Full opinion text
MEMORANDUM OF DECISION AND ORDER ROBERT D. POTTER, Senior District Judge TABLE OF CONTENTS INTRODUCTION.232 I.FACTUAL BACKGROUND AND PROCEDURAL HISTORY.232 A. Swann v. Charlotte-Mecklenburg Board of Education.232 B. 1975-1998: Swan Inactive.236 C. Cavacchione v. Charlotte-Mecklenburg Schools / Swann Reactivated .239 II. DISCUSSION AND ANALYSIS .'.240 A. The Constitutional Basis for Race Conscious Desegregation Orders.240 B. Unitary Status.242 1. Student Assignment .244 a. The Standard for Compliance.244 b. The Level of CMS’s Compliance .246 c. Desegregation and Demographic Trends.249 d. The Concerns of Martin-. School Siting and Transportation Burdens .250 e. The Historical Status of Imbalanced Schools.253 f. Possibilities of Further Racial Balance.255 2. Faculty Assignment.257 3. Facilities and Resources.261 4. Transportation.267 5. Staff Assignment.268 6. Extracurricular Activities.268 7. Ancillary Considerations. 269 a. Teacher Quality .270 b. Student Achievement.!.272 i. The Requirements of Stvann .272 ii. CMS’s Efforts to Close the Gap.273 iii. Experts’ Explanations of the Gap .275 e. Student Discipline.281 8. Good Faith .282 C. Constitutional Injuries.284 1. Immunity under the Swann Orders.285 2. The Magnet School Admissions Policy.287 3. Nominal Damages.290 D. Injunctive Relief.290 E. Attorneys Fees.292 CONCLUSION 293 INTRODUCTION Three decades ago, this Court-and ultimately the United States Supreme Court-provided the constitutional imprimatur for ordering local school systems to bus children away from their neighborhood schools in order to remedy the past vestiges of unlawful segregation. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The usurpation of a local school system’s student assignment policies by a federal court was an extraordinary event. As the Supreme Court has observed: “No single tradition in public education is more deeply rooted than local control over the operation of schools.” Milliken v. Bradley, 418 U.S. 717, 741, 94 S.Ct. 3112, 3125, 41 L.Ed.2d 1069 (1974) (“Milliken I”). Nevertheless, this Court’s exercise of its equity power was deemed necessary to eliminate the conditions and redress the injuries caused by the “dual school system.” The injunction entered by this Court, like .any temporary equitable remedy, eventually must reach an end. Today, this Court decides whether the Defendant Charlotte-Mecklenburg Schools (“CMS”) has reached that end by creating a “unitary school system.” CMS takes a bizarre posture in this late phase of the case, arguing that it has not complied with the Court’s orders. In 1965, when the Swann litigation began, CMS strongly resisted federal supervision, but, today, the school system is equally fervent in resisting the removal of- the desegregation order because it now wishes to use that order as a pretext to pursue race-conscious, diversity-enhancing policies in perpetuity. Consequently, CMS, the defendants, are now allied with the original class action plaintiffs who represent parents of black children in the district (the “Swarm Plaintiffs”). A separate group of parents of children in the school system (collectively referred to as the “Plaintiff-Intervenors”) seek an end to CMS’s use of race-based policies. After an extensive, two-month evidentia-ry trial, the Court is convinced that CMS, to the extent reasonably practicable, has complied with the thirty-year-old desegregation order in good faith; that racial imbalances existing in schools today are no longer vestiges of the dual system; and that it is unlikely that the school board will return to an intentionally-segregative system. For the reasons set forth below, the Court finds that CMS has achieved unitary status in all respects and therefore dissolves the desegregation order. The Court also finds that certain CMS student assignment practices went beyond constitutionally permissible bounds. Finally, to the extent that the continued use of certain race-based policies would violate the commands of the Equal Protection Clause absent a remedial purpose, such practices by CMS are hereinafter prohibited. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY A. Swann v. Charlotte-Mecklenburg Board of Education In 1954, the Supreme Court announced that the doctrine of “separate but equal” was unconstitutional, thereby prohibiting state-sponsored racial separation in public schools. Brown v. Board of Educ., 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed. 873 (1954) (“Brown I”). In a subsequent decision, the Supreme Court further mandated desegregation “with all deliberate speed.” Brown v. Board of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (“Brown II ”). Despite the holdings of Broum I and Brown II many public school systems, particularly in the South, resisted taking any positive steps toward desegregation. See generally Geoffrey R. Stone et al., Constitutional Law 533 (3d ed. 1996); James R. Dunn, Title VI. The Guidelines and School Desegregation in the South, 53 Va. L. Rev. 42, 42 (1967). The Charlotte-Mecklenburg school district in North Carolina-where, prior to Broum, public schools had been segregated on the basis of race as a matter of state law and school board policy-was likewise slow to dismantle its dual school system. See generally Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F.Supp. 1358 (W.D.N.C.1969) (detailing the history of segregation in Charlotte, North Carolina). In 1965, the Swann Plaintiffs filed their complaint for injunctive relief in this Court, claiming that the policies and practices of the Charlotte-Mecklenburg Board of Education were perpetuating a segregated school system. On July 14, 1965, United States District Judge Braxton Craven, Jr., presiding over the case, approved a school board-proposed desegregation plan that closed certain all-black schools, built some new schools, established school zones based on neighborhoods, and allowed for students of any race to freely transfer to a school of his or her choice. Swann v. Charlotte-Mecklenburg Bd. of Educ., 243 F.Supp. 667 (W.D.N.C.1965), aff'd, 369 F.2d 29 (1966). “Freedom of choice” transfer plans were a common response to the mandate of Brown, but such policies had little effect on dismantling the dual systems. Dunn, supra, at 44. Only a small number of black children transferred to predominately white schools, and predominately black schools remained all or predominately black. Id. The Supreme Court addressed this concern in Green v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), holding that “ ‘freedom of choice’ is not an end in itself;” rather, “it is only a means to a constitutionally required end.” Id. at 440, 88 S. Ct. at 1695 (citation omitted). “If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end.” Id. Thus, Green established that a school system which had been enforcing de jure segregation at the time of Broum had an “affirmative duty” to desegregate, not merely an obligation to implement race-neutral policies. Id. at 437-38, 88 S. Ct. at 1694. Green also identified six areas of school operations that must be free from racial discrimination before the mandate of Broum is met: student assignment, faculty, staff, transportation, extracurricular activities, and facilities. Id., at 435, 88 S. Ct. at 1693. These are commonly referred to as the “Green factors.” In 1968, the Swann Plaintiffs filed a motion for further relief, seeking greater speed in desegregation efforts in the spirit of Green. On April 23, 1969, following a six-day hearing, United States District Judge James B. McMillan, newly assigned to the case, ruled that the plan based upon geographic zoning with a free-transfer provision had left the dual school system virtually intact. Swann, 300 F.Supp. at 1372. The Court also concluded, however, that no racial discrimination or inequality was found in the following areas: the use of federal finds; the use of mobile classrooms; quality of school buildings and facilities; athletics; PTA activities; school fees; free lunches; books; elective courses; [and] in individual evaluation of students. Id. As to those areas where vestiges of discrimination were found to still exist-primarily, student and faculty assignment-the Court directed the school board to submit a more aggressive desegregation plan and outlined the preferred changes, including busing, re-zoning, and other methods. Id. at 1373. The Court was hesitant to mandate precise racial quotas, stating: “This court does not feel that it has the power to make such a specific order.” Id. at 1371. At first, the school board was slow to act on the Court’s recommendations. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F.Supp. 1381, 1382 (W.D.N.C.1969) (noting the “foot-dragging” by the board). On August 15, 1969, the Court approved an interim plan that included programs for faculty desegregation and for closing seven all-black schools and assigning their pupils to outlying predominately white schools. Swann v. Charlotte-Mecklenburg Bd. of Educ., 306 F.Supp. 1291, 1298-99 (W.D.N.C.1969). The Court noted that the plan represented substantial progress but expressed reservations that a disproportionate burden of desegregation was being placed on black children. Id. at 1298. By November 1969, the Court reviewed the plan and determined that it had “not been earned out as advertised.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 306 F.Supp. 1299, 1302 (W.D.N.C.1969). The Court also disapproved of an amended plan because it suffered from the same defects in the previously-approved plan, i.e., it stated no definable desegregation goals and did not safeguard against reseg-regation. Id. at 1313. Concluding that the board had “shown no intention to comply by any particular time with the constitutional mandate to desegregate the schools,” id. at 1306, the Court announced that it would designate a consultant to immediately prepare a desegregation plan. Id. at 1313-14. On December 2, 1969, the Court appointed Dr. John A. Finger, Jr., to study the system and to recommend a desegregation plan. The school board also prepared a plan. On February 5, 1970, after two days of hearings, the Court adopted Dr. Finger’s plan for elementary schools and the board’s plan, as modified by Dr. Finger, for secondary schools (the “Finger Plan”). Swann v. Charlotte-Mecklenburg Bd. of Educ., 311 F.Supp. 265, 268-70 (W.D.N.C.1970). The Court ordered immediate compliance with the Finger Plan, which was the only plan ever mandated by the Court. The plan required the following: • Similar to the 1969 board-proposed plan, the assignment of faculty at each school had to approximate the same ratio of black and white faculty members throughout the system. Id. at 268. • The overall competence of teachers at formerly black schools could not be inferior to those at formerly white schools. ■ Id. • Students had to be assigned “in such a way that as nearly as practicable the various schools at various grade levels have about the same proportion of black and white students.” Id • “[N]o school [could] be operated with an all-black or predominately black student body.” Id. • In redrawing the school system’s attendance zones, the Court authorized the use of bus transportation and non-contiguous “satellite zones” to accomplish its goals. Id. • The student transfer policy was restricted in order to safeguard against any resegregation. Id. at 268-69. • Finally, the board was required to monitor and report on its progress in implementing the plan. Id. The school board appealed the ruling, and the Fourth Circuit affirmed the District Court as to faculty desegregation and the secondary school plans but vacated the order as to elementary schools, determining that the provisions for pairing and grouping elementary schools imposed an undue burden on the board. Swann v. Charlotte-Mecklenburg Bd. of Educ., 431 F.2d 138 (4th Cir.1970). The Fourth Circuit remanded the case for reconsideration and submission of additional plans. Id. The Supreme Court granted certiorari and reinstated the District Court’s judgment pending further proceedings. Swann v. Charlotte-Mecklenburg Bd. of Educ., 399 U.S. 926, 90 S.Ct. 2247, 26 L. Ed.2d 791 (1970). On remand, Judge McMillan conducted eight more days of hearings, and, after reviewing the various options, he concluded that the Finger Plan was not unreasonable. Swann v. Charlotte-Mecklenburg Bd. of Educ., 318 F.Supp. 786, 788 (W.D.N.C.1970). Thus, the District Court again directed the board to implement the Finger Plan and also provided suggestions for successful implementation. Id. at 802-03. In 1971, the Supreme Court reviewed the case to address the scope of authority of federal courts to enforce the mandates of Brown and Green, Swann, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554. Holding that district courts have broad equitable powers to fashion remedies to eliminate segregated public schools that were established and maintained by state action, the Supreme Court affirmed Judge McMillan’s order. Id. at 15, 91 S.Ct. at 1276; see id., at 15-16, 91 S. Ct. at 1276 (“[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right.”). Chief Justice Burger, writing for the unanimous court, stated that student assignment was the central issue involved in crafting desegregation orders, and he enunciated guidelines for four identified problems areas. Id. at 22, 91 S.Ct. at 1279. 1. With regard to racial balances or quotas, the limited use of mathematical ratios of white to black students is permissible “as a starting point” but not as “an inflexible requirement.” Id. at 22-25, 91 S.Ct. at 1279-80. 2. The existence of “one-race, or virtually one-race, schools”, does not necessarily mean that desegregation has not been accomplished, but such schools “in a district of mixed population” should receive close scrutiny to determine that assignments are not part of state-enforced segregation. Id. at 25-27, 91 S.Ct. at 1280-81. 3. The remedial altering of attendance zones, including the pairing and grouping of noncontiguous zones, is not, as “an interim corrective measure,” beyond the remedial powers of a district court. Id. at 27-29, 91 S.Ct. at 1281-82. 4. The use of bus transportation to implement a remedial decree is permissible so long as “the time or distance of travel is [not] so great as to either risk the health of the children or significantly impinge on the educational process.” Id. at 29-31, 91 S.Ct. at 1282-83. With the affirmation of the Supreme Court, the District Court continued its supervision of the Charlotte-Mecklenburg school system but still encountered some difficulties. In the months following the Supreme Court decision, the Court had to make some adjustments and revisions to the desegregation plan and continued to express its dissatisfaction with the regressive and unstable nature and results of certain aspects of the plan. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 328 F.Supp. 1346 (W.D.N.C.1971); Swann v. Charlotte-Mecklenburg Bd. of Educ., 334 F.Supp. 623 (W.D.N.C.1971). The Court kept a “hands off’ approach during the 1971-72 and 1972-73 school years, in the hope that the board and its staff would undertake constructive remedial action. Swann v. Charlotte-Mecklenburg Bd. of Educ., 362 F.Supp. 1223, 1230 (W.D.N.C.1973). By June 19, 1973, the Court observed that “schools in most areas reached a condition of relative educational and racial stability” but again found signs of continuing discrimination. Id., at 1230-37. On July 30, 1974, the Court announced that the board was finally on its way to producing a unitary school' system. Swann v. Charlotte-Mecklenburg Bd. of Educ., 379 F.Supp. 1102, 1103 (W.D.N.C.1974). The Court approved a new set of board-adopted guidelines and policies that marked “a clean break with the essentially ‘reluctant’ attitude which dominated Board actions for many years.” Id. The Court stated: “If implemented according to their stated principles, they will produce a ‘unitary’ (whatever that is) school system.” Id. The proposal — dubbed the “CAG Plan” because it was drafted by the Citizens Advisory Group-was intended to result in no school with a majority of minority students, with the exception of Hidden Valley Elementary School, which was exempted due to its unique history and its location in a recently integrated neighborhood. Id. at 1104. The proposal also allowed for the creation of “optional schools” that would be “open to all county residents and have about or above 20% black students.” Id. Furthermore, under the CAG Plan, the burdens of busing were more equally distributed between blacks and whites, and safeguards would be implemented to prevent adverse trends in racial make-ups of schools. Id. The board successfully implemented the new guidelines and policies, and, on July 11, 1975, the Court closed Swann as an active matter of litigation and removed the case from the docket. Swann v. Charlotte-Mecklenburg Bd. of Educ., 67 F.R.D. 648, 649 (W.D.N.C.1975). In this final order, which was referred to by Judge McMillan as the “Swann Song,” the Court noted: The new Board has taken a more positive attitude toward desegregation and has at last openly supported affirmative action to cope with recurrent racial problems in pupil assignment. Though continuing problems remain, as hangovers from previous active discrimination, defendants are actively and intelligently addressing these problems without court intervention. Id. The Court added that the case could be re-opened upon a proper showing that the orders were not being observed, although such action was not anticipated. Id. B. 1975-1998: Swann Inactive The Swannc&se remained inactive from 1975 until the present litigation. During this time, Mecklenburg County saw significant population growth and demographic change. The total population of Mecklen-burg County has grown from 354,656 in 1970 to 613,310 in 1997. (PX 138 Table I (Clark Rpt.).) According to 1998 census figures, Charlotte is the twenty-fifth largest city in America and ranks second in population growth in the 1990s among cities with more than 500,000 people. U.S. Census Bureau, Population Estimates for Cities with Populations of 100,000 and Greater (released June 30,1999) <http://www.census.gov/population/www/estimates/citypop.html>. The racial composition of the county has changed from 76% white and 24% black in 1970 to 68% white, 27% black, and 5% other in 1997. (PX 138 Table I (Clark Rpt.).) This “other” category, which has doubled since 1990, reflects the county’s large gains in Asians and Hispanics. (Id. at 2.) Similar to most large metropolitan areas, Charlotte has experienced an outward growth of its population from the inner city into the peripheral areas of the county. (PX 138 Figs. 2-8 (Clark Rpt.).) The highest level of population growth in the county has been in the southern and southeastern regions and, to a lesser extent, in the northern outer region. Id., Figs. 2-8. During this suburbanization trend, the inner city and nearby suburbs lost large numbers of white residents as they spread further out into communities along the major arteries extending from downtown. (Id., at 6.) This growth has caused a great deal of traffic congestion and has required the building and expansion of several roads and highways, including the N185 beltway. Today, blacks are still more concentrated near the inner city, and whites have become highly concentrated in the outer peripheries. (PX 138 at 8, Fig. 8 (Clark Rpt.).) Nevertheless, there is a greater degree of residential integration in the county than there was thirty years ago. (Id. at 8, Table 3). As compared to the nation’s major metropolitan areas, Charlotte has become one of the most racially integrated cities in America. (Id. Table 4). This is generally due to the dispersion of blacks into the suburbs. (Id. at 7-8.) In fact, some of the middle suburban communities that were almost all white in 1970 are now predominately black. (IcL, at 8.) The county’s school system has experienced substantial growth and change as well. Of course, CMS was a large system at the beginning of the Swann litigation, as noted by the Supreme Court in 1971: The Charlotte-Mecklenburg school system, the 43d largest in the Nation, encompasses the city of Charlotte and surrounding Mecklenburg County, North Carolina. The area is large-550 square miles — spanning roughly 22 miles east-west and 36 miles north-south. During the 1968-1969 school year the system served more than 84,000 pupils in 107 schools. Approximately 71% of the pupils were found to be white and 29% Negro. • Swann, 402 U.S. at 6, 91 S.Ct. at 1271. Today, CMS has become the twenty-third largest school system in the nation. (Tr. % at 6 (Test, of Eric Smith).) In the 1998-99 school year, CMS served 98,542 pupils in 135 schools, including 85 elementary schools, 27 middle schools, 14 high schools, and 9 special schools. (DX 3 (CMS Enrollment Rpts.).)- The current racial composition of schoolchildren in CMS is approximately 50% white, 42% black, and 8% other. (DX 215 (1998-99 CMS Facts).) The growth in the school age population was relatively stable until the 1990s, at which time it experienced rapid yearly increases. (PX 138 4-5, Table I (Clark Rpt.).) Since about 1992, CMS has realized 3% growth annually, which equates to roughly 3,000 additional students per year. (PX 139 at' 3 (CMS Student Assignment Proposal for 1998-99).) While the black student population in CMS has grown steadily since 1970, the white student population declined sharply in the 1970s and continued to decrease in the 1980s before realizing modest increases in the 1990s. (Id, at 4U5, Fig. 1). Between 1970 and 1990, the number of white students in CMS decreased by more than 15,000. (Id., at 2, Fig. 1.) In the 1990s, CMS has attracted a higher number of white students into the system, but there is still a large proportion who do not attend public schools. (Id 5.) In the 1997-98 school year, the county’s private and home school enrollment totaled 15,835. (PX 138 at 5 (Clark Rpt.) (citing statistics of the North Carolina Division of non-Public Education).) This represents a 14.2 percent rate of private school enrollment-almost double the national level. (Id), By comparison, private school enrollment in the 1968-69 school year was only 2,150. (PX 26 (CMS Enrollment with Private School Data).) When these demographic changes began occurring, CMS responded by modifying student assignments under the desegregation plan. In turn, on a couple occasions, the Court was called on to revisit the issues in Swann. First, in Martin v. Charlotte-Mecklenburg Bd. of Educ., 475 F.Supp. 1318 (W.D.N.C.1979), a group of parents brought suit against the school board, seeking an order prohibiting the board from reassigning pupils during the 1978-79 school year pursuant to a provision in the 1974 CAG Plan. The parents relied on the Supreme Court’s then-recent decisions in Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), and Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), to argue that CMS could not assign students based on race. The Court determined that Pasadena and Bakke were inapposite. Martin, 475 F.Supp. at 1321. In Pasadena, the Supreme Court prohibited a district court from requiring reassignment of students due to racial imbalance that was caused not by school board action but by demographic changes. 427 U.S. at 424, 96 S.Ct. at 2697. By contrast, in CMS, reassignment was not mandated by the Court but was voluntarily implemented by the board under a board-approved plan. Martin, 475 F.Supp. at 1322-23. In Bakke, the Supreme Court found unconstitutional a public university’s practice of reserving 16 out of 100 admissions slots for racial minorities. 438 U.S. at 319-20, 98 S.Ct. at 2763. By contrast, in the Charlotte-Mecklenburg system, no slots were reserved for students by race; in fact, all students in the system were guaranteed admission into schools of equal quality. Martin, 475 F.Supp. at 1321. Hence, the Court found that no students were being denied “opportunities or benefits enjoyed by others solely because of [ ] race.” Id (quoting Bakke, 438 U.S. at 305, 98 S.Ct. at 2756). The Court further reiterated that although the Swann case had been closed, jurisdiction had not yet been relinquished, so remedial race-based measures were still permissible. Id. at 1341. The Court observed that the board and its staff were “aggressively attacking the problems” and were committed to integration but jurisdiction was still needed due to lingering effects from past active discrimination. Id. at 1341, 1343. During Swann’s inactivity, the only other action in this Court affecting the Swann case occurred in 1980, when CMS and the Swann Plaintiffs notified the Court that the black student population of elementary schools had grown from 29% in 1969 to 40% in 1980, making it increasingly difficult to avoid majority black elementary schools. (PX 113 (Mot. to Modify Orders).) The Court approved a proposed modification that permitted CMS to operate elementary schools with black student populations of “plus 15%” from the district-wide average. Swann v. Charlotte-Mecklenburg Bd. of Educ., No. 1974, slip op. at 2 (W.D.N.C. April 17, 1980) (unpublished order). Other than this modification, the Swann case lay dormant for almost a quarter of a century without either side petitioning for further relief and without any complaints of noncomphance. In the meantime, CMS’s student assignment process continued to operate under the desegregation plan approved by the Court, which focused primarily on pairing elementary schools, using satelhte attendance zones, and operating a feeder plan to assign students from certain neighborhoods to certain secondary schools. (DX 108 at 2 (Stolee Plan).) CMS periodically reassigned students as demographics changed, the population grew, new schools were opened, and old schools were closed. (Id. at 3-4.) The greatest change in student assignment pohey occurred in 1992, when CMS implemented a modified pupil assignment program that emphasized the use of “magnet” schools. (DX 112 (CMS Student Assignment Plan: A New Generation of Excellence).) This change allowed CMS to phase out pairing, which had become increasingly unstable and unpopular. (DX 108 at 3-6 (Stolee Plan); Tr. 5/3 at 18-20, 22 (Test, of Jeffrey Schiller).) The plan also contemplated the increased use of “stand alone” and “mid-point” schools, so that satellite zones could be phased out. (Tr. 5/3 at 21 (Test, of Jeffrey Schiller).) Dr. Michael Stolee, the consultant who drafted the new assignment plan, recommended that CMS secure approval from the Court before making any changes. (DX 108 at 9 (Stolee Plan).). CMS never sought Court approval, however, and implemented the plan without any direct judicial supervision. CMS claims that it relied on the provision for “optional schools” in the Swann Order of July 30, 1974. 379 F.Supp. at 1104. CMS had operated a few open enrollment “optional” schools since 1973; yet, none of these schools offered the distinct curricula of the magnet programs started in the 1990s. (See DX 5 Attach. B, Table 5 (Foster Rpt.).) The race-based admissions policies of these new magnet schools became the impetus for the current litigation. C. Capacchione v. Charlotte-Mecklen-burg Schools I Swann Reactivated On September 5, 1997, William Capac-chione filed a Complaint against CMS, claiming his daughter, Cristina, was unlawfully and unconstitutionally denied admission into a magnet school program due to a rigid racial enrollment quota. Cristina’s racial identity is Hispanic and Caucasian, which CMS classifies as “non-black.” The Complaint sought declaratory, injunctive, and compensatory relief under 42 U.S.C. §§ 1983 and 2000d. On October 22, 1997, CMS moved for dismissal, asserting that the magnet school’s race-based assignment policies were required under the Court’s desegregation order in Swann. Almost simultaneously, counsel for the original Swann Plaintiffs moved to reactivate Swann and to consolidate it with the Capacchione litigation. The Swann Plaintiffs, like CMS, contended that past vestiges of the dual school system remained unremedied. On March 6,1998, the Court granted the Swann Plaintiffs’ motions to restore Swann to the active docket and to consolidate it with Capacchione, finding that the cases involved several common issues of law and fact. The Court denied CMS’s motion to dismiss, finding that Capac-chione had met his pleading burden and noting that the magnet school assignment plan had .never been subject to judicial review. On March 16, 1998, CMS filed an Answer to Capacchione’s Complaint, again asserting that the magnet school program was instituted in an attempt to comply with the Court’s orders. Capacchione filed an Amended Complaint, stating that the Court-ordered desegregation plan in Swann did not justify the discrimination in question because the school system had long-since achieved unitary status. The Court permitted Capacchione to intervene in the Swann action on May 4,1998. On May 20,1998, the Court granted another motion to intervene in the consolidated action by Michael P. Grant et al., a group of parents of students in the school system. Similar to Capacchione, these parents sought a finding that the school system had achieved unitary status as required by the Court’s orders and urged an end to the school system’s race-based policies. In August 1998, Capacchione and his family moved to California. In deposition testimony, Capacchione stated that his family had no intent of moving back to Charlotte. (Capacchione Dep. Tr. at 122-23.) In light of these circumstances, on November 12, 1998, the Court granted in part and denied in part a Motion for Summary Judgment filed by CMS. The Court found that Capacchione no longer had standing to assert injunctive or declaratory relief but found that Capacchione still had standing to pursue compensatory relief. During the trial, Capaechione and Grant et al. consolidated their cases. They are collectively referred to in court documents and exhibits as the “Plaintiff-Intervenors.” Following the presentation of the Plaintiff-Intervenors’ evidence, CMS and the Swann Plaintiffs both filed motions to dismiss the various claims of the Plaintiff-Intervenors. The Court reserved ruling on most of these arguments because they involved factually justiciable issues or they involved issues where an immediate ruling did not reduce significantly the remaining amount of testimony. (Order of 5/28/99 at 1.) With regard to actual damages, however, the Court found that the Plaintiff-Intervenors did not prove actual injury as required for compensation for a constitutional claim. (Id.) citing Price v. City of Charlotte, 93 F.3d 1241, 1248-57 (4th Cir.1996), cert. denied, 520 U.S. 1116, 117 S.Ct. 1246, 137 L.Ed.2d 328 (1997).) Specifically, the Court found: “The Plaintiff-Intervenors only presented conclusory statements that their children suffered emotional distress; none of the Plaintiff-Intervenors ever sought medical or psychological treatment for their children. Moreover, the alleged injuries did not flow from the alleged equal protection violation.” (Id.) The Court now addresses the remaining issues in this case. II. DISCUSSION AND ANALYSIS A. The Constitutional Basis for Race Conscious Desegregation Orders The Fourteenth Amendment provides that “[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. In the school desegregation context, the watershed decision of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, stood for the proposition that separate treatment for people of different races violates the Constitution’s equal protection guarantee. Justice Harlan recognized this race neutrality principle in his prophetic dissent from the misguided “separate but equal” doctrine enunciated in Plessy v. Ferguson, when he stated: “In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.” 163 U.S. 537, 554, 16 S.Ct. 1138, 1145, 41 L.Ed. 256 (1896) (Harlan, J., dissenting). Because of the “odious” nature of racial classifications, “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” and are reviewed under the strictest judicial scrutiny, regardless of whether the classification is intended to burden or benefit a particular race. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 215-16, 115 S.Ct. 2097, 2107, 132 L.Ed.2d 158 (1995) (quoting Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944)). Consequently, “[racial] classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Id. at 227, 115 S.Ct. at 2113. Modern Supreme Court precedent suggests that there is only one compelling state interest that will justify race-based classifications: remedying the effects of past racial discrimination. Metro Broadcasting, Inc. v. Federal Communications Comm’n, 497 U.S. 547, 612, 110 S.Ct. 2997, 3034, 111 L.Ed.2d 445 (1990) (O’Connor, J., dissenting); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 722, 102 L.Ed.2d 854 (1989); Hopwood v. State of Texas, 78 F.3d 932, 944 (5th Cir.1996). It is in this remedial context that the race-conscious desegregation orders of Swann were constitutionally permissible; the District Court’s injunction was specifically aimed at dismantling an unconstitutional school system. Swann, 402 U.S. at 22, 91 S.Ct. at 1279. While Swann, acknowledged the broad scope of courts’ equitable authority, it also recognized the limitations and potential abuses that can come about from using race as a remedial device. Id. at 24-28, 91 S.Ct. at 1280-82; see Spangler, 427 U.S. at 434, 96 S.Ct. at 2704 (“ ‘[l]t must be recognized that there are limits’ beyond which a court may not .go in seeking to dismantle a dual school system.” (citing Swann 402 U.S. at 28, 91 S.Ct. at 1282)); Ho v. San Francisco Unified School Dist., 147 F.3d 854, 865 (9th Cir.1998) (holding that race-conscious provisions in a desegregation decree had to be narrowly tailored); see also Hayes v. North State Law Enforcement Officers Ass’n, 10 F.3d 207, 212 (4th Cir.1993) (“Of all the criteria by which men and women can be judged, the most pernicious is that of race.... While the inequities and indignities visited by past discrimination are undeniable, the use of race as a reparational device risks perpetuating the very race-consciousness such a remedy purports to overcome.” (quoting Maryland Troopers Ass’n. Inc. v. Evans, 993 F.2d 1072, 1076 (4th Cir.1993))). For example, the Supreme Court in Swann upheld only “the very limited use made of mathematical ratios” in crafting student assignment plans, 402 U.S. at 25, 91 S.Ct. at 1280, and allowed the gerrymandering of school attendance zones only as “an interim corrective measure.” Id. at 27, 91 S.Ct. at 1282. Most importantly, any race-based remedies had to be specifically focused on remedying the constitutional violation in question and could not expand beyond that purpose. Id. at 22-23, 91 S.Ct. at 1279. Stated the Supreme Court: We are concerned in these cases with the elimination of the discrimination inherent in the dual- school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds. The target of the cases from Brown I to the present was the dual school system. The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other forms of discrimination. Id.; see also Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 2749, 2758, 53 L.Ed.2d 745 (1977) (“Milliken II”) (“[Fjederal-eourt decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation.”). The temporal scope of desegregation orders is also limited in that such decrees “are not intended to operate in perpetuity.” Board of Educ. v. Dowell, 498 U.S. 237, 248, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991). “From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.” Id. at 247, 111 S.Ct. at 637. Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that ‘necessary concern for the important values of local control of public school systems dictates that a federal court’s regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination.’ Id., at 248, 111 S.Ct. at 637 (quoting Spangler v. Pasadena City Bd., of Educ., 611 F.2d 1239, 1245 n. 5 (9th Cir.1979) (Kennedy, J., concurring) (citing Milliken II, 433 U.S. at 280-82, 97 S.Ct. at 2757-58)); see also Freeman v. Pitts, 503 U.S. 467, 505, 112 S.Ct. 1430, 1453, 118 L.Ed.2d 108 (1992) (Scalia, J., concurring) (“But we also envisioned [federal supervision of local school systems] as temporary, I think, because the rational basis for the extraordinary presumption of causation simply must dissipate as the de jure system and the school boards who produced it recede further into the past.”). Thus, a desegregation order does not condemn a school board to “judicial tutelage for the indefinite future,” as “[n]either the principles governing the entry and dissolution of in-junctive decrees, nor the commands of the Equal Protection Clause of the Fourteenth Amendment, require any such Draconian result.” Dowell, 498 U.S. at 249, 111 S.Ct. at 638. In addition to remedying a constitutional violation, the end purpose of a desegregation order is “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, 112 S.Ct. at 1445. As the law of school desegregation has developed, that withdrawal of jurisdiction occurs when the district court finds that the school system has achieved unitary status. Id.; Dowell, 498 U.S. at 248, 111 S.Ct. at 637; Swann, 402 U.S. at 32, 91 S.Ct. at 1284. B. Unitary Status The term “unitary status” has no fixed meaning. Freeman, 503 U.S. at 486-87, 112 S.Ct. at 1443-44. In fact, the terms “unitary” and “dual” are nowhere found in the Constitution; they are simply descriptive words that identify school systems that are either in or out of compliance with the commands of the Equal Protection Clause. Id. at 486-87, 112 S.Ct. at 1443-44 (citing Dowell, 498 U.S. at 245-46, 111 S.Ct. at 636). The concept of achieving unitary status was established in Green, where the Supreme Court stated that the goal óf equitable relief in a desegregation case was “to convert [a dual system] to a unitary system in which racial discrimination would be eliminated root and branch.” 391 U.S. at 437-38, 88 S.Ct. at 1694. Since Green, the use of the term “unitary” has been inconsistent. Dowell, 498 U.S. at 245, 111 S.Ct. at 635. Sometimes the term is used to describe a school system that has been released from supervision after fully remedying all vestiges of past, discrimination. Id. (citing United States v. Overton, 834 F.2d 1171, 1175 (5th Cir.1987); Riddick v. School Bd., 784 F.2d 521, 533-34 (4th Cir.1986); Vaughns v. Board of Educ., 758 F.2d 983, 988 (4th Cir.1985)). The term also has been used to describe a school system that has implemented a desegregation plan but has not yet eliminated the vestiges of past discrimination. Id. (citing Georgia State Conference Branches of NAACP v. Georgia, 775 F.2d 1403, 1413 n. 12 (11th Cir.1985)); see also United States v. Georgia, 171 F.3d 1344, 1347 (11th Cir.1999). In the latter circumstance, courts draw a distinction between a school system that is “unitary” and one that has achieved “unitary status.” Dowell, 498 U.S. at 245, 111 S.Ct. at 635-36. In other words, a school system that has achieved unitary status is one that “has eliminated the vestiges of its prior discrimination and has been adjudicated as such through the proper judicial procedures,” i.e., a unitary status hearing or a consent order. Id. at 245, 111 S.Ct. at 636 (quoting Georgia State Conference, 775 F.2d at 1413 n. 12). With regard to Swann, Judge McMillan closed the case in 1975 after the school system had adopted a desegregation plan that he previously declared would produce a “unitary” school system. Swann, 67 F.R.D. at 649; see Swann, 379 F.Supp. at 1103. This did not constitute a finding that CMS had achieved unitary status or that the orders had been terminated or dissolved. To the contrary, Judge McMillan stated that the orders in this case remained in continuing effect, Swann, 67 F.R.D. at 649; Martin, 475 F.Supp. at 1341, and CMS has continued to operate under the assumption that it was still subject to federal court supervision. Thus, it may be said that CMS has been operating a unitary system since at least 1975 but has not yet been granted unitary status. See Georgia, 171 F.3d at 1347. The appropriate analysis for determining whether CMS, at long last, has achieved unitary status is (1) whether the school board has eliminated the vestiges of past discrimination to the extent practicable and (2) whether the school board has in good faith fully and satisfactorily complied with, and shown a commitment to,- the desegregation plan, such that it is unlikely for the board to return to its former ways. Freeman, 503 U.S. at 492, 112 S.Ct. at 1446; Dowell, 498 U.S. at 249-50, 111 S.Ct. at 638. In determining whether a school board has eliminated the vestiges of de jure segregation as far as practicable, a district court must carefully assess what the school system has accomplished with respect to the six “Green factors” — student assignment, faculty, staff, transportation, extra-curricular activities, and facilities. 391 U.S. at 435, 88 S.Ct. at 1693. In its discretion, a court may consider any other ancillary factors. Freeman, 503 U.S. at 492, 112 S.Ct. at 1446. A district court may withdraw all judicial supervision over a school system if it finds that the system has achieved unitary status in all respects, or it may withdraw supervision incrementally with respect to discrete categories when the system has achieved only partial compliance with a desegregation plan. Id. at 471, 112 S.Ct. at 1436. In the present case, the Plaintiff-Intervenors assert that the system has achieved unitary status in all respects. CMS and the Swann Plaintiffs contend that the school system has not achieved unitary status as to any of the Green factors and further assert that CMS has discriminated in areas such as teacher quality, academic achievement,, and discipline. The burden of proof for showing whether CMS is free of the vestiges of segregation falls on the parties seeking to end court supervision: the Plaintiff-Inter-venors. Id., at 494, 112 S.Ct. at 1447. Evidentiary considerations inevitably will impact this burden. Given that school boards are “entitled to a rather precise statement of [their] obligations under a desegregation decree,” Dowell, 498 U.S. at 246, 111 S.Ct. at 636, the lack of any prior remedial orders or findings of discrimination in certain areas of school operations tends to allay the Plaintiff-Intervenors’ burden of proof as to those areas. Keyes v. School Dist. No. 1, 902 F.Supp. 1274, 1282 (D.Colo.1995). The passage of time is likewise an evidentiary consideration that affects the burden of proof. Freeman, 503 U.S. at 491-92, 496, 112 S.Ct. at 1446, 1448; id., at 503, 112 S.Ct. at 1452 (Sealls, J., concurring); Jenkins v. Missouri, 122 F.3d 588, 595 (8th Cir.1997). As to any facets of school operations where the Court expressly found that the school system was free of discrimination, such findings become the law of the case and shift the burden back to the parties trying to prolong judicial oversight: CMS and the Swann Plaintiffs. Riddick, 784 F.2d at 531; Jacksonville Branch, NAACP v. Duval County School Bd., No. 85-316-Civ-J-10C, slip op. at 139 (M.D.Fla. May 27, 1999). Underlying this burden-shifting scheme is a district court’s ultimate duty to return control of school operations to local authorities when judicial supervision is no longer necessary. Missouri v. Jenkins, 515 U.S. 70, 99, 115 S.Ct. 2038, 2054, 132 L.Ed.2d 63 (1995) (“Jenkins III”); Freeman, 503 U.S. at 489-90, 112 S.Ct. at 1445. 1. Student Assignment Like most desegregation cases, the orders entered during the active phase of Swann, from 1969 to 1975, focused primarily on erasing discrimination in student assignment, which was the hallmark of a segregated school system. See Swann, 402 U.S. at 18, 91 S. Ct. at 1277 (“[T]he several related cases before us are primarily concerned with problems of student assignment.”); id. at 22, 91 S. Ct. at 1279 (“The central issue in this case is that of student assignment.”). Accordingly, the “critical beginning point” and “fundamental” inquiry of a unitary status determination is the degree of racial imbalance in student assignment. Freeman, 503 U.S. at 474, 112 S. Ct. at 1437. a. The Standard for Compliance During the trial, there was disagreement about what the Swann orders required for numerical compliance. Given that Judge McMillan entered roughly fifteen orders addressing student assignment, it is not surprising that the applicable standard is somewhat hazy. Then again, the standard should be somewhat hazy. A court must constantly anchor itself in the constitutional violation and must not get caught up in bean-counting. Swann, 402 U.S. at 22-24, 91 S. Ct. at 1279-80. The Court’s student assignment guidelines, which do not anticipate a simple quantitative analysis, are as follows: (1) “[t]hat no school be operated with an all-black or predominately black student body” (2) “[t]hat pupils of all grades be assigned in such a way that as nearly as practicable the various schools at various grade levels have about the same proportion of black and white students,” and (3) that CMS “prevent any school from becoming racially identifiable.” Swann, 311 F.Supp. at 268. The first guideline addressed the concern that CMS’s slowest progress in dismantling the dual system was the desegregation of formerly-de jure black schools. Fifteen years after Brown I, a large number of these schools were still 99% to 100% black. Swann, 300 F.Supp. at 1368. While the Court did not define precisely what a “predominately black student body” was, the guideline has been interpreted to mean that no school should be operated with a majority black student body, i.e., one that is over 50% black. (See, e.g., PX 93 at CM095416 (CMS Student Assignment Proposals 1996-97); PX 113 at 2 (Joint Mot. to Modify Orders filed 4/16/80).) The second guideline requires the racial composition of each school to reflect the district-wide average. In 1970, when this guideline was mandated, the district’s racial composition was 29% black and 71% non-black. While the Court acknowledged that “variations from that norm may be unavoidable,” Swann, 311 F.Supp. at 268, it did not suggest how much variance from the norm-s a plus-or-minus percentage-would be tolerable. The only specific variance ever approved by the Court is found in the one-page unpublished order from 1980, which allowed elementary schools to operate with black student populations of “plus 15%” from the district-wide average. Swann, No. 1974, slip op. at 1 (April 17, 1980). This upward variance acknowledged that it was no longer practicable to avoid majority black elementary schools given the increasing black enrollment. (PX 113 at 2 (Joint Mot. to Modify Orders).) At the time, the black student ratio in elementary schools had risen to 40%, which meant that an elementary school could have a 55% black student population. Id. The modification applied only to elementary schools because secondary schools had low enough black student populations that they could operate at roughly 15% above the system-wide ratio and still avoid being majority black. (DX 3 (CMS Enrollment Rpts.)) high schools were 35% black in 1980; middle schools were 37% black). Last year, on the other hand, the black student ratio was 42% in middle schools and 40% in high schools, (id., which provided breathing room of only 8% and 10% as an upper limit). Given that +10% was too constricting a ceiling for elementary schools in 1980, it would make little sense to impose an even more constricting ceiling of +8% for middle schools today. It is also worth noting that the Court, in 1970, allowed CMS an upper limit of 21% above the district-wide black average based on the “no majority black schools” interpretation. So, even a +15% upper limit is a relatively strict standard. The third guideline, prohibiting racially identifiable schools, seems to target the more extreme cases of racial isolation. Accord Jacksonville Branch. NAACP v. Duval County School Bd., No. 85-316-Civ.-J-10C, slip op. at 10-11 (M.D.Fla. May 27, 1999) (defining “identifiably black” as those schools with a black student population in excess of 75% and “identifiably white” as those schools with a black student enrollment of 15% or less). For example, it would be difficult to say that a school with a 51% black student body was racially identifiable, even though, under the no majority black schools interpretation, it might be viewed as such. Determining what is identifiably white is even more difficult. Early on, the Court classified “schools readily identifiable as white” as schools with white percentages above 85%. See Swann, 311 F.Supp. at 270; Swann, 306 F.Supp. at 1303. Yet, the Court acknowledged that Highland Elementary, which was only 13% black, had achieved adequate desegregation. Swann, 300 F.Supp. at 1367-68. Also, the 1970 court-mandated plan-which, the Court said, “achieves full desegregation” allowed black student percentages as low as .3% (Bain Elementary), 9% (Matthews Elementary), 12% (Newell Elementary), and 14% (Clear Creek Elementary). Swann, 311 F.Supp. at 270, Ex. J. The Court, therefore, was willing to accept a number of schools with large white majorities as part of a desegregated system. In sum, the measuring stick for compliance in student assignment is not a model of clarity. The parties agree that the orders allow elementary schools to operate with black student bodies up to 15% above the district-wide black ratio and allow secondary schools to operate with black student bodies up to 50%. The Plaintiff-Intervenors only challenge the continuing validity of these upper limits. The parties disagree as to whether there is a lower limit for black student populations. CMS and the Swann Plaintiffs assert that common practice dictates a minimum black student body in all schools of at least “minus 15%” from the district-wide black ratio. The Plaintiff-Intervenors disagree with this “minus 15%” standard on the grounds that it appears nowhere in the prior orders. The Plaintiff-Intervenors are technically correct. As to the lower limit, the Court never adopted a “minus 15%” standard or any such downward variance. Nevertheless, Judge McMillan expressed concern about the presence of all-white schools, Swann, 311 F.Supp. at 270, so the Court should not ignore completely those schools with small black student populations. But see Jacksonville NAACP, supra, slip op. at 11 n. 10 (“The counting of [identifiably white] schools as segregated can tend to distort one’s view of the school system as a whole in terms of deciding whether black children continue to be educated in a segregated environment.”). As to the upper limit, the differing standards for elementary and secondary schools have become clumsy and obsolete. Given the rise in the black student population, the requirement that no secondary school operate with a majority black student population allows too little breathing room. The variance should be the same for both elementary and secondary schools to allow uniform flexibility. Indeed, the purpose and result of the 1980 modification, at that time, was to create uniform flexibility. A singular standard will provide a more accurate evaluation of the system than will the mishmash of standards gleaned from several orders. The only specific variance ever approved by the Court was a “plus 15%” deviation, so the Court will use a ±15% standard. Unless otherwise noted, the Court will refer to racial “balance” and “imbalance” based on this variance. Admittedly, this standard differs somewhat from the explicit standards set by the Court and is more restrictive than necessary The Court emphasizes, however, that there is no level of compliance with the standard that is determinative; the standard is simply a helpful framework for examining the degree of ideal racial balance in the system. Schools that are substantially outside of the variance will need reasonable and supportable explanations for the imbalance. Manning v. School Bd., 28 F.Supp. 2d 1353, 1357-58 (M.D.Fla.1998) (citing Swann, 402 U.S. at 26, 91 S.Ct. at 1281). b. The Level of CMS’s Compliance The parties’ expert witnesses testified about the degree of compliance with different conclusions based on how they manipulated the data and on what standard they applied. Some experts overstated the level of noncompliance by counting schools that are not within the scope of the Court’s orders. Witnesses for CMS and the Swann Plaintiffs sometimes labeled Hidden Valley as out of compliance, even though it is an exempt school. (See e.g., Tr. 6/10 at 113-16 (Test, of Dr. Gordon Foster); DX 6 Attach. C, Exs. lb, Id (Peterkin Rpt.).) Dr. Robert Peterkin, a CMS expert, inflated the number of “racially identifiable” schools by including several “special” schools, such as schools for the mentally and physically disabled, management schools for students with disciplinary problems, and schools for pregnant teenagers. (DX 6 Attach. C, Exs. la-lf (Peterkin Rpt.); DX 7 at 4, Ex. A-138-52 (Peterkin Rebuttal Rpt.); Tr. 6/18 at 48-52 (Test, of Dr. Robert Peterkin).) These schools are not properly included because students do not attend such schools under normal student assignment policies. In addition, Dr. Peterkin and Dr. Leonard Stevens, an expert for the Swann Plaintiffs, improperly characterized certain racially balanced schools as racially identifiable on the grounds that in-school assignment and placement practices segregated black students in classrooms. (DX 7 at 6 (Peterkin Rebuttal Rpt.); SX 2 at 22 (Stevens Rpt.).) Specifically, they attacked the practice of ability tracking, which tends to result in predominately black and predominately white classrooms. As discussed further below, no credible evidence was offered to show that CMS has tacked children in a discriminatory manner. See infra part II.B.7.b.ii. Ultimately, the Court must look to the CMS enrollment data to determine the degree of compliance over time. It would be wrong to focus only on a few select years. Dr. Peterkin, for example, emphasized the two most recent school years, (DX 6 at 3 (Peterkin Rpt.), Dr. Stevens only looked at compliance during the 1990s, (SX 2 at 2 (Stevens Rpt.)), and Dr. Gordon Foster, a CMS expert, only looked at nine out of the last twenty years. (DX 5 at 4 (Foster Rpt.).) This is too narrow a lense to examine CMS’s compliance. The potential for misleading interpretations was well-illustrated during the cross-examination of Dr. Foster. When asked what was more important in determining unitary status, the fact that a school had been in compliance for twenty-eight years or has been out of compliance for one year by two-tenths of a percentage point, Dr. Foster refused to say which one. (Tr. 6/10 at 81-82 (Test, of Dr. Gordon Foster).) This is simply unreasonable. It is expected that some schools will exceed a given variance due to student mobility, inaccurate enrollment projections, and other factors beyond CMS’s control. See Estes v. Metropolitan Branches of the Dallas NAACP, 444 U.S. 437, 448, 100 S.Ct. 716, 722, 62 L.Ed.2d 626 (Powell, J., dissenting from denial of certiorari) (“[Pjerfect solutions may be unattainable in the context of the demographic, geographic, and sociological complexities of modem urban communities.”); Swann, 402 U.S. at 31, 91 S. Ct. at 1283 (“Communities in our mobile society do not, however, remain demographically stable.”). If, over the course of three decades, a school has had a racially balanced student body for 90% of the time or greater, it is certainly reasonable to conclude that CMS has complied fully and satisfactorily with the Court’s orders as to that school. On the other hand, the continued existence of schools that are substantially racially imbalanced, especially when those schools are in areas of mixed population, requires close scrutiny. Swann, 402 U.S. at 25-26, 91 S. Ct. at 1281. It must be shown that assignments to such schools are genuinely non-discriminatory. Id. at 26, 91 S. Ct. at 1281. The available student enrollment data reveal that CMS has maintained a high level of desegregation since 1970. Of the 126 elementary, middle, and high schools currently operating, only twenty schools (16%) have had black student bodies higher than 15% above the district-wide ratio for more than three years, and only seventeen schools (13%) have had black student bodies lower than 15% below the district-wide ratio for more than three years In other words, relatively few schools in the system have long histories of racial imbalance. What is more, a great deal of the imbalance has involved borderline discrepancies of a few percentage points. In schools with relatively small student bodies, the displacement of only three or four black students would have put the school back into balance. (See Tr. 5/17 at 161-62 (Test, of Dr. Stephen Smith).) Since 1970, an overwhelming majority of schools — generally, 70% to 100% — have been racially balanced in any given school year. (See, PX 137 Figs. 1-2 (Armor Rpt.); DX 6 Ex. le (Peterkin Rpt.).) During this time, CMS has operated no all-black or all-white schools. (See DX 7 at Ex. A (Peterkin Rebuttal Rpt.).) Aside from Hidden Valley, which is exempted, no school’s black population has ever risen above 85%. (Id.) Only seven schools have ever had black populations in excess of 75%, and this did not occur until 1994. (Id.) In fact, no school ever had a black population exceeding 60% until 1988. (Id.) The remarkable level of desegregation shown by CMS’s enrollment data is further confirmed using the two summary indices of desegregation that are used in the field of desegregation research: the index of dissimilarity, which measures the degree of racial imbalance, and the index of interracial exposure, which measures “the average percent white in schools attended by blac