be given, however, to
the views of those selected by the community to administer the sys-
tem. See Dowell, 498 U.S. at 248 (noting specialized knowledge pos-
sessed by local school officials).8 In refusing to consider the Plan, the

sented that school authorities were guilty of easily correctable errors."
Capacchione, 57 F. Supp. 2d at 283. To the contrary, the Plan thoroughly
documented the Board’s failings and the facility with which they could
be rectified. The district court simply chose to ignore this highly relevant
evidence.
8
Though we need not grant CMS the same deference afforded the pro-
mulgations and adjudications of a federal administrative agency, the for-
mal declarations of its governing Board "do constitute a body of
experience and informed judgment to which courts and litigants may
properly resort for guidance." Ritter v. Cecil County Office of Housing
& Community Dev., 33 F.3d 323, 328 (4th Cir. 1994) (quoting Skidmore
v. Swift & Co., 323 U.S. 134, 140 (1944)).
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 119
district court erroneously failed to accord the Board’s official position
any weight, much less the respect that it was due.

That the district court so completely disregarded this crucial evi-
dence is telling. Nonetheless, ever mindful of the deference accorded
the factfinder, we embark upon the task of examining the court’s con-
clusions.

1. Student assignment

Of all the Green factors, the most prominent is the degree of racial
imbalance in student assignment. Freeman, 503 U.S. at 474. Unifor-
mity in the racial composition of a given school was the hallmark of
official discrimination, "for under the former de jure regimes racial
exclusion was both the means and the end of a policy motivated by
disparagement of, or hostility towards, the disfavored race." Id. Court-
ordered desegregation was designed to meet the enemy head-on; the
long-term stability of attempts at racial balancing in student assign-
ment is often seen as the most conspicuous indication of the courts’
success (or lack thereof) in combating the underlying societal evil.

The fundamental questions before us are whether present racial iso-
lation in CMS may be a vestige of the former dual system, and, if so,
whether there are practicable measures CMS could take to reduce or
eliminate that isolation. In considering these questions, we are bound
to focus particularly on the Board’s record of compliance with the
district court’s desegregation orders. See id. at 492 (citing Dowell).
Because significant and growing racial imbalances in student assign-
ment do exist in CMS, because the Board for decades has failed to
comply with certain specific decrees of the district court (particularly
regarding the siting of new schools), because these failures may have
contributed to current racial isolation, and because future compliance
might practicably reduce this racial isolation, we would vacate the
district court’s finding that CMS has achieved unitary status with
respect to student assignment.

a.

In the wake of the 1970 desegregation order, virtually all of the
120 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
schools in CMS operated in racial balance for a considerable time. By
1998-99 however, nearly thirty percent of the schools in the system
had become racially identifiable.9 Of the 126 schools included in the
CMS desegregation plan, twenty-three are identifiably black and thir-
teen more are identifiably white. J.A. 11587. Further, virtually all of
the identifiably black schools are located in either the inner city or in
the immediate northwest-to-northeast suburbs, the areas of Mecklen-
burg County with the highest concentration of African-Americans. In
stark contrast, all thirteen of the identifiably white schools are found
in the extreme northern and southern areas of the county, both of
which (and particularly the latter) have seen dramatic increases in
white population during the past thirty years. The trend in CMS
toward resegregation of its schools has accelerated markedly since the
move to de-emphasize satellite zones and mandatory busing in 1992.
In the last seven years, the number of CMS African-American stu-
dents who attend racially identifiable schools (now almost three in
ten) has risen fifty percent. J.A. 9589.

Indisputably, from 1981 until 1997, the CMS school system went
through significant demographic changes. For example, the total pop-
ulation of Mecklenburg County has grown from 354,656 in 1970 to
613,310 in 1997. J.A. 16247. Almost 100,000 children attend CMS,
making it the twenty-third largest school system in the country. J.A.
7107. During the period from 1970 to 1997, the black school-age pop-
ulation (ages 5 through 17) in the county has increased by approxi-
mately 10,000. J.A. 16247. Over the same period, the corresponding
white school-age population has decreased by approximately 3,000,
id., and by 1997, African-Americans comprised 34 percent of the
county’s school-age population, the total of which numbered approxi-
mately 108,600. Evidence before the district court revealed that, since
1970, the growing African-American population has migrated out-
ward from the inner city into formerly white suburbs. In turn, many
9
Judge McMillan’s final desegregation order mandated, inter alia, that
no school should become "racially identifiable." Swann, 311 F. Supp. at
268. Judge Potter interpreted the phrase synonymously with "racially
imbalanced," which, as noted within, describes a school with an African-
American student population deviating more than fifteen points in either
direction from the county-wide norm. See Cappachione, 57 F. Supp. 2d
at 246.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 121
white citizens who formerly populated the city’s periphery have
moved even farther into the county’s outlying reaches. Though parts
of the county have become more integrated as the result of these
shifts, a disproportionately large number of African-Americans still
reside in contiguous clusters generally north and west of the down-
town area.

The threshold issue to be addressed is whether the thirty-six
racially identifiable schools in CMS represent a vestige of segregation
— that is, whether the present racial isolation is causally related to the
prior system of de jure segregation. The Swann plaintiffs argue, and
CMS agrees, that current racial isolation, like the racial isolation of
the 1960s and 1970s, results both from past inequities that, to some
extent, have persisted to this day, and from the Board’s failure to
comply with certain specific directives in the remedial decrees in this
case.

Because CMS has not previously been adjudged to have achieved
unitary status in student assignment, we are bound under Swann to
presume that the current racial imbalance in the school population
constitutes a continuing vestige of segregation. 402 U.S. at 26. The
Capacchione plaintiffs have the burden of showing that the present
existence of predominantly one-race schools in CMS "is not the result
of present or past discriminatory action." Id.; see also Riddick, 784
F.2d at 535.

Our unwillingness to conclude that CMS is unitary with respect to
student assignment centers on the Board’s failure to comply with
court orders regarding selection of sites for the construction of new
schools. The role of school siting in achieving sustainable desegrega-
tion should not be underestimated. In fact, the importance of site
selection has been apparent since the early stages of this case. As the
Supreme Court explained in 1971:

In the past [site selection] choices . . . have been used as a
potent weapon for creating or maintaining a state-segregated
school system. . . . [S]chool authorities have sometimes,
since Brown, closed schools which appeared likely to
become racially mixed through changes in neighborhood
residential patterns. This was sometimes accompanied by
122 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
building new schools in the areas of white suburban expan-
sion farthest from Negro population centers in order to
maintain the separation of the races with a minimum depar-
ture from the formal principles of "neighborhood zoning."
Such a policy does more than simply influence the short-run
composition of the student body of a new school. It may
well promote segregated residential patterns which, when
combined with "neighborhood zoning," further lock the
school system into the mold of separation of the races. . . .
In ascertaining the existence of legally imposed school seg-
regation, the existence of a pattern of school construction
and abandonment is thus a factor of great weight.

Swann, 402 U.S. at 21.

Subsequent to the Supreme Court’s decision in Swann, Judge
McMillan specifically ordered that site selection for new schools
could not "be predicated on population trends alone." 379 F. Supp. at
1107. New schools were "to be built where they can readily serve
both races." Id. In the 1979 Martin decision,10 Judge McMillan
devoted an entire section of his opinion to demonstrating that "con-
struction, location and closing of school buildings continue to pro-
mote segregation." 475 F. Supp. at 1329. Judge McMillan explained
that "[t]he location of schools plays a large if not determinative role
in . . . insuring that any given assignment and feeder plan will provide
meaningful desegregation, rather than just the predictably short lived
appearance of desegregation." Id. at 1332.

In the years since this decree was issued, CMS has built twenty-
five of twenty-seven new schools in predominantly white suburban
communities. In the mid-1980s, CMS adopted a formal policy of
10
Judge Potter incorrectly declared that "Martin was not a unitary sta-
tus hearing[.]" Capacchione, 57 F. Supp. 2d at 250. In fact, as the accom-
panying text indicates, the white parents in Martin contended, as the
Capacchione plaintiffs do today, that CMS had achieved unitary status.
Intervening African-American parents, like those herein, maintained to
the contrary. In actuality, there is little difference between today’s case
and Martin, and Judge McMillan’s findings in the latter are as binding
on the parties as any others made in the course of this litigation.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 123
building "midpoint" schools — schools located midway between
black and white population centers. There is little evidence, however,
to suggest that CMS faithfully adhered to this policy. Rather, record
evidence strongly indicates that the policy influenced the site selec-
tion for, at most, four of the twenty-seven new schools. See J.A.
15404-06. Meanwhile, as we discuss infra, there is substantial evi-
dence that CMS has allowed many of its older school facilities in the
city — schools attended in disproportionate numbers by African-
American students — to fall into a state of disrepair.

The Board’s record of building the great majority of its new
schools on the predominantly white suburban fringe of the county
supports two possible conclusions. On one hand, CMS could have
been responding to demographic reality — a demand for new class-
rooms in areas of high population growth (although we note that the
number of white students in CMS has decreased since 1970, while the
black student population has greatly increased). On the other hand,
the Board’s pattern of school construction could have facilitated or
even hastened white flight to the suburbs. As the Supreme Court
explained in Swann, "[p]eople gravitate toward school facilities, just
as schools are located in response to the needs of people. The location
of schools may thus influence the patterns of residential development
of a metropolitan area and have important impact on composition of
inner-city neighborhoods." 402 U.S. at 20-21. The Board’s school sit-
ing policies could well evidence its lack of political will in the face
of pressure to abandon desegregative policies — pressure from fami-
lies who "are concerned about the racial composition of a prospective
school and [who] will make residential decisions accordingly." Free-
man, 503 U.S. at 513 (Blackmun, J., concurring).

There is certainly no evidence that CMS has intentionally sought,
through its school siting policies, to "lock the school system into the
mold of separation of the races" in the way that the Supreme Court
described in Swann, 402 U.S. at 21. But the actual choices the Board
has made with regard to school siting may in fact be quite similar to
the "pattern of school construction and abandonment" described by
the Court, with the actual effect that the Court feared of "lock[ing] the
school system" into a condition of racial isolation. 402 U.S. at 21. We
cannot conclude, at least in the absence of further fact-finding, that
CMS, in choosing sites for new schools, has pursued "meaningful
124 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
desegregation, rather than just the predictably short lived appearance
of desegregation." 475 F. Supp. at 1332.

Rather, the Board’s practice of siting new schools such that they
could not reasonably be expected to serve a racially balanced student
population and Judge McMillan’s determination that this practice, in
the past, represented the school system’s failure to eliminate the ves-
tiges of segregation, together raise a strong inference that those ves-
tiges remain today. When this inference is viewed in combination
with the burden borne by the Capacchione plaintiffs to show that cur-
rent racial imbalances have no causal link to past discrimination, we
are compelled to conclude that a remand to the district court is
required.

Although we defer to a district court’s findings of fact unless
clearly erroneous, Judge Potter’s error here came in his application of
the legal standard to the evidence regarding the Board’s school siting
policies. Judge Potter found that (1) CMS had not discriminated on
the basis of race in choosing sites for new schools and that (2) CMS
had incorporated racial diversity as one of its factors in site selection.
Even assuming arguendo that both findings are not clearly erroneous,
neither is sufficient to support the legal conclusion that in siting new
schools CMS acted in compliance with the governing court orders and
Constitution to eliminate the vestiges of segregation to the extent
practicable.

"To fulfill this duty, school officials are obligated not only to avoid
any official action that has the effect of perpetuating or reestablishing
a dual school system, but also to render decisions that further desegre-
gation and help to eliminate the effects of the previous dual school
system." Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090,
1095 (11th Cir. 1992) (citing Pitts v. Freeman, 755 F.2d 1423, 1427
(11th Cir. 1985)). Therefore, CMS had to do more than merely select
sites for new schools on a nondiscriminatory basis. It had to do more,
too, than simply give some consideration to "diversity" in its selection
of sites. To the extent practicable, CMS had to site new schools
"where they can readily serve both races." 379 F. Supp. at 1107; see
also Swann, 402 U.S. at 21; Martin, 475 F. Supp. at 1329-32. Judge
Potter never found that CMS had met this standard, and as outlined
within, there is substantial record evidence that CMS did not do so.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 125
In accordance with Swann, the burden is on the Capacchione plain-
tiffs to prove that vestiges of past discrimination do not remain, or
that nothing can practicably be done to remedy them. We note that
Judge McMillan, in his last published decision in this case, clearly
evidenced his understanding both that CMS had not done all that it
could do in the area of school siting and that future school siting deci-
sions could practicably advance the process of desegregation. It was
thus incumbent on the Capacchione plaintiffs to demonstrate that
conditions in Charlotte and Mecklenburg County have changed suffi-
ciently such that school siting no longer represents a practicable
opportunity to eliminate the vestiges of segregation.

The Swann plaintiffs have identified additional areas in which
CMS has fallen short of its obligations under the court orders. For the
life of the desegregation orders, CMS has consistently placed the
heaviest burden of mandatory busing on African-American students.
Currently, 80% of those students who ride the bus as a result of a
mandatory assignment are African-American. J.A. 11515. Judge
McMillan repeatedly ordered CMS to distribute this burden more
fairly. See 475 F. Supp. at 1339-40; 379 F. Supp. at 1103-04; 362 F.
Supp. at 1232-33. Yet, CMS has utterly failed to do so. In addition,
CMS has never developed an effective system for monitoring student
transfers to ensure that the overall effect of such transfers is not to
increase the racial imbalance in the system as a whole. Again, this
represents a failure to comply with the explicit instructions of the dis-
trict court. See 475 F. Supp. at 1337-38; 379 F. Supp. at 1103-04; 362
F. Supp. at 1229-30. We are troubled by these failings on the part of
CMS. They provide additional support for a conclusion that, in the
face of political pressure, CMS has not done all that it could do to
eliminate the vestiges of segregation.

Finally, the Board has itself taken the remarkable step of admitting
its noncompliance with prior orders in this case. A school board’s
frank acquiescence in a position inuring to its detriment (in this case,
the potential of ongoing judicial intervention), if not treated as con-
clusive, should at least be considered with the utmost gravity. Under
these circumstances, we have no difficulty in determining that the dis-
trict court’s conclusion that the Board’s level of compliance was "full
and satisfactory" should be vacated.
126 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
b.

If the vestiges of official discrimination have indeed been elimi-
nated to the extent practicable with respect to student assignment,
then there is little reason to prolong court supervision. In light of the
district court’s failure, however, to recognize the Board’s continuing
noncompliance with respect to student assignment — administered as
recently as twenty years ago in a manner reinforcing the once-official
notion that African-Americans are inferior — we have no confidence
in the court’s ultimate finding that these vestiges have now disap-
peared.

The district court neglected to determine whether, since Judge
McMillan’s decision in Martin, CMS has fulfilled its constitutional
and court-imposed obligations with regard to site selection for new
schools. Had the Board’s efforts been deemed lacking, the court
below should have proceeded to decide whether this failure contrib-
uted to the present condition of racial isolation in the school system.
If the district court then found that CMS had failed to live up to its
constitutional and judicially decreed obligations, and if that failure did
contribute to the present racial imbalances, then the court was bound
to further investigate whether proper site selection is a practicable
remedy for the lingering effects of the Board’s past discriminatory
practices. Only if proper site selection were not a viable option could
the district court have relinquished control over student assignment;
there would be nothing further that CMS could practicably do to elim-
inate the vestiges of the prior de jure system.

If, however, proper sites were found to be available, then student
assignment should have remained under the district court’s control. In
fashioning a remedy, the court might have directed, for example, that
most or all new schools constructed over the next several years be
located proximate to the inner city or in midpoint areas already inte-
grated residentially. Conversely, the district court might have con-
cluded that more flexibility is required because of real estate costs,
crushing demand in the suburban fringes, or for some other sufficient
reason. In this vein, the Board’s Remedial Plan could have been con-
sidered as a limited term remedy for the racial isolation that would
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 127
otherwise continue to exist until the Board’s newly redirected school
siting policies can begin to take effect.11

Should corrective action one day be deemed justified in this case,
some reasons will not be sufficient to deny African-American stu-
dents a remedy. For example, political pressure and perceived resis-
tance to change by certain groups in the community will not suffice.
Additionally, logistical barriers merely making "difficult" the trans-
port inward of outlying white students will likewise, if reasonably
surmountable, not be enough. Cf. Capacchione, 57 F. Supp. 2d at 253
(district court’s observation that "transport[ing] white students in
from satellite zones . . . is difficult given the rush hour traffic pat-
terns"). Although what is "practicable" need not extend to all that is
"possible," rectifying the grievous constitutional wrongs of the past
surely justifies reaching beyond the "difficult" or purely "problem-
atic."

2. Physical Facilities

After describing how CMS has allocated its physical facilities and
resources among its students, Judge Potter concluded that "the Swann
plaintiffs have failed to overcome the Court’s previous findings on
facilities by establishing the requisite discriminatory intent and causa-
tion." Id. at 267. Judge Potter’s mention of "previous findings" refers
to excerpts from various opinions and orders authored by Judge
McMillan:
11
The strategies described in the Remedial Plan would be of particular
help in deciding whether practicable measures are available. The Plan
proposes, among other things, to divide Mecklenburg County into three
to five demographically similar "clusters," within which students may
choose to attend any school, magnet or otherwise. Where the demand for
a given school exceeds the available room, spots would be assigned by
lottery based on factors such as proximity, sibling attendance, and racial,
ethnic, and economic diversity. The Plan also outlines a formal mecha-
nism to disseminate information regarding the enrollment process, and it
provides that the Board will work with the business community and local
government to secure subsidies for disadvantaged families wishing to
relocate to areas in which low-cost housing is scarce. See J.A. 11053-59.
128 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
April 1969 - "No racial discrimination or inequality is
found in the . . . . quality of the school buildings and equip-
ment. . . . Schools described by witnesses as ‘white’ ranged
well up and down on both sides of [the average per-pupil
expenditure], and schools described by witnesses as ‘black’
showed a similar variation." 300 F. Supp. at 1366.

August 1969 - "The defendants contended and the court
found in its April 23, 1969 order that facilities and teachers
in the various black schools were not measurably inferior to
those in the various white schools. It is too late now to
expect the court to proceed upon an opposite assumption."
306 F. Supp. at 1298.

October 1971 - "[T]he formerly black schools are not
shown nor suggested to be inferior in faculty, plant, equip-
ment or program." 334 F. Supp. at 625.

Toward the close of the prior proceedings in 1975 (and consistent
with the above), Judge McMillan awarded attorney’s fees to the
Swann plaintiffs as prevailing parties, "[e]xcept for the refusal of the
court to find in the plaintiffs’ favor . . . regarding adequacy of physi-
cal plants and equipment and teacher quality." Swann, 66 F.R.D. at
484.

Judge Potter acknowledged that no court "ha[d] [ ]ever granted uni-
tary status to CMS, nor . . . partially withdrawn supervision as to
facilities or any other Green factor." Capacchione, 57 F. Supp. 2d at
262. The court nevertheless relied on the above 1969 and 1971 find-
ings to release the Capacchione plaintiffs from their burden of prov-
ing CMS unitary with respect to facilities, stating that to proceed
otherwise would "defy logic." Id. at 263. Judge Potter thus accepted
the premise that Judge McMillan’s 1969 and 1971 findings "consti-
tute collateral estoppel and law of the case" regarding facilities,
"thereby shifting the burden to CMS and the Swann plaintiffs to show
discriminatory intent." Id. at 262.

The district court’s burden-shifting analysis was an error of law.
Once the existence of an unlawful dual school system has been estab-
lished and court supervision begun, it is presumed that racial dispari-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 129
ties arising during the period of intervention "are causally related to
prior segregation." School Bd. of the City of Richmond v. Baliles, 829
F.2d 1308, 1311 (4th Cir. 1987). Following the imposition of judicial
control, a party seeking to end the status quo bears the burden of over-
coming the presumption of causation. If this burden is met and the
school system is declared to have achieved unitary status as to the
particular factor at issue, the presumption ends. Id. Generally, in any
subsequent proceeding involving new allegations of disparate treat-
ment, the complaining party must show purposeful discrimination.
Riddick, 784 F.2d at 537 (concluding that Swann and its progeny
require proof of "discriminatory intent on the part of the school board
of a unitary school system" in order to resume court supervision).12

To be sure, the absence heretofore of any finding to the contrary
would have been an important consideration in determining whether
the Capacchione plaintiffs had proved CMS to have achieved unitary
status with respect to facilities. However, that Judge McMillan did not
intend his initial observations regarding facilities to be construed as
a finding of unitary status is obvious from his subsequent actions. In
1973, Judge McMillan assumed control over facilities and resources,
found inequities, and ordered CMS to remedy those disparities. See
Swann, 362 F. Supp. at 1235 (finding Double Oaks Elementary access
road still undeveloped two years after court’s identification of the
problem — "No $80,000,000 budget is so powerless."); id. (finding
Double Oaks library not restored to standards several years after fire);
id. at 1238 (ordering athletic facilities at West Charlotte High School
immediately upgraded to level comparable with other schools in the
county). We must conclude that the Board has been subject to the
court’s jurisdiction as to its facilities since at least 1973. See Dowell,
498 U.S. at 246 (school boards entitled to a "rather precise statement"
terminating a desegregation order).

The asserted lack of a prior adverse finding should not have been
determinative of the issue, especially as the district court in 1969 was
not focusing on a school system suddenly thrust into the judicial
12
However, if a district court retains jurisdiction over one or more
Green factors, it may, upon a proper showing, reassert control over a fac-
tor previously adjudged to have attained unitary status. Freeman, 503
U.S. at 508-09 (Souter, J., concurring).
130 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
arena, but was instead examining one that had been subject to court
supervision for nearly four years. Between the commencement of the
initial Swann lawsuit in 1965 and the district court’s first mention of
the facilities issue in April 1969, CMS closed sixteen black schools.
The Board’s en masse action gives rise to an almost undeniable infer-
ence that these schools were shut down because they were inferior,
and the timing also suggests strongly that the closures were prompted
by the judicial proceedings then underway.

Viewed in context, the most plausible conclusion is that the puta-
tive equality mentioned by the district court in 1969 and 1971 was
actually an endorsement of the steps that had been taken by the Board
to remedy the inequities in facilities. In any event, CMS could not be
said to have achieved unitary status absent a finding by the lower
court that the Board had "eliminated the vestiges of its prior discrimi-
nation," embodied in an "adjudicat[ion] . . . through the proper judi-
cial procedures." Georgia State Conference of Branches of NAACP v.
Georgia, 775 F.2d 1403, 1413 n.12 (11th Cir. 1985), quoted in
Dowell, 498 U.S. at 245 (noting distinction between school systems
operating in an unitary fashion and those that have achieved unitary
status, and observing that the former "could be called unitary and nev-
ertheless still contain vestiges of past discrimination").

Thirty-five years have passed since the Board first acted to equalize
its facilities, yet serious questions remain as to whether it has finally
realized that goal. Dr. Dwayne E. Gardner, an impressively qualified
educational planner and consultant, compiled an exhaustive report for
the Board in which he evaluated the suitability of its school facilities.13
Dr. Gardner examined and personally visited more than half of the
schools in CMS (including all of the high schools), analyzing a host
of factors affecting educational quality. For the purposes of his study,
Dr. Gardner divided the subject schools into three groups: (1) all
imbalanced-black schools; (2) all racially balanced schools in
imbalanced-black census tracts; and (3) each remaining high school,
along with a set of elementary and middle schools randomly selected
13
The district court found that the expert called on behalf of the
Capacchione plaintiffs, Dr. David J. Armor, could offer no reliable testi-
mony on the subject. See Capacchione, 57 F. Supp. 2d at 264.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 131
from the remaining schools and approximately equal in number to
those already included within the first two groups.

Each school in the study was assigned a composite score from 0-
100, indicating its worthiness. Schools scoring 44 or lower were, in
Dr. Gardner’s opinion, so deficient as to merit replacement, while
those with scores between 45-59 were classified as needing "major
improvements." Any school that scored 60 or above was "considered
to have the ability to serve the educational program adequately." J.A.
12174.

The results of Dr. Gardner’s study are troubling. The average score
for the forty Group 3 schools (racially balanced or imbalanced-white
in predominantly white or balanced areas) was 61.7. Although the
Group 3 data indicate a situation that is far from ideal, the ten Group
2 schools (racially balanced in predominantly black areas) fared much
worse, with an average score of 56.3. The scores of the twenty-three
Group 1 schools (imbalanced-black) were worse still, averaging just
53.3.14 At trial, Dr. Gardner confirmed that the disparities apparent
14
It has been famously said (by either Mark Twain or, earlier, Benja-
min Disraeli, depending on one’s source), "There are three kinds of lies
— lies, damned lies and statistics." A common difficulty in dealing with
statistics is illustrated by the district court’s analysis of Dr. Gardner’s
study. The court first noted that, of the four schools scoring in the lowest
category, two were in Group 1 and two were in Group 3. Capacchione,
57 F. Supp. 2d at 264-65. Next, the court observed that the two highest
ratings accorded elementary schools were again split between Groups 1
and 3. Id. at 265. Based on this selective culling of the data, the lower
court concluded that "the results of Dr. Gardner’s analysis do not show
disparities along racial lines." Id. at 264.
The forest that is CMS is not sufficiently mapped by the documenta-
tion of a few trees. We could accurately say, for example, that omission
from Group 1 of the brand-new elementary school referred to by the dis-
trict court as having one of the highest ratings would lower the Group 1
average by more than a full point. Or we could state without error that
seven of the twenty-three Group 1 schools (more than 30 percent) scored
below 50, while only five of the forty Group 3 schools (12.5 percent)
scored similarly. Indeed, we note that none of the Group 1 high schools
scored higher than 46, yet all those in Groups 2 and 3 scored at 50 or
132 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
from the above numbers were "substantial" with respect to the facili-
ties generally available to white and African-American children
attending CMS. J.A. 6196-99.

The anecdotal accounts of a number of witnesses effectively cor-
roborated Dr. Gardner’s conclusions. See, e.g., J.A. 4992 (testimony
of Board member Pamela R. Mange) (schools with "more severe"
problems tended to be predominantly black); J.A. 4769 (testimony of
Annelle Houk) ("[T]he schools that were in the worst repair and had
the poorest supply of resources . . . were on the west side and they
were predominantly populated by black students."). John A. Kramer,
co-chair of an advisory task force created by the Board, made formal
visits to several CMS schools in 1997. Among the locales on Mr.
Kramer’s itinerary were Elizabeth Lane Elementary, a predominantly
white school located in a prosperous suburban area of the county, and
Shamrock Gardens Elementary, a downtown school with an African-
American student population exceeding sixty percent. Mr. Kramer’s
descriptions of his visits contrasted sharply:

[T]o compare Elizabeth Lane Elementary as an example,
which is a relatively new school located in Matthews, I
walked into that school, I was overwhelmed because I had
never set foot in a school that was like that before. It was
clean, it was light and airy, it was a beautiful facility. . . .
My overwhelming feeling was, wow, I wish my kids could
go to this school. And another observation that was very
clear was that when I looked at the student body, it was vir-

above. Of course, one would rightly view this latter declaration with
some skepticism once it became known that there are but fourteen high
schools in CMS, only two of which were included by Dr. Gardner in
Group 1.
The pick-and-choose method gets us nowhere. The value of Dr. Gard-
ner’s research lies in the general conclusions that can be drawn from the
entirety of the data. The most obvious conclusion is that, as a general
matter, imbalanced-black schools in CMS are in worse shape than those
attended by larger proportions of white students. Once we accept that
premise, the lone remaining question of any significance is "Why?"
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 133
tually all white students, obviously, affluent, happy kids
having a great time.

On the other hand, my experience, for example, at Sham-
rock Gardens was shocking by comparison. I had never vis-
ited either one of these schools before, but to visit that
school which is in the inner city, the students are predomi-
nantly black students, it reminded me of a rundown 1950s
motel. There was literally no access to the rooms except by
outer walkways that were covered by rusted, dilapidated
overhead fixtures. . . . They were using closets and things
to teach children in. The carpets were stained and thread-
bare. . . . It just didn’t feel clean, it didn’t feel good. And
I can honestly say that as a parent, my heartfelt reaction was
relief that my children didn’t have to go to school there.

J.A. 6098-99. Even those Board members who voted to pursue a
determination of unitary status before the district court admitted that
disparity in facilities was a problem within CMS. J.A. 1817, 1820
(testimony of James H. Puckett); J.A. 1918-19 (testimony of John W.
Lassiter); J.A. 2095-96 (testimony of Lindalyn Kakadelis).

Although it seems reasonably clear that a racial disparity in facili-
ties exists in CMS, its cause is somewhat less apparent. The Capacch-
ione plaintiffs maintain that no discrepancies exist in CMS facilities,
and even if they do, such discrepancies are totally benign in origin.
Had the Capacchione plaintiffs proved their theory, we would be con-
strained to affirm the district court’s conclusion that unitary status has
been achieved with respect to the facilities factor. The district court,
however, required the Capacchione plaintiffs to prove nothing; it
instead erroneously placed the burden on CMS and the Swann plain-
tiffs to affirmatively show that the present inequities in facilities are
a vestige of official discrimination, i.e., causally related to the prior
de jure system of segregation. Capacchione, 57 F. Supp. 2d at 267.

The district court erred as a matter of law in foreclosing the devel-
opment of evidence relevant to a proper vestige analysis. We would
therefore remand this portion of the case to permit the parties and the
district court to elicit the additional facts necessary to fully consider
the question of causation with respect to the current racial inequities
134 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
in facilities. Because CMS has not been previously adjudged to have
attained unitary status, we would charge the Capacchione plaintiffs
on remand with the burden of demonstrating that the vestiges of past
de jure racial discrimination in the context of the school system’s
facilities have been eliminated "root and branch" to the extent practica-
ble.15

15
The district court made no findings as to whether practicable reme-
dies exist with respect to facilities. In light of the court’s refusal to con-
sider the Board’s proposed five-year Remedial Plan, it cannot be
determined in the first instance whether practicable remedies to the cur-
rent disparities exist. We note, however, that the Remedial Plan specifi-
cally identifies disparities associated with race in baseline needs for
schools’ instructional materials and media centers, and the lack of any
standardized criteria to evaluate the adequacy of these resources. J.A.
11037-38. The Plan proposes to achieve uniformity in resources across
schools by imbalanced allocations that reflect the schools’ current
resource gaps and imbalances. J.A. 11038-40. Likewise, the Remedial
Plan identifies disparities associated with race in the instructional facili-
ties, and proposes building replacements or renovating existing facilities
for sixteen schools that are either racially identifiable as black or are
located in a predominantly black census tract. J.A. 11041-42. Uniform
building maintenance standards and procedures are proposed. J.A.
11043. Monitoring, evaluation, and development of appropriate criteria
for evaluation are also proposed to maintain equity across the school sys-
tem’s resources and facilities. J.A. 11038-40, 11042-43.
BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 135
Volume 4 of 4
136 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
3. Transportation

“School bus transportation was at the epicenter of the original
Swann litigation, specifically the degree to which involuntary busing
could be used to implement a remedial desegregation decree. The
Supreme Court in Swann, of course, approved busing as a "normal
and accepted tool of educational policy," 402 U.S. at 29, at least to
the extent that the rigors of time and distance would pose little risk
to the affected students’ health or to the educational process as a
whole. See id. at 30-31. In the intervening twenty-nine years, CMS
has taken the Court’s license to heart; during the 1998-99 school year,
five of every six students in the school system rode a school bus.

Upon review of the Green factor of transportation, Judge Potter
concluded that "a court may grant unitary status when transportation
is provided on a non-discriminatory basis." 57 F. Supp. 2d at 267. In
other words, according to the district court, a school system achieves
unitary status with respect to transportation once it provides access to
transportation non-discriminatorily to black and white children.
Because CMS provides all children, regardless of race, access to
transportation, Judge Potter concluded that CMS had achieved unitary
status with respect to this Green factor.

We must be mindful of the Supreme Court’s command to consider
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 137
the interrelatedness of the various Green factors. See Freeman, 503
U.S. at 491 (court must consider "whether retention of judicial control
is necessary or practicable to achieve compliance with the decree in
other facets of the school system"). In this context, we can only con-
clude that the Green factor of transportation is so inextricably inter-
twined with the Green factors of student assignment and facilities that
vacatur on these latter issues would also mandate vacatur on the former.16

The Swann plaintiffs maintain and offer substantial record evidence
that the burdens of busing for desegregation purposes are being borne
disproportionately and unfairly by African-American children. Brief
of Appellants at 31-32, 33-35; see Swann, 306 F. Supp. at 1298 (dis-
trict court commenting in initial stages of remediation that it did not
intend "to endorse or approve any future plan which puts the burden
of desegregation primarily upon one race"). Eighty percent of stu-
dents who currently ride the bus as a result of a mandatory assignment
are African-American. Judge Potter rejected any consideration of this
16
Pursuant to Freeman, the district court accepted the invitation of the
Board and the Swann plaintiffs to consider whether vestiges of official
discrimination remain concerning the ancillary factors of student
achievement and student discipline. The court found in the negative, con-
cluding that CMS had attained unitary status in both areas. We agree that
the district court’s judgment regarding student discipline should be
affirmed.
With respect to the ancillary factor of student achievement, however,
we would vacate Judge Potter’s holding that unitary status had been
achieved. Judge Potter found that disparities in student achievement
existed but that the disparities (1) were not vestiges of de jure segrega-
tion and (2) could not be remedied by any practicable measure. Capacch-
ione, 57 F. Supp. 2d at 280-81. An analysis of disparities in student
achievement may only be appropriate once the school system has
achieved unitary status in other respects. See Swann, 306 F. Supp at 1309
("Until unlawful segregation is eliminated, it is idle to speculate whether
some of this [achievement] gap can be charged to racial differences or
to ‘socio-economic-cultural’ lag."). At the very least, student achieve-
ment in this case is inextricably intertwined with the other Green factors,
particularly student assignment. Therefore, for reasons akin to those dis-
cussed in our analysis of the Green factor of transportation, we would
likewise conclude that the student achievement factor requires further
consideration.
138 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
evidence, holding that a school district has achieved unitary status
with respect to transportation as soon as it is provided on a race-
neutral basis. The evidence, however, demonstrates the close interre-
lationship of transportation with student assignment. In view of our
conclusion that CMS is not yet unitary with regard to student assign-
ment, we think it is premature to relinquish control over transporta-
tion at this stage.17

4. Faculty

Our analysis of this factor must take two concerns into account. We
must determine both whether CMS has generally eliminated the ves-
tiges of discrimination in faculty assignment, and whether the teach-
ers assigned to predominantly black schools are of comparable quality
to those teaching in schools with large numbers of white students.18
See Swann, 311 F. Supp. at 268 (final desegregation order directing
that the racial composition of faculty assigned to each school reflect
that of the system at large, with the proviso that "the competence and
experience of teachers in formerly or recently black schools will not
be inferior to those in the formerly or recently white schools in the
system").
17
While the Remedial Plan does not specifically address transportation
as a Green factor, it does propose siting new schools in a manner calcu-
lated to promote racial balance in CMS. J.A. 11042. If CMS chooses
sites for new schools that are more accessible to the majority of the black
population, we presume that fewer black students would have to be
bused to the suburbs for purposes of desegretation. A new approach to
school siting would address the vestiges of past discrimination, if such
vestiges remain, in those areas in which CMS has not yet achieved uni-
tary status.
18
The district court considered a particular school to be racially imbal-
anced if its proportion of African-American students varied more than
fifteen percent from the district-wide average. In 1998-99, African-
Americans represented 42.7% of the elementary students in CMS, 41.7%
of the middle school students, and 39.6% of the high school students.
J.A. 11574. An elementary school would therefore be designated
imbalanced-black if more than 57.7% of its students are African-
American; conversely, if African-Americans constituted less than 27.7%
of the student body, the school would be designated imbalanced-white.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 139
The evidence at trial demonstrated that CMS assigned its faculty
in substantial compliance with the desegregation order at least until
1992, when school principals were granted the leeway to actively
recruit new teachers without the strictures of maintaining a specific
racial proportion. As a result of this gravitation from centralized to
site-based control of faculty assignments, a trend away from propor-
tionality has emerged. In 1998-99, one-third of the 126 schools cov-
ered by the remedial decree had a proportion of black faculty
deviating more than ten percent from the system-wide norm (about
twenty-one percent). Prior to the 1992 change in policy, no more than
one-sixth of the schools had ever been so situated.

We are satisfied that the current trend toward faculty imbalance is
neither a vestige of the dual system nor the product of subsequent dis-
crimination. There is no evidence that this trend results from legal or
administrative compulsion within CMS or from perceptions about the
desirability or undesirability of teaching positions in schools that
serve students of predominantly one race. In short, we do not perceive
a causal relationship between past de jure segregation and the present
assignment of faculty members to schools within CMS.19

Nor do we think that this trend toward more racially imbalanced
faculties has resulted in disparities in the quality of teaching, as mea-
sured by the instructors’ years of experience and post-graduate work.
Indeed, there is no significant difference in experience between facul-
ties at imbalanced-black schools as compared to those that are
imbalanced-white. Faculties at black schools are about one year less
experienced than the district-wide average, while faculties at white
19
Even if the pattern of faculty assignments were somehow shown to
be a vestige of past official discrimination, the evidence before the dis-
trict court casts substantial doubt upon the Board’s ability to effect a
practicable remedy. See Capacchione, 57 F. Supp. 2d at 258-59:
CMS runs the risk of losing significant numbers of teachers if its
faculty assignment policies become too restrictive. . . . Another
practical problem faced by the district is the fact that it must con-
stantly hire thousands of new teachers in the midst of a national
teacher shortage . . . . [which] is especially pronounced with
regard to black teachers, particularly in this region of the coun-
try.
140 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
schools are correspondingly more seasoned. This disparity may
arouse some initial concerns, until one is informed that the typical
CMS teacher has spent more than ten years in the classroom. The
upshot is that black and white students alike are, with no meaningful
distinction, enjoying the benefits of their teachers’ substantial experi-
ence.

The difference in post-graduate education between black-school
and white-school faculties is more pronounced. For every three teach-
ers holding advanced degrees who ply their craft at imbalanced-white
schools, there are only two similarly qualified teachers assigned to
schools that are imbalanced-black. Compared to the district average,
white schools have a somewhat larger proportion of these highly
trained instructors, while the allotment granted to black schools is
slightly less than the norm.

Although these facts give us reason for concern, we think it impru-
dent to disturb the district court’s conclusion that the trial evidence
affirmatively disclosed no link between past discrimination and the
current asymmetry. Most revealing on this point is that, until now, the
issue of teacher quality within CMS has not been contested. The 1970
desegregation order mandating equal competence and experience in
faculty assignments was not meant to remedy disparities then exist-
ing, but was instead intended to caution against future imbalances. In
the intervening thirty years, there is little indication that CMS has
neglected to heed the warning inherent in that order. We therefore
agree that the district court did not clearly err in concluding that the
developing disparities in teacher assignments and any (perhaps super-
ficial) deficiency in the quality of instruction currently afforded
African-American children are unrelated to the de jure segregation
once prevalent in the school system.20

20
Although the Board’s official position, as outlined in its Remedial
Plan, is that remediable vestiges of de jure segregation do remain as to
faculty assignments and quality, the clear weight of the evidence is to the
contrary. The district court’s failure to consider the Plan was therefore
harmless in this narrow respect.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 141
5. Staff

In substantially the same manner as it spoke to the allocation of
teachers, the final desegregation order provided that "the internal
operation of each school, and the assignment and management of
school employees, of course be conducted on a non-racial, non-
discriminatory basis." Swann, 311 F. Supp. at 269. Inasmuch as the
Swann plaintiffs raised no challenge to the school system’s compli-
ance with the desegregation order in this regard, the court below
found CMS to have achieved unitary status with regard to its support
staff. We agree that this aspect of the district court’s judgment should
be affirmed.

6. Extracurricular activities

According to the evidence at trial, African-American students in
CMS participate in athletics and hold class office at a rate proportion-
ate to their numbers. These same students lag far behind, however,
when it comes to participating in co-curricular clubs and honors pro-
grams. J.A. 11634. However, the scope of our inquiry concerning
extracurricular activities is limited. We need only determine whether
the school system permits its students equal access to extracurricular
activities, without regard to race. Coalition to Save Our Children v.
State Bd. of Educ. of Delaware, 90 F.3d 752, 768-69 (3d Cir. 1996)
(citation omitted); see also Swann, 402 U.S. at 18-19 ("[T]he first
remedial responsibility of school authorities is to eliminate invidious
racial distinctions. With respect to such matters as transportation, sup-
porting personnel, and extracurricular activities, no more than this
may be necessary. . . . In these areas, normal administrative practice
should produce schools of like quality, facilities, and staffs.").

The criterion of equal access is surely satisfied in this regard. Par-
ticipation in honors programs and co-curricular clubs is strictly volun-
tary, and there is no evidence that the lack of participation by African-
American students in certain activities reflects the efforts of CMS to
exclude them. We discern no error in the district court’s conclusions
regarding this Green factor.

C.

Pursuant to the foregoing, we agree that the district court should be
affirmed in its determination of unitary status with respect to faculty,
142 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
staff, extracurricular activities, and student discipline. However, we
believe that the court’s judgment should be vacated and the case
remanded for further consideration in the areas of student assignment,
facilities, transportation, and student achievement.

III.

We now turn to the question of whether the Board’s adoption of
the expanded magnet schools program with its race-conscious assign-
ment policy violates the Constitution. We conclude that it does not.21
See also Wilkinson Op. at 72-75.

At the outset, we note that it is undisputed that this expanded mag-
net schools program differs in critical respects from all race-based
student assignment plans that have been held to be in conflict with the
Equal Protection Clause. Unlike school districts found to have vio-
lated the Constitution, CMS adopted the challenged program while
operating a dual, segregated school system, under a myriad of court
orders commanding the Board to eliminate the unlawful segregation.

The court orders — the public record attests to their numerosity
and demands — require CMS to use its expertise and best efforts to
desegregate its schools promptly. The federal court repeatedly
directed the school board to employ its "full ‘know-how’ and
resources" to use "any means at [its] disposal" to do away with the
unconstitutionally segregated school system. Swann, 311 F. Supp. at
269; accord Swann, 318 F. Supp. at 802 (characterizing this directive
as the "most important single element" of its order); see also Swann,
402 U.S. at 15 ("[S]chool authorities are ‘clearly charged with the
affirmative duty to take whatever steps might be necessary to convert
to a unitary system in which racial discrimination would be elimi-
nated root and branch.’") (quoting Green, 391 U.S. at 437-38)
(emphasis added); Swann, 379 F. Supp. at 1105 (giving CMS the
authority to resolve "the sizeable continuing problems yet remaining
. . . by spontaneous action by staff or board"); Swann, 306 F. Supp.
21
We review the district court’s factual findings for clear error and its
legal conclusions de novo. See Freeman, 503 U.S. at 474; United States
v. Texas, 158 F.3d 299, 306 n.8 (5th Cir. 1998); Little Rock Sch. Dist.
v. North Little Rock Sch. Dist., 109 F.3d 514, 516 (8th Cir. 1997).
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 143
at 1297 (leaving "[t]he choice of how to do the job of desegregation"
to CMS, and noting it "has wide discretion in choosing methods")
(emphasis added); Swann, 300 F. Supp. at 1360 (providing CMS with
authority "to consider all known ways of desegregation") (emphasis
added). Accord Freeman, 503 U.S. at 485 ("The duty and responsibil-
ity of a school district once segregated by law is to take all steps nec-
essary to eliminate the vestiges of the unconstitutional de jure
system.") (first emphasis added).

Nor is there any doubt that at the time CMS adopted the expanded
magnet schools plan, it was not a unitary school system. This is
because even if Judge Potter did not err in decreeing that CMS has
now achieved unitary status (and we believe he did), prior to his deci-
sion, no court had ever determined that CMS had attained unitary sta-
tus. As the Capacchione plaintiffs concede, Judge Potter’s decision
— not some earlier event — "terminated [the] injunction" issued by
Judge McMillan and affirmed by the Supreme Court. Brief of Appel-
lees at 3.

Judge Potter properly acknowledged both the governing court
orders and the fact that the remedial measures CMS took pursuant to
them, including expansion of its magnet schools program, could not
be analyzed as if taken by a "de facto" unitary school district. See
Capacchione, 57 F. Supp. 2d at 285 ("The Court finds no legal basis
for a finding of de facto unitary status that would abrogate CMS’s
immunity retroactively. In other words, the termination of court
supervision cannot ‘relate back’ to an earlier time."). Yet, notwith-
standing CMS’s undisputed status as a dual school district under mul-
tiple court orders to desegregate its schools, the judge held that the
Board’s adoption of the expanded magnet schools program violated
the Equal Protection Clause. Furthermore, he found this constitutional
violation rendered CMS liable to the Capacchione plaintiffs for dam-
ages and enormous attorney’s fees.

The Capacchione plaintiffs seek to uphold that ruling on several
grounds. First and principally, they contend that the Board’s increased
reliance on magnet schools constituted a "voluntary desegregation
plan implemented to counteract demographic change," rather than a
good faith effort to eliminate the vestiges of discrimination as
required by the court orders governing this case. Second, they argue
144 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
that the expanded program’s race-conscious assignment policy vio-
lated the existing desegregation orders. Finally, they maintain that,
even if CMS expanded its magnet schools program pursuant to and
in compliance with governing court orders, strict scrutiny nonetheless
applies and requires that the program be held unconstitutional. The
district court properly rejected the first and third arguments, and the
dissent does not seek to resurrect them. Accordingly, although we
address all of these contentions, we initially examine the second, the
only one on which the district court, or the dissent, relies.

A.

In concluding that the expanded magnet schools program violated
the Constitution, the district court committed two fatal errors. Ini-
tially, it ignored the extent of the protection afforded an entity gov-
erned by federal court orders. Then, the district court refused to
recognize the broad directives and expansive terms of the controlling
court orders, and so failed to appreciate that the Board expanded its
magnet schools program in good faith to comply with these orders,
and thus cannot be held to have violated the Constitution. The dissent
replicates both errors.

1.

Judge Potter, like the dissent, does pay lip service to the "immu-
nity" the Board enjoyed because it was subject to numerous judicial
desegregation decrees, see, e.g., Capacchione, 57 F. Supp. 2d at 285
("CMS enjoys immunity from liability for any actions it took consis-
tent with the Court’s injunction."); Traxler Op. at 46. But the district
court and the dissent apparently do not understand what the numerous
court orders in this case required of CMS and the breadth of the pro-
tection those orders afforded to it. Thus, both Judge Potter and the
dissent mention the subject only in passing, failing even to cite con-
trolling Supreme Court cases on point. See id.

A person or entity subject to a judicial decree or injunction (as
CMS indisputably was when operating its dual, segregated school
system) must comply with that decree or injunction, notwithstanding
its possible unlawfulness. Thus, the Supreme Court has clearly and
unequivocally directed that "persons subject to an injunctive order
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 145
issued by a court with jurisdiction are expected to obey that decree
until it is modified or reversed, even if they have proper grounds to
object to the order." GTE Sylvania, Inc. v. Consumers Union of the
United States, 445 U.S. 375, 386 (1980) (emphasis added); see also
W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766 (1983).

The only possible exceptions to this "important public policy,"
W.R. Grace, 461 U.S. at 766, arise if a court lacks jurisdiction over
the subject matter of the order or the order has "‘only a frivolous pre-
tense to validity.’" GTE, 445 U.S. at 386 (quoting Walker v. City of
Birmingham, 388 U.S. 307, 315 (1967)). Without question, the fed-
eral court had jurisdiction over the subject matter of the desegregation
orders issued in this case and no one suggests that those orders consti-
tuted "only a frivolous pretense to validity."

Accordingly, CMS had to obey those orders. This is so notwith-
standing that those orders may have required the Board to forego
competing obligations, see W.R. Grace, 461 U.S. at 767-68, including
obligations seemingly required by a federal statute, see GTE, 445 U.S.
at 378 & n.2, 386-87, or the Constitution itself, see Walker, 388 U.S.
at 317. Indeed, the Supreme Court has explained that to hold that an
entity acts "improperly" in obeying a valid court order "would do vio-
lence to the common understanding of the term ‘improperly,’" even
if the order is later held unlawful or unconstitutional. GTE, 445 U.S.
at 387. Moreover, a court order need not mandate specific or precise
procedures to compel obedience. Thus, although the Court noted the
"breadth and vagueness" of the injunction challenged in Walker, it
nonetheless held that the injunction had to be obeyed until "modified
or dissolved." Walker, 388 U.S. at 317.

"Violations of [a court] order are punishable as criminal contempt
even though the order is set aside on appeal." United States v. United
Mine Workers, 330 U.S. 258, 294 (1947). Accord Spangler, 427 U.S.
at 438 ("Violation of an injunctive decree . . . can result in punish-
ment for contempt in the form of either a fine or imprisonment.").
Conversely, when a person or entity acts in good faith to comply with
a court order, it should not be punished. Thus, in words that resound
here, the Supreme Court has explained that "a school board and a
school constituency which attempt to comply with a [court-ordered
146 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
desegregation] plan to the best of their ability should not be penal-
ized." Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 421 (1977).

Indeed, the Supreme Court has twice expressly held that school
boards under court orders to desegregate must comply with those
desegregation decrees until absolved of that obligation by a subse-
quent court order, even if the existing desegregation decrees are
improper or unnecessary. In Spangler, the Court concluded that the
district court exceeded its remedial discretion when it ordered the Pas-
adena school district to reconfigure its student attendance zones annu-
ally so that there would be "no majority of any minority" in any
school. 427 U.S. at 434-35. Despite the impropriety of this order, the
Court held that the school board had to obey the order until it was
properly modified or reversed by a court. See id. at 439-40 ("[T]hose
who are subject to the commands of an injunctive order must obey
those commands, notwithstanding eminently reasonable and proper
objections to the order, until it is modified or reversed.").

Similarly, in Dowell, the Court refused to interpret an arguably
ambiguous court order as having terminated the desegregation decree
previously entered against the Oklahoma City school board. Instead,
the Court remanded the case to the district court for a determination
of "whether the Board made a sufficient showing of constitutional
compliance . . . to allow the injunction to be dissolved." Dowell, 498
U.S. at 249. In doing so, the Court explained that judicial orders carry
binding authority until they are modified or dissolved.

Moreover, the Dowell Court rejected precisely the kind of argu-
ment the Capacchione plaintiffs seek to make here. In Dowell, as
here, those challenging the school board’s actions argued (and the
court of appeals found) that the school board "unilaterally and con-
trary to specific provisions" of the controlling court orders "acted in
a manner not contemplated by the court in its earlier decrees." Dowell
by Dowell v. Bd. of Educ. of Okla., 795 F.2d 1516, 1521 (10th Cir.
1986). The Supreme Court acknowledged that this might well be so,
but concluded that nonetheless it did "not think that the Board should
be penalized for relying on the express language of that order."
Dowell, 498 U.S. at 249 n.1. Similarly, even if CMS had "acted in a
manner not contemplated" in the governing orders — and clearly it
did not, see infra, at part III.A.2 — it should not "be penalized for
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 147
relying on the express language" of those orders, Dowell, 498 U.S. at
249 n.1, i.e., "to use [its] full ‘know-how’ and resources . . . to
achieve the constitutional end [i.e., desegregation of the schools] by
any means at [its] disposal." Swann, 318 F. Supp. at 802.

Of course, the Capacchione plaintiffs could have sought to modify
or dissolve the Swann orders as inconsistent with their rights under
the Constitution; what they could not do is obtain an injunction, or
declaration, that a party compelled to adhere to those orders violated
the Constitution in so doing. CMS was obliged to follow the govern-
ing desegregation orders and injunctions, and thus the Board "should
not be penalized," Brinkman, 433 U.S. at 421, for its actions, which
were taken to comply with those orders and which the district court
found, and the dissent does not dispute, were taken in good faith. See
Traxler Op. at 41.

With these principles in mind, we turn to the desegregation orders
in this case and the Board’s actions in response to those orders.

2.

Throughout the course of the desegregation efforts in this case, the
federal courts — from the district level to the Supreme Court — have
told the Board that it has the authority to take "whatever steps might
be necessary to convert to a unitary system." Swann, 402 U.S. at 15;
see also Swann, 300 F. Supp. at 1360 ("The Board is free to consider
all known ways of desegregation.") (emphasis added). Thus, CMS has
continually acted under judicial directives that "[t]he choice of how
to do the job of desegregation is for the School Board — not for the
court." Swann, 306 F. Supp. at 1297. See also Wilkinson Op. at 72-
74.

Even beyond CMS’s broad discretion to choose its own methods
of eliminating its unconstitutionally segregated schools, Judge
McMillan’s orders repeatedly endorsed the Board’s general power
and duty to maintain control over the racial composition of the
schools in order to eliminate the vestiges of the segregated system
"root and branch." For instance, in 1970 Judge McMillan mandated:
148 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
That the defendants maintain a continuing control over the
race of children in each school . . . and maintain the racial
make-up of each school (including any new and any re-
opened schools) to prevent any school from becoming
racially identifiable. . . . The duty imposed by the law and
by this order is the desegregation of schools and the mainte-
nance of that condition. . . . The defendants are encouraged
to use their full ‘know-how’ and resources to attain the
results above described, and thus to achieve the constitu-
tional end by any means at their disposal. The test is not the
method or plan, but the results.

311 F. Supp. at 268-69 (emphasis added and emphasis omitted); see
also 362 F. Supp. at 1225 (same); 334 F. Supp. at 631 (same); 475
F. Supp. at 1342 (approving counsel’s statement that "if this Board of
Education chose to run an integrated school system on the basis of
preconceived ratios, it has that constitutional right") (emphasis
added); 318 F. Supp. at 801 (ordering "[t]hat ‘freedom of choice’ or
‘freedom of transfer’ may not be allowed by the Board if the cumula-
tive effect of any given transfer or group of transfers is to increase
substantially the degree of segregation in the school from which the
transfer is requested or in the school to which the transfer is desired").

Moreover, Chief Justice Burger’s opinion for the Supreme Court in
Swann provides explicit sanction of the Board’s use of racial "ratios"
or proportions in assigning students to schools:

School authorities are traditionally charged with broad
power to formulate and implement education policy and
might well conclude, for example, that in order to prepare
students to live in a pluralistic society each school should
have a prescribed ratio of Negro to white students reflecting
the proportion for the district as a whole. To do this as an
educational policy is within the broad discretionary powers
of school authorities; absent a finding of a constitutional
violation, however, that would not be within the authority of
a federal court.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 149
22
402 U.S. at 16 (emphasis added).

Not only was CMS empowered to use ratios in student assignments
generally, it was also specifically authorized to use race-conscious
assignment policies for "appropriately integrated optional schools."
Swann, 379 F. Supp. at 1103. Judge McMillan approved the Board’s
policy, which provided:

Strict and central control must be exercised over all admis-
sions (reassignments) to each optional school in order to
fulfill the necessary ends that these schools be open to all
county residents and be integrated by grade at or above
approximately a 20% black ratio. Reassignments to optional
schools must not jeopardize the racial composition of any
other school.

Guidelines and central monitoring by the Pupil Assign-
ment staff with the respective school principals are to be
drawn up. Capacities and allocation of maximum numbers
of students that may be drawn from each other school atten-
dance area, by race, are to be designated. The actual enroll-
ment of the optional school may have to be guided by its
racial composition and by the number drawn from each
other school area, not by considerations of space and pro-
gram only.

Id. at 1108 (emphasis added).

In response to these directives, in the 1970s CMS established some
22
The dissent’s suggestion that this holding in Swann was somehow
abrogated by Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 283 (1986)
and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 494 (1989) is
baffling. Neither case overruled, explicitly or implicitly, the Swann
Court’s authorization for this school board to assign students according
to a "prescribed ratio." Swann, 402 U.S. at 16. This is not an instance in
which CMS is attempting to extend an analogous Supreme Court holding
to fit its own needs. Rather, the Supreme Court authorized CMS’s actions
specifically, and that authorization has never been overruled. As such,
CMS is entitled to follow it. See infra, at part III.C.
150 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
magnet schools, which it called "optional schools." These schools
offered two special curricula — "open" and "traditional" — both of
which constituted "very rigorous academic program[s]" not offered in
"conventional schools." J.A. 2489, 15683. In 1992, the Board
expanded its magnet schools program into a district-wide system with
a wider range of curricular choices. In the expanded magnet schools
program, the Board retained the curricula first available in the early
magnet or "optional" schools — the "open" curriculum emphasizing
"interdisciplinary approaches," and the "traditional" curriculum fea-
turing a "highly structured program." J.A. 16722-23. Furthermore, six
of the early magnet schools that offered such curricula prior to 1992
— Myers Park, Elizabeth, Hawthorne, Irwin Avenue, Piedmont, and
West Charlotte — continue to do so today under the expanded magnet
schools program. Compare J.A. 13448, 13529-40, 15683 (pre-1992
"open" and "traditional" magnets) with J.A. 16722-23 (1998-99
"open" and "traditional" magnets); see also J.A. 10061 (report indicat-
ing that pre-1992 magnet schools were incorporated into the 1992
expanded magnet schools program).23
23
Judge Potter recognized that the optional schools "were similar to
today’s magnet schools," both having "countywide enrollment and a
racial balancing target." Capacchione, 57 F. Supp. 2d. at 286. He none-
theless concluded that the schools established after 1992 under the
expanded magnet schools program "differ from optional schools in that
[the new] magnets offer specialized curricula and thereby confer a bene-
fit above and beyond the regular academic program." Id. at 286-87 n. 49.
The dissent allies itself with this view, Traxler Op. at 49, but nothing in
the record offers any support for it. To the contrary, assuming arguendo
that "specialized curricula" constitute a "benefit," the magnet schools
instituted after 1992 provide precisely the same "benefit" as the pre-1992
"optional schools." See J.A. 10552 (proposed 1992 pupil assignment plan
recommending continuation of six magnet schools already in place); J.A.
15504 (1993 letter noting that magnet schools were called "optional
schools" prior to 1992); J.A. 10651 (Summary of Findings From
Research on Magnet Schools explaining that "[o]ur optional schools
function as magnet schools"); J.A. 13606, 15581 (Stolee Plan explaining
that "[t]he traditional schools presently existing in Charlotte-
Mecklenburg are good examples" of curriculum specialty schools,
"sometimes called magnet schools"). After all, it was only because the
optional schools did offer certain "specialized curricula" that parents
(including Michael Grant, one of the Capacchione plaintiffs, J.A. 2489)
were willing, well prior to the 1992 expanded magnet schools program,
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 151
The expanded magnet schools program is a typical and appropriate
desegregation tool "conceived and developed in large, urban school
districts seeking a voluntary alternative to busing as a means of
decreasing racial segregation." J.A. 10654. Even the dissenters recog-
nize that "a magnet schools program, properly implemented, can no
doubt be an effective desegregation tool." Traxler Op. at 50. But they
nonetheless suggest that the expanded magnet schools program, in
and of itself, may violate the Constitution. See id. at 71-74. This sug-
gestion is surprising, given that the federal courts have consistently
approved magnet school plans as desegregation tools. See, e.g., Mil-
liken v. Bradley, 433 U.S. 267, 272 (1977) (Milliken II); Stell v.
Savannah-Chatham County Bd. of Educ., 888 F.2d 82, 85-86 (11th
Cir. 1989); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist.
No. 1, 839 F.2d 1296, 1309-12 (8th Cir. 1988); United States v. Yon-
kers Bd. of Educ., 837 F.2d 1181, 1237-39 (2d Cir. 1987); Liddell v.
Missouri, 731 F.2d 1294, 1310-11 (8th Cir. 1984). The dissent’s sug-
gestion that CMS somehow violated the Constitution by expanding its
magnet schools program and "abandon[ing] pairings, satellites, and
feeders," Traxler Op. at 50, seems particularly extraordinary. Magnet
schools are generally regarded as being a less onerous and more suc-
cessful desegregation tool than pairing, satellites, or feeders because
magnet schools provide more opportunity for student choice. See,
e.g., Stell, 888 F.2d at 85; Yonkers, 837 F.2d at 1239.

Of course, as Judge McMillan warned, in approving the early mag-
net or optional schools, assignment of pupils to such schools must be
undertaken in a manner that "provide[s] . . . access to appropriately
integrated optional schools," and "prevent[s] significant jeopardy to
the racial composition of other schools." Swann, 379 F. Supp. at 1103.24

to enroll their children in desegregated optional schools. See J.A. 13641,
15616. In fact, the original six "open" and "traditional" schools remain
among CMS’s more heavily subscribed magnets. See J.A. 10292-340.
Myers Park Traditional, for example, had 245 students on its waiting list
for the 1998-99 school year. See J.A. 2159.
24
The dissent’s contention that Judge McMillan "cautio[ned]" CMS
against creating optional schools because the schools were marked by
"failure" flies in the face of the court orders. Traxler Op. at 49. In fact,
the only warnings that Judge McMillan gave regarding optional schools
152 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
For this reason, race is, and must be, considered in assigning students
to the magnet schools instituted under CMS’s expanded program, just
as it was in assigning students to the original magnet or optional
schools. See 379 F. Supp. at 1108. Specifically, under the expanded
program, CMS allocates 40% of the seats in its magnet schools for
black students and 60% for students of other races. This ratio reflects
the student population of the school system, which is approximately
41.0% black, 52.2% white, 3.7% Asian, 2.5% Hispanic, and .5%
American Indian. CMS generally assigns students to its magnet
schools using two parallel lotteries, one for black students and one for
white students. When there has been insufficient interest from black
students to fill the seats allocated to them in a particular school, CMS
has sometimes refused to allow students of other races to fill those
slots. Thus, race may affect a student’s chances of being assigned to
a magnet school.

It is this portion of the expanded magnet schools program that
Judge Potter regarded as unconstitutional, reasoning that Judge
McMillan "firmly rejected the use of rigid racial quotas." Capacch-
ione, 57 F. Supp. 2d at 286 (relying on Swann, 306 F. Supp. at 1312).
In reaching this conclusion, Judge Potter misread the order on which
he assertedly relied and ignored the multiple other orders and injunc-
tions governing this case.

were against repeating the past "failure" to provide adequate transporta-
tion and against failing to provide "adequate safeguards against discrimi-
natory results," so as to prevent optional schools from "resurrect[ing]"
"freedom of choice" plans under a new name. Swann, 379 F. Supp. at
1103-04.
Moreover, the dissent’s heavy emphasis on Dr. Stolee’s recommenda-
tion to the Board that it seek court approval of the expanded magnet
schools program is puzzling. That one advisor should suggest this does
not change the facts, and the critical facts here are that the expanded
magnet schools program was simply an expansion of the court-appointed
optional schools. Even if this were not so, the Board’s decision to ignore
a recommendation from one educational adviser (not a lawyer) on a legal
matter certainly does not evidence the Board’s bad faith or render its
action violative of any court order.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 153
Actually, in the very paragraph on which Judge Potter relied, in
which Judge McMillan held that "[f]ixed ratios of pupils in particular
schools will not be set" by the court, Judge McMillan also held that
"efforts should be made [by the school board] to reach a 71-29 ratio
in the various schools so that there will be no basis for contending
that one school is racially different from the others." Swann, 306 F.
Supp. at 1312 (emphasis added). Judge Potter transmuted this state-
ment — an authorization for the Board to make "efforts" to "reach a
71-29 ratio" — into a prohibition against the Board assigning students
to schools on the basis of that fixed ratio. See Capacchione, 57 F.
Supp. 2d at 286. We cannot accept this reading of Judge McMillan’s
order. Taken as a whole, this paragraph provides some of the clearest
evidence that Judge McMillan not only authorized the Board to use
fixed ratios in assigning students to schools but encouraged it to do
so. Recognizing the impracticability of adopting a court-ordered,
system-wide racial balance to which all schools must adhere, Judge
McMillan did observe that "variations from that [71-29 ratio] may be
unavoidable." Swann, 306 F. Supp. at 1312. But that statement
imposes no limitations on the scope of permissible Board action.
Rather, it suggests that "variations" were acceptable only because
they were "unavoidable."

The Board could not have accomplished what the desegregation
orders required without "using race" in the way that it "used race" in
the context of the expanded magnet schools program. In the 1970
order, affirmed by the Supreme Court, Judge McMillan decreed
"[t]hat pupils of all grades be assigned in such a way that as nearly
as practicable the various schools at various grade levels have about
the same proportion of black and white students." Swann, 311 F.
Supp. at 268. We cannot fathom how the Board could set out to
achieve "about the same proportion of black and white students" in
each grade level in each of its over one hundred schools without
employing fixed racial ratios as the central components of its student
assignment plan. Neither, apparently, could Judge McMillan.

To achieve "about the same proportion," the Board necessarily had
to set fixed upper and lower limits on the proportion of white and
black students it would permit in each grade in each school. Only
with these fixed racial proportions as its lodestars could the Board
assign students to schools, and approve or deny individual requests to
154 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
transfer. The Board could never have justified a denial of a transfer
request without having a fixed conception of exactly how few white
or black students in a particular school would be too few.

Indeed, Judge McMillan expressly approved many aspects of the
CMS desegregation plan that were explicitly based on strict racial
ratios. For example, the Board’s majority-to-minority transfer policy,
which was specifically authorized by the governing desegregation
orders, takes race into account in much the same way as the magnet
schools assignment policy. Under the transfer policy, a student in the
racial majority in his current school could freely transfer to a school
in which he would be in the racial minority. A white student in a
majority white school, for example, could freely transfer to a majority
black school, but that same student could be denied admission to a
majority white school, solely on the basis of a rigid 50% racial ceil-
ing. Meanwhile, a black student at a majority black school could
freely transfer into the same majority white school to which the white
student might be denied admission. The Supreme Court approved this
use of majority-to-minority transfer policies as "a useful part of every
desegregation plan" and "an indispensable remedy." Swann, 402 U.S.
at 26. In fact, Judge McMillan specifically upheld this majority-to-
minority plan, despite former CMS Superintendent Dr. J. M. Robin-
son’s complaints about the rigidity of the 50% limit. See Martin, 475
F. Supp. at 1343 ("I would like to have had more flexibility than the
50 percent in some instances, but I would be opposed to recommend-
ing any plan that went, any of the schools going over more than a few
percentage points above 50 percent.").

It is certainly true that Judge McMillan’s orders and the Supreme
Court’s opinion in Swann consistently signaled concern with the
imposition of racial proportions or ratios by federal courts. That con-
cern, however, is rooted in the problem of federal courts exceeding
their remedial discretion, not in any objection to the use of racial pro-
portions or ratios by school boards themselves in their desegregation
plans. Thus, the Supreme Court noted that, "[t]he constitutional com-
mand to desegregate schools does not mean that every school in every
community must always reflect the racial composition of the school
system as a whole," but went on to conclude that "the very limited use
made of mathematical ratios was within the equitable remedial discre-
tion of the District Court." Swann, 402 U.S. at 24-25.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 155
That this concern with ratios is rooted in the limits of judicial
power to order remedial action, not in the impropriety of using racial
proportions to remedy the vestiges of segregation, is nowhere more
apparent than in Chief Justice Burger’s statement in Swann. There,
the Chief Justice noted that while in certain circumstances it might be
inappropriate for a federal court to require adherence to "a prescribed
ratio of Negro to white students reflecting" the population of the "dis-
trict as a whole," it would be "within the broad discretionary powers
of school authorities" to do so. Id. at 16. See also Wilkinson Op. at
73.

Indeed, in Swann’s companion case, North Carolina State Bd. of
Educ. v. Swann, 402 U.S. 43, 45-46 (1971), the Supreme Court held
that any attempt to "inhibit or obstruct" the Board’s use of racial
ratios "must fall." The Court explained that, "when past and continu-
ing constitutional violations are found [as they had been in the
Charlotte-Mecklenburg school system], some ratios are likely to be
useful starting points in shaping a remedy. An absolute prohibition
against use of such a device . . . contravenes the implicit command
of Green." Id. at 46. The Court expressly recognized that a "flat pro-
hibition against assignment of students for the purpose of creating
racial balance must inevitably conflict with the duty of school authori-
ties to disestablish dual school systems." Id. (emphasis added).

The Board’s authority to employ racial ratios is explicit not only
in the Supreme Court’s opinions, but also in Judge McMillan’s
repeated statements to the effect that "[i]ndependent of any court
order . . . if this Board of Education chose to run an integrated school
system on the basis of preconceived ratios, it has that constitutional
right." Martin, 475 F. Supp. at 1342 (internal quotation marks omit-
ted). In fact, early in the litigation Judge McMillan held that:

Counsel for the plaintiffs says that since the ratio of white
to black students is about 70/30, the School Board should
assign the children on a basis 70% white and 30% black,
and bus them to all the schools. This court does not feel that
it has the power to make such a specific order. Nevertheless,
the Board does have the power to establish a formula and
provide transportation.
156 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Swann, 300 F. Supp. at 1371 (emphasis added).

Moreover, this Court upheld "the validity of the Board’s decision
to reassign students in order to maintain racial ratios," and stated that
the "School Board is vested with broad discretionary powers over
educational policy and is well within its powers when it decides that
as a matter of policy schools should not have a majority [over 50%]
of minority students." Martin, 626 F.2d at 1167. Having been repeat-
edly told by federal courts that it had the "constitutional right" to
"maintain racial ratios" to remedy past segregation, CMS cannot now
be held to have violated the Constitution for doing exactly what the
courts have said it had the power to do.

In short, time and again, the federal courts at all levels have autho-
rized the Board to employ racial ratios to remedy its unlawfully segre-
gated school system. Although the dissent repeatedly contends to the
contrary, Traxler Op. at 52, 54, 55, no court has ever prohibited CMS
(rather than the federal court supervising it) from imposing "racial
ratios." The dissent’s contention that Judge McMillan’s order — man-
dating a black student population "about or above 20%" in the
optional schools, instead of the Board’s proposed "at or above
approximately 20%" language — constitutes a rejection of "rigid
racial quotas," Traxler Op. at 53, is singularly unconvincing. It seems
unlikely that by this slight word difference Judge McMillan even indi-
cated a disapproval of the Board’s use of "rigid" quotas, which would
otherwise have been permitted under the Board’s policy. It seems far
more likely that Judge McMillan believed that his order permitting a
racial ratio "about or above 20%" was equivalent to the Board’s pol-
icy of permitting a racial ratio "at or above approximately 20%." In
any event, neither linguistic formulation prohibits the Board from
adopting an 80-20 ratio for the early optional schools, or the 60-40
ratio for magnet schools that it subsequently adopted in 1992, espe-
cially in light of the Board’s broad discretion and explicit authoriza-
tion to use strict racial ratios in other areas of its desegregation plan.

Similarly, the dissent’s suggestion that the expanded magnet
schools program differs from the "optional schools" program because
the Board set "inflexible quotas" in the expanded plan, Traxler Op. at
44, is simply not borne out by the record. In truth, in 1992, CMS
implemented a 60-40 white-black ratio with an eye to reaching a
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 157
racial balance that corresponded with the make-up of the entire stu-
dent population of the school system, just as in 1974 it implemented
the 80-20 white-black ratio to correspond with the entire student pop-
ulation at that time. The 60-40 ratio was not applied in any more of
a rigid or "inflexible" manner than the earlier ratio; Board policy pro-
vided that "all magnet schools would maintain a 60-40 white-black
ratio plus or minus 15%," J.A. 13705; see also J.A. 3187, 3193, and
the Student Assignment Plan permitted "racial balance [to] be allowed
to fluctuate." J.A. 15702. The Board’s Executive Director of Planning
and Student Placement testified that several race-neutral consider-
ations, such as sibling attendance, would allow a school to "depart
from the 60-40 goal." J.A. 3217; see also J.A. 3091-92, 3193-94.
Contrary to the dissent’s claims of rigidity, not a single magnet school
actually manifested a 60-40 ratio. J.A. 3185. A number of magnet
schools came close to the stated goal, but the percentage of black stu-
dents in CMS’s magnet schools ranged from 7% to 82%, id., and stu-
dents that failed to gain admission to one magnet school "often ha[d]
a seat waiting for them at another magnet school of their choosing."
J.A. 3076. In fact, the two "black seats" about which Christina Capac-
chione originally complained were ultimately filled by two white stu-
dents, despite the supposedly "inflexible" ratio. In sum, the 60-40
ratio was not an unbendable "quota," either in policy or in practice,
any more than the earlier ratio had been.

Both the Supreme Court and Judge McMillan provided CMS with
"wide discretion" to fashion appropriate remedies in light of the par-
ticular needs of its pupils and the school system’s experience with
other desegregation tools. Additionally, Judge McMillan approved
specific race-conscious assignment measures generally and specifi-
cally as to magnet schools.25 Thus, when adopting a 60-40 assignment
25
The dissent, see Traxler Op. at 50, makes much of Judge McMillan’s
1970 instruction that "leave of the court be obtained before making any
material departure from any specific requirement set out herein," Swann,
311 F. Supp. at 270. But the dissent fails to acknowledge that this state-
ment followed Judge McMillan’s declaration that the Board had "maxi-
mum discretion . . . to choose methods that will accomplish the required
result." Id. The "material departure" provision was not an attempt to limit
the Board’s ability to choose its own methods to move aggressively for-
ward with the desegregation of its schools, but rather was a message that
158 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
formula in the expanded magnet schools program, the Board not only
acted within its "wide discretion," but also in accordance with specific
procedures approved by the district court.

Judge Potter’s conclusion (and the dissent’s contention) to the con-
trary simply cannot be reconciled with the Supreme Court opinion in
Swann, our opinions in this case, and Judge McMillan’s decrees. The
magnet schools’ race-conscious assignment policy constitutes a nec-
essary safeguard against the risk that unchecked transfers to magnet
schools could increase the number of racially identifiable schools in
violation of the Board’s continuing obligation under the desegregation
orders. See 379 F. Supp. at 1105 ("Racially identifiable schools may
not be operated."). In that vein, the Capacchione plaintiffs’ own
expert on school desegregation, Dr. David Armor, agreed that racial
quotas are permissible in a desegregation plan. J.A. 3627. Dr. Armor
testified that "race is an integral part of pairing, of satelliting, of mag-
net schools, of running lotteries for magnet schools. The entire plan
is predicated on race and race controls, because that’s the only way
you can meet the court order and to have an effective plan is to
employ race requirements and racial quotas basically for all schools."
J.A. 3434.

In sum, contrary to Judge Potter’s conclusion, Judge McMillan
specifically authorized the use of fixed ratios based on race in assign-
ing students to magnet schools. See 379 F. Supp. at 1104. Further-
more, even without such specific authorization, the broad discretion
granted the Board by the Supreme Court’s opinion in Swann and by
the other court orders and injunctions governing this case permitted
CMS to fashion magnet schools with racially balanced enrollments.
The decrees make plain that ratios based on race were among the
"means" by which the Board was authorized "to achieve the constitu-
tional end" of desegregation. Swann 311 F. Supp. at 268-69; see also
Swann, 362 F. Supp. at 1225; Swann, 334 F. Supp. at 631. As such,

this previously recalcitrant school district should not use its "discretion"
to take steps backward, i.e., a "material departure," from its obligation to
achieve the court-ordered "goal" of "complete desegregation of the entire
system to the maximum extent possible." Swann, 306 F. Supp. at 1298-
99.
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 159
the Board did not violate the Equal Protection Clause in adopting
such ratios in its expanded magnet schools program.

B.

As their principal contention, the Capacchione plaintiffs argue that
the expanded magnet schools program was a response to demographic
change rather than a true attempt to remedy past discrimination. We
cannot agree.26

First, Judge Potter "accept[ed] that the school system was acting to
. . . remedy[ ] the effects of past racial discrimination" in expanding
the number of magnet schools in 1992. Capacchione, 57 F. Supp. 2d
at 289. Ample record evidence supports this finding. See, e.g., J.A.
2716 (testimony of John Murphy, former CMS Superintendent, that
1992 plan to expand the magnet school program was among the "cre-
ative strategies we could come up with to stay in compliance with the
court order"); J.A. 3869-74 (testimony of Jeff Schiller, former assis-
tant superintendent for research, assessment, and planning for CMS,
explaining that the 1992 student assignment plan, including the
expanded magnet schools program, "had the same objectives as the
one that it was going to replace, maintaining the court order," and that
the objective of the expanded magnet program specifically was "to
maintain the integration of schools through voluntary means"); J.A.
15503-05 (1993 letter from CMS to the U.S. Department of Education
discussing Judge McMillan’s 1974 order and identifying the creation
of additional magnet schools as among the "more effective ways . . .
[to] meet[ ] the guidelines established by the Court"); J.A. 13607,
15582 (Stolee Plan recommendation that "[the Charlotte-
Mecklenburg school desegregation plan should be gradually changed
from a mandatory plan with little voluntarism to a voluntary plan with
few mandatory facets").

Furthermore, the dichotomy the Capacchione plaintiffs suggest
between "counter[ing] demographic change," on the one hand, and
remedying past discrimination, on the other, oversimplifies both the
law of school desegregation, particularly the Supreme Court’s deci-
26
Tellingly, the dissent does not even mention this argument.
160 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
sions in Green, Swann, and Freeman, and the practical reality of
achieving desegregation in a large urban school district. From the
early stages of the Swann litigation, all concerned have understood
that demographic patterns would complicate the process of school
desegregation. Indeed, remedies such as school busing and satellite
attendance zones would never have been necessary in the first place
if the demography of the community were not an obstacle to desegre-
gation. In a sense, Swann’s basic teaching is that the Constitution
sometimes requires schools to "counter demograph[y]" in order to
achieve desegregation. The Swann Court noted that the process of
"local authorities . . . meet[ing] their constitutional obligations" had
"been rendered more difficult by changes . . . in the structure and pat-
terns of communities, the growth of student population, [and] move-
ment of families." 402 U.S. at 14. The Court expressed concern that
"segregated residential patterns . . . [would] lock the school system
into the mold of separation of the races." Id. at 21. Thus, CMS simply
followed the Supreme Court’s guidance in Swann in regarding change
as a problem inhibiting its progress toward unitary status.27
27
The Capacchione plaintiffs contend that, given the obvious concern
of school officials with demographic changes, "CMS could not have
been motivated by any desire to comply with its court-ordered duty to
eradicate vestiges of segregation." Brief of Appellees at 85. But this
stands the analysis on its head. A court determines from the effect of their
acts, not from their motives, whether school authorities comply with a
desegregation decree. See Wright v. Council of Emporia, 407 U.S. 451,
462 (1972) ("It is difficult or impossible for any court to determine the
sole or dominant motivation behind choices of a group of legislators, and
the same may be said of the choices of a school board. . . . Thus we have
focused upon the effect — not the purpose or motivation — of a school
board’s action in determining whether it is a permissible method of dis-
mantling a dual system.") (internal quotations marks omitted). Moreover,
even if motivation were relevant, the argument would fail. A fair reading
of the record demonstrates that although school officials were obviously
aware of the demographic shifts, they viewed these shifts as an obstacle
to achieving compliance with the Swann orders and to eliminating the
vestiges of discrimination in the school system, not as the condition that
itself necessitated a remedy. See, e.g., J.A. 13597-98, 15572-73 (Stolee
Plan identifying "a growing and moving population" as one of several
factors creating instability in student assignment under the pre-1992 sys-
tem of pairing and satelliting); J.A. 15504 (1993 letter from CMS to the
U.S. Department of Education listing "demographic and residential pat-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 161
Moreover, Freeman simply did not hold, as the Capacchione plain-
tiffs necessarily imply, that demographic changes in a metropolitan
area independently eliminate the vestiges of past discrimination. Nor
does Freeman bar courts from targeting racial isolation resulting in
significant part from "private choice," if that isolation is also a vestige
of past discrimination. The effect of such a holding in Freeman would
have been to overrule Green, which the Supreme Court did not pur-
port to do. In Green, even though the school board allowed every stu-
dent "freedom of choice" as to which school to attend, the formerly
black school remained all black and the formerly white school
remained predominantly white — wholly as a result, in some sense,
of this "private choice." The Green Court held that, although the pri-
vate choices of students and their families were responsible for the
continuing racial isolation of the schools’ student populations, that
fact did not preclude a finding that the racial isolation was also a ves-
tige of past discrimination. Indeed, the Court held not only that it was
permissible for the school board to take further action to desegregate,
but that the board was required to take further action in order to fulfill
its "affirmative duty" to desegregate. Green, 391 U.S. at 437-38.

Although Freeman recognized that, at a certain point in the process
of desegregation, a court may determine that present racial isolation
cannot be considered a by-product of the past regime of segregation,
the case does not require — or even empower — a school board
under a judicial desegregation order to make that determination on its
own. Rather, so long as CMS was under court order to desegregate,
it was required to treat racial isolation in its schools as a vestige of
segregation, and to take appropriate action to eliminate that vestige.
See Swann, 402 U.S. at 26.

terns" as one of several increasing strains on the pairing system); J.A.
2712 (testimony of former CMS Superintendent John Murphy that "[w]e
really weren’t going to be bringing about desegregation and racially bal-
anced schools unless we began to address the issue of housing at the
same time."). The Board may have chosen sites for new schools in
response to, or even in furtherance of, these demographic trends, see
supra, but in any event the Board also clearly evidenced awareness that
the population changes, particularly the greater distance between white
and black population centers, would put a greater strain on the process
of desegregation.
162 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
C.

Finally, the Capacchione plaintiffs maintain that, even if CMS
administered the expanded magnet schools program pursuant to and
in conformity with the governing desegregation decrees, CMS vio-
lated the Constitution in doing so. Judge Potter rejected this argument,
as do we (and the dissent, in never mentioning it, apparently also
rejects it). The Capacchione plaintiffs rely on inapposite case law in
attempting to establish that Board actions taken pursuant to court-
ordered desegregation decrees can be held unconstitutional.

Specifically, they rely on recent decisions finding voluntary, race-
conscious magnet school programs (not developed under a governing
desegregation order) unconstitutional. See Eisenberg v. Montgomery
County Pub. Schs., 197 F.3d 123, 125 (4th Cir. 1999); Tuttle v.
Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999); see also
Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998). In fact, the courts
emphasized in those cases that the school system had not been under
a court order to desegregate, see Eisenberg, 197 F.3d at 124, and had
adopted a magnet program "not to remedy past discrimination, but
rather to promote racial, ethnic, and socioeconomic diversity." Tuttle,
195 F.3d at 700 (emphasis added); see also Wessman, 160 F.3d at 792
(noting that prior to instituting its magnet program the school system
"had achieved unitariness in the area of student assignments" and that
"the district court thereupon relinquished control over" that area).
Indeed, in Eisenberg we endorsed the permissibility of race-based
classifications "in situations," like that at hand, "where past constitu-
tional violations require race-based remedial action." 197 F.3d at 130
(citing Swann, 402 U.S. at 1); see also Wessmann, 160 F.3d at 795.

The distinction between a unitary school system and a school sys-
tem under court order to desegregate is, from a legal standpoint, fun-
damental. Furthermore, as discussed supra, it is the judicial finding
of unitary status, not any particular action by the school board or con-
dition in the school system, upon which the distinction turns. Of
course, for a formerly segregated school system, the attainment of
unitary status reflects years or decades of gradual change, not an over-
night shift in policy or outlook. Although CMS will not look much
different the day it becomes unitary than it will have looked the previ-
ous day, attainment of unitary status triggers significant legal conse-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 163
quences. In a non-unitary school system, all one-race or
predominantly one-race schools are presumed to be vestiges of segre-
gation, and the burden is on the challenging party to show that those
schools are nondiscriminatory. See Swann, 402 U.S. at 26 ("The court
should scrutinize such schools, and the burden upon the school
authorities will be to satisfy the court that their racial composition is
not the result of present or past discriminatory action on their part.").
Once a court has declared a school system unitary, on the other hand,
the presumption is that the vestiges of segregation have been elimi-
nated, and a plaintiff seeking to demonstrate a constitutional violation
on the basis of the existence of one-race or predominantly one-race
schools must "prove discriminatory intent on the part of the school
board." Riddick, 784 F.2d at 537.

As Judge Potter recognized, see Capacchione, 57 F. Supp. 2d at
285, CMS implemented and administered its expanded magnet
schools program prior to ever achieving unitary status and while still
under court order to remedy the vestiges of segregation. Therefore,
recent decisions, like Eisenberg and Tuttle, addressing the constitu-
tionality of magnet school assignment policies in unitary school sys-
tems not under court order, are simply inapposite.

Moreover, even if Tuttle and Eisenberg generally applied to gov-
ernmental acts performed pursuant to remedial desegregation orders
(which they do not), the Board’s expanded magnet schools program
would withstand constitutional scrutiny. This is so because if a prece-
dent of the Supreme Court "has direct application in a case," inferior
courts must follow that precedent "even if later cases appear to call
it into question, leaving to [the Supreme] Court the prerogative of
overruling its own decisions." See Agostini v. Felton, 521 U.S. 203,
237 (1997).

There could hardly be a clearer case for application of this princi-
ple. Here, the Supreme Court’s Swann decision itself constitutes
directly controlling precedent. In Swann, the Court concluded that
CMS could be constitutionally required to make efforts "to reach a
71-29 ratio" in the schools under its authority, and to assign students
"in such a way that as nearly as practicable the various schools at var-
ious grade levels have about the same proportion of black and white
students." See 402 U.S. at 23-25 (approving Judge McMillan’s order).
164 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Indeed, the Supreme Court again noted in Freeman that its decision
in Swann specifically approved racial balancing by CMS to achieve
the remedial end of eliminating the vestiges of segregation. 503 U.S.
at 493 (In Swann, "[w]e confirmed that racial balance in school
assignments was a necessary part of the remedy in the circumstances
there presented."). Under the principle articulated in Agostini, only
the Supreme Court itself can modify the decrees in this case to pro-
hibit what Swann so clearly permitted.

D.

The Supreme Court’s decision in Swann is the law of the case; it
must be followed. But more than just the law of this case, for almost
thirty years Swann also has functioned as a blueprint for school
desegregation in school districts throughout this Nation. As long as
Swann is controlling law, and as long as the Board acts pursuant to
the Swann desegregation orders — as it did in implementing the
expanded magnet schools program — it cannot be held to have vio-
lated the Constitution.

IV.

Judge Potter also enjoined CMS from "assigning children to
schools or allocating educational opportunities and benefits through
race-based lotteries, preferences, set-asides, or other means that deny
students an equal footing based on race." Capacchione, 57 F. Supp.
2d at 294. In considering the propriety of an injunction, we review
factual findings only for clear error, but the "district court’s applica-
tion of legal principles . . . presents a legal question reviewed de
novo." North Carolina v. City of Virginia Beach, 951 F.2d 596, 601
(4th Cir. 1992).

Given the Court’s holding today that CMS did not violate the con-
stitutional rights of the Capacchione plaintiffs by consideration of
race in its expanded magnet schools program, and because we would
also hold that CMS has not yet achieved unitary status, there is, in our
view, no legal basis for the district court’s injunction. Moreover, even
if the district court properly determined that CMS had attained unitary
status, the injunction still must be vacated. This is so because the dis-
trict court could issue an injunction only to the extent that it con-
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 165
cluded that CMS was likely to persist in current practices that would
violate the Constitution if undertaken outside of the remedial context.
See United States v. Oregon State Med. Soc’y, 343 U.S. 326, 333
(1952). Judge Potter made no such finding.

Indeed, the only CMS action that Judge Potter held to violate the
Constitution was the expanded magnet schools program (a holding
that this Court has now reversed); the judge did not consider the con-
stitutionality of any other method of student assignment or resource
allocation. Yet the injunction by its terms prohibits any consideration
of race by CMS in student assignment or allocation of educational
benefits that "den[ies] students an equal footing." Capacchione, 57 F.
Supp. 2d at 294. The injunction thus goes much further than simply
prohibiting CMS from reinstituting the expanded magnet schools pro-
gram and its race-conscious assignment policy.

This court has repeatedly held similar injunctions too broad,
explaining that "[a]lthough injunctive relief should be designed to
grant the relief needed to remedy the injury to the prevailing party,
it should not go beyond the extent of the established violation."
Hayes, 10 F.3d at 217; see also Tuttle, 195 F.3d at 708. Similarly, the
Supreme Court has directed "[f]ederal court decrees must directly
address and relate to the constitutional violation itself." Milliken, 433
U.S. at 282. Because the injunction issued in this case did not do this,
it must be vacated.

V.

In addition to injunctive relief, the district court awarded nominal
damages of one dollar to the Capacchione plaintiffs "to vindicate the
constitutional rights of children denied an equal footing in applying
to magnet schools." Capacchione, 57 F. Supp. 2d at 290. Because a
majority of the Court holds that the expanded magnet schools pro-
gram did not violate the Constitution, it follows that the nominal dam-
ages award must also be vacated.

VI.

The district court awarded the Capacchione plaintiffs
$1,499,016.47, plus interest, in attorney’s fees, pursuant to 42 U.S.C.
166 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
§ 1988 (1994). See Capacchione v. Charlotte-Mecklenburg Schs., 80
F. Supp. 2d 557 (W.D.N.C. 1999) (amended by orders of December
16, 1999, J.A. 1313-15, and March 6, 2000, J.A. 1356-62). Under
§ 1988, a court is only permitted to award fees when a "party, other
than the United States" prevails in an "action to enforce" the Constitu-
tion or specific federal civil rights statutes. 42 U.S.C. § 1988. Because
the Capacchione plaintiffs have not prevailed on any constitutional or
other claim providing a basis for statutory attorney’s fees, the $1.49
million fee award must be vacated in its entirety.

We note initially that this Court’s reversal of the district court’s
finding that CMS’s magnet schools program violates the Constitution
obviously means that all attorney’s fees awarded in connection with
the Capacchione plaintiffs’ previous success on this issue must be
vacated. The district court apparently based much of its attorney’s
fees award on this ground. See Capacchione, 80 F. Supp. 2d. at 559
(awarding attorney’s fees in part because the "Court found for Plain-
tiff Capacchione on the core of his claim that CMS violated Cristina
Capacchione’s constitutional rights under the Equal Protection
Clause") (emphasis added). Our Court today not only holds that CMS
did not violate the Capacchione plaintiffs’ constitutional rights in
adopting the expanded magnet schools program, but also reverses and
vacates the district court’s attendant orders for injunctive and mone-
tary relief. As the Capacchione plaintiffs themselves recognize, it is
"self-evident" that they cannot recover attorney’s fees "if this Court
reverses on the order appealed from." Brief of Appellees at 113 n.51.
Given the reversal of the magnet schools ruling, the award of attor-
ney’s fees attendant to it must be vacated.

The dissent maintains, however, that because this Court has also
upheld Judge Potter’s unitary status ruling, the Capacchione plaintiffs
are entitled to an award of some attorney’s fees. See Traxler Op. at
66.28 Our Court properly rejects this notion because the unitary status
28
Contrary to the dissent’s contentions, CMS did not concede that if
the Grant intervenors obtained only a declaration of unitary status, with-
out an injunction or determination that CMS violated the Constitution,
they would be entitled to attorney’s fees. CMS actually stated:
Unlike Capacchione, the Grant intervenors were granted declara-
tory and injunctive relief related to the issues of unitary status
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 167
determination alone simply provides no basis for an award of attor-
ney’s fees. See also Wilkinson Op. at 72 & n.1.

Just a few weeks ago, the Supreme Court removed all doubt in this
area. In Buckhannon Bd. and Care Home, Inc. v. W. Va. Dept. of
Health and Human Res., ___ U.S. ___, ___, 121 S. Ct. 1835, 1839
(2001), the Court reiterated that "[i]n the United States, parties are
ordinarily required to bear their own attorney’s fees — the prevailing
party is not entitled to collect from the loser." In accord with the tradi-
tional "American Rule," courts may not award attorney’s fees to the
prevailing party absent explicit statutory authority. See id. (citing Key
Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)). Indeed, in
Buckhannon, the Supreme Court noted that statutory authority to
award attorney’s fees is critical, for "Congress ha[s] not ‘extended
any roving authority to the Judiciary to allow counsel fees as costs or
otherwise whenever the courts might deem them warranted.’" Buck-
hannon, 121 S. Ct at 1843 (quoting Alyeska Pipeline Serv. Co. v. Wil-
derness Soc’y, 421 U.S. 240, 260 (1975)).

In this case, there is simply no statutory basis for an award of fees
to the Capacchione plaintiffs on the sole issue on which they have
prevailed, namely the unitary status determination. Although a major-
ity of this Court has regrettably, and we believe mistakenly, deter-
mined that CMS has attained unitary status, no member of the Court
suggests that in doing so, or in not doing so sooner, CMS violated 42
U.S.C. §§ 1981, 1983, 2000d, the Fourteenth Amendment of the Con-
stitution, or any other law or constitutional provision that would give
rise to an award of attorney’s fees under § 1988 or any other statute.29

and CMS’ magnet school admission policies. Therefore, the enti-
tlement of the Grant intervenors to recover attorneys’ fees is tied
directly to the merits of those claims.
Brief of Appellants at 40 (emphasized language omitted in dissent, see
Traxler Op. at 66). Of course, no plaintiff prevailed on the claim that the
"magnet school admission policies" violated the Constitution, or any
other claim that provided a statutory basis for attorney’s fees. Moreover,
even if CMS had conceded to the contrary, there would be no basis for
a fee award.
29
We note that if CMS itself had succeeded in simply obtaining a dec-
laration that its school system was now unitary, no one would contend
that the Board would be entitled to an award of fees. Given this, how can
the Capacchione plaintiffs, operating as a "private attorneys general" on
behalf of the Board, Traxler Op. at 68, be entitled to fees?
168 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
While some of the Capacchione plaintiffs had alleged that CMS’s
failure to obtain a declaration that it had attained unitary status vio-
lated their constitutional rights, Judge Potter never so held. Tellingly,
on appeal, the Capacchione plaintiffs do not assert this position, let
alone offer any support for it. Nor does any member of this Court
embrace this unprecedented theory. Thus, there is no basis for an
award of attorney’s fees here.

We note that, even if § 1988 somehow applied to a mere finding
of unitary status, absent some additional finding of a constitutional or
civil rights violation, the Capacchione plaintiffs would still not be
entitled to attorney’s fees because they do not qualify as "prevailing
part[ies]." In order to be a "prevailing party," a party seeking fees
must have obtained "an enforceable judgment . . . consent decree or
settlement." Farrar v. Hobby, 506 U.S. 103, 111 (1992). Additionally,
there must be some defendant in the case who has been "prevailed
against," id. at 109, with a resulting "material alteration of the legal
relationship" between that defendant and the party seeking fees, id. at
111.

This prevailing party requirement is crucial: in Buckhannon, the
Supreme Court rejected the so-called "catalyst theory" of attorney’s
fees on the ground that it might permit an award "where there is no
judicially sanctioned change in the legal relationship of the parties."
Buckhannon, 121 S. Ct. at 1840. By simply obtaining a declaration
that the Board has achieved unitary status, the Capacchione plaintiffs
have not obtained "an enforceable judgment, consent decree, or settle-
ment;" they have not "prevailed against" CMS; nor have they effected
a "material alteration of the legal relationship" between the parties.

Indeed, the declaration of unitary status merely restores the parties
to the status quo prior to the issuance of the desegregation decree.
Such a declaration does not constitute "an enforceable judgment" for
the Capacchione plaintiffs. The dissent is mistaken in its assertion
that a unitary status declaration is "enforceable against CMS in the
unlikely event it later attempts to continue prior assignment policies."
Traxler Op. at 68. Any challenge to future race-based assignment pol-
icies would be on the ground that they violate the Constitution, not
that they violate a declaration of unitary status. Thus, a future chal-
lenge would seek to "enforce" the Constitution, not the unitary status
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 169
determination. This point highlights the heart of the dissent’s misun-
derstanding. Section 1988 exists to provide attorney’s fees for those
plaintiffs who demonstrate that they suffered deprivations of rights
under federal civil rights laws or the Constitution. Today, a majority
of this Court has held that the Capacchione plaintiffs have suffered
no such deprivation; thus, they are not entitled to statutory attorney’s
fees.

Although the declaration of unitary status represents a rejection of
the legal position that CMS has taken in this litigation, such a defeat
is not tantamount to being "prevailed against" under § 1988. See
Buckhannon, 121 S. Ct. at 1841 ("We cannot agree that the term ‘pre-
vailing party’ authorizes federal courts to award attorney’s fees to a
plaintiff who . . . has reached the ‘sought-after destination’ without
obtaining any judicial relief."). Rather, the primary significance of a
declaration of unitary status is that CMS has been successful; it has
eradicated the vestiges of past discrimination to the extent practicable
and, as the Capacchione plaintiffs put it, obtained a "return of control
to local authorities." Brief of Appellees at 34. The Board, upon a dec-
laration of unitariness, now actually has wider latitude to assign stu-
dents than it did while it was under court order to remedy past
discrimination (although certain race-conscious policies might no lon-
ger be permissible). Accordingly, this declaration of Board success,
and attendant broadening of the Board’s discretion, does not consti-
tute an alteration of the parties’ legal relationship "in a way that
directly benefits the plaintiff." Farrar, 506 U.S. at 112 (emphasis
added). Without more, the declaration that CMS has achieved unitary
status does not place any direct benefit on the Capacchione plaintiffs,
who "obtain[ ] nothing from the defendants." Hewitt v. Helms, 482
U.S. 755, 761-62 (1987).30
30
The dissent’s contention that the Capacchione plaintiffs helped "in
making unitariness a reality" underscores the dissent’s confusion as to
the difference between seeking injunctive relief to eliminate illegal seg-
regation connected with a dual school system with a declaration that this
has been done. The former is an action to "enforce" civil rights laws and
the Constitution — and therefore contemplated by § 1988 — and the lat-
ter is a statement that earlier enforcement efforts have succeeded for rea-
sons having nothing to do with the Capacchione plaintiffs’ lawsuit.
170 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Moreover, "only those changes in a defendant’s conduct which are
mandated by a judgment . . . in the case at bar may be considered by
the court in determining the plaintiff’s success at trial" for purposes
of attorney’s fees under § 1988. Clark v. Sims, 28 F.3d 400, 425 (4th
Cir. 1994) (emphasis added). In affirming the district court’s unitary
status determination, this Court does not mandate that CMS engage
in any "conduct" whatsoever, but simply holds that "CMS has com-
plied in good faith with the mandate of Brown," and that the "dual
system has been dismantled." Traxler Op. at 43. By vacating the
award of nominal damages and injunctive relief, this Court has
removed any "mandate" on the actions of the district court. Having
been determined to be unitary, CMS is now free to take whatever
action it wishes consistent with the Constitution.

Thus, the Capacchione plaintiffs’ suit seeking a declaration of uni-
tary status was not an "action to enforce" the civil rights laws under
§ 1988. Rather, these plaintiffs sought a declaration that CMS has
complied with judgments obtained by the Swann plaintiffs in previous
actions to enforce civil rights. Although the Capacchione plaintiffs
brought separate § 1983 claims asserting that the expanded magnet
schools program violated the Equal Protection Clause, they have not
"prevail[ed]" on those claims.

In sum, not only is there no statutory authority to award attorney’s
fees here, but even if such authority were present, the Capacchione
plaintiffs are not prevailing parties under § 1988. For these reasons,
there is no basis for an award of any attorney’s fees in this case.

VII.

Finally, CMS appeals the district court’s order awarding sanctions
— including legal fees and costs — to the Capacchione plaintiffs
arising from a discovery dispute. In the months before trial, CMS did
not respond to interrogatories by the Capacchione plaintiffs seeking
disclosure of fact witnesses. Instead, the Board waited until the week
before trial to reveal the names of most of its fact witnesses, provid-
ing the Capacchione plaintiffs with a list of 174 names which it ulti-
mately narrowed to twenty-six potential witnesses. The Board
maintains that its actions complied with the district court’s pretrial
order, which required the parties to provide a list of fact witnesses to
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 171
each other "[n]o later than the morning of the first day of trial." J.A.
150.

The district court, however, granted the Capacchione plaintiffs’
motion for sanctions. The court held that it had established the rules
for disclosure of fact witnesses in an order of September 1998, which
superseded the pretrial order. The September 1998 order denied the
Capacchione plaintiffs’ motion to compel disclosure of witnesses
prior to the date established in the pretrial order for disclosure of
expert witnesses, but the court stated that "CMS must supplement its
responses, as it promised, when such information becomes known."
J.A. 195. In awarding sanctions, the district court also indicated its
concern that CMS had been "lacking candor in disclosing relevant
and important information" during the pretrial stage, that the disclo-
sure of a list of 174 potential witnesses in the week before trial was
"extremely prejudicial to opposing counsel," and that many of the
witnesses on the list may have been "irrelevant or unnecessarily
cumulative." J.A. 305. As a result, the district court ordered a one-
week recess after the Capacchione plaintiffs’ presentation at trial to
allow them to depose, at the school system’s expense, any of the
twenty-six witnesses on the Board’s revised list. Witnesses whom the
Board did not make available for deposition or interview during the
mid-trial recess were barred from testifying.

"Rule 37(d) of the Federal Rules of Civil Procedure gives the dis-
trict court wide discretion to impose sanctions for a party’s failure to
comply with its discovery orders." Mutual Fed. Sav. & Loan Ass’n v.
Richards & Ass’ns., Inc., 872 F.2d 88, 92 (4th Cir. 1989). CMS could
plausibly have understood the deadline for disclosure of fact wit-
nesses contained in the pretrial order to have continued in effect after
the subsequent September 1998 order given that the subsequent
order’s central effect was to reaffirm the deadline contained in the
pretrial order for disclosure of expert witnesses. Nonetheless, we can-
not say that the district court abused its broad discretion in finding
that its September 1998 order did in fact supersede the pretrial order,
and that the Board’s pretrial conduct had been unnecessarily dilatory
and prejudicial to the Capacchione plaintiffs. Therefore the order of
sanctions against CMS must be affirmed.
172 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
VIII.

We must and do sympathize with those who are impatient with
continued federal court involvement in the operation of local schools.
One might consider thirty-five years a long time for a school district
to operate under judicial desegregation decrees. However, when the
Supreme Court decided Swann in 1971 no one could reasonably have
thought that the substantial task described there would be quickly or
easily accomplished. CMS, which maintained a separate, decidedly
unequal dual educational system for decades — and which mightily
resisted desegregation of any sort for years after it became the law of
the land — has come a long way. Although CMS has now achieved
unitary status in certain respects, the record in this case simply does
not support a determination that the process of desegregation is at an
end.

For more than a hundred years, in fits and starts, our nation has
attempted to undo the effects of its shameful heritage of slavery. For
nearly fifty years, federal courts have struggled with the task of dis-
mantling legally enforced racial segregation in many of our schools.
This task has given rise to one of the preeminent issues of constitu-
tional law in our time. We do not yet know how history will regard
the courts’ role in adjudicating and presiding over the desegregation
of schools. It may be seen as a brief and unfortunate jurisprudential
anomaly, justified only by the immediacy of the evil it was intended
to uproot, cf. Freeman, 503 U.S. at 505-07 (Scalia, J., concurring); or
it may be recognized as the necessarily sustained effort to eradicate
deep-seated vestiges of racial discrimination and to vindicate the
promise of the Fourteenth Amendment, cf. Dowell, 498 U.S. at 266-
68 (Marshall, J., dissenting); or it may be viewed in some other way
that we cannot now anticipate.

But we are certain that the end of this great task must be accom-
plished in an orderly manner, consistent with and true to its origin.
We are certain, too, that if the courts, at some point, come to view the
effort to eliminate the vestiges of segregation as having been overly
"race-conscious," they must do so with a clear assessment of the his-
torical record.

Race neutrality, of course, represents one of our constitutional
ideals. Properly understood, it is an ideal not at all in tension with our
 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 173
obligation as a society to undo the effects of slavery and of the racial
caste system that was perpetuated, for more than a century, in slav-
ery’s wake. But we must be ever mindful, as we strive for race neu-
trality, that a reductive and willfully ahistorical conception of race
neutrality was, in an earlier era, used as a blunt instrument against the
aspirations of African-Americans merely seeking to claim entitlement
to full citizenship.

In striking down early civil rights legislation, the Supreme Court
embraced this misconceived race neutrality, reasoning, only twenty
years after the issuance of the Emancipation Proclamation, that the
legislation at issue would illegitimately make black citizens "the spe-
cial favorite of the laws." Civil Rights Cases, 109 U.S. 3, 25 (1883).
Indeed, the system of segregation with which we are concerned was
justified at its inception by a particular conception of race neutrality
— that a regime of racial separation could be constitutionally justified
so long as it applied neutrally and equally to persons of all races. See
Plessy v. Ferguson, 163 U.S. 537, 551 (1896) ("We consider the
underlying fallacy of the plaintiff’s argument to consist in the
assumption that the enforced separation of the two races stamps the
colored race with a badge of inferiority.").

The first Justice Harlan, dissenting in Plessy, declared our Consti-
tution to be "color-blind," id., 163 U.S. at 559, and in doing so pro-
vided one of the most famous and compelling articulations of the
constitutional guarantee of equality. But in urging us to be "blind" to
race, Justice Harlan did not, as is sometimes suggested, suggest that
we be ignorant of it. In Plessy, he was the only member of the Court
willing to acknowledge the most obvious truth about segregation:
"Everyone knows that the statute in question had its origin in the pur-
pose, not so much to exclude white persons from railroad cars occu-
pied by blacks, as to exclude colored people from coaches occupied
or assigned to white persons." Id. at 557. Thirteen years earlier, dis-
senting in the Civil Rights Cases, Justice Harlan rejected the notion
that civil rights legislation made blacks a "special favorite of the
laws," id., 109 U.S. at 61, and he criticized the majority’s reasoning
as "narrow and artificial." Id. at 26.

We recognize now, as Justice Harlan recognized then, that no sim-
ple syllogism can enfold all of history’s burdens and complexities.
174 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Eliminating race-consciousness from government decision making
must be regarded as among our worthiest constitutional aspirations.
But that aspiration surely cannot be so rigid that it refuses to distin-
guish the "race consciousness" that created a segregated school sys-
tem and the race-conscious efforts necessary to eliminate that system.
While most judges are not historians, we must be willing to acknowl-
edge and confront our history. If we fail to do so, we risk falling into
a mode that equates the cure with the disease: civil rights with favorit-
ism, desegregation with segregation. As American citizens, we know
better.

We are honored to state that Judge Michael and Judge Gregory join
in this opinion.