Eisenberg v. Montgomery County Puvlic Schools

• Decision Date: 10 June 1999
• Docket Number: CA-98-2797-AW,No. 98-2503,98-2503
• Citation: 197 F.3d 123
• Parties: (4th Cir. 1999) JEFFREY EISENBERG, on behalf of Jacob Eisenberg, Plaintiff-Appellant, and ELINOR MERBERG, on behalf of Jacob Eisenberg, Plaintiff, v. MONTGOMERY COUNTY PUBLIC SCHOOLS; PAUL VANCE, Dr., Superintendent, in his official and personal capacity; MONTGOMERY COUNTY BOARD OF EDUCATION, Members, in their official and personal capacity, Defendants-Appellees. UNITED STATES OF AMERICA, Amicus Curiae. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 123

197 F.3d 123 (4th Cir. 1999)

JEFFREY EISENBERG, on behalf of Jacob Eisenberg, Plaintiff-Appellant and ELINOR MERBERG, on behalf of Jacob Eisenberg, Plaintiff, v. MONTGOMERY COUNTY PUBLIC SCHOOLS; PAUL VANCE, Dr., Superintendent, in his official and personal capacity; MONTGOMERY COUNTY BOARD OF EDUCATION, Members, in their official and personal capacity, Defendants-Appellees.

UNITED STATES OF AMERICA, Amicus Curiae.

No. 98-2503 (CA-98-2797-AW).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: June 10, 1999.

Decided: October 6, 1999.

Filed: November 19, 1999.

Appeal from the United States District Court for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

COUNSEL ARGUED: Jeffrey Eisenberg, Silver Spring, Maryland, for Appellant. Patricia Ann Brannan, HOGAN & HARTSON, L.L.P., Washington, D.C., for Appellees. Rebecca K. Troth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae. ON BRIEF: Maree F. Sneed, Audrey J. Anderson, HOGAN & HARTSON, L.L.P., Washington, D.C.; Judith S. Bresler, REESE & CARNEY, L.L.P., Columbia, Maryland, for Appellees. Bill Lann Lee, Acting Assistant Attorney General, Mark L. Gross, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae.

Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.

Reversed and remanded with instructions by published opinion. Judge Widener wrote the opinion, in which Judge Niemeyer and Judge Traxler joined.

OPINION

WIDENER, Circuit Judge:

The issue in this case is whether the Montgomery County Board of Education may deny a student's request to transfer to a magnet school because of his race. We hold that it may not.

Jacob Eisenberg appeals the district court's denial of his motion for a preliminary injunction to compel his admittance to the math and science magnet program at Rosemary Hills Elementary School. Jacob originally applied for a transfer to Rosemary Hills Elementary School for the 1998-99 school year, his first grade year, and was denied his request by Montgomery County on May 15, 1998 due to the "impact on diversity." Jacob is currently preparing to enter the second grade at Glen Haven Elementary, his assigned school, based on his residence. On his transfer request application, Jacob identified his racial/ethnic group as "White, not of Hispanic origin," and accordingly, under Montgomery County's transfer policy, particularly its "diversity profile,"¹ he was not allowed to transfer out of Glen Haven Elementary School. We reverse the district court's order denying Jacob's motion for a preliminary injunction and remand this case for action consistent with this opinion.

I.

Montgomery County educates more than 125,000 elementary and secondary students enrolled at over 183 schools spread throughout 500 square miles. The County has never been subject to a court order for desegregation,² rather, Montgomery County by its voluntary efforts dismantled the former segregated school system. One aspect of its efforts included the implementation of magnet school programs,³ which would attract and retain diverse student enrollment on a voluntary basis to schools outside the area in which the student lives. A magnet program emphasizing math and science is located at Rosemary Hills Elementary School. Montgomery County permits voluntary transfers from an assigned school to another school under certain circumstances as outlined in its School Transfer Information Booklet.⁴

Montgomery County considers, in stages, several factors in the consideration of a voluntary transfer request: first, school stability;⁵ second, utilization/enrollment; third, diversity profile; and last, the reason for the request. All of the transfer applications are considered concurrently, and if the assigned school and the requested school are ruled stable, the transfer request is reviewed for utilization/enrollment. An underutilized school is operating below 80% capacity and an overutilized school is operating above 100% capacity.

The utilization factor for each school is determined prior to the receipt of transfer requests and is indicated, for each school in the system, in the Transfer Booklet. Overutilization or underutilization may affect a transfer request, in fact, Montgomery County states that these transfer request(s) usually will be denied.⁶ Along with utilization, enrollment is considered to ensure that schools remain within the preferred range of enrollment.⁷ If these factors are not a concern, Montgomery County looks to the diversity of the student body of the assigned and the requested schools.

A. Diversity Profile

According to the Transfer Booklet, "[t]ransfers that negatively affect diversity are usually denied." Students are identified according to their racial/ethnic group: African American, Asian, Hispanic, and White. Montgomery County compares the countywide percentage for each racial/ethnic group to the percentage of each group attending a particular school, and also determines whether the percentage of each racial/ethnic group in that school has either increased or decreased over the past three years. Based on that information, Montgomery County then assigns to each racial/ethnic group within each school a diversity category.⁸

Categories 1 and 2 are reserved for the racial/ethnic group populations within a school, the percentages of which are higher than the countywide percentage for that particular group. Category 1 refers to racial groups, the percentage of which is higher than the countywide percentage for that group and has increased over time rather than moved closer to the countywide percentage. Transfers usually will not be permitted by a student into a school with a designated category 1 for his racial/ethnic group because his racial/ethnic group percentage at that requested transfer school is already higher than the countywide percentage. Category 2 refers to racial/ethnic populations which, although higher than the countywide percentage, have tended to decline over time. Some transfers are permitted into this group. Categories 3 and 4 indicate a racial/ethnic percentage within a school that is below the countywide percentage. Category 3 is reserved for those racial/ethnic groups, the percentage of which has tended to decline over time; while category 4 includes those populations the percentage of which has tended to increase. For example, "if a particular school has had a declining white enrollment over the preceding three year period and is substantially below the average [c]ounty-wide enrollment of white students [a Category 3], the District may restrict transfers of white students out of that school because they would contribute to that school becoming racially isolated."⁹ County Br. at 7. As is the County's, the diversity profile for each school is reevaluated and adjusted annually.

B. Jacob's Transfer Application

In March of 1998, Jacob's parents submitted a request that he be transferred from Glen Haven to Rosemary Hills to begin the first grade, reasoning that Jacob's "personal and academic potential" would benefit from the school's math and science emphasis. His transfer request was approved by his kindergarten teaching team. Jacob, as a white student, was part of a category 3 group at Glen Haven Elementary School because at the time of Jacob's transfer request, Glen Haven's student body was 24.1% white compared to the Montgomery County-wide percentage of 53.4%, and the white enrollment at Glen Haven dropped from 38.9% in 1994-95 to 24.1% in 1997-98. See Eisenberg v. Montgomery County Public Sch., 19 F. Supp. 2d 449, 451 (D. Md. 1998). On May 15, 1998, his transfer was denied. The sole reason given by Montgomery County for the denial was "impact on diversity," that is to say because Jacob was white. Jacob did not demonstrate a "unique personal hardship"¹⁰ to obtain an exemption from the denial based on the negative impact on diversity. The Eisenbergs submitted their appeal first to the Superintendent, and then to the Board of Education, which denied the transfer request on August 26, 1998.

Jacob's parents sought declaratory and injunctive relief as well as damages on behalf of Jacob in the district court under 42 U.S.C. § 1983, the Equal Protection Clause, and under 42 U.S.C. § 2000(d). The district court denied the Eisenbergs' motion for a preliminary injunction on September 9, 1998 on the basis that the Eisenbergs made an insufficient showing of likelihood of success on the merits.¹¹

The district court concluded that Montgomery County's asserted interests in both the diversity of its student body and avoidance of potential segregative enrollment patterns were each sufficiently compelling governmental interests to justify the transfer policy's race based classifications under a "strict scrutiny" review applied in Equal Protection cases.¹² See Eisenberg, 19 F. Supp. 2d at 453-54. The district court further concluded that the transfer policy had "been designed as narrowly as possible while still furthering [Montgomery County's] stated interests." Eisenberg, 19 F. Supp. 2d at 455.

Following the denial of the preliminary injunction, the Eisenbergs appealed to this court and Jacob entered the first grade at his assigned school, Glen Haven. We review the denial of the preliminary injunction de novo since the district court based its decision solely on a premise and interpretation of the applicable rule of law and the facts are established. See Williams v. United States Merit Sys. Protection Bd., 15 F.3d 46, 48 (4th Cir. 1994).

II.

"Race is the perpetual American dilemma." J. H. Wilkinson, III, From Brown to Bakke 8 (1979). Once again, we find ourselves addressing a most difficult issue in the familiar setting of our public schools. The facts also appear all too familiar-a child has been denied access to a state funded educational opportunity because of the color of his skin.¹³ In this case there is no denial that racial classifications result...