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Everett v. Pitt Cnty. Bd. of Educ.

United States Court of Appeals, Fourth Circuit

June 3, 2015

PITT COUNTY BOARD OF EDUCATION, public body corporate, Defendant - Appellee and JUVENILE FEMALE 1; THE GREENVILLE PARENTS ASSOCIATION, Intervenors/Plaintiffs,

Argued December 9, 2014

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Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. (6:69-cv-00702-H). Malcolm J. Howard, Senior District Judge.


Mark Dorosin, UNIVERSITY OF NORTH CAROLINA CENTER FOR CIVIL RIGHTS, Chapel Hill, North Carolina, for Appellants.

Kenneth Alexander Soo, THARRINGTON SMITH LLP, Raleigh, North Carolina, for Appellee.


Ezra D. Rosenberg, Princeton, New Jersey, Lauren Kurtz, New York, New York, C.B. Buente, DECHERT LLP, Washington, D.C.; Brenda Shum, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., for Appellants.

Deborah R. Stagner, THARRINGTON SMITH LLP, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Judge Diaz wrote the majority opinion, in which Judge Niemeyer joined. Judge Wynn wrote a dissenting opinion.


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DIAZ, Circuit Judge

This appeal arises from two desegregation orders entered in 1970 by the United States District Court for the Eastern District of North Carolina. The district court determined then that the Greenville City and Pitt County Boards of Education were operating racially segregated schools and directed them to submit desegregation plans that would establish a nonracial, unitary school district. Following the school boards' initial compliance with the orders, the cases were administratively closed and lay dormant for over thirty-five years.

In 2008, a dispute arose between the Pitt County Board of Education (the " Board" )[1] and the Greenville Parents Association (the " Association" ) concerning the Board's explicit consideration of race when devising student assignment plans. The parties ultimately settled, and the district court entered a consent order approving the settlement and directing the parties to work together toward attaining unitary status for the school district.

Three years later, a group of parents and the Pitt County Coalition for Educating Black Children (" Plaintiffs" ) moved to enjoin the implementation of the Board's 2011-12 student assignment plan, arguing that it failed to move the school district toward unitary status. The district court denied relief, but we vacated that ruling, holding that the district court erred when it failed to place the burden on the Board to show that the 2011-12 student assignment plan moved the school district toward unitary status. On remand, the Board filed a motion requesting that the district court declare the school district unitary. After a five-day bench trial, the district court granted the Board's motion and dismissed Plaintiffs' request for an injunction as moot.

We conclude that the district court acted within its discretion in choosing to address the Board's motion for declaration of unitary status before ruling on Plaintiffs' motion for injunctive relief. And because the court did not clearly err in determining that the school district is unitary, we affirm.

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In January 1965, a group of plaintiffs representing black students filed suit against the Pitt County Board of Education, alleging that the board unlawfully operated and maintained racially segregated schools. Teel v. Pitt County Board of Education, No. 6:65-CV-569 (E.D.N.C. filed Jan. 4, 1965). The district court entered an injunction restraining the Board from refusing admission, assignment, or transfer of any student on the basis of race. The Board attempted to comply with the court order by adopting a freedom-of-choice plan, which allowed students to choose the school they wished to attend. The plan, however, resulted in only a small percentage of black students attending predominantly white schools. As a result, the district court rejected it, ruling that it failed to advance the Board's constitutional duty to establish a unitary school district. It took several more years for the Board to devise a desegregation plan that met with the district court's approval.

A separate but substantially similar action came before the district court in November 1969. Like Teel, Edwards v. Greenville City Board of Education, No. 6:69-CV-702 (E.D.N.C. filed Nov. 12 1969), involved representatives of black students asking the district court to enjoin the Greenville City school board's continued operation of a racially segregated school system. Again, the district court granted the injunction. The court rejected the board's first proposed desegregation plan and ordered it to submit a plan that achieved racial integration in not only student assignment, but also faculty and staff assignment, extracurricular activities, and transportation. Shortly thereafter, the board submitted an amended plan that met with both the plaintiffs' and the court's approval.

The district court continued to monitor the progress of the desegregation plans until January 1972, when it issued orders determining that the cases had been decided on the merits and removed them from the pending docket, subject to being reopened as circumstances warranted. The cases remained administratively closed for thirty-five years. In the meantime, the two school districts merged in 1986 and their separate boards of education were replaced by a single, consolidated Board.

The consolidated Board sought to reopen Teel and Edwards in 2008. The impetus was the Board's adoption, three years earlier, of a new student assignment plan for the 2006-07 academic year.[2] Under the then-existing attendance area policy, the assignment plan considered students' race, with the goal of achieving a 70/30[3] racial balance in each school. To achieve this balance, the new plan relied on satellite attendance areas[4] and busing.

Objecting to the explicit use of race in student assignment, the Association filed a discrimination complaint with the United States Department of Education Office for Civil Rights (the " OCR" ). While the complaint was pending, the Board revised its

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attendance area policy, adding student achievement and socioeconomic status as factors that, along with race, the Board would consider when establishing student attendance areas.

Ultimately, the Board and the OCR settled the complaint. The settlement required the school district to seek a ruling from the district court as to whether the desegregation orders in Teel and Edwards authorized the Board to consider race in its student assignment plan. In accordance with the settlement, the Board asked the district court to approve its 2006-07 student assignment plan as well as its revised attendance area policy.

In response, the district court reopened and consolidated Teel and Edwards and re-captioned the new action under its current name. In addition, the court allowed the Association to intervene. The Association then asked the district court to reject both the 2006-07 student assignment plan and the revised attendance area policy, and instead declare the school district unitary. Plaintiffs joined the Board in opposing the motion.

After court-ordered mediation, the parties reached a settlement. The Board agreed to involve Plaintiffs and the Association in developing the next student assignment plan. In exchange, the Association withdrew its motion for a declaration of unitary status, and consented to the Board's motion for approval of the 2006-07 student assignment plan and the revised attendance area policy. The parties also " pledge[d] to work together to achieve" unitary status for the school district. J.A. 195.

The district court approved the settlement and entered a consent order in November 2009. The court's order directed " the parties to work toward attaining unitary status so that the court may relinquish jurisdiction over this case and restore to the School Board full responsibility for the operation of its schools." J.A. 204.


In 2010, the Board began developing a student assignment plan for the 2011-12 school year to accommodate the opening of a new elementary school and the closing of an existing one. The Board worked with the Operations Research and Education Laboratory of North Carolina State University (" OREd" )[5] to draw up proposed attendance area maps. In designing the maps, the Board and OREd considered: (1) students' proximity to their assigned schools; (2) building capacity; (3) academic proficiency; and (4) impact area[6]. Notably, academic proficiency was the sole diversity input factor the Board used when designing the maps, even though the Board's attendance area policy permitted it to consider student race.

The Board invited the Association and Plaintiffs to attend two workshop retreats to solicit their input regarding the proposed maps. During the first retreat, the Board presented two proposals. The first proposed map considered only student proximity and school capacity in developing attendance boundaries (" Scenario 1" ). This map resulted in an increase in racially identifiable schools, with six impacted schools falling short of the Board's target

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student proficiency index. The second proposed map factored in student proficiency along with proximity and school capacity (" Scenario 2" ). It resulted in increased student diversity, and a greater balance of student proficiency levels across the impacted schools. Scenario 2, unlike Scenario 1, required the use of satellite attendance areas and busing.

After receiving input from the parties, the Board directed OREd to generate a new map. This map (" Scenario 3" ) aimed to limit satellite attendance areas, but still considered student proficiency in an attempt to increase diversity. The proposed map was then further modified based on community input. The final Scenario 3 map resulted in schools that were more racially diverse than in Scenario 1, but less diverse than Scenario 2. It also required fewer satellite attendance areas than Scenario 2. Over Plaintiffs' objections, the Board adopted the Scenario 3 map as its 2011-12 student assignment plan.

Plaintiffs moved to enjoin the implementation of the 2011 12 plan, arguing that it created racially identifiable schools and failed to move the district toward unitary status. The district court denied the motion, ruling that Plaintiffs " ha[d] not demonstrated a likelihood of success on the merits of their claim so as to justify the extraordinary relief they request[ed]." Everett v. Juvenile Female 1, No. 6:69-CV-702-H, 2011 WL 3606539, at *2 (E.D.N.C. Aug. 16, 2011).

On appeal, we vacated the district court's ruling and remanded. We found that:

Given that there is no dispute that the school district has not attained unitary status, the evidentiary burden should have been on the School Board to prove that the 2011-12 Assignment Plan is consistent with the controlling desegregation orders and fulfills the School Board's affirmative duty to eliminate the vestiges of discrimination and move toward unitary status.

Everett v. Pitt Cnty. Bd. of Educ., 678 F.3d 281, 290 (4th Cir. 2012).

When the case returned to the district court, the Board moved for a declaration of unitary status. After a five-day bench trial, the district court ruled for the Board. It found that, even before the 1986 merger, both Pitt County and Greenville City schools were unitary with respect to student assignment. The court also found that the consolidated school district was now unitary in terms of faculty and staff assignment, facilities, transportation, and extracurricular activities.

The Board, said the district court, had proven that " the vestiges of state-mandated discrimination practiced over forty years ago have been eliminated to the extent practicable and that the School Board, as well as its predecessor boards, has complied in good faith with this court's desegregation orders." Everett v. Pitt Cnty Bd. of Educ., No. 6:69-CV-702-H, at *48 (E.D.N.C. Sept. 25, 2013). Because the school district was unitary in all respects, the court denied Plaintiffs' motion for injunctive relief as moot. This appeal followed.



In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), the Supreme Court held that laws mandating racial segregation in public schools violate the Equal Protection Clause of the Fourteenth Amendment. A year later, the Court ordered those school boards operating racially segregated school systems to " effectuate a transition to a racially nondiscriminatory school system."

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Brown v. Bd. of Educ., 349 U.S. 294, 301, 75 S.Ct. 753, 99 L.Ed. 1083, 71 Ohio Law Abs. 584 (1955) (Brown II). The federal district courts were tasked with undertaking " such proceedings and enter[ing] such orders and decrees" as necessary to desegregate school districts with " all deliberate speed." Id.

Thirteen years later, the Court clarified that the " transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about" by Brown II. Green v. Cnty. Sch. Bd. of New Kent Cnty., 391 U.S. 430, 436, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). School boards operating " dual systems," whereby black children attend black schools and white children attend white schools, retained " the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Id. at 437-38.

Generally, courts " have used the terms 'dual' to denote a school system which has engaged in intentional segregation of students by race, and 'unitary' to describe a school system which has been brought into compliance with the command of the Constitution." Bd. of Educ. of Okla. City Pub. Schs. v. Dowell, 498 U.S. 237, 246, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). However, the Supreme Court has declined to give the term " unitary" a " fixed meaning or content." Freeman v. Pitts, 503 U.S. 467, 487, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). Rather, the Court has left it to district courts overseeing the desegregation process to determine when a school district " no longer discriminates between children on the basis of race." Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 318 (4th Cir. 2001).

In making this determination, a district court considers " whether the Board [has] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination [have] been eliminated to the extent practicable." Dowell, 498 U.S. at 249-50. Only when it is satisfied that a school district is operating a unitary system may the court dissolve a desegregation order, thereby relinquishing its supervisory authority over the school district. See id. at 246 (" If [a desegregation] decree is to be terminated or dissolved, respondents as well as the school board are entitled to a like statement from the court." ); Riddick by Riddick v. Sch. Bd. of Norfolk, 784 F.2d 521, 530 (4th Cir. 1986) (" [The district court] is required to retain jurisdiction until it determines that the school system has become unitary." ).

The district court's " end purpose must be to remedy the violation and, in addition, to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution." Freeman, 503 U.S. at 489. Indeed, " [r]eturning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system." Id. at 490.


With these principles in mind, we consider the merits of Plaintiffs' legal challenges. We first address Plaintiffs' claim that the Board was estopped from seeking a retroactive declaration of unitary status given its " numerous judicial admissions . . . that it had not attained unitary status at any time prior to 2009." [7] Appellant's Br. at 36. We reject this contention.

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A judicial admission is a representation made by a party that, " unless allowed by the court to be withdrawn, is conclusive in the case." Meyer v. Berkshire Life Ins. Co.,372 F.3d 261, 264 (4th Cir. 2004) (quoting Keller v. United States,58 F.3d 1194, 1199 n.8 (7th Cir. 1995)). Judicial admissions " go to matters of fact which, otherwise, would require evidentiary proof." New Amsterdam Cas. Co. v. Waller,323 F.2d 20, 24 (4th Cir. 1963). In addition, judicial admissions " include intentional and unambiguous waivers that release the opposing party from its burden to prove the facts necessary to establish the waived conclusion of law." Minter v. Wells Fargo Bank, N.A.,762 F.3d 339, 347 (4th Cir. 2014) ...

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