Citations
- 186 F. Supp. 3d 564
Full opinion text
OPINION AND ORDER
Debra M. Brown, UNITED STATES DISTRICT JUDGE.
On May 17, 1954, the United States Supreme Court issued the landmark decision of Brown v. Board of Education, holding that “in the field of public education the doctrine of ‘separate but equal’ has no place.” 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (“Brown I”). A year later, on May "31, 1955, the Supreme' Court issued a second order directing compliance with Brown I “with all deliberate speed.” Brown v. Bd. of Educ., 349 U.S. 294, 301, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (“Brown II”). Ten years after Brown II, residents of Bolivar County, Mississippi, filed this now fifty-year-old action seeking the desegregation of their school system. After decades of litigation, this case is currently before the Court for the determination of an appropriate desegregation remedy for the high schools and middle schools in the Cleveland School District (“District”) in Bolivar County. Upon consideration of the parties’ proposed desegregation plans, the Court concludes that, in order to achieve constitutionally-required desegregation, the District must consolidate its high schools and must consolidate its middle schools.
I
Procedural History
A. Filing and First Order
On July 24, 1965, 131 minor children, acting through their parents or guardians, filed this action against the Bolivar County Board of Education and numerous of its members, alleging that the defendants “have pursued and are presently pursuing a policy, custom, practice and usage of operating the public schools of . Bolivar County, Mississippi, on a racially segregated basis.” Doc. # 37-1 at ¶ 7. In their complaint, Plaintiffs alleged that the action was brought “on their own behalf and on behalf - of all other Negro children and parents ... located in Bolivar County, Mississippi, who are similarly situated and affected by the policies, practices, customs and usages complained of herein,” Id. at ¶ 5.
Of relevance here, the original complaint alleged:
Bolivar County District No. 4 maintains six white schools: (1) Cleveland High School[,] (2) Margaret Green Junior High School[,] (3) Pearman Elementary School[,] (4) W.J. Parks Elementary School[,] (5) Boyle Elementary School [and] (6) Merigold Elementary School. Each of these schools is limited to attendance by white pupils only and are staffed by white teachers, white principals, and other white professional personnel. Regardless of location, these schools may be attended by white pupils only. ...
Bolivar County District No. 4 also maintains four Negro schools: (1) East Side High School[,] (2) Nailor Elementary School[,] (3) B.L. Bell Elementary School [and] (4) Hayes Cooper Elementary School.
Each of these schools is limited to attendance by Negro pupils. They are staffed by Negro principals, Negro teachers and other Negro professional personnel. Regardless of location, these schools may be attended by Negro children only.
Doc. # 37-1 at ¶¶ VII(i) & (j).
On July 22, 1969, Chief Judge William C. Ready issued an order directing that “School District Number Four of Bolivar County ... [is] permanently enjoined from discriminating on the basis of race or color in the operation of said School District.” Doc. # 33 at 1. The order further directed the defendants to “take affirmative action to disestablish all school segregation and to eliminate the effects of the dual school system.” Id.
Judge Keady’s order adopted a district-proposed plan dividing the school district into two zones for students attending grades seven through thirteen, and five zones for students attending grades one through six. Id. at 1. Under the terms of the plan, each zone was assigned a corresponding school: Zone I was assigned Cleveland High School; Zone II was assigned East Side High School; Zone III was assigned Hayes Cooper Elementary; Zone IV was assigned Nailor Elementary School; Zone V was assigned B.L. Elementary School; Zone VI was assigned Parks Elementary School; and Zone VII was assigned Pearman Elementary School. Id. at 2-3. The order directed that “Boyle Elementary School shall be closed.” Id. at 3.
Regarding the new system, Judge Ready ordered:
For the school year 1969-70, each student attending elementary grades 1 through 6 shall be assigned to attend the school in the zone in which he resides, and students attending grades 7 through 12 shall be assigned on the basis of their freedom of choice previously exercised
For the school year 1970-71 and thereafter, each student in all grades 1 through 12 shall be assigned to attend the school in the zone in which he resides, provided, however, that any student entering the 12th grade for the school year 1970-71, irrespective of the place of his residence, shall have the right, if he so desires, to attend that high school which he attended for the school year 1969-70
Within the full extent of the district’s ability so to do, including the availability of qualified personnel, not less than one of every six classroom teachers of a different race shall be employed and assigned to each of the schools or attendance centers for the 1969-70 school year, and for the 1970-71 school year and thereafter there shall be full faculty and staff desegregation, to such an extent that the faculty at each school is not identifiable to the race of the majority of the students at any such school.
Doc. # 33 at 3-4 (emphasis in original).
Additionally, Judge Keady directed that “[a]ll children ... shall be treated substantially alike” with regard to transportation; “[n]o students shall be segregated or discriminated against ... in any grade, service, facility, or program ... that may be conducted or sponsored by the school in which the student is enrolled;” and “[t]he defendants, to the extent consistent with the proper operation of the school system as whole, shall locate any new school and substantially expand any existing schools with the objective of eradicating the vestiges of the dual school system.” Id. at 4-6. To enforce all of his directives, Judge Keady ordered the defendants to submit annual reports on the status of their desegregation efforts and quarterly reports detailing the transfers of students. Id. at 6-7.
Six months later, on January 22, 1970 (after receiving two quarterly reports submitted by the District), Judge Keady issued an order stating that “[effective for the second semester of the current school year 1969-70, students entering the system for the first time shall be assigned to an attendance center on the basis of proximity of residence.” January 22, 1970, Order at 4.
B. United States Intervention and 1989 Consent Order
On January 23, 1985, following the District’s submission of over fifteen years of annual and quarterly status reports, the United States filed a motion to intervene as a plaintiff. Doc. # 1 at 16. On March 21, 1985, the Court granted the United States’ request to intervene. Id. The same day, the United States filed a “Complaint-in-Intervention” (“Intervenor Complaint”), alleging:
Defendants have actively pursued the following policies and practices, which have frustrated the implementation of the Court’s [July 22, 1969] Order in Cowan and impeded the elimination of the vestiges of the dual system of public education in School District Four,
a. Defendants have instituted informally a dual residence policy and practice allowing students to attend schools in zones outside of their residence, if the student establishes a second residence during the week.
b. The dual residency policy has adversely affected the desegregation of School District Four and has served to maintain segregated schools.
c. Defendants have made faculty assignments on the basis of race so that faculty are assigned to schools identifiable as ‘white’ or ‘black’ based upon student enrollment ....
d. Defendants have made professional staff assignments on the basis of race so that black persons serve as administrators for those schools with predominantly black student enrollments while white persons serve as administrators of schools with majority white student enrollments.
e. Defendants in order to maintain racial segregation have chosen to construct three new schools in areas such that black students continue to attend schools with 100% black enrollments.
f. Defendants have discriminated against students attending Eastside High School, Nailor, and Merigold elementary schools with respect to the condition and maintenance of facilities.
Intervenor Complaint at ¶ 13. No answer to the United States’ intervenor complaint appears on the docket.
On November 8, 1985, Judge Ready transferred the case to United States District Judge Glen H. Davidson. Doc. # 101 at 2. On September 2, 1986, Judge Davidson entered an order transferring and reassigning the case to United States District Judge L.T. Senter. Id. The case was formally transferred to Judge Senter the next day. Doc. # 1 at 17.
From September 1986 until September 1989, the parties engaged in a protracted period of discovery while the District continued to submit status reports to the Court. See id. at 17-19. On September 21, 1989, Judge Senter entered a Consent Order which: (1) imposed additional requirements for faculty/professional desegregation, including that “the faculty and professional staff at each school to the extent feasible shall reflect the district-wide ratio of minority and nonminority faculty and professional staff;” (2) instituted a “majority-to-minority transfer policy;” (3) directed the District to offer a minimum of two exclusive college preparatory classes at each high school and to provide transportation to students taking such courses; (4) modified the elementary and junior high attendance zones; (5) instituted a plan to “ensure uniform opportunity of course offerings to all students throughout the district;” (6) directed the creation of “a voluntary magnet school at one of the predominantly black elementary schools or at the former Hayes Cooper Elementary School in Merigold;” (7) directed the parties to take actions to ensure that “[tjhere will be no disparity of maintenance of any of the schools within the district;” (8) mandated the development and implementation of “a plan for desegregating the predominantly black Eastwood Junior High School [D.M. Smith];” and (9) required the submission of annual reports on the status of its desegregation efforts. Doc. # 12 at 2, 4, 6-7,9, 12, 14-16.
Under the majority-to-minority transfer policy, the Court directed that “[whenever there shall exist schools containing a majority of either black or white students, the school district shall encourage and permit a student (black or white) attending a school in which his or her race is the majority to choose to attend another school where his/her race is in the minority.” Id. at 4. Additionally, the District was directed to advertise the transfer program and to “establish a transportation system to transfer the Majority-to-Minority transfer students.” Id. at 5.
As for course offerings, Judge Senter ordered:
Beginning with the 1988-89 academic year and each year thereafter,’ the school district will identify specific required college preparatory courses, a minimum of two of which shall be offered each year exclusively at Eastside High School and a minimum of two of which will be offered each year exclusively at Cleveland High School. The courses offered at each high school shall not be based upon student preference at that school. Transportation shall be provided to those students at Cleveland High School who are taking the courses at Eastside High School, and transportation shall be provided to those students at Eastside High School- who are taking the courses at Cleveland High School.
Id. at 7-8.
C. 1992 and 1995 Consent Orders
On November 18, 1992, Judge Senter entered a second consent order, in which he granted the District “permission to develop and implement a magnet school program at the junior high level in the Cleveland School District, which program shall, to the extent possible and applicable, reflect the same implementation plans called for [in] the 1989 Consent Order for the elementary magnet school program.” Doc. # 13 at 2.
On February 6, 1995, Judge Senter entered a third consent order. Doc. # 14. The 1995 Consent Order granted the District “permission to develop and implement a magnet school program at the high school level in the Cleveland School District, which ... shall to the extent possible and applicable, reflect the same implementation plans called for in the 1989 [and 1992] Consent Order[s].” Id. at 2. The 1995 Consent Order observed that the “District has complied with the [1992 Consent Order] in implementing a magnet school program at the junior high level.” Id. With the exception of an August 21,2008, reassignment of this case back to Judge Davidson, see Doc. # 101 at 2, the matter lay largely dormant for approximately sixteen years after entry of the 1995 Consent Order. See Doc. # 1 at 21.
D. Judge Davidson’s Initial Order
On April 7, 2011, the United States filed a “Motion to Exceed Page Limit,” representing that it intended to submit a motion for miscellaneous relief to address “the District’s failure to desegregate its schools in the forty-one years since the 1969 Order was entered by the Court.” Doc. # 3 at 1-2. Judge Davidson granted the motion four days later. Doc. # 4.
On May 2, 2011, citing the defendants’ “lack[ of] will to meaningfully integrate its schools,” the United States filed a motion asking the Court to: (1) find the defendants in violation of federal laws and the orders of this Court and (2) “order Cleveland to devise and implement a desegregation plan that will immediately dismantle its one-race schools and put the District on a path to unitary status.” Doc. # 6 at 43. In support of its motion, the United States argued that the District operated “One-Race Schools” and “Racially Identifiable Schools,” and “[r]einforc[ed] the [r]acial [i]dentity of its [s]chools through [fjaculty and [s]taff [assignment.” Id. at 23, 30, 36. Specifically, of relevance here, the United States asserted:
In a school district where approximately 67% of the students are black and 30% of the students are white, half of Cleveland’s schools—the schools on the east side of the railroad tracks-are all black or virtually all black. The majority of the schools on the west side of the railroad tracks, including Cleveland High School, Margaret Green Junior High School, and Parks Elementary School, enroll a student body that is at least twenty percent more white than the student population for the District as a whole.
Id. at 12-13 (internal citations omitted). The United States also represented:
[D]ata reported by the District reflects that while approximately 60% of the District’s teachers are white and 40% are black, the ratio of black to white teachers is disproportionately large in schools with an all-black dr predominantly black student population, and disproportionately small in schools that have a large contingent of white students. Thus, during the 2009-2010 academic year 89% of the teachers at Cleveland High School (on the west side) were white, but only 24% of the teachers at East Side High School were white. At the middle school level, 80% of the teachers at Margaret Green Junior High School (on the west side) were white but only 25% of the teachers at D.M. Smith Middle School (on the east side) were white.
Id. at 27.
On August 18, 2011, after seeking and receiving an extension to respond to the United States’ motion, the District responded in opposition. See Doc. # 10; Doc. #15; Doc. #26. In its supporting brief, the District argued that it was not in violation of federal laws because: (1) indices of interracial exposure “show the success of [the District’s] desegregation efforts;” (2) “the District’s magnet programs and robust majority-to-minority transfer initiative prove its good faith in attempting to achieve desegregation;” and (3) “the District must not be held responsible for demographic changes unrelated to former state-imposed segregation.” Doc. # 27 at 9. Additionally, the District urged the Court to consider “the stability of desegregated enrollment.” Id. at 18.
On October 6, 2011, after seeking and receiving a separate extension, the United States replied in support of its motion. Doc. # 29; Doc. # 30; Doc. # 31. In its reply, the United States argued, in essence, that the arguments raised in the District’s response did not relieve the District of its duty to achieve desegregation in its schools. Doc. #31.
On February 27, 2012, Plaintiffs filed a motion for leave “to add, substitute or file [a] motion to intervene on behalf of present African American parents who have children that attend a school within the Cleveland School District.” Doc. # 37 at 4. Two days later, on February 29, 2012, Judge Davidson granted Plaintiffs twenty days “to file a motion to substitute parties pursuant to Rule 17(a) of the Federal Rules of Civil Procedure.” Doc. # 38.
On March 20, 2012, Plaintiffs, pursuant to Rule 17 and Judge Davison’s order, filed a motion to substitute as plaintiffs eight African American parents of students in the Cleveland School District: (1) Lenden Sanders, (2) Mack Sanders, (3) Crystal Williams, (4) Amelia Wesley, (5) Dashanda Frazier, (6) Anginette Terrell Payne, (7) Antonio Lewis, and (8) Brenda Lewis. Doc. # 40. Judge Davidson granted the motion to substitute on March 28, 2012. Doc. # 43 at 13-14. In the same order, he concluded:
After the District received authority in the 1995 Consent Order to implement a magnet school at the high school level, the District applied for and received funding to establish a magnet program at Eastside High to increase desegregation of the high school. The District reports that the magnet program, which currently operates without funding from the Department of Education, consists of a visual and performing arts program for grades 9 through 12 and an international baccalaureate diploma program for grades 11 and 12. In addition to Eastside High’s magnet program, in an effort to attract minority students to the school, the District “buses” students who attend Eastside High and Cleveland High to each other’s schools to take certain classes in an attempt to enrich and equalize the educational experience of the two schools. Despite the District’s attempts to attract Caucasian students to the majority-African-American East-side High, today, the school is attended by 99.7% African-American students
After the District received. authority in the 1992 Consent Order to implement a magnet school program at the junior high level to promote greater desegregation, the District applied for and received funding to establish the magnet program at D.M. Smith Middle School. The magnet program, which currently operates without funding from the Department of Education, consists of an arts and international baccalaureate program that serves grades 7 to 8 in an attempt to reduce minority group isolation at the junior high level. Despite D.M. Smith Middle School’s magnet program, the school remains a racially identifiable African-American school with an attendance of 99.7% African-American students ....
[W]ith respect to student assignment, the District should submit a plan for improving integration in only Eastside High School and D.M. Smith Middle School. The Court finds the District has demonstrated a good faith effort to comply with prior desegregation Orders and federal law with respect to its elementary schools.
Id. at 24-25, 36-37 (emphases added).
Turning to faculty and staff, Judge Davidson found that, even considering a “20% measure of deviation, which is not accounted for in any of the prior desegregation Orders,” forty percent of the District’s schools failed to reflect the district-wide ratio of minority and nonminority faculty and staff. Id. at 39. Nevertheless, Judge Davidson concluded:
[Tjhe District has attempted to comply with the prior desegregation Orders by hiring and retaining minority teachers and administrators and engaging in activities to recruit qualified African-American applicants, including targeting predominantly African-American colleges and universities .... Accordingly, the District should propose a plan to achieve the mandated racial balance among faculty in the District ....
Id. (emphasis in original).
E. Submission of Initial Plans and Subsequent Opinion
On May 15, 2012, the District submitted a “Proposed Plan ... to improve integration at East Side High School and D.M. Smith Middle School.” Doc. # 44 at 1. The proposed plan called for: (1) the creation of new magnet programs at East Side High and D.M. Smith; (2) enhancements to the currículums at East Side High and D.M. Smith designed to attract white students; (3) opening courses at East Side High and D.M. Smith which are unavailable to Cleveland High and Margaret Green students; and (4) reassignment of faculty so that “[b]y the end of the 2013-2014 school year ... faculty racial makeup at each school will be within ... 15% points of the school level’s (elementary or secondary) racial composition.” Id. at 1-6.
On August 30, 2012, the United States filed an objection to the District’s proposed plan. Doc. # 48. In its objection, the United States argued that the District’s plan relied on magnet programs and exclusive course offerings, two mechanisms which had failed in the past. Id. at 8-10. Representing that the “District has agreed to reach its [faculty reassignment] targets by the beginning of the 2013-14 school year,” the United States did not object to the plan’s proposal to reassign faculty and staff under this new timeline. Id. at n.l.
Judge Davidson held a hearing on the District’s proposed plan and the United States’ objection on December 11, 2012. Doc. # 55; Doc. # 66. At the hearing, the United States argued for “consolidating the District’s middle schools and high schools into a single-grade structure for grades six through twelve ...” Doc. # 81 at 3. The next month, on January 24, 2013, Judge Davidson issued an order injecting the District’s proposed plan, finding:
[T]he attendance zones, as defined by the former railroad tracks in Cleveland, perpetuate vestiges of racial segregation. The high school and junior high school students should have a true freedom of choice to attend either high school and either junior high school. Accordingly, the Court orders that the heretofore-established attendance zones shall be abolished, thus establishing an open-enrollment procedure ....
Also, the majority-to-minority transfer program ... is hereby abolished. The requirement for [a student] to be a minority in the transferee school is eliminated, thus permitting any child within the District to enroll in either of the high schools or junior high schools, re- • gardless of the racial composition of, the student body at such schools. -
Doc. # 78 at 8-9.
On February 21, 2013, the United States filed a motion to alter Judge Davidson’s order. Doc. # 80. In its motion, the United States argued that the freedom of choice plan endorsed by the Court was unconstitutional and had been previously rejected by Judge Keady when, during a 1969 hearing,. he observed that “no longer may the effectiveness of any plan depend upon the wishes or choices, of students or their parents.” Doc. #81 at 12-13. The United States again advanced a consolidation plan. Id. at 18-21.'
Judge Davidson denied the motion to alter his order on the ground that the judgment was “plausible in light of the record viewed in its entirety.” Doc. # 90 at 2 (citing Anderson v. Sch. Bd. of Madison Cty., 517 F.3d 292, 296 (5th Cir.2008)). In deciding not to alter his ruling, Judge Davidson noted that “the data before the Court does not warrant modification of the Court’s opinion and Order to at this time order consolidation of the District’s two high schools and two junior-high schools.” Id.
F. Appeal and Remand
The United States timely appealed Judge Davidson’s January 24, 2013, ruling and his decision denying the United States’ motion to alter. Doc. # 94. On April 1, 2014, the Fifth Circuit Court of Appeals issued an opinion finding that “[t]he district court did not make clear its conclusion that the problem of the continuing racial isolation and racial identifiability of D.M. Smith Middle School and East Side High School would be resolved by the' implementation of a freedom of choice plan.” Cowan v. Cleveland Sch. Dist., 748 F.3d 233, 240 (5th Cir.2014). Accordingly, the Fifth Circuit reversed and remanded “for a more explicit explanation of the reasons for adopting the freedom of choice plan, and/or for consideration of the alternative desegregation plans proposed by the parties, as appropriate.” Id.
On June 18, 2014, on joint motion of the parties, Judge Davidson issued a scheduling order setting litigation deadlines, including a deadline for submitting proposed desegregation plans, in the wake of the Fifth Circuit’s remand. Doc. # 99. The scheduling order states that “[i]n the event the Court holds a hearing on competing desegregation plans and orders a plan, the District -will implement the plan by the beginning of the 2015-2016 school year or under another timeline set by the Court.” Id. at ¶ 12.
Approximately one month later, on July 21, 2014, Judge Davidson issued an order recusing himself from this action and assigning the case to the undersigned United States District Judge. Doc. # 101.
G. Second Submission of Plans and Filing of Motions
After this case was transferred to the undersigned, the parties twice moved for extensions of the deadline to submit proposed desegregation plans. Doc. # 104; Doc. # 106. The Court granted the first motion in part, and granted the second, extending the deadline to submit plans through and until January 23, 2015. Doc. # 105; Doc. # 107.
On January 23, 2015, the United States and the District filed competing proposed plans to achieve desegregation. Doc. # 108; Doc. # 109. On February 13, 2015, the District filed objections to the United States’ plan, and the United States filed objections to the District’s two plans. Doc. #112; Doc. #113. Following a February 20,2015, prehearing conference, this Court issued an order on February 25, 2015, directing the parties to circulate all expert reports by March 20, 2015, and to complete discovery by April 21, 2015, Doc. # 117. About a week later, after another prehearing conference held March 3, 2015, the Court noticed an evidentiary hearing on the competing desegregation plans for May 18, 2015. Doc. # 127.
One week before the close of the discovery period, on April 14, 2015, Plaintiffs filed a motion to substitute Reverend Edward Duvall for Plaintiffs Wesley and Payne. Doc. # 160. In their motion, Plaintiffs represented that Duvall “is the African-American parent of two children enrolled in the Cleveland School District” and that Wesley and Payne “have children who have graduated from the Cleveland School District.” Id. at ¶¶ 3-4. On April 30, 2015, the District, without filing an accompanying memorandum brief, filed a motion to dismiss Plaintiffs Frazier, Lewis, and Williams or, in the alternative, to exclude their proposed testimony at the upcoming hearing, for failure to appear for a noticed deposition. Doc. # 166.
On May 4, 2015, and May 8, 2015, the United States and the District, respectively, filed motions in limine to exclude certain expert evidence. Doc. # 172; Doc. # 176. On May 14, 2015, the United States filed a motion to strike the District’s motion in limine as untimely. Doc. # 185. The same day, the District, citing a desire to formulate a new desegregation plan, filed a motion to continue the hearing on the parties’ proposed plans. Doc. # 183.
H. Hearing and Rulings
On May 15, 2015, this Court entered an order denying Plaintiffs’ motion to substitute, citing Plaintiffs’ failure to make the necessary showing to justify substitution under Rule 17 of the Federal Rules of Civil Procedure. Doc. # 191. In addition to denying substitution, the order provided that, “it appearing that the grounds for Payne’s and Wesley’s standing to pursue this action—the enrollment of their children in Cleveland schools—has vanished, Payne and Wesley are ordered to show cause, within fourteen (14) days of the issuance of this order, why they should not be dismissed from this action for lack of standing.” Id. at 4-5 (footnote omitted).
Three days later, on May 18, 2015, the Court denied the District’s motion to continue the hearing, finding that the District’s desire to delay the hearing did not outweigh considerations of the District’s diligence; the effectiveness of a continuance; the inconvenience to the parties, witnesses and the Court; and the absence of prejudice. Doc. # 194. In doing so, the Court noted that “the denial of the continuance does not necessarily bar the District from seeking to present evidence regarding [a new plan] on a later date ....” Id. at 4 n.3. The Court also denied the parties’ motions in limine on the grounds that, as the trier of fact, the Court would be able to “determine whether, and to what extent, all proffered evidence will be considered.” Doc. # 196. Having denied the motions in limine, the Court denied the United States’ motion to strike as moot. Id. The same day, the Court denied the District’s motion to dismiss Frazier, Lewis, and Williams because the District’s right to discovery could be protected by imposing the less severe sanction of excluding Frazier, Lewis, and Williams from testifying at the evidentiary hearing. Doc. # 195.
The evidentiary hearing on the proposed desegregation plans began on May 18, 2015, and concluded on May 22, 2015. Doc. # 205. On June 5, 2015, the Court toured and inspected all schools operated by the District with counsel for the parties. Approximately two months after the evi-dentiary hearing, on July 27, 2015, the parties submitted proposed findings of fact and conclusions of law. Doc. # 207; Doc. # 208.
On October 16, 2015, the Court directed the parties to “file ... a single affidavit ... prepared by a person with competent knowledge. setting forth a revised or updated estimate for the implementation of that party’s respective plan, assuming the Court’s adoption of such plan as of the date of this order.” Doc. # 209. Both parties submitted the requested affidavits on October 30, 2015. Doc. #210; Doe. #212.
II
Preliminary Matters
A. Scope of Remand
Before describing and analyzing the parties’ proposed desegregation plans, it is important to establish the scope of inquiry on remand. As mentioned above, the Fifth Circuit remanded this action “for a more explicit explanation of the reasons for adopting the freedom of choice plan, and/or for consideration of the-alternative desegregation plans proposed by the parr ties, as appropriate.” Cowan, 748 F.3d at 240.
As a general matter, “[a] remand made without deciding anything, apart from directing further proceedings, determines only that the further proceedings must be had[. S]imilarly, a remand for an explanation of the lower court’s decision to enable informed review leaves the lower court free to change its mind.” 18B Fed. Prac. & Proc. Juris. § 4478.3 (2d ed,). Thus, while a remand “mandate controls on all matters within its scope, ... a district court on remand is free to pass upon any issue which was not expressly or impliedly disposed of on appeal.” Newball v. Offshore Logistics Int'l, 803 F.2d 821, 826 (5th Cir.1986).
Here, the Fifth Circuit’s remand of Judge Davidson’s January 24, 2013, order did not decide anything apart from the necessity of a further explanation of Judge Davidson’s freedom of choice decision. Thus, remand grants the Court discretion to change its mind as to the appropriate desegregation plan to be adopted. 18B Fed. Prac. & Proc. Juris. § 4478.3. Likewise, insofar as the opinion left open the consideration of alternative desegregation plans, such properly remains before this Court. See Newball, 803 F.2d at 826. Accordingly, in considering the appropriate desegregation plan, the Court is not constrained by Judge Davidson’s adoption of a freedom of choice remedy, and may consider any plan properly before it. Id.
B. Applicable Standards
The goal of desegregation was precisely articulated by the Fifth Circuit Court of Appeals in Cowan:
In desegregation cases, the objective is to eliminate from the public schools all vestiges of state-imposed segregation. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about. The duty is not simply to eliminate express racial segregation: where de jure segregation existed, the school district’s duty is to eliminate its effects root and branch .... “[T]he burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.”
748 F.3d at 238 (internal citations omitted and footnote omitted).
“To guide courts in determining whether the vestiges of de jure segregation have been eliminated as far as practicable, the Supreme Court has identified several aspects of school operations that must be considered, commonly referred to as the Green factors: student assignment, faculty, staff, transportation, extracurricular activities, and facilities.” Anderson, 517 F.3d at 298. “In fashioning and effectuating the [desegregation] decrees, the courts will be guided by equitable principles.” Milliken v. Bradley, 433 U.S. 267, 279-80, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (alteration in original). These equitable principles are: (1) “the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation;” (2) the remedy “must be designed as nearly as possible to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct;” and (3) state and local authorities have an interest “in managing their own affairs, consistent with the Constitution.” Id. at 280-81, 97 S.Ct. 2749 (internal quotation marks omitted).
The district court’s duty in a desegregation case is to “sort through the various proposed remedies, exclude those that are inadequate or infeasible and ultimately adopt the one that is most likely to achieve the desired effect: desegregation.” Cowan, 748 F.3d at 240. When evaluating plans, “delay in achieving effective desegregation and uncertainty about whether a proposed plan will, in fact, achieve desegregation have been unacceptable flaws in any school desegregation plan since Green.” United States v. CRUCIAL, 722 F.2d 1182, 1191 (5th Cir.1983). The implementation of desegregation remedies is reviewed for abuse of discretion. Cowan, 748 F.3d at 238.
In asking the Court to implement one of its plans, the District advances two initial arguments: (1) that the chosen remedy must be limited by the nature and scope of the constitutional violation which, in this case, is “the attendance zone line imposed by Order of this Court;” and (2) the Court should defer to the District’s plans. Doc. # 112 at 9-10; see Doc. # 207 at ¶¶ 133, 137.
1. Constitutional violation at issue
While the District argues that the constitutional violation to be remedied by this Court is the drawing of the attendance zone lines, the United States responds that the injury to be remedied is not the zones themselves, but the injury the zones were intended to redress—the de jure segregation system. Doc. # 122 at 3-4. The United States also argues that “when remedies have proven unsuccessful in practice, the District remains obligated to take all available steps to correct the original constitutional violation.” Id. at 3 (citing Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979); Davis v. E. Baton Rouge Sch. Bd., 721 F.2d 1425, 1435 (5th Cir.1983)).
The Court agrees with the United States. In this case, the constitutional violation at issue is decades of state-sponsored segregation which existed at the point Judge Keady issued his initial order in 1969. The District has not cited, and this Court has not found, authority standing for the proposition that court-ordered desegregation plans that fail to achieve the desired desegregation absolve a school district of responsibility for remedying the effects of the initial state-sponsored segregation. To the contrary, the law is clear that, “[ujntil [a school board] has achieved the greatest degree of desegregation possible under the circumstances the Board bears the continuing duty to do all in its power to eradicate the vestiges of the dual system.” Davis, 721 F.2d at 1435. Thus, where a court-ordered plan fails to achieve desegregation, a school district or board remains obligated “to come forth with a more effective plan.” Peniek, 443 U.S. at 459-60, 99 S.Ct. 2941.
There is no dispute here that, in-violation of the Constitutioh, the District has operated a dual system and that, as observed by Judge Davidson’s January 2013 order, the District has failed to achieve the greatest degree of desegregation possible under the circumstances. Accordingly, the District “bears the continuing duty to do all in its power to eradicate the vestiges of the dual system.” Davis, 721 F.2d at 1435. If the District fails to discharge this duty, this Court “has broad power to fashion a remedy that will assure a unitary school system.” Penick, 443 U.S. at 459, 99 S.Ct. 2941. Put differently, Judge Keady’s implementation of attendance zones places no restriction on this Court in fashioning a desegregation remedy.
2. Deference
The District next argues that, because it has been acting in good faith to desegregate its schools, its plans are entitled to deference. Doc. # 112 at 10, 17 (citing Green v. County School Bd. of New Kent County, Va., 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Wright v. Council of Emporia, 407 U.S. 451, 479, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972) (Burger, J., dissenting); Hall v. West, 335 F.2d 481, 484 (5th Cir.1964)); see Doc. # 207 at ¶ 133 (citing Green, 391 U.S. at 439, 88 S.Ct. 1689).
The United States responds:
Without conceding the assertion of good faith here, even assuming that a school district has complied in good faith with a court-ordered desegregation plan, such compliance alone does not satisfy the district’s continuing obligations to take further action to effectuate meaningful desegregation. See Ross v. Houston Indep. Sch. Dist., 699 F.2d 218, 225 (5th Cir.1983) (“A school system is not, of course, automatically desegregated when a constitutionally acceptable plan is adopted and implemented, for the remnants of discrimination are not readily eradicated. ... We have several times refused to find unitary a school system whose operation continues to reflect official failure to eradicate, root and branch, the weeds of discrimination.”). The appropriate measure at this juncture is not whether the District has operated in good faith in the past, but whether its proposed plans are reasonably calculated to effectively desegregate East Side and D.M. Smith.
Doc. # 122 at 4 (internal footnote omitted).
The provision of Green cited by the District states 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.” 391 U.S. at 439, 88 S.Ct. 1689. However, the Green court also observed that “the availability to the board of other more promising courses of action may indicate a lack of good faith, and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method.” Id. The notion expressed in Green that where a district proposes an effective, constitutionally permissible' plan, such plan is entitled to deference, is reflected in the other two cases the District cites. See Wright, 407 U.S. at 479, 92 S.Ct. 2196 (“When a plan devised by local authorities crosses the threshold of achieving actual desegregation, it is not for the district courts to' overstep local prerogatives' and insist on some other alternative.”); Hall, 335 F.2d at 484 (“the sequence of responsibility is first the school authorities, then the local district court”) (internal quotation marks omitted). Thus, to the extent either of the District’s proposed plans promises to achieve desegregation, such plan may be entitled to deference.
C. Standing of Plaintiffs Payne and Wesley
Neither Payne nor Wesley responded to the Court’s May 15, 2015, directive to “show cause, within fourteen (14) days of the issuance of this order, why they should not be dismissed from this action for lack of standing.” Accordingly, Plaintiffs Payne and Wesley will be dismissed from this action for lack of standing and for failure to comply with an order of the Court. See United States v. Hays, 515 U.S. 737, 743-44, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (“Allen v. Wright[, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984),] made clear that even if a governmental actor is discriminating on the basis of race, the resulting injury accords a basis for standing only to those persons who are personally denied equal treatment’ by the challenged discriminatory conduct.”) (internal quotation marks omitted); see also Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir.1998) (“A district court sua sponte may dismiss an action for failure ... to comply with any court order.”) (citing Fed. R. Civ. P. 41(b)).
Ill
Geography and History of the District
As this Court previously observed:
Cleveland, Mississippi is a small city in eastern Bolivar County in the Mississippi River Delta with a population of a little over 12,000 residents. The city was a creation of the railroad system; the land that is now Cleveland was the approximate halfway point between Memphis, Tennessee, and New Orleans, Louisiana. The Louisville, New Orleans & Texas Railroad incorporated the town, which was named Cleveland in honor of then-President Grover Cleveland in 1886. Cleveland has since become home to Delta State University and has been named one of the hundred best small communities in the United States. Cleveland is also the base of the Cleveland School District, which encompasses 109 square miles and serves the cities of Cleveland, Boyle, Renova, and Merigold.
Doc. # 43 at 1-2. The District is roughly bisected by railroad tracks which run north to south through the towns of Meri-gold, Renova, Cleveland, and Boyle. U.S. Ex. 2.
IV
The School District
A. The District Today
Cleveland, the center of the District, was characterized by Judge Davidson in his January 2013 opinion “as an oasis in the Mississippi Delta.” Doc. # 78 at 4. The city has been described as “a gem ... in a beautiful spot ... close to Memphis [and] not too far from New Orleans.” Tr. 360. Cleveland is home to Baxter Health Care, Bolivar Medical Center, Delta State University, and the recently-opened GRAMMY museum. Tr. 347, 360-61. Cleveland is said to have “a very, very good economy” that is “light years ahead” of the rest of the Delta. Tr. 877. No party.presented evidence describing the businesses or cultures in Boyle, Merigold, or Renova—the other towns in the District.
According to the 2010 Census, the towns and areas of the District have a population of 19,292 individuals, with a racial composition of approximately 45.5% white, 51.5% African American, and 3.0% other races (including individuals of two or more races). National Center for Education Statistics, CENSUS 2010, Table [PS] Race [8], Cleveland School District, MS (available at http://nces.ed.gov/programs/edge/ tables.aspx?ds=census&y=2010). As of May 22, 2015, the District had a total enrollment of 3,723 students. Doc. # 200-1. Of these students, approximately 28.8% were white, 66.7% were African American, and 4.5% were other races. Id.
The bulk of the District’s secondary school student population lives in Cleveland and. its outskirts. See U.S. Ex. 2. Within Cleveland, African American students reside primarily in the southeast portion of town (where East Side High is located), to the east of the railroad tracks and to the south of State Highway 8. Id. White students residing in Cleveland, reside primarily in the southwest portion of town (where Cleveland High is located), to the west of the railroad tracks and to the south of State Highway 8. Id. Outside of Cleveland, white students live almost exclusively on the west side of the tracks; however, African American students outside of Cleveland are not concentrated on either side .of the tracks. Id.
The District currently operates ten schools, as more fully discussed below. In addition to the District schools, there are twelve private schools within a fifty-mile radius of Cleveland: Presbyterian Day School, in Cleveland; Bayou Academy; North Sunflower; Indianola Academy; Pillow Academy; Washington Day School; Christián Day School; St. Joseph; Lee Academy; Presbyterian Day School, in Clarksdale; Mariana Academy; and Heritage Christian Academy. Tr. 803-04.
B. The District Schools
The ten schools currently operated by the District consist of two magnet elementary schools servicing grades pre-K through 6th (Bell Academy and Hayes Cooper Center); two zoned elementary schools servicing grades K through 5th (Parks Elementary and Pearman Elementary); one zoned elementary school servicing grades K through 2nd (Nailor Elementary); one zoned elementary school servicing grades 3rd through 5th (Cypress Park Elementary); two middle schools (Margaret Green Middle School and D.M. Smith Middle School); and two high schools (Cleveland High and East Side High). Doc. # 200-1. Only the high schools and middle schools are at issue here.
The District is overseen by Superintendent Jacqueline Thigpen, an African American woman, and by a five-person school board (“Board”), of which two members are African American. Tr. 221, 810, 811.
1. High schools
Cleveland High and East Side High, the District’s two high schools, operated as zoned schools until the 2013-2014 academic year. Doc. # 109-1 at 4. The two high schools are close in distance, located only 1.2 miles apart. Id.
Since Judge Davidson’s January 2013 order, the schools have operated under a “freedom of choice plan,” under which any high school student can enroll in either Cleveland High or East Side High. Tr. 20. Also, ostensibly still operating under the 1989 Consent Order, the District allows students at one school to take classes at the other. Tr. 649-50. When students elect to take a class at a different school, they are bussed from their enrolled high school to the site of their class at the other high school. Tr. 232. Buses run each day between the two schools every class period except the last period of each day. Id. Depending on student course selection and course scheduling, it is possible for a student to make multiple trips between East Side High and Cleveland High during the course of a single day. Tr. 240. While the trip between the two schools may only take five to seven minutes, commuting students are often late for classes. Tr. 240, 629.
Although the high schools offer shared classes, they operate under their own budgets and run their own athletic teams and extracurricular programs. See Tr. 202, 263, 652. In a typical budget year, Cleveland High normally has greater expenditures, but East Side High generally has a higher per pupil expenditure. Tr. 263.
a. Cleveland High School
Cleveland High, which is housed on the same campus as Margaret Green Middle School, is comprised of four structures: (1) a main building built in 1949 (44,889 square feet); (2) a gymnasium built in 1939 (17,114 square feet); (3) a band, computer, and tech lab built in 1964 (16,518 total square feet); , and (4) a cafeteria-built in 1959 (4,475 square feet). Tr. 428; Doc. # 109-2.
John Poros, an expert in architectural design called by the United States, summarized th'e condition of Cleveland High’s structures in his report:
The existing Cleveland High School facility has fair to poor conditions of interior finishes (materials such as floor tile, baseboard, acoustical ceiling panels, and plaster wall surfaces), difficulties, with accessibility overall, and some deficiencies in facilities to support teaching. Acoustical ceiling panels are old, stained and-sagging, wall surfaces in areas are damaged and rough, and floor tiles are scuffed and-stained. Restrooms are in fair condition with newer tile • floors, plumbing fixtures like urinals -and toilets, as well as new plastic laminate toilet partitions. The state of the interior finishes are a matter of appearance and do not pose a safety hazard (as would be the case if the floor tile was crumbling and fraying creating a- trip hazard, or if acoustical ceiling panels were to fall). The steel windows are not leaking, but are heavily caulked and thus not energy efficient. . The roofs have been maintained as part of the District’s overall maintenance plan.
U.S. Ex. 27 at 4 (internal citations omitted). Poros also opined that Cleveland High contains a number of design issues which render it potentially non-compliant with the Americans with Disabilities Act. Tr. 561, 589. Specifically, the science lab is located on the second floor such that “if you are in a wheelchair [it] becomes difficult-to impossible to ... use that lab;” the entry for disabled students “kind of snakes through the library;” a ramp to the cafeteria potentially violates the ADA; and “there are some bathrooms that are on a half level down from the main level _” Tr. 589-90. Poros stated that these problems could be remedied within a year and the cost of repairs would not “be that significant.” Tr. 590. Apart from the stated deficiencies, Poros deemed the facilities to be pedagogically “adequate.” U.S. Ex. 27 at 4.
As for athletics, due to the size “and other functional difficulties” of the gymnasium, Cleveland High athletic teams use the gymnasium at Margaret Green. Id. at 4-5. Poros testified that the “[o]utd'oor sports have the most basic fields, stands, press box, and field house,” but are generally adequate. Id.
Poros also testified that Cleveland High has a maximum physical capacity of 720 students, and an optimal .student capacity of 576 students. Tr. 571-73. Based on these standards, during the three school terms immediately prior, Cleveland High never reached maximum physical capacity but regularly exceeded its optimal capacity. As of May 22, 2015, the school had a total enrollment of 614 students, of which 45.4% were white, 47.4% were African American, and 7.2% were of other races. Doc. # 200-1. For] the 2013-2014 academic year, the first year of open enrollment, Cleveland High had a total enrollment of 616 students, of which 46.6% were white, 46.1% were African American, and 7.3% were of other races. Doc. # 102-1. For the 2012-2013 academic year, the year before the implementation of open enrollment, the school had a total enrollment of 696 students, of which 47% were white, 45.5% were African American, and 7.4% were other races. Doc. # 93-1.
Based on testing in English I, Algebra II, Biology I, and U.S. History, Cleveland High is rated as a “C” school. Tr. 221.
6. East Side High School
East Side High sits across a two-lane road from D.M. Smith Middle School. Doc. #109-1 at 8. The East Side High compound is comprised of three buildings: (1) a main building built in 1956 (52,370 square feet); (2) a band hall built in 1965 (6,791 square feet); and (3) a Science Building built in 1974 (10,951 square feet). Doc. # 109-2.
Poros, as he did for Cleveland High, also provided his assessment of East Side High’s buildings in his report:
The general building layout has a number of advantages in that most of the building is one story, the circulation is continuous and accessible, and the building has enough space around it to easily support additions.
The building, although old, is in fair condition in terms of interior finishes (materials such as floor tile, baseboard, acoustical ceiling panels, and plaster wall surfaces). Interior finishes are worn in areas but replaceable. A renovation/addition project from 2012 certainly has helped to bring up the overall interi- or finish condition of the building. The HVAC system has been recently upgraded and science labs renovated. The roofs have been maintained as part of the District’s overall maintenance plan.
U.S. Ex. 27 at 7.
Poros explained that East Side High’s facilities suffer from some accessibility issues. Id. at 6. Specifically, “[t]he four science rooms on the second floor are not [handicap] accessible and would require the installation of an elevator, the fire-rated enclosure of the existing interior and exterior stair, and the creation of a fire-rated corridor to access the existing outdoor exit stair.” U.S. Ex. 27 at 5-6. Except for this accessibility issue, Poros opined that “[t]he building is satisfactorily equipped in terms of the curriculum that is offered ....” Id. at 5. The school has a newly restored track, a football field, a baseball field, and a field house. Id.
Poros estimated that East Side High has an enrollment capacity of somewhere between 769 and 1153 students. U.S. Ex. 27 at 24-26. In contrast, Joseph Henderson, an expert in school architecture called by the District, opined that “the educational capacity of the [East Side High] campus [is] 600 to;675 students.” CSD Ex. 18 at 1.
Currently, East Side High offers an International Baccalaureate Diploma Programme for eleventh and twelfth graders. Tr. 35. This program, which was created to draw a diverse group of students to East Side High, offers “academically higher subjects” in math, psychology, history, English, Spanish, “Theory of Knowledge,”. and biology. Tr. 35, 289-90; CSD Ex. 12 at 17. Additionally, East Side High exclusively offers classes in AP calculus, trigonometry, and public speaking. U.S. Ex. 73. The IB program and the other “exclusive” offerings are available to Cleveland High students through busing. Id.
Through a memorandum of understanding with Mississippi Delta Community College, East Side High further offers college level courses for high school and/or college credit. Tr. 230-31, 238-39. Any student may enroll in these classes but must pay a sixty dollar fee in order to obtain college credit. Tr. 231. The classes are taught by East Side High teachers “who have a master’s [degree] and above and meet Mississippi Delta [Community College] criteria for faculty.” Tr. 239. As of May 22, 2015, East Side High had a total enrollment of 344 students, of which 100% were African American. Doc. # 200-I. For the 2013-2014 academic year, East Side High had a total enrollment of 349 students, of which 99.7% were African American, and 0.3% were other races. Doc. # 102-1. For the 2012-2013 academic year (before open enrollment), the school had a total enrollment of 355 students, of which 99.2% were African American, and 0.8% were other races. Doc. # 93-1.
For the 2014-2015 academic year, forty-eight Cleveland High students enrolled in one or more IB classes at East Side High. CSD Ex. 12 at 17. Of the forty-eight enrolled Cleveland High students, thirty (62.5%) were white, fourteen (29.2%) were African American, and four (8.3%) were of other races. Id. Forty-six students from East Side High, all African American, were enrolled in at least one IB course. Id. During the same time period, fifty-six students participated in the dual enrollment classes, with “several” students taking a psychology course at Delta State University. Tr. 229-230, 239.
Based on testing in English I, Algebra II, Biology I, and U.S. History, East Side High is rated as a “B” school. Tr. 221.
2. Middle schools
All 6th through 8th graders in the District, except for the 6th graders attending the District’s two magnet elementary schools, attend either Margaret Green Middle School or D.M. Smith Middle School. Doc. # 109-1 at 8. As mentioned above, Margaret Green is located on the same campus as Cleveland High, and D.M. Smith is located across the street from East Side High.
At the close of the 2014-2015 school year, the two middle schools had a combined enrollment of 761 students, with a racial makeup of 66.7% African American, 28.6% white, and 4.7% other races. Doc. #200-1.
a. D.M. Smith Middle School
D.M. Smith Middle School consists of one building, built in 1976, which measures 45,682 square feet in size. Doc. # 109-2. The building, which includes a new classroom wing completed in 2012, utilizes an “open” classroom concept, under which room partitions do not extend to the ceiling. U.S. Ex. 27 at 6; Tr. 574-75. In order to bring the classrooms up to the National Fire Protection Association Code, which is referenced by the Mississippi Department of Education’s educational guidelines, the walls would need to be extended to the ceiling and many of the classrooms would require the installation of an exterior opening. Tr. 576-77. Additionally, the District would need to install sprinklers in the building. Id.
According to Poros, D.M. Smith’s “2012 wing is in new condition” but the remainder of the building has “interior finishes ... in fair condition: somewhat worn, but serviceable and easily updated if needed.” U.S. Ex. 27 at 6. Outside the building, D.M. Smith lacks any “play fields.” Id.
Poros testified that the building housing D.M. Smith has a maximum physical capacity of 840 students and an optimal student capacity of 636 students. U.S. Ex. 27 at 6; Tr. 578. As of May 22, 2015, D.M. Smith had a total enrollment of 248 students, of which 99.6% were African American, and 0.4% were of other races. Doc. # 200-1. For the 2013-2014 academic year, the school had a total enrollment of 258 students, of which 99.6% were African American, and 0.4% were other races. Doc. # 102-1. For the 2012-2013 academic year (before open enrollment), the school had a total enrollment of 300 students, of which 99.7% were African American, and 0.3% were of other races. Doc. # 93-1.
D.M. Smith operates an IB program called “Middle Years.” Tr. 35. As of April 29, 2015, the Middle Years Program enrolled 245 students, virtually the entire enrollment at D.M. Smith. U.S. Ex. 17. As the numbers above show, enrollment at D.M. Smith has “dwindled over the last five years.” Tr. 51. Last year, D.M. Smith was a “failing school.” Id. Most recently, it received a “D” rating. Id.
h Margaret Green Middle School
Margaret Green Middle School consists of three buildings: (1) a main building built in 1959 (26,991 square feet); (2) an addition built in 1955 (17,840 square feet); and (3) a gymnasium built in 1976 (19,133 square feet). Doc. # 109-2.
' Generally, as reported by Poros, “[t]he condition of Margaret Green is poor.” U.S. Ex. 27 at 7. The building has numerous indices of foundation settlement, including “diagonal cracking of CMU and brick walls ... primarily in the cafeteria,” and tilting of a doorframe. Id.) Tr. 585.
Margaret Green has a maximum physical capacity of 750 students and an optimal student capacity of 568 students. U.S. Ex. 27 at 7. As of May 22, 2015, it had a total enrollment of 513 students, of which 50.9% were African American, 42.5% were white, and 6.6% were of another race. Doc. # 200-1. For the 2013-2014 academic year, Margaret Green’s total enrollment was 534 students, of which 49.3% were African American, 44.0% were white, and 6.7% were other races. Doc. #102-1. For the 2012-2013 academic year (before open enrollment), the school had a total enrollment of 461 students, of which 43.4% were African American, 49.9% were white, and 6.7% were of other races. Doc. # 93-1.
Margaret Green operates a “criteria based program” called STAR. Tr. 51. To qualify for the program, students must obtain teacher recommendations, achieve a certain score on a pre-algebra test, and have an “A-B. average.” Tr. 5