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Case citation:  Cowan v. Cleveland School Dist.,      F.3d      , 2014 WL 1302620 (5th Cir. 2014).

Summary: The Cleveland School District was 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 over the ensuing decades, the district court has supervised the district’s desegregation efforts through a series of court orders.

The United States filed a motion in May 2011, arguing that the district was not in compliance with the desegregation orders. The United States challenged only the district’s non-compliance with the student assignment and faculty assignment components of the desegregation orders.  Under the relevant court orders, 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.

On March 28, 2012, the trial court determined that the district had achieved desegregation in many of its schools, particularly within the district’s six elementary schools.  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 had never been meaningfully desegregated but had been racially identifiable, almost exclusively black schools.

The district submitted its proposed desegregation plan for the 2012-13 school year in May 2012, proposing new magnet programs and revitalization of existing magnet programs at D.M. Smith and East Side High School.  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 plan, claiming that the magnet programs did not and would not attract white students in significant numbers.  Instead, the United States recommended consolidation of the schools into one junior high and one high school for the entire district.

The trial court rejected both the district’s proposed desegregation plan and consolidation proposed by the United States. Instead, it adopted a new plan not previously suggested.   Finding that “the attendance zones, as defined by the former railroad tracks in Cleveland, perpetuated 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 allowed each student in the district to choose to attend any junior high or high school.  The United States asked the trial court to reconsider its ruling and argued that the appropriate solution was consolidation.  The district responded 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. The trial court ultimately ordered the district to adopt the freedom of choice plan and the United States appealed to the Fifth Circuit Court of Appeals.

On appeal, 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 asked that the case return to the trial court to consider alternative plans to desegregate D.M. Smith and East Side High, including consolidation.  The district requested that the appeals court affirm implementation of the freedom of choice plan.

Ruling:  The Fifth Circuit returned the case to the trial court for a more explicit explanation of the reasons for adopting the freedom of choice plan, and/or for consideration of the alternative desegregation plans proposed by the parties.  The appeals court observed that, in desegregation cases, the objective is “to eliminate from the public schools all vestiges of state-imposed segregation.”

According to the court of appeals, 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.  The appeals court stated:   “[t]he retention of all-black or virtually all-black schools within a dual system is nonetheless unacceptable where reasonable alternatives may be implemented . . . 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.”

In this case, the trial court’s order adopting the freedom of choice plan lacked explanation.   As a result, the court of appeals was unable to evaluate the soundness or reasoning of the decision.  For example, there was no evidence or explanation indicating that the freedom of choice plan was likely to work, and all the available empirical evidence indicated that the plan was not likely to contribute to meaningful desegregation at D.M. Smith Middle School or East Side High School.  In addition, the trial 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 proposal for consolidation by the United States.  Instead, the court adopted a freedom of choice plan that neither party had suggested. The appeals court, therefore, returned the case to the trial court for a more explicit explanation of the reasons for adopting the freedom of choice plan, and/or for consideration of the alternative desegregation plans proposed by the parties.