IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60722

UNITED STATES OF AMERICA,

 Plaintiff 

v.

CYNTHIA FLETCHER, A minor, by Rev. Artis Fletcher, as next friend, and 

Gloria Jean Barnes and David Barnes, minors, by Rev. Theotis Smith, as 

next friend, suing in their own behalf and on behalf of all others similarly 

situated, 

 Intervenor Plaintiff - Appellant

v.

STATE OF MISSISSIPPI, 

 Defendant

SIMPSON COUNTY SCHOOL DISTRICT, 

 Intervenor Defendant - Appellee

Appeals from the United States District Court

for the Southern District of Mississippi

Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.

WIENER, Circuit Judge:

United States Court of Appeals

Fifth Circuit

FILED

February 6, 2018

Lyle W. Cayce

Clerk

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Since 1970, the Simpson County School District (“the District”) has been 

under a consent decree to monitor the District’s efforts to desegregate its school 

system. Students attending District schools (“the Intervenors”) intervened in 

the litigation in 1982, contending that the District had not properly complied 

with the consent decree. In 2015, the District moved for a finding of unitary 

status in the area of faculty and staff employment. The Intervenors objected, 

and after a hearing, the district court granted unitary status. The Intervenors 

now appeal, and we affirm.

I. FACTS AND PROCEEDINGS

In July 1970, the United States sued the State of Mississippi and several 

of its school districts, including the District, alleging that they operated school 

systems that were segregated by race. In August 1970, the district court 

enjoined the District from discriminating based on race, and outlined various 

procedures designed to end segregation in the District. The 1970 order 

addressed specific areas: faculty and staff assignments, student transfers, 

transportation, school construction and site selection, and extracurricular 

activities. 

In 1982, the Intervenors filed a class action complaint against the 

District for failing to comply with the 1970 order. In 1983, the district court 

entered another decree, outlining further procedures for the District. These 

included procedures aimed at employment practices, viz., requiring the 

District to advertise available positions, use standard forms and objective 

rating criteria to review and score applications, and offer positions to the 

highest-scoring applicant regardless of race. The 1983 decree also required 

that the District notify the United States and Intervenors of any proposed 

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change to employment procedures.1 In 2001, the District moved for unitary 

status. The Intervenors did not respond, and the United States objected only 

in the area of faculty and staff assignments. The district court denied unitary 

status in that area, but granted unitary status in all other areas.2

In 2011, the court entered another consent decree expanding on the 

required employment procedures. Specifically, the 2011 decree required that 

(1) the District advertise vacant positions for at least three weeks and post 

them in specified locations, (2) the District maintain efforts to increase the 

number of qualified African-American applicants, (3) the District’s HR 

Director score applicants using objective criteria and a standard scoring form, 

(4) the principal or superintendent interview the highest-scoring applicants,3

(5) the interviewers complete an interview form (attached to the decree) with 

numerical scores for various criteria, and (6) the District offer the position to 

the candidate with the highest combined pre- and post-interview scores. 

The decree generally required the District to interview candidates with 

high initial scores. If the District declined to interview an applicant with a 

higher score than another applicant selected for an interview, the principal or 

Superintendent had to state in writing why he or she did not interview such

applicant. The only reasons permitted by the decree for declining to interview 

such an applicant were: (1) the applicant declined the interview, (2) the District 

could not contact the applicant after a prescribed number of attempts, (3) based 

on information disclosed in a prior interview, reference check, background, or 

misrepresentation on an application, the applicant “was deemed unsuitable for 

 

1 The decree also included reporting requirements regarding the racial composition of 

applicants, new hires, and employees who were demoted or fired. 

2 That decision was affirmed on appeal. 

3 Specifically, the District must interview at least the highest-scoring applicant; if it

interviews a lower-scoring applicant, it must also interview all other applicants who score 

higher. 

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employment[,]” or (4) “the applicant was terminated or non-renewed for good 

cause from any previous employment position.”

The District could decline to offer the position to the highest-scoring 

applicant only “if a legitimate negative reason exists not to hire the applicant.”

The consent decree gave examples of such negative reasons: (1) negative 

comments from references, (2) false information on an application, (3) failure 

to satisfy background check requirements, or (4) termination or non-renewal 

from a previous position. The decree further specified that “[t]he District may 

not, however, fail to hire the highest overall-rated applicant only because it 

favors a lower-rated applicant.” If the District wanted to hire a lower-scoring 

applicant, it had to notify the United States and the Intervenors, who had the 

opportunity to object.4

In 2012, the district court granted the United States’ motion to enjoin 

the District from violating the 2011 decree, on the grounds that the District 

had hired several non-highest-scoring applicants without proper notice to the 

United States. In 2013, the District moved for unitary status with respect to 

faculty and staff assignments. The United States did not object, but the 

Intervenors did, and the district court held a two-day hearing. The court 

received over five hundred objections from the community, but many of these 

were generic and did not state details. At the hearing, some objectors who had 

been denied employment or promotion by the District testified. In April 2014, 

the district court denied unitary status, citing use of modified interview guides 

and ranking forms without notice of the proposed change as an example of the 

District’s non-compliance. The district court also extended the 2011 decree to 

 

4 The United States and Intervenors could also object to hiring an applicant who did 

not have the highest initial, pre-interview score. 

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March 15, 2015. The Intervenors appealed that decision, challenging some of 

the court’s factual findings. That appeal was dismissed for lack of standing.5

In September 2015, the District yet again moved for unitary status. This 

time there were approximately sixty-five objections, many of which were 

merely generic.6 The district court held another two-day hearing in 2016, and 

granted the motion for unitary status, after considering the testimony from 

both the 2014 and the 2016 hearings. The Intervenors now appeal. 

II. STANDARD OF REVIEW

This court reviews a finding that a school district is unitary for clear 

error.7 Under that standard, we will reverse only if we have a “definite and 

firm conviction that a mistake has been committed.”8 But a court reviewing for 

clear error may not reverse the district’s court finding if it is plausible in light 

of the entire record.9 If the finding is plausible in light of the record, we may 

not reverse even if, “had [we] been sitting as the trier of fact, [we] would have 

weighed the evidence differently.”10 Neither will we “discount ‘the district 

court’s reasonable factual inferences from the evidence.’”11

“The burden of showing that the findings of a district court are clearly 

erroneous is heavier if credibility of witnesses is a factor in the district court’s 

determination.”12 “When findings are based on determinations regarding the 

 

5 United States v. Fletcher ex rel. Fletcher, 805 F.3d 596 (5th Cir. 2015). 

6 The United States did not object, however.

7 Anderson v. Sch. Bd. of Madison Cty., 517 F.3d 292, 296 (5th Cir. 2008). 

8 Yates v. Collier, 868 F.3d 354, 363 (5th Cir. 2017) (quoting Westwego Citizens for 

Better Gov’t v. City of Westwego, 946 F.2d 1109, 1118 (5th Cir. 1991)). 

9 Moore v. Brown, 868 F.3d 398, 403 (5th Cir. 2017). 10 Yates, 868 F.3d at 363 (alterations in original) (quoting In re Omega Protein, Inc., 

548 F.3d 361, 367 (5th Cir. 2008)). 

11 Imperial ED Promotions, L.L.C. v. Pacquiao, 549 F. App’x 295, 299 (5th Cir. 2013) 

(per curiam) (quoting Glass v. Petro–Tex Chem. Corp., 757 F.2d 1554, 1559 (5th Cir. 1985)). 

12 Theriot v. Par. of Jefferson, 185 F.3d 477, 490 (5th Cir. 1999) (citation omitted); see 

also City of El Paso v. El Paso Entm’t, Inc., 464 F. App’x 366, 372 (5th Cir. 2012) (per curiam) 

(“[W]here the court’s finding is based on its decision to credit the testimony of one witness 

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credibility of witnesses, [Federal Rule of Civil Procedure] 52(a) demands even 

greater deference to the trial court’s findings; for only the trial judge can be 

aware of the variations in demeanor and tone of voice that bear so heavily on 

the listener’s understanding of and belief in what is said.”13 

III. DISCUSSION

“The ultimate inquiry in determining whether a school district is unitary 

is whether (1) the school district has complied in good faith with desegregation 

orders for a reasonable amount of time, and (2) the school district has 

eliminated the vestiges of prior de jure segregation to the extent practicable.”14

This standard also applies when assessing whether a school district is unitary 

in employment practices.15

The Intervenors focus on individual employment decisions—that is, the 

District’s decisions to interview, hire, promote, or fire specified persons—

whose treatment they contend shows violations of the consent decree and 

remnants of de jure segregation. The district court held that none of these 

 

over that of another, that finding, if not internally inconsistent, can virtually never be clear 

error.” (quoting Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir. 1993))). 13 Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985) (citing Wainwright v. 

Witt, 469 U.S. 412 (1985)). 14 Anderson, 517 F.3d at 297 (footnote omitted) (citing Hull v. Quitman Cty. Bd. of 

Educ., 1 F.3d 1450, 1454 (5th Cir. 1993) and Freeman v. Pitts, 503 U.S. 467, 492, 498 (1992)); 

see also Freeman, 503 U.S. at 491 (“Among the factors which must inform the sound 

discretion of the court . . . are the following: whether there has been full and satisfactory 

compliance with the decree in those aspects of the system where supervision is to be 

withdrawn; whether retention of judicial control is necessary or practicable to achieve 

compliance with the decree in other facets of the school system; and whether the school 

district has demonstrated, to the public and to the parents and students of the once 

disfavored race, its good-faith commitment to the whole of the court’s decree and to those 

provisions of the law and the Constitution that were the predicate for judicial intervention in 

the first instance.”).

15 Fort Bend Indep. Sch. Dist. v. City of Stafford, 651 F.2d 1133, 1140 (5th Cir. Unit A 

July 1981) (“The proper inquiry to be undertaken in an effort to determine whether the 

FBISD is now unitary is two-fold: first, the district’s current employment practices must be 

non-discriminatory and in compliance with constitutional standards; second, the adverse 

effects of any earlier, unlawful employment practices must have been adequately remedied.”).

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individual employment decisions showed that the District failed to comply with 

the consent decree or that the District acted in bad faith. The court also held 

that the employment decisions did not demonstrate remnants of de jure 

segregation.

A. The District’s Good Faith Compliance With The Consent Decree

This court views the district court’s finding that a school district has 

complied with a desegregation order in good faith in light of the entire record.16

In evaluating unitary status, “a court should give particular attention to the 

school system’s record of compliance.”17 The record of good faith compliance 

must be “consistent[].”18

The Intervenors presented hundreds of pages of evidence relating to 

more than twenty employment-related decisions in the District over the past 

several years. The district court heard four days of testimony, at two different 

fairness hearings, from District officials and individuals who had applied for 

employment or promotion in the District. The Intervenors urge that various 

employment decisions show that the District failed to strictly follow the 

consent decree in good faith; District officials provided explanations for the 

alleged defections from consent decree procedures. 

We need not recount each of the Intervenors’ allegations here. The 

district court’s finding that the District did not act in bad faith was based 

significantly on its assessment of the credibility of the District officials’ 

testimony explaining the employment decisions at issue. In each instance, the 

district court credited this testimony of District officials over the evidence that 

 

16 Anderson, 517 F.3d at 298.

17 Freeman, 503 U.S. at 491. 18 Anderson, 517 F.3d at 297 (quoting Hull, 1 F.3d at 1454).

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the Intervenors suggested showed bad faith.19 We are not in a position to 

reassess the district court’s decisions to find some evidence credible and weigh 

it more heavily than other evidence. Only the district court is able to observe

the witnesses and “the variations in demeanor and tone of voice that bear so 

heavily on the listener’s understanding of and belief in what is said.”20 “[T]his 

court does not reweigh evidence and must defer to the trial court’s assessment 

of the credibility of witnesses.”21 The fact that contradictory evidence might

exist does not compel us to overturn the district court’s decision to credit other 

evidence instead.22 The Intervenors have not shown “the very rarest of 

circumstances”23 that would allow us to revisit the district court’s weighing the 

credibility of the evidence.24

Even when the parties seem to agree on the facts, the Intervenors’

remaining arguments do not demonstrate clear error. The Intervenors 

generally complain that the District violated the spirit of the consent decree—

or, as counsel put it at oral argument, “manipulated” the consent decree—

demonstrating the District’s bad faith. But assessing the District’s motivations 

for particular acts again required the district court to make factual 

determinations. We may only overturn these factual determinations if they are 

implausible in light of the entire record. We here conclude that they are not. 

 

19 The district court similarly credited the District’s documentary evidence, such as 

the candidate summaries that it created in reviewing each candidate’s scores, interview 

comments, and information gleaned from references. 

20 Anderson, 470 U.S. at 575 (citing Wainwright, 469 U.S. 412 (1985)). 21 Perez v. Bruister, 823 F.3d 250, 269 (5th Cir. 2016). 22 See id.

23 Shami v. Comm’r, 741 F.3d 560, 565 (5th Cir. 2014) (quoting Durrett v. Comm’r, 71 

F.3d 515, 517 (5th Cir. 1996)).

24 For example, the district court resolved a factual dispute about whether Misty 

Hannah interviewed her husband, Charles Hannah. The district court concluded that Misty 

was “in attendance for the sole purpose of taking notes for the interviewers.” This conclusion 

is consistent with testimony from district officials, and is plausible in light of the record. For 

this reason, we will not disturb the district court’s conclusion that this is not an example of 

the District’s bad faith. 

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For example, the Intervenors cite a number of instances when the 

District did not hire the highest-rated applicant. In those instances, the 

District proffered a reason for failing to do so, which it contends is a “legitimate 

negative reason” according to the consent decree. The Intervenors counter that 

these proffered reasons are pretextual. But there is evidence supporting the 

conclusion that the District’s actions were consistent with the consent decree. 

That indicates that the District’s motivations were genuine and not pretext.25

These motivations are therefore plausible in light of the record. 

Similarly, the Intervenors complain that the District took a number of 

actions that were not permitted by the consent decree, such as when the 

District (1) relied on information about candidates that it received from outside 

of the formal interview process and (2) allowed individuals who recommended 

applicants to later interview those applicants. Such practices are not explicitly 

permitted by the consent decree, but neither are they prohibited by it. The 

district court therefore had to determine whether the District’s practices 

demonstrated bad faith. It concluded that they did not, and there is insufficient 

information in the record to upset that conclusion. For example, to prohibit 

 

25 At oral argument, the Intervenors’ counsel cited as an example the District’s failure 

to hire Katrina Smith. She had applied to be an instructional assistant, but she testified that 

she told the District that she wanted the position because she had not passed the teacherlicensing test. Smith had previously been a teacher in another school district, but had to stop 

when her license expired and she did not pass the test to renew it. Smith was the highestscoring applicant, but in recommending a different candidate, the HR Director wrote “[Smith]

has a teaching position waiting for her[.]” This suggests that the District suspected that she 

would return to her old teaching job once she passed the test. Smith testified that this was 

not accurate, but also that she wanted the Simpson County job “because [she] did not pass” 

the licensing test to continue in her prior job. The district court reasonably concluded that 

the District relied on its suspicion—surely if Smith did intend to return to her old job, the 

District would not expect her to say so explicitly. There is not sufficient information in the 

record to overturn the district court’s implicit determination that the District’s expectation 

that Smith would leave the position if her old job as a teacher became available was a 

legitimate reason not to hire her. Even if it were not, it is equally plausible from the record 

that the District was confused about Smith’s intentions, rather than that it was acting in bad 

faith.

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employees who recommend an applicant from interviewing that applicant 

would be infeasible. It is likely that many employees of a small school district 

would know each other. In fact, there was testimony that in at least one case, 

references who interviewed a candidate were “part of the leadership team” for 

the position being interviewed for. The Intervenors complain that an 

interviewer who has given a favorable recommendation or reference taints the 

“objective” nature of the hiring process under the decree. But interviewing is 

inherently a subjective process. The consent decree does not purport to remove 

all subjectivity; it attempts to give quantitative values to what are still 

subjective criteria.

In sum, the Intervenors have pointed to no practice or incident that was 

objectively a violation of the consent decree. Instead, they have claimed to show 

examples of the District’s bad faith. Perhaps some of these examples could be 

interpreted to show bad faith on the District’s part, but the evidence in the 

record does not compel that conclusion. The evidence before the district court—

including contemporaneous records made regarding each hiring decision—

supports the District’s explanations for all of its decisions. To assess whether 

the District acted in bad faith, the district court was required to make factual 

determinations from the evidence, and the whole of the record shows that these 

factual determinations were plausible. We therefore have no basis to find clear 

error in these conclusions. 

B. Eliminating Vestiges Of De Jure Segregation

The district court held that the District has eliminated the vestiges of de 

jure discrimination in employment, pointing to the strides that the District has 

made since the inception of the consent decree: The number of AfricanAmerican teachers has increased or remained steady in the last decade, and 

the District has endeavored to recruit at historically black colleges and 

universities. The Intervenors do not challenge these factual findings. Instead, 

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they contend that de jure segregation remains because the District continues 

to engage in “racially motivated” employment decisions, and “cronyistic” and 

“nepotistic” hiring—that is, considering only the favored candidates of those in 

authority in the District. 

Eliminating the vestiges of de jure segregation requires “ensur[ing] that 

the principal wrong of the de jure [segregation] system, the injuries and stigma 

inflicted upon the race disfavored by the violation, is no longer present.”26 But 

“a formerly segregated school system need not employ a faculty having a racial 

composition substantially equivalent to that of its student body [to effectively] 

desegregate its schools and attain unitary status.”27

As for the alleged racially motivated employment decisions, the 

Intervenors complain that a number of hiring decisions were racially 

discriminatory.28 If the District did engage in discriminatory hiring, that would 

require reversal. But as explained above, the district court found that the 

various employment decisions did not violate the consent decree: Because all 

of those decisions were found to have been made in good faith, the court also 

found that none were “motivated by race.” In other words, the district court 

concluded that the District’s non-racial motivations for its actions were 

genuine. As explained above, these findings were not clear error. Because we 

do not reverse the district court’s holding that these decisions were in good 

faith, did not conflict with the consent decree, and showed no pretext, we also 

 

26 Freeman, 503 U.S. at 485. 27 Fort Bend Indep. Sch. Dist., 651 F.2d at 1138.

28 The District argues that many of the hiring officials who declined to hire AfricanAmericans were themselves African-Americans, so that decision cannot be discriminatory. 

But as the Intervenors point out, what matters is whether the employee was treated 

differently because of race; the employer’s race is irrelevant. 

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must affirm the conclusion that none show the racially discriminatory hiring29

that would perpetuate de jure segregation.

As for the alleged cronyism, the Intervenors cite to no case in which a 

court has addressed—much less held—that cronyism perpetuates the vestiges 

of de jure segregation. We may assume that if cronyism existed, it could 

entrench the vestiges of segregation.30 It is true that many candidates who 

were hired had some connection to those who made hiring decisions, but this 

is not surprising: The District is relatively small, and officials will obviously 

know some candidates better than others. But again, the district court’s 

determination that none of the hiring decisions involved improper decisionmaking was plausible in light of the record. This compels the conclusion that 

none of the hires were made because of cronyism. In other words, the district 

court found that the District’s hiring decisions all involved legitimate motives, 

and not cronyism.31 Because these were factual determinations that are 

plausible in light of the record, we will not disturb them on appeal. 

IV. CONCLUSION

As the district court noted in granting unitary status, its order is the 

final decision in a process that began over forty years ago. In fact, this appeal 

concerns only employment, which was ultimately only one aspect of the racial 

segregation that once existed within the Simpson County School District. The 

district has been unitary in every other area—including in its most vital area, 

 

29 Even if an individual example cited by the Intervenors was suspicious, many of the 

decisions the Intervenors claim are discriminatory involve the District recommending a 

lower-ranking candidate of the same race as a higher-ranking candidate, and cannot be 

evidence of de jure racial discrimination. 

30 Cf. Freeman, 503 U.S. at 489 (“A remedy is justifiable only insofar as it advances 

the ultimate objective of alleviating the initial constitutional violation.”).

31 Cronyism, by definition, requires favoring particular candidates “without regard to 

their qualifications.” Cronyism, AM. HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th 

ed. 2011). It follows that if the District legitimately considers all candidates’ qualifications, 

there is no cronyism. 

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educating students—for more than ten years. As the district court noted, there 

is an entire agency devoted specifically to the kinds of employment disputes 

that are at issue in this appeal.

Finally, in the words of the Eleventh Circuit:

This judgment means that appellants have accomplished what 

they, decades ago, set out to do. They challenged a rigidly 

maintained, de jure system of school segregation and sued to bring 

it into compliance with the constitutional requirement of equal 

protection under the law. We say today that they have succeeded. 

If this judgment is counted as a loss for appellants, it is so because 

they have won.

. . . The Board, and the people . . . who, in the end, govern their 

school system, must be aware that the door through which they 

leave the courthouse is not locked behind them. They will 

undoubtedly find that this is so if they fail to maintain the unitary 

system we conclude exists today.32

The judgment of the district court is AFFIRMED. 

 

32 NAACP, Jacksonville Branch v. Duval Cty. Sch., 273 F.3d 960, 976–77 (11th Cir. 

2001).

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