Cowan et al v. Bolivar County Board of Education

Filing 225

ORDER denying 221 Motion to Modify Desegregation Plan; denying in part and deferring in part 223 Motion to Stay. Signed by District Judge Debra M. Brown on 8/16/16. (jtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
DIANE COWAN, minor, by her mother and
next friend, Mrs. Alberta Johnson, et al.;
FLOYD COWAN, JR., minor, by his mother
and next friend, Mrs. Alberta Johnson, et al.;
LENDEN SANDERS; MACK SANDERS;
CRYSTAL WILLIAMS; AMELIA WESLEY;
DASHANDA FRAZIER; ANGINETTE
TERRELL PAYNE; ANTONIO LEWIS;
BRENDA LEWIS;

PLAINTIFFS

and
UNITED STATES OF AMERICA

INTERVENOR-PLAINTIFF

V.

NO. 2:65-CV-00031-DMB

BOLIVAR COUNTY BOARD OF
EDUCATION, et al.

DEFENDANTS

ORDER
This school desegregation case is before the Court on the Cleveland School District’s
motion to modify, Doc. #221, and its motion to stay, Doc. #223.
I
Procedural History
On May 13, 2016, this Court entered a Memorandum Opinion and Order adopting the
desegregation plan proposed by the United States of America, which calls for the consolidation
of the Cleveland School District’s high schools and the consolidation of its middle schools
(“Plan”). Doc. #215 at 96. Under the Plan, the District would consolidate its ninth through
twelfth grade students into a single comprehensive high school housed in the current facilities at
Cleveland High School and Margaret Green Middle School. Id. at 78, 96. The Plan also calls
for the assignment of all sixth through eighth grade students (except for the sixth grade students

at Bell Elementary and Hayes Cooper Elementary) to a consolidated middle school housed at the
current East Side High School facility. Id.
On July 11, 2016, the District filed a notice of appeal with the Fifth Circuit Court of
Appeals regarding the Court’s May 13, 2016, desegregation order. Doc. #219.
On August 15, 2016, the District filed a motion to modify the May 13, 2016,
desegregation order. Doc. #221. The District asks the Court to modify the desegregation plan
adopted by the Court such that:
All sixth-grade students will be assigned to the Walter Robinson Achievement
Center (WRAC) (except for sixth-grade students at Hayes Cooper and Bell
Academy), and all seventh through twelfth-grade students will attend Margaret
Green/Cleveland High School. The District will construct a new ninth-grade wing
at Margaret Green. D.M. Smith Middle School and East Side High School will be
closed.
Id. at 2. Simultaneously, the District filed a motion asking this Court to stay its May 13, 2016,
order “pending a ruling on the District’s proposed consolidation plan, or in the alternative, for a
stay pending appeal.” Doc. #223.
II
Motion to Modify
In its motion to modify, the District argues that the modification is warranted “to
minimize the likelihood of white student departure – a necessity if the District is to continue its
successful quest of improving racial diversity.”

Doc. #221 at 2.

In the memorandum

accompanying its motion, the District argues that its proposed modification is constitutional and
would provide more effective desegregation than the plan adopted by the Court. Doc. #222 at 3.
The District represents that its proposed plan may be implemented under the same timeline as the
plan adopted by the Court. Id. at 3. The Court interprets the District’s request to modify the
desegregation plan adopted by the Court as one made under Federal Rule of Civil Procedure

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60(b)(6), which authorizes a Court to grant relief from a final judgment, order, or proceeding, for
any reason that justifies relief.
“The filing of a notice of appeal is an event of jurisdictional significance – it confers
jurisdiction on the court of appeals and divests the district court of its control over those aspects
of the case involved in the appeal.” In re Scopac, 624 F.3d 274, 280 (5th Cir. 2010). A “district
court retains jurisdiction to consider and deny [Rule 60(b)] motions.” Ferrell v. Trailmobile,
Inc., 223 F.2d 697, 699 (5th Cir. 1955). If the district court believes a Rule 60(b) motion should
be granted, it may “indicate[] that it will grant the motion.” Id. If the district court indicates
that it will grant the Rule 60(b) motion, “the appellant should then make a motion in the Court of
Appeals for a remand of the case in order that the district court may grant such motion.” Id.
In considering the District’s motion to modify, the Court assumes without deciding that
the submission of a constitutional plan with community support may justify relief under Rule
60(b)(6).

Accordingly, the Court must first decide whether the proposed modification is

constitutional.
Where, as here, there has been a finding of de jure segregation, a court “must exercise its
broad equitable power to review and modify proposed remedies which are intended to create and
maintain a unitary school system.” Flaxx v. Potts, 567 F. Supp. 859, 861 (N.D. Tex. 1983). In
considering whether to implement a proposed change to a desegregation plan, a court:
must decide only whether the choice violates the Constitution or federal law. To
make that determination, federal courts ask only whether the proposed
modification fails to further desegregation or places an inequitable transportation
burden on black students. So long as neither answer is in the affirmative, we must
defer to the expertise of school boards in decisions of this nature.
United States v. Mississippi (Choctaw Cty. Sch. Dist.), 941 F.Supp.2d 708, 714–15 (N.D. Miss.
2013) (quoting Anderson ex rel. Anderson v. Canton Mun. Separate Sch. Dist., 232 F.3d 450 (5th

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Cir. 2000) (internal alterations omitted). In evaluating whether a plan furthers desegregation, a
court should consider the six factors set forth in Green v. County School Board, 391 U.S. 430,
435 (1968). See Lee v. Butler Cty. Bd. of Educ., 183 F.Supp.2d 1359, 1363 (M.D. Ala. 2002)
(“Green factors [are] the areas of school operation which are traditionally held as indicators of a
desegregated (or not) school system”). These factors are: student assignment, faculty, staff,
transportation, extracurricular activities, and facilities. Anderson v. Sch. Bd. of Madison Cty.,
517 F.3d 292, 298 (5th Cir. 2008). Additionally, the Court must consider whether the proposed
plan is feasible. Cowan v. Cleveland Sch. Dist., 748 F.3d 233, 238, 240 (5th Cir. 2014). While
this standard of review for modifications places great trust in a district, a court must still
“examine each of the proposed amendments in detail, keeping in mind the ultimate goal of
achieving a unitary school system which offers quality education to all students.” Flaxx, 567
F.Supp. at 861.
The District’s motion wholly fails to address the impact of the proposed modification on
the Green factors. Furthermore, while the District represents that it has the ability to implement
the proposed modification by July 2017, it offers no evidence in support of this statement. See
Doc. #222 at 2–3. Under these circumstances, the Court cannot conclude that the proposed
modification is constitutional. Accordingly, the motion for modification, Doc. #221, will be
denied.
III
Motion to Stay
As explained above, the District filed a motion asking this Court to stay its May 13, 2016,
desegregation order “pending a ruling on the District’s proposed consolidation plan, or in the
alternative, for a stay pending appeal.” Doc. #223. To the extent the motion seeks a stay
pending a ruling on the proposed modification, such request will be denied as moot. To the
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extent the motion seeks a stay pending appeal, the Court deems it prudent to order expedited
briefing under the schedule set forth below.
IV
Conclusion
For the reasons above, it is ORDERED:
1.

The District’s motion to modify [221] is DENIED;

2.

The District’s motion to stay is DENIED in Part and DEFERRED in Part. The

motion is DENIED as moot to the extent it seeks a stay pending resolution of the motion to
modify, and is DEFERRED to the extent it seeks a stay pending appeal; and
3.

The issue of a stay pending appeal will be subject to an expedited briefing

schedule under which:
a. Any response in opposition to the motion to stay pending appeal shall be filed
no later than August 26, 2016; and
b. Any reply shall be filed no later than five days after the filing of the relevant
response.
SO ORDERED, this 16th day of August, 2016.

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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