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, the United States 

appeals the district court’s order implementing a freedom of choice plan 

intended to desegregate the formerly de jure African-American middle school 

and high school in the Cleveland School District (“the District”). We reverse 

and remand for further consideration of the desegregation remedy.

I. Factual and Procedural Background

The Cleveland School District encompasses the southeast area of Bolivar 

County in the Mississippi Delta, including the city of Cleveland, the towns of 

United States Court of Appeals

Fifth Circuit

FILED

April 1, 2014

Lyle W. Cayce

Clerk

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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 racebased de jure segregation in education. Under that system, African-American 

students were required to attend schools on the east side of the railroad tracks 

that run north to south through Cleveland, while white students attended 

schools on the west side of town. The original plaintiffs in this case sued in 

1965 to enjoin the District from maintaining segregated schools, and the 

district court ordered the District to submit a desegregation plan to dismantle 

the dual school system and remedy the continuing effects of segregation. The 

United States intervened in 1985. Over the ensuing decades, the district court 

has supervised the desegregation efforts in the District through a series of 

desegregation orders.1 The present appeal concerns D.M. Smith Middle School 

and East Side High School, the formerly de jure African-American junior high 

and high school in the District, which are located near each other on the east 

side of town.2 The formerly de jure white junior high and high school, Margaret 

Green Junior High and Cleveland High School, are located adjacent to each 

other on the west side of town. 

The United States filed a motion in May 2011, arguing that the District 

was not in compliance with the extant desegregation orders and requesting 

further relief. The desegregation orders contain a number of components, but 

the United States challenged only the District’s non-compliance with the 

1 The details of these orders are recounted at length in the district court’s thorough 

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 

orders 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. 

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student assignment and faculty assignment components of the desegregation 

orders. In relevant part, with regard to junior high and high school student 

assignment, the previous desegregation orders created east and west 

attendance zones, bounded by the railroad tracks in the center of town: all 

students living west of the tracks attended Margaret Green Junior High and 

Cleveland High School, while all students living east of the tracks attended 

D.M. Smith Middle School and East Side High School. The orders also included 

a majority-to-minority transfer policy requiring the District to encourage and 

permit students in the racial majority at one school to transfer if they would 

be in the racial minority at the other school. The faculty assignment 

component of the desegregation orders provided that the faculty and 

professional staff at each school should reflect the districtwide ratio of minority 

and nonminority faculty and professional staff to the extent feasible. 

In a thorough, well-reasoned March 28, 2012 memorandum opinion, the 

district court analyzed whether the District was in compliance with the 

student assignment and faculty assignment components of the desegregation 

orders. Cowan ex rel. Johnson v. Bolivar Cnty. Bd. of Educ. (Cowan I), 914 F. 

Supp. 2d 801 (N.D. Miss. 2012). It determined that the District had achieved 

desegregation in many of its schools, particularly within the District’s six 

elementary schools. It noted the District’s success in attracting white students 

to its formerly de jure African-American elementary schools through magnet 

programs and magnet schools. It also found that the District’s formerly de jure

white junior high and high school, Margaret Green Junior High School and 

Cleveland High School, were desegregated. However, the district court found 

that a new plan was needed to eliminate segregation at D.M. Smith Middle 

School and East Side High School, which have never been meaningfully 

desegregated but have always been and continue to be racially identifiable, 

almost exclusively black schools. Although white enrollment in the District 

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has held steady around 29% in recent years, the student population at D.M. 

Smith and East Side High is now and has always been between 98% and 100% 

black. 

The District submitted its proposed desegregation plan for the 2012-2013 

academic year in May 2012. The District proposed to create new magnet 

programs and revitalize existing magnet programs at D.M. Smith and East 

Side High. The proposed plans consisted of offering specialized or advanced

classes only at D.M. Smith Middle School and East Side High School, and 

recommitting to the International Baccalaureate programs at both schools in 

order to attract students enrolled at Margaret Green Junior High School and 

Cleveland High School, and to attract students graduating from the successful 

magnet programs at the elementary schools. Parts of the District’s plan called 

for white students to attend D.M. Smith or East Side High for certain classes 

or for part of the day, without enrolling full time at those schools. The United 

States objected to the District’s plan, claiming that the magnet programs did 

not and would not attract white students in significant numbers and the 

District’s plan would not meaningfully integrate the schools. The United 

States also argued that consolidation of the schools into one junior high and 

one high school for the entire District would accomplish the objectives set forth 

by the district court. 

The district court held a hearing on the adequacy of the District’s 

proposed plan in December 2012. Beverly Hardy, an elementary school 

principal and director of the magnet program, and Maurice Lucas, president of 

the school board, testified in favor of the District’s plan. Hardy explained how 

the magnet programs at the schools would work, and Lucas explained why the 

school board chose its plan, claiming that the magnet programs were likely to 

be successful. He also testified that the school board had not considered 

consolidation. The United States called Reverend Edward Duval, Lenden

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Sanders and Tonya Short, parents of children attending East Side High School 

and D.M. Smith Middle School. These witnesses opposed the District’s plan, 

generally testifying that the schools on the east side of town were not 

academically challenging for their children, that there was a continuing stigma 

associated with attending those schools, and that the public consensus was in 

favor of consolidation.

The district court issued its memorandum opinion regarding the 

desegregation remedy on January 24, 2013. Cowan ex rel. Johnson v. Bolivar 

Cnty. Bd. of Educ. (Cowan II), 923 F. Supp. 2d 876 (N.D. Miss. 2013). The 

district court detailed observations from its site visit to the Cleveland schools, 

noting that D.M. Smith and East Side High had equal or better facilities

compared to Margaret Green Junior High and Cleveland High School. The 

district court then rejected both the District’s proposed desegregation plan and 

the United States’s proposed alternative of consolidation, and adopted a new

plan not previously suggested. Finding that “the attendance zones, as defined 

by the former railroad tracks in Cleveland, perpetuate vestiges of racial 

segregation,” the district court adopted a plan that abolished the attendance 

zones and majority-to-minority transfer program and implemented a freedom 

of choice plan that allows each student in the district to choose to attend any 

junior high or high school. 

Shortly thereafter, the United States filed a Rule 59 motion to alter the 

judgment. It maintained, as it does on appeal, that the freedom of choice plan 

was constitutionally inadequate and again argued that the appropriate

solution was consolidation. The District responded, as it does on appeal, by 

defending the freedom of choice plan. It argued that the plan was 

constitutionally adequate and that the United States had not offered evidence 

that the plan would not work. It also argued that a mandatory consolidation 

plan would ultimately result in decreased integration due to “white flight” from 

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the District, as mandatory consolidation would lead to white parents leaving 

the District or placing their children into private schools. While the Rule 59 

motion was pending, the District submitted pre-enrollment data for the 2013-

14 school year. As of April 1, 2013, approximately three-quarters of the 

District’s eligible junior high and high school students had pre-enrolled. Of 

those that had pre-enrolled, not one white student chose to pre-enroll at East 

Side High School, but 216 African-American students pre-enrolled at that 

school. Similarly, not a single white student pre-enrolled at D.M. Smith 

Middle School, but 134 African-American students pre-enrolled there. In 

addition to noting the obvious racial imbalance suggested by this data, the 

United States pointed out that, depending upon where the undecided AfricanAmerican students chose to pre-enroll, there was a real possibility that 

Margaret 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. The 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 reaching 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 his intention to eliminate East Side High 

School and that he believed the identity of the two high schools was important 

to the community. 

The United States appeals 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 

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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 conclusions 

of law de novo, and findings of fact for clear error. Id. Here, neither party 

challenged the district court’s determinations 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, the 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 that 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 system 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 desegregation 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 whether there is a continuing violation, and if so, 

the remedy to be implemented.

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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.” Id. at 437-38. Now, 

six 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 realistically to work, and promises realistically to work now.” Green, 

391 U.S. at 439; see Davis v. E. Baton Rouge Parish Sch. Bd., 721 F.2d 1425, 

1437 (5th Cir. 1983). 

A freedom of choice plan is not necessarily an unreasonable remedy for 

eliminating the vestiges of state-sponsored segregation, but it has historically 

proven to be an ineffective desegregation tool. See Green, 391 U.S. at 439-40. 

Likewise, some racially homogeneous schools within a school system do not 

necessarily violate the federal Constitution. See Swann, 402 U.S. at 25-26; 

Valley, 702 F.2d at 1226; see also Flax v. Potts, 915 F.2d 155, 160-62 (5th Cir. 

1990). However, “[t]he 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 less than a mile and a half away from the only other 

junior high school and high school in the district, and where the original 

purpose of 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, on 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 

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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,” including 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 wrongs 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 

all 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-tominority 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 

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has ever voluntarily transferred to D.M. Smith Middle School or East Side 

High School. The 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: no 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 has 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 High School, instead focusing on its successes at other schools 

in the district. Lastly, the district court did not explain its reasoning for 

rejecting the District’s proposed desegregation plan of revitalizing and 

expanding magnet programs at the black schools, or the United States’s 

proposed remedy of consolidation, and instead adopted 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. If the district 

court concluded that the freedom of choice plan was likely to be successful, it 

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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 desegregate D.M. Smith and East Side High. The district court, 

however, concluded 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 moved 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 nothing more that the District can or should do

to desegregate D.M. Smith and East Side High, that conclusion should 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 

Pittman, 808 F.2d 385, 391 (5th Cir. 1987) (noting that white 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 school system”). While we do not require the district court 

to provide us a granular report regarding every option considered, the 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 that 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 certainly 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 

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reasons for adopting the freedom of choice plan, and/or for consideration 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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