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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION ) ) Plaintiffs, ) ) v. ) CIVIL ACTION No. 3:67-cv-04156-TSL-FKB ) ) ) RANKIN COUNTY ) BOARD OF EDUCATION, et al. ) ) Defendants. ) ____________________________________) UNITED STATES RESPONSE AND OBJECTION TO PEARL PUBLIC SCHOOL DISTRICTS MOTION FOR ENLARGEMENT OF PEARL ATTENDANCE ZONE AND DECLARATION OF UNITARY STATUS On November 1, 2011, the Pearl Public School District (the District or PPSD) filed a Motion for Enlargement of Pearl Attendance Zone and, Thereupon, Declaration of Unitary Status (the Motion) and corresponding Memorandum Brief in Support of Enlargement of Pearl Attendance Zone and, Thereupon, Declaration of Unitary Status (the Memorandum). PPSDs Motion has two prongs: PPSD first seeks to expand its current school attendance zones by acquiring areas currently within the court-ordered attendance zones of the Rankin County School District (RCSD), a party to this litigation. Second, PPSD moves for a declaration of unitary status predicated upon any such re-aligned attendance zones. With regard to the first prong of its Motion, the District has failed to satisfy its burden to demonstrate that the expansion and realignment of PPSDs attendance zones would not negatively affect both PPSDs and RCSDs affirmative desegregation obligations under the extant desegregation orders. As such, this part of KENNETH W. ADAMS, et al.

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PPSDs motion should be denied. 1 PPSDs motion for a declaration of unitary status predicated upon any school zone re-alignment should also be denied as both premature and inappropriate. If and when this (or any other) consent decree affecting a school districts desegregation obligation is modified, such decree must be in place and in operation for a reasonable period of time before any motion for unitary status may be considered by a court. 2 Clearly, PPSD has yet to reach that point here. I. PROCEDURAL HISTORY On September 26, 1967, this Court ordered RCSD, of which the Pearl community was a part, to take proactive steps to disestablish all school segregation and to eliminate the effects of its dual school system. On April 6, 1970, the Court entered an Opinion and Order Providing for Unitary School System (the 1970 Order) in RCSD which, among other things, created five school zones and sub-zones within RCSD. One of those zones was the Pearl-Brandon School Attendance Zone, which was divided into two attendance areas; the Pearl School Attendance Area and the Brandon School Attendance Area. On September 27, 1973, the United States Court of Appeals for the Fifth Circuit held that RCSD failed to establish a fully unitary system, directing them to take steps to eliminate or overcome such deficiencies. On November 27, 1973, this Court entered a Consent Order (the 1973 Order) which required, among other things, modifications to the attendance zones, approvals for any new construction, the desegregation of classes, reinstatement of a full schedule
While the United States presently must object and oppose this part of PPSDs motion in order to preserve and protect the interests of the United States, its position may or may not change after it has an opportunity to request, obtain, and review salient and necessary information regarding the effect such re-alignment would have on both school districts. The PPSD has requested, in pertinent part, an opportunity to engage in discovery regarding the facts underlying this motion. See Motion at 10. The United States does not object to such discovery with regard to the attendance zone issue but any discovery regarding unitary status for a school district operating under a newly revised consent decree would be inappropriate and premature. See discussion infra. 2 Moreover, in any motion for unitary status, PPSD would carry a heavy affirmative burden of proof to demonstrate that it has eliminated the vestiges of its prior de jure system. See discussion infra.
1

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of extra-curricular and social activities and events, the elimination of overlapping bus routes, the assignment of bus drivers to routes without regard to race of the students, and semiannual reporting (with respect to student assignment, faculty and staff assignment, transfers, transportation, construction and facilities, and resource allocation). In July of 1976, the Pearl Public School District was established as a separate municipal school district. On August 21, 1978, this Court issued a Consent Order (the 1978 Order) that, among other things, modified the attendance zones, provided for the construction of a new school to alleviate some of the overcrowding in the Pearl and Brandon Attendance Zones, required that the percentage of black students in any school shall not exceed 45% or fall below 12%, required all new construction to be approved by plaintiffs, assured that all schools shall be operated without racial discrimination; required defendants to take affirmative steps to ensure proportionate black participation and all student and faculty activities, ensured representation in all professional, administrative and non-professional employment areas, and established reporting requirements. The 1978 Order supplemented the 1970 and 1973 Orders, and all matters not inconsistent with the 1970 and 1973 Orders remained in full force and effect. In addition, this Court made clear that the 1978 Order applies to the Rankin County Public Schools as they existed prior to the incorporation of the City of Pearl and the formation of the Pearl Municipal Separate School District, and it, therefore, applies with equal force to administrators, faculty and students of what is now known as the Pearl Municipal Separate School District. 1978 Order at 5. On March 23, 1995, two decades after being established as a separate school district, PPSD filed a motion to intervene as a separate defendant in the instant matter. PPSD argued that

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the boundaries of the Pearl Attendance Zone had become objectionable and it was required to educate children that resided outside of the Pearl Public School District. See March 23, 1995 Complaint of Intervention. The Court found that a common question of fact exists, the boundaries of the Pearl Attendance Zone, and granted PPSDs motion to intervene on December 7, 1995. December 7, 1995 Memorandum Opinion and Order at 6. The parties reached and filed with the court a settlement agreement regarding the issues raised by the PPSD in its complaint of intervention, as amended on December 28, 1995. May 1, 1997 Consent Order (the 1997 Order) at 1. As part of the settlement agreement, the parties agreed that the Taylorsville area would be removed from the Pearl Attendance Zone by requiring students at different levels to be transferred from the PPSD to the RCSD over a period of several years. The result was that the Pearl Attendance Zone was reconstituted to exclude the Taylorsville area, which became a part of the RCSD. Id. at 2. Of particular importance here, this Court noted, in the 1997 Order, that the student assignment plans approved by the Court remained in full force and effect. Id. at 4. It goes without saying that the 1970 Order and all subsequent orders apply with equal force to both PPSD and RCSD.3 On November 1, 2011, PPSD filed the instant Motion and Memorandum, requesting this Courts approval to modify its attendance zone as detailed in the desegregation orders of this

On June 1, 2010, RCSD filed a Motion to Modify the Consent Decree (Motion to Modify) seeking court approval of an improperly adopted and flawed Resolution which had permitted certain parents to elect, and their children to attend, school in either school district. While RCSD and PPSD had operated and abided by the Resolution since 2008, both school districts had failed to notify or seek agreement from the requisite parties and approval by this Court. When the United States learned of this Resolution, which had already expired, it noted its disapproval with the Court and put the parties on notice that it would object to any future agreements between the RCCSD and PPSD which affect their respective responsibilities and requirements under their desegregation Orders without first notifying all the parties and the Court and obtaining the necessary approvals. See Letter from Christopher S. Awad to the Honorable Tom S. Lee, dated June 13, 2011. Also, on July 1, 2010, PPSD filed a response in opposition to the motion, arguing that RCSDs Motion to Modify was moot and that there was no justiciable issue before the Court. July 1, 2010 Response to Motion to Modify Consent Decree at 5

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Court (the 1970 Order, the 1973 Order, the 1978 Order and the 1997 Order). The PPSD seeks to change PPSD and RCSDs attendance zones to make PPSDs school attendance zone boundaries coterminous with the expanded municipal Pearl city limits, pulling children currently assigned to the RCSD attendance zones into the PPSD attendance zones. Memorandum at 18. PPSDs motion also seeks a declaration of unitary status predicated upon and subsequent to this Courts approved alteration of the two school districts attendance zones. Id. at 4. II. ARGUMENT A. PPPSDs Motion to Modify its Extant Consent Decrees by Expanding its Student Attendance Zones Should be Denied

Unilateral requests to modify consent decrees are evaluated under an exacting standard. Rule 60(b)(5) of the Federal Rules of Civil Procedure provides that a court may modify or relieve a party from a final judgment, order, or proceeding, such as a consent decree when, inter alia, the judgment has been satisfied . . . or applying it prospectively is no longer equitable. Fed. R. Civ. P. 60(b)(5). Consent decrees are subject to Rule 60(b). See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992) (finding a consent decree is a judicial decree that is subject to the rules generally applicable to other judgments and decrees). A party seeking to modify a consent decree must show an unanticipated change in fact or change in federal law has made compliance with the consent decree significantly impractical, detrimental to the public interest, or illegal. See Horne v. Flores, 129 S. Ct. 2579, 2595 (2009) (noting that in order to modify a remedial order, a moving party must establish that applying the order is no longer equitable because of a significant change in either fact or law); Rufo, 502 U.S. at 383, 385. The Eleventh Circuit has further explained the Rufo standard, establishing a four part 5

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review: Modification may be considered when (1) a significant change in facts or law warrants change and the proposed modification is suitably tailored to the change, (2) significant time has passed and the objectives of the original agreement have not been met, (3) continuance is no longer warranted, or (4) a continuation would be inequitable and each side has legitimate interests to be considered. NAACP v. Duval County Sch. Bd., 978 F.2d 1574, 1582 (11th Cir. 1992). In determining whether there has been a change in fact or law that justifies modifying the consent decree, the party seeking the modification must posit evidence which supports its assertion that such a change has occurred. See Duval County Sch. Bd, 978 F. 2d at 1583. If the party presents a change in fact, that change must result in rendering compliance with the consent decree more onerous, unworkable, or detrimental to the public interest. Rufo, 502 U.S. at 384-85. It is not enough to argue that the expansion of municipal city limits, by itself, could justify modifying school attendance zones subject to existing desegregation orders. Rather, the appropriate measure is whether such re-alignment of student attendance zones advances or impedes the desegregation of both PPSD and RCSD. See United States v. Scotland Neck Bd. of Educ., 407 U.S. 484, 489 (1972) (holding that any attempt by state or local officials to carve out a new school district from an existing district that is in the process of dismantling a dual school system must be judged according to whether it hinders or furthers the process of school desegregation. (quoting Wright v. Council of City of Emporia, 407 U.S. 451, 460 (1972)). In addition, the burden is placed on PPSD to demonstrate that its proposed modification would not adversely impact desegregation in RCSD and PPSD now. Valley v. Rapides Parish Sch. Bd., 173 F.3d 944, 945 (5th Cir. 1999) (en banc) (the school district seeking modification/separation, must demonstrate that implementation and operation of the proposed

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district will not adversely impact the plan of desegregation under which the [original] district now operates.). 4 PPSD has failed to meet this burden. PPSD advances three main reasons why realignment of attendance zones is needed. First, it argues that without such expansion, its present minority students may become racially isolated, see Memorandum at 3-4, and at some unknown time in the future, the percentage of minority students may tend to increase gradually, id. at 16. In support of this argument, PPSD simply submitted summary information showing a decline in its white student population from 73% to 58% over a ten-year period (although it is still a majority white school district), an increase in minority students 5 and a smaller decline in the white student population of RCSD (from 76% to 74%). See Motion, Exhibit B at 6-5, 9. Totally missing from this analysis is any detailed information, disaggregated by race, grade and school, of the students who would be reassigned to each particular PPSD school and the corresponding data, again disaggregated by race, grade and school, of the students

For example, PPSD must demonstrate, (and this Court must consider), a number of factors, including, but not limited to: (1) the availability of procedures, methods and agreements that will avoid any adverse impact to both school systems ability to desegregate; (2) that it will support their implementation; (3) how it plans to work with the RCSD School Board regarding (a) interdistrict pupil assignments, including transportation; (b) curriculum composition and control; (c) teacher employment, discharge, assignment and transfer; (d) financing and taxation; (e) school building construction; utilization and closing procedures; (f) special district-wide efforts such as a magnet school program; and (g) administration; (4) that this modification will not have a substantial adverse effect on the quality of education for students remaining in the RCSD; (5) that this modification will not induce white students to leave the RCSD; and (6) that this modification was not created as simply a reaction to the operation of the desegregation order. See, Valley v. Rapides Parish Sch. Bd., 173 F.3d 944, 945 (5th Cir. 1999) (en banc), 173 F.3d at 945; Ross v. Houston Indep. Sch. Dist., 559 F.2d 937, 943-45 (5th Cir. 1977). Moreover, the Fifth Circuit did not intend this list to be exhaustive. Valley, 173 F.3d at 945. 5 It is disingenuous and potentially misleading to lump together all minority students. The desegregation orders focus on black and white students, not white and non-white students. See 1978 Order at 3.

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who would be forced to leave each particular RCSD school. Such information is necessary (but certainly not the only information necessary6) to evaluate the substantive impact upon both school systems desegregation obligations and their corresponding abilities to further advance desegregation in their respective school districts. Moreover, PPSD is and continues to be a majority white school district. PPSD also claims that without [c]arefully calibrated strategic intervention, PPSDoperated schools will soon become predominantly minority, Memorandum at 2, and that its pupil population of the Pearl PSD today is perilously close to the tipping point the point of diminishing marginal utility from a further diversification, Id. at 12. The District then claims, without more, that its school system is becoming predominantly minority and that without increasing the percentage of white students in the PPSD schools, white flight will continue. Id. at 2, 8, 11-12. The Supreme Court has expressly and repeatedly stated that the fear of white flight cannot [...] be accepted as a reason for achieving anything less than complete uprooting of the dual public school system.Scotland Neck City Bd. of Educ. 407 U.S. at 491; see also Monroe v. Board of Commrs, 391 U.S. 450 (1968); Morgan v. Kerrigan, 530 F.2d 401 (1st Cir), cert. denied, 426 U.S. 935 (1976). PPSD also argues that it must expand its ad valorem tax base and revenue resources to fund and maintain the present level and quality of public education in the PPSD. Motion at 6. In addition, PPSD claims that under the present school assignment zone, some if its residents pay taxes to support the city schools but cannot send their children to those schools. Id. at 7. Neither reason, standing alone or in conjunction, is sufficient to justify modifying the attendance zone
6

Also necessary to any such determination would be an analysis of how any student reassignment would affect, either negatively or positively, other factors subject to this Courts desegregation orders, including but not limited to faculty and staff assignment, transportation issues, facilities issues, and extracurricular issues.

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without a careful examination of the effect such re-alignment would have upon the ability of both school districts to further desegregation. Unless and until PPSD demonstrates that the proposed expansion and re-alignment of the attendance zones will not negatively affect both PPSD and RCSDs desegregation obligations under the extant orders, the Court should deny PPSDs request to expand and re-align the attendance zones. B. PPSDs Motion Seeking a Declaration of Unitary Status is Premature and Reflects a Fundamental Misunderstanding of its Obligations under its Extant Desegregation Orders

PPSD also moved for a declaration of unitary status predicated upon the requested expansion of its attendance zones. It is well-established that before a school system once segregated by law can be declared as having achieved unitary status, it has the duty and responsibility to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system. Freeman v. Pitts, 503 U.S. 467, 485 (1992). The District must show that it has: (1) fully and satisfactorily complied with the courts desegregation orders for a reasonable period of time; (2) eliminated the vestiges of its past de jure discrimination to the extent practicable; and (3) demonstrated a good faith commitment to the whole of the courts order and to those provisions of the law and the Constitution which were the predicate for judicial intervention in the first instance. See Missouri v. Jenkins, 515 U.S. 70, 87-89 (1995); Freeman, 503 U. S. at 491-92, 498; Board of Educ. v. Dowell, 498 U.S. 237, 248-50 (1991); see also Brown v. Board of Educ., 978 F.2d 585, 592 (10th Cir. 1992) (the court must consider the systems efforts to desegregate, as a whole, across time including both its past conduct and its specific policies, decisions, and courses of action that extend into the future). The District bears the burden of

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proof and has an affirmative duty to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system. Freeman, 503 U.S. at 485, 494; see also United States v. Fordice, 505 U.S. 717, 739 (1992). Moreover, any such motion requires a careful, fact-intensive analysis of the Districts policies and practices. See Freeman, 503 U.S. at 474 (Proper resolution of any desegregation case turns on a careful assessment of its facts); id. at 490 (discrimination may emerge in new and subtle forms after the effects of de jure desegregation have been eliminated); Green v. County Sch. Bd. of New Kent County, Va., 391 U.S. 430, 437 (Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution.). PPSDs unitary status motion is premature and should be denied. Not only has the District failed to present evidence in support of any motion for unitary status, it explicitly acknowledged that it has not eliminated the vestiges of past discrimination to the extent practicable. See Memorandum at 14-15 (Yet, the vestiges of past discrimination have [not] been eliminated to the extent practicable. Dowell, 498 U.S. at 250. This is why we have not yet reached the earliest practicable date for turning the Pearl Attendance Zone over to local authorities, the Pearl PSD.). Furthermore, where, as here, the District seeks to first amend its desegregation plan, it must then operate under that revised plan, if and when any such revised plan is adopted, for a reasonable period of time before it can be considered for unitary status. Courts in the Fifth and Eleventh Circuits have, over a 30 year period, clearly articulated the requirements for a declaration of unitary status: This circuit has established procedures that must be followed 10

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before a district court can declare a school system unitary. For at least three years, the school board must report to the district court. The court then must hold a hearing to consider whether the district should be considered unitary; plaintiffs must receive notice of the hearing and an opportunity to show why the system is not unitary and why continued judicial supervision is necessary. Only after these procedures are followed may a district court be sufficiently certain that a school system is unitary and dismiss the case. Monteilh v. St. Landry Parish School Board, 848 F.2d 625, 629 (5th Cir. 1988) quoting United States v. Lawrence County School District, 799 F.2d 1031, 1037-38. See also Youngblood v. Bd. of Pub. Instruction, 448 F.2d 770, 771 (5th Cir. 1971); Lee v. Macon County Board of Educ., 584 F.2d 78 (5th Cir. 1978). This three year rule is not a hard-and- fast rule - a shorter time may be appropriate, especially if the parties are in agreement, but regardless, the time period must be reasonable. See Dowell, 498 U.S. 237. The purpose of such a review period is to allow the district court to ensure proper implementation of the plan, to guard against the possibility of recurring constitutional violations, and to ensure the achievement of the ultimate goal-- a unitary public school system in which the state does not discriminate between children on the basis of race. . . . [a]fter a period of time sufficient to achieve these objectives has elapsed--this court has required a period of not less than three years. See Lee v. Etowah County Bd. of Educ., 963 F.2d 1416, 1422 (11th Cir. 1992); see also Youngblood, 448 F.2d at 771 (indicating that the trial court must retain jurisdiction over the action for a period not less than three school years); Wright v. Bd. of Pub. Instruction of Alachua County, 445 F.2d 1397 (5th Cir. 1971); Steele v. Bd. of Pub. Instruction of Leon County, 448 F.2d 767 (5th Cir. 1971). As such, PPSDs motion for unitary status must be denied. III. CONCLUSION For the reasons set forth herein, Plaintiff-Amicus, the United States of America, objects 11

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to the Districts Motion, and respectfully requests this Court to: (i) deny Defendants Motion for Enlargement of Pearl Attendance Zone and Declaration of Unitary and (ii) deny PPSDs motion for a declaration of unitary status. Respectfully submitted this 18 day of November , 2011. UNITED STATES OF AMERICA DON BURKHALTER United States Attorney THOMAS E. PEREZ Assistant Attorney General

/s/ Alfred B. Jernigan, Jr. Alfred B. Jernigan, Jr. Chief, Civil Division U.S. Attorneys Office One Jackson Place 188 E. Capitol Street, Suite 500 Jackson, MS 39201 (601) 973-2820

s/ Christopher S. Awad Anurima Bhargava Kathleen S. Devine Christopher S. Awad United States Department of Justice Civil Rights Division Educational Opportunities Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Suite 4300Washington, DC 20530 (202) 353-3504 Attorneys for Plaintiff-Amicus United States of America

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION ) ) Plaintiffs, ) ) v. ) CIVIL ACTION No. 3:67-cv-04156-TSL-FKB ) ) ) RANKIN COUNTY ) BOARD OF EDUCATION, et al. ) ) Defendants. ) ____________________________________) KENNETH W. ADAMS, et al.

CERTIFICATE OF SERVICE I hereby certify that on this 18 day of November , 2011, I served a copy of the

foregoing pleading to counsel of record, by electronic means through the Courts ECF System and by depositing a copy of the same in the U.S. Mail, postage prepaid, at the addresses listed below: Fred M. Harrell, Jr. Harrell & Rester 306 East Government Street Brandon, MS 39042-3262 Telephone: (601) 825-7236 Joseph L. Adams Phelps Dunbar LLP 111 East Capitol Street, Suite 608 P.O. Box 23066 Jackson, MS 39225-3066 (601) 352-2300 Arthur F. Jernigan, Jr. Harris Jernigan & Geno P.O. Box 3380 Ridgeland, MS 39158-3380

E. Charlene Stimley-Priester Priester Law Firm 820 North Street Jackson, MS 39202

s/ Christopher S. Awad CHRISTOPHER S. AWAD 13