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Moore v. Tangipahoa Parish School Board

United States District Court, E.D. Louisiana

April 30, 2019

JOYCE MARIE MOORE, ET AL.
v.
TANGIPAHOA PARISH SCHOOL BOARD

         SECTION "B"(1)

          ORDER AND REASONS

         Defendant 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.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         The 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 (citations omitted).

         On June 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.

         On 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.

         In his 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.

         Four 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.

         THE PARTIES' CONTENTIONS

         The 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.[1] 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.

         Alternatively, 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.

         Additionally, 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.

         LAW AND ANALYSIS

         District 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 ...


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