**The Edvocate is pleased to publish guest posts as way to fuel important conversations surrounding P-20 education in America. The opinions contained within guest posts are those of the authors and do not necessarily reflect the official opinion of The Edvocate or Dr. Matthew Lynch.**

A guest post by Derek Black

For the past five or so years, concerned citizens have been in active litigation with the Pitt County Board of Education.  The litigation arises out of a longstanding desegregation order.  In the late 1960s and early 1970s, a district court had found both the county and city school systems to be segregated and ordered them remedy to their constitutional violations.  They were slow to do so.  In 1986 the districts merged into one county system, believing this might help in the overall management of student assignments.  No court ever declared either district unitary.

Fast forward to 2006 when the district adopted a student assignment plan that explicitly considered race and whose purpose was to racially balance the schools.  At this point, the district was still under court order.  Thus, not only could it have taken such action, Supreme Court precedent in Green v. New Kent County and Swann v. Mecklenberg would have mandated such action.

A private parent association, however, objected to this desegregation plan and employed a strategy similar to the one that had brought an end to desegregation in Charlotte: they moved to have the district declared unitary and, thus, subject the consideration of race to strict scrutiny.

The district court, however, did not grant unitary status.  At that point, rather than fight it out further, the parties entered into a settlement agreement in 2009 whereby the parties would work toward the district obtaining unitary status.  In 2010, however, the district adopted a plan that would have exacerbated rather than cured racial isolation in the the district.  A different set of plaintiffs, acting on behalf of African American students, sought to enjoin the segregative plan.  The district court denied the plaintiffs motion and allowed the plan to go into effect.

The Fourth Circuit on appeal, reversed the district court in 2012:

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).

On remand, the school district sought to circumvent the effect of this ruling by moving for unitary status again.  Its theory was that it had achieved unitary status years ago and, thus, would have no current desegregation obligation and no burden to carry in regard to the current student assignment plan.  African American parents objected that the law of the case and the past settlement agreement, along with various admissions by the district and statements by the district court, all conclusively established that the district had not achieved unitary status and was under a continuing obligation to desegregate.  In short, the issue before the court was whether the current assignment plan eliminated the vestiges of discrimination, not whether the district had achieved unitary status some two decades earlier.

The district court sided with the school district and found that the district had obtained unitary status with respect to student assignments as early as 1986.  Yesterday, the Fourth Circuit affirmed this finding in Everett v. Pitt County, No. 13-2312.  The effect was to preempt its earlier decision in favor of desegregation.

This case is eerily reminiscent of Holton v. Thomasville, 490 F.3d 1257 (11th Cir. 2007).   Holton was filed in 1998.  Early rulings by the district court held that the Keyes presumption was in effect and, thus, all racial disparities in the district were the result of past segregation.  The undisputed facts showed that the district, for more than two decades, had operated highly segregated elementary schools.  Two were entirely African American. A third was almost entirely African American.  And a fourth housed almost the entire white population in the district.  To be clear, this meant three African American Schools and one white school.

You might assume that housing segregation explains this pattern.  It did not.  The district did not assign students to elementary schools based on neighborhoods. Rather a freedom of choice plan was in effect.  The schools were more segregated than the neighborhoods.  More important, all four of the elementary schools were within one or two miles of one another.  Thus, integration was an easy thing to achieve and segregation the bigger task.

The district court initially ruled in favor of the school district on all counts, not because racial inequalities were gone.  To the contrary, they were startling in almost all aspects of the district’s operations.  Rather, the district court found that the school district had achieved unitary status in regard to student assignments in the early 1970s and, thus, everything that followed was largely irrelevant.

The district court was correct that the schools did have some modicum of balance for a few years in the 1970s, but they never stabilized.  The racial balance was more akin to a statistical fluke as some schools moved along a spectrum from being all white to all black.  Nonetheless, on the second trip to the 11th Circuit, the court washed its hands of the case and affirmed the district court, notwithstanding some very odd reasoning by the district court.  For instance, the  district court concluded that the vestiges of discrimination were gone because none of the current plaintiffs ever attended the de jure schools in Thomasville.  In other words, desegregation ends after the de jure generation graduates.

Why do Everett and Thomasville matter so much?  To be clear, active desegregation is not occurring in any systematic fashion in our nation’s schools.  Thus, the matter because they generally show how courts appear uninterested in finishing the job of desegregation.  Of course, this presupposes that desegregation is still legally appropriate.  On this score, these cases reveal two troubling doctrinal and evidentiary trends.

First, even when plaintiffs win, they loose.  This happens only by allowing school districts to have continual bites at the apple.  No matter what problems a district has today, it can go back to an early time and claim unitary status.  Second, while this is theoretically possible, it is practically problematic.  It is true that unitary status declaration by a court is not the end-all-be-all.  Green required districts to desegregate regardless of whether the federal government or a court were involved.  The failure to do so was a deemed a continuing constitutional violation.  By the same token, a district could cure its constitutional violation without a court.  In effect, a court is the body that confirms reality, not the one that makes it.  This confirmation can sometimes after the fact.  But when one is decades out, the evidence that conclusively establishes a violation has been cured is hard to come by.  And evidence of this nature is necessary because a presumption is in effect against the school district.  Thus, freely granting retroactive unitary status, decades later, is in tension with existing Supreme Court precedent.

Finally, retroactive unitary status in Pitt County is even more problematic given that everyone in the case had assumed that the district was under a desegregation duty for years.  Only when that assumption became problematic for the district’s other agenda did it change its mind.  Allowing this move is reminiscent of Horne v. Flores, in which the Supreme Court allowed a motion for reconsideration to unravel a set of trial court findings and consent decrees from the previous decade, all of which the defendants had lost.  The Court did not hold that any of those findings or decrees were wrong, but only that changed facts allowed the defendants to have the orders reconsidered years later.

This type of after-the-fact reconsideration and retroactive unitary status puts plaintiffs in the position of having to win their cases not just one time, but two, three, four, or five times. Defendants only have to win once.  I hope that is not the new equal protection.

Download Order-060315

______

Derek Black is a Professor of Law at the University of South Carolina School of Law. His areas of expertise include education law and policy, constitutional law, civil rights, evidence, and torts.