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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 13-60464                   United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
DIANE COWAN, etc., et al                                           April 1, 2014
                                                                 Lyle W. Cayce
                                          Plaintiffs                  Clerk
v.

UNITED STATES OF AMERICA,

                                          Intervenor Plaintiff - Appellant

v.

CLEVELAND SCHOOL DISTRICT,

                                          Defendant - Appellee


                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      In this nearly fifty-year-old desegregation case, the United States
appeals the district court’s order implementing a freedom of choice plan
intended to desegregate the formerly de jure African-American middle school
and high school in the Cleveland School District (“the District”). We reverse
and remand for further consideration of the desegregation remedy.
                 I. Factual and Procedural Background
      The Cleveland School District encompasses the southeast area of Bolivar
County in the Mississippi Delta, including the city of Cleveland, the towns of
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Boyle, Renova, and Merigold, and outlying areas. Most of the District’s schools
are located in Cleveland, a city of approximately 12,000 people. The District
is one of many school districts in Mississippi that previously practiced race-
based de jure segregation in education. Under that system, African-American
students were required to attend schools on the east side of the railroad tracks
that run north to south through Cleveland, while white students attended
schools on the west side of town. The original plaintiffs in this case sued in
1965 to enjoin the District from maintaining segregated schools, and the
district court ordered the District to submit a desegregation plan to dismantle
the dual school system and remedy the continuing effects of segregation. The
United States intervened in 1985. Over the ensuing decades, the district court
has supervised the desegregation efforts in the District through a series of
desegregation orders. 1 The present appeal concerns D.M. Smith Middle School
and East Side High School, the formerly de jure African-American junior high
and high school in the District, which are located near each other on the east
side of town. 2 The formerly de jure white junior high and high school, Margaret
Green Junior High and Cleveland High School, are located adjacent to each
other on the west side of town.
       The United States filed a motion in May 2011, arguing that the District
was not in compliance with the extant desegregation orders and requesting
further relief. The desegregation orders contain a number of components, but
the United States challenged only the District’s non-compliance with the



       1 The details of these orders are recounted at length in the district court’s thorough
March 28, 2012 memorandum opinion. See Cowan ex rel. Johnson v. Bolivar Cnty. Bd. of
Educ. (Cowan I), 914 F. Supp. 2d 801 (N.D. Miss. 2012). We discuss only those portions of the
orders that are relevant to the instant appeal.
       2 Under the de jure system, all African-Americans in grades 7-12 attended a single

school, now East Side High School. A second junior high, D.M. Smith Middle School was
constructed later, on a site behind East Side High School.
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student assignment and faculty assignment components of the desegregation
orders. In relevant part, with regard to junior high and high school student
assignment, the previous desegregation orders created east and west
attendance zones, bounded by the railroad tracks in the center of town: all
students living west of the tracks attended Margaret Green Junior High and
Cleveland High School, while all students living east of the tracks attended
D.M. Smith Middle School and East Side High School. The orders also included
a majority-to-minority transfer policy requiring the District to encourage and
permit students in the racial majority at one school to transfer if they would
be in the racial minority at the other school.          The faculty assignment
component of the desegregation orders provided that the faculty and
professional staff at each school should reflect the districtwide ratio of minority
and nonminority faculty and professional staff to the extent feasible.
      In a thorough, well-reasoned March 28, 2012 memorandum opinion, the
district court analyzed whether the District was in compliance with the
student assignment and faculty assignment components of the desegregation
orders. Cowan ex rel. Johnson v. Bolivar Cnty. Bd. of Educ. (Cowan I), 914 F.
Supp. 2d 801 (N.D. Miss. 2012). It determined that the District had achieved
desegregation in many of its schools, particularly within the District’s six
elementary schools. It noted the District’s success in attracting white students
to its formerly de jure African-American elementary schools through magnet
programs and magnet schools. It also found that the District’s formerly de jure
white junior high and high school, Margaret Green Junior High School and
Cleveland High School, were desegregated. However, the district court found
that a new plan was needed to eliminate segregation at D.M. Smith Middle
School and East Side High School, which have never been meaningfully
desegregated but have always been and continue to be racially identifiable,
almost exclusively black schools. Although white enrollment in the District
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has held steady around 29% in recent years, the student population at D.M.
Smith and East Side High is now and has always been between 98% and 100%
black.
         The District submitted its proposed desegregation plan for the 2012-2013
academic year in May 2012. The District proposed to create new magnet
programs and revitalize existing magnet programs at D.M. Smith and East
Side High. The proposed plans consisted of offering specialized or advanced
classes only at D.M. Smith Middle School and East Side High School, and
recommitting to the International Baccalaureate programs at both schools in
order to attract students enrolled at Margaret Green Junior High School and
Cleveland High School, and to attract students graduating from the successful
magnet programs at the elementary schools. Parts of the District’s plan called
for white students to attend D.M. Smith or East Side High for certain classes
or for part of the day, without enrolling full time at those schools. The United
States objected to the District’s plan, claiming that the magnet programs did
not and would not attract white students in significant numbers and the
District’s plan would not meaningfully integrate the schools.         The United
States also argued that consolidation of the schools into one junior high and
one high school for the entire District would accomplish the objectives set forth
by the district court.
         The district court held a hearing on the adequacy of the District’s
proposed plan in December 2012.          Beverly Hardy, an elementary school
principal and director of the magnet program, and Maurice Lucas, president of
the school board, testified in favor of the District’s plan. Hardy explained how
the magnet programs at the schools would work, and Lucas explained why the
school board chose its plan, claiming that the magnet programs were likely to
be successful.     He also testified that the school board had not considered
consolidation. The United States called Reverend Edward Duval, Lenden
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Sanders and Tonya Short, parents of children attending East Side High School
and D.M. Smith Middle School. These witnesses opposed the District’s plan,
generally testifying that the schools on the east side of town were not
academically challenging for their children, that there was a continuing stigma
associated with attending those schools, and that the public consensus was in
favor of consolidation.
      The district court issued its memorandum opinion regarding the
desegregation remedy on January 24, 2013. Cowan ex rel. Johnson v. Bolivar
Cnty. Bd. of Educ. (Cowan II), 923 F. Supp. 2d 876 (N.D. Miss. 2013). The
district court detailed observations from its site visit to the Cleveland schools,
noting that D.M. Smith and East Side High had equal or better facilities
compared to Margaret Green Junior High and Cleveland High School. The
district court then rejected both the District’s proposed desegregation plan and
the United States’s proposed alternative of consolidation, and adopted a new
plan not previously suggested. Finding that “the attendance zones, as defined
by the former railroad tracks in Cleveland, perpetuate vestiges of racial
segregation,” the district court adopted a plan that abolished the attendance
zones and majority-to-minority transfer program and implemented a freedom
of choice plan that allows each student in the district to choose to attend any
junior high or high school.
      Shortly thereafter, the United States filed a Rule 59 motion to alter the
judgment. It maintained, as it does on appeal, that the freedom of choice plan
was constitutionally inadequate and again argued that the appropriate
solution was consolidation. The District responded, as it does on appeal, by
defending the freedom of choice plan.          It argued that the plan was
constitutionally adequate and that the United States had not offered evidence
that the plan would not work. It also argued that a mandatory consolidation
plan would ultimately result in decreased integration due to “white flight” from
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the District, as mandatory consolidation would lead to white parents leaving
the District or placing their children into private schools. While the Rule 59
motion was pending, the District submitted pre-enrollment data for the 2013-
14 school year.   As of April 1, 2013, approximately three-quarters of the
District’s eligible junior high and high school students had pre-enrolled. Of
those that had pre-enrolled, not one white student chose to pre-enroll at East
Side High School, but 216 African-American students pre-enrolled at that
school.   Similarly, not a single white student pre-enrolled at D.M. Smith
Middle School, but 134 African-American students pre-enrolled there.         In
addition to noting the obvious racial imbalance suggested by this data, the
United States pointed out that, depending upon where the undecided African-
American students chose to pre-enroll, there was a real possibility that
Margaret Green Junior High School and Cleveland High School might be
oversubscribed and D.M. Smith Middle School and East Side High School
would not have enough students to operate economically. The district court
denied the Rule 59 motion. It stated that it had considered the pre-enrollment
data and the response of the United States but that it would not alter its
judgment. In reaching this conclusion, the district court stated that it “gives
credence to the testimony of the African-American president of the District’s
school board, Maurice Lucas.” Mr. Lucas had testified that he did not support
consolidation, because it was not his intention to eliminate East Side High
School and that he believed the identity of the two high schools was important
to the community.
      The United States appeals the district court’s order instituting the
freedom of choice plan as a desegregation remedy. Neither the United States
nor the District appealed the district court’s March 28, 2012 memorandum
opinion, which found that the District had achieved integration at many of its


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schools but found continuing segregation at East Side High School and D.M.
Smith Middle School. 3
                                        II. Analysis
       “Failure on the part of school authorities to implement a constitutionally
prescribed unitary school system brings into play the full panoply of the trial
court’s remedial power.” Valley v. Rapides Parish Sch. Bd., 702 F.2d 1221,
1225 (5th Cir. 1983) (citing Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 (1971)). We review the district court’s implementation
of desegregation remedies for abuse of discretion. Id. We review conclusions
of law de novo, and findings of fact for clear error. Id. Here, neither party
challenged the district court’s determinations that a new plan should be
administered to desegregate D.M. Smith Middle School and East Side High
School, and that further remedies were not necessary in the District’s
elementary schools. On appeal, the United States asks us to remand so that
the district court can consider alternative plans to desegregate D.M. Smith and
East Side High, including consolidation, while the District requests that we
affirm the implementation of the freedom of choice plan.
       In desegregation cases, the objective is “to eliminate from the public
schools all vestiges of state-imposed segregation.” Swann, 402 U.S. at 15. “The
transition to a unitary, nonracial system of public education was and is the
ultimate end to be brought about. . . .” Green v. Cnty. Sch. Bd. of New Kent



       3 The district court also determined that, despite its good faith effort, the District was
not in compliance with the faculty assignment component of the extant desegregation orders.
The district court ordered the District to submit a plan with “real prospects for achieving a
ratio of African-American to Caucasian teachers and administration in each school to
approximate the race ratio throughout the districtwide school system.” However, the
subsequent order regarding the desegregation remedy failed to address faculty assignment,
an issue the parties only briefly mention on appeal. On remand, the district court should
clarify the status of this issue, particularly whether there is a continuing violation, and if so,
the remedy to be implemented.
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Cnty., Va., 391 U.S. 430, 436 (1968). The duty is not simply to eliminate
express racial segregation: where de jure segregation existed, the school
district’s duty is to eliminate its effects “root and branch.” Id. at 437-38. Now,
six decades after Brown v. Topeka Board of Education, 347 U.S. 483 (1954),
“[t]he burden on a school board today is to come forward with a plan that
promises realistically to work, and promises realistically to work now.” Green,
391 U.S. at 439; see Davis v. E. Baton Rouge Parish Sch. Bd., 721 F.2d 1425,
1437 (5th Cir. 1983).
      A freedom of choice plan is not necessarily an unreasonable remedy for
eliminating the vestiges of state-sponsored segregation, but it has historically
proven to be an ineffective desegregation tool. See Green, 391 U.S. at 439-40.
Likewise, some racially homogeneous schools within a school system do not
necessarily violate the federal Constitution. See Swann, 402 U.S. at 25-26;
Valley, 702 F.2d at 1226; see also Flax v. Potts, 915 F.2d 155, 160-62 (5th Cir.
1990). However, “[t]he retention of all-black or virtually all-black schools
within a dual system is nonetheless unacceptable where reasonable
alternatives may be implemented.” Valley, 702 F.2d at 1226. The retention of
single-race schools may be particularly unacceptable where, as here, the
district is relatively small, the schools at issue are a single junior high school
and a single high school, which have never been meaningfully desegregated
and which are located less than a mile and a half away from the only other
junior high school and high school in the district, and where the original
purpose of this configuration of schools was to segregate the races. Apart from
the fact that Cleveland has not sought a declaration of unitary status and has
not challenged the district court’s conclusion that further remedies are
necessary, on the record now before us, the situation in Cleveland is
distinguishable from those where we have found that the retention of some
one-race schools did not preclude a declaration of unitary status. See Flax, 915
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F.2d at 161 (finding that fourteen schools that were over 80% black did not
preclude declaration of unitary status in large urban district with 98 total
schools, where it was “essentially uncontroverted” that the district had
succeeded in “removing the vestiges of the dual system”); Ross v. Houston
Independent School District, 699 F.2d 218, 226-28 (5th Cir. 1983) (finding that
thirty-three schools that were 90% black did not preclude declaration of
unitary status in large urban district with 226 schools facing “unusual,
perhaps unique, problems,” including rapidly changing demographics and
housing patterns).
      We acknowledge that confecting a remedy in these types of cases can be
especially difficult. No matter how noble the effort, the effect can be less than
adequate.   Unlike the district court’s earlier opinion finding that further
remedies were necessary, the remedial order adopting the freedom of choice
plan lacks explanation. While we are “mindful that the scope of a district
court’s equitable power to remedy past wrongs is broad, for breadth and
flexibility are inherent in equitable remedies,” Valley, 702 F.2d at 1225
(internal quotation marks omitted) (quoting Swann, 402 U.S. at 15), we are
unable to evaluate the soundness or reasoning of the decision, where it is not
discussed in the opinion. Although we do not hold that the freedom of choice
plan is necessarily inadequate, there are apparent deficiencies in the plan that
were not addressed by the district court. First, there was no evidence or
explanation indicating that the freedom of choice plan was likely to work, and
all the available empirical evidence indicates that the plan is not likely to
contribute to meaningful desegregation at D.M. Smith Middle School or East
Side High School.      African-American students residing in the eastern
attendance zone have availed themselves of the now abolished majority-to-
minority transfer policy over the years, but in the nearly five decades in which
the District has been under federal court supervision, not one white student
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has ever voluntarily transferred to D.M. Smith Middle School or East Side
High School. The pre-enrollment data for the 2012-13 school year, submitted
while the Rule 59 motion was pending, indicated that the order had no effect
on the status quo: no white student pre-enrolled at D.M. Smith or East Side
High. Albeit not part of the record before the district court, the District at oral
argument acknowledged that the plan has now been in effect for over a year,
and no white student has enrolled at D.M. Smith or East Side High. In
defending the freedom of choice plan on appeal, the District does not even
forcefully argue that the plan is likely to work at D.M. Smith Middle School
and East Side High School, instead focusing on its successes at other schools
in the district. Lastly, the district court did not explain its reasoning for
rejecting the District’s proposed desegregation plan of revitalizing and
expanding magnet programs at the black schools, or the United States’s
proposed remedy of consolidation, and instead adopted a freedom of choice plan
that neither party had suggested. The district court encouraged the District
to continue to strengthen its magnet programs but did not order the magnet
program plan to be implemented.
      “The findings and conclusions we review must be expressed with
sufficient particularity to allow us to determine rather than speculate that the
law has been correctly applied.” Davis v. E. Baton Rouge Parish Sch. Bd., 570
F.2d 1260, 1263-64 (5th Cir. 1978). The district court did not make clear its
conclusion that the problem of the continuing racial isolation and racial
identifiability of D.M. Smith Middle School and East Side High School would
be resolved by the implementation of a freedom of choice plan. We do not hold
that the freedom of choice plan is constitutionally inadequate or could form no
part of a desegregation plan. But the district court should consider, review and
explain why it is discarding some remedies in favor of others. If the district
court concluded that the freedom of choice plan was likely to be successful, it
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                                  No. 13-60464
must explain why and consider the contradictory evidence in the record. On
appeal, the District strongly implies that, essentially, there is no more that it
can do to desegregate D.M. Smith and East Side High. The district court,
however, concluded that the District should remain under federal supervision
and ordered the District to propose a new desegregation plan for those two
schools. Further, the District has not moved for unitary status. However, if
the district court’s remedy is premised on a conclusion that, aside from the
freedom of choice plan, there is nothing more that the District can or should do
to desegregate D.M. Smith and East Side High, that conclusion should be
justified. If the district court’s order is premised on avoiding “white flight” that
may occur as a result of other proposed remedies such as consolidation, it must
grapple with the complexities of that issue. See United States v. Pittman by
Pittman, 808 F.2d 385, 391 (5th Cir. 1987) (noting that white flight may be one
legitimate concern “when choosing among constitutionally permissible plans”
but “cannot be accepted as a reason for achieving less than complete uprooting
of the dual public school system”). While we do not require the district court
to provide us a granular report regarding every option considered, the district
court should sort through the various proposed remedies, exclude those that
are inadequate or infeasible and ultimately adopt the one that is most likely to
achieve the desired effect: desegregation.
      Given the available statistics showing that not a single white student
chose to enroll at D.M Smith or East Side High after the district court’s order,
and that historically, over the course of multiple decades, no white student has
ever chosen to enroll at D.M. Smith or East Side High, the district court’s
conclusion that a freedom of choice plan was the most appropriate
desegregation remedy at those schools certainly needed to be expressed with
sufficient particularity to enable us to review it. See Davis, 570 F.2d at 1263-
64. We therefore reverse and remand for a more explicit explanation of the
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reasons for adopting the freedom of choice plan, and/or for consideration of the
alternative desegregation plans proposed by the parties, as appropriate.
                               III. Conclusion
      For the foregoing reasons, we REVERSE and REMAND to the district
court for further proceedings consistent with this opinion.




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