Full opinion text
Affirmed in part, reversed in part, vacated in part, and remanded by published opinion. Judge MOTZ and Judge KING wrote the opinion. Judge TRAXLER wrote a concurring and dissenting opinion. OPINION DIANA GRIBBON MOTZ & KING, Circuit Judges: Since 1954, the school boards throughout this country, including the Charlotte-Mecklenburg Board of Education, have been operating under a standing Supreme Court mandate to integrate their school systems and eliminate all vestiges of de jure segregation. Brown v. Board of Educ., 347 U.S. 483, 490, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (“Brown I”). During the twenty years following the Supreme Court’s mandate, the Charlotte-Mecklen-burg Board of Education (“CMS” or the “Board”) resisted all efforts to expedite desegregation, essentially arguing that, in light of the centuries over which the dual system of education had come to fruition, the Board would need a proportional period of time to develop remedies aimed at correcting past wrongs. Faced with this intransigence, the Supreme Court unanimously decided in -1971 that the Constitution required the Board to take affirmative measures, including the use of race-based ratios in student assignment, to eradicate vestiges of its invidious discrimination. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). Finally, in 1975, the Board began seeking to fulfill the Supreme Court’s mandate that public schools be desegregated with “all deliberate speed.” Brown v. Board of Educ., 349 U.S. 294, 299, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (“Brown II”). Today, with the Board having had less than twenty-six years to implement appropriate remedies, we must decide, whether the task of desegregating the Charlotte-Mecklenburg schools has reached its end. We hold that it has not. Over the Board’s own admission to the contrary, the district court concluded that the school system had achieved unitary status across the board. While the district court made findings sufficient to hold that CMS had achieved unitary status in some respects, the court failed to adequately explore the return of predominantly one-race schools as a vestige of segregation, rendering its findings insufficient to conclude that CMS has achieved unitary status in every respect. In an equally unprecedented ruling, the district court held that the school system, although operating under court orders to desegregate its Schools, violated the Constitution by employing a magnet school program that considered race in student assignment. On the contrary, because the Board’s expanded magnet schools program — and the race-sensitive method of student selection it employed — was undertaken both to remedy the effects of past segregation and to comply with governing court orders, they did not and could not violate the Constitution. ■ In this appeal, we consider the above rulings along with a number of related issues. As explained below, we affirm in part, reverse in part, vacate in part, and remand this case for further proceedings. I. A. In order to better understand the issues presented in this case, we must briefly review our country’s history of school desegregation litigation, in which CMS has played a prominent role. Even after slavery had been abolished for almost a full century, African-American children were, for the most part, either excluded from the public schools or educated separately from white children. “In fact, any education of Negroes was forbidden by law in some states.” Brown I, 347 U.S. at 490, 74 S.Ct. 686; see also Martin v. Charlotte-Mecklenburg Bd. of Educ., 475 F.Supp. 1318, 1324 (W.D.N.C.1979) (“For three centuries racial segregation was the law of the land.”). Indeed, throughout the early part of the 1900s, CMS operated a segregated school system within the safe harbor created by the Supreme Court’s doctrine of “separate but equal” articulated in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). In the middle of the 1900s, the Supreme Court began dismantling the great wall of segregation constructed under the imprimatur of Plessy. The Court initially sought to determine whether various “separate” African-American schools were genuinely “equal” to white schools by evaluating the quality of physical facilities, curricula, faculty, and certain “intangible” considerations. See, e.g., Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950); Sipuel v. Board of Regents of Univ. of Okla., 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247 (1948). In each instance, the Court concluded that they were not. Id. In 1954, the Supreme Court at last overruled Plessy, declaring that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Brown I, 347 U.S. at 495, 74 S.Ct. 686. Just one year later, the Court mandated that federal courts and school authorities take affirmative steps to achieve desegregation. Brown II, 349 U.S. at 299, 75 S.Ct. 753. Specifically, federal courts were to retain jurisdiction over desegregation cases during the period of transition, wielding their equitable powers to supervise school boards’ efforts to effectuate integration. Id. at 300-01, 75 S.Ct. 753. One of the most important obligations of the federal courts was to ensure that school boards were proceeding in good faith to desegregate the public schools “with all deliberate speed.” Id. at 301, 75 S.Ct. 753. With these seminal decisions— Brown I and Brown II — the Supreme Court promised the citizens of this country, and particularly African-American children, school systems “in which all vestiges of enforced racial segregation have been eliminated.” Wright v. Council of the City of Emporia, 407 U.S. 451, 463, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). Notwithstanding the Court’s repeated admonition that segregation and its vestiges be eliminated “root and branch,” Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), many school boards— CMS included — adopted “an all too familiar” response to the mandate of Broum, II, interpreting “all deliberate speed” “as giving latitude to delay steps to desegregate.” Freeman v. Pitts, 503 U.S. 467, 472, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). And so, lower federal courts, with the guidance and oversight of the Supreme Court, began fashioning equitable remedies to contend with school board recalcitrance. For example, in Green, the Supreme Court held that a “freedom of choice” plan, which permitted students — regardless of race— to choose the school they would attend, was by itself insufficient to meet the mandate of Brown. 391 U.S. at 430, 88 S.Ct. 1689. In so holding, the Court recognized that more intensive efforts would be necessary in order to make “meaningful and immediate progress toward disestablishing state-imposed segregation.” Id. at 439, 88 S.Ct. 1689. Subsequently, in this very case, the Court approved significant federal court intervention into a school system in order to eliminate segregation “root and branch,” including the busing of students from schools close to their homes to schools farther away, the use of race-based “mathematical ratios,” and the alteration of student attendance zones. Swann, 402 U.S. at 15, 25, 28, 30-31, 91 S.Ct. 1267. The Supreme Court has made clear, however, that a federal court’s “end purpose must be to remedy the violation and, in addition, to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.” Freeman, 503 U.S. at 489, 112 S.Ct. 1430. Hence, as a school system eliminates the vestiges of past official segregation from certain facets of its operations, courts possess the authority to relinquish supervision in a commensurate fashion. Id. at 489-91, 112 S.Ct. 1430. In this context, we examine the steps taken by CMS to eliminate the vestiges of segregation. B. 1. North Carolina’s most significant initial response to the mandate of Brown II was the “Pupil Assignment Act of 1955-56, under which [the Board had] the sole power to assign pupils to schools, and children [were] required to attend the schools to which they [were] assigned.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F.Supp. 1358, 1361 (W.D.N.C.1969). This was an ineffectual measure — perhaps intentionally so — and by 1964, no more than a few dozen (out of more than 20,000) African-American children in CMS were attending schools with white children. Id. at 1362. 2. In 1965, the parents of African-American children attending CMS (hereinafter the “Swann plaintiffs”) filed a class action seeking injunctive relief, claiming that the Board’s policies and practices were perpetuating a segregated school system. Swann v. Charlotte-Mecklenburg Bd. of Educ., 243 F.Supp. 667, 668 (W.D.N.C. 1965). On July 14, 1965, the district court approved a Board-proposed plan that closed certain black schools, built new schools, and established school attendance zones based on neighborhoods. But the linchpin of this plan was its grant of permission to each student — regardless of race — to freely transfer to a different school (often described as a “freedom of choice” plan). Id. In approving this plan, the district court held that CMS had no affirmative duty to “increase the mixing of the races”; instead, the Board’s obligation under Brown II, according to the court, was to act without the intent to perpetuate segregation. Id. at 670. The following year, this Court affirmed the district court’s interpretation of Brown II. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 369 F.2d 29, 32 (4th Cir.1966) (“Whatever the Board may do in response to its own initiative or that of the community, we have held that there is no constitutional requirement that it act with the conscious purpose of achieving the maximum mixture of the races in the school population.”). However, in the wake of the Supreme Court’s 1968 decision in Green, which struck down a desegregation plan founded predominantly on “freedom of choice,” it became clear that school boards did possess an affirmative obligation to desegregate, not merely an obligation to implement race-neutral policies. Green, 391 U.S. at 437-38, 88 S.Ct. 1689. Invigorated by the developing law, the Swann plaintiffs promptly filed a motion for further relief with the district court, seeking to expedite the desegregation process. 3. In 1969, Judge James B. McMillan, newly assigned to the Swann case, reexamined the Board’s actions in light of Green and determined that its “freedom of choice” plan, when coupled with geographic zoning, were “not furthering desegregation.” 300 F.Supp. at 1372. On the fundamental matters of assigning students and faculty, and the siting of new schools, the court made the following findings: — Student assignment: The court noted that a ratio of seventy percent white students to thirty percent black students, which approximated the ratio of white to black students in the county, tended to aid “better students [in holding] their pace, with substantial improvement for the poorer students.” Id. at 1369. — Faculty assignment: Although faculty members were not being assigned with a discriminatory purpose, there was also “no sustained effort to desegregate faculties.” Id. at 1370. The court ordered CMS to work actively to integrate the faculties, so that “a child attending any school in the system will face about the same chances of having a black or a white teacher as he would in any other school.” Id. — School siting: The court underscored that the desirability of implementing a “neighborhood school” policy, under which efforts were made to locate schools in neighborhoods and within walking distance for children, could not override the constitutional duty to desegregate. Id. at 1369. At the same time, CMS was not to avoid locating new facilities in black neighborhoods. Id. at 1371. In light of Green, Judge McMillan also ordered CMS to submit a new, amended desegregation plan, and he outlined certain possible remedies, including busing and rezoning. Swann, 300 F.Supp. at 1360; Swann v. Charlotte-Mecklenburg Bd. of Educ., 306 F.Supp. 1299, 1302 (W.D.N.C. 1969). Once again, however, CMS was slow to respond, prompting Judge McMillan to impose a deadline of August 4, 1969, by which the Board was to submit a detailed desegregation plan to the court. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F.Supp. 1381, 1382, 1386 (W.D.N.C.1969). CMS complied, and its proposed desegregation plan appeared to accept, for the first time, the constitutional duty to desegregate students, teachers, principals, and staffs “ ‘at the earliest possible date.’ ” Swann v. Charlotte-Mecklenburg Bd. of Educ., 306 F.Supp. 1291, 1293 (W.D.N.C.1969). The Board’s proposed desegregation plan, approved by the district court on an interim basis (“interim desegregation plan”), included programs for faculty desegregation, the closing of seven all-black schools, and the reassignment of pupils from the closed schools to outlying, predominantly white schools. Id. at 1298-99. In approving the plan on an interim basis, the district court noted that black children were bearing a disproportionate burden of the desegregation efforts, but the court nonetheless concluded that some action — even if interim — was preferable to none at all. Id. at 1298. Judge McMillan also ordered the Board to submit another desegregation plan within three months. In November and December 1969, the district court determined that the school system’s compliance with the interim desegregation plan was unsatisfactory, finding that the Board was continuing to perpetuate segregation: The School Board is sharply divided in the expressed views of its members. From the testimony of its members, and from the latest report, it cannot be concluded that a majority of its members have accepted the court’s orders as representing the law which applies to the local schools. By the responses to the October 10 questions, the Board has indicated that its members do not accept the duty to desegregate the schools at any ascertainable time; and they have clearly indicated that they intend not to do it effective in the fall of 1970. They have also demonstrated a yawning gap between predictions and performance. Swann, 306 F.Supp. at 1306. At that time, the district court also reviewed and rejected the Board’s newly submitted amended desegregation plan. Id. at 1313-14. Then, the court appointed Dr. John A. Finger, Jr. as an expert consultant to prepare a more acceptable plan. This appointment came nearly two years after the Supreme Court’s Green decision and more than fifteen years after Brown I. The district court ultimately adopted Dr. Finger’s proposed plan for elementary schools and the Board’s plan, as modified by Dr. Finger, for secondary schools (collectively the “Finger Plan”). Swann v. Charlotte-Mecklenburg Bd. of Educ., 311 F.Supp. 265, 268-70 (W.D.N.C.1970). In doing so, the court again observed the Board’s failure to make an effective beginning to desegregation: “The School Board, after four opportunities and nearly ten months of time, have failed to submit a lawful plan (one which desegregates all -the schools). This default on their part leaves the court in the position of being forced to prepare or choose a lawful plan.” Id. at 267. The Finger Plan included several components. First, students were 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. at 268. Second, “no school [could] be operated with an all-black or predominantly black student body.” Id. Third, in redrawing the school system’s attendance zones, the Board was authorized to use bus transportation and noncontiguous “satellite zones” to accomplish its goals. Id. Fourth, the district court restricted the student transfer policy in order to safeguard against resegregation. Id. at 268-69. Fifth, the race of faculty members at each school -had to approximate the ratio of black and white faculty members throughout the system. Id. at 268. Sixth, the overall competence of teachers at formerly black schools could not be inferior to those at formerly white schools. Id. Finally, the district court mandated that the Board monitor and report on its progress in implementing the plan. Id. at 269. The Finger Plan was challenged on several occasions and, in 1971, the Supreme Court upheld it as a valid exercise of the district court’s equitable powers. Swann, 402 U.S. at 31-32, 91 S.Ct. 1267. Indeed, the Court specifically found that the district court’s adoption of a student assignment plan that used race-based “mathematical ratios” as a starting point was well within the court’s “equitable remedial discretion.” Id. at 25, 91 S.Ct. 1267. Even after the Supreme Court’s decision in Swann, the district court found that the Board’s desegregation efforts failed to meet constitutional requirements. For example, Judge McMillan ordered student assignment proposals revised in June 1971, finding that the proposals “were discriminatory in detail and in overall result; they placed increasing burdens upon black patrons while partially relieving white patrons of similar burdens.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 328 ’ F.Supp. 1346, 1347 (W.D.N.C.1971). During the 1971-72 and 1972-73 school years, the district court attempted a “hands-off’ approach, leaving the Board to remedy problems as they arose, but the court twice found that the Board still had not adopted sufficient measures to guard against resegregation and ensure that whites were bearing an appropriate share of the desegregation burden. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 362 F.Supp. 1228, 1230 (W.D.N.C.1973); Stuann v. Charlotte-Mecklenburg Bd. of Educ., 379 F.Supp. 1102 (W.D.N.C.1974); see also discussion of specific findings infra. The 1974 order expressed somewhat more optimism about the Board’s desegregation efforts. In that order, Judge McMillan approved a student assignment proposal that, if implemented properly, would result in “a fair and stable school operation” and would permit the court to close the case as an active matter. See 379 F.Supp. at 1103. The proposal made provisions for several “optional schools”— schools that would offer some specialized program or curriculum and thereby attract students of all races from across Charlotte and Mecklenburg County. Although Judge McMillan approved the incorporation of these schools into the plan, he cautioned that the optional schools would be inconsistent with the school board’s constitutional obligations if they merely served to re-institute “freedom of choice.” Id. at 1104 (“ ‘Freedom of choice’ was a synonym for segregation for many years, and ... it should not be resurrected at this late date sub nom. ‘optional schools’ without adequate safeguards against discriminatory results.”). To ensure that the optional schools served their stated purpose of furthering the process of desegregation,Judge McMillan decreed that “optional school enrollments will be controlled starting with 1974 so that they ... have about or above 20% black students.” Id. Finally, in July 1975, over twenty years after the mandate of Brown II, Judge McMillan for the first time observed, albeit with reservations, that the Board was actually working toward desegregation: “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.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 67 F.R.D. 648, 649 (W.D.N.C.1975). Although the district court cautioned that problems remained, the new vigor with which the Board was pursuing desegregation persuaded Judge McMillan to close Swann as an active matter of litigation and to remove it from the court’s docket. Id. at 649-50. In so acting, the court reaffirmed that its orders still stood: “[t]his case contains many orders of continuing effect, and could be reopened upon proper showing that those orders are not being observed.” Id. at 649. 4. Between 1975 and 1992, two significant actions were taken in connection with the CMS desegregation litigation. a. First, in 1978, a group of white parents and children brought suit against CMS, seeking an order prohibiting the Board from assigning children pursuant to the Board’s latest student-assignment plan. See Martin, 475 F.Supp. at 1320. The Martin plaintiffs claimed that the Supreme Court’s then-recent decisions in Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 436, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), and Regents of University of Cal. v. Bakke, 438 U.S. 265, 305, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), prohibited any consideration of race in student assignment. 475 F.Supp. at 1321. The Swann plaintiffs intervened in Martin, joining the Board’s opposition to the contentions of the Martin plaintiffs. Id. A brief review of Spangler and Bakke is necessary to an understanding of Martin. In Spangler, the Supreme Court held that because the Pasadena Unified School District (“PUSD”) had achieved racial neutrality in its school attendance pattern, “the District Court was not entitled to require the PUSD to rearrange its attendance zones each year so as to ensure that the racial mix desired by the court was maintained in perpetuity.” 427 U.S. at 436, 96 S.Ct. 2697. All parties in Spangler agreed that the plan initially achieved racial neutrality in student attendance; nonetheless, the district court had believed it was empowered to annually readjust school boundaries to ensure in perpetuity that there would be no majority of any minority race at any Pasadena school. Id. at 433, 436, 96 S.Ct. 2697. In Bakke, the Supreme Court determined that a public university with no history of discrimination could not constitutionally reserve sixteen out of one hundred admission slots for racial minorities. 438 U.S. at 319-20, 98 S.Ct. 2733. In striking down this admissions plan, the Court had made clear that “[wjhen a classification denies an individual opportunities or benefits enjoyed by others solely because of his race or ethnic background, [it must] be regarded as [constitutionally] suspect.” Id. at 305, 98 S.Ct. 2733. Judge McMillan, who retained jurisdiction over Swann and presided over Martin, first held that because CMS had not achieved racial neutrality in student attendance, consideration of race in student assignment policies was appropriate under Sivann. See Martin v. Charlotte-Mecklenburg Bd. of Educ., 626 F.2d 1165 (4th Cir.1980). He explained that because the student assignment policy in the CMS school system had been independently adopted by the Board, it was not established, as the Spangler policy had been, via judicial coercion or order. 475 F.Supp. at 1340-43. Second, Judge McMillan ruled that Bakke was inapposite to the claims of the Martin plaintiffs. Specifically, the court reasoned that no child was being denied access to equal educational opportunity because of race, see id. at 1321, and the actions of the Board were therefore not 'constitutionally suspect under Bakke. In upholding the independent actions of the Board, Judge McMillan made several important findings. For example, he found that discrimination had.not ended; indeed, it was this very finding that led the court to uphold the 1978 race-conscious student assignment policy. Id. at 1346-47. Also, although for the first time the district court praised the efforts of the Board without reservation, it underscored yet again the need for patience and continued efforts: It took three centuries to develop a slave culture, to fight a bloody civil war, and to live through the century, of racial turmoil after that war. The culture and attitudes and results of three centuries of segregation cannot be eliminated nor corrected in ten years. Human nature and practices don’t change that fast, even in the hands of people of good will like the members of the present School Board. They need time to work their own experiments, and to find their own ways of producing the sustained operation of a system of schools in- which racial discrimination will play no part. I vote to uphold their efforts to date, and to give them that time. Id. at 1347. In 1980, we affirmed the district court’s decision in Martin. See 626 F.2d at 1165. b. The second significant phase of litigation between 1975 and 1992 was initiated in 1980. At that time, CMS and the Sivann plaintiffs notified the district court that the black student population in CMS elementary schools had grown from twenty-nine percent to forty percent, making it increasingly difficult to comply with the desegregation order’s mandate to avoid majority-black elementary schools. In response to this change, Judge McMillan approved a modification to the desegregation plan. Instead of prohibiting a “predominantly black student body,” the court permitted CMS to operate elementary schools with a black student population of “plus 15 percent” above the district-wide average. Thus, if the school district averaged forty percent black students, any individual school could have fifty-five percent black students. 5. From 1981 to 1992, the Board continued to operate its desegregation plan as approved by the district court, focusing, inter alia, on satellite attendance zones, a feeder plan (assigning middle-school students from a certain neighborhood to identified high schools), school closings, and construction of new schools. Then, in 1992, CMS substantially increased its reliance on “optional” or magnet schools (the “expanded magnet schools program”). The Board placed new emphasis on magnet schools in order to phase out “pairing” and heavy reliance on busing, and to give parents more choice in school selection. It was the expanded magnet schools program that, ultimately led to the present phase of this litigation. 6. In September 1997, William Capac-chione, individually and on behalf of his daughter Christina, sued CMS claiming that Christina was unconstitutionally denied admission to a magnet school. Christina is Hispanic and Caucasian, and her suit under 42 U.S.C. § 1983 sought declaratory, injunctive, and compensatory relief. In response, CMS moved to dismiss Capacchione’s suit and, almost simultaneously, the Swann plaintiffs moved to reactivate Swann, claiming that CMS was not yet in compliance with past desegregation orders and had not yet achieved unitary status. Because Judge McMillan had died, the cases were assigned to Senior Judge Robert D. Potter, who restored Swann to the district court’s docket, consolidated the cases, denied CMS’s motion to dismiss, and granted Capacchione’s motion to intervene. The Capacchione plaintiffs claimed that CMS had long since eliminated the vestiges of segregation in its schools, and that its formerly dual system of white and black schools had, for some time, been unitary. They also contended that CMS, while still operating under the court’s desegregation orders, had violated those orders and the constitutional rights of white students in its efforts to desegregate the school system by employing a race-conscious assignment lottery in its expanded magnet schools program. The Swann plaintiffs countered that the school system had not yet achieved unitary status. CMS acknowledged that it was not yet in compliance with past desegregation orders and agreed that it should not be declared to have achieved unitary status. CMS also contended that, in any event, the expanded magnet schools program constituted an entirely constitutional and appropriate integration tool authorized under the desegregation orders in this case. The Swann plaintiffs, while endorsing the concept of magnet schools, argued that the expanded magnet schools program, as implemented, was contributing to the resegregation of the school system. Following a bench trial conducted from April 19 to June 22, 1999, the court, on September 9, 1999, filed its Memorandum of Decision and Order, from which this appeal is taken. See Capacchione v. Charlotte-Mecklenburg Sch., 57 F.Supp.2d 228 (W.D.N.C.1999). Although the Board claimed that unitary status had not been achieved, the district court found that it had. In its ruling, the district court then found that the Board’s expanded magnet schools program, even though instituted to effect court-ordered desegregation, was unconstitutional. Furthermore, the court enjoined the Board from “assigning children to schools or allocating educational opportunities and benefits through race-based lotteries, preferences, set-asides, or other means that deny students an equal footing based on race.” Id. at 294. Finally, the court awarded the Capacchione plaintiffs nominal monetary damages and substantial attorney’s fees. Following the filing of timely notices of appeal, the Swann plaintiffs and CMS sought a stay of Judge Potter’s September 9, 1999 injunction. On December 30, 1999, we granted the requested stay pending further order of this court. Thereafter, the Capacchione plaintiffs petitioned for an initial hearing en banc, which was denied by an eight-to-three vote of the Court. Belk v. Charlotte-Mecklenburg Bd. of Educ., 211 F.3d 853 (4th Cir.2000). The panel heard argument in these appeals on June 7, 2000. C. We are now called upon to review the district court’s various determinations relating to these consolidated appeals. Having reviewed and carefully considered each of the important questions determined by the district court, we affirm in part; however, we must reverse in part, and we must vacate and remand on certain issues. The district court’s findings suffice to uphold its determination that the Board achieved progress toward desegregation in the 1970s and 1980s, and the court was therefore justified in concluding that CMS had achieved unitary status in some respects. However, the district court’s findings do not support its conclusion that CMS has attained unitary status in every respect. Moreover, even if CMS could now properly be found to have achieved unitary status in toto, it would be inappropriate to assess the expanded magnet schools program as if there had been no court order in place. The expanded magnet schools program and the race-conscious lottery, it employed were undertaken to remedy the effects of past segregation and were in compliance with court orders governing this case; they do not violate the Constitution. Consequently, the award of nominal damages, substantial attorney’s fees, and an overbroad injunction barring any future consideration of race in school assignments and other fundamental aspects of school operations cannot stand. II. We first address the district court’s unitary status decision. The determination of whether any part of a school system has achieved unitary status is a factual one; therefore, we review the district court’s findings as to unitary status for clear error. See Riddick v. School Bd. of the City of Norfolk, 784 F.2d 521, 533 (4th Cir.1986); see also Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F.2d 945, 952 n. 3 (11th Cir.1989) (citing United States v. Texas Educ. Agency, 647 F.2d 504, 506 (5th Cir. Unit A 1981)). We do not, however, defer to the district court on conclusions of law, including the district court’s understanding of controlling law or the various burdens of prodf and presumptions; consequently, we review any such conclusions of law de novo. See, e.g., In re Brice, 188 F.3d 576, 577 (4th Cir.1999). A. 1. Indisputably, the school system of Charlotte-Mecklenburg County subjected African-Americans to nearly a century of segregation and discrimination. Indeed, the Supreme Court recognized as much in Swann, noting that North Carolina was one of the states with “a long history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race.” 402 U.S. at 5-6, 91 S.Ct. 1267. In this context the remedies forcefully endorsed in Brown II, including the use of race conscious measures, are necessary to eradicate the invidious segregation at which they are aimed. Moreover, court supervision over local school boards, also embraced in Brown and its progeny, is entirely appropriate whenever “school authorities fail in their affirmative obligations” “to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated.” Swann, 402 U.S. at 15, 91 S.Ct. 1267. Not only are the federal courts entitled to supervise and direct the actions of local school boards under those circumstances, but the scope of federal authority is almost plenary: “Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Id. There is no doubt that CMS was justifiably subjected to federal court supervision; in fact, even after the Board had been subjected to court supervision, it had to be repeatedly ordered to begin the process of desegregation. Ultimately, however, the goal in a desegregation case such as this is to reach the point at which federal supervision is no longer warranted and the use of race-conscious measures is no longer necessary. See Freeman, 503 U.S. at 489, 112 S.Ct. 1430. The Supreme Court has identified six factors (collectively the “original Green factors”) that must be free from racial discrimination before the mandate of Brown is met: (1) student assignment, (2) physical facilities, (3) transportation, (4) faculty, (5) staff, and (6) extracurricular activities. Green, 391 U.S. at 435, 88 S.Ct. 1689. Not only are reviewing courts to ascertain whether these original Green factors are free from racial discrimination, but courts also are entitled, in their discretion, to identify other factors (“ancillary factors”) and “determine whether minority students were being disadvantaged in ways that required the formulation of new and further remedies to ensure full compliance with the court’s decree.” 503 U.S. at 492, 112 S.Ct. 1430. 2. For school systems proceeding through the difficult process of desegregation, the Supreme Court has adopted the goal of achieving unitary status. Freeman, 503 U.S. at 486-87, 112 S.Ct. 1430; Board of Educ. of Okla. City Pub. Sch. v. Dowell, 498 U.S. 237, 245-46, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). Although prior to the Court’s Dowell and Freeman decisions federal courts used the term “unitary status” somewhat inconsistently, see Freeman, 503 U.S. at 486-87, 112 S.Ct. 1430; Green, 391 U.S. at 437-38, 88 S.Ct. 1689, the term has now come to mean that the school system has been unified such that the vestiges of segregation have been eliminated to the extent practicable. Freeman, 503 U.S. at 487, 112 S.Ct. 1430; Green, 391 U.S. at 437-38, 88 S.Ct. 1689. When a school system achieves unitary status, federal courts must withdraw supervision over the local school board. In this case, Judge Potter declared that CMS had achieved unitary status in every respect. The Supreme Court has directed that an appellate court review a district court’s unitary status determination by applying a two-part inquiry (the “Freeman inquiries”). An appellate court must determine if (1) a school Board has, in good faith, complied with the desegregation decree since it was entered; and (2) the vestiges of de jure segregation in the school system have been eliminated to the extent practicable. See Freeman, 503 U.S. at 492, 112 S.Ct. 1430 (citing Dowell, 498 U.S. at 249-50, 111 S.Ct. 630). If the party seeking a declaration of unitary status cannot demonstrate that the school system has achieved unitary status in its entirety, we then undertake to determine whether the school system has achieved unitary status with respect to one or some of the Green factors (“partial unitary status”). At that point, we apply, with respect to each Green factor, the two Freeman inquiries along with one additional Freeman-m&aásÁ&á inquiry: “whether retention of judicial control [over one aspect of the school system] is necessary or practicable to achieve compliance with the decree in other facets of the school system.” Freeman, 503 U.S. at 491, 112 S.Ct. 1430. This third Freeman inquiry recognizes that the Green factors are — to a great extent — interrelated, and when determining whether judicial supervision over a school board may be withdrawn, the overlap between the Green factors is a crucial consideration. The Freeman analysis brings us to the most difficult questions presented in any desegregation case: whether present racial isolation is a vestige of past segregation and, if so, whether a school board can practicably reduce that racial isolation. It is even difficult to define “vestige” in this context. See id. at 502, 112 S.Ct. 1430 (Scalia, J., concurring) (“We have never sought to describe how one identifies ... a ‘vestige’ or a ‘remnant’ of past.... ”). The vestiges “that are the concern of the law may be subtle and intangible but nonetheless they must be so real that they have a causal link to the de jure violation being remedied.” Id. at 496, 112 S.Ct. 1430 (Kennedy, J.); see also id. at 512,112 S.Ct. 1430 (Souter, J., concurring) (citing Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 465 & n. 13, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979) and Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 211 & n. 17, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973)) (court must order affirmative remedy where school board’s conduct “create[d] or contribute^] to” racial identifiability of schools). We adhere to the most common-sense meaning of “vestige”: it is a condition or occurrence causally related to the former de jure system of segregation. Because a school system’s duty to eliminate such vestiges is restricted by the availability of practicable measures for doing so, see Freeman, 503 U.S. at 492, 112 S.Ct. 1430, it is also incumbent on us to consider practicability. In determining the practicability of further measures, the district court must look to numerous indi-cia of the system’s operation. Practicability depends on the feasibility of the proposed method, from both a financial and an administrative perspective. Cf. id. at 481-83, 493-97, 112 S.Ct. 1430. Whether a measure is practicable also depends on whether it is “directed to curing the effects of the specific violation,” and whether it is likely to do so. Id. at 497, 112 S.Ct. 1430. Our duty, in reviewing Judge Potter’s decision, see Capacchione, 57 F.Supp.2d at 228, is clear. We must examine each Green factor and ascertain whether unitary status has been achieved with respect to any or all of them. Because the district court declared the entire CMS school system to have achieved unitary status, we must assess, with respect to each Green factor, whether the Board has complied, in good faith, with the desegregation decree and whether the vestiges of segregation have been eliminated to the extent practicable. See Freeman, 503 U.S. at 492, 112 S.Ct. 1430 (citing Dowell, 498 U.S. at 249-50, 111 S.Ct. 630). If the school system has not achieved unitary status in its entirety, then, consistent with Freeman, we also must weigh the degree of interrelatedness existing between the various Green factors. B. By way of introduction to our analysis of this case, we first address a fundamental flaw in the district court’s proceedings — a flaw arising from the district court’s failure to give any consideration to a remedial plan sought to be admitted as evidence by CMS. Following the filing of the Capac-chione plaintiffs’ Complaint in Intervention, the Board undertook to produce a comprehensive analysis of whether vestiges of de jure segregation existed in CMS and whether any such vestiges could be practicably remedied. The Board analyzed available data and identified several vestiges remaining; then, in line with the mandate of Freeman, the Superintendent of CMS developed a plan containing practicable remedial steps. The Board independently reviewed this plan and, on March 30, 1999, adopted the “Charlotte-Mecklen-burg Schools’ Remedial Plan to Address the Remaining Vestiges of Segregation” (the “Plan” or “Remedial Plan”). J.A. 11029. Consistent with pretrial deadlines, CMS filed the Remedial Plan with the district court as a potential exhibit at trial. J.A. 11028. At the pretrial conference conducted. on April 13, 1999, the Capacchione plaintiffs moved in limine to exclude the Remedial Plan. In essence, the Capac-chione plaintiffs maintained that the trial had been bifurcated into two phases and that only unitary status was at issue in the first phase. They further maintained that the Remedial Plan contained proposed remedies that could only be implemented if CMS was determined not to have achieved unitary status. Because the unitary status question had not yet been resolved, they claimed that the Remedial Plan (which the Capacchione plaintiffs characterized as a damages report) was irrelevant. In opposing exclusion of the Remedial Plan, CMS and the Swann plaintiffs relied on the Supreme Court’s Freeman analysis. J.A. 1421. Specifically, they asserted that each unitary status determination encompassed in the first phase of the trial turned on “whether the vestiges have been remedied to the extent practicable.” Id. (emphasis added). The Remedial Plan, they claimed, was not merely relevant, but crucial, to establishing both the existence of vestiges of segregation and the practicability of remedial measures. Judge Potter responded with two rulings. First, Judge Potter explained in assessing whether CMS had achieved unitary status that he believed Freeman required him to consider just one thing: “only ... what CMS has done, not what it may do in the future.” See Order of April 14, 1999 at 4. Second, based on this understanding of Freeman and the unitary status test, Judge Potter concluded that the Remedial Plan was irrelevant: “If the Court later determines that additional remedial measures are needed, it may consider the plan. Until that time comes, however, the Court will not get mired in the complex details and mechanics of a proposed plan.” Id. at 5. We believe Judge Potter erred in both of these rulings. First, he misapprehended Freeman and its test for unitary status. At the outset, Freeman explicitly rejects, as a matter of law, the very analysis adopted by the district court. That is, under Freeman, a district court must consider (1) compliance with prior orders (i.e., “what CMS has done”), and (2) whether vestiges have been eliminated to the extent practicable (i.e., “what [CMS] may do in the future”). See Freeman, 508 U.S. at 491, 112 S.Ct. 1480; see also Order of April 14, 1999 at 4. By construing Freeman’s unitary status test to include the former (“what CMS has done”) but not the latter (“what [CMS] may do in the future”), Judge Potter erred as a matter of law. The Remedial Plan directly addresses the latter inquiry, and it does so in an apt, informed manner, relying on the considered opinions of highly capable professionals retained to analyze the latest available data. In other words, the district court’s second reason for excluding the Plan — relevancy—also fails to withstand scrutiny. There is no doubt that Judge Potter had wide discretion on this issue, but relevancy is a fluid concept under the Federal Rules of Evidence. See Fed. R.Evid. 401 (defining relevant evidence as “having any tendency to make the existence” of any material fact “more probable or less probable than it would be without the evidence”). Consequently, relevancy typically presents a rather low barrier to admissibility. See, e.g., United States v. Van Metre, 150 F.3d 339, 349 (4th Cir. 1998) (citing United States v. Powers, 59 F.3d 1460, 1465 (4th Cir.1995)). However, we need not rely on the minimal threshold encompassed in the test for relevancy because this Remedial Plan would be relevant under any reasonable test. The Remedial Plan identified record evidence (including the deposition testimony of several experts) supporting the Board’s belief that vestiges of de jure segregation in CMS remain apparent in (1) faculty assignment and quality, (2) physical facilities and the allocation of instructional resources, (3) student achievement, and (4) student assignment. More importantly, the Remedial Plan detailed specific steps that the Board proposed to undertake over the course of the ensuing five years “with a goal of achieving unitary status at that time.” J.A. 11029. Without a doubt, federal courts possess the final word in deciding whether a particular school system is operating within the parameters of the Constitution. Appreciable weight must be given, however, to the views of those selected by the community to administer the system. See Dowell, 498 U.S. at 248, 111 S.Ct. 630 (noting specialized knowledge possessed by local school officials). In refusing to consider the Plan, the district court erroneously failed to accord the Board’s official position any weight, much less the respect that it was due. That the district court so completely disregarded this crucial evidence is telling. Nonetheless, we have carefully examined each conclusion below, ever mindful of the deference accorded the factfinder. The manifest importance of this case (quite apart from the substantial time and energy invested by the parties and the court below) demands that we carefully explain the myriad aspects of our decision today. We now embark upon that task. 1. Student Assignment Of all the Green factors, the most fundamental is the degree of racial imbalance in student assignment. Freeman, 503 U.S. at 474, 112 S.Ct. 1430. Uniformity in the racial composition of a given school was the hallmark of official discrimination, “for under the former de jure regimes racial exclusion was both the means and the end of a policy motivated by disparagement of, or hostility towards, the disfavored race.” Id. Court-ordered desegregation was designed to meet the enemy headon; the long-term stability of attempts at racial balancing in student assignment is often seen as the most conspicuous indication of the courts’ success (or lack thereof) in combating the underlying societal evil. We must now determine whether present racial isolation in CMS may be a vestige of the former dual system, and, if so, whether there are practicable measures CMS could take to reduce or eliminate that isolation. In doing so, we are bound to focus particularly on the Board’s record of compliance with the district court’s desegregation orders. See id. at 492 (citing Dowell). Because significant and growing racial imbalances in student assignment do exist in CMS, because the Board for decades has failed to comply with certain specific decrees of the district court (particularly regarding the siting of new schools), because these failures may have contributed to current racial isolation, and because future compliance might practicably reduce this racial isolation, we must vacate the district court’s finding that CMS has achieved unitary status with respect to student assignment. a. In the wake of the 1970 desegregation order, virtually all of the schools in CMS operated in racial balance for a considerable time. By 1998-99 however, nearly thirty percent of the schools in the system had become racially identifiable. Of the 126 schools included in the CMS desegregation plan, twenty-three are identifiably black and thirteen more are identifiably white. J.A. 11587. Further, virtually all of the identifiably black schools are located in either the inner city or in the immediate northwest-to-northeast suburbs, the areas of Mecklenburg County with the highest concentration of African-Americans. In stark contrast, all thirteen of the identifiably white schools are found in the extreme northern and southern areas of the county, both of which (and particularly the latter) have seen dramatic increases in white population during the past thirty years. The trend in CMS toward resegre-gation of its schools has accelerated markedly since the move to de-emphasize satellite zones and mandatory busing in 1992. In the last seven years, the number of CMS African-American students who attend racially identifiable schools (now almost three in ten) has risen fifty percent. J.A. 9589. Indisputably, from 1981 until 1997, the CMS school system went through significant demographic changes. For example, the total population of Mecklenburg County has grown from 354,656 in 1970 to 613,-310 in 1997. J.A. 16247. Almost 100,000 children attend CMS, making it the twenty-third largest school system in the country. J.A. 7107. During the period from 1970 to 1997, the black school-age population (ages 5 through 17) in the county has increased by approximately 10,000. J.A. 16247. Over the same period, the corresponding white school-age population has decreased by approximately 3,000, id., and by 1997, African-Americans comprised 34 percent of the county’s school-age population, the total of which numbered approximately 108,600. Evidence before the district court revealed that, since 1970, the growing African-American population has migrated outward from the inner city into formerly white suburbs. In turn, many white citizens who formerly populated the city’s periphery have moved even farther into the county’s outlying reaches. Though parts of the county have become more integrated as the result of these shifts, a disproportionately large number of African-Americans still reside in contiguous clusters generally north and west of the downtown area. The primary issue we must address is whether the thirty-six racially identifiable schools in CMS represent a vestige of segregation — that is, whether the present racial isolation is causally related to the prior system of de jure segregation. The Swann plaintiffs argue, and CMS agrees, that current racial isolation, like the racial isolation of the 1960s and 1970s, results both from past inequities that, to some extent, have persisted to this day, and from the Board’s failure to comply with certain specific directives in the remedial decrees in this case. Because CMS has not previously been adjudged to have achieved unitary status in student assignment, we are bound under Swann to presume that the current racial imbalance in the school population constitutes a continuing vestige of segregation. 402 U.S. at 26, 91 S.Ct. 1267. The Capacchione plaintiffs have the burden of showing that the present existence of predominantly one-race schools in CMS “is not the result of present or past discriminatory action.” Id.; see also Riddick, 784 F.2d at 535. Our unwillingness to affirm the conclusion that CMS is unitary with respect to student assignment centers on the Board’s failure to comply with court orders regarding selection of sites for the construction of new schools. The role of school siting in achieving sustainable desegregation should not be underestimated. In fact, the importance of site selection has been apparent since the early stages of this case. As the Supreme Court explained in 1971: In the past [site selection] choices ... have been used as a potent weapon for creating or maintaining a state-segregated school system.... [S]chool authorities have sometimes, since Brown, closed schools which appeared likely to become racially mixed through 'changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of “neighborhood zoning.” Such a policy does more than simply influence the short-run composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with “neighborhood zoning,” further lock the school system into the mold of separation of the races.... In ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is thus a factor of great weight. Swann, 402 U.S. at 21, 91 S.Ct. 1267. Subsequent to the Supreme Court’s decision in Swann, Judge McMillan specifically ordered that site selection for new schools could not “be predicated on population trends alone.” 379 F.Supp. at 1107. New schools were “to be built where they can readily serve both races.” Id. In the 1979 Martin decision, Judge McMillan devoted an entire section of his opinion to demonstrating that “construction, location and closing of school buildings continue to promote segregation.” 475 F.Supp. at 1329. Judge McMillan explained that “[t]he location of schools plays a large if not determinative role in ... insuring that any given assignment and feeder plan will provide meaningful desegregation, rather than just the predictably short lived appearance of desegregation.” Id. at 1332. In the years since this decree was issued, CMS has built twenty-five of twenty-seven new schools in predominantly white suburban communities. In the mid-1980s, CMS adopted a formal policy of building “midpoint” schools — schools located midway between black and white population centers. There is little evidence, however, to suggest that CMS faithfully adhered to this policy. Rather, record evidence strongly indicates that the policy influenced the site selection for, at most, four of the twenty-seven new schools. See J.A. 15404-06. Meanwhile, as we discuss infra, there is substantial evidence that CMS has allowed many of its older school facilities in the city — schools attended in disproportionate numbers by African-American students — to fall into a state of disrepair. The Board’s record of building the great majority of its new schools on the predominantly white suburban fringe of the county supports two possible conclusions. On one hand, CMS could have been responding to demographic reality — a demand for new classrooms in areas of high population growth (although we note that the number of white students in CMS has decreased since 1970, while the black student population has greatly increased). On the other hand, the Board’s pattern of school construction could have facilitated or even hastened white flight to the suburbs. As the Supreme Court explained in Swann, “[pjeople gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods.” 402 U.S. at 20-21, 91 S.Ct. 1267. The Board’s school siting policies could well evidence its lack of political will in the face of pressure to abandon desegregative policies — pressure from families who “are concerned about the racial composition of a prospective school and [who] will make residential decisions accordingly.” Freeman, 503 U.S. at 513, 112 S.Ct. 1430 (Blackmun, J., concurring). There is certainly no evidence that CMS has intentionally sought, through its school siting policies, to “lock the school system into the mold of separation of the races” in the way that the Supreme Court described in Swann. But the actual choices the Board has made with regard to school siting may in fact be quite similar to the “pattern of school construction and abandonment” described by the Court, with the actual effect that the Court feared of “lock[ing] the school system” into a condition of racial isolation. 402 U.S. at 21, 91 S.Ct. 1267. We cannot conclude, at least in the absence of further fact-finding, that CMS, in choosing sites for new schools, has pursued “meaningful desegregation, rather than just the predictably short lived appearance of desegregation.” 475 F.Supp. at 1332. Rather, the Board’s practice of siting new schools such that they could not reasonably be expected to serve a racially balanced student population and Judge McMillan’s determination that this practice, in the past, represented the school system’s failure to eliminate the vestiges of segregation, together raise a strong inference that those vestiges remain today. When this inference is viewed in combination with the burden borne by the Capac-chione plaintiffs to show that current racial imbalances have no causal link to past discrimination, we are compelled to conclude that a remand to the district court is required. Although we defer to a district court’s findings of fact unless clearly erroneous, Judge Potter’s error here came in his application of the legal standard to the evidence regarding the Board’s school siting policies. Judge Potter found that (1) CMS had not discriminated on the basis of race in choosing sites for new schools and that (2) CMS had incorporated racial diversity as one of its factors in site selection. Even assuming arguendo that both findings are not clearly erroneous, neither is sufficient to support the legal conclusion that in siting new schools CMS acted in compliance with the governing court orders and Constitution to eliminate the vestiges of segregation to the extent practicable. “To fulfill this duty, school officials are obligated not only to avoid any official action that has the effect of perpetuating or reestablishing a dual school system, but also to render decisions that further desegregation and help to eliminate the effects of the previous dual school system.” Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090, 1095 (11th Cir.1992) (citing Pitts v. Freeman, 755 F.2d 1428, 1427 (11th Cir.1985)). Therefore, CMS had to do more than merely select sites for new schools on a nondiscriminatory basis. It had to do more, too, than simply give some consideration to “diversity” in its selection of sites. To the extent practicable, CMS had to site new schools “where they can readily serve both races.” 879 F.Supp. at 1107; see also Swann, 402 U.S. at 21, 91 S.Ct. 1267; Martin, 475 F.Supp. at 1329-32. Judge Potter never found that CMS had met this standard, and as outlined within, there is substantial record evidence that CMS did not do so. In accordance with Swann, the burden is on the Capacchione plaintiffs to prove that vestiges of past discrimination do not remain, or that nothing can practicably be done to remedy them. We note that Judge McMillan, in his last published decision in this case, clearly evidenced his understanding both that CMS had not done all that it could do in the area of school siting and that future school siting decisions could practicably advance the process of desegregation. On remand, it is thus incumbent on the Capacchione plaintiffs to demonstrate that conditions in Charlotte and Mecklenburg County have changed sufficiently such that school siting no longer represents a practicable opportunity to eliminate the vestiges of segregation. The Swann plaintiffs have identified additional areas in which CMS has fallen short of its obligations under the court orders. For the life of the desegregation orders, CMS has consistently placed the heaviest burden of mandatory busing on African-American students. Currently, 80% of those students who ride the bus as a result of a mandatory assignment are African-American. J.A. 11515. Judge McMillan repeatedly ordered CMS to distribute this burden more fairly. See 475 F.Supp. at 1339-40, 379 F.Supp. at 1103-04, 362 F.Supp. at 1232-33. Yet, CMS has utterly failed to do so. In addition, CMS has never developed an effective system for monitoring student transfers to ensure that the overall effect of such transfers is not to increase the racial imbalance in the system as a whole. Again, this represents a failure to comply with the explicit instructions of the district court. See 475 F.Supp. at 1337-38, 379 F.Supp. at 1103-04,