Belk v. Charlotte-Mecklenburg

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 19, 2001
• Docket: 99-2389
• Status: Published

Opinion

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

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,

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.

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,

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

128 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-

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

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.