Cowan v. Bolivar Cnty. Bd. of Educ.

• Decision Date: 13 May 2016
• Docket Number: NO. 2:65-CV-31-DMB,2:65-CV-31-DMB
• Citation: 186 F.Supp.3d 564
• Parties: Diane Cowan, minor, by her mother and next friend, Mrs. Alberta Johnson, et al.; Floyd Cowan, Jr., minor, by his mother and next friend, Mrs. Alberta Johnson, et al.; Lenden Sanders; Mack Sanders; Crystal Williams; Amelia Wesley; Dashanda Frazier; Anginette Terrell Payne; Antonio Lewis; Brenda Lewis; Plaintiffs and United States of America Intervenor-Plaintiff v. Bolivar County Board of Education, et al. Defendants
• Court: U.S. District Court — Northern District of Mississippi

186 F.Supp.3d 564

Diane Cowan, minor, by her mother and next friend, Mrs. Alberta Johnson, et al.; Floyd Cowan, Jr., minor, by his mother and next friend, Mrs. Alberta Johnson, et al.; Lenden Sanders; Mack Sanders; Crystal Williams; Amelia Wesley; Dashanda Frazier; Anginette Terrell Payne; Antonio Lewis; Brenda Lewis; Plaintiffs

and

United States of America Intervenor-Plaintiff

v.Bolivar County Board of Education, et al. Defendants

NO. 2:65-CV-31-DMB

United States District Court, N.D. Mississippi, Delta Division.

Signed May 13, 2016

Ellis Turnage, Ellis Turnage, Attorney, Cleveland, MS, Shakti Belway, Shakti Belway, Attorney, New Orleans, LA, for Plaintiffs.

Jonathan Fischbach, Renee Wohlenhaus, Aziz Ahmad, Joseph Wardenski, Kelly D. Gardner, U.S. Department of Justice, Washington, DC, for Intervenor-Plaintiff.

Gerald Haggart Jacks, Jamie Ferguson Jacks, Jacks Luciano, P.A., Cleveland, MS, Holmes S. Adams, John Simeon Hooks, Lindsey O. Watson, Adams and Reese, Ridgeland, MS, for Defendants.

OPINION AND ORDER

Debra M. Brown, UNITED STATES DISTRICT JUDGE

On May 17, 1954, the United States Supreme Court issued the landmark decision of Brown v. Board of Education , holding that "in the field of public education the doctrine of ‘separate but equal’ has no place." 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (" Brown I "). A year later, on May 31, 1955, the Supreme Court issued a second order directing compliance with Brown I "with all deliberate speed." Brown v. Bd. of Educ. , 349 U.S. 294, 301, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (" Brown II" ). Ten years after Brown II , residents of Bolivar County, Mississippi, filed this now fifty-year-old action seeking the desegregation of their school system. After decades of litigation, this case is currently before the Court for the determination of an appropriate desegregation remedy for the high schools and middle schools in the Cleveland School District ("District") in Bolivar County. Upon consideration of the parties' proposed desegregation plans, the Court concludes that, in order to achieve constitutionally-required desegregation, the District must consolidate its high schools and must consolidate its middle schools.

I Procedural History

A. Filing and First Order

On July 24, 1965, 131 minor children, acting through their parents or guardians, filed this action against the Bolivar County Board of Education and numerous of its members, alleging that the defendants "have pursued and are presently pursuing a policy, custom, practice and usage of operating the public schools of Bolivar County, Mississippi, on a racially segregated basis." Doc. # 37-1 at ¶ 7. In their complaint, Plaintiffs alleged that the action was brought "on their own behalf and on behalf of all other Negro children and parents ... located in Bolivar County, Mississippi, who are similarly situated and affected by the policies, practices, customs and usages complained of herein."¹ Id. at ¶ 5.

Of relevance here, the original complaint alleged:

Bolivar County District No. 4 maintains six white schools: (1) Cleveland High School[,] (2) Margaret Green Junior High School[,] (3) Pearman Elementary School[,] (4) W.J. Parks Elementary School[,] (5) Boyle Elementary School [and] (6) Merigold Elementary School.

Each of these schools is limited to attendance by white pupils only and are staffed by white teachers, white principals, and other white professional personnel. Regardless of location, these schools may be attended by white pupils only. ...

Bolivar County District No. 4 also maintains four Negro schools: (1) East Side High School[,] (2) Nailor Elementary School[,] (3) B.L. Bell Elementary School [and] (4) Hayes Cooper Elementary School.

Each of these schools is limited to attendance by Negro pupils. They are staffed by Negro principals, Negro teachers and other Negro professional personnel. Regardless of location, these schools may be attended by Negro children only.

Doc. # 37-1 at ¶¶ VII(i) & (j).²

On July 22, 1969, Chief Judge William C. Keady issued an order directing that "School District Number Four of Bolivar County ... [is] permanently enjoined from discriminating on the basis of race or color in the operation of said School District."³ Doc. # 33 at 1. The order further directed the defendants to "take affirmative action to disestablish all school segregation and to eliminate the effects of the dual school system." Id.

Judge Keady's order adopted a district-proposed plan dividing the school district into two zones for students attending grades seven through thirteen, and five zones for students attending grades one through six. Id. at 1. Under the terms of the plan, each zone was assigned a corresponding school: Zone I⁴ was assigned Cleveland High School; Zone II⁵ was assigned East Side High School; Zone III was assigned Hayes Cooper Elementary; Zone IV was assigned Nailor Elementary School; Zone V was assigned B.L. Elementary School; Zone VI was assigned Parks Elementary School; and Zone VII was assigned Pearman Elementary School.⁶ Id. at 2–3. The order directed that "Boyle Elementary School shall be closed." Id. at 3.

Regarding the new system, Judge Keady ordered:

For the school year 1969-70, each student attending elementary grades 1 through 6 shall be assigned to attend the school in the zone in which he resides, and students attending grades 7 through 12 shall be assigned on the basis of their freedom of choice previously exercised ....

For the school year 1970-71 and thereafter, each student in all grades 1 through 12 shall be assigned to attend the school in the zone in which he resides, provided, however, that any student entering the 12th grade for the school year 1970-71, irrespective of the place of his residence, shall have the right, if he so desires, to attend that high school which he attended for the school year 1969-70 ....

Within the full extent of the district's ability so to do, including the availability of qualified personnel, not less than one of every six classroom teachers of a different race shall be employed and assigned to each of the schools or attendance centers for the 1969-70 school year, and for the 1970-71 school year and thereafter there shall be full faculty and staff desegregation, to such an extent that the faculty at each school is not identifiable to the race of the majority of the students at any such school.

Doc. # 33 at 3–4 (emphasis in original).

Additionally, Judge Keady directed that "[a]ll children ... shall be treated substantially alike" with regard to transportation; "[n]o students shall be segregated or discriminated against ... in any grade, service, facility, or program ... that may be conducted or sponsored by the school in which the student is enrolled;" and "[t]he defendants, to the extent consistent with the proper operation of the school system as whole, shall locate any new school and substantially expand any existing schools with the objective of eradicating the vestiges of the dual school system." Id. at 4–5. To enforce all of his directives, Judge Keady ordered the defendants to submit annual reports on the status of their desegregation efforts and quarterly reports detailing the transfers of students. Id. at 6–7.

Six months later, on January 22, 1970 (after receiving two quarterly reports submitted by the District), Judge Keady issued an order stating that "[e]ffective for the second semester of the current school year 1969–70, students entering the system for the first time shall be assigned to an attendance center on the basis of proximity of residence." January 22, 1970, Order at 4.⁷

B. United States Intervention and 1989 Consent Order

On January 23, 1985, following the District's submission of over fifteen years of annual and quarterly status reports, the United States filed a motion to intervene as a plaintiff. Doc. # 1 at 16. On March 21, 1985, the Court granted the United States' request to intervene. Id. The same day, the United States filed a "Complaint-in-Intervention" ("Intervenor Complaint"), alleging:

Defendants have actively pursued the following policies and practices, which have frustrated the implementation of the Court's [July 22, 1969] Order in Cowan and impeded the elimination of the vestiges of the dual system of public education in School District Four.

a. Defendants have instituted informally a dual residence policy and practice allowing students to attend schools in zones outside of their residence if the student establishes a second residence during the week.

b. The dual residency policy has adversely affected the desegregation of School District Four and has served to maintain segregated schools.

c. Defendants have made faculty assignments on the basis of race so that faculty are assigned to schools identifiable as ‘white’ or ‘black’ based upon student enrollment ....

d. Defendants have made professional staff assignments on the basis of race so that black persons serve as administrators for those schools with predominantly black student enrollments while white persons serve as administrators of schools with majority white student enrollments.

e. Defendants in order to maintain racial segregation have chosen to construct three new schools in areas such that black students continue to attend schools with 100% black enrollments.

f. Defendants have discriminated against students attending Eastside High School, Nailor, and Merigold elementary schools with respect to the condition and maintenance of facilities.

Intervenor Complaint at ¶ 13.⁸ No answer to the United States' intervenor complaint appears on the docket.⁹

On November 8, 1985, Judge Keady transferred the case to United States District Judge Glen H. Davidson. Doc. # 101 at 2. On September 2, 1986, Judge Davidson entered an order transferring and reassigning the case to United States District Judge L.T. Senter. Id. The case was formally transferred to Judge Senter the next day. Doc. # 1 at 17.

From September 1986 until September 1989, the parties engaged in a protracted period of...