McNeal v. Tate County School District

Filing 33

MEMORANDUM OPINION AND ORDER denying as moot 14 Motion for Extension of Time to File Response/Reply ; granting in part and denying in part 17 Motion to Expedite; granting 20 Motion to Substitute Party. Undra Todd, Linderia Todd, Rosaland Milam, Gwendolyn Bonne, Ciera Jackson, Georgia Carr, Angela Johnson and Carolyn Daniels added. Kelly McNeal (et al) terminated. Signed by District Judge Debra M. Brown on 6/14/16. (jtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
KELLY MCNEAL, et al.

PLAINTIFFS

V.

NO. 2:70-CV-00029-DMB

TATE COUNTY SCHOOL
DISTRICT, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This desegregation case is before the Court on: (1) the motion of Tate County School
District to expedite review of its motion to modify attendance zone lines, Doc. #17; (2) the
motion of “Jessie Edwards, and a group of other concerned citizens and parents of children
attending schools within the Tate County School District,” for an enlargement of time to respond
to the motion to modify, Doc. #14; and (3) the motion for substitution of certain “parents of
children who are current students in the Tate County School District,” Doc. #20.
I
Procedural History
On April 27, 1970, Jeffie McNeal, Jessie Mae Carter, Pearlene McGhee, Adell Davis,
Timothy Lee, and Minnie Mae Moore filed a complaint on behalf of their children, also named in
the complaint, alleging that the Tate County School District (“District”) and its Board of
Education were operating an unconstitutional dual education system. The same plaintiffs filed
an amended complaint with the same substantive allegations on June 8, 1970.1
On August 4, 1970, United States District Judge Orma R. Smith entered an order
enjoining the District from operating a dual system and directing the operation of a “unitary

1

The amended complaint purports to be a class action complaint. However, it appears this action was never
certified as a class action pursuant to Federal Rule of Civil Procedure 23.

school system as required by the Supreme Court of the United States ....” Doc. #13-1 at 1. To
this end, Judge Smith directed that attendance in the District’s schools be determined by
assignment of students to three zones: “Easterly,” “Northwesterly,” and “Southwesterly.” Id. at
3–4.
Over the ensuing five years, the District, employing methods such as ability grouping and
private sale of a school to a private institution, unsuccessfully attempted to circumvent the
requirements of the injunction. See McNeal v. Tate Cty. Sch. Dist., 460 F.2d 568 (5th Cir. 1971);
McNeal v. Tate Cty. Sch. Dist., 508 F.2d 1017 (5th Cir. 1975). On July 11, 1975, Judge Smith
entered a memorandum opinion and order directing desegregation in the District’s classrooms.
Doc. #1 at 5. Approximately one year later, on July 16, 1976, Attorney Solomon Osborne
entered a notice of appearance on behalf of the plaintiffs. Id. Following Osborne’s notice of
appearance, this matter lay largely dormant for more than thirty years.2 See id. at 5–6.
On August 9, 2010, the District filed a motion to re-draw the three attendance zones
created by Judge Smith. Doc. #3. On September 3, 2010, this matter was reassigned to United
States District Judge W. Allen Pepper. Judge Pepper, noting the absence of an objection from
the plaintiffs, granted the District’s motion on September 28, 2010. Doc. #4. Pursuant to Judge
Pepper’s order, and of relevance here, students residing in the Easterly Zone were assigned to
Independence High School; students residing in the Northwesterly Zone were assigned to
Coldwater High School; and students residing in the Southwesterly Zone were assigned to
Strayhorn High School. Id. at 2–3.
Following Judge Pepper’s September 2010 order, except for the continued filing of
annual reports, this case remained inactive until April 1, 2016, when the District filed a motion to

2

During this period, the District filed annual reports and a motion to change a school site, which was granted.

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modify the attendance zone lines. Doc. #12. In its motion, the District asks the Court to modify
the orders of Judge Smith and Judge Pepper to: (1) close Coldwater High School; and (2)
modify the Northwesterly Zone to send some of its students to Independence High School and
the remaining students to Strayhorn High School. Id.
On May 2, 2016, Osborne filed a “Motion for an Enlargement of Time to Respond to
Defendants’s Motion to Modify Attendance Zone Lines” “on behalf of Jessie Edwards, and a
group of other concerned citizens and parents of children attending schools within the Tate
County School District.” Doc. #14. The motion purports to be an “Entry of Appearance,” and
seeks a thirty-day extension of the deadline to respond to the District’s motion to modify. Id.
Four days later, on May 6, 2016, the District responded in opposition to the motion for extension.
Doc. #15. In its response brief, the District argues that the motion for extension should be denied
because it fails to show good cause for the extension or excusable neglect for missing the
original deadline. Doc. #16 at 2–3. The District also argues:
[I]t is unclear how and when Mr. Edwards became a party to this decades old
case. It is respectfully submitted that ... Mr. Edwards does not have a child
enrolled in the Tate County School District. Without a child in the District, Mr.
Edwards has no standing to bring this action. Asking for more time to respond to
a 30 day old motion for a non-party litigant who lacks standing cannot amount to
good cause.
Id.
On May 11, 2016, the District filed a motion to expedite review of its motion to modify
the attendance zones.

Doc. #17.

On May 16, 2016, this Court3 directed the District to

supplement its motion to expedite:
by filing with this Court an affidavit of a District employee with competent
knowledge setting forth the latest date the Court could rule on the motion to
3

On April 4, 2016, this case was reassigned to the undersigned district judge.

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modify attendance zones and have the ordered modifications be implemented by
the District for the 2016–2017 school year, should the Court grant the District’s
motion to modify the attendance zones.
Doc. #19 at 2.
On May 18, 2016, the District supplemented its motion to expedite with the affidavit of
Dr. Daryl Scoggin, the Superintendent of the District. Doc. #21. In his affidavit, Dr. Scoggin
represents that “[i]n order to effectively transition to the new configuration, the District requests
an Order on or before May 27, 2016.” Id. at ¶ 5. However, contrary to this Court’s order, the
affidavit fails to set forth the latest possible date for implementation of the new attendance zones
sought for the 2016–2017 school year.
Also on May 18, 2016, a group of “parents of children who are current students in the
Tate County School District” filed a motion seeking substitution and intervention as plaintiffs in
this action. Doc. #20.
On May 25, 2016, this Court convened a telephonic conference with counsel for the
parties. Doc. #25. At the conference, the District represented to the Court that the proposed
modifications for the 2016–2017 school year could be timely implemented if the Court issued an
order on or before June 15, 2016. Counsel for the plaintiffs committed to notify the Court by the
following week as to whether the plaintiffs required any discovery to prepare a response to the
District’s motion to modify the attendance zones and, if so, the specific discovery needed.4 The
same day, the District responded in opposition to the motion for substitution and intervention.
Doc. #23.

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Counsel for the plaintiffs was to notify the Court of such by the following Tuesday but by that deadline did not
specifically describe any discovery needed by the plaintiffs. Rather, the plaintiffs’ only reference to discovery
appears in their response to the motion to expedite, in which they ask the Court to “grant them limited discovery so
that they will be able to obtain the additional evidence needed to challenge the Defendants [sic] discriminatory
actions, including the use of separate discriminatory attendance zones.” Doc. #26 at 6.

4

On May 31, 2016, the plaintiffs responded in opposition to the motion to expedite, and
replied in support of the motion for substitution and intervention and the motion for extension.
Doc. #26; Doc. #27; Doc. #28. On June 6, 2016, the District replied in support of its motion to
expedite. Doc. #30.
II
Motion for Substitution and Intervention
The motion for substitution and intervention seeks to add eight African American
parents5 of students in the District to “this matter pursuant to Fed. R. Civ. P. 17(a) and Fed. R.
Civ. P. 24 ....” Doc. #20 at 1. The motion represents that the parents “have an interest in
dismantling the unconstitutionally dual racially segregated school system to ensure that their
children are granted and afforded equal educational opportunities ....” Id. at ¶ 2. The District
responds that the motion should be denied because the motion is untimely, and because the
proposed plaintiffs do not have standing because they have failed to identify an injurious and
remediable action of the district and because the proposed modification would not injure them.
See Doc. #24.
Rule 17(a)(1) provides, in relevant part, that “[a]n action must be prosecuted in the name
of the real party in interest.” However, Rule 17(a)(3) cautions that “[t]he court may not dismiss
an action for failure to prosecute in the name of the real party in interest until, after an objection,
a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted
into the action.” Courts and commentators have observed that the substitution mechanism of
Rule 17(a) “should be applied only to cases in which substitution of the real party in interest is
necessary to avoid injustice.” Feist v. Consolidated Freightways Corp., 100 F.Supp.2d 273, 276
5

The proposed plaintiffs are: Undra Todd, Linderia Todd, Rosaland Milam, Gwendolyn Bonne, Ciera Jackson,
Georgia Carr, Angela Johnson, and Carolyn Daniels. Doc. #20 at ¶¶ 11–19. Jessie Edwards, the person identified in
the motion for extension as a litigant, is not identified as a potential plaintiff.

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(E.D. Pa. 1999); see 6A Fed. Prac. & Proc. Civ. § 1555 (3d ed.) (“A literal interpretation of Rule
17(a)(3) would make it applicable to every case in which an inappropriate plaintiff has been
named. However, the rule should be applied only to cases in which substitution of the real party
in interest is necessary to avoid injustice.”) (internal footnote omitted).
Here, the proposed plaintiffs seek substitution to remedy the vestiges of discrimination
remaining in the District (which has not been declared unitary). See Doc. #20 at ¶ 9. In 2012,
United States District Judge Glen H. Davidson held that Rule 17 provided an appropriate
mechanism in a desegregation action for substituting African American parents of children
attending school within a district operating under a desegregation order. Cowan ex rel. Johnson
v. Bolivar Cty. Bd. of Educ., 914 F.Supp.2d 801, 810–11 (N.D Miss. 2012). In reaching this
conclusion, Judge Davidson held:
new Plaintiffs have standing to enforce the Court's prior desegregation Orders.
These new Plaintiffs have a cognizable injury, “a personal interest, created by
law, in having the State refrain from taking specific actions.” See Allen v. Wright,
468 U.S. 737, 763, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). An injury in the
context of school desegregation is “one of the most serious injuries recognized in
our legal system.” See id. at 755, 104 S.Ct. 3315. Also, “the injury alleged is
fairly traceable to the Government conduct” challenged as unlawful, see id. at
756, 104 S.Ct. 3315, and the relief sought, if granted, could restore a denied right
to the Plaintiffs.
Id at 811. There is no indication that any of the original plaintiffs in this action remain willing or
able to pursue this action. The Court therefore concludes that here, as in Cowan, injustice would
occur if substitution was not allowed and that the proposed plaintiffs identified in the motion to
substitute have standing to pursue the action.6 Accordingly, the motion to substitute is granted.
Having allowed substitution, the new plaintiffs’ request for intervention is denied as moot. See

6

In reaching this conclusion, the Court rejects the District’s unsupported arguments that in a desegregation case
standing should be determined based on the possible impact of a pending motion to modify attendance zones or that
substitution in a desegregation case should be denied based on the failure to timely respond to such a motion.
Neither case law nor logic supports either proposition.

6

F.T.C. v. Shomers, 463 F. App’x 828, 829 (11th Cir. 2012) (“[T]he intervention issue is moot
due to the ... substitution of the FTC as a party.”).
III
Motion for Extension
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
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)
(noting “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).

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. This is true even
where the requested relief is unopposed. Id. at 861–75 (evaluating impact on desegregation of
7

joint proposed desegregation plan). Furthermore, where the record is insufficient to make this
determination, a court must ensure the adequacy of the record. See United States v. Bd. of Educ.
of Baldwin Cty., 417 F.2d 848, 850 (5th Cir. 1969) (directing hearing on proposed desegregation
plan where record was “stale”).
Here, the District has asked the Court to modify the controlling desegregation plan based
on nothing more than projected enrollments resulting from the plan. See Doc. #13. Beyond an
affidavit from Dr. Scoggin attesting to personal knowledge of the projections, there is no
evidence as to how the projections were arrived at or what impact, if any, the modifications will
have on the transportation burden borne by African American students, faculty assignments, staff
assignments, extracurricular activities, and facilities.

Under these circumstances, and

commensurate with its duty to review the proposed modification, the Court deems it prudent to
supplement the record on these topics by requesting additional briefing from the District and
Plaintiffs, reserving the right to set the matter for hearing if the Court deems such necessary.
Because this supplemental briefing, to be submitted pursuant to the schedule specified below,
will provide the new substituted plaintiffs an opportunity to respond to the motion to modify, the
motion for an extension to respond is denied as moot.
IV
Motion to Expedite
In its motion to expedite, the District represents that it seeks to “alter attendance zone
lines for the coming 2016–2017 school year,” that “time is of the essence in this matter as plans
for students and teachers must be made as soon as possible for the coming 2016–2017 school
term,” and that such “plans necessarily hinge on this Court’s decision in this matter.” Doc. #17
at ¶¶ 3–5. Based on these proffered reasons, the District asks “that this Court engage in an
expedited review of this case.” Id. at ¶ 6.
8

The Court agrees that expedited review of the issue of altering attendance zones in this
case appears appropriate. However, given the timing of the District’s motion to expedite, the
time for briefing expended on the other motions described herein, and the need to supplement the
record through briefing and a possible hearing, the resolution of this matter by June 15, 2016, is
impossible. Consequently, to the extent the motion to expedite seeks resolution of the District’s
motion to alter by June 15, 2016, the motion is denied. The Court will nevertheless endeavor to
resolve this matter as expeditiously as possible. Accordingly, the motion to expedite is granted
in part. In that regard: (1) within seven (7) days of the issuance of this Order, the District shall
file a supplement to its motion to modify the attendance zones in accordance with this order,
including a memorandum, supported by competent evidence; (2) within seven (7) days of the
District’s supplemental submission, Plaintiffs shall file a response, including a memorandum,
supported by competent evidence, supporting or opposing the District’s proposed modification to
modify the attendance zones; and (3) within seven (7) days of the filing of Plaintiffs’
memorandum, the District may file a reply, including a memorandum, supported by competent
evidence, in support of its proposed modification.
V
Conclusion
For the reasons above: (1) the motion for extension [14] is DENIED as moot; (2) the
motion for substitution [20] is GRANTED; and (3) the motion to expedite [17] is GRANTED
in Part and DENIED in Part.
SO ORDERED, this 14th day of June, 2016.

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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