Moore et al v. Tangipahoa Parish School Board et al
OPINION re 1630 MOTION For Entry of Order Declaring Tangipahoa Parish School System Provisionally Unitary, Suspension of Existing Injunctions and Order, and Acknowledgement and Approval of Final Agreement. Signed by Judge Ivan L.R. Lemelle on 3/30/2021.(pp)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
M. C. MOORE, ET AL
TANGIPAHOA PARISH SCHOOL
BOARD, ET AL
When this case began in 1965, race-based separation
of students, teachers and facilities was the result of a
de jure system of racial segregation. The groundbreaking
unanimous decision in Brown v. Board of Education, 347
U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and its
progeny supplied the framework for rooting out racial
isolation and the accompanying pernicious effects it has
The significant and sensitive issues in the pending
proposed modification of existing desegregation decrees,
are clearly and adequately addressed by movants and
opponents. Rec. Doc. 1630.
We proceed and join in remembrance with Circuit Judge
Carl Stewart’s cautionary observations in a concurring
opinion in Anderson v. Sch. Bd. of Madison Cty., 517 F.3d
292, 305 (5th Cir. 2008).
While the record [as here] provides a detailed
account of the many obstacles that prevent the
existence of fully integrated schools—such as the
confluence of the geography and demography in the
district—the cruel irony is that racial isolation,
albeit not as the product of de jure segregation,
largely remains as foreboding and potentially
deleterious as it was when federal court supervision
began. Of course, this case is only the latest
indication that despite the societal progress that
has been made in dismantling systems of segregation,
many of the concerns highlighted in Brown still
remain as viable today as when that opinion was first
Id. at 306 (emphasis added)
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 prior de jure segregation
to the extent practicable. Hull v. Quitman County Bd. of
Educ., 1 F.3d 1450, 1454 (5th Cir.1993); see also
Freeman v. Pitts, 503 U.S. 467, 492, 498, 112 S.Ct. 1430
(1992). This standard applies in assessing whether the
relative to employment practices, student assignment, and
facilities. Unitary status was previously declared in
In evaluating unitary status, “a court should give
particular attention to the school system’s record of
compliance.” The record of good faith compliance must be
“consistent”. See Fletcher v. Miss., et al, CA#16-60722
(5th Cir. 02/06/2018). For at least three years, the
district court should retain jurisdiction and require the
school board to file reports with the court. The court
then must hold a hearing to consider whether the district
should be considered unitary; plaintiffs must receive
notice of the hearing and an opportunity to show why the
supervision is necessary. Only after these procedures are
followed may a district court be sufficiently certain
that a school system is unitary and dismiss the case. See
Monteilh v. St. Landry Par. Sch. Bd., 848 F.2d 625, 629
(5th Cir. 1988). It must be emphasized that a provisional
declaration of unitary status will neither vacate prior
decrees nor dismiss this action. It would set forth
modifications that credit current successes arising from
relevant good faith actions of parties over a reasonable
period of time. Moreover, additional circumstances as
discussed infra must be weighed in determining present
and future conditions within the Tangipahoa Parish School
In Freeman v. Pitts, 503 U.S. 467, 491-492, 498
(1992), the Supreme Court stated: “Among the factors
which must inform the 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 or
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 intervention in the
Federal courts have broad equitable powers to fashion
segregation. Milliken v. Bradley, 433 U.S. 267, 279–80,
97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). The district court
may “adjust remedies in a feasible and practical way to
eliminate the conditions or redress the injuries caused
by unlawful action.” Freeman v. Pitts, 503 U.S. 467, 487,
112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). If injunctive
relief is “to be enforced with fairness and precision,”
it must be flexible. Id.
Accordingly, “sound judicial discretion may call for
the modification of the terms of an injunctive decree if
the circumstances, whether of law or fact, obtaining at
the time of its issuance have changed, or new ones have
since arisen.” Pasadena City Bd. of Educ. v. Spangler,
427 U.S. 424, 437, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976).
A school district, though, is “entitled to a rather
desegregation decree.” Board of Educ. of Oklahoma City
Pub. Schs. v. Dowell, 498 U.S. 237, 246, 111 S.Ct. 630,
112 L.Ed.2d 715 (1991); Moore v. Tangipahoa Par. Sch.
Bd., 864 F.3d 401, 406 (5th Cir. 2017).
First, consent decrees are contractual in nature, so
parties may fairly expect such orders to be enforced as
both a contract and a judicial decree. Frew ex rel. Frew
v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d
855 (2004). As a judicial decree, such injunctions are
“subject to the rules generally applicable to other
judgments and decrees,” including modification. See id.
subject to injunctions must have fair notice of the terms
of the injunction and any modifications that take place.
See W. Water Mgmt., Inc. v. Brown, 40 F.3d 105, 109 (5th
Cir. 1994); Alabama Nursing Home Ass'n v. Harris, 617
F.2d 385, 387–88 (5th Cir. 1980). Upon proper notice, the
district court may modify the terms of an injunction sua
sponte. W. Water Mgmt., 40 F.3d at 109.
Litigation Counsel for plaintiffs filed on December
5, 2019 an opposition memorandum which concluded at page
8 that “The motion for unitary status and approval of the
proposed settlement agreement (found at Rec. Doc. 1581 filed on Sept. 26, 2019) should be dismissed without
prejudice, subject to re-submission after addressing the
concerns expressed by the court at the November 20, 2019
hearing.” Rec. Doc. 1609 (Emphasis added)
The court’s primary concerns during the November 2019
hearing expressly dealt with the need for additional
modification of existing decrees impacted a determination
(Transcript). Thereafter, a revision to the original
settlement and proposed modification was filed by all
including memorandum and exhibits. Litigation Counsel for
plaintiffs filed an opposition to the re-submitted plan,
Rec. Doc. 1619, reciting among other things the long
history of this case and how it came to the forefront
employment matter in March 2008. See Rec. Doc. 661 (In
revitalized an intermittent monitoring process in all
areas. Since then and to establish better pathways to
unitary status, the undersigned conducted a series of
injunctions, plan modifications, and conducted on-site
visits to various schools within the noted system. At all
involvement by all parties’ counsel, leading community
members and civic groups, school officials, staff, the
Chief Desegregation Implementation Officer (“CDIO”) and
Court Compliance Officer (“CCO”) – all of whom presented,
inter alia, perspectives from relevant constituents or
administrators, residents, various organizations, etc.
proposal on February 11, 2020. See Rec. Docs. 1626 and
1627 (Transcript). While indicating provisional approval
of the modified proposal at that hearing and to further
clarify certain aspects of the modification, we gave
parties further opportunity to address certain aspects
of the proposal. Implicit again in our consideration is
having a plan that could better maintain and promote
unitary status, along with consideration of the existing
plans and orders found at Record Documents 866-876 and
Thereafter on March 23, 2020 Settlement Counsel for
provisional unitary status, suspend existing injunctions
and orders, and acknowledge and approve final settlement.
See Rec. Doc. 1630 and related exhibits. A hearing was
held on July 30, 2020. After hearing from all parties’
counsel, parties were given further opportunity to file
Rec. Doc. 1638.
conduct discovery relevant to the recently submitted
documents and inquiries made by the court concerning
academic performance of black students. Rec. Doc. 1642.
That motion was granted on September 3, 2020 to allow
Procedure 31. 1
That same procedure was previously used
in a similar request by Litigation Counsel for plaintiffs
mentioned November 2019 hearing. See Rec. Docs. 1599 and
authority to modify the decree when faced with changed
circumstances. See Spangler, 427 U.S. at 437, 96 S.Ct.
2697. Moore v. Tangipahoa Par. Sch. Bd., 864 F.3d 401,
407 (5th Cir. 2017). Parties and the at-large public were
on notice of work being done on the instant plan before
its initial filing in 2019, and through the court’s
The record does not show that plaintiff’s Litigation counsel proceeded with the authorized Rule 31 discovery or
ever moved for reconsideration or an extension for doing so.
pronouncements at the first hearing of the original plan
subsequent submissions in response to the court’s order
at Record Document 1613, and the transcript of same at
Record Document 1612. 2 Credible information received from
the school superintendent, the former CCO 3, and others at
hearings on TPSS’ strategic plan that essentially forms
the foundation and substance for proposed modification
also convinces that due process was given to stakeholders
for comment.4 Parties were not unprepared to present and
defend their respective positions. Modification of the
is an exercise of due
discretion. There would still be periodic reporting,
hearings, etc. as currently required throughout a threeyear provisionary term and an ultimate fairness hearing
on whether to grant permanent unitary status thereafter.
See also Rec. Doc. 1615-1, pp. 5-8 evidencing detailed meetings, etc. by the superintendent and others.
Ms. Arlene Knighten, a minister and attorney in Tangipahoa Parish, served as CCO for about twenty years before
becoming Executive Counsel to a state agency: https://cardinalchange.com/our-team
Examples included meetings with community/civic groups and Litigation Counsel: Rec. Doc. 1612, pp. 35-37, 5764; Id. at pp. 102-4 (The Superintendent also had a citizens advisory committee, that included among other leaders
Mr. Mack McCraney: native of Hammond, La., reverend, and first African American Attorney to practice in
Tangipahoa Parish: http://nurturingourroots.blogspot.com/2019/05/mack-h-mccraney-became-first-african.html
A key element amongst others is whether the TPSS has
shown through convincing evidence that it is acting in
good faith. The fact that contradictory evidence might
exist in opposition to the proposed plan does not compel
us to credit that evidence over other more compelling and
convincing evidence instead. Further, while factored into
our consideration of the instant motion, disagreements
over the proposed plan between plaintiffs’ Litigation and
Settlement Counsels and between various stakeholders do
review. Cf. Parker v. Anderson, 667 F.2d 1204 (5th Cir.
objection of all but one of the eleven named plaintiffs
as well as over the objections of a number of class
plaintiffs. Id. at 1207).
The school system
generally worked in good faith to address employment
administrators, supervisors, and staff.
In response to
a motion that had no opposing memorandum, the court
granted in June 2015 provisional unitary status in staff
assignments because “the Board as a whole over the past
10 years has progressively worked in good faith to attain
the 40-60 diversity goal set forth in Record Document 866
with respect to staff assignments for a three-year period
in that area.” See Green v. County of School Bd. Of New
Kent Cnty., 391 U.S. 430, 435-42, 88 S.Ct. 1689, 20 L.Ed.
2d 716 (1968).5
without record opposition memorandum, the court in 2016
found “school-based staff demographics show that school
site administrative personnel have not been assigned in
a manner that tends to show that any school is intended
only for black or white students.”6 Compare Rec. Doc.
1410-1 with Rec. Docs. 1412-5 and 1412-6. The undersigned
See Rec. Doc. 1278, p. 3; Rec. Doc. 1241-1 at 8; Rec. Doc. No. 1241-3 at 11-26.
See Rec. Doc. 1425, p. 5.
(TPSS) has a system in place for filing any complaints
assignment, promotion, pay, demotion or dismissal of
staff members. Rec. Doc. 1410-2.”7 (Emphasis added).
Unitary status in staff assignments would have been
declared then but for lack of documentation about two or
three unresolved grievances.8
Later, when this court dismissed without prejudice
another motion for unconditional unitary status in July
2017, there was an open question on whether the TPSS
Board’s use of interim staff appointments violates orders
relative to staff assignment or impacts the provisional
grant of unitary status.9 Following a report 10 from the
CCO, prepared with assistance from the CDIO along with
Id., pp. 8-10.
Rec. Doc. 1425, pp. 6-7.
Rec. Doc. 1471 at 24-25.
Rec. Doc. 1548.
appointments were not in the best interest of the school
exigent circumstances following approved procedures.11
compliance with the 40-60 diversity goal, the court
determined in April 2019 that further court supervision
was necessary to allow the TPSS Board to show consistent
compliance in its hiring and promotion decisions.12 We
unitary status in six months provided
there are no
findings of compliance issues in that area during that
period.13 There have been no administrative or court
findings of noncompliance on employment issues since that
April 2019 ruling.
provisional unitary status has focused on complaints,
primarily about employment practices.
Rec. Doc. 1568-5 at 3.
Rec. Doc. 1576.
Rec. Doc. 1576.
complaints were mostly resolved and involved matters
unrelated to compliance with desegregation orders.
Complaints are not unusual in most cases involving
decrees under court supervision. Importantly, no credible
relative to employment practices within the immediate
academic term. For example, only about two of Litigation
Counsel’s seven (7) complaints filed through November 1,
2020 touched on employment issues. During the prior
reporting period for 2018-19, twelve (12) complaints out
of twenty-eight (28) involved employment issues. During
term, only two complaints
led to court
ordered reversals in February 2019 of TPSS employment
noncompliance.14 The vast majority of the employmentrelated complaints for above noted academic terms were
resolved without a finding of noncompliance with existing
See Rec. Docs. 1572 and 1573.
decrees.15 While TPSS’ conduct is not perfect, the record
as a whole for the current and immediate prior terms show
credible evidence of good faith compliance with court
orders relative to race-based employee grievances “for a
reasonable period and to the extent practicable.” Hull
v. Quitman County Bd. of Educ., 1 F.3d at 1454; see also
Freeman v. Pitts, 503 U.S. at 492, 498. (Emphasis added).
The proposed plan allows the superintendent to meet
with an unsuccessful job or promotional applicant who
feels aggrieved based on race where she explains her
reasons for recommending an applicant of a different
race. If the unsuccessful applicant is not satisfied with
the superintendent’s explanation, they can seek further
consideration by a review committee. Two members of the
review committee would be chosen by parties’ Settlement
completed, the position at issue remains open.
There is a credible concern in the proposed plan for
the role of the system’s Chief Equity Officer (“CEO”),
Rec. Doc. 1653, pp. 5, 7-13.
currently called CDIO. While acknowledging the plan’s
retention and expansion of his duties in certain areas,
the CEO/CDIO’s role in hiring, promotion, and transfer
supervisors, and staff under the proposed plan needs
Given the CDIO’s critical involvement in
the implementation of desegregation plans, the CCO’s
related functions, and the recognition of highly laudable
services by both, the proposed plan is modified by this
court in Attachment A to this order to specifically set
forth their respective duties.
The Chief Equity Officer is still envisioned to be
part of the superintendent’s team or committee that
reviews employee hiring and promotion grievances that
allege a race-based violation of the court approved plan
or order. The CCO’s services shall continue in accordance
with the range of duties assigned at the time of his
implement when necessary to reasonably assure compliance
with court orders and the modified plan.
Credible evidence, essentially from Superintendent
Stilly and former CCO Arlene Knighten 16, convincingly
advancements to attract and retain educators, especially
African American educators.
Despite the ongoing COVID-
19 pandemic and its adverse impact in the foregoing
internal teacher certification and mentoring program that
addresses a state-wide racial disparity amongst certified
Additionally, despite teacher shortages nationally
and state-wide, along with competition from adjoining
opportunities, the TPSS managed to show an increase in
CCO for 20 years, followed by service as Executive Counsel to a state agency, and longtime practitioner, minister,
and resident in Tangipahoa Parish: https://cardinalchange.com/our-team
Rec. Doc. 1612, pp. 19-24.
superintendent showed that under her administration the
number of African American educators in the Tangipahoa
above many of the
principal and assistant principal hiring continue to meet
or exceed the 40-60 diversity goal. 20 To address lagging
hiring trends of central office staff and administrators
for the 2019-2020 academic year, the school system’s
record trends for the 2020-21 period show meaningful
positive adjustment and diligence.
As shown supra, TPSS made prior advancements in the
approached the 40-60 diversity goal.
trends mandate reversing teacher assignments that could
adversely impact that important aspirational goal. A
disproportionate number of schools appear to have a
Relatively small millage rate adjustments to property taxes were previously proposed by the TPSS Board to help
fund needed improvements, teacher salaries, etc., but rejected by the electorate. The Board has subsequently
explored alternative funding measures to satisfy vital services, including matters of interest in this action.
Rec. Doc. 1612, p. 23.
Id. at pp. 26-27.
predominance of both students and teachers of the same
schools for the 2019-20 term that received a grade of “F”
from the Louisiana Department of Education were four
schools with a predominately African American student
population, and mostly teachers of the same race – many
without teacher certification yet. 21
However, that evidence does not appear to be the
result of bad faith decision-making by the superintendent
or her staff.
Instead, several factors discussed supra
have affected the foregoing data, e.g. pandemic, funding,
competition, etc. TPSS through its superintendent has
implemented vast changes that are reasonably expected to
distribution of teachers and performance scores, e.g.
awareness and equity initiatives, recruitment by offering
Rec. Doc. 1653, pp. 21-22.
relevant websites, and working through black churches.
inclusion, equity, and diversity awareness internally and
Additional measures are needed to supplement TPSS’
ongoing work to achieve the retained 40-60 goal for
distribution of educators to schools. Example measures
to consider in that regards include making assignments
that prioritize distribution of new hires and promotions
to schools that are below the goal, providing incentives
that encourage transfers to such schools by educators who
at schools that exceed the goal, and
requiring applicants for school principal to provide in
their assessment of the relevant school a plan to achieve
opinion, parties shall exchange with the CDIO/CEO and the
See for example: Rec. Doc. 1630-2, pp. 73-111; Rec. Doc. 1580, pp. 37-39 [Discipline Revolution Project (“DRP”)];
Rec. Doc. 1653, Ex. 16 (“Tangipahoa Parish School System Framework for Building a Culture of Student Success”);
Id., Ex. 27.
CCO their responses and/or additions to above additional
considerations. Thereafter, if requested or determined
to be necessary by the court, a conference will be
convened further address noted teacher assignment matter.
Educators do not exist in a vacuum. As hard as they
might try to educate their students, the inevitability
of education will only come through conscientious support
from the entire community. The plan as herein modified,
along with the existing plans, seek in our opinion to
supplement the work of all educators and the goal of true
and equitable education.
TPSS’ student population is about 49% black and 51%
non-black, and its principal and assistant principal
diversity goal is reasonably contemplated to positively
educational performances of their students. For example,
the proposed plan has two features that the existing plan
Under the proposed plan, the principal
or supervisor of the principal-applicant would be added
to the team with other educators and the principalapplicant would be required to present data about the
school they’re applying for with a plan to change that
school around to improve compliance, including academic
performance of students.23 Using their plans and data for
achieving equitable results, e.g. test scores, principals
and educators they supervise should thereby be more
Additionally, facility improvements and expansions
proposed by the plan are also reasonably expected to
students, educators, and the Tangipahoa Parish community.
They have suffered too long in portable trailers, tight
quarters, and undeserving conditions. If education is
Rec. Doc. 1612, pp. 29, 32.
indeed the key to success, the means for providing it
must be a top priority of the entire Parish.
Regarding student assignment, TPSS went from having
11 schools in compliance to about 20 schools recently,
thereby exceeding the goal set by the existing plan. 24 A
factor in the latter regard has been the transfer student
assignment directives set forth in the existing plan.25
Subject to later revision, those directives will stay in
place under the proposed plan.
The COVID-19 pandemic caused world-wide shutdowns of
in-person education, etc., and a paradigm shift into
provided by The Coronavirus Aid, Relief, and Economic
Security (“CARES”) Act, the TPSS provided students with
Chromebook computers and as-needed free Wi-Fi access.
chronic absences 26 of students at a 27% rate. For the
following 2019-20 academic term, it was reduced to 18%.
Rec. Doc. 1580, p. 16 and Rec. Doc. 1612, pp. 40-41.
Chronic absences by a student basically involve 15 absences or more in a school year.
While the 2020-21 data as of November 2020 show an
alarming truancy increase, credible evidence shows the
pandemic-related concerns, e.g. virtual learning, and
expectantly leading to inaccurate measurements. However,
we will continue to monitor future reports and make
adjustments where necessary.
In the 2018-19 term, the Pre-Kindergarten through
4th grades had a 5% suspension rate. TPSS reduced that
rate to 4% in the 2019-20 term.
For grades 5 through 12,
TPSS had a 33% suspension rate in the 2018-19 term. In
the 2019-20 term TPSS reduced the suspension rate to 16%.
The superintendent further explained in comparison to
state-wide data, TPSS is reducing the gap in student
dropped down below the state level. That downward trend
continues to occur based on the last reported 2020-21
period. With many students in a virtual learning setting
during the 2021-21 pandemic period, it is reasonable to
also deduce a decrease in suspensions and expulsions.
Recognizing improvements in above areas do not mean
more is needed to assure more equitable results.
particular concern is the impact of disciplinary actions
upon affected students and the entire educational system.
That concern arises because many of the non-employmentbased complaints involve issues of student discipline.
While few of those complaints led to findings of noncompliance with existing court orders and decrees, the
CCO and CDIO working together with all concerned are
addressing this important matter.
For instance, using his own funds, on his own time,
without anyone’s request, but with appreciation from the
undersigned for doing so beyond the call of specified
additional innovative endeavors which, in my opinion,
further unitary status in education within Tangipahoa
Parish. The CCO has worked to establish the Loyola Family
Advocacy initiative to support parental involvement and
new approaches to address educational challenges, e.g.
superintendent, and the Loyola College of Law, that
initiative has become operational.27 TPSS continues to
work with DRP on discipline matters as the result of
TPSS’ extensive strategic planning along with impressive
efforts by the Alternate Education (“AE”) Operations
Leader, Terran Perry. Through collaborative efforts with
DRP and the LDOE, TPSS has repurposed from a designated
alternative school approach to a more effective and
inclusive AE program. Mr. Perry has several members of
the AE team who assist him with offsite efforts to
students, families, and schools that refer students to
While the pandemic and virtual learning experiences
are complicated challenges, the cumulative effect of
above-described multi-faceted programs shows consistency
towards achieving unitary status through very practical,
reasonable and good-faith means.
Rec. Doc. 1653, p. 53-55.
Further, plaintiffs Litigation Counsel’s suggestion
for bringing in an independent expert to evaluate and
suggest improvements to TPSS’ work in addressing teacher
allocation and student or school performance grades,
especially at the so-called “D and F” levels, merits
further action. Therefore, within 20-days of this opinion
experts who are qualified to perform that evaluation and
submit to the undersigned information on at least 2 such
experts. A conference will be convened thereafter with
As they are and should be aware, parents, guardians,
students, and the entire community of Tangipahoa Parish
are essential components in the
Without them, even well-intentioned workings by current
and future TPSS educators, administrators, staff, and
board would be doomed for failure.
subjects discussed supra, the remedial responsibility of
distinctions extends to the maintenance of its buildings
and the distribution of equipment. Swann v. CharlotteMecklenburg Bd. of Ed., 402 U.S. 1, 18 (1971). “Courts
buildings,’ so they assess this factor by comparing the
Jefferson Cty. Sch. Dist., 63 F. Supp. 3d 1346, 1353
(N.D. Fla. 2014) (citing Thomas Cty. Branch of N.A.A.C.P.
v. City of Thomasville Sch. Dist., 299 F. Supp. 2d 1340,
1364 (M.D. Ga. 2004), aff’d in part, vacated in part,
rev’d in part sub nom. Holton v. City of Thomasville Sch.
We rely in part on our prior rulings on this subject in July and December of 2017, Rec. Docs. 1472 and 1498; and
the mandate from the Fifth Circuit affirming that ruling, filed on May 13, 2019 at Rec. Doc. 1577-1. See also Rec.
Doc. 1552-1, the Fifth Circuit’s dismissal of plaintiffs appeal for want of prosecution. See also Rec. Docs. 1654 and
Dist., 425 F.3d 1325 (11th Cir. 2005); Valley v. Rapides
Par. Sch. Bd., 646 F.2d 925, 932, on reh’g, 653 F.2d 941
(5th Cir. 1981)).
facilities area, this court previously found in 2017 good
construction of O. W. Dillon Elementary School, Rec.
facilities, Rec. Docs. 876, p. 25 and 1455-37 at 2-4;
renovation of a Career Education Center at Kentwood High
Magnet School, Rec. Docs. 956, pp. 1-2 and 1455-36 at ¶4;
and construction of three new schools, modified by Rec.
Docs. 956 and 1264. That ruling also found the following:
Physical facilities and equipment at schools previously
comparable to the physical facilities and equipment at
other schools in the system; only six of the thirty-one
schools in TPSS do not use temporary or modular buildings
(“T-Buildings”), and five of those were majority black
schools; of the seven schools with ten or more modular
buildings, six were majority black schools.
Moreover, the following excerpts from the 2017 ruling
are also referenced to provide additional context to
As to expenditures, since 2010, the System has
spent $9,536,204 in capital project funds on the four
majority black high schools, or $2,384,051 per school
and $4,191 per pupil, and $4,408,810 on the three
majority non-black schools, or $1,469,603 per school
and $1,737 per pupil. Rec. Doc. 1455-37 at 9. It
spent $4,932,628 on the twelve-majority black
elementary and middle schools, or $411,052 per school
and $760 per pupil, and $4,846,136 at the twelvemajority non-black elementary and middle schools, or
$403,845 per school and $718 per pupil. Id. Thus,
over six years, approximately 61% of the (capital
project) funds were spent at majority black schools.
During the same period, the System spent
$4,337,960 in maintenance expenditures at the fourmajority black high schools, or $1,084,490 per school
and $1,729 per pupil, and $4,083,835 at the three
majority non-black schools, or $1,361,278 per school
and $1,144 per pupil. Rec. Doc. 1455-37 at 10. It
spent $7,110,218 at the twelve-majority black
elementary and middle schools, or $592,518 per school
and $1,082 per pupil, and $5,577,800 at the twelve
majority non-black elementary and middle schools, or
$464,816 per school and $814 per pupil. Id. Thus,
over six years, approximately 54% of the total
maintenance funds expended were spent at majority
black schools. Id.
(While evidence was received alleging bad faith
remarks by one school board member, it was found
that:) [t]he Board majority appears in compliance
with standing desegregation orders, and we are
unaware of any reason to allow for indefinite
judicial control over facilities as a necessary tool
here for compliance in other areas; the Board’s
actions in this context, minimally yet sufficiently,
demonstrated a commitment to desegregation. See
Taylor v. Ouachita Par. Sch. Bd., No. 66-12171, 2012
WL 4471643, at *8, n.4 (W.D. La. Sept. 27, 2012)
(granting unitary status in several areas, including
facilities, because, even though “[t]he physical
campuses differ in construction, age, and design . .
. the facilities provide adequate space for their
educational use and are all well maintained.
Additionally, the School Board . . . has been able
to ensure that classrooms are equally equipped with
‘smartboards’ and other forms of technology” and
“[a]lthough there was some disparity in the amount
spent on the schools, the disparity is based upon
the natural growth in student populations, not based
Kimbrough, No. 65-11329, 2010 WL 1790516, at *5
(W.D.La. May 3, 2010) (granting unitary status in
the area of facilities where the elementary school
facilities were not new, but were “well-maintained,
grade-appropriate facilities”); United States v.
Franklin Par. Sch. Bd., No. 70-15632, 2013 WL
4017093, at *5 (W.D. La. Aug. 6, 2013) (declaring
the system unitary in the area of facilities where
accommodations, had comparable libraries, had the
same or similar technology, used the same procedures
for acquiring and repairing equipment and requesting
maintenance, and were given an equitable amount of
funds for maintenance, renovations, and technology).
Rec. Doc. 1472, pp. 12-14. (Emphasis added)
Following the circuit’s affirmance of provisional
unitary status in the facilities area, and considering
the proposed plan at issue regarding facilities, the
addressing TPSS’s current compliance in the facilities
1. TPSS’ “Phase I” capital expenditures;
2. T-Building usage;
3. TPSS use of resources for student instructional
4. TPSS’ sales tax proposal.
$22,700,000 on the need for specific changes, shifts and
increases in Parish population and facilities’ needs. It
planning, CSRS 29, to address the foregoing changes with
the following Phase 1 projects:
1. The purchase and improvements of presently vacant
Harvest Academy campus or so-called Yokum Road school
in Hammond, La. for an estimated cost of $6.5
2. Adding 10 classrooms and dining capacity at Champ
Cooper (PK-8/; Robert, LA area)for estimated cost of
3. Adding 8 classrooms at Ponchatoula High for
estimated cost of $2.6 million;
4. Adding 8 classrooms and some sitework (badly
needed) at DC Reeves (3rd-4th/ Ponchatoula, LA) for
estimated cost of $3.1 million;
5. Add/Improve Field House, 2 classrooms and Title
IX work at Loranger High for estimated cost of $2.7
6. Replace/ repair windows, gutters and facia (in
very poor condition) at Kentwood High/ Middle School
for estimated cost of $1.0 million; and
7. Debt retirement for existing Independence High
and Sumner High Debt for estimated cost of $1.5
Opponents correctly state that the plan provides
Phase I capital expenditures for only one school out of
six existing schools with a majority African American
student population, i.e. Kentwood School, and only one
CSRS is a Louisiana-based architectural firm that specializes in the development of long-range facility master
plans for school districts. Rec. Doc. 1602-2, p. 6.
out of seven in that regards upon the planned addition
of the Yokum Road school project. Opposition also notes
the absence of a “planning study (by TPSS) to consider
the impact of the facilities plan on desegregation and
elimination of the remnants of the dual school system
based on race.” 30
We also note that Phase I’s capital
outlay for Kentwood Schools also represents only about
5% of the total capital expenditure. Based only upon the
foregoing credible facts, this court would not hesitate
to reject instant facility plans.
more facts to consider.
However, there are
Additional evidence just as
credible has also shown that TPSS’ facility plan was
enrollment, projected growth, prioritized needs at noted
buildings.31 It is important to remember that the scope
of the facilities plan includes accommodating for growth
See Rec. Doc. 1602-2, pp. 10.
See for example: Rec. Docs. 1602-2, pp. 6-12; 1602-5, pp. 1-52; and Superintendent Stilley’s testimony during
prior hearings on the plan, e.g. Id.; Rec. Doc. 1612.
including T-Buildings (trailers), all of which should
positively impact desegregation.32
rationale is found to be based on race-neutral and good
faith considerations that are not violative of existing
desegregation decrees. Further evidence of good faith
actions includes the declining usage of T-Buildings,
partially in response to consistent concerns expressed
plaintiffs’ Litigation Counsel raise equally important
matters that will be further addressed by increased
involvement in the monitoring of TPSS’ facilities plan.
To that end, the collaborative team-focused work-ethic
of the Superintendent will include meaningful involvement
from the CDIO/CEO and CCO as set forth in Appendix A to
this opinion. TPSS is further reminded that deviations
based on racially motivated reasons, including those that
Rec. Doc. 1602-2, p. 10.
Rec. Doc. 1653, p. 41.
cause the under-funding of school facilities in need and
subject to this decree will not be tolerated.
----------------------As stated earlier and during hearings on the pending
motion, parties generally presented their evidence and
Perceptions about the lack of communications or input
between counsel have been viewed more as a disagreement
about substance than process.
Nothing prevented anyone
from sending written suggestions, criticisms, or comments
about settlement efforts between this case’s inception
to modern times.
Between 1965 and now, there have been
multiple opportunities to provide changes and objections
to existing desegregation plans, decrees, injunctions,
etc., including the ones currently at issue.
designated Settlement Counsel and others jointly proposed
a plan of action that fosters additional processes that
merit consideration of unitary status in remaining noted
opponents have shown examples of the school system’s
prior bad faith and specific needs about the current
proposal that we have incorporated into this opinion, as
seen supra. As noted earlier, historical examples of the
However, the system’s current record of good faith and
compliance cannot be ignored. It must be supported, but
whatever success or possible future ones that might occur
due to her open and more inclusive management approaches.
contemporaneous records made regarding each outstanding
area — supports the system’s explanations for actions
that have advanced and should further advance the cause
for unitary status in the three remaining areas, as
discussed above. Working also in collaboration with the
unprecedented number of meetings with the public, the
Superintendent’s team-oriented approach has been vital
to TPSS’ current successes.
Litigation Counsel’s assessment of the need to retain
jurisdiction and active monitoring of the modified plan.
We therefore emphasize that provisional unitary status
for three years is in order at this time on the remaining
areas, i.e. employment practices, student assignment and
facilities. Jurisdiction shall be retained during that
period, or a reasonable time period, to enforce, modify
or vacate terms of the plan as herein modified by the
court, and to conduct a final fairness hearing. The
existing plan and decrees are temporarily suspended, in
part and in the interim, all subject to further orders
Therefore, the motion is granted in part, denied in part,
and the subject plan is modified in accordance with this
opinion, all as set forth herein. Rec. Doc. 1630.
We continue to follow the Fifth Circuit’s incremental
probationary period under Youngblood. See Youngblood v.
Bd. of Pub. Instruction, 448 F.2d 770 (5th Cir. 1971);
also United States v. Overton, 834 F.2d 1171, 1173-74,
1177 (5th Cir. 1987). The same occurred in Flax v. Potts,
915 F.2d 155, 157 (5th Cir. 1990). And in United States
v. Midland Indep. Sch. Dist., the Fifth Circuit held that
it was not an abuse of discretion to grant unitary status
otherwise “develop[ed] intimate knowledge of the school
district’s operations . . . [and] attain[ed] the same
substantive goals achievable by using the Youngblood
procedures.” 48 F. App’x 102, *1 (5th Cir. 2002). Midland
does not prohibit a district court from imposing a
releasing a defendant from part of a desegregation order.
See id. A 3-year probationary period is consistent with
Fifth Circuit doctrine. See Thomas v. Sch. Bd. St. Martin
Parish, 756 F.3d 380, 387 & n.23 (5th Cir. 2014) (holding
that the retention of jurisdiction meant that a court
order was not a full and final declaration of unitary
status despite a finding that the district had “achieved
a unitary school system”); see also Moore v. Tangipahoa
Parish School Board, No. 18-30115, 921 F.3d 545, 549-50
(5th Cir. 2019) (Affirming this court’s grant of a twoyear probationary period in the facilities area to allow
additional limited oversight before concluding that the
school system has “demonstrated, to the public and to the
parents of the once disfavored race, its good-faith
commitment to the whole of the court’s decree.” Quotation
from Freeman v. Pitts, 503 U.S. 467, 491 (1992)).
For the foregoing reasons, we find that TPSS has met
its burden of establishing, among other things, that it
has demonstrated good faith commitment to complying with
the court’s existing orders and setting forth a plan, as
hereinabove modified, to advance towards unitary status
period. See also Missouri v. Jenkins, 515 U.S. 70, 88–89
(describing a “good faith commitment to the whole of the
court’s decree” as part of “the showing that must be made
by a school district . . . for complete or partial relief”
from that decree).
enterprise that requires consideration of an enormous
number of factors. Moore v. Tangipahoa Parish School
Board, 843 F.3d 198, 202 (5th Cir. 2016)(Quoting Swann v.
Charlotte–Mecklenburg Bd. of Educ., 402 U.S. 1, 27 n.10,
91 S.Ct. 1267, 28
L.Ed.2d 554 (1971): “There is no
universal answer to complex problems of desegregation;
there is obviously no one plan that will do the job in
every case.”). Efforts to achieve unitary status are
bound to have a far-reaching impact and unpredictable
consequences across the school district. Moore, 843 F.3d
The Board, TPSS, and the people who, in the end,
govern their school system, must be aware that the door
through which they enter and leave the courthouse is not
locked to them. They will undoubtedly find that this is
so especially if they fail to maintain the provisional
grant of a unitary system we conclude exists today.
NAACP, Jacksonville Branch v. Duval Cty. Sch., 273 F.3d
960, 976–77 (11th Cir. 2001).
New Orleans, Louisiana this 30th day of March 2021
SENIOR UNITED STATES DISTRICT JUDGE
I. Role of Desegregation Implementation Officer
The new title for the Desegregation Implementation
Officer shall be Chief Equity Officer (CEO).34
shall report directly to the superintendent and shall be
tasked with supervision of the Office of Equity personnel
involved with implementation of the terms and provisions
of this order.
The CEO will serve as a member of the
school system’s Senior Leadership team.
As a member of
the Senior Leadership Team, the CEO shall be included in
Senior Leadership Team meetings.
The CEO and superintendent should interact regularly
on issues relevant to the effective implementation of
this order, including identification of successes and
challenges, as well as sharing of information that will
The CEO position shall be continued through the duration of this order. The person presently occupying the CEO
position shall be continued in that position through the duration of this order. He may be only removed pursuant
to an order of this court upon a showing of just cause by the School Board. In the event the person occupying the
CEO position should resign, be removed by this court for just cause, or otherwise no longer hold the position, the
superintendent shall prepare a job description which shall include the same duties and responsibilities as
contained this Agreement, advertise to fill the vacancy, and employ the person selected to fill the vacancy for the
remaining duration of this Agreement, subject to court approval beforehand.
implementing this order, especially regarding employment
practices, student assignment matters, and facilities
planning and implementation.
The CEO will serve as liaison for school system
employees, students and families who assert complaints.
Regarding complaints, the complaint protocol the school
system has proposed, and which the court accepts, will
be as follows: Complaints should be first addressed at
the school level which includes a meeting with the
assigned to the school, who also performs the periodic
evaluations of the principal, will become involved to
assist in resolving the complaint. The final level for
resolution will be the Senior Leadership Team, which will
include the CEO. For African American complainants who
feel that they have been discriminated against due to
race, the CEO, along with other senior leaders, will
advise the complaining employee of the court approved
complaining employees and serve as liaison for process
questions they may have during the grievance process.
The CEO shall keep a record of complaints asserted in
which a violation of this order is alleged, or in which
an African American alleges discrimination based upon the
complaint, and if resolved the general nature of the
As per the Agreement of the parties, the CEO shall
be employed on a twelve-month basis with a salary at
Grade 23, which is equivalent to the salary grade of
officer. and which is the pay grade at which the position
of Desegregation Implementation Office is presently paid.
Serve as a member of the school system’s Senior
Leadership team and attend Senior Leadership Team
Serve as a senior leader on the school system’s
Central Implementation Team (CIT), which shall meet
monthly to address systematic trends in discipline across
the school system.
Serve as liaison regarding the complaint
grievance process referenced in this order.
Maintain a list of all complaints of lack compliance
with violations or failure of the school system to comply
with this order, and discrimination against an African
American complainant based on the complainant’s race,
including the status of the complaint and, if resolved,
the general nature of the resolution.
Participate in a weekly or bi-weekly meeting with
the superintendent, a “check-in,” to discuss and
strategies, challenges and successes implementing this
Among the ongoing discussion items
superintendent and CEO, prior to hiring of candidates for
administrative or staff positions at the level of
principal or higher, the superintendent shall advise the
CEO of each proposed hire, the names and races of other
candidates for the position, and seek any input the CEO
may wish to offer. The CEO shall have the opportunity
for advisory input to the superintendent. However, the
CEO shall not have a vote or veto ability.
superintendent in the solution of concerns which may
arise in the areas of his responsibility.
Attend and contribute to monthly CIT meetings where
the leadership team works to engage in problem-solving
strategies to address inequities in discipline across the
school system, with priority given to UIR schools for
At least ten (10) days prior to effecting or
improving transfers of students for the following school
year, the superintendent or the superintendent’s designee
shall submit a comprehensive listing of all approved
student transfers, including the race of the transferring
student, the proposed transferring and receiving schools,
and the basis for the transfer or rejection of it. The
CEO shall have the opportunity for advisory input to the
superintendent. However, the CEO shall not have a vote
extraordinary, administrative or similar transfers, the
CEO may request the underlying materials supporting or
disputing the request.
Serve as the school system’s chief point of contact
to implement a mentoring program for at risk youth in the
school system, including serving as a liaison with the
community and church leaders, with priority given to UIR
schools for discipline.
Attend and contribute to the school system’s
quarterly meetings with senior leadership with respect
to this order.
Assist with required reporting to the Court
Compliance Officer (“CCO”) and plaintiffs’ Settlement
Meet and confer freely with the CCO as requested and/
or necessary in the view of either the CEO or the CCO.
Identify division objectives based upon parish goals
Identify and initiate the development of performance
objectives based upon established school and community
Recommend to the superintendent specific policies,
procedures, plans and programs for attaining current
Advise and counsel the superintendent in the area of
equity and Agreement implementation during weekly or biweekly check-ins with the superintendent and upon the
Make presentations to the School Board when required
by the superintendent regarding equity and aspects of
Coordinate with other senior leaders on the
organization and presentation of workshops and in-service
training relative to sensitivity and terms and provisions
of this order.
Direct and implement strategies to engage families
and communities that advances unitary status objectives.
Stay abreast of trends in the development of
diversity and equity in the field of elementary and
Study educational needs of the school community and
make recommendations to the superintendent strategies for
increasing diversity, equity and opportunities for all
Adhere to established lines of communication through
the chain of command, recognizing the ability of the CEO
to freely communicate with the CCO as the CEO and CCO
Ensure strategies to facilitate diversity and equity
and to implement this order are in alignment with state
laws and guidelines and this order.
Adhere to the policies and procedures established by
the School Board that comply with this order.
Implement the policies and procedures established by
the School Board that comply with this order.
Support the District’s Strategic Plan, in compliance
with this order, to improve the educational system.
As appropriate, communicate to the community how
diversity, equity and opportunities for students impact
all children and improve the educational system.
Supervision of school system employees under CEO
Designate role responsibility and authority for
personnel under his supervision.
Conduct performance observations and evaluations of
immediate staff members according to established
procedures with the Parish Personnel Evaluation Plan.
Ensure the appropriate approval or denial of request
for leave (annual or personal) for staff members under
Criteria established by School Board
II. ROLE OF COURT COMPLIANCE OFFICER
The Court Compliance Officer’s (“CCO”) appointment
as set forth in Rec. Doc. 1204 shall continue until the
court orders otherwise.
Until further notice, the court
suspends the provisions of Rec. Doc. 876-4, page 29,
beginning at the first full paragraph and continuing
through the second paragraph.
The provisions of Rec. Doc. 876-4, page 29, paragraph
4, are modified to provide that the CCO’s annual report
shall be filed within thirty (30) days of the annual
student population reporting provided each October by the
school system to the Louisiana Department of Education
Upon providing the final beginning of school
year student population figures to the LDOE each school
year, the school system shall immediately provide to the
CCO and all lead counsel the student population figures
that it provides to the LDOE.
In addition, and consistent with this order, the CCO
shall (a) receive the reports provided for in this order;
(b) monitor the school system’s compliance with the terms
provided in the reports submitted by the defendant’s
Settlement Counsel, and any other relevant facts or
circumstances; (c) interact with the court as the court
shall designate; (d) make inquiries of the school system
where deemed necessary to evaluate compliance with the
terms and provisions of this order; (e) communicate with
counsel for the parties, the superintendent and/or the
Chief Equity Officer as deemed necessary; and (f) include
in the CCO’s annual report information regarding the
school system’s compliance with the terms and provisions
of this order.
Particular attention shall be given by
practices, student assignment matters, and facilities
planning and implementation.
The provisions of Rec. Doc. 1326 regarding the CCO’s
compensation shall continue to apply unless and until
modified by the court and said compensation shall be paid
by the School Board.
SO ORDERED this 30th day of March 2021
/s/ Senior Judge Ivan L. R. Lemelle
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