Reno v Bossier Parish School Board Reply Brief Appellants

    Nos. 95-1455 & 95-1508

In  The

Supreme Court of tfje United states
October  Term, 1996

Janet  Ren o , Attorney General of the United  States,
Appellant, and

George Price, et al.,
Appellants,

v.
B o ssier  Parish  School B oard ,

Appellee.

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

REPLY BRIEF OF APPELLANTS 
GEORGE PRICE, ET AL.

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

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

* Counsel of Record

Walter A. Smith, jr. 
Patricia A. Brannan*
John W. Borkowsh

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

Counsel fo r  Appellants 
George Price, et al.



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES

INTRODUCTION..................................................................  1

ARGUMENT.......................................................................... 3

l. THE PURPOSE PRONG OF 
SECTION 5 IS DETERMINATIVE IN
THIS CASE .............................................................. 3

n . BOSSIER HAS CONCEDED THE 
LEGAL STANDARDS THAT 
GOVERN THE SECTION 5 PURPOSE 
PRONG......................................................................  4

m. THE MAJORITY BELOW PLAINLY
DID NOT APPLY THE GOVERNING 
STANDARDS...........................................................  5

IV. BECAUSE UNDER THE
GOVERNING STANDARDS THE 
RECORD LEAVES NO DOUBT 
THAT DISCRIMINATORY PURPOSE 
MOTIVATED THE BOARD’S 
ACTION, THIS COURT SHOULD
REVERSE..................................................................  8

A. The Board Presented No Evidence of 
Any Non-Racial Reason to Reverse
Itself and Adopt the Police Jury Plan................. 8

B. Board Members Admitted Bossier’s
Discriminatory Purpose...................................... 11

l



11

C. The Board’s Otherwise Unexplained 
Retreat to the Police Jury Plan
Dilutes Minority Voting Strength......................  12

D. The School Board’s Ongoing 
History of Discrimination Shows 
How and Why It Sought to Dilute 
Minority Voting Strength Through
the Police Jury Plan........... ................................  13

E. The Board’s Plan Fails to Satisfy Its
Own Redistricting Criteria.................................  15

F. The Board’s Alleged Concerns 
About the Illustrative Plans Are 
Purely Pretextual and Underscore Its
Actual Discriminatory Purpose................    17

TABLE OF CONTENTS— Continued
Page

CONCLUSION 20



Ill

CASES:

Bush v. Vera, 116 S. Ct. 1941 (1996)..........................  15

City o f Oklahoma City v. Tuttle, 471 U.S. 808 
(1985)............... .......................................................... 6

Freeman v. Pitts, 503 U.S. 467 (1992)........................  14

Levin v. M ississippi River Fuel Corp., 386 U S 
162 (1967)...................................................................  g

Lucas v. South Carolina Coastal Council, 112 
S. Ct. 2886 (1992)......................................................  6

M iller v. Johnson, 115 S. Ct. 2475 (1995)..................5,10,15

Rogers v. Lodge, 458 U.S. 613 (1982)........................  15

Shaw v. Hunt, 116 S. Ct. 1894 (1996).........................  10,15

United States v. El Paso Natural Gas Co., 376 U S 
651 (1964)............   g

Village o f Arlington Heights v. Metropolitan 
Housing Dev. Corp., 426 U.S. 252 (1977) ............. passim

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

TABLE OF AUTHORITIES

Page

passim



In  The

Supreme Court of tfje ©niteb States
October Term, 1996

Nos. 95-1455 & 95-1508

Janet Reno, Attorney General of the United States,
Appellant, and

George Price, et al.,

v.
Appellants,

Bossier Parish School Board,
Appellee.

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

REPLY BRIEF OF APPELLANTS 
GEORGE PRICE, ET AL.

INTRODUCTION
In its brief to this Court, the Bossier Parish School 

Board now concedes that: (1) Village o f Arlington
Heights v. Metropolitan Housing Development Corp., 
426 U.S. 252 (1977), sets the legal standard for 
determining whether the Board adopted the Police Jury 
plan in part for a discriminatory purpose, B.P. Br. 29, 
33, 36, 49;1 (2) if the plan was adopted in part for a

1 In this brief, record citations conform to the abbreviations set 
forth in the Brief of Appellants George Price, et al., at 1 n.l (filed



2

discriminatory purpose, it violates Section 5 even though 
it may be nonretrogressive, id. at 10; and (3) in 
determining whether die plan was adopted in part for a 
discriminatory purpose, it would be “indefensible” for a 
court to ignore relevant evidence merely because that 
evidence would also be relevant to a Section 2 claim, id. 
at 31. Even though Bossier thereby acknowledges that 
appellants are right on the law with respect to the 
standards governing the “purpose” prong of Section 5, it 
does not and cannot show that it meets those standards. 
Instead, in its effort to defend the lower court’s 
judgment, Bossier mischaracterizes the central issues 
before this Court, misstates the ruling of the majority 
below, and misrepresents the stipulated and unrebutted 
facts in the record.

For example, Bossier repeatedly mischaracterizes this 
case as one raising the question whether a governmental 
body unlawfully discriminates solely because it fails to 
maximize the number of majority-minority election dis­
tricts. See, e.g., B.P. Br. 6. In fact, the question is whe­
ther the Board adopted its plan in part to minimize the 
number of majority-minority districts and keep it at zero.

Likewise, this case does not ask this Court to choose 
between Bossier’s plan and what it calls an “objectively 
inferior” maximizing alternative. Id. Instead, this case 
concerns the Board’s refusal to consider any possible 
plan with even a single majority-minority district and its 
sudden adoption of a previously rejected and seriously 
flawed m inim izing  plan only when it was publicly 
confronted with the fact that majority-minority districts 
were a viable option.

August 1, 1996). Additional abbreviations are as follows: Brief of 
Appellee Bossier Parish (“B.P. Br.”); Brief of Appellants George 
Price, et al. (“D-I Br.”); and Jurisdictional Statement of Appellants 
George Price, et al. (“D-I J.S.”).



3

In the end, the central question in this case is whether 
the Board met its burden to prove that its hasty reversal 
about the Police Jury plan was not motivated even in 
part by a discriminatory purpose. Applying the 
Arlington Heights standard—which all parties now 
acknowledge as controlling—to the stipulated and 
unrebutted facts, Section 5 preclearance should be 
denied because this “evidence demonstrates conclusively 
that the Bossier School Board acted with discriminatory 
purpose.” App. 39a (Kessler, J., dissenting). Therefore, 
this Court should correct the majority’s legal errors and 
reverse the decision below.

ARGUMENT
I. THE PURPOSE PRONG OF SECTION 5 IS 

DETERMINATIVE IN THIS CASE
Notwithstanding that Bossier spends the bulk of its 

brief arguing that a Section 2 violation should not be 
grounds for denying Section 5 preclearance, B.P. Br. 8- 
27, this Court need not reach that issue. This case has 
always been primarily a Section 5 discriminatory pur­
pose case. The analysis of discriminatory purpose under 
Arlington Heights was the primary focus of all the 
briefing below. Indeed, the purpose evidence was so 
overwhelming that it was the only issue addressed in the 
Defendant-Intervenors’ Post-Triad Brief.

All the parties agreed below, moreover, both that the 
court need not address Section 2 if Bossier “failed to 
meet its burden of proof on the issue of purpose” and, on 
the other hand, that it would make no sense to preclear a 
redistricting plan that violates Section 2. App. 144a 
(Stip. 257). We continue to support this position. See 
D-I Br. 43-45.

This Court, however, need not reach the Section 2 
incorporation issue because the majority below failed to 
apply the proper legal standard to the evidence that



4

“demonstrates overwhelmingly” the Board’s discrimina­
tory purpose. App. 63a (Kessler, J., dissenting). Thus, 
if the Court agrees with us on the Section 5 purpose 
issue, the subsidiary Section 2 issue need not be decided. 
On the other hand, even if the Court decided the 
Section 2 incorporation issue against us, the discrimin­
atory purpose issue would still have to be reached.

Furthermore, and contrary to Bossier’s repeated con­
tentions, addressing the purpose issue under Arlington 
Heights will not require this Court “indirectly” to decide 
the incorporation issue. B.P. Br. 6-7, 30-31. The 
overwhelming evidence of discriminatory purpose in this 
case does not hinge on the presence of a Section 2 
violation or the Board’s “failure to maximize.” Id. at 7.

Instead, the evidence here—including direct admis­
sions of discriminatory purpose, a discriminatory impact 
on minority voters, an ongoing history of discrimination, 
a failure to comply with stated redistricting criteria, and 
plainly pretextual post hoc rationalizations—unequivo­
cally reveals that the Board adopted a previously

debunking of its earlier claim that a majority-black 
district was impossible. Since Bossier adopted its plan 
in part for a discriminatory purpose, it should be denied 
preclearance, and the Board should be directed to 
develop a new plan free of such influences.

n . BOSSIER HAS CONCEDED THE LEGAL
STANDARDS THAT GOVERN THE SECTION 5 
PURPOSE PRONG

In its motion to dismiss this appeal, Bossier admitted 
that the majority below failed to apply Arlington Heights 
to the stipulated and unrebutted facts; Bossier argued 
then drat a different legal standard should apply. Motion 
to Dismiss or Affirm at 11-12. Now, Bossier agrees that 
Arlington Heights applies. B.P. Br. 29, 33, 36, 49.



5

Indeed, our Jurisdictional Statement raised four 
questions regarding the legal standards applicable to the 
purpose prong of Section 5, D-I J.S. i., and Bossier now 
appears to agree with our position on all four. First, 
Bossier now expressly “agree[s] that courts - in Section 
5 proceedings . . .  should not exclude evidence probative 
of the legal question being resolved simply because it is 
also relevant to another legal issue.” B.P. Br. 28. In 
fact, Bossier concedes that it is an “indefensible ruling 
that otherwise material evidence of purpose somehow 
should be excluded because it was also relevant to 
Section 2.” Id  at 31. Second, Bossier acknowledges 
that this Court’s decisions “in just the past two Terms” 
have confirmed that Section 5 preclearance must be 
denied even to an ameliorative plan, and certainly to a 
minimizing plan, if  it is adopted with “an invidious 
purpose.” Id. at 10 (citing Miller v. Johnson, 115 S. Ct. 
2475 (1995)). Third, Bossier agrees that it bears the 
burden of proof under Section 5, id. at 8-9, implicitly 
acknowledging that the court itself should not provide its 
own arguments to meet that burden. Finally, in 
accepting Arlington Heights as the governing legal 
standard, Bossier also apparently acknowledges that if  a 
discriminatory purpose was “a motivating factor” in its 
decision, preclearance should be denied. Id. at 29, 33, 
36, 49; Arlington Heights, 465 U.S. at 265-66.

MI. THE M AJORITY BELOW  PLAINLY DID NOT  
APPLY THE GOVERNING STANDARDS

At the outset, we urge the Court to consider that in its 
motion to dismiss the Board agreed that the majority 
both refused to apply Arlington Heights and excluded 
from consideration all evidence relevant to Section 2. 
Motion to Dismiss or Affirm at i, 11-12. Now, however, 
Bossier has reversed course completely and contends 
that the majority did apply Arlington Heights and did 
consider certain Section 2 evidence, excluding only 
Section 2 evidence that would not be relevant to discrim­
inatory purpose under Section 5. B.P. Br. 8, 27-39. A



6

party is not permitted to contradict itself in this fashion 
and raise for the first time in its responsive brief on the 
merits an argument it could have made in opposition to 
certiorari or in a motion to dismiss. See Lucas v. South 
Carolina Coastal Council, 112 S. Ct. 2886, 2897 n.9 
(1992); City o f Oklahoma City v. Tuttle, 471 U.S. 808, 
815-16 (1985). Accordingly, the Court should not 
consider Bossier’s new argument.

In any case, the argument is plainly without merit. To 
sustain its new view that the majority correctly applied 
Arlington Heights and considered all the relevant evi­
dence, Bossier ignores both what the majority says it did 
as well as what it actually did. Relying now on a soli­
tary footnote, Bossier claims that the majority’s failure 
to apply Arlington Heights and its exclusion of “Section 
2 evidence” were harmless, because it excluded from 
consideration solely that “evidence relevant only to the 
section 2 inquiry.” B.P. Br. 27 (quoting App. 9a n.6) 
(emphasis added). Bossier, however, can cite no 
evidence introduced by appellants that is irrelevant to 
discriminatory purpose under Arlington Heights. There­
fore, this footnote cannot save the majority’s decision.

The text of the majority’s opinion also makes clear that 
the majority considered any evidence that was relevant 
to Section 2 to be irrelevant to Section 5. In each of the 
three references in the text of the majority’s opinion to 
its refusal to consider “section 2 evidence,” the majority 
does not limit its discussion to evidence relevant “only” 
to Section 2. See D-I Br. 29 n.6 (quoting App. 23a-24a). 
Rather, the majority plainly and repeatedly explains that 
this evidence’s relevance to Section 2 is the reason that 
it should not be considered in a Section 5 proceeding. 
App. 23a-24a. That is why the footnote relied on by 
Bossier must be read to mean that such evidence would 
not be considered under Section 5 because, in the 
majority’s view, by definition it was “relevant only to 
the section 2 inquiry.” Id. at 9a n.6. Moreover, when



7

Judge Kessler in dissent pointed out both the proper 
legal standard and the majority’s refusal to apply it, 
App. 39a n.2, 42a n.4, the majority did not profess that it 
really was weighing all the evidence.

This reading of the majority’s opinion is confirmed by 
what the majority actually did in excluding certain 
relevant evidence. It is also confirmed by Bossier’s own 
laborious effort to demonstrate that the impact on minor­
ity voters of the Board’s plan and Bossier’s ongoing 
history of discrimination are insignificant in this case. 
B.P. Br. 3-5, 27-39. The majority’s opinion, of course, 
says none of this, because the majority never considered 
such evidence.

For example, without citation to the majority’s actual 
opinion, Bossier claims that “[t]he court assumed” that 
its plan negatively affected black voters’ electoral 
opportunities but found that the Board adopted the plan 
‘in spite o f’ that impact. Id. at 33. The majority did not 
say this and made no such assumption; not a sentence of 
the majority’s opinion addresses the discriminatory 
impact of the Board’s plan.

Bossier also suggests that the majority considered the 
Board’s ongoing history of discrimination, but con­
cluded that it was not particularly probative. B.P. Br. 
36-38. Bossier again rests its claim principally on a sin­
gle footnote taken out of context. Id. at 37 (citing App. 
34a n.18). Even in this footnote, however, the majority 
stated that it did not “see how [Bossier’s continu ing  
willful failure to comply with school desegregation or­
ders] can be in any way related to the School Board’s 
purpose in adopting the Police Jury plan.” App. 34a 
n.18. In contrast, Bossier itself now concedes that “‘a 
series of official actions taken for invidious purposes’” 
is relevant to the question “whether this specific voting 
change was motivated by the same invidious purposes.” 
B.P. Br. 36 (quoting Arlington Heights, 429 U.S. at 
267). Moreover, the rest of the voluminous evidence of



8

discrimination in Bossier Parish and by the Board itself 
is never even mentioned by the majority. App. 42a n.4. 
(Kessler, J., dissenting).

In sum, it is implausible to conclude, as Bossier urges, 
that the majority silently applied Arlington Heights and 
actually considered the crucial “Section 2” evidence that 
it said it did not. Accordingly, the majority’s resulting 
judgment is erroneous as a matter of law and should be 
set aside.

IV. BECAUSE UNDER THE GOVERNING 
STANDARDS THE RECORD LEAVES NO 
DOUBT THAT DISCRIMINATORY PURPOSE 
MOTIVATED THE BOARD’S ACTION, THIS 
COURT SHOULD REVERSE

Bossier’s contention that this appeal is actually a 
“straightforward ‘clearly erroneous’ case,” B.P. Br. 28, 
39, is itself erroneous. The principal facts relevant to 
determining discriminatory purpose are not in dispute; 
they are stipulated and unrebutted. App. 66a-153a (Stip. 
1-285); D-I Br. 5-23. The actual dispute here centers on 
the majority’s legal errors in analyzing, and refusing to 
consider, the stipulated facts. Moreover, when analyzed 
under the governing legal standards, the actual facts of 
record permit only one conclusion: “racial purpose 
fueled the School Board’s decision.” App. 39a (Kessler, 
J., dissenting). For that reason, this Court should not 
merely vacate the majority’s opinion; it should reverse 
and direct that preclearance be denied. See United 
States v. El Paso Natural Gas Co., 376 U.S. 651, 657 
(1964); Levin v. Mississippi River Fuel Corp., 386 U.S. 
162, 169-70 (1967).

A. The Board Presented No Evidence of Any Non- 
Racial Reason to Reverse Itself and Adopt the 
Police Jury Plan

Throughout its brief, Bossier mischaracterizes the 
issue in this case as whether the Board had any legiti­



9

mate reason for rejecting the NAACP plan; the real 
issue, however, is whether the Board had any 
discriminatory purpose in adopting the plan it did adopt 
See D-I Br. 38-40.

The Board initially rejected the Police Jury plan on 
September 5, 1991. App. 47a (Kessler, J., dissenting). 
As the majority found:

The School Board did not like the Police Jury 
plan when it was first presented to them [after it 
already had been precleared on July 29, 1991, App. 
58a], and there were certainly reasons not to. The 
Police Jury plan wreaked havoc with the incumben­
cies of four of the School Board members and was 
not drawn with school locations in mind. [App. 28a.]

The ultimate question, therefore, is why did the Board 
reverse its decision, and more specifically, did a 
discriminatory purpose contribute to that reversal?

Bossier asks this Court to assume that the two reasons 
it adopted the Police Jury plan were those relied on by 
the majority: “guaranteed preclearance” and “precinct­
splitting.” B.P. Br. 6 (quoting App. 27a-28a). But 
Bossier offered no evidence that those reasons actually 
motivated its reversal of position on the plan. Nor is this 
surprising. Preclearance certainly was no more likely in 
1992 than it had been in 1991 when the Board rejected 
the Police Jury plan. And, concerns about precinct- 
splitting are not a reason to adopt the Police Jury plan at 
all but, at most, a reason—albeit pretextual (see infra 
pp. 18-20)— to reject the NAACP plan.

Turning to the actual evidence of record, the Board 
offered no real explanation for its adoption of the Police 
Jury plan. The Board’s minutes reveal no discussion at 
all of the merits of the plan or the reasons for adopting 
it, App. 55a n .l l  (Kessler, J., dissenting); U.S. Exh. 7- 
36, and the majority found that at the Board’s public 
hearing “[n]o one spoke in support of the plan.” App.



10

8a. It also is undisputed that although the Board 
considered a number of different redistricting options, 
id. at 5a, it did not present a scintilla of evidence about 
its admittedly closed-door efforts to develop another 
plan. App. 47a (Kessler, J., dissenting); App. 97a (Stip. 
96). Instead, the Board claimed that all of the other 
alternatives were inadvertently destroyed in a series of 
computer mishaps. J.A. 165-66.

This case, therefore, is unlike either Miller, in which 
“Georgia’s Attorney General provided a detailed explan­
ation for the State’s initial decision” to adopt an ameli­
orative plan, 115 S. Ct. at 2492, or Shaw v. Hunt, 116 
S. Ct. 1894 (1996) (“Shaw I I ”), in which North Carolina 
initially adopted an ameliorative plan after rejecting a 
number of other options for legitimate reasons. Id. at 
1904. In contrast, Bossier presented no evidence of any 
race-neutral reason why its efforts to develop alternative 
plans were abruptly abandoned in favor of a previously 
rejected minimizing plan. Here, the record shows only 
that the Board resurrected the Police Jury plan in direct 
response to the public demonstration that it was possible 
to draw majority-black districts. App. 28a, 6a; App. 
46a-50a (Kessler, J., dissenting); D-I Br. 14-21.

Bossier now tries to deflect attention from its 
unexplained reversal by contending that the issue is 
whether the Board was required to adopt the NAACP 
plan. B.P. Br. 40. No one has ever so claimed. App. 
60a (Kessler, J., dissenting). Instead, as the majority 
found, the Board was asked to “consider alternative 
redistricting plans” App. 8a (emphasis added). Black 
voters specifically asked the Board only to use the 
NAACP plan “as a foundation” to develop a redistricting 
plan. App. 101a (Stip. 108). Indeed, George Price 
initially submitted to the Board only the basic 
demographic information showing that two majority- 
black districts could be drawn. App. 6a. The Board 
itself demanded that Price develop a full plan. Id. In the



11

end, therefore, the Board presented no evidence demon­
strating a non-discriminatoiy explanation for its reversal.

B. Board Members Admitted Bossier’s 
Discriminatory Purpose

On the other hand, several Board members actually 
admitted that the Board’s sudden turnabout with respect 
to the Police Jury plan resulted from the fact that “school 
board members oppose [the] idea” of “black 
representation on the board.” J.A. 93; App. 31a. The 
majority below improperly attempted to explain this 
evidence away, see D-I Br. 36-38, and Bossier now asks 
this Court to accept those explanations. B.P. Br. 50 
n.35. The Court should not do so.

The Board member who made the admission quoted 
above, Henry Bums, did not testify, and as the majority 
noted, the Board did not “cross-examine . . .  on this 
point.” App. 31a. Thus, the statement stands undis­
puted. Another Board member, Barry Musgrove, also 
admitted that “other Board members were hostile to 
drawing majority-black districts.” Id. at 32a. 
Mr. Musgrove did testify, and he did not deny “making 
this statement,” as the majority suggests, id , but said 
only that he did not “recall” it. Tr. I at 56. Finally, 
Board member Thomas Myrick, whose denial of his 
involvement in the Police Jury redistricting process the 
majority rejected as false, see D-I J.S. 28 n.9; D-I Br. 
11-12 n.3, told the Board’s redistricting consultant that 
he wanted to avoid the creation of a majority-black 
district, J.A. 163-64, and told black voters that he would 
not “let [them] take his seat.” App. 6a n.4.

Because these statements are direct evidence of the 
Board’s intent, and because Bossier cannot refute them, 
it attempts instead to avoid them. Although it made no 
objection below, Bossier now implies that all of these 
statements are hearsay, B.P. Br. 50 n.35, but, as ad­
missions of a party, they are not. Bossier also now



12

claims that the statements were only “allegedly” made, 
id., but it presented no evidence below to raise doubt 
that they were said. Finally, Bossier claims that these 
statements are not probative of discriminatory purpose 
without “the most nefarious possible spin,” id , but this 
clearly is not so. We ask only that the Court accept 
these statements at face value and view them in the 
context of the stipulated facts ignored by the majority 
below.

C. The Board’s Otherwise Unexplained Retreat to the 
Police Jury Plan Dilutes Minority Voting Strength

The majority below erred in refusing to consider the 
undisputed evidence that the effect of maintaining 
twelve-of-twelve majority-white districts would be to 
dilute the ability of minority voters to elect candidates of 
their choice. D-I Br. 29-33. Bossier now attempts to 
defend this refusal by falsely contending that the Police 
Jury plan “enhanced minority voting strength,” 
B.P. Br. 40, and that Bossier Parish is not characterized 
by racially polarized voting, id. at 3-5. However, the 
record unequivocally shows that: (1) when compared to 
the Board’s 1980s plan the Police Jury plan actually 
reduces the minority voting-age percentage in the three 
districts with the highest minority concentrations, 
compare J.A. 47 with J.A. 44; and (2) voting in Bossier 
Parish plainly is racially polarized.

First, no black candidate had ever been elected to the 
Board. App. 67a (Stip. 4). Second, in the four Board 
elections since 1980 that involved a contest between a 
black and white candidate, the black candidate lost every 
time. Id. at 115a (Stip. 153). Third, the only expert 
analysis of election statistics for Bossier Parish 
concluded that “African American voters are likely to 
have a realistic opportunity to elect candidates of their 
choice to the . . .  Board only in districts in which they 
constitute a majority of the voting age population.” J.A. 
121. The elections in which Bossier now claims that



13

Dr. Engstrom did not find racial polarization using  
regression analysis and extreme-case analysis, B.P. Br. 
3-4, are simply elections in which the underlying data 
are insufficient to permit a full application of these 
statistical techniques. J.A. 111-21. The partial analyses 
of these elections that Engstrom was able to perform, 
moreover, support the above-quoted conclusion of 
racially polarized voting. Id.

Moreover, the majority found that the area surrounding 
Barksdale Air Force Base in which a few black candi­
dates for other offices in recent times have been success- 
fill in elections with white opponents is “unique.” App. 
2a n. 1; App. 117a-18a (Stip. 162-63). All but two of the 
six elections cited by the Board in which a black candi­
date was successful against a white opponent involved 
this “unique” community. The other two involved an 
at-large election system in Haughton, and because these 
elections allowed for single-shot voting the election of 
black candidates shows nothing about racial polariza­
tion. App. 120a (Stip. 174). Moreover, while Bossier 
refers to only 14 black-white contests, 17 actually meet 
its arbitrary limiting criteria; the parties stipulated to 
facts concerning more than 20 such elections, id. at 
115a-27a (Stip. 153-96); and the record includes undis­
puted results from more than 30. J.A. 55-60. In all of 
these other contests, black candidates lost to whites. Id.

Accordingly, Bossier is wrong to say that Board 
elections are not racially polarized, and the majority was 
wrong in refusing to consider that polarization in 
assessing the Board’s motivation.

D. The School Board’s Ongoing History of
Discrimination Shows How and Why It Sought to 
Dilute Minority Voting Strength Through the 
Police Jury Plan

With respect to the Board’s history of discrimination, 
the “facts” Bossier relies upon again simply cannot be



14

found in this record. While the Board now claims with­
out support that unidentified “demographic factors” have 
caused increasing segregation in its schools, B.P. Br. 38- 
39 n.27, the evidence shows that the Board’s own 
actions have contributed to it. Bossier itself submitted 
evidence showing that its transfer policy may have con­
tributed to the growing racial imbalance in its schools. 
PL Exh. 14 at 4. The superintendent also admitted that 
the Board intentionally assigned a widely disproportion­
ate number of minority teachers to predominantly black 
schools. J.A. 179. This is indisputably contrary to the 
Board’s court-ordered obligations, App. 45a (Kessler, J., 
dissenting), and is a recognized method of unconstitu­
tionally designating some schools as “black” schools and 
others as “white.” See Freeman v. Pitts, 503 U.S. 467, 
497 (1992). Finally, not only has the Board failed to 
achieve a unitary school system, but Board members ad­
mittedly were completely ignorant of their court-ordered 
desegregation obligations. See, e.g., J.A. 74, 148.

In addition, while Bossier now blames its failure to 
maintain the court-mandated bi-racial committee on the 
waning “interest of volunteer citizens,” B.P. Br. 38 
n.27, there is no evidence to support this; instead, the 
record shows that for more than 20 years the Board 
reported to the federal court that the actually nonexistent 
bi-racial committee was “available.” U.S. Exh. 84YY; 
J.A. 134. When the Board finally established a 
committee in 1993, Board members quickly terminated 
it for the same reason they adopted the Police Jury plan: 
they did not want blacks involved in “policy” questions. 
D-I Br. 9; App. 104a-06a (Stip. 114-17).

As noted, the majority below failed even to address the 
rest of the voluminous stipulated evidence of discrimin­
ation in Bossier Parish, and Bossier now seeks to defend 
this error by claiming incorrectly that this evidence “says 
nothing about why a black majority district was not 
created.” B.P. Br. 35. Plainly it does. We do not



15

argue, however, as Bossier suggests, that evidence of 
non-Board discrimination in Bossier Parish is relevant 
because the Board is responsible for “private citizens’ 
voting patterns” and all “historical discrimination,” id. at 
39. Rather, such evidence is probative because the 
Board’s knowledge of the preferences of private citizens 
and the patterns of local history—like its awareness of 
racially polarized voting—made clear to the Board that 
the way to keep black voters out of “policy” questions 
was to adopt an election plan with all majority-white 
districts. App. 42a-46a (Kessler, J., dissenting). See 
Rogers v. Lodge, 458 U.S. 613, 618, 625 (1982).

E. The Board’s Plan Fails to Satisfy Its Own 
Redistricting Criteria

To counter the foregoing showing of discriminatory 
purpose, Bossier now relies most heavily on the 
proposition that the Police Jury plan could not be 
discriminatory because it complies with the Board’s 
traditional redistricting principles. See B.P. Br. 6-8, 40- 
41, 47-50. Not only is this assertion contradicted by the 
stipulated and unrebutted facts, but it also ignores the 
governing legal standard.

Bossier argues that this Court has accepted adherence to 
a “traditional redistricting principle as a refutation o f any 
discriminatory purpose finding.” B.P. Br. 47 (emphasis 
added). To the contrary, the Court carefully scrutinized 
legislative motives in Miller, Shaw II  and Bush v. Vera, 
116 S. Ct. 1941 (1996), and, in Vera, explicitly refused to 
accept adherence to a traditional redistricting criterion as a 
defense even to the allegation that race was the predomi­
nant factor in a decision, let alone a contributing factor, id. 
at 1951-52. While a showing that traditional redistricting 
principles were not subordinated to race may defeat the 
“analytically distincf’ claim of racial gerrymandering, 
Miller, 115 S. C t at 2488, 2485, this Court has never 
suggested that a political body may intentionally dilute 
minority voting strength so long as its plan for doing so is



16

compact, contiguous or respects political subdivisions. 
Such a perverse rule would subordinate the Constitution to 
“traditional redistricting principles.”

Of course, if the Board had shown that the reason it 
reversed course and adopted the Police Jury plan was to 
comply with traditional districting principles, this would 
be a different case. But here the record shows that 
Bossier’s plan does not comply with its own criteria. 
Indeed, while the majority understandably made no 
finding at all on this subject, Judge Kessler found that 
the plan “plainly violates a whole number of redistricting 
principles.” App. 51a.

For example, Bossier claims without support that the 
Police Jury plan “clearly complied with state law,” B.P. 
Br. 40, but the undisputed evidence shows that the 
Police Jury plan violated state law in at least two 
respects: by including a district that is not contiguous 
and by exceeding the maximum allowable deviation 
from one person, one vote. App. 84a (Stip. 58): D-I 
Exh.Gffl[31, 32.

The Board also claims without support that the Police 
Jury plan was compact. B.P. Br. 40. To the contrary, 
the stipulated facts demonstrate: (1) that the Board’s 
cartographer, Gary Joiner, admitted that one-third of its 
districts were not compact, App. llla-12a (Stip. 139); 
and (2) that one district “contained almost half of the 
geographic area of the Parish.” App. 50a (Kessler, J., 
dissenting); App. 112a (Stip. 140).

Likewise, Joiner’s own testimony defeats Bossier’s 
claim that there is no showing that the Police Jury plan 
“‘fragments’ any concentration of minority voters.” B.P. 
Br. 41. In fact, Joiner admitted that the plan appears to 
“fracture” the predominately black neighborhood 
surrounding two predominantly black elementary 
schools. App. 11 la-13a (Stip. 137, 138,. 142).



17

Bossier also claims without support that the Police 
Jury plan maintained the “integrity of municipal” 
boundaries “like all prior redistricting plans,” B.P. Br. at 
40, 2, but the record shows: (1) no information about 
any plan prior to 1980; (2) no indication that the Board 
ever considered municipal boundaries in redistricting; 
and (3) several stipulations that the Board was 
concerned instead about the location of schools in its 
districts, App. 72a-73a (Stip. 24), and the protection of 
incumbencies, App. 28a; App. 50a, and that the Police 
Jury plan violates these criteria. App. 112a (Stip. 141); 
App. 28a; App. 50a (Kessler, J., dissenting).

Finally, Bossier claims that its plan “respect[s]. . .  the 
Police Jury districts,” B.P. Br. 2, but the pertinent evi­
dence in the record is the stipulated fact that “[through­
out the 1980s, the Police Jury and School Board 
maintained different electoral districts.” App. 4a n.3.

F. The Board’s Alleged Concerns About the 
Illustrative Plans Are Purely Pretextual and 
Underscore Its Actual Discriminatory Purpose

Just as the majority below found that “the School 
Board ..  . offered several reasons for its adoption of the 
Police Jury plan that clearly were not real reasons,” 
App. 27a n.15 (emphasis added), Bossier’s current 
assertions questioning plans with majority-black districts 
are clearly pretextual.

The Board claims that the “black majority districts . . .  
were plainly not compact,” B.P. Br. 40, but the record 
shows (1) stipulations that the Bossier City district was 
“an acceptable configuration from the standpoint of 
district shape,” App. 115a (Stip. 150), and that it was 
“obvious that a reasonably compact black-majority 
district could be drawn within Bossier City,” id. at 76a 
(Stip. 36), where “more than 50 percent of the black 
population of Bossier Parish is concentrated,” id. at 68a 
(Stip. 10); and (2) an illustrative majority-black district



18

in the northern part of Bossier Parish that is no more 
irregularly shaped than any number of districts in the 
Board’s 1980s plan and the current Police Jury plan. 
See J.A. 42-43, 45-46, 51-52.

Bossier also now claims that the NAACP plan “split 
every municipal boundary in the Parish,” but the record 
contains a stipulation that “[o]verall, in the use of 
logical, traditional features . . .  the NAACP Plan is not 
significantly different from the School Board plan.” 
App. 113a (Stip. 144).

The Board claims as well that William Cooper drew 
the NAACP plan “for the exclusive purpose of 
‘creating] two majority-black districts.’” B.P. Br. 2 
(quoting J.A. 260). But the intent of the drawers of the 
various illustrative plans is irrelevant to the Board’s 
intent in adopting the Police Jury plan. Moreover, the 
record shows that (1) the NAACP plan (which Cooper 
actually did not draw, App. 98a (Stip. 98)) was meant 
only as an illustration for the Board’s information and 
was not intended to “create” any districts at all, see D-I 
Br. 16-17; and (2) as Cooper explained in the very testi­
mony relied on by Bossier, his own subsequent illustra­
tive plan was drawn to “assess whether or not it was 
possible to create two majority black districts using 
traditional redistricting criteria.” J.A. 260 (emphasis 
added).

Bossier rests the bulk of its argument on the claim that 
the NAACP plan “facially violated” state law because it 
split precincts. B.P. Br. 43, 44. The record, however, 
shows that (1) no one suggested that the Board split pre­
cincts but that it consider working with the Police Jury 
to establish new ones, App. 156a-57a; J.A. 136-43; (2) 
the Board was well aware that it could work with die 
Police Jury to have precincts modified, App. 6a-7a, 29a; 
App. 99a-100a (Stip. 102); and (3) this procedure is 
commonplace in Louisiana, App. 72a (Stip. 22-23); J.A. 
137-38.



19

The Board’s elevation of precincts to the essential 
“building blocks” of Louisiana election districts is 
simply false. B.P. Br. 43. While Bossier claims that the 
precincts were “used by the Police Jury for its districts,” 
id., the record is clear that the Police Jury first drew its 
new election districts and then had to create a new 
system of precincts, with at least 13 new ones. App 
85a, 88a, 82a-88a (Stip. 60 70, 52-68). The parties also 
stipulated that “Bossier Parish has made a number o f . 
precinct realignments in the last ten years,” id. at 77a 
(Stip. 38), and Bossier’s own evidence confirms that the 
Police Jury changed precincts in 1987, 1989 and 1991, 
PI. Exh. 1, and intended to consolidate precincts again in 
1993. App. 85a-86a (Stip. 61).

White Bossier claims, with no record support, that it 
has a longstanding, uniform practice of preserving 
Police Jury precincts,” B.P. Br. 47, the state statute 
requiring die use of whole precincts by school boards 
did not even apply to any prior redistricting. J.A. 265- 
66. After the 1980 census, for example, Louisiana law 
provided that “school board election districts . . .  need 
n o t . .  . have any relation to, the . .  . precincts that may 
be created by die police jury.” Id. at 263 (emphasis 
added). Bossier also claims that it was “required to use 
[the] existing 1991 precincts,” B.P. Br. 2, but, even 
under the new statute, the whole-precinct requirement 
did not apply where “the number of members of the 
school board is not equal to the number o f’ police 
jurors, J.A. 266, and a plan with five, seven or nine 
members, rather than 12, was one of the options that the 
Board originally considered but then abandoned without 
explanation. Tr. I at 44.

u Most importandy, white Bossier now implies it was 
powerless” to develop a plan that did not employ all of 

the Police Jury’s precincts, B.P. Br. 43, the majority 
below found that the Board was “free to request precinct 
changes from the Police Jury,” App. 7a, and it is undis­



20

puted that the Board knew it could “work with the Police 
Jury to alter the precinct lines.” App. 95a (Stip. 89). It 
also is undisputed that through such cooperation the 
Police Jury could reduce its total precincts from 56 to 46 
without changing its own election districts at all and still 
accommodate a School Board plan with two majority- 
black districts. D-I Exh. G f  36. Nevertheless, the 
Board never even approached the Police Jury about 
modifying precincts. App. 7a. As a result, its alleged 
concern over precinct-splitting must be treated as pre- 
textual, particularly in the face of the overwhelming evi­
dence showing that the abrupt, belated adoption of the 
Police Jury plan was at least in part racially motivated.

When all the stipulated and unrebutted evidence is 
fairly considered under the governing standards, it is 
“far from being equally convincing on either side. Not 
only does the evidence fail to prove absence of dis­
criminatory purpose, it shows that racial purpose fueled 
the School Board’s decision.” App. 38a-39a (Kessler, 
J., dissenting). This Court, therefore, should reverse.

CONCLUSION

Respectfully submitted,

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

Walter A. Smith, jr. 
Patricia A. Brannan* 
JohnW. Borkowski

Lawyers’ Committee for 
Civil Rights Under Law
1450 G Street, N.W., Suite 400

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

Washington, D.C. 20005 
(202) 662-8322

* Counsel of Record Counsel fo r  Appellants 
George Price, etal.