COMMENT: Sixty Years Too Late: The Judiciary’s Superficial Treatment of School Desegregation in Cowan

By Alanna Farber
Associate Editor, Vol. 20
Executive Editor, Vol. 21

The school district in Cleveland, Mississippi has been subject to federal jurisdiction since 1965 due to continued struggles in desegregating its schools.[1] Fifty years ago, citizens of Cleveland sued the county’s board of education, alleging that the defendants had not made any efforts to desegregate public schools.[2] The plaintiffs thereby sought an injunction “enjoining the Defendants from continuing to operate compulsory biracial public school systems . . . .”[3] Ever since, the desegregation of Cleveland’s schools has been in dispute. This Comment contends that the remedies that the District Court prescribed in 2013,[4] and that the Fifth Circuit did not reject in 2014,[5] remain insufficient and will not lead to meaningful desegregation in Cleveland’s middle and high schools.

In the 1960s, the predominantly Caucasian neighborhoods of Cleveland were located on the west side of the Illinois Central Railroad tracks. All six public schools – one high school, one junior high school, and four elementary schools – on the west side of the tracks had been de jure (legally) segregated throughout the decade, and remained de facto (in practice) segregated thereafter, each enrolling overwhelmingly, if not exclusively, Caucasian students.[6] On the other hand, African-American neighborhoods were located on the east side of the tracks, where four overwhelmingly African-American schools were situated – one high school (East Side High School), one junior high school (Eastwood Junior High School), and two elementary schools.[7]

What followed over the next fifty years were a series of court orders laying out desegregation plans for the district to implement. The plans were sometimes clear enough to put into motion but usually vague enough to stall significant progress. Desegregation orders were issued in 1969, 1989, 1992, and 1995. Each addressed varying solutions to segregation.[8] Early on, the orders largely made subtle shifts to neighborhood zoning rules. However, zoning changes were almost exclusively directed at the elementary schools and thereby proved effective at desegregating many of Cleveland’s elementary schools.[9] Notably, at the joint request of the district and the government, the two 1990s court orders approved the establishment of magnet programs at all school levels. At this juncture, both parties believed that the implementation of specialized magnet programs would successfully desegregate Cleveland’s schools.[10]

Tensions once again flared up in 2006, when the federal government “initiated a . . . review of the District to assess whether the District was in compliance with the Court’s extant desegregation [o]rders.”[11] The government alleged multiple violations of the desegregation orders, including the fact that the majority of Cleveland’s schools were still identifiable as having either a majority of African-Americans or Caucasians.[12] The Court held that it was impermissible that the schools could be identified as either Caucasian or African-American: “[W]here it is possible to identify a ‘white school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff . . . a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.”[13] Consequently, in 2011, the government filed suit claiming the school district had not effectively dismantled segregation in Smith and East Side, and requested that the district court enforce its desegregation orders.[14]

In response, the school district argued that it had fulfilled the good faith requirement for complying with desegregation efforts, which is the standard that school districts enacting school desegregation plans must meet.[15] The Supreme Court in Brown v. Board of Education[16] directed the federal courts to apply “a good faith compliance standard, recognizing that ‘although [s]chool authorities have the primary responsibility for elucidating, assessing, and solving these problems[,] courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.’”[17] The Supreme Court further emphasized this standard in Green v. County School Board, stating that “[w]here the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system ‘at the earliest practicable date,’ then the plan may be said to provide effective relief.”[18]

The district court in Cowan found that while the district was making significant progress toward desegregation in most of the schools, it was “troubling” to see the numbers at D.M. Smith Junior High School (“Smith”) and East Side High School (“East Side”), which both remained 99.7% African-American.[19] Thus, the court ordered that the school district submit a new desegregation plan for Smith and East Side.[20] The school district accordingly devised a plan that sought to establish magnet programs at both schools,[21] while the government submitted a proposal to consolidate the junior high and high schools.[22] In May 2012, both proposals were submitted to the district court for review and selection.[23]

However, in January 2013, the district court found with little explanation that the both of the proposed plans would not suffice, and instead implemented a true open-enrollment “freedom of choice” plan in which every student in Cleveland could pre-enroll at any school.[24] This plan quickly went awry as no Caucasian students pre-enrolled at Smith or East Side for the 2013-2014 school year.[25] The government appealed the district court’s decision and in 2014, the Fifth Circuit remanded the case, stating that the district court needed to provide a more explicit explanation as to why it ordered the freedom of choice system.[26] The Fifth Circuit held that it would not be able to review the district court’s order with “sufficient particularity to allow [the Fifth Circuit] to determine rather than speculate that the law has been correctly applied.”[27]

The Fifth Circuit went on to state that “if the district court’s remedy is premised on a conclusion that, aside from the freedom of choice plan, there is nothing more that the District can do or should do to desegregate D.M. Smith and East Side High, that conclusion should be justified.”[28] The Fifth Circuit also clarified that while the empirical evidence indicated that a freedom of choice plan would likely not do anything to meaningfully desegregate Smith or East Side, it was not necessarily a constitutionally inadequate solution (depending, of course, on whether other remedies were available and if they could be projected to be more effective than the freedom of choice plan).[29]

A half-century has passed since Cowan, and somehow, despite all of the court filings, orders, and opinions, there remain two significantly and deplorably segregated schools in Cleveland, Mississippi. The incredible lag time in this case could be reflective of a slew of historical, political, social, and cultural issues, but one thing is certain – the amount of time Cleveland students have been victims of segregation is unacceptable.[30]

The Supreme Court in Green clearly suggested that freedom of choice plans are generally disfavored and should be implemented only as a last-ditch desegregation tactic, hence the need to first analyze any and all “reasonably available other ways . . . promising speedier and more effective conversion to a unitary, nonracial school system.”[31] In Cowan, the Fifth Circuit endorses this view, but does not explicitly compel the district court to fully reconsider other alternatives, including the school district’s magnet program plan as well as the government’s consolidation plan.[32] As previously stated, magnet programs were an effective desegregation tool in Cleveland in the 1990s.[33] Furthermore, since the school district never attempted to consolidate its schools, consolidation could prove to be a viable alternative.[34]

Although the Fifth Circuit determined that it needed the district court to provide a more thorough explanation of its rationale for ordering a freedom of choice plan, it failed to offer any further instructions as to the degree of particularity with which the district court should make its finding. The Fifth Circuit also did not set any deadline by which the district court should complete this task.[35]

Beyond that, the Fifth Circuit implies that its relatively light burden may be met by a mere statement from the district court that no other feasible alternative exists. In fact, the Circuit Court spoon-feeds the district court the necessary language to maintain its earlier unfounded conclusion[36] – all the district court needs to state on remand is that there is nothing more the school district can do to ensure desegregation in these schools. When considering the district court’s previous opinion, it clear that sufficient treatment was not given to the other proposed alternatives, i.e., magnet programs or consolidation. Given the Fifth Circuit’s vague directive, it is very possible, if not likely, that the lower court will again be excused from thoroughly examining feasible alternatives to a freedom of choice system.

Therefore, as it stands, the courts seem poised to permit a plan that has had no impact whatsoever on the desegregation of Smith or East Side (remember, not one Caucasian student pre-enrolled at either school when the freedom of choice plan was established). At this rate, successful desegregation of schools in Cleveland is positioned to take years, if not decades. Thousands of students in Cleveland over the past fifty years have received what amounts to an unconstitutionally segregated education.[37]

The people of Cleveland should refuse to accept that nothing more can be done to desegregate Smith and East Side. Instead of relying on the Fifth Circuit’s sample “conclusion,”[38] the district court should first reconsider the plans that the school district and government proposed in 2012.[39] The establishment of magnet programs was a proven success in the 1990s in desegregating many of Cleveland’s schools.[40] Why, then, was the school district’s 2012 proposal so swiftly disregarded?

The court should also consider repealing the freedom of choice plan and returning to zoning. The fear in doing so is that Caucasian families will then start sending their children to private schools, as many well-situated Caucasian families do in surrounding towns.[41] However, if the quality of education is truly the same at all Cleveland schools, then Caucasian parents should rest assured that their children are receiving a high-quality education regardless of which building houses that education. If the quality of education is, in fact, inferior at one of the schools, then the school district should take strides to improve the educational outcomes at that school. The school district has also fought adamantly against the government’s proposed one-school solution, claiming that the two-school model is integral to the identity of Cleveland.[42] But at some point, it must be determined that the residents’ interest in preserving the identity of the city simply cannot outweigh society’s interest in eradicating pervasive school segregation. On this point, the priorities of the school district should be called into question.

Desegregation of schools is a central issue in American law and has been for over sixty years. How many more classes must graduate from Cleveland’s segregated schools before the Supreme Court’s vision in Brown is finally realized? We cannot permit one district court to throw in the towel and sit idly by as unconstitutional segregation remains in effect on the east side of the railroad tracks in Cleveland. This would signal defeat in a fifty-plus year battle against segregation, and could have a floodgates-effect on yet-to-be segregated school districts. No child, regardless of race, should be raised in a country that implicitly consents to school segregation.

[1] Cowan ex rel. Johnson v. Bolivar Cnty. Bd. of Educ., 914 F. Supp. 2d 801, 804 (N.D. Miss. 2012).

[2] Id.

[3] Id. at 805.

[4] See Cowan ex rel. Johnson v. Bolivar County Bd. of Educ., 923 F. Supp. 2d 876, 881 (N.D. Miss. 2013).

[5] See Cowan v. Cleveland Sch. Dist., 748 F.3d 233, 236 (5th Cir. 2014).

[6] Cowan, 914 F. Supp. 2d at 804-05.

[7] Id. at 805. Originally, the high school and the junior high school on the east side of the tracks had been merged. Eastwood Junior High School was established as a result of the 1969 court order. Id. at 808.

[8] See generally id. at 805-10.

[9] See id. at 806-08, 816.

[10] See id. at 809-10.

[11] Id. at 814.

[12] Id.

[13] Cowan, 914 F. Supp. 2d at 814 (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18 (1971)).

[14] Cowan, 914 F. Supp. 2d at 814.

[15] Id. at 812, 814-15.

[16] 349 U.S. 294 (1955).

[17] Cowan, 914 F. Supp. 2d at 812 (quoting Brown, 349 U.S. 294 at 299).

[18] 391 U.S. 430, 439 (1968).

[19] Id. at 817-18.

[20] Id. at 826.

[21] Cowan ex rel. Johnson v. Bolivar County Bd. of Educ., 923 F. Supp. 2d 876, 881 (N.D. Miss. 2013).

[22] Cowan v. Cleveland Sch. Dist., 748 F.3d 233, 236 (5th Cir. 2014).

[23] Id.

[24] Id. at 882. The district court also abolished previously established attendance zones. Id.

[25] Cowan, 748 F.3d at 237.

[26] Id. at 240.

[27] Id. (quoting Davis v. E. Baton Rouge Parish Sch. Bd., 570 F.2d 1260, 1263-64 (5th Cir. 1978)).

[28] Id.

[29] Id. at 239-40.

[30] See, e.g., Green, 391 U.S. at 438 (noting that a ten-year delay for the defendant school district to first begin its desegregation plans was “intolerable”).

[31] Id. at 441. The Court repeatedly provides the example of zoning as a potentially effective desegregation tool. Id.

[32] See Cowan, 748 F.3d at 239-40.

[33] See Cowan, 923 F. Supp. 2d at 879-81; Cowan, 914 F. Supp. 2d at 820.

[34] See Cowan, 748 F.3d at 236.

[35] Id. at 240.

[36] See id.

[37] See Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 (1896)) (“[I]n the field of public education the doctrine of ‘separate but equal’ has no place . . . Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”).

[38] See Cowan, 748 F.3d at 240.

[39] See Cowan, 923 F. Supp. 2d at 881.

[40] See id. at 879-81; Cowan, 914 F. Supp. 2d at 820.

[41] See Cowan, 923 F. Supp. 2d at 878.

[42] Cowan, 748 F.3d at 237.

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