                                                 Filed:    November 19, 1999


                     UNITED STATES COURT OF APPEALS

                         FOR THE FOURTH CIRCUIT


                                No. 98-2503
                              (CA-98-2797-AW)



Jeffrey Eisenberg, etc.,

                                                       Plaintiff - Appellant,

           versus


Montgomery County Public Schools, et al,

                                                   Defendants - Appellees.



                                   O R D E R



     The   court    amends   its   opinion     filed   October   6,   1999,   as

follows:

     On the cover sheet, section 3, line 3 -- the district court

number is corrected to read “CA-98-2797-AW.”

     On page 11, first full paragraph, line 12 -- the reference to

Tuttle “at 10-11" is corrected to read “at 11-12.”

     On page 13, first paragraph, line 4 -- the reference to Tuttle

“at 10" is corrected to read “at 11.”
                              - 2 -




     On page 14, first paragraph, line 1 -- the reference to Tuttle

“at 12 & n. 11" is corrected to read “at 11 & n. 10.”

     On page 17, first full paragraph, line 3 -- the reference to

Tuttle “at 12" is corrected to read “at 13.”

                                      For the Court - By Direction




                                       /s/ Patricia S. Connor
                                                Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEFFREY EISENBERG, on behalf of
Jacob Eisenberg,
Plaintiff-Appellant,

and

ELINOR MERBERG, on behalf of Jacob
Eisenberg,
Plaintiff,

v.

                                                               No. 98-2503
MONTGOMERY COUNTY PUBLIC
SCHOOLS; PAUL VANCE, Dr.,
Superintendent, in his official and
personal capacity; MONTGOMERY
COUNTY BOARD OF EDUCATION,
Members, in their official and
personal capacity,
Defendants-Appellees.

UNITED STATES OF AMERICA,
Amicus Curiae.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-98-2797-AW)

Argued: June 10, 1999

Decided: October 6, 1999

Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.

_________________________________________________________________
Reversed and remanded with instructions by published opinion. Judge
Widener wrote the opinion, in which Judge Niemeyer and Judge
Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Jeffrey Eisenberg, Silver Spring, Maryland, for Appel-
lant. Patricia Ann Brannan, HOGAN & HARTSON, L.L.P., Wash-
ington, D.C., for Appellees. Rebecca K. Troth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
Curiae. ON BRIEF: Maree F. Sneed, Audrey J. Anderson, HOGAN
& HARTSON, L.L.P., Washington, D.C.; Judith S. Bresler, REESE
& CARNEY, L.L.P., Columbia, Maryland, for Appellees. Bill Lann
Lee, Acting Assistant Attorney General, Mark L. Gross, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Amicus Curiae.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

The issue in this case is whether the Montgomery County Board of
Education may deny a student's request to transfer to a magnet school
because of his race. We hold that it may not.

Jacob Eisenberg appeals the district court's denial of his motion for
a preliminary injunction to compel his admittance to the math and sci-
ence magnet program at Rosemary Hills Elementary School. Jacob
originally applied for a transfer to Rosemary Hills Elementary School
for the 1998-99 school year, his first grade year, and was denied his
request by Montgomery County on May 15, 1998 due to the "impact
on diversity." Jacob is currently preparing to enter the second grade
at Glen Haven Elementary, his assigned school, based on his resi-
dence. On his transfer request application, Jacob identified his
racial/ethnic group as "White, not of Hispanic origin," and accord-
ingly, under Montgomery County's transfer policy, particularly its

                    2
"diversity profile,"1 he was not allowed to transfer out of Glen Haven
Elementary School. We reverse the district court's order denying
Jacob's motion for a preliminary injunction and remand this case for
action consistent with this opinion.

I.

Montgomery County educates more than 125,000 elementary and
secondary students enrolled at over 183 schools spread throughout
500 square miles. The County has never been subject to a court order
for desegregation,2 rather, Montgomery County by its voluntary
efforts dismantled the former segregated school system. One aspect
of its efforts included the implementation of magnet school programs,3
which would attract and retain diverse student enrollment on a volun-
tary basis to schools outside the area in which the student lives. A
magnet program emphasizing math and science is located at Rose-
_________________________________________________________________

1 The Superintendent, Dr. Paul L. Vance, stated in his August 6, 1998
letter regarding Jacob's Transfer Appeal that "[t]he diversity profile
group ... means that white students cannot transfer out of Glen Haven
Elementary School unless there is a unique hardship circumstance."

2 Likewise, there has never been a judicial finding of a constitutional
violation within Montgomery County's educational setting. In 1981,
however, the Office of Civil Rights investigated a parent's complaint
filed against Montgomery County alleging that it was"resegregating
Rosemary Hills Primary School by improperly approving student trans-
fers ... without the approval of the Quality Integrated Education team,"
thereby failing to prevent minority isolation at Rosemary Hills. Mont-
gomery County's transfer policy at issue here was adopted in response
to this complaint. The fact that Rosemary Hills was the subject of the
1981 action is entirely coincidental to, and has no relevance to, the fact
that the Rosemary Hills magnet school program is the subject of this
case.

3 Magnet programs offer enriched curricula emphasizing specific areas;
e.g., science, math, or a foreign language. In fact, admission to Rosemary
Hills magnet school is not based on merit. Montgomery County points
out that if Rosemary Hills receives more transfer requests than it has
seats, the names of the eligible students are placed in a lottery and
selected randomly. See County Br. at 9, n.4. This being true, Jacob would
not have been eligible for the lottery because he was not allowed to
transfer out of Glen Haven based on his race.

                    3
mary Hills Elementary School. Montgomery County permits volun-
tary transfers from an assigned school to another school under certain
circumstances as outlined in its School Transfer Information Booklet.4

Montgomery County considers, in stages, several factors in the
consideration of a voluntary transfer request: first, school stability;5
second, utilization/enrollment; third, diversity profile; and last, the
reason for the request. All of the transfer applications are considered
concurrently, and if the assigned school and the requested school are
ruled stable, the transfer request is reviewed for utiliza-
tion/enrollment. An underutilized school is operating below 80%
capacity and an overutilized school is operating above 100% capacity.
_________________________________________________________________

4 Throughout its Transfer Booklet and its briefs, Montgomery County
uses the terms "county-wide average," "average county-wide range," and
in one footnote in its Reply Brief, "one-and-one-half standard devia-
tions," to describe the method used to compare the racial/ethnic student
population in each particular school to that of other schools and to the
overall racial/ethnic student population enrolled in Montgomery County
Public Schools. These terms are interchangeably and indistinguishably
used by Montgomery County with no apparent recognition of the ordi-
nary true meanings of each term. For instance, an average is "exactly or
approximately the quotient obtained by dividing the sum total of a set of
figures by the number of figures." Webster's Ninth New Collegiate
Dictionary 119 (9th ed. 1985). A range is defined as "the difference
between the least and the greatest values of an attribute." Webster's
Ninth New Collegiate Dictionary 974 (9th ed. 1985); see also David W.
Barnes, Statistics as Proof 77 (1983) (explaining a range as "the distance
between the largest and smallest numbers."). A standard deviation "rep-
resents the typical [variation] from the mean or expected value for a pop-
ulation (or list of numbers)." David W. Barnes, Statistics as Proof 81
(1983). For our purposes in this opinion, we have assumed that each of
these terms refers to the actual percentage of students in a racial/ethnic
group within the student population enrolled in each of the Montgomery
County Public Schools, and, as well, the percentage of students in each
of the various racial/ethnic groups in the student population of the Mont-
gomery County Public Schools, taken as a whole.

5 Stability refers to whether the assigned school and the requested
school are undergoing a boundary change, consolidation, or renovation
that requires students to attend school at an alternative site or whether
either school is undergoing some other change that requires the enroll-
ment to remain stabilized.

                    4
The utilization factor for each school is determined prior to the receipt
of transfer requests and is indicated, for each school in the system, in
the Transfer Booklet. Overutilization or underutilization may affect a
transfer request, in fact, Montgomery County states that these transfer
request(s) usually will be denied.6 Along with utilization, enrollment
is considered to ensure that schools remain within the preferred range
of enrollment.7 If these factors are not a concern, Montgomery County
looks to the diversity of the student body of the assigned and the
requested schools.

A. Diversity Profile

According to the Transfer Booklet, "[t]ransfers that negatively
affect diversity are usually denied." Students are identified according
to their racial/ethnic group: African American, Asian, Hispanic, and
White. Montgomery County compares the countywide percentage for
each racial/ethnic group to the percentage of each group attending a
particular school, and also determines whether the percentage of each
racial/ethnic group in that school has either increased or decreased
over the past three years. Based on that information, Montgomery
County then assigns to each racial/ethnic group within each school a
diversity category.8

Categories 1 and 2 are reserved for the racial/ethnic group popula-
tions within a school, the percentages of which are higher than the
countywide percentage for that particular group. Category 1 refers to
racial groups, the percentage of which is higher than the countywide
percentage for that group and has increased over time rather than
_________________________________________________________________

6 Each school has an "O" or a "U" or a blank space (if the utilization
is optimal).

7 The preferred range of enrollment refers to the number of classes of
students per grade for elementary schools. For example, 2 to 4 classes of
students per grade is preferred in elementary schools. If a school with
sufficient capacity fails to meet [has fewer classes than] the preferred
range, transfers out of that school are usually not permitted.

8 If the percentage of the identified racial/ethnic group within a school
is within the countywide percentage for that group and is expected to
remain the same for the near future, that racial/ethnic group will not be
assigned a diversity category.

                       5
moved closer to the countywide percentage. Transfers usually will not
be permitted by a student into a school with a designated category 1
for his racial/ethnic group because his racial/ethnic group percentage
at that requested transfer school is already higher than the countywide
percentage. Category 2 refers to racial/ethnic populations which,
although higher than the countywide percentage, have tended to
decline over time. Some transfers are permitted into this group. Cate-
gories 3 and 4 indicate a racial/ethnic percentage within a school that
is below the countywide percentage. Category 3 is reserved for those
racial/ethnic groups, the percentage of which has tended to decline
over time; while category 4 includes those populations the percentage
of which has tended to increase. For example, "if a particular school
has had a declining white enrollment over the preceding three year
period and is substantially below the average [c]ounty-wide enroll-
ment of white students [a Category 3], the District may restrict trans-
fers of white students out of that school because they would
contribute to that school becoming racially isolated."9 County Br. at
7. As is the County's, the diversity profile for each school is
reevaluated and adjusted annually.

B. Jacob's Transfer Application

In March of 1998, Jacob's parents submitted a request that he be
transferred from Glen Haven to Rosemary Hills to begin the first
grade, reasoning that Jacob's "personal and academic potential"
would benefit from the school's math and science emphasis. His
transfer request was approved by his kindergarten teaching team.
Jacob, as a white student, was part of a category 3 group at Glen
_________________________________________________________________

9 Jacob faced this very situation. Glen Haven, his assigned school, and
Rosemary Hills, his requested school, had the following notations for uti-
lization and for diversity profile:

School     UtilizationAfrican- Asian Hispanic White
                      American
___________________________________________________________
Glen Haven Overutiliz. 1              1       3
___________________________________________________________
Rosemary                       3
Hills
___________________________________________________________


                    6
Haven Elementary School because at the time of Jacob's transfer
request, Glen Haven's student body was 24.1% white compared to the
Montgomery County-wide percentage of 53.4%, and the white enroll-
ment at Glen Haven dropped from 38.9% in 1994-95 to 24.1% in
1997-98. See Eisenberg v. Montgomery County Public Sch., 19 F.
Supp. 2d 449, 451 (D. Md. 1998). On May 15, 1998, his transfer was
denied. The sole reason given by Montgomery County for the denial
was "impact on diversity," that is to say because Jacob was white.
Jacob did not demonstrate a "unique personal hardship"10 to obtain an
exemption from the denial based on the negative impact on diversity.
The Eisenbergs submitted their appeal first to the Superintendent, and
then to the Board of Education, which denied the transfer request on
August 26, 1998.

Jacob's parents sought declaratory and injunctive relief as well as
damages on behalf of Jacob in the district court under 42 U.S.C.
§ 1983, the Equal Protection Clause, and under 42 U.S.C. § 2000(d).
The district court denied the Eisenbergs' motion for a preliminary
injunction on September 9, 1998 on the basis that the Eisenbergs
made an insufficient showing of likelihood of success on the merits.11
_________________________________________________________________

10 Five white students, out of 19 who applied, were permitted to trans-
fer out of Glen Haven for the 1998-99 school year on a personal hardship
basis. Four of these transfers were permitted because the transferring stu-
dent had a sibling already attending the requested school.

11 The district court applied the Fourth Circuit's standards for injunc-
tive relief, see Blackwelder Furniture Co. of Statesville, Inc. v. Seilig.
Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977), and first considered the
threat of irreparable harm to Jacob should the court not issue an injunc-
tion, and the likely harm to Montgomery County if an injunction should
be ordered, and then balanced these two interests. See Eisenberg, 19 F.
Supp. 2d at 452 (citing Manning v. Hunt, 119 F.3d 254, 263 (4th Cir.
1997)). Next, the court considered the likelihood that the plaintiff would
succeed on the merits noting that as the likelihood of harm to the defen-
dant increased, the burden on the plaintiff to demonstrate likelihood of
success also increased. See Eisenberg, 19 F. Supp. 2d at 452. Finally, the
court accounted for the public interest. See Eisenberg, 19 F. Supp. 2d at
452.

In this instance, the district court concluded that the balance of hard-
ships favored Montgomery County, though only slightly. Thus, the court
looked to the Eisenbergs to make a strong showing regarding their likeli-
hood of success on the merits. Finding none, the district court denied
their motion for preliminary injunction.

                    7
The district court concluded that Montgomery County's asserted
interests in both the diversity of its student body and avoidance of
potential segregative enrollment patterns were each sufficiently com-
pelling governmental interests to justify the transfer policy's race
based classifications under a "strict scrutiny" review applied in Equal
Protection cases.12 See Eisenberg, 19 F. Supp. 2d at 453-54. The dis-
trict court further concluded that the transfer policy had "been
designed as narrowly as possible while still furthering [Montgomery
County's] stated interests." Eisenberg, 19 F. Supp. 2d at 455.

Following the denial of the preliminary injunction, the Eisenbergs
appealed to this court and Jacob entered the first grade at his assigned
school, Glen Haven. We review the denial of the preliminary injunc-
tion de novo since the district court based its decision solely on a
premise and interpretation of the applicable rule of law and the facts
are established. See Williams v. United States Merit Sys. Protection
Bd., 15 F.3d 46, 48 (4th Cir. 1994).

II.

"Race is the perpetual American dilemma." J. H. Wilkinson, III,
From Brown to Bakke 8 (1979). Once again, we find ourselves
addressing a most difficult issue in the familiar setting of our public
schools. The facts also appear all too familiar-- a child has been
denied access to a state funded educational opportunity because of the
color of his skin.13 In this case there is no denial that racial classifica-
tions result in the denial of a certain number of transfers because
Montgomery County fears racial imbalance within its schools, and to
_________________________________________________________________

12 The district court said that it applied the strict scrutiny review fash-
ioned in Richmond v. Croson, 488 U.S. 469, 493 (1989) (plurality opin-
ion). "A challenged policy or decision can survive such `strict scrutiny'
review only if it is justified by a `compelling governmental interest' and
is `narrowly tailored' to accomplish that goal." Eisenberg, 19 F. Supp.
2d at 452.

13 Although the Montgomery County transfer policy uses the same
method in considering all students within all racial/ethnic groups, at the
individual school level, an African American student may be denied
access due to his category designation, where a White student would be
granted his transfer request, and vice versa.

                    8
combat this potential problem, Montgomery County employs a race-
conscious nonremedial transfer policy which amounts to racial bal-
ancing.

A.

Initially, the district court erred when it failed to adhere to, or even
to mention, the presumption against race based classifications. See
Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 272 (1979)
("racial classification, regardless of purported motivation, is presump-
tively invalid and can be upheld only on extraordinary justification.").
In Podberesky v. Kirwan, (Podberesky II), a case involving an exclu-
sively African-American scholarship program at the University of
Maryland, we emphasized that presumption and "the constitutional
premise that race is an impermissible arbiter of human fortunes," even
when using race as a "reparational device" or as a "remedial measure"
for past discrimination. 38 F.3d 147, 152 (4th Cir. 1994), cert. denied,
Kirwan v. Podberesky, 514 U.S. 1128 (1995); Maryland Troopers
Ass'n, Inc. v. Evans, 993 F.2d 1072, 1076 (4th Cir. 1993). In accor-
dance with that principle, we concluded that government institutions
that choose to employ racial classifications face"the presumption that
[such a] choice can not be sustained." Podberesky II, 38 F.3d at 152.
Montgomery County was burdened with this presumption, and
although the district court analyzed the transfer policy under strict
scrutiny review, it failed to take the presumption into account when
it denied Jacob's request for a preliminary injunction. There is noth-
ing in the record to overcome this presumption.

B.

It is undisputed that the transfer policy considers race as the sole
determining factor, absent a "unique personal hardship," if the
assigned school and the requested school are both stable and their uti-
lization/enrollment factor are acceptable for transfers. While whites
and non-whites are not singled out for different treatment, they are all
subject to being denied a transfer request solely on the basis of their
race. Any racial classification, including that present here, must sur-
vive strict scrutiny review; failing such review manifests a violation
of Jacob's constitutional rights.14 See Adarand Constructors, Inc. v.
_________________________________________________________________

14 In its review of Jacob's asserted irreparable harm, the district court
stated that, if proven, a violation of Jacob's constitutional rights consti-

                     9
Pena, 515 U.S. 200, 227 (1995). Strict scrutiny review requires the
racial classification to serve a compelling governmental interest and
be narrowly tailored to achieve that interest. See Adarand, 515 U.S.
at 227. The diversity profile factor of the transfer policy employs such
racial classifications which "are simply too pernicious to permit any
but the most exact connection between justification and classifica-
tion." Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 (1986)
(quoting Fullilove v. Klutznick, 448 U.S. 448, 537 (1980) (Stevens, J.,
dissenting)).

The district court's determination that the Eisenbergs did not have
a strong likelihood of success on the merits stemmed from its strict
scrutiny review. The district court labeled its review as exacting and
determined that each of the two interests advanced by Montgomery
County were sufficiently compelling; the first interest in avoiding the
creation of segregative enrollment by racial isolation, and the second
interest in promoting a diverse student population. See Eisenberg, 19
F. Supp. 2d at 452-55. A further examination of these two interests,
and application of this court's reasoning in our recent case regarding
racial classifications within an elementary school setting, Tuttle v.
Arlington County Sch. Bd., No. 98-1604 (4th Cir. Sept. 24, 1999),
reveals that Montgomery County's transfer policy cannot pass consti-
tutional muster.

Moreover, we believe the district court erred in its finding that the
Eisenbergs are not likely to succeed on the merits, given that the
record demonstrates that Montgomery County's transfer policy is not
a remedial race-conscious policy. See Eisenberg, 19 F. Supp. 2d at
451-52. Montgomery County has never been under a court order to
desegregate, having acted voluntarily to dismantle segregation after
the Supreme Court's decision in Brown v. Board of Educ., 347 U.S.
483 (1954). See Eisenberg v. Montgomery County Public Sch., 19 F.
Supp. 2d at 451; County Br. at 4. Montgomery County formed a
_________________________________________________________________

tutes per se irreparable harm. See Eisenberg, 19 F. Supp. 2d at 452 (cit-
ing Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978); Henry v.
Greenville Airport Comm'n, 284 F.2d 631, 632-33 (4th Cir. 1960)). The
district court found the irreparable harm to be slight and balanced the
hardships in favor of Montgomery County.

                    10
Quality Integrated Education policy in 1975,15 and the present transfer
policy reflects the Quality Integrated Education policy goals of
"avoiding racial isolation and promoting diverse enrollments." See
County Br. at 4. Notwithstanding that race based classifications have
been tolerated in situations where past constitutional violations
require race based remedial action, see Swann v. Charlotte Mecklen-
burg Bd. of Educ., 402 U.S. 1 (1971); Brewer v. School Bd. of City
of Norfolk, 456 F.2d 943 (4th Cir.), cert. denied, School Bd. of City
of Norfolk v. Brewer, 406 U.S. 933 (1972), we do not face that type
of scenario in this case. No court has ever made a finding that Mont-
gomery County Public Schools were not unitary, therefore, the trans-
fer policy does not correct any past constitutional violations.

III.

We next examine whether a compelling governmental interest
exists. Although Montgomery County advances two interests, each of
which it argues constitutes a sufficiently compelling state interest
under strict scrutiny, we are of opinion that, despite the different
nomenclature, these interests are one and the same. 16 See Brewer v.
West Irondequoit Cent. Sch. Dist., 32 F. Supp. 2d 619, 627
(W.D.N.Y. 1999) (describing the avoidance of racial isolation as "a
negatively-phrased expression for attaining the opposite of racial iso-
lation which is racial diversity."). Tuttle notes that whether diversity
is a compelling governmental interest remains unresolved, and in this
case, we also choose to leave it unresolved. See Tuttle, No. 98-1604,
slip op. at 11-12 (4th Cir. Sept. 24, 1999); but see Hopwood v. Texas,
78 F.3d 932, 944 (5th Cir. 1996), reh'g en banc denied, 84 F.3d 720
_________________________________________________________________

15 Montgomery County asserts that the Quality Integrated Education
policy was part of the voluntary effort to support integrated schools. This
policy was adopted more than 20 years after Brown, and we note that
today, over 45 years have passed since Brown.

We especially note that at about the time of inception of the transfer
policy, 1981, a complaint of the U. S. Department of Education was that
the "racial balance" was being upset in certain schools by the county
transfer policy. This was prior to Freeman, infra, of course.

16 The district court considered each interest separately and concluded
that each was sufficiently compelling to justify the questioned policy.
See Eisenberg, 19 F. Supp. 2d at 453-54.

                    11
(5th Cir.), cert. denied, 518 U.S. 1033 (1996) (holding that "consider-
ation of race or ethnicity by the [University of Texas] law school for
the purposes of achieving a diverse student body is not a compelling
interest under the Fourteenth Amendment."). We will assume, without
holding, as the Tuttle court assumed,17 that diversity may be a compel-
ling governmental interest, and proceed to examine whether the trans-
fer policy is narrowly tailored to achieve diversity. See Tuttle, No. 98-
1604, slip op. at 11-12 (4th Cir. Sept. 24, 1999). No inference may
here be taken that we are of opinion that racial diversity is a compel-
ling governmental interest.

The present case and Tuttle are nearly indistinguishable in that both
involve public school policies, here the Montgomery County transfer
policy and in Tuttle, the Arlington County admissions policy for the
Arlington Traditional School, in place "not to remedy past discrimina-
tion, but rather to promote racial [and] ethnic" diversity. Tuttle, No.
98-1604, slip op. at 3 (4th Cir. Sept. 24, 1999). Even in the remedial
_________________________________________________________________

17 The First Circuit assumed that diversity may suffice as compelling
without so holding, see Wessmann v. Gittens, 160 F.3d 790 (1st Cir.
1998) (declining to decide, in the context of a race based admissions pro-
gram to one of Boston's better public secondary schools, that diversity
can never be a compelling state interest but, instead, determining that it
was not narrowly tailored to achieve the desired end). Other circuits have
faced related issues in different circumstances, see Taxman v. Board of
Educ. of the Township of Piscataway, 91 F.3d 1547 (3d Cir. 1996)
(refusing to find support in the Court's Equal Protection cases for the
notion that diversity or affirmative action were sufficient justifications
for making race a factor in the termination decision of one of two equally
qualified teachers in a nonremedial situation under Title VII); Lutheran
Church-Missouri Synod v. Federal Communications Comm'n, 141 F.3d
344 (D.C. Cir. 1998) (holding that "diversity of programming" was an
insufficient justification to uphold aspects of the FCC's licensing pro-
gram (which, in essence, pressured stations to maintain a workforce that
mirrored the racial composition of their area) under strict scrutiny's com-
pelling state interest test); McNamara v. City of Chicago; 138 F.3d 1219,
1222 (7th Cir. 1998) (referring to the issue as unsettled.). We should not
leave the various opinions of the courts of appeal without noting that
Lutheran Church also reasoned that ". . . it is impossible to conclude that
the government's interest, no matter how articulated, is a compelling
one." 141 F.3d at 355.

                    12
context, where the state-sponsored program or policy exists to remedy
the proximately caused present effects of past discrimination, we have
not decided the question of whether diversity is a compelling govern-
mental interest. See Tuttle, No. 98-1604, slip op. at 11 n. 7 (4th Cir.
Sept. 24, 1999) (citing Alexander v. Esteep, 95 F.3d 312, 316 (4th Cir.
1996); Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d
207, 213 (4th Cir. 1993) (holding that there was insufficient evidence
to prove that race based promotion to achieve racial diversity was a
compelling interest); Podberesky v. Kirwan, 956 F.2d 52, 56 n.4 (4th
Cir. 1992) (Podberesky I)). Similarly, the Supreme Court has not
decided this issue. See Regents of Univ. of California v. Bakke, 438
U.S. 265, 269 (1978). We thus do not decide that racial/ethnic diver-
sity is a compelling state interest and proceed to the second part of
the strict scrutiny analysis.

IV.

This court's mention of Bakke in Talbert v. City of Richmond18
does not lead us to conclude that Montgomery County's use of racial
classifications in its transfer decisions is narrowly tailored to the inter-
est of obtaining diversity. In fact, we find that it is mere racial balanc-
ing in a pure form, even at its inception. The County annually
ascertains the percentage of enrolled public school students by race
on a countywide basis, and then does the same for each school. It then
assigns a numbered category for each race at each school, and admin-
isters the transfer policy so that the race and percentage in each school
to which students are assigned by residence is compared to the per-
centage of that race in the countywide system. The transfer policy is
administered with an end toward maintaining this percentage of racial
balance in each school. This is, by definition, racial balancing. As we
have only recently held in Tuttle "[s]uch nonremedial racial balancing
_________________________________________________________________

18 Talbert v. City of Richmond, 648 F.2d 925, 931 (4th Cir. 1981),
involved police officer promotion and stated that "the attainment of
racial diversity in the top ranks of the police department was a legitimate
interest of the city." In Hayes v. North State Law Enforcement Officers
Ass'n, 10 F.3d 207 (4th Cir. 1993), however, we held that legitimate is
not necessarily compelling. 10 F.3d at 213 ("We did not determine that
the interest was sufficiently `compelling' to justify racial classifications
under the strict scrutiny standard.").

                     13
is unconstitutional." Tuttle, No. 98-1604, slip op. at 13 & n.10 (4th
Cir. Sept. 24, 1999). Montgomery County's transfer policy, at its
inception, was to "further provide[ ] for transfers ... providing that the
transfer does not adversely affect the racial balance in either the
sending or the receiving school." Letter from U. S. Department of
Education to Superintendent Andrews, Feb. 28, 1981 (italics added).
Although the transfer policy does not necessarily apply "hard and fast
quotas,"19 its goal of keeping certain percentages of racial/ethnic
groups within each school to ensure diversity is racial balancing.20

The Court dealt with the issue of nonremedial racial pupil assign-
ment in both Pasadena Bd. of Educ. v. Spangler, 427 U.S. 424
(1976), and Freeman v. Pitts, 503 U.S. 467 (1992). In Spangler, the
Supreme Court affirmed the Ninth Circuit's finding that it would be
beyond the remedial authority of the district court to require the
annual readjustment of school attendance zones to counteract changes
in the racial makeup of the schools.21 See Spangler, 427 U.S. at 436.
_________________________________________________________________

19 The district court pointed to the fact that some transfers are allowed
based on "personal hardship and family unity" as evidence that the trans-
fer policy was not rigidly applied. See Eisenberg, 19 F. Supp. 2d at 455.
This does not detract from the wrong done by denial of a transfer, as
here, on the basis of race.

20 Although the district court decided that, in its opinion, diversity was
a compelling governmental interest, its finding that "the [county] does
not apply hard and fast quotas" is a tacit acknowledgment that if such
were the case, its decision would have been different. Eisenberg, 19 F.
Supp. 2d at 454. The fact that, for any reason personal to him, only a dis-
tinct personal hardship can save any student, regardless of his race, from
having his transfer request decided on the basis of race, makes it tempt-
ing to decide the general question of whether or not diversity is a com-
pelling governmental interest. However persuasive the arguments, and
however tantalizing the facts in this case are, we resist that temptation
and do not decide the question because it is not absolutely necessary to
our decision. See Ashwander v. TVA, 297 U.S. 288, 341, 346-47 (1936)
(Brandeis, J., concurring).

21 Clearly, Montgomery County has not been found to initially assign
students to schools based on race, rather students are assigned by resi-
dence. Nonetheless, Montgomery County is attempting to keep schools
racially balanced by controlling and monitoring transfers. Jacob's request
to transfer to Rosemary Hills is one of them.

                     14
In the Ninth Circuit's subsequent opinion in Spangler v. Pasadena
Bd. of Educ., the court recognized the Supreme Court's emphasis on
the idea "that when a large percentage of minority students in a neigh-
borhood school results from housing patterns for which school
authorities are not responsible, the school board may not be charged
with unconstitutional discrimination if a racially neutral assignment
method is adopted." 611 F.2d 1239, 1244 (9th Cir. 1979). Thus, in the
situation before us, if racial isolation, meaning low or high percent-
ages of either racial minorities or non-minorities may be feared
because transfer requests are granted to students when the assigned
and requested schools are both stable and at appropriate utilization
levels, any found racial imbalance would not be a vestige of a prior
de jure system. If racial imbalance occurs in some of the Montgomery
County schools because students like Jacob, for example, are permit-
ted to transfer to magnet schools to get a better education, any racial
or ethnic imbalance is a product of "private choices [and] it does not
have constitutional implications." Freeman v. Pitts, 503 U.S. 467, 495
(1992).

In Freeman, racial disparities surfaced because of great growth in
the DeKalb area after 1986; from 70,000 to 450,000 and the attraction
of African-Americans to the area contributed to a racial imbalance
within the school district after the district had been declared unitary
in the student assignment area. 503 U.S. at 480. In this case, Mont-
gomery County has implemented magnet schools to attract students
of all racial/ethnic backgrounds to be a part of a different learning
environment. Predictably, students of all backgrounds are attracted to
the magnet school and, as a result, racial imbalance may then occur
in some other schools, if it occurs at all. A potential racial imbalance
does not, however, justify the transfer policy's use of race as a factor
to determine eligibility for transfers.22

The fact that the "County engages in periodic review ... [and the]
diversity profile for each school is reviewed and adjusted" each year
to avoid the facilitation and the creation of a racially isolated environ-
ment does not make the policy narrowly tailored. See Eisenberg, 19
_________________________________________________________________

22 Montgomery County is not required to grant transfers, but nonethe-
less, it may not refuse to grant such requests to achieve a racial makeup
in each school mirroring the county's racial makeup.

                    15
F. Supp. 2d at 455. Instead, it manifests Montgomery County's
attempt to regulate transfer spots to achieve the racial balance or
makeup that most closely reflects the percentage of the various races
in the county's public school population. Periodic review does not
make the transfer policy more narrow. Similarly, because a student
may be granted a transfer request because he can demonstrate a
unique personal hardship23 does not limit or narrow the transfer policy
so that racial balancing is suddenly a narrow fit to achieve diversity.
It is true that the racial/ethnic background is not the only factor in
transfer request considerations, however, in Jacob's situation, his race
was the only factor that led to the denial of his request. Montgomery
County admits that it denies transfer requests solely on the basis of
race, absent personal hardship, "where the consideration of the
racial/ethnic diversity factor is reached" and the transfer would con-
tribute to racial isolation. County Br. at 8.

In Tuttle, one of the reasons for holding that the admissions policy
in question in that case was invalid was that it "skew[ed] the odds of
selection in favor of certain minorities." No. 98-1604, slip op. at 15
(4th Cir. Sept. 24, 1999). The Montgomery County transfer policy
does not allow every applicant for a transfer to be eligible for every
available spot. Here Rosemary Hills was stable and was not overutil-
ized and Glen Haven was stable and overutilized, yet spots at Rose-
mary Hills were foreclosed to Jacob simply because Glen Haven's
percentage of white school population would decrease, which would
cause a greater departure from the countywide percentage for the
white student population. If Jacob had been African-American or
Asian or Hispanic, he would have been granted his transfer request
from Glen Haven to Rosemary Hills because his transfer would not
have caused a racial imbalance at Glen Haven. It does not matter that,
as the County argues, "at some schools, African-Americans are gener-
ally not allowed to transfer out" and that the"policy does not single
out whites, African-Americans, or other minorities," a denial of trans-
fer to African-Americans or other minorities on account of their race
is no less unconstitutional than the denial to Jacob was here. An
example makes clear the evil of the system in place. Suppose an
_________________________________________________________________

23 The personal hardship exemption, among other things, refers to
allowing a transfer to keep siblings in the same school and ease the bur-
den on families.

                    16
African-American and an Hispanic student at Travilah Elementary
School (J.A. 20) wanted to transfer to Rosemary Hills (J.A. 20) to
participate in the magnet program of math and science and get a better
education. Their diversity profile numbers being category 3, the same
as Jacob's, their transfers would likewise have been refused because
of their race. The fact that these two theoretical students would have
been unconstitutionally denied a transfer does not ameliorate the fact
that Jacob's denial was invalid. As Justice Scalia put it in his concur-
ring opinion in Adarand:

          Individuals who have been wronged by such unlawful racial
          discrimination should be made whole; but, under our Con-
          stitution, there can be no such thing as either a creditor or
          debtor race. That concept is alien to the Constitution's focus
          upon the individual. . . .

515 U.S. at 239.

V.

To summarize, Montgomery County's transfer policy here in ques-
tion is engaging in racial balancing, which we have just held to be
unconstitutional in Tuttle. In Tuttle, No. 98-1604, slip op. at 13 (4th
Cir. Sept. 24, 1999), and Podberesky v. Kirwan, 38 F.3d 147, 160 (4th
Cir. 1994), we also held that racial balancing was not a narrowly tai-
lored remedy. Therefore, even if we went no further, the complained
of action on the part of Montgomery County would have to be invali-
dated because it was giving effect to an unconstitutional policy.

But that is not all. Added to the racial balancing is the fact that
Jacob's transfer request was refused because of his race. As we have
pointed out, such race based governmental actions are presumed to be
invalid and are subject to strict scrutiny. Nothing in this record over-
comes that presumption.

On remand the district court will forthwith enter its preliminary
injunction requiring the school authorities in Montgomery County to
admit Jacob to the Rosemary Hills Elementary School magnet pro-
gram to which he had applied. Following that, the district court will

                    17
enter its final injunction requiring the school authorities in Montgom-
ery County to reconsider the application of Jacob to transfer to the
Rosemary Hills Elementary School magnet program without consid-
eration of his race. Such consideration will re-examine that request
for admission "as of the date it was made." Podberesky II, 38 F.3d at
162.

We are justified in requiring the entry of an injunction finally dis-
posing of this case without an evidentiary hearing because the record
clearly establishes the plaintiff's right to an injunction and such a
hearing would not have altered the result. See Lone Star Steakhouse
& Saloon v. Alpha of Virginia, 43 F.3d 922, 938 (4th Cir. 1995). This
is so because no fact on which we have based our opinion is chal-
lenged and in this case we have the compound constitutional wrongs
of an invalid racially based transfer policy sustaining invalid racial
balancing.

Our decision is very narrow. We feel that we should point out what
is not decided. See Loving v. Alexander, 745 F.2d 861, 867 (4th Cir.
1984). We have not enjoined any aspect of the transfer policy of
Montgomery County except that it may not consider the race of the
applicant in granting or denying the transfer. We have not decided
that diversity, as the term is used here, either is or is not a compelling
governmental interest. The absence of any rigid academic qualifica-
tions for transfer and selection by lot if a surplus of applications, for
example, seem to open the opportunity to transfer to magnet schools
to all students in the system, without respect to their race or any other
qualification except their implicit desire to obtain a better education.
Desire is not race based. Nothing in this record would indicate that
the other aspects of the transfer policy--stability, utilization, enroll-
ment and personal hardship--are race based, and we do not disturb
them.

REVERSED AND REMANDED WITH INSTRUCTIONS

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