United States District Court, E.D. Louisiana
JOYCE MARIE MOORE, ET AL.
TANGIPAHOA PARISH SCHOOL BOARD
ORDER AND REASONS
Tangipahoa Parish School Board (the “Board”)
filed a “Motion for Unconditional Unitary Status and
Judgment of Dismissal as to Staff Assignment and/or
Alternatively, Motion for Relief from Staff Hiring
Procedures.” Rec. Doc. 1568. Plaintiffs did not file an
opposition. For the reasons discussed below, IT IS
ORDERED that the motion is DENIED without
prejudice to reurge in six (6) months provided there are no
compliance issues during that time.
BACKGROUND AND PROCEDURAL HISTORY
Board filed its original motion for unitary status in the
area of staff assignment on March 13, 2015. Rec. Doc. 1241.
On June 22, 2015, this Court determined that the Board
materially complied with pertinent consent decrees and met
established desegregation standards. Rec. Doc. 1278 at 3. We
found that the Board had “progressively worked in good
faith to attain the 40-60 diversity goal set forth in Rec.
Doc. No. 866 with respect to staff assignments for a three
year period in that area.” Id. (citations and
footnote omitted). Accordingly, this Court provisionally
granted the motion, subject to compliance reviews during the
ensuing twelve months. Id. This Court further
provided that we would consider an unconditional grant of
unitary status “if no major compliance issues ar[o]se
during the applicable review period.” Id. at 4
28, 2016, the Board filed its second motion for an
unconditional grant of unitary status. Rec. Doc. 1410. The
Court ordered the Board to submit supplemental briefing
regarding staff assignment complaints filed during the
one-year review period, and the Board timely complied with
that request. Rec. Docs. 1419, 1422. On August 30, 2016 the
Court entered an Order and Reasons dismissing the Board's
motion for unitary status without prejudice. Rec. Doc. 1425.
We recognized that administrative personnel were not assigned
in a manner that tended to show that any school was intended
only for black or white students, and that the Board met this
Court's diversity goal from 2013 through 2016.
Id. at 5 (citing Rec. Docs. 1410-1, 1412-5, 1412-6),
Id. at 6 (citing Rec. Doc. 1410-6). Further, the
Board produced evidence that its personnel policies supported
non-discriminatory hiring practices and that there was a
system for filing discrimination complaints. Id. at
6-7 (citing Rec. Doc. 1410-2). However, the Court remained
concerned about whether complaints filed within the
twelve-month provisional review period revealed any
substantial violations of this Court's desegregation
orders. Rec. Doc. 1425 at 7. Supplemental information
provided by the Board did not eliminate these concerns
because the Board failed to submit documentation to support
its claim that three as yet unresolved grievances would
result in findings of no violation. Id. The Court
was unwilling to grant unitary status without such supporting
documentation and dismissed the motion without prejudice,
further stating that any subsequent motion for unconditional
unitary status needed to include supportive factual
documentation. Id. at 9-10.
February 17, 2017, the Board filed a third motion for
unconditional unitary status, arguing that the three
previously unresolved grievances had been decided in its
favor or decisions in its favor were supported by proper
documentation. Rec. Doc. 1450. Although plaintiffs did not
file an opposition to the motion, they did file an objection
to the CCO's recommendation concerning a grievance filed
by Mildred Johnson and a separate motion requesting relief
from the Board's interim appointment procedures. Rec.
Docs. 1463, 1464. On July 21, 2017 the Court issued an Order
and Reasons dismissing without prejudice the Board's
third motion for unitary status. Rec. Doc. 1471. The Court
found that the Board had shown compliance in two of the three
grievances filed during the twelve-month review period, but
the third complaint, filed by C.S., suggested a major
compliance issue. Id. at 12. Additionally, the Court
overruled plaintiffs' objection regarding Johnson's
application and affirmed the CCO's recommendation.
Id. at 22. The Court further ordered the parties to
submit supplemental briefing to the CCO to help the CCO and
ultimately the Court determine whether the Board's use of
interim staff appointments violates applicable laws and
orders in the area of staff assignment, including the
provisional grant of unitary status. Id. at 24-25.
2016-2017 report, the CCO discussed the Board's use of
interim appointments stating that it was not an optimal
approach, but he believed there were limited circumstances
that warranted interim placements. Rec. Doc. 1484 at 23-24.
However, the CCO also expressed concern that the Board
appeared to have adopted a broad view of when the interim
process may be used that was not authorized by the
Court's staff hiring order. Id. The CCO also
identified a problem with advertising one instead of multiple
positions when multiple positions are actually available,
which may serve to suppress the potential pool of qualified
black applicants. Id. at 33. Because the CCO's
investigation was ongoing, the Court ordered the CCO to file
updated findings by the end of March 2018. Rec. Doc. 1510.
The CCO then timely filed an updated report on the
Board's use of interim appointments, concluding that
while no single instance of interim hiring represented a
compliance issue, the unfettered use of such appointments
seemed to frustrate the intention of the staff hiring order.
Rec. Doc. 1525 at 4-10. The CCO recommended ordering the
parties, CCO, and CDIO to meet and develop a procedure for
interim hiring. Id. at 15. The CCO also faulted the
Board for hiring multiple assistant principals at schools
where it had only advertised one available position.
Id. at 110-11. After reviewing the CCO's
recommendation and the Board's objections, the parties,
CCO, and CDIO were directed to develop a proposed framework
for interim appointments and offer a recommendation to the
Court. Rec. Doc. 1544 at 19. Furthermore, while agreeing with
the CCO that the Board should have advertised every open
position when there were multiple available positions, we
found that the Board's error in failing to do so was made
in good faith and minimally excusable in this limited
instance. Id. at 22-23. The Board was warned that
future claims of good faith error may not be similarly
favorably viewed. Id. Consistent with aforementioned
directives, the CCO submitted a proposed framework for
interim staff appointments, which was adopted without
objection on August 22, 2018. Docs. 1548, 1549.
months later December 28, 2018 the Board filed the instant
fourth motion for unconditional unitary status. It claimed
the absence of a major violation of consent decrees and court
orders entitled full termination of judicial supervision in
the area of staff assignment. Rec. Doc. 1568. In the
alternative, the Board moves to terminate the hiring
procedures relative to staff assignment, claiming existence
of clear and convincing evidence of material compliance.
Id. at 4. Plaintiffs have not filed an objection.
Board argues that because plaintiffs' issues related to
the Mildred Johnson grievance and the procedure for interim
appointments have been resolved, the staff assignment issue
is now in a posture for final consideration for full and
unconditional unitary status. Rec. Doc. 1568-1 at 10. The
Board states that it has continued its good faith compliance
with the staff employment procedure and progress in meeting
the 40-60 diversity goal for staff as first laid out in Order
866, which was also previously recognized by the Court in the
2015 provisional grant of unitary status. Id. at 11.
The Board notes that its implemented employment process
includes “a broad recruiting practice, utilization of
the bi-racial Interview Committee, all required notices to
the CCO and Plaintiffs' counsel, and, where applicable,
the Superintendent's recommendation letter.”
Id. Additionally, the Board asserts that it has met
and/or exceeded the diversity goal for staff to the extent
practicable, as well as for principal and assistant
principals. Id. The Board also states that it
has acted in good faith and without violation of the
Court's orders with regard to interim appointments.
Id. at 12. The Board asserts that Superintendent
Melissa Stilley assessed the practice of utilizing interim
appointments upon assuming her role in June 2018 and decided
to discontinue the practice except under exigent
circumstances. Id. at 13. Since that time, the Board
avers that a number of vacancies have occurred and
Superintendent Stilley has not appointed interims and has
instead instituted the employment process and positions have
remained vacant until filled in accordance with Order 866.
Id. The Board further notes that if an emergency
situation necessitating appointment of an interim arises,
Superintendent Stilley will be guided by the framework
adopted by the Court. Id. The Board also asserts
that it has demonstrated good faith compliance with the
Court's orders regarding the advertisement of multiple
positions. Id. at 14. The Board states that after
the Court's order regarding the advertisement issue (Rec.
Doc. 1544), on December 14, 2018 the Administration
conferenced with the affected assistant principals and
advised them that pursuant to the order, their respective
positions will be vacated at the conclusion of their contract
term in June 2019. Id. The Board asserts that the
Administration will select new assistant principals through
the interview process by June 2019. Id. Since the
Court's order, the Board avers that the Administration
has advertised for more than one of a position type and
identified that multiple positions were being filled.
Id. at 15. Finally, the Board notes that since the
Court's last order, all of Mildred Johnson's
grievances have been resolved in favor of the Board.
Id. The Board states that the CCO issued a Report
and Recommendations on August 6, 2018 that found the Board
had not violated any court order as to Johnson's 2014 and
2018 grievances and neither Johnson nor Plaintiffs sought
review of this finding. Id.
the Board argues it has met or exceeded the 40-60 diversity
goal for school level administrators set forth by Order 866
in all categories other than central office supervisory
personnel for six (6) years. It therefore seeks relief from
hiring procedures with respect to those positions.
Id. at 16. The Board avers that the fact that it has
not met the hiring goal in the central office does not mean
it is not entitled to relief from 866 hiring because Fifth
Circuit precedent prohibits arbitrary racial quotas, and the
Board has, to the extent practicable, met the Court's
40-60 diversity goal. Id. at 17. Furthermore, the
Board argues that the Court's Order 866, by its own
terms, terminates when the Board meets the staffing goal
contained therein, which it has, to the extent practicable.
Therefore, the Board states that although it has continued to
follow the hiring procedures in good faith, it is entitled to
relief from Order 866 hiring procedures with respect to
school level administrative positions. Id.
the Board states that the three (3) pending objections to the
CCO's staff hiring Reports and Recommendations should not
prevent it from obtaining unitary status in staff assignment.
Id. at 17-18. The Board asserts that it cannot
prevent a disgruntled employee or applicant from filing a
grievance, but the mere filing of a grievance does not
demonstrate that it is not in compliance with desegregation
obligations. Id. at 18. The Board states that
applicants who feel wronged have remedies beyond filing a
grievance, such as by filing their own lawsuit alleging
discrimination. Id. at 19. Furthermore, the Board
notes that no grievance since Order 866 was entered has
resulted in a finding that the Board discriminated against an
applicant on the basis of race. Id.
courts may declare unitary status incrementally as
“remedies must be narrowly structured to address the
scope of a violation.” Flax v. Potts, 915 F.2d
155, 158-59 (5th Cir. 1990). “[C]onsequently, once the
need for close supervision of a particular facet of a school
desegregation plan ceases, a court must not continue to
supervise that particular facet.” Id. In
deciding a motion for unitary status, the ultimate inquiry
for the court is “'whether the [constitutional
violator] ha[s] complied in good faith with the desegregation
decree since it was entered, and whether the vestiges of past
discrimination ha[ve] been eliminated to the extent
practicable.'” Freeman v. Pitts, 503 U.S.
467, 492 (1992). It ...