Pitt County schools have fulfilled their obligations under desegregation orders first entered more than 40 years ago and need no longer remain subject to federal oversight, the 4th U.S. Circuit Court of Appeals ruled in a 2-1 decision released yesterday.
Writing for the panel in Everett v. Pitt County Board of Education, U.S. Circuit Court Judge Albert Diaz said:
[W]e need look no further for proof than the fact that the desegregation orders remained administratively closed for over thirty-five years, during which time the Board undertook the task of integrating the schools relatively undisturbed. Until 2008, no party came before the district court accusing the Board of neglecting or disregarding its obligations under the desegregation orders.
From the date the district court entered its desegregation orders, school administrators took immediate steps to effectively integrate their schools and move them toward unitary status. In very short order, both school districts had almost completely eliminated racially identifiable schools. While racial imbalance returned over the succeeding years, the respective boards consistently took measures to bring their schools back into balance.
Judge Paul Niemeyer joined in the opinion, but Judge James A. Wynn, Jr. dissented.
In finding that the district court applied a flawed analysis and the majority on the appeals panel compounded that error, Wynn said:
Our consideration of this case does not occur in a vacuum. The rapid rate of de facto resegregation in our public school system in recent decades is well-documented. As one scholar put it, “Schools are more segregated today than they have been for decades, and segregation is rapidly increasing.”
Today the majority upholds the Board’s promulgation of a student assignment plan that furthers this trend. The majority reaches that result out of deference to a district court decision that utterly fails to analyze the facts in this case in compliance with this Court’s instructions and established Supreme Court precedent.
Though it is pleasing to hear that the district court takes comfort in the Supreme Court’s recent proclamation in Shelby County v. Holder, that our “nation has made great strides” in ensuring the civil rights of minorities since the 1960s, these words are not a panacea for difficult cases involving race, particularly when the “facts on the ground” caution against resting on the laurels of prior generations. Undeniably, in certain cases, there are other famous words that ring all the more true: “The past is never dead. It’s not even past.”
Pitt County, located in eastern North Carolina, is a microcosm of a multiracial and class-stratified population. Fifty-nine percent of the approximately 170,000 residents there are white, 34 percent black and five percent, Latino. Unemployment hovers at the ten percent mark, and nearly 24 percent live in poverty – higher than the state average. That includes more than one in four children, and more than 60 percent of those enrolled in public schools qualify for free or reduced meals.
African-American students make up the majority in those public schools, according to district records. In 2012-13, close to 48 percent of its students were black, 38 percent white, and 10 percent Latino.
The county school board (which merged with Greenville City Schools in 1986) has been subject to a desegregation order since 1965, when a federal court found that the district was operating racially-segregated, dual and unconstitutional school systems, and required it to submit plans which would achieve balanced enrollment similar to the school age population in the district and “eradicate the vestiges of the dual school system and eliminate the effects of segregation.”
Although the county remained under that order and subject to ongoing supervision, the court in 1972 removed the district from its active docket pending objections over any new plans that might be brought to its attention.
Things remained quiet until 2006, when the Greenville Parents Association filed a complaint with the U.S. Department of Education contending that the district’s 2006-07 assignment plan discriminated against white students because it used race to balance some of its elementary school population.
In federal court proceedings that followed, those parents asked to have the school district designated “unitary” and removed permanently from supervision while the school board asked for approval of its proposed plan.
(Courts have used the term “unitary” to differentiate integrated school systems from “dual systems” that intentionally segregate students by race.)
A settlement followed in November 2009, with the parents withdrawing their request for unitary status and the court approving both the plan and the new policy but reiterating the district’s continued desegregation obligations under earlier orders.
On the heels of that settlement, the district approved a new school assignment plan for 2011-12 that considered race and student diversity only under the rubric of a new broader “student achievement” category.
Several African-American parents then asked the district court to reject that plan, saying it left some schools with high minority, low-achieving student bodies and violated previous desegregation orders.
County school officials responded that the new plan complied with court orders and added that the district had largely achieved racial balance throughout the district in terms of student assignment, faculty composition, comparable school facilities and resources and transportation.
In August 2011, just days before school began, U.S. District Judge Howard denied the parents’ request for a stay of the new plan, but by the end of that school year the case was back in his court after the Fourth Circuit reversed that ruling.
With a nod to the school district’s admission that it had not yet achieved unitary status, the panel in a 2-1 decision sent the case back to Howard for a determination that the plan complied with earlier desegregation orders and “fulfill[ed] the School Board’s affirmative duty to eliminate the vestiges of discrimination.”
Once back before Howard though, the school board and the Greenville Parents Association invited the judge to determine instead that the district had already eliminated discrimination and should be removed from federal supervision without regard to what the new plan did.
Howard did just that, finding in a 42-page decision that barely mentioned the 2011-12 plan that the school board had complied in good faith with past desegregation orders and had eliminated “to the extent possible” discrimination in its schools.
On appeal again at the Fourth Circuit, the parents challenging the new plan argued that Howard put the cart before the horse when he released the county system from federal supervision without first considering whether that plan met prior orders and moved the schools further along the path of integration.
The school board and the Parents Association in turn said the court correctly seized the moment to review the county’s progress in eradicating the effects of past discrimination and appropriately determined that it had reached the point where court intervention was no longer necessary.
This time around, the appeals court sided with the school board and the Parents Association, agreeing first that Howard was right to consider in the first instance whether the system had become unitary and deserved a release from federal supervision.
“Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system,” Judge Diaz wrote.
The majority on the panel also agreed that Howard, after reviewing the school system’s past responses to discrimination in a number of areas – including school assignment, transportation, extracurricular activities and facilities – correctly found that the school board had acted in good faith and had eliminated the effects of past discrimination to the extent possible.
They noted, for example, that racial imbalance now in the schools was largely due to “white flight” and other demographic factors and not to any discriminatory district practice or policy.
In his dissent, Judge Wynn took issue with Howard’s failure to address the 2011-2012 plan before addressing unitary status, saying that such a review was exactly what the appeals court asked Judge Howard to do when the appeals court sent the case back in 2012.
“Our words, it would appear, have fallen on deaf ears,” he wrote.
The new plan, Wynn added, demonstrated that the system had not necessarily acted in good faith to eliminate discrimination.
For example, evidence before the district court showed that the new plan would result in more, rather than fewer, racially imbalanced schools, he noted.
Wynn also cautioned that the district court’s analysis, and his colleagues’ affirmance, set a dangerous precedent:
By declaring the district unitary and its burden with respect to the 2011-12 plan moot, the district court has directly contravened our instructions . . .. Such a holding has troubling implications: Will others bound by desegregation orders take the majority’s holding as a signal that de facto unitary status in the eyes of a school district gives the school district license to act as though it were not under court order?
Mark Dorosin, managing attorney for the UNC Center for Civil Rights and one of the attorneys representing the parents who challenged Pitt County schools, agreed that the decision was troubling – for his clients certainly but also for those involved in school desegregation cases elsewhere.
“It’s a disappointing decision, one that definitely contradicts very well-established precedent in school desegregation cases,” Dorosin said.
“Here you have a consent order in 2009 that said the schools continue to have this affirmative obligation to comply with desegregation orders. Then you have Court of Appeals ruling in 2011 that said again that the schools have this continuing obligation to comply with these orders. And now we have a decision by the district court, affirmed by the Fourth Circuit, that says ‘No, you don’t have to comply with those orders, you were actually done complying with them a long time ago.”
As for any further appeal, which could be to a full panel of the Fourth Circuit or to the U.S. Supreme Court, Dorosin said that would be decided after digesting the decision and meeting with clients.