     Case: 18-30115   Document: 00514921544     Page: 1   Date Filed: 04/18/2019




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

                                                                     FILED
                                 No. 18-30115
                                                                   April 18, 2019
                                                                   Lyle W. Cayce
                                                                        Clerk
M.C. MOORE, as father and next friend to minors Joyce Marie Moore, Jerry
Moore, and Thelma Louise Moore; HENRY SMITH, as father and next friend
to minors Bennie Smith, Charles Edward Smith, Shirley Ann Smith, and
Earline Smith,

                                           Plaintiffs-Appellees,

v.

TANGIPAHOA PARISH SCHOOL BOARD, a corporation,

                                           Defendant-Appellant


                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before KING, HIGGINSON, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      In recent years the Tangipahoa Parish public schools have made
significant strides toward achieving a “unitary school system” free of the
vestiges of de jure segregation that prompted this desegregation case more
than a half century ago.
      In 2011, the district court granted the school system “conditional unitary
status” in extracurricular activities. The condition was that the court would
retain jurisdiction over extracurricular activities for one school year. So long
as the court was not presented with evidence of discrimination during the
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                                      No. 18-30115

probationary period, it would declare the district “unitary” (that is, grant “final
unitary status”) in that area and relinquish its control. It did just that in 2012.
       In 2015, the district court took a similar tack for staff assignments.
Finding that the district had worked for years to achieve the court’s goals in
that area, the court “provisionally granted” unitary status to the school district
for staffing decisions.
       This appeal arises from the district court’s 2017 decision to grant
“provisional” unitary status in another area: facilities. The court set a two-
year probationary period, during which it would retain jurisdiction over that
aspect of the desegregation order and the school district would face semiannual
compliance reviews. At the end of the two years, the court would consider an
“unconditional” grant of unitary status in facilities.
       This time the Board appealed. 1 It argues that a probationary period is
not allowed when a court takes an incremental approach to unitary status. If
that is not true, the Board argues it was not justified in this case.
       Requiring a probationary period before final dismissal of a desegregation
case is a longstanding practice in this circuit.           The so-called “Youngblood
procedure” arose when this court concluded that a district court had made a
premature finding of unitary status.              Youngblood v. Bd. of Pub. Sch.
Instruction of Bay Cty., Fla., 448 F.2d 770, 771 (5th Cir. 1971). We ordered the
district judge to reopen the case and retain jurisdiction “for a period not less
than three school years.” Id. During those years, the school district was
required to update the court on its compliance. Id. After three years, the court
would be permitted to consider dismissal of the desegregation case after a
hearing. Id. In the years since Youngblood, many courts have followed its



       1So did the plaintiffs, apparently challenging the decision to grant even provisional
unitary status. But they failed to file a brief.


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procedure as a final step to ensure full compliance before ending court
supervision. See, e.g., Price v. Austin Indep. Sch. Dist., 945 F.2d 1307, 1311
n.4 (5th Cir. 1991); Monteilh v. St. Landry Parish Sch. Bd., 848 F.2d 625, 629
(5th Cir. 1988); Ross v. Houston Indep. Sch. Dist., 699 F.2d 218, 227 (5th Cir.
1983).
      But the Board argues the Youngblood procedure should not be allowed
as a step on the path to declaring unitary status when unitary status is being
determined in an incremental manner. Youngblood involved a global inquiry
into whether a school district had complied with the whole of a desegregation
order. That overall finding of unitary status looks at whether a district is still
afflicted with the vestiges of segregation across a number of areas: not just
student   assignment,     but   also   staff   composition,   faculty   makeup,
transportation, extracurricular activities, and facilities. Green v. Cty. Sch. Bd.
of New Kent Cty., Va. 391 U.S. 430, 435 (1968) (listing these factors); see also
Anderson v. Sch. Bd. of Madison Cty., 517 F.3d 292, 298 (5th Cir. 2008) (same).
In 1992, the Supreme Court allowed district courts to consider unitary status
in a piecemeal manner when the school system had eliminated discrimination
for one or more but not all of the Green factors. Freeman v. Pitts, 503 U.S. 467
(1992) (“A federal court . . . has discretion to order an incremental or partial
withdrawal of its supervision and control.”). We had blessed the same practice
a couple years earlier. Flax v. Potts, 915 F.2d 155, 158 (5th Cir. 1990). The
Board contends that this now-common incremental, or subject-by-subject,
approach to unitary status is incompatible with a Youngblood probationary
period.
      The short answer to this is that Freeman said nothing about provisional
(that, is probationary or conditional) grants of unitary status. That answer is
also dispositive: “[F]or a Supreme Court decision to change our Circuit’s law,



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it ‘must be more than merely illuminating with respect to the case before [the
court]’ and must ‘unequivocally’ overrule prior precedent.” Tech. Automation
Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012)
(quoting Martin v. Medtronic, Inc.¸ 254 F.3d 573, 577 (5th Cir. 2011)).
       What is more, our early cases allowing the incremental approach to
unitary status endorsed the Youngblood procedure. Most notably, in rejecting
the Fort Worth NAACP’s challenge to a district court decision that the city’s
schools had achieved unitary status, we noted the “three-year Youngblood
period” would allow the district court to make a final determination whether
the school system had eliminated the vestiges of discrimination in hiring and
assigning teachers. Flax, 915 F.2d at 163; see also United States v. Overton,
834 F.2d 1171, 1177 & n.20 (5th Cir. 1987) (noting that the Austin school
district had been subject to a three-year Youngblood period in rejecting an
attempt to reopen that desegregation case). 2 And the circuit that we followed
when adopting the incremental approach to unitary status, Morgan v. Nucci,
831 F.2d 313 (1st Cir. 1987), cited in Flax, 915 F.2d at 158, later approved use


       2  Hull v. Quitman County Board of Education is not to the contrary. 1 F.3d 1450 (5th
Cir. 1993). It does not address the relinquishment or retention of jurisdiction over
desegregation decrees. Id. at 1451–52 (addressing whether district court abused its
discretion in refusing to enjoin closure of only remaining white majority elementary school
in district). And Hull’s discussion of Freeman—citing it for the principle that “lower courts
have discretion to terminate a desegregation case if a school board has consistently complied
with a court decree in good faith,” id. at 1454 (emphasis added)—if anything supports a
district court’s ability to use a probationary period before issuing a final ruling on compliance.
        Nor does United States v. Midland Independent School District prohibit the use of the
Youngblood procedure when courts take an incremental approach to unitary status. 48 F.
App’x 102 (5th Cir. 2002) (per curiam). That unpublished opinion rejected an appeal of a
district court ruling that dismissed the remaining five areas of court supervision without
holding a final compliance hearing. In finding no abuse of discretion in the refusal to hold
that final hearing, we noted that the incremental method can “attain[] the same substantive
goals achievable by using the Youngblood procedures.” Id. at *1. But recognizing that the
Youngblood procedure is not always necessary—something that is true whether a court is
engaging in a global or incremental approach to unitary status—does not mean it is no longer
within a district court’s discretion in deciding whether a school system has achieved unitary
status.


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of a Youngblood probationary period before the district court ended oversight
of teacher assignments in Boston schools, Morgan v. Burke, 926 F.2d 86, 91
(1st Cir. 1991) (explaining that this “limited monitoring” was supported by our
Youngblood procedure (citing Ross, 699 F.2d at 227)).
      These cases recognize that there is no tension between Youngblood’s
probationary period and Freeman’s incremental approach to finding unitary
status. Indeed, a provisional grant of unitary status is itself “an incremental
or partial withdrawal of [a court’s] supervision and control.” Freeman, 503
U.S. at 489. A district court’s discretion to gradually relinquish jurisdiction
rather than make all-or-nothing decisions is central to Freeman. Id. at 490
(noting that a court must “provide an orderly means for withdrawing control
when it is shown that the school district has attained the requisite degree of
compliance” and that “[a] transition phase in which control is relinquished in
a gradual way is an appropriate means to this end”). Both when it uses a
Youngblood probationary period and when following Freeman’s incremental
approach, a court is breaking up the ultimate finding of unitary status into
smaller steps rather than making that decision in one fell swoop.             These
gradual approaches help reduce the level of court oversight before the court
determines the school system has achieved global unitary status and the
court’s supervision ends for good. And in at least one sense the Youngblood
period is less burdensome for a school system on the brink of achieving unitary
status in just one area, like facilities, than it is when it poses the final obstacle
to global unitary status: In the former situation, the probationary period is not
all that stands between the district and getting completely out from under
court oversight; the case remains pending because in other areas—student
assignment in this case—the district has not yet eliminated the effects of
discrimination.



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      The Board’s contrary view that Freeman forbids the probationary period
we have long endorsed may reflect a misunderstanding of what the Youngblood
procedure means. The Board is correct that a district court’s supervision
should end once it makes a final determination of unitary status. Bd. of Educ.
of Okla. City Pub. Sch. v. Dowell, 498 U.S. 237, 248 (1991); see also Overton,
834 F.2d at 1174. The disconnect is that a district court’s decision to impose a
Youngblood period reflects its view that a final determination of good faith
compliance is not yet possible.      Nomenclature may be the source of the
confusion. As this court has stated, there is no longer any magic to the phrase
“unitary status.”    Hull, 1 F.3d at 1454.     The district court here “granted
provisional unitary status in the area of facilities.” “Provisional” is the key. It
would have been clearer not to accompany that word with “a grant of unitary
status,” but we have elsewhere recognized that an order using those words can
be read as no grant at all. 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”). Indeed, the
district court’s order was explicit that it would later consider granting “final”
unitary status. Also removing any doubt is the court’s explanation that it
needs additional limited oversight during “a two-year probationary period”
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.” Freeman, 503 U.S. at 491.
      We thus reject the Board’s legal challenge to the Youngblood procedure.
A district court has long had discretion to impose a Youngblood period, and the
Board cites nothing that would allow us to depart from that settled law.




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      That leaves the Board’s argument that use of a probationary period was
not justified under the facts of this case. Its view that the district court relied
on insufficient evidence of ongoing discrimination stems from the same
misreading of the district court’s order that we have just discussed.         The
district court did not make a new and independent finding of discrimination
after concluding that the Board had fully complied with the desegregation
decrees. In other words, as the district court emphasized, it did not make a
finding of bad faith. Instead, the district court was deciding whether the Board
has met its burden of establishing, among other things, that it had
demonstrated good faith commitment to complying with the court’s orders. Id.;
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). The district court concluded that the Board had gotten most of the
way there, but that some doubt remained, warranting a two-year probationary
period. In relying on the Board President’s comments to find that the Board
came up a bit short of demonstrating good-faith compliance, the district court
made a judgment call. We see no clear error with that determination in this
long-pending desegregation case with which the district court is intimately
familiar. United States v. Fletcher, 882 F.3d 151, 155, 157 (5th Cir. 2018)
(noting that if a district court’s factual finding on good faith “is plausible in
light of the record” it should not be disturbed); Anderson, 517 F.3d at 296
(recognizing that a district court’s findings “are entitled to great deference” in
desegregation cases, especially when the district judge has “supervised the
case for many years” (cleaned up)).
      The judgment of the district court is AFFIRMED.




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