Jeffrey Eisenberg, on Behalf of Jacob Eisenberg, and Elinor Merberg, on Behalf of Jacob Eisenberg 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, United States of America, Amicus Curiae

Citation: 197 F.3d 123Docket: 98-2503

Court: Court of Appeals for the Fourth Circuit; November 18, 1999; Federal Appellate Court

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The case involves Jacob Eisenberg's appeal against the Montgomery County Board of Education regarding the denial of his request to transfer to a math and science magnet program at Rosemary Hills Elementary School, based on race-related diversity concerns. The board had denied his application, citing an 'impact on diversity' due to his identification as 'White, not of Hispanic origin.' Jacob had initially applied for the transfer for the 1998-99 school year but was directed to remain at Glen Haven Elementary, his assigned school.

The U.S. Court of Appeals for the Fourth Circuit reversed the district court's denial of Jacob's motion for a preliminary injunction and remanded the case for further action. The court's opinion, authored by Judge Widener and joined by Judges Niemeyer and Traxler, concluded that the board's denial of the transfer based on race was not permissible. Montgomery County has a history of voluntarily dismantling its previously segregated school system and employs a magnet school policy aimed at promoting diversity through voluntary student transfers. The board evaluates transfer requests based on several factors, including school stability, enrollment capacity, diversity profile, and the reasons for the request, with a focus on ensuring equitable access to educational opportunities.

Utilization factors for each school are established before transfer requests are processed and are detailed in the Transfer Booklet. Transfers may be denied if a school is overutilized or underutilized. Enrollment levels are also considered to maintain preferred enrollment ranges, followed by an assessment of the diversity of the student body. Transfers that adversely affect diversity are typically denied. Students are categorized by racial/ethnic group, and comparisons are made between each group’s countywide percentage and the percentages at individual schools over the past three years, leading to the assignment of diversity categories.

Categories 1 and 2 reflect racial/ethnic groups whose percentages exceed county averages, with Category 1 indicating an increasing trend and typically denying transfers for students from these groups. Category 2 allows some transfers for populations that exceed the county average but are declining. Categories 3 and 4 pertain to groups below county averages, with Category 3 indicating a declining trend and Category 4 showing an increase. For instance, if a school’s white enrollment is significantly below the county average and has declined, transfers out may be restricted to prevent racial isolation.

Jacob's transfer request from Glen Haven to Rosemary Hills in March 1998 was based on perceived academic benefits and was initially approved by his kindergarten team. However, as a white student from a school categorized as 3 (with 24.1% white students compared to the county's 53.4%), his transfer was denied on May 15, 1998, due to concerns about diversity impact. Jacob did not present a unique hardship to warrant an exemption, and subsequent appeals to the Superintendent and Board of Education were also denied.

Jacob's parents sought legal remedies under 42 U.S.C. § 1983, the Equal Protection Clause, and 42 U.S.C. § 2000(d) in the district court, but their request for a preliminary injunction was denied due to insufficient evidence of likely success. The district court determined that Montgomery County's goals of maintaining student body diversity and preventing racially segregated enrollment justified its race-based transfer policy under strict scrutiny. Upon appeal, it was noted that the policy essentially functions as racial balancing, which results in denied transfer requests based solely on race.

The district court failed to acknowledge the presumption against race-based classifications, which are considered presumptively invalid unless justified by extraordinary circumstances. This principle, highlighted in prior case law, asserts that racial classifications cannot be sustained without compelling justification. The court found that Montgomery County's transfer policy, which does not distinguish treatment between races but denies transfers based on race as the sole criterion, did not overcome this presumption. The policy's reliance on racial classifications was deemed incompatible with strict scrutiny requirements, indicating a violation of Jacob's constitutional rights, as the policy did not demonstrate a compelling interest or a narrowly tailored approach to achieve its stated goals.

The district court determined that the Eisenbergs lacked a strong likelihood of success on the merits based on a strict scrutiny review of Montgomery County's transfer policy. The court identified two compelling interests: preventing segregative enrollment due to racial isolation and promoting a diverse student body. However, upon further analysis, it concluded that Montgomery County's transfer policy fails constitutional standards, as it is not a remedial race-conscious policy, given that no court has mandated desegregation for the county, which voluntarily acted to dismantle segregation after the Supreme Court's ruling in Brown v. Board of Education. The policy is aligned with the Quality Integrated Education goals set in 1975, aimed at avoiding racial isolation and promoting diversity, but does not address past constitutional violations since Montgomery County Public Schools have been deemed unitary.

The court questioned the existence of a compelling governmental interest in diversity, suggesting that Montgomery County's stated interests are essentially the same. Although the issue of whether diversity constitutes a compelling governmental interest remains unresolved, the court assumed it could be considered compelling for the sake of argument. It compared the Montgomery County transfer policy to the Arlington County admissions policy in Tuttle, noting both aimed to promote diversity without remedying past discrimination. Ultimately, the court found that Montgomery County's use of racial classifications in its transfer decisions is not narrowly tailored to achieve diversity but rather amounts to mere racial balancing. The policy involves assessing racial demographics across the county and schools to maintain racial percentages, which the court characterized as pure racial balancing.

Non-remedial racial balancing in school transfer policies is deemed unconstitutional, as established in Tuttle. Montgomery County's transfer policy aimed to maintain racial balance by not allowing transfers that would adversely affect racial demographics in schools, thereby engaging in racial balancing despite not employing strict quotas. The Court's rulings in Pasadena Bd. of Educ. v. Spangler and Freeman v. Pitts emphasize that requiring adjustments to counteract racial makeup changes exceeds remedial authority. Racial imbalances arising from student transfers for educational improvement, such as those of students like Jacob to magnet schools, are deemed a result of private choices and lack constitutional implications. 

The growth in the DeKalb area, following its declaration as a unitary school district, led to racial disparities but did not invalidate the system. Montgomery County's magnet schools draw diverse students, potentially creating imbalances elsewhere, yet this does not justify using race to determine transfer eligibility. The county's annual reviews and adjustments of school diversity profiles do not narrow the policy; instead, they reflect an attempt to regulate transfer opportunities to match racial demographics. Furthermore, while personal hardship can influence transfer requests, race alone led to Jacob’s denial. The policy's structure limits transfer eligibility based on race, as seen when Jacob's request was denied to prevent a decrease in the white student population at Rosemary Hills, despite its stability and appropriateness for transfers.

Jacob's transfer request from Glen Haven to Rosemary Hills was denied based on his race, a violation of constitutional principles regarding racial discrimination. If he were African-American, Asian, or Hispanic, the transfer would have been approved without causing racial imbalance at Glen Haven. The denial of transfers to minority students based on race is equally unconstitutional. The case references a hypothetical situation of an African-American and Hispanic student being denied transfers for the same reason, reinforcing that Jacob's denial was invalid. The Montgomery County transfer policy engages in unconstitutional racial balancing, which has been deemed invalid in prior cases. Jacob's request will be granted via a preliminary injunction, requiring his admission to the magnet program without race consideration. The district court is directed to reconsider Jacob's application as of the original request date, emphasizing that the denial was based on an unconstitutional policy and that the record supports granting an injunction without further hearings. The court clarifies that it does not address the overall transfer policy beyond prohibiting racial considerations in transfer decisions and does not determine if diversity is a compelling governmental interest. Other aspects of the transfer policy, such as stability and personal hardship, are not race-based and remain undisturbed. The decision is reversed and remanded with specific instructions.

Dr. Paul L. Vance, the Superintendent, indicated in a letter dated August 6, 1998, that white students are restricted from transferring out of Glen Haven Elementary School unless they face unique hardship circumstances. There has been no judicial finding of constitutional violations in Montgomery County's educational system. An investigation by the Office of Civil Rights in 1981 addressed a complaint alleging that Montgomery County was "resegregating" Rosemary Hills Primary School by improperly approving student transfers, which led to the adoption of the current transfer policy. The connection between the 1981 investigation and the present case concerning the Rosemary Hills magnet school program is deemed coincidental and irrelevant.

Magnet programs, like that at Rosemary Hills, offer specialized curricula, and admission is not merit-based; instead, it operates on a lottery system if transfer requests exceed available seats. Since Jacob was not permitted to transfer out of Glen Haven due to racial restrictions, he was ineligible for the lottery.

Montgomery County's transfer documentation uses terms such as "county-wide average," "average county-wide range," and "one-and-one-half standard deviations" interchangeably without clear distinction. Definitions provided clarify that an average is the quotient of a sum divided by the number of figures, a range is the difference between the highest and lowest values, and a standard deviation reflects typical variation from the mean. The opinion assumes these terms refer to the actual racial/ethnic percentages within the student populations of Montgomery County Public Schools.

The term "stability" is defined in relation to whether the assigned and requested schools are experiencing boundary changes, consolidations, renovations, or other changes that affect student enrollment stability. Schools are marked with an "O," "U," or left blank to indicate optimal utilization.

The preferred enrollment range for elementary schools is defined as 2 to 4 classes per grade. Schools that do not meet this range are generally not allowed to transfer students out. If a school’s racial/ethnic composition aligns with countywide percentages and is expected to remain stable, that group is not assigned a diversity category. In the case of Jacob, his assigned school, Glen Haven, faced overutilization, while Rosemary Hills had a different demographic profile. Only five students were allowed to transfer out of Glen Haven during the 1998-99 school year on personal hardship grounds, with some transfers permitted due to sibling attendance at the requested school.

The district court evaluated Jacob's request for injunctive relief based on the Fourth Circuit's standards, weighing the irreparable harm to Jacob against potential harm to Montgomery County. The court found that the balance of hardships favored Montgomery County, which led to the denial of Jacob's motion for a preliminary injunction. The court applied strict scrutiny, determining that policies must serve a compelling governmental interest and be narrowly tailored. It noted that while the transfer policy applies uniformly across racial/ethnic groups, disparities could arise at the school level, potentially denying access based on racial categorization. The court acknowledged that a violation of Jacob's constitutional rights could constitute irreparable harm, referencing relevant case law.

The district court determined that any irreparable harm was minimal and favored Montgomery County in balancing hardships. Montgomery County argued that the Quality Integrated Education policy was a voluntary initiative to promote integrated schools, adopted over 20 years after the Brown v. Board of Education decision, with significant time having passed since then. The court noted a prior complaint from the U.S. Department of Education concerning the county's transfer policy disrupting "racial balance" in schools around 1981. Each interest was evaluated individually, with the court finding them compelling enough to support the policy in question. 

The First Circuit acknowledged the potential for diversity to be a compelling interest without definitively ruling on it, while other circuits, including the Third and D.C. Circuits, have rejected diversity or affirmative action as sufficient justifications for race-based decisions in various contexts. The issue remains unsettled across different jurisdictions, with some courts emphasizing that government interests must be compelling to justify racial classifications. 

The district court noted that the transfer policy allowed for exemptions based on personal hardship and family unity, suggesting flexibility in its application, but emphasized that racial denial of transfers remains wrong. Ultimately, while the court viewed diversity as a compelling interest, it recognized that the absence of rigid quotas indicated its decision might differ if such quotas existed.

A distinct personal hardship is the only condition that can exempt a student from having their transfer request evaluated based on race, raising the question of whether diversity constitutes a compelling governmental interest. However, this question remains unaddressed as it is not essential for the current decision. Montgomery County does not assign students to schools based on race; assignments are made based on residence. The county seeks to maintain racial balance in schools by regulating transfers. Jacob's transfer request to Rosemary Hills is an example of this process. While Montgomery County is not obligated to approve transfer requests, it cannot deny them solely to achieve a racial composition that reflects the county's overall demographics. The personal hardship exemption includes reasons such as keeping siblings together in the same school and alleviating family burdens.