United States District Court, N.D. Mississippi, Delta Division
DIANE COWAN, minor, by her mother and next friend, Mrs. Alberta Johnson, et al.; FLOYD COWAN, JR., minor, by his mother and next friend, Mrs. Alberta Johnson, et al.; LENDEN SANDERS; MACK SANDERS; CRYSTAL WILLIAMS; AMELIA WESLEY; DASHANDA FRAZIER; ANGINETTE TERRELL PAYNE; ANTONIO LEWIS; BRENDA LEWIS; PLAINTIFFS and UNITED STATES OF AMERICA INTERVENOR-PLAINTIFF
BOLIVAR COUNTY BOARD OF EDUCATION, et al. DEFENDANTS
M. BROWN UNITED STATES DISTRICT JUDGE.
desegregation action is before the Court on the parties'
joint motion for modification of the Court's May 13,
2016, memorandum opinion and order. Doc. #286.
13, 2016, this Court entered a memorandum opinion and order
adopting the desegregation plan proposed by the United States
of America, which calls for the consolidation of the
Cleveland School District's high schools and the
consolidation of its middle schools (“Adopted
Plan”). Doc. #215 at 96. Under the Adopted Plan, the
District would consolidate its ninth through twelfth grade
students into a single comprehensive high school housed in
the current facilities at Cleveland High School and Margaret
Green Middle School. Id. at 78, 96 The Adopted Plan
also calls for the assignment of all sixth through eighth
grade students (except for the sixth grade students at Bell
Elementary and Hayes Cooper Elementary) to a consolidated
middle school housed at the current East Side High School
11, 2016, the District filed a notice of appeal with the
Fifth Circuit Court of Appeals regarding the Court's May
13, 2016, desegregation order. Doc. #219.On September 22,
2016, this Court entered an order setting a timeline for
implementing the Adopted Plan. Doc. #233. Approximately three
weeks later, on October 14, 2016, the District submitted its
first proposed modification to the Adopted Plan. Doc. #241.
On November 18, 2016, the District formally withdrew its
first proposed modification in favor of a second modification
proposal (“Unified High School Plan”). Doc. #252.
The United States and the private plaintiffs opposed the
first proposed modification, Doc. #242, and recently
concluded a period of discovery related to the merits of the
second proposal, Doc. #274. Additionally, the private
plaintiffs, without prior explanation or leave of this Court,
submitted their own proposed modification on January 11, 2017
(“Private Plaintiffs' Plan”). Doc. #264.
February 8, 2017, the parties filed a joint motion seeking to
modify the Adopted Plan and the corresponding implementation
timeline. Doc. #286. In the motion, the parties represent
that they have reached a settlement agreement which:
will preserve the Court's May 13, 2016, Order, save one
change regarding sixth grade student assignment. Under this
agreement, the District will consolidate its ninth through
twelfth grade students into a single comprehensive high
school housed in the current facilities at Cleveland High
School and Margaret Green Junior High School. The District
will assign all seventh and eighth grade students to a
consolidated middle school housed in the current East Side
High School facility. Additionally, the District will expand
grade offerings at Cypress Park, Pearman, and Parks
elementary schools to include the sixth grade. This change
will bring these elementary schools in line with Bell Academy
and Hayes Cooper Center, which already include the sixth
grade. As a result, all District students will begin middle
school at the same time, in the seventh grade, and under one
at 2-3. This proposed modification to the Adopted Plan also
calls on the District to “give preference to current
Cypress Park fifth grade students who apply for current
openings at Hayes Cooper Center and Bell Academy for the
2017-2018 school year.” Id. at 3 n.1. In
addition to seeking modification of the Adopted Plan, the
motion states that the District withdraws its second proposed
plan and that the private plaintiffs withdraw their proposed
February 14, 2017, this Court entered an order directing the
parties to provide evidence showing the capacity of the
District's elementary schools to accommodate the
District's sixth grade students. Doc. #288; Doc. #289.
February 21, 2017, the District submitted an affidavit of Dr.
Jacquelyn Thigpen, the District's superintendent. Doc.
#292. Thigpen's affidavit states that Cypress Park (D.M.
Smith Elementary) and Parks Elementary have the capacity to
accommodate the proposed sixth grade students. Id.
However, Thigpen avers that Pearman Elementary currently
lacks such capacity. Id. at 2. Accordingly, Thigpen
proposes changing Pearman Elementary from a kindergarten
through fifth grade facility to a first through sixth grade
facility. Id. The kindergarten students zoned for
Pearman would “be placed in a lottery for slots at
Parks, Nailor [Elementary], Hayes Cooper, or Bell.”
Id. Upon completing kindergarten, the students would
then begin first grade at Pearman. Id. Thigpen
represents that this configuration, which has been approved
by the Board, would allow Pearman to accommodate the proposed
sixth grade students. Id.
request of the Court, Thigpen, on March 3, 2017, submitted a
second affidavit expanding on the District's plan for
accommodating the Pearman kindergarten students. Doc. #304.
Thigpen states in her second affidavit that the other
elementary schools in the District have the capacity to
accommodate the Pearman kindergarten students and that the
lottery used to reassign the students will be random.
Id. Under this formulation, students assigned to the
District's magnet schools (Hayes Cooper and Bell) will
have the option to stay at the magnet schools upon completing
kindergarten. Id. at ¶ 16. Finally, the
affidavit represents that “[n]either Private Plaintiffs
nor Plaintiff-Intervenor United States of America object to
the … plan ….” Id. at ¶ 19.
March 6, 2017, this Court entered an order stating that,
“upon dismissal of the pending appeal in this matter,
the Court ... will modify its May 13, 2016, order as
requested in the joint motion.” Doc. #305. On March 8,
2017, the District filed with the Fifth Circuit a motion to
dismiss its appeal. The Fifth Circuit dismissed the appeal
the next day. Doc. #307.
Court interprets the request to modify the Adopted Plan as
one made under Federal Rule of Civil Procedure 60(b), which
authorizes a Court to grant relief from a final judgment,
order, or proceeding, for any reason that justifies relief.
See, e.g., Evans v. Buchanan, 512 F.Supp. 839, 849
(D. Del. 1981) (considering motion to amend desegregation
plan as Rule 60(b) motion). Pursuant to Rule 60, a court may
relieve a party from a final judgment or order if applying
the order prospectively is no longer equitable, or for
“any other reason that justifies relief.” Upon
consideration, and for the reasons stated in this Court's
March 6, ...