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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals

                                  No. 16-60722
                                                                        Fifth Circuit

                                                                      FILED
                                                                February 6, 2018

UNITED STATES OF AMERICA,                                        Lyle W. Cayce
                                                                      Clerk
             Plaintiff

v.

CYNTHIA FLETCHER, A minor, by Rev. Artis Fletcher, as next friend, and
Gloria Jean Barnes and David Barnes, minors, by Rev. Theotis Smith, as
next friend, suing in their own behalf and on behalf of all others similarly
situated,

             Intervenor Plaintiff - Appellant

v.

STATE OF MISSISSIPPI,

             Defendant

SIMPSON COUNTY SCHOOL DISTRICT,

             Intervenor Defendant - Appellee




                Appeals from the United States District Court
                   for the Southern District of Mississippi


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
WIENER, Circuit Judge:
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                                  No. 16-60722
      Since 1970, the Simpson County School District (“the District”) has been
under a consent decree to monitor the District’s efforts to desegregate its school
system. Students attending District schools (“the Intervenors”) intervened in
the litigation in 1982, contending that the District had not properly complied
with the consent decree. In 2015, the District moved for a finding of unitary
status in the area of faculty and staff employment. The Intervenors objected,
and after a hearing, the district court granted unitary status. The Intervenors
now appeal, and we affirm.
                           I. FACTS AND PROCEEDINGS
      In July 1970, the United States sued the State of Mississippi and several
of its school districts, including the District, alleging that they operated school
systems that were segregated by race. In August 1970, the district court
enjoined the District from discriminating based on race, and outlined various
procedures designed to end segregation in the District. The 1970 order
addressed specific areas: faculty and staff assignments, student transfers,
transportation, school construction and site selection, and extracurricular
activities.
      In 1982, the Intervenors filed a class action complaint against the
District for failing to comply with the 1970 order. In 1983, the district court
entered another decree, outlining further procedures for the District. These
included procedures aimed at employment practices, viz., requiring the
District to advertise available positions, use standard forms and objective
rating criteria to review and score applications, and offer positions to the
highest-scoring applicant regardless of race. The 1983 decree also required
that the District notify the United States and Intervenors of any proposed




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                                       No. 16-60722
change to employment procedures. 1 In 2001, the District moved for unitary
status. The Intervenors did not respond, and the United States objected only
in the area of faculty and staff assignments. The district court denied unitary
status in that area, but granted unitary status in all other areas. 2
       In 2011, the court entered another consent decree expanding on the
required employment procedures. Specifically, the 2011 decree required that
(1) the District advertise vacant positions for at least three weeks and post
them in specified locations, (2) the District maintain efforts to increase the
number of qualified African-American applicants, (3) the District’s HR
Director score applicants using objective criteria and a standard scoring form,
(4) the principal or superintendent interview the highest-scoring applicants, 3
(5) the interviewers complete an interview form (attached to the decree) with
numerical scores for various criteria, and (6) the District offer the position to
the candidate with the highest combined pre- and post-interview scores.
       The decree generally required the District to interview candidates with
high initial scores. If the District declined to interview an applicant with a
higher score than another applicant selected for an interview, the principal or
Superintendent had to state in writing why he or she did not interview such
applicant. The only reasons permitted by the decree for declining to interview
such an applicant were: (1) the applicant declined the interview, (2) the District
could not contact the applicant after a prescribed number of attempts, (3) based
on information disclosed in a prior interview, reference check, background, or
misrepresentation on an application, the applicant “was deemed unsuitable for



       1 The decree also included reporting requirements regarding the racial composition of
applicants, new hires, and employees who were demoted or fired.
       2 That decision was affirmed on appeal.
       3 Specifically, the District must interview at least the highest-scoring applicant; if it

interviews a lower-scoring applicant, it must also interview all other applicants who score
higher.
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                                     No. 16-60722
employment[,]” or (4) “the applicant was terminated or non-renewed for good
cause from any previous employment position.”
      The District could decline to offer the position to the highest-scoring
applicant only “if a legitimate negative reason exists not to hire the applicant.”
The consent decree gave examples of such negative reasons: (1) negative
comments from references, (2) false information on an application, (3) failure
to satisfy background check requirements, or (4) termination or non-renewal
from a previous position. The decree further specified that “[t]he District may
not, however, fail to hire the highest overall-rated applicant only because it
favors a lower-rated applicant.” If the District wanted to hire a lower-scoring
applicant, it had to notify the United States and the Intervenors, who had the
opportunity to object. 4
      In 2012, the district court granted the United States’ motion to enjoin
the District from violating the 2011 decree, on the grounds that the District
had hired several non-highest-scoring applicants without proper notice to the
United States. In 2013, the District moved for unitary status with respect to
faculty and staff assignments. The United States did not object, but the
Intervenors did, and the district court held a two-day hearing. The court
received over five hundred objections from the community, but many of these
were generic and did not state details. At the hearing, some objectors who had
been denied employment or promotion by the District testified. In April 2014,
the district court denied unitary status, citing use of modified interview guides
and ranking forms without notice of the proposed change as an example of the
District’s non-compliance. The district court also extended the 2011 decree to




      4 The United States and Intervenors could also object to hiring an applicant who did
not have the highest initial, pre-interview score.
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                                        No. 16-60722
March 15, 2015. The Intervenors appealed that decision, challenging some of
the court’s factual findings. That appeal was dismissed for lack of standing. 5
       In September 2015, the District yet again moved for unitary status. This
time there were approximately sixty-five objections, many of which were
merely generic. 6 The district court held another two-day hearing in 2016, and
granted the motion for unitary status, after considering the testimony from
both the 2014 and the 2016 hearings. The Intervenors now appeal.
                                 II. STANDARD OF REVIEW
       This court reviews a finding that a school district is unitary for clear
error. 7 Under that standard, we will reverse only if we have a “definite and
firm conviction that a mistake has been committed.” 8 But a court reviewing for
clear error may not reverse the district’s court finding if it is plausible in light
of the entire record. 9 If the finding is plausible in light of the record, we may
not reverse even if, “had [we] been sitting as the trier of fact, [we] would have
weighed the evidence differently.” 10 Neither will we “discount ‘the district
court’s reasonable factual inferences from the evidence.’” 11
        “The burden of showing that the findings of a district court are clearly
erroneous is heavier if credibility of witnesses is a factor in the district court’s
determination.” 12 “When findings are based on determinations regarding the



       5 United States v. Fletcher ex rel. Fletcher, 805 F.3d 596 (5th Cir. 2015).
       6 The United States did not object, however.
       7 Anderson v. Sch. Bd. of Madison Cty., 517 F.3d 292, 296 (5th Cir. 2008).
       8 Yates v. Collier, 868 F.3d 354, 363 (5th Cir. 2017) (quoting Westwego Citizens for

Better Gov’t v. City of Westwego, 946 F.2d 1109, 1118 (5th Cir. 1991)).
       9 Moore v. Brown, 868 F.3d 398, 403 (5th Cir. 2017).
       10 Yates, 868 F.3d at 363 (alterations in original) (quoting In re Omega Protein, Inc.,

548 F.3d 361, 367 (5th Cir. 2008)).
       11 Imperial ED Promotions, L.L.C. v. Pacquiao, 549 F. App’x 295, 299 (5th Cir. 2013)

(per curiam) (quoting Glass v. Petro–Tex Chem. Corp., 757 F.2d 1554, 1559 (5th Cir. 1985)).
       12 Theriot v. Par. of Jefferson, 185 F.3d 477, 490 (5th Cir. 1999) (citation omitted); see

also City of El Paso v. El Paso Entm’t, Inc., 464 F. App’x 366, 372 (5th Cir. 2012) (per curiam)
(“[W]here the court’s finding is based on its decision to credit the testimony of one witness
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                                       No. 16-60722
credibility of witnesses, [Federal Rule of Civil Procedure] 52(a) demands even
greater deference to the trial court’s findings; for only the trial judge can be
aware of the variations in demeanor and tone of voice that bear so heavily on
the listener’s understanding of and belief in what is said.” 13
                                      III. DISCUSSION
       “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.” 14
This standard also applies when assessing whether a school district is unitary
in employment practices. 15
       The Intervenors focus on individual employment decisions—that is, the
District’s decisions to interview, hire, promote, or fire specified persons—
whose treatment they contend shows violations of the consent decree and
remnants of de jure segregation. The district court held that none of these



over that of another, that finding, if not internally inconsistent, can virtually never be clear
error.” (quoting Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir. 1993))).
        13 Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985) (citing Wainwright v.

Witt, 469 U.S. 412 (1985)).
        14 Anderson, 517 F.3d at 297 (footnote omitted) (citing Hull v. Quitman Cty. Bd. of

Educ., 1 F.3d 1450, 1454 (5th Cir. 1993) and Freeman v. Pitts, 503 U.S. 467, 492, 498 (1992));
see also Freeman, 503 U.S. at 491 (“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 first instance.”).
        15 Fort Bend Indep. Sch. Dist. v. City of Stafford, 651 F.2d 1133, 1140 (5th Cir. Unit A

July 1981) (“The proper inquiry to be undertaken in an effort to determine whether the
FBISD is now unitary is two-fold: first, the district’s current employment practices must be
non-discriminatory and in compliance with constitutional standards; second, the adverse
effects of any earlier, unlawful employment practices must have been adequately remedied.”).
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                                     No. 16-60722
individual employment decisions showed that the District failed to comply with
the consent decree or that the District acted in bad faith. The court also held
that the employment decisions did not demonstrate remnants of de jure
segregation.
A. The District’s Good Faith Compliance With The Consent Decree
      This court views the district court’s finding that a school district has
complied with a desegregation order in good faith in light of the entire record. 16
In evaluating unitary status, “a court should give particular attention to the
school system’s record of compliance.” 17 The record of good faith compliance
must be “consistent[].” 18
      The Intervenors presented hundreds of pages of evidence relating to
more than twenty employment-related decisions in the District over the past
several years. The district court heard four days of testimony, at two different
fairness hearings, from District officials and individuals who had applied for
employment or promotion in the District. The Intervenors urge that various
employment decisions show that the District failed to strictly follow the
consent decree in good faith; District officials provided explanations for the
alleged defections from consent decree procedures.
      We need not recount each of the Intervenors’ allegations here. The
district court’s finding that the District did not act in bad faith was based
significantly on its assessment of the credibility of the District officials’
testimony explaining the employment decisions at issue. In each instance, the
district court credited this testimony of District officials over the evidence that




      16 Anderson, 517 F.3d at 298.
      17 Freeman, 503 U.S. at 491.
      18 Anderson, 517 F.3d at 297 (quoting Hull, 1 F.3d at 1454).

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                                        No. 16-60722
the Intervenors suggested showed bad faith. 19 We are not in a position to
reassess the district court’s decisions to find some evidence credible and weigh
it more heavily than other evidence. Only the district court is able to observe
the witnesses and “the variations in demeanor and tone of voice that bear so
heavily on the listener’s understanding of and belief in what is said.” 20 “[T]his
court does not reweigh evidence and must defer to the trial court’s assessment
of the credibility of witnesses.” 21 The fact that contradictory evidence might
exist does not compel us to overturn the district court’s decision to credit other
evidence instead. 22 The Intervenors have not shown “the very rarest of
circumstances” 23 that would allow us to revisit the district court’s weighing the
credibility of the evidence. 24
       Even when the parties seem to agree on the facts, the Intervenors’
remaining arguments do not demonstrate clear error. The Intervenors
generally complain that the District violated the spirit of the consent decree—
or, as counsel put it at oral argument, “manipulated” the consent decree—
demonstrating the District’s bad faith. But assessing the District’s motivations
for particular acts again required the district court to make factual
determinations. We may only overturn these factual determinations if they are
implausible in light of the entire record. We here conclude that they are not.


       19  The district court similarly credited the District’s documentary evidence, such as
the candidate summaries that it created in reviewing each candidate’s scores, interview
comments, and information gleaned from references.
        20 Anderson, 470 U.S. at 575 (citing Wainwright, 469 U.S. 412 (1985)).
        21 Perez v. Bruister, 823 F.3d 250, 269 (5th Cir. 2016).
        22 See id.
        23 Shami v. Comm’r, 741 F.3d 560, 565 (5th Cir. 2014) (quoting Durrett v. Comm’r, 71

F.3d 515, 517 (5th Cir. 1996)).
        24 For example, the district court resolved a factual dispute about whether Misty

Hannah interviewed her husband, Charles Hannah. The district court concluded that Misty
was “in attendance for the sole purpose of taking notes for the interviewers.” This conclusion
is consistent with testimony from district officials, and is plausible in light of the record. For
this reason, we will not disturb the district court’s conclusion that this is not an example of
the District’s bad faith.
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                                       No. 16-60722
       For example, the Intervenors cite a number of instances when the
District did not hire the highest-rated applicant. In those instances, the
District proffered a reason for failing to do so, which it contends is a “legitimate
negative reason” according to the consent decree. The Intervenors counter that
these proffered reasons are pretextual. But there is evidence supporting the
conclusion that the District’s actions were consistent with the consent decree.
That indicates that the District’s motivations were genuine and not pretext. 25
These motivations are therefore plausible in light of the record.
       Similarly, the Intervenors complain that the District took a number of
actions that were not permitted by the consent decree, such as when the
District (1) relied on information about candidates that it received from outside
of the formal interview process and (2) allowed individuals who recommended
applicants to later interview those applicants. Such practices are not explicitly
permitted by the consent decree, but neither are they prohibited by it. The
district court therefore had to determine whether the District’s practices
demonstrated bad faith. It concluded that they did not, and there is insufficient
information in the record to upset that conclusion. For example, to prohibit


       25At oral argument, the Intervenors’ counsel cited as an example the District’s failure
to hire Katrina Smith. She had applied to be an instructional assistant, but she testified that
she told the District that she wanted the position because she had not passed the teacher-
licensing test. Smith had previously been a teacher in another school district, but had to stop
when her license expired and she did not pass the test to renew it. Smith was the highest-
scoring applicant, but in recommending a different candidate, the HR Director wrote “[Smith]
has a teaching position waiting for her[.]” This suggests that the District suspected that she
would return to her old teaching job once she passed the test. Smith testified that this was
not accurate, but also that she wanted the Simpson County job “because [she] did not pass”
the licensing test to continue in her prior job. The district court reasonably concluded that
the District relied on its suspicion—surely if Smith did intend to return to her old job, the
District would not expect her to say so explicitly. There is not sufficient information in the
record to overturn the district court’s implicit determination that the District’s expectation
that Smith would leave the position if her old job as a teacher became available was a
legitimate reason not to hire her. Even if it were not, it is equally plausible from the record
that the District was confused about Smith’s intentions, rather than that it was acting in bad
faith.
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                                 No. 16-60722
employees who recommend an applicant from interviewing that applicant
would be infeasible. It is likely that many employees of a small school district
would know each other. In fact, there was testimony that in at least one case,
references who interviewed a candidate were “part of the leadership team” for
the position being interviewed for. The Intervenors complain that an
interviewer who has given a favorable recommendation or reference taints the
“objective” nature of the hiring process under the decree. But interviewing is
inherently a subjective process. The consent decree does not purport to remove
all subjectivity; it attempts to give quantitative values to what are still
subjective criteria.
      In sum, the Intervenors have pointed to no practice or incident that was
objectively a violation of the consent decree. Instead, they have claimed to show
examples of the District’s bad faith. Perhaps some of these examples could be
interpreted to show bad faith on the District’s part, but the evidence in the
record does not compel that conclusion. The evidence before the district court—
including contemporaneous records made regarding each hiring decision—
supports the District’s explanations for all of its decisions. To assess whether
the District acted in bad faith, the district court was required to make factual
determinations from the evidence, and the whole of the record shows that these
factual determinations were plausible. We therefore have no basis to find clear
error in these conclusions.
B. Eliminating Vestiges Of De Jure Segregation
      The district court held that the District has eliminated the vestiges of de
jure discrimination in employment, pointing to the strides that the District has
made since the inception of the consent decree: The number of African-
American teachers has increased or remained steady in the last decade, and
the District has endeavored to recruit at historically black colleges and
universities. The Intervenors do not challenge these factual findings. Instead,
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                                      No. 16-60722
they contend that de jure segregation remains because the District continues
to engage in “racially motivated” employment decisions, and “cronyistic” and
“nepotistic” hiring—that is, considering only the favored candidates of those in
authority in the District.
       Eliminating the vestiges of de jure segregation requires “ensur[ing] that
the principal wrong of the de jure [segregation] system, the injuries and stigma
inflicted upon the race disfavored by the violation, is no longer present.” 26 But
“a formerly segregated school system need not employ a faculty having a racial
composition substantially equivalent to that of its student body [to effectively]
desegregate its schools and attain unitary status.” 27
       As for the alleged racially motivated employment decisions, the
Intervenors complain that a number of hiring decisions were racially
discriminatory. 28 If the District did engage in discriminatory hiring, that would
require reversal. But as explained above, the district court found that the
various employment decisions did not violate the consent decree: Because all
of those decisions were found to have been made in good faith, the court also
found that none were “motivated by race.” In other words, the district court
concluded that the District’s non-racial motivations for its actions were
genuine. As explained above, these findings were not clear error. Because we
do not reverse the district court’s holding that these decisions were in good
faith, did not conflict with the consent decree, and showed no pretext, we also




       26 Freeman, 503 U.S. at 485.
       27 Fort Bend Indep. Sch. Dist., 651 F.2d at 1138.
       28 The District argues that many of the hiring officials who declined to hire African-

Americans were themselves African-Americans, so that decision cannot be discriminatory.
But as the Intervenors point out, what matters is whether the employee was treated
differently because of race; the employer’s race is irrelevant.
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must affirm the conclusion that none show the racially discriminatory hiring 29
that would perpetuate de jure segregation.
       As for the alleged cronyism, the Intervenors cite to no case in which a
court has addressed—much less held—that cronyism perpetuates the vestiges
of de jure segregation. We may assume that if cronyism existed, it could
entrench the vestiges of segregation. 30 It is true that many candidates who
were hired had some connection to those who made hiring decisions, but this
is not surprising: The District is relatively small, and officials will obviously
know some candidates better than others. But again, the district court’s
determination that none of the hiring decisions involved improper decision-
making was plausible in light of the record. This compels the conclusion that
none of the hires were made because of cronyism. In other words, the district
court found that the District’s hiring decisions all involved legitimate motives,
and not cronyism. 31 Because these were factual determinations that are
plausible in light of the record, we will not disturb them on appeal.
                                      IV. CONCLUSION
       As the district court noted in granting unitary status, its order is the
final decision in a process that began over forty years ago. In fact, this appeal
concerns only employment, which was ultimately only one aspect of the racial
segregation that once existed within the Simpson County School District. The
district has been unitary in every other area—including in its most vital area,


       29  Even if an individual example cited by the Intervenors was suspicious, many of the
decisions the Intervenors claim are discriminatory involve the District recommending a
lower-ranking candidate of the same race as a higher-ranking candidate, and cannot be
evidence of de jure racial discrimination.
        30 Cf. Freeman, 503 U.S. at 489 (“A remedy is justifiable only insofar as it advances

the ultimate objective of alleviating the initial constitutional violation.”).
        31 Cronyism, by definition, requires favoring particular candidates “without regard to

their qualifications.” Cronyism, AM. HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th
ed. 2011). It follows that if the District legitimately considers all candidates’ qualifications,
there is no cronyism.
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                                         No. 16-60722
educating students—for more than ten years. As the district court noted, there
is an entire agency devoted specifically to the kinds of employment disputes
that are at issue in this appeal.
         Finally, in the words of the Eleventh Circuit:
         This judgment means that appellants have accomplished what
         they, decades ago, set out to do. They challenged a rigidly
         maintained, de jure system of school segregation and sued to bring
         it into compliance with the constitutional requirement of equal
         protection under the law. We say today that they have succeeded.
         If this judgment is counted as a loss for appellants, it is so because
         they have won.
         . . . The Board, and the people . . . who, in the end, govern their
         school system, must be aware that the door through which they
         leave the courthouse is not locked behind them. They will
         undoubtedly find that this is so if they fail to maintain the unitary
         system we conclude exists today. 32
The judgment of the district court is AFFIRMED.




         32   NAACP, Jacksonville Branch v. Duval Cty. Sch., 273 F.3d 960, 976–77 (11th Cir.
2001).
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