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.INTRODUCTION
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)BACKGROUND
Following the decision and mandate issued by the Fifth Circuit, seeUnited States v. Tunica County Sch. Dist., 421 F.2d 1236, reh'gand 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 Court stated:
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 Robinsonville area.(6)
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 following findings:
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." Id. at 3.(7)
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.ARGUMENT
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." Id. at 491; Board of Educ. of Oklahoma City Pub. Sch. v. Dowell, 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. County Sch. Bd., 391 U.S. at 435. These so-called "Green factors" are "among the most important indicia of a segregated system," Swann 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."); Taylor 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), reh'gdenied, 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 obligations.
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 21.
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 Cir. 1992).
In the past, school districts have been known to utilize site selection as a "potent" weapon for creating and maintaining a segregated school system. SeeSwann, 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.'" Id.
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. Lawrence 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.CONCLUSION
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 Schedule.
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. Greenwood 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 surrounding it.
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 38 years."). >