                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-2312


RONDA EVERETT; MELISSA GRIMES; CAROLINE SUTTON; CHRISTOPHER
W. TAYLOR, next friends of minor children attending Pitt
County Schools; PITT COUNTY COALITION FOR EDUCATING BLACK
CHILDREN,

                 Plaintiffs – Appellants,

           and

JUVENILE FEMALE 1; THE GREENVILLE PARENTS ASSOCIATION,

                 Intervenors/Plaintiffs,

           v.

PITT COUNTY BOARD OF EDUCATION, public body corporate,

                 Defendant – Appellee.



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


Argued:   December 9, 2014                  Decided:   June 3, 2015


Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.


Affirmed by published opinion.  Judge Diaz wrote the majority
opinion, in which Judge Niemeyer joined.   Judge Wynn wrote a
dissenting opinion.
ARGUED: Mark Dorosin, UNIVERSITY OF NORTH CAROLINA CENTER FOR
CIVIL RIGHTS, Chapel Hill, North Carolina, for Appellants.
Kenneth Alexander Soo, THARRINGTON SMITH LLP, Raleigh, North
Carolina, for Appellee. ON BRIEF: Ezra D. Rosenberg, Princeton,
New Jersey, Lauren Kurtz, New York, New York, C.B. Buente,
DECHERT LLP, Washington, D.C.; Brenda Shum, LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., for Appellants.
Deborah R. Stagner, THARRINGTON SMITH LLP, Raleigh, North
Carolina, for Appellee.




                               2
DIAZ, Circuit Judge:

       This appeal arises from two desegregation orders entered in

1970       by    the     United    States     District        Court      for   the   Eastern

District of North Carolina.                  The district court determined then

that the Greenville City and Pitt County Boards of Education

were operating racially segregated schools and directed them to

submit      desegregation          plans    that      would     establish      a   nonracial,

unitary school district.                   Following the school boards’ initial

compliance            with   the   orders,    the       cases     were    administratively

closed and lay dormant for over thirty-five years.

       In 2008, a dispute arose between the Pitt County Board of

Education (the “Board”) 1 and the Greenville Parents Association

(the        “Association”)            concerning            the       Board’s        explicit

consideration of race when devising student assignment plans.

The parties ultimately settled, and the district court entered a

consent order approving the settlement and directing the parties

to work together toward attaining unitary status for the school

district.

       Three years later, a group of parents and the Pitt County

Coalition for Educating Black Children (“Plaintiffs”) moved to

enjoin          the    implementation        of       the   Board’s      2011-12     student


       1
       By this date, the Greenville City and Pitt County schools
had been consolidated into a single school district.



                                                  3
assignment    plan,     arguing    that        it   failed      to    move     the   school

district    toward     unitary     status.            The   district         court   denied

relief, but we vacated that ruling, holding that the district

court erred when it failed to place the burden on the Board to

show that the 2011-12 student assignment plan moved the school

district toward unitary status.                 On remand, the Board filed a

motion requesting that the district court declare the school

district unitary.          After a five-day bench trial, the district

court     granted    the   Board’s      motion        and     dismissed       Plaintiffs’

request for an injunction as moot.

     We     conclude    that     the    district        court        acted    within     its

discretion     in    choosing      to    address        the     Board’s       motion     for

declaration     of     unitary    status       before       ruling      on    Plaintiffs’

motion for injunctive relief.                  And because the court did not

clearly err in determining that the school district is unitary,

we affirm.



                                          I.

                                          A.

        In January 1965, a group of plaintiffs representing black

students filed suit against the Pitt County Board of Education,

alleging     that    the   board       unlawfully       operated        and    maintained

racially    segregated      schools.           Teel    v.     Pitt    County     Board    of

Education, No. 6:65-CV-569 (E.D.N.C. filed Jan. 4, 1965).                                The

                                           4
district court entered an injunction restraining the Board from

refusing admission, assignment, or transfer of any student on

the basis of race.          The Board attempted to comply with the court

order     by     adopting    a   freedom-of-choice            plan,       which    allowed

students to choose the school they wished to attend.                          The plan,

however, resulted in only a small percentage of black students

attending       predominantly     white        schools.         As    a    result,     the

district court rejected it, ruling that it failed to advance the

Board’s        constitutional    duty     to        establish    a    unitary      school

district.        It took several more years for the Board to devise a

desegregation plan that met with the district court’s approval.

      A separate but substantially similar action came before the

district       court   in    November     1969.          Like    Teel,       Edwards    v.

Greenville City Board of Education, No. 6:69-CV-702 (E.D.N.C.

filed Nov. 12 1969), involved representatives of black students

asking the district court to enjoin the Greenville City school

board’s    continued        operation   of      a    racially    segregated        school

system.        Again, the district court granted the injunction.                       The

court rejected the board’s first proposed desegregation plan and

ordered it to submit a plan that achieved racial integration in

not     only     student     assignment,       but     also     faculty      and     staff

assignment,        extracurricular      activities,           and     transportation.

Shortly thereafter, the board submitted an amended plan that met

with both the plaintiffs’ and the court’s approval.

                                           5
     The district court continued to monitor the progress of the

desegregation plans until January 1972, when it issued orders

determining that the cases had been decided on the merits and

removed them from the pending docket, subject to being reopened

as circumstances warranted.          The cases remained administratively

closed for thirty-five years.           In the meantime, the two school

districts merged in 1986 and their separate boards of education

were replaced by a single, consolidated Board.

     The consolidated Board sought to reopen Teel and Edwards in

2008.      The   impetus    was   the   Board’s   adoption,    three    years

earlier,   of    a   new   student   assignment   plan   for   the     2006-07

academic year. 2     Under the then-existing attendance area policy,

the assignment plan considered students’ race, with the goal of

achieving a 70/30 3 racial balance in each school.              To achieve

this balance, the new plan relied on satellite attendance areas 4

and busing.




     2
        Only schools within the Greenville city                limits     were
subject to the 2006-07 student assignment plan.
     3
       By 70/30 racial balance, the Board intended no school to
have more than a seventy percent white or black population and
no less than a thirty percent black or white population.
     4
        Satellite attendance areas are created by attaching
“relatively homogenous neighborhoods of mostly one race” to
“non-contiguous school zones some distance away that need[] that
race for racial balance.” J.A. 802.



                                        6
       Objecting       to    the      explicit         use     of     race     in    student

assignment,      the     Association      filed        a     discrimination         complaint

with the United States Department of Education Office for Civil

Rights (the “OCR”).           While the complaint was pending, the Board

revised its attendance area policy, adding student achievement

and socioeconomic status as factors that, along with race, the

Board would consider when establishing student attendance areas.

       Ultimately, the Board and the OCR settled the complaint.

The settlement required the school district to seek a ruling

from the district court as to whether the desegregation orders

in Teel and Edwards authorized the Board to consider race in its

student assignment plan.              In accordance with the settlement, the

Board asked the district court to approve its 2006-07 student

assignment plan as well as its revised attendance area policy.

       In response, the district court reopened and consolidated

Teel   and     Edwards      and     re-captioned       the     new    action    under      its

current name.       In addition, the court allowed the Association to

intervene.        The Association then asked the district court to

reject both the 2006-07 student assignment plan and the revised

attendance area policy, and instead declare the school district

unitary.       Plaintiffs joined the Board in opposing the motion.

       After     court-ordered         mediation,          the      parties     reached      a

settlement.        The      Board    agreed       to   involve       Plaintiffs      and   the

Association in developing the next student assignment plan.                                 In

                                              7
exchange, the Association withdrew its motion for a declaration

of   unitary     status,      and   consented     to   the   Board’s    motion     for

approval of the 2006-07 student assignment plan and the revised

attendance area policy.              The parties also “pledge[d] to work

together to achieve” unitary status for the school district.

J.A. 195.

        The district court approved the settlement and entered a

consent order in November 2009.               The court’s order directed “the

parties    to    work    toward     attaining    unitary     status    so   that   the

court may relinquish jurisdiction over this case and restore to

the School Board full responsibility for the operation of its

schools.”       J.A. 204.

                                         B.

        In 2010, the Board began developing a student assignment

plan for the 2011-12 school year to accommodate the opening of a

new elementary school and the closing of an existing one.                          The

Board     worked       with   the     Operations       Research   and       Education

Laboratory of North Carolina State University (“OREd”) 5 to draw

up proposed attendance area maps.                 In designing the maps, the

Board     and   OREd    considered:     (1)     students’    proximity      to   their

      5
       OREd “is a non-profit organization that provides school
districts with scientific tools to project future enrollment, to
evaluate utilization of existing school facilities, to locate
placement of new schools, and to develop attendance boundaries.”
J.A. 492.



                                          8
assigned       schools;       (2)       building         capacity;       (3)     academic

proficiency; and (4) impact area 6.                Notably, academic proficiency

was     the    sole    diversity       input      factor       the   Board     used   when

designing      the    maps,     even    though     the    Board’s       attendance    area

policy permitted it to consider student race.

      The Board invited the Association and Plaintiffs to attend

two   workshop        retreats    to    solicit     their       input    regarding    the

proposed maps.          During the first retreat, the Board presented

two proposals.          The first proposed map considered only student

proximity       and     school         capacity     in      developing         attendance

boundaries (“Scenario 1”).               This map resulted in an increase in

racially identifiable schools, with six impacted schools falling

short     of   the    Board’s    target    student       proficiency       index.     The

second proposed map factored in student proficiency along with

proximity and school capacity (“Scenario 2”).                           It resulted in

increased student diversity, and a greater balance of student

proficiency levels across the impacted schools.                              Scenario 2,

unlike     Scenario     1,    required     the     use    of    satellite      attendance

areas and busing.

      After receiving input from the parties, the Board directed

OREd to generate a new map.                This map (“Scenario 3”) aimed to


      6
       Impact area refers to the location and number of school
attendance areas affected by the reassignment plan.



                                            9
limit satellite attendance areas, but still considered student

proficiency in an attempt to increase diversity.                    The proposed

map was then further modified based on community input.                        The

final Scenario 3 map resulted in schools that were more racially

diverse than in Scenario 1, but less diverse than Scenario 2.

It also required fewer satellite attendance areas than Scenario

2.   Over Plaintiffs’ objections, the Board adopted the Scenario

3 map as its 2011-12 student assignment plan.

        Plaintiffs moved to enjoin the implementation of the 2011-

12 plan, arguing that it created racially identifiable schools

and failed to move the district toward unitary status.                        The

district court denied the motion, ruling that Plaintiffs “ha[d]

not demonstrated a likelihood of success on the merits of their

claim        so    as    to    justify   the    extraordinary       relief    they

request[ed].”           Everett v. Juvenile Female 1, No. 6:69-CV-702-H,

2011 WL 3606539, at *2 (E.D.N.C. Aug. 16, 2011).

        On    appeal,     we   vacated   the   district   court’s    ruling    and

remanded.         We found that:

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




                                          10
Everett v. Pitt Cnty. Bd. of Educ., 678 F.3d 281, 290 (4th Cir.

2012).

     When the case returned to the district court, the Board

moved for a declaration of unitary status.                       After a five-day

bench trial, the district court ruled for the Board.                      It found

that,    even     before   the   1986     merger,     both       Pitt   County    and

Greenville City schools were unitary with respect to student

assignment.       The court also found that the consolidated school

district    was     now    unitary   in       terms   of    faculty     and      staff

assignment,       facilities,    transportation,           and     extracurricular

activities.

     The Board, said the district court, had proven that “the

vestiges of state-mandated discrimination practiced over forty

years ago have been eliminated to the extent practicable and

that the School Board, as well as its predecessor boards, has

complied in good faith with this court’s desegregation orders.”

Everett v. Pitt Cnty Bd. of Educ., No. 6:69-CV-702-H, slip op.

at 42 (E.D.N.C. Sept. 25, 2013).                Because the school district

was unitary in all respects, the court denied Plaintiffs’ motion

for injunctive relief as moot.            This appeal followed.



                                        II.

                                        A.



                                        11
       In Brown v. Board of Education, 347 U.S. 483 (1954) (Brown

I),     the    Supreme          Court   held         that     laws       mandating       racial

segregation        in    public      schools        violate       the    Equal     Protection

Clause of the Fourteenth Amendment.                          A year later, the Court

ordered those school boards operating racially segregated school

systems       to        “effectuate        a        transition           to    a     racially

nondiscriminatory school system.”                      Brown v. Bd. of Educ., 349

U.S. 294, 301 (1955) (Brown II).                       The federal district courts

were tasked with undertaking “such proceedings and enter[ing]

such    orders     and    decrees”      as     necessary       to       desegregate      school

districts with “all deliberate speed.”                      Id.

       Thirteen         years     later,       the     Court       clarified       that     the

“transition to a unitary, nonracial system of public education

was and is the ultimate end to be brought about” by Brown II.

Green v. Cnty. Sch. Bd. of New Kent Cnty., 391 U.S. 430, 436

(1968).       School boards operating “dual systems,” whereby black

children attend black schools and white children attend white

schools, retained “the affirmative duty to take whatever steps

might    be   necessary         to   convert     to    a    unitary       system    in    which

racial discrimination would be eliminated root and branch.”                                 Id.

at 437-38.

       Generally, courts “have used the terms ‘dual’ to denote a

school system which has engaged in intentional segregation of

students      by   race,    and      ‘unitary’       to     describe      a   school     system

                                               12
which has been brought into compliance with the command of the

Constitution.”            Bd. of Educ. of Okla. City Pub. Schs. v. Dowell,

498    U.S.    237,       246   (1991).                However,    the      Supreme     Court    has

declined       to     give      the        term    “unitary”           a    “fixed     meaning    or

content.”       Freeman v. Pitts, 503 U.S. 467, 487 (1992).                                 Rather,

the    Court        has    left       it     to        district    courts       overseeing       the

desegregation process to determine when a school district “no

longer discriminates between children on the basis of race.”

Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 318

(4th Cir. 2001).

       In making this determination, a district court considers

“whether      the     Board         [has]     complied        in       good    faith     with    the

desegregation         decree        since         it    was   entered,        and    whether     the

vestiges of past discrimination [have] been eliminated to the

extent practicable.”                Dowell, 498 U.S. at 249-50.                      Only when it

is    satisfied       that      a    school        district       is       operating    a   unitary

system may the court dissolve a desegregation order, thereby

relinquishing             its    supervisory              authority          over    the     school

district.       See id. at 246 (“If [a desegregation] decree is to be

terminated or dissolved, respondents as well as the school board

are entitled to a like statement from the court.”); Riddick by

Riddick v. Sch. Bd. of Norfolk, 784 F.2d 521, 530 (4th Cir.

1986) (“[The district court] is required to retain jurisdiction



                                                   13
until    it   determines       that   the        school     system    has     become

unitary.”).

     The district court’s “end purpose must be to remedy the

violation     and,   in    addition,     to       restore     state    and    local

authorities to the control of a school system that is operating

in compliance with the Constitution.”               Freeman, 503 U.S. at 489.

Indeed, “[r]eturning schools to the control of local authorities

at the earliest practicable date is essential to restore their

true accountability in our governmental system.”                Id. at 490.

                                       B.

     With these principles in mind, we consider the merits of

Plaintiffs’    legal   challenges.          We    first     address   Plaintiffs’

claim that the Board was estopped from seeking a retroactive

declaration    of    unitary    status      given    its    “numerous       judicial

admissions . . . that it had not attained unitary status at any

time prior to 2009.” 7         Appellant’s Br. at 36.            We reject this

contention.


     7
       Plaintiffs and the dissent assert (incorrectly) that the
district court determined that the school district was unitary
as of the mid-1980s.    In fact, the court found that the two
then-separate districts were unitary only as to student
assignment, see Everett v. Pitt Cnty. Bd. of Educ., No. 6:69-CV-
702-H, slip op. at 20, 23 (E.D.N.C. Sept. 25, 2013), which was
not sufficient to support a declaration of unitary status. The
court implicitly recognized this fact, as it went on to conclude
that the school district remained unitary with respect to
student assignment after the merger, and then conducted a
thorough examination of the remaining Green factors.     Yet, by
(Continued)
                                       14
      A judicial admission is a representation made by a party

that,      “unless     allowed       by    the    court    to    be    withdrawn,    is

conclusive in the case.”              Meyer v. Berkshire Life Ins. Co., 372

F.3d 261, 264 (4th Cir. 2004) (quoting Keller v. United States,

58 F.3d 1194, 1199 n.8 (7th Cir. 1995)).                        Judicial admissions

“go     to   matters        of     fact    which,      otherwise,      would    require

evidentiary proof.”              New Amsterdam Cas. Co. v. Waller, 323 F.2d

20,   24     (4th    Cir.    1963).        In    addition,      judicial      admissions

“include intentional and unambiguous waivers that release the

opposing party from its burden to prove the facts necessary to

establish the waived conclusion of law.”                     Minter v. Wells Fargo

Bank,      N.A.,     762    F.3d    339,    347     (4th   Cir.       2014)    (internal

quotation marks omitted).                  A purported judicial admission is

binding      only     if    the     statement     is    “deliberate,       clear,   and

unambiguous.”        Id.

      Included among the statements that Plaintiffs rely on as

examples of judicial admissions are the Board’s statements in

its motion for approval of the 2006-07 student assignment plan

and revised attendance area policy that the school district “was



determining that Plaintiffs’ motion to enjoin the 2011-12
student assignment plan was moot, the district court necessarily
found--even if it did not say so expressly--that the school
district was unitary at the time of the implementation of the
2011-12 plan.    As we explain, however, we do not think this
problematic.



                                            15
permitted to consider racial balance in student assignment under

Edwards and Teel,” and could “adopt a racial balance ratio and

otherwise . . . consider         race    as     a     factor”      in    its    student

assignment plans.      J.A. 90, 93, 95.               Plaintiffs also cite the

Board’s motion in support of the 2009 consent order in which the

Board acknowledged that “the Proposed Consent Order would not

dispose of the unitary status issue once and for all.”                                J.A.

178.

       These statements, however, merely acknowledged the judicial

reality on the ground, i.e. that the school district remained

subject to the district court’s desegregation orders until the

court declared the schools unitary.                    They fall far short of

deliberate,   clear,   and       unambiguous        admissions     that     the   Board

continued to operate a dual school district.

       In any event, Plaintiffs’ contention suffers from a more

fundamental   flaw.      Simply     put,      whether      a    school   district      is

unitary is not something that can be judicially admitted (or

denied); rather, it is entirely the province of the district

court to decide the issue.          This conclusion is compelled by our

decision in Belk.

       There, the school board insisted to the district court that

it “had not pursued the dismantlement of the dual system with

the    requisite   zeal.”        Belk,    269       F.3d   at    333.       The   court

nonetheless   declined      to   defer    to    the    board’s      claim      that    its

                                         16
school district was not unitary.                  Indeed, it highlighted several

reasons why the board might have wanted to remain subject to the

desegregation      orders,       including        avoiding    the      “long,    drawn-out

process” and expense involved with a unitary status hearing,

fears that it might lose eligibility for certain federal funding

should it be declared unitary, and a desire to continue racially

balancing its schools.            Id.    We approved of the district court’s

finding     on    this     issue,       concluding       that      a    school     board’s

representation      that    it    is     not   unitary       may    reflect     the    self-

interested desire of a board to use a desegregation order as a

“mechanism[] for the attainment of different goals.”                                  Id. at

334.

       Consequently, even if the Board in this case had admitted

that   it   continued       to    operate         a   dual   school      district,       the

district    court   was     under       no   obligation      to    treat     the   Board’s

statements as conclusive in deciding whether the school district

was unitary.

                                             C.

       Plaintiffs next contend that the district court violated

the “law of the case” by considering the unitary status question

before    first   deciding       whether       the    2011-12      student      assignment

plan moved the school district toward that status.                              The law of

the case doctrine “posits that when a court decides upon a rule

of law, that decision should continue to govern the same issues

                                             17
in subsequent stages in the same case.”                 Christianson v. Colt

Indus.    Operating     Corp.,   486    U.S.    800,    816   (1988)    (quoting

Arizona v. California, 460 U.S. 605, 618 (1983)).                   Once a court

has established the law of the case,

      it must be followed in all subsequent proceedings in
      the same case in the trial court or on a later
      appeal . . . unless: (1) a subsequent trial produces
      substantially   different  evidence,   (2)  controlling
      authority has since made a contrary decision of law
      applicable to the issue, or (3) the prior decision was
      clearly erroneous and would work manifest injustice.

United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999)

(internal quotation marks omitted).             Because we find the first

exception applicable here, we reject Plaintiffs’ contention.

      According to Plaintiffs, we established the law of the case

during the first appeal when we directed the district court to

place the evidentiary burden on the 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, 678 F.3d at 290.          Plaintiffs say that

the   district   court’s     finding     that    the    school      district   was

already unitary at the time of the implementation of the 2011-12

student assignment plan effectively ignores our prior holding.

      When we first considered this case, however, the only issue

decided by the district court was whether the 2011-12 student

assignment plan was consistent with the Board’s obligation to

                                       18
work   toward   attaining   unitary    status.       On   remand,    the    Board

moved for just such a declaration.            In response, the district

court held a trial during which the parties, for the first time,

presented evidence on that issue.          Once the district court took

evidence on the question, it was no longer bound by the law of

the case, but was instead free to determine whether the school

district was unitary.        Accordingly, we find no error in the

manner in which the district court elected to address the issues

before it.

                                      D.

       We turn now to the heart of Plaintiffs’ challenge to the

process by which the district court resolved this case.                       In

essence, Plaintiffs contend that the Board first had to prove

that   the   2011-12    student    assignment    plan     moved     the    school

district toward unitary status before the district court could

declare the schools unitary.          Plaintiffs say that by flipping

the issues--that is, by first declaring the schools unitary and

then   refusing,   on   mootness   grounds,     to   assess   the    merits    of

2011-12 student assignment plan--the district court improperly

gave the unitary status determination retroactive effect.                  We do

not agree.

                                      1.

       Plaintiffs contend that a declaration of unitary status is

effective only as of the date it is issued.                Therefore, until

                                      19
September       25,    2013    (the       date    of    the    district          court’s    order

declaring the school district unitary), any Board action had to

be     consistent      with        its    obligations         under    the       desegregation

orders,    and    the       later    2009      consent      order.         By     deciding       the

unitary     status         issue     before      evaluating         the     2011-12      student

assignment plan, Plaintiffs say that the district court made an

unlawful retroactive declaration of unitary status.

       It is of course true that, until declared unitary, a school

district retains a continuing duty to work toward eliminating

the vestiges of its past discrimination.                            Riddick, 784 F.2d at

535;    Vaughns       by    Vaughns       v.   Bd.     of   Educ.     of    Prince       George’s

Cnty., 758 F.2d 983, 988 (4th Cir. 1985) (“Until a school system

has discharged its duty to liquidate the dual system and replace

it with a unitary one, the school’s duty remains in place.”).

Whether     a    school       district         has     eliminated          the    vestiges       of

discrimination is judged against what are known as the Green

factors.        See Green v. Cnty. Sch. Bd. of New Kent Cnty., 391

U.S. 430 (1968).             Under Green, “a school district has achieved

unitary status when it is devoid of racial discrimination in

regard     to     faculty,          staff,       transportation,             extracurricular

activities,       facilities,            and   pupil    assignment.”              Sch.     Bd.    of

Richmond v. Baliles, 829 F.2d 1308, 1312 (4th Cir. 1987).

       A dual school district operates under a presumption “that

current disparities are causally related to prior segregation,

                                                 20
and   the   burden      of    proving    otherwise     rests   on     the    [school

board].”    Id. at 1311.        That presumption, however, ends when the

school has achieved unitary status, at which point the burden of

proof shifts back to the plaintiffs “to prove discriminatory

intent on the part of the school board of a unitary school

[district].”     Riddick, 782 F.2d at 537.

      Importantly,      the    burden    of   proof    shifts,      not     when   the

school district is declared unitary, but when the district court

determines it first achieved that status.                 This proposition is

exemplified     by   our     decision    in   School   Board     of   Richmond     v.

Baliles.    In that case, after a court-ordered freedom-of-choice

plan proved unsuccessful, the district court ordered the School

Board of the City of Richmond to implement a desegregation plan

that “required extensive busing of students, proximal geographic

zoning, pairing, clustering, satellites and racial balance among

faculty.”      Bradley v. Baliles, 639 F. Supp. 680, 682 (E.D. Va.

1986).

      Twelve    years    later,    the    board   came   before       the   district

court asking to be realigned as plaintiffs and to have certain

state officials, including the Governor of Virginia, joined as

defendants.      It argued that Virginia had “engaged in various

activities which contributed to the segregation that existed in”

Richmond Public Schools.           Id.     Consequently, the board “sought

to compel the state to fund remedial and compensatory programs

                                         21
to eliminate the lingering effects of the state’s former dual

system.”      Baliles, 829 F.2d at 1310.

       The district court found that Richmond Public Schools had

achieved       unitary    status     sometime    between        1972     and       1986.

Bradley, 639 F. Supp. at 687.               Because the school district had

become unitary, the court concluded that the burden had shifted

to the board to prove that any vestiges of past state-mandated

segregation remained in Richmond Public Schools.                       Id. at 689.

The court then proceeded to address and deny the board’s request

for relief.

       On appeal, we affirmed the district court’s shifting of the

burden.       Baliles, 829 F.2d at 1312.         Thus, Baliles demonstrates

that    a     district    court     may     assess     unitary     status      before

addressing the request for relief that brought the plaintiff

before the court in the first place.                 This is true, even though

the declaration may weaken (or even eliminate) the plaintiff’s

claim for relief.

       The only authority that Plaintiffs cite in support of their

claim that a unitary status determination cannot relate back is

Capacchione      v.   Charlotte-Mecklenburg          Schools,    57    F.    Supp.    2d

228, 285 (W.D.N.C. 1999), aff’d in part, rev’d in part by Belk,

269    F.3d    305.      There,    the    district    court     stated      that    “the

termination of court supervision today cannot ‘relate back’ to

an earlier time.”         Id.     However, in context, that statement was

                                          22
part of a larger discussion on whether school officials acting

pursuant to a court’s desegregation order enjoyed immunity from

damages.     Indeed, the court held that the school district “was

still under court order [and there was] no legal basis for a

finding    of    de    facto     unitary     status       that    would     abrogate        [the

district’s] immunity retroactively.”                    Id.

     This,       of    course,       must    be     the      case      given    the    “well-

established       insistence         that    those      who      are      subject     to    the

commands    of    an    injunctive          order    must     obey      those     commands.”

Pasadena    City      Bd.   of      Educ.    v.     Spangler,       427    U.S.      424,   439

(1976).     It follows that school officials, acting pursuant to

their obligations under a desegregation order, cannot be held

liable    for    damages       on    account       of   those       actions.          However,

Capacchione       has    little       relevance         here,       where      the    court’s

“retroactive”         unitary       status     declaration          merely      shifts      the

burden of proving discriminatory intent.

                                              2.

     The    district        court’s     decision        to    assess       unitary      status

first comports with its obligation to “restore state and local

authorities to the control of a school system that is operating

in compliance with the Constitution.”                     Freeman, 503 U.S. at 489.

The Supreme Court has repeatedly emphasized that district court

supervision is a “temporary measure.”                      Id.; Dowell, 498 U.S. at

247; see also Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 410

                                              23
(1977)    (“[O]ur        cases   have . . .          firmly       recognized      that       local

autonomy of school districts is a vital national tradition.”);

Milliken     v.    Bradley,       418    U.S.        717,       741   (1974)     (“No    single

tradition in public education is more deeply rooted than local

control over the operation of schools . . . .”).                                 It would be

anathema     to    the    goal    of    quickly       and       efficiently      returning      a

school    district        to   local    control       if     the      district    court      were

required to ignore its conviction that the Pitt County school

district is unitary, and instead analyze the 2011-12 student

assignment plan through a prism of state-mandated segregation

that no longer exists.

       We recognize that the district court declined altogether to

entertain      Plaintiffs’        request       for       injunctive      relief,       finding

that “an order enjoining the continued implementation of this

plan   would      be     pointless      since       the     school     district        has   been

declared unitary and no longer has an affirmative duty to ensure

that   its    policies         move    the    district          toward   unitary       status.”

Everett v. Pitt Cnty. Bd. of Educ., No. 6:69-CV-702-H, slip op.

at 40-41 (E.D.N.C. Sept. 25, 2013).                          Still, if Plaintiffs had

made     credible         allegations          that         the       Board      was     taking

intentionally          segregative            actions,          an     injunction        should

nonetheless issue.             But here, Plaintiffs’ request to enjoin the

2011-12      student      assignment          plan     depends         entirely    on        their

allegation        that    the    plan        “moves       the    district      further       from

                                               24
unitary status.”      J.A. 214.      Because the district court held

that the school district was unitary at the time of the plan’s

implementation    (and    has    remained      so),   it   did   not    err    in

dismissing Plaintiffs’ motion for injunctive relief as moot.



                                    III.

                                     A.

     Having determined that the district court did not err in

the manner in which it addressed the issues before it, we now

reach the merits of its finding that the school district is

unitary.   We review this determination for clear error.                  Belk,

269 F.3d at 317.     “A finding is clearly erroneous when, although

there is evidence to support it, on the entire evidence the

reviewing court is left with the definite and firm conviction

that a mistake has been committed.”               Id. at 317-18 (quoting

Faulconer v. Comm’r, 748 F.2d 890, 895 (4th Cir. 1984)).                 We may

not overturn the district court so long as its “unitary status

determination rests on a permissible view of the evidence,” even

if we might have ruled differently had we been sitting as the

trier of fact.      Id.     If the “district court’s account of the

evidence   is   plausible   in   light    of   the    record   viewed   in    its

entirety,” then we must affirm.           Id. at 319 (quoting Anderson v.

City of Bessemer City, 470 U.S. 564, 573-74 (1985)).



                                     25
      The    test   for     determining       whether       a     school      district      is

unitary     is   twofold.        The    district        court   must     find      that    the

school      district      has     “complied         in     good     faith       with       the

desegregation       decree      since   it    was       entered,”       and   it    must    be

satisfied that “the vestiges of past discrimination [have] been

eliminated to the extent practicable.”                    Dowell, 498 U.S. at 249-

50.     We have said previously that “[i]mplicit in the . . . term

‘practicable’ is ‘a reasonable limit on the duration of federal

supervision.’”       Belk, 269 F.3d at 318 (quoting Coal. to Save Our

Children v. State Bd. of Educ., 90 F.3d 752, 760 (3d Cir. 1996))

(alteration omitted).

      When deciding whether a school district has eliminated the

vestiges of past discrimination, the district court considers

the six Green factors: student assignment, faculty assignment,

staff    assignment,      transportation,           extracurricular           activities,

and facilities.         See Belk, 269 F.3d at 318-19 (citing Green, 391

U.S. at 435).       In addition, the court has discretion to consider

other factors not listed in Green.                 Freeman, 503 U.S. at 492-93.

      Before a school district is declared unitary, there is a

presumption that racial disparities in any of the Green factors

are   traceable     to    segregation.            Baliles,        829    F.2d      at   1311.

However, that presumption is overcome when a school district

demonstrates that racial disparities are a result, not of its

present     or   past    discrimination,          but    rather     external       factors,

                                             26
such   as    demographic         changes,     beyond       the    district’s     control.

Missouri      v.    Jenkins,        515    U.S.      70,    102     (1995);     Swann   v.

Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26 (1971); see

also NAACP v. Duval Cnty. Sch., 273 F.3d 960, 966 (11th Cir.

2001).      Moreover, “with the passage of time, the degree to which

racial      imbalances          continue      to     represent        vestiges     of     a

constitutional violation may diminish.”                          Freeman, 503 U.S. at

491.

       As we explain below, we find that the district court did

not    clearly      err    in     finding     that     the       school   district      has

eliminated the vestiges of its past discrimination.

                                             B.

                                             1.

       The first and “perhaps the most critical Green factor” is

whether      there        remains     any     racial        disparity      in     student

assignment.        See Belk, 269 F.3d at 319.                    When analyzing racial

imbalances     in    student        assignment,       district       courts     generally

compare the variance between an individual school’s ratio of

black students to white students to a broader measure of the

entire school district’s population of black students and white

students.     See id.

       The parties called competing expert witnesses to testify as

to the Board’s efforts to eliminate racial disparity in student

assignment.         The    Board’s        witness,    Dr.    David    Armor,     reviewed

                                             27
student enrollment data for the Pitt County schools (and the

Greenville City schools, pre-merger) from 1968 to 2011. 8                               To

determine    whether     the     schools          were    racially    balanced       post-

merger, Dr. Armor applied a plus-or-minus 20% variance comparing

the percentage of black students at a particular school to the

percentage of black students enrolled at that grade level (i.e.,

K-5, 6-8, 9-12).        Pre-merger, Dr. Armor compared the percentage

of   black   students     at        a     particular      school     to     the    overall

percentage of black students enrolled in the school district.

     Dr. Armor found that, pre-merger, the school boards were

successfully     able   to     desegregate          their    schools       and    maintain

racial balance.     He thus concluded that the school district was

unitary   with   respect       to       student    assignment,       even    before    the

merger.      Following     the          merger,    Pitt    County    saw     substantial

population growth with attendant demographic changes.                             Even so,

Dr. Armor found that twenty-six of the thirty-seven schools in

the district were racially balanced for twenty or more years,

and were also balanced as of the 2011-12 school year.




     8
       For the years 1968 to 1984, Dr. Armor only had access to
student enrollment data for even-numbered years.     We do not
believe that Dr. Armor’s lack of data for odd-numbered years
substantially undermines the credibility of his testimony and
report.   We also note that Plaintiffs’ expert relied on this
same data for her analysis.



                                             28
       On the other hand, Plaintiffs’ student assignment expert,

Dr.    Genevieve       Siegel-Hawley,    applied    a   plus-or-minus       15%

variance in comparing the share of black or white students at a

particular school to the district-wide share of black or white

students. 9      She found that, since 1987, an average of eight

schools were racially imbalanced each year.               By 2011, fourteen

schools were racially imbalanced.            Since 2001, three new schools

were built that opened with a racial imbalance.

       Overall, Dr. Siegel-Hawley concluded that “[d]ownturns in

levels of racial imbalance were quickly followed by increases,

indicating      that    [the   school   district]   did    not   sustain    an

effective desegregation program for more than a year.”                     J.A.

656.       Indeed, she testified that the 2011-12 student assignment

plan resulted in a post-merger high of 40% of students attending

a racially imbalanced school.            Thus, according to Dr. Siegel-

Hawley, the Board had failed to eliminate the vestiges of past

discrimination in regard to student assignment.

       The district court adopted Dr. Armor’s metrics and relied

primarily on his analysis in finding the school district unitary

with respect to student assignment.             First, it found that Dr.

       9
       Before the merger, Dr. Siegel-Hawley compared the white
population of an individual school to the white population of
the entire school district.      Post-merger, Dr. Siegel-Hawley
compared the black population of an individual school to that of
the entire school district.



                                        29
Armor’s      use    of     a    plus-or-minus        20%    variance       was      reasonable.

While we have previously specifically approved the plus-or-minus

15% variance that Dr. Siegel-Hawley applied, we have also noted

approvingly         that       higher      variances       have    been     used         by   other

courts.      See Belk, 269 F.3d at 319 (citing the plus-or-minus 20%

variance used in Manning v. Hillsborough County School Board,

244 F.3d 927, 935 (11th Cir. 2001)).

     Moreover,           the     district       court       found      that        Dr.    Armor’s

comparison         (post-merger)           of   an     individual          school’s           racial

composition to the student population of that particular grade

level was a superior metric to Dr. Siegel-Hawley’s comparison to

the student population of the school district as a whole.                                       The

court agreed         with       Dr.   Armor     “that      the    racial    composition          of

students      attending          elementary          schools      within       a     particular

district may be far different from the racial composition of

that district’s high schools.”                       Everett v. Pitt Cnty. Bd. of

Educ., No. 6:69-CV-702-H, slip op. at 14 (E.D.N.C. Sept. 25,

2013).

     We believe that the district court’s decision to rely on

Dr. Armor’s report and testimony was not clearly erroneous.                                     See

FTC v. Ross, 743 F.3d 886, 894 (4th Cir. 2014) (“In cases in

which    a   district          court’s      factual     findings       turn    on . . .         the

weighing      of    conflicting          evidence      during      a   bench       trial,      such

findings      are    entitled         to    even     greater      deference.”            (internal

                                                30
quotation marks omitted)).                And we agree with the district court

that, to the extent that racial imbalance remains an issue in

the school district, there is substantial evidence indicating

that it was caused by white students either leaving the public

school    system,        or    moving           to       more     racially       segregated

neighborhoods.

      The Supreme Court has been clear that school districts need

not   take    affirmative          measures        to    correct    racial       imbalances

caused   by    demographic          changes        once    they    have    remedied       the

effects of prior de jure segregation.                       Freeman, 503 U.S. at 494

(“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.”); Swann, 402

U.S. at 31-32.      Moreover, “[t]he continued existence of a small

number of one race schools within . . . a school district does

not   establish    in    and       of    itself      a    constitutional        violation.”

Riddick, 784 F.2d at 535.

      Here, the most striking instance of “white flight” came in

response to the Board’s aggressive 2006-07 student assignment

plan, which “used satellite school [attendance areas] and racial

balancing ratios in an effort to reduce the racial isolation of

elementary     schools        in        the   former       Greenville          City     school

district.”        J.A.    201.            The      implementation         of     that    plan

ultimately     resulted       in     a    significant           decline   in     the    white

                                              31
student population, much of which left the impacted schools for

private schools, home schooling, or other schools in the County.

     While the Board was under no duty to implement intensive

desegregation efforts given that many of the remaining racially

identifiable schools were a consequence of demographic shifts

within Greenville, its failed efforts at bringing greater racial

balance to Greenville City schools illustrate that any remaining

segregation in the school district is a consequence of outside

forces that cannot properly be attributed to the Board’s prior

discriminatory acts.        We therefore find no clear error in the

district court’s finding that the school district is unitary

with respect to student assignment.

                                        2.

     Next, we consider two Green factors together, faculty and

staff assignment.       Here, all of the Board’s data comes from 2004

and later.      Dr. Armor employed a variance of plus-or-minus 10%

to   compare    the     number   of    black   faculty   and   staff    at   an

individual     school    with    the   districtwide   percentage   of    black

faculty and staff. 10       He found that, since 2004, thirty-one out




     10
       Plaintiffs argue that there was no basis for Dr. Armor’s
use of the plus-or-minus 10% variance.       We have, however,
previously approved the use of an even greater variance--plus-
or-minus 15%--with respect to faculty assignment.     Belk, 269
F.3d at 326.



                                        32
of thirty-six schools maintained racial balance in faculty and

staff, or were only slightly imbalanced for one or two years.

       Furthermore, Dr. Armor testified that nearly all of the

schools during that time had a racially mixed administrative

staff.         In     addition,      the     former       district      superintendent

testified that she specifically considered the diversity that a

candidate for a vacant principal or assistant principal position

could offer to the school.                 The Board also introduced evidence

showing the efforts the district has made to recruit minority

teachers.      In short, the district court had sufficient evidence

before it to conclude that the Board undertook diligent efforts

that   ultimately         resulted    in    a    racially      diverse    faculty     and

administrative staff at its schools.

                                            3.

       The     next       Green    factor       we     consider    is    the     Board’s

maintenance         and     provision      of      adequate     school     facilities.

Plaintiffs do not say that the school district is not unitary

with respect to quality of facilities.                    Rather, they claim that

the    Board    failed      to     prove    that      siting   decisions       are   made

consistently        with     the    Board’s      obligation       to    eliminate     the

vestiges of past discrimination.                     The district court disagreed,

and we believe that it did not clearly err.

       The Board uses a Long Range Facility Plan to “strategically

locate schools where residential growth is anticipated.”                             J.A.

                                            33
1029.      It determines when improvements or new construction are

necessary based on the overall needs of the individual school

and the school district in general.                       Since 1990, the district

has worked with OREd to determine where to locate new schools.

OREd uses a computer model that determines the “optimal location

for    a   new     site    that     will    relieve      the    current    crowding   and

provide room for anticipated growth.”                      J.A. 2402.       The Board’s

evidence         adequately       demonstrates     that    new    schools     are   sited

according to the needs of the district overall, and that the

Board works with OREd in a race-neutral manner to make siting

decisions.

                                             4.

       We also discern no error in the district court’s finding

that       the     school     district        is    unitary        with     respect    to

transportation.           The school district provides bus service to all

eligible     students.            Students    qualify     for    bus   transportation,

regardless         of     race,     based    on    the    distance        between   their

residences and their assigned schools.                         Moreover, travel times

are actually longer for white and Hispanic students than for

black students.             Thus, we find no basis for questioning the

district court’s view that students receive transportation to

school on a racially nondiscriminatory basis.

                                             5.



                                             34
      Finally,        the    district         court    did     not     clearly         err    in

concluding that the school district is unitary with respect to

extracurricular activities.                   The Board’s evidence showed that

such activities are available in all schools, and there are no

race-based        barriers       to     participation.              Moreover,          students

throughout      the      district       are     adequately          informed      about      the

availability       of    extracurricular           activities.             Nor    are     there

financial    barriers        to   participation.               We    think       the    Board’s

evidence was sufficient for the district court to conclude that

the   district      is      unitary      with      respect     to     this       final    Green

factor. 11

                                              C.

      Our    analysis       of    the    Board’s       efforts        to    eliminate        the

vestiges     of    past      discrimination           to   the       extent       practicable

satisfies us that the district court did not clearly err in also

finding that the Board has complied in good faith with the Teel

and   Edwards      desegregation          orders.          A     school       district       can

demonstrate its good faith compliance by showing its “commitment

to a constitutional course of action [in which] its policies

      11
       Despite Plaintiffs’ urging, the district court refused to
consider disparity in student discipline as an ancillary factor
in addition to the Green factors.        We find no abuse of
discretion in this decision because there was not sufficient
evidence in the record demonstrating that the school district
targets black students for discipline or otherwise treats them
differently in disciplinary matters. See Belk, 269 F.3d at 332.



                                              35
form    a      consistent       pattern         of     lawful        conduct       directed     to

eliminating earlier violations.”                      Freeman, 503 U.S. at 491.                 We

agree with the district court that the Board has demonstrated

commendable       good     faith      in    complying          with       the   desegregation

orders.

       Indeed, we 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.                               And when this case

was reopened, it was as a consequence of a dispute regarding the

2006-07        student    assignment            plan     in     which       certain        parents

essentially argued that the Board went too far in its efforts to

desegregate the schools.                Moreover, in the proceedings leading

up to the district court’s 2009 consent order, Plaintiffs and

the Board were both aligned in opposition to the Association’s

motion for declaration of unitary status.

       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

                                                36
racial    imbalance      returned       over    the     succeeding      years,      the

respective      boards   consistently         took    measures    to    bring      their

schools back into balance.

       Post-merger,      the     consolidated          Board     used        satellite

attendance areas and busing to maintain racial balance.                             When

demographic factors caused an increase in racially identifiable

schools, the Board took reasonable steps to restore balance.

Ultimately, a substantial number of schools were able to achieve

racial balance, and maintain it as of the 2011-12 school year.

In short, we are convinced that the Board has acted in good

faith since the entry of the desegregation orders in 1970.                           We

therefore conclude that the district court did not clearly err

in finding that the Board satisfied this prong of the unitary

status inquiry.



                                         IV.

       In sum, the district court did not err by first determining

that   the    Pitt    County    school    district       is    unitary,      and    then

denying      Plaintiffs’    motion       to    enjoin     the    2011-12      student

assignment plan as moot.         And because the district court did not

clearly   err    in   finding    that    the    school    district      is    in    fact

unitary, the judgment of the district court is

                                                                             AFFIRMED.



                                         37
WYNN, Circuit Judge, dissenting:

       In 2010 parents of minor children attending schools in Pitt

County    and     the    Pitt     County      Coalition        for    Educating      Black

Children (“Appellants”) sought to enjoin implementation of the

Pitt   County     Board    of    Education’s         (“Board”)       2011-2012      student

assignment plan (“2011-2012 Plan”).                   Appellants alleged that the

2011-2012    Plan,      which    resulted       in    the   opening     of    a    racially

identifiable school and increased racial imbalance across the

school district, and which the Board’s own members described as

“disappointing . . . for racial balance,” J.A. 618, violated the

Board’s     obligations         under   controlling         desegregation          orders,

including a 2009 consent order that directed the Board to “work

toward attaining unitary status.”                J.A. 204.

       The first time the district court considered Appellants’

motion, it improperly placed the burden of proof on Appellants.

On appeal, we vacated the district court’s denial of the motion,

and    remanded    with    instructions         to     apply    the    Supreme      Court-

mandated presumption that any racial disparities in 2011-2012

Plan   resulted     from   the       School     Board’s     prior     unconstitutional

conduct   in    operating        a   racially        segregated      school       district.

Everett v. Pitt Cnty. Bd. of Educ., 678 F.3d 281, 288 (4th Cir.

2012) (“Everett I”).            We further held that the School Board bore

the burden of proving that the plan “moves the school district

toward unitary status” in compliance with a 2009 Consent Order

                                           38
issued by the district court.             Id.        To be sure, at the time of

the appeal in 2013, the Board did not dispute that it had yet to

obtain    unitary   status     and   thus      had    a   duty     to   eliminate      the

vestiges    of   past    discrimination         and       demonstrate      good      faith

compliance with prior desegregation orders.

     Our words, it would appear, have fallen upon deaf ears.

The district court expressly did not consider whether the Board

had met its burden with respect to the 2011-2012 Plan.                          Nor did

the court substantially take the plan into account when deciding

whether    the   Board   had   complied        in    good   faith       with   the    2009

Consent    Order.       Instead,     it   ruled      that    the    school     district

became unitary in 1986, and thus deemed the Board “released”

from the burden that we and the district court’s own prior order

said it had.     The district court concluded:

     Even assuming, arguendo, that the School Board is
     unable to meet its burden of proof as to the 2011-2012
     plan, an order enjoining the continued implementation
     of this plan would be pointless since the district
     court has been declared unitary and no longer has an
     affirmative duty to ensure that its policies move the
     district towards unitary status.

J.A. 568-569 (emphasis added).

     Yet how could the school district be declared unitary if it

never met “its burden of proof as to the 2011-2012 Plan”?                               As

Everett I stated, in no uncertain terms, satisfying this burden

was a condition precedent to the declaration of unitary status.



                                          39
      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.”        Erwin

Chemerinsky,      Separate   and   Unequal:      American       Public   Education

Today, 52 Am. U. L. Rev. 1461, 1461 (2003) (footnote omitted);

see also Lia B. Epperson, Resisting Retreat: The Struggle for

Equity in Educational Opportunity in the Post-Brown Era, 66 U.

Pitt. L. Rev. 131, 145 (2004) (“American public schools have

been steadily resegregating for more than a decade, dismantling

the   integrative      successes    of        hundreds     of    districts   that

experienced significant levels of integration in the wake of

Brown and its progeny.        Such racial isolation in public schools

is worse today than at any time in the last thirty years.”).

      Today the majority upholds the Board’s promulgation of a

student assignment plan that, Appellants argue, 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, 133 S. Ct. 2612, 2625-26 (2013), that “our

                                        40
Nation has made great strides” in ensuring the civil rights of

minorities since the 1960s, see J.A. 569, 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.                       League of Women Voters of N.

Carolina v. N. Carolina, 769 F.3d 224, 243 (4th Cir. 2014) cert.

denied,      No.    14-780,     2015     WL     1510878         (U.S.     Apr.     6,   2015).

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.” 1

      The     district        court’s         errors          here     are     twofold        and

interrelated:         First, the district court failed to consider the

effects     of     the   2011-2012       Plan      when       determining         whether    the

School      Board    complied      in    good       faith       with      prior    orders,      a

condition        precedent    to    the    district            court’s       declaration       of

unitary status.          Second, and relatedly, the district court gave

retroactive effect to its declaration of unitary status so as to

retroactively         release      the    Board          of    its     obligations          under

controlling desegregation orders in direct contravention of this

Court’s opinion in Everett I.                 The district court’s order should

not   be     affirmed.        It    should         be    vacated       and     remanded       for

proceedings         consistent     with       our       opinion      in      Everett    I     and

      1
          William Faulkner, Requiem for a Nun 92 (1951).



                                              41
controlling          Supreme    Court      precedent.              Accordingly,       I

respectfully dissent.


                                         I.

       The Supreme Court declared discrimination on the basis of

race    in    public    education     unconstitutional        in   1955,     yet,   the

“deliberate speed,” Brown v. Bd. of Educ. of Topeka, Kan., 349

U.S. 294, 301 (1955), of integration did not reach Pitt County,

North Carolina until 1970.              Two separate lawsuits filed in the

1960s    in    the    Eastern   District      of   North   Carolina     seeking     the

desegregation of Pitt County and Greenville City Schools, which

at the time were operated as two separate school systems.                           See

Teel    v.    Pitt     County   Board    of    Education,        Civ.   A.   No.    569

(E.D.N.C. filed August 10, 1970); Edwards v. Greenville City

Board of Education, Civ. A. No. 702 (E.D.N.C. filed July 7,

1970).        In     those   cases,   from     which   this      case   arises,     the

district court determined that Pitt County and Greenville City

Schools were operating racially segregated dual school districts

in violation of the Fourteenth Amendment.

       As     the    majority   describes,         after   the     school    systems’

proposed desegregation plans were finally approved, the Teel and

Edwards cases remained dormant for over three decades until the

Greenville Parents Association (“GPA”), a group of predominantly

white parents, filed a complaint with the U.S. Department of


                                         42
Education Office for Civil Rights, objecting to the Board’s use

of     race   in   its   student      assignment    plan    for     the    2006–2007

academic year.

       The    GPA’s    challenge   to    that    plan    culminated       in    a   2009

settlement to which Appellants and the Board were parties.                           The

settlement     recognized      that    the    parties    “believe    that       unitary

status for [Pitt County Schools] is a salutary goal, and all

parties pledge to work together to achieve that goal.”                              J.A.

195.     On November 4, 2009, the district court issued an order

approving the settlement (“2009 Consent Order”).                    In addition to

incorporating the terms of the parties’ settlement agreement,

the 2009 Consent Order further obligated the parties to “work

toward attaining unitary status so that the [district] court may

relinquish jurisdiction over this case and restore to the School

Board full responsibility for the operation of its schools.”

J.A. 204 (emphasis added).            The 2009 Consent Order also directed

the parties to submit, on or before December 31, 2012, “a report

detailing the School Board’s efforts and progress in achieving

unitary       status     and    eliminating        the     vestiges        of       past

discrimination to the extent practicable.”                J.A. 204.

       To assist in its formulation of the 2011-2012 Plan, the

Board enlisted the Operations Research and Education Laboratory

of North Carolina State University.              After considering the three

scenarios outlined in the majority opinion, in November 2010 the

                                         43
Board     settled         on     the     2011-2012          Plan.     Plaintiff’s          expert

testified      that       the    plan     adopted      by     the     Board    was     the    most

segregative option it considered.                            And even according to the

Board’s    expert’s          methodology,           three    schools—C.M.       Eppes,       South

Greenville, and G.R. Whitfield—became racially imbalanced as a

result    of     the      2011-2012          Plan.      Also,       Lakeforest        Elementary

opened    as     a   “racially         identifiable          school,”    with     nearly       80%

black enrollment.              J.A. 558.

      Some      of     the      Board’s       own     members       appeared     to     question

whether      the     2011-2012         Plan    was     consistent       with     the       Board’s

obligations          under       controlling          desegregation           orders.          For

instance, Board Member Tolmie, noting that the plan would open

Lakeforest         with      only      12%    white     enrollment        and     make       South

Greenville Elementary 17% white, found the plan “disappointing .

. . for racial balance.”                      J.A. 618.        He believed that “there

must be a better map for diversity.”                         J.A. 618.        Others believed

the   plan     would      compromise          opportunity       for    some     students       and

inhibit the district’s efforts to achieve unitary status.

      On April 19, 2011, Appellants filed a motion for injunctive

and      other       appropriate             relief         seeking      to      enjoin        the

implementation of the 2011-2012 Plan, arguing that it violated

the   Board’s        obligation         to    move     the    district        toward       unitary

status.        The district court construed Appellants’ motion as a

request      for     a    preliminary          injunction.             Because       the     court

                                                 44
determined        that       Appellants     had     failed      to    demonstrate    a

likelihood of success on the merits, it denied the motion.

       Appellants appealed to the Fourth Circuit, and this panel

vacated the decision and remanded, concluding that the district

court       had     improperly       placed       the     evidentiary    burden     on

Appellants.         Everett I, 678 F.3d at 289.            Specifically, we held:

       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.

Id. at 290.         We further noted that “the 2009 Consent Order does

not settle the core dispute that arose in the 1960s and 1970s,

namely, the School Board’s unconstitutional operation of a dual

school      system     and    its    continuing         affirmative   obligation    to

eliminate the vestiges of discrimination and move toward unitary

status.”      Id. at 290 n.8 (emphasis added).

       On    July    6,   2012,     the   Board    filed    a   motion   for   unitary

status, arguing that the school system was unitary as of 2000.

Over     Appellants’         objection,    the     district      court   decided    to

consider the Board’s motion for unitary status together with

Appellants’ remanded motion to enjoin the 2011-2012 Plan.

       The district court conducted a five-day bench trial in July

2013.       The Board’s expert, Dr. Armor, concluded that as of 1986,


                                            45
nearly     three    decades    ago,    Greenville     City    Schools       and   Pitt

County Schools had each obtained unitary status and that any

subsequent         imbalance    was      not    a     vestige       of     de     jure

discrimination, but rather was due to demographic changes.                          In

reliance on Dr. Armor’s testimony, the district court concluded

that prior to the 1986 merger, both the Greenville City Schools

and the Pitt County Board of Education successfully implemented

their court-ordered plans, fully desegregated all schools within

both districts, and maintained a high level of integration until

merger.

       The district court further concluded that post-merger, the

Board adopted policies to maintain racial balance and succeeded

in   the   vast     majority   of     schools   and   found     that      significant

demographic shifts had occurred in the post-merger period.                          In

this analysis, the district court only briefly mentioned the

2011–12 Plan.        Importantly, the district court acknowledged that

it made no effort to determine whether the Board met its burden

of demonstrating 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.”                  Id. at 290 n.8.

Rather, the court assumed that it did not, without deciding the

issue,     and    determined   that    Appellants’     motion       for    injunctive

relief was moot, stating:

                                         46
      Even assuming, arguendo, that the School Board is
      unable to meet its burden of proof as to the 2011-2012
      plan, an order enjoining the continued implementation
      of this plan would be pointless since the school
      district has been declared unitary and no longer has
      an affirmative duty to ensure that its policies move
      the district toward unitary status.

J.A. 568-569 (emphasis added). 2


                                         II.

                                           A.

      For   a   court    to    release      a   school    district     from   prior

desegregation orders, a school district must “comply in good

faith with [school desegregation orders].”                     Everett I, 678 F.3d

281   (citing   Bd.     of    Educ.   v.    Dowell,      498    U.S.   237,   248–50

(1991)).    In determining whether a school board has shown a good

faith commitment to prior desegregation orders, courts look to

whether the school board’s policies “form a consistent pattern

of lawful conduct directed to eliminating earlier violations.”

Freeman v. Pitts, 503 U.S. 467, 491 (1992).

      The Supreme Court has explained the rationale for requiring

a showing of good faith compliance:

      2
       Even the majority opinion concedes in footnote 7 that “by
determining that Plaintiffs’ motion to enjoin the 2011-12
student assignment plan was moot, the district court necessarily
found--even if it did not say so expressly--that the school
district was unitary at the time of the implementation of the
2011-12 plan,” and that the district court had found that the
two   then-separate  districts  were   unitary  as   to  student
assignment. Ante at 14.



                                           47
       A history of good-faith compliance is evidence that
       any current racial imbalance is not the product of a
       new de jure violation, and enables the district court
       to accept the school board’s representation that it
       has accepted the principle of racial equality and will
       not suffer intentional discrimination in the future.

Id. at 498-99.      The importance of the good faith requirement is

particularly salient in this case, where the parties entered

into a settlement in 2009, memorialized in the district court’s

2009   Consent     Order,      which     required      the    Board     to     move    the

district towards unitary status.                As a result of the settlement,

parents of school children forwent legal action in favor of a

cooperative      agreement       premised       on   the    Board’s     commitment      to

working towards the laudable goal of a racially balanced school

system.     Whether the board complied in good faith with that

directive would be undeniably probative of its commitment to

maintaining a racially balanced school system even after the

desegregation      orders        were    lifted       and    the      district        court

relinquished jurisdiction over the case.                     Such a determination

is   important    not   only     to     instill      confidence    in    the    district

court when it decides whether to release the district from its

purview,    but    also     to    the     stakeholders        in   this      litigation

consisting primarily of parents of minor school children.

       In concluding that the Board had complied in good faith

with prior desegregation orders, the district court found that

the pre-merged school systems had fully implemented the Teel and


                                           48
Edwards     orders      in   a     short       period        of    time        and    had        sought

faithfully       to     comply          with       those          orders        notwithstanding

considerable      demographic               shifts      in        the     district          in     the

intervening     years.        The       district        court      also        stated      that     the

Board’s reluctance to seek a declaration of unitary status was

evidence that the Board was committed to continued integration

of its schools.

      Yet the district court failed to substantially account for

the   Board’s    actions         in    the    wake      of   the        2009    Consent          Order.

Appellants      argue    that         the    Board’s     adoption          of    the       2011-2012

Plan, which came on the heels of the 2009 Consent Order and

resulted in more rather than fewer racially imbalanced schools

in    the    district        constituted           a    violation          of        the     Board’s

obligation to move towards unitary status under with the 2009

Order.       Indeed,     applying           Dr.    Armor’s         metrics       for       assessing

racial      imbalance,       C.M.       Eppes,         South       Greenville,             and    G.R.

Whitfield schools all became racially imbalanced as a result of

the 2011-2012 Plan.           Lakeforest Elementary opened as a racially

identifiable school with a black population of nearly 80%.                                           In

the view of Appellants’ expert, the plan adopted by the Board

was the most segregative option it considered.                                   Board members

questioned      whether      the       2011-2012        Plan       satisfied         the     Board’s

obligations to eliminate racial imbalance in its schools.                                         Board

Member Tolmie found the plan “disappointing . . . for racial

                                                  49
balance”     and    believed    that   “there   must   be    a   better   map    for

diversity.”        J.A. 618.   Others echoed similar sentiments.

      As has long been recognized, a court clearly errs when it

fails to consider substantial evidence contrary to its ultimate

finding.      Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361 (4th

Cir. 1983).         Given that the Board had alternatives available

that would result in higher levels of racial balance in the

district,     and     acted    with    full   awareness     of   the   regressive

impacts on the school district’s racial balance, the Board’s

decision to adopt that approach, at the very least, ought to

have received closer scrutiny from the district court.

       Thus, the district court’s finding that the Board complied

in good faith with prior desegregation orders should be vacated

and the case remanded for further consideration.

                                         B.

      What    is    perhaps    even    more   troubling     about   the   district

court’s decision is that by failing to consider the impacts of

the   2011-2012       Plan,     the    district    court      effectively       made

retroactive its declaration of unitary status.

      In Everett I, we stated:

      Even if we assume that the district court will fully
      consider the issue of unitary status in December 2012,
      this does not absolve the School Board from the burden
      of demonstrating to the district court, as Green v.
      Cnty. Sch. Bd., 391 U.S. 430 (1968), and its progeny
      require, that the 2011–2012 Assignment Plan moves the
      school district toward unitary status, particularly

                                         50
       where   this  plan   allegedly  causes   immediate                         and
       substantial adverse effects on students.

678 F.3d at 288.              We further explained, “Any other conclusion

would necessarily, but impermissibly, provide the School Board

with latitude to discriminate pending the resolution of some

future hearing.”          Id. at 288.               Cf. Capachione v. Charlotte-

Mecklenburg Bd. of Educ., 57 F. Supp. 2d 228, 285 (W.D.N.C.

1999) (“[A] unitary status determination is not retroactive, and

therefore,      the    termination       of    court     supervision      today     cannot

relate back to an earlier time.”).                      By declaring the district

unitary and its burden with respect to the 2011-2012 plan moot,

the district court has directly contravened our instructions.

That is precisely what the district court’s decision and the

majority’s      affirmance       of    that        decision    does     here.      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?

       The majority justifies its ruling by pointing to School

Board of Richmond v. Baliles, 829 F.2d 1308, 1312 (4th Cir.

1987),    yet     the     procedural          posture     of     this     case     differs

significantly from that of Baliles, particularly in light of the

2009    Consent       Order    in     this    case.       Moreover,       the     majority


                                              51
opinion’s reading of Baliles directly conflicts with our holding

in Everett I.          In Baliles, plaintiffs sought to force Virginia

to fund programs designed to eliminate vestiges of segregation.

The district court ruled that, because the school district had

already achieved unitary status as a factual matter, the burden

shifted to the plaintiffs to prove their case.                     639 F. Supp. at

687 & n.3 (citing Riddick v. Sch. Bd., 784 F.2d 521, 534, 538

(4th Cir. 1986)).

      This Court ruled in Everett I that the burden of proof

remained with the 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, 678 F.3d at 29.               The Board was further obligated to

demonstrate good faith compliance with prior orders including

the     2009        Consent   Order     which     immediately        preceded     the

promulgation of the 2011-2012 Plan.               Nothing in Baliles entitles

the district court to ignore that directive.



                                         III.

      In failing to fully address the impacts of the 2011-2012

Plan,    the    district      court    declined    to    determine      whether   the

School    Board       complied   in    good    faith    with    prior   orders,   and

retroactively         relieved   the    Board    of    obligations      under   those

                                          52
orders.   The   district   court’s    declaration   of   unitary   status

should be vacated, and this case remanded.          For the foregoing

reasons, I respectfully dissent.




                                 53
