IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
THE UNITED STATES OF AMERICA, Plaintiff,
TUNICA COUNTY SCHOOL; DISTRICT, et al. Defendants,
THE STATE OF MISSISSIPPI;
THE STATE BOARD OF EDUCATION, et al., Added Defendants.
CIVIL ACTION NO. DC 6718-K
MEMORANDUM OF THE UNITED STATES IN RESPONSE
TO DEFENDANTS' MOTION TO TERMINATE SUPERVISION
OR, ALTERNATIVELY, TO MODIFY DESEGREGATION PLAN;
AND IN SUPPORT OF THE UNITED STATES' MOTION FOR A DISCOVERY AND NEGOTIATIONS SCHEDULE
Plaintiff United States files this Memorandum in response to the defendants'
Motion to Terminate Supervision or, Alternatively, to Modify Desegregation
Plan (the "Motion" or "Mem. in Support"), and in support of the United
States' Motion for a Discovery and Negotiations Schedule.
Although styled principally as a motion to be declared unitary, Defendants
Tunica County School District, et al. (the "District") have
chosen to come before the Court at this moment primarily to obtain the
Court's approval for the construction of a new elementary school to serve
unspecified students at a specific location, Robinsonville. Indeed, the
District candidly admits that this case is "back before the Court at this
time" because of the purportedly "urgent necessity" for a new elementary
school, Mem. in Support at 2, albeit in Robinsonville, miles from where
African American students currently attend elementary school. Absent from
the District's Motion, Memorandum and voluminous attachments, however,
is any showing that the proposed school in Robinsonville is an appropriate
location to serve existing African American students in Tunica County,
who are said to be attending an overcrowded school in the Town of Tunica;
or that the proposed Robinsonville school promises to reduce travel times
for existing African American students; or that the proposed Robinsonville
school promises realistically to afford a desegregated education for existing
African American students. Cf. Green v. County Sch. Bd.,
391 U.S. 430, 439 (1968) (burden is on District to come forward with a
plan "that promises realistically to work, and promises realistically to
work now") (emphasis in original).
Instead, the District touts its proposed Robinsonville site as well-suited
to serve the waves of unspecified prospective students -- about whom the
District offers no evidence but much speculation. These unspecified students,
whose numbers and identities and racial profiles cannot be known, nonetheless
are projected by the District to warrant a new school in Robinsonville.
On the other hand, the District insists -- again without support -- that
its proposed attendance zone for the new school, which the District has
modified several times after first proposing it, "guarantees a black majority
for years to come." Mem. in Support at 8.
As discussed below, a full evidentiary record is required to evaluate
whether the District has met its burden of proving either that it has achieved
unitary status or that its proposed new school comports with its affirmative
desegregation obligations. Accordingly, the United States respectfully
requests that the Court grant the accompanying United States' Motion for
a Discovery and Negotiations Schedule, so that these matters may be explored
and resolved as expeditiously as possible. The United States' proposed
schedule purposefully includes a period for the parties to engage in good-faith
negotiations, in the hope that this matter may still be resolved amicably
and without a lengthy evidentiary hearing.(1)
Following the decision and mandate issued by the Fifth Circuit, seeUnited
Tunica County Sch. Dist., 421 F.2d 1236,
reh'g en banc denied, 421 F.2d 1237 (5th
Cir.), cert. denied, 398 U.S. 951 (1970), this Court, on
January 23, 1970, entered an Order ("the 1970 Order") requiring the District
to cease operating its dual school system and, in particular, to provide
for a unitary system in the areas of student assignment, faculty and staff,
student transfers and transportation. Seegenerally the 1970 Order
at 1-5 (1/23/70). Regarding school construction and site selection, this
All school construction, school consolidation, and site selection (including
the location of any temporary classrooms) in the system shall be done in
a manner which will prevent the recurrence of the dual school structure
once this desegregation plan is implemented.
Id. at 4.
On February 2, 1970, the first day of the second semester and thus the
first school day after the entry of the 1970 Order, not a single white
child enrolled in any of the District's schools. Instead, the Tunica Church
School, operated in three churches, opened with an all-white enrollment
of 340 students and an all-white faculty of 21 teachers, including 18 who
had been employed by the District the previous semester. United States
and Driver v. Tunica County Sch. Dist., 323 F. Supp. 1019, 1023
(N.D. Miss. 1970), aff'd, 440 F.2d 377 (per curiam), reh'gandreh'gen
banc denied, 440 F.2d 378 (5th Cir. 1971). The
Tunica Church School charged no tuition to these students, who used the
textbooks they had kept from the previous semester in the public schools.
Id.(2) Since the entry of the 1970
Order, the racial composition of the Tunica County public schools has averaged
98% African American.(3)
By letter dated December 11, 1997, the District notified the United
States of its plans to reopen Dundee(4)
as an elementary school and to build a new elementary school in Robinsonville,
in the northern part of the county. The District requested information
about the process for obtaining approval of these actions. See Attachment
1. In response to the United States' request for additional data pertaining
to the two proposed attendance zones for Dundee and Robinsonville, the
District submitted a memorandum to the United States, dated February 2,
1998, in which it provided information about the proposal. See Attachment
2. In addition, the District projected a significant and rapid increase
of white enrollment over the course of five years, due to the economic
growth from the casino industry and the proposed development plans to construct
middle class housing. Id.
As the United States began analyzing the District's data and evaluating
the appropriateness of the proposal, we received letters and telephone
calls from individuals in Tunica County, as well as other concerned groups,
who expressed concerns about and opposition to the proposed school in Robinsonville.
Among the concerns expressed were that the proposed Robinsonville site
is far removed from existing African American communities; that the Robinsonville
area has, until recently, been largely uninhabited;(5)
that the high costs of residences in the Robinsonville area will place
them well beyond the financial means of current African American residents
of Tunica County; and that the proposed Robinsonville school is, by design,
intended to serve white families, with greater financial resources than
current African American residents of the county, who may move into the
Some of these concerns were spurred on, or perhaps borne out, by a report
titled, "Housing Development Strategy for Tunica County," which was adopted
by the Tunica County Board of Supervisors on November 15, 1996 ("Housing
Report"). See Attachment 3 (Appendices omitted). This Housing Report,
which the District chose not to submit with its Motion, was commissioned
by the Board of Supervisors to determine the potential for housing opportunities
in the county, in light of the growing gaming industry. Id. at 1.
The Report identifies barriers to housing opportunities, and includes the
There are two school systems, one public that is predominantly African-American,
and one private that is predominantly Anglo-American. The achievement level
of the students on standardized tests and the quality of the facilities
of the public schools are of major concern. The cost per child at the private
school is considered a problem for a majority of the Anglo-American casino
employees that presently live outside the County. This is further compounded
by the fear of being ostracized by the existing Anglo-American residents
for enrolling their children in the public school system.
Id. at 2.
[I]n almost every interview or public meeting, whether with residents,
civic leaders, lenders, or casino management staff, the issue of race and
the school system was germane to every housing concern expressed. Regardless
of how the residents expressed their concerns, a common point was that
the existing education system in the County was a major barrier to families
relocating to the County. "The school issues must be addressed before any
significant number of families will want to relocate to Tunica County."
Id. at 4 (unattributed quotation in original).
The burden of Tunica tradition allows for possible social ostracism
for Anglo-American families that may want to enroll their children in the
existing public school system. With the majority of the service jobs created
by the casinos paying less than $18,000 per year, any tuition cost for
a child to attend the private school is likely to be a burden for many
of these potential new households.
Id. Given the troubling history of school desegregation in Tunica
County and the nature of the concerns identified by the Housing Report
more than twenty-six years after the 1970 Order, the suspicions aroused
by the District's proposed Robinsonville site are not, as the District
alleges, "ludicrous." Mem. in Support at 8.
During the period that the United States was receiving correspondence
from interested parties regarding the proposed Robinsonville school, we
continued to work with the District to obtain information and resolve concerns
about its other proposals, namely, the reopening of the Dundee school and
the construction of a middle school in the Town of Tunica. Ultimately,
we did not object to either proposal, and both were resolved by way of
Consent Orders. See Consent Order (8/27/98) (Dundee school); Consent
Order (11/13/98) (new middle school).
By letter dated September 9, 1998, however, the United States notified
the District that we could not at that point support the District's request
to construct a new elementary school in Robinsonville. See Attachment
4. Based on the information we had gathered by that date, we expressed
doubts that African Americans in the county could afford to purchase homes
in the Robinsonville area, and we raised questions about which students
would be zoned to attend the proposed school. Id. at 1-2. Specifically,
we pointed out that the District initially had informed us that the Robinsonville
school would open with 100 white students and 200 African American students,
but when we asked the District to provide a "pupil-locator map" -- a map
showing where each student resides, by race -- the results were problematic.
Based on the District's hand-drawn pupil-locator map, we stated:
[I]t became apparent that there were significantly fewer than 200 (approximately
100-120 at most) African American students within the proposed [Robinsonville]
boundary. As a result, the school district has moved the proposed boundary
significantly further south in order to capture African American students
living just outside the town of Tunica. Consequently, more than half of
the African American students who would attend the new school will travel
further to the new school than they now travel to the existing elementary
school. The pupil locator map shows no white students currently attending
the public schools [who reside] in the northern part of the district.
Id. at 2. Finally, we questioned whether the District had given
full and fair consideration to alternative sites, and we encouraged the
District "to engage in a planning process that would result in a delineation
of needs across the system and a plan for meeting them that reflects sound
educational planning, including considerations of desegregation objectives."
After our initial response in September 1998, we received a letter,
dated February 17, 1999, from the Attorney General for the State of Mississippi,
who stated that he had commissioned an urban planning firm to conduct a
study, a copy of which he provided, of the District's proposed northern
attendance zone. Since then, the United States has retained the services
of an expert in the areas of demographics, engineering and school facilities
planning, Mr. Kelley D. Carey. Mr. Carey has been assisting the United
States by, among other things, gathering data to prepare a computer-generated
pupil-locator map and enrollment projections. An accurate pupil-locator
map is the necessary first step in evaluating the propriety of any proposed
school, as well as alternative sites, because it enables the Court and
the parties to see precisely where students reside, by race, and how far
they will be required to travel to school.
Although the District agreed to cooperate with our expert's preparation
of such a map, the data obtained by Mr. Carey to-date reveal that the District
does not have accurate street addresses for nearly two-thirds of its elementary-school
students. In his initial review of the District's data, Mr. Carey reported
that of 888 elementary student records received, 442 had either a Post
Office Box number or a Route number, and 69 contained no addresses at all.
By letter dated August 27, 1999, we provided the District a copy of Mr.
Carey's report and urged the District's counsel to instruct school officials
to assemble accurate student addresses that are suitable for mapping. See
Attachment 5 (student names and street/P.O. Box numbers redacted).
Throughout the spring and summer of 1999, Department of Justice lawyers
visited the District on three occasions; met with interested community
persons; and met with District officials, their counsel, and county and
state officials. We suggested that the parties and interested persons engage
in a formal mediation process to resolve this matter, while we continued
to gather information about the appropriateness of the proposed site and
the suitability of alternatives. Even as we propose a discovery schedule
in response to the District's motion, we continue to hope that the parties
and other interested persons can explore ways in which this matter can
be resolved without litigation.
I. Before the Tunica County School District can be dismissed from court supervision, it must demonstrate that it has eliminated the vestiges of racial discrimination to the extent practicable.
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 dejure
system. Freeman v. Pitts, 503 U.S. 467, 485 (1992). In determining
whether the District has met its obligations, this Courts must evaluate
(1) whether the District has complied in good faith with existing court
orders; (2) whether the District has shown that it has eliminated, to the
extent practicable, all vestiges of past discrimination; and (3) whether
the District has demonstrated "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."
at 491; Board of Educ. of Oklahoma City Pub. Sch. v.
498 U.S. 237, 249 (1991).
In so doing, the Court must examine "every facet of school operations--[student
assignment,] faculty, staff, transportation, extracurricular activities
and facilities." Dowell, 498 U.S. at 250 (citing Green v.
Sch. Bd., 391 U.S. at 435. These so-called "Green factors" are
"among the most important indicia of a segregated system,"
v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18, reh'gdenied,
403 U.S. 912 (1971); they are often "intertwined or synergistic," so that
a constitutional violation in one area cannot be eliminated without remedies
in another. Freeman, 503 U.S. at 497-98. Furthermore, the Court
must determine whether other elements, such as quality of education, need
to be identified to determine the District's compliance with the desegregation
order, and whether "minority students are being disadvantaged in ways that
require the formulation of new and further remedies to ensure full compliance
with the court's decree." Freeman, 503 U.S. at 492.
The District does not discharge its duty to remedy its constitutional
violation simply by implementing a court-ordered plan. As the Fifth Circuit
stated, "It should go without saying that a system does not become unitary
merely upon entry of a court order intended to transform it into a unitary
system." United States and Bryant v. Lawrence County Sch. Dist.,
799 F.2d 1031, 1037 (5th Cir. 1986) (citations omitted), reh'g andreh'gen
banc denied, 808 F.2d 1063 (1987) (per curiam). The District
is under an "affirmative duty" to eradicate the vestiges of its prior dual
school system, and its failure to satisfy this obligation continues the
violation. Lawrence County, 799 F.2d at 1042-43, 1044; see id.
at 1052 (Higginbotham, J., dissenting) ("The District
. . . remains under an affirmative duty to continue taking what steps
are necessary to extirpate the lingering effects of past de jure segregation.");
v. Ouachita Parish Sch. Bd., 648 F.2d 959, 967-68 (5th
Cir. 1981). The District's future plans, for example, may assist the Court
in evaluating the District's good-faith promise to maintain an environment
free of discrimination. See Dowell v. Board of Educ. of
Oklahoma City, 8 F.3d 1501, 1513 (10th Cir. 1992), quotingBrown
v. Board of Educ., 978 F.2d 585, 592, (10th Cir. 1992),
978 F.2d 585 (1993),
cert. deniedsub nom.Unified Sch.
Dist. No. 501 v. Smith, 509 U.S. 903 (1993).(8)
The Supreme Court has placed on school districts the burden of proving
compliance with desegregation orders and demonstrating that all effects
of state-imposed segregation have been remedied. Freeman, 503 U.S.
at 494. Because the District's Motion is the first notice to the United
States of the District's intent to seek a declaration of unitary status,
the United States' investigation thus far has been strictly limited to
the issue of construction of a new elementary school in Robinsonville.
We have made no effort to gather information pertinent to whether the District
has attained unitary status, nor has the District provided any such information
during the parties' informal discussions and negotiations.
By themselves, the District's Motion, Memorandum in Support and accompanying
documents do not demonstrate that the District has attained unitary status.
As the Supreme Court has made clear, "[p]roper resolution of any desegregation
case turns on a careful assessment of its facts." Freeman, 503 U.S.
at 474. The self-serving statements of District officials and the representations
of their counsel fall far short of meeting this standard. Until the United
States is afforded an opportunity to take discovery concerning the District
and "all of its facets," Freeman, 503 U.S. at 486, in particular
the process by which the District developed its proposal for a new school
in Robinsonville and its plans for future school construction, and until
a full evidentiary hearing can be held, the District's Motion cannot be
properly evaluated. See Monteilh v. St. Landry Parish
Sch. Bd., 848 F.2d 625, 628 (5th Cir. 1988) (district court
must hold a hearing to determine whether school district can be declared
to have achieved unitary status); Lawrence County, 799 F.2d at 1038
& n.6 (listing Fifth Circuit cases requiring a hearing before jurisdiction
is relinquished in school desegregation cases).
II. The Tunica County School District has not demonstrated that
the proposed Robinsonville school comports with its affirmative desegregation
In Swann, the Supreme Court stressed that a school district's
decision to construct new schools is one of monumental importance, given
that the potential consequences are so far reaching. Decisions concerning
the proper location of a new school, coupled with student assignment, will
directly impact the racial composition of the proposed school. 402 U.S.
at 20. The Court observed that people have a tendency to gravitate toward
particular school facilities, and that the location of schools influences
patterns of residential development. Id. at 20-21. Hence, the local
school district is obligated to ensure that future school construction
is not utilized to maintain or re-establish a dual system. Id. at
In United States v. Hendry County Sch. Dist., 504 F.2d
550 (5th Cir. 1974), the Fifth Circuit identified the following
factors to be considered when determining both the need for a new school
and whether the location is unobjectionable:
(1) population growth; (2) finances; (3) land values; (4) site availability;
(5) racial composition of the student body; (6) racial composition of the
neighborhood of the proposed school and the residence of the students;
(7) capacity and utilization of existing facilities; (8) transportation
requirements; (9) the location of a proposed school to maintain equality
in the burden of bussing between blacks and whites; (10) recommendations
by the State Department of Education; and (11) potential for re-segregation.
Id. at 552. Although the requisite analysis of proposed construction
must be conducted on a case-by-case basis, of the eleven factors, a threshold
determination that the site will not perpetuate the re-segregation of the
system is fundamental. United States v. Board of Pub. Instr.
of Polk County, 395 F.2d 66, 69 (5th Cir. 1968) (holding
that there is an affirmative duty to eradicate the vestiges of the dual
system that overrides all other considerations with respect to the location
of new schools). A school district violates this duty when it fails to
consider the objective of desegregation when deciding to construct a new
school. Monteilh, 848 F.2d at 632;
see also Harris
v. Crenshaw County Bd. of Educ., 968 F.2d 1090, 1095 (11th
In the past, school districts have been known to utilize site selection
as a "potent" weapon for creating and maintaining a segregated school system.
402 U.S. at 20-21. In
Swann, for example, the Supreme Court observed
that, in addition to locating schools in neighborhoods identified by race,
some school districts actually closed schools that were likely to become
desegregated due to changes in residential patterns.
Id. at 21.
Along with closing the school, the district would then build a new school
in "areas of white suburban expansion farthest from Negro population centers
in order to maintain the separation of the races with a minimum departure
from the formal principles of 'neighborhood zoning.'"
Similarly, as the Fifth Circuit observed in the Lawrence County
case, the demographic factors that separate residential areas by race are
themselves a vestige of past segregation, because schools were built to
accommodate students by race in areas where the residents were predominantly
of one race, and parents made decisions about where to live accordingly.
County, 799 F.2d at 1043-44. The court stated:
Since persons normally gravitate toward the schools that serve them,
the intentional acts by the School Board before desegregation insured that
the immediate communities around these schools would be of one race. .
. . The effect of a racially discriminatory practice is pervasive. That
effect is not eradicated by merely erasing the original cause. Just as
a school board's present racial neutrality does not suffice to eliminate
the effect of its past de jure segregative actions, correcting post-injunction
racially segregative measures does not eliminate their effect.
Id. at 1044. For these reasons, the court emphasized that school
officials had and still have an affirmative duty to eradicate the effects
of the dual system, and that the failure sufficiently to satisfy this obligation
continues the constitutional violation. Id. (quoting Taylor
v. Ouachita Parish Sch. Bd., 648 F.2d 959, 967-68 (5th
Cir. 1981). See also Tasby v. Edwards, 799
F. Supp. 652, 658 (N.D. Tex. 1992) (stating that a formerly segregated
school system "has a continuing affirmative duty to bring about 'the maximum
desegregation practically achievable,'" and that "no school desegregation
plan should be amended in a manner inconsistent with this fundamental principle").
Based on the limited information and data provided to-date, the United
States is unable to determine whether the District understood its affirmative
desegregation obligations when it developed the proposed Robinsonville
site; whether the District considered alternative sites that were closer
to existing African American communities; whether the District considered
the long-term effect of the Robinsonville site on desegregation; or whether
the District based its decision to propose the Robinsonville site on legitimate,
non-discriminatory reasons. Furthermore, without accurate pupil-locator
data and information concerning the projected enrollments for the Robinsonville
area, no meaningful evaluation of the proposal can be made.
In short, the District bears the burden of demonstrating to the Court
that its construction proposal comports with the 1970 Order and federal
law, and it cannot meet that burden by merely pointing to large numbers
of casino workers who may or may not have children, who may or may not
be looking to relocate, who may or may not have the financial means to
afford homes in the Robinsonville area, and who may or may not wish to
send their children to public schools in Tunica County. A period for the
taking of discovery is required to explore these and other matters; a period
for negotiations would then be appropriate for the parties to attempt to
narrow or resolve the issues raised in the District's Motion; and, failing
a negotiated settlement, an evidentiary hearing should be held to address
any differences between the parties.
For the reasons set forth above, the United States respectfully requests
that the Court withhold judgment on the District's Motion until after discovery
can be taken, a full record can be established, and, if necessary, an evidentiary
hearing can be held. The United States further requests that the Court
grant the accompanying United States' Motion for a Discovery and Negotiations
BILL LANN LEE
Acting Assistant Attorney General
CALVIN D. BUCHANAN
United States Attorney
911 Jackson Avenue
P.O. Drawer 886
Oxford, MS 38655
MICHAEL S. MAURER
K. HESHIMA WHITE
SUNIL H. MANSUKHANI
U.S. Department of Justice
Civil Rights Division
Educational Opportunities Section
P.O. Box 65958
Washington, DC 20035-5958
1. In filing this Memorandum and the accompanying
Motion for a Discovery and Negotiations Schedule, the United States is
mindful that the Court has set a hearing on the District's Motion for October
5, 1999. For the reasons set forth in this Memorandum, we will respectfully
urge the Court to consider the merits of the District's request only after
a full record can be established, in accordance with the timetable we propose
in our Motion.
2. By supplemental complaint in this case, the United
States sought injunctive and other relief against the District as well
as the State of Mississippi and the State Board of Education, for using
public funds to pay the salaries of 19 white teachers who had refused to
accept re-assignments at the close of the first semester, 18 of whom were
teaching "without compensation" at the Tunica Church School. 323 F. Supp.
at 1020, 1023. This Court ruled that these teachers could not be paid with
public funds. Id. at 1027-28. Although the State of Mississippi
and the State Board of Education (together, "the State Defendants") were
not active participants in this litigation throughout the 1970's and 1980's,
the docket sheet does not indicate that they withdrew or were ever dismissed.
On March 21, 1997, pursuant to Miss. Code Ann. § 37-17-6, the State
Defendants appointed an interim conservator, who has "plenary authority"
to supervise operation of the Tunica County School District. Mem. in Support
at 3. Given that the State Defendants again play an integral role in the
operation of the District, their participation in this stage of the litigation
is essential and we have, accordingly, served this Memorandum and our accompanying
Motion on the Mississippi Attorney General and the Special Assistant Attorney
General who handles education matters. We note, furthermore, that the Attorney
General and the Special Assistant Attorney General have been actively involved
in discussions and correspondence with Department of Justice officials
and others about the proposed Robinsonville school. Should the Court determine,
however, that a motion for joinder under Rule 19, Fed. R. Civ. P., is necessary
or appropriate, the United States is prepared and reserves its right to
file such a motion.
3. A number of orders have modified the 1970 Order,
with respect to student assignments: (1) on May 18, 1977, a Consent Order
was entered permitting students in grades 9 residing in the southern zone,
to attend the Dundee School (previously only grades 1 through 8); (2) on
July 31, 1986, a Consent Order was entered redirecting the students in
grade 9 residing in the southern zone from the Dundee School back to the
Rosa Fort High School; (3) on July 8, 1988, a Consent Order was entered
permitting the closing of the Dundee School; (4) on August 27, 1998, a
Consent Order was entered permitting the re-opening of the Dundee School;
and (5) on November 13, 1998, a Consent Order was entered permitting the
construction of a new middle school.
4. Dundee had been closed in 1988 due to declining
enrollment. See Consent Order at 2-3 (7/8/88).
5. Since the United States began investigating this
matter, some development has been completed in the Robinsonville area,
including apartment complexes with about 144 and 88 apartment units, respectively.
In addition, in an area adjacent to the proposed Robinsonville school,
nine single-family homes have been built and six town-homes are under construction.
6. The United States generally maintains the confidentiality
of individuals who complain to the Department of Justice about alleged
violations of civil rights. See United States v.
Mun. Separate Sch. Dist., 406 F.2d 1086, 1090-91 & n.4, reh'gdenied
(5th Cir.), cert.denied, 395 U.S. 907 (1969). Since the
District's initial proposal for a school in Robinsonville, we also have
been contacted by elected officials, who have expressed concerns about
the District's proposal, provided additional information, and requested
that the United States conduct a further investigation into the circumstances
7. Based on the information we have obtained to-date,
there is no record of District officials having given consideration to
alternative sites or community concerns prior to their decision to propose
the site in Robinsonville. In its Motion and Memorandum in Support, the
District indicates that it now is willing to accept an alternative site
proposed by Congressman Bennie G. Thompson, subject to certain conditions.
Motion at 13; Mem. in Support at 2. Although we understand that the District
has engaged in negotiations with community representatives concerning an
alternative site, the United States has not been a party to these discussions
and we have been afforded no opportunity to evaluate the site's appropriateness.
8. Moreover, the mere passage of time does not absolve
the District of its affirmative obligations. The "lingering effects" of
segregation do not "magically dissolve" without affirmative efforts by
the school district, and the Constitution "does not permit the courts to
ignore today's reality because it is temporally distant from the initial
finding that the school system was operated in violation of the constitutional
rights of its students." Brown, 978 F.2d at 590. See alsoFreeman,
503 U.S. at 518 (Blackmun, J., concurring) ("[A]n integrated school system
is no less desirable because it is difficult to achieve, and it is no less
a constitutional imperative because that imperative has gone unmet for