IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA OLD WASHINGTON DIVISION No. 6:69-CV-702-H 6:65-CV-569-H

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA OLD WASHINGTON DIVISION No. 6:69-CV-702-H 6:65-CV-569-H RONDA EVERETT, MELISSA GRIMES, ) CAROLINE SUTTON and CHRISTOPHER W. ) TAYLOR, next friends of minor children ) attending Pitt County Schools, and THE PITT ) COUNTY COALITION FOR EDUCATING ) BLACK CHILDREN, ) ) PLAINTIFFS MEMORANDUM ) OF AUTHORITIES ON Plaintiffs, ) EVIDENTIARY QUESTIONS ) AND CONTESTED ISSUES OF v. ) LAW ) Local Civ. R. 39.1 THE PITT COUNTY BOARD OF EDUCATION, ) public body corporate, ) ) Defendant. ) This Memorandum of Authorities on Evidentiary Questions and Contested Issues of Law is submitted on behalf of Ronda Everett, Melissa Grimes, Caroline Sutton, Christopher W. Taylor, and the Pitt County Coalition for Educating Black Children (together Plaintiffs ), pursuant to Local Rule 39.1. I. INTRODUCTION In September 2009, Defendant agreed to take the steps necessary to move the District toward unitary status. In November 2009, this Court approved Defendant s agreement and embodied it in a Consent Order. In 2012, the Fourth Circuit acknowledged the vitality of that Consent Order and ruled that Defendant bore the burden of proving that its 2011-2012 Student Assignment Plan ( 2011-2012 Plan ) moved the District toward unitary status. As trial approaches, Defendant has made clear its position that, despite its statements leading up to the 1 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 1 of 24

September 2009 agreement, despite this Court s Consent Order, and despite the Fourth Circuit decision, it has been unitary for years, long before it represented to this Court that it still was not. Whether viewed through the prism of law of the case, estoppel principles, judicial admissions, or notions of equity and common sense, Defendant cannot assert this position. In any event, based upon these same legal principles and controlling school desegregation precedent that bars a defendant school board from being declared unitary when it has not complied with its court orders, this Court must first determine whether Defendant s 2011-2012 student assignment plan moved the District toward unitary status before addressing Defendant s unitary status motion, and cannot grant that motion if the Court finds that the 2011-2012 Plan did not move the District toward unitary status. Finally, in addressing both motions, the Court must place the burdens of proof firmly on Defendant. First, Defendant has the burden of proving that the 2011-2012 Plan moved the District toward unitary status. As will be clear from the proofs, the 2011-2012 Plan moved the District even further away from unitary status, resulting in an increase in the extent of racial imbalance in the Pitt County school system. Therefore, because Defendant will fail to meet this burden at trial, Plaintiffs motion must be granted, and Defendant s denied. If, however, the Court rules that Defendant has carried its burden on the 2011-12 Plan and does reach the merits of Defendant s motion for unitary status, Defendant still has the burden of proving that it has complied with all court orders and the constitutional standards that led to those orders in good faith and that it affirmatively acted to remove vestiges of discrimination. Aside from its failure to show compliance with the 2009 Consent Order, Defendant will be unable to show that it has taken all steps reasonably practicable to eliminate the vestiges of discrimination and to show good faith compliance with the Court s orders and Defendant s constitutional obligations. The 2 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 2 of 24

proofs will show that, among other things, significant numbers of students were subjected to racially imbalanced and isolated schools, that new schools were opened and remained racially imbalanced, that the district failed to recruit and assign faculty so as to achieve racial balance, and that the system s student disciplinary system is racially imbalanced. II. BACKGROUND This case arises out of two school desegregation orders issued by the District Court for the Eastern District of North Carolina finding Pitt County Schools and Greenville City Schools liable for the operation of racially segregated, dual and unconstitutional school systems. 1 Following the initial implementation of court-approved desegregation plans, the District Court removed the Teel and Edwards cases from the active docket. In 2006, the Greenville Parents Association ( GPA ) filed a complaint with the U.S. Department of Education Office for Civil Rights ( OCR ) alleging that the Pitt County Board of Education s ( Defendant ) 2006-2007 student assignment plan discriminated against White students because it used racial balancing to reduce racial isolation in some of its elementary schools. In settling that complaint, Defendant agreed to return to this Court and seek a declaration of the status of the Teel and Edwards orders and clarification of its obligations pursuant to those cases. In a series of filings to this Court in 2008, Defendant repeatedly asserted its obligations under the desegregation orders and acknowledged its status as a non-unitary district. In November 2009, this Court issued an Order approving an interim settlement agreement between the parties, specifically noting that the Board had not yet achieved unitary status: It is 1 Teel v. Pitt County Board of Education, Civ. A. No. 569 (E.D.N.C. Feb. 23, 1965) (ordering desegregation of Pitt County Schools) and Order, Edwards v. Greenville City Board of Education, Civ. A. No. 702 (E.D.N.C. July 7, 1970) (ordering desegregation of Greenville City Schools). The consolidated Pitt County Board of Education, the successor in interest of the original school board defendants, was formed by the merger of Pitt County Schools and Greenville City Schools in 1986. 3 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 3 of 24

time for the School Board to follow course and fulfill its obligation to attain unitary status so that it may reclaim complete control over its schools. Everett v. Pitt Cnty. Bd. of Educ., 6:69-CV- 702 (E.D.N.C. Nov. 11, 2009) (DE 73). This Court further emphasized Defendant s continuing obligations to eliminate fully the vestiges of discrimination and ordered the parties to work toward attaining unitary status so that the court may relinquish jurisdiction over this case and restore to the School Board full responsibility for the operation of its schools. Id. Finally, the Court ordered the parties to submit, on or before December 31, 2012, a report detailing the School Board s efforts and progress in achieving unitary status and eliminating the vestiges of past discrimination to the extent practicable. Id. On November 15, 2010, Defendant selected a 2011-2012 reassignment plan ( 2011-2012 Plan ). Plaintiffs urged Defendant to reconsider the selected plan, which projected significant increases in racially identifiable, non-white schools with low student achievement, opened a new elementary school as a high-minority, low-achieving school, and left several racially imbalanced schools untouched. Plaintiffs asserted the selected plan would violate the court orders and move the district further away from unitary status. On April 19, 2011, Plaintiffs filed a Motion for Injunctive and Other Appropriate Relief seeking to enjoin the pending implementation of the 2011-2012 Plan on the grounds that it violated this Court s controlling desegregation orders and Defendant s continuing affirmative duty to desegregate its schools. Motion for Injunctive and Other Appropriate Relief, Attorneys Fees, and Costs, Everett v. Pitt Cnty. Bd. of Educ., 6:69-CV- 702-H (E.D.N.C. Apr. 19, 2011) (DE 80). The Court denied Plaintiffs motion following a hearing on August 16, 2011, holding Plaintiffs had not satisfied the movant s burden under a preliminary injunction standard. Everett v. Pitt Cnty. Bd. of Educ., 6:69-CV-6 702 (E.D.N.C. Aug. 18, 2011) (DE 93-1). Plaintiffs 4 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 4 of 24

appealed to the United States Court of Appeals for the Fourth Circuit, which on May 7, 2012, vacated the district court s decision and remanded the case. Everett v. Pitt Cnty. Bd. of Educ., 678 F.3d 281, 289 (4th Cir. 2012). The Fourth Circuit held that, because the school district has not yet attained unitary status and is still subject to the controlling desegregation orders, Defendant bears the evidentiary burden to prove that the 2011-2012 Plan is consistent with those orders and fulfills its affirmative duty to eliminate the vestiges of discrimination and move the district toward unitary status. In doing so, it specifically instructed this Court to (1) reconsider the motion with the burden on Defendant, and (2) if appropriate, further develop[] the record. Id. at 293. Defendant s petition for rehearing en banc of the Fourth Circuit s decision was denied on June 4, 2012, and the Mandate was issued on June 13, 2012. Everett v. Pitt Cnty. Bd. of Educ., No. 11-2000 (4th Cir. June 13, 2012). Two days later, Plaintiffs again moved this Court for expedited consideration of their April 2011 Motion. Motion for Expedited Reconsideration on Remand, Everett v. Pitt Cnty. Bd. of Educ., 6:69-CV-702-H (E.D.N.C. 2012) (DE 103). In response to that motion, this Court ordered the parties to submit proposed administrative procedures to guide its consideration of Plaintiffs motion in light of the Fourth Circuit s ruling, and specifically the court s consideration of the parties claims regarding the defendant School Board s student attendance policy.... Everett v. Pitt Cnty. Bd. of Educ., 6:69-CV-702 (E.D.N.C. June 27, 2012) (DE 105). Defendant then filed a Motion for Unitary Status, alleging inter alia, that the district was unitary as early as the year 2000, and requesting that its Motion for Unitary Status (at least with regard to student assignment) be considered at the same time as the remanded hearing on the Petitioners April 2011 Motion. Motion for Declaration of Unitary Status, Everett v. Pitt Cnty. Bd. of Educ., 6:69-CV-702-H (E.D.N.C. July 6, 2012) (DE 106). In the Joint Response to this 5 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 5 of 24

Court s June 27 Order, the parties were unable to agree on the appropriate scope of the hearing following remand from the Fourth Circuit. Joint Response of Plaintiffs and Defendants to the Court s June 27, 2012 Order Regarding Hearing Procedures, Everett v. Pitt Cnty. Bd. of Educ., 6:69-CV-702 (E.D.N.C. July 18, 2012) (DE 108). This Court issued an Order clarifying the scope of the hearing on remand and the Board s motion for unitary status, ruling that the Court will address these matters together. Everett v. Pitt Cnty. Bd. of Educ., 6:69-CV-702 (E.D.N.C. Sept. 10, 2012) (DE 112). I. ISSUES OF LAW A. The decisions on the rule of law in the Fourth Circuit opinion are the controlling law of the case. The Fourth Circuit set forth the controlling law of this case in its May 7, 2012 opinion, Everett v. Pitt County Board of Education, 678 F. 3d 281 (4th Cir. 2012). Under the law of the case doctrine, when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Arizona v. California, 460 U.S. 605, 618 (1983). The doctrine extends to both the issue actually decided and to those decided by necessary implication. United States v. Lentz, 524 F.3d 501, 528 (4th Cir. 2008). The mandate rule is the specific application of the law of the case doctrine at issue here, which provides that once the decision of an appellate court establishes the law of the case, it must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal unless: (1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to the issue, or (3) the prior decision was clearly erroneous and would work manifest injustice. Id. (emphasis added). As its name suggests, the mandate rule is mandatory the district court can only fail to follow the appellate decision if one 6 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 6 of 24

of the exceptions applies. See United States v. Rivera-Martinez, 931 F.2d 148, 150 (1st Cir. 1991) ( When a case is appealed and remanded, the decision of the appellate court establishes the law of the case and it must be followed by the trial court on remand. ) In Everett, the Fourth Circuit ruled that Defendant has the burden to prove that the 2011-12 Plan is consistent with the controlling desegregation orders and fulfills the School Board's affirmative duty to eliminate the vestiges of discrimination and move toward unitary status. 678 F.3d at 290. In addition to the express rulings, the necessary implication of the Fourth Circuit s mandate is that Defendant cannot circumvent its burden by asserting that it was unitary prior to 2009. Additionally, the necessary implication of requiring Defendant to establish that the 2011-12 Plan moves it towards unitary status is that, if Defendant fails to carry this burden, it cannot by definition be declared unitary. Therefore, because none of the exceptions to the mandate rule applies, this Court must (1) place the burden of proof on Defendant as to both Plaintiffs Motion for an Injunction as to the 2011-2012 Student Assignment Plan and Defendant s Motion for Unitary Status; (2) address first Plaintiffs Motion, because if it is granted, Defendant is not entitled to unitary status; and (3) rule that Defendant is precluded from asserting that it attained a unitary system prior to the entry of the 2009 Consent Order. B. Defendant bears the burden of proof on both motions before this Court. As a wealth of precedent and the controlling law of the case make clear, the burden of proof in school desegregation cases remains on the defendant school board and does not shift to a plaintiff until a district court officially declares a school system unitary. See Everett v. Pitt Cnty. Bd. of Educ., 678 F.3d 281, 289 (4th Cir. 2012). Because it is undisputed that Defendant has not been declared unitary, Defendant has the burden to prove both that (1) the 2011-2012 Student Assignment Plan moved the district towards unitary status and (2) it has eliminated the vestiges 7 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 7 of 24

of past discrimination to the extent practicable throughout the entire school district, and (3) it has complied in good faith with the Court s desegregation orders, including the 2009 Consent Decree of this Court, and with those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. i. Defendant has the burden to prove at trial that the 2011-2012 Student Assignment Plan moved the district towards unitary status. In Everett, the Fourth Circuit explained that a school board under court order has a continuing affirmative duty to eliminate discrimination. Id. (quoting Riddick v. Sch. Bd., 784 F.2d 521, 535 (4th Cir. 1986)). Specifically, Defendant has the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination [is] eliminated root and branch. Green v. Cnty. Sch. Bd., 391 U.S. 430, 437-38 (1968). The Fourth Circuit therefore made abundantly clear that Defendant has the burden to prove that the 2011-12 Assignment Plan is consistent with controlling desegregation orders and fulfills the School Board s affirmative duty to eliminate the vestiges of discrimination and move toward unitary status. Everett, 678 F.3d at 290. Accordingly, Defendant has the burden of proof to establish that the 2011-12 Assignment Plan moves the Pitt County School District towards unitary status. ii. Defendant has the burden to prove at trial that it has eliminated the vestiges of past discrimination to the extent practicable in all Green and ancillary factors. Additionally, given Defendant s continuing affirmative duty, this Court must presume that current racial imbalances within the school system are vestiges of past discrimination. See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 467 (1979). Thus, in regard to Defendant s Motion for Unitary Status, the burden rests with Defendant to rebut this presumption and prove that it has eliminated the vestiges of discrimination to the extent practicable in order to secure a 8 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 8 of 24

declaration of unitary status. Everett, 678 F.3d at 289. Because Defendant is seeking a complete release from this Court s judicial supervision through a full declaration of unitary status, Defendant s burden includes establishing that it has eliminated the vestiges of discrimination with regard to all six of the Green factors, plus ancillary factors. 2 Swann v. Charlotte- Mecklenburg Bd. of Educ., 402 U.S. 1, 18 (1971) (citing Green v. Cnty. Sch. Bd., 391 U. S. 430 (1968)). The Green factors are: (1) student assignment, which, in addition to the racial balance in the school system, includes school siting and whether African-American students are forced to bear a disproportionate burden of the school system s desegregation efforts; (2) faculty assignment; (3) staff assignment; (4) transportation; (5) extracurricular activities; and (6) facilities and resources. Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 319 (4th Cir. 2001). Appropriate ancillary factors are student achievement, student discipline, and teacher quality. See Freeman v. Pitts, 503 U.S. 467, 491 (1992); Belk, 269 F.3d at 319, 330-32. iii. Defendant has the burden to prove at trial that it has and will continue to act in good faith. Defendant also has the burden to demonstrate its good faith commitment to a constitutional course of action and compliance with its court orders, including this Court s 2009 Order. Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 332 (4th Cir. 2001). Although compliance with prior orders is one component of good faith and a necessary predicate to achieving unitary status, 3 Defendant must show more to meet its good faith burden. First, the good faith requirement for securing a declaration of unitary status not only looks backwards to determine whether the Board has acted in good faith, but also looks forward and requires that the 2 Plaintiffs address here only the correct burdens in a school desegregation case. There are, of course, other legal standards pertaining to school desegregation cases, including the legal standards for each of the Green and ancillary factors, which will be thoroughly briefed in the post-trial submission of Plaintiff s Proposed Conclusions of Law and Fact. 3 See Section II.B, below. Indeed, in Section II.B, plaintiff will establish that this Court can deny Defendant s request for a unitary status declaration due solely to Defendant s failure to comply with the 2009 Court Order. 9 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 9 of 24

Defendant must demonstrate to this Court, the public, and the parents and students of the once disfavored race that it will not abandon a constitutional course of action in the future. Freeman, 503 U.S. at 491; see also United States v. Alamance-Burlington Bd. of Educ., 640 F. Supp. 2d 670, 683 (M.D.N.C. 2009) (considering the likelihood of the school board continuing desegregative efforts and not reverting back to a dual system). Second, federal courts consider a range of factors to determine whether a defendant school board has carried its burden in establishing that it has a good faith commitment to the whole of the court s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. Freeman, 503 U.S. at 491. In Belk, the Fourth Circuit used seven factors to determine whether the defendant school board carried its good faith burden. Belk, 269 F.3d at 332. These factors include whether: (1) no further relief has been sought since the case was removed from the active docket; (2) the board has gone above and beyond the court s orders by continually striving to achieve balance even when imbalances are unconnected to the dual system; (3) the board has been open to community input and sought community support for integrative efforts; (4) the board has repeatedly reaffirmed its commitment to desegregation; (5) there is African-American representation on the school board; (6) school board actions do not evince discriminatory motive; and (7) school authorities are guilty of easily correctable errors. Id. Moreover, other federal courts have examined the extent of a school board s desegregation efforts, such as the implementation of magnet programs and majority-to-minority transfer programs, see, e.g., Lockett v. Board of Education of Muscogee County School District, 11 F.3d 839, 843 (11th Cir.), and whether a school board has actually monitored, tracked, reviewed, and analyzed the effectiveness of its policies and programs aimed at desegregation, 10 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 10 of 24

Fisher v. Tucson Unified School District, 652 F.3d 1131, 1141-45 n.18 (9th Cir. 2011). Finally, the Supreme Court has explained that the failure to take advantage of alternative courses of action that would have a greater effect of producing integration may indicate a lack of good faith and places a heavy burden on the school district. Green, 391 U.S. at 439. iv. Defendant is required to prove at trial that it has eliminated the vestiges of past discrimination and acted, and will continue to act, in good faith with regard to the entire school district. Defendant s burden extends to establishing for the entire district, and not just for clusters of the district, that current imbalances are not vestiges of past discrimination and that it has acted and will continue to act in good faith with regard, again, to the entire school district. The Supreme Court has explained that there is high probability that where school authorities have effectuated an intentionally segregative policy in a meaningful portion of the school system, similar impermissible considerations have motivated their actions in other areas of the system. Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 208 (1973). This presumption that imbalances are the result of past intentional discrimination extends to the entire district if a school district has practiced intentional discrimination. Id. Here, Defendant cannot attempt to carve out any portions of the school district as being balanced in terms of the various Green and ancillary factors while acknowledging that imbalances exist in other portions of the district. Moreover, it cannot carry its burden on good faith if it has not shown to this Court and the community that it has and will continue to act in good faith with regard to the entire school district. To do so would defy common sense, which dictates that any action a school board takes in respect to particular schools have an impact beyond [those] schools. Id. at 203. v. A merged school district, such as the Pitt County School District, seeking a unitary status declaration must fulfill the same requirements and has the same burdens that apply to all school districts bound by desegregation orders. 11 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 11 of 24

The requirements and burdens discussed above are as equally applicable to a district that has undertaken a merger since the issuance of desegregation orders as to a non-merged school district. United States v. Alamance-Burlington Bd. of Educ., 640 F. Supp. 2d 670, 674 76 (M.D.N.C. 2009); Hoots v. Pennsylvania, 118 F. Supp. 2d 577, 583 84 (W.D. Pa. 2000). Thus, Defendant is required to establish that it has acted and will continue to act in good faith, including satisfactorily complying with all of the conditions of the original orders issued in Teel and Edwards and with this Court s 2009 Order, and that it has eliminated the vestiges of discrimination to the extent practicable. The North Carolina state law effectuating the merger in Pitt County reflects this legal standard, providing: Any obligations and liabilities of the existing Pitt County and Greenville City Boards of Education shall become the obligations and liabilities of the consolidated Pitt County Board of Education at the time of merger, and those obligations and liabilities may be enforced against that Board to the same extent they might be enforced against the existing boards had they continued to exist. N.C. Sess. Laws 1985-796. Accordingly, because Defendant failed to secure a unitary status declaration prior to merger it cannot now attempt to escape its burdens by arguing that it was unitary pre-merger. C. If Defendant cannot carry its burden to establish that the 2011-12 Student Assignment Plan moved it towards unitary status, it cannot, by definition, be declared unitary. The controlling law of the case requires this Court to decide whether the 2011-12 Plan moves Defendant toward unitary status as a prerequisite to determining whether Defendant has attained unitary status. See Everett, 678 F.3d at 284 ( As a condition precedent to lifting these desegregation orders, school districts must... comply in good faith with the orders.... ). Defendant cannot circumvent its burden to defend the 2011-2012 Plan by moving for a declaration of unitary status. In order to ensure compliance with the Fourth Circuit s decision 12 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 12 of 24

and the controlling law of the case, this Court must first decide, using the appropriate burdens, whether the 2011-12 Plan moves the school district toward unitary status. Everett v. Pitt Cnty. Bd. of Educ., 678 F.3d 281, 291 (4th Cir. 2012) (emphasis in original). Ultimately, because Plaintiffs will establish at trial that by adopting the 2011-12 Plan Defendant increased the extent to which its schools are racially identifiable through its own actions despite a less segregative and practical alternative, this Court will be unable to find affirmatively for Defendant on its unitary status motion. i. The 2009 Consent Order and Defendant s judicial admissions are binding on Defendant and estop Defendant from asserting it operated a unitary system prior to 2009. In light of Defendant s assertion that it established a unitary school system as early as 2000, it is first necessary to clarify the binding effect of the 2009 Consent Order and Defendant s judicial admissions. See D.E. #106, 2. First, as an unappealed decision of this Court, the 2009 Consent Order, in addition to the Fourth Circuit decision, is the law of the case. Law of the case doctrine applies to prior trial court rulings in a case as well as prior appellate court rulings, see, e.g., Se. Pa. Transp. Auth. v. Pa. Pub. Util. Comm n, 210 F. Supp. 2d 689, 710-11 (E.D. Pa. 2002); Trout v. Garrett, 780 F. Supp. 1396, 1406 (D.D.C. 1991), including consent orders, see, e.g., Cnty. of Suffolk v. Stone & Webster Eng g Corp., 106 F.3d 1112, 1117 (2d Cir. 1997) (party s remedy from consent decree is to withdraw consent or timely appeal unchallenged decree becomes law of the case). The doctrine promotes the finality of the judicial process by protecting against relitigation of settled issues. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). Here, Defendant should not be permitted to relitigate the issues to which they agreed in connection with resolving the 2009 claims and implementing the 2006-2007 13 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 13 of 24

student assignment plan specifically, that prior to 2009, the school district had not yet eliminated the vestiges of discrimination and therefore was not unitary. Second, under the principles of collateral estoppel, the 2009 Consent Order s determinations estop Defendant from arguing that it operated a unitary district prior to 2009. As the Fourth Circuit explained in Riddick, the principles of collateral estoppel or issue preclusion are applicable to school desegregation cases. Riddick v. Sch. Bd., 784 F.2d 521, 531 (4th Cir. 1986). Consent orders have elements of both contracts and judicial decrees. Moore v. Tangipahoa Parish Sch. Bd., 2013 WL 141791, at *15 (5th Cir. Jan. 14, 2013). A consent order s findings of fact and conclusions of law are binding. Atlantic Nat. Trust, LLC v. Bame, 2008 WL 154012, *5 (D.S.C. Jan. 11, 2008); see also Everett, 678 F.3d at 290 (explaining that Defendant is bound by the 2009 Court Order s determination that the Teel and Edwards orders remain effective and applicable and this Court s express order that Defendant work towards attaining unitary status). Additionally, the principles of collateral estoppel apply when a consent order contains a court s findings on the merits of the plaintiffs claims for relief. Riddick, 784 F.2d at 530. The 2009 Consent Order at issue in the present case determined that Defendant was not unitary as of 2009 and ordered Defendant to work toward attaining unitary status so that the court may relinquish jurisdiction over the present case. D.E. # 73 (emphasis added); see also Everett, 678 F. 3d at 291 n.8. The Order expressly contained findings and ruled on the Board s 4 request for relief by grant[ing] the School Board s motion for judicial approval of its 2006-2007 student assignment plan, an order it could have made only if the school board was not yet unitary because the 2006-2007 plan was an expressly race-based reassignment designed to 4 At that stage in this litigation, the plaintiff was the Pitt County Board of Education, which is currently the Defendant at the present stage. 14 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 14 of 24

remedy vestiges of past discrimination. See Pitt County Schools Amended Motion for Plan Policy Approval (DE #23, 30) ( The Board contends that the Court s orders and continuing jurisdiction in Edwards and Teel, and the continuing racial isolation of certain schools in Pitt County, permitted the Board to consider race as a factor in the 2006-2007 Assignment Plan. ). Consequently, under the 2009 Consent Order, Defendant is bound by the determination that it was not unitary in 2009, is required to move the school district toward unitary status, and is estopped from asserting that it operated a unitary school system prior to 2009. In addition to consent orders, judicial admissions made in pleadings and pretrial orders are conclusively binding on the party who made them. Leake v. Bank of Rockbridge, 1993 WL 171744, at *3 (W.D. Va. Apr. 23, 1993) (quoting White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir.1983)). The Fourth Circuit has also found that a defendant s admissions in a memorandum of law are binding whether involving findings of fact or conclusions of law. See Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 264-65 (4th Cir. 2004). Defendant is therefore bound by its assertions in its July 2008 Amended Motion for Court Approval acknowledging that vestiges of discrimination still existed in the Pitt County School District by requesting this Court to approve future student assignment plans that are designed to eliminated the vestiges of past racial segregation to the extent practicable. See DE #23, at 13 9; see also DE #46 (admitting that racial balance is still necessary as a remedy for vestiges of past discrimination: [g]iven that [the Greenville Parents Association parties] ardently oppose all race-based student assignment measures, one is hard-pressed to imagine how the Court could fashion injunctive relief that would both improve racial balance and satisfy [them]. ) (emphasis added). Defendant is also bound by its statements in the April 23, 2009 Motion and Supporting Memorandum for Entry of Consent Order acknowledging that it was not yet unitary as of 2009 15 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 15 of 24

and still had further work to do to achieve unitary status. See D. E. #69 at 4 ( While the Proposed Consent Order would not dispose of the unitary status issue once and for all, it would acknowledge the parties pledge to work together to assist PCS in achieving unitary status.); D.E #69-2 Ex. A at 4, 13 ( All parties to Everett v. Board believe that unitary status for PCS is a salutary goal and pledge to work together to achieve that goal. ). Defendant is further bound by its statements in 2009 that a party seeking unitary status for the Pitt County School District would bear a heavy burden. See id. ( Even if [the Greenville Parents Association parties] wished to move forward, the student assignment and academic performance data cited by counsel for Plaintiffs in their filing of July 7, 2008, suggest that their burden would be a heavy one. ). Accordingly, because the Defendant is bound by its statements that as of 2009 it still did not operate a unitary system, the pertinent time period for determining whether the Defendant has moved towards unitary status is from 2009 to the present. Due to the consent order and Defendant s judicial admissions, Defendant is estopped from asserting anything to the contrary. Additionally, as discussed below, because Defendant did not comply with this Court s order to move toward unitary status and instead adopted a student assignment plan that exacerbated and increased racial segregation, Defendant cannot be declared unitary. ii. Binding precedent and the law of the case require this Court to determine, first, whether Defendant breached its affirmative obligations and requirement to comply with its court decrees, including the 2009 Consent Order, by adopting the 2011-12 Plan, before this Court resolves Defendant s motion for unitary status. Good faith compliance with a court decree is a necessary predicate to securing a unitary status declaration, in addition to a showing that the district has affirmatively eradicated the vestiges of de jure discrimination to the extent practicable. Freeman v. Pitts, 503 U.S. 467, 491, 499 (1992) (reversing and remanding for district court s failure to consider whether the district 16 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 16 of 24

has an affirmative commitment to comply in good faith with the entirety of a desegregation plan ). A district in breach of its court decrees and in violation of its affirmative duty cannot be granted a declaration of unitary status. See Everett, 678 F.3d at 284 (listing compliance with court orders as a condition precedent to having the orders lifted); Fisher v. Tucson Unified Sch. Dist., 652 F.3d 1131, 1143 (9th Cir. 2011) ( Only once a school district has shown that [it] has attained the requisite degree of compliance may a court craft an orderly means for withdrawing from control. (quoting Freeman, 503 U.S. at 490)). Here, is it undisputed that the desegregation orders in Teel and Edwards remain applicable and that this Court issued an additional Consent Order in 2009 that expressly orders the School Board to work toward attaining unitary status. Everett, 678 F.3d at 290 (quoting the 2009 Consent Order (DE #73)). Plaintiffs 2011 Motion for Injunctive Relief explained how the 2011-12 Plan violated this Court s desegregation orders in Teel and Edwards and the 2009 Consent Order. Everett, 678 F.3d at 287; see also DE # 81. 5 Because a school board is unable to secure a unitary status declaration when it has violated court orders in the case, it follows necessarily that this Court must first decide Plaintiffs 2011 Motion before addressing Defendant s Motion for Unitary Status. If, here, the Defendant cannot prove that the 2011-12 Plan moved the district toward unitary status, its Motion for Unitary Status is moot, because it will be approaching this Court in violation of its orders, and therefore cannot be declared unitary. iii. Defendant cannot escape its burden by effectively requesting a retroactive unitary status declaration. 5 Plaintiffs specifically alleged that Defendant violated its court orders by opening a racially imbalanced, lowachieving, elementary school; increasing racial imbalance in the school system by adopting the 2011-12 Plan; failing to address existing racial imbalances in the school system by limiting the 2011-12 Plan s impact area to only fourteen of the thirty-six schools in Pitt County; and rejecting less discriminatory, practical alternative student assignment plans that complied with the 2009 Consent Order and Policy 10.107. Id. Plaintiffs will provide proofs in support of these contentions at trial. 17 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 17 of 24

Defendant cannot attempt to use its 2012 Motion for Unitary Status to avoid the threshold requirements that it prove compliance with this Court s orders (including the 2009 Consent Decree), its affirmative duties of good faith and elimination of the vestiges of discrimination, and the rebuttable presumption that any current racial disparities are the result of past unconstitutional conduct. Everett, 678. F.3d at 284. The Fourth Circuit was explicit on this issue: [E]ven if we assume that the district court will fully consider the issue of unitary status in December 2012, this does not absolve the School Board from the burden of demonstrating to the district court, as Green v. Cnty Sch. Bd.... and its progeny require, that the 2011-2012 Assignment Plan moves the school district toward unitary status, particularly where this plan allegedly causes immediate and substantial adverse effects on students. Id. at 288. Moreover, a court is unable to issue a retroactive unitary status order. By moving for unitary status after the Fourth Circuit reversed and remanded this Court s 2011 decision and alleging that the Pitt County School District balanced its school system by 2000, Defendant is seeking to avoid its burden to prove that the 2011-12 Plan moved the district toward unitary status, as if the 2009 Consent Decree never existed. This would be, in effect, an impermissible retroactive declaration of unitary status. See Cappachione v. Charlotte-Mecklenburg Bd. of Educ., 57 F. Supp. 2d 228, 285 (W.D.N.C. 1999) ( a unitary status determination is not retroactive, and therefore, the termination of court supervision today cannot relate back to an earlier time. (emphasis added)). Indeed, Defendant has itself expressly acknowledged that a unitary status declaration cannot relate back in time to relieve it of its burden. See D.E. #22 ( Even assuming the Board would be entitled to a unitary status declaration if it sought one, such a declaration would have no bearing on the Board s request for judicial approval of its 2006-07 student assignment plan. A unitary status determination is not retroactive.... ). II. EVIDENTIARY ISSUES 18 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 18 of 24

A. Plaintiffs gradient chart is admissible as a summary under Federal Rule of Evidence 1006. At hearing, Plaintiffs will use two charts that summarize Pitt County student demographics from 1987 to 2012 using data reported by the National Center for Educational Statistics ( NCES ) and the North Carolina Department of Public Instruction ( NC DPI ). 6 These Charts A and B are identical in content and form, except that Chart B includes highlighting as described below. Plaintiffs received the School Years 1987-2006 NCES data from Defendants during pre-trial disclosures and identified to Defendant all other data used in the chart in supplemental disclosures and on June 25, 2013 in Plaintiffs proposed exhibit list. The full NCES and NC DPI datasets summarized in the charts were stipulated to by both Parties as admissible evidence in Stipulation #24 of the Joint Pretrial Order (DE 148). The charts use this data to compare the percentage of Black and White students in the Pitt County Schools from School Years 1987 to 2012 to the total racial makeup of the district s public school enrollment. The charts are organized by school years across the columns and all Pitt County schools down the rows. The racial percentages for each school during each reported year fill the corresponding boxes. Chart A shows only the schools, years, and corresponding data. Chart B includes highlights in a gradient that represent 10, 15, or 20% deviations in the demographics of a particular school from the district s student racial demographics. Highlights in either the percent Black or percent White population of a school represent that that population deviates by 10, 15, or 20% from the district s average Black or White student public school enrollment for that year. 6 Specifically, the Grade, Race, Sex datasets available on the NC DPI website. The data are the same as those used by Plaintiffs Experts Dr. Erica Frankenberg and Dr. Genevieve Siegel-Hawley in their reports on student assignment and unitary status. 19 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 19 of 24

After exchanging proposed stipulations, including the data used here, Plaintiffs asked Defendant to stipulate to Chart A itself, but Defendant declined to do so. Therefore, Plaintiffs request that the Court admit both charts as summary exhibits under Federal Rule of Evidence 1006, which provides that a party may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court so long as the underlying documents are made available to the opposing party. Once admitted, a summary may be considered for its factual truth and considered by the trier of fact as evidence. United States v. Janati, 374 F.3d 263, 273 (4th Cir. 2004) (citing Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 190 (4th Cir.1994)). Here, the chart summarizes over three decades of data on students attending Pitt County schools. Both charts layout and calculations, and Chart B s highlighting, do not affect its admissibility as a summary. The Fourth Circuit has upheld the admission of such summaries, as long as they accurately reflect the underlying evidence. See United States v. Blackwell, 436 F. App x 192, 198-99 (4th Cir. 2011) (upholding admission of summary exhibit that translated phone records into a bubble chart with arrows); Strissel, 920 F.2d 1162, 1163-64 (4th Cir. 1990). 7 B. The Greenville City Board of Education Minutes are inadmissible due to prejudice under Federal Rule of Evidence 403. On June 24, 2013, Defendant, for the first time, disclosed nineteen Greenville City Board of Education Minutes ( Greenville BOE Minutes ) to Plaintiffs as part of Defendant s proposed exhibit list. Plaintiffs notified Defendant of their objections to the Greenville BOE Minutes due 7 If not admitted as substantive evidence under Federal Rule 1006, Plaintiffs will Charts A and B as demonstrative exhibits pursuant to Federal Rule of Evidence 611. The parties have stipulated that demonstratives need not be premarked. See Stipulation No. 29, Joint Pretrial Order. For the reasons set forth above, however, Plaintiffs submit that the charts easily meet the requirements of substantive evidence and should be admitted as such. 20 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 20 of 24

to Defendant s failure to provide the minutes, which were in its sole possession, in its initial or supplemental disclosures pursuant to Federal Rule of Civil Procedure Rule 26(a)(1)(A)(ii) or in its response to Plaintiffs December 14, 2012 Requests for Production of Documents. The Greenville BOE Minutes were responsive to Requests for Production ( RFP ) eight through nine, which requested [a]ny and all documents including... board minutes that Defendant prepared or were prepared on Defendant s behalf that concern or relate to efforts to further desegregation and attain unitary status in each of the Green factors and ancillary factors. Yet, Defendant identified only pre-merger and post-merger Pitt County Schools Board of Education Minutes, but did not identify or provide any Greenville BOE Minutes. Despite failing to disclose these documents, Defendant now seeks to rely on them to assert that it has attained unitary status. The full set of Greenville BOE minutes are comprised of more than 2,100 pages. Plaintiffs received them on July 2, 2013 and made a good faith effort to review as much of this set as possible in order to understand the context of the nineteen minutes identified as exhibits and to ascertain whether to maintain their objection. It is now apparent that a complete review of the minutes unfairly interferes with Plaintiffs trial preparation. Therefore, Plaintiffs object to the Greenville BOE Minutes, as reflected in the July 10, 2013 Joint Pretrial Order, because Defendant s late disclosure has unfairly prejudiced Plaintiffs by interfering with Plaintiffs ability to effectively prepare for trial. 8 III. CONCLUSION 8 Due to Defendant s late disclosure, Plaintiffs have been unable to fully review the Greenville BOE Minutes and therefore reserve the right to make further objections in the future. At this time, based on the review Plaintiffs have been able to complete, Plaintiffs make the following objections, in addition to their nondisclosure objections, to specific Greenville BOE Minutes: Def. Exhibit 73: Foundation, Fed. R. Evid. 602; Hearsay, Fed. R. Evid. 801; Def. Ex. 74: Completeness, Fed. R. Evid. 106; Def. Ex. 75: Completeness, Fed. R. Evid. 106; Def. Ex. 76: Completeness, Fed. R. Evid. 106; Def. Ex. 79: Completeness, Fed. R. Evid. 106; Def. Ex. 80: Completeness, Fed. R. Evid. 106; Def. Ex. 81: Completeness, Fed. R. Evid. 106; Def. Ex. 82: Completeness, Fed. R. Evid. 106; Def. Ex. 83: Completeness, Fed. R. Evid. 106; Def. Ex. 84: Completeness, Fed. R. Evid. 106; Def. Ex. 85: Completeness, Fed. R. Evid. 106; Hearsay, Fed. R. Evid. 801; Def. Ex. 86: Completeness, Fed. R. Evid. 106; Def. Ex. 87: Completeness Fed. R. Evid. 106; Def. Ex. 88: Completeness, Fed. R. Evid. 106. 21 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 21 of 24

Plaintiffs respectfully request that this Court (1) place the burden of proof on Defendant as to both Plaintiffs Motion for an Injunction as to the 2011-2012 Student Assignment Plan and Defendant s Motion for Unitary Status; (2) address first Plaintiffs Motion, because if it is granted, Defendant is not entitled to unitary status; and (3) rule that Defendant is precluded from asserting that it attained a unitary system prior to the entry of the 2009 Consent Order. If the Court reaches Defendant s motion, then it should hold Defendant to its burden to prove that it has complied with all court orders and the constitutional standards that led to those orders in good faith and that it affirmatively acted to remove vestiges of discrimination. Plaintiffs will address these issues in greater detail in their post-trial Findings of Fact and Conclusions of Law. 22 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 22 of 24

Respectfully submitted, this the 15 th day of July, 2013. UNC CENTER FOR CIVIL RIGHTS /s/ Mark Dorosin Mark Dorosin, N.C. Bar # 20935 323 W. Barbee Chapel Road Chapel Hill, North Carolina 27517 dorsoin@email.unc.edu Telephone: (919) 445-0174 Facsimile: (919)843-6748 Attorneys for Plaintiffs DECHERT LLP /s/ Ezra D. Rosenberg Ezra D. Rosenberg 902 Carnegie Center Suite 500 Princeton, New Jersey 08540 Ezra.rosenberg@dechert.com Telephone: (609) 955-3222 Facsimile: (609) 955-3259 Pro Hac Vice Attorney for Plaintiffs LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW /s/ Brenda Shum Brenda Shum Oregon State Bar No. 96114 Educational Opportunities Project Lawyers Committee for Civil Rights Under Law 1401 New York Avenue NW, Suite 400 bshum@lawyerscommittee.org Telephone: (202) 662-8322 Facsimile: (202) 783-0857 Pro Hac Vice Attorney for Plaintiffs CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing PLAINTIFFS MEMORANDUM OF AUTHORITIES ON EVIDENTIARY QUESTIONS AND CONTESTED ISSUES OF LAW was served via electronic filing with the Clerk of the Court 23 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 23 of 24

and counsel listed below by filing the document using the CM/ECF system with the Clerk of the Court. Certified this 15 th day of July, 2013. Kenneth A. Soo Deborah Stagner 209 Fayetteville Street Mall P.O. Box 1151 Raleigh, NC 27602-1151 Attorneys for Defendant _/s/ Mark Dorosin NC State Bar # 20935 3232 W. Barbee Chapel Road Chapel Hill, NC 27517-7513 dorosin@email.unc.edu 919-445-0174 Fax: 919-843-6748 24 Case 6:69-cv-00702-H Document 151 Filed 07/15/13 Page 24 of 24