Cowan v. Cleveland Sch. Dist.

• Decision Date: 01 April 2014
• Docket Number: No. 13–60464.,13–60464.
• Citation: 748 F.3d 233
• Parties: Diane COWAN, etc., et al, Plaintiffs, United States of America, Intervenor Plaintiff–Appellant, v. CLEVELAND SCHOOL DISTRICT, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

748 F.3d 233

Diane COWAN, etc., et al, Plaintiffs,United States of America, Intervenor Plaintiff–Appellant,

v.CLEVELAND SCHOOL DISTRICT, Defendant–Appellee.

No. 13–60464.

United States Court of Appeals,Fifth Circuit.

April 1, 2014.

Erin E. Aslan, Dennis J. Dimsey, Esq., Deputy Chief, Joseph J. Wardenski, Renee Wohlenhaus, U.S. Department of Justice, Washington, DC, for Intervenor Plaintiff–Appellant.

Holmes S. Adams, John Simeon Hooks, Esq., Lindsey Oswalt Watson, Esq., Adams & Reese, L.L.P., Ridgeland, MS, Jamie Ferguson Jacks, Esq., Gerald Haggart Jacks, Esq., Jacks, Adams & Norquist, P.A., Cleveland, MS, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before KING, SOUTHWICK, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

In this nearly fifty-year-old desegregation case, the United States appeals the district court's order implementing a freedom of choice plan intended to desegregate the formerly de jure African–American middle school and high school in the Cleveland School District (“the District”). We reverse and remand for further consideration of the desegregation remedy.

I. Factual and Procedural Background

The Cleveland School District encompasses the southeast area of Bolivar County in the Mississippi Delta, including the city of Cleveland, the towns of Boyle, Renova, and Merigold, and outlying areas. Most of the District's schools are located in Cleveland, a city of approximately 12,000 people. The District is one of many school districts in Mississippi that previously practiced race-based de jure segregation in education. Under that system, African–American students were required to attend schools on the east side of the railroad tracks that run north to south through Cleveland, while white students attended schools on the west side of town. The original plaintiffs in this case sued in 1965 to enjoin the District from maintaining segregated schools, and the district court ordered the District to submit a desegregation plan to dismantle the dual school system and remedy the continuing effects of segregation. The United States intervened in 1985. Over the ensuing decades, the district court has supervised the desegregation efforts in the District through a series of desegregation orders.¹ The present appeal concerns D.M. Smith Middle School and East Side High School, the formerly de jure African–American junior high and high school in the District, which are located near each other on the east side of town.² The formerly de jure white junior high and high school, Margaret Green Junior High and Cleveland High School, are located adjacent to each other on the west side of town.

The United States filed a motion in May 2011, arguing that the District was not in compliance with the extant desegregation orders and requesting further relief. The desegregation orders contain a number of components, but the United States challenged only the District's non-compliance with the student assignment and faculty assignment components of the desegregation orders. In relevant part, with regard to junior high and high school student assignment, the previous desegregation orders created east and west attendance zones, bounded by the railroad tracks in the center of town: all students living west of the tracks attended Margaret Green Junior High and Cleveland High School, while all students living east of the tracks attended D.M. Smith Middle School and East Side High School. The orders also included a majority-to-minority transfer policy requiring the District to encourage and permit students in the racial majority at one school to transfer if they would be in the racial minority at the other school. The faculty assignment component of the desegregation orders provided that the faculty and professional staff at each school should reflect the districtwide ratio of minority and nonminority faculty and professional staff to the extent feasible.

In a thorough, well-reasoned March 28, 2012 memorandum opinion, the district court analyzed whether the District was in compliance with the student assignment and faculty assignment components of the desegregation orders. Cowan ex rel. Johnson v. Bolivar Cnty. Bd. of Educ. ( Cowan I ), 914 F.Supp.2d 801 (N.D.Miss.2012). It determined that the District had achieved desegregation in many of its schools, particularly within the District's six elementary schools. It noted the District's success in attracting white students to its formerly de jure African–American elementary schools through magnet programs and magnet schools. It also found that the District's formerly de jure white junior high and high school, Margaret Green Junior High School and Cleveland High School, were desegregated. However, the district court found that a new plan was needed to eliminate segregation at D.M. Smith Middle School and East Side High School, which have never been meaningfully desegregated but have always been and continue to be racially identifiable, almost exclusively black schools. Although white enrollment in the District has held steady around 29% in recent years, the student population at D.M. Smith and East Side High is now and has always been between 98% and 100% black.

The District submitted its proposed desegregation plan for the 2012–2013 academic year in May 2012. The District proposed to create new magnet programs and revitalize existing magnet programs at D.M. Smith and East Side High. The proposed plans consisted of offering specialized or advanced classes only at D.M. Smith Middle School and East Side High School, and recommitting to the International Baccalaureate programs at both schools in order to attract students enrolled at Margaret Green Junior High School and Cleveland High School, and to attract students graduating from the successful magnet programs at the elementary schools. Parts of the District's plan called for white students to attend D.M. Smith or East Side High for certain classes or for part of the day, without enrolling full time at those schools. The United States objected to the District's plan, claiming that the magnet programs did not and would not attract white students in significant numbers and the District's plan would not meaningfully integrate the schools. The United States also argued that consolidation of the schools into one junior high and one high school for the entire District would accomplish the objectives set forth by the district court.

The district court held a hearing on the adequacy of the District's proposed plan in December 2012. Beverly Hardy, an elementary school principal and director of the magnet program, and Maurice Lucas, president of the school board, testified in favor of the District's plan. Hardy explained how the magnet programs at the schools would work, and Lucas explained why the school board chose its plan, claiming that the magnet programs were likely to be successful. He also testified that the school board had not considered consolidation. The United States called Reverend Edward Duval, Lenden Sanders and Tonya Short, parents of children attending East Side High School and D.M. Smith Middle School. These witnesses opposed the District's plan, generally testifying that the schools on the east side of town were not academically challenging for their children, that there was a continuing stigma associated with attending those schools, and that the public consensus was in favor of consolidation.

The district court issued its memorandum opinion regarding the desegregation remedy on January 24, 2013. Cowan ex rel. Johnson v. Bolivar Cnty. Bd. of Educ. ( Cowan II ), 923 F.Supp.2d 876 (N.D.Miss.2013). The district court detailed observations from its site visit to the Cleveland schools, noting that D.M. Smith and East Side High had equal or better facilities compared to Margaret Green Junior High and Cleveland High School. The district court then rejected both the District's proposed desegregation plan and the United States's proposed alternative of consolidation, and adopted a new plan not previously suggested. Finding that “the attendance zones, as defined by the former railroad tracks in Cleveland, perpetuate vestiges of racial segregation,” the district court adopted a plan that abolished the attendance zones and majority-to-minority transfer program and implemented a freedom of choice plan that allows each student in the district to choose to attend any junior high or high school.

Shortly thereafter, the United States filed a Rule 59 motion to alter the judgment. It maintained, as it does on appeal, that the freedom of choice plan was constitutionally inadequate and again argued that the appropriate solution was consolidation. The District responded, as it does on appeal, by defending the freedom of choice plan. It argued that the plan was constitutionally adequate and that the United States had not offered evidence that the plan would not work. It also argued that a mandatory consolidation plan would ultimately result in decreased integration due to “white flight” from the District, as mandatory consolidation would lead to white parents leaving the District or placing their children into private schools. While the Rule 59 motion was pending, the District submitted pre-enrollment data for the 2013–14 school year. As of April 1, 2013, approximately three-quarters of the District's eligible junior high and high school students had pre-enrolled. Of those that had pre-enrolled, not one white student chose to pre-enroll at East Side High School, but 216 African–American students pre-enrolled at that school. Similarly, not a single white student pre-enrolled at D.M. Smith Middle School, but 134 African–American students pre-enrolled there. In addition to noting the obvious racial imbalance suggested by this data, the United States pointed out that, depending upon where the undecided African–American students chose to pre-enroll, there...