Price v. Bossier Parish School Board Jurisdictional Statement

    No.

In The

Supreme Court of tfje ZHmtrb States
October Term . 1995

George Price, e t a l ,
Appellants.

B ossier Parish School B oard,
Appellee.

On Appeal from the 
United States District Court 
for the District of Columbia

JURISDICTIONAL STATEMENT

v.

Barbara R. arnwtne 
Thomas J. Henderson 
Brenda Wright 
Samuel L. Walters

Patricia A. Brannan* 
John w . Borkowski

Lawyers’ Committee for 
Civil Rights Under Law

Hogan & Hartson l .l .p. 
555 Thirteenth Street, N.W. 
Washington. D.C. 20004 
(2021 637-8686

1450 G Street, N.W.. Suite 400
Washington, D.C. 20005 
(202) 662-8322

* Counsel of Record Counsel for Appellants 
George Price, et al.



QUESTIONS PRESENTED

I. Whether evidence probative o f discriminatory 
purpose under Village o f  Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252 
(1977), may be excluded from consideration in a 
preclearance action under Section 5 o f the Voting Rights 
Act solely because that evidence also would be relevant 
to a discrimination action brought under Section 2 o f the 
Act.

II Whether evidence probative o f discriminator}'
purpose under Village o f  Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252 
(1977), may be excluded from consideration in a 
preclearance action under Section 5 solely because the 
election plan at issue is not retrogressive.

III Whether the court in a Section 5 preclearance 
action may itself assume the burden o f explaining and 
rebutting clear evidence o f discriminator}' purpose when 
the covered jurisdiction itself fails to carry that burden.

IV. Whether a covered jurisdiction meets its burden of 
proof in a Section 5 preclearance action when it 
identifies some nondiscriminatory reason for its 
redistricting plan, but then fails to rebut clear evidence 
showing other discriminatory reasons for the plan.

V. Whether the fact that a non-retrogressive voting 
change would result in a clear violation o f Section 2 
constitutes an independent basis for the denial of 
preclearance under Section 5.

i



I

i

I
I

M l

OPINION BELOW.................................................................  1

JURISDICTION.................................................................. 2

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED......................................... 2

STATEMEN I ..................................................................... 2

I INTRODUCTION..................................................  2

II. STATEMENT OF FACTS..................................... 4

III. THE PROCEEDINGS BELOW............................. 12

REASONS FOR NOTING PROBABLE
JURISDICTION..............................................................  15

I. THIS COURT SHOULD CORRECT THE 
MAJORITY’S SUBSTANTIAL 
DEPARTURE FROM THIS COURT’S 
DECISION IN ARLINGTON HEIGHTS 
AND RESOLVE THE SPLIT W1TFIIN 
THE D C. DISTRICT COURT CREATED 
BY THE MAJORITY’S HOLDING THAT 
PLAINLY PROBATIVE EVIDENCE OF 
DISCRIMINATORY PURPOSE MUST 
BE EXCLUDED FROM 
CONSIDERATION IN A SECTION 5 
ACTION IF IT ALSO WOULD BE 
RELEVANT IN A SECTION 2 ACTION

TABLE OF CONTENTS
Page

17



IV

TABLE OF CONTENTS—Continued
Page

II. THIS COURT SHOULD RESOLVE 
THE SPLIT WITHIN THE D C.
DIST RICT COURT CONCERNING
WHETHER RETROGRESSION IS
THE ONLY ADVERSE IMPACT ON
MINORITY VOTERS THAT MAY
GIVE RISE TO AN INFERENCE OF
DISCRIMINATORY PURPOSE
UNDER SECTION 5 ............................................. 21

III THIS COURT SHOULD CORRECT THE 
SUBSTANTIAL LEGAL ERROR MADE 
BY THE MAJORITY OF THE SHARPLY 
DIVIDED THREE-JUDGE PANEL IN 
SHIFTING THE BURDEN OF PROOF 
FROM THE SCHOOL BOARD TO THE 
ATTORNEY GENERAI........................................  25

IV. THIS COURT SHOULD CORRECT 
THE SUBSTANTIAL LEGAL ERROR 
MADE BY THE MAJORITY IN 
HOLDING THAT SECTION 5 
REQUIRES A COVERED 
JURISDICTION MERELY TO 
ARTICULATE SOME NON- 
DISCRJMINATORY REASON FOR
ADOPTING AN ELECTION PLAN..................... 27

V. ITUS COURT SHOULD RESOLVE 
THE QUESTION OF WHETHER A 
CLEAR VIOLATION OF SECTION 2 
CONSTITUTES AN INDEPENDENT 
BASIS FOR DENYING 
PRECLEARANCE TO A NON- 
RETROGRESSIVE VOTING
CHANGE............................................................... 29

CONCLUSION................................................................... 30
t

APPENDIX

v

CASES:

Arizona v. Reno, 887 F. Supp 318 (D.D.C. 1995), 
appeal dismissed, No 95-299 (Mar. I. 1996)....... passim

Barnett v. Daley, 32 F.3d 1196 (7th Cir 1994).............  18, 26
Beer v. United States, 425 U.S. 130 (1976)................... 20, 22
Buchanan v. City of .Jackson, 708 F.2d 1066 (6th Cir.

1983)..........................................................................  >8
Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), 

qff'd, 459 U.S. 1166 (1983)....................................... 21,23
City o f Pleasant Grove v. United States, 479 U.S. 462 

(1987).........................................................................  23,24
City o f Port Arthur v. United States, 517 F. Supp. 987 

(D.D.C. 1981), aff'd, 459 IJ.S. 159 (1982).................  23

City o f Richmond v. United States, 422 U.S. 358 
(1975).........................................................................  23

City o f Rome v. United States, 446 U.S. 156 (1980)...... 25

Georgia v. United States, 411 U.S. 526 (1973).............  25

Johnson v. Transportation Agency, 480 U.S. 616 
(1987).........................................................................  24

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), 
cert, denied, 471 U.S. 1 135 (1985)............................. 26

Miller v. Johnson, 115 S. Ct. 2475 (1995)......................passim

Miller v. WFLI Radio Inc., 687 F. 2d 136 (6th Cir.
1982)..........................................................................  26,27

N.L R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 
(1967).........................................................................  26

New Yorkv. United States, 874 F. Supp. 394 (D.D.C.
1994)............................................................................passim

Perkins v. City o f West Helena, 675 F.2d 201 (8th 
Cir ), aff 'd, 459 U.S. 801 (1982)................................. 18, 26

Rogers v. Lodge, 458 U.S. 613 (1982)............................passim

TABLE OF AUTHORITIES
Page



V I

Shaw v. Reno, 1 13 S. Ct. 2816 (1993) .........................  II
South Carolina v Katzenbach, 383 IJ S. 301 (1966) . 25
Texas Dep 7 of Community Affairs v Burdine. 450 

IJ.S. 248(1981).......... ......................................... 27
United States v Hinds County Sch. Bd., 417 F.2d 852 

(5th Cir.), opinion supplemented, 423 F.2d 1264 
(5th Cir. 1969), cert, denied, 396 IJ.S. 1032 (1970) ... 24

Village of Arlington Heights v. Metropolitan Housing 
Dev. Corp , 429 U S. 252 (1977)............................... passim

Washington v. Davis, 426 U S. 229 (1976)................... 22
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 19739. 

a ff  d on other grounds sub nom., East Carroll 
Parish Sch. Bd. v. Marshall, 424 U S. 636 (1976)..... 20

CONSTITUTIONAL PROVISIONS:
U.S. Const, amend. XIV............................................... 2,20
IJ.S. Const, amend. XV................................................. 2,20

STATUTES:
Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 ...passim

Section 5 of the Voting Rights Act, 42 U.S.C.
§ 1973c........................................................................passim

RULES AND REGULATIONS
28 C F.R. 51 55(b)(2) (1995)..................................... 30

TABLE OF AUTHORITIES—Continued
Page S u p r e m e  C ourt of tlje ^ liiitct) S ta te s .

October Term , 1995

In The

No.

George Price, e ta l .,
Appellants,

v.

B ossier Parish School Board,
Appellee.

On Appeal from the 
United States District Court 
for the District of Columbia

JURISDICTIONAL STATEMENT

OPINION BELOW

The decision o f the United States District Court for the 
District o f Columbia (“D.C. District Court”) is reported 
at 907 F. Supp. 434 (D.D.C. 1995). App. la-653.1

1 In this Jurisdictional Statement, filed on behalf of Defendant- 
Intervenors George Price, et al., citations are to the Appendix 
(“App.”) filed with the Jurisdictional Statement of Janet Reno, et 
al., on March 11, 1996.

1



1

JURISDICTION

The decision o f the three-judge panel o f the D C. 
District Court, which had jurisdiction pursuant to 42 
IJ.S.C. § 1973c, was entered on November 2, 1995. 1 he 
notice o f  appeal on behalf o f defendant-intervenors 
George Price, et al. (“Defendant-intervenors"), was filed 
on January 2, 1996. See Appendix attached hereto. On 
February 28, 1996, the Chief Justice extended the time 
in which to file a jurisdictional statement to March 18, 
1996. ITiis Court has jurisdiction over this appeal 
pursuant to 42 U.S.C. § 1973c.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

Section 1 o f the Fourteenth Amendment to the United 
States Constitution provides in pertinent part that “[n]o 
state shall . . . deny to any person within its jurisdiction 
the equal protection o f the laws." The Fifteenth 
Amendment provides that “[t]he right o f  citizens o f the 
United States to vote shall not be denied or abridged by 
the United States or by any State on account o f race, 
color, or previous condition o f servitude.” Sections 2 
and 5 o f  the Voting Rights Act, 42 U.S.C. § 1973, 1973c 
are reproduced in the Appendix. App. 165a-167a.

STATEMENT

I. INTRODUCTION

In this case, the stipulated and unrebutted evidence 
“demonstrates overwhelmingly” that the Bossier Parish 
School Board (“Bossier” or the “School Board”) adopted 
its redistricting plan for a discriminatory’ purpose. App. 
63a. Indeed, there was unchallenged evidence with 
respect to every factor indicating discriminatory purpose 
set forth by this Court in Village o f  Arlington Heights v. 
Metropolitan Housing Development Corp., 429 U.S. 252 
(1977). Therefore, the Attorney General o f  the United 
States (“Attorney General”) properly refused to 
administratively preclear Bossier’s reapportionment plait

3

under Section 5 o f the Voting Rights Act, 42 U.S.C. 
§ 1973c (“Section 5”).2 Moreover, based on her review 
of the “extensive record” Judge Gladys Kessler, in 
dissent, concluded “|n]ot only does the evidence fail to 
prove the absence o f discriminatory' purpose, it shows 
that racial purpose fueled the School Board’s decision.” 
App. 39a.

Nevertheless, the majority below, Judges Laurence 
Silberman and Charles Richey, granted preclearance. 
Through a series o f legal errors, the majority refused to 
consider much o f the stipulated evidence, developed its 
own rebuttal o f  unchallenged evidence, and applied an 
incorrect legal standard to the remaining proof o f  
discriminatory' purpose. First, the majority erroneously 
held that evidence o f discriminatory' intent must be 
ignored in a Section 5 preclearance action if  it also 
would be relevant in a discrimination case brought under 
Section 2 o f the Voting Rights Act, 42 U.S.C. § 1973 
(“Section 2”). In addition, the majority excluded other 
evidence based on its misreading o f this Court’s recent 
decision in Miller v. Johnson, 115 S. Ct. 2475 (1995), as 
effectively limiting Section 5 ’s discriminatory purpose 
inquiry to instances o f retrogression. The majority also 
improperly invented explanations for unrebutted 
evidence o f statements by School Board members that 
reveal the Board’s racial intent. Finally, the majority 
misapplied Arlington Heights by concluding that the 
presence o f  some legitimate, non-racial reason for 
Bossier’s decision was sufficient to overcome unrefuted

2 Section 5 of the Voting Rights Act bars “covered” 
jurisdictions from implementing any change in their voting 
practices until they secure approval—“preclearance”—either from 
the Attorney General or from the D C. District Court. To obtain 
preclearance, the state or locality must bear the burden of proving 
that its proposed voting change “[1] does not have the purpose and
[2] will not have [the] effect of denying or abridging the right to 
vote” on account of race. Id. (emphasis added).



4

evidence that a discriminator}' purpose also was a 
motivating factor in the decision.

This radical reworking o f the standards governing 
review o f discriminator} purpose under Section 5 
conflicts with this Court's clear precedents The 
majority’s legal errors also create conflicts among the 
three-judge panels o f the D C. District Court, which has 
exclusive jurisdiction over Section 5 actions, and pose a 
significant threat to the fair and effective enforcement of 
the Voting Rights Act. Finally, the court below also 
erred in ruling that a clear violation o f Section 2 does not 
provide an independent basis for denying Section 5 
preclearance.

II. STATEMENT OF FACTS

Unrebutted evidence o f discriminatory purpose, much 
o f  it in the form o f stipulations, App. 66a-153a 
(lfl( 1-285), addressed all o f  the factors discussed by this 
Court in Arlington Heights: (1) “[t]he impact o f  the
official action whether it ‘bears more heavily on one 
race than another;”’ (2) “|tlhe historical background o f  
the decision;” (3) “[tjhe specific sequence o f events 
leading up [toj the challenged decision [including]
. . .  [departures from the normal procedural sequence;” 
(4) “substantive departures . . .  [from] factors usually 
considered important;” and (5) “administrative history” 
and other “contemporary statements by members o f the 
decisionmaking body.” 429 U.S. at 267-68. The facts 
with respect to each o f these areas are summarized 
below.

A. The Effect o f the Plan. In 1992, the School Board 
adopted a twelve single-member-district 
reapportionment plan with twelve majority-white 
districts. Bossier Parish, Louisiana has a population that 
is 20.1% black, App. 67a (1(5), and a voting age 
population that is 17.6% black. Id. at 2a. No black 
candidate, however, has ever been elected to the 
twelve-member School Board. Id. at 67a (U 4). As the

5 I

parties stipulated below, this is because voting in Bossier 
Parish is racially polarized. Id at 122a-27a (UK 181 -96).3 
The foreseeable impact of- the Board’s adoption o f a 
redistricting plan with all majority-white districts, 
therefore, was to ensure that whenever black voters and 
white voters prefer different candidates, white voters’ 
preferences will prevail. App. 41a.

It was clearly possible, however, respecting traditional 
redistricting criteria, to draw a reapportionment plan for 
Bossier Parish that does not have all majority-white 
districts. App. 41a. The School Board stipulated that it 
was “obvious that a reasonably compact black-majority 
district could be drawn within Bossier City,” id. at 76a 
(U 36), and that the outlines o f a second such district in 
the northern part o f  the parish were “readily 
discernible.” Id. at 114a (U 148). Admittedly, by
fragmenting or “fracturing” predominantly black 
residential areas, however, the Board avoided drawing 
any majority-black districts. Id. at 111a, 112a (UK 137- 
38, 142).

B. The School Board’s History. The School Board’s 
history o f discrimination against black citizens 
demonstrates why it wanted twelve majority white 
districts; so long as black voters had no voice, the all- 
white School Board could safely ignore their concerns,

3 The adverse effects of racially polarized voting on the ability 
of black voters to elect candidates of their choice are exacerbated 
in Bossier Parish by the effects of past discrimination. App. 130a- 
36a (UK 213-32) (past history of denial of access to political 
system); Id. at 136a-38a (UK 234-43) (history of discrimination in 
education). It was undisputed below that the depressed 
socioeconomic and educational levels of black citizens of Bossier 
Parish make it hard for them to obtain necessary electoral 
information, organize, raise funds, campaign, register, and turn out 
to vote; these factors in turn cause a depressed level of political 
participation. Id. at 127a-30a (UK 197-202, 206-12).



6

and for decades, to the present day, this has been the
case.

The dark history o f voting discrimination in Bossier 
Parish was undisputed below. App. 130a-36a 
(Yfl 213-32); id. at 42a-46a. Likewise, the School Board 
admitted that it segregated its schools, actively resisted 
desegregation, and has never fully remedied its 
constitutional violation. In recent years, moreover, the 
School Board’s student and faculty assignment policies 
have made its schools more racially isolated than they 
were when it unsuccessfully applied for unitary' status in 
1979. App. 136a-38a (ffi| 231-43); id. at 45a-46a.

Black citizens have tried without success to alter these 
policies and practices. Bossier is required by federal 
court order to maintain a bi-racial committee to 
“recommend to the School Board ways to attain and 
maintain a unitary system and to improve education in 
the parish.” App. 103a (^111). The Board admitted 
that, for decades, it simply ignored this requirement 
altogether. Id. at 103a-04a 112). In 1993, the Board
established a committee, but when black members made 
substantive suggestions, the Board unilaterally 
disbanded the committee. App. 105a 116); id. at 46a.
As School Board members admitted, they did not want 
this committee getting into “policy” questions. Id at 
46a. Thus, even in the face o f a federal court mandate to 
listen to the concerns o f the black community, Bossier 
refused to do so. Therefore, the black citizens o f Bossier 
Parish are effectively cut o f! from any opportunity to 
have a voice in the operation o f their public schools. 
Adopting a redistricting plan with twelve majority-white 
districts continued this pattern o f exclusion.

C. The Sequence of Events Leading Up to 
Adoption o f the Plan. The Board similarly ignored 
requests by black leaders to participate in the 
redistricting effort, employing a process characterized by 
“public silence and private decisions.” App. 50a. The 
redistricting process began in May, 1991, when the

7

Board decided to develop its own plan rather than adopt 
the one previously accepted by the Police Jury'.4 Given 
the fact that the next School Board election was not 
scheduled until November, 1994, there was no need for 
hasty' Board action. Id. at 4a. The Board hired Gary' 
Joiner, the cartographer who had drawn the Police Jury 
plan. Id. He was hired to perform 200-250 hours of 
work, far more time than would be needed simply to 
recreate the Police Jury plan. Id. at 94a (ffl| 86-87).

On July 29, 1991, the Police Jury plan was precleared 
by the Justice Department. App. 3a. The parties 
stipulated, however, that the Police Jury had provided 
incorrect and incomplete information in its Section 5 
submission. The Police Jury and Gary' Joiner were 
“specifically aware that a contiguous black-majority 
district could be drawn both in northern Bossier Parish 
and in Bossier City.” Id. at 76a, 82a-83a, 84a 36, 52-
53, 57). However, they lied to the public, id. at 83a 
(H 54), to the only black police juror, id. at 81a (H 47), 
and to the Attorney General, id. at 87a (ffi| 65-66), by 
claiming that drawing any majority-black district was 
impossible. Despite these misrepresentations, some 
black community groups opposed the plan and 
specifically asked that their letter expressing concerns 
about it be included in the Police Jury’s Section 5 
submission. Id. at 69a, 87a H , 65-66). Joiner and 
the Police Jury did not include it. Id. Had the Police 
Jury made a complete and truthful submission, however, 
the Attorney General clearly would have denied 
preclearance.

School Board member TTomas Myrick participated in 
several private meetings with Joiner and white police 
jurors during this time. App. 5a; id. at 81a, 93a-94a

4 The Police Jury is the Parish governing body, comparable to a 
county council or commission in most states. App. 2a; id. at 67a
a  3).



8

(HU 48, 85). After these meetings, Myrick, who lives in 
an area that “would likely he included in any majority 
black district to be drawn in the northern part o f Bossier 
Parish,” id. at 81a (1J 48). recommended that the School 
Board adopt the Police Jury plan. Id at 95a (U 90). On 
September 5, 1991, however, the School Board decided 
not to adopt the Police Jury plan, largely because it 
would pit incumbents against each other. App. 47a. 
Over the course o f the next year, School Board members 
considered a number o f redistricting options. Id. Mr. 
Joiner met privately with School Board members and 
demonstrated different possibilities to them on his 
computer. Id. at 97a (U 96). These meetings were not 
open to the public nor were there any recorded minutes 
or published notices o f the meetings. Id. ; App. 47a.

While the School Board was meeting and planning in 
private, the black community was trying, unsuccessfully, 
to participate in public. Id. In March o f 1992, George 
Price, on behalf o f  a coalition o f black community 
groups, wrote the School Board asking to participate in 
its redistricting process. App. 5a; id. at 96a (1193). 
Neither the Board nor the Superintendent responded to 
this request. Id. In August o f  1992, Mr. Price sent 
another letter asking specifically to be involved in every 
aspect o f  the redistricting process. Again, the School 
Board made no response. Id. (U 94).

Frustrated by the School Board’s unresponsiveness, 
Price contacted the NAACP Redistricting Project. App. 
98a (U 98). The Project developed a partial plan for 
Price to discuss with the School Board. That illustrative 
plan consisted o f two majority-black districts. Id The 
plan did not show the other ten districts that made up the 
Parish. Id. When Price gave this information to a 
school district official, he was told that it would not even 
be considered because it only showed two districts. Id. 
(H 99). Price went back to the NAACP, and a complete 
twelve-district illustrative plan was drawn up. Id. Then, 
on September 3, 1992, when Price appeared on behalf o f

9

the black community at a Board meeting and presented a 
new plan showing all twelve districts, including ten 
majority-white and two majority-black districts, the 
Board dismissed it summarily, claiming incorrectly that 
it could not even consider any plan that split precinct 
lines. Id  at 98a-100a (HI) 100-02). Until that time, 
however, the School Board had been actively 
considering alternatives to the Police Jury plan, almost 
all o f  which would have split precincts. See App. 29a; 
id  at 72a (H 23).

At the School Board’s next meeting, on September 17, 
1992, Mr. Price again presented the NAACP’s 
illustrative plan. App. 100a- 101a (D 106). Instead o f  
discussing the plan with Mr. Joiner, or asking him to 
further analyze the possibility o f drawing black-majority 
districts without splitting precincts (the School Board’s 
purported reason for rejecting the plan, but see id. at 72a 
(11 23)), the Board responded by immediately passing a 
motion o f  intent to adopt the Police Jury plan. Id. at 48a.

On September 24, 1992, an overflow crowd attended 
the required public hearing on the redistricting plan. 
App. 7a. Fifteen people spoke against the School 
Board’s proposed plan, most o f  whom objected because 
it would dilute minority voting strength. App. 8a: id. at 
l()la  (If 108). Not a single person spoke in favor o f the 
plan. Id. At this hearing, Mr. Price also presented the 
Board with a petition signed by more than 500 Bossier 
Parish citizens, asking the Board to consider an 
alternative redistricting plan. Id. at 7a-8a.

Despite the one-sided input from Bossier citizens, and 
despite the fact that the Board was under no time 
pressure to decide the issue, the Board voted, at its very 
next meeting on October 1, 1992, to adopt the Police 
Jury plan. As with the meetings o f September 3 and 
September 17, 1992, the minutes o f  this meeting reflect 
virtually no substantive consideration o f the Police Jury 
plan.



10

Board Member Myrick later testified, however, that 
the Board adopted the plan that evening because it was 
“expedient.” App. 49a. The Police Jury plan only 
became “expedient” when the School Board was 
publicly confronted with an illustration that alternatives 
to twelve white-majority districts were possible Id 
Faced with the growing frustration of the black 
community at being excluded from educational policy 
decisions and from the electoral process, the only way 
for the School Board to ensure a plan with all majority- 
white districts was to adopt the Police Jury plan quickly, 
despite its other drawbacks. App. 49a; id at 7a-8a, 28a.

I), The Plan Adopted Compared to the B oard’s 
R edistricting Criteria. The Board, without 
explanation, adopted a plan which departs substantively 
from its earlier districting plans and ignores factors that 
it had previously considered paramount. App. 50a. The 
plan forced incumbents to run against one another. Id. at 
8a. It also created several districts that, according to its 
own cartographer, are not compact, id. at 11 la-12a  
(̂ 1 139), including Thomas Myrick’s district which 
contains almost half o f  the geographic area o f the Parish. 
Id. at 112a (H 140). These districts do not track school 
attendance boundaries. In fact, some o f them do not 
even contain a school. App. 8a; id. at 112a (̂ 1 141). 
However, they do split black communities, and all o f  
them have a white majority. Id at 110a-1 la Hfl| 135-37).

E. The Board M em bers’ Contem poraneous 
Statem ents. The School Board “left virtually no 
legislative history” o f its decision. App. 55a n i l .  
Three School Board members, however, made 
contemporaneous statements revealing the Board’s 
discriminatory purpose. App. 5a-6a n.4. School Board 
member Henry Bums told a black acquaintance that 
while he “personally favors having black representation 
on the board, other school board members oppose the 

| idea.” Id. The School Board offered no evidence 
* denying or explaining this statement. School Board

member Barry' Musgrove told a prominent black leader 
that “while he sympathized with the concerns o f the 
black community, there was nothing more he could 
do . . .  on this issue because the Board was ‘hostile’ 
toward the idea o f a black-majority district.” Id. 
Finally, School Board member Thomas Myrick, who 
lives in an area that could readily accommodate a black- 
majority district and contains two schools (both o f which 
have student enrollments that are more than 75% black), 
told black leaders that he would not “let (them] take his 
seat away from him.” App. 5a-6a n.4.

F. The Board’s Later Explanations of Its Motives.
After the fact, the School Board sought to justify' its 
actions with a flurry o f  explanations, including several 
which even the majority below found “clearly were not 
real reasons.” App. 27a n. 15. For example, the School 
Board argued that it adopted the Police Jury plan (on 
October 1, 1992) to comply with Shaw v. Reno, 113 
S. Ct. 2816 (1993) (decided June 28, 1993), even though 
Shaw was decided nine months after the Board adopted 
its plan. Id.

The School Board also reiterated its false claim that it 
could not adopt a plan without twelve majority-white 
districts because any such plan would require precinct­
splitting, which it erroneously claimed violates state law. 
App. 56a. Throughout the redistricting process, 
however, the School Board was willing to split precincts 
for the protection o f incumbents. Id. It was only after 
the black community presented its alternative plan that 
the School Board proffered the “no precinct-splitting” 
rationale. Indeed, the majority below found that when 
“the School Board began the redistricting process, it 
likely anticipated the necessity o f splitting some 
precincts.” Id. at 29a. Furthermore, it was undisputed 
that splitting precincts does not violate state law; while 
the School Board itself may not split precincts, police 
juries have the authority to establish and modify precinct



12

lines, and many do so when requested by a school board. 
Id at 69a-73a, 85a-86a m  13-25, 60-61)

Nor did the School Board voice any concent in its 
initial submission to the Attorney General about a high 
number o f precinct splits causing higher election costs.

, App. 57a. The Board never estimated the cost of 
splitting precincts before it voted to adopt the Police 
Jury plan. Id. Obviously, “cost” did not actually 
motivate the School Board’s decision at the time it was 
made. Id.

Bossier’s final proffered justification for adopting the 
Police Jury plan was that it guaranteed preclearance; that 
is, the Attorney General would approve the School 
Board’s plan because it was identical to the Police Jury 
plan which already had been precleared. App. 57a-58a. 
However, “guaranteed preclearance” was not the School 
Board’s main objective; if  the School Board’s 
paramount concern had been preclearance, it would not 
have waited until October 1, 1992— almost 14 months 
later— to adopt the Police Jury' plan. Id. If guaranteed 
preclearance was so important to the Board, it could 
have acted soon after the Police Jury plan was precleared 
by the Justice Department on July 29, 1991. Id 
Moreover, adopting a plan with one or more majority- 
black districts certainly would not have made 
preclearance less likely.

III. THE PROCEEDINGS BELOW

A. Adm inistrative Preclearance Review. While the 
School Board had acted precipitously in approving its 
redistricting plan on October 1, 1992, it was not 
submitted to the Department o f Justice for preclearance 
until January 4, 1993. App. 103a (1)110). After 
requesting additional information, the Attorney General 
interposed a timely objection to Bossier’s plan. Id. at 
154a, 106a-07a (1)1) 118-19). The School Board met in 

i closed session and decided to seek reconsideration. Id. 
at 107a (UD 120-22). The Attorney General denied this

request on December 20, 1993. Id. at 159a, 108a 
(1 125).

B. The Declaratory Judgm ent Action. On July 8, 
1994, Bossier filed this action against the Attorney 
General in D C. District Court. A group o f black voters 
in Bossier Parish, George Price, et al., intervened as 
defendants in support o f  the Attorney General. The 
Defendant-Intervenors suggested below that the three- 
judge court decide this case based solely on the issue o f  
discriminatory purpose. The Attorney General agreed 
that the evidence clearly established discriminatory 
intent, but also argued that much o f  the same evidence 
also established a clear violation o f Section 2 and that 
such a violation constitutes independent grounds for 
denying preclearance. Rather than possibly face the 
additional costs o f defending a Section 2 lawsuit in 
Louisiana, Bossier itself also stipulated that “Section 5 
preclearance . . . must be denied if  the plan violates 
Section 2.” App. 1 la n.7; id. at 144a (]) 257). The court 
below, however, rejected this invitation from the parties 
and ruled that Section 2 analysis may not be 
incorporated into a Section 5 review. Id. at 1 la-24a.

The majority went much further, however, ruling that 
no “evidence o f  a section 2 violation” may be used to 
establish “discriminatory purpose under section 5.” 
App. 23a (emphasis added). Ignoring the fact that much 
o f the same evidence used in establishing a Section 2 
violation is independently probative o f discriminatory 
intent under Arlington Heights, and other precedents o f  
this Court, the majority flatly held that it would “not 
permit section 2 evidence to prove discriminator}7 
purpose.” Id. at 24a (emphasis added).

The majority then held that this Court’s decision in 
Miller also disallowed it from considering the adverse 
effect o f  the plan on black voters as evidence o f  
discriminatory purpose. The majority held that “the 
adoption o f  one non-retrogressive plan [that contains no 
majority-black districts] father than another non-

13



14

retrogressive plan that contains |some] majority-black 
districts cannot by itself give rise to the inference o f  
discriminatory' purpose.” App. 35a. As a result, the 
majority excluded from its consideration much of the 
evidence of discriminatory intent in this case.

Because the majority excluded this evidence, it saw no 
problem 1 in Bossier’s failure to rebut it, effectively 
relieving the School Board o f its burden o f proof. The 
majority likewise shifted the burden o f proof away from 
Bossier to the Attorney General when it developed its 
own theories about the meaning o f contemporaneous 
statements by Board members. Apparently based on its 
concerns about the “federalism costs” o f Congress’ 
decision to allocate the burden o f proof in Section 5 
actions to covered jurisdictions, App. 21a n.10, the 
majority invented explanations for the discriminatory 
statements o f  School Board members, even where 
Bossier had offered no explanation. See id. at 30a-32a.

Finally, the majority also erred as a matter o f law by 
concluding that since it found that the School Board had 
“at least two . . . ‘legitimate, nondiscriminatory 
m otives,”’ Bossier had met its burden o f proof. App. 
27a (quoting New York v. United States, 874 F. Supp. 
394, 400 (D.D.C. 1994)). The majority thus ignored the 
School Board’s burden o f producing some evidence that 
the proposed changes were not also motivated in part by 
a discriminatory purpose.

Judge Kessler, alone among the panel, considered the 
entire “extensive record” below and applied the 
Arlington Heights standard. She concluded that Bossier 
had failed to carry its burden o f proving that it acted 
solely with “legitimate, nondiscriminatory motives.” 
App. 37a (quoting New York, 874 F. Supp. at 400). 
Indeed, Judge Kessler, looking at all the evidence, found 
that it “demonstrates overwhelmingly” that “racial 
purpose fueled the School Board’s decision.” Id. at 63a, 

J 39a.

REASONS FOR NOTING PROBABLE JURISDICTION

15

This Court should note probable jurisdiction because 
the majority’s legal errors in excluding and improperly 
explaining away plainly probative evidence o f  
discriminatory intent depart from this Court's clear 
precedents. Likewise, the majority departed from this 
Court’s precedents in ruling that the presence o f some 
legitimate motive was sufficient to meet Bossier’s 
burden o f proving the absence o f discriminatory' purpose 
under Section 5. Not surprisingly, these dramatic 
departures from precedent also have created splits 
among the panels o f the D.C. District Court. This Court 
should resolve these splits. Most importantly, the 
majority’s radical reworking o f Section 5 discriminatory 
purpose analysis poses a substantial threat to the fair and 
effective enforcement o f the Voting Rights Act.

The majority dramatically departed from this Court’s 
precedents and created a split among panels o f  the D.C. 
District Court by indicating that it was compelled to 
ignore much o f  the probative evidence o f discriminatory 
intent under Arlington Heights and Rogers v. Lodge, 458 
U.S. 613 (1982), because it rejected the argument that 
Section 2 should be incorporated into Section 5. As the 
unanimous three-judge panel in Arizona v. Reno, 887 F. 
Supp. 318 (D.D.C. 1995), appeal dismissed, No. 95-299 
(Mar. 1, 1996), held, however, whether or not Section 2 
is incorporated into Section 5, the standards set forth by 
this Court in Arlington Heights should guide the lower 
courts’ analysis o f  discriminatory intent under Section 5. 
The majority’s improper standard, which excludes 
relevant evidence o f intent, would insulate all but the 
most brazen racial discrimination from meaningful 
Section 5 review.

The majority also misread this Court’s decision in 
Miller to limit the discriminatory purpose inquiry under 
Section 5 to the question o f  whether there is an intent to 
retrogress. The majority held that the impact o f  any 
non-retrogressive election change cannot give rise to an



16

inference o f discriminator}' purpose. App. 35a. Both the 
decisions o f this Court and other decisions o f the D C. 
District Court, however, make clear that the Section 5 
discriminator}' purpose inquiry should not be so limited. 
This case, moreover, demonstrates the fundamental 
importance o f this issue; the majority opinion would 
effectively insulate from Section 5 review any 
discriminator}' redistricting plan or other voting change 
in every jurisdiction with no minority representatives 
and in ever}' jurisdiction in which minority voting 
strength is already unlawfully diluted.

By refusing to consider both the so-called “Section 2 
evidence” and the adverse, albeit non-retrogressive, 
impact o f  Bossier’s plan on black voters, the majority 
also effectively shifted the burden o f proof on the issue 
o f  intent to the Attorney General, although Congress has 
placed it squarely on the covered jurisdiction. By 
erroneously excluding such evidence o f discriminatory 
intent (most o f  it stipulated), the majority relieved 
Bossier o f  the burden o f  rebutting this evidence, a 
burden the School Board failed even to attempt to meet 
at trial. The majority, moreover, provided its own 
“nondiscriminatory” explanations for inculpatory 
statements by School Board members, when in fact 
Bossier had offered no evidence explaining these 
statements at all. These errors improperly shift the 
burden o f proof on the issue o f discriminator}' purpose 
and seriously undermine Section 5.

The majority also erroneously ruled that Bossier need 
only establish at least some non-discriminatory 
motivations for its decision in order to carry its burden 
o f proof. The proper standard is not, however, whether 
the Board acted only with a discriminatory purpose, but 
whether, as this Court explained in Arlington Heights, 
such intent was “a motivating factor” in the decision. 
429 U.S. at 265-66 (emphasis added). This Court should 

j correct this second fundamental departure from 
I

17

Arlington Heights, because the majority’s standard 
would gravely undermine Section 5.

Finally, the majority held that a clear violation of 
Section 2 does not constitute an independent basis for 
the denial o f  Section 5 preclearance. This misreading of  
Section 5 would also seriously damage fair and effective 
enforcement o f the Voting Rights Act.

I. THIS COURT SHOULD CORRECT THE 
MAJORITY’S SUBSTANTIAL DEPARTURE 
FROM THIS COURT’S DECISION IN 
ARLINGTON HEIGHTS AND RESOLVE THE 
SPLIT WITHIN THE D.C. DISTRICT COURT 
CREATED BY THE MAJORITY’S HOLDING 
THAT PLAINLY PROBATIVE EVIDENCE OF 
DISCRIMINATORY PURPOSE MUST BE 
EXCLUDED FROM CONSIDERATION IN A 
SECTION 5 ACTION IF IT ALSO WOULD BE 
RELEVANT IN A SECTION 2 ACTION.

The majority erroneously held that any evidence also 
relevant to a Section 2 claim could not be used to prove 
discriminatory purpose under Section 5. App. 24a. This 
unprecedented ruling departs from the controlling 
decisions o f  this Court, creates a conflict among panels 
o f the only court with original jurisdiction over Section 5 
actions, and would dramatically restrict the scope o f  
Section 5 review.

The proper standard for determining the existence o f  
racially discriminatory purpose in a Section 5 action, as 
the dissent below recognized, is that set forth in 
Arlington Heights, file majority below, however, made 
no mention o f Arlington Heights. App. 39a-40a n.2. In 
Arlington Heights, this Court carefully guided the 
federal courts on the types o f  factors to be considered in 
determining whether there is discriminatory intent. 429 
U.S. at 266-68; see supra pages 4-5. These factors are 
not exhaustive, however. Id  at 268. Other relevant 
factors have been discussed in cases such as Rogers v. 
Lodge, 458 U.S. 613 (1982). Indeed, courts must look to



18

“the totality o f the relevant facts" to determine whether 
the challenged system was created or maintained with an 
intent to discriminate. Id. at 618.5 The majority's 
exclusion o f probative evidence o f discriminator}' 
purpose is irreconcilable with the “sensitive inquiry'” 
into the “totality' o f  the relevant facts” that this Court 
requires. Arlington Heights, 429 LJ.S. at 266; Rogers, 
458 U.S. qt 618.

The record here includes evidence o f discriminatory 
intent in every area discussed in Arlington Heights and 
Rogers. Under the rubric o f  “Section 2 evidence,” 
however, the majority disregarded virtually all o f  this 
evidence. Instead, the majority briefly discussed only 
two types o f  evidence, the “sequence o f events leading 
to the school board’s adoption o f the police jury plan” 
and the “alleged statements o f three School Board 
members.” App. 33a, 31a.6 The majority refused even

6 See also Barnett v. Daley, 32 F.3d 1196, 1203 (7th Cir. 1994) 
(reversing dismissal of complaint alleging Fourteenth Amendment 
violation through adoption of redistricting plan which unduly 
limited number of majority-black election districts); Buchanan v. 
City o f Jackson, 708 F.2d 1066 (6th Cir. 1983) (summary 
judgment on intent issue unwarranted in light of circumstantial 
evidence of discrimination); Perkins v. City of IVest Helena, 675 
F.2d 201 (8th Cir.) (reversal of finding of no discriminatory intent 
based on failure to consider all of relevant evidence), affd, 459 
U.S. 801 (1982).

6 The majority’s legal error not only led it to ignore much of the 
relevant evidence completely, it also infected its factual findings 
concerning the balance of the evidence Only by ignoring the 
plan’s actual effects on black citizens, for example, was the 
majority able to find that the School Board acted to avoid 
“agitation within the black community” (that is, black 
participation in a public hearing), compare App. 28a with id at 
100a-02a 106, 108), and “ominous clouds” over the
redistricting (that is, negative public input from black voters), id., 
and still conclude that the sequence of events it recounts is not 
even “probative” of discriminatory purpose. App. 33a-34a. As 

j the dissent points out, “the majority’s unduly charitable

19

to consider the rest ol the evidence that demonstrates 
overwhelmingly” the Board's discriminatory purpose. 
App. 63a.7 The majority here used the term “Section 2” 
evidence to categorize and disregard the voluminous and 
uncontroverted evidence o f historical discrimination, see 
e g ,  id. at 115a-40a 153-248). the School Board's
recent non-responsiveness to the black community, even 
in direct contravention o f a federal court order, see id. at 
103a-06a flfl| 111-17), and the adverse effect o f  the 
redistricting plan on black voters. See id. at 23a-25a.

This Court should note probable jurisdiction to correct 
this error and to reaffirm its prior holdings that in the 
Section 5 context “[determining whether invidious 
discriminator}' purpose was a motivating factor demands 
a sensitive inquiry into such circumstantial and direct 
evidence o f intent as may be available.” Arlington 
Heights, 429 U.S. at 266. As the dissent points out, 
excluding all so-called “Section 2 evidence,” including 
evidence o f historical discrimination and the adverse 
effect o f  the plan on black voters, “contravenes [this] 
Court’s explicit direction in Arlington Heights.” App. 
42a-43a n.4.

This Court, moreover, only recently confirmed in 
Miller, that a “new apportionment. . . [that] so

characterization” of these events as “not . laudable” ignores the
fact that “School Board Members did more than simply retreat 
from political debate; in the guise of ‘expediency’, they excluded 
black citizens from the only process that would allow that 
community to elect a candidate of its choice.” Id. at 58a n. 12.

7 The majority also apparently refused to consider evidence of 
“history and context” in evaluating discriminatory intent because 
this “history and context” is in part the reason the School Board 
“is subject to section 5 at all” and evaluating this “history and 
context” in more detail than Congress did in enacting the Voting 
Rights Act would be “double counting.” App. 24a n.12. Ibis 
ruling also is inconsistent with this Court s previous Section 5 
discriminatory purpose decisions.



20

discriminates on the basis o f race or color as to violate 
the Constitution,” should be denied preclearance under 
the purpose inquiry o f Section 5. 115 S Ct at 2492
(quoting Beer v. United States, 425 U S. 130, 141 
(1976)). A Section 5 discriminatory' purpose case,

1 therefore, requires an inquiry into whether there is 
unconstitutional discrimination. To determine whether a 
reapportionment plan is unconstitutional, according to 
this Court, requires analysis o f the type of evidence 
discussed in Arlington Heights and Rogers. In Rogers, 
this Court explicitly considered the factors previously set 
forth in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 
1973), aff'd on other grounds sub nom., East Carroll 
Parish Sch. Bd. v. Marshall, 424 U.S. 636 (1976), as 
probative, but not determinative, o f  discriminatory 
intent. 458 U.S. at 619-21. These same factors guide a 
Section 2 court’s inquiry into w hether the “totality o f  the 
circumstances” indicates unreasonable minority vote 
dilution, but this did not prohibit this Court from relying 
on them as evidence o f unconstitutional discrimination 
as well. It is illogical and contrary to this Court’s 
decisions to suggest, as the majority does, that evidence 
probative o f  a Section 2 violation may not also be 
probative o f intentional vote dilution under the 
Fourteenth and Fifteenth Amendments.

As the dissent below points out, the majority’s 
decision also conflicts with recent decisions by other 
panels o f  the D.C. District Court. App. 42a-43a n.4. 
Most recently, the unanimous panel in Arizona explained 
that nothing in the statute or the case law leads to the 
majority’s conclusion below: “Although the inquiry
required under the purpose prong o f section 5 extends in 
areas that would also be relevant in a section 2 
proceeding, this is not equivalent. . .  to holding that the 
[Attorney General] could prevent clearance merely by 
establishing a section 2 violation.” 887 F. Supp. at 323. 
Such evidence, “in accordance with Arlington Heights, 
[would] be just one factor among many that [the] court 
would have to consider, together with other evidence in

21

the record, in determining whether these changes were 
motivated by a discriminatory' purpose.” Id. at 324 
(citing Busbee v. Smith, 549 F. Supp. 494,, 516- 
D.D.C. 1982), a ffd , 459 U.S. 1166 (1983)). I he 

unanimous panel in New )ork also apparently agreed 
with the Arizona panel, and not with the majority below  
on this issue: “[Discriminatory intent may be inferred 
from circumstantial evidence, including ‘[evidence of 
historical discrimination.”’ 874 F Supp. at 401 (quoting 
Busbee, 549 F. Supp. at 517). This Court alone can
resolve this split.

Finally, by refusing to engage in the type o f inquiry 
into discriminatory purpose required by Rogers and 
Arlington Heights, the majority eviscerates the Purpose 
prong o f  Section 5. If the Attorney General and the D .C  
District Court cannot look at the context and 
consequences o f voting changes, the majority’s decision 
makes clear that only the most brazen racial 
discrimination, such as that admitted in official minutes, 
will be prohibited by Section 5. In the 1990 s, however, 
even government bodies bent on discrimination, like the 
School Board here, know enough to say nothing about 
their intent on the record. See App. 55a n. 11 I he effect 
o f the majority’s truncated analysis, therefore, would be 
to write the discriminatory purpose prong out ot 
Section 5.

II THIS COURT SHOULD RESOLVE THE SPLIT 
WITHIN THE D.C. DISTRICT COURT 
CONCERNING WHETHER RETROGRESSION 
IS THE ONLY ADVERSE IMPACT ON 
MINORITY VOTERS THAT MAY GIVE RISE 
TO AN INFERENCE OF DISCRIMINATORY 
PURPOSE UNDER SECTION 5.

The majority also errs in expressly concluding that, in 
the context o f  a Section 5 discriminatory purpose 
inquiry, vote dilution does not count unless it is 
retrogressive. The parties agreed that Bossier s plan was 
not retrogressive and, therefore, did not violate the



“effect” prong o f Section 5. Nevertheless, the impact of 
the plan on minority voters is unquestionably an 
“important starting point” in analyzing discriminatory 
purpose. Arlington Heights, 429 U.S. at 266 (quoting 
Washington v. Davis, 426 U.S. 229, 242 (1976)). As an 
alternative basis for refusing to consider the impact o f  
the Board s action on black voters as evidence of  
discriminator}' purpose, however, the majority' 
incorrectly indicated that the “adoption o f one non- 
retrogressive plan [with no majority-black districts] 
rather than another” plan with one or more cannot by 
itself give rise to an inference o f racial intent. App. 35a, 
25a n .13.

In so doing, the majority mistakenly equates this case, 
in which the School Board has successfully prevented 
the election o f a single black member for its entire 
history', with Miller, in which the Attorney General had 
refused to preclear an admittedly ameliorative plan—  
re., a plan that would have increased the number o f  
majority-black districts. App. 35a. The effect o f  
preventing any black candidates from being elected, 
however, clearly may “by itself” support an inference o f  
discriminatory intent. Such evidence must be weighed 
with the other factors described in Arlington Heights.

The majority’s decision below is in clear conflict with 
Miller. While this Court in Miller does quote Beer, 425 
U.S. at 141, for the proposition that “the purpose o f § 5 
always has been to insure that no voting-procedure 
changes would be made that would lead to a 
retrogression in the position o f racial minorities with 
respect to their effective exercise o f the electoral 
franchise,” 115 S. Ct. at 2493, the Court’s decision in 
Beer addressed only the meaning of “discriminatory 
effect” under Section 5. In Miller itself, this Court 
reaffirmed that purposeful racial discrimination remains 
an independent basis for a Section 5 objection. The 

llCourt stated that even an “ameliorative” plan could 
! violate Section 5 i f  “the new apportionment itself so

23

discriminates on the basis o f race or color as to violate 
the Constitution.” Id. at 2492 (citations omitted). If an 
ameliorative plan can violate Section 5, clearly a plan 
that perpetuates exclusive white control o f the electoral 
process can as well. In Miller, this Court also expressly 
acknowledged its previous decisions, see eg.,  City o f  
Pleasant Grove v. United States, 479 U.S. 462, 469 
(1987), which recognize discriminatory purpose as a 
distinct basis for the denial o f  preclearance under 
Section 5. See Busbee, 549 F. Supp. at 516-17; City o f  
Port Arthur v. United States, 517 F. Supp. 987 (D D C. 
1981), a f f  d, 459 U.S. 159 (1982).

The majority’s ruling not only misapprehends Miller, 
but also is inconsistent with these other decisions. It is 
well-settled that in analyzing discriminatory' purpose 
under Section 5, the adverse impact on minority voting 
rights may be considered even when that impact is not 
retrogressive. Busbee, 549 F. Supp. at 516 (finding 
discriminatory purpose behind Georgia’s refusal to 
create its first majority black congressional district, 
despite finding that the adopted plan was not 
retrogressive). Indeed, this Court has repeatedly 
conducted or approved a complete inquiry into the 
presence o f discriminatory purpose in cases where there 
was no retrogression. Pleasant Grove, 479 U.S. at 470- 
71 n .l l ;  City o f Richmond v. United States, 422 U.S. 
358, 378-79 (1975); Port Arthur, 517 F. Supp. at 1019.

Other more recent panels o f the D C. District Court 
have followed these precedents and split with the 
majority on this issue. The unanimous panel in New 
York found that “a stark pattern o f racially 
discriminatory [though non-retrogressive] effects” could 
even be “determinative” in a Section 5 purpose inquiry'. 
874 F. Supp. at 399. The three-judge panel in Arizona 
agreed that non-retrogressive discriminatory effects can 
give rise to an inference o f discriminatory purpose, but 
disagreed with the New York court that such an impact 
could only be determinative in a “stark” or “extreme”



24

case. 887 I;. Supp. at 322. As the Arizona court 
correctly noted, “fajdoption o f such a rule would be 
entirely inconsistent with Arlington Heights and would 
seriously weaken section 5." Id. The majority’s rule 
here would have an even worse effect on Section 5.

Indeed, this case starkly demonstrates why the 
majority’s singular misreading o f Miller, as effectively 
limiting Section 5's purpose inquiry to instances o f  
retrogression, makes no sense. Bossier has never had a 
black School Board member elected. Retrogression here 
is impossible. Minority voting strength cannot be 
diluted any more effectively than it already is. The 
majority’s legal error, in refusing to consider the effect 
o f  the plan on black voters, transforms the Board’s 
“extraordinary success in resisting integration . . . [into] 
a shield for further resistance. Nothing could be further 
from the purposes o f the Voting Rights Act.” Pleasant 
Grove, 479 U.S. at 472. What Justice O ’Connor has 
termed “the inexorable zero,” still has an undeniable 
resonance as a bellwether o f unconstitutional 
discrimination, see Johnson v. Transportation Agency, 
480 U.S. 616, 657 (1987) (O ’Connor, J., concurring in 
the judgment). In the context o f voting rights, this Court 
has long recognized that “[bjecause it is sensible to 
expect that at least some blacks would have been elected 
[to the Board], the fact that none have ever been elected 
is important evidence o f purposeful exclusion.” Rogers, 
458 U.S. at 623-24. Indeed, “nothing is as emphatic as 
zero.” United States v. Hinds County Sch B d , 417 F 2d 
852, 858 (5th Cir.), opinion supplemented, 423 F.2d 
1264 (5th Cir. 1969), cert denied, 396 U.S. 1032(1970). 
A situation o f exclusive white control cannot be ignored 
as evidence o f  racial intent because it technically is not 
“retrogressive.”

Moreover, Bossier is not alone; it is crucial for this 
Court to correct the error below and to resolve the split 

< within the D.C. District Court on this issue, because 
there are hundreds o f  governmental bodies in covered

25

jurisdictions which, like the School Board, have no black 
elected members. Countless others may currently dilute 
minority voting strength, and the majority’s opinion 
would effectively insulate intentional discrimination in 
these jurisdictions from Section 5 scrutiny as well.

III.THIS COURT SHOULD CORRECT THE
SUBSTANTIAL LEGAL ERROR MADE BY THE 
MAJORITY OF THE SHARPLY DIVIDED 
THREE-JUDGE PANEL IN SHIFTING THE 
BURDEN OF PROOF FROM THE SCHOOL 
BOARD TO THE ATTORNEY GENERAL.

Under Section 5, the burden o f proving that the 
adopted plan does not have a discriminatory purpose 
rests squarely with the School Board. 42 U.S.C. 
§ 1973c; South Carolina v. Katzenbach, 383 U.S. 301, 
335 (1966); City o f Rome v. United States, 446 U.S. 156, 
183 n.18 (1980); Georgia v. United States, 411 U.S. 
526, 538 (1973). Here, however, the majority relieved 
Bossier o f  its burden o f  proof through two different 
types o f  legal errors. First, as discussed above, the 
majority improperly excluded from consideration much 
o f  the “extensive record” o f  discriminator}' purpose, 
App. 37a, relieving the School Board o f the burden of 
rebutting this evidence. Second, with respect to the 
“direct” evidence o f racial intent that it did consider, the 
majority improperly invented explanations not offered 
by Bossier.

By inventing its own non-discriminatory 
interpretations o f inculpatory statements by Board 
members in the absence o f  any evidence from Bossier, 
the majority improperly shifted the burden o f proof to 
the Attorney General. The Attorney General and the 
Defendant-Intervenors offered evidence o f statements by 
Board Members directly indicating that Board members 
were “hostile” to the idea o f  black representation on the 
Board. The School Board failed to offer any evidence 
explaining or rebutting two o f these three statements. 
For example, School Board member Henry Bums said



26

that Bossier was “hostile to black representation on the 
School Board." App. 31a. Bossier offered no evidence 
explaining this statement. Indeed, the majority 
acknowledges that the School Board did not even “cross- 
examine . . . on this point." Id. Nevertheless, the 
majority concluded on its own that Bums did not mean 
that the Board was hostile to “black representation" but 
that it merely objected to “drawing o f majority-black 
districts in order to ensure black representation on the 
Board.” Id. L ikewise, with respect to Thomas Myrick’s 
statement to black leaders that he would not let “them” 
take his seat, the majority, based on no record evidence, 
attributes this to a “strong desire not to have his district 
so changed that his constituency is obliterated ” Id at 
32a.8

Explaining away unrebutted evidence, however, is 
incorrect as a matter o f  law. T he majority misconstrues 
“the function o f judicial review when i t . . . speculate^] 
upon what might have" been meant by these statements. 
N.L.R B  v. Great Dane Trailers, Inc., 388 IJ.S. 26, 34- 
35 (1967) (emphasis added). “In light o f the courts’ 
customary reliance on a litigant to select the 
interpretation o f the facts most favorable to his own 
case, this is a singular result indeed.” Miller v. IVFLI 
Radio Inc., 687 F. 2d 136, 138 (6th Cir. 1982) (vacating

Of course, the desire not to have his constituency changed can 
itself be discriminatory, where as here, racially polarized voting 
makes a predominantly white constituency valuable to a white 
incumbent. See Perkins, 675 F.2d at 214 (similar statement by 
white public official about difficulty of reelection in black- 
majority district recognized as “direct evidence of discriminatory 
intent ). See also Barnett, 32 F.3d at 1199 (if “in order to protect 
incumbents . . .  the redistricting authority' deliberately adopted 
devices for limiting black representation (. . . because white 
incumbents were thought particularly vulnerable to challenge . . .), 
they would be engaged in deliberate racial discrimination”) 
(Posner, J , citing Ketchum v. Byrne, 740 F.2d 1398, 1408 (7th Cir. 
1984), cert, denied, 471 U.S. 1135 (1985)).

27

and remanding Title Vll action where trier o f fact 
invented non-discriminator)’ rationale for defendant’s 
conduct). By inventing non-discriminator)'
interpretations o f Board members’ statements, the 
majority, like the lower court in IVFLI Radio, deprived 
the Attorney General and the Defendant-Intervenors o f a 
“fair opportunity” to prove discrimination and 
misapplied the applicable burden o f proof. Id. at 139 
(citing Texas Dep t o f  Community Affairs v. Burdine, 
450 U.S. 248, 255-56 (1981)).

The majority made clear the source o f its discomfort 
with the burden o f proof established by Section 5. The 
majority focused on the “federalism costs” o f Section 5 
and the “anomaly” o f “placing a burden o f proving non­
discrimination on the plaintiff.” App. 23a, 25a. As the 
dissent below points out, however, “Congress decides 
how to write the country’s statutes, and Congress clearly 
believed that the states’ open defiance o f the Equal 
Protection Clause - what [this] Court called an ‘insidious 
and pervasive ev il’ - was serious enough to warrant the 
‘federalism costs’ o f  the Voting Rights Act.” App. 38a- 
39a n.l (citations omitted). The majority was not free to 
recalculate those costs and implicitly rewrite Section 5.

IV. THIS COURT SHOULD CORRECT THE 
SUBSTANTIAL LEGAL ERROR MADE BY 
THE MAJORITY IN HOLDING THAT 
SECTION 5 REQUIRES A COVERED 
JURISDICTION MERELY TO ARTICULATE 
SOME NON-DISCR1MINATORY REASON FOR 
ADOPTING AN ELECTION PLAN.

While the majority found that a number o f the School 
Board’s purported reasons for adopting its election plan 
were pretextual, App. 27a n .l5, it concluded that “at 
least two o f [its alleged reasons] are ‘legitimate, 
nondiscriminatory motives.’” Id. at 27a (quoting New 
York, 874 F. Supp. at 400). The presence o f  some 
legitimate reason for an action, however, is legally 
insufficient to establish that it was not unconstitutional



28

under Arlington Heights. Moreover, the majority’s 
decision applies a lower standard to Bossier than did the 
D C. District Court panel in New York, creating yet 
another split in the courts below.

The majority acknowledges that the Board lied about 
several o f  its alleged reasons for adopting the plan, App. 
27a n. 15, but nevertheless credits two: “guaranteed
preclearance” and “easy implementation.” The dissent 
effectively exposes those rationales as pretextual. Id. at 
56a-59a.9 But even accepting these alleged motivations 
as true, they neither directly refute nor outweigh the 
voluminous evidence in this record that race was “a 
motivating factor” in the Board’s decision. Arlington 
Heights, 429 U.S. at 265-66.

Arlington Heights left no doubt that proving 
discriminatory intent does not require proof “that the

9 The majority also acknowledges that if the School Board knew 
that the Police Jury' plan was approved only by virtue of 
misrepresentations to the Attorney General, the so-called 
“guaranteed preclearance” rationale would itself demonstrate 
discriminatory intent. App. 28a-29a. The majority indicated, 
however, that it knew “of no evidence suggesting the School 
Board had any knowledge that the Police Jury plan had been 
precleared illegitimately.” Id. The parties stipulated, however, 
that School Board member Thomas Myrick met several times with 
police jurors and their cartographer during the police jury' 
redistricting process. Id. at 5a, 81a, 85a-86a, 93a-94a, 95a 48,
61, 85, 91). The undisputed record is clear that Mr Joiner and (he 
Police Jury misrepresented the facts concerning its redistricting to 
the Attorney General. Id at 68a-69a, 76a, 80a-81a, 82a-83a, 84a, 
87a 11, 36, 47, 52-53, 57, 65-66). Myrick, moreover, despite
the Board’s stipulations about his meetings with Joiner and the 
Police Jurors, App. 81a, 93a-94a 48, 85); id. at 5a (and Joiner’s
live testimony about “probably half a dozen” such meetings, Tr. 
139-42 (April 10, 1995)), felt concerned enough about their 
implications to deny on the witness stand that any of them took 
place. Tr. 78-79, 127-28 (April 10, 1995). The majority does not 

 ̂ even attempt to reconcile these contradictions.

29

challenged action rested solely on racially discriminatory 
purposes.” Id at 265. This Court recognized that 
“rarely” does a government body act “motivated solely 
by a single concern.” Id. T herefore, the test must be 
whether a discriminatory' purpose “has been a motivating 
factor in the decision.” Id. at 265-66 (emphasis added). 
The majority, therefore, erred in assuming that if  a 
legitimate rationale for Bossier’s action, or a 
nondiscriminatory interpretation o f School Board 
members’ statements, were not disproved, Bossier was 
entitled to preclearance. This Court should correct this 
serious legal error.

The majority’s decision also conflicts with the recent 
D C. District Court ruling on this issue in New York. In 
articulating the burden o f proof under Section 5, the New 
York court plainly stated that covered jurisdictions must 
come forward not only with “evidence o f legitimate, 
nondiscriminatory motives” but with evidence “that the 
proposed changes were not [also] motivated by a 
discriminatory purpose.” 874 F. Supp. at 400. This 
Court should reaffirm the Arlington Heights standard 
and resolve this split among the panels o f  the D C. 
District Court.

V. THIS COURT SHOULD RESOLVE THE 
QUESTION OF WHETHER A CLEAR 
VIOLATION OF SECTION 2 CONSTITUTES 
AN INDEPENDENT BASIS FOR DENYING 
PRECLEARANCE TO A NON- 
RETROGRESSIVE VOTING CHANGE.

The Attorney General has adopted a regulation that 
states:

In those instances in which the Attorney General 
concludes that, as proposed, the submitted change is 
free o f  discriminatory purpose and retrogressive 
effect, but also concludes that a bar to 
implementation o f the change is necessary to prevent 
a clear violation o f amended section 2, the Attorney 
General shall withhold section 5 preclearance.



30

28 C.F.R. 51.55(b)(2) (1995). I he court below rejected 
the interpretation o f Section 5 implicit in this regulation. 
Defendant-Intervenors, however concur that the 
Attorney General has responsibility under Section 5 to 
object to a voting change that constitutes a clear 
violation o f Section 2. See Jurisdictional Statement o f  
Janet Reno, et al., at 23-27 (filed Mar. 11, 1996).

This Court should correct this substantial legal error. 
However, it may not prove necessary to reach this issue 
in this appeal because the evidence below, when fully 
considered, “demonstrates overwhelmingly” that 
Bossier’s action “was a thinly veiled effort to deny black 
voters a meaningful opportunity for representation on 
the School Board.” App. 63a, 64a.

CONCLUSION

The Court should note probable jurisdiction.

Barbara R. Arnwine 
Thomas J. Henderson 
Brenda Wright 
Samuel L. Walters

Lawyer’s Committee for 
Civil Rights Under Law 
1450 G Street, N.W., Suite 400 
Washington, D.C. 20005 
(202)662-8322

* Counsel of Record

Respectfully submitted,

Patricia A. Brannan*
John W. Borkowski

Hogan & Hartson l .l .p. 
555 Thirteenth Street, N.W 
Washington, D C. 20004 
(202) 637-8686

Counsel for Appellants 
George Price et al

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APPENDIX

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

BOSSIER PARISH )
SCHOOL BOARD, )

Plaintiff, )
)

v. )
)

JANET RENO, )
Defendant, )

)
GEORGE PRICE, et al, )

)
Defendant Intervenors. ) 

_________________________ )

Civil Action No. 94-01495 
(CRR) (LHS) (GK)

DEFENDANT-INTERVENORS’ NOTICE 
OF APPEAL TO THE SUPREME COURT 

OF THE UNITED STATES

Notice is hereby given that all of the defendant-intervenors 
in the above named case, George Price, Leroy Harry, Thelma 
Harry, Clifford Doss, Jerry Hawkins, Odis Easter, Barbara 
Stevens King, Hurie Jones, Grover Cleveland Jaggers, Floyd 
Marshall, and Rubie Fouler, hereby appeal to the United 
States Supreme Court from the final judgment of the three- 
judge district court, entered on November 2, 1995, granting 
preclearance, pursuant to Section 5 of the Voting Rights Act 
o f 1965, 42 U.S.C. § 1973c, to the plaintiff.

la



2a

This appeal is taken pursuant to 42 U S C. § 1973c.

Respectfully submitted,

SAMUEL L. WALTERS
D.C. Bar Number 405654
Lawyers’ Committee for Civil Rights Under Law
1450 G St., N.W.
Suite 400
Washington, D C. 20005 
(202) 662-8322

PATRICIA A. BRANNAN 
D.C. Bar Number 332544 
Hogan & Hartson L.L.P. 
Columbia Square 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004-1109 
(202)637-8686

JOHN W. BORKOWSKI 
Hogan & Hartson 
546 Carondelet Street 
Suite 207
New Orleans, LA 70130-3588 
(504)593-0824

ATTORNEYS FOR DEFENDANT INTERVENORS

January 2, 1996 

1

(Certificate of Service Omitted in Printing]