Cavalier v. Caddo Parish , 403 F.3d 246 ( 2005 )


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  •                                                          United States Court of Appeals
                                                                      Fifth Circuit
                                                                     F I L E D
                         REVISED MARCH 15, 2005
                                                                      March 1, 2005
                  IN THE UNITED STATES COURT OF APPEALS
                                                                  Charles R. Fulbruge III
                          FOR THE FIFTH CIRCUIT                           Clerk
    
    
    
                                 No. 03-30395
    
    
    
    
         KEVIN PAUL CAVALIER, on behalf of
         Hunter Paul Cavalier; JULIE ANN CAVALIER,
         on behalf of Hunter Paul Cavalier,
    
                                                 Plaintiffs-Appellants,
    
    
              versus
    
    
         CADDO PARISH SCHOOL BOARD;
         PHILLIP R. GUIN; WILLIE D. BURTON;
         GINGER ARMSTRONG; EURSLA D. HARDY;
         ALVIN MIMS; MARK MILAM; MICHAEL J.
         THIBODEAUX; WANDA J. WRIGHT;
         JERRY TIM BROOKS; MILES HITCHCOCK;
         MILDRED B. PUGH; and MIKE POWELL,
    
                                                 Defendants-Appellees.
    
    
    
    
              Appeal from the United States District Court
                  for the Western District of Louisiana
    
    
    
    Before GARWOOD, WIENER and DeMOSS, Circuit Judges.
    
    GARWOOD, Circuit Judge:
    
         Plaintiffs-appellants    Kevin   Paul   Cavalier   and    Julie    Ann
    
    Cavalier (the Cavaliers), on behalf of their minor son, Hunter
    Cavalier, appeal the summary judgment dismissal of their lawsuit
    
    against defendant-appellee Caddo Parish School Board (School Board)
    
    complaining that the School Board illegally discriminated against
    
    Hunter Cavalier on the basis of his race when he was denied
    
    admission to Caddo Middle Magnet School.1           We reverse and remand.
    
                            Facts and Proceedings Below
    
           In 2002, Hunter Cavalier (Hunter), who is white, applied for
    
    admission to the sixth grade at Caddo Middle Magnet School (CMMS),
    
    an academic and performing arts magnet school covering grades six,
    
    seven and eight, for the 2002–2003 school year.              His application
    
    was denied because his achievement test score was not high enough
    
    for a white student applicant, although it was high enough for a
    
    black student applicant.         The Cavaliers claim that but for a race-
    
    conscious admission policy, Hunter would have been admitted to
    
    CMMS.    The School Board has not denied this.
    
           The School Board has admitted that its admission policy for
    
    CMMS    does   employ   racial    classifications     in   order   to   meet   a
    
    particular racial balance at CMMS.         The procedure for admission to
    
    CMMS is contained in School Board Policy JECC.                To qualify for
    
    admission to CMMS, an applicant must: 1) have high motivation
    
    toward excellence, as evidenced by consistent achievement and
    
    acceptable behavior; 2) be performing on grade level or better;
    
    3) have a grade point average (GPA) of 2.0 or better in reading and
    
          1
            On this appeal, as throughout the proceedings in the district court, the
    Cavaliers proceed pro se.
    
                                           2
    math       and   2.5    or   better   overall;   and   4)    have   95%   or   better
    
    attendance.            In addition, the student must take a standardized
    
    achievement        test,     the   California    Achievement     Test     (CAT),   for
    
    ranking purposes.2
    
           After the initial qualifications are taken into account, the
    
    number of qualified applicants usually far exceeds the number of
    
    available openings.            To determine which students will be offered
    
    admission, CMMS gives priority to qualified siblings of students
    
    who also attend CMMS and to black students who would otherwise
    
    attend a school with over 90% black student enrollment.                    CMMS then
    
    ranks the remaining qualified applicants based on their CAT test
    
    score.       Regarding these latter rankings, the policy states that
    
    CMMS “will maintain a list of rankings for black students and a
    
    list of rankings for white students.”                  The vacancies are then
    
    filled so that CMMS will have a racial mix of 50% white and 50%
    
    black, plus or minus 15 percentage points.3                 CMMS accepts qualified
    
    applicants of any race subject to the number of openings available
    
    by race, according to the required racial mix, and no applicant of
    
    any race who does not meet the initial admission requirements is
    
    accepted.
    
    
    
          2
            The policy also has two nonacademic requirements: the students must have
    parental permission and support and be in good health or under a doctor’s care.
           3
            In 2001, the Board approved Item No. 37, which required CMMS enrollment
    to be within the parameters of a consent decree entered in 1981, discussed infra.
    The consent decree gave a projected racial enrollment for CMMS of 50%
    black/white, plus or minus 15 percentage points.
    
                                               3
          Hunter met the initial admission requirements for entrance
    
    into CMMS for the 2002–2003 school year.         However, based on his CAT
    
    test score, and due to the number of slots available for white
    
    students, he was not admitted.
    
          For the 2002–2003 school year at CMMS, the lowest CAT test
    
    score for a nonsibling white applicant given admission to the sixth
    
    grade was 142; the lowest CAT test score for a nonsibling black
    
    applicant given admission was 117.           Hunter’s CAT test score was
    
    140. There were seven nonsibling white applicants not selected for
    
    admission who had scores of 141 and six, including Hunter, who had
    
    scores of 140.      Sixty-seven black students who scored less than
    
    Hunter (140) on their CAT test were admitted to the sixth grade.
    
          The   2002–2003    sixth   grade    CMMS   class    consisted    of   449
    
    students.    Fifty-one siblings were admitted, of whom 42 were white
    
    and 9 were black. Another 398 nonsibling students were admitted on
    
    the basis of their CAT test score ranking, of whom 259 were white
    
    and 139 were black.      While the incoming sixth grade class was 67%
    
    white and 33% black, the total student composition of CMMS for the
    
    2002–2003 school year was 65% white and 35% black, a result barely
    
    within the    School    Board–required     racial   mix   for   CMMS   of   50%
    
    black/white, plus or minus 15 percentage points.4
    
          4
            Based on our review of data obtained by the Cavaliers from the School
    Board and submitted in conjunction with a motion for preliminary injunction, it
    appears that if the School Board did not use separate test-ranking lists for
    white and black applicants, the score that would have resulted in a sixth grade
    class at CMMS for the 2002–2003 school year of roughly the same size as the
    actual class would have been 130. Using a score of 130, the sixth grade class
    apparently would have been approximately 25% black and 75% white.
    
                                          4
          The Cavaliers, on behalf of Hunter, filed suit against the
    
    School Board, and twelve of its members, alleging that Hunter was
    
    discriminated against on the basis of his race when he was denied
    
    admission    to   CMMS.       The     Cavaliers   sought    declaratory     and
    
    injunctive, compensatory damages, and attorneys’ fees and costs,
    
    under the Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983, and
    
    2000d.    The parties consented to the exercise of jurisdiction by a
    
    magistrate judge, and the district court referred the case to a
    
    magistrate judge.      The School Board filed a motion to dismiss or
    
    for summary judgment on the ground that the admission procedure for
    
    CMMS is pursuant to a court-ordered consent decree and, therefore,
    
    is constitutional.        The magistrate judge granted the defendants’
    
    motion, dismissing all claims against all parties.5             The Cavaliers
    
    subsequently filed a timely motion for reconsideration, which the
    
    magistrate judge denied.       The Cavaliers then timely appealed.
    
    
    
                                        Discussion
    
          The Board attempts to justify its admission policy based on a
    
    consent decree entered in 1981 involving the Board.              Because this
    
    consent decree no longer applies to CMMS, it cannot justify the
    
    Board’s policy, and because the Board shows no other compelling
    
    governmental interest for its racial classification, we hold that
    
    
    
          5
            The magistrate judge previously had dismissed the Cavaliers’ claim for
    compensatory damages against the individual members of the School Board based on
    qualified immunity. The Cavaliers have not appealed that ruling.
    
                                            5
    the policy is unconstitutional.            Furthermore, even if CMMS were
    
    still subject to the decree, because the Board has not shown that
    
    it has considered any race-neutral means to achieve its desired
    
    racial mix and relies exclusively on a racial quota, the policy is
    
    not narrowly tailored.       Therefore, we reverse and remand.6
    
    
    
    
    I.    Standard of Review
    
          We review de novo the magistrate judge’s grant of summary
    
    judgment.7    Austin v. Will-Burt Co., 
    361 F.3d 862
    , 866 (5th Cir.
    
    2004). Summary judgment is proper only if, viewing the evidence in
    
          6
            On July 29, 2004, some two months subsequent to oral argument herein, the
    School Board filed with this court a motion to dismiss the appeal as moot. The
    School Board attached to its motion an affidavit from its counsel in which she
    stated that: on May 19, 2004, she mailed a letter to the Cavaliers advising them
    that there were openings for the eighth grade at CMMS for the 2004–2005 school
    year; if Hunter met the general requirements for admission, he would be admitted
    to the eighth grade at CMMS upon the submission of an application, included with
    the letter to the Cavaliers; and no further testing would be needed for
    admission.    The School Board claims that this offer of admission to Hunter
    renders the appeal moot.
          We disagree. In their complaint, the Cavaliers sought, among other things,
    compensatory damages.    In their opposition to the School Board’s motion to
    dismiss the appeal, the Cavaliers have alleged damages due to the School Board’s
    policy.    The Cavaliers brought their suit in 2002 after Hunter was denied
    admission to CMMS for the 2002–2003 school year, his sixth grade year. The
    Cavaliers allege that because of the denial of Hunter’s admission to CMMS, in
    order to provide the best alternative to CMMS, they enrolled him in a private
    school for two years, his sixth and seventh grade years, at a cost that was
    presumably higher than what they would have had to pay if Hunter had attended
    CMMS. The private school was also allegedly further from their residence than
    CMMS, resulting in additional transportation costs. The Cavaliers have sought,
    among other things, compensatory damages and have alleged damages due to the
    School Board’s policy. Past damages that are in no way addressed by the offer
    of admission to Hunter for his eighth grade year. We accordingly deny the motion
    to dismiss the appeal as moot.
          7
            Although the Board filed a motion to dismiss or for summary judgment,
    because the magistrate judge considered materials outside of the pleadings, we
    treat the motion as a motion for summary judgment. See Meister v. Tex. Adjutant
    General's Dept., 
    233 F.3d 332
    , 335 (5th Cir. 2000).
    
                                           6
    the light      most   favorable     to   the   nonmoving   party,   the    record
    
    establishes “that there is no genuine issue as to any material fact
    
    and that the moving party is entitled to a judgment as a matter of
    
    law.”      FED. R. CIV. P. 56(c).
    
    II.   Constitutionality of the Admission Policy
    
          A.      Strict Scrutiny Review
    
          We apply strict scrutiny review to the School Board’s race-
    
    conscious admission policy: “It is by now well established that
    
    ‘all racial classifications reviewable under the Equal Protection
    
    Clause must be strictly scrutinized.’”              Gratz v. Bollinger, 
    123 S. Ct. 2411
    , 2427 (2003) (quoting Adarand Constructors, Inc. v.
    
    Peña, 
    115 S. Ct. 2097
    , 2111 (1995)) (emphasis added).                      To pass
    
    strict scrutiny review, the School Board must demonstrate that the
    
    “use of race in its current admission program employs ‘narrowly
    
    tailored measures that further compelling governmental interests.’”
    
    Gratz, 123 S.Ct. at 2427 (quoting Adarand, 115 S.Ct. at 2113)
    
    (emphasis added).
    
          B.      Compelling Governmental Interest
    
                  1.   Remedying Current Effects of Past Segregation
    
          Because the School Board previously operated a dual school
    
    system, in violation of the Fourteenth Amendment, it bears the
    
    “primary responsibility to ‘eliminate from the public schools all
    
    vestiges of state-imposed segregation.’” Davis v. East Baton Rouge
    
    Parish Sch. Bd., 
    721 F.2d 1425
    , 1434, 1436 (5th Cir. 1983) (quoting
    
                                             7
    Milliken v. Bradley, 
    97 S. Ct. 2749
    , 2762 (1977)).               Remedying the
    
    present effects of past discrimination is a compelling interest
    
    that in particular circumstances may justify appropriate use of
    
    certain racial classifications. Dallas Fire Fighters Ass’n v. City
    
    of Dallas, Tex., 
    150 F.3d 438
    , 441 (5th Cir. 1998).
    
          In justifying its admission policy, the School Board has
    
    relied exclusively on a consent decree entered by the Western
    
    District of Louisiana in 1981 directing the desegregation of the
    
    Caddo Parish school system (the 1981 Consent Decree).               The School
    
    Board has not identified any current effect or condition at CMMS
    
    that is    traceable    to   the   past    segregation    within    the   school
    
    system.8     Therefore, whether the School Board’s use of racial
    
    classifications     serves    a    compelling    governmental      interest   by
    
    seeking to remedy the current effects of past segregation depends
    
    entirely on whether the 1981 Consent Decree obligates the School
    
    Board to use racial classifications in its current admission
    
    policy.    As we conclude that the 1981 Consent Decree is no longer
    
    applicable to CMMS, it cannot justify the School Board’s race-
    
    conscious admission policy.
    
                      a.    Background of the 1981 Consent Decree
    
    
    
          8
            In their interrogatories, the Cavaliers asked that the School Board
    describe all evidence of present effects of past racial discrimination that could
    justify the use of racial classifications in its admission process. The School
    Board responded that the reason for the use of the racial classifications was “to
    comply with the [1981] Consent Decree.”      The School Board then stated that
    “[t]here has not been any attempt to determine if other reasons exist which could
    justify the use of racial classifications.”
    
                                           8
          The 1981 Consent Decree has it roots in litigation that began
    
    in 1965 and that has been the subject of multiple cases within this
    
    circuit.    The following historical background comes from two
    
    earlier cases involving the 1981 Consent Decree: Jones v. Caddo
    
    Parish School Board, 
    735 F.2d 923
    , 924–26, (5th Cir. 1981) (Jones
    
    I), and Jones v. Caddo Parish School Board, 
    204 F.R.D. 97
    , 98–100
    
    (W.D. La. 2001) (Jones II):
    
          In 1965, the parents of seven black children commenced a suit
    
    against the School Board seeking desegregation of the Caddo Parish
    
    public schools. The United States later intervened as a plaintiff.
    
    In 1973, the district court ordered the School Board to implement
    
    a desegregation plan; a plan was developed and took effect.                 In
    
    1976, the School Board filed a motion to have the school system
    
    declared unitary, which would have warranted the dismissal of the
    
    original suit; however, the United States opposed the motion.                In
    
    1977, the district court: (1) ruled that the School Board had fully
    
    complied   with   the     1973    court-ordered    desegregation    plan;   (2)
    
    declared the school system to be unitary; and (3) dismissed the
    
    suit against the School Board. Thereafter, the United States filed
    
    a motion to amend the judgment, the filing of which suspended the
    
    finality of the judgment pending decision on the motion.              In 1980,
    
    the   district    court    gave    notice   that   unless   the    plaintiffs’
    
    attorneys objected, the United States, as plaintiff-intervenor,
    
    would represent the interests of the private plaintiffs; the
    
    
                                            9
    district court did not receive any objections.        The United States
    
    and the School Board then entered into negotiations, which resulted
    
    in the district court-ordered 1981 Consent Decree.
    
                    b.    1981 Consent Decree
    
         In the 1981 Consent Decree, the district court determined that
    
    “the plan for the System embodied in this Decree is reasonable and
    
    appropriate for the additional desegregation of the System, and
    
    upon its successful implementation will in fact and in law create
    
    a unitary school system for Caddo Parish.”
    
         The decree, among other things, called for the establishment
    
    of magnet schools:
    
         “The Board will establish new magnet schools at three
         elementary schools . . . and at one middle school (Eden
         Gardens Junior High School) in order to enhance the
         quality of education and bring about a greater degree of
         desegregation at those schools. . . . The Board will
         establish an aggressive magnet recruitment program and
         will permit and encourage students to attend magnet
         schools using every reasonable effort to achieve the
         projected racial enrollment for each school within the
         time period permitted under this Decree.”
    
    The decree also detailed the projected racial enrollment for each
    
    magnet school and how the projection was to be achieved: “It is
    
    understood by the parties that magnet programs at particular
    
    schools may be revised in order to effectively provide for the
    
    recruitment and retention of students in the magnet schools and to
    
    achieve and maintain a desegregated enrollment.”             The projected
    
    racial   enrollment   for   CMMS—formerly   Eden   Gardens    Junior   High
    
    School, located in a predominantly black neighborhood with a
    
                                       10
    predominantly black student body—was 50% white and 50% black.
    
    “[E]nrollment at each magnet school” was to “be on a parish wide
    
    basis” and students were to be assigned to the magnet schools based
    
    on the following priorities, which were the only priorities stated
    
    in the decree: 1) qualified siblings of students who attend the
    
    magnet school; 2) qualified black students who would otherwise
    
    attend a school with over 90% black student enrollment; and 3)
    
    qualified white students who would otherwise attend a school with
    
    over 65% white student enrollment. These priorities were to apply,
    
    however, only to the extent that they did not impede the School
    
    Board’s achievement of the projected racial enrollments at the
    
    magnet schools.
    
         The School Board was to implement the magnet school program at
    
    Eden Gardens Junior High, which would become CMMS, before or
    
    beginning with the 1982–83 school year.   The School Board was to
    
    “use its best efforts to attain the projected racial enrollments .
    
    . . by the end of the 1984–85 school year by developing attractive
    
    programs at [CMMS] and by encouraging students of both races to
    
    attend [CMMS] and benefit from [its] programs.”
    
         The school system was to remain under the jurisdiction of the
    
    district court during the period in which the decree was in effect,
    
    subject to certain provisions that provided for the termination of
    
    the court’s jurisdiction. The decree specifically provided for the
    
    
    
    
                                    11
    termination of the district court’s jurisdiction over the magnet
    
    and laboratory9 schools:
    
         “With respect to the magnet school and laboratory school
         proposals contained in . . . this Decree, the Board shall
         have three years from the respective implementation dates
         for each such school within which to meet the projected
         enrollments at the magnet and laboratory schools. Such
         projected enrollments for a particular school shall be
         deemed to have been met if the actual enrollment in the
         school is within ± 15 percentage points of the projection
         for such school . . . .      Upon meeting the projected
         enrollments for all magnet and laboratory schools covered
         by this Section D of Part V, this Decree shall terminate
         as to such schools, the Board shall be entitled to an
         order of the Court so stating, and the United States
         shall not be entitled to seek any further or additional
         remedy with respect to such schools.”
    
         Finally, the decree outlined the procedure by which the School
    
    Board could seek an order declaring the school system to be unitary
    
    and dismissing the case:
    
         “At any time after the 1983–84 school year, the Board may
         file a Notice of Compliance with the terms and conditions
         of this Decree. If the United States agrees that the
         Board is in full compliance with the terms and conditions
         of this Decree, the United States shall join in the
         Notice and shall state that it supports an order
         declaring the System to be unitary and dismissing the
         case. If no objection to the Notice is made within 30
         days of its filing, the Court shall enter an order
         declaring the entire system unitary, to the extent it has
         not already been so declared, and terminating this case.
         Any objections must be specific as to alleged terms of
         noncompliance with the provisions of this Decree. The
         objections shall be heard by the Court under reasonable
         procedures set forth by the Court and in the event any
         further remedy is ordered, it shall be limited to
         resolving the objection so filed.”
    
    
    
         9
            The decree directed the School Board to establish a laboratory school
    program that would be operated in conjunction with area universities and
    colleges.
    
                                         12
                     c.   1990 Order
    
         In 1987, the School Board filed a Notice of Compliance with
    
    the 1981 Consent Decree and requested the district court to rule
    
    that the school system had achieved unitary status. On April 4,
    
    1990, based on a joint motion filed by United States and the School
    
    Board, the district court entered an order affirming the parties’
    
    agreement (the 1990 Order).      Jones II, 204 F.R.D. at 98–99.         The
    
    1990 Order provided in pertinent part:
    
         “(1) Except as specifically set forth in § 7 of the
              Joint Motion, there are no issues or disputes
              regarding    successful    compliance   and    full
              implementation of the 1981 Consent Decree;
                                   * * *
         (3) The [] Board has within the appropriate parameters
              met the projected enrollments for all magnet and
              laboratory schools covered by Part V, Sections D[,
              termination of jurisdiction over magnet and
              laboratory schools,] . . .;
         (4) In accordance with Part V, Sections A-E of the
              Consent Decree:
              (i) The Consent Decree is terminated . . . as to
                   magnet schools and laboratory schools covered
                   by Sections D and E, Part V of the Decree, and
                   the United States shall not be entitled to
                   seek any further or additional remedy with
                   respect to any of said magnet schools,
                   laboratory schools, schools north of Caddo
                   Lake, nor with respect to any Mandatory
                   Assignment District [in the decree] . . . .”
    
         With the entry of the 1990 Order, none of the remaining
    
    “issues   or   disputes   regarding    successful   compliance   and   full
    
    implementation of the 1981 Consent Decree” involved CMMS, mandatory
    
    student assignments, or projected racial enrollments. The portions
    
    of the 1981 decree that the United States insisted, in section 7 of
    
    
                                          13
    the 1990 Joint Motion, had not been fully implemented as required
    
    were the following: assignment of principals to schools (under Part
    
    I, Section F, entitled “Faculty and Staff”); establishment of
    
    enhancement programs at remaining one-race schools (under Part II,
    
    Section E, entitled “Remaining One-Race Schools,” relating to
    
    programs at such schools); and Majority to Minority Transfers
    
    (under Part II, Section F, relating to allowing and encouraging, in
    
    reference to one-race schools, transfers of students from a school
    
    in which the student is in the racial majority to a school in which
    
    the student would be in the minority).    See Jones II, 204 F.R.D. at
    
    99 n.1.
    
                    d.   Status of the 1981 Consent Decree
    
          Based on the 1990 Order, the 1981 Consent Decree is no longer
    
    applicable to CMMS and cannot form the justification for the use of
    
    racial classifications in CMMS’s admission policy.        The Consent
    
    Decree clearly contemplated that it could be terminated with
    
    respect to the magnet schools:
    
          “Upon meeting the projected enrollments for all magnet
          and laboratory schools . . ., this Decree shall terminate
          as to such schools, the Board shall be entitled to an
          order of the Court so stating, and the United States
          shall not be entitled to seek any further or additional
          remedy with respect to such schools.” (emphasis added).
    
    Under the Consent Decree, the School Board had the obligation to
    
    use “every reasonable effort” and “its best efforts” to “achieve”
    
    or “attain” the projected racial enrollments for CMMS by the end of
    
    the   1984–85   school   year,   and   upon   meeting   the   projected
    
                                      14
    enrollments, the Consent Decree was to terminate as to CMMS.                         The
    
    Consent    Decree,    however,       did    not   give    the    School      Board    an
    
    indefinite obligation to maintain the projected racial enrollment
    
    for CMMS once the decree was terminated as to CMMS.
    
          Consistent with the provisions of the 1981 Consent Decree, the
    
    1990 Order unambiguously released the magnet schools, including
    
    CMMS, from any further obligations of or under the Consent Decree:
    
    “The []    Board     has    within   the    appropriate        parameters     met    the
    
    projected enrollments for all magnet and laboratory schools”;10 “The
    
    Consent Decree is terminated . . . as to the magnet schools. . .,
    
    and the United States shall not be entitled to seek any further or
    
    additional remedy with respect to any of said magnet schools . . .
    
    .”   Therefore, with respect to the 1981 Consent Decree, upon which
    
    the School Board justifies its racial classification, there is
    
    nothing left regarding CMMS.
    
          Moreover, the law is clear that the School Board’s obligation
    
    under the Consent Decree may be reduced or eliminated in some
    
    respects even if the entire school system is not totally in
    
    compliance    with    the    Consent   Decree     or     has    not   been   declared
    
    unitary.     In Green v. School Board of New Kent County, 
    88 S. Ct. 1689
     (1968), the Supreme Court “identified various parts of the
    
    
          10
             CMMS opened for the 1982–1983 school year and met its projected racial
    enrollment level of at least 35% black students during its first year and three
    out of the first four years. The black student enrollment for the first four
    years was: 37.3% (1982–1983), 36.1% (1983–1984), 34.4% (1984–1985), 38.8%
    (1985–1986).
    
                                               15
    school system which, in addition to student attendance patterns,
    
    must be free from racial discrimination before the mandate of
    
    [Brown v. Board of Education, 
    74 S. Ct. 686
     (1954),] is met:
    
    faculty, staff, transportation, extracurricular activities, and
    
    facilities.” Freeman v. Pitts, 
    112 S. Ct. 1430
    , 1443 (1992) (citing
    
    Green, 88 S.Ct. at 1692).   In Freeman, the Supreme Court held that
    
    a “district court need not retain active control over every aspect
    
    of school administration until a school district has demonstrated
    
    unitary status in all facets of its system.”   Freeman, 112 S.Ct. at
    
    1436.
    
              “We hold that, in the course of supervising
         desegregation plans, federal courts have the authority to
         relinquish supervision and control of school districts in
         incremental stages, before full compliance has been
         achieved in every area of school operations.        While
         retaining jurisdiction over the case, the court may
         determine that it will not order further remedies in
         areas where the school district is in compliance with the
         decree. That is to say, upon a finding that a school
         system subject to a court-supervised desegregation plan
         is in compliance in some but not all areas, the court in
         appropriate cases may return control to the school system
         in those areas where compliance has been achieved,
         limiting further judicial supervision to operations that
         are not yet in full compliance with the court decree. In
         particular, the district court may determine that it will
         not order further remedies in the area of student
         assignments where racial imbalance is not traceable, in
         a proximate way, to constitutional violations.” Id. at
         1445–46.
    
         The Supreme Court did recognize that “[t]wo or more Green
    
    factors may be intertwined . . . in their relation, so that a
    
    constitutional violation in one area cannot be eliminated unless
    
    the judicial remedy addresses other matters as well” and that,
    
                                     16
    “[a]s a consequence, a continuing violation in one area may need to
    
    be addressed by remedies in another.”            Id. at 1449.      Nevertheless,
    
    the record must demonstrate why a continuing remedy in one area in
    
    which the school system was compliant was needed to remedy the
    
    remaining defects:
    
         “There was no showing that racial balancing was an
         appropriate mechanism to cure other deficiencies . . . .
         It is true that the school district was not in compliance
         with respect to faculty assignments, but the record does
         not show that student reassignments would be a feasible
         or practicable way to remedy this defect.” Id.
    
         A case from the First Circuit, Wessmann v. Gittens, 
    160 F.3d 790
     (1st Cir. 1998), illustrates the application of Freeman in a
    
    situation very similar to the present case.              In a background case
    
    to Wessmann, a district court in 1974 found “the school system as
    
    a whole guilty of de jure segregation” and concluded that three
    
    schools operated by the City of Boston, including Boston Latin
    
    School (BLS), “were complicit in promoting and maintaining a dual
    
    school system.”     Id. at 791–92.           The district court, among other
    
    things, required BLS to ensure that at least 35% of each entering
    
    class would be made up of black and Hispanic students.                  By 1987,
    
    the three schools had, “for all practical purposes,” achieved
    
    unitary   status    in   the   area    of    student    assignments;    however,
    
    “comparable improvement had not been accomplished in other areas,
    
    such as   faculty    and   staff      integration      and   the   renovation   of
    
    facilities.”   Id. at 792.      Because of the lack of progress in these
    
    
    
                                            17
    other areas, in 1987 the First Circuit “instructed that federal
    
    court   supervision    of   elements    other      than   student    assignment
    
    continue.”   Id.   The district court then relinquished control over
    
    student assignments, freeing the schools from the requirement to
    
    maintain the 35% set-aside, but retained active supervision over
    
    other aspects of the school system.          Id.
    
         Similar to the background situation described in Wessmann, in
    
    1990 the district court relinquished judicial supervision over
    
    projected racial enrollments at all magnet schools within the Caddo
    
    Parish school system by terminating the decree with respect to the
    
    magnet schools, as allowed by Freeman and by the terms of the 1981
    
    Consent Decree.    While the 1990 Order did not wholly terminate the
    
    entire Consent Decree, none of the remaining issues regarding its
    
    successful compliance and full implementation involved CMMS.                  In
    
    fact, none of the remaining issues—faculty and staff assignments,
    
    enhancing of remaining one-race schools, and majority to minority
    
    transfers—related      to   meeting    projected     racial   enrollments     or
    
    mandatory    student   assignments      at   any    school    in    the   system.
    
    According to the 1990 Order, the School Board had complied with all
    
    student assignment and projected enrollment provisions of the
    
    Consent Decree.    Furthermore, we see nothing in the School Board’s
    
    summary judgment evidence to suggest that continued student racial
    
    balancing at CMMS is a “feasible or practicable way” to remedy the
    
    remaining deficiencies identified in the 1990 Order. In any event,
    
    
                                           18
    the Consent Decree stated that the magnet schools were to be
    
    established at particular schools “in order to enhance the quality
    
    of education and bring about a greater degree of desegregation at
    
    those schools,” (emphasis added), not at all schools within the
    
    district.11
    
          Therefore, based on the 1990 Order, the 1981 Consent Decree is
    
    no longer applicable to CMMS and cannot be used in any sense to
    
    justify the racial quotas and balancing contained in the CMMS
    
    admission     policy.     As   the   1981   Consent   Decree    has   not   been
    
    applicable to CMMS since 1990, the School Board cannot rely on the
    
    Consent Decree to establish a finding of current effects of past
    
    discrimination.     In order to support its actions, the School Board
    
    “must make specific findings, independent of the Decree,” and as
    
    there are no such findings before us in the record, “we cannot hold
    
          11
             The School Board argues that until the school system is declared unitary
    in whole or in part, the School Board is obligated by law to comply with the
    provisions of the Consent Decree. This is, in essence, a collateral attack on
    the 1990 Order. Morever, the Board’s argument fails to recognize the holding in
    Freeman:
          “To say . . . that a school district must meet all six Green factors
          before the trial court can declare the system unitary and relinquish
          its control over school attendance zones, and to hold further that
          racial balancing by all necessary means is required in the interim,
          is simply to vindicate a legal phrase.          The law is not so
          formalistic.” Freeman, 112 S.Ct. at 1448–49.
          Similarly, in finding that the admission policy was justified because of
    the 1981 Consent Decree, the magistrate judge stated that the 1990 Order “did not
    declare expressly that the district was unitary in student attendance patterns.”
    Nevertheless, even though the 1990 Order did not use the magic word “unitary”
    with respect to the magnet schools, that was its effect.          The 1990 Order
    expressly “terminated” the 1981 consent decree “as to” the “magnet schools” and
    declared that all provisions concerning the magnet schools, and concerning all
    student assignments and projected racial enrollments, had been fulfilled and that
    the United States was not entitled to seek further remedies with respect to the
    magnet schools or any mandatory student assignment provision in the decree. The
    1990 Order did not need to specifically say “unitary” to effectively declare that
    the magnet schools were outside of the 1981 Consent Decree.
    
                                           19
    that   [the   School     Board’s   actions]    were    in   furtherance        of   a
    
    compelling state purpose.”         Police Ass’n of New Orleans Through
    
    Cannatella v. City of New Orleans, 
    100 F.3d 1159
    , 1169 (5th Cir.
    
    1996).
    
           Wessmann also illustrates that the School Board cannot rely on
    
    the 1981 Consent Decree to support its contention that it is
    
    remedying     prior    segregation.     In    Wessman,      after   the   schools
    
    discontinued the use of the 35% racial set-aside, they subsequently
    
    adopted a policy that allocated half of the seats of each new class
    
    using “flexible racial/ethnic guidelines.”             Wessmann, 160 F.3d at
    
    793.    Thereafter, a white student who would have been admitted to
    
    BLS but for the policy that accounted for race, brought suit
    
    against the school committee. The district court upheld the policy
    
    in part because it supposedly was aimed at remedying the vestiges
    
    of past discrimination.         Id. at 793–94.        However, on appeal the
    
    First Circuit reversed and struck down the policy, rejecting the
    
    explanation     that    the   policy   redressed      the   vestiges      of   past
    
    discrimination.        The school committee was not able to satisfy its
    
    burden of showing a “strong basis in evidence” that the policy
    
    remedied past segregation, id. at 800, in spite of the fact that
    
    the schools had previously been found guilty of maintaining a dual
    
    school system and had been required to specifically reserve at
    
    least 35% of BLS seats to certain minorities.
    
    
    
    
                                           20
          The School Board relies on the unpublished opinion Bryant v.
    
    Caddo Parish School Board, CV No. 95-0441 (W.D. La. Jan. 3, 1997).
    
    In Bryant, which likewise involved a white student’s challenge to
    
    the CMMS admissions criteria, the plaintiffs argued that the 1981
    
    Consent Decree was no longer applicable because of the 1990 Order.12
    
    The district court rejected the argument, relying on the fact that
    
    the plaintiff had not established that the entire Consent Decree
    
    had been complied with and on the fact that the entire school
    
    system had not been declared unitary:
    
          “Bryant fails to mention, however, that this Court did
          not hold that Part I, Section F-Faculty and Staff; Part
          II, Section E-Remaining One-Race Schools; and Part II,
          Section F-Majority to Minority Transfers- of the Consent
          Order had been fully implemented and complied with.
          Furthermore, Bryant has failed to produce any evidence
          demonstrating that the Caddo Parish School system has
    
    
          12
             Both the policy in Bryant and in the present case have the same criteria
    to determine qualified applicants and to rank those qualified applicants. The
    policy in the present case mandates the use of two ranking lists–one for white
    students and one for black students, and while there is no indication in Bryant
    that the policy involved there mandated two separate ranking lists, we
    nevertheless assume that it most likely did: Policy JECC indicates that it was
    adopted February 2, 1983, and amended January 16, 1985, without any indication
    that its content was any different when Bryant applied to CMMS in 1994 than it
    was when Hunter applied in 2002.      Also, at oral argument, the School Board
    claimed that policy in Bryant is the same policy before us now.      If there is any
    difference between the two cases, it may be with respect to the projected racial
    enrollment requirement—here the racial mix is a requirement, whereas in Bryant
    it was merely a goal. In the present case, the Board is governed by Item No.
    37—adopted after Bryant—requiring CMMS to be within the racial parameters of the
    1981 Consent Decree (50/50, ±15 percentage points). In Bryant, however, the
    racial enrollment goal of 50/50, ±15 percentage points appears to be only a goal.
    Nevertheless, regardless of Item No. 37, Policy JECC, the policy presumably in
    effect at the time of Bryant, provides that “vacancies will be filled from the
    rankings in accord with the projected racial enrollments called for in the
    Consent Decree.” While Item No. 37 appears to make the 1981 Consent Decree
    racial enrollment projections a firm requirement for the School Board, it appears
    that even at the time of Bryant, the admission policy sought to fill vacancies
    according to the same projections. Therefore, the policy in Bryant appears to
    be substantially the same as the policy in the present case.
    
                                            21
         fully implemented and complied with the remaining
         sections of the Consent Decree. Thus, the Caddo Parish
         public school system has not been declared unitary and
         the Consent Decree still applies to the Caddo Parish
         Schools which, of course, includes [CMMS].” Id.
    
    On appeal, this court summarily affirmed the district court,
    
    stating only:
    
         “We have carefully reviewed the briefs, the records
         excerpts and relevant portions of the record itself. For
         the reasons stated by the district court in its
         memorandum ruling and Order filed under date of January
         3, 1997, we are satisfied that the Summary Judgment
         granted by the district court in favor of Caddo Parish
         School Board should be and is now AFFIRMED.” Bryant v.
         Caddo Parish School Board, No. 97-30135 (5th Cir.
         September 26, 1997) (per curiam; unpublished).
    
         We are not bound by our affirmance of the district court in
    
    Bryant.    The opinion is not precedential, as it is an unpublished
    
    opinion issued pursuant to Fifth Circuit Rule 47.5 after January 1,
    
    1996.     Under Rule 47.5.4, the opinion is binding only under the
    
    doctrines of res judicata, collateral estoppel, or law of the case,
    
    none of which apply here.
    
         While an unpublished opinion may be persuasive under Rule
    
    47.5.4, we are not persuaded by the Bryant affirmance or by the
    
    underlying district court opinion.    We based our affirmance on the
    
    “reasons stated by the district court in its memorandum ruling,”
    
    without providing any independent analysis.    The district court’s
    
    one-paragraph discussion of the 1981 Consent Decree in light of the
    
    1990 Order did not address several key points of the analysis: 1)
    
    the Supreme Court’s decision in Freeman that allows a school
    
    
                                     22
    district to be declared unitary in an incremental fashion; 2) the
    
    Consent Decree itself contemplated that the magnet schools would be
    
    released from the decree when their related obligations were
    
    implemented; 3) the purpose of the magnet schools was to “enhance
    
    the quality of education and bring about a greater degree of
    
    desegregation at [the schools that were to become the magnet]
    
    schools,” (emphasis added); and 4) there is no clear relationship
    
    between the remaining deficiencies outlined in the 1990 Order, none
    
    of which dealt with racial enrollment projections, and racial
    
    balancing at CMMS.      Therefore, the Bryant case does not influence
    
    our reasoning with respect to the 1990 Order and its effect on the
    
    1981 Consent Decree.13
    
          The School Board also points to, and the magistrate judge
    
    relied on, Davis v. East Baton Rouge Parish School Board, 
    721 F.2d 1425
     (5th Cir. 1983), in which this court upheld an admission
    
    policy similar to that used by the School Board here.              In Davis,
    
    the school board operated under a court-approved admission policy
    
    according to which the board selected applicants to its magnet
    
    schools using two lists, one for white students and one for black
    
          13
            Concerning the 1990 Order and its effect on the 1981 Consent Decree, in
    2001 the district court in Jones II commented that the parties seeking to
    intervene at that time were seeking to do so “twenty years after the district
    court entered the 1981 Consent Decree, and 11 years after the court granted
    unitary status to the school district.” Jones II, 204 F.R.D. at 100 (emphasis
    added). The district court then stated that the “only issue remaining before
    this court is continued compliance with the parameters of the 1990 order.” Id.
    While this is not determinative, it does indicate that one previous district
    judge thought, as we hold now, that the 1990 Order did reduce the scope of the
    1981 Consent Decree.
    
    
                                          23
    students.   The board was to fill seats from the separate lists to
    
    achieve a racial balance at each magnet school of 60% white
    
    students and 40% black students.         If by April 1 of each year the
    
    seats at a magnet school reserved for a particular race had not
    
    been filled, those seats could be opened to students of any other
    
    race.   The district court, however, later modified the admission
    
    policy directing that white students could not be admitted in any
    
    proportion greater than 60% of the total enrollment.             The school
    
    board appealed the modification and we affirmed.               Id. at 1440.
    
    Davis is wholly distinguishable from the present case.             In Davis,
    
    the school board was still under the court’s supervision with
    
    respect to the admission policy.              Further, almost no time had
    
    passed since the creation of the court’s plan—the plan was designed
    
    to begin in the 1981–1982 school year and was modified in 1982, and
    
    our ruling was issued in 1983.                Id. at 1433–34, 1440.     The
    
    situation   in   the   present   case    is    significantly   different—the
    
    Consent Decree was issued in 1981, judicial supervision over CMMS
    
    was withdrawn in 1990, and there have been no subsequent findings
    
    of segregation or vestiges of past segregation or orders requiring
    
    the continued use of remedial racial classifications. In addition,
    
    in Davis the use of separate lists was explicitly part of the
    
    court-approved plan.     In contrast, here the Consent Decree did not
    
    mandate, or even suggest, that the School Board use separate test-
    
    score ranking lists for blacks and whites; the use of separate
    
    
                                        24
    lists is directed by the School Board’s own admission policy.
    
    Davis, therefore, is simply not applicable here.
    
                      e.     No Other Vestiges of Past Segregation
    
          There is no evidence in the record of current segregation
    
    within   the    school    system    or    at   CMMS   or   vestiges    of   past
    
    discrimination.14      The School Board thus fails to show that it has
    
    a “‘strong basis in evidence’ showing that a current social ill in
    
    
    
          14
             At oral argument, counsel for the School Board suggested two vestiges
    of past segregation: the fact that the school system still has several one-race
    schools and the test-score disparity between white and black students. As this
    “evidence” is not in the record and was suggested for the first time at oral
    argument, it is not properly before us. United States v. Simpson, 
    334 F.3d 453
    ,
    454 n.1 (5th Cir. 2003).
          Nevertheless, even if we were to consider the School Board’s suggested
    vestiges, the School Board has not shown that the existence of the one-race
    schools and the test-score gap is traceable to past segregation. Regarding one-
    race schools, the Supreme Court has declared that “the existence of some small
    number of one-race, or virtually one-race, schools within a district is not in
    and of itself the mark of a system that still practices segregation by law.”
    Swann v. Charlotte-Mecklenburg Bd. of Ed., 
    91 S. Ct. 1267
    , 1281 (1971). For
    instance, in Davis we upheld a district court-created plan that left 11 one-race
    elementary schools. Davis, 721 F.2d at 1433. Furthermore, the 1981 Consent
    Decree itself explicitly recognized that the elimination of all one-race schools
    within the school system was not practicable: “The parties and the Court
    recognize that the elimination of all racially identifiable schools in the System
    is impracticable.” “[T]he parties, after exploring all avenues to attempt to
    achieve desegregation in [certain] schools, have determined . . . that there is
    no feasible and practical means of accomplishing desegregation at those schools
    other than the actions [described concerning one-race schools].” “[T]here will
    remain under the provisions of this Decree a number of one-race or predominantly
    one-race schools which, for various reasons . . ., it is not practically possible
    to effectively desegregate given the current circumstances existing in Caddo
    Parish.” The School Board has not shown in any way, particularly in light of the
    Consent Decree’s language, how the continued existence of one-race schools is
    traceable to past segregation within the school system.
          Concerning the test-score gap, the Board has produced no evidence and
    provided no analysis whatsoever regarding a causal connection between the gap and
    past de jure segregation. As “achievement gap statistics, by themselves, do not
    even eliminate the possibility that they are caused by what the Court terms
    ‘societal discrimination,’” Wessmann, 160 F.3d at 803, the mere suggestion that
    the gap is a vestige of past discrimination is not sufficient. Moreover, it is
    obvious that virtually none of the students entering the eighth (or lower) grade
    for the 2002-03 school year was or had ever been a student at any school governed
    by the School Board when the 1990 Order was entered.
    
                                             25
    fact has been caused by such conduct.”           Wessmann, 160 F.3d at 800
    
    (quoting City of Richmond v. J.A. Croson Co., 
    109 S. Ct. 706
    , 725
    
    (1989)).
    
                      2.    No Other Compelling Interests
    
          Besides relying on the 1981 Consent Decree, the School Board
    
    has not attempted to argue, or make any showing, that the racial
    
    classifications in its admission policy can be justified by some
    
    other compelling governmental interest.           The magistrate judge also
    
    relied exclusively on the decree to uphold CMMS’s admission policy,
    
    explicitly stating that it was not deciding, or being asked to
    
    decide, whether it could constitutionally order the implementation
    
    of the admission policy or whether the policy could withstand a
    
    constitutional challenge if the purpose was to achieve diversity15
    
    or some similar social goal.
    
          The School Board’s current policy is essentially a racial
    
    balancing quota.       The 1981 Consent Decree no longer applies to
    
    CMMS, and racial balancing by itself is not a constitutionally
    
    
          15
             The School Board has not claimed that its policy seeks to achieve
    diversity among the students at CMMS. The School Board has specifically limited
    its justification for the policy to the 1981 Consent Decree and expressly argued,
    in its briefs and at oral argument, that Grutter and Gratz are distinguishable
    and “very different” cases because they dealt with efforts to achieve diversity
    in the student body and not with a desegregation order to remedy past
    discrimination.    Moreover, while student body diversity has been held a
    compelling state interest in the context of a law school, Grutter v. Bollinger,
    
    123 S. Ct. 2325
    , 2339 (2003), it is by no means clear that it could be such at or
    below the high school level. But see Parents Involved in Cmty. Sch. v. Seattle
    Sch. Dist. No. 1, 
    377 F.3d 949
    , 964 (9th Cir. 2004) (applying Grutter to hold
    that diversity in the public high school context can be a compelling governmental
    interest). In any event, the quota system applied here would seem to clearly
    fail to pass muster under Gratz v. Bollinger, 
    123 S. Ct. 2411
     (2003).
    
    
                                           26
    proper reason for employing racial classifications: “[T]he Court
    
    has consistently held that the Constitution is not violated by
    
    racial imbalance in the schools, without more.” Milliken, 97 S.Ct.
    
    at 2757 n.14.   See also Freeman, 112 S.Ct. at 1447 (“Racial balance
    
    is not to be achieved for its own sake. . . . Once the racial
    
    imbalance due to the de jure violation has been remedied, the
    
    school district is under no duty to remedy imbalance that is caused
    
    by demographic factors.”).
    
         The    School     Board    has      failed    to     show     any     compelling
    
    governmental    interest        that      it      furthers       by      its        racial
    
    classification.      The policy is therefore unconstitutional.
    
         C.     Narrowly Tailored
    
         Moreover, even if the 1981 Consent Decree were still in some
    
    respects applicable to CMMS, the School Board’s policy is not
    
    narrowly    tailored     to    remedy      the    present        effects       of     past
    
    segregation, the compelling interest allegedly supported by the
    
    Consent Decree.      In the context of remedying past discrimination,
    
    a narrowly tailored measure requires that the state actor consider
    
    the use of other race-neutral means.               Croson, 109 S.Ct. at 729.
    
    Further, a quota system “cannot be said to be narrowly tailored to
    
    any goal, except perhaps outright racial balancing,” id., and
    
    “[r]acial   balance    is     not   to   be    achieved    for     its    own       sake.”
    
    Freeman, 112 S.Ct. at 1447.
    
    
    
    
                                             27
          The School Board’s policy is not narrowly tailored.                “To be
    
    narrowly tailored, a race-conscious admissions program cannot use
    
    a quota system – it cannot ‘insulat[e] each category of applicants
    
    with certain desired qualifications from competition with all other
    
    applications.’” Grutter v. Bollinger, 
    123 S. Ct. 2325
    , 2342 (2003)
    
    (quoting Regents of Univ. of Cal. v. Bakke, 
    98 S. Ct. 2733
    , 2761
    
    (1978) (Powell, J.)).         Further, there is no evidence that the
    
    School Board has considered any race-neutral means which might
    
    arguably result in an increase in the percentage of black students
    
    at CMMS.16      Moreover, as the School Board cannot justify its
    
    outright racial balancing absent a showing of current effects of
    
    prior segregation, which it has not done, its use of a racial quota
    
    is improper.     While “the use made of mathematical ratios” as “no
    
    more than a starting point in the process of shaping a remedy,
    
    rather than an inflexible requirement,” might be appropriate in
    
    certain contexts,       Swann, 91 S.Ct. at 1267 (emphasis added), the
    
    School Board’s use of a racial quota supposedly pursuant to the
    
    1981 Consent Decree but more than twenty years after the signing of
    
    the decree – and more than a decade after the 1990 Order – is
    
    
    
    
          16
            Some examples of race-neutral means that the Board might have considered
    include: recruiting highly qualified black students who might not otherwise apply
    to CMMS, employing programs in elementary schools to improve standardized test
    scores for potential but underachieving student applicants, or considering
    certain characteristics of the applicants’ parents (such as socio-economic
    status, educational level, or number of parents in a student’s home).
    
                                           28
    hardly a “starting point” and appears rather to be an improper
    
    “inflexible requirement.”17
    
          With respect to narrow tailoring, we also observe that the
    
    policy does not even follow the dictates of the 1981 Consent Decree
    
    itself.    The Consent Decree did not expressly mandate the use of a
    
    race-conscious admission policy.18          Although the Consent Decree did
    
    give a projected racial enrollment goal, all the measures that it
    
    specifically mentioned were race-neutral ones.            The Consent Decree
    
    provided that the School Board would “establish an aggressive
    
    magnet     recruitment   program    and     [would]   permit   and   encourage
    
    students to attend magnet schools using every reasonable effort to
    
    achieve the projected racial enrollment for each school.” (emphasis
    
    added).     The School Board was to use its “best efforts to attain
    
    the projected racial enrollments [for the magnet schools] . . . by
    
    
    
          17
             The School Board does not see its use of racial quotas as a starting
    point and does not appear to have an end in mind. In an interrogatory, the
    Cavaliers asked the School Board to describe “any time limitation after which all
    consideration of race in the admissions policy at [CMMS] . . . will be
    discontinued, or any objective, which if attained, would cause all consideration
    of race in the admissions policy at [CMMS] to be discontinued.” In response, the
    School Board simply stated that the “current policy will be followed as long as
    the policy is in effect. Whether the Board in the future may revise the policy
    calls for speculation.” The School Board’s policy clearly is not a starting
    point, and the consideration of race is not specifically and carefully limited,
    at least in the temporal respect, to some compelling interest.
          18
             The School Board has admitted that the Consent Decree only implicitly
    mandates the use of a race-conscious admission policy.      In response to the
    Cavaliers’ request for any evidence that the School Board had received approval
    from the district court to use racial classifications, the School Board pointed
    to the 1981 Consent Decree and stated that it “consider[ed] it implicit in this
    Decree that magnet schools, because they do not enroll children on the basis of
    attendance zones, must use race conscious admissions policies in order to meet
    the required projected racial enrollments, and that race conscious admissions
    policies are permitted.” (emphasis added).
    
                                           29
    developing attractive programs at [the magnet schools] and by
    
    encouraging students of both races to attend such schools and
    
    benefit from their programs.” (emphasis added). The Consent Decree
    
    further explained that “magnet programs at particular schools may
    
    be revised in order to effectively provide for the recruitment and
    
    retention of students in the magnet schools and to achieve and
    
    maintain a desegregated enrollment.” (emphasis added).
    
          The Consent Decree did not mandate that the School Board
    
    employ a    separate    list/quota     system    or   any   other   such   race-
    
    conscious policy to arrive at the projected racial enrollment goal.
    
    Rather, the School Board was to use every reasonable effort and its
    
    best efforts to recruit and encourage students and to develop
    
    attractive programs and to revise the programs in order to achieve
    
    and maintain the desired level of desegregation.                    The School
    
    Board’s use of a racial quota does not constitute any one (or a
    
    combination) of the actions expressly mandated by the Consent
    
    Decree. Moreover, the Consent Decree itself wholly terminated more
    
    than a decade ago as to the magnet schools.19
    
    
          19
             A brief response to the dissent.
          The dissent relies on the language in Swann v. Charlotte-Mecklenburg Board
    of Education, 
    91 S. Ct. 1267
    , 1276 (1971), and the similar language in the
    companion case of North Carolina State Board of Education v. Swann, 
    91 S. Ct. 1284
    , 1286 (1971), to the effect that “[s]chool authorities . . . might well
    conclude, for example, that in order to prepare students to live in a pluralistic
    society each school should have a prescribed ratio of Negro to white students
    reflecting the proportion for the district as a whole. . . . to do this is within
    the broad discretionary powers of school authorities . . .”. This language is
    the purest passing dicta. No such issue was even arguably before the Court or
    presented by the facts of either case; no authority whatever, legal or otherwise,
    is cited in support; and the statements made do not form any link in the chain
    of reasoning by which the Court arrived at the holdings it made in those cases.
    
                                           30
    Moreover, the cited language in Swann – particularly as applied to race based
    magnet school admissions – has clearly been superceded by that of Adarand
    Contractors, Inc. v. Pena, 
    115 S. Ct. 2097
    , 2111 (1995), and Gratz v. Bollinger,
    
    123 S. Ct. 2411
     (2003), the court stating in Gratz: “It is by now well established
    that ‘all racial classifications reviewable under the Equal Protection Clause
    must be strictly scrutinized.’” Id. at 2427 (emphasis added; quoting Adarand, 115
    S.Ct. at 2097). The dissent’s citation in this connection of Washington v.
    Seattle School District No. 1, 
    102 S. Ct. 3187
     (1982), is similarly unpersuasive;
    indeed there the Court noted that “Appellants and the United States do not
    challenge the propriety of race-conscious student assignments for the purpose of
    achieving integration, even absent a finding of prior de jure segregation. We
    therefore do not specifically pass on that issue.” Id. at 3196 n. 15.
          Gratz applied strict scrutiny notwithstanding the presence of a compelling
    state interest. Even prior to Gratz, lower courts had applied strict scrutiny
    to use by educational authorities of race based preferences as remedial measures
    for past discrimination. See, e.g., Podberesky v. Kirwan, 
    38 F.3d 147
    , 152-53
    (4th Cir. 1994), cert. denied, 
    115 S. Ct. 2001
     (1995). See also Johnson v. Board
    of Regents, 
    263 F.3d 1234
    , 1265 (11th Cir. 2001); Eisenberg v. Montgomery County
    Public Schools, 
    197 F.3d 123
    , 128-29 (4th Cir. 1999); cf. Police Ass’n of New
    Orleans v. City of New Orleans, 
    100 F.3d 1159
    , 1169 (5th Cir. 1996) (“Even
    assuming that the promotions were made to remedy specific past discrimination,
    the actions before us were not narrowly tailored, as required” by strict
    scrutiny). Indeed, the dissent seems to ultimately recognize all this (as well
    as the wholly unpersuasive nature in this context of the Swann passing dicta it
    quotes).
          The dissent errs in reliance on the holding in Belk v. Charlotte-
    Mecklenberg Board of Education, 
    269 F.3d 305
     (4th Cir. 2001), exonerating the
    school board from damages for race-based admissions to a magnet school prior to
    the district court’s dismissal of the underlying decree on the basis that the
    district was unitary. In Belk, unlike the situation here, there had been no
    prior order specifically removing the magnet schools from the extant
    desegregation orders. Of the six judges in Belk who voted for this holding (five
    judges would have held the board liable), four were of the view that the prior
    orders, extant at the time for which damages were sought, “specifically
    authorized the use of fixed ratios based on race in assigning students to magnet
    schools.” Id. at 408 (opinion of Judge Motz) (and it is not clear that the other
    two judges in the six judge majority were not of the same view; see id. at 353-
    56, opinion of Chief Judge Wilkinson). Belk might be analogous to this case if
    this case involved a claim for denial of access to CMMS in, say, 1986. Rather,
    this case involves denial of access to CMMS more than a decade after the 1990
    order entirely removing it from the only extant court order, and is hence
    analogous to Wessmann v. Gittens, 
    160 F.3d 790
     (1st Cir. 1998), cited with
    apparent approval in Judge Motz’s Belk opinion (269 F.3d at 410).
          Moreover, in view of the wording of the 1990 order – which expressly
    “terminated” the 1981 order (the only extant desegregation related order) “as to
    [the] magnet schools” and provided “the United States shall not be entitled to
    seek any further or additional remedy with respect to any of said magnet
    schools,” it is wholly clear that there was no reasonable possibility whatever
    that the school board could be exposed to sanctions for post-1990 abandonment of
    its rigid racial quota magnet school admissions policy (which itself was never
    mandated by the 1981 decree). Finally, it is manifestly unfair and illogical to
    place on the plaintiffs the burden to prove that there was no conceivable
    justification for the board’s use, over a decade after the 1990 order, of a rigid
    
                                           31
                                     Conclusion
    
          Based on the foregoing, we REVERSE and REMAND for further
    
    proceedings not inconsistent with this opinion.
    
                              REVERSED and REMANDED.
    
    
    
    
    racial quota admissions system at CMMS, when the board had all the relevant data
    and resources but defended its action below only on the manifestly erroneous
    ground of compliance with the 1981 decree (see note 8 and accompanying test
    supra).
    
    
    
                                          32
    WIENER, Circuit Judge, dissenting:
    
           The brooding omnipresence that overarches the panel majority’s
    
    reversal of the district court is the unarticulated premise ——
    
    fatally flawed, I submit —— that the trial court’s partial release
    
    of the consent decree vis-à-vis Caddo Magnet School, ipso facto
    
    voided the very programs and policies long employed by the school
    
    district to achieve that partial release.                As I shall explain more
    
    fully below, I am compelled, with my utmost respect, to dissent.
    
           If the school board had unilaterally adopted its racial-quota
    
    admissions policy for magnet schools anew —— after the Caddo Parish
    
    School District had been declared unitary (which it has not) or
    
    even after the court had ceased its supervision of the particular
    
    magnet school’s student admissions policy under the consent decree
    
    (which it has) —— I would likely have no concerns about joining the
    
    majority’s opinion.             But that is not our case and thus not the
    
    framework within which we must review it. Rather than a brand-new,
    
    post   hoc    admissions        policy,    the   plan   that     we   must    test   for
    
    constitutionality          is   (1)   a   longstanding    race-based         admissions
    
    policy,      (2)   which    has    been    “on   the    books”    and   consistently
    
    administered for many years, (3) pursuant to an existing consent
    
    decree, (4) as part and parcel of the school board’s comprehensive
    
    and continuing efforts, specifically to comply with the district
    
    court’s mandate to achieve a 50/50 ratio in the Magnet Schools and
    
    generally to eradicate all vestiges of past segregation.                       When we
    
    review the case in this framework —— as we must —— the school
    board’s      discretionary      decision        to   retain     its    magnet     school
    
    admissions policy as an integral tool in the Board’s ongoing
    
    struggle to achieve its court-ordered, yet-unrealized goal of total
    
    desegregation easily passes our scrutiny.
    
          Cessation of court supervision of the magnet school aspect of
    
    the consent decree is not the equivalent of a court declaration
    
    that the persistent vestiges of more than a century of school
    
    segregation have ceased to plague a substantial majority of Caddo’s
    
    minority school students.              Although the Supreme Court allows
    
    district courts to discontinue supervision over some (but less than
    
    all) aspects of plans to achieve unitary status in historically
    
    segregated school districts, the Court has never ruled that such a
    
    partial release from supervision forecloses a school district’s
    
    option to continue using the ensconced race-conscious policies that
    
    enabled it to achieve and maintain such status.                    To the contrary,
    
    the Court has consistently emphasized the importance of affording
    
    school districts maximum discretion and control over local schools,
    
    particularly       with     respect   to   remedying      the     vestiges       of   past
    
    segregation.20         In    fact,    it   has       explicitly       endorsed    school
    
    districts’ use of race-conscious policies.21
    
    
          20
             See, e.g., Freeman v. Pitts, 
    503 U.S. 467
    , 490 (1992) (citing Dayton Bd.
    of Educ. v. Brinkman, 
    433 U.S. 406
    , 410 (1977)). See also Bush v. Orleans Parish
    Sch. Bd., 
    308 F.2d 491
    , 501 (5th Cir. 1962) (“When a case involves the
    administration of a state’s schools, as federal judges, we try to sit on our
    hands.”)
          21
               See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 
    402 U.S. 1
    , 16
    (1971).
    
                                               34
         It is true, as the majority points out, that, as a general
    
    rule, Supreme Court precedent requires us to scrutinize race-
    
    conscious government policies strictly.    Nevertheless, race-based
    
    features of school districts’ desegregation plans enacted pursuant
    
    to court order, such as the one here at issue, are afforded a
    
    special presumption that they address a compelling state interest
    
    —— remedying the effects of past segregation —— over and above the
    
    general deference that we accord local school districts’ efforts to
    
    comply with each aspect of court-ordered desegregation plans.
    
    Here, the 1990 consent decree expressly released Caddo Middle
    
    Magnet School (“Caddo Magnet”) from further court supervision.   To
    
    this day, however, the school district as a whole remains bound
    
    under the consent decree, and the Board risks court sanctions if it
    
    does not make bona fide efforts to fulfill all its obligations
    
    under the order.   If, therefore, we were to prohibit the Board’s
    
    continued use of those race-conscious policies that have long been
    
    in place, and at the same time were to threaten sanctions if the
    
    board does not continue its efforts to remedy the effects of past
    
    racial discrimination, we would be putting the Board in a classic
    
    “Catch-22” situation.      In consequence, our review of the Caddo
    
    Magnet admissions policy must take into account the timing and
    
    history of that policy and the circumstances under which the school
    
    district operates —— and defer to local authority to the maximum
    
    extent of our authority.
    
    Partial Unitary Status
    
                                      35
           The panel majority cites no Supreme Court pronouncements, (and
    
    I have found none) on the effect that a district court’s declaring
    
    a school district “partially unitary” has on a school board’s
    
    continued use of policies validly enacted and continually applied
    
    in compliance with a consent decree.                      Despite the majority’s
    
    reliance on Freeman v. Pitts, that case addresses the equitable
    
    power of district courts to supervise continuing desegregation
    
    efforts, not the discretion of school boards to decide how to
    
    implement these efforts.             The Freeman Court permitted district
    
    courts to relinquish control over local school districts gradually
    
    by declaring them unitary in increments, i.e., to release districts
    
    from    the     obligation    to   continue       some    discrete    desegregation
    
    policies       while    continuing      to    address     remaining    vestiges     of
    
    discrimination in other areas.22              Significantly, this decision did
    
    nothing to diminish either the discretion of school districts to
    
    continue programs previously enacted pursuant to a consent decree
    
    or the deference we must afford to the districts’ exercise of that
    
    discretion.23         In fact, when the Court has taken up the issue of
    
    school       board    discretion   to    consider        race   in   implementing   a
    
    desegregation policy, it has acknowledged that board discretion to
    
    implement such policies exceeds the equitable power of the courts
    
    to order them to do so.
    
    
    
           22
                Freeman v. Pitts, 
    503 U.S. 467
    , 491-2 (1992).
           23
                See id.
    
                                                 36
    School Board Discretion and the Use of Race
    
          The    Supreme   Court’s   1971    Swann   decision    highlighted     the
    
    expansive     discretionary power of school officials to remedy past
    
    segregation and contrasted it with the equitable powers of the
    
    courts:
    
               School authorities are traditionally charged with
               broad power to formulate and implement educational
               policy and might well conclude, for example, that
               in order to prepare students to live in a
               pluralistic society each school should have a
               prescribed ratio of Negro to white students
               reflecting the proportion for the district as a
               whole.   To do this as an educational policy is
               within the broad discretionary powers of school
               authorities; absent a finding of a constitutional
               violation, however, that would not be within the
               authority of a federal court.24
    
    
          24
             Swann, 402 U.S. at 16.     The majority refers to this passage as "the
    purest passing dicta" and states that it forms no link in the chain of reasoning
    by which the Court arrived at its holding. I do not cite this language as the
    holding but for the same reason the Supreme Court included it: as an example of
    the contrasting powers of the courts and of local school districts. For this
    reason, I must also take exception to the charge that this language played no
    role in the reasoning of the Charlotte-Mecklenburg decision.        This opinion
    addressed the equitable power of district courts to order school districts to
    institute a variety of programs to address past segregation, and made clear that
    this equitable power does not reach as far as the inherent power of school
    authorities.   Certainly, language comparing courts' power to that of school
    authorities plays a role in the Court's effort to define the reach of district
    court's authority. I agree that this language was not central to the North
    Carolina State Bd. of Educ. v. Swann, 
    402 U.S. 43
     (1971) decision, and
    accordingly do not cite that case as an example of the expansive power of school
    authorities. Despite these observations, —— that the quoted language did not
    figure in the reasoning of the North Carolina decision or the ultimate holding
    of the Charlotte-Mecklenburg opinion —— unlike the majority, I cannot imagine
    that a unanimous Court would unequivocally state —— twice —— that school
    districts have plenary power to institute race-conscious admissions program if
    it did not mean that school districts have this kind of authority. The language
    from Seattle County Sch. Dist. No. 1. v. Washington, 
    458 U.S. 457
     (1982) and
    Bustrop, Inc. v. Bd. of Educ. of City of Los Angeles, 
    439 U.S. 1380
     (1978), which
    I have cited below, only reinforces my point that the Supreme Court has
    repeatedly referred to the expansive power of local school authorities, and that
    we therefore owe a measure of deference to home-grown, race-conscious admissions
    plans when enacted pursuant to a consent decree. Inasmuch as the Supreme Court
    has never stated, even in dicta, what the majority holds, I do not think that
    this point undermines my analysis of the case.
    
                                            37
    In this decision and others, the Court endorsed local discretion to
    
    use racial balancing as a means of correcting inequities caused by
    
    de jure segregation, and it has never reversed itself on this
    
    issue.25     In Washington v. Seattle School District No. 1, the Court
    
    struck down a citizen initiative enacted to prevent local school
    
    districts      from   implementing      race-based     student    assignments    to
    
    achieve formal racial balance goals.26                 The Court held that the
    
    citizen initiative violated the Equal Protection Clause because it
    
    forbade busing only for the purpose of achieving racial balancing
    
    in the schools and added: “It is undeniable that busing for
    
    integration —— particularly when ordered by a federal court —— now
    
    engenders considerabl[e] . . . controversy. . .But in the absence
    
    of a constitutional violation, the desirability and efficacy of
    
    school      desegregation    are      matters   to    be   resolved   through   the
    
    political      process.”27       In    fact,    the   Seattle    School   District
    
    decision, along with then-Justice Rehnquist’s decision in Bustrop,
    
    Inc. v. Board of Education of City of Los Angeles, upheld state
    
    decisions to assign students based on race despite the absence of
    
    
    
    
          25
             See id.   See also Freeman, 503 U.S. at 497 (“Racial balancing in
    elementary and secondary school assignments may be a legitimate remedial device
    to correct other fundamental inequities that were themselves caused by the
    constitutional violation.”).
          26
               458 U.S. at 471-74.
          27
               Id. at 473-74.
    
                                              38
    any court order requiring the district to integrate its schools,
    
    i.e., as a discretionary remedy for past segregation.28
    
          In addition, the Court has repeatedly stressed the importance
    
    of local control over schools.               The Freeman Court explained that
    
    courts should withdraw supervision of school districts as quickly
    
    as possible because “local autonomy of school districts is a vital
    
    national      tradition.”29         Courts    have   likewise   emphasized   the
    
    importance of maximum local responsibility for crafting integration
    
    strategies.30      As noted above, the Swann Court expressly approved
    
    a school district’s discretion to use a prescribed racial ratio to
    
    this end, even though it expressed doubt whether a federal court
    
    could order the district to do the same.31
    
    Strict Scrutiny
    
    
          28
             Seattle School Dist., 458 U.S. at 474 (assuming that school board had
    the power to order race-based student assignment and busing, even though school
    system was not under court order to desegregate); Bustrop, 439 U.S. at
    1383(upholding California state courts’ desegregation order, including extensive
    busing and race-based school assignments, as not “required” but certainly
    “permitted” by the U.S. Constitution).       See also Swann, 402 U.S. at 16
    (discussing “traditionally” broad power of school authorities to formulate
    policies that would not be within the power of a federal court to order).
          29
             Freeman, 503 U.S. at 490 (citing Dayton Bd. of Educ. v. Brinkman, 
    433 U.S. 406
    , 410 (1977)).    See also Milliken v. Bradley, 
    418 U.S. 717
    , 741-42
    (1974)(“No single tradition in public education is more deeply rooted than local
    control over the operation of schools; local autonomy has long been thought
    essential both to the maintenance of community concern and support for public
    schools and to quality of the educational process.”); San Antonio Indep. Sch.
    Dist. v. Rodriguez, 
    411 U.S. 1
    , 42 (1973)(“This case . . . involves the most
    persistent and difficult questions of educational policy, another area in which
    this Court's lack of specialized knowledge and experience counsels against
    premature interference with the informed judgments made at the state and local
    levels.”).
          30
            Swann, 402 U.S. at 15; Belk v. Charlotte-Mecklenburg Bd. of Educ., 
    269 F.3d 305
    , 401 (4th Cir. 2001).
          31
               Swann, 402 U.S. at 16.
    
                                             39
          Certainly,        the       Court’s    more   recent      Croson    and   Grutter
    
    decisions have clarified our duty to scrutinize government use of
    
    racial     classifications          strictly      for   both    a   compelling     state
    
    interest and narrowly tailored means to achieve the goal of such
    
    classification.32             I    am   convinced       that,   under     the   instant
    
    circumstances, the Caddo Magnet policy satisfied both at the time
    
    of its promulgation; and more to the point, does nothing to require
    
    us   to    test   the    continued          employment    of    that     policy,   post-
    
    supervision, under the strict scrutiny rubric.
    
          A.     Compelling State Interest
    
          It is well established that remedying the present effects of
    
    past discrimination is a compelling state interest.33                      As the panel
    
    majority notes, Caddo Parish School District has been previously
    
    adjudged dual, i.e., guilty of discrimination.                           The continued
    
    existence of a consent decree imposed pursuant to a judicial
    
    finding of past de jure segregation, even if now only partially
    
    enforceable, is nonetheless prima facie evidence of the continued
    
    existence of the effects of past discrimination.                       This is so for
    
    several reasons, even with respect to a consent decree that remains
    
    only partially in effect.
    
    
    
    
          32
             Grutter v. Bollinger, 
    539 U.S. 306
    , 326 (2003);               Croson v. City of
    Richmond, 
    488 U.S. 469
    , 493 (1989).
          33
             Dallas Fire Fighters Ass’n v. City of Dallas, 
    150 F.3d 438
    , 441 (5th
    Cir. 1998).
    
                                                 40
          First, a formerly dual school district is under a continuing
    
    duty to “take whatever steps might be necessary to convert to a
    
    unitary system in which racial discrimination would be eliminated
    
    root and branch.”34         Persons subject to such an injunctive decree
    
    of a court of competent jurisdiction are expected to obey that
    
    order until it is modified or reversed.35               This holds true even if
    
    the   order      compels   violation     of     another     statute       ——    or    the
    
    Constitution for that matter.36               Declaration of partial unitary
    
    status cannot be read to modify, much less repeal, the substantive
    
    elements of the order such that the school district is no longer
    
    required to take all efforts to comply with it, even if those
    
    efforts might otherwise violate the law.
    
          Second, school districts under court order to remedy past
    
    segregation      should    not   first   be    forced     to    consider       race   and
    
    undertake race-conscious policies to the point of achieving partial
    
    unitary status, only to be forced at that time either to abandon
    
    these policies immediately or to conduct extensive studies to prove
    
    a direct correlation between the policy and some aspect of their
    
    violation       despite    potential     liability        for     their     remaining
    
    obligations.       The Supreme Court has observed that the indicia by
    
    
    
          34
               Green v. School Bd. of New Kent County, 
    391 U.S. 430
    , 437-38 (1968).
          35
             GTE Sylvania, Inc. v. Consumers’ Union of United States, 
    445 U.S. 375
    ,
    386 (1980).
          36
             GTE, 445 U.S. at 378 n.2; Walker v. City of Birmingham, 
    388 U.S. 307
    ,
    317 (1967).
    
                                             41
    which school districts are adjudged dual or unitary, such as one-
    
    race schools, segregated facilities, faculties, or student bodies,
    
    and the like, may be intertwined in such a way as to make the
    
    remedy for one effect of the constitutional violation effective to
    
    remedy other inequities.37 Many school districts undoubtedly do not
    
    have the resources to produce direct evidence of the causes and
    
    effects      of   these   interconnected     factors,    yet   they   could   be
    
    sanctioned for failing to satisfy their obligations under such
    
    decrees.38 For these reasons, at least until a district is declared
    
    fully unitary, we should accept the truism that a consent decree’s
    
    requirement that the school district remedy past segregation is
    
    sufficient evidence that vestiges of past discrimination persist
    
    and, accordingly, that remedying them is a compelling governmental
    
    interest.
    
          B.      Narrowly Tailored
    
          The Caddo Magnet policy was validly enacted, i.e., narrowly
    
    tailored to achieve the goals of the consent decree, and it
    
    continues to meet the narrow tailoring requirement, even under the
    
    
    
          37
               Freeman v. Pitts, 
    503 U.S. 467
    , 497 (1992).
          38
            The majority states that it would be “manifestly unfair and illogical”
    to require the plaintiffs to prove that the Caddo Magnet admissions policy was
    unjustified more than a decade after the 1990 order. On the contrary, I find it
    unfair and illogical that any plaintiff seeking admission to a magnet school that
    has as the very reason for its existence the court-ordered effort to desegregate
    Caddo Parish Schools, may force the Board to prove, as many times as there are
    plaintiffs, the justification for its policy while the district as a whole
    remains subject to court order. The fair thing to do, I believe, is to allow the
    district the presumption that its policy addresses a compelling state interest,
    at least until the district as a whole is no longer subject to court order.
    
                                            42
    partial consent decree.         Under the circumstances of this case,
    
    viz., a school district’s complying with the court’s order to
    
    remedy a past constitutional violation by, inter alia, achieving a
    
    50/50 black-white student body in its magnet schools, we should
    
    view with considerable deference the continuation of any policy
    
    previously enacted and unswervingly administered —— under years of
    
    court observation —— to bring the school district into compliance
    
    with the court order.39
    
          As recently as 2001, the Fourth Circuit in Belk v. Charlotte-
    
    Mecklenburg Board of Education employed a “deferential” brand of
    
    strict scrutiny when it held that a similar race-based admissions
    
    formula for magnet schools did not violate the Constitution,
    
    because it had been implemented pursuant to a consent decree and
    
    had been sufficiently narrowly-tailored to fulfill the Board’s
    
    court-ordered     obligations.40        The   Belk    court     considered    an
    
    admissions    lottery    that    allocated    spots    in   a   magnet   school
    
    
    
          39
            Some deference to the decisions of educational policy-makers, even when
    the court is strictly scrutinizing voluntarily-enacted race-conscious policies,
    is appropriate. See Grutter v. Bollinger, 
    539 U.S. 306
    , 329 (2003) (“Our holding
    today is in keeping with our tradition of giving a degree of deference to a
    university’s academic decisions, within constitutionally-prescribed limits.”).
          40
             Belk v. Charlotte-Mecklenburg Bd. of Educ., 
    269 F.3d 305
    , 354, 401 (4th
    Cir. 2001). The majority takes issue with my reliance on Belk, arguing that this
    case is inapposite because there was no prior order removing magnet schools from
    the extant desegregation orders. My reason for relying on Belk, however, is to
    counter the majority's holding that the Caddo Middle Magnet admissions policy was
    not narrowly tailored at the time of its promulgation. Other considerations,
    such as our deference to school board authority, the school board's continuing
    duty to comply with its consent decree, and the use of race-conscious admissions
    policies at magnet schools to prevent them from undermining desegregation in the
    rest of the district —— considerations to which the majority does not respond ——
    support a holding that the policy continues to be narrowly tailored.
    
                                           43
    according to race.41       The Charlotte-Mecklenburg School district had
    
    created separate lotteries for black and non-black students in an
    
    effort to achieve racial balance in its magnet schools.                First, if
    
    a sufficient number of children of either race did not fill the
    
    quotas     for    the   children’s    respective   races,     the   Board   would
    
    actively recruit children of the opposite race despite lengthy
    
    waiting lists for “majority” race spots.42           But then, if the Board
    
    could not successfully recruit enough children of the targeted
    
    race, the remaining open spots usually went unfilled.43               The Fourth
    
    Circuit concluded in two separate opinions that the Board’s policy
    
    survived        constitutional   scrutiny,   despite    the    fact    that   the
    
    relevant court order did not require the school district to use a
    
    race-based admissions policy.44
    
         Four appellate judges held that the underlying court order’s
    
    broad language commanding the district to take “whatever steps
    
    might be necessary to convert to a unitary system,” together with
    
    the school district’s discretion to maintain control over the
    
    racial composition of the schools, justified use of a quota.45
    
    Chief Judge Wilkinson, along with Judge Niemeyer, expressed strong
    
    disapproval of the use of quotas and doubted that the Board’s
    
         41
              Belk, 269 F.3d at 316-37.
         42
              Id.
         43
              Id.
         44
              Id. at 311.
         45
              Belk, 269 F.3d at 401 (King, J. and Motz, J., concurring).
    
                                            44
    policy would survive if it were enacted voluntarily, but reasoned
    
    that the school district was nevertheless entitled to flexibility
    
    in how it complied with a court order:
    
              It is true that in the early 1990's, the school
              board in its magnet program eagerly accepted the
              courts’   invitation   to   rely   upon   numerical
              benchmarks.    I believe, however, that it is
              necessary to afford a school board some latitude in
              attempting to meet its desegregative obligations if
              we are not to undermine the rule of law.      To do
              otherwise leaves the Board between a rock and a
              hard place. Namely, if the school board fails to
              carry out the court desegregation order, it can be
              cited for contempt or held not to have achieved
              unitariness. But if the Board acts aggressively to
              implement the court order, it risks facing judicial
              condemnation and the threat of litigation on the
              grounds that it was acting ultra vires. This is not
              the kind of quandary into which we should force
              institutions that are, for better or worse, under
              judicial decree.46
    
         We know that here, as in Belk, the district court’s 1990
    
    consent decree did not mandate the precise quota policy here at
    
    issue, but broadly commanded Caddo Parish School Board to make
    
    “reasonable efforts” to recruit black students to its magnet
    
    schools.     In so doing, however, the court did specifically decree
    
    that the targeted black-white enrollment ratio for the school
    
    should be 50/50, adding that this projected enrollment would be
    
    deemed satisfied if actual enrollment at Caddo Magnet was within
    
    plus or minus fifteen percentage points of the ratio mandated by
    
    the court for that school.          Although the consent decree did not
    
    explicitly     order   Caddo    Magnet    to   use   a   race-conscious   quota
    
         46
              Belk, 269 F.3d at 354. (Wilkinson, C.J., concurring).
    
                                             45
    admissions policy, it is indisputable that, given (1) the court’s
    
    constitutional mandate for the Board to take whatever steps were
    
    necessary to fulfill its obligations, and (2) the Supreme Court’s
    
    prior approval of quite similar race-conscious admissions policies,
    
    this was a reasonable and constitutionally-acceptable means for the
    
    Board to initiate and continue in its efforts to meet and maintain
    
    its court-ordered enrollment goals.47          Like the Belk policy, the
    
    Caddo Magnet policy was validly enacted as a narrowly tailored
    
    means of achieving the goals set forth in the consent decree.
    
          Our own precedent supports affirming the district court’s
    
    ruling that upholds the continued viability of Caddo’s magnet
    
    school admissions policy.         Davis v. East Baton Rouge Parish School
    
    Board, for example, is apposite.48            Although, unlike the Caddo
    
    board, the Baton Rouge School Board was still under court order
    
    with respect to its magnet school admission policy, and although
    
    the time frame between the enactment of the decree and our review
    
    was narrower, the gravamen of our holding the Baton Rouge magnet
    
    schools admissions policy viable was that the quota would prevent
    
    the magnet schools from undermining desegregation in the parish as
    
    
    
    
          47
             See Green v. County Sch. Bd. of New Kent County, 
    391 U.S. 430
    , 437-38
    (1968) (holding that school boards previously operating state-compelled dual
    systems were “clearly charged with the affirmative duty to take whatever steps
    might be necessary to convert to a unitary system); Duvall County Sch. Dist. v.
    NAACP. 
    273 F.3d 960
    , 968 (11th Cir. 2001)(noting with approval that the school
    district, “while not contractually obligated to,” capped white enrollment at
    magnet schools to promote integration).
          48
               
    721 F.2d 1425
     (5th Cir. 1983).
    
                                            46
    a whole.49      Surely this rationale applies irrespective of whether
    
    all or any part of a school district remains under court order to
    
    desegregate —— likely even after full unitary status is achieved,
    
    but certainly during the continuation of the status quo.
    
          Neither can I agree that Bryant v. Caddo Parish School Board,50
    
    our earlier decision affirming the Western District of Louisiana’s
    
    upholding       of   the   self-same    Caddo       Middle   Magnet   admissions
    
    policy, is unpersuasive.           Regarding the panel majority’s first
    
    concern —— that the Bryant district court did not address Freeman
    
    —— I have already noted that Freeman only spoke to the district
    
    court’s authority to relinquish control in an incremental fashion;
    
    it said nothing about the effect of partial unitary status on a
    
    school district’s power to craft its own policy.51
    
          The majority’s second concern —— that the consent decree
    
    itself contemplated that the magnet schools would be released from
    
    the decree after fulfilling their obligations —— also speaks to the
    
    discretionary authority of the school district to change the
    
    admissions policy when and if it determines that it is proper to do
    
    
    
    
          49
             Id. at 1440. (“‘The First Circuit has specifically approved application
    of a racial quota in admissions to magnet schools to ensure that they would not
    serve as a haven for those seeking to attend a school predominantly composed of
    those of their own race.’ We agree.”) (internal citations omitted).
          50
               CV No. 95-0441 (W.D. La. Jan 3, 1997).
          51
             See infra text accompanying notes 3-4. See also Freeman, 503 U.S. at
    489 (“A federal court in a school desegregation case has the discretion to order
    an incremental or partial withdrawal of its supervision and control.”)
    
                                            47
    so. It does not speak to any obligation to discontinue the policy,
    
    ipso facto, immediately on release from court supervision.
    
         As regards the majority’s third concern, it is true that the
    
    stated purpose of creating and operating magnet schools was to
    
    enhance the quality of education imparted to qualified students at
    
    those schools.       We recognized in Davis, however, that a primary
    
    purpose of racial quotas for magnet school admissions is to ensure
    
    that “voluntary attendance schools not work to undermine the
    
    progress of desegregation in the parish.”52
    
         As     for   the   majority’s    belief    that   there    is   no   clear
    
    relationship between the remaining deficiencies in the Caddo Parish
    
    School system and racial balancing at Caddo Magnet, the foregoing
    
    quotation from Davis clearly identifies a nexus between admissions
    
    policies at magnet schools and enrollment throughout a district.
    
    Although the Board no longer remains under court supervision with
    
    respect to racial enrollment projections, it does remain under
    
    court order with respect to one-race schools and majority-minority
    
    transfers. Even if here the Davis nexus is slightly attenuated, it
    
    is not unreasonable to deduce that abolishing the magnet school
    
    admissions policy would likely “undermine” continuing efforts to
    
    remedy the broader problem of one-race schools.                Freeman itself
    
    acknowledged that racial balancing in student assignments may be a
    
    legitimate means to correct inequities elsewhere in a school system
    
    
    
         52
              Davis, 721 F.2d at 1440(emphasis added).
    
                                           48
    that were also caused by a constitutional violation.53             Eliminating
    
    all vestiges of prior segregation remains a court-ordered goal for
    
    the Board.
    
          In the universe of narrow tailoring, magnet schools have been
    
    recognized by courts time and again as an effective and unobtrusive
    
    means for school districts to remedy vestigial effects of past
    
    segregation.54      Congress itself has extolled the virtues of magnet
    
    schools as a means “to continue to desegregate and diversify
    
    schools . . . recognizing that segregation exists between minority
    
    and nonminority students . . [and that] [d]esegregation efforts
    
    through magnet school programs are a significant part of our
    
    Nation’s effort to achieve voluntary desegregation. . .” in its
    
    Magnet Schools Assistance Program.55          And, although Caddo Parish’s
    
    partial unitary status includes Caddo Middle Magnet, the district
    
    as a whole has not been declared unitary as to remaining one-race
    
    schools, majority-to-minority transfers, and staffing. Even though
    
    
    
          53
             Freeman, 503 U.S. at 497. The Freeman court ultimately found that there
    had been no showing that racial balancing was an appropriate mechanism to cure
    other deficiencies in the school system, but it acknowledged that the district
    court did not make specific findings and conclusions on that issue and remanded
    for further proceedings. Id. at 498. Further, the Freeman decision did not
    implicate the school board’s discretion to use racial balancing to cure other
    deficiencies, but only the equitable power of the district court to order the
    Board to do so. See id. Finally, the issue in Freeman was whether race-based
    student assignments could remedy problems with faculty assignments, whereas Caddo
    Parish has not achieved unitary status in two other areas, including one-race
    schools and majority-to-minority transfers. Id.
          54
             See Milliken v. Bradley, 
    433 U.S. 267
    , 272, 287-88 (1977); Belk, 269
    F.3d at 355 (Wilkinson, C.J., concurring) (“Magnet schools are a widely used
    desegregation device.”).
          55
               20 U.S.C. § 7231 (2002).
    
                                           49
    Caddo’s magnet schools are no longer compelled to enroll majority
    
    and minority students according to the flexible ratio at issue,
    
    they were created, and continue to be used, “to enhance the quality
    
    of education and bring about a greater degree of desegregation.”56
    
    The magnet school admissions policy certainly “fits” this                goal.
    
    Conclusion
    
         The admissions policy at Caddo Parish was validly enacted to
    
    serve a compelling state interest and was narrowly tailored to
    
    achieve that interest, pursuant to a valid consent decree.                    The
    
    fact that the district court might no longer threaten the school
    
    district with sanctions if the magnet schools do not meet their
    
    projected     enrollments     does    not     mean   that   Caddo   Parish   must
    
    immediately scrap the race-based admissions policy for its magnet
    
    schools as part of its broader plan to desegregate.                 The Supreme
    
    Court has never spoken to the effect of partial unitary status on
    
    existing aspects and policies of the desegregation plan of an
    
    extant consent decree, but has emphasized the breadth of school
    
    district discretion and the importance of local control over
    
    schools.      Consequently, our deference to a locally-accountable
    
    school board’s decision to continue the use of a race-conscious
    
    admissions policy of which the supervising court was obviously
    
    aware for as long as it              takes to eradicate the vestiges of
    
    
    
    
         56
              1981 Caddo Parish Consent Decree.
    
                                            50
    segregation is legally defensible despite the anathema of racial
    
    quotas generally.
    
          Indeed,     Supreme         Court   precedent,          such    as    Seattle       School
    
    District    and      Bustrop,        indicates         that    the    Court       views     even
    
    voluntarily-adopted race-conscious policies with a substantial
    
    degree of tolerance.              We need not go that far, but neither should
    
    we   retrench     on   Court       precedent          by   unduly    restricting          school
    
    districts, especially those that continue to operate under court
    
    order.     Our review of the instant policy should be considerably
    
    more deferential than the strictest of strict scrutiny, keeping in
    
    mind that the entire district remains under court order and that
    
    partial cessation of court supervision of this facet of magnet
    
    school   admissions          is    not    the    equivalent          of    terminating        the
    
    continuing presumption of deference to school boards by the courts.
    
          I end where I began.                 If this Caddo Magnet racial-quota
    
    admissions policy were enacted unilaterally by the Board today,
    
    after the court has ceased supervision of the magnet schools, I
    
    could go along with the majority’s strict scrutiny analysis and
    
    rejection of the quota system.                   But inasmuch as that policy was
    
    enacted pursuant to court order and has been in place for years
    
    under    that   order        ——    with   court        scrutiny      and        without   court
    
    disapproval     ——     and    the    Board       is    still    hard       at    the   task    of
    
    eradicating the pernicious effects of de jure segregation, I am
    
    convinced that the test employed in the majority’s opinion is
    
    
    
                                                    51
    inappositely   stringent   and    thus,   I   respectfully   submit,
    
    inapplicable in this framework.
    
    
    
    
                                      52