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.

ORDER

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

follows:

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

“United States of America; North Carolina School Boards

Association; National School Boards Association.”

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

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

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

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

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

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

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

corrected to read “See ante at 34.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
Rehearing en banc granted by order filed 1/17/01;

published opinion filed 11/30/00 is vacated
Volume 1 of 3

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TERRY BELK; DWAYNE COLLINS, on

behalf of themselves and the class

they represent,

Plaintiffs-Appellants,

v.

WILLIAM CAPACCHIONE, Individually

and on behalf of Christina

Capacchione, a minor; MICHAEL P.

GRANT; RICHARD EASTERLING;

LAWRENCE GAUVREAU; KAREN

BENTLEY; CHARLES THOMPSON; SCOTT

C. WILLARD,

Plaintiffs-Appellees,

and

No. 99-2389

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg

School Board, in his official

capacity,

Defendants.

UNITED STATES OF AMERICA; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION; NATIONAL SCHOOL

BOARDS ASSOCIATION,

Amici Curiae.
WILLIAM CAPACCHIONE, Individually

and on behalf of Christina

Capacchione, a minor; MICHAEL P.

GRANT; RICHARD EASTERLING;

LAWRENCE GAUVREAU; KAREN

BENTLEY; CHARLES THOMPSON; SCOTT

C. WILLARD,

Plaintiffs-Appellees,

and

TERRY BELK; DWAYNE COLLINS, on

behalf of themselves and the class

they represent,

Plaintiffs,

No. 99-2391

v.

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg

School Board, in his official

capacity,

Defendants-Appellants.

UNITED STATES OF AMERICA; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION; NATIONAL SCHOOL

BOARDS ASSOCIATION,

Amici Curiae.

 2
WILLIAM CAPACCHIONE, Individually

and on behalf of Christina

Capacchione, a minor; MICHAEL P.

GRANT; RICHARD EASTERLING;

LAWRENCE GAUVREAU; KAREN

BENTLEY; CHARLES THOMPSON; SCOTT

C. WILLARD,

Plaintiffs-Appellees,

and

TERRY BELK; DWAYNE COLLINS, on

behalf of themselves and the class

they represent,

Plaintiffs,

No. 00-1098

v.

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg

School Board, in his official

capacity,

Defendants-Appellants.

v.

UNITED STATES OF AMERICA; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION; NATIONAL SCHOOL

BOARDS ASSOCIATION,

Amici Curiae.

 3
WILLIAM CAPACCHIONE, Individually

and on behalf of Christina

Capacchione, a minor; MICHAEL P.

GRANT; RICHARD EASTERLING;

LAWRENCE GAUVREAU; KAREN BENTLEY;

CHARLES THOMPSON; SCOTT C.

WILLARD,

Plaintiffs-Appellees,

and

TERRY BELK; DWAYNE COLLINS, on

behalf of themselves and the class

they represent,

Plaintiffs,

No. 00-1432

v.

THE CHARLOTTE-MECKLENBURG

BOARD OF EDUCATION; ERIC SMITH,

Superintendent, in his official

capacity; ARTHUR GRIFFIN, Chairman

of the Charlotte-Mecklenburg School

Board, in his official capacity,

Defendants-Appellants.

UNITED STATES OF AMERICA; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION; NATIONAL SCHOOL

BOARDS ASSOCIATION,

Amici Curiae.

Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

(CA-97-482-3-P, CA-65-1974-3-P)

Argued: June 7, 2000

Decided: November 30, 2000

Before MOTZ, TRAXLER, and KING, Circuit Judges.

 4
Affirmed in part, reversed in part, vacated in part, and remanded by

published opinion. Judge Motz and Judge King wrote the opinion.

Judge Traxler wrote a concurring and dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Stephen Luke Largess, FERGUSON, STEIN, WALLAS, ARGUED:

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: ON BRIEF: ON BRIEF: James E. Ferguson, II, John W. Gresham, C. Margaret Errington, FERGUSON,

STEIN, WALLAS, ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina; Elaine R. Jones, Director-Counsel, Norman J.

Chachkin, Gloria J. Browne, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York; Allen R. Snyder,

Maree Sneed, HOGAN & HARTSON, L.L.P., Washington, D.C.;

James G. Middlebrooks, Irving M. Brenner, Amy Rickner Langdon,

SMITH, HELMS, MULLISS & MOORE, L.L.P., Charlotte, North

Carolina; Leslie J. Winner, General Counsel, CHARLOTTEMECKLENBURG BOARD OF EDUCATION, Charlotte, North Carolina, for Appellants. Kevin V. Parsons, PARKS, CHESIN & MILLER, P.C., Atlanta, Georgia; John O. Pollard, MCGUIRE, WOODS,

BATTLE & BOOTHE, Charlotte, North Carolina; William S. Helfand, 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 ASSOCIATION, Raleigh, North Carolina; Julie K. Underwood, General Counsel, 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 systems 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 CharlotteMecklenburg 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 eradicate vestiges of its invidious discrimination. See Swann v. CharlotteMecklenburg 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 deliberate 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 predominantly 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 comply 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 litigation, 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. CharlotteMecklenburg Bd. of Educ., 475 F. Supp. 1319, 1324 (W.D.N.C. 1979)

("For three centuries racial segregation was the law of the land.").

Indeed, throughout the early part of the 1900s, CMS operated a segregated school system within the safe harbor created by the Supreme

Court's doctrine of "separate but equal" articulated in Plessy v. Ferguson, 163 U.S. 537 (1896).

In the middle of the 1900s, the Supreme Court began dismantling

the great wall of segregation constructed under the imprimatur of

Plessy. The Court initially sought to determine whether various "separate" African-American schools were genuinely "equal" to white

schools by evaluating the quality of physical facilities, curricula, faculty, 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 children, school systems "in which all vestiges of enforced racial segregation have been eliminated." Wright v. Council of the City of Emporia,

407 U.S. 451, 463 (1972).

Notwithstanding the Court's repeated admonition that segregation

and its vestiges be eliminated "root and branch," Green v. County Sch.

Bd. of New Kent County, 391 U.S. 430, 437-48 (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 permitted 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 intensive efforts would be necessary in order to make "meaningful and

immediate progress toward disestablishing state-imposed segregation." 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 students 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 official 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 children [were] required to attend the schools to which they [were]

assigned." Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F.

Supp. 1358, 1361 (W.D.N.C. 1969). This was an ineffectual measure

-- perhaps intentionally so -- and by 1964, no more than a few dozen

(out of more than 20,000) African-American children in CMS were

attending schools with white children. Id. at 1362.

2.

In 1965, the parents of African-American children attending CMS

(hereinafter the "Swann plaintiffs")1 filed a class action seeking

injunctive relief, claiming that the Board's policies and practices were

perpetuating a segregated school system. Swann v. CharlotteMecklenburg 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 1 

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 conscious 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 predominantly on "freedom of choice," it became clear that school boards did

possess an affirmative obligation to desegregate, not merely an obligation to implement race-neutral policies. Green, 391 U.S. at 437-38.

Invigorated by the developing law, the Swann plaintiffs promptly

filed a motion for further relief with the district court, seeking to

expedite the desegregation process.

3.

In 1969, Judge James B. McMillan, newly assigned to the Swann

case,2 reexamined the Board's actions in light of Green and determined that its "freedom of choice" plan, when coupled with geographic 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 2 

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 sustained 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 implementing a "neighborhood school" policy, under which efforts were

made to locate schools in neighborhoods and within walking distance for children, could not override the constitutional duty to

desegregate. Id. at 1369. At the same time, CMS was not to avoid

locating new facilities in black neighborhoods. Id. at 1371.

In light of Green, Judge McMillan also ordered CMS to submit a

new, amended desegregation plan, and he outlined certain possible

remedies, including busing and re-zoning. Swann, 300 F. Supp. at

1360; Swann v. Charlotte-Mecklenburg Bd. of Educ., 306 F. Supp.

1299, 1302 (W.D.N.C. 1969).

Once again, however, CMS was slow to respond, prompting Judge

McMillan to impose a deadline of August 4, 1969, by which the

Board was to submit a detailed desegregation plan to the court. See

Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F. Supp. 1381,

1382, 1386 (W.D.N.C. 1969). CMS complied, and its proposed

desegregation plan appeared to accept, for the first time, the constitutional 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 proposed 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 reassignment 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 nonetheless 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 perpetuate 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 representing the law which applies to the local schools. By the

responses to the October 10 questions, the Board has indicated 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 desegregation 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"3 to accomplish its goals. Id. Fourth, the district court restricted

the student transfer policy in order to safeguard against resegregation.

Id. at 268-69. Fifth, the race of faculty members at each school had

to approximate the ratio of black and white faculty members throughout 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 specifically 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 constitutional requirements. For example, Judge McMillan ordered student 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. 3 

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 students 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 properly, 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 incorporation 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 discriminatory 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 controlled 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 reservations, that the Board was actually working toward desegregation:

"The new Board has taken a more positive attitude toward desegregation 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 connection with the CMS desegregation litigation.

a.

First, in 1978, a group of white parents and children brought suit

against CMS, seeking an order prohibiting the Board from assigning

children pursuant to the Board's latest student-assignment plan. See

Martin, 475 F. Supp. at 1320. The Martin plaintiffs claimed that the

Supreme Court's then-recent decisions in Pasadena City Bd. of Educ.

v. Spangler, 427 U.S. 424, 436 (1976), and University of Cal. Regents

v. Bakke, 438 U.S. 265, 305 (1978), prohibited any consideration of

race in student assignment. 475 F. Supp. at 1321. The Swann plaintiffs intervened in Martin, joining the Board's opposition to the contentions of the Martin plaintiffs. Id.

A brief review of Spangler and Bakke is necessary to an understanding 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 maintained 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 annually 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 minorities. 438 U.S. at 319-20. In striking down this admissions plan, the

Court had made clear that "[w]hen a classification denies an individual 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 presided 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. Specifically, 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 McMillan made several important findings. For example, he found that discrimination 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 Martin. See 626 F.2d at 1165.

b.

The second significant phase of litigation between 1975 and 1992

was initiated in 1980. At that time, CMS and the Swann plaintiffs

notified the district court that the black student population in CMS

elementary schools had grown from twenty-nine percent to forty percent, 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 desegregation plan as approved by the district court, focusing, inter alia, on satellite 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. Christina is Hispanic and Caucasian, and her suit under 42 U.S.C. § 1983

sought declaratory, injunctive, and compensatory relief. In response,

CMS moved to dismiss Capacchione's suit and, almost simultaneously, the Swann plaintiffs moved to reactivate Swann, claiming

that CMS was not yet in compliance with past desegregation orders

and had not yet achieved unitary status. Because Judge McMillan had

died, the cases were assigned to Senior Judge Robert D. Potter, who

restored Swann to the district court's docket, consolidated the cases,

denied CMS's motion to dismiss, and granted Capacchione's motion

to intervene.4

The Capacchione plaintiffs claimed that CMS had long since eliminated the vestiges of segregation in its schools, and that its formerly

dual system of white and black schools had, for some time, been unitary. They also contended that CMS, while still operating under the

court's desegregation orders, had violated those orders and the constitutional 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 desegregation 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 4 

on that fact and other findings, the district court determined that William

Capacchione no longer possessed standing to seek injunctive or declaratory 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 consolidated 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 unconstitutional. Furthermore, the court enjoined the Board 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." Id. at 294.

Finally, the court awarded the Capacchione plaintiffs nominal monetary damages and substantial attorney's fees.

Following the filing of timely notices of appeal, the Swann plaintiffs 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 plaintiffs 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 determinations 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, however, defer to the district court on conclusions of law, including the

district court's understanding of controlling law or the various burdens of proof and presumptions; consequently, we review any such

conclusions of law de novo. See, e.g., In re Brice, 188 F.3d 576, 577

(4th Cir. 1999).

A.

1.

Indisputably, the school system of Charlotte-Mecklenburg County

subjected African-Americans to nearly a century of segregation and

discrimination. Indeed, the Supreme Court recognized as much in

Swann, noting that North Carolina was one of the states with "a long

history of maintaining two sets of schools in a single school system

 20
deliberately operated to carry out a governmental policy to separate

pupils in schools solely on the basis of race." 402 U.S. at 5-6. In this

context the remedies forcefully endorsed in Brown II, including the

use of race conscious measures, are necessary to eradicate the invidious 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 whatever 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 violation have been shown, the scope of a district court's equitable powers 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 repeatedly 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 warranted 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) faculty, (5) staff, and (6) extracurricular activities. Green, 391 U.S. at

435. Not only are reviewing courts to ascertain whether these original

Green factors are free from racial discrimination, but courts also are

entitled, in their discretion, to identify other factors ("ancillary factors")5

and "determine whether minority students were being disadvantaged

in ways that required the formulation of new and further remedies to

ensure full compliance with the court's decree." 503 U.S. at 492.

_________________________________________________________________

5 For convenience, we refer to the original Green 5 factors and any ancillary 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. Freeman, 503 U.S. at 487; Green, 391 U.S. at 437-38. When a school system achieves unitary status, federal courts must withdraw supervision

over the local school board.

In this case, Judge Potter declared that CMS had achieved unitary

status in every respect. The Supreme Court has directed that an appellate 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, complied with the desegregation decree since it was entered; and (2) the

vestiges of de jure segregation in the school system have been eliminated 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 demonstrate 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 factors ("partial unitary status"). At that point, we apply, with respect to

each Green factor, the two Freeman inquiries along with one additional Freeman-mandated inquiry: "whether retention of judicial control [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 recognizes 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 practicability. 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 interrelatedness existing between the various Green factors.

B.

By way of introduction to our analysis of this case, we first address

a fundamental flaw in the district court's proceedings -- a flaw arising 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 "CharlotteMecklenburg Schools' Remedial Plan to Address the Remaining Vestiges 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 bifurcated 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 determined 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 vestiges 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 segregation 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 Freeman and the unitary status test, Judge Potter concluded that the Remedial 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

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 6 

the deadline for fact discovery and expert witness discovery had

expired." On the contrary, CMS fulfilled all of its duties under the federal 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 submitted 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.7 There is no

doubt that Judge Potter had wide discretion on this issue, but relevancy is a fluid concept under the Federal Rules of Evidence. See

Fed. R. Evid. 401 (defining relevant evidence as "having any tendency 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 evidence (including the deposition testimony of several experts) supporting 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 7 

initially was the extent of the Board's compliance with the prior desegregation orders, the Remedial Plan was nonetheless highly relevant for

even that purpose. The ease with which some of the proposed Plan remedies could be realized, e.g., merely distributing available funding to

address the stark disparity in basic resources such as instructional materials 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 compliance 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 system. See Dowell, 498 U.S. at 248 (noting specialized knowledge possessed by local school officials).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 evidence is telling. Nonetheless, we have carefully examined each conclusion 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 hallmark of official discrimination, "for under the former de jure regimes

racial exclusion was both the means and the end of a policy motivated

by disparagement of, or hostility towards, the disfavored race." Id.

Court-ordered desegregation was designed to meet the enemy headon; 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- 8 

mulgations and adjudications of a federal administrative agency, the formal 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 growing racial imbalances in student assignment do exist in CMS, because

the Board for decades has failed to comply with certain specific

decrees of the district court (particularly regarding the siting of new

schools), because these failures may have contributed to current racial

isolation, and because future compliance might practicably reduce

this racial isolation, we must vacate the district court's finding that

CMS has achieved unitary status with respect to student assignment.

a.

In the wake of the 1970 desegregation order, virtually all of the

schools in CMS operated in racial balance for a considerable time. By

1998-99 however, nearly thirty percent of the schools in the system

had become racially identifiable.9 Of the 126 schools included in the

CMS desegregation plan, twenty-three are identifiably black and thirteen 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 Mecklenburg 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 9 , 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 AfricanAmerican 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 population 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 population (ages 5 through 17) in the county has increased by approximately 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 approximately 108,600. Evidence before the district court revealed that, since

1970, the growing African-American population has migrated outward 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 downtown 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 construction 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 expansion farthest from Negro population centers in order to

maintain the separation of the races with a minimum departure 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 segregation, the existence of a pattern of school construction

and abandonment is thus a factor of great weight.

Swann, 402 U.S. at 21.

Subsequent to the Supreme Court's decision in Swann, Judge

McMillan specifically ordered that site selection for new schools

could not "be predicated on population trends alone." 379 F. Supp. at

1107. New schools were "to be built where they can readily serve

both races." Id. In the 1979 Martin decision,10 Judge McMillan

_________________________________________________________________

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

 30
devoted an entire section of his opinion to demonstrating that "construction, location and closing of school buildings continue to promote 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 twentyfive 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 selection for, at most, four of the twenty-seven new schools. See J.A.

15404-06. Meanwhile, as we discuss infra, there is substantial evidence that CMS has allowed many of its older school facilities in the

city -- schools attended in disproportionate numbers by AfricanAmerican 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 classrooms 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 siting policies could well evidence its lack of political will in the face

of pressure to abandon desegregative policies -- pressure from families who "are concerned about the racial composition of a prospective

school and [who] will make residential decisions accordingly." Freeman, 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 conclude, at least in the absence of further fact-finding, that CMS, in

choosing sites for new schools, has pursued "meaningful desegregation, rather than just the predictably short lived appearance of desegregation." 475 F. Supp. at 1332.

Rather, the Board's practice of siting new schools such that they

could not reasonably be expected to serve a racially balanced student

population and Judge McMillan's determination that this practice, in

the past, represented the school system's failure to eliminate the vestiges of segregation, together raise a strong inference that those vestiges remain today. When this inference is viewed in combination

with the burden borne by the Capacchione plaintiffs to show that current 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 desegregation 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 plaintiffs 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 decisions could practicably advance the process of desegregation. On

remand, it is thus incumbent on the Capacchione plaintiffs to demonstrate 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 district 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 conclusive, should at least be considered with the utmost gravity. Under

these circumstances, we have no difficulty in determining that the district court's conclusion that the Board's level of compliance was "full

and satisfactory" must be vacated.

b.

If the vestiges of official discrimination have indeed been eliminated 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 disappeared. We are therefore obliged to vacate the portion of the judgment

below relating to student assignment and remand for further proceedings.

On remand, the district court must first determine whether, since

Judge McMillan's decision in Martin, CMS has fulfilled its constitutional and court-imposed obligations with regard to site selection for

new schools. If CMS has failed to fulfill its obligations, the district

court must then determine whether this failure contributed to the present 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 imbalances, then the court must determine if proper site selection is a

practicable remedy for the lingering effects of the Board's past discriminatory 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 system.

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 several 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

Of course, some reasons will not be sufficient to deny AfricanAmerican students a remedy, should corrective action be deemed justified. For example, political pressure and perceived resistance to

change by certain groups in the community will not suffice. Additionally, 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 11 

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 students may choose to attend any school, magnet or otherwise. Where the

demand for a given school exceeds the available room, spots would be

assigned by lottery based on factors such as proximity, sibling attendance, and racial, ethnic, and economic diversity. The Plan also outlines

a formal mechanism to disseminate information regarding the enrollment

process, and it provides that the Board will work with the business community and local government to secure subsidies for disadvantaged families wishing to relocate to areas in which low-cost housing is scarce. See

J.A. 11053-59.

 35
court's observation that "transport[ing] white students in from satellite zones . . . is difficult given the rush hour traffic patterns").

Although what is "practicable" need not extend to all that is "possible," rectifying the grievous constitutional wrongs of the past surely

justifies reaching beyond the "difficult" or purely "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 causation." 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 equipment. . . . 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, equipment 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 physical plants and equipment and teacher quality." Swann, 66 F.R.D. at

484.

 36
Judge Potter acknowledged that no court "ha[d] [ ]ever granted unitary 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 findings to release the Capacchione plaintiffs from their burden of proving 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 "constitute 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 causally related to prior segregation." School Bd. of the City of Richmond

v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987). Following the imposition of judicial control, a party seeking to end the status quo bears the

burden of 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. Generally, in any subsequent proceeding involving new allegations of disparate 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 supervision).12

To be sure, the absence heretofore of any finding to the contrary

would have been an important consideration in determining whether

the Capacchione plaintiffs had proved CMS to have achieved unitary

status with respect to facilities. However, that Judge McMillan did not

intend his initial observations regarding facilities to be construed as

a finding of unitary status is obvious from his subsequent actions. In

_________________________________________________________________

12 However, if a district court retains jurisdiction over one or more 12 

Green factors, it may, upon a proper showing, reassert control over a factor 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 inference 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 putative 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 discrimination," embodied in an "adjudicat[ion] . . . through the proper judicial 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 nevertheless 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

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 At trial, Dr. Gardner confirmed that the disparities apparent

_________________________________________________________________

13 The district court found that the expert called on behalf of the Capac- 13 

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- 14 

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 facilities generally available to white and African-American children

attending CMS. J.A. 6196-99.

The anecdotal accounts of a number of witnesses effectively corroborated 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 documentation 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 district 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. Gardner'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 AfricanAmerican 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 virtually all white students, obviously, affluent, happy kids

having a great time.

On the other hand, my experience, for example, at Shamrock Gardens was shocking by comparison. I had never visited either one of these schools before, but to visit that

school which is in the inner city, the students are predominantly 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 threadbare. . . . 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 facilities exists in CMS, its cause is somewhat less apparent. The Capacchione 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 constrained 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 plaintiffs 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 development 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 facilities have been eliminated "root and branch" to the extent practicable.15

_________________________________________________________________

15 The district court made no findings as to whether practicable reme- 15 

dies exist with respect to facilities. In light of the court's refusal to consider 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 development on this point. We note, however, that the Remedial Plan specifically 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 facilities, 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 system'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 conclude that the Green factor of transportation is so inextricably intertwined with the Green factors of student assignment and facilities that

our vacatur on those issues also mandates vacatur on the factor of transportation.16

_________________________________________________________________

16 Pursuant to Freeman 16 , 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, concluding 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 (district 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 students 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 raceneutral basis. The evidence, however, demonstrates the close interrelationship of transportation with student assignment. In view of our

conclusion that CMS is not yet unitary with regard to student assignment, we think it is premature to relinquish control over transportation 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

_________________________________________________________________

we do so on a basis similar to our analysis of the Green factor of transportation. Judge Potter found that disparities in student achievement

existed but that the disparities (1) were not vestiges of de jure segregation and (2) could not be remedied by any practicable measure. Capacchione, 57 F. Supp. 2d at 280-81. An analysis of disparities in student

achievement may only be appropriate once the school system has

achieved unitary status in other respects. See Swann, 306 F. Supp. at

1309 ("Until unlawful segregation is eliminated, it is idle to speculate

whether some of this [achievement] gap can be charged to racial differences or to `socio-economic-cultural' lag."). At the very least, as with

transportation, student achievement in this case is inextricably intertwined 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 17 

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 vestiges of discrimination in faculty assignment, and whether the teachers assigned to predominantly black schools are of comparable quality

to those teaching in schools with large numbers of white students.18

See Swann, 311 F. Supp. at 268 (final desegregation order directing

that the racial composition of faculty assigned to each school reflect

that of the system at large, with the proviso that "the competence and

experience of teachers in formerly or recently black schools will not

be inferior to those in the formerly or recently white schools in the

system").

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 proportionality has emerged. In 1998-99, one-third of the 126 schools covered 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 unitary status.

18 The district court considered a particular school to be racially imbal- 18 

anced if its proportion of African-American students varied more than

fifteen percent from the district-wide average. In 1998-99, AfricanAmericans 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 AfricanAmerican; 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 discrimination. There is no evidence that this trend results from legal or

administrative compulsion within CMS or from perceptions about the

desirability or undesirability of teaching positions in schools that

serve students of predominantly one race. In short, we do not perceive

a causal relationship between past de jure segregation and the present

assignment of faculty members to schools within CMS.19

Nor do we think that this trend toward more racially imbalanced

faculties has resulted in disparities in the quality of teaching, as measured by the instructors' years of experience and post-graduate work.

Indeed, there is no significant difference in experience between faculties 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 experience.

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 19 

be a vestige of past official discrimination, the evidence before the district 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 constantly 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 country.

 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 imprudent 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 existing, 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 developing disparities in teacher assignments and any (perhaps superficial)

deficiency in the quality of instruction currently afforded AfricanAmerican children are unrelated to the de jure segregation once prevalent in the school system. We therefore affirm the lower court's finding that CMS has attained unitary status with respect to faculty.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, nondiscriminatory basis." Swann, 311 F. Supp. at 269. Inasmuch as the

Swann plaintiffs raised no challenge to the school system's compliance with the desegregation order in this regard, the court below

_________________________________________________________________

20 Although the Board's official position, as outlined in its Remedial 20 

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 judgment.

6. Extracurricular activities

According to the evidence at trial, African-American students in

CMS participate in athletics and hold class office at a rate proportionate to their numbers. These same students lag far behind, however,

when it comes to participating in co-curricular clubs and honors programs. 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, supporting 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. Participation in honors programs and co-curricular clubs is strictly voluntary, and there is no evidence that the lack of participation by AfricanAmerican 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 activities.

C.

Pursuant to the foregoing, we conclude that the district court

should be affirmed in its determination of unitary status with respect

to faculty, staff, extracurricular activities, and student discipline.

However, we also conclude that we must vacate and remand for further consideration in the areas of student assignment, facilities, transportation, 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 unambiguous 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 unitariness 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 injunctions and orders governing this case specifically authorize every significant 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 insulates it from constitutional attack for actions taken in compliance with

them.

A.

Magnet schools are designed to achieve desegregation by offering

some kind of special program or curriculum that will attract students,

regardless of race, from throughout a school district. See Missouri v.

Jenkins, 495 U.S. 33, 40 n.6 (1990); see also 20 U.S.C. § 7204 (1999)

(a magnet school is "a public elementary or secondary school . . . that

 51
offers a special curriculum capable of attracting substantial numbers

of students of different racial backgrounds"). Magnets "were first conceived and developed in large, urban school districts seeking a voluntary 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 "incentives 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 utilized 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 undermine the progress of desegregation." Davis v. East Baton Rouge Parish 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 Further, no

authority suggests that magnet programs with race-conscious assignment policies constitute an inappropriate vehicle for achieving desegregation under a court-sponsored plan. Indeed, it is difficult to see

how a magnet program devised, with court approval, to eliminate vestiges of segregated schools could do so if school authorities were not

permitted to control the racial composition of magnet school enrollment.

By the 1970s, CMS had established some magnet schools, which

it called "optional schools." These early magnet schools had raceconscious 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 raceconscious 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 "traditional" 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

_________________________________________________________________

21 The courts' caution essentially anticipates the position of the Swann 21 

plaintiffs in this case: that magnet schools are insufficiently desegregative at best, and that at worst they simply provide an "escape hatch" for

white students who would otherwise attend majority black schools, leaving those majority black schools even more segregated than they had

been before.

22 Judge Potter recognized that the optional schools "were similar to 22 

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 assigning students to the original magnet or optional schools. See 379 F.

Supp. at 1108. Specifically, under the expanded program, CMS allocates 40% of the seats in its magnet schools for black students and

60% for students of other races. This ratio reflects the student population of the school system, which is approximately 41.0% black,

52.2% white, 3.7% Asian, 2.5% Hispanic, and .5% American Indian.23

CMS generally assigns students to its magnet schools using two parallel 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 program, to enroll their children in desegregated optional schools. See J.A.

13641, 15616. In fact, the original six "open" and "traditional" schools

remain among CMS's more heavily subscribed magnets. See J.A. 10292-

340. Myers Park Traditional, for example, had 245 students on its waiting list for the 1998-99 school year. See J.A. 2159.

23 For simplicity, we often refer within to non-African-American stu- 23 

dents in the magnet schools as "white."

 54
refused to allow students of other races to fill those slots. Thus, race

may affect a student's chances of being assigned to a magnet school.

B.

The Capacchione plaintiffs contend that the expanded magnet

schools program violates the Equal Protection Clause. Recognizing,

if only implicitly, the difficulty in maintaining that actions taken pursuant 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 "voluntary 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. Second, they argue that the expanded program's race-conscious assignment 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 nonetheless applies and requires that the program be held unconstitutional.

We consider each contention in turn.

1.

The Capacchione plaintiffs note that implementation of the

expanded magnet schools program followed on the heels of demographic changes in the Charlotte-Mecklenburg area. As discussed in

connection with student assignment, supra, the CharlotteMecklenburg area has experienced in recent decades both strong population 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 discrimination" in expanding the number of magnet schools in 1992. Capacchione, 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 voluntary means"); J.A. 15503-05 (1993 letter from CMS to the U.S.

Department of Education discussing Judge McMillan's 1974 order

and identifying the creation of additional magnet schools as among

the "more effective ways . . . [to] meet[ ] the guidelines established

by the Court"); J.A. 13607, 15582 (Stolee Plan recommendation that

"[the Charlotte-Mecklenburg school desegregation plan should be

gradually changed from a mandatory plan with little voluntarism to

a voluntary plan with few mandatory facets").

Furthermore, the dichotomy the Capacchione plaintiffs suggest

between "counter[ing] demographic change," on the one hand, and

remedying past discrimination, on the other, oversimplifies both the

law of school desegregation, particularly the Supreme Court's decisions 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 demographic patterns would complicate the process of school desegregation. 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 desegregation. The Swann Court noted that the process of "local authorities

. . . meet[ing] their constitutional obligations" had "been rendered

more difficult by changes . . . in the structure and patterns of communities, the growth of student population, [and] movement of families."

402 U.S. at 14. The Court expressed concern that"segregated residential patterns . . . [would] lock the school system into the mold of separation of the races." Id. at 21. Thus, CMS simply followed the

 56
Supreme Court's guidance in Swann in regarding demographic

change as a problem inhibiting its progress toward unitary status.24

Moreover, Freeman simply did not hold, as the Capacchione plaintiffs 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 24 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 dismantling 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 system of pairing and satelliting); J.A. 15504 (1993 letter from CMS to the

U.S. Department of Education listing "demographic and residential patterns" 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 balanced 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 purport to do. In Green, even though the school board allowed every student "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 private 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 vestige of past discrimination. Indeed, the Court held not only that it was

permissible for the school board to take further action to desegregate,

but that the board was required to take further action in order to fulfill

its "affirmative duty" to desegregate. Green, 391 U.S. at 437-38.

Although Freeman recognized that, at a certain point in the process

of desegregation, a court may determine that present racial isolation

cannot be considered a by-product of the past regime of segregation,

the case does not require -- or even empower -- a school board

under a judicial desegregation order to make that determination on its

own. Rather, so long as CMS was under court order to desegregate,

it was required to treat racial isolation in its schools as a vestige of

segregation, and to take appropriate action to eliminate that vestige.

See Swann, 402 U.S. at 26.

2.

The Capacchione plaintiffs next contend that the expanded magnet

program's race-conscious assignment policy violated the desegregation 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 specifically 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 admissions (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 Assignment 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 attendance area, by race, are to be designated. The actual enrollment of the optional school may have to be guided by its

racial composition and by the number drawn from each

other school area, not by considerations of space and program only.

Id. at 1108 (emphasis added).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 25 

to expansion of the magnet schools plan, CMS continued to use a raceconscious 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 reopened 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 maintenance 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 constitutional 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") (emphasis added); 318 F. Supp. at 801 (ordering "[t]hat `freedom of choice'

or `freedom of transfer' may not be allowed by the Board if the cumulative 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 raceconscious assignment policy for magnet schools, the Board's adoption 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 experience with other desegregation tools.26 

_________________________________________________________________

26 Judge McMillan's orders and the Supreme Court's opinion in Swann 26 

did consistently signal concern with the imposition of racial proportions

 60
Judge Potter's conclusion to the contrary simply cannot be reconciled with the Supreme Court opinion in Swann and Judge McMillan's decrees. The race-conscious assignment policy constitutes a

necessary safeguard against the risk that unchecked transfers to magnet schools could increase the number of racially identifiable schools

in violation of the Board's continuing obligation under the desegregation orders. See 379 F. Supp. at 1105 ("Racially identifiable schools

may not be operated."). In that vein, the Capacchione plaintiffs' own

expert on school desegregation, Dr. David Armor, agreed that racial

quotas are permissible in a desegregation plan. J.A. 3627. Dr. Armor

testified that "race is an integral part of pairing, of satelliting, of magnet 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 assignment 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 problem 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 remedial 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 remedy the vestiges of segregation, is nowhere more apparent than in Chief

Justice Burger's statement in Swann. There the Chief Justice noted that

while in certain circumstances it might be inappropriate for a federal

court to require adherence to "a prescribed ratio of Negro to white students reflecting" the population of the "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 indispensable 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 McMillan not only authorized the Board to use fixed ratios in assigning students to schools but encouraged it to do so. Recognizing the

impracticability of adopting a court-ordered, system-wide racial balance to which all schools must adhere, Judge McMillan did observe

that "variations from that [71-29 ratio] may be unavoidable." 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 desegregation 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 students." 311 F. Supp. at 268. We cannot fathom how the Board could

set out to achieve "about the same proportion of black and white students" in each grade level in each of its over one hundred schools

without employing fixed racial ratios as the central components of its

student assignment plan. Neither, apparently, could Judge McMillan.

To achieve "about the same proportion," the Board necessarily had

to set fixed upper and lower limits on the proportion of white and

black students it would permit in each grade in each school. Only

with these fixed racial proportions as its lodestars could the Board

assign students to schools, and approve or deny individual requests to

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 assigning students to magnet schools. See 379 F. Supp. at 1104. Furthermore, 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 constitutional end" of desegregation.

3.

Finally, the Capacchione plaintiffs maintain that, even if CMS

administered the expanded magnet schools program pursuant to and

in conformity with the governing desegregation decrees, CMS violated the Constitution in doing so. Judge Potter rejected this argument,

as do we.

a.

In fact, court-ordered remedial action cannot be found violative of

the Constitution. Rather, as Judge Potter recognized, actions taken by

 63
CMS pursuant to the desegregation decrees are immune from constitutional 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 jurisdiction are expected to obey that decree until it is modified or reversed,

even if they have proper grounds to object to the order." GTE Sylvania, Inc. v. Consumers Union of the United States, 445 U.S. 375,

386 (1980) (emphasis added); see also W.R. Grace & Co. v. Local

Union 759, 461 U.S. 757, 766 (1983). Under this "established doctrine," 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 cannot 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 unnecessary. 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 modified 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 determination of "whether the Board made a sufficient showing of constitutional 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 admonished 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 penalized").

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 desegregation orders and injunctions in this case provides it with a complete

defense to the Capacchione plaintiffs' challenge to the expanded

magnet schools program.

b.

The Capacchione plaintiffs ignore the controlling authority set

forth above and instead rely on inapposite case law in attempting to

establish that Board actions taken pursuant to court-ordered desegregation decrees can be held unconstitutional.

Specifically, they rely on recent decisions finding voluntary, raceconscious 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. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999); see also Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998). In fact, 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 system under court order to desegregate is, from a legal standpoint, fundamental. Furthermore, as discussed supra, it is the judicial finding

of unitary status, not any particular action by the school board or condition 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 overnight shift in policy or outlook. Although CMS will not look much

different the day it becomes unitary than it will have looked the previous day, attainment of unitary status triggers significant legal consequences. In a non-unitary school system, all one-race or

predominantly one-race schools are presumed to be vestiges of segregation, 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 eliminated, 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 constitutionality of magnet school assignment policies in unitary school systems not under court order, are simply inapposite here.

Moreover, even if Tuttle and Eisenberg generally applied to governmental 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 precedent 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 principle. 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 various 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 prohibit what Swann so clearly permitted.

C.

The Supreme Court's decision in Swann is the law of the case; it

must be followed. But more than just the law of this case, for almost

thirty years Swann also has functioned as a blueprint for school

desegregation in school districts throughout this Nation. As long as

Swann is controlling law, and as long as the Board acts pursuant to

the Swann desegregation orders -- as it did in implementing the

expanded magnet schools program -- it cannot be held to have violated 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 application 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 unitary status and did not violate the constitutional rights of the Capacchione plaintiffs by consideration of race in its expanded magnet

schools program, there is no legal basis for the district court's injunction. 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 consider 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. Oregon State Med. Soc'y, 343 U.S. 326, 333 (1952). Even then, the district court should be reluctant to issue such an injunction because "the

ultimate objective" of federal court involvement in school desegregation 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.

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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 attorney'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 Capacchione 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 declaration would not constitute "an enforceable judgment" for the Capacchione 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 "prevailed 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 practicable and, as the Capacchione plaintiffs put it, in obtaining a "return to

local control." Brief of Appellees at 34. The Board, upon a declaration of unitariness, would actually have wider latitude to assign students 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 desegregation decree against a motion to modify or dissolve. See, e.g., Jenkins 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,

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and the school board's success in reaching that last stage is often

appropriately credited to the original plaintiffs who brought the case.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, providing the Capacchione plaintiffs with a list of 174 names which it ultimately 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 disclosure 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 oneweek 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 27 

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 district 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 witnesses 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 cannot 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 dismantling legally enforced racial segregation in many of our schools.

This task has given rise to one of the preeminent issues of constitutional 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 accomplished 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 historical record.

Race neutrality, of course, represents one of our constitutional ideals. 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 slavery's wake. But we must be ever mindful, as we strive for race neutrality, 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 special 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 Constitution to be "color-blind," id., 163 U.S. at 559, and in doing so provided 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 purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied

or assigned to white persons." Id. at 557. Thirteen years earlier, dissenting 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 simple 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 distinguish the "race consciousness" that created a segregated school system and the race-conscious efforts necessary to eliminate that system.

While most judges are not historians, we must be willing to acknowledge 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 favoritism, 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 unitary 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, pursuant 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 further 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 opportunities 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 systems, 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 outraged. 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 position as a progressive metropolitan area is fact and not facade, and the

time has come to return the school system to it. Therefore, I dissent

from a holding that would do otherwise.

I further would find unconstitutional a policy that would deny a

child an open seat in a magnet school because of the color of the

child's skin. For that reason I also dissent from a holding that would

reverse the district judge and permit such a practice.

I.

In 1896, the Supreme Court upheld a Louisiana statute "providing

for separate railway carriages for the white and colored races." Plessy

v. Ferguson, 163 U.S. 537, 540 (1896). The Plessy majority characterized 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 "separate 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 principled 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 Missouri'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 proximity 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 nondiscriminatory 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 majority of race in any particular school, might freely transfer to another

school of his choice." Swann v. Charlotte-Mecklenburg Bd. of Educ.,

243 F. Supp. 667, 668 (W.D.N.C. 1965). The district court approved

the plan, observing that more could be done "to increase mixing of

the races," but that the law imposed "no such duty upon . . . the

School Board." Id. at 670.

Concerned at the slow pace of school desegregation throughout the

nation, the Supreme Court held in 1968 that school boards had an "affirmative 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 CharlotteMecklenburg 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 district remained highly segregated.

The district court noted that over half of CMS's 24,000 black students "attend schools that are all black, or very nearly all black, and

most of the 24,000 have no white teachers." Id. at 1360. However, the

court found no violations "in the use of federal funds; the use of

mobile classrooms; quality of school buildings and facilities; athletics; 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 faculty desegregation effective in the fall of 1969, and a plan for effective 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 enervated 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 officials, however, continued to drag their feet, and the district court was

forced to appoint its own expert, Dr. John A. Finger, to craft an efficacious 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 burdens 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 pending 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 district court concluded the Finger plan to be the best of the five, encompassing "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 starting 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 community 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 predominantly 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 desegregation," but within reasonable time and distance restrictions. Id. at 30.

Shortly after the Supreme Court issued its landmark Swann opinion, CMS asked the district court to abandon the Finger plan and permit 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. CharlotteMecklenburg Bd. of Educ., 328 F. Supp. 1346 (W.D.N.C. 1971). Citing 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. CharlotteMecklenburg 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 protection of laws is here to stay." Id. at 1238.

In 1974 CMS adopted and the district court approved new guidelines 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 desegregation 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 unitary 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 desegregation plan focused mainly on the use of magnet schools. In filling magnet schools, CMS had instituted a black and a non-black lottery to

achieve racial balance. If a sufficient number of blacks or whites did

not apply and fill the seats allotted to their respective races, then CMS

would actively recruit children of the desired race despite lengthy

waiting lists made up of children of the other race. If the recruitment

drive failed, CMS usually left the available slots vacant. 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 was also permitted to intervene in the litigation.

After a two-month bench trial, the district court determined that

CMS had achieved unitary status, that the race-based admissions policy 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 student 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 complete stay pending appeal. On November 15, 1999, the district court

denied the motions. CMS and the Swann plaintiffs, pursuant to Federal Rule of Appellate Procedure 8(a)(2), moved this court for a stay.

On December 30, 1999, we stayed the district court's injunction pending further order of this court.

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 1 

"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 evidence 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 evidence, 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 elimination of state-mandated or deliberately maintained dual school systems," Milliken v. Bradley, 418 U.S. 717, 737 (1974) (Milliken I), a

school system must be declared unitary when it no longer discriminates 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 systems was intended as a temporary measure to remedy past discrimination."). Hence, the goals of a desegregation order not only encompass

a remedy for the violation, but also prompt restoration of local control. 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. . . .

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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 autonomy has long been thought essential both to the maintenance of community 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 discretion, 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 imbalanced, the district court adopted a plus/minus fifteen percent variance

from the district-wide ratio of black to white students. See Capacchione, 57 F. Supp. 2d at 246. However, the district court emphasized

"that there is no level of compliance with the standard that is determinative." 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 litigation was a "`plus 15%' from the district-wide average," id. at 245, the

addition of a minus fifteen percent is reasonable. Moreover, the

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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. Weinberger, 391 F. Supp. 269, 271 (D.D.C. 1975) (using a plus/minus

twenty percent variance); see generally, David J. Armor, Forced Justice: 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 In sum, the

plus/minus fifteen percent variance is clearly within accepted standards, 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 student 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 omitted). 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 2 

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 comparing the racial composition of each school to the districtwide composition," 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. XXXIII16,172. 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 system." 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. XXXIII16,172. 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 suggest that in recent years racial imbalance has increased in some

schools. Aware of this trend, the district court made a number of findings on growth and demographic change in the CharlotteMecklenburg 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

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- 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 percent 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 residents 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 supported by the report of the plaintiff-intervenors' expert in demographics, 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, making 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 adoption 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 tantamount 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 perpetuity. 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 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 opinion speaks in general terms. The Supreme Court observed that in the

United States "it is inevitable that the demographic makeup of school

districts, based as they are on political subdivisions such as counties

and municipalities, may undergo rapid change." Id. at 495. Mobility,

the Court noted, "is a distinct characteristic of our society." Id. at 494.

Freeman cannot be distinguished into nothingness, nor does the standard of review permit this court to reweigh the evidence of the

changes in CMS.

Simply put, the district court's conclusion that the current imbalance is unrelated to the original constitutional violation is not clearly

erroneous. Evidence presented at trial indicated that "[o]f the 16 former black schools that are still open, 13 are currently balanced and

_________________________________________________________________

3 For example, the population of DeKalb County grew from 70,000 in 3 

1950 to 450,000 in 1985, and the percentage of black students in the district 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 Sixteen of the

seventeen were balanced for periods ranging from nineteen to twentysix 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 demographic 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 coupled with some imbalance in the wake of

_________________________________________________________________

4 Dr. Armor did not include the predominantly white schools in this 4 

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 operating 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 outskirts 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 virtually 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 5 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.

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Volume 3 of 3

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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 advancing 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 balance 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 attendance 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 disadvantaged'" 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 admonition about the use of racial quotas and that, unlike Pasadena City,

CMS had not achieved racially neutral attendance patterns. See Martin, 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 implemented "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: construction 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 transfers 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 Freeman 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 unconstitutional 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 common 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 predecessor could have"). I will examine the district court's Martin findings in turn.

a. School Siting

The district court found that CMS had not shirked its duties under

the law with regard to school sitings. See Capacchione, 57 F. Supp.

2d at 251-53. The record reveals that CMS has, to the extent practicable, continually endeavored to site schools in order to foster integration, 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. XXXII15,686. The impetus behind the resolution was growth in the periphery 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 possible to implement the rule and still "meet the 60-minute bus ride

limit." J.A. XXII-10,869. Nevertheless, extensive evidence was presented showing that CMS never sited schools in order to foster segregation 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 placement testified that in siting schools CMS "looked at both AfricanAmerican 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 population 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 practicable, 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 perpetuate 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 practicability 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.

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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 CharlotteMecklenburg of Swann, and much changed from that of Martin. In

light of the growth in the county and a plethora of evidence demonstrating that the board used its best efforts to site schools in order to

foster integration, the district court did not commit error when it concluded 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, traffic 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 patterns 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 student 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 original). This finding is not clearly erroneous, nor can I discern the need

for more findings on this issue in light of post-Martin changes.

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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 erroneous.

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 teachers." 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 disagree.

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

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causally related to prior segregation, and the burden of proving otherwise 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 PlaintiffIntervenors, 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 burden 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

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 seventythree schools--every identifiably black school in CMS and a sampling of balanced schools and predominantly white schools. Dr. Gardner 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 (suggests 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 6 

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 established 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 renovated 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 predominately black inner city are older while facilities in the predominately white suburbs are newer, the inference is that

differences in building standards tend to affect black students disproportionately. This does not amount to racial discrimination. 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 references 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 balanced 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.

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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 status 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 factual finding would have compelled a ruling in their favor. In fact, the

district court acknowledged as much, stating "that the PlaintiffIntervenors have proven, to the extent possible, the absence of intent

and causation." Capacchione, 57 F. Supp. 2d at 267 n.38.7

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 7 

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 establishing the requisite discriminatory intent and causation."). The court

then ruled in the alternative, as indicated by the footnote and the findings, that the plaintiff-intervenors proved that any disparities were the

result of factors unrelated to state action.

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trial, would have yielded the same conclusion under a proper assignment of the burden of proof, any error with regard to the burden of

proof is harmless. See Washington State Dep't of Transp. v. Washington Natural Gas Co., 59 F.3d 793, 801 (9th Cir. 1995) (finding district 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) (concluding 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 "anecdotal accounts of a number of witnesses," ante at 40, I simply cannot 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

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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 district court's interpretation of Martin, along with the finding that the

present state of busing "may be about the best CMS can do," Capacchione, 57 F. Supp. 2d at 253, does not 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 evidence, 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. XXIV11,634. 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 AfricanAmericans toward student government and away from honors programs. In sum, I agree with the majority that the district court's conclusion 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

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clearly erroneous because students in imbalanced African-American

schools are more likely to have inexperienced teachers. This "experience 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." Capacchione, 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 disparity, and cannot undermine the district court's conclusion on this

factor. The district court also pointed to evidence indicating that experience 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 teachers." 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 Capacchione, 57 F. Supp. 2d at 271. As it was with teacher experience, testimony 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 erroneous.

2. Student Achievement

The district court found that the existence of an achievement gap

between black and white students was not a vestige of the dual system

 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 authority. Most courts of appeals confronting this issue, including this court,

have declined to consider the achievement gap as a vestige of discrimination 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 evidence indicating that there is no correlation between AfricanAmerican 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 seventyfive percent black or greater. See J.A. at 16,214. Similarly, AfricanAmerican 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 startling differences between black and white children in CMS.

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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 parents. 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 factors 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 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 discrimination.

_________________________________________________________________

8 Despite evidence that the achievement gap results from factors out- 8 

side CMS's control, the district court found that CMS has undertaken

sundry measures to eliminate the gap. For example, CMS adopted financial 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 curriculum, provided tutors and other forms of staff support to accelerate

student preparedness, and adopted pre-kindergarten programs to accelerate preparedness for the youngest of students. See Capacchione, 57 F.

Supp. 2d at 273-275.

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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." Capacchione, 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 punishment 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 AfricanAmerican students differently in disciplinary matters. Hence, the district 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 unconnected 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 "always stuck to what the rules were." J.A. V-2234. Former Superintendent 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 evidence 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] definitely 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 millions of dollars, and that would be money taken away from the

instructional program." J.A. VI-2706. Second, Dr. Murphy feared that

if CMS was declared unitary "we would not be eligible for federal

funding for our magnet schools." J.A. VI-2706. 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 regardless of race, she nonetheless expressed a preference for court supervision. 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 examination, 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 exemplify 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 restoration. 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 Freeman, 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 discrimination 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 consider a remedial plan conceived, drafted, and offered by one of the

parties during the lawsuit as an obvious defense to it. The plain meaning of the relevant language is that in some desegregation cases simple compliance with the court's orders is not enough for meaningful

desegregation to take place. See Swann, 402 U.S. at 25 (stating that

"a district court's remedial decree is to be judged by its effectiveness"). For example, a decree entered in the 1960s or 1970s could

have underestimated the extent of the remedy required, or changes in

the school district could have rendered the decree obsolete. In either

case, a district court must look beyond mere compliance with the

original decree and ask whether the vestiges of the dual system have

been eliminated to the extent practicable. In the present case, the district court undertook such an inquiry. Not only did the district court

address compliance, but it also looked beyond the original decree and

examined how the extensive changes in the Charlotte-Mecklenburg

area have affected the dismantling of the former dual system. Hence,

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 Federal Rule of Evidence 402 when it refused to consider the remedial

plan. Rule 402, of course, declares that "[a]ll relevant evidence is

admissible." 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 evidence. 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 discussion is based on Dr. Gordon Foster's report. All of the aforementioned reports were admitted into evidence and the authors of the

reports testified at the hearing and were subject to cross-examination.

Hence, much of the remedial plan was cumulative, providing the district 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 substantial rights of the parties." Listing myriad deficiencies, objectives,

and strategies, the thirty-one page remedial plan is often short on specifics. 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 exclusion of the remedial plan in no way renders the judgment below suspect, 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

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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 elementary schools. Magnet schools, many of which were located in predominately black neighborhoods, offered a specialized curriculum or

innovative instructional style not found in the other schools in the system.

Former Superintendent Murphy oversaw implementation of the

Stolee plan and testified that the magnet program was adopted

because CMS "wanted to attract more white youngsters into the inner

city schools" in order to meet CMS's racial-balance goals. J.A. VI2709. 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 movement of students within a school district in a pattern that aids desegregation 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 dramatic 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 "RECOMMENDATION #1," out of forty-four, read:

THE SCHOOL BOARD, THROUGH LEGAL COUNSEL,

SHOULD APPROACH THE FEDERAL COURT TO

SECURE APPROVAL TO CHANGE THE COURTORDERED 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 desegregation 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 operates as follows:

At the start of the process, CMS first fills seats with preferences based on whether the applicant lives in close proximity to the school and whether the applicant has any siblings

in the school. CMS then fills the remaining seats by selecting 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). Seeking 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

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started not as a petition for unitary status but as a discrimination suit

arising out of Christina Capacchione's denial of admission to a magnet school based on her race." Capacchione, 57 F. Supp. 2d at 284.

The district court recognized that school officials acting pursuant to

a desegregation order are immune from liability for actions taken consistent 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) (officials 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). However, 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 violated 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 consistent with the desegregation orders and opinions issued by the district 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 desegregation orders authorized the use of "optional schools" and a racial balance goal for filling them. Like the district court, I conclude that the

magnet schools plan, as implemented, was not authorized by the prior

court orders and that, for the reasons stated hereafter, the CMS officials are not entitled to immunity.

 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 variations from the norm may be unavoidable." Id. at 267-68 (internal

quotation marks omitted). The district court also gave CMS wide discretion 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 concurrently warned that this "maximum discretion . . . to choose methods that will accomplish the required result" was not limitless,

directing the board to obtain leave of court "before making any material 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 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" and that had the district court "require[d], as a matter of substantive constitutional right, any particular

degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse." Swann, 402 U.S. at 24.

The goal was upheld, however, because the "use made of mathematical 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' traditional programs "offer[ed] an enriched and highly structured education," J.A. XXXII-15,732, whereas the open programs offered a

"student-centered" environment that "encouraged [students] to take

responsibility for their behavior and for their own learning." J.A.

XXXII-15,733. The optional schools approved by the 1974 order

 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 methods and created specialized curriculum schools featuring the Montessori method; science, mathematics, and technology; foreign language

immersion; learning immersion programs for young children;

enhanced education for academically gifted students; and communication studies programs. See J.A. XXXII-15730-41. However, both

the optional schools and the magnet schools were designed to achieve

the same end result--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 "actual enrollment of the optional school may have to be guided by its

racial composition and by the number drawn from each other school

area, not by 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 district court's 1970 order.9

_________________________________________________________________

9 I respectfully disagree with the assertion that the Supreme Court's 9 

disapproval of inflexible racial quotas as a desegregation tool is solely

a limitation on a district court's remedial power, and that school authorities 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 desegregation 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 inexplicably chose not to return to the district court to obtain approval of the

magnet schools program and its strict admissions process. Consequently, the district court was never given the opportunity to rule

upon its permissibility as a desegregation tool prior to its implementation 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. Bradley, 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 implemented, 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 eliminate existing dual school systems," the Court reiterated Swann's distinction 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 forbids 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 segregation 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 implications 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 immunity argument. At most, the portions of the district court order authorizing "optional schools" could perhaps be read in isolation as

authorizing CMS's use of "magnet schools" in more diverse, specialized areas, although I would still have difficulty excusing CMS's failure 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 number 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 contrary, 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 example, an African-American child in a majority white school from transferring 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 magnet admissions policy, prevents a child from enrolling in the public

school of his choice, the majority concludes that the magnet admissions policy is permissible. By definition, however, CMS's specialized magnet programs are not tantamount to conventional public

schools. While a child denied a transfer from one conventional school

to another still receives the same general education, a child denied

admission to a specialized magnet program does not receive a similar

 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

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 inappropriate 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 students educational opportunities solely because of their race. See

Brown I, 347 U.S. at 493 (holding that an educational opportunity

provided by the state "must be made available to all on equal terms");

see also Bakke, 438 U.S. at 305 (Powell, J.) ("When a classification

denies an individual opportunities or benefits enjoyed by others solely

because of his race or ethnic background, it must be regarded as suspect.").11 In my view, an admissions policy that would deny an avail-

_________________________________________________________________

10 I recognize that parents might perceive that one "fungible" conven- 10 

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 significance. 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 11 

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 desegregation decisions. It is improper to attempt to establish equal protection 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 immunity.

B. Equal Protection

Having determined that the CMS officials are not entitled to immunity 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 people 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 classifications, imposed by whatever federal, state, or local governmental actor,

must be analyzed by a reviewing court under strict scrutiny," id.12

_________________________________________________________________

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 students being denied admission even though the school was several hundred students below capacity).

12 The Supreme Court's application of strict scrutiny has indeed been 12 

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 admissions 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 Congress 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 preferences 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 system.

The point of carefully examining the interest asserted by the government 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 governmental decisionmaking. . . . Strict scrutiny does not "trea[t] dissimilar race-based decisions as though they were equally

objectionable"; to the contrary, it evaluates carefully all governmental race-based decisions in order to decide which are constitutionally 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.

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was adopted to remedy the effects of the dual school system previously 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 compelling 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 percentage of minority group members in the relevant population;

(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 magnet 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 specialized 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 preferences 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-

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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 policy 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. However, 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. VI2687.

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 virtually ignored." Capacchione, 57 F. Supp. 2d at 289. The policy is

indeed "restrictive," but it also borders on obduracy. The policy contained 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.

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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.13

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 dollar." Capacchione, 57 F. Supp. 2d at 290. CMS argues that the nominal 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 deprivations of certain "absolute" rights that are not shown to have

caused actual injury through the award of a nominal sum of

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13 CMS also presented diversity as an alternative compelling state inter- 13 

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.

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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 malicious deprivations of rights.

Carey v. Piphus, 435 U.S. 247, 266 (1978) (nominal damages available for denial of procedural due process rights) (footnote omitted);

see also Price v. City of Charlotte, 93 F.3d 1241, 1246 (4th Cir. 1996)

(stating that "the rationale for the award of nominal damages being

that federal courts should provide some marginal vindication for a

constitutional violation"). In the present case there was indeed a constitutional violation. CMS ran afoul of the Equal Protection Clause

when it adopted a 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 Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 666

(1993). Though the two open "black seats" at the Olde Providence

magnet school were eventually awarded to white children, the fact

remains that the official magnet admissions policy prohibited children

like 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 children languished on a waiting list. The nominal award in this case recognizes the importance of equal protection under the law and provides

some measure of vindication. As for CMS's worry about collateral

estoppel, liability has already been established, and vacating the nominal damages would not change this. In sum, I would hold that the district court did not err in awarding nominal damages.

IV. Injunctive Relief

After recounting the unitary status determination and the constitutional violation in the magnet admissions policy, the district court

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enjoined "CMS from any further use of race-based lotteries, preferences, 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. Massachusetts, 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 injunction may not be used for "punishment or reparations for . . . past violations." 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 magnet schools or other schools in the system. CMS represented to the

district court both during and after trial that it had no intention of continuing the magnet plan. In moving for a stay of the injunction, CMS

did not ask that the injunction be stayed as to the magnet schools, and

was prepared to comply immediately with the court's order. CMS

requested a stay as to the non-magnet schools because over 50,000

students were likely to be reassigned in a short period of time. Moreover, there was no evidence presented at trial about what CMS proposed to do as a unitary school system. A post-unitary status student

assignment plan was never given to the district court, and the evi-

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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 discretion 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 twentysix. 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 disclosed witnesses, and the court held CMS accountable for the fees and

expenses of these depositions.

We have developed a four-part test for a district court to use when

determining what sanctions to impose under Federal Rule of Civil

Procedure 37. Specifically, "[t]he court must determine (1) whether

the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence 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 witnesses 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

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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 pretrial order was clearly for the court's convenience and could not reasonably 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 certainly 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 interrogatories 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. Permitting 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 conduct.

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 damages, and (2) young Capacchione would not have been admitted to the

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magnet program even if race was not a factor insofar as her lottery

number was so high.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 reasonable attorney's fee as part of the costs." To be considered a prevailing

party, a party must "succeed on any significant issue in litigation

which achieves some of the benefit the parties sought in bringing

suit." Farrar v. Hobby, 506 U.S. 103, 109 (1992) (internal quotation

marks omitted). 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 damages 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 behavior 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 damages constitutes relief on the merits and affects CMS's behavior

toward Capacchione if only by forcing CMS to pay. Hence, Capacchione 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 prevailing party status.

I would also affirm the attorney fee award to the plaintiffintervenors to the extent that it compensates them for their litigation

_________________________________________________________________

14 CMS concedes that if unitary status is upheld, Grant is entitled to 14 

attorney fees. However, CMS takes a much different view of Capacchione's actions insofar as Capacchione originally attacked only the magnet program and did not have sights set on unitary status. Nonetheless,

the record is clear that Capacchione actively participated with Grant in

the unitary status litigation.

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of the unitary status issue. Monitoring of a school desegregation

decree is crucial to the dismantling of the dual system. See Jenkins v.

Missouri, 967 F.2d 1248, 1251 (8th Cir. 1992). Accordingly, efforts

"to insure full compliance and to ensure that the plan is indeed working 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 process, see Capacchione, 57 F. Supp. 2d. at 292-293 (cataloging sanctions and threats of sanctions against CMS), the plaintiff-intervenors

have in my view prevailed on the issue of unitary status. In this regard

the plaintiff-intervenors have acted as "private attorney[s] general,"

Independent Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 758-

60 (1989) (internal quotation marks omitted) (alteration in original),

and the exceptional circumstances of this case indicate that a fee is

proper. To avoid a declaration of unitary status, CMS has clung to the

desegregation decree for improper reasons, see supra part II.H, and

the equitable remedy ordered in 1969 "would be far from complete,

and justice would not be attained, if reasonable counsel fees were not

awarded" to the plaintiff-intervenors. Bell v. School Bd. of Powhatan

County, 321 F.2d 494, 500 (4th Cir. 1963) (awarding attorney fees in

school desegregation case based on exceptional circumstances); see

also Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473, 481 (4th Cir.

1950). A contrary result would hamper the involvement of concerned

citizens in school desegregation litigation and permit school boards

that are inclined to remain under court order to eschew a unitary sta-

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

attorney fees.

VII.

For the foregoing reasons, I would affirm the district court's grant

of unitary status in toto. Additionally, I would affirm the finding of

a constitutional violation in the magnet school admissions policy, the

award of nominal damages, and the attorney fees award. Lastly, I concur with the majority that the district court's injunction was unwarranted and that the district court's discovery sanctions were not an

abuse of discretion.

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