Case 3:67-cv-04156-TSL -MTP Document 33

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

RANKIN COUNTY BOARD OF EDUCATION, et al.

RANKIN COUNTY SCHOOL DISTRICTS RESPONSE TO PEARL PUBLIC SCHOOL DISTRICTS MOTION FOR LEAVE TO AMEND ITS RESPONSE TO MOTION TO MODIFY CONSENT DECREE

Rankin County School District (RCSD) files its Response to Pearl Public School District (PPSD)s Motion for Leave to Amend its Response to Motion to Modify Consent Decree [Doc. 22]. PPSDs proposed amendment is clearly futile, and its motion for leave to amend should be denied. 1 Its proposed amendment advances contradictory and inconsistent grounds for denial of RCSDs Motion to Modify Consent Decree, grounds that are legally deficient and incapable of withstanding a motion to dismiss or summary judgment. PPSD makes the bald assertion in its motion for leave to amend that granting RCSDs Motion [to Modify Consent Decree] will substantially imperil the ongoing capacity of one or probably more on (sic) the Rankin County Attendance Zones to provide quality and equality of public educational opportunities for the school children of the RCSD on a racially inclusive and non-discriminatory basis, and without

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. 1487, at 733 n.24, 740 (2010) ([N]umerous courts have held that a proposed amendment that clearly is frivolous, advancing a claim or defense that is legally insufficient on its face should be denied.)
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black and other minority students. 2 PPSD cannot avoid the Resolution it previously approved by pointing to speculative harms within a neighboring school district. Its ad hominem attack on RCSD is without merit and factual foundation. Most importantly, it has nothing to do with the issue of whether this Court should modify its May 1, 1997 Consent Decree based on the fact that these two school districts entered into the subject Resolution and a small number of student transfers took place over two years. In a nutshell, PPSD has made no showing of sufficient reasons in law or in fact that should preclude the granting of RCSDs Motion. Its stubborn stance here is matched only by its continued demand for interdistrict relief, despite its failure to present the prerequisite facts that justify interdistrict remedial relief under Milliken v. Bradley, 418 U.S. 717 (1974), and despite its failure to present this Court with even a scintilla of evidence to warrant the disregard of Miss. Code Ann. 37-7-103 (1987). Instead, in a departure from its initial Response that focused on alleged future racial isolation of black students in PPSDs schools, it now argues in its Motion for leave to amend that black students will now be isolated in RCSDs schools. PPSD confuses racial isolation (in this case, racial isolation that it anticipates at some unspecified date in the future) with the identified consequences of racial discrimination, the latter having been substantially eliminated from the schools and school districts herein. 3 Contrary to PPSDs speculative fears of racial isolation, black students in its majority white public schools are not becoming racially isolated. On the contrary, white students attending

PPSDs Motion for Leave to Amend its Response to Motion to Modify Consent Decree, 1 [Doc. 22]. 3 Freeman v. Pitts, 503 U.S. 467, 506 (1992) (Scalia, J., concurring).
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PPSDs schools are now in schools that are much more racially and ethnically diverse than several decades ago. As leading authorities in this field have pointed out, the modest decline in the exposure of black and Hispanic students to whites is solely due to the declining share of white children in the school age population. 4 In PPSDs refusal to join with RCSD in a motion submitting the subject Resolution to this Court, the Justice Department and Plaintiffs for approval, and its continued refusal to do so even today, PPSD disregards the fact that it agreed to, approved and operated under that Resolution for two years, during which approximately 133 students voluntarily transferred to schools in PPSD and RCSD, respectively. More fundamentally, PPSDs proposed amended legal argument undergirding its opposition to RCSDs Motion to Modify Consent Decree, like its Motion for Enlargement of its school district boundaries at the expense of RCSD, is an ad hominem attack upon RCSD. This is odd, PPSD building itself up while tearing down another district. It is odd particularly when one recalls that PPSD is seeking to take students and territory from RCSD having an aggregate value of over $5 million. PPSD may find solace in denigrating an adjacent school district, criticizing its crowded classrooms, and chaffing at its racially balanced student population. But PPSD will have to do far more than tear down another school district in order to avoid facing the consequences of a Resolution its own governing board approved.

Abigail Thernstrom and Stephan Thernstrom, No Excuses: Closing the Racial Gap in Learning, at 187 (Simon & Schuster 2003).
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No reason advanced by PPSD in its proposed amendment is legally sufficient to do that. PPSDs Motion for leave to amend is a futility and should be denied. 5 The undisputed facts are that on several occasions prior to May 31, 2010, PPSD refused to sign, approve or execute a joint motion for the Court to approve the Resolution agreed upon and approved by PPSD and RCSD. 6 Now in its Motion for Leave to Amend, it ignores the fact that this Resolution was relied upon by both PPSD and RCSD for two years, during which both PPSD and RCSD provided educational services to approximately 133 school-age children attending the public schools of PPSD and RCSD, respectively. RCSD relied upon the good faith of PPSD as a party to this Resolution, under which a limited number of school children were allowed to remain in schools of their choice for two years. Notwithstanding RCSDs efforts to obtain PPSDs cooperation in submitting a joint petition to this Court for formal approval of this Resolution, PPSD refused to join in such a joint petition, and as a consequence some of those school children attended schools outside of the attendance zones established in the governing Consent Decree without formal approval of this Court. PPSD refuses to honor and seek judicial approval of the Resolution its own school board trustees
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Many courts have denied motions for leave to amend under similar circumstances, where the proposed amendment would be futile, City of Clinton v. Pilgrims Pride Corp., 632 F. 3d 148, 156 (5th Cir. Feb. 17, 2011, as revised) (affirming a finding of futility on the ground that the proposed amended claim fell because the evidence on which it was based was too vague and ambiguous to satisfy the specificity requirements of Rule 12(b)(6), and no facts were alleged which plausibly suggested a viable claim); Keys v. Safeway Ins. Co., 2011 U.S. Dist. LEXIS 13197, *22 (S.D. Miss. 2011) (Starrett, J.)(denial of leave to amend warranted by futility of proposed amendment);where the amendment was revealed to lack merit, Cox v. Warden, 911 F. 2d 1111 (5th Cir. 1990); where the absence of evidence supporting a claim in a proposed amendment was such that it would not have survived a motion for summary judgment, Sound of Music Co. v. Minn. Min. & Mfg. Co., 477 F. 2d 910 (7th Cir. 2007); or would not have survived a motion to dismiss, Bernstein v. National Liberty Intl Corp., 407 F. Supp. 709 (E.D. Pa. 1976). 6 PPSD admits it entered into the Resolution and admits that the Resolution contemplated that both RCSD and PPSD would submit a joint petition to this Court for approval of the Resolution. Response to Motion to Modify Consent Decree, 1,17 [Doc. 5].
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approved, under which 43 of its own students have enrolled in schools different from the school they would have been attending pursuant to this Courts May 1, 1997 Consent Decree. The United States has also advised this Court that it would not object to the transfers of approximately 133 students attending schools in each others school districts, transfers authorized by RCSD and PPSD outside of their respective court-established attendance zones [Doc. 19]. During the two year period in which PPSD and RCSD operated under the above Resolution, 133 children of different races transferred to or from either RCSD or PPSD, 43 from PPSD to RCSD and 90 from RCSD to PPSD.7 The small number of students affected by the Resolution did not affect desegregation efforts, nor did they cause or contribute to any segregative effect in either district. Throughout the two years under which RCSD and PPSD operated and granted releases pursuant to and in reliance upon the Resolution, all parents and students who have been granted such releases have relied in good faith thereon, such that it would not be equitable for either district to refuse to respect those releases according to the terms as reasonably understood by the grantees thereof. 8 With no facts to support its opposition to RCSDs Motion to Modify Consent Decree, and with no principled legal basis for its positions, PPSD must now resort to hyperbole and claim that granting the instant motion will substantially imperil equal educational opportunity in one or more attendance zones. Nothing factually or legally supports PPSDs position, and we urge this Court to give it the short shrift it deserves.

Supplemental Reply to PPSDs Response in Opposition to RCSDs Motion to Modify Consent Decree [Doc. 10] 8 Response to Motion to Modify Consent Decree, 10 [Doc. 5].
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RCSD requests that this Court deny PPSDs Motion for Leave to Amend its Response to Motion to Modify Consent Decree for the reasons set for above, and to grant RCSDs Motion to Modify Consent Decree for the reasons previously set forth. 9 Respectfully submitted, this 23rd day of December, 2011. RANKIN COUNTY SCHOOL DISTRICT By its Attorneys Griffith & Griffith, Attorneys By: _Ben

Griffith______________________

Benjamin E. Griffith, MSB #5026 Of Counsel: Griffith & Griffith, Attorneys 123 South Court Street P. O. Drawer 1680 Cleveland, MS 38732 Phone No. 662-843-6100 Fax No. 662-843-8153 Email: bgriff@griffithlaw.net Joseph L. Adams, Esq. Phelps Dunbar, LLP P.O. Box 16114 Jackson, MS 39235-6114
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RCSDs Memorandum of Authorities in Support of Renewed Motion to Modify Consent Decree, at 3-5 [Doc. 32].
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Office: 601-360-9708 Cell: 601-927-8597 Fax: 601-360-9777 Email: adamsjo@phelps.com Fred M. Harrell, Jr. Harrell & Rester Attorneys at Law 306 E. Government Street Brandon, MS 39042 Phone: (601) 825-7236 Fax: (601) 825-7237 Email: harrell.rester@bellsouth.net

CERTIFICATE OF SERVICE I, Benjamin E. Griffith, one of the attorneys for Rankin County School District, do hereby certify that I have this day electronically filed the above Response to PPSDs Motion for Leave to Amend Response to Motion to Modify Consent Decree with the Clerk of the Court using the ECF system, which has sent notification of such filing to each of the following: E. Charlene Stimley Priester, Esq. Melvin V. Priester, Esq. Priester Law Firm 820 North Jackson Street Jackson, MS 39202 ecpriester@priesterlawfirm.com mpriester@gmail.com COUNSEL FOR PLAINTIFFS Alfred B. Jernigan, Jr. Assistant U.S. Attorney Chief, Civil Division 188 East Capitol Street, Ste. 500 Jackson, MS 39201 Email: al.jernigan@usdoj.gov Christopher S. Awad, Esq. U.S.D.O.J.
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Civil Rights Division Educational Opportunities Section Patrick Henry Building 950 Pennsylvania Ave. N.W. Washington, D.C. 20530 Email: christopher.awad@usdoj.gov COUNSEL FOR THE UNITED STATES OF AMERICA Arthur F. Jernigan, Jr. Harris, Jernigan & Geno, PLLC P.O. Box 3380 587 Highland Colony Parkway Ridgeland, MS 39158 Email: ajernigan@harrisgeno.com Ajernigan@hjglawfirm.com James L. Robertson Paul E. Barnes Wise, Carter, Child, & Caraway, P.A. P.O. Box 651 Jackson, MS 39205 Email: jlr@wisecarter.com peb@wisecarter.com COUNSEL FOR PEARL PUBLIC SCHOOL DISTRICT This the 23rd day of December, 2011.

Ben Griffith
_____________________________________ Benjamin E. Griffith