Cavalier Ex Rel. Cavalier v. Caddo Parish School Board , 403 F.3d 246 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MARCH 15, 2005
March 1, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-30395
KEVIN PAUL CAVALIER, on behalf of
Hunter Paul Cavalier; JULIE ANN CAVALIER,
on behalf of Hunter Paul Cavalier,
Plaintiffs-Appellants,
versus
CADDO PARISH SCHOOL BOARD;
PHILLIP R. GUIN; WILLIE D. BURTON;
GINGER ARMSTRONG; EURSLA D. HARDY;
ALVIN MIMS; MARK MILAM; MICHAEL J.
THIBODEAUX; WANDA J. WRIGHT;
JERRY TIM BROOKS; MILES HITCHCOCK;
MILDRED B. PUGH; and MIKE POWELL,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
Before GARWOOD, WIENER and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiffs-appellants Kevin Paul Cavalier and Julie Ann
Cavalier (the Cavaliers), on behalf of their minor son, Hunter
Cavalier, appeal the summary judgment dismissal of their lawsuit
against defendant-appellee Caddo Parish School Board (School Board)
complaining that the School Board illegally discriminated against
Hunter Cavalier on the basis of his race when he was denied
admission to Caddo Middle Magnet School.1 We reverse and remand.
Facts and Proceedings Below
In 2002, Hunter Cavalier (Hunter), who is white, applied for
admission to the sixth grade at Caddo Middle Magnet School (CMMS),
an academic and performing arts magnet school covering grades six,
seven and eight, for the 2002–2003 school year. His application
was denied because his achievement test score was not high enough
for a white student applicant, although it was high enough for a
black student applicant. The Cavaliers claim that but for a race-
conscious admission policy, Hunter would have been admitted to
CMMS. The School Board has not denied this.
The School Board has admitted that its admission policy for
CMMS does employ racial classifications in order to meet a
particular racial balance at CMMS. The procedure for admission to
CMMS is contained in School Board Policy JECC. To qualify for
admission to CMMS, an applicant must: 1) have high motivation
toward excellence, as evidenced by consistent achievement and
acceptable behavior; 2) be performing on grade level or better;
3) have a grade point average (GPA) of 2.0 or better in reading and
1
On this appeal, as throughout the proceedings in the district court, the
Cavaliers proceed pro se.
2
math and 2.5 or better overall; and 4) have 95% or better
attendance. In addition, the student must take a standardized
achievement test, the California Achievement Test (CAT), for
ranking purposes.2
After the initial qualifications are taken into account, the
number of qualified applicants usually far exceeds the number of
available openings. To determine which students will be offered
admission, CMMS gives priority to qualified siblings of students
who also attend CMMS and to black students who would otherwise
attend a school with over 90% black student enrollment. CMMS then
ranks the remaining qualified applicants based on their CAT test
score. Regarding these latter rankings, the policy states that
CMMS “will maintain a list of rankings for black students and a
list of rankings for white students.” The vacancies are then
filled so that CMMS will have a racial mix of 50% white and 50%
black, plus or minus 15 percentage points.3 CMMS accepts qualified
applicants of any race subject to the number of openings available
by race, according to the required racial mix, and no applicant of
any race who does not meet the initial admission requirements is
accepted.
2
The policy also has two nonacademic requirements: the students must have
parental permission and support and be in good health or under a doctor’s care.
3
In 2001, the Board approved Item No. 37, which required CMMS enrollment
to be within the parameters of a consent decree entered in 1981, discussed infra.
The consent decree gave a projected racial enrollment for CMMS of 50%
black/white, plus or minus 15 percentage points.
3
Hunter met the initial admission requirements for entrance
into CMMS for the 2002–2003 school year. However, based on his CAT
test score, and due to the number of slots available for white
students, he was not admitted.
For the 2002–2003 school year at CMMS, the lowest CAT test
score for a nonsibling white applicant given admission to the sixth
grade was 142; the lowest CAT test score for a nonsibling black
applicant given admission was 117. Hunter’s CAT test score was
140. There were seven nonsibling white applicants not selected for
admission who had scores of 141 and six, including Hunter, who had
scores of 140. Sixty-seven black students who scored less than
Hunter (140) on their CAT test were admitted to the sixth grade.
The 2002–2003 sixth grade CMMS class consisted of 449
students. Fifty-one siblings were admitted, of whom 42 were white
and 9 were black. Another 398 nonsibling students were admitted on
the basis of their CAT test score ranking, of whom 259 were white
and 139 were black. While the incoming sixth grade class was 67%
white and 33% black, the total student composition of CMMS for the
2002–2003 school year was 65% white and 35% black, a result barely
within the School Board–required racial mix for CMMS of 50%
black/white, plus or minus 15 percentage points.4
4
Based on our review of data obtained by the Cavaliers from the School
Board and submitted in conjunction with a motion for preliminary injunction, it
appears that if the School Board did not use separate test-ranking lists for
white and black applicants, the score that would have resulted in a sixth grade
class at CMMS for the 2002–2003 school year of roughly the same size as the
actual class would have been 130. Using a score of 130, the sixth grade class
apparently would have been approximately 25% black and 75% white.
4
The Cavaliers, on behalf of Hunter, filed suit against the
School Board, and twelve of its members, alleging that Hunter was
discriminated against on the basis of his race when he was denied
admission to CMMS. The Cavaliers sought declaratory and
injunctive, compensatory damages, and attorneys’ fees and costs,
under the Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983, and
2000d. The parties consented to the exercise of jurisdiction by a
magistrate judge, and the district court referred the case to a
magistrate judge. The School Board filed a motion to dismiss or
for summary judgment on the ground that the admission procedure for
CMMS is pursuant to a court-ordered consent decree and, therefore,
is constitutional. The magistrate judge granted the defendants’
motion, dismissing all claims against all parties.5 The Cavaliers
subsequently filed a timely motion for reconsideration, which the
magistrate judge denied. The Cavaliers then timely appealed.
Discussion
The Board attempts to justify its admission policy based on a
consent decree entered in 1981 involving the Board. Because this
consent decree no longer applies to CMMS, it cannot justify the
Board’s policy, and because the Board shows no other compelling
governmental interest for its racial classification, we hold that
5
The magistrate judge previously had dismissed the Cavaliers’ claim for
compensatory damages against the individual members of the School Board based on
qualified immunity. The Cavaliers have not appealed that ruling.
5
the policy is unconstitutional. Furthermore, even if CMMS were
still subject to the decree, because the Board has not shown that
it has considered any race-neutral means to achieve its desired
racial mix and relies exclusively on a racial quota, the policy is
not narrowly tailored. Therefore, we reverse and remand.6
I. Standard of Review
We review de novo the magistrate judge’s grant of summary
judgment.7 Austin v. Will-Burt Co., 361 F.3d 862, 866 (5th Cir.
2004). Summary judgment is proper only if, viewing the evidence in
6
On July 29, 2004, some two months subsequent to oral argument herein, the
School Board filed with this court a motion to dismiss the appeal as moot. The
School Board attached to its motion an affidavit from its counsel in which she
stated that: on May 19, 2004, she mailed a letter to the Cavaliers advising them
that there were openings for the eighth grade at CMMS for the 2004–2005 school
year; if Hunter met the general requirements for admission, he would be admitted
to the eighth grade at CMMS upon the submission of an application, included with
the letter to the Cavaliers; and no further testing would be needed for
admission. The School Board claims that this offer of admission to Hunter
renders the appeal moot.
We disagree. In their complaint, the Cavaliers sought, among other things,
compensatory damages. In their opposition to the School Board’s motion to
dismiss the appeal, the Cavaliers have alleged damages due to the School Board’s
policy. The Cavaliers brought their suit in 2002 after Hunter was denied
admission to CMMS for the 2002–2003 school year, his sixth grade year. The
Cavaliers allege that because of the denial of Hunter’s admission to CMMS, in
order to provide the best alternative to CMMS, they enrolled him in a private
school for two years, his sixth and seventh grade years, at a cost that was
presumably higher than what they would have had to pay if Hunter had attended
CMMS. The private school was also allegedly further from their residence than
CMMS, resulting in additional transportation costs. The Cavaliers have sought,
among other things, compensatory damages and have alleged damages due to the
School Board’s policy. Past damages that are in no way addressed by the offer
of admission to Hunter for his eighth grade year. We accordingly deny the motion
to dismiss the appeal as moot.
7
Although the Board filed a motion to dismiss or for summary judgment,
because the magistrate judge considered materials outside of the pleadings, we
treat the motion as a motion for summary judgment. See Meister v. Tex. Adjutant
General's Dept., 233 F.3d 332, 335 (5th Cir. 2000).
6
the light most favorable to the nonmoving party, the record
establishes “that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law.” FED. R. CIV. P. 56(c).
II. Constitutionality of the Admission Policy
A. Strict Scrutiny Review
We apply strict scrutiny review to the School Board’s race-
conscious admission policy: “It is by now well established that
‘all racial classifications reviewable under the Equal Protection
Clause must be strictly scrutinized.’” Gratz v. Bollinger, 123
S. Ct. 2411, 2427 (2003) (quoting Adarand Constructors, Inc. v.
Peña, 115 S. Ct. 2097, 2111 (1995)) (emphasis added). To pass
strict scrutiny review, the School Board must demonstrate that the
“use of race in its current admission program employs ‘narrowly
tailored measures that further compelling governmental interests.’”
Gratz, 123 S. Ct. at 2427 (quoting Adarand, 115 S. Ct. at 2113)
(emphasis added).
B. Compelling Governmental Interest
1. Remedying Current Effects of Past Segregation
Because the School Board previously operated a dual school
system, in violation of the Fourteenth Amendment, it bears the
“primary responsibility to ‘eliminate from the public schools all
vestiges of state-imposed segregation.’” Davis v. East Baton Rouge
Parish Sch. Bd., 721 F.2d 1425, 1434, 1436 (5th Cir. 1983) (quoting
7
Milliken v. Bradley, 97 S. Ct. 2749, 2762 (1977)). Remedying the
present effects of past discrimination is a compelling interest
that in particular circumstances may justify appropriate use of
certain racial classifications. Dallas Fire Fighters Ass’n v. City
of Dallas, Tex., 150 F.3d 438, 441 (5th Cir. 1998).
In justifying its admission policy, the School Board has
relied exclusively on a consent decree entered by the Western
District of Louisiana in 1981 directing the desegregation of the
Caddo Parish school system (the 1981 Consent Decree). The School
Board has not identified any current effect or condition at CMMS
that is traceable to the past segregation within the school
system.8 Therefore, whether the School Board’s use of racial
classifications serves a compelling governmental interest by
seeking to remedy the current effects of past segregation depends
entirely on whether the 1981 Consent Decree obligates the School
Board to use racial classifications in its current admission
policy. As we conclude that the 1981 Consent Decree is no longer
applicable to CMMS, it cannot justify the School Board’s race-
conscious admission policy.
a. Background of the 1981 Consent Decree
8
In their interrogatories, the Cavaliers asked that the School Board
describe all evidence of present effects of past racial discrimination that could
justify the use of racial classifications in its admission process. The School
Board responded that the reason for the use of the racial classifications was “to
comply with the [1981] Consent Decree.” The School Board then stated that
“[t]here has not been any attempt to determine if other reasons exist which could
justify the use of racial classifications.”
8
The 1981 Consent Decree has it roots in litigation that began
in 1965 and that has been the subject of multiple cases within this
circuit. The following historical background comes from two
earlier cases involving the 1981 Consent Decree: Jones v. Caddo
Parish School Board, 735 F.2d 923, 924–26, (5th Cir. 1981) (Jones
I), and Jones v. Caddo Parish School Board, 204 F.R.D. 97, 98–100
(W.D. La. 2001) (Jones II):
In 1965, the parents of seven black children commenced a suit
against the School Board seeking desegregation of the Caddo Parish
public schools. The United States later intervened as a plaintiff.
In 1973, the district court ordered the School Board to implement
a desegregation plan; a plan was developed and took effect. In
1976, the School Board filed a motion to have the school system
declared unitary, which would have warranted the dismissal of the
original suit; however, the United States opposed the motion. In
1977, the district court: (1) ruled that the School Board had fully
complied with the 1973 court-ordered desegregation plan; (2)
declared the school system to be unitary; and (3) dismissed the
suit against the School Board. Thereafter, the United States filed
a motion to amend the judgment, the filing of which suspended the
finality of the judgment pending decision on the motion. In 1980,
the district court gave notice that unless the plaintiffs’
attorneys objected, the United States, as plaintiff-intervenor,
would represent the interests of the private plaintiffs; the
9
district court did not receive any objections. The United States
and the School Board then entered into negotiations, which resulted
in the district court-ordered 1981 Consent Decree.
b. 1981 Consent Decree
In the 1981 Consent Decree, the district court determined that
“the plan for the System embodied in this Decree is reasonable and
appropriate for the additional desegregation of the System, and
upon its successful implementation will in fact and in law create
a unitary school system for Caddo Parish.”
The decree, among other things, called for the establishment
of magnet schools:
“The Board will establish new magnet schools at three
elementary schools . . . and at one middle school (Eden
Gardens Junior High School) in order to enhance the
quality of education and bring about a greater degree of
desegregation at those schools. . . . The Board will
establish an aggressive magnet recruitment program and
will permit and encourage students to attend magnet
schools using every reasonable effort to achieve the
projected racial enrollment for each school within the
time period permitted under this Decree.”
The decree also detailed the projected racial enrollment for each
magnet school and how the projection was to be achieved: “It is
understood by the parties that magnet programs at particular
schools may be revised in order to effectively provide for the
recruitment and retention of students in the magnet schools and to
achieve and maintain a desegregated enrollment.” The projected
racial enrollment for CMMS—formerly Eden Gardens Junior High
School, located in a predominantly black neighborhood with a
10
predominantly black student body—was 50% white and 50% black.
“[E]nrollment at each magnet school” was to “be on a parish wide
basis” and students were to be assigned to the magnet schools based
on the following priorities, which were the only priorities stated
in the decree: 1) qualified siblings of students who attend the
magnet school; 2) qualified black students who would otherwise
attend a school with over 90% black student enrollment; and 3)
qualified white students who would otherwise attend a school with
over 65% white student enrollment. These priorities were to apply,
however, only to the extent that they did not impede the School
Board’s achievement of the projected racial enrollments at the
magnet schools.
The School Board was to implement the magnet school program at
Eden Gardens Junior High, which would become CMMS, before or
beginning with the 1982–83 school year. The School Board was to
“use its best efforts to attain the projected racial enrollments .
. . by the end of the 1984–85 school year by developing attractive
programs at [CMMS] and by encouraging students of both races to
attend [CMMS] and benefit from [its] programs.”
The school system was to remain under the jurisdiction of the
district court during the period in which the decree was in effect,
subject to certain provisions that provided for the termination of
the court’s jurisdiction. The decree specifically provided for the
11
termination of the district court’s jurisdiction over the magnet
and laboratory9 schools:
“With respect to the magnet school and laboratory school
proposals contained in . . . this Decree, the Board shall
have three years from the respective implementation dates
for each such school within which to meet the projected
enrollments at the magnet and laboratory schools. Such
projected enrollments for a particular school shall be
deemed to have been met if the actual enrollment in the
school is within ± 15 percentage points of the projection
for such school . . . . Upon meeting the projected
enrollments for all magnet and laboratory schools covered
by this Section D of Part V, this Decree shall terminate
as to such schools, the Board shall be entitled to an
order of the Court so stating, and the United States
shall not be entitled to seek any further or additional
remedy with respect to such schools.”
Finally, the decree outlined the procedure by which the School
Board could seek an order declaring the school system to be unitary
and dismissing the case:
“At any time after the 1983–84 school year, the Board may
file a Notice of Compliance with the terms and conditions
of this Decree. If the United States agrees that the
Board is in full compliance with the terms and conditions
of this Decree, the United States shall join in the
Notice and shall state that it supports an order
declaring the System to be unitary and dismissing the
case. If no objection to the Notice is made within 30
days of its filing, the Court shall enter an order
declaring the entire system unitary, to the extent it has
not already been so declared, and terminating this case.
Any objections must be specific as to alleged terms of
noncompliance with the provisions of this Decree. The
objections shall be heard by the Court under reasonable
procedures set forth by the Court and in the event any
further remedy is ordered, it shall be limited to
resolving the objection so filed.”
9
The decree directed the School Board to establish a laboratory school
program that would be operated in conjunction with area universities and
colleges.
12
c. 1990 Order
In 1987, the School Board filed a Notice of Compliance with
the 1981 Consent Decree and requested the district court to rule
that the school system had achieved unitary status. On April 4,
1990, based on a joint motion filed by United States and the School
Board, the district court entered an order affirming the parties’
agreement (the 1990 Order). Jones II, 204 F.R.D. at 98–99. The
1990 Order provided in pertinent part:
“(1) Except as specifically set forth in § 7 of the
Joint Motion, there are no issues or disputes
regarding successful compliance and full
implementation of the 1981 Consent Decree;
* * *
(3) The [] Board has within the appropriate parameters
met the projected enrollments for all magnet and
laboratory schools covered by Part V, Sections D[,
termination of jurisdiction over magnet and
laboratory schools,] . . .;
(4) In accordance with Part V, Sections A-E of the
Consent Decree:
(i) The Consent Decree is terminated . . . as to
magnet schools and laboratory schools covered
by Sections D and E, Part V of the Decree, and
the United States shall not be entitled to
seek any further or additional remedy with
respect to any of said magnet schools,
laboratory schools, schools north of Caddo
Lake, nor with respect to any Mandatory
Assignment District [in the decree] . . . .”
With the entry of the 1990 Order, none of the remaining
“issues or disputes regarding successful compliance and full
implementation of the 1981 Consent Decree” involved CMMS, mandatory
student assignments, or projected racial enrollments. The portions
of the 1981 decree that the United States insisted, in section 7 of
13
the 1990 Joint Motion, had not been fully implemented as required
were the following: assignment of principals to schools (under Part
I, Section F, entitled “Faculty and Staff”); establishment of
enhancement programs at remaining one-race schools (under Part II,
Section E, entitled “Remaining One-Race Schools,” relating to
programs at such schools); and Majority to Minority Transfers
(under Part II, Section F, relating to allowing and encouraging, in
reference to one-race schools, transfers of students from a school
in which the student is in the racial majority to a school in which
the student would be in the minority). See Jones II, 204 F.R.D. at
99 n.1.
d. Status of the 1981 Consent Decree
Based on the 1990 Order, the 1981 Consent Decree is no longer
applicable to CMMS and cannot form the justification for the use of
racial classifications in CMMS’s admission policy. The Consent
Decree clearly contemplated that it could be terminated with
respect to the magnet schools:
“Upon meeting the projected enrollments for all magnet
and laboratory schools . . ., this Decree shall terminate
as to such schools, the Board shall be entitled to an
order of the Court so stating, and the United States
shall not be entitled to seek any further or additional
remedy with respect to such schools.” (emphasis added).
Under the Consent Decree, the School Board had the obligation to
use “every reasonable effort” and “its best efforts” to “achieve”
or “attain” the projected racial enrollments for CMMS by the end of
the 1984–85 school year, and upon meeting the projected
14
enrollments, the Consent Decree was to terminate as to CMMS. The
Consent Decree, however, did not give the School Board an
indefinite obligation to maintain the projected racial enrollment
for CMMS once the decree was terminated as to CMMS.
Consistent with the provisions of the 1981 Consent Decree, the
1990 Order unambiguously released the magnet schools, including
CMMS, from any further obligations of or under the Consent Decree:
“The [] Board has within the appropriate parameters met the
projected enrollments for all magnet and laboratory schools”;10 “The
Consent Decree is terminated . . . as to the magnet schools. . .,
and the United States shall not be entitled to seek any further or
additional remedy with respect to any of said magnet schools . . .
.” Therefore, with respect to the 1981 Consent Decree, upon which
the School Board justifies its racial classification, there is
nothing left regarding CMMS.
Moreover, the law is clear that the School Board’s obligation
under the Consent Decree may be reduced or eliminated in some
respects even if the entire school system is not totally in
compliance with the Consent Decree or has not been declared
unitary. In Green v. School Board of New Kent County, 88 S. Ct.
1689 (1968), the Supreme Court “identified various parts of the
10
CMMS opened for the 1982–1983 school year and met its projected racial
enrollment level of at least 35% black students during its first year and three
out of the first four years. The black student enrollment for the first four
years was: 37.3% (1982–1983), 36.1% (1983–1984), 34.4% (1984–1985), 38.8%
(1985–1986).
15
school system which, in addition to student attendance patterns,
must be free from racial discrimination before the mandate of
[Brown v. Board of Education, 74 S. Ct. 686 (1954),] is met:
faculty, staff, transportation, extracurricular activities, and
facilities.” Freeman v. Pitts, 112 S. Ct. 1430, 1443 (1992) (citing
Green, 88 S. Ct. at 1692). In Freeman, the Supreme Court held that
a “district court need not retain active control over every aspect
of school administration until a school district has demonstrated
unitary status in all facets of its system.” Freeman, 112 S. Ct. at
1436.
“We hold that, in the course of supervising
desegregation plans, federal courts have the authority to
relinquish supervision and control of school districts in
incremental stages, before full compliance has been
achieved in every area of school operations. While
retaining jurisdiction over the case, the court may
determine that it will not order further remedies in
areas where the school district is in compliance with the
decree. That is to say, upon a finding that a school
system subject to a court-supervised desegregation plan
is in compliance in some but not all areas, the court in
appropriate cases may return control to the school system
in those areas where compliance has been achieved,
limiting further judicial supervision to operations that
are not yet in full compliance with the court decree. In
particular, the district court may determine that it will
not order further remedies in the area of student
assignments where racial imbalance is not traceable, in
a proximate way, to constitutional violations.” Id. at
1445–46.
The Supreme Court did recognize that “[t]wo or more Green
factors may be intertwined . . . in their relation, so that a
constitutional violation in one area cannot be eliminated unless
the judicial remedy addresses other matters as well” and that,
16
“[a]s a consequence, a continuing violation in one area may need to
be addressed by remedies in another.” Id. at 1449. Nevertheless,
the record must demonstrate why a continuing remedy in one area in
which the school system was compliant was needed to remedy the
remaining defects:
“There was no showing that racial balancing was an
appropriate mechanism to cure other deficiencies . . . .
It is true that the school district was not in compliance
with respect to faculty assignments, but the record does
not show that student reassignments would be a feasible
or practicable way to remedy this defect.” Id.
A case from the First Circuit, Wessmann v. Gittens, 160 F.3d
790 (1st Cir. 1998), illustrates the application of Freeman in a
situation very similar to the present case. In a background case
to Wessmann, a district court in 1974 found “the school system as
a whole guilty of de jure segregation” and concluded that three
schools operated by the City of Boston, including Boston Latin
School (BLS), “were complicit in promoting and maintaining a dual
school system.” Id. at 791–92. The district court, among other
things, required BLS to ensure that at least 35% of each entering
class would be made up of black and Hispanic students. By 1987,
the three schools had, “for all practical purposes,” achieved
unitary status in the area of student assignments; however,
“comparable improvement had not been accomplished in other areas,
such as faculty and staff integration and the renovation of
facilities.” Id. at 792. Because of the lack of progress in these
17
other areas, in 1987 the First Circuit “instructed that federal
court supervision of elements other than student assignment
continue.” Id. The district court then relinquished control over
student assignments, freeing the schools from the requirement to
maintain the 35% set-aside, but retained active supervision over
other aspects of the school system. Id.
Similar to the background situation described in Wessmann, in
1990 the district court relinquished judicial supervision over
projected racial enrollments at all magnet schools within the Caddo
Parish school system by terminating the decree with respect to the
magnet schools, as allowed by Freeman and by the terms of the 1981
Consent Decree. While the 1990 Order did not wholly terminate the
entire Consent Decree, none of the remaining issues regarding its
successful compliance and full implementation involved CMMS. In
fact, none of the remaining issues—faculty and staff assignments,
enhancing of remaining one-race schools, and majority to minority
transfers—related to meeting projected racial enrollments or
mandatory student assignments at any school in the system.
According to the 1990 Order, the School Board had complied with all
student assignment and projected enrollment provisions of the
Consent Decree. Furthermore, we see nothing in the School Board’s
summary judgment evidence to suggest that continued student racial
balancing at CMMS is a “feasible or practicable way” to remedy the
remaining deficiencies identified in the 1990 Order. In any event,
18
the Consent Decree stated that the magnet schools were to be
established at particular schools “in order to enhance the quality
of education and bring about a greater degree of desegregation at
those schools,” (emphasis added), not at all schools within the
district.11
Therefore, based on the 1990 Order, the 1981 Consent Decree is
no longer applicable to CMMS and cannot be used in any sense to
justify the racial quotas and balancing contained in the CMMS
admission policy. As the 1981 Consent Decree has not been
applicable to CMMS since 1990, the School Board cannot rely on the
Consent Decree to establish a finding of current effects of past
discrimination. In order to support its actions, the School Board
“must make specific findings, independent of the Decree,” and as
there are no such findings before us in the record, “we cannot hold
11
The School Board argues that until the school system is declared unitary
in whole or in part, the School Board is obligated by law to comply with the
provisions of the Consent Decree. This is, in essence, a collateral attack on
the 1990 Order. Morever, the Board’s argument fails to recognize the holding in
Freeman:
“To say . . . that a school district must meet all six Green factors
before the trial court can declare the system unitary and relinquish
its control over school attendance zones, and to hold further that
racial balancing by all necessary means is required in the interim,
is simply to vindicate a legal phrase. The law is not so
formalistic.” Freeman, 112 S. Ct. at 1448–49.
Similarly, in finding that the admission policy was justified because of
the 1981 Consent Decree, the magistrate judge stated that the 1990 Order “did not
declare expressly that the district was unitary in student attendance patterns.”
Nevertheless, even though the 1990 Order did not use the magic word “unitary”
with respect to the magnet schools, that was its effect. The 1990 Order
expressly “terminated” the 1981 consent decree “as to” the “magnet schools” and
declared that all provisions concerning the magnet schools, and concerning all
student assignments and projected racial enrollments, had been fulfilled and that
the United States was not entitled to seek further remedies with respect to the
magnet schools or any mandatory student assignment provision in the decree. The
1990 Order did not need to specifically say “unitary” to effectively declare that
the magnet schools were outside of the 1981 Consent Decree.
19
that [the School Board’s actions] were in furtherance of a
compelling state purpose.” Police Ass’n of New Orleans Through
Cannatella v. City of New Orleans, 100 F.3d 1159, 1169 (5th Cir.
1996).
Wessmann also illustrates that the School Board cannot rely on
the 1981 Consent Decree to support its contention that it is
remedying prior segregation. In Wessman, after the schools
discontinued the use of the 35% racial set-aside, they subsequently
adopted a policy that allocated half of the seats of each new class
using “flexible racial/ethnic guidelines.” Wessmann, 160 F.3d at
793. Thereafter, a white student who would have been admitted to
BLS but for the policy that accounted for race, brought suit
against the school committee. The district court upheld the policy
in part because it supposedly was aimed at remedying the vestiges
of past discrimination. Id. at 793–94. However, on appeal the
First Circuit reversed and struck down the policy, rejecting the
explanation that the policy redressed the vestiges of past
discrimination. The school committee was not able to satisfy its
burden of showing a “strong basis in evidence” that the policy
remedied past segregation, id. at 800, in spite of the fact that
the schools had previously been found guilty of maintaining a dual
school system and had been required to specifically reserve at
least 35% of BLS seats to certain minorities.
20
The School Board relies on the unpublished opinion Bryant v.
Caddo Parish School Board, CV No. 95-0441 (W.D. La. Jan. 3, 1997).
In Bryant, which likewise involved a white student’s challenge to
the CMMS admissions criteria, the plaintiffs argued that the 1981
Consent Decree was no longer applicable because of the 1990 Order.12
The district court rejected the argument, relying on the fact that
the plaintiff had not established that the entire Consent Decree
had been complied with and on the fact that the entire school
system had not been declared unitary:
“Bryant fails to mention, however, that this Court did
not hold that Part I, Section F-Faculty and Staff; Part
II, Section E-Remaining One-Race Schools; and Part II,
Section F-Majority to Minority Transfers- of the Consent
Order had been fully implemented and complied with.
Furthermore, Bryant has failed to produce any evidence
demonstrating that the Caddo Parish School system has
12
Both the policy in Bryant and in the present case have the same criteria
to determine qualified applicants and to rank those qualified applicants. The
policy in the present case mandates the use of two ranking lists–one for white
students and one for black students, and while there is no indication in Bryant
that the policy involved there mandated two separate ranking lists, we
nevertheless assume that it most likely did: Policy JECC indicates that it was
adopted February 2, 1983, and amended January 16, 1985, without any indication
that its content was any different when Bryant applied to CMMS in 1994 than it
was when Hunter applied in 2002. Also, at oral argument, the School Board
claimed that policy in Bryant is the same policy before us now. If there is any
difference between the two cases, it may be with respect to the projected racial
enrollment requirement—here the racial mix is a requirement, whereas in Bryant
it was merely a goal. In the present case, the Board is governed by Item No.
37—adopted after Bryant—requiring CMMS to be within the racial parameters of the
1981 Consent Decree (50/50, ±15 percentage points). In Bryant, however, the
racial enrollment goal of 50/50, ±15 percentage points appears to be only a goal.
Nevertheless, regardless of Item No. 37, Policy JECC, the policy presumably in
effect at the time of Bryant, provides that “vacancies will be filled from the
rankings in accord with the projected racial enrollments called for in the
Consent Decree.” While Item No. 37 appears to make the 1981 Consent Decree
racial enrollment projections a firm requirement for the School Board, it appears
that even at the time of Bryant, the admission policy sought to fill vacancies
according to the same projections. Therefore, the policy in Bryant appears to
be substantially the same as the policy in the present case.
21
fully implemented and complied with the remaining
sections of the Consent Decree. Thus, the Caddo Parish
public school system has not been declared unitary and
the Consent Decree still applies to the Caddo Parish
Schools which, of course, includes [CMMS].” Id.
On appeal, this court summarily affirmed the district court,
stating only:
“We have carefully reviewed the briefs, the records
excerpts and relevant portions of the record itself. For
the reasons stated by the district court in its
memorandum ruling and Order filed under date of January
3, 1997, we are satisfied that the Summary Judgment
granted by the district court in favor of Caddo Parish
School Board should be and is now AFFIRMED.” Bryant v.
Caddo Parish School Board, No. 97-30135 (5th Cir.
September 26, 1997) (per curiam; unpublished).
We are not bound by our affirmance of the district court in
Bryant. The opinion is not precedential, as it is an unpublished
opinion issued pursuant to Fifth Circuit Rule 47.5 after January 1,
1996. Under Rule 47.5.4, the opinion is binding only under the
doctrines of res judicata, collateral estoppel, or law of the case,
none of which apply here.
While an unpublished opinion may be persuasive under Rule
47.5.4, we are not persuaded by the Bryant affirmance or by the
underlying district court opinion. We based our affirmance on the
“reasons stated by the district court in its memorandum ruling,”
without providing any independent analysis. The district court’s
one-paragraph discussion of the 1981 Consent Decree in light of the
1990 Order did not address several key points of the analysis: 1)
the Supreme Court’s decision in Freeman that allows a school
22
district to be declared unitary in an incremental fashion; 2) the
Consent Decree itself contemplated that the magnet schools would be
released from the decree when their related obligations were
implemented; 3) the purpose of the magnet schools was to “enhance
the quality of education and bring about a greater degree of
desegregation at [the schools that were to become the magnet]
schools,” (emphasis added); and 4) there is no clear relationship
between the remaining deficiencies outlined in the 1990 Order, none
of which dealt with racial enrollment projections, and racial
balancing at CMMS. Therefore, the Bryant case does not influence
our reasoning with respect to the 1990 Order and its effect on the
1981 Consent Decree.13
The School Board also points to, and the magistrate judge
relied on, Davis v. East Baton Rouge Parish School Board, 721 F.2d
1425 (5th Cir. 1983), in which this court upheld an admission
policy similar to that used by the School Board here. In Davis,
the school board operated under a court-approved admission policy
according to which the board selected applicants to its magnet
schools using two lists, one for white students and one for black
13
Concerning the 1990 Order and its effect on the 1981 Consent Decree, in
2001 the district court in Jones II commented that the parties seeking to
intervene at that time were seeking to do so “twenty years after the district
court entered the 1981 Consent Decree, and 11 years after the court granted
unitary status to the school district.” Jones II, 204 F.R.D. at 100 (emphasis
added). The district court then stated that the “only issue remaining before
this court is continued compliance with the parameters of the 1990 order.” Id.
While this is not determinative, it does indicate that one previous district
judge thought, as we hold now, that the 1990 Order did reduce the scope of the
1981 Consent Decree.
23
students. The board was to fill seats from the separate lists to
achieve a racial balance at each magnet school of 60% white
students and 40% black students. If by April 1 of each year the
seats at a magnet school reserved for a particular race had not
been filled, those seats could be opened to students of any other
race. The district court, however, later modified the admission
policy directing that white students could not be admitted in any
proportion greater than 60% of the total enrollment. The school
board appealed the modification and we affirmed. Id. at 1440.
Davis is wholly distinguishable from the present case. In Davis,
the school board was still under the court’s supervision with
respect to the admission policy. Further, almost no time had
passed since the creation of the court’s plan—the plan was designed
to begin in the 1981–1982 school year and was modified in 1982, and
our ruling was issued in 1983. Id. at 1433–34, 1440. The
situation in the present case is significantly different—the
Consent Decree was issued in 1981, judicial supervision over CMMS
was withdrawn in 1990, and there have been no subsequent findings
of segregation or vestiges of past segregation or orders requiring
the continued use of remedial racial classifications. In addition,
in Davis the use of separate lists was explicitly part of the
court-approved plan. In contrast, here the Consent Decree did not
mandate, or even suggest, that the School Board use separate test-
score ranking lists for blacks and whites; the use of separate
24
lists is directed by the School Board’s own admission policy.
Davis, therefore, is simply not applicable here.
e. No Other Vestiges of Past Segregation
There is no evidence in the record of current segregation
within the school system or at CMMS or vestiges of past
discrimination.14 The School Board thus fails to show that it has
a “‘strong basis in evidence’ showing that a current social ill in
14
At oral argument, counsel for the School Board suggested two vestiges
of past segregation: the fact that the school system still has several one-race
schools and the test-score disparity between white and black students. As this
“evidence” is not in the record and was suggested for the first time at oral
argument, it is not properly before us. United States v. Simpson, 334 F.3d 453,
454 n.1 (5th Cir. 2003).
Nevertheless, even if we were to consider the School Board’s suggested
vestiges, the School Board has not shown that the existence of the one-race
schools and the test-score gap is traceable to past segregation. Regarding one-
race schools, the Supreme Court has declared 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.”
Swann v. Charlotte-Mecklenburg Bd. of Ed., 91 S. Ct. 1267, 1281 (1971). For
instance, in Davis we upheld a district court-created plan that left 11 one-race
elementary schools. Davis, 721 F.2d at 1433. Furthermore, the 1981 Consent
Decree itself explicitly recognized that the elimination of all one-race schools
within the school system was not practicable: “The parties and the Court
recognize that the elimination of all racially identifiable schools in the System
is impracticable.” “[T]he parties, after exploring all avenues to attempt to
achieve desegregation in [certain] schools, have determined . . . that there is
no feasible and practical means of accomplishing desegregation at those schools
other than the actions [described concerning one-race schools].” “[T]here will
remain under the provisions of this Decree a number of one-race or predominantly
one-race schools which, for various reasons . . ., it is not practically possible
to effectively desegregate given the current circumstances existing in Caddo
Parish.” The School Board has not shown in any way, particularly in light of the
Consent Decree’s language, how the continued existence of one-race schools is
traceable to past segregation within the school system.
Concerning the test-score gap, the Board has produced no evidence and
provided no analysis whatsoever regarding a causal connection between the gap and
past de jure segregation. As “achievement gap statistics, by themselves, do not
even eliminate the possibility that they are caused by what the Court terms
‘societal discrimination,’” Wessmann, 160 F.3d at 803, the mere suggestion that
the gap is a vestige of past discrimination is not sufficient. Moreover, it is
obvious that virtually none of the students entering the eighth (or lower) grade
for the 2002-03 school year was or had ever been a student at any school governed
by the School Board when the 1990 Order was entered.
25
fact has been caused by such conduct.” Wessmann, 160 F.3d at 800
(quoting City of Richmond v. J.A. Croson Co., 109 S. Ct. 706, 725
(1989)).
2. No Other Compelling Interests
Besides relying on the 1981 Consent Decree, the School Board
has not attempted to argue, or make any showing, that the racial
classifications in its admission policy can be justified by some
other compelling governmental interest. The magistrate judge also
relied exclusively on the decree to uphold CMMS’s admission policy,
explicitly stating that it was not deciding, or being asked to
decide, whether it could constitutionally order the implementation
of the admission policy or whether the policy could withstand a
constitutional challenge if the purpose was to achieve diversity15
or some similar social goal.
The School Board’s current policy is essentially a racial
balancing quota. The 1981 Consent Decree no longer applies to
CMMS, and racial balancing by itself is not a constitutionally
15
The School Board has not claimed that its policy seeks to achieve
diversity among the students at CMMS. The School Board has specifically limited
its justification for the policy to the 1981 Consent Decree and expressly argued,
in its briefs and at oral argument, that Grutter and Gratz are distinguishable
and “very different” cases because they dealt with efforts to achieve diversity
in the student body and not with a desegregation order to remedy past
discrimination. Moreover, while student body diversity has been held a
compelling state interest in the context of a law school, Grutter v. Bollinger,
123 S. Ct. 2325, 2339 (2003), it is by no means clear that it could be such at or
below the high school level. But see Parents Involved in Cmty. Sch. v. Seattle
Sch. Dist. No. 1, 377 F.3d 949, 964 (9th Cir. 2004) (applying Grutter to hold
that diversity in the public high school context can be a compelling governmental
interest). In any event, the quota system applied here would seem to clearly
fail to pass muster under Gratz v. Bollinger, 123 S. Ct. 2411 (2003).
26
proper reason for employing racial classifications: “[T]he Court
has consistently held that the Constitution is not violated by
racial imbalance in the schools, without more.” Milliken, 97 S. Ct.
at 2757 n.14. See also Freeman, 112 S. Ct. at 1447 (“Racial balance
is not to be achieved for its own sake. . . . Once the racial
imbalance due to the de jure violation has been remedied, the
school district is under no duty to remedy imbalance that is caused
by demographic factors.”).
The School Board has failed to show any compelling
governmental interest that it furthers by its racial
classification. The policy is therefore unconstitutional.
C. Narrowly Tailored
Moreover, even if the 1981 Consent Decree were still in some
respects applicable to CMMS, the School Board’s policy is not
narrowly tailored to remedy the present effects of past
segregation, the compelling interest allegedly supported by the
Consent Decree. In the context of remedying past discrimination,
a narrowly tailored measure requires that the state actor consider
the use of other race-neutral means. Croson, 109 S. Ct. at 729.
Further, a quota system “cannot be said to be narrowly tailored to
any goal, except perhaps outright racial balancing,” id., and
“[r]acial balance is not to be achieved for its own sake.”
Freeman, 112 S. Ct. at 1447.
27
The School Board’s policy is not narrowly tailored. “To be
narrowly tailored, a race-conscious admissions program cannot use
a quota system – it cannot ‘insulat[e] each category of applicants
with certain desired qualifications from competition with all other
applications.’” Grutter v. Bollinger, 123 S. Ct. 2325, 2342 (2003)
(quoting Regents of Univ. of Cal. v. Bakke, 98 S. Ct. 2733, 2761
(1978) (Powell, J.)). Further, there is no evidence that the
School Board has considered any race-neutral means which might
arguably result in an increase in the percentage of black students
at CMMS.16 Moreover, as the School Board cannot justify its
outright racial balancing absent a showing of current effects of
prior segregation, which it has not done, its use of a racial quota
is improper. While “the use made of mathematical ratios” as “no
more than a starting point in the process of shaping a remedy,
rather than an inflexible requirement,” might be appropriate in
certain contexts, Swann, 91 S. Ct. at 1267 (emphasis added), the
School Board’s use of a racial quota supposedly pursuant to the
1981 Consent Decree but more than twenty years after the signing of
the decree – and more than a decade after the 1990 Order – is
16
Some examples of race-neutral means that the Board might have considered
include: recruiting highly qualified black students who might not otherwise apply
to CMMS, employing programs in elementary schools to improve standardized test
scores for potential but underachieving student applicants, or considering
certain characteristics of the applicants’ parents (such as socio-economic
status, educational level, or number of parents in a student’s home).
28
hardly a “starting point” and appears rather to be an improper
“inflexible requirement.”17
With respect to narrow tailoring, we also observe that the
policy does not even follow the dictates of the 1981 Consent Decree
itself. The Consent Decree did not expressly mandate the use of a
race-conscious admission policy.18 Although the Consent Decree did
give a projected racial enrollment goal, all the measures that it
specifically mentioned were race-neutral ones. The Consent Decree
provided that the School Board would “establish an aggressive
magnet recruitment program and [would] permit and encourage
students to attend magnet schools using every reasonable effort to
achieve the projected racial enrollment for each school.” (emphasis
added). The School Board was to use its “best efforts to attain
the projected racial enrollments [for the magnet schools] . . . by
17
The School Board does not see its use of racial quotas as a starting
point and does not appear to have an end in mind. In an interrogatory, the
Cavaliers asked the School Board to describe “any time limitation after which all
consideration of race in the admissions policy at [CMMS] . . . will be
discontinued, or any objective, which if attained, would cause all consideration
of race in the admissions policy at [CMMS] to be discontinued.” In response, the
School Board simply stated that the “current policy will be followed as long as
the policy is in effect. Whether the Board in the future may revise the policy
calls for speculation.” The School Board’s policy clearly is not a starting
point, and the consideration of race is not specifically and carefully limited,
at least in the temporal respect, to some compelling interest.
18
The School Board has admitted that the Consent Decree only implicitly
mandates the use of a race-conscious admission policy. In response to the
Cavaliers’ request for any evidence that the School Board had received approval
from the district court to use racial classifications, the School Board pointed
to the 1981 Consent Decree and stated that it “consider[ed] it implicit in this
Decree that magnet schools, because they do not enroll children on the basis of
attendance zones, must use race conscious admissions policies in order to meet
the required projected racial enrollments, and that race conscious admissions
policies are permitted.” (emphasis added).
29
developing attractive programs at [the magnet schools] and by
encouraging students of both races to attend such schools and
benefit from their programs.” (emphasis added). The Consent Decree
further explained that “magnet programs at particular schools may
be revised in order to effectively provide for the recruitment and
retention of students in the magnet schools and to achieve and
maintain a desegregated enrollment.” (emphasis added).
The Consent Decree did not mandate that the School Board
employ a separate list/quota system or any other such race-
conscious policy to arrive at the projected racial enrollment goal.
Rather, the School Board was to use every reasonable effort and its
best efforts to recruit and encourage students and to develop
attractive programs and to revise the programs in order to achieve
and maintain the desired level of desegregation. The School
Board’s use of a racial quota does not constitute any one (or a
combination) of the actions expressly mandated by the Consent
Decree. Moreover, the Consent Decree itself wholly terminated more
than a decade ago as to the magnet schools.19
19
A brief response to the dissent.
The dissent relies on the language in Swann v. Charlotte-Mecklenburg Board
of Education, 91 S. Ct. 1267, 1276 (1971), and the similar language in the
companion case of North Carolina State Board of Education v. Swann, 91 S. Ct.
1284, 1286 (1971), to the effect that “[s]chool authorities . . . 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 is within
the broad discretionary powers of school authorities . . .”. This language is
the purest passing dicta. No such issue was even arguably before the Court or
presented by the facts of either case; no authority whatever, legal or otherwise,
is cited in support; and the statements made do not form any link in the chain
of reasoning by which the Court arrived at the holdings it made in those cases.
30
Moreover, the cited language in Swann – particularly as applied to race based
magnet school admissions – has clearly been superceded by that of Adarand
Contractors, Inc. v. Pena, 115 S. Ct. 2097, 2111 (1995), and Gratz v. Bollinger,
123 S. Ct. 2411 (2003), the court stating in Gratz: “It is by now well established
that ‘all racial classifications reviewable under the Equal Protection Clause
must be strictly scrutinized.’” Id. at 2427 (emphasis added; quoting Adarand, 115
S. Ct. at 2097). The dissent’s citation in this connection of Washington v.
Seattle School District No. 1, 102 S. Ct. 3187 (1982), is similarly unpersuasive;
indeed there the Court noted that “Appellants and the United States do not
challenge the propriety of race-conscious student assignments for the purpose of
achieving integration, even absent a finding of prior de jure segregation. We
therefore do not specifically pass on that issue.” Id. at 3196 n. 15.
Gratz applied strict scrutiny notwithstanding the presence of a compelling
state interest. Even prior to Gratz, lower courts had applied strict scrutiny
to use by educational authorities of race based preferences as remedial measures
for past discrimination. See, e.g., Podberesky v. Kirwan, 38 F.3d 147, 152-53
(4th Cir. 1994), cert. denied, 115 S. Ct. 2001 (1995). See also Johnson v. Board
of Regents, 263 F.3d 1234, 1265 (11th Cir. 2001); Eisenberg v. Montgomery County
Public Schools, 197 F.3d 123, 128-29 (4th Cir. 1999); cf. Police Ass’n of New
Orleans v. City of New Orleans, 100 F.3d 1159, 1169 (5th Cir. 1996) (“Even
assuming that the promotions were made to remedy specific past discrimination,
the actions before us were not narrowly tailored, as required” by strict
scrutiny). Indeed, the dissent seems to ultimately recognize all this (as well
as the wholly unpersuasive nature in this context of the Swann passing dicta it
quotes).
The dissent errs in reliance on the holding in Belk v. Charlotte-
Mecklenberg Board of Education, 269 F.3d 305 (4th Cir. 2001), exonerating the
school board from damages for race-based admissions to a magnet school prior to
the district court’s dismissal of the underlying decree on the basis that the
district was unitary. In Belk, unlike the situation here, there had been no
prior order specifically removing the magnet schools from the extant
desegregation orders. Of the six judges in Belk who voted for this holding (five
judges would have held the board liable), four were of the view that the prior
orders, extant at the time for which damages were sought, “specifically
authorized the use of fixed ratios based on race in assigning students to magnet
schools.” Id. at 408 (opinion of Judge Motz) (and it is not clear that the other
two judges in the six judge majority were not of the same view; see id. at 353-
56, opinion of Chief Judge Wilkinson). Belk might be analogous to this case if
this case involved a claim for denial of access to CMMS in, say, 1986. Rather,
this case involves denial of access to CMMS more than a decade after the 1990
order entirely removing it from the only extant court order, and is hence
analogous to Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998), cited with
apparent approval in Judge Motz’s Belk opinion (269 F.3d at 410).
Moreover, in view of the wording of the 1990 order – which expressly
“terminated” the 1981 order (the only extant desegregation related order) “as to
[the] magnet schools” and provided “the United States shall not be entitled to
seek any further or additional remedy with respect to any of said magnet
schools,” it is wholly clear that there was no reasonable possibility whatever
that the school board could be exposed to sanctions for post-1990 abandonment of
its rigid racial quota magnet school admissions policy (which itself was never
mandated by the 1981 decree). Finally, it is manifestly unfair and illogical to
place on the plaintiffs the burden to prove that there was no conceivable
justification for the board’s use, over a decade after the 1990 order, of a rigid
31
Conclusion
Based on the foregoing, we REVERSE and REMAND for further
proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
racial quota admissions system at CMMS, when the board had all the relevant data
and resources but defended its action below only on the manifestly erroneous
ground of compliance with the 1981 decree (see note 8 and accompanying test
supra).
32
WIENER, Circuit Judge, dissenting:
The brooding omnipresence that overarches the panel majority’s
reversal of the district court is the unarticulated premise ——
fatally flawed, I submit —— that the trial court’s partial release
of the consent decree vis-à-vis Caddo Magnet School, ipso facto
voided the very programs and policies long employed by the school
district to achieve that partial release. As I shall explain more
fully below, I am compelled, with my utmost respect, to dissent.
If the school board had unilaterally adopted its racial-quota
admissions policy for magnet schools anew —— after the Caddo Parish
School District had been declared unitary (which it has not) or
even after the court had ceased its supervision of the particular
magnet school’s student admissions policy under the consent decree
(which it has) —— I would likely have no concerns about joining the
majority’s opinion. But that is not our case and thus not the
framework within which we must review it. Rather than a brand-new,
post hoc admissions policy, the plan that we must test for
constitutionality is (1) a longstanding race-based admissions
policy, (2) which has been “on the books” and consistently
administered for many years, (3) pursuant to an existing consent
decree, (4) as part and parcel of the school board’s comprehensive
and continuing efforts, specifically to comply with the district
court’s mandate to achieve a 50/50 ratio in the Magnet Schools and
generally to eradicate all vestiges of past segregation. When we
review the case in this framework —— as we must —— the school
board’s discretionary decision to retain its magnet school
admissions policy as an integral tool in the Board’s ongoing
struggle to achieve its court-ordered, yet-unrealized goal of total
desegregation easily passes our scrutiny.
Cessation of court supervision of the magnet school aspect of
the consent decree is not the equivalent of a court declaration
that the persistent vestiges of more than a century of school
segregation have ceased to plague a substantial majority of Caddo’s
minority school students. Although the Supreme Court allows
district courts to discontinue supervision over some (but less than
all) aspects of plans to achieve unitary status in historically
segregated school districts, the Court has never ruled that such a
partial release from supervision forecloses a school district’s
option to continue using the ensconced race-conscious policies that
enabled it to achieve and maintain such status. To the contrary,
the Court has consistently emphasized the importance of affording
school districts maximum discretion and control over local schools,
particularly with respect to remedying the vestiges of past
segregation.20 In fact, it has explicitly endorsed school
districts’ use of race-conscious policies.21
20
See, e.g., Freeman v. Pitts, 503 U.S. 467, 490 (1992) (citing Dayton Bd.
of Educ. v. Brinkman, 433 U.S. 406, 410 (1977)). See also Bush v. Orleans Parish
Sch. Bd., 308 F.2d 491, 501 (5th Cir. 1962) (“When a case involves the
administration of a state’s schools, as federal judges, we try to sit on our
hands.”)
21
See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16
(1971).
34
It is true, as the majority points out, that, as a general
rule, Supreme Court precedent requires us to scrutinize race-
conscious government policies strictly. Nevertheless, race-based
features of school districts’ desegregation plans enacted pursuant
to court order, such as the one here at issue, are afforded a
special presumption that they address a compelling state interest
—— remedying the effects of past segregation —— over and above the
general deference that we accord local school districts’ efforts to
comply with each aspect of court-ordered desegregation plans.
Here, the 1990 consent decree expressly released Caddo Middle
Magnet School (“Caddo Magnet”) from further court supervision. To
this day, however, the school district as a whole remains bound
under the consent decree, and the Board risks court sanctions if it
does not make bona fide efforts to fulfill all its obligations
under the order. If, therefore, we were to prohibit the Board’s
continued use of those race-conscious policies that have long been
in place, and at the same time were to threaten sanctions if the
board does not continue its efforts to remedy the effects of past
racial discrimination, we would be putting the Board in a classic
“Catch-22” situation. In consequence, our review of the Caddo
Magnet admissions policy must take into account the timing and
history of that policy and the circumstances under which the school
district operates —— and defer to local authority to the maximum
extent of our authority.
Partial Unitary Status
35
The panel majority cites no Supreme Court pronouncements, (and
I have found none) on the effect that a district court’s declaring
a school district “partially unitary” has on a school board’s
continued use of policies validly enacted and continually applied
in compliance with a consent decree. Despite the majority’s
reliance on Freeman v. Pitts, that case addresses the equitable
power of district courts to supervise continuing desegregation
efforts, not the discretion of school boards to decide how to
implement these efforts. The Freeman Court permitted district
courts to relinquish control over local school districts gradually
by declaring them unitary in increments, i.e., to release districts
from the obligation to continue some discrete desegregation
policies while continuing to address remaining vestiges of
discrimination in other areas.22 Significantly, this decision did
nothing to diminish either the discretion of school districts to
continue programs previously enacted pursuant to a consent decree
or the deference we must afford to the districts’ exercise of that
discretion.23 In fact, when the Court has taken up the issue of
school board discretion to consider race in implementing a
desegregation policy, it has acknowledged that board discretion to
implement such policies exceeds the equitable power of the courts
to order them to do so.
22
Freeman v. Pitts, 503 U.S. 467, 491-2 (1992).
23
See id.
36
School Board Discretion and the Use of Race
The Supreme Court’s 1971 Swann decision highlighted the
expansive discretionary power of school officials to remedy past
segregation and contrasted it with the equitable powers of the
courts:
School authorities are traditionally charged with
broad power to formulate and implement educational
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.24
24
Swann, 402 U.S. at 16. The majority refers to this passage as "the
purest passing dicta" and states that it forms no link in the chain of reasoning
by which the Court arrived at its holding. I do not cite this language as the
holding but for the same reason the Supreme Court included it: as an example of
the contrasting powers of the courts and of local school districts. For this
reason, I must also take exception to the charge that this language played no
role in the reasoning of the Charlotte-Mecklenburg decision. This opinion
addressed the equitable power of district courts to order school districts to
institute a variety of programs to address past segregation, and made clear that
this equitable power does not reach as far as the inherent power of school
authorities. Certainly, language comparing courts' power to that of school
authorities plays a role in the Court's effort to define the reach of district
court's authority. I agree that this language was not central to the North
Carolina State Bd. of Educ. v. Swann, 402 U.S. 43 (1971) decision, and
accordingly do not cite that case as an example of the expansive power of school
authorities. Despite these observations, —— that the quoted language did not
figure in the reasoning of the North Carolina decision or the ultimate holding
of the Charlotte-Mecklenburg opinion —— unlike the majority, I cannot imagine
that a unanimous Court would unequivocally state —— twice —— that school
districts have plenary power to institute race-conscious admissions program if
it did not mean that school districts have this kind of authority. The language
from Seattle County Sch. Dist. No. 1. v. Washington, 458 U.S. 457 (1982) and
Bustrop, Inc. v. Bd. of Educ. of City of Los Angeles, 439 U.S. 1380 (1978), which
I have cited below, only reinforces my point that the Supreme Court has
repeatedly referred to the expansive power of local school authorities, and that
we therefore owe a measure of deference to home-grown, race-conscious admissions
plans when enacted pursuant to a consent decree. Inasmuch as the Supreme Court
has never stated, even in dicta, what the majority holds, I do not think that
this point undermines my analysis of the case.
37
In this decision and others, the Court endorsed local discretion to
use racial balancing as a means of correcting inequities caused by
de jure segregation, and it has never reversed itself on this
issue.25 In Washington v. Seattle School District No. 1, the Court
struck down a citizen initiative enacted to prevent local school
districts from implementing race-based student assignments to
achieve formal racial balance goals.26 The Court held that the
citizen initiative violated the Equal Protection Clause because it
forbade busing only for the purpose of achieving racial balancing
in the schools and added: “It is undeniable that busing for
integration —— particularly when ordered by a federal court —— now
engenders considerabl[e] . . . controversy. . .But in the absence
of a constitutional violation, the desirability and efficacy of
school desegregation are matters to be resolved through the
political process.”27 In fact, the Seattle School District
decision, along with then-Justice Rehnquist’s decision in Bustrop,
Inc. v. Board of Education of City of Los Angeles, upheld state
decisions to assign students based on race despite the absence of
25
See id. See also Freeman, 503 U.S. at 497 (“Racial balancing in
elementary and secondary school assignments may be a legitimate remedial device
to correct other fundamental inequities that were themselves caused by the
constitutional violation.”).
26
458 U.S. at 471-74.
27
Id. at 473-74.
38
any court order requiring the district to integrate its schools,
i.e., as a discretionary remedy for past segregation.28
In addition, the Court has repeatedly stressed the importance
of local control over schools. The Freeman Court explained that
courts should withdraw supervision of school districts as quickly
as possible because “local autonomy of school districts is a vital
national tradition.”29 Courts have likewise emphasized the
importance of maximum local responsibility for crafting integration
strategies.30 As noted above, the Swann Court expressly approved
a school district’s discretion to use a prescribed racial ratio to
this end, even though it expressed doubt whether a federal court
could order the district to do the same.31
Strict Scrutiny
28
Seattle School Dist., 458 U.S. at 474 (assuming that school board had
the power to order race-based student assignment and busing, even though school
system was not under court order to desegregate); Bustrop, 439 U.S. at
1383(upholding California state courts’ desegregation order, including extensive
busing and race-based school assignments, as not “required” but certainly
“permitted” by the U.S. Constitution). See also Swann, 402 U.S. at 16
(discussing “traditionally” broad power of school authorities to formulate
policies that would not be within the power of a federal court to order).
29
Freeman, 503 U.S. at 490 (citing Dayton Bd. of Educ. v. Brinkman, 433
U.S. 406, 410 (1977)). See also Milliken v. Bradley, 418 U.S. 717, 741-42
(1974)(“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.”); San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 42 (1973)(“This case . . . involves the most
persistent and difficult questions of educational policy, another area in which
this Court's lack of specialized knowledge and experience counsels against
premature interference with the informed judgments made at the state and local
levels.”).
30
Swann, 402 U.S. at 15; Belk v. Charlotte-Mecklenburg Bd. of Educ., 269
F.3d 305, 401 (4th Cir. 2001).
31
Swann, 402 U.S. at 16.
39
Certainly, the Court’s more recent Croson and Grutter
decisions have clarified our duty to scrutinize government use of
racial classifications strictly for both a compelling state
interest and narrowly tailored means to achieve the goal of such
classification.32 I am convinced that, under the instant
circumstances, the Caddo Magnet policy satisfied both at the time
of its promulgation; and more to the point, does nothing to require
us to test the continued employment of that policy, post-
supervision, under the strict scrutiny rubric.
A. Compelling State Interest
It is well established that remedying the present effects of
past discrimination is a compelling state interest.33 As the panel
majority notes, Caddo Parish School District has been previously
adjudged dual, i.e., guilty of discrimination. The continued
existence of a consent decree imposed pursuant to a judicial
finding of past de jure segregation, even if now only partially
enforceable, is nonetheless prima facie evidence of the continued
existence of the effects of past discrimination. This is so for
several reasons, even with respect to a consent decree that remains
only partially in effect.
32
Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Croson v. City of
Richmond, 488 U.S. 469, 493 (1989).
33
Dallas Fire Fighters Ass’n v. City of Dallas, 150 F.3d 438, 441 (5th
Cir. 1998).
40
First, a formerly dual school district is under a continuing
duty to “take whatever steps might be necessary to convert to a
unitary system in which racial discrimination would be eliminated
root and branch.”34 Persons subject to such an injunctive decree
of a court of competent jurisdiction are expected to obey that
order until it is modified or reversed.35 This holds true even if
the order compels violation of another statute —— or the
Constitution for that matter.36 Declaration of partial unitary
status cannot be read to modify, much less repeal, the substantive
elements of the order such that the school district is no longer
required to take all efforts to comply with it, even if those
efforts might otherwise violate the law.
Second, school districts under court order to remedy past
segregation should not first be forced to consider race and
undertake race-conscious policies to the point of achieving partial
unitary status, only to be forced at that time either to abandon
these policies immediately or to conduct extensive studies to prove
a direct correlation between the policy and some aspect of their
violation despite potential liability for their remaining
obligations. The Supreme Court has observed that the indicia by
34
Green v. School Bd. of New Kent County, 391 U.S. 430, 437-38 (1968).
35
GTE Sylvania, Inc. v. Consumers’ Union of United States, 445 U.S. 375,
386 (1980).
36
GTE, 445 U.S. at 378 n.2; Walker v. City of Birmingham, 388 U.S. 307,
317 (1967).
41
which school districts are adjudged dual or unitary, such as one-
race schools, segregated facilities, faculties, or student bodies,
and the like, may be intertwined in such a way as to make the
remedy for one effect of the constitutional violation effective to
remedy other inequities.37 Many school districts undoubtedly do not
have the resources to produce direct evidence of the causes and
effects of these interconnected factors, yet they could be
sanctioned for failing to satisfy their obligations under such
decrees.38 For these reasons, at least until a district is declared
fully unitary, we should accept the truism that a consent decree’s
requirement that the school district remedy past segregation is
sufficient evidence that vestiges of past discrimination persist
and, accordingly, that remedying them is a compelling governmental
interest.
B. Narrowly Tailored
The Caddo Magnet policy was validly enacted, i.e., narrowly
tailored to achieve the goals of the consent decree, and it
continues to meet the narrow tailoring requirement, even under the
37
Freeman v. Pitts, 503 U.S. 467, 497 (1992).
38
The majority states that it would be “manifestly unfair and illogical”
to require the plaintiffs to prove that the Caddo Magnet admissions policy was
unjustified more than a decade after the 1990 order. On the contrary, I find it
unfair and illogical that any plaintiff seeking admission to a magnet school that
has as the very reason for its existence the court-ordered effort to desegregate
Caddo Parish Schools, may force the Board to prove, as many times as there are
plaintiffs, the justification for its policy while the district as a whole
remains subject to court order. The fair thing to do, I believe, is to allow the
district the presumption that its policy addresses a compelling state interest,
at least until the district as a whole is no longer subject to court order.
42
partial consent decree. Under the circumstances of this case,
viz., a school district’s complying with the court’s order to
remedy a past constitutional violation by, inter alia, achieving a
50/50 black-white student body in its magnet schools, we should
view with considerable deference the continuation of any policy
previously enacted and unswervingly administered —— under years of
court observation —— to bring the school district into compliance
with the court order.39
As recently as 2001, the Fourth Circuit in Belk v. Charlotte-
Mecklenburg Board of Education employed a “deferential” brand of
strict scrutiny when it held that a similar race-based admissions
formula for magnet schools did not violate the Constitution,
because it had been implemented pursuant to a consent decree and
had been sufficiently narrowly-tailored to fulfill the Board’s
court-ordered obligations.40 The Belk court considered an
admissions lottery that allocated spots in a magnet school
39
Some deference to the decisions of educational policy-makers, even when
the court is strictly scrutinizing voluntarily-enacted race-conscious policies,
is appropriate. See Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (“Our holding
today is in keeping with our tradition of giving a degree of deference to a
university’s academic decisions, within constitutionally-prescribed limits.”).
40
Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 354, 401 (4th
Cir. 2001). The majority takes issue with my reliance on Belk, arguing that this
case is inapposite because there was no prior order removing magnet schools from
the extant desegregation orders. My reason for relying on Belk, however, is to
counter the majority's holding that the Caddo Middle Magnet admissions policy was
not narrowly tailored at the time of its promulgation. Other considerations,
such as our deference to school board authority, the school board's continuing
duty to comply with its consent decree, and the use of race-conscious admissions
policies at magnet schools to prevent them from undermining desegregation in the
rest of the district —— considerations to which the majority does not respond ——
support a holding that the policy continues to be narrowly tailored.
43
according to race.41 The Charlotte-Mecklenburg School district had
created separate lotteries for black and non-black students in an
effort to achieve racial balance in its magnet schools. First, if
a sufficient number of children of either race did not fill the
quotas for the children’s respective races, the Board would
actively recruit children of the opposite race despite lengthy
waiting lists for “majority” race spots.42 But then, if the Board
could not successfully recruit enough children of the targeted
race, the remaining open spots usually went unfilled.43 The Fourth
Circuit concluded in two separate opinions that the Board’s policy
survived constitutional scrutiny, despite the fact that the
relevant court order did not require the school district to use a
race-based admissions policy.44
Four appellate judges held that the underlying court order’s
broad language commanding the district to take “whatever steps
might be necessary to convert to a unitary system,” together with
the school district’s discretion to maintain control over the
racial composition of the schools, justified use of a quota.45
Chief Judge Wilkinson, along with Judge Niemeyer, expressed strong
disapproval of the use of quotas and doubted that the Board’s
41
Belk, 269 F.3d at 316-37.
42
Id.
43
Id.
44
Id. at 311.
45
Belk, 269 F.3d at 401 (King, J. and Motz, J., concurring).
44
policy would survive if it were enacted voluntarily, but reasoned
that the school district was nevertheless entitled to flexibility
in how it complied with a court order:
It is true that in the early 1990's, the school
board in its magnet program eagerly accepted the
courts’ invitation to rely upon numerical
benchmarks. I believe, however, that it is
necessary to afford a school board some latitude in
attempting to meet its desegregative obligations if
we are not to undermine the rule of law. To do
otherwise leaves the Board between a rock and a
hard place. Namely, if the school board fails to
carry out the court desegregation order, it can be
cited for contempt or held not to have achieved
unitariness. But if the Board acts aggressively to
implement the court order, it risks facing judicial
condemnation and the threat of litigation on the
grounds that it was acting ultra vires. This is not
the kind of quandary into which we should force
institutions that are, for better or worse, under
judicial decree.46
We know that here, as in Belk, the district court’s 1990
consent decree did not mandate the precise quota policy here at
issue, but broadly commanded Caddo Parish School Board to make
“reasonable efforts” to recruit black students to its magnet
schools. In so doing, however, the court did specifically decree
that the targeted black-white enrollment ratio for the school
should be 50/50, adding that this projected enrollment would be
deemed satisfied if actual enrollment at Caddo Magnet was within
plus or minus fifteen percentage points of the ratio mandated by
the court for that school. Although the consent decree did not
explicitly order Caddo Magnet to use a race-conscious quota
46
Belk, 269 F.3d at 354. (Wilkinson, C.J., concurring).
45
admissions policy, it is indisputable that, given (1) the court’s
constitutional mandate for the Board to take whatever steps were
necessary to fulfill its obligations, and (2) the Supreme Court’s
prior approval of quite similar race-conscious admissions policies,
this was a reasonable and constitutionally-acceptable means for the
Board to initiate and continue in its efforts to meet and maintain
its court-ordered enrollment goals.47 Like the Belk policy, the
Caddo Magnet policy was validly enacted as a narrowly tailored
means of achieving the goals set forth in the consent decree.
Our own precedent supports affirming the district court’s
ruling that upholds the continued viability of Caddo’s magnet
school admissions policy. Davis v. East Baton Rouge Parish School
Board, for example, is apposite.48 Although, unlike the Caddo
board, the Baton Rouge School Board was still under court order
with respect to its magnet school admission policy, and although
the time frame between the enactment of the decree and our review
was narrower, the gravamen of our holding the Baton Rouge magnet
schools admissions policy viable was that the quota would prevent
the magnet schools from undermining desegregation in the parish as
47
See Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 437-38
(1968) (holding that school boards previously operating state-compelled dual
systems were “clearly charged with the affirmative duty to take whatever steps
might be necessary to convert to a unitary system); Duvall County Sch. Dist. v.
NAACP. 273 F.3d 960, 968 (11th Cir. 2001)(noting with approval that the school
district, “while not contractually obligated to,” capped white enrollment at
magnet schools to promote integration).
48
721 F.2d 1425 (5th Cir. 1983).
46
a whole.49 Surely this rationale applies irrespective of whether
all or any part of a school district remains under court order to
desegregate —— likely even after full unitary status is achieved,
but certainly during the continuation of the status quo.
Neither can I agree that Bryant v. Caddo Parish School Board,50
our earlier decision affirming the Western District of Louisiana’s
upholding of the self-same Caddo Middle Magnet admissions
policy, is unpersuasive. Regarding the panel majority’s first
concern —— that the Bryant district court did not address Freeman
—— I have already noted that Freeman only spoke to the district
court’s authority to relinquish control in an incremental fashion;
it said nothing about the effect of partial unitary status on a
school district’s power to craft its own policy.51
The majority’s second concern —— that the consent decree
itself contemplated that the magnet schools would be released from
the decree after fulfilling their obligations —— also speaks to the
discretionary authority of the school district to change the
admissions policy when and if it determines that it is proper to do
49
Id. at 1440. (“‘The First Circuit has specifically approved application
of a racial quota in admissions to magnet schools to ensure that they would not
serve as a haven for those seeking to attend a school predominantly composed of
those of their own race.’ We agree.”) (internal citations omitted).
50
CV No. 95-0441 (W.D. La. Jan 3, 1997).
51
See infra text accompanying notes 3-4. See also Freeman, 503 U.S. at
489 (“A federal court in a school desegregation case has the discretion to order
an incremental or partial withdrawal of its supervision and control.”)
47
so. It does not speak to any obligation to discontinue the policy,
ipso facto, immediately on release from court supervision.
As regards the majority’s third concern, it is true that the
stated purpose of creating and operating magnet schools was to
enhance the quality of education imparted to qualified students at
those schools. We recognized in Davis, however, that a primary
purpose of racial quotas for magnet school admissions is to ensure
that “voluntary attendance schools not work to undermine the
progress of desegregation in the parish.”52
As for the majority’s belief that there is no clear
relationship between the remaining deficiencies in the Caddo Parish
School system and racial balancing at Caddo Magnet, the foregoing
quotation from Davis clearly identifies a nexus between admissions
policies at magnet schools and enrollment throughout a district.
Although the Board no longer remains under court supervision with
respect to racial enrollment projections, it does remain under
court order with respect to one-race schools and majority-minority
transfers. Even if here the Davis nexus is slightly attenuated, it
is not unreasonable to deduce that abolishing the magnet school
admissions policy would likely “undermine” continuing efforts to
remedy the broader problem of one-race schools. Freeman itself
acknowledged that racial balancing in student assignments may be a
legitimate means to correct inequities elsewhere in a school system
52
Davis, 721 F.2d at 1440(emphasis added).
48
that were also caused by a constitutional violation.53 Eliminating
all vestiges of prior segregation remains a court-ordered goal for
the Board.
In the universe of narrow tailoring, magnet schools have been
recognized by courts time and again as an effective and unobtrusive
means for school districts to remedy vestigial effects of past
segregation.54 Congress itself has extolled the virtues of magnet
schools as a means “to continue to desegregate and diversify
schools . . . recognizing that segregation exists between minority
and nonminority students . . [and that] [d]esegregation efforts
through magnet school programs are a significant part of our
Nation’s effort to achieve voluntary desegregation. . .” in its
Magnet Schools Assistance Program.55 And, although Caddo Parish’s
partial unitary status includes Caddo Middle Magnet, the district
as a whole has not been declared unitary as to remaining one-race
schools, majority-to-minority transfers, and staffing. Even though
53
Freeman, 503 U.S. at 497. The Freeman court ultimately found that there
had been no showing that racial balancing was an appropriate mechanism to cure
other deficiencies in the school system, but it acknowledged that the district
court did not make specific findings and conclusions on that issue and remanded
for further proceedings. Id. at 498. Further, the Freeman decision did not
implicate the school board’s discretion to use racial balancing to cure other
deficiencies, but only the equitable power of the district court to order the
Board to do so. See id. Finally, the issue in Freeman was whether race-based
student assignments could remedy problems with faculty assignments, whereas Caddo
Parish has not achieved unitary status in two other areas, including one-race
schools and majority-to-minority transfers. Id.
54
See Milliken v. Bradley, 433 U.S. 267, 272, 287-88 (1977); Belk, 269
F.3d at 355 (Wilkinson, C.J., concurring) (“Magnet schools are a widely used
desegregation device.”).
55
20 U.S.C. § 7231 (2002).
49
Caddo’s magnet schools are no longer compelled to enroll majority
and minority students according to the flexible ratio at issue,
they were created, and continue to be used, “to enhance the quality
of education and bring about a greater degree of desegregation.”56
The magnet school admissions policy certainly “fits” this goal.
Conclusion
The admissions policy at Caddo Parish was validly enacted to
serve a compelling state interest and was narrowly tailored to
achieve that interest, pursuant to a valid consent decree. The
fact that the district court might no longer threaten the school
district with sanctions if the magnet schools do not meet their
projected enrollments does not mean that Caddo Parish must
immediately scrap the race-based admissions policy for its magnet
schools as part of its broader plan to desegregate. The Supreme
Court has never spoken to the effect of partial unitary status on
existing aspects and policies of the desegregation plan of an
extant consent decree, but has emphasized the breadth of school
district discretion and the importance of local control over
schools. Consequently, our deference to a locally-accountable
school board’s decision to continue the use of a race-conscious
admissions policy of which the supervising court was obviously
aware for as long as it takes to eradicate the vestiges of
56
1981 Caddo Parish Consent Decree.
50
segregation is legally defensible despite the anathema of racial
quotas generally.
Indeed, Supreme Court precedent, such as Seattle School
District and Bustrop, indicates that the Court views even
voluntarily-adopted race-conscious policies with a substantial
degree of tolerance. We need not go that far, but neither should
we retrench on Court precedent by unduly restricting school
districts, especially those that continue to operate under court
order. Our review of the instant policy should be considerably
more deferential than the strictest of strict scrutiny, keeping in
mind that the entire district remains under court order and that
partial cessation of court supervision of this facet of magnet
school admissions is not the equivalent of terminating the
continuing presumption of deference to school boards by the courts.
I end where I began. If this Caddo Magnet racial-quota
admissions policy were enacted unilaterally by the Board today,
after the court has ceased supervision of the magnet schools, I
could go along with the majority’s strict scrutiny analysis and
rejection of the quota system. But inasmuch as that policy was
enacted pursuant to court order and has been in place for years
under that order —— with court scrutiny and without court
disapproval —— and the Board is still hard at the task of
eradicating the pernicious effects of de jure segregation, I am
convinced that the test employed in the majority’s opinion is
51
inappositely stringent and thus, I respectfully submit,
inapplicable in this framework.
52