versus cynthia fletcher versus the state of mississippi and simpson county school district you may p honor i have right there i just didn't read the whole thing in the burden of proof in this case is on the defendants here and we believe they just did not meet the burden and that the evidence really showed first off only two or three of the overall issues that you're raising with us that perhaps the school district did not fully comply with the consent decree as to those but that's all not saying that's what we are but i'm asking you for a legal conclusion here where only it is absolute perfection and compliance necessary in order for the district court to be upheld or is it sufficient that the large percentage of time we find based on what the allegations are brought us that the difficult was right in good faith compliance existed jani you made a distinction there between compliance and did it requires a remain and and that this school district any any particular failure to comply with the employer terms of the consent decree even if it wasn't racially t to show it's motivated by race or intentional until the school district is declared unitary there's a presumption that what happens there might be race we don't have even the parties on that i'm up inside of that's right but this is  cronyism you thought but had no real impact on race and on that part of the consent decree though is supported only overall ask that to desegregate this school did and it had its integral goes further than that but because it will impact on race so i guess too many extra issues are coming in here i'm not getting an answer from you maybe don't want to give me an answer as to if we find that the district court was wrong or anything we have to reverse it and reinstate we've talked about consistency compliance my children are consistent in doing what i say but as i mean that used to be we're all grown now but that doesn't mean a hundred percent that my law clerks are sort of consistent on doing what i say but that doesn't mean one hundred percent  your honor i think the record here it's much more than one two or three but it's only one or two or you tell me that might be enough on what you give away the form here but i think it is when for example in this case you have a principal in twenty fifteen twenty fifteen even after we've had a first hearing in twenty fifteen who totally disregards the hiring procedure which says you know you get the first top rated applicants you interview all of the applicants down to the same a certain place where you've decided you want to stop interviewing and then you make your decision and give the does the job to the highest rated applicant in twenty fifteen we have a black principal who got a list of applicants went to number ten on the list interviewed and offered the job totally disregarding the hiring procedure  dog for this the human resources person is not really monitoring the system and probably doesn't even understand the system herself in that instance this instance i'm talking about she didn't even vet all the applicants for people who are not cool i didn't meet the minimum qualifications so that higher rank in and of itself is such a blatant violation and the district court didn't even address it in their in its opinion yet another here we have an individual highest rated applicant doesn't get the job miss katrina smith she's not mentioned by the district court either and you know she had called in to say oh you know she had interviewed for position and she was trying to get her teacher's license she told the interviewer i might pass this other test to become a teacher and then i'll have a job in another district just kind of telling her there and miss may have testified that she called the principal back and said i didn't pass that part of the test the arm i want the position she doesn't get the position now and this old enormous information is kept on her record now that wasn't mentioned by the school by the by the district court either so it's not legitimate to say well she's not really interested in this job she wants this other job and she's going to keep trying hard to make the test for all those inferences incorrect this order was put in place it was to give everyone a chance to apply that there'd be legitimate nondiscriminatory reasons given why a person doesn't get a job giving people the opportunity system was put in place what we have in twenty fifteen is that system is in place but it has been totally you know manipulated by the school district to get back to hiring whoever they want to hire and when it comes to race if you are a favored black you'll get some special treatment such as mr oh oh i'm trying to remember her name deidre clark she worked with everybody everywhere everybody and when she applied for per principal position she was still taking classes to be certified as it's in that system principal there were other people who were already to be principals but she got the job and as a matter fact the school district misled the department of justice who asked about it by saying oh by the  is returning as to exactly where we were back in one thousand and one the cronyism i'm going to hire who i want that's what greg has tried to do the new superintendent two thousand and sixteen right out of the box violates the consent decree by running to higher his friend rather than the person who is most qualified ms moore's now the violations sometimes do lead to racial do your honor especially when they end up this becomes the practice take whatever the system is manipulated to hire who you want and there have been instances where a woman is denied a job because  know mr pace wanted to give it to his male friend when katrina smith was a white who was hired to do with your honor in miss miscarries a white was hired instead of her this leads to racial discrimination that in every single instance army accidentally no your honor i'm sorry not accidentally to me the school district could have put ms moon on the stand and had her testimony about what you know why she didn't give mr smith on that job and they didn't the school district did not put on a lot of proof to rebut the reasons that your motto the testifiers were giving for why they were bringing  or why they feel that this district should not be taken out unitary or given unitary rulings down to the district judge and just kind of proceeding is given an enormous amount of discretion what you're talking about a fact finding and how the district judge everything correctly and you need either to chip away at that or whacking off with more troops i don't think it's enough just to say there are other ways to look at the evidence what would you say is the most significant error but i actually  i think it that he ignored he didn't even comment on the testimony of principal sanders the hiring of the girl's basketball coach his total violation it was so a very just it would mean came out in court everybody's kind of shocked that the school district had to go and get an affidavit and trying to correct it and put it in the record even after the hearing was already closed that is is really important i think that they didn't advertise certain positions again here tom duncan deputy superintendent of new superintendent comes in he wants to hire his former assistant principal mr davis so mr you know harris he decides he's go so much when you have to explain why an applicant comes in and up front tells you i'm like i have left to his or her school district and i want you know i have sued them and then this school district goes and that superintendent to allegedly get and did get they set a negative reference well dawn but then the department of justice goes behind context that superintendent who said he never gave a negative reference now your honor there is just too much in this record that shows no good faith i think you really have i mean to me it's a separate thing then just compliance it is the good safe freeman briskets says that is important and that is why the good faith and it's not just to the court it's to the public i know the district court morning to discount the five hundred sixty five black individuals who signed objection saying don't take it out from you know let them stay under the consent decree we don't think it should get your district courts and i'm going to discount that the how do you  the public is not in favor of this that this district has not demonstrated to the public that it has acted in good faith compliance five hundred sixty five and one in favor tom decade in terms of a guiding the district along its path you can see that the sheep have been wayward on occasion we made a mistake with this morning and i'm sorry i'm just a there are a number of examples of been pointed out many examples of regularities they do not follow the policy and do you i mean what do you do you say that that doesn't matter or do you dispute each and every one of those you that we are held to a standard of absolute perfection with the board each and every form of matter the school district literally hires hundreds of people over a short amount of time what we're looking at is relatively small number of hearts here and it in this regard is keyes's but wanted to know instance in which the district court in sifting through and analyzing the record made clear with regard to any of the facts of the case what the district court did look at is not in every instance apply its procedures in terms of applications and so on one hundred percent correctly that's obvious and that's more to the district no indication of  but at the same time i think it's important to ask whether those alesha's rise to the level of a violation of the consent decree now comical respectfully that each and every one of the employment decisions are employment applications that came there were a couple where individuals pressed for the charges with regard to that but did those have any relationship to the efforts to become a monetary says your honor i don't think so i think that an individual can maintain for his or her perspective the idea that his application because it was not accepted as a result of some racial issue in charge forward sat without indicating that the district was somehow nefarious in actually discriminating against individual or failing to provide or follow its own procedures according to the consent decree ok also military is like what you're saying you get your firm does an awful lot of school work and you certainly have unitary districts in which there are claims or maybe even success who are on the same claims of racial other remedies because you're still operating in the consent decree still in an effort to desegregate ancient for these sorts of things order it's very important that none of these really rise to the level of discrimination now it's a different issue it seems real whether it is noncompliance in a technical way a real way but a technical way with the consent decree she says the worst example of this is the hiring of a basketball coach what do you say your honor that had to do with the hiring of calley dantzler and in the briefing there's quite a bit of the machinations back and forth about why that happened about why ms dancer was not qualified to take on certain responsibilities with regard to her position about competing positions about when the that meeting the plaintiff interveners on condition that take take direction following the cooperate with the u s department of justice the department of justice is the one who for the longest time has been in the trenches here looking over these specific applications that were submitted before anyone was hired as a district who had an application score that fit within the criteria the consent decree and passed off on it as not having an objection the department of justice however is not here as an appellant in this case because they did not challenge or they did not object to the district's motion for unitary status i think that's a very important fact that when the two thousand fourteen or fifteen ordered the object employment does it have to be that could just be cumulative failure to follow the decrees procedures if you have enough of them even if they're small deviations we're different people are hired that shows a lack of good faith your honor without even if it doesn't show that it's a race of the person that got it versus the other person no i don't think so you know they're like  though tech position mr pace had an honest difference of opinion regarding hope both occasions for that position he believed that individual in the second commanded that scope for another her period should take the reins of leadership of that school from which sort of the poster child of her efforts spurred to bed with someone that our farm had been involved in terminating from two other school districts and such for such things as embezzlement and abuse to students that information was communicate i guess i'm asking a legal question if there is a competitor of noncompliance with the consent decree even it that pattern doesn't manifest itself in what can be seen as racial discrimination error for the court to define this unitary what is the case law say if if there's a does it have to follow the consent decree it's similar to questions just southwick is asked i can't tell whether the law is that it has to follow the consent decree or whether it has to be discriminatory to i mean has to not be discriminatory which is the standard and you know i believe the consent decree is in number of public school districts in desegregation cases probably two dozen of them in any given time and in no other case do we have an animal might we have here unemployment discrimination  compliance to the absolute standard of perfection with regard this is a bar firms we're not near perfection here i mean they've got people getting jobs that they're trying to get near retirement and creating extra jobs forum and other people switching the names of their jobs so they can hire someone else in a different position there's all kinds of interesting things in this this is far from pretty that action but the question is is whether or not it matters or not  there evidence that there is deceit on behalf of the the school district because it said that they had gotten a reference from that other school superintendent that was being sued and the d o j confirmed that that reference had not occurred and is that would that be an evidence of bad faith if they're being deceitful in the process or is that not the record that accurate statement has insisted on is that if the school district receives some type of negative reference upon making them some type of background bar that the school district is supposed to reach out to that person demand that that person submit in response and written confirmation of the negative reference in the experience of the human resources director the district by the way is african american she says there's no way somebody is going to talk to me honestly and openly and freely and then turn around and write that in response and confirm what they said about the employees so oftentimes you do get instances where a perspective or former employer gives a negative reference and then later on denies having given that negative reference that's not uncommon in the world of human resource dinar unitary status if you think fourteen and fifteen you seek it again seems very quick what you generally a looking at is evidence of actually having overcome the vestiges is some consistent link the period of time and and bringing a new suit just a year or year and a half after a previous rejection of that argument by the district court seemed awful fast what do you say is the evidence not use of these particular how or what length of time is your argument based on this record that this good district has in fact been operating consistent with the consent decree with whatever kinds of occasional mistakes that are made going to may have addressed both of your concerns you've expressed the first having to do with the attention of the part of justice on this it was a it was an observation but if you have an answer to that from this record as opposed to i represent twenty eight school districts or whatever you said and i know into any they've done this that's not in this record i don't want to know that your honor very much tethered to this record an essential part of it or all of the machinations back and forth between the school district our off arm and the department of justice and the profit plaintiffs with regard to each and every one of these hoppers and what we did was any time there was a recommendation for employment by the school district from someone who was not the highest rated applicant we sent all of the interview god's all of the supporting documentation all of the references and so on to the plaintiff interveners and the department of justice to see if they had any objection with regard to that there terri status motion in two thousand and sixteen and your honor it's literally thousands of pages of documentation that went back and forth and tori cummings was the lawyer for the d o j and your honor i would submit to you that this must have been occupying sixty to seventy percent of our time it seems and she and i had conversations in which she reported the tremendous volume of what the department justice was doing on this particular case so this is an instant in which they're part of justice  more than you might find in a typical desegregation case they were actually entering into almost a daily communication with the school district about these particular hires so the school the school is very much involved in this i know we can you operate but your time is running out suggesting they simply elected not to oppose that because we don't know that that's because they figured they were getting zealous advocacy by the interveners so they can need to do anything well actually it was the united states it was more zealously advocating throughout the course of the litigation not the plane from the rangers in fact from about two thousand and five till about two thousand and thirteen the plane interveners were absent from the litigation did not painters and sales don't even challenge some of the most significant progress the districts made with the board to complying with its desegregation obligations for example they don't dispute the fact that the district went up from seven african american trader's to fourteen over six or seven year period they don't just need the information put forward about generally the number of african american teachers they are they don't dispute the fact that the district moved forward and recruited at historically colleges and universities and your honor to answer your question or have remembered it with regard to the heat on their compliance with the various aspects of the interview district court said that he will concerned about this issue of the interview guys that the district had failed to you know i was offered the district school district that is corrected that and that procedure and put in place the interview guards and as stated in the court's order the district was permitted to resubmitted application for your tears status and your labor so that was again are you saying the two thousand and fourteen order the judge s to dissolve the employment consent decree and so here you are once that issue was corrected over the course of that year then the only concern that the district court ever expressed about the district operations under the consent the crate had been corrected so that the district was able to move forward at that time according to the district court and  your own in the instance that i said was a clear violation of the hiring of the basketball coach was not kelly dancers it was the hiring of ben johnson by principal sanders and if you look at  interviewed and the top person was given the job but you know and if the top person doesn't get the job then we could request additional information so in many instances we didn't request additional information thinking that this procedure was followed only at the hearing didn't come out that this does not reflect at the top people who were hired and everybody interviewed at the same time and the final invitation was given to the highest rated applicant so that the ben jonson hire is the key one but the other one i want to bring to the court's attention is billy brown situation billy brown says have been at the edmund hall junior high for a number of years and he left the school system but then he came back to apply for a position at our cheeseman center which has very very few students i think maybe eighty something like that very few students and he actually called miska for and said that was his former principal and said i'm thinking applying would you give me a recommendation and she said yes and she testified that she when she was called by mr ms christian she said well you know i think you do good in a smaller setting you know he did have some issues at the school and we dealt with some organizational things but i was you know him i felt he would do well at school miss christian took that as a negative reference he didn't even get a chance constantly stay vigilant yes we did we did object to roma morris the school system was going to give this position mr pace was going to give this position to his friend and just and we have an email in the record that says the school board's going with mr pace you know we had to file something in court to get that done right and only then did they back off we had to object on the teresa bond situation in this interviewing or talking to her former superintendent when she was up front about the lawsuit the school district you know what they did they offered her a position the position three days before school started and a principal position she so they'll say oh she declined the position but you know they manipulate things so yes your honor we have been vigilant we have in these last few years you know been trying to get the information but why we shouldn't have to be if the department of justice decides they don't want to pursue we're in this case because maybe they don't adequately represent all right so we went ahead and i think the court has you know has vindicated us in many instances or even their own behavior has your honor i think the other instances of showing a lack of good faith when you have somebody who is given someone a recommendation for which that person got points and then turns around and interviews that person and that person gets points that's not a good faith hiring procedure to allow the people who gave you recommendations to interview and get you but you know they'll throw up the answer nobody says we couldn't do that yes the consent decree says the principal and the superintendent do the hiring that all these other recommendations by people who are you know you know who are folks who've already gotten points you know for their recommendation your honor i think the statistics if they want to raise you know about a possible that you know we've done all this we have this increase you know it has been some increase but in twenty thirteen there were twelve thirty four black administrators in twenty six there were thirteen of thirty three one and we have numerous instances of black administrators being passed over for positions and thirteen of the thirty three black and black faculty i'm sorry that were hired by i'm sorry principals like two of the schools don't even have a black administrator we want to monitor to think that's just like in the on the more versus t they need a model thank you we have your argument this case