Moore et al v. Tangipahoa Parish School Board et al
Filing
1576
ORDER AND REASONS: IT IS ORDERED that the 1568 motion is DENIED without prejudice to reurge in six (6) months provided there are no compliance issues during that time, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 04/30/2019. (am)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOYCE MARIE MOORE, ET AL.
CIVIL ACTION
VERSUS
NO. 65-15556
TANGIPAHOA PARISH SCHOOL BOARD
SECTION "B"(1)
ORDER AND REASONS
Defendant Tangipahoa Parish School Board (the “Board”) filed
a
“Motion
for
Unconditional
Unitary
Status
and
Judgment
of
Dismissal as to Staff Assignment and/or Alternatively, Motion for
Relief from Staff Hiring Procedures.” Rec. Doc. 1568. Plaintiffs
did not file an opposition. For the reasons discussed below,
IT IS ORDERED that the motion is DENIED without prejudice to
reurge in six (6) months provided there are no compliance issues
during that time.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Board filed its original motion for unitary status in the
area of staff assignment on March 13, 2015. Rec. Doc. 1241. On
June 22, 2015, this Court determined that the Board materially
complied
with
pertinent
consent
decrees
and
met
established
desegregation standards. Rec. Doc. 1278 at 3. We found that the
Board had “progressively worked in good faith to attain the 40-60
diversity goal set forth in Rec. Doc. No. 866 with respect to staff
assignments for a three year period in that area.” Id. (citations
and
footnote
omitted).
Accordingly,
1
this
Court
provisionally
granted the motion, subject to compliance reviews during the
ensuing twelve months. Id. This Court further provided that we
would consider an unconditional grant of unitary status “if no
major
compliance
issues
ar[o]se
during
the
applicable
review
period.” Id. at 4 (citations omitted).
On June 28, 2016, the Board filed its second motion for an
unconditional grant of unitary status. Rec. Doc. 1410. The Court
ordered the Board to submit supplemental briefing regarding staff
assignment complaints filed during the one-year review period, and
the Board timely complied with that request. Rec. Docs. 1419, 1422.
On
August
30,
dismissing
the
prejudice.
Rec.
2016
the
Board’s
Doc.
Court
entered
motion
1425.
We
for
an
Order
unitary
recognized
that
and
Reasons
status
without
administrative
personnel were not assigned in a manner that tended to show that
any school was intended only for black or white students, and that
the Board met this Court’s diversity goal from 2013 through 2016.
Id. at 5 (citing Rec. Docs. 1410-1, 1412-5, 1412-6), Id. at 6
(citing Rec. Doc. 1410-6). Further, the Board produced evidence
that its personnel policies supported non-discriminatory hiring
practices and that there was a system for filing discrimination
complaints. Id. at 6-7 (citing Rec. Doc. 1410-2). However, the
Court remained concerned about whether complaints filed within the
twelve-month provisional review period revealed any substantial
violations of this Court’s desegregation orders. Rec. Doc. 1425 at
2
7. Supplemental information provided by the Board did not eliminate
these concerns because the Board failed to submit documentation to
support its claim that three as yet unresolved grievances would
result in findings of no violation. Id. The Court was unwilling to
grant unitary status without such supporting documentation and
dismissed the motion without prejudice, further stating that any
subsequent
motion
for
unconditional
unitary
status
needed
to
include supportive factual documentation. Id. at 9-10.
On February 17, 2017, the Board filed a third motion for
unconditional unitary status, arguing that the three previously
unresolved grievances had been decided in its favor or decisions
in its favor were supported by proper documentation. Rec. Doc.
1450. Although plaintiffs did not file an opposition to the motion,
they did file an objection to the CCO’s recommendation concerning
a
grievance
filed
by
Mildred
Johnson
and
a
separate
motion
requesting relief from the Board’s interim appointment procedures.
Rec. Docs. 1463, 1464. On July 21, 2017 the Court issued an Order
and Reasons dismissing without prejudice the Board’s third motion
for unitary status. Rec. Doc. 1471. The Court found that the Board
had shown compliance in two of the three grievances filed during
the twelve-month review period, but the third complaint, filed by
C.S., suggested a major compliance issue. Id. at 12. Additionally,
the
Court
overruled
plaintiffs’
objection
regarding
Johnson’s
application and affirmed the CCO’s recommendation. Id. at 22. The
3
Court further ordered the parties to submit supplemental briefing
to the CCO to help the CCO and ultimately the Court determine
whether the Board’s use of interim staff appointments violates
applicable
laws
and
orders
in
the
area
of
staff
assignment,
including the provisional grant of unitary status. Id. at 24-25.
In his 2016-2017 report, the CCO discussed the Board’s use of
interim appointments stating that it was not an optimal approach,
but he believed there were limited circumstances that warranted
interim placements. Rec. Doc. 1484 at 23-24. However, the CCO also
expressed concern that the Board appeared to have adopted a broad
view
of
when
the
interim
process
may
be
used
that
was
not
authorized by the Court’s staff hiring order. Id. The CCO also
identified a problem with advertising one instead of multiple
positions when multiple positions are actually available, which
may
serve
to
suppress
the
potential
pool
of
qualified
black
applicants. Id. at 33. Because the CCO’s investigation was ongoing,
the Court ordered the CCO to file updated findings by the end of
March 2018. Rec. Doc. 1510. The CCO then timely filed an updated
report on the Board’s use of interim appointments, concluding that
while no single instance of interim hiring represented a compliance
issue, the unfettered use of such appointments seemed to frustrate
the intention of the staff hiring order. Rec. Doc. 1525 at 4-10.
The CCO recommended ordering the parties, CCO, and CDIO to meet
and develop a procedure for interim hiring. Id. at 15. The CCO
4
also faulted the Board for hiring multiple assistant principals at
schools where it had only advertised one available position. Id.
at 110-11. After reviewing the CCO’s recommendation and the Board’s
objections, the parties, CCO, and CDIO were directed to develop a
proposed
framework
for
interim
appointments
and
offer
a
recommendation to the Court. Rec. Doc. 1544 at 19. Furthermore,
while agreeing with the CCO that the Board should have advertised
every open position when there were multiple available positions,
we found that the Board’s error in failing to do so was made in
good faith and minimally excusable in this limited instance. Id.
at 22-23. The Board was warned that future claims of good faith
error may not be similarly favorably viewed. Id. Consistent with
aforementioned directives, the CCO submitted a proposed framework
for
interim
staff
appointments,
which
was
adopted
without
objection on August 22, 2018. Docs. 1548, 1549.
Four months later December 28, 2018 the Board filed the
instant fourth motion for unconditional unitary status. It claimed
the absence of a major violation of consent decrees and court
orders entitled full termination of judicial supervision in the
area of staff assignment. Rec. Doc. 1568. In the alternative, the
Board moves to terminate the hiring procedures relative to staff
assignment, claiming existence of clear and convincing evidence of
material
compliance.
Id.
at
4.
objection.
5
Plaintiffs
have
not
filed
an
THE PARTIES’ CONTENTIONS
The Board argues that because plaintiffs’ issues related to
the
Mildred
Johnson
grievance
and
the
procedure
for
interim
appointments have been resolved, the staff assignment issue is now
in a posture for final consideration for full and unconditional
unitary status. Rec. Doc. 1568-1 at 10. The Board states that it
has continued its good faith compliance with the staff employment
procedure and progress in meeting the 40-60 diversity goal for
staff as first laid out in Order 866, which was also previously
recognized by the Court in the 2015 provisional grant of unitary
status. Id. at 11. The Board notes that its implemented employment
process includes “a broad recruiting practice, utilization of the
bi-racial Interview Committee, all required notices to the CCO and
Plaintiffs’ counsel, and, where applicable, the Superintendent’s
recommendation letter.” Id. Additionally, the Board asserts that
it has met and/or exceeded the diversity goal for staff to the
extent
practicable,
as
well
as
for
principal
and
assistant
principals. 1 Id. The Board also states that it has acted in good
faith and without violation of the Court’s orders with regard to
interim
appointments.
Id.
at
12.
1
The
Board
asserts
that
“In school year 2015-2016, the Board employed 43% black/57% white in the
positions subject to Order 866. In the past three (3) years since the Court’s
original findings, the Board has employed in those positions: 2016-2017 - 37%
black/63% white; 2017-2018 - 43% black/57% white; and 2018-2019 - 42%
black/58% white. Further, in the categories of principal and assistant
principal (i.e., school-level administrators), the Board has met and exceeded
the 40% goal for six (6) years.” Rec. Doc. 1568-1 at 11-12.
6
Superintendent Melissa Stilley assessed the practice of utilizing
interim appointments upon assuming her role in June 2018 and
decided
to
discontinue
the
practice
except
under
exigent
circumstances. Id. at 13. Since that time, the Board avers that a
number of vacancies have occurred and Superintendent Stilley has
not appointed interims and has instead instituted the employment
process
and
positions
have
remained
vacant
until
filled
in
accordance with Order 866. Id. The Board further notes that if an
emergency
situation
necessitating
appointment
of
an
interim
arises, Superintendent Stilley will be guided by the framework
adopted by the Court. Id. The Board also asserts that it has
demonstrated
good
faith
compliance
with
the
Court’s
orders
regarding the advertisement of multiple positions. Id. at 14. The
Board
states
that
after
the
Court’s
order
regarding
the
advertisement issue (Rec. Doc. 1544), on December 14, 2018 the
Administration conferenced with the affected assistant principals
and advised them that pursuant to the order, their respective
positions will be vacated at the conclusion of their contract term
in June 2019. Id. The Board asserts that the Administration will
select new assistant principals through the interview process by
June 2019. Id. Since the Court’s order, the Board avers that the
Administration has advertised for more than one of a position type
and identified that multiple positions were being filled. Id. at
15. Finally, the Board notes that since the Court’s last order,
7
all of Mildred Johnson’s grievances have been resolved in favor of
the Board. Id. The Board states that the CCO issued a Report and
Recommendations on August 6, 2018 that found the Board had not
violated any court order as to Johnson’s 2014 and 2018 grievances
and neither Johnson nor Plaintiffs sought review of this finding.
Id.
Alternatively, the Board argues it has met or exceeded the
40-60 diversity goal for school level administrators set forth by
Order 866 in all categories other than central office supervisory
personnel for six (6) years. It therefore seeks relief from hiring
procedures with respect to those positions. Id. at 16. The Board
avers that the fact that it has not met the hiring goal in the
central office does not mean it is not entitled to relief from 866
hiring because Fifth Circuit precedent prohibits arbitrary racial
quotas, and the Board has, to the extent practicable, met the
Court’s 40-60 diversity goal. Id. at 17. Furthermore, the Board
argues that the Court’s Order 866, by its own terms, terminates
when the Board meets the staffing goal contained therein, which it
has, to the extent practicable. Therefore, the Board states that
although it has continued to follow the hiring procedures in good
faith, it is entitled to relief from Order 866 hiring procedures
with respect to school level administrative positions. Id.
Additionally, the Board states that the three (3) pending
objections to the CCO’s staff hiring Reports and Recommendations
8
should not prevent it from obtaining unitary status in staff
assignment. Id. at 17-18. The Board asserts that it cannot prevent
a disgruntled employee or applicant from filing a grievance, but
the mere filing of a grievance does not demonstrate that it is not
in compliance with desegregation obligations. Id. at 18. The Board
states that applicants who feel wronged have remedies beyond filing
a
grievance,
such
as
by
filing
their
own
lawsuit
alleging
discrimination. Id. at 19. Furthermore, the Board notes that no
grievance since Order 866 was entered has resulted in a finding
that the Board discriminated against an applicant on the basis of
race. Id.
LAW AND ANALYSIS
District courts may declare unitary status incrementally as
“remedies must be narrowly structured to address the scope of a
violation.” Flax v. Potts, 915 F.2d 155, 158-59 (5th Cir. 1990).
“[C]onsequently,
once
the
need
for
close
supervision
of
a
particular facet of a school desegregation plan ceases, a court
must not continue to supervise that particular facet.” Id. In
deciding a motion for unitary status, the ultimate inquiry for the
court is “’whether the [constitutional violator] ha[s] complied in
good faith with the desegregation decree since it was entered, and
whether the vestiges of past discrimination ha[ve] been eliminated
to the extent practicable.’” Freeman v. Pitts, 503 U.S. 467, 492
(1992). It is well established that defendants bear the burden of
9
proof on their compliance with remedial orders. See id. at 494. In
exercising its discretion, the district court must consider the
following factors:
(1)
whether
there
has
been
full
and
satisfactory
compliance with the remedial order in those aspects
of the system where supervision is to be withdrawn;
(2)
whether retention of judicial control is necessary or
practicable to achieve compliance with the remedial
order in other facets of the school system; and
(3)
whether the school district has demonstrated its good
faith commitment to the whole of the court's remedial
order
and
to
those
provisions
of
law
and
the
constitution that were the predicate for judicial
intervention in the first instance.
See id. at 491.
This Court’s prior order modifying the desegregation plan
provided that “the school district may move the court for a
declaration of unitary status when compliance is achieved with
applicable legal requirements pertaining to the nondiscriminatory
assignment of administrative personnel.” Rec. Doc. 876 at 20. The
primary legal requirements in this area are that: (1) “a school
must show that . . . staff who work directly with children are
assigned in such a manner that the racial composition of the
faculty and staff would not indicate that the school is intended
10
for
either
African-American
or
white
students;”
and
(2)
“discrimination on the basis of race, color or national origin in
the hiring, assignment, promotion, pay, demotion or dismissal of
. . . administrative staff is prohibited.” Anderson v. Sch. Bd. of
Madison Cty., 517 F.3d 292, 303 (5th Cir. 2008) (internal quotation
marks omitted) (citing Singleton v. Jackson Mun. Separate Sch.
Dist., 419 F.2d 1211, 1217-18 (5th Cir. 1969) (en banc), rev’d in
part sub. nom., Carter v. West Feliciana Parish Sch. Bd., 396 U.S.
290, (1970); Fort Bend Ind. Sch. Dist. V. Stafford, 651 F.2d 1133,
1138 (5th Cir. 1981)). Accordingly, this Court granted the Board’s
motion for
relief
and
ordered
that
when
vacancies
occur
for
principals, central office administrators, or other supervisory
positions, “the school system shall hire or appoint a qualified
Black person who has submitted an application to fill them to
achieve a diversity goal of 40 percent Black and 60 percent white
in each category . . .” Rec. Doc. 866 at 2; see also Rec. Doc.
853.
A. Compliance with Legal Requirements
When provisional unitary status was declared in the area of
staff assignment in 2015, the record seemingly showed that the
Board had materially complied with its desegregation obligations
in this area. Rec. Doc. 1278. When we considered the issue in 2016,
we again found that the Board appeared to be in substantial
compliance
with
its
legal
requirements
11
based
on:
a)
staff
demographics showing that school site administrative personnel
have not been assigned in a manner that tends to show any school
is intended only for Black or white students; b) demographic data
demonstrating that overall, and in two out of three categories
(excluding central office staff), the Board continues to meet the
diversity goal; and c) the fact that the Board demonstrated its
personnel policies continue to support non-discriminatory hiring
practices and that it has a system in place for filing complaints
or
grievances
concerning
discriminatory
hiring,
assignment,
promotion, pay, demotion or dismissal of staff members. Rec. Doc.
1425 at 5-7. The Board again provides demographic data seeming to
show its partial compliance with the diversity goal overall and in
two of the three categories, again excluding central office staff,
and states that it continues to implement Order 866’s hiring
procedures. See Rec. Docs. 1568-3, 1568-4 at 33.
The provisional grant of unitary status was declared in 2015
even though the central office staff had not yet reached the 40/60
goal. However, in the years prior to the 2015 grant of provisional
unitary status there had been steady improvement in the central
office’s statistics each year (09-10: 14/86, 10-11: 21/79, 11-12:
21/79, 12-13: 21/79, 13-14: 29/71, 14-15: 31/69). That improvement
continued when the Board reurged its motion for unitary status in
2016 (15-16: 33/67). However, improvement did not continue in the
next three years leading up to the instant motion (16-17: 15/85,
12
17-18: 24/73, 18-19: 27/73). Instead, it seems the demographics
slipped after the 2015-2016 year and are now at roughly the same
levels as, if not slightly lower than, the three years leading up
to the 2015 grant of provisional unitary status, with a noticeable
dip in the 2016-2017 school year (15/85) back to approximately
2009-2010 levels (14/86). Although the numbers began climbing
again after the 2016-2017-year dip, they still have not reached
the improvements attained during the 2015-2016 year (33/67), which
is the closest the Board has gotten to the 40/60 goal. See Rec.
Docs. 1241-3 at 26, 1410-1 at 6, 1568-4 at 33. The foregoing trend
is remarkable evidence of noncompliance that needs to be addressed
by
the
Board,
working
with
the
new
administration
and
all
stakeholders.
Additionally, we must also consider further issues that have
arisen in the area of staff assignment since our last Order on
unitary status was issued, including new complaints that have come
before the Court on this issue.
B. Interim staff appointments
When this Court dismissed without prejudice the Board’s last
motion for unconditional unitary status on July 21, 2017, we left
open the question of whether the Board’s use of interim staff
appointments violates our orders relative to staff assignment or
impacts the provisional grant of unitary status. Rec. Doc. 1471 at
24-25. However, the issue has since been resolved. In our July
13
2018 Order and Reasons reviewing the CCO’s “2018 Interim Report
Regarding Hiring Issues and Recommendations” (Rec. Doc. 1525) and
the Board’s related objections (Rec. Doc. 1527), we discussed at
length the issue of interim appointments, including the CCO’s
finding that no single instance of interim hiring represented a
compliance issue but that unfettered use of such appointments could
frustrate the spirit of our order. Therefore, the parties were
directed to confer and submit a proposed framework for future
interim appointments. Rec. Doc. 1544. We subsequently adopted the
proposed framework submitted by the parties on August 22, 2018,
and
it
remains
in
place.
Rec.
Doc.
1549.
In
her
affidavit,
Superintendent Stilley attests that upon assuming her role in 2018
and conducting her own assessment, she determined that the practice
of interim staff appointments was not in the best interests of the
school district and decided to discontinue it except under exigent
circumstances. Rec. Doc. 1568-5 at 3. She further attests that
were such an exigent circumstance to arise, she would follow the
procedures laid out in the adopted framework. Id. To demonstrate
her commitment to this approach, Superintendent Stilley states
that since June 2018, a number of vacancies have occurred, yet no
interim appointments have been made to fill these vacancies. Id.
Rather, she points out that the 866 employment process has been
instituted and the positions have remained vacant until filled in
accordance with that process. Id.
14
We see no reason to doubt
Superintendent Stilley’s statements and commend her remarkable
efforts to achieve unconditional unitary status. Thanks to her
actions, we are not aware of any complaints filed that would
indicate a potential violation of orders regarding interim staff
appointments. Because no compliance issues arose in interim staff
appointments before the Court adopted the proposed framework and
given Superintendent Stilley’s decisive actions to discontinue the
practice except under exigent circumstances, which have as of yet
not arisen, the Court finds no violations by the Board or evidence
of non-compliance that would impact our provisional grant of
unitary status in that particular area.
C. Advertisements for multiple positions
In
our
order
considering
the
issue
of
interim
staff
appointments, we also discussed the issue raised by the CCO of
advertisements that list a single open position when multiple
positions are available. Rec. Doc. 1544. We held that “the best
reading of the staff hiring order requires that every open position
be identified in the required advertisements so that potential
applicants know how many people will be hired.” Id. at 22. We found
the Board’s error in not doing so for assistant principal positions
had been made in good faith and was minimally excusable in this
limited instance, although we warned that we may view good-faith
error claims less favorably in the future. Id. at 23. Going
forward, we held that the Board should accurately state how many
15
people will be hired when advertising for a job. And if the need
to hire additional staff arises, then the Board should either amend
the advertisement and reopen the application period or initiate a
separate hiring process for the new openings. Id. at 24. We also
ordered the Board to reinitiate the hiring process at the end of
the
2018-2019
contracts
for
the
three
assistant
principal
positions at issue pursuant to the staff hiring order.
The Board now informs the Court that it has since advised the
affected assistant principals that their respective positions will
be vacated at the conclusion of their contract terms in June 2019;
and has scheduled to advertise for each of the positions in April
2019, interview applicants in May 2019, and select new assistant
principals by June 2019. Rec. Doc. 1568-1 at 14. To further
demonstrate its compliance with Court directives, the Board also
states
that
since
the
issue
was
raised
by
the
CCO,
the
Administration as advertised and identified that two positions
were being filled. Id. at 15. The Court is not aware of any
complaints that have been filed regarding unadvertised positions
since
our
Order
in
July
2018.
Furthermore,
the
Board
has
demonstrated that it complied with the orders concerning the
identified assistant principal positions and has continued to
follow
the
Court’s
orders
for
new
vacancies
that
arise.
Accordingly, the advertisement of multiple open positions does not
present a compliance issue.
16
D. Objections to CCO’s Reports and Recommendations
There were three pending objections to the CCO’s reports and
recommendations concerning staff assignment at the time the Board
filed the instant motion, which have since been resolved by the
Court. Additionally, the Board informs the Court that the CCO has
issued
his
Report
and
Recommendations
of
Mildred
Johnson’s
grievances, resolving them in the Board’s favor, and no party
objected to his findings within the applicable 21-day objection
period. Rec. Doc. 1568-1 at 15. We will consider each of these in
turn.
Regarding
the
first
complaint,
we
overruled
plaintiffs’
objection to the CCO’s Report and Recommendations of Osa Betts’
complaint. Rec. Doc. 1571. We affirmed the CCO’s finding that the
Board followed standing Orders and Decrees when it hired Gary
Porter, a qualified black applicant, instead of Osa Betts, another
qualified black applicant, as Director of Student Services. Id. at
1. We agreed that Order 866 “does not apply to staff hiring
challenges by a black applicant who complains of the hiring of
another black applicant” and therefore found no lack of compliance
by the Board. Id. at 2-3. Accordingly, the Osa Betts complaint
does not demonstrate a compliance issue.
Regarding the second complaint, we overruled the Board’s
objection to the CCO’s Report and Recommendations of Deane Foster’s
complaint. Rec. Doc. 1572. We affirmed the CCO’s finding that the
17
Board failed to comply with Order 866 when it hired Dr. Huguet, a
non-black applicant, as Assistant Principal of Hammond Westside
Montessori School (HWMS) instead of Deane Foster, a qualified black
applicant. Id. at 7-8. Specifically, we noted that Dr. Huguet’s
doctorate degree did not make him “more qualified” for the position
than Ms. Foster, who holds two masters degrees, and therefore
offering Dr. Huguet the position over Ms. Foster was a violation
of Order 866. Id. We further noted that discussions of the Board’s
subjective state of mind were not relevant to a determination of
whether the procedures set out under Order 866 for staff hiring
had been complied with. Id. at 7. Accordingly, the Deane Foster
complaint indicates a major compliance issue for the Board.
Regarding
the
third
complaint,
we
overruled
the
Board’s
objection to the CCO’s Report and Recommendations of Schellia
Robertson’s complaint. Rec. Doc. 1573. We affirmed the CCO’s
finding that the Board was not in compliance with Order 866 when
it refused to hire Dr. Robertson, a qualified black applicant, for
the Instructional Technology Facilitator position, and then hired
a non-black applicant while utilizing a process other than the one
specified by the Order. Id. at 2-5. We held that the Technology
Facilitator
position
fell
under
the
ambit
of
Order
866,
and
therefore the Board should have convened an interview committee to
fill the position and complied with the Order’s other requirements.
Id. at 7. Instead, the Board created a written screening test with
18
a 70% cutoff to administer to applicants, for which there is no
evidence of reliability or validity; and failed to disclose the
test and threshold as a job requisite to applicants. Id. at 8. We
found that the non-black applicant who was hired for the position
was not “more qualified” than Dr. Robertson, nor were any of the
other
candidates.
Id.
at
9.
Therefore,
Schellia
Robertson’s
complaint demonstrates a major compliance issue for the Board as
well.
Regarding Mildred Johnson’s grievances, the CCO’s Report and
Recommendation found the Board showed reasonable grounds for not
selecting Ms. Johnson for the Hammond High Magnet School (HHMS)
principal position in 2014 and 2018; and accordingly had been
compliant with Order 866. Rec. Doc. 1568-2. As the Board notes, no
objection to the CCO’s report has come before the Court. Therefore,
Johnson’s grievances do not present a compliance issue.
E. Unconditional Unitary Status
As listed above, in deciding a motion for unitary status, the
Court considers three factors: whether there has been full and
satisfactory compliance with the remedial order, whether retention
of judicial control is necessary to achieve compliance in other
facets
of
the
school
system,
and
whether
the
school
has
demonstrated its good faith commitment. Freeman v. Pitts, 503 U.S.
467, 491 (1992).
19
Of the three complaints that came before the Court, Deane
Foster
and
Schellia
Robertson’s
complaints
present
major
compliance issues. In both cases, the Board’s actions were found
noncompliant with Order 866. The latter complaints indicate that
despite
the
progress
the
Board
has
made
under
the
new
administration, the Board has not yet arrived at the point of full
and
satisfactory
compliance
with
remedial
orders
designed
to
achieve unitary status. When we granted provisional unitary status
in 2015, we stated that it was “subject to further compliance
review(s)” over the next year. Rec. Doc. 1278 at 3. Furthermore,
we
did
not
hold
that
unconditional
unitary
status
would
automatically be conferred upon the completion of the review
period, but rather that we would “consider . . . grant of such
status.” Id. at 4. Although it has now been longer than a year
since our original grant of provisional unitary status, various
factors led to the extension of this period, including requiring
additional information from the parties on complaints that were
filed as well as new issues that were brought to the court’s
attention (such as the interim staff appointment process and
advertisements). Therefore, because there has not been full and
satisfactory compliance in staff assignments, we find judicial
supervision is still required.
The Board’s claim that “no grievance since Order 866 was
entered has ever resulted in a finding that the Board discriminated
20
against any applicant on the basis of race” misstates the actual
question before the Court. Rec. Doc. 1568-1 at 19. The issue for
the
Court
to
consider
is
whether
the
Board
has
fully
and
satisfactorily complied with this Court’s remedial orders. As
discussed above, multiple grievances have resulted in findings
that the Board has not complied with Order 866. The cumulative
effect
of
noncompliance
with
court
orders
at
issue
evidence
significant and ongoing concerns, negating unconditional unitary
status
at
this
time.
After
careful
consideration
of
each
complaint, the Court found the Board’s actions did not comply with
directives for staff hiring. Until the Board shows reasonable
consistent compliance practices in this area, there will be further
oversight for a reasonable period. The Board and new administration
should
also
focus
attention
upon
sufficiently
improving
its
central office staffing to at least pre-June 2016 levels, as noted
earlier.
Further
regressions
will
impact
compliance
determinations.
F. Relief from 866 Hiring Procedures
In the alternative, the Board seeks relief from the 866 hiring
procedures because of its long-standing good faith compliance with
the 40-60 diversity goal. Rec. Doc. 1568-1 at 16. At a minimum,
the Board seeks relief with respect to school level administrative
positions
because
it
has
exceeded
the
hiring
goal
in
those
positions for six years. Id. at 17. However, granting relief from
21
the 866-hiring procedure at this stage would render meaningless
the decision not to grant unconditional unitary status due to the
fact that the Board has not fully and satisfactorily complied with
Order 866. The Order directs the Board to “hire or appoint a
qualified Black person who has submitted an application to fill
them to achieve a diversity goal of 40 percent Black and 60 percent
white” in the identified categories. Rec. Doc. 866 at 2. The
complaints discussed earlier demonstrate that the Board has not
consistently complied with directives to hire a qualified Black
applicant for these positions. Therefore, the Court cannot grant
relief from 866-hiring procedures until the Board has demonstrated
that it is fully and satisfactorily complying with Order 866.
CONCLUSION
For the reasons outlined above,
IT IS ORDERED that the instant motion is DENIED without
prejudice to reurge in six (6) months with supportive data and
information consistent with this opinion.
New Orleans, Louisiana, this 30th day of April 2019
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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