### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 60464

DIANE COWAN, etc., et al
Plaintiffs
v. UNITED STATES OF AMERICA,
Intervenor Plaintiff

- Appellant

v. CLEVELAND SCHOOL DISTRICT,
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, t he 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 cit y of Cleveland, the towns of United States Court of Appeals Fifth Circuit 

### FILED April 1, 2014 Lyle W. Cayce Clerk Case: 13-60464 Document: 00512581384 Page: 1 Date Filed: 04/01/2014No. 13

- 60464 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 cont inuing 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

1 The details o f these orders are recounted at length in th e district court’s th o rough March 28, 2012 memorandum opinion

. See Cowan ex rel. Johnson v. Bolivar Cnty. Bd. of Educ . ( Cowan I ), 914 F. Supp. 2d 801 (N.D. Miss. 2012). We discuss only those portions of the order s that are relevant to the instant appeal. 2 Under the de jure system, all African

- Americans in grades 7

- 12 attended a single school, now East Side High School. A second junior high, D.M . Smith Middle School was constructed later, on a site behind East Side High School. 2 Case: 13-60464 Document: 00512581384 Page: 2 Date Filed: 04/01/2014No. 13

- 60464 student assignment and faculty assignment components of the de segregation 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 o f 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. T he faculty assignment component of the desegregation orders provided that the faculty and profess ional 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, t he district court analyzed whether the Di strict 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 foun d that the District’s formerly de jure white junior high and high school, Marg a ret 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

. Alt hough white enrollment in the District 3 Case: 13-60464 Document: 00512581384 Page: 3 Date Filed: 04/01/2014No. 13

- 60464 has held steady around 29 % in recent years, t he 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 ye ar i n May 2012. T he 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. S mith Middle School and East Side High School , and recommitting to the International Baccalaureate programs at both schools in order to attract students enrolled at Marg a ret Green Junior High School and Cleveland High School, and to attract students graduat ing from the successful magnet programs at the e lementary 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 school s . 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 i n 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 w ork, 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 4 Case: 13-60464 Document: 00512581384 Page: 4 Date Filed: 04/01/2014No. 13

- 60464 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 t heir 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 f acilities compared to Margaret Green Junior High and Cleveland High School

. T he district court then rejected both the District’s proposed desegregation plan and the United States’s proposed alternative of c onsolidation, and adopted a new plan not previous ly suggested. Finding that “the attendance zones, as defined by the former railroad tracks in Cleveland, perpetuate vestiges of racial segregation,” t he district court adopted a plan that abolished the attendance zones and majority

- to

- minority transfer pr ogram 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 inad equate 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

c onstitutionally 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 de c reased integration due to “white fl ight” from 5 Case: 13-60464 Document: 00512581384 Page: 5 Date Filed: 04/01/2014No. 13

- 60464 the District , as mandatory consolidation would lead to white parents leaving the District or placing their children in to private schools

. While the Rule 59

mo tion was pending, the District submitted pre

- enrollment data for the 2013

- 14 school year . A s of April 1, 2013 , a p proximately 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

- enroll ed there. In addition to noting the obvious racial imbalance suggested by this data, the United States pointed ou t that, depending upon where the undecided African

American students chose to pre

- enroll, there was a real possibility that Marg a ret Green Junior High School and Cleveland High School might be oversubscribed and D.M. Smith Middle School and East Side High School would not have enough students to operate economically. Th e district court denied the Rule 59 motion. It stated that it had considered the pre

- enrollment data and the response of the United States but that it would not alter its judgment . In reac hing this conclusion, the district court stated that it “gives credence to the testimony of the African

- American president of the District’s school board, Maurice Lucas.” Mr. Lucas had testified that he did not support consolidation, because it was not hi s intention to eliminate East Side High School and that he believed the identity of the two high schools was important to the community

. T he United States appeal s the district court ’ s order instituting the freedom of choice plan as a desegregation remedy

. Neither the United States nor the District appealed the district court’s March 28, 2012 memorandum opinion, which found that the District had achieved integration at many of its

6 Case: 13-60464 Document: 00512581384 Page: 6 Date Filed: 04/01/2014No. 13

- 60464 schools but found continuing segregation at East Side High School and D.M. Smith Middle School

. 3 II. Analysis “Failure on the part of school authorities to implement a constitutionally prescribed unitary school system brings into play the full panoply of the trial court’s remedial power.” Valley v. Rapides Parish Sch. Bd ., 702 F.2d 1221, 1225 (5th Cir. 1983) (citing Swann v. Charlotte

- Mecklenburg Board of Education , 402 U.S. 1 (1971) ). We review the district court’s implementation of desegregation remedies for abuse of discretion

. Id . We review c onclusions of law de no vo , and findings of fact for clear error. Id. Here, neither party challenge d the dist rict court’s determination s that a new plan should be administered to desegregate D.M. Smith Middle School and East Side High School , and that further remedies were not necessary in the District’s elementary schools. On appeal, t he United States asks us to remand so that the district court can consider alternative plans to desegregate D.M. Smith and East Side High , including consolidation , while the District requests tha t we affirm the implementation of the freedom of choice plan

. In desegregation cases, the objective is “ to eliminate from the public schools all vestiges of state

- imposed segregation.” Swann , 402 U.S. at 15. “The transition to a unitary, nonracial sys tem of public education was and is the ultimate end to be brought about.

. . . ” Green v. Cnty. Sch. Bd. of New Kent

3 The district court also determined that, despite its good faith effort, the District was not in compliance with the faculty assignment component of the extant desegreg ation orders. The district court ordered the District to submit a plan with “real prospects for achieving a ratio of African

- American to Caucasian teachers and administration in each school to approximate the race ratio throughout the districtwide school system.” However, the subsequent order regarding the desegregation remedy failed to address faculty assignment,
an issue the parties only briefly mention on appeal. On remand, the district court should clarify the status of this issue, particularly wheth er there is a continuing violation, and if so, the remedy to be implemented. 7 Case: 13-60464 Document: 00512581384 Page: 7 Date Filed: 04/01/2014No. 13

- 60464 Cnty., Va ., 391 U.S. 430, 436 (1968 ). The duty is not simply to eliminate
express racial segregation: where de jure segregation existed , the school district’s duty is to eliminate its effects “root and branch.” I d

. at 437

- 38. Now,

s ix decades after Brown v. Topeka Board of Education , 347 U.S. 483 (1954) , “[t]he burden on a school board today is to come forward with a plan that promises r ealistically to work, and pro mises realistically to work now
. ” Green , 391 U.S. a t 439; see Davis v. E. Baton Rouge Parish Sch. Bd ., 721 F.2d 1425, 143 7 (5th Cir. 1983). A freedom of choice plan is not necessarily an unreasonable remedy for eliminating th e vestiges of state

- sponsored segregation, but it has historically proven to be an ineffective desegregation tool. See Green , 391 U.S. a t 4 39

- 40. Likewise, some ra cially homogeneous schools within a school system do not necessarily violate the federal Constitution. See Swann , 402 U.S. at 25

- 26; Vall ey , 702 F.2d at 122 6 ; see also Flax v. Potts , 915 F.2d 155, 160

- 6 2 (5th Cir. 1990)

. However, “ [t]h e retention of all

- black or virtually all

- black schools within a dual system is nonetheless unacceptable where reasonable alternatives may be implemented. ” Valley , 702 F.2d at 1226

. The retention of single

- race schools may be particularly unacceptable where, as here, the district is relatively small, the schools at issue are a single junior high school and a single high school , which have never been meaningfully desegregated and which are located le ss than a mile and a half away from the only other junior high school and high school in the district , and where t he original
purpose o f this configuration of schools was to segregate the races. Apart from the fact that Cleveland has not sought a declaration of unitary status and has not challenged the district court’s conclusion that further remedies are necessary, o n the record now before us, the situation in Cleveland is distinguishable from those where we have found that the retention of some

one - race schools did not preclude a declaration of unitary status. See Flax , 915 8 Case: 13-60464 Document: 00512581384 Page: 8 Date Filed: 04/01/2014No. 13

- 60464 F.2d at 161 ( finding that fourteen schools that were over 80% black did not preclude declaration of unitary status in large urban district with 98 total schools , where it was “essentially uncontroverted” that the district had succeeded in “removing the vestiges of the dual system”) ; Ross v. Houston Independent School District , 699 F.2d 218 , 226

- 28 (5th Cir. 1983) (finding that thirty

- three schools that were 90% black did not preclude declaration of unitary status in large urban district with 226 schools facing “ unusual, perhaps unique, problems , ” in cluding rapidly changing demographics and housing patterns). We acknowledge that confecting a remedy in these types of cases can be especially difficult. No matter how noble the effort, the effect can be less than adequate. Unlike the district court’s earlier opinion finding that further remedies were necessary, the remedial order adopting the freedom of choice plan lacks explanation. While we are “mindful that the scope of a district court’s equitable power to remedy past w rongs is broad, for breadth and flexibility are inherent in equitable remedies, ” Valley , 702 F.2d at 1225 (internal quotation marks omitted) (quoting Swann , 402 U.S. at 15), we are unable to evaluate the soundness or reasoning of the decision, where it is not discussed in the opinion. Although we do not hold that the freedom of choice plan is necessarily inadequate, there are apparent deficiencies in the plan that were not addressed by the district court. First, there was no evidence or explanation indicating that the freedom of choice plan was likely to work, and

a ll the available empirical evidence indicates that the plan is not likely to contribute to meaningful desegregation at D.M. Smith Middle School or East Side High School

. African

- American students residing in the eastern attendance zone have availed themselves of the now abolished majority

- to

minority transfer policy over the years, but in the nearly five decades in which the District has been under federal court supervision, not one white student 9 Case: 13-60464 Document: 00512581384 Page: 9 Date Filed: 04/01/2014No. 13

- 60464 has ever voluntarily transferred to D.M. Smith Middle School or East Side High School. T he pre

- enrollment data for the 2012

- 13 school year , submitted while the Rule 59 motion was pending, indicated that the order had no effect on the status quo: n o white student pre

- enrolled at D.M. Smith or East Side High

. Albeit not part of the record before the district court, the District at oral argument acknowledged that the plan has now been in effect for over a year, and no white student ha s enrolled at D. M. Smith or East Side High. In defending the freedom of choice plan on appeal , the District does not even forcefully argue that the plan is likely to work at D.M. Smith Middle School and East Side H igh School , instead focusing on its successes at other sc hools in the district

. Lastly , the district court did not explain its reasoning for rejecting the Distric t’s proposed desegregation plan of r evitalizing and expanding magnet programs at the black schools , o r the United States’s proposed remedy of c onsolid ation , a nd instead adopt ed a freedom of choice plan that neither party had suggested. The district court encouraged the District to continue to strengthen its magnet programs but did not order the magnet program plan to be implemented

. “The findings and conclusions we review must be expressed with sufficient particularity to allow us to determine rather than speculate that the law has been correctly applied.” Davis v. E. Baton Rouge Parish Sch. Bd ., 570 F.2d 1260, 1263

- 64 (5th Cir. 1978)

. The district court did not make clear its conclusion that the problem of the continuing racial isolation and racial identifiability of D.M. Smith Middle School and East Side High School would be resolved by the implementation of a freedom of choice plan

. We do not hold that the freedom of choice plan is constitutionally inadequate or could form no part of a desegregation plan. But the district court should consider, review and explain why it is discarding some remedies in favor of others. I f the distr ict court concluded that the freedom of choice plan was likely to be successful, it 10 Case: 13-60464 Document: 00512581384 Page: 10 Date Filed: 04/01/2014No. 13

- 60464 must explain why and consider the contradictory evidence in the record. On appeal, the District strongly implies that, essentially, there is no more that it can do to dese gregate D.M. Smith and East Side High. The district court, however, c oncluded that the District should remain under federal supervision and ordered the District to propose a new desegregation plan for those two schools. Further, the District has not move d for unitary status. However, if the district court’s remedy is premised on a conclusion that , aside from the freedom of choice plan, there is no thing more that the District can or should do to desegregate D.M. Smith and East Side High , that conclusion s hould be justified

. If the district court’s order is premised on avoiding “white flight” that may occur as a result of other proposed remedies such as consolidation , it must grapple with the complexities of that issue. See United States v. Pittman by Pit tman , 808 F.2d 385, 391 (5th Cir. 1987) (noting that w hite flight may be one legitimate concern “when choosing among constitutionally permissible plans” but “cannot be accepted as a reason for achieving less than complete uprooting of the dual public schoo l system ”). While we do not require the district court to provide us a granular report regarding every option considered , t he district court should sort through the various proposed remedies, exclude those that are inadequate or infeasible and ultimately adopt the one that is most likely to achieve the desired effect: desegregation. Given the available statistics showing that not a single white student chose to enroll at D.M Smith or East Side High after the district court’s order, and th at historically, over the course of multiple decades, no white student has

ever chosen to enroll at D.M. Smith or East Side High, the district court’s conclusion that a freedom of choice plan was the most appropriate desegregation remedy at those schools c ertainly needed to be expressed with sufficient particularity to enable us to review it

. See Davis , 570 F.2d at 1263

- 64. We therefore reverse and remand for a more explicit explanation of the 11 Case: 13-60464 Document: 00512581384 Page: 11 Date Filed: 04/01/2014No. 13

- 60464 reasons for adopting the freedom of choice plan, and/or for co nsideration of the alternative desegregation plans proposed by the parties, as appropriate. III. Conclusion For the foregoing reasons, we REVERSE and REMAND to the district court for further proceedings consistent with this opinion.

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