### 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,

Inte rvenor Plaintiff

- Appellant

v. STATE OF MISSISSIPPI,

Defendant
SIMPSON COUNTY SCHOOL DISTRICT,

Intervenor Defendant

- Appellee

Appeal s 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 Februar y 6, 2018

Lyle W. Cayce Clerk Case: 16-60722 Document: 00514338426 Page: 1 Date Filed: 02/06/2018No. 16

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2 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”) inte rvened 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. F ACTS AND P ROC EEDINGS 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 Dist rict 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 sel ection, 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 Distri ct. 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 applic ant regardless of race. The 1983 decree also required that the District notify the United States and Intervenors of any proposed Case: 16-60722 Document: 00514338426 Page: 2 Date Filed: 02/06/2018No. 16

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3 change to employment procedures. 1 In 2001, the District moved for unitary status. The Intervenors did not respond, and the Unit ed 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 area s

. 2 In 2011, the court entered another consent decree expanding on the required employ ment 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 a pplicants, (3) the District ’ s HR Director score applicant s 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 sc ore s

. 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 we re: (1) the applicant declined the interview, (2) the District could not contact the applicant after a prescribed number of attempts, (3) based on informati on 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 wa s 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. Case: 16-60722 Document: 00514338426 Page: 3 Date Filed: 02/06/2018No. 16

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4 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 “i f a legitimate negativ e reason exists not to hire the applicant

. ” The consent decree gave examples of such negative reasons : (1) negative comments from refe rences, (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 Stat es and the Intervenors, who had the opportunity to object. 4 In 2012, the district court gran ted 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 statu s 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 an d 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. Case: 16-60722 Document: 00514338426 Page: 4 Date Filed: 02/06/2018No. 16

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5 March 15, 2015. The Intervenors appealed that decision, challenging some of
the court ’ s factual f indings. T hat 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 T he 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.
I I. S TANDARD OF R EVIEW This court reviews a finding that a school district is unitary for clear

error. 7 Under th at standar d, 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 W estwego 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. , 54 8 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 Case: 16-60722 Document: 00514338426 Page: 5 Date Filed: 02/06/2018No. 16

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6 credi bility 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 understa nding of and belief in what is said. ” 13
III

. D ISCUSSION “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 pr ior 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 int erview, hire, promote, or fire specified persons

— whose treatment they contend show s violations of the consent decree and remnants of de jure segregation. The district court held that none of these

over that of anothe r, that finding, if not internally inconsistent, can vir tually 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 inf orm th e 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 o r 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 interve ntion 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 effe cts of any earlier, unlawful employment practices must have been adequately remedied .”). Case: 16-60722 Document: 00514338426 Page: 6 Date Filed: 02/06/2018No. 16

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7 individual employment decisions showed that the District fa iled 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 v iews 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 s trictly follow t he 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 Distr ict did not act in bad faith was based significantly on its assessment of the credibility of th e District officials’ testimony explaining the employment decisions at issue

. In each instance , the district court credit ed 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)

. Case: 16-60722 Document: 00514338426 Page: 7 Date Filed: 02/06/2018No. 16

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8 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 revi sit 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 sp irit of the consent decree

— or, as counsel put it at oral argument, “m anipulated” 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 deter mination s . 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 (ci ting 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 fo r the interviewers.” This conc lusion 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. Case: 16-60722 Document: 00514338426 Page: 8 Date Filed: 02/06/2018No. 16

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9 For example, the Intervenors cite a nu mber of instances when the District d id not hire the highest

- rate d applicant. In those instances, the District proffered a reason for failing to do so, which it contend s is a “legitimate negative reason” according to the consent decree. The Intervenors counter that these proffered reasons are pretextual. But the re is evidence supporting the conclusion that the District’s actions were con sistent 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. Similar ly, the Intervenors complain that the District took a number of actions that were not permitted b y the consent decree , such as when the District (1) relied on information about candidates that it received from outside of t he 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 Distri ct ’ 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 A t 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 pass ed the teacher

licensing 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 highest

scoring applicant, but in recommending a different cand ida te, 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 sh e 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 Distric t 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 av ailable 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. Case: 16-60722 Document: 00514338426 Page: 9 Date Filed: 02/06/2018No. 16

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10 employees who recommend an applicant from interviewing tha t applicant would be inf easible. I t 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 su bjectivity; 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 , b ut 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 decisi ons. 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 t herefore 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 in ce ption of the consent decree: T he number of African

American 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 c hallenge these fac tual findings. I nstead, Case: 16-60722 Document: 00514338426 Page: 10 Date Filed: 02/06/2018No. 16

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11 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 pres ent.” 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 mot ivated 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 tho se decisions were found to have been made in good faith, the court also found th at 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 Inde p. Sch. Dist. , 651 F.2d at 1138.
28 The District argues that many of the hiring officials who declined to hire African

Americans 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 o f race; the employer ’ s race is irrelevant. Case: 16-60722 Document: 00514338426 Page: 11 Date Filed: 02/06/2018No. 16

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12 must affirm the conclusion that none show the racially discriminatory hiring 29 that wou ld perpetuate de jure segregation. As for the alleged cronyism , the Intervenors cite to no case in which a court h as addressed

— much less held

— that cronyism perpetuates the vestiges of de jure segregation. We may assume that if cronyism existed, it could

en trench the vestiges of segregation

. 30 I t is true that many candidates who were hired had some connection to those who made hiring decisions , but this is not surprising: T he District is relatively small, and officials will obviously know some candidates bet ter than others. But again, the district court ’ s determination that none of the hiring decisions involv ed improper decision

making was p lausible in light of the record. T his compel s 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 plaus ible in light of the record, we will not disturb them on appeal.
I V. C ONCLUSION As the di strict court noted in granting unitary status, its order is the final decision in a process that began over forty y ears ago. In fact, this appeal

concerns only employ ment, which wa s 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 , A M

. H ERITAGE D ICTIONARY OF THE E NGLISH L ANGUAGE (5th ed. 2011). It follows that if the District legitimately considers all candidates’ qual ifications, there is no cronyism. Case: 16-60722 Document: 00514338426 Page: 12 Date Filed: 02/06/2018No. 16

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13 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 C ircuit: This judgment means that appellants have accomplished what th ey, 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 f ind 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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