Ahead of oral arguments scheduled for March 11, the government is arguing a federal district judge in Mississippi erred in ordering the Cleveland public schools to adopt a "freedom-of-choice" desegregation plan as a remedy for failing to desegregate formerly predominantly black schools.
The government said the evidence shows the plan from U.S. District Judge Glen Davidson in Oxford will not effectively desegregate the schools.
"The mere passage of time, decades even, does not relieve a school district of its desegregation obligations or permit the court to order relief that does not adhere to constitutional requirements. Because the District Court's freedom-of-choice plan will not result in a unitary school system, it must be rejected as constitutionally infirm," wrote Acting Assistant U.S. Attorney Jocelyn Samuels in the government's brief.
The desegregation case dates back to 1965 when plaintiffs sued the Bolivar County school system, including Cleveland, to end white-only and black-only schools. The school system has been under oversight of federal courts ever since.
In 2011, the Cleveland school district petitioned the court to remove it from federal oversight.
In the 1960s, school districts across the South were sued for discrimination and given desegregation orders, which put them under the scrutiny of the Justice Department. A dozen or more school systems in Mississippi have petitioned federal courts to come out from under such orders.
In Cleveland, two middle schools and two high schools have co-existed for decades. One set is all black; the other, school officials say, is well-balanced for race.
In 2012, the school district filed a proposal to desegregate East Side High School and D.M. Smith Middle School. The school system wanted to introduce magnet programs at both schools to help attract white students from Cleveland High School and Margaret Green Jr. High School.
Magnet schools have a specific theme or mission that drives their curriculum, such as fine arts or science. Magnet schools still must be racially balanced.
Instead, Davidson ordered the Cleveland schools to open the two high schools and two middle schools to all students and drop attendance zones defined as one on each side of the railroad tracks that split the town.
"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," Davidson wrote.
The Justice Department objected. Davidson had earlier rejected a government's proposal to consolidate the schools.
"Consolidation of the district's two junior high schools into one school and two high schools into one school is a reasonably available, constitutionally-sound remedy that will desegregate the schools now," Samuels said in its appeal of Davidson's order.
Although Davidson's plan is not what it wanted, the school district is now defending it before the 5th Circuit.
School district attorney John Hooks said Davidson's order eliminates the railroad track as a boundary for attendance zones and that removing the line "means all students in grades 7-12 have unfettered open enrollment at either school."
Hook said the District Court recognized that Cleveland schools have desegregated despite a diminishing enrollment of white students. He said both demographics and private choices have impacted the racial makeup of the Cleveland schools.
Hook said the "decline in white population and failure of white students to enroll is not the responsibility of the district."