Cowan et al v. Bolivar County Board of Education

Filing 308

ORDER GRANTING 286 Joint Motion for Modification as supplemented by Thigpen's affidavits; 215 Order is MODIFIED; 233 will be vacated and modified by separate Order; 252 , 264 plans are DENIED AS MOOT. Signed by District Judge Debra M. Brown on 3/13/17. (tab)

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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 desegregation action is before the Court on the parties’ joint motion for modification
of the Court’s May 13, 2016, memorandum opinion and order. Doc. #286.
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
(“Adopted Plan”). Doc. #215 at 96. Under the Adopted 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 Adopted Plan also calls for the assignment of all sixth through eighth grade students (except

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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 September 22, 2016, this Court entered an order setting a timeline for implementing
the Adopted Plan. Doc. #233. Approximately three weeks later, on October 14, 2016, the
District submitted its first proposed modification to the Adopted Plan.

Doc. #241.

On

November 18, 2016, the District formally withdrew its first proposed modification in favor of a
second modification proposal (“Unified High School Plan”). Doc. #252. The United States and
the private plaintiffs opposed the first proposed modification, Doc. #242, and recently concluded
a period of discovery related to the merits of the second proposal, Doc. #274. Additionally, the
private plaintiffs, without prior explanation or leave of this Court, submitted their own proposed
modification on January 11, 2017 (“Private Plaintiffs’ Plan”). Doc. #264.
On February 8, 2017, the parties filed a joint motion seeking to modify the Adopted Plan
and the corresponding implementation timeline. Doc. #286. In the motion, the parties represent
that they have reached a settlement agreement which:
will preserve the Court’s May 13, 2016, Order, save one change regarding sixth
grade student assignment. Under this agreement, the District will 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
Junior High School. The District will assign all seventh and eighth grade students
to a consolidated middle school housed in the current East Side High School
facility. Additionally, the District will expand grade offerings at Cypress Park,
Pearman, and Parks elementary schools to include the sixth grade. This change
will bring these elementary schools in line with Bell Academy and Hayes Cooper
Center, which already include the sixth grade. As a result, all District students will
begin middle school at the same time, in the seventh grade, and under one roof.

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Id. at 2–3. This proposed modification to the Adopted Plan also calls on the District to “give
preference to current Cypress Park fifth grade students who apply for current openings at Hayes
Cooper Center and Bell Academy for the 2017–2018 school year.” Id. at 3 n.1. In addition to
seeking modification of the Adopted Plan, the motion states that the District withdraws its
second proposed plan and that the private plaintiffs withdraw their proposed modification.
On February 14, 2017, this Court entered an order directing the parties to provide
evidence showing the capacity of the District’s elementary schools to accommodate the District’s
sixth grade students. Doc. #288; Doc. #289.
On February 21, 2017, the District submitted an affidavit of Dr. Jacquelyn Thigpen, the
District’s superintendent. Doc. #292. Thigpen’s affidavit states that Cypress Park (D.M. Smith
Elementary) and Parks Elementary have the capacity to accommodate the proposed sixth grade
students. Id. However, Thigpen avers that Pearman Elementary currently lacks such capacity.
Id. at 2. Accordingly, Thigpen proposes changing Pearman Elementary from a kindergarten
through fifth grade facility to a first through sixth grade facility. Id. The kindergarten students
zoned for Pearman would “be placed in a lottery for slots at Parks, Nailor [Elementary], Hayes
Cooper, or Bell.” Id. Upon completing kindergarten, the students would then begin first grade at
Pearman. Id. Thigpen represents that this configuration, which has been approved by the Board,
would allow Pearman to accommodate the proposed sixth grade students. Id.
At the request of the Court, Thigpen, on March 3, 2017, submitted a second affidavit
expanding on the District’s plan for accommodating the Pearman kindergarten students. Doc.
#304. Thigpen states in her second affidavit that the other elementary schools in the District
have the capacity to accommodate the Pearman kindergarten students and that the lottery used to
reassign the students will be random. Id. Under this formulation, students assigned to the

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District’s magnet schools (Hayes Cooper and Bell) will have the option to stay at the magnet
schools upon completing kindergarten.

Id. at ¶ 16.

Finally, the affidavit represents that

“[n]either Private Plaintiffs nor Plaintiff-Intervenor United States of America object to the …
plan ….” Id. at ¶ 19.
On March 6, 2017, this Court entered an order stating that, “upon dismissal of the
pending appeal in this matter, the Court ... will modify its May 13, 2016, order as requested in
the joint motion.” Doc. #305. On March 8, 2017, the District filed with the Fifth Circuit a
motion to dismiss its appeal. The Fifth Circuit dismissed the appeal the next day. Doc. #307.
II
Analysis
The Court interprets the request to modify the Adopted Plan as one made under Federal
Rule of Civil Procedure 60(b), which authorizes a Court to grant relief from a final judgment,
order, or proceeding, for any reason that justifies relief. See, e.g., Evans v. Buchanan, 512
F.Supp. 839, 849 (D. Del. 1981) (considering motion to amend desegregation plan as Rule 60(b)
motion). Pursuant to Rule 60, a court may relieve a party from a final judgment or order if
applying the order prospectively is no longer equitable, or for “any other reason that justifies
relief.”
Upon consideration, and for the reasons stated in this Court’s March 6, 2017, order, the
Court concludes that the Adopted Plan should be modified as requested in the parties’ joint
motion and in Thigpen’s affidavits. To this end, it is ORDERED:
1.

The parties’ “Joint Motion for Modification of the Court’s Order” [286], as
supplemented by Thigpen’s affidavits, is GRANTED.

2.

This Court’s May 13, 2016, order [215] accepting the Adopted Plan is
MODIFIED such that the District shall assign to the consolidated middle school
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students in grades 7–8, rather than students in grades 6–8; and the assignment of
students in grade 6 shall be in accordance with the plan described in Thigpen’s
affidavits.
3.

This Court’s September 22, 2016, order [233] will be vacated and modified by
separate order.

4.

The District’s Unified High School Plan [252] and the Private Plaintiffs’ Plan
[264] are DENIED as moot.

SO ORDERED, this 13th day of March, 2017.1

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

1

The Court is pleased to formally wish years of success to the Cleveland Central Wolves and to the District’s
students as a whole as they proceed under the Adopted Plan as modified.

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