A split Fourth Circuit issued an opinion yesterday in the continuing saga of school desegregation litigation in North Carolina’s Pitt County. The decision vacates and remands a district court decision that had ruled in the school board’s favor in rejecting a challenge to a recent student assignment plan.
The current chapter of the story began with the filing in April 2011 of a motion for injunctive relief by a parents’ group who complained that the School Board’s 2011-12 Assignment Plan insufficiently addressed racial disparities. But the story cannot simply pick up there because a key part of the School Board’s defense to this April 2011 action was that its 2011-12 Assignment Plan complied with a 2009 Settlement Agreement/Release and Order that was reached in mediation of a dispute over the 2006-07 Assignment Plan.
The 2006-07 dispute–known as the Everett litigation–also involved the Greenville Parents’ Association. The Association had filed a complaint with the federal Office of Civil Rights (Department of Education) objecting to the Board’s use of race in the 2006-07 Assignment Plan.
In the litigation over the 2006-07 plan, then, the School Board was being hit from both sides–by some parents for not doing enough about racial disparities and by others for placing too much emphasis on race in student assignments.
The 2009 mediated settlement agreement and order in the Everett litigation created a process for input from all sides in creating the 2011-12 Assignment Plan. The Board and the various interested parties went through this agreed-upon process, but the resulting plan was not satisfactory to the plaintiffs. That dissatisfaction led to the motion for injunctive relief at issue in the appeal decided yesterday.
As presented to the Fourth Circuit, the principal issue was who bore the burden of proof in seeking injunctive relief. The appeal also presented a question about appellate jurisdiction.
In an opinion authored by Judge Wynn, and joined in by Judge Diaz, the Fourth Circuit held in Everett v. Pitt County Board of Education that the district court erred “by failing to apply, and requiring the School Board to rebut, a presumption that racial disparities in the 2011-2012 Assignment Plan resulted from the School Board’s prior unconstitutional conduct in operating a racially segregated school district.” Judge Niemeyer dissented, arguing that the majority’s disposition “overlooks . . . the procedural posture of his case and, most importantly, the impact of the settlement agreement reached by the parties ‘as to all matters in dispute’ from the date of the original desegregation orders to the date of the court’s approval of the settlement agreement in a consent order, dated November 4, 2009.”
The decision is a victory for UNC’s Center for Civil Rights, which represented the plaintiffs. Their background page on the case contains links to the appellants’ brief, the school board’s brief, and the reply brief.
The case raises difficult issues about continuing judicial oversight of a school district that has not yet achieved unitary status. It is difficult to evaluate the dueling opinions without further study of the record, including the precise terms of the settlement agreement/release and order, though my preliminary impression is that the majority opinion does not adequately address the dissent’s contentions about the effect of the 2009 settlement agreement/release and order. The one thing that is clear, though, is that the litigation will continue for the foreseeable future.