Volume 1 of 4 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT TERRY BELK; DWAYNE COLLINS, on  behalf of themselves and the class they represent, Plaintiffs-Appellants, WILLIAM CAPACCHIONE, Individually and on behalf of Christina Capacchione, a minor; MICHAEL P. GRANT; RICHARD EASTERLING; LAWRENCE GAUVREAU; KAREN BENTLEY; CHARLES THOMPSON; SCOTT C. WILLARD, Plaintiffs-Appellees, v.  No. 99-2389 THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION; ERIC SMITH, Superintendent, in his official capacity; ARTHUR GRIFFIN, Chairman of the Charlotte-Mecklenburg School Board, in his official capacity, Defendants. UNITED STATES OF AMERICA; NORTH CAROLINA SCHOOL BOARDS ASSOCIATION; NATIONAL SCHOOL BOARDS ASSOCIATION, Amici Curiae.  2 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION WILLIAM CAPACCHIONE, Individually  and on behalf of Christina Capacchione, a minor; MICHAEL P. GRANT; RICHARD EASTERLING; LAWRENCE GAUVREAU; KAREN BENTLEY; CHARLES THOMPSON; SCOTT C. WILLARD, Plaintiffs-Appellees, and TERRY BELK; DWAYNE COLLINS, on behalf of themselves and the class they represent, Plaintiffs, v.  No. 99-2391 THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION; ERIC SMITH, Superintendent, in his official capacity; ARTHUR GRIFFIN, Chairman of the Charlotte-Mecklenburg School Board, in his official capacity, Defendants-Appellants. UNITED STATES OF AMERICA; NORTH CAROLINA SCHOOL BOARDS ASSOCIATION; NATIONAL SCHOOL BOARDS ASSOCIATION, Amici Curiae.  BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 3 WILLIAM CAPACCHIONE, Individually  and on behalf of Christina Capacchione, a minor; MICHAEL P. GRANT; RICHARD EASTERLING; LAWRENCE GAUVREAU; KAREN BENTLEY; CHARLES THOMPSON; SCOTT C. WILLARD, Plaintiffs-Appellees, and TERRY BELK; DWAYNE COLLINS, on behalf of themselves and the class they represent, Plaintiffs, v.  No. 00-1098 THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION; ERIC SMITH, Superintendent, in his official capacity; ARTHUR GRIFFIN, Chairman of the Charlotte-Mecklenburg School Board, in his official capacity, Defendants-Appellants. UNITED STATES OF AMERICA; NORTH CAROLINA SCHOOL BOARDS ASSOCIATION; NATIONAL SCHOOL BOARDS ASSOCIATION, Amici Curiae.  4 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION WILLIAM CAPACCHIONE, Individually  and on behalf of Christina Capacchione, a minor; MICHAEL P. GRANT; RICHARD EASTERLING; LAWRENCE GAUVREAU; KAREN BENTLEY; CHARLES THOMPSON; SCOTT C. WILLARD, Plaintiffs-Appellees, and TERRY BELK; DWAYNE COLLINS, on behalf of themselves and the class they represent, v. Plaintiffs,  No. 00-1432 THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION; ERIC SMITH, Superintendent, in his official capacity; ARTHUR GRIFFIN, Chairman of the Charlotte-Mecklenburg School Board, in his official capacity, Defendants-Appellants. UNITED STATES OF AMERICA; NORTH CAROLINA SCHOOL BOARDS ASSOCIATION; NATIONAL SCHOOL BOARDS ASSOCIATION, Amici Curiae.  Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Robert D. Potter, Senior District Judge. (CA-97-482-3-P, CA-65-1974-3-P) Argued: February 27, 2001 Decided: September 21, 2001 Before WILKINSON, Chief Judge, and WIDENER, WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, and GREGORY, Circuit Judges. BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 5 Affirmed in part and reversed in part by published opinions. A per curiam opinion announced the judgment of the court. Judge Traxler delivered the opinion of the court with respect to Parts I, II, IV, and V, in which Chief Judge Wilkinson and Judges Widener, Wilkins, Niemeyer, and Williams joined, and an opinion with respect to Parts III and VI, in which Judges Wilkins and Williams joined. Chief Judge Wilkinson wrote an opinion concurring in part in which Judge Nie- meyer joined. Judge Widener wrote an opinion concurring in part and dissenting in part. Judge Luttig wrote an opinion concurring in the judgment in part and dissenting from the judgment in part. Judges Motz and King wrote a separate opinion in which Judges Michael and Gregory joined. COUNSEL ARGUED: Stephen Luke Largess, James Elliot Ferguson, II, FER- GUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina; John W. Borkowski, HOGAN & HARTSON, L.L.P., Washington, D.C., for Appellants. Allan Lee Parks, PARKS, CHESIN & MILLER, P.C., Atlanta, Georgia, for Appellees. ON BRIEF: John W. Gresham, C. Margaret Errington, FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUM- TER, P.A., Charlotte, North Carolina; Elaine R. Jones, Director- Counsel, Norman J. Chachkin, Gloria J. Browne, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York; Allen R. Snyder, Maree Sneed, HOGAN & HARTSON, L.L.P., Washington, D.C.; James G. Middlebrooks, Irving M. Brenner, Amy Rickner Langdon, SMITH, HELMS, MULLISS & MOORE, L.L.P., Charlotte, North Carolina; Leslie Winner, General Counsel, CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, Char- lotte, North Carolina, for Appellants. Kevin V. Parsons, PARKS, CHESIN & MILLER, P.C., Atlanta, Georgia; John O. Pollard, MCGUIRE, WOODS, BATTLE & BOOTHE, Charlotte, North Caro- lina; William S. Helfand, MAGENHEIM, BATEMAN, ROBINSON, WROTENBERY & HELFAND, Houston, Texas; Thomas J. Ash- craft, Charlotte, North Carolina, for Appellees. Bill Lann Lee, Acting Assistant Attorney General, Mark L. Gross, Rebecca K. Troth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, 6 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION D.C., for Amicus Curiae United States. Michael Crowell, Lisa Luka- sik, THARRINGTON SMITH, L.L.P., Raleigh, North Carolina; Alli- son B. Schafer, General Counsel, NORTH CAROLINA SCHOOL BOARDS ASSOCIATION, Raleigh, North Carolina; Julie K. Under- wood, General Counsel, NATIONAL SCHOOL BOARDS ASSOCI- ATION, Alexandria, Virginia, for Amici Curiae Associations. OPINION PER CURIAM: This case was argued before the en banc Court on February 27, 2001. The parties presented a number of issues for our consideration, including whether the district court erred in (l) finding that unitary status had been achieved and awarding attorneys’ fees to plaintiff- intervenors based on this finding; (2) holding that the establishment of a magnet schools program was an ultra vires, unconstitutional act justifying an award of nominal damages and attorneys’ fees; (3) enjoining the Charlotte-Mecklenburg School Board from considering race in the future assignment of students or allocation of educational resources; and (4) sanctioning the Board for failing to comply with the district court’s discovery order. Having considered the briefs and arguments of the parties, a major- ity of the Court holds: (1) by a 7-4 vote (Chief Judge Wilkinson and Judges Widener, Wilkins, Niemeyer, Luttig, Williams and Traxler in the affirmative), the school system has achieved unitary status, but by a 6-5 vote (Chief Judge Wilkinson and Judges Niemeyer, Michael, Motz, King and Gregory in the affirmative) attorneys’ fees for work done on the unitary status issue are denied; (2) by a 6-5 vote (Chief Judge Wilkinson and Judges Niemeyer, Michael, Motz, King, and Gregory in the affirmative), the Board did not forfeit its immunity for the establishment of the magnet schools program, and nominal dam- ages and attorneys’ fees in that regard are denied; (3) by a unanimous vote, the injunction is vacated; and (4) by a unanimous vote, the imposition of sanctions is affirmed. The judgment of the district court is therefore affirmed on the find- ing of unitary status and the imposition of sanctions, reversed as to BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 7 the finding of liability for nominal damages for the establishment of the magnet schools program, reversed as to the imposition of attor- neys’ fees for any reason, and reversed on the issuance of the injunc- tion. Unitary status having been achieved, the judgment of the district court vacating and dissolving all prior injunctive orders and decrees is affirmed. The Board is to operate the school system without the strictures of these decrees no later than the 2002-2003 school year. AFFIRMED IN PART AND REVERSED IN PART TRAXLER, Circuit Judge: This case is hopefully the final chapter in the saga of federal court control over the Charlotte-Mecklenburg Schools ("CMS"). Since 1971 CMS has operated under a federally supervised desegregation plan that included limited use of racial ratios, pairing and grouping of school zones, and extensive busing. So successful was the plan that the district court removed the case from the active docket in 1975, expressing its belief that the once reluctant school board was commit- ted to achieving desegregation and was already well on the way toward a unitary school system. Since then, two generations of stu- dents have passed through CMS and, until the present case, not one person has returned to court alleging that segregative practices have been continued or revived. Now, nearly three decades later and prompted by a lawsuit filed by a white student challenging the magnet schools admissions policy, the question of whether CMS has achieved unitary status has been placed before our courts. In 1999, the district court, after a lengthy hearing and searching inquiry, concluded that CMS had indeed achieved uni- tary status by eliminating the vestiges of past discrimination to the extent practicable. This conclusion was not reached in haste; it was the result of a two-month hearing and an examination of extensive testimony and evidence relating to every aspect of CMS’s educational system. A majority of this court now affirms the district court’s holding on this issue, satisfied that CMS has dismantled the dual school system. 8 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION In sharp contrast to the situation in the late 1960s, when black stu- dents were segregated in black schools and taught by a predominantly black staff, CMS students today are educated in an integrated envi- ronment by an integrated faculty. Nor do we turn over control to an indecisive and uncommitted school board. CMS currently operates under the firm guidance of an integrated school board which has clearly demonstrated its commitment to a desegregated school sys- tem. In sum, the "end purpose" of federal intervention to remedy segre- gation has been served, and it is time to complete the task with which we were charged—to show confidence in those who have achieved this success and to restore to state and local authorities the control of their school system. Consequently, a majority of this court affirms the district court’s unitary status determination. However, while a majority of my colleagues agree that CMS has achieved unitary status, and have graciously joined me on this point, I respectfully depart from a separate majority’s decision to reverse the district court’s holding that CMS’s magnet schools program, which was implemented in 1992, was an ultra vires, unconstitutional act jus- tifying an award of nominal damages and attorney fees. By denying children, on account of their race, an equal opportunity to compete for open, unclaimed slots in CMS’s extraordinary magnet program, I believe the school board pushed too far and did more than either was required or permitted. Just as the educational process of the 1960s unconstitutionally deprived black children of educational opportuni- ties solely on account of their race, the magnet schools admissions policy deprives white children of educational opportunities solely on account of their race. Consequently, I depart from the separate major- ity in that I would affirm the district court’s conclusion that the mag- net schools program violated the Equal Protection Clause of the Fourteenth Amendment and the liability of the school board for the violation. I. In 1896, the Supreme Court upheld a Louisiana statute "providing for separate railway carriages for the white and colored races." Plessy v. Ferguson, 163 U.S. 537, 540 (1896). The Plessy majority charac- BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 9 terized the statute as "not necessarily imply[ing] the inferiority of either race," id. at 544, but the first Justice Harlan, in dissent, aptly described the true aim of the law: "Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons," id. at 557 (Harlan, J., dissenting). Justice Harlan further "den[ied] that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved." Id. at 554-55 (Harlan, J., dissenting). Unfortunately, the principle of "sepa- rate but equal" reached much farther than Louisiana railways, and was applied to other public services, including education. The march of progress eventually proved the correctness of Justice Harlan’s princi- pled stand. Segregation, in all of its manifestations, was "arbitrary" and "wholly inconsistent with the civil freedom and the equality before the law established by the Constitution." Id. at 561-62 (Harlan, J., dissenting). Early efforts aimed at combating the injustice wrought by Plessy in educational settings often centered on state-funded graduate and professional schools. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); see generally Mark V. Tushnet, The NAACP’s Legal Strategy Against Segregated Education 1925-1950 (1987). In Gaines, an African-American student was denied admission to the University of Missouri School of Law on account of his race. Mis- souri had no "separate but equal" law school for its African-American citizens and instead offered to pay Gaines’ tuition and expenses for a legal education in another state. The Supreme Court held that Mis- souri’s offer denied Gaines equal protection of the laws. The Court observed that "[t]he admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State." Gaines, 305 U.S. at 349. Though providing only small victories, cases like Gaines exposed "separate but equal" for the untenable proposition that it was. In 1954, the Supreme Court recognized the futility of measuring equality in segregated facilities. See Brown v. Board of Educ., 347 U.S. 483 (1954) (Brown I). Presented with a direct attack on Plessy in a secondary education case, the Court held that "segregation of 10 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION children in public schools solely on the basis of race" violated the Equal Protection Clause of the Fourteenth Amendment. Id. at 493. The Court emphasized that an educational "opportunity, where a state has undertaken to provide it, is a right which must be made available to all on equal terms." Id. Recognizing that segregation differed from locality to locality, the Supreme Court subsequently declined to craft a broad, one-size-fits-all remedy, and instead instructed the federal district courts to oversee the implementation of appropriate relief based on the dictates of local circumstances. See Brown v. Board of Educ., 349 U.S. 294, 299 (1955) (Brown II) ("Because of their prox- imity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform th[e] judicial appraisal."). The district courts were directed to make use of the "traditional attributes of equity power," id. at 300, to ensure that students were "admit[ted] to public schools on a racially nondiscrimi- natory basis," id. at 301. However, under the Brown opinions it was unclear whether a school district was required to take affirmative steps to remedy the constitutional violation, see, e.g., Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D.S.C. 1955) (holding that Brown merely prohibited school districts from using the force of law to separate the races), and very little progress resulted. Before the Supreme Court provided further guidance to the lower federal courts, in 1965 the Swann plaintiffs, who were the original class action plaintiffs representing the interests of African-American children in the district, challenged as constitutionally inadequate the efforts of CMS in complying with Brown. The school district’s deseg- regation plan was based on freedom of choice whereby "any child, without regard to race, and without regard to minority or majority of race in any particular school, might freely transfer to another school of his choice." Swann v. Charlotte-Mecklenburg Bd. of Educ., 243 F. Supp. 667, 668 (W.D.N.C. 1965). The district court approved the plan, observing that more could be done "to increase mixing of the races," but that the law imposed "no such duty upon . . . the School Board." Id. at 670. Concerned at the slow pace of school desegregation throughout the nation, the Supreme Court held in 1968 that school boards had an "af- firmative duty" to end the state-imposed dual system of education. Green v. County Sch. Bd., 391 U.S. 430, 437 (1968). The Justices BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 11 underscored that "in desegregating a dual system a plan utilizing ‘freedom of choice’ is not an end in itself." Id. at 440. The Swann plaintiffs then filed in the district court a motion for further relief "seek[ing] greater speed in desegregation of the Charlotte- Mecklenburg schools, and request[ing] elimination of certain other alleged racial inequalities." Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F. Supp. 1358, 1360 (W.D.N.C. 1969). The district court, guided by the mandate of Green, see Swann, 300 F. Supp. at 1362, made a number of factual findings and concluded that the school dis- trict remained highly segregated. The district court noted that over half of CMS’s 24,000 African- American students "attend schools that are all black, or very nearly all black, and most of the 24,000 have no white teachers." Id. at 1360. However, the court found no violations "in the use of federal funds; the use of mobile classrooms; quality of school buildings and facili- ties; athletics; PTA activities; school fees; free lunches; books; elec- tive courses; nor in individual evaluation of students." Id. at 1372. The district court directed CMS to submit "a positive plan for fac- ulty desegregation effective in the fall of 1969, and a plan for effec- tive desegregation of pupil population, to be predominantly effective in the fall of 1969 and to be completed by the fall of 1970." Id. at 1360. The board procrastinated, but eventually submitted an ener- vated desegregation plan that the district court approved "with great reluctance" on a temporary basis. Swann v. Charlotte-Mecklenburg Bd. of Educ., 306 F. Supp. 1291, 1298 (W.D.N.C. 1969). CMS offi- cials, however, continued to drag their feet, and the district court was forced to appoint its own expert, Dr. John A. Finger, to craft an effi- cacious desegregation plan. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 311 F. Supp. 265 (W.D.N.C. 1970). Dr. Finger’s plan, adopted by the district court, included limited use of mathematical ratios, pairing and grouping of school zones, and busing. See id. We affirmed a portion of the plan, but vacated provisions dealing with the busing of elementary school students because of the perceived bur- dens on small children and the cost of purchasing new buses. See Swann v. Charlotte Mecklenburg Bd. of Educ., 431 F.2d 138, 147 (4th. Cir. 1970) (en banc). We remanded "for reconsideration of the assignment of pupils in the elementary schools." Id. The Supreme Court granted certiorari and reinstated the district court’s plan pend- ing further proceedings. See Swann v. Charlotte-Mecklenburg Bd. of 12 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION Educ., 399 U.S. 926 (1970). The district court conducted eight days of hearings and examined five different desegregation plans. The dis- trict court concluded the Finger plan to be the best of the five, encom- passing "a reasonable . . . collection of methods for solving the problem" of the dual system. Swann v. Charlotte-Mecklenburg Bd. of Educ., 318 F. Supp. 786, 800 (W.D.N.C. 1970). As for busing and the cost of new buses, the district court found that the Finger plan took "proper advantage of traffic movement" and that new buses would cost only $660,000, a far cry from the millions of dollars that CMS had originally estimated. See id. at 797-98. Two months later, the Supreme Court granted certiorari and undertook an in-depth review of the power of the federal district courts to craft such sweeping desegregation remedies. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971). The Supreme Court affirmed the desegregation plan adopted by the district court, and in the course of its opinion identified and offered guidance in "four problem areas." Id. at 22. First, the Court addressed the issue of the district court’s use of racial ratios. While the Supreme Court approved of a limited use of mathematical ratios in a plan crafted by a district court, it emphasized that such ratios were "a start- ing point . . . rather than an inflexible requirement." Id. at 25. The Court reminded district courts that "[t]he constitutional command to desegregate schools does not mean that every school in every commu- nity must always reflect the racial composition of the school system as a whole." Id. at 24. Second, the Court dealt with single-race schools. Though the Court concluded that schools consisting of pre- dominantly one race were not per se unconstitutional, the Court instructed the district courts to utilize "close scrutiny to determine that school assignments are not part of state-enforced segregation." Id. at 26. Third, the Court considered alterations of attendance zones. The Court held "that the pairing and grouping of noncontiguous school zones is a permissible tool," id. at 28, but declined to craft "rigid rules" in light of differing local circumstances, id. at 29. Finally, the Court tackled the busing issue. The Court confirmed that a district court could order "bus transportation as one tool of school desegrega- tion," but within reasonable time and distance restrictions. Id. at 30. Shortly after the Supreme Court issued its landmark Swann opin- ion, CMS asked the district court to abandon the Finger plan and per- BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 13 mit the substitution of a "feeder plan" whereby schools would draw pupils from designated attendance areas in an effort to keep children together for their entire public school career. See Swann v. Charlotte- Mecklenburg Bd. of Educ., 328 F. Supp. 1346 (W.D.N.C. 1971). Cit- ing concerns of resegregation and the placement of additional burdens on African-American children, the district court questioned the feeder plan. See id. at 1350-53. CMS then withdrew its original feeder plan and began work on a modified version. See id. at 1353. The district court eventually approved a revised feeder plan that reopened several former black schools and prevented over- and under-utilization of facilities. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 334 F. Supp. 623 (W.D.N.C. 1971). However, within just two years it became clear that CMS’s revised feeder plan was inadequate "for dealing with foreseeable problems" in the dismantling of the dual system. Swann v. Charlotte- Mecklenburg Bd. of Educ., 362 F. Supp. 1223, 1229 (W.D.N.C. 1973). The district court found "that various formerly black schools and other schools will turn black under the feeder plan," id., and that "[r]acial discrimination through official action has not ended in this school system," id. at 1230. The district court again instructed CMS to design a new pupil assignment plan "on the premise that equal pro- tection of laws is here to stay." Id. at 1238. In 1974 CMS adopted and the district court approved new guide- lines and policies for pupil assignment. See Swann v. Charlotte- Mecklenburg Bd. of Educ., 379 F. Supp. 1102 (W.D.N.C. 1974). The plan was designed by a citizens advisory group working with the board in an effort to reach "an acceptable consensus" on school deseg- regation in CMS. Id. at 1103. The plan’s most promising features were the avoidance of any majority black schools (with the exception of Hidden Valley, an exempted school), and a more equal distribution of the busing burden. See id. at 1105 1110. Praising the board for making "a clean break with the essentially ‘reluctant’ attitude which dominated Board actions for many years," the district court predicted that the policies and positive attitude would eventually result in a uni- tary school system. Id. at 1103. The district court closed Swann in 1975 and removed the case from the active docket. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 14 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 67 F.R.D. 648 (W.D.N.C. 1975). In so doing, the district court observed that the board was "actively and intelligently addressing" recurrent problems related to dismantlement of the dual system. Id. at 649. The district court was so satisfied with the progress being made that it questioned whether it would ever be confronted with a motion to reopen the litigation. See id. For three years there was no action in the case. This changed in 1978 when a group of white parents sought to enjoin CMS from reas- signing over 4000 students in an effort to maintain racial balance in certain schools. See Martin v. Charlotte-Mecklenburg Bd. of Educ., 475 F. Supp. 1318 (W.D.N.C. 1979). The parents attacking the 1978 student assignment plan "offered no live evidence but offered and relied upon a few written exhibits and admissions from the plead- ings." Id. at 1321. Not surprisingly, the district court rejected the par- ents’ challenge to the student assignment plan and praised CMS for its zeal in dismantling the dual system. In 1980, CMS and the Swann plaintiffs again returned to the dis- trict court. The parties informed the district court that the African- American student population in CMS’s elementary schools had grown from twenty-nine percent to forty percent, making it difficult to avoid predominantly black student bodies. To provide the board with some flexibility, the district court permitted operation of elementary schools with African-American student bodies of plus fifteen percent above the district-wide average. See Swann v. Charlotte-Mecklenburg Bd. of Educ., No. 1974 (W.D.N.C. Apr. 17, 1980). Since 1980, neither the board nor the Swann plaintiffs have approached the district court regarding alteration of the earlier deseg- regation orders. And, until the present litigation, the Swann plaintiffs have never attempted to reopen the case in order to address any alleged failure by the board to comply with the district court’s deseg- regation orders. The controversy before us today arose in September 1997 when William Capacchione ("Capacchione") filed suit against CMS on behalf of his daughter, Cristina, alleging that she had been unconstitu- tionally denied admission to a magnet school program on account of her race. In 1992, without prior court approval, CMS had adopted a BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 15 desegregation plan focused mainly on the use of magnet schools. In filling magnet schools, CMS had instituted a black and a non-black lottery to achieve racial balance. If a sufficient number of blacks or whites did not apply and fill the seats allotted to their respective races, then CMS would actively recruit children of the desired race despite lengthy waiting lists made up of children of the other race. If the recruitment drive failed, CMS usually left the available slots vacant. Cristina, who is white, was placed on a waiting list and eventually denied admission to a program at the Olde Providence magnet school, which CMS marketed as "a school to benefit everyone." J.A. XXXII- 15,670. The original Swann plaintiffs moved to reactivate Swann and to consolidate it with Capacchione’s suit. They asserted that the vestiges of the dual school system had not been abolished and that the use of race in the magnet admissions policy was necessary for the school district to comply with the prior desegregation orders. The district court granted the motion and later permitted Capacchione to intervene in the Swann litigation. Seeking a finding that CMS had eradicated the vestiges of past discrimination, another group of parents, led by Michael P. Grant ("Grant"),1 was also permitted to intervene in the lit- igation. After a two-month bench trial, the district court determined that CMS had achieved unitary status, that the race-based admissions pol- icy for CMS’s magnet schools fell outside prior orders and was not narrowly tailored to achieve a compelling state interest, and that an injunction was warranted. The district court "enjoin[ed] CMS from any further use of race-based lotteries, preferences, and set-asides in student assignment." Capacchione v. Charlotte-Mecklenburg Sch., 57 F. Supp. 2d 228, 292 (W.D.N.C. 1999). Citing interests in stability, the district court concluded that the injunction would not affect stu- dent assignments for the 1999-2000 school year, but would apply to student assignments for the 2000-2001 school year. See id. at 292 n.52. The district court awarded Capacchione nominal damages in recognition of the constitutional violation and also awarded the plaintiff-intervenors attorney fees. CMS and the Swann plaintiffs filed 1 Those represented by Capacchione and Grant will be referred to as the "plaintiff-intervenors." 16 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION notices of appeal, and CMS moved to stay the injunction, except as applied to the magnet schools, until the 2001-02 school year. The Swann plaintiffs moved for a complete stay pending appeal. On November 15, 1999, the district court denied the motions. CMS and the Swann plaintiffs, pursuant to Federal Rule of Appellate Procedure 8(a)(2), moved this court for a stay. On December 30, 1999, we stayed the district court’s injunction pending further order of this court. After briefing and appellate arguments, a divided panel of this court vacated and remanded the district court’s unitary status determi- nation, holding that the district court’s findings were insufficient in the areas of student assignment, facilities and resources, transporta- tion, and student achievement. As for CMS’s magnet schools admis- sions policy, the panel held that the policy was specifically permitted by prior court orders and that the policy did not violate the Constitu- tion. The panel also vacated the district court’s injunction, the award of nominal damages, and the award of attorney fees. See Belk v. Charlotte-Mecklenburg Bd. of Educ., 233 F.3d 232 (4th Cir. 2000). A majority of the active circuit judges thereafter voted to hear this appeal en banc. II. Unitary Status The district court’s unitary status finding is reviewed for clear error. See Riddick v. School Bd., 784 F.2d 521, 533 (4th Cir. 1986); Fed. R. Civ. P. 52(a). "A finding is clearly erroneous when, although there is evidence to support it, on the entire evidence the reviewing court is left with the definite and firm conviction that a mistake has been committed." Faulconer v. Commissioner, 748 F.2d 890, 895 (4th Cir. 1984). In clarifying the clearly erroneous standard, the Supreme Court has explained: If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evi- dence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 17 Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985). The Supreme Court also stressed that even when appellate review is based primarily on documentary evidence, the clearly erroneous standard of review remains the same. See id. at 574. So long as the district court’s unitary status determination rests on a permissible view of the evi- dence, it must be affirmed. The Supreme Court has declined to define or provide a "fixed meaning" for the term "unitary." Freeman v. Pitts, 503 U.S. 467, 487 (1992). However, in light of the aim of Brown I, which was "the elim- ination of state-mandated or deliberately maintained dual school sys- tems," Milliken v. Bradley, 418 U.S. 717, 737 (1974) (Milliken I), a school system must be declared unitary when it no longer discrimi- nates between children on the basis of race, see Green, 391 U.S. at 442. The burden of proof falls on the party seeking an end to court supervision. See Freeman, 503 U.S. at 494. In undertaking a unitary status inquiry, a court must ask "whether the Board ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable." Board of Educ. v. Dowell, 498 U.S. 237, 249-50 (1991). Implicit in the Supreme Court’s use of the term "practicable" is "a reasonable limit on the duration of . . . federal supervision." Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 760 (3d Cir. 1996); see also Dowell, 498 U.S. at 247 ("From the very first, federal supervision of local school sys- tems was intended as a temporary measure to remedy past discrimina- tion."). Hence, the goals of a desegregation order not only encompass a remedy for the violation, but also prompt restoration of local con- trol. See Freeman, 503 U.S. at 490 ("Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system. . . . Where control lies, so too does responsibility."); Milliken I, 418 U.S. at 741-42 ("No single tradition in public education is more deeply rooted than local control over the operation of schools; local auton- omy has long been thought essential both to the maintenance of com- munity concern and support for public schools and to quality of the educational process."). Among the most important reference points in determining whether a school board has fulfilled its duties so that local control may be 18 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION resumed are the factors set out in Green: student assignment, faculty assignment, facilities and resources, transportation, staff assignment, and extracurricular activities. See Green, 391 U.S. at 435. In its dis- cretion, a court conducting a unitary status hearing may consider other relevant factors not mentioned in Green. See Freeman, 503 U.S. at 492. We address the district court’s consideration of each factor in turn, but only to determine whether "the district court’s account of the evidence is plausible in light of the record viewed in its entirety." Anderson, 470 U.S. at 573-74. A. Student Assignment Student assignment is perhaps the most critical Green factor because state-mandated separation of pupils on the basis of race is the essence of the dual system. See Freeman, 503 U.S. at 474 (observing that the issue of student assignment is "fundamental" because "under the former de jure regimes racial exclusion was both the means and the end of a policy motivated by disparagement of . . . the disfavored race"). To determine whether a school was racially balanced or imbal- anced, the district court adopted a plus/minus fifteen percent variance from the district-wide ratio of black to white students. See Capacch- ione, 57 F. Supp. jgonzalez@example.org. However, the district court emphasized "that there is no level of compliance with the standard that is determi- native." Id. When schools are outside the variance, a "reasonable and supportable explanation[ ]" will suffice. Id. The district court did not err in adopting a plus/minus fifteen per- cent variance. Considering that the only variance ever approved by the district court in the course of the Swann litigation was a "‘plus 15%’ from the district-wide average," id. at 245, the addition of a minus fifteen percent is reasonable. Moreover, the Supreme Court has permitted a "limited use . . . of mathematical ratios" by district courts, Swann, 402 U.S. at 25, and much higher variances have been used to define desegregation, see Manning v. Hillsborough County Sch. Bd., 244 F.3d 927, 935 (11th Cir. 2001) (using a plus/minus twenty per- cent variance); see generally, David J. Armor, Forced Justice: School Desegregation and the Law 160 (1995) (observing that in over sev- enty percent of the school districts with desegregation plans where racial balance is measured by numerical standards, a variance of BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 19 2 plus/minus fifteen percent or greater is used). In sum, the plus/minus fifteen percent variance is clearly within accepted standards, and pro- vides a reasonable starting point in the unitary status determination. 1. CMS’s Compliance Record The district court began by observing that since 1970, of the 126 schools in operation, "only twenty schools (16%) have had black stu- dent 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." Capacchione, 57 F. Supp. 2d at 248 (footnote omit- ted). In addition, the district court found that CMS has not operated a single-race school since 1970. See id. The district court also turned to two desegregation indices: the dis- similarity index and the index of interracial exposure. The former "measures the degree of racial imbalance, and it is derived by com- paring the racial composition of each school to the districtwide com- position," J.A. XXXIII-16,172, and the latter measures "the average percent white in schools attended by black students, weighted by the proportion of black students in each school." J.A. XXXIII-16,172. According to the report of the plaintiff-intervenors’ expert witness, Dr. David J. Armor, a dissimilarity value of twenty or below signifies 2 At trial, Dr. Eric Smith, the current superintendent of CMS, testified that unitary status depended on every school being in balance. See J.A. XV-7187 & 7239. This is not the law. See Swann, 402 U.S. at 24 ("The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole."). We find equally erroneous the Swann plaintiffs’ assertion at appellate argument before the panel that "[t]he issue of how many schools are bal- anced has never been a question in this case." App. Tr. 91. The racial composition of schools goes to the heart of a desegregation case, and is very much key to a review of the district court’s declaration of unitary status. See Swann, 311 F. Supp. at 268 (ordering CMS to assign pupils "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 stu- dents"). 20 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION "a highly balanced school system" and a score under thirty signifies "a substantially desegregated system." J.A. XXXIII-16,172. CMS’s dissimilarity score was sixteen in 1980 and twenty-six in 1995. From this it is clear that CMS quickly desegregated in the 1970s and contin- ues to maintain a "substantially desegregated system." The dissimilar- ity index also indicates that CMS has better racial balance than several comparable districts did when they were declared unitary. See J.A. XXXIII-16,173. The index of interracial exposure, like the dissimilarity index, shows that CMS has made great leaps of progress. A score of zero on the exposure index signifies total segregation, while a score of fifty or above indicates a "highly desegregated system." J.A. XXXIII- 16,172. Schools in CMS typically score above fifty, whereas before the desegregation order the schools’ scores hovered near twenty or below. See J.A. XXXIII-16,194-96. CMS and the Swann plaintiffs correctly point out that the data sug- gest that in recent years racial imbalance has increased in some schools. Aware of this trend, the district court made a number of find- ings on growth and demographic change in the Charlotte- Mecklenburg area. The most revealing findings are as follows: • the county population has increased from 354,656 in 1970 to 613,310 in 1997 • in 1970 the school district was the forty-third largest in the nation and is today the twenty-third largest • among cities with more than 500,000 people, Charlotte ranks second in population growth in the 1990s • the racial composition of the county has changed from seventy-six percent white and twenty-four percent black in 1970 to sixty-eight percent white, twenty-seven per- cent black, and five percent other in 1997 • the current racial composition of schoolchildren is fifty percent white, forty-two percent black, and eight percent other • as the county has become more suburban the inner city and nearby suburbs have lost large numbers of white res- BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 21 idents as they spread farther out into the formerly rural sections of the county • some middle suburban communities that were once all white are now predominately black • the rural black population in the southern part of the county has remained relatively constant while the white population has tripled because of suburbanization See Capacchione, 57 F. Supp. jgonzalez@example.org. These findings are sup- ported by the report of the plaintiff-intervenors’ expert in demograph- ics, Dr. William Clark. See J.A. XXXIII-16230-306. Accordingly, the district court concluded that "[t]here can be no doubt that demography and geography have played the largest role in causing imbalance." Capacchione, 57 F. Supp. jgonzalez@example.org. Testimony from Dr. John Murphy, CMS’s superintendent from 1991 to 1995, corroborates the district court’s conclusion. Dr. Murphy testified that when he assumed his duties he "was quite concerned about the increasing difficulty in bringing about racial balance . . . because of the demographic shifts that were occurring." J.A. VI-2712. Population growth translated into more automobiles on the road, mak- ing increased busing impracticable because "the travel time to move youngsters from the suburbs into the city with the flow of rush hour traffic was a problem." J.A. VI-2732. In the fall of 1991, CMS hired Dr. Michael J. Stolee to examine the problem and offer solutions. Dr. Stolee also concluded that CMS’s task "has been complicated by pop- ulation growth," J.A. XXXII-15,571, and he recommended the adop- tion of a magnet schools program, which CMS promptly implemented. The Supreme Court has dealt with similar population growth and shifting demographics in the context of unitary status. In Freeman, the court unequivocally stated that "racial imbalance . . . [is] not tanta- mount to a showing that the school district [is] in noncompliance with the decree or with its duties under the law." 503 U.S. at 494. Brown I, of course, does not mandate that racial balance be pursued in perpe- tuity. Once the original racial imbalance caused by a constitutional violation has been rectified, "the school district is under no duty to remedy imbalance that is caused by demographic factors." Freeman, 503 U.S. at 494. 22 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION The Swann plaintiffs contend that consideration of demographics and the rationale of Freeman are misplaced because the growth and shifting demographics of DeKalb County, Georgia, the school district under court order in Freeman, exceeded that of Charlotte- Mecklenburg. While CMS’s growth rates and demographic shifts cer- tainly do not equal those experienced in DeKalb,3 we can find nothing in Freeman limiting its holding to the specific facts of DeKalb County or establishing DeKalb as the standard for measuring imbal- ance caused by demographic factors. On the contrary, the opinion speaks in general terms. The Supreme Court observed that in the United States "it is inevitable that the demographic makeup of school districts, based as they are on political subdivisions such as counties and municipalities, may undergo rapid change." Id. at 495. Mobility, the Court noted, "is a distinct characteristic of our society." Id. at 494. Similarly, the Swann plaintiffs contend that unlike DeKalb County, Mecklenburg County has become more integrated as the black popu- lation has increased. This is simply not true. For example, a report prepared in 1992 by the Charlotte-Mecklenburg Planning Staff for Chairman Arthur Griffin concluded that "Charlotte-Mecklenburg con- tinues to be a city of segregated neighborhoods" with "[c]oncentra- tions of Black households . . . generally located in the central city." J.A. XXI-10,485; see also J.A. XXVIII-13,803 (1992 student assign- ment plan stating that "housing across the county is not racially inte- grated. Approximately 50% of all black students live within one district, while only 10% of white students reside in that district."); J.A. XXII-10,575 (CMS report chronicling growth of the black popu- lation and decline of the white population in the inner city). Clearly, increased housing integration is not necessarily a corollary of African-American population growth. Hence, despite the Swann plaintiffs’ best efforts, Freeman cannot be distinguished into nothing- ness, nor does the standard of review permit this court to reweigh the evidence of the changes in CMS. We also note that when confronted with growing imbalance in cer- tain schools, the district court demanded cogent and supportable 3 For example, the population of DeKalb County grew from 70,000 in 1950 to 450,000 in 1985, and the percentage of black students in the dis- trict grew from 5.6 percent in 1969 to forty-seven percent in 1986. See Freeman, 503 U.S. at 475. BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 23 explanations from the plaintiff-intervenors, paying special attention to the former de jure schools still in use. See Capacchione, 57 F. Supp. jgonzalez@example.org. Evidence presented at trial indicated that "[o]f the 16 for- mer black schools that are still open, 13 are currently balanced and have been desegregated for periods ranging from 22 to 28 years. Of the 3 that currently exceed the +15% black variance, each has been balanced for at least 22 years." J.A. XXXIII-16,176. Interestingly, of the seventy-two former white schools that are still open, fifteen are now majority black and were in balance for periods of twelve to twenty-five years. See J.A. XXXIII-16,176. In addition, Dr. Armor examined the seventeen schools in CMS that exceeded the plus fifteen percent variance for three or more years during the last decade. See J.A. XXXIII-16,174-76.4 Sixteen of the seventeen were balanced for periods ranging from nineteen to twenty- six years, with one school experiencing balance for sixteen years. To the extent that CMS’s pupil reassignments could be assessed, Dr. Armor concluded that changes instituted by CMS were "attempts to maintain or restore racial balance in the face of overwhelming demo- graphic growth and mobility." J.A. XXXIII-16,176. Indeed, Dr. Armor concluded that imbalance had been reduced in several of the schools because CMS’s magnet program attracted white students from the outer reaches of the county. 4 Dr. Armor did not include the predominantly white schools in this analysis on three grounds: (1) the court order did not establish a minimum percent black enrollment, (2) the half-dozen schools that have had low black enrollment for the past three or more years and that were operat- ing in 1972 have been racially balanced for at least ten years[,] and (3) the demographic analysis of Dr. Clark shows that these schools have become imbalanced or were opened imbalanced because of the substantial white enrollment growth in the out- skirts of the county. J.A. XXXIII-16,174 (footnote omitted); see also Swann, 402 U.S. at 26 (observing "that the existence of some small number of one-race, or vir- tually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law"). 24 BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION Long periods of almost perfect compliance with the court’s racial balance guidelines,5 coupled with some imbalance in the wake of massive demographic shifts, strongly supports the district court’s finding that the present levels of imbalance are in no way connected with the de jure segregation once practiced in CMS. See Freeman, 503 U.S. at 495 ("Where resegregation is a product not of state action but of private choices, it does not have constitutional implications."); Manning, 244 F.3d at 944 ("Where a [party seeking a finding of uni- tary status] shows that demographic shifts are a substantial cause of the racial imbalances, [the party] has overcome the presumption of de jure segregation."); United States v. Meriwether County, 171 F.3d 1333, 1339 (11th Cir. 1999) (observing that a "school district need not wage a battle against demographics to achieve perfect racial bal- ance"). The evidence presented at trial adequately explained why a few schools have become imbalanced, and we can discern no evi- dence or omissions that indicate clear error has been committed in this regard. 2. Martin and Unitary Status The Swann plaintiffs also point to school sitings, transportation burdens, and school transfers as evidence that the growing imbalance is caused by state action rather than private choices, and that CMS has not complied with the district court’s orders in good faith. In advanc- ing their argument, the Swann plaintiffs rely chiefly on Martin v. Charlotte-Mecklenburg Board of Education, 475 F. Supp. 1318 (W.D.N.C. 1979), in which a group of parents sought to enjoin CMS from reassigning over 4000 students in order to maintain racial bal- ance in certain schools. The plaintiffs in Martin based their position on Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976), and Regents of the University of California v. Bakke, 438 U.S. 265 (1978). In the former case, the Supreme Court reaffirmed that district courts could not order a school district "to rearrange its atten- dance zones each year so as to ensure that the racial mix desired by the court was maintained in perpetuity," Spangler, 427 U.S. at 436, 5 Even the Swann plaintiffs admit that ten years after the district court charged the board with taking affirmative steps to desegregate schools, the system "w[as] nearly 100% statistically compliant with the court’s orders." Plaintiff-Appellants’ jgonzalez@example.org. BELK v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 25 and in the latter the Court struck down a medical school admissions policy that reserved sixteen of one hundred seats in the entering class for applicants who were "‘economically and/or educationally disad- vantaged’" and who were members of certain minority groups, Bakke, 438 U.S. at 274. The district court in Martin distinguished Spangler by observing that it was but a restatement of the Swann Court’s admo- nition about the use of racial quotas and that, unlike Pasadena City, CMS had not achieved racially neutral attendance patterns. See Mar- tin, 475 F. Supp. at 1340. As for the Bakke decision, the district court pointed out that no student in CMS was denied "an equal educational opportunity" and that the admissions policy in Bakke was imple- mented "against a backdrop devoid of specific judicial findings or administrative acknowledgments of the prior segregated status of the school system." Id. at 1345. Accordingly, the Martin court concluded that CMS’s reassignment of students was