Belk v. Charlotte-Mecklenburg

Filed: September 19, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 99-2389(L)
(CA-97-482-3-P, CA-65-1974-3-P)

Terry Belk, et al.,

Plaintiffs - Appellants,

versus

William Capacchione, etc., et al.,

Plaintiffs - Appellees.

O R D E R

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

follows:

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

“United States of America; North Carolina School Boards

Association; National School Boards Association.”

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

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

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

after “(1979)” to complete the cite.
 - 2 -

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

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

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

corrected to read “See ante at 34.”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
Rehearing en banc granted by order filed 1/17/01;
published opinion filed 11/30/00 is vacated
Volume 1 of 3

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TERRY BELK; DWAYNE COLLINS, on
behalf of themselves and the class
they represent,
Plaintiffs-Appellants,

v.

WILLIAM CAPACCHIONE, Individually
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN
BENTLEY; CHARLES THOMPSON; SCOTT
C. WILLARD,
Plaintiffs-Appellees,

and
No. 99-2389
THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg
School Board, in his official
capacity,
Defendants.

UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
Amici Curiae.
WILLIAM CAPACCHIONE, Individually
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN
BENTLEY; CHARLES THOMPSON; SCOTT
C. WILLARD,
Plaintiffs-Appellees,

and

TERRY BELK; DWAYNE COLLINS, on
behalf of themselves and the class
they represent,
Plaintiffs,

No. 99-2391
v.

THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg
School Board, in his official
capacity,
Defendants-Appellants.

UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
Amici Curiae.

2
WILLIAM CAPACCHIONE, Individually
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN
BENTLEY; CHARLES THOMPSON; SCOTT
C. WILLARD,
Plaintiffs-Appellees,

and

TERRY BELK; DWAYNE COLLINS, on
behalf of themselves and the class
they represent,
Plaintiffs,
No. 00-1098
v.

THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg
School Board, in his official
capacity,
Defendants-Appellants.

v.

UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
Amici Curiae.

3
WILLIAM CAPACCHIONE, Individually
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN BENTLEY;
CHARLES THOMPSON; SCOTT C.
WILLARD,
Plaintiffs-Appellees,

and

TERRY BELK; DWAYNE COLLINS, on
behalf of themselves and the class
they represent,
Plaintiffs,
No. 00-1432
v.

THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg School
Board, in his official capacity,
Defendants-Appellants.

UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
Amici Curiae.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-97-482-3-P, CA-65-1974-3-P)

Argued: June 7, 2000

Decided: November 30, 2000

Before MOTZ, TRAXLER, and KING, Circuit Judges.

4
Affirmed in part, reversed in part, vacated in part, and remanded by
published opinion. Judge Motz and Judge King wrote the opinion.
Judge Traxler wrote a concurring and dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Stephen Luke Largess, FERGUSON, STEIN, WALLAS,
ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina;
John W. Borkowski, HOGAN & HARTSON, L.L.P., Washington,
D.C., for Appellants. Allan Lee Parks, PARKS, CHESIN & MILLER,
P.C., Atlanta, Georgia, for Appellees. ON BRIEF: James E. Fergu-
son, II, John W. Gresham, C. Margaret Errington, FERGUSON,
STEIN, WALLAS, ADKINS, GRESHAM & SUMTER, P.A., Char-
lotte, North Carolina; Elaine R. Jones, Director-Counsel, Norman J.
Chachkin, Gloria J. Browne, NAACP LEGAL DEFENSE & EDU-
CATIONAL FUND, INC., New York, New York; Allen R. Snyder,
Maree Sneed, HOGAN & HARTSON, L.L.P., Washington, D.C.;
James G. Middlebrooks, Irving M. Brenner, Amy Rickner Langdon,
SMITH, HELMS, MULLISS & MOORE, L.L.P., Charlotte, North
Carolina; Leslie J. Winner, General Counsel, CHARLOTTE-
MECKLENBURG BOARD OF EDUCATION, Charlotte, North Car-
olina, for Appellants. Kevin V. Parsons, PARKS, CHESIN & MIL-
LER, P.C., Atlanta, Georgia; John O. Pollard, MCGUIRE, WOODS,
BATTLE & BOOTHE, Charlotte, North Carolina; William S. Hel-
fand, MAGENHEIM, BATEMAN, ROBINSON, WROTENBERY &
HELFAND, Houston, Texas; Thomas J. Ashcraft, Charlotte, North
Carolina, for Appellees. Bill Lann Lee, Acting Assistant Attorney
General, Mark L. Gross, Rebecca K. Troth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae
United States. Michael Crowell, Lisa Lukasik, THARRINGTON
SMITH, L.L.P., Raleigh, North Carolina; Allison B. Schafer, General
Counsel, NORTH CAROLINA SCHOOL BOARDS ASSOCIA-
TION, Raleigh, North Carolina; Julie K. Underwood, General Coun-
sel, NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria,
Virginia, for Amici Curiae Associations.

_________________________________________________________________

5
OPINION

DIANA GRIBBON MOTZ
& ROBERT BRUCE KING, Circuit Judges:

Since 1954, the school boards throughout this country, including
the Charlotte-Mecklenburg Board of Education, have been operating
under a standing Supreme Court mandate to integrate their school sys-
tems and eliminate all vestiges of de jure segregation. Brown v. Board
of Educ., 347 U.S. 483, 490 (1954) ("Brown I"). During the twenty
years following the Supreme Court's mandate, the Charlotte-
Mecklenburg Board of Education ("CMS" or the"Board") resisted all
efforts to expedite desegregation, essentially arguing that, in light of
the centuries over which the dual system of education had come to
fruition, the Board would need a proportional period of time to
develop remedies aimed at correcting past wrongs. Faced with this
intransigence, the Supreme Court unanimously decided in 1971 that
the Constitution required the Board to take affirmative measures,
including the use of race-based ratios in student assignment, to eradi-
cate vestiges of its invidious discrimination. See Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).

Finally, in 1975, the Board began seeking to fulfill the Supreme
Court's mandate that public schools be desegregated with "all deliber-
ate speed." Brown v. Board of Educ., 349 U.S. 294, 299 (1955)
("Brown II"). Today, with the Board having had less than twenty-six
years to implement appropriate remedies, we must decide whether the
task of desegregating the Charlotte-Mecklenburg schools has reached
its end.

We hold that it has not. Over the Board's own admission to the
contrary, the district court concluded that the school system had
achieved unitary status across the board. While the district court made
findings sufficient to hold that CMS had achieved unitary status in
some respects, the court failed to adequately explore the return of pre-
dominantly one-race schools as a vestige of segregation, rendering its
findings insufficient to conclude that CMS has achieved unitary status
in every respect.

In an equally unprecedented ruling, the district court held that the
school system, although operating under court orders to desegregate

6
its schools, violated the Constitution by employing a magnet school
program that considered race in student assignment. On the contrary,
because the Board's expanded magnet schools program -- and the
race-sensitive method of student selection it employed -- was
undertaken both to remedy the effects of past segregation and to com-
ply with governing court orders, they did not and could not violate the
Constitution.

In this appeal, we consider the above rulings along with a number
of related issues. As explained below, we affirm in part, reverse in
part, vacate in part, and remand this case for further proceedings.

I.

A.

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

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

In the middle of the 1900s, the Supreme Court began dismantling
the great wall of segregation constructed under the imprimatur of
Plessy. The Court initially sought to determine whether various "sepa-
rate" African-American schools were genuinely "equal" to white
schools by evaluating the quality of physical facilities, curricula, fac-
ulty, and certain "intangible" considerations. See, e.g., Sweatt v.
Painter, 339 U.S. 629 (1950); Sipuel v. Board of Regents of Univ. of

7
Okla., 332 U.S. 631 (1948). In each instance, the Court concluded
that they were not. Id.

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

Notwithstanding the Court's repeated admonition that segregation
and its vestiges be eliminated "root and branch," Green v. County Sch.
Bd. of New Kent County, 391 U.S. 430, 437-48 (1968), many school
boards -- CMS included -- adopted "an all too familiar" response to
the mandate of Brown II, interpreting "all deliberate speed" "as giving
latitude to delay steps to desegregate." Freeman v. Pitts, 503 U.S.
467, 472 (1992). And so, lower federal courts, with the guidance and
oversight of the Supreme Court, began fashioning equitable remedies
to contend with school board recalcitrance. For example, in Green,
the Supreme Court held that a "freedom of choice" plan, which per-
mitted students -- regardless of race -- to choose the school they
would attend, was by itself insufficient to meet the mandate of Brown.
391 U.S. at 430. In so holding, the Court recognized that more inten-
sive efforts would be necessary in order to make "meaningful and
immediate progress toward disestablishing state-imposed segrega-
tion." Id. at 439. Subsequently, in this very case, the Court approved
significant federal court intervention into a school system in order to
eliminate segregation "root and branch," including the busing of stu-
dents from schools close to their homes to schools farther away, the

8
use of race-based "mathematical ratios," and the alteration of student
attendance zones. Swann, 402 U.S. at 15, 25, 28, 30-31.

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

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

B.

1.

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

2.

In 1965, the parents of African-American children attending CMS
(hereinafter the "Swann plaintiffs")11 filed a class action seeking
injunctive relief, claiming that the Board's policies and practices were
perpetuating a segregated school system. Swann v. Charlotte-
Mecklenburg Bd. of Educ., 243 F. Supp. 667, 668 (W.D.N.C. 1965).
_________________________________________________________________

1 Since this case was first filed in 1965, the various successor plaintiffs
have been referred to as the Swann plaintiffs, a practice we continue to
observe here.

9
On July 14, 1965, the district court approved a Board-proposed plan
that closed certain black schools, built new schools, and established
school attendance zones based on neighborhoods. But the linchpin of
this plan was its grant of permission to each student -- regardless of
race -- to freely transfer to a different school (often described as a
"freedom of choice" plan). Id. In approving this plan, the district court
held that CMS had no affirmative duty to "increase the mixing of the
races"; instead, the Board's obligation under Brown II, according to
the court, was to act without the intent to perpetuate segregation. Id.
at 670. The following year, this Court affirmed the district court's
interpretation of Brown II. See Swann v. Charlotte-Mecklenburg Bd.
of Educ., 369 F.2d 29, 32 (4th Cir. 1966) ("Whatever the Board may
do in response to its own initiative or that of the community, we have
held that there is no constitutional requirement that it act with the con-
scious purpose of achieving the maximum mixture of the races in the
school population.").

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

3.

In 1969, Judge James B. McMillan, newly assigned to the Swann
case,2
2 reexamined the Board's actions in light of Green and deter-
mined that its "freedom of choice" plan, when coupled with geo-
graphic zoning, were "not furthering desegregation." 300 F. Supp. at
1372. On the fundamental matters of assigning students and faculty,
and the siting of new schools, the court made the following findings:

- Student assignment: The court noted that a ratio of seventy percent
white students to thirty percent black students, which approxi-
_________________________________________________________________

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

10
 mated the ratio of white to black students in the county, tended to
aid "better students [in holding] their pace, with substantial
improvement for the poorer students." Id. at 1369.

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

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

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

Once again, however, CMS was slow to respond, prompting Judge
McMillan to impose a deadline of August 4, 1969, by which the
Board was to submit a detailed desegregation plan to the court. See
Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F. Supp. 1381,
1382, 1386 (W.D.N.C. 1969). CMS complied, and its proposed
desegregation plan appeared to accept, for the first time, the constitu-
tional duty to desegregate students, teachers, principals, and staffs "`at
the earliest possible date.'" Swann v. Charlotte-Mecklenburg Bd. of
Educ., 306 F. Supp. 1291, 1293 (W.D.N.C. 1969). The Board's pro-
posed desegregation plan, approved by the district court on an interim
basis ("interim desegregation plan"), included programs for faculty
desegregation, the closing of seven all-black schools, and the reas-
signment of pupils from the closed schools to outlying, predominantly
white schools. Id. at 1298-99. In approving the plan on an interim
basis, the district court noted that black children were bearing a dis-

11
proportionate burden of the desegregation efforts, but the court none-
theless concluded that some action -- even if interim -- was
preferable to none at all. Id. at 1298. Judge McMillan also ordered the
Board to submit another desegregation plan within three months.

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

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

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

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

12
The Finger Plan included several components. First, students were
to be assigned "in such a way that as nearly as practicable the various
schools at various grade levels have about the same proportion of
black and white students." Id. at 268. Second, "no school [could] be
operated with an all-black or predominantly black student body." Id.
Third, in redrawing the school system's attendance zones, the Board
was authorized to use bus transportation and noncontiguous "satellite
zones"33 to accomplish its goals. Id. Fourth, the district court restricted
the student transfer policy in order to safeguard against resegregation.
Id. at 268-69. Fifth, the race of faculty members at each school had
to approximate the ratio of black and white faculty members through-
out the system. Id. at 268. Sixth, the overall competence of teachers
at formerly black schools could not be inferior to those at formerly
white schools. Id. Finally, the district court mandated that the Board
monitor and report on its progress in implementing the plan. Id. at
269.

The Finger Plan was challenged on several occasions and, in 1971,
the Supreme Court upheld it as a valid exercise of the district court's
equitable powers. Swann, 402 U.S. at 31-32. Indeed, the Court specif-
ically found that the district court's adoption of a student assignment
plan that used race-based "mathematical ratios" as a starting point was
well within the court's "equitable remedial discretion." Id. at 25.

Even after the Supreme Court's decision in Swann, the district
court found that the Board's desegregation efforts failed to meet con-
stitutional requirements. For example, Judge McMillan ordered stu-
dent assignment proposals revised in June 1971, finding that the
proposals "were discriminatory in detail and in overall result; they
_________________________________________________________________

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

13
placed increasing burdens upon black patrons while partially relieving
white patrons of similar burdens." Swann v. Charlotte-Mecklenburg
Bd. of Educ., 328 F. Supp. 1346, 1347 (W.D.N.C. 1971). During the
1971-72 and 1972-73 school years, the district court attempted a
"hands-off" approach, leaving the Board to remedy problems as they
arose, but the court twice found that the Board still had not adopted
sufficient measures to guard against resegregation and ensure that
whites were bearing an appropriate share of the desegregation burden.
See Swann v. Charlotte-Mecklenburg Bd. of Educ., 362 F. Supp.
1223, 1230 (W.D.N.C. 1973); Swann v. Charlotte-Mecklenburg Bd.
of Educ., 379 F. Supp. 1102 (W.D.N.C. 1974); see also discussion of
specific findings infra.

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

Finally, in July 1975, over twenty years after the mandate of Brown
II, Judge McMillan for the first time observed, albeit with reserva-
tions, that the Board was actually working toward desegregation:
"The new Board has taken a more positive attitude toward desegrega-
tion and has at last openly supported affirmative action to cope with
recurrent racial problems in pupil assignment." Swann v. Charlotte-

14
Mecklenburg Bd. of Educ., 67 F.R.D. 648, 649 (W.D.N.C. 1975).
Although the district court cautioned that problems remained, the new
vigor with which the Board was pursuing desegregation persuaded
Judge McMillan to close Swann as an active matter of litigation and
to remove it from the court's docket. Id. at 649-50. In so acting, the
court reaffirmed that its orders still stood: "[t]his case contains many
orders of continuing effect, and could be re-opened upon proper
showing that those orders are not being observed." Id. at 649.

4.

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

a.

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

A brief review of Spangler and Bakke is necessary to an under-
standing of Martin. In Spangler, the Supreme Court held that because
the Pasadena Unified School District ("PUSD") had achieved racial
neutrality in its school attendance pattern, "the District Court was not
entitled to require the PUSD to rearrange its attendance zones each
year so as to ensure that the racial mix desired by the court was main-
tained in perpetuity." 427 U.S. at 436. All parties in Spangler agreed
that the plan initially achieved racial neutrality in student attendance;
nonetheless, the district court had believed it was empowered to annu-
ally readjust school boundaries to ensure in perpetuity that there
would be no majority of any minority race at any Pasadena school.
Id. at 433, 436. In Bakke, the Supreme Court determined that a public
university with no history of discrimination could not constitutionally

15
reserve sixteen out of one hundred admission slots for racial minori-
ties. 438 U.S. at 319-20. In striking down this admissions plan, the
Court had made clear that "[w]hen a classification denies an individ-
ual opportunities or benefits enjoyed by others solely because of his
race or ethnic background, [it must] be regarded as [constitutionally]
suspect." Id. at 305.

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

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

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

***

The culture and attitudes and results of three centuries of
segregation cannot be eliminated nor corrected in ten years.
Human nature and practices don't change that fast, even in
the hands of people of good will like the members of the

16
 present School Board. They need time to work their own
experiments, and to find their own ways of producing the
sustained operation of a system of schools in which racial
discrimination will play no part. I vote to uphold their
efforts to date, and to give them that time.

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

b.

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

5.

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

17
6.

In September 1997, William Capacchione, individually and on
behalf of his daughter Christina, sued CMS claiming that Christina
was unconstitutionally denied admission to a magnet school. Chris-
tina is Hispanic and Caucasian, and her suit under 42 U.S.C. § 1983
sought declaratory, injunctive, and compensatory relief. In response,
CMS moved to dismiss Capacchione's suit and, almost simulta-
neously, the Swann plaintiffs moved to reactivate Swann, claiming
that CMS was not yet in compliance with past desegregation orders
and had not yet achieved unitary status. Because Judge McMillan had
died, the cases were assigned to Senior Judge Robert D. Potter, who
restored Swann to the district court's docket, consolidated the cases,
denied CMS's motion to dismiss, and granted Capacchione's motion
to intervene.44

The Capacchione plaintiffs claimed that CMS had long since elim-
inated the vestiges of segregation in its schools, and that its formerly
dual system of white and black schools had, for some time, been uni-
tary. They also contended that CMS, while still operating under the
court's desegregation orders, had violated those orders and the consti-
tutional rights of white students in its efforts to desegregate the school
system by employing a race-conscious assignment lottery in its
expanded magnet schools program. The Swann plaintiffs countered
that the school system had not yet achieved unitary status. CMS
acknowledged that it was not yet in compliance with past desegrega-
tion orders and agreed that it should not be declared to have achieved
unitary status. CMS also contended that, in any event, the expanded
magnet schools program constituted an entirely constitutional and
_________________________________________________________________

4 Since filing suit, the Capacchiones have moved to California. Based
on that fact and other findings, the district court determined that William
Capacchione no longer possessed standing to seek injunctive or declara-
tory relief, but that he did have standing to pursue compensatory relief.
Capacchione v. Charlotte-Mecklenburg Sch., 57 F. Supp. 2d 228, 240
(W.D.N.C. 1999). Another group of white parents intervened in the con-
solidated action and that group, represented by plaintiff Michael Grant,
claimed that CMS has achieved unitary status. The various groups of
plaintiffs that have joined in Capacchione's claims are hereinafter
referred to as "the Capacchione plaintiffs."

18
appropriate integration tool authorized under the desegregation orders
in this case. The Swann plaintiffs, while endorsing the concept of
magnet schools, argued that the expanded magnet schools program,
as implemented, was contributing to the resegregation of the school
system.

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

Following the filing of timely notices of appeal, the Swann plain-
tiffs and CMS sought a stay of Judge Potter's September 9, 1999
injunction. On December 30, 1999, we granted the requested stay
pending further order of this court. Thereafter, the Capacchione plain-
tiffs petitioned for an initial hearing en banc, which was denied by an
eight-to-three vote of the Court. Belk v. Charlotte-Mecklenburg Bd.
of Educ., 211 F.3d 853 (4th Cir. 2000). The panel heard argument in
these appeals on June 7, 2000.

C.

We are now called upon to review the district court's various deter-
minations relating to these consolidated appeals. Having reviewed
and carefully considered each of the important questions determined
by the district court, we affirm in part; however, we must reverse in
part, and we must vacate and remand on certain issues.

The district court's findings suffice to uphold its determination that
the Board achieved progress toward desegregation in the 1970s and

19
1980s, and the court was therefore justified in concluding that CMS
had achieved unitary status in some respects. However, the district
court's findings do not support its conclusion that CMS has attained
unitary status in every respect. Moreover, even if CMS could now
properly be found to have achieved unitary status in toto, it would be
inappropriate to assess the expanded magnet schools program as if
there had been no court order in place. The expanded magnet schools
program and the race-conscious lottery it employed were undertaken
to remedy the effects of past segregation and were in compliance with
court orders governing this case; they do not violate the Constitution.
Consequently, the award of nominal damages, substantial attorney's
fees, and an overbroad injunction barring any future consideration of
race in school assignments and other fundamental aspects of school
operations cannot stand.

II.

We first address the district court's unitary status decision. The
determination of whether any part of a school system has achieved
unitary status is a factual one; therefore, we review the district court's
findings as to unitary status for clear error. See Riddick v. School Bd.
of the City of Norfolk, 784 F.2d 521, 533 (4th Cir. 1986); see also
Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F.2d
945, 952 n.3 (11th Cir. 1989) (citing United States v. Texas Educ.
Agency, 647 F.2d 504, 506 (5th Cir. Unit A 1981)). We do not, how-
ever, defer to the district court on conclusions of law, including the
district court's understanding of controlling law or the various bur-
dens of proof and presumptions; consequently, we review any such
conclusions of law de novo. See, e.g., In re Brice, 188 F.3d 576, 577
(4th Cir. 1999).

A.

1.

Indisputably, the school system of Charlotte-Mecklenburg County
subjected African-Americans to nearly a century of segregation and
discrimination. Indeed, the Supreme Court recognized as much in
Swann, noting that North Carolina was one of the states with "a long
history of maintaining two sets of schools in a single school system

20
deliberately operated to carry out a governmental policy to separate
pupils in schools solely on the basis of race." 402 U.S. at 5-6. In this
context the remedies forcefully endorsed in Brown II, including the
use of race conscious measures, are necessary to eradicate the invidi-
ous segregation at which they are aimed.

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

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

5 For convenience, we refer to the original Green factors and any ancil-
lary factors identified by the district court as "Green factors."

21
2.

For school systems proceeding through the difficult process of
desegregation, the Supreme Court has adopted the goal of achieving
unitary status. Freeman, 503 U.S. at 486-87; Board of Educ. of Okla.
City Pub. Sch. v. Dowell, 498 U.S. 237, 245-46 (1991). Although
prior to the Court's Dowell and Freeman decisions federal courts used
the term "unitary status" somewhat inconsistently, see Freeman, 503
U.S. at 486-87; Green, 391 U.S. at 437-38, the term has now come
to mean that the school system has been unified such that the vestiges
of segregation have been eliminated to the extent practicable. Free-
man, 503 U.S. at 487; Green, 391 U.S. at 437-38. When a school sys-
tem achieves unitary status, federal courts must withdraw supervision
over the local school board.

In this case, Judge Potter declared that CMS had achieved unitary
status in every respect. The Supreme Court has directed that an appel-
late court review a district court's unitary status determination by
applying a two-part inquiry (the "Freeman inquiries"). An appellate
court must determine if (1) a school Board has, in good faith, com-
plied with the desegregation decree since it was entered; and (2) the
vestiges of de jure segregation in the school system have been elimi-
nated to the extent practicable. See Freeman, 503 U.S. at 492 (citing
Dowell, 498 U.S. at 249-50).

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

22
The Freeman analysis brings us to the most difficult questions
presented in any desegregation case: whether present racial isolation
is a vestige of past segregation and, if so, whether a school board can
practicably reduce that racial isolation. It is even difficult to define
"vestige" in this context. See id. at 502 (Scalia, J., concurring) ("We
have never sought to describe how one identifies . . . a `vestige' or
a `remnant' of past . . . ."). The vestiges "that are the concern of the
law may be subtle and intangible but nonetheless they must be so real
that they have a causal link to the de jure violation being remedied."
Id. at 496 (Kennedy, J.); see also id. at 512 (Souter, J., concurring)
(citing Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 465 & n.13
(1979), and Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 211
& n.17 (1973)) (court must order affirmative remedy where school
board's conduct "create[d] or contribute[d] to" racial identifiability of
schools). We adhere to the most common-sense meaning of "vestige":
it is a condition or occurrence causally related to the former de jure
system of segregation.

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

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

23
consistent with Freeman, we also must weigh the degree of interre-
latedness existing between the various Green factors.

B.

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

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

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

24
but crucial, to establishing both the existence of vestiges of segrega-
tion and the practicability of remedial measures.

Judge Potter responded with two rulings. First, Judge Potter
explained in assessing whether CMS had achieved unitary status that
he believed Freeman required him to consider just one thing: "only
. . . what CMS has done, not what it may do in the future." See Order
of April 14, 1999 at 4. Second, based on this understanding of Free-
man and the unitary status test, Judge Potter concluded that the Reme-
dial Plan was irrelevant: "If the Court later determines that additional
remedial measures are needed, it may consider the plan. Until that
time comes, however, the Court will not get mired in the complex
details and mechanics of a proposed plan." Id. at 5.6
6

We believe Judge Potter erred in both of these rulings. First, he
misapprehended Freeman and its test for unitary status. At the outset,
Freeman explicitly rejects, as a matter of law, the very analysis
adopted by the district court. That is, under Freeman, a district court
must consider (1) compliance with prior orders (i.e., "what CMS has
done"), and (2) whether vestiges have been eliminated to the extent
practicable (i.e., "what [CMS] may do in the future"). See Freeman,
503 U.S. at 491; see also Order of April 14, 1999 at 4. By construing
Freeman's unitary status test to include the former ("what CMS has
done") but not the latter ("what [CMS] may do in the future"), Judge
Potter erred as a matter of law.
_________________________________________________________________

6 Judge Potter also chided CMS for proffering the Remedial Plan "after
the deadline for fact discovery and expert witness discovery had
expired." On the contrary, CMS fulfilled all of its duties under the fed-
eral rules, appropriately supplementing its responses to discovery
requests as soon as the Remedial Plan had been adopted. Furthermore,
a more precipitant proposal could not have incorporated the various
expert perspectives developed during discovery. A similar plan submit-
ted earlier in the course of the litigation necessarily would have been
based largely on speculation and supposition, and therefore would have
been far less useful and pertinent. As it was, the Plan was tendered in
advance of the non-jury trial, and, of great significance, almost five
months before the district court issued its decision. Neither the court nor
the parties could have been inconvenienced by the necessary timing of
the Remedial Plan's submission.

25
The Remedial Plan directly addresses the latter inquiry, and it does
so in an apt, informed manner, relying on the considered opinions of
highly capable professionals retained to analyze the latest available
data. In other words, the district court's second reason for excluding
the Plan -- relevancy -- also fails to withstand scrutiny.77 There is no
doubt that Judge Potter had wide discretion on this issue, but rele-
vancy is a fluid concept under the Federal Rules of Evidence. See
Fed. R. Evid. 401 (defining relevant evidence as "having any ten-
dency to make the existence" of any material fact"more probable or
less probable than it would be without the evidence"). Consequently,
relevancy typically presents a rather low barrier to admissibility. See,
e.g., United States v. Van Metre, 150 F.3d 339, 349 (4th Cir. 1998)
(citing United States v. Powers, 59 F.3d 1460, 1465 (4th Cir. 1995)).

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

7 Taking the district court at its word that the only question before it
initially was the extent of the Board's compliance with the prior desegre-
gation orders, the Remedial Plan was nonetheless highly relevant for
even that purpose. The ease with which some of the proposed Plan reme-
dies could be realized, e.g., merely distributing available funding to
address the stark disparity in basic resources such as instructional materi-
als and media centers, see J.A. 11040, strongly suggests that the Board
had not fully implemented the long-standing dictates of the prior orders.
The court nonetheless observed that "while the goal of perfect compli-
ance with court orders has remained elusive, no evidence has been
presented that school authorities were guilty of easily correctable errors."
Capacchione, 57 F. Supp. 2d at 283. To the contrary, the Plan thoroughly
documented the Board's failings and the facility with which they could
be rectified. The district court simply chose to ignore this highly relevant
evidence.

26
Without a doubt, federal courts possess the final word in deciding
whether a particular school system is operating within the parameters
of the Constitution. Appreciable weight must be given, however, to
the views of those selected by the community to administer the sys-
tem. See Dowell, 498 U.S. at 248 (noting specialized knowledge pos-
sessed by local school officials).8
8 In refusing to consider the Plan, the
district court erroneously failed to accord the Board's official position
any weight, much less the respect that it was due.

That the district court so completely disregarded this crucial evi-
dence is telling. Nonetheless, we have carefully examined each con-
clusion below, ever mindful of the deference accorded the factfinder.
The manifest importance of this case (quite apart from the substantial
time and energy invested by the parties and the court below) demands
that we carefully explain the myriad aspects of our decision today.
We now embark upon that task.

1. Student Assignment

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

8 Though we need not grant CMS the same deference afforded the pro-
mulgations and adjudications of a federal administrative agency, the for-
mal declarations of its governing Board "do constitute a body of
experience and informed judgment to which courts and litigants may
properly resort for guidance." Ritter v. Cecil County Office of Housing
& Community Dev., 33 F.3d 323, 328 (4th Cir. 1994) (quoting Skidmore
v. Swift & Co., 323 U.S. 134, 140 (1944)).

27
We must now determine whether present racial isolation in CMS
may be a vestige of the former dual system, and, if so, whether there
are practicable measures CMS could take to reduce or eliminate that
isolation. In doing so, we are bound to focus particularly on the
Board's record of compliance with the district court's desegregation
orders. See id. at 492 (citing Dowell). Because significant and grow-
ing racial imbalances in student assignment do exist in CMS, because
the Board for decades has failed to comply with certain specific
decrees of the district court (particularly regarding the siting of new
schools), because these failures may have contributed to current racial
isolation, and because future compliance might practicably reduce
this racial isolation, we must vacate the district court's finding that
CMS has achieved unitary status with respect to student assignment.

a.

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

9 Judge McMillan's final desegregation order mandated, inter alia, that
no school should become "racially identifiable." Swann, 311 F. Supp. at
268. Judge Potter interpreted the phrase synonymously with "racially
imbalanced," which, as noted within, describes a school with an African-
American student population deviating more than fifteen points in either
direction from the county-wide norm. See Cappachione, 57 F. Supp. 2d
at 246.

28
dents who attend racially identifiable schools (now almost three in
ten) has risen fifty percent. J.A. 9589.

Indisputably, from 1981 until 1997, the CMS school system went
through significant demographic changes. For example, the total pop-
ulation of Mecklenburg County has grown from 354,656 in 1970 to
613,310 in 1997. J.A. 16247. Almost 100,000 children attend CMS,
making it the twenty-third largest school system in the country. J.A.
7107. During the period from 1970 to 1997, the black school-age pop-
ulation (ages 5 through 17) in the county has increased by approxi-
mately 10,000. J.A. 16247. Over the same period, the corresponding
white school-age population has decreased by approximately 3,000,
id., and by 1997, African-Americans comprised 34 percent of the
county's school-age population, the total of which numbered approxi-
mately 108,600. Evidence before the district court revealed that, since
1970, the growing African-American population has migrated out-
ward from the inner city into formerly white suburbs. In turn, many
white citizens who formerly populated the city's periphery have
moved even farther into the county's outlying reaches. Though parts
of the county have become more integrated as the result of these
shifts, a disproportionately large number of African-Americans still
reside in contiguous clusters generally north and west of the down-
town area.

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

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

29
of present or past discriminatory action." Id.; see also Riddick, 784
F.2d at 535.

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

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

Swann, 402 U.S. at 21.

Subsequent to the Supreme Court's decision in Swann, Judge
McMillan specifically ordered that site selection for new schools
could not "be predicated on population trends alone." 379 F. Supp. at
1107. New schools were "to be built where they can readily serve
both races." Id. In the 1979 Martin decision,10
10 Judge McMillan
_________________________________________________________________

10 Judge Potter incorrectly declared that "Martin was not a unitary sta-
tus hearing[.]" Capacchione, 57 F. Supp. 2d at 250. In fact, as the accom-

30
devoted an entire section of his opinion to demonstrating that "con-
struction, location and closing of school buildings continue to pro-
mote segregation." 475 F. Supp. at 1329. Judge McMillan explained
that "[t]he location of schools plays a large if not determinative role
in . . . insuring that any given assignment and feeder plan will provide
meaningful desegregation, rather than just the predictably short lived
appearance of desegregation." Id. at 1332.

In the years since this decree was issued, CMS has built twenty-
five of twenty-seven new schools in predominantly white suburban
communities. In the mid-1980s, CMS adopted a formal policy of
building "midpoint" schools -- schools located midway between
black and white population centers. There is little evidence, however,
to suggest that CMS faithfully adhered to this policy. Rather, record
evidence strongly indicates that the policy influenced the site selec-
tion for, at most, four of the twenty-seven new schools. See J.A.
15404-06. Meanwhile, as we discuss infra, there is substantial evi-
dence that CMS has allowed many of its older school facilities in the
city -- schools attended in disproportionate numbers by African-
American students -- to fall into a state of disrepair.

The Board's record of building the great majority of its new
schools on the predominantly white suburban fringe of the county
supports two possible conclusions. On one hand, CMS could have
been responding to demographic reality -- a demand for new class-
rooms in areas of high population growth (although we note that the
number of white students in CMS has decreased since 1970, while the
black student population has greatly increased). On the other hand,
the Board's pattern of school construction could have facilitated or
even hastened white flight to the suburbs. As the Supreme Court
explained in Swann, "[p]eople gravitate toward school facilities, just
as schools are located in response to the needs of people. The location
of schools may thus influence the patterns of residential development
_________________________________________________________________

panying text indicates, the white parents in Martin contended, as the
Capacchione plaintiffs do today, that CMS had achieved unitary status.
Intervening African-American parents, like those herein, maintained to
the contrary. In actuality, there is little difference between today's case
and Martin, and Judge McMillan's findings in the latter are as binding
on the parties as any others made in the course of this litigation.

31
of a metropolitan area and have important impact on composition of
inner-city neighborhoods." 402 U.S. at 20-21. The Board's school sit-
ing policies could well evidence its lack of political will in the face
of pressure to abandon desegregative policies -- pressure from fami-
lies who "are concerned about the racial composition of a prospective
school and [who] will make residential decisions accordingly." Free-
man, 503 U.S. at 513 (Blackmun, J., concurring).

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

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

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

32
schools CMS acted in compliance with the governing court orders and
Constitution to eliminate the vestiges of segregation to the extent
practicable.

"To fulfill this duty, school officials are obligated not only to avoid
any official action that has the effect of perpetuating or reestablishing
a dual school system, but also to render decisions that further desegre-
gation and help to eliminate the effects of the previous dual school
system." Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090,
1095 (11th Cir. 1992) (citing Pitts v. Freeman , 755 F.2d 1423, 1427
(11th Cir. 1985)). Therefore, CMS had to do more than merely select
sites for new schools on a nondiscriminatory basis. It had to do more,
too, than simply give some consideration to "diversity" in its selection
of sites. To the extent practicable, CMS had to site new schools
"where they can readily serve both races." 379 F. Supp. at 1107; see
also Swann, 402 U.S. at 21; Martin, 475 F. Supp. at 1329-32. Judge
Potter never found that CMS had met this standard, and as outlined
within, there is substantial record evidence that CMS did not do so.

In accordance with Swann, the burden is on the Capacchione plain-
tiffs to prove that vestiges of past discrimination do not remain, or
that nothing can practicably be done to remedy them. We note that
Judge McMillan, in his last published decision in this case, clearly
evidenced his understanding both that CMS had not done all that it
could do in the area of school siting and that future school siting deci-
sions could practicably advance the process of desegregation. On
remand, it is thus incumbent on the Capacchione plaintiffs to demon-
strate that conditions in Charlotte and Mecklenburg County have
changed sufficiently such that school siting no longer represents a
practicable opportunity to eliminate the vestiges of segregation.

The Swann plaintiffs have identified additional areas in which
CMS has fallen short of its obligations under the court orders. For the
life of the desegregation orders, CMS has consistently placed the
heaviest burden of mandatory busing on African-American students.
Currently, 80% of those students who ride the bus as a result of a
mandatory assignment are African-American. J.A. 11515. Judge
McMillan repeatedly ordered CMS to distribute this burden more
fairly. See 475 F. Supp. at 1339-40; 379 F. Supp. at 1103-04; 362 F.
Supp. at 1232-33. Yet, CMS has utterly failed to do so. In addition,

33
CMS has never developed an effective system for monitoring student
transfers to ensure that the overall effect of such transfers is not to
increase the racial imbalance in the system as a whole. Again, this
represents a failure to comply with the explicit instructions of the dis-
trict court. See 475 F. Supp. at 1337-38; 379 F. Supp. at 1103-04; 362
F. Supp. at 1229-30. We are troubled by these failings on the part of
CMS. They provide additional support for a conclusion that, in the
face of political pressure, CMS has not done all that it could do to
eliminate the vestiges of segregation.

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

b.

If the vestiges of official discrimination have indeed been elimi-
nated to the extent practicable with respect to student assignment,
then there is little reason to prolong court supervision. In light of the
district court's failure, however, to recognize the Board's continuing
noncompliance with respect to student assignment -- administered as
recently as twenty years ago in a manner reinforcing the once-official
notion that African-Americans are inferior -- we have no confidence
in the court's ultimate finding that these vestiges have now disap-
peared. We are therefore obliged to vacate the portion of the judgment
below relating to student assignment and remand for further proceed-
ings.

On remand, the district court must first determine whether, since
Judge McMillan's decision in Martin, CMS has fulfilled its constitu-
tional and court-imposed obligations with regard to site selection for
new schools. If CMS has failed to fulfill its obligations, the district
court must then determine whether this failure contributed to the pres-
ent condition of racial isolation in the school system. Finally, if CMS
did fail to live up to its constitutional and judicially decreed obliga-

34
tions, and if that failure did contribute to the present racial imbal-
ances, then the court must determine if proper site selection is a
practicable remedy for the lingering effects of the Board's past dis-
criminatory practices. If not, then the district court should relinquish
control over student assignment: there is nothing further that CMS
can practicably do to eliminate the vestiges of the prior de jure sys-
tem.

If, however, proper sites can be found, then the district court should
retain control over student assignment. The court might decide, for
example, that most or all new schools constructed over the next sev-
eral years be located proximate to the inner city or in midpoint areas
already integrated residentially. Conversely, the district court may
conclude that more flexibility is required because of real estate costs,
crushing demand in the suburban fringes, or for some other sufficient
reason. The court should also consider the efficacy of the Board's
Remedial Plan as a limited term remedy for the racial isolation that
would otherwise continue to exist until the Board's newly redirected
school siting policies can begin to take effect.11
11

Of course, some reasons will not be sufficient to deny African-
American students a remedy, should corrective action be deemed jus-
tified. For example, political pressure and perceived resistance to
change by certain groups in the community will not suffice. Addition-
ally, logistical barriers merely making "difficult" the transport inward
of outlying white students will likewise, if reasonably surmountable,
not be enough. Cf. Capacchione, 57 F. Supp. 2d at 253 (district
_________________________________________________________________

11 The strategies described in the Remedial Plan may be of particular
help to the court in deciding whether practicable measures are available.
The Plan proposes, among other things, to divide Mecklenburg County
into three to five demographically similar "clusters," within which stu-
dents may choose to attend any school, magnet or otherwise. Where the
demand for a given school exceeds the available room, spots would be
assigned by lottery based on factors such as proximity, sibling atten-
dance, and racial, ethnic, and economic diversity. The Plan also outlines
a formal mechanism to disseminate information regarding the enrollment
process, and it provides that the Board will work with the business com-
munity and local government to secure subsidies for disadvantaged fami-
lies wishing to relocate to areas in which low-cost housing is scarce. See
J.A. 11053-59.

35
court's observation that "transport[ing] white students in from satel-
lite zones . . . is difficult given the rush hour traffic patterns").
Although what is "practicable" need not extend to all that is "possi-
ble," rectifying the grievous constitutional wrongs of the past surely
justifies reaching beyond the "difficult" or purely "problematic."

2. Physical Facilities

After describing how CMS has allocated its physical facilities and
resources among its students, Judge Potter concluded that "the Swann
plaintiffs have failed to overcome the Court's previous findings on
facilities by establishing the requisite discriminatory intent and causa-
tion." Id. at 267. Judge Potter's mention of "previous findings" refers
to excerpts from various opinions and orders authored by Judge
McMillan:

April 1969 -- "No racial discrimination or inequality is
found in the . . . . quality of the school buildings and equip-
ment. . . . Schools described by witnesses as `white' ranged
well up and down on both sides of [the average per-pupil
expenditure], and schools described by witnesses as `black'
showed a similar variation." 300 F. Supp. at 1366.

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

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

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

36
Judge Potter acknowledged that no court "ha[d] [ ]ever granted uni-
tary status to CMS, nor . . . partially withdrawn supervision as to
facilities or any other Green factor." Capacchione, 57 F. Supp. 2d at
262. The court nevertheless relied on the above 1969 and 1971 find-
ings to release the Capacchione plaintiffs from their burden of prov-
ing CMS unitary with respect to facilities, stating that to proceed
otherwise would "defy logic." Id. at 263. Judge Potter thus accepted
the premise that Judge McMillan's 1969 and 1971 findings "consti-
tute collateral estoppel and law of the case" regarding facilities,
"thereby shifting the burden to CMS and the Swann plaintiffs to show
discriminatory intent." Id. at 262.

We hold the district court's burden-shifting analysis to constitute
an error of law. Once the existence of an unlawful dual school system
has been established and court supervision begun, it is presumed that
racial disparities arising during the period of intervention "are caus-
ally related to prior segregation." School Bd. of the City of Richmond
v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987). Following the imposi-
tion of judicial control, a party seeking to end the status quo bears the
burden of overcoming the presumption of causation. If this burden is
met and the school system is declared to have achieved unitary status
as to the particular factor at issue, the presumption ends. Id. Gener-
ally, in any subsequent proceeding involving new allegations of dis-
parate treatment, the complaining party must show purposeful
discrimination. Riddick, 784 F.2d at 537 (concluding that Swann and
its progeny require proof of "discriminatory intent on the part of the
school board of a unitary school system" in order to resume court super-
vision).12
12

To be sure, the absence heretofore of any finding to the contrary
would have been an important consideration in determining whether
the Capacchione plaintiffs had proved CMS to have achieved unitary
status with respect to facilities. However, that Judge McMillan did not
intend his initial observations regarding facilities to be construed as
a finding of unitary status is obvious from his subsequent actions. In
_________________________________________________________________

12 However, if a district court retains jurisdiction over one or more
Green factors, it may, upon a proper showing, reassert control over a fac-
tor previously adjudged to have attained unitary status. Freeman, 503
U.S. at 508-09 (Souter, J., concurring).

37
1973, Judge McMillan assumed control over facilities and resources,
found inequities, and ordered CMS to remedy those disparities. See
Swann, 362 F. Supp. at 1235 (finding Double Oaks Elementary access
road still undeveloped two years after court's identification of the
problem -- "No $80,000,000 budget is so powerless."); id. (finding
Double Oaks library not restored to standards several years after fire);
id. at 1238 (ordering athletic facilities at West Charlotte High School
immediately upgraded to level comparable with other schools in the
county). We must conclude that the Board has been subject to the
court's jurisdiction as to its facilities since at least 1973. See Dowell,
498 U.S. at 246 (school boards entitled to a "rather precise statement"
terminating a desegregation order).

The asserted lack of a prior adverse finding should not have been
determinative of the issue, especially as the district court in 1969 was
not focusing on a school system suddenly thrust into the judicial
arena, but was instead examining one that had been subject to court
supervision for nearly four years. Between the commencement of the
initial Swann lawsuit in 1965 and the district court's first mention of
the facilities issue in April 1969, CMS closed sixteen black schools.
The Board's en masse action gives rise to an almost undeniable infer-
ence that these schools were shut down because they were inferior,
and the timing also suggests strongly that the closures were prompted
by the judicial proceedings then underway.

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

38
Thirty-five years have passed since the Board first acted to equalize
its facilities, yet serious questions remain as to whether it has finally
realized that goal. Dr. Dwayne E. Gardner, an impressively qualified
educational planner and consultant, compiled an exhaustive report for
the Board in which he evaluated the suitability of its school facilities.13
13
Dr. Gardner examined and personally visited more than half of the
schools in CMS (including all of the high schools), analyzing a host
of factors affecting educational quality. For the purposes of his study,
Dr. Gardner divided the subject schools into three groups: (1) all
imbalanced-black schools; (2) all racially balanced schools in
imbalanced-black census tracts; and (3) each remaining high school,
along with a set of elementary and middle schools randomly selected
from the remaining schools and approximately equal in number to
those already included within the first two groups.

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

The results of Dr. Gardner's study are troubling. The average score
for the forty Group 3 schools (racially balanced or imbalanced-white
in predominantly white or balanced areas) was 61.7. Although the
Group 3 data indicate a situation that is far from ideal, the ten Group
2 schools (racially balanced in predominantly black areas) fared much
worse, with an average score of 56.3. The scores of the twenty-three
Group 1 schools (imbalanced-black) were worse still, averaging just
53.3.14
14 At trial, Dr. Gardner confirmed that the disparities apparent
_________________________________________________________________

13 The district court found that the expert called on behalf of the Capac-
chione plaintiffs, Dr. David J. Armor, could offer no reliable testimony
on the subject. See Capacchione, 57 F. Supp. 2d at 264.

14 It has been famously said (by either Mark Twain or, earlier, Benja-
min Disraeli, depending on one's source), "There are three kinds of lies
-- lies, damned lies and statistics." A common difficulty in dealing with
statistics is illustrated by the district court's analysis of Dr. Gardner's

39
from the above numbers were "substantial" with respect to the facili-
ties generally available to white and African-American children
attending CMS. J.A. 6196-99.

The anecdotal accounts of a number of witnesses effectively cor-
roborated Dr. Gardner's conclusions. See, e.g., J.A. 4992 (testimony
of Board member Pamela R. Mange) (schools with "more severe"
problems tended to be predominantly black); J.A. 4769 (testimony of
Annelle Houk) ("[T]he schools that were in the worst repair and had
the poorest supply of resources . . . were on the west side and they
were predominantly populated by black students."). John A. Kramer,
co-chair of an advisory task force created by the Board, made formal
visits to several CMS schools in 1997. Among the locales on Mr.
_________________________________________________________________

study. The court first noted that, of the four schools scoring in the lowest
category, two were in Group 1 and two were in Group 3. Capacchione,
57 F. Supp. 2d at 264-65. Next, the court observed that the two highest
ratings accorded elementary schools were again split between Groups 1
and 3. Id. at 265. Based on this selective culling of the data, the lower
court concluded that "the results of Dr. Gardner's analysis do not show
disparities along racial lines." Id. at 264.

The forest that is CMS is not sufficiently mapped by the documenta-
tion of a few trees. We could accurately say, for example, that omission
from Group 1 of the brand-new elementary school referred to by the dis-
trict court as having one of the highest ratings would lower the Group 1
average by more than a full point. Or we could state without error that
seven of the twenty-three Group 1 schools (more than 30 percent) scored
below 50, while only five of the forty Group 3 schools (12.5 percent)
scored similarly. Indeed, we note that none of the Group 1 high schools
scored higher than 46, yet all those in Groups 2 and 3 scored at 50 or
above. Of course, one would rightly view this latter declaration with
some skepticism once it became known that there are but fourteen high
schools in CMS, only two of which were included by Dr. Gardner in
Group 1.

The pick-and-choose method gets us nowhere. The value of Dr. Gard-
ner's research lies in the general conclusions that can be drawn from the
entirety of the data. The most obvious conclusion is that, as a general
matter, imbalanced-black schools in CMS are in worse shape than those
attended by larger proportions of white students. Once we accept that
premise, the lone remaining question of any significance is "Why?"

40
Kramer's itinerary were Elizabeth Lane Elementary, a predominantly
white school located in a prosperous suburban area of the county, and
Shamrock Gardens Elementary, a downtown school with an African-
American student population exceeding sixty percent. Mr. Kramer's
descriptions of his visits contrasted sharply:

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

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

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

Although it seems reasonably clear that a racial disparity in facili-
ties exists in CMS, its cause is somewhat less apparent. The Capacch-
ione plaintiffs maintain that no discrepancies exist in CMS facilities,
and even if they do, such discrepancies are totally benign in origin.

41
Had the Capacchione plaintiffs proved their theory, we would be con-
strained to affirm the district court's conclusion that unitary status has
been achieved with respect to the facilities factor. The district court,
however, required the Capacchione plaintiffs to prove nothing; it
instead erroneously placed the burden on CMS and the Swann plain-
tiffs to affirmatively show that the present inequities in facilities are
a vestige of official discrimination, i.e., causally related to the prior
de jure system of segregation. Capacchione, 57 F. Supp. 2d at 267.

The district court erred as a matter of law in foreclosing the devel-
opment of evidence relevant to a proper vestige analysis. We must
therefore remand this portion of the case to permit the parties and the
district court to elicit the additional facts necessary to fully consider
the question of causation with respect to the current racial inequities
in facilities. Because CMS has not been previously adjudged to have
attained unitary status, the Capacchione plaintiffs are charged on
remand with the burden of demonstrating that the vestiges of past de
jure racial discrimination in the context of the school system's facili-
ties have been eliminated "root and branch" to the extent practicable.15 15
_________________________________________________________________

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

42
3. Transportation

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

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

We must be mindful of the Supreme Court's command to consider
the interrelatedness of the various Green factors. See Freeman, 503
U.S. at 491 (court must consider "whether retention of judicial control
is necessary or practicable to achieve compliance with the decree in
other facets of the school system"). In this context, we can only con-
clude that the Green factor of transportation is so inextricably inter-
twined with the Green factors of student assignment and facilities that
our vacatur on those issues also mandates vacatur on the factor of trans-
portation.16
16
_________________________________________________________________

16 Pursuant to Freeman, the district court accepted the invitation of the
Board and the Swann plaintiffs to consider whether vestiges of official
discrimination remain concerning the ancillary factors of student
achievement and student discipline. The court found in the negative, con-
cluding that CMS had attained unitary status in both areas.

With respect to the ancillary factor of student achievement, we must
vacate Judge Potter's holding that unitary status had been achieved, and

43
The Swann plaintiffs maintain and offer substantial record evidence
that the burdens of busing for desegregation purposes are being borne
disproportionately and unfairly by African-American children. Brief
of Appellants at 31-32, 33-35; see Swann, 306 F. Supp. at 1298 (dis-
trict court commenting in initial stages of remediation that it did not
intend "to endorse or approve any future plan which puts the burden
of desegregation primarily upon one race"). Eighty percent of stu-
dents who currently ride the bus as a result of a mandatory assignment
are African-American. Judge Potter rejected any consideration of this
evidence, holding that a school district has achieved unitary status
with respect to transportation as soon as it is provided on a race-
neutral basis. The evidence, however, demonstrates the close interre-
lationship of transportation with student assignment. In view of our
conclusion that CMS is not yet unitary with regard to student assign-
ment, we think it is premature to relinquish control over transporta-
tion at this stage. On remand, if the district court determines that CMS
must remain under court order to correct the current imbalances in
student assignment, it should also retain control over transportation to
ensure that those imbalances are corrected in a way that is fair to all
students.17
17
_________________________________________________________________

we do so on a basis similar to our analysis of the Green factor of trans-
portation. Judge Potter found that disparities in student achievement
existed but that the disparities (1) were not vestiges of de jure segrega-
tion and (2) could not be remedied by any practicable measure. Capacch-
ione, 57 F. Supp. 2d at 280-81. An analysis of disparities in student
achievement may only be appropriate once the school system has
achieved unitary status in other respects. See Swann, 306 F. Supp. at
1309 ("Until unlawful segregation is eliminated, it is idle to speculate
whether some of this [achievement] gap can be charged to racial differ-
ences or to `socio-economic-cultural' lag."). At the very least, as with
transportation, student achievement in this case is inextricably inter-
twined with the other Green factors, particularly student assignment.
Therefore, having vacated certain of the district court's rulings on unitary
status, including its ruling with respect to student assignment, we must
also vacate the district court's conclusion on student achievement.

We have reviewed and considered the district court's consideration of
student discipline, and we affirm the district court's resolution as to this
ancillary factor.

17 While the Remedial Plan does not specifically address transportation
as a Green factor, it does propose siting new schools in a manner calcu-

44
4. Faculty

Our analysis of this factor must take two concerns into account. We
must determine both whether CMS has generally eliminated the ves-
tiges of discrimination in faculty assignment, and whether the teach-
ers assigned to predominantly black schools are of comparable quality
to those teaching in schools with large numbers of white students.1818
See Swann, 311 F. Supp. at 268 (final desegregation order directing
that the racial composition of faculty assigned to each school reflect
that of the system at large, with the proviso that "the competence and
experience of teachers in formerly or recently black schools will not
be inferior to those in the formerly or recently white schools in the
system").

The evidence at trial demonstrated that CMS assigned its faculty
in substantial compliance with the desegregation order at least until
1992, when school principals were granted the leeway to actively
recruit new teachers without the strictures of maintaining a specific
racial proportion. As a result of this gravitation from centralized to
site-based control of faculty assignments, a trend away from propor-
tionality has emerged. In 1998-99, one-third of the 126 schools cov-
ered by the remedial decree had a proportion of black faculty
deviating more than ten percent from the system-wide norm (about
_________________________________________________________________

lated to promote racial balance in CMS. J.A. 11042. If CMS chooses
sites for new schools that are more accessible to the majority of the black
population, we presume that fewer black students would have to be
bused to the suburbs for purposes of desegretation. A new approach to
school siting would address the vestiges of past discrimination, if such
vestiges remain, in those areas in which CMS has not yet achieved uni-
tary status.

18 The district court considered a particular school to be racially imbal-
anced if its proportion of African-American students varied more than
fifteen percent from the district-wide average. In 1998-99, African-
Americans represented 42.7% of the elementary students in CMS, 41.7%
of the middle school students, and 39.6% of the high school students.
J.A. 11574. An elementary school would therefore be designated
imbalanced-black if more than 57.7% of its students are African-
American; conversely, if African-Americans constituted less than 27.7%
of the student body, the school would be designated imbalanced-white.

45
twenty-one percent). Prior to the 1992 change in policy, no more than
one-sixth of the schools had ever been so situated.

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

Nor do we think that this trend toward more racially imbalanced
faculties has resulted in disparities in the quality of teaching, as mea-
sured by the instructors' years of experience and post-graduate work.
Indeed, there is no significant difference in experience between facul-
ties at imbalanced-black schools as compared to those that are
imbalanced-white. Faculties at black schools are about one year less
experienced than the district-wide average, while faculties at white
schools are correspondingly more seasoned. This disparity may
arouse some initial concerns, until one is informed that the typical
CMS teacher has spent more than ten years in the classroom. The
upshot is that black and white students alike are, with no meaningful
distinction, enjoying the benefits of their teachers' substantial experi-
ence.

The difference in post-graduate education between black-school
and white-school faculties is more pronounced. For every three teach-
_________________________________________________________________

19 Even if the pattern of faculty assignments were somehow shown to
be a vestige of past official discrimination, the evidence before the dis-
trict court casts substantial doubt upon the Board's ability to effect a
practicable remedy. See Capacchione, 57 F. Supp. 2d at 258-59:

CMS runs the risk of losing significant numbers of teachers if its
faculty assignment policies become too restrictive. . . . Another
practical problem faced by the district is the fact that it must con-
stantly hire thousands of new teachers in the midst of a national
teacher shortage . . . [which] is especially pronounced with
regard to black teachers, particularly in this region of the coun-
try.

46
ers holding advanced degrees who ply their craft at imbalanced-white
schools, there are only two similarly qualified teachers assigned to
schools that are imbalanced-black. Compared to the district average,
white schools have a somewhat larger proportion of these highly
trained instructors, while the allotment granted to black schools is
slightly less than the norm.

Although these facts give us reason for concern, we think it impru-
dent to disturb the district court's conclusion that the trial evidence
affirmatively disclosed no link between past discrimination and the
current asymmetry. Most revealing on this point is that, until now, the
issue of teacher quality within CMS has not been contested. The 1970
desegregation order mandating equal competence and experience in
faculty assignments was not meant to remedy disparities then exist-
ing, but was instead intended to caution against future imbalances. In
the intervening thirty years, there is little indication that CMS has
neglected to heed the warning inherent in that order.

The district court did not clearly err in concluding that the develop-
ing disparities in teacher assignments and any (perhaps superficial)
deficiency in the quality of instruction currently afforded African-
American children are unrelated to the de jure segregation once prev-
alent in the school system. We therefore affirm the lower court's find-
ing that CMS has attained unitary status with respect to faculty.20
20

5. Staff

In substantially the same manner as it spoke to the allocation of
teachers, the final desegregation order provided that "the internal
operation of each school, and the assignment and management of
school employees, of course be conducted on a non-racial, non-
discriminatory basis." Swann, 311 F. Supp. at 269. Inasmuch as the
Swann plaintiffs raised no challenge to the school system's compli-
ance with the desegregation order in this regard, the court below
_________________________________________________________________

20 Although the Board's official position, as outlined in its Remedial
Plan, is that remediable vestiges of de jure segregation do remain as to
faculty assignments and quality, the clear weight of the evidence is to the
contrary. The district court's failure to consider the Plan was therefore
harmless in this narrow respect.

47
found CMS to have achieved unitary status with regard to its support
staff. We agree, and we affirm that aspect of the district court's judg-
ment.

6. Extracurricular activities

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

The criterion of equal access is surely satisfied in this regard. Par-
ticipation in honors programs and co-curricular clubs is strictly volun-
tary, and there is no evidence that the lack of participation by African-
American students in certain activities reflects the efforts of CMS to
exclude them. We discern no error in the district court's conclusions
regarding this Green factor, and we therefore affirm its finding that
CMS has achieved unitary status with respect to extracurricular activ-
ities.

C.

Pursuant to the foregoing, we conclude that the district court
should be affirmed in its determination of unitary status with respect
to faculty, staff, extracurricular activities, and student discipline.
However, we also conclude that we must vacate and remand for fur-
ther consideration in the areas of student assignment, facilities, trans-
portation, and student achievement.

48
Volume 2 of 3

49
III.

We now turn to the question of whether the Board's expanded
magnet schools program violates the Constitution.

Even if we had concluded that the district court was correct in
decreeing that CMS has now achieved unitary status in all respects,
any preceding remedial measures could not be analyzed as if they had
been taken by a "de facto" unitary school district. Prior to the decision
below, no court had ever determined that CMS had attained unitary
status as to any Green factor. As the Capacchione plaintiffs concede,
Judge Potter's decision -- not some earlier event-- "terminated [the]
injunction" issued by Judge McMillan and affirmed by the Supreme
Court. Brief of Appellees at 3.

The Supreme Court has made it clear that unitary status is a legal
concept that has no "fixed meaning or content" independent of the
judicial proceeding in which "unitariness" is conferred. Freeman, 503
U.S. at 486-87. The Court has consistently held that desegregation
decrees remain in effect until they are terminated by a court in unam-
biguous terms. See Dowell, 498 U.S. at 244-46 (finding district
court's prior determination of "unitariness" too ambiguous to dissolve
desegregation decree and emphasizing that litigants are entitled to a
"rather precise statement" if a decree is to be terminated); Spangler,
427 U.S. at 438-40 (holding that even an unconstitutional court order
remains in effect until a "definitive disposition" is reached on the con-

50
stitutional objection). Thus, Judge Potter properly acknowledged that
the law would not support a judicial finding that a school district had
attained unitary status at a point in time prior to the court's own uni-
tariness determination. See Capacchione, 57 F. Supp. 2d at 285 ("The
Court finds no legal basis for a finding of de facto unitary status that
would abrogate CMS's immunity retroactively. In other words, the
termination of court supervision cannot `relate back' to an earlier
time.").

Judge Potter nevertheless held that the expanded magnet schools
program was "ultra vires," beyond the scope of action authorized
under the series of injunctions and orders governing desegregation of
CMS. Id. After holding that the magnet schools program exceeded the
scope of these injunctions and orders, the district court proceeded to
analyze whether the program violated the Capacchione plaintiffs'
constitutional rights. Applying strict scrutiny, the court concluded that
the expanded magnet schools program could not be legally justified.
Id. at 287-90.

We review the district court's factual findings for clear error and
its legal conclusions de novo. See Freeman, 503 U.S. at 474; United
States v. Texas, 158 F.3d 299, 306 n.8 (5th Cir. 1998); Little Rock
Sch. Dist. v. North Little Rock Sch. Dist., 109 F.3d 514, 516 (8th Cir.
1997).

For the reasons that follow, we must reverse. In fact, the injunc-
tions and orders governing this case specifically authorize every sig-
nificant aspect of the expanded magnet schools program, including
the use of racial proportions in assigning students to magnet schools.
Furthermore, the Board's obligation to obey these court orders insu-
lates it from constitutional attack for actions taken in compliance with
them.

A.

Magnet schools are designed to achieve desegregation by offering
some kind of special program or curriculum that will attract students,
regardless of race, from throughout a school district. See Missouri v.
Jenkins, 495 U.S. 33, 40 n.6 (1990); see also 20 U.S.C. § 7204 (1999)
(a magnet school is "a public elementary or secondary school . . . that

51
offers a special curriculum capable of attracting substantial numbers
of students of different racial backgrounds"). Magnets "were first con-
ceived and developed in large, urban school districts seeking a volun-
tary alternative to busing as a means of decreasing racial segregation."
J.A. 10654. Critical to the magnet school concept is voluntary choice
-- students choose to attend magnet schools because of their desire
for the special programs such schools offer. Thus, magnet schools,
when not permitted to become dominated by one race, act as "incen-
tives for parents to keep their children in the public school system and
to send their children to integrated schools." J.A. 15509.

Since the 1970s, school boards throughout the country have uti-
lized magnet schools as part of desegregation plans that have been
routinely approved by the courts. See, e.g., Milliken v. Bradley, 433
U.S. 267, 272 (1977) (Milliken II); Stell v. Savannah-Chatham
County Bd. of Educ., 888 F.2d 82, 85-86 (11th Cir. 1989); Little Rock
Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 839 F.2d 1296,
1309-12 (8th Cir. 1988); United States v. Yonkers Bd. of Educ., 837
F.2d 1181, 1237-39 (2d Cir. 1987); Liddell v. Missouri, 731 F.2d
1294, 1310-11 (8th Cir. 1984).

Almost invariably, magnet school programs include an assignment
policy that takes race into account "to assure to the greatest extent
possible that these voluntary attendance schools not work to under-
mine the progress of desegregation." Davis v. East Baton Rouge Par-
ish Sch. Bd., 721 F.2d 1425, 1440 (5th Cir. 1983). Such a policy is
necessary to prevent magnet schools from "serv[ing] as a haven for
those seeking to attend a school predominantly composed of their
own race". Morgan v. Kerrigan, 530 F.2d 401, 423 (1st Cir. 1976);
see also Jenkins v. Missouri, 942 F.2d 487, 488-89 (8th Cir. 1991);
Stell, 888 F.2d at 83; Little Rock Sch. Dist., 839 F.2d at 1311; Yonkers
Bd. of Educ., 837 F.2d at 1215; Liddell, 731 F.2d at 1310.

The various court decisions reflect a cautious enthusiasm for the
utilization of magnet schools, both because such schools allow for
more flexibility in student assignment and because they rely more
heavily on voluntary choice than mandatory busing. See, e.g., Jenkins,
515 U.S. at 92 ("Magnet schools have the advantage of encouraging
voluntary movement of students within a school district in a pattern
that aids desegregation on a voluntary basis, without requiring exten-

52
sive busing and redrawing of district boundary lines.").21
21 Further, no
authority suggests that magnet programs with race-conscious assign-
ment policies constitute an inappropriate vehicle for achieving deseg-
regation under a court-sponsored plan. Indeed, it is difficult to see
how a magnet program devised, with court approval, to eliminate ves-
tiges of segregated schools could do so if school authorities were not
permitted to control the racial composition of magnet school enroll-
ment.

By the 1970s, CMS had established some magnet schools, which
it called "optional schools." These early magnet schools had race-
conscious assignment policies. See 379 F. Supp. at 1106, 1108; J.A.
2489. Moreover, they offered two special curricula -- "open" and
"traditional" -- both of which constituted "very rigorous academic
program[s]" not offered in "conventional schools." J.A. 2489, 15683.
Judge McMillan approved these magnet schools, including their race-
conscious assignment policies. See 379 F. Supp. at 1105-106.

In 1992, the Board expanded its magnet schools program into a
district-wide system with a wider range of curricular choices. In the
expanded magnet schools program, the Board retained the curricula
first available in the early magnet or "optional" schools -- the "open"
curriculum, emphasizing "interdisciplinary approaches," and the "tra-
ditional" curriculum, featuring a "highly structured program." J.A.
16722-23. Furthermore, six of the early magnets that offered such
curricula prior to 1992 -- Myers Park, Elizabeth, Hawthorne, Irwin
Avenue, Piedmont, and West Charlotte -- continue to do so today
under the expanded magnet schools program. Compare J.A. 13448,
13529-40, 15683 (pre-1992 "open" and "traditional" magnets) with
J.A. 16722-23 (1998-99 "open" and "traditional" magnets); see also
J.A. 10061 (report indicating that pre-1992 magnet schools were
incorporated into the 1992 expanded magnet schools program).22 22
_________________________________________________________________

21 The courts' caution essentially anticipates the position of the Swann
plaintiffs in this case: that magnet schools are insufficiently desegrega-
tive at best, and that at worst they simply provide an "escape hatch" for
white students who would otherwise attend majority black schools, leav-
ing those majority black schools even more segregated than they had
been before.

22 Judge Potter recognized that the optional schools "were similar to
today's magnet schools," both having countywide enrollment and a racial

53
Race is considered in assigning students to the magnet schools
instituted under the 1992 expanded program, just as it was in assign-
ing students to the original magnet or optional schools. See 379 F.
Supp. at 1108. Specifically, under the expanded program, CMS allo-
cates 40% of the seats in its magnet schools for black students and
60% for students of other races. This ratio reflects the student popula-
tion of the school system, which is approximately 41.0% black,
52.2% white, 3.7% Asian, 2.5% Hispanic, and .5% American Indian.23
23
CMS generally assigns students to its magnet schools using two paral-
lel lotteries, one for black students and one for students of other races.
When there has been insufficient interest from black students to fill
the seats allocated to them in a particular school, CMS has sometimes
_________________________________________________________________

balancing target." Capacchione, 57 F. Supp. 2d. at 286. He nonetheless
concluded that the schools established after 1992 under the expanded
magnet schools program "differ from optional schools in that [the new]
magnets offer specialized curricula and thereby confer a benefit above
and beyond the regular academic program." Id. at 286-87 n. 49. But
nothing in the record supports this view. To the contrary, assuming
arguendo that "specialized curricula" constitute a "benefit," the magnet
schools instituted after 1992 provide precisely the same "benefit" as the
pre-1992 "optional schools." See J.A. 10552 (proposed 1992 pupil
assignment plan recommending continuation of six magnet schools
already in place); J.A. 15504 (1993 letter noting that magnet schools
were called "optional schools" prior to 1992); J.A. 10651 (Summary of
Findings From Research on Magnet Schools explaining that "[o]ur
optional schools function as magnet schools"); J.A. 13606, 15581 (Stolee
Plan explaining that "[the traditional schools presently existing in
Charlotte-Mecklenburg are good examples" of curriculum specialty
schools, "sometimes called magnet schools"). After all, it was only
because the optional schools did offer certain "specialized curricula" that
parents (including Michael Grant, one of the Capacchione plaintiffs, J.A.
2489) were willing, well prior to the 1992 expanded magnet schools pro-
gram, to enroll their children in desegregated optional schools. See J.A.
13641, 15616. In fact, the original six "open" and "traditional" schools
remain among CMS's more heavily subscribed magnets. See J.A. 10292-
340. Myers Park Traditional, for example, had 245 students on its wait-
ing list for the 1998-99 school year. See J.A. 2159.

23 For simplicity, we often refer within to non-African-American stu-
dents in the magnet schools as "white."

54
refused to allow students of other races to fill those slots. Thus, race
may affect a student's chances of being assigned to a magnet school.

B.

The Capacchione plaintiffs contend that the expanded magnet
schools program violates the Equal Protection Clause. Recognizing,
if only implicitly, the difficulty in maintaining that actions taken pur-
suant to court orders violate the Constitution, they principally argue
that the expanded magnet program was not implemented under the
court orders governing this case. Specifically, they first contend that
the Board's increased reliance on magnet schools constituted a "vol-
untary desegregation plan implemented to counteract demographic
change," rather than a good faith effort to eliminate the vestiges of
discrimination as required by the existing desegregation orders. Sec-
ond, they argue that the expanded program's race-conscious assign-
ment lottery violated the desegregation orders. Finally, they maintain
that even if CMS expanded its magnet schools program pursuant to
and in compliance with governing court orders, strict scrutiny none-
theless applies and requires that the program be held unconstitutional.
We consider each contention in turn.

1.

The Capacchione plaintiffs note that implementation of the
expanded magnet schools program followed on the heels of demo-
graphic changes in the Charlotte-Mecklenburg area. As discussed in
connection with student assignment, supra, the Charlotte-
Mecklenburg area has experienced in recent decades both strong pop-
ulation growth overall and intensive out-migration from the city to the
suburbs and from older, inner-ring suburbs to newer suburbs in the far
northern and southern areas of the county. For these reasons, the
Capacchione plaintiffs insist that the expanded magnet program was
necessarily a response to demographic change rather than a true
attempt to remedy past discrimination.

We cannot agree. First, Judge Potter "accept[ed] that the school
system was acting to . . . remedy[ ] the effects of past racial discrimi-
nation" in expanding the number of magnet schools in 1992. Capac-
chione, 57 F. Supp. 2d at 289. Ample record evidence supports this

55
finding. See, e.g., J.A. 2716 (testimony of John Murphy, former CMS
Superintendent, that 1992 plan to expand the magnet school program
was among the "creative strategies we could come up with to stay in
compliance with the court order"); J.A. 3869-74 (testimony of Jeff
Schiller, former assistant superintendent for research, assessment, and
planning for CMS, explaining that the 1992 student assignment plan,
including the expanded magnet schools program, "had the same
objectives as the one that it was going to replace, maintaining the
court order," and that the objective of the expanded magnet program
specifically was "to maintain the integration of schools through vol-
untary means"); J.A. 15503-05 (1993 letter from CMS to the U.S.
Department of Education discussing Judge McMillan's 1974 order
and identifying the creation of additional magnet schools as among
the "more effective ways . . . [to] meet[ ] the guidelines established
by the Court"); J.A. 13607, 15582 (Stolee Plan recommendation that
"[the Charlotte-Mecklenburg school desegregation plan should be
gradually changed from a mandatory plan with little voluntarism to
a voluntary plan with few mandatory facets").

Furthermore, the dichotomy the Capacchione plaintiffs suggest
between "counter[ing] demographic change," on the one hand, and
remedying past discrimination, on the other, oversimplifies both the
law of school desegregation, particularly the Supreme Court's deci-
sions in Green, Swann, and Freeman, and the practical reality of
achieving desegregation in a large urban school district. From the
early stages of the Swann litigation, it has been understood that demo-
graphic patterns would complicate the process of school desegrega-
tion. Indeed, remedies like school busing and satellite attendance
zones would never have been necessary in the first place if the
demography of the community were not an obstacle to desegregation.
In a sense, Swann's basic teaching is that the Constitution sometimes
requires schools to "counter demograph[y]" in order to achieve deseg-
regation. The Swann Court noted that the process of "local authorities
. . . meet[ing] their constitutional obligations" had "been rendered
more difficult by changes . . . in the structure and patterns of commu-
nities, the growth of student population, [and] movement of families."
402 U.S. at 14. The Court expressed concern that"segregated residen-
tial patterns . . . [would] lock the school system into the mold of sepa-
ration of the races." Id. at 21. Thus, CMS simply followed the

56
Supreme Court's guidance in Swann in regarding demographic
change as a problem inhibiting its progress toward unitary status.24
24

Moreover, Freeman simply did not hold, as the Capacchione plain-
tiffs necessarily imply, that demographic changes in a metropolitan
area independently eliminate the vestiges of past discrimination. Nor
does Freeman bar courts from targeting racial isolation resulting in
significant part from "private choice," if that isolation is also a vestige
_________________________________________________________________

24 The Capacchione plaintiffs contend that, given the obvious concern
of school officials with demographic changes, "CMS could not have
been motivated by any desire to comply with its court-ordered duty to
eradicate vestiges of segregation." Brief of Appellees at 85. But this
stands the analysis on its head. A court determines from the effect of their
acts, not from their motives, whether school authorities comply with a
desegregation decree. See Wright v. Council of Emporia, 407 U.S. 451,
462 (1972) ("It is difficult or impossible for any court to determine the
sole or dominant motivation behind choices of a group of legislators, and
the same may be said of the choices of a school board. . . . Thus we have
focused upon the effect -- not the purpose or motivation -- of a school
board's action in determining whether it is a permissible method of dis-
mantling a dual system.") (internal quotations marks omitted). Moreover,
even if motivation were relevant, the argument would fail. A fair reading
of the record demonstrates that although school officials were obviously
aware of the demographic shifts, they viewed these shifts as an obstacle
to achieving compliance with the Swann orders and to eliminating the
vestiges of discrimination in the school system, not as the condition that
itself necessitated a remedy. See, e.g., J.A. 13597-98, 15572-73 (Stolee
Plan identifying "a growing and moving population" as one of several
factors creating instability in student assignment under the pre-1992 sys-
tem of pairing and satelliting); J.A. 15504 (1993 letter from CMS to the
U.S. Department of Education listing "demographic and residential pat-
terns" as one of several increasing strains on the pairing system); J.A.
2712 (testimony of former CMS Superintendent John Murphy that "[w]e
really weren't going to be bringing about desegregation and racially bal-
anced schools unless we began to address the issue of housing at the
same time."). The Board may have chosen sites for new schools in
response to, or even in furtherance of, these demographic trends, see
supra, but in any event the Board also clearly evidenced awareness that
the population changes, particularly the greater distance between white
and black population centers, would put a greater strain on the process
of desegregation.

57
of past discrimination. The effect of such a holding in Freeman would
have been to overrule Green, which the Supreme Court did not pur-
port to do. In Green, even though the school board allowed every stu-
dent "freedom of choice" as to which school to attend, the formerly
black school remained all black and the formerly white school
remained predominantly white -- wholly as a result, in some sense,
of this "private choice." The Green Court held that, although the pri-
vate choices of students and their families were responsible for the
continuing racial isolation of the schools' student populations, that
fact did not preclude a finding that the racial isolation was also a ves-
tige of past discrimination. Indeed, the Court held not only that it was
permissible for the school board to take further action to desegregate,
but that the board was required to take further action in order to fulfill
its "affirmative duty" to desegregate. Green, 391 U.S. at 437-38.

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

2.

The Capacchione plaintiffs next contend that the expanded magnet
program's race-conscious assignment policy violated the desegrega-
tion orders governing this case. With this argument, Judge Potter
agreed, concluding that "the way that CMS's magnet program uses
race . . . is significantly different from any assignment policy ordered
or approved of in Swann," and thus constituted a "material departure"
from the governing desegregation orders. Capacchione, 57 F. Supp.
2d at 286-87.

That holding constituted clear error. Actually, Judge McMillan spe-
cifically authorized and incorporated into his decree a race-conscious
assignment policy for "appropriately integrated optional schools." 379
F. Supp. at 1103. The policy provided:

58
 Strict and central control must be exercised over all admis-
sions (reassignments) to each optional school in order to
fulfill the necessary ends that these schools be open to all
county residents and be integrated by grade at or above
approximately a 20% black ratio. Reassignments to optional
schools must not jeopardize the racial composition of any
other school.

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

Id. at 1108 (emphasis added).25
25

Moreover, one need look no further than Chief Justice Burger's
opinion for the Supreme Court in Swann to find explicit sanction of
the use of racial "ratios" or proportions in assigning students to
schools:

School authorities are traditionally charged with broad
power to formulate and implement education policy and
might well conclude, for example, that in order to prepare
students to live in a pluralistic society each school should
have a prescribed ratio of Negro to white students reflecting
the proportion for the district as a whole. To do this as an
educational policy is within the broad discretionary powers
of school authorities; absent a finding of a constitutional
violation, however, that would not be within the authority of
a federal court.
_________________________________________________________________

25 In accord with this court-approved policy, from 1975 to 1991, prior
to expansion of the magnet schools plan, CMS continued to use a race-
conscious lottery system to control enrollment in optional, or magnet,
schools. See J.A. 2489-91, 2822-23, 14502, 16885-89.

59
402 U.S. at 16 (emphasis added).

Judge McMillan's orders also repeatedly endorse the Board's
power and duty to maintain control over the racial composition of the
schools in order to eliminate the vestiges of the segregated system
"root and branch." For instance, in 1970 Judge McMillan mandated:

That the defendants maintain a continuing control over the
race of children in each school . . . and maintain the racial
make-up of each school (including any new and any re-
opened schools) to prevent any school from becoming
racially identifiable. . . . The duty imposed by the law and
by this order is the desegregation of schools and the mainte-
nance of that condition. . . . The defendants are encouraged
to use their full “know-how” and resources to attain the
results above described, and thus to achieve the constitu-
tional end by any means at their disposal. The test is not the
method or plan, but the results.

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

Thus, even if Judge McMillan had not specifically approved a race-
conscious assignment policy for magnet schools, the Board's adop-
tion of the 60-40 formula and lottery in the expanded magnet program
would not be an "ultra vires" act. Rather, that policy would fall within
the Board's broad discretion, recognized by both Judge McMillan and
the Supreme Court in Swann, to fashion appropriate remedies in light
of the particular needs of its pupils and the school system's experi-
ence with other desegregation tools.2626
_________________________________________________________________

26 Judge McMillan's orders and the Supreme Court's opinion in Swann
did consistently signal concern with the imposition of racial proportions

60
Judge Potter's conclusion to the contrary simply cannot be recon-
ciled with the Supreme Court opinion in Swann and Judge McMil-
lan's decrees. The race-conscious assignment policy constitutes a
necessary safeguard against the risk that unchecked transfers to mag-
net schools could increase the number of racially identifiable schools
in violation of the Board's continuing obligation under the desegrega-
tion orders. See 379 F. Supp. at 1105 ("Racially identifiable schools
may not be operated."). In that vein, the Capacchione plaintiffs' own
expert on school desegregation, Dr. David Armor, agreed that racial
quotas are permissible in a desegregation plan. J.A. 3627. Dr. Armor
testified that "race is an integral part of pairing, of satelliting, of mag-
net schools, of running lotteries for magnet schools. The entire plan
is predicated on race and race controls, because that's the only way
you can meet the court order and to have an effective plan is to
employ race requirements and racial quotas basically for all schools."
J.A. 3434.

Nor can Judge Potter's disapproval of the expanded magnet
schools program be reconciled with other court-approved aspects of
the CMS desegregation plan. For example, the magnet schools assign-
ment policy takes race into account in much the same way as the
Board's majority-to-minority transfer policy, which was also specifi-
_________________________________________________________________

or ratios by federal courts. That concern, however, is rooted in the prob-
lem of federal courts exceeding their remedial discretion, not in any
objection to the use of racial proportions or ratios by school boards in
their desegregation plans. Thus, the Supreme Court noted that, "[t]he
constitutional command to desegregate schools does not mean that every
school in every community must always reflect the racial composition of
the school system as a whole," but went on to conclude that "the very
limited use made of mathematical ratios was within the equitable reme-
dial discretion of the District Court." Swann, 402 U.S. at 24-25. That this
concern with ratios is rooted in the limits of judicial power to order
remedial action, not in the impropriety of using racial proportions to rem-
edy the vestiges of segregation, is nowhere more apparent than in Chief
Justice Burger's statement in Swann. There the Chief Justice noted that
while in certain circumstances it might be inappropriate for a federal
court to require adherence to "a prescribed ratio of Negro to white stu-
dents reflecting" the population of the "district as a whole", it would be
"within the broad discretionary powers of school authorities" to do so. Id.
at 16.

61
cally authorized by the governing desegregation orders. Under the
transfer policy, a student in the racial majority in his current school
could freely transfer to a school in which he would be in the racial
minority. A white student in a majority white school, for example,
could freely transfer to a majority black school, but that same student
could be denied admission to a different majority white school, solely
on the basis of a rigid 50% racial ceiling. Meanwhile, a black student
at a majority black school could freely transfer into the same majority
white school to which the white student might be denied admission.
The Supreme Court approved this use of majority-to-minority transfer
policies as "a useful part of every desegregation plan" and "an indis-
pensable remedy." Swann, 402 U.S. at 26.

Judge Potter misread the orders and injunctions governing this case
by focusing solely on isolated words and phrases to conclude that the
desegregation decrees "firmly rejected the use of rigid racial quotas."
Capacchione, 57 F. Supp. 2d at 286. Actually, in the same paragraph
that Judge McMillan held that "[f]ixed ratios of pupils in particular
schools will not be set" by the court, he also held that "efforts should
be made [by the school board] to reach a 71-29 ratio in the various
schools so that there will be no basis for contending that one school
is racially different from the others." 306 F. Supp. at 1312 (emphasis
added). Judge Potter transmuted this statement -- a requirement that
the Board make "efforts" to "reach a 71-29 ratio" -- into a prohibition
against the Board assigning students to schools on the basis of that
fixed ratio. See Capacchione, 57 F. Supp. 2d at 286. We cannot
accept this reading of Judge McMillan's order. Taken as a whole, this
paragraph provides some of the clearest evidence that Judge McMil-
lan not only authorized the Board to use fixed ratios in assigning stu-
dents to schools but encouraged it to do so. Recognizing the
impracticability of adopting a court-ordered, system-wide racial bal-
ance to which all schools must adhere, Judge McMillan did observe
that "variations from that [71-29 ratio] may be unavoidable." 306 F.
Supp. at 1312. But that statement imposes no limitations on the scope
of permissible Board action. Rather, it suggests that "variations" were
acceptable only because they were "unavoidable."

Indeed, the Board could not have accomplished what the desegre-
gation orders required it to accomplish without "using race" in the
way that it "used race" in the context of the expanded magnet schools

62
program. In the 1970 order that was affirmed by the Supreme Court,
Judge McMillan decreed "[t]hat pupils of all grades be assigned in
such a way that as nearly as practicable the various schools at various
grade levels have about the same proportion of black and white stu-
dents." 311 F. Supp. at 268. We cannot fathom how the Board could
set out to achieve "about the same proportion of black and white stu-
dents" in each grade level in each of its over one hundred schools
without employing fixed racial ratios as the central components of its
student assignment plan. Neither, apparently, could Judge McMillan.

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

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

3.

Finally, the Capacchione plaintiffs maintain that, even if CMS
administered the expanded magnet schools program pursuant to and
in conformity with the governing desegregation decrees, CMS vio-
lated the Constitution in doing so. Judge Potter rejected this argument,
as do we.

a.

In fact, court-ordered remedial action cannot be found violative of
the Constitution. Rather, as Judge Potter recognized, actions taken by

63
CMS pursuant to the desegregation decrees are immune from consti-
tutional attack. See Capacchione, 57 F. Supp. 2d at 285 ("CMS enjoys
immunity from liability for any actions it took consistent with the
Court's injunction.").

The Supreme Court has clearly and unequivocally proclaimed that
"persons subject to an injunctive order issued by a court with jurisdic-
tion are expected to obey that decree until it is modified or reversed,
even if they have proper grounds to object to the order." GTE Syl-
vania, Inc. v. Consumers Union of the United States, 445 U.S. 375,
386 (1980) (emphasis added); see also W.R. Grace & Co. v. Local
Union 759, 461 U.S. 757, 766 (1983). Under this "established doc-
trine," GTE, 445 U.S. at 386, an injunction unconstitutional on its
face must nonetheless be obeyed. See Walker v. City of Birmingham,
388 U.S. 307, 317 (1967). "[D]isobedience of such an outstanding
order of a federal court subjects the violator to contempt even though
his constitutional claim might be later upheld." Spangler, 427 U.S. at
439. Thus, so long as CMS acts -- as it has -- to desegregate its
schools in accordance with existing injunctive orders, its actions can-
not be challenged as unconstitutional.

Indeed, the Supreme Court has twice expressly held that school
boards under court orders to desegregate must comply with those
orders until absolved of that obligation by a subsequent court order,
even when the existing desegregation order is improper or unneces-
sary. In Spangler, the Court concluded that the district court exceeded
its remedial discretion when it ordered the Pasadena school district to
reconfigure its student attendance zones annually so that there would
be "no majority of any minority" in any school. 427 U.S. at 434-35.
Despite the impropriety of this order, the Court held that the school
board was obliged to obey it until it was properly and explicitly modi-
fied by a court. See id. at 438-40.

Similarly, in Dowell, the Court refused to interpret an arguably
ambiguous court order as having terminated the desegregation decree
previously entered against the Oklahoma City school board. Instead,
the Court remanded the case to the district court for a clear determina-
tion of "whether the Board made a sufficient showing of constitu-
tional compliance . . . to allow the injunction to be dissolved." 498
U.S. at 249. In doing so, the Court explained that judicial orders carry

64
binding authority until they are modified or dissolved and admon-
ished district courts to provide the parties with a "precise statement"
when modifying or dissolving a desegregation decree. Id. at 246; see
also Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 421 ("a school
board and a school constituency which attempt to comply with a
[desegregation] plan to the best of their ability should not be penal-
ized").

In short, the Capacchione plaintiffs could have sought to modify
or dissolve the Swann orders as inconsistent with their rights under
the Constitution; what they could not do is obtain an injunction, or
declaration, that a party compelled to adhere to those orders violated
the Constitution in doing so. CMS's obligation to follow the desegre-
gation orders and injunctions in this case provides it with a complete
defense to the Capacchione plaintiffs' challenge to the expanded
magnet schools program.

b.

The Capacchione plaintiffs ignore the controlling authority set
forth above and instead rely on inapposite case law in attempting to
establish that Board actions taken pursuant to court-ordered desegre-
gation decrees can be held unconstitutional.

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

65
tional violations require race-based remedial action." 197 F.3d at 130
(citing Swann, 402 U.S. at 1); see also Wessmann, 160 F.3d at 795.

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

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

Moreover, even if Tuttle and Eisenberg generally applied to gov-
ernmental acts performed pursuant to remedial desegregation order
(which they do not), the Board's expanded magnet schools program
would withstand constitutional scrutiny. This is so because if a prece-
dent of the Supreme Court "has direct application in a case," inferior

66
courts must follow that precedent "even if later cases appear to call
it into question, leaving to [the Supreme] Court the prerogative of
overruling its own decisions." See Agostini v. Felton, 521 U.S. 203,
237 (1997).

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

C.

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

IV.

Judge Potter also enjoined CMS from "assigning children to
schools or allocating educational opportunities and benefits through
race-based lotteries, preferences, set-asides, or other means that deny
students an equal footing based on race." Capacchione, 57 F. Supp.
2d at 294. In considering the propriety of an injunction, we review

67
factual findings only for clear error, but the "district court's applica-
tion of legal principles . . . presents a legal question reviewed de
novo." North Carolina v. City of Virginia Beach, 951 F.2d 596, 601
(4th Cir. 1992). Given our holding that CMS has not yet reached uni-
tary status and did not violate the constitutional rights of the Capac-
chione plaintiffs by consideration of race in its expanded magnet
schools program, there is no legal basis for the district court's injunc-
tion. Accordingly, we must vacate it.

Moreover, because "federal court decrees must directly address and
relate to the constitutional violation itself," Milliken, 433 U.S. at 282,
we would be compelled to vacate the injunction as overly broad even
if some form of injunctive relief had been warranted. The expanded
magnet schools program was the only CMS action that the district
court found to violate the Constitution -- Judge Potter did not con-
sider the constitutionality of any other method of student assignment
or resource allocation. Yet the injunction by its terms encompasses
any consideration of race by CMS in student assignment or allocation
of educational benefits that "den[ies] students an equal footing."
Capacchione, 57 F. Supp. 2d at 294. The injunction thus goes much
farther than simply prohibiting CMS from reinstituting the expanded
magnet schools program and its race-conscious assignment policy.
We have repeatedly held similar injunctions too broad, explaining that
"[a]lthough injunctive relief should be designed to grant the relief
needed to remedy the injury to the prevailing party, it should not go
beyond the extent of the established violation." Hayes, 10 F.3d at 217;
see also Tuttle, 195 F.3d at 708.

If the district court determines on remand, based on the standards
set forth herein, that CMS has attained unitary status, it may issue an
injunction only to the extent that it concludes that CMS is likely to
persist in current practices that would violate the Constitution if
undertaken outside of the remedial context. See United States v. Ore-
gon State Med. Soc'y, 343 U.S. 326, 333 (1952). Even then, the dis-
trict court should be reluctant to issue such an injunction because "the
ultimate objective" of federal court involvement in school desegrega-
tion has always been "to return school districts to the control of local
authorities." Freeman, 503 U.S. at 489. Absent compelling evidence
to the contrary, it must be assumed that CMS, when it is found to
have achieved unitary status, will act in conformity with the law.

68
V.

In addition to injunctive relief, the district court awarded nominal
damages of one dollar to the Capacchione family "to vindicate the
constitutional rights of children denied an equal footing in applying
to magnet schools." Capacchione, 57 F. Supp. 2d at 290. Because we
hold that the expanded magnet schools program did not violate the
Constitution, we must also vacate this nominal damages award.

VI.

The district court also awarded the Capacchione plaintiffs
$1,499,016.47 plus interest in attorney's fees, pursuant to 42 U.S.C.
§ 1988. See Capacchione v. Charlotte-Mecklenburg Sch., 80 F. Supp.
2d 557 (W.D.N.C. 1999) (amended by orders of December 16, 1999,
J.A. 1313-15, and March 6, 2000, J.A. 1356-62). Under that statute,
a court in a civil rights case "may allow the prevailing party, other
than the United States, a reasonable attorney's fee as part of the
costs." 42 U.S.C. § 1988.

It appears that the district court principally based the award of
attorney's fees on the Capacchione plaintiffs' success in obtaining
nominal damages and injunctive relief. Because we have vacated
those awards, we must vacate the award of attorney's fees as well. As
the Capacchione plaintiffs recognize, it is "self-evident" that they
cannot recover fees "if this court reverses the order appealed from."
Brief of Appellees at 113 n.51.

Moreover, we would vacate the fee award even if it were based on
the district court's declaration that CMS had achieved unitary status.
Our affirmance of a portion of that declaration -- that CMS has
achieved unitary status with respect to four of the eight Green factors
it considered -- does not entitle the Capacchione plaintiffs to attor-
ney's fees. In order to be considered a "prevailing party" under
§ 1988, the party seeking fees must have obtained "an enforceable
judgment, consent decree, or settlement." S-1 & S-2 v. State Bd. of
Educ., 21 F.3d 49, 51 (4th Cir. 1994) (en banc). Additionally, there
must be some defendant in the case who has been "prevailed against,"
Farrar v. Hobby, 506 U.S. 103, 109 (1992), with a resulting "material
alteration of the legal relationship" between that defendant and the

69
party seeking fees. Id. at 111. In obtaining a declaration that the
Board has achieved unitary status as to four Green factors, the Capac-
chione plaintiffs have not obtained "an enforceable judgment, consent
decree, or settlement"; they have not "prevailed against" CMS; nor
have they effected a "material alteration of the legal relationship"
between the parties.

Furthermore, even if the Capacchione plaintiffs succeed on remand
in proving that CMS has achieved unitary status in all respects, they
would not, for these same reasons, be entitled to attorney's fees. A
declaration of unitary status merely restores the parties to the status
quo prior to the issuance of the desegregation decree. Such a declara-
tion would not constitute "an enforceable judgment" for the Capacch-
ione plaintiffs. And though a declaration of unitary status would
obviously represent a defeat for the legal position that CMS has taken
in this litigation, such a defeat would not be tantamount to being "pre-
vailed against" under § 1988. Rather, the primary significance of a
declaration of unitary status would be that CMS has succeeded in
eradicating the vestiges of past discrimination to the extent practica-
ble and, as the Capacchione plaintiffs put it, in obtaining a "return to
local control." Brief of Appellees at 34. The Board, upon a declara-
tion of unitariness, would actually have wider latitude to assign stu-
dents as it sees fit than it did while it was under court order to remedy
past discrimination (although certain race-conscious policies might no
longer be permissible). We are unable to see how a broadening of the
Board's discretion can be viewed as a "material alteration of the legal
relationship" between CMS and the Capacchione plaintiffs.

We note that the predominant pattern in the desegregation cases
has been to award attorney's fees to the original prevailing plaintiffs
-- even for legal work related to the unsuccessful defense of a deseg-
regation decree against a motion to modify or dissolve. See, e.g., Jen-
kins v. Missouri, 127 F.3d 709, 714 (8th Cir. 1997) (en banc) ("[The
Jenkins class has enjoyed the benefits of prevailing in this litigation
for more than a decade. Jenkins III did not void the many remedial
orders issued in this case that have never been reversed during the
process of a direct appeal."). Properly understood, a declaration of
unitary status represents the last stage in the process of desegregation,

70
and the school board's success in reaching that last stage is often
appropriately credited to the original plaintiffs who brought the case.27
27

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
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
_________________________________________________________________

27 We leave it for the parties to argue, and the district court to decide
in the first instance, whether any party may be entitled to an award of
attorney's fees based on the outcome of proceedings on remand.

71
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. We therefore affirm the
order of sanctions against CMS.

VIII.

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. Our decision today does not attempt
an answer.

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

72
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 ide-
als. Properly understood, it is an ideal not at all in tension with our
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

73
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.
Eliminating race-consciousness from government decisionmaking
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 must and do sympathize with those who are impatient with
continued federal court involvement in the operation of local schools.
Thirty-five years could be considered 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. While CMS has now achieved uni-
tary status in certain respects, this record simply does not support a
determination that the process of desegregation is at an end. Nor does
it support a holding that CMS violated the Constitution when, pursu-
ant to court orders, it undertook judicially approved action to remedy
its own long history of racial segregation.

Pursuant to the foregoing, we affirm in part, reverse in part, vacate
in certain respects, and remand this case to the district court for fur-
ther proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED

74
TRAXLER, Circuit Judge, concurring in part and dissenting in part:

Fifty years ago a number of school boards ran schools with intent
to divide the races. Black children went to predominantly black
schools and were taught by black teachers. White children were
taught by white teachers in white schools. Equal resources and oppor-
tunities were denied African-American children. In 1954 the Supreme
Court declared these practices to be violative of the constitutional
rights of black children to equal protection of the laws. Federal courts
were directed to oversee the dismantling of segregated school sys-
tems, Charlotte-Mecklenburg's included. When the old system was
ended and a constitutional system was in place, the federal courts
were to get out of the education business and to return the schools to
the control of the people elected to run them.

The district court began its oversight of the Charlotte-Mecklenburg
school system in 1965 and over the next few years worked with the
school system to develop a plan that would bring the school district
into compliance with the law. By 1975 the court concluded that the
desegregation plan in place then would work and that the case could
be closed as an active matter.

Since that time two generations of students have passed through
Charlotte-Mecklenburg's schools and, until the present case, not one
person has been back to court alleging that past segregative practices
have been continued. That is because the former system has been
eliminated to the extent practicable.

Yet now, when an effort is made to end federal court control, the
school board resists. The board would have the public and this court
believe that for the last twenty years it has operated a school system
which has continued to discriminate against African-American
schoolchildren in disregard of both reason and the district court's
order. If this is true, the people of Mecklenburg County should be out-
raged. But, of course, it is not true. The district court found it not to
be true and it reached that conclusion for solid reasons.

Because I believe the facts show Charlotte-Mecklenburg has been
successful in its efforts to eliminate the segregative practices of the
past, I cannot agree with a ruling that will keep the school district

75
under the yoke of federal court control. Mecklenburg County's posi-
tion as a progressive metropolitan area is fact and not facade, and the
time has come to return the school system to it. Therefore, I dissent
from a holding that would do otherwise.

I further would find unconstitutional a policy that would deny a
child an open seat in a magnet school because of the color of the
child's skin. For that reason I also dissent from a holding that would
reverse the district judge and permit such a practice.

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-
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-

76
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
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, the original Swann plaintiffs in 1965 challenged as
constitutionally inadequate the efforts of the Charlotte-Mecklenburg

77
Schools ("CMS") in complying with Brown. The school district's
desegregation plan was based on freedom of choice whereby "any
child, without regard to race, and without regard to minority or major-
ity 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
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 black stu-
dents "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 facilities; athlet-
ics; PTA activities; school fees; free lunches; books; elective 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

78
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
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

79
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-
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-

80
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.,
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. Until the case at bar, the Swann plaintiffs have never attempted
to reopen the case in order to address any alleged failure by the board
to comply with the district court's desegregation orders.

The present litigation arose in September 1997 when William
Capacchione ("Capacchione") filed suit against CMS on behalf of his
daughter, Christina, alleging that she had been unconstitutionally
denied admission to a magnet school program on account of her race.
In 1992, without prior court approval, CMS had adopted a desegrega-
tion plan focused mainly on the use of magnet schools. In filling mag-
net 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. Christina,
who is white, was placed on a waiting list and eventually denied
admission to a program at the Olde Providence magnet school.

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

81
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
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. CMS and the Swann plaintiffs filed notices of appeal, and CMS
moved to stay the injunction, except as applied to the magnet schools,
until the 2001-02 school year. The Swann plaintiffs moved for a com-
plete stay pending appeal. On November 15, 1999, the district court
denied the motions. CMS and the Swann plaintiffs, pursuant to Fed-
eral Rule of Appellate Procedure 8(a)(2), moved this court for a stay.
On December 30, 1999, we stayed the district court's injunction pend-
ing further order of this court.

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:
_________________________________________________________________

1 Those represented by Capacchione and Grant will be referred to as the
"plaintiff-intervenors."

82
 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.

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. . . .

83
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
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. I 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 plus/minus fifteen percent variance adopted by the district
court was not clearly erroneous. Considering that the only variance
ever approved by the district court in the course of the Swann litiga-
tion was a "`plus 15%' from the district-wide average," id. at 245, the
addition of a minus fifteen percent is reasonable. Moreover, the

84
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 Adams v. Wein-
berger, 391 F. Supp. 269, 271 (D.D.C. 1975) (using a plus/minus
twenty percent variance); see generally, David J. Armor, Forced Jus-
tice: School Desegregation and the Law 160 (1995) (observing that
in over seventy percent of the school districts with desegregation
plans where racial balance is measured by numerical standards, a
variance of plus/minus fifteen percent or greater is used).2 2 In sum, the
plus/minus fifteen percent variance is clearly within accepted stan-
dards, and provides 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-
_________________________________________________________________

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.").

I find equally erroneous the Swann plaintiffs' assertion at appellate
argument that "[t]he issue of how many schools are balanced has never
been a question in this case." App. Tr. 91. The racial composition of
schools goes to the heart of a desegregation case, and is very much key
to a review of the district court's declaration of unitary status. See
Swann, 311 F. Supp. at 268 (ordering CMS to assign pupils "in such a
way that as nearly as practicable the various schools at various grade
levels have about the same proportion of black and white students").

85
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 "the
average percent white in schools attended by black students, weighted
by the proportion of black students in each school." J.A. XXXIII-
16,172. According to the report of the plaintiff-intervenors' expert
witness, Dr. David J. Armor, a dissimilarity value of twenty or below
signifies "a highly balanced school system" and a score under thirty
signifies "a substantially desegregated system." J.A. XXXIII-16,172.
CMS's dissimilarity score was sixteen in 1980 and twenty-six in
1995. From this it is clear that CMS quickly desegregated in the
1970s and continues to maintain a "substantially desegregated sys-
tem." The dissimilarity index also indicates that CMS has better racial
balance than several comparable districts did when they were
declared unitary. See J.A. XXXIII-16,173.

The index of interracial exposure, like the dissimilarity index,
shows that CMS has made great leaps of progress. A score of zero on
the exposure index signifies total segregation, 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

86
 - 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-
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 finding 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-

87
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. The Swann plaintiffs contend that consideration of
demographics and the rationale of Freeman are misplaced because the
growth and shifting demographics of DeKalb County, Georgia, the
school district under court order in Freeman, exceeded that of
Charlotte-Mecklenburg. While CMS's growth rates and demographic
shifts certainly do not equal those experienced in DeKalb,3 3 I can find
nothing in Freeman limiting its holding to the specific facts of
DeKalb County or establishing DeKalb as the standard for measuring
imbalance caused by demographic factors. On the contrary, the opin-
ion 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.
Freeman cannot be distinguished into nothingness, nor does the stan-
dard of review permit this court to reweigh the evidence of the
changes in CMS.

Simply put, the district court's conclusion that the current imbal-
ance is unrelated to the original constitutional violation is not clearly
erroneous. Evidence presented at trial indicated that "[o]f the 16 for-
mer black schools that are still open, 13 are currently balanced and
_________________________________________________________________

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.

88
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
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.

Long periods of almost perfect compliance with the court's racial
balance guidelines,5
5 coupled with some imbalance in the wake of
_________________________________________________________________

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").

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.

89
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.").
The evidence presented at trial adequately explained why a few
schools have become imbalanced, and I can discern no evidence or
omissions that indicate clear error has been committed in this regard.

90
Volume 3 of 3

91
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,
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

92
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.
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-

93
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"). I will examine the district court's Martin find-
ings 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
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 pres-
ented 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. For
example, CMS's executive director of planning and student place-
ment testified that in siting schools CMS "looked at both African-
American and all populations not only in the vicinity of the site, but
in the entire district." J.A. VII-2920. So dedicated was CMS to siting
schools in integrated areas that it contemplated refusing a gift of land

94
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
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, contend 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. The former implies measures that can be
reasonably implemented under the circumstances, while the latter
omits the reasonableness requirement. For instance, it was possible
for CMS to adhere to the ten percent rule while ignoring growth in
the far north and south of the county. Youngsters would have been
compelled to ride buses for long periods while traveling with the flow
of rush hour traffic, but it was nonetheless possible to adhere to the
ten percent rule. Of course, the practicability of a refusal to respond
to growth in Charlotte-Mecklenburg is another matter.

95
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
J.A. VI-2732; J.A. V-2228. Though a disproportionate number of
African-American students are bused, the growth and housing pat-
terns support the district court's conclusion that the realities of the
current situation should not block a unitary status determination.

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 I discern the need
for more findings on this issue in light of post-Martin changes.

96
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, I would hold that
the district court's findings on student assignment are not clearly erro-
neous.

B. Faculty Assignment

In examining faculty assignment, the district 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
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, like the majority, I
believe that the district court's conclusion that this Green factor has
been satisfied is not clearly erroneous.

C. Facilities and Resources

The Swann plaintiffs and CMS contend that the district court
impermissibly shifted the burden of proof on this factor. The majority
agrees with this argument, concluding that the improper allocation of
the burden of proof amounts to an error of law and that this issue
therefore must be remanded to the district court. I respectfully dis-
agree.

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

97
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 my 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

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
_________________________________________________________________

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).

98
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.

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.

99
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

Therefore, because the district court's findings, which were based
on the court's weighing of all of the relevant evidence presented at
_________________________________________________________________

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
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.

100
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. Contrary to the
majority's analysis of Dr. Gardner's report and its discussion of "an-
ecdotal accounts of a number of witnesses," ante at 40, I simply can-
not conclude that the data and other evidence in the record show the
district court's findings on this Green factor to be implausible. See
Anderson, 470 U.S. at 574. The majority is certainly correct that "lies,
damned lies, and statistics" are subject to "selective culling" and can
support varying interpretations of the evidence. Ante at 39-40 n.14.
The briefs of the parties make this obvious. Though the evidence
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 constitutional
violation in the "quality of school buildings and facilities." Swann,
300 F. Supp. at 1372. The Capacchione court found that this remains
true today, and the evidence as a whole indicates that this finding is
not clearly erroneous.

D. Transportation

The parties do not dispute the district court's finding that "CMS
provides free bus transportation to all students who do not live within

101
a mile and a half of their schools." Capacchione, 57 F. Supp. 2d at
267. The focus of the Swann plaintiffs' argument on this factor deals
with the Martin opinion. As previously discussed, Martin does not
provide the framework for a unitary status determination and the dis-
trict court's interpretation of Martin, along with the finding that the
present state of busing "may be about the best CMS can do," Capac-
chione, 57 F. Supp. 2d at 253, does not constitute error.

E. Staff Assignment

The district court, noting that findings of discrimination in school
staffing were never made, concluded that CMS has complied with its
constitutional duties. The parties point this court to no contrary evi-
dence, nor have I discovered such in the record. Therefore, I concur
with the majority 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. In sum, I agree with the majority that the district court's con-
clusion that CMS has satisfied this Green factor is not clearly
erroneous.

G. Ancillary Factors

1. Teacher Quality

The district court found that there was no discrimination in the
quality of teaching. The Swann plaintiffs contend this finding is

102
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." Capac-
chione, 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 expe-
rience does not necessarily relate to competency. For example,
according to former Superintendent Murphy, it is not uncommon to
have "excellent first-year teachers" and "very weak 35th-year teach-
ers." J.A. VI-2795. Other witnesses observed that the newer teachers
had better "knowledge of various teaching strategies" and were more
comfortable with diverse classrooms. J.A. VII-3275.

The Swann plaintiffs also assert that imbalanced African-American
schools have fewer teachers with advanced degrees. For instance, in
imbalanced black high schools only thirty-one percent of the teachers
held advanced degrees, while forty-six percent of the teachers in
imbalanced white high schools held advanced degrees. See 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
is "no significant relationship" between black achievement and
teacher education levels. J.A. XXXIII-16,221. In sum, I agree with
the majority that the district court's conclusion that African-American
students receive equal access to quality teachers is not clearly errone-
ous.

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

103
or evidence of discrimination in the current operation of CMS. This
was an area of immense disagreement at trial, and the parties
presented a mountain of data on this subject. Though the Fourteenth
Amendment guarantees equal protection but not equal outcomes, if
low African-American achievement is a result of the former de jure
system, it must be eliminated to the extent practicable. See Dowell,
498 U.S. at 249-50. 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"); People Who Care v.
Rockford Bd. of Educ., 111 F.3d 528, 537 (7th Cir. 1997) (explaining
that a number of variables, other than discrimination, account for the
achievement gap); Coalition to Save Our Children, 90 F.3d at 778
(finding "a causal link between . . . socioeconomic factors and student
achievement").

The plaintiff-intervenors' expert witness, Dr. Armor, presented 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-
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.

104
 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
also 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 8 Accordingly, the district court did not clearly err
in finding that the achievement gap between black and white students
is not a vestige of past discrimination or evidence of present discrimi-
nation.
_________________________________________________________________

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
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.

105
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
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-

106
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, described
by the majority as "frank acquiescence in a position inuring to [their]
detriment." Ante at 34. The district court gave little weight to CMS's
assertions that the board had not put forth enough effort, and the evi-
dence presented at trial amply supports the district court in this
regard. Former Superintendent Murphy testified that despite a report
indicating that CMS was unitary and his belief that CMS "w[as] defi-
nitely in compliance," no effort was made to dissolve the court order.
J.A. VI-2706. Dr. Murphy gave three reasons for the avoidance of a
unitary status hearing. First, he advised board members that the court
hearing would be "a long, drawn-out process which would cost mil-
lions 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. 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

107
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 order was not intended
to continue after CMS remedied the de jure violation, nor was it
intended to suspend the democratic process with no prospect of resto-
ration. Yet it has been institutionalized to the point that CMS officials
cannot imagine life without it. Contrary to assertions of the majority,
the desegregation order is certainly not viewed as "detrimental" by
CMS officials. See ante at 34.

Ironically, CMS's clinging to the temporary desegregation order
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 order
in place so that it may continue racial balancing and other policies,
it is unthinkable that CMS will attempt to revive the dual system.
Accordingly, the district judge's finding of good faith is not clearly
erroneous.

I. CMS's Remedial Plan

As a response to the plaintiff-intervenors' push for unitary status,
CMS developed a remedial plan addressing many of the Green factors
and other ancillary factors. See J.A. XXIII-11,028. The district court
dismissed the remedial plan as a "`litigation strategy' plan" and

108
declined to consider it. Capacchione, 57 F. Supp. 2d at 256. The
majority, in reversing the unitary status determination, describes the
district court's treatment of the remedial plan as"a fundamental flaw
in the district court's proceedings." Ante at 24. First, the majority
avers that the district court misconstrued the test for unitary status.
According to the majority, a district court must ask (1) what a school
district has done in the past, and (2) what a school district may do in
the future. See ante at 25. Because the district court allegedly failed
to undertake the latter inquiry as to the remedial plan, the majority
holds that the district court's order must be reversed. The majority
divines its two-part test from Supreme Court cases which have
instructed district courts to ask "whether the Board ha[s] complied in
good faith with the desegregation decree since it was entered, and
whether the vestiges of past discrimination ha[ve] been eliminated to
the extent practicable." Dowell, 498 U.S. at 249-50; see also Free-
man, 503 U.S. at 491.

While I agree with my colleagues on the first prong of their test,
I do not agree that examining "whether the vestiges of past discrimi-
nation ha[ve] been eliminated to the extent practicable," Dowell, 498
U.S. at 249-50, requires a district court--as a matter of law--to con-
sider a remedial plan conceived, drafted, and offered by one of the
parties during the lawsuit as an obvious defense to it. The plain mean-
ing of the relevant language is that in some desegregation cases sim-
ple 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 remedial decree is to be judged by its effective-
ness"). 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 dis-
trict 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,
I do not believe that Dowell and Freeman required the district court
as a matter of law to have considered CMS's eleventh-hour remedial
plan.

109
Likewise, I do not believe that the district court ran afoul of Fed-
eral Rule of Evidence 402 when it refused to consider the remedial
plan. Rule 402, of course, declares that "[a]ll relevant evidence is
admissible." Even relevant evidence may be excluded, however, when
its probative value is substantially outweighed by considerations of
the needless presentation of cumulative evidence. See Fed. R. Evid.
403. And CMS's remedial plan was certainly cumulative, citing and
summarizing several expert reports which had been admitted into evi-
dence. For example, the plan's discussion of faculty assignment is
based on the reports of Dr. William Trent, Dr. Robert Peterkin, and
Dr. Roslyn Mickelson; the plan's discussion of facilities is based on
Dr. Gardner's report; the plan's discussion of the achievement gap
between blacks and whites is based on the reports of Dr. Trent, Dr.
Peterkin, and Dr. Mickelson; and the plan's student assignment dis-
cussion is based on Dr. Gordon Foster's report. All of the aforemen-
tioned reports were admitted into evidence and the authors of the
reports testified at the hearing and were subject to cross-examination.
Hence, much of the remedial plan was cumulative, providing the dis-
trict court with but a rehashing of expert reports and testimony.

To the extent that the remedial plan contained relevant evidence
appearing nowhere else in the record, I would hold that the exclusion
of such evidence was harmless. According to Federal Rule of Civil
Procedure 61, a "court at every stage of the proceeding must disregard
any error or defect in the proceeding which does not affect the 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, I 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.

III. Magnet Schools

I turn now to Capacchione's challenge to CMS's 1992 magnet
schools plan. Specifically, Capacchione contends that his daughter

110
Christina was unconstitutionally denied admission to a magnet school
program on account of her race.

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 "optional schools," paired elementary
schools, satellite attendance zones, and a feeder system. In 1991,
however, CMS hired Dr. Stolee to examine racial imbalance that was
being caused anew by the demographic shifts and population growth
in the City of Charlotte and surrounding Mecklenburg County and, in
1992, implemented a new pupil assignment plan drafted by Dr.
Stolee, 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 more unpopular paired ele-
mentary schools. Magnet schools, many of which were located in pre-
dominately black neighborhoods, offered a specialized curriculum or
innovative instructional style not found in the other schools in the sys-
tem.

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."). A desegregation plan using
magnet schools, according to Dr. Stolee, would "give[ ] each parent
an opportunity to make a choice between a school serving the area in
which the family resides, a school in some other area, or a school
offering a very specific attractive program." J.A. XXXII-15,580. Dr.
Stolee also recognized that the magnet-centered plan would be a dra-
matic shift from the prior desegregation plan. Thus, as part of the
plan, he recommended that CMS secure approval from the district

111
court before making any changes. Indeed, Dr. Stolee's "RECOM-
MENDATION #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. 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). Seek-
ing a balance of sixty percent white and forty percent black in the
magnet schools, CMS decreed in its 1992 student assignment plan
that magnet "slots reserved for one race will not be filled by students
of another race." J.A. XXXII-15,702. The result of this policy was
that if a sufficient number of blacks or whites did not apply and fill
the seats 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

112
started not as a petition for unitary status but as a discrimination suit
arising out of Christina Capacchione's denial of admission to a mag-
net 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 are 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 quotas 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. I would affirm.

A. Immunity

I begin with the question of whether the 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. CMS asserts that it
is entitled to immunity for its act of implementing the 1992 magnet
schools program without court approval because the prior desegrega-
tion orders authorized the use of "optional schools" and a racial bal-
ance 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 offi-
cials are not entitled to immunity.

113
In 1970, the district court issued a desegregation order to CMS,
noting that the order was "not based upon any requirement of `racial
balance.'" Swann, 311 F. Supp. at 267 (emphasis added). The court
reiterated "that efforts should be made to reach a 71-29 ratio in the
various schools so that there will be no basis for contending that one
school is racially different from the others, but [recognized] that vari-
ations from the norm may be unavoidable." Id. at 267-68 (internal
quotation marks omitted). The district court also gave CMS wide dis-
cretion in implementing the desegregation measures by "encourag-
[ing] [CMS officials] to use their full`know-how' and resources to
attain" the desired results. Id. at 269. However, the district court con-
currently warned that this "maximum discretion . . . to choose meth-
ods that will accomplish the required result" was not limitless,
directing the board to obtain leave of court "before making any mate-
rial departure from any specific requirement set out" in the order. Id.
at 270. On appeal, the Supreme Court affirmed the district court's
decision and also addressed the subject of racial quotas. See Swann,
402 U.S. at 23-25. Specifically, 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 con-
stitutional 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" and that had the district court "re-
quire[d], as a matter of substantive constitutional right, any particular
degree of racial balance or mixing, that approach would be disap-
proved and we would be obliged to reverse." Swann, 402 U.S. at 24.
The goal was upheld, however, because the "use made of mathemati-
cal ratios was no more than a starting point in the process of shaping
a remedy, rather than an inflexible requirement." Id. at 25.

In 1974, the district court approved new guidelines and policies
adopted by the board, which included the use of "optional schools."
Swann, 379 F. Supp. at 1103-04. These optional schools placed more
"emphasis on open or traditional education than normally offered in
conventional schools." J.A. XXXII-15,683. The optional schools' tra-
ditional programs "offer[ed] an enriched and highly structured educa-
tion," 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

114
were far from being 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 meth-
ods and created specialized curriculum schools featuring the Montes-
sori method; science, mathematics, and technology; foreign language
immersion; learning immersion programs for young children;
enhanced education for academically gifted students; and communi-
cation 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--to attract students to a school in a particular
location by using a specialized curriculum or teaching technique.
Thus, Dr. Stolee, in recommending the magnet program in 1992,
observed that CMS, via its optional schools, "had some experience in
such specialized schools." J.A. XXXII-15,580.

Consistent with the district court's 1971 ruling that a flexible goal
be set for individual schools, the district court also approved an
optional schools admissions policy which provided that "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, 379 F. Supp. at 1104, and recognized that the "ac-
tual enrollment of the optional school may have to be guided by its
racial composition and by the number drawn from each other school
area, not by considerations of space and program only," id. at 1108.
Additionally, the policy 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
quota or 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 dis-
trict court's 1970 order.99
_________________________________________________________________

9 I respectfully disagree with the assertion that the Supreme Court's
disapproval of inflexible racial quotas as a desegregation tool is solely
a limitation on a district court's remedial power, and that school authori-
ties may impose such rigid racial quotas to remedy the identical wrong.
In Swann, the Court addressed the authority of the district court to
impose rigid racial quotas, but did not explicitly address the issue of
whether school authorities could do so. Swann, 402 U.S. at 24-25. The
same day, however, the Court struck down a state anti-busing law
because it "flatly forb[ade] assignment of any student on account of race

115
Finally, despite the district court's 1970 directive that CMS obtain
court approval for material modifications to the court-imposed deseg-
regation plan, the approval process that took place in the ensuing
years, and Dr. Stolee's specific recommendation that CMS seek court
approval for the new magnet schools program in 1992, CMS inexpli-
cably chose not to return to the district court to obtain approval of the
magnet schools program and its strict admissions process. Conse-
quently, the district court was never given the opportunity to rule
upon its permissibility as a desegregation tool prior to its implementa-
tion and CMS was never required by court order to implement it.

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). Indeed, the plaintiff-intervenors'
own expert has touted magnet programs as an "effective way to attract
sizable numbers of white students to predominately minority
schools." David J. Armor, Forced Justice: School Desegregation and
the Law 223 (1995). Thus, a magnet schools program, properly imple-
mented, can no doubt be an effective desegregation tool. However, a
conclusion that CMS was free to adopt any form of magnet school
_________________________________________________________________

or for the purpose of creating a racial balance or ratio in the schools."
North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45 (1971).
This time addressing race-based assignments as a tool available to
"school authorities . . . to fulfill[ ] their constitutional obligation to elimi-
nate existing dual school systems," the Court reiterated Swann's distinc-
tion between unacceptable rigid quotas and acceptable quotas used as
"starting points in shaping a remedy." Id. at 46.

Common sense likewise compels me to reject the view that Swann for-
bids courts to impose inflexible quotas, but sanctions the identical action
by school authorities. Under such a reading of Swann, school authorities
would be at liberty to implement programs to remedy the effects of seg-
regation which the district court would be prohibited from ordering for
the identical remedial purpose. However, whether imposed by a court
upon a recalcitrant school board or voluntarily adopted by a school board
to meet the requirements of Brown and Green, the constitutional implica-
tions are the same. Even when intended to serve a permissible remedial
purpose, unduly rigid race-based assignments exceed permissible limits
of race-based remedial action.

116
program it might wish to see in place does not flow from this general
proposition.

Nor do I find authorization for CMS's actions in the language of
the prior court orders which CMS points to for support of its immu-
nity argument. At most, the portions of the district court order autho-
rizing "optional schools" could perhaps be read in isolation as
authorizing CMS's use of "magnet schools" in more diverse, special-
ized areas, although I would still have difficulty excusing CMS's fail-
ure to seek the requisite prior court approval for such a material
expansion. I need not resolve this closer question, however, because
CMS's program went much further than simply expanding the num-
ber and types of specialized schools, be they called "optional" or
"magnet." Under no circumstances could I accept CMS's assertion
that the inflexible racial quotas mandated by the expanded magnet
school program was countenanced by the prior court orders. The
optional school order, relied on by CMS, required school officials to
strive for a minimum level of twenty percent black enrollment in
optional schools. The same order required CMS to ensure that
optional schools did not jeopardize the desegregation of other schools.
But the prior orders did not approve a use of race to the extent that
CMS could deny eager applicants an otherwise available slot in a
magnet program solely on account of the applicant's race. On the con-
trary, 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, the majority concludes that the magnet admis-
sions policy is permissible. By definition, however, CMS's special-
ized 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

117
benefit in a conventional school. In other words, an education in a
magnet school offering, for example, foreign language immersion, is
not interchangeable with an education in a conventional public school.10
10
Hence, the effect of the magnet admissions policy is far different from
the majority-to-minority transfer policy.

The end result of the challenged magnet schools admissions policy
is placement of racial quotas ahead of educating students--an inap-
propriate result nowhere countenanced in the district 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 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) (holding that the use of race in pupil
assignments is "one tool absolutely essential to fulfillment of [a
school board's] constitutional obligation to eliminate existing dual
school systems"), the Brown opinions never contemplated that this
remedial use of race, like the old dual system, would deny some stu-
dents 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.").11
11 In my view, an admissions policy that would deny an avail-
_________________________________________________________________

10 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.

11 Though the present case was brought on behalf of a white child
denied admission to a magnet school, the policy as written could have

118
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. It is improper to attempt to establish equal protec-
tion of the laws in the realm of public education by denying children
an equal opportunity to compete for open, unclaimed slots in CMS's
extraordinary magnet schools. I agree with the district court that the
policy is ultra vires and that CMS officials are not entitled to immu-
nity.

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 conclude 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.1212
_________________________________________________________________

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).

12 The Supreme Court's application of strict scrutiny has indeed been
unwavering. In Adarand, the Court refused to apply a lesser standard of

119
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
_________________________________________________________________

scrutiny to racial classifications enacted by Congress. Though Congress
itself is charged with enforcing the Fourteenth Amendment's promise of
equal protection via "appropriate legislation," U.S. Const. amend. XIV,
§ 5, the Supreme Court in interpreting the Fifth Amendment held 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 schools sys-
tem.

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.

120
was adopted to remedy the effects of the dual school system previ-
ously operated in Mecklenburg County. Without question, remedying
the effects of past discrimination is a compelling state interest. See
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (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 alternative
race neutral policies;

(2) the planned duration of the policy;

(3) the relationship between the numerical goal and the per-
centage of minority group members in the relevant popula-
tion;

(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 conclude that the CMS mag-
net admissions policy is not narrowly tailored.

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. There is no 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
not take on a life of their own." Hayes v. North State Law Enforce-

121
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 to leave available
magnet seats empty, despite the waiting lists, for years to come.

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
actively recruits children of the "right color" to fill empty magnet
school seats.

122
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 inequities of CMS's magnet
admissions policy call to mind why strict scrutiny is used in the first
place: "Of all the criteria by which men and women can be judged,
the most pernicious is that of race." Maryland Troopers Ass'n v.
Evans, 993 F.2d 1072, 1076 (4th Cir. 1993). Teaching young children
that admission to a specialized academic program with available seats
is contingent on their race is indeed pernicious, and CMS's magnet
admissions policy can in no way be described as narrowly tailored to
achieve the compelling interest of remedying past discrimination.1313

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
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
_________________________________________________________________

13 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.

123
 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 con-
stitutional violation. CMS ran afoul of the Equal Protection Clause
when it adopted a magnet school admissions policy designed to deny
an available, unclaimed slot in a specialized magnet school to a child
on account of the child's race. In order to recover nominal damages,
Christina 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 open, unclaimed seats
on an equal basis. See Northeastern Florida Chapter of the Associ-
ated 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 Christina from competing for the open slots. In fact, CMS left the
two available "black seats" at Olde Providence unfilled for most of
the summer while Christina and over one hundred other white chil-
dren languished on a waiting list. The nominal award in this case rec-
ognizes 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 nom-
inal damages would not change this. In sum, I would hold that the dis-
trict court did not err in awarding nominal damages.

IV. Injunctive Relief

After recounting the unitary status determination and the constitu-
tional violation in the magnet admissions policy, the district court

124
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.

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
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, I 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 mag-
net schools or other schools in the system. CMS represented to the
district court both during and after trial that it had no intention of con-
tinuing 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. More-
over, there was no evidence presented at trial about what CMS pro-
posed to do as a unitary school system. A post-unitary status student
assignment plan was never given to the district court, and the evi-

125
dence simply does not indicate that "there is an imminent threat of
illegal action." Bloodgood, 783 F.2d at 475. Hence, I agree with the
ultimate conclusion of the majority that the district court erred in
granting 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-
six. The plaintiff-intervenors moved for sanctions and the court
granted the motion in part. The court had to continue the trial for one
week so that the plaintiff-intervenors could depose the newly dis-
closed 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

126
on the 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 rea-
sonably be interpreted to apply to disclosures to the other parties.
Besides, even if such an interpretation were reasonable, the court's
command to supplement interrogatories superceded the pre-trial
order. Accordingly, bad faith is evident.

Second, the presentation of such a lengthy witness list on the eve
of trial to the plaintiff-intervenors was prejudicial. Without the action
of the court, the plaintiff-intervenors would have had no opportunity
to depose the witnesses, much less properly prepare for trial. Thus,
CMS's failure to supplement interrogatories was prejudicial.

Third, such non-compliance with the district court's orders 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, I agree with the majority that 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 Capacchione
attorney fees because (1) Capacchione received only nominal dam-
ages, and (2) young Capacchione would not have been admitted to the

127
magnet program even if race was not a factor insofar as her lottery
number was so high.14 14 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 reason-
able 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). In Farrar, the 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.

Id. at 112-13 (internal citations omitted). The award of nominal dam-
ages 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.

I would also affirm the attorney fee award to the plaintiff-
intervenors to the extent that it compensates them for their litigation
_________________________________________________________________

14 CMS concedes that if unitary status is upheld, Grant is entitled to
attorney fees. However, CMS takes a much different view of Capacch-
ione's actions insofar as Capacchione originally attacked only the mag-
net program and did not have sights set on unitary status. Nonetheless,
the record is clear that Capacchione actively participated with Grant in
the unitary status litigation.

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of the unitary status issue. Monitoring of a school desegregation
decree is crucial to the dismantling of the dual system. See Jenkins v.
Missouri, 967 F.2d 1248, 1251 (8th Cir. 1992). Accordingly, efforts
"to insure full compliance and to ensure that the plan is indeed work-
ing to desegregate the school system, are compensable services."
Northcross v. Board of Educ., 611 F.2d 624, 637 (6th Cir. 1979). The
majority correctly notes that "success in reaching that last stage [in a
desegregation case] is often appropriately credited to the original
plaintiffs who brought the case." Ante at 71. However, the unique
posture of this case, with the school board and the original plaintiffs
resisting the resumption of local control, dictates looking at the award
of fees in a different light.

The plaintiff-intervenors, through their work in litigating unitary
status, have stepped into the shoes of the original plaintiffs and
brought this case to what I believe should be its close. Based on their
monitoring of CMS's activities and a belief that the decree had
"work[ed] to desegregate the school system," Northcross, 611 F.2d at
637, the plaintiff-intervenors petitioned for a declaration of unitary
status. Though most of the vital information was in the hands of
CMS's officials, who were often uncooperative in the discovery pro-
cess, see Capacchione, 57 F. Supp. 2d. at 292-293 (cataloging sanc-
tions and threats of sanctions against CMS), the plaintiff-intervenors
have in my view prevailed on the issue of unitary status. 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 the exceptional circumstances of this case indicate that a fee is
proper. To avoid a declaration of unitary status, CMS has clung to the
desegregation decree for improper reasons, see supra part II.H, and
the equitable remedy ordered in 1969 "would be far from complete,
and justice 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) (awarding attorney fees in
school desegregation case based on exceptional circumstances); see
also Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473, 481 (4th Cir.
1950). 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-

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tus hearing. Accordingly, I would affirm the district court's award of
attorney fees.

VII.

For the foregoing reasons, I would affirm the district court's grant
of unitary status in toto. Additionally, I would affirm the finding of
a constitutional violation in the magnet school admissions policy, the
award of nominal damages, and the attorney fees award. Lastly, I con-
cur with the majority that the district court's injunction was unwar-
ranted and that the district court's discovery sanctions were not an
abuse of discretion.

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