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If you thought the winner of a civil rights lawsuit was entitled to recover his attorney’s fees from the losing defendant, think again. On Sept. 21, in Belk v. Charlotte-Mecklenburg Board of Education, the 4th U.S. Circuit Court of Appeals denied the prevailing parties any attorney’s fees — not one single cent — in a school desegregation suit that took more than three years to litigate. If this judgment is not reconsidered by the 4th Circuit or reversed by the Supreme Court, parents will have lost a significant tool for vindicating the constitutional rights of their children, and future desegregation cases will rest in the hands of well-funded groups such as the NAACP or the ACLU. The case in question began in 1998 when 8-year-old Christina Capacchione applied to a magnet school in Charlotte, N.C. The school district denied her admission even though she was as qualified as most of the other kids who were admitted. Christina’s problem was simply that she is the wrong race. The school board argued that children of particular racial groups could be denied admission to certain schools in order to maintain racial proportionality. Christina’s family sued the school board, and soon other families joined their suit. In order to win their case over the admissions policy, the families were forced to challenge a three-decades-old order mandating forced busing as well, which, the school board claimed, allowed it to exclude children from magnet schools and other programs on the basis of race. The busing policy was the result of a 1971 case that began a well-intentioned but unsuccessful social experiment. In its historic decision in Swann v. Charlotte-Mecklenburg Board of Education, the Supreme Court sanctioned busing for the purpose of achieving school desegregation. But what began as an effort to remedy the grave wrongs of state-mandated segregation ultimately developed a strange career of its own. Charlotte was still insisting on race-based student assignments 30 years later. The school district argued, disingenuously and ironically, that it needed to remain under court supervision because it was still not providing equal opportunity to black children even after three decades of effort by a multiracial school board. Significant evidence presented at trial convinced the district judge that this assertion was being made to shield the school board’s true goal — to use the desegregation order to pursue so-called racial diversity. ULTIMATELY UNCONVINCING After an exhaustive six-week trial in which dozens of witnesses testified, the judge determined that the school district was “unitary” — that is, no longer dual and segregated. This was good news for everyone except, apparently, the school board. The judge ruled that the school district would no longer be permitted to bus children to balance the races. Admission quotas such as the one used to keep Christina out of the magnet school were scrapped. And, as is customary in civil rights cases, legal fees were awarded to the families who brought the action so that they could pay their attorneys, who — forget about fees — had racked up out-of-pocket costs of more than $200,000. The en banc 4th Circuit agreed with the lower court that the school district was unitary and that race-based admissions had to stop. But in a convoluted and ultimately unconvincing argument, a sharply divided court denied the winning parties their attorney’s fees. The court declared that even though the lawsuit resulted in the abolition of a racially discriminatory school policy and a worn-out busing order, that success did not entitle the challengers to attorney’s fees. The one-vote majority that voted to deny fees concluded that, since the school board was obliged by law to try to become unitary, it could not be deemed a losing party when it was found to be unitary. Kevin Parsons, a Charlotte, N.C.-based lawyer with Atlanta’s Parks, Chesin, Walbert & Miller who represented the parents in this case, sees the issue differently. He points out that his clients, in obtaining a declaratory judgment that the school district was unitary, abolished a 30-year quota system “over the school board’s vigorous objection.” Necessarily, then, the student assignment plan was “radically altered” by the declaratory judgment of unitary status, says Parsons. The attorney’s fee statute itself requires only that the civil rights party “prevail” in order to be entitled to attorney’s fees, and no Supreme Court or 4th Circuit case has required anything more than an enforceable judgment that alters the defendant’s behavior. Yet the 4th Circuit effectively deemed the school board to have “prevailed” despite losing every unitary status argument that it made (and, incidentally, spending more than $4 million in its effort to remain under court-imposed busing). In other words, the school board tried to prove that it maintained a racially segregated school system, failed to do so, and yet was deemed a prevailing party. PLAYING FAVORITES If this decision is allowed to stand, a handful of working families in Charlotte will be on the hook for hundreds of thousands of dollars. Moreover, attorney’s fees will prove an almost insurmountable hurdle for anyone in the future who hopes to end a school district’s illegal use of race-based programs. Hundreds of school districts throughout the country remain under desegregation orders designed decades ago and never revisited. Classifying and sorting children by race has become a permanent educational mission. Equally important, by denying fees to the parties responsible for ending Charlotte’s discrimination, the 4th Circuit has ignored the meaning of what Congress wrote when it passed the attorney’s fee statute. When a school board continues to sort children on the basis of race after a school system has been desegregated, it is violating the constitutional rights of those children. After all, the lesson of Brown v. Board of Education (1954) was that children should not be assigned to a school because of their skin color. And so, if a child and her parents sue a school board over such discrimination, and they prevail, then they ought to be able to collect attorney’s fees just as Congress intended. It is true that, if this rule is followed, school boards will often find themselves in a tough position. Some parents and children will think that their rights are being violated if a school system continues to bus or to choose magnet school entrants by race; others will assert that their rights would be violated if the school system stopped busing or allowed magnet schools to become “racially unbalanced.” Whether a school district has in fact achieved unitary status will not always be obvious, either legally or factually. Is it really fair to say that the school district will have to pay either side’s fees in this situation? The answer is yes. The school board has to pay someone else’s fees only if it loses — that is, only if it has failed one way or the other to do what the Constitution requires. That creates an incentive for the school board to do the right thing. The trouble is that now, with the 4th Circuit’s decision, the school board has to pay attorney’s fees only if it stops busing and other race-based assignments, and never if it continues busing or race-based assignments long after it clearly should stop. This will inevitably skew the school board’s decision: It will always err on the side of continuing to sort by race. In the Charlotte case, of course, the district judge and the 4th Circuit found that the school board was not following the law. The board didn’t really believe that continued race-based assignments were needed to achieve desegregation. The reality is that the board favored racial caps out of political expediency. Such racial favoritism is, unfortunately, quite common in education today. With more than 400 school districts under judicial desegregation supervision, this case has national ramifications. Not only are children being sent to certain schools and barred from others because of their skin color, but many school administrators have argued that academic innovation has been retarded because of the difficulty and expense of seeking approval from the courts for any policy changes. This is an issue that crosses party lines, with Democrats such as Sen. Mary Landrieu of Louisiana among those demanding an end to this endless and counterproductive judicial supervision and racial balancing. If the courts don’t come to this conclusion themselves, then Congress must step in. A sentence could be added to 42 U.S.C. �1988(b), the relevant legal fees statute, which would read: “A prevailing party includes any plaintiff who successfully challenges a school district’s assignment of children on the basis of race.” It would be a simple, logical, and now necessary extension of our civil rights laws. Edward Blum is director of legal affairs at the American Civil Rights Institute, and Roger Clegg is general counsel at the Center for Equal Opportunity.

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