Reno v. Bossier Parish School Board Appellant's Brief in Opposition to Motion to Dismiss or Affirm

    3ln tlje Supreme Court of tfje Hmtrb j8>tat
Octorer T erm , 1995

No. 95-1455

Janet R eno , Attorney General of the 
U nited States, appellant

v.

Bossier Parish School Board

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

APPELLANT S BRIEF IN OPPOSITION TO 
MOTION TO DISMISS OR AFFIRM



TABLE OF AUTHORITIES

Cases: Page
Knight v. McKeitlien, C.A. No. 9 I-848 A2

(M I). La.) ..................................................................  5
Miller v. Johnson, 115 S. Ct. 2475 (1995).................  (i
Thornburg v. Gingles, 478 IJ.S. 30 (1986) ................  4, 6
Village of Arlington Heights v. Metropolitan 

Housing Dev. Corp., 42!) U.S. 252 (1077) ................  2

Statutes:
Voting Rights Act of 1965, 42 U.S.C. 1973 et set].:

§ 2, 42 U.S.C. 1973 .......................................  1,2, 3, 4,()
§ 2(b), 42 U.S.C. 1973(b) .........................................  4
§ 5, 42 U.S.C. 1973c ..........................................  L 2. 3, 5

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3ln tlje Supreme Court of tljr lliuteb States*

OCTOBER TERM , 1995

No. <»r> i ir.r»

Janet Reno, Attorney General of the 
U nited States, appellant

v.

Bossier Parish School Board

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

APPELLANT’S BRIEF IN OPPOSITION TO 
MOTION TO DISMISS OR AFFIRM

Appellee’s Motion to Dismiss or Affirm under­
scores the appropriateness of review in this case, 
which raises important issues regarding (1) the 
correct standards for considering and assessing proof 
of discriminatory purpose under Section 5 of the 
Voting Rights Act of 19(55 , 42 U.S.C. 1973c, and (2) 
whether voting changes that clearly violate Section 2 
of the Act, 42 U.S.C. 1973, are entitled to preclearance 
under Section 5.

1. Appellee acknowledges that the district court 
did not apply the established standard for evaluating

(1)



9

whether ;i governmental decision was motivated by ;i 
discriminatory purpose. Mot. to Aff. 11. Appellee eon 
tend- that, although Village of Arlington Heights v. 
.1/ 1 t n gi< it 1 1 ii n 111 hi s i in/ I hr  Cor/i , 129 II.S. 252, 2li(> 
(1!>771. articulates the standard for assessing dis 
ci i i n i i la I or\ purpose under t he ( '(institution and See 
lion 2. that standard "i- not the appropriate standard 
lor the 'e\11 aordiiiai y procedure' called for under 
Section Mot. to All 11. Neither appellee's asser 
lion nor the district court's purpose analysis is 
consistent with this Court’s decisions. The decision 
lielow also sipiarely conflicts with several other 
three judge court decisions applying Arlington 
lh ights to evaluate discriminatory purpose under 
Section a. See.I.S. 15 11.12.

Appellee contends (Mot. to Aff. 13-15) that there 
was no evidence that the School Board members 
knew , w hen they adopted the Police -Jury plan, that it 
was feasible to create two reasonably compact 
majority black districts. The stipulations it quotes, 
however, state that "it was obrious that a reasonably 
compact black majority district could be drawn within 
Bossier City," hi. at 13 (quoting d.S. App. 7f>a (1 3(i)), 
and that the possibility of creating a second such 
district in the northern area of Bossier Parish was 
“ rriulilg ilisreenilile," Mot. to Aff. 14 (quoting .I.S. 
App. Ilia (II IIS)) (emphases added). (liven the 
undisputed evidence of racially polarized voting in 
Bossier Parish, .I.S. App. 10a, 122a 127a (11 INI P-'t'd, 
the quoted stipulations show that the Board must 
have been aware of the dilutive effect of the Police 
.Jury plan on minority voting strength when the 
Board undertook its own redistricting in 1991. Had 
the district court considered all the relevant 
evidence, as it should have, and applied the correct



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legal standard, it would have found a prohibited 
racially discriminatory purpose. The district court’s 
decision must therefore lie reversed. See .I.S. Id, 14- 
22 . '

2. Appellee's principal response to our contention 
that the Court should review the question whether 
Section f> preclearance may properly lie denied if the 
proposed voting change clearly violates Section 2 is to 
allege that the Justice Department denied pre­
clearance based, not on a clear Section 2 violation, hut 
on an impermissible "maximization policy" in vio­
lation of this Court's holding in Millin' v. Johnson, 
115S. Ct. 2 17f» (1 !t!)5). Mot. to Aff. 8-9, 21. There is no 
basis, however—and appellee supplies none- for the 
contention that the Justice Department followed a 
“maximization” policy in denying the School Hoard’s 
preclearance or in arguing against preclearance by 
the court in this case. The Justice Depart incut's 
preclearance objection letter stated that "the school 
board is not required by Section f> to adopt any 
particular plan,” but must avoid “unnecessarily 
limit|ing| the opportunity for minority voters to elect 
their candidates of choice." J.S. App. 15*la. The 
grounds for the objection included the fact that, in a 
context of racially polarized voting, and in I he 
absence of any legitimate, nondiscriminatory justifi­
cation, the proposed redistricting plan “would appear 
to provide no opportunity for black voters to elect, a 
candidate of their choice to the school board." hi. at 
155a (emphasis added). Similarly, in this litigation

1 Appellee does not address our contention (J.S. 17) that 
the district court erred as a matter of law in refusing to con­
sider the Hoard’s substantial history of discrimination against 
blacks.



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the Department objected, not to appellee’s failure to 
adopt two majority-lilack districts, hut to its adoption 
of a plan including none,'’

Appellee also suggests that any majority hl.uk 
district would not adhere to traditional districting 
principles. Mot. to AIT. 2, IH 1!). That suggestion is 
incorrect. For example, appellee contends that, out­
side Mossier City, "the * * * |>|ack population is
scattered throughout the parish." Mot. to Aff. 2 & 
il l. The parties stipulated, however, and the district 
court found, that, in addition to its concentration in 
Mossier City, “|t|he hlack population is also concen­
trated in Menton, I ’lain Dealing, Haughton, and in the 
unincorporated community of Princeton.” J.S. App. 
2a; see id. at (>Ka (II ID). Those four communities are 
located in the northern rural part of the parish, which

Appellee repeatedly asserts, with no supporting evidence 
whatsoever, that .lustice Department officials demonstrated 
improper and divisive racial attitudes during the preclearance 
process. See, Mot. to Aff. 5, 20, 22, 24, 28-29. The only 
example appellee supplies which it describes as "(t|he most 
pernicious phrase tossed about bv the Justice Department"— 
was the Department's desire to protect "the right of blacks to 
elect candidates of their choice.” Id. at 5 n.4. That phrase 
directly tracks the text of Section 2(b) of the Voting Rights 
Act. 12 D.S.C. 1972(b) (ensuring the ability of members of 
protected classes "to participate in the political process and to 
elect representatives of their choice"); see also Thornbiny v. 
IHin/ltx, ITS U.S. 21). SO (198(1) (finding Section 2 violation in the 
impairment of "the ability of geographically insular and 
politically cohesive groups of black voters * * * to elect
candidates of their choice"). The phrase refers to the right of 
minorilv voters to participate meaningfully in the political 
process despite the fact that they and their candidates of choice 
have been victims of racially discriminatory voting practices, 
including vole dilution caused in part by white racial blocl^ 
voi ing



is not densely populated. The general population 
dispersion in the northern part of the parish does not, 
however, mean that the black population there is not 
sufficiently concentrated relative to the area’s overall 
population to permit the creation of a compact 
majority black district in that area.

Appellee contends that, “|b]ecause the concen­
trations of black residences are so scattered, the 
Police Jury’s cartographer was unable to draw any 
black-majority districts that were contiguous and 
compact." Mot. to Aff. 2. The parties stipulated, 
however, that it was feasible to create two reasonably 
compact majority b.lack districts in the parish. J.S. 
App. Ttia (H 2(1), 82a-8.'ia (H 53).:1 Appellee's carto­
grapher admitted, moreover, that he “knew at that 
time |of redistricting) that drawing two black-

:i Appellee refers (Met. to Aff. 18 n.T, III) to statements 
regarding compactness by one of the three judges presiding in 
Knight v. McKeitlien. ('.A. No. 9I-8I8-A2 (M.D. La.). Those 
statements were dicta. McKeitlien was an action by black 
voters seeking declaratory and injunctive relief to prevent 
implementation prior to preclearance of redistricting plans in 
several Louisiana parishes, including the plan for the Mossier 
Parish School Hoard. Plaintiffs in McKeitlien proposed an 
alternative interim redistricting plan for Hoard elections 
similar lint not identical to the Cooper plan in this case. The 
McKeitlien court made no compactness holding and declined to 
adopt any interim plan. The compactness issue was never 
resolved because that case was dismissed with the parties' 
consent following the district court’s decision in this case.

Contrary to appellee's contentions (Mot. to Aff. 18-19), 
William Cooper did not “admitll to Judge ltichey that his 
districts were not compact,” nor did he “assured Judge ltichey 
that compactness was of no real significance." lie testified 
that, although compactness is difficult to define, he seeks to 
draw districts that are “as siptare anil neatly bounded" as 
possible. II If. 178-179.



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majority districts within Hossicr Parish was 
'statistic.illv' possible. in that yon could create two 
majority hlack districts at a census block level with 
the correct population." hi at H2a-83a (1 h.'ti Al 
t hough the cartographer stated that, in order to do so. 
one must "ignoije| precinct considerations, dud., 
the Police Jury had authority to split precincts in 
redistricting, al at tiha, 7(ia-T<a, S2a, 84a I t. JS, 
52. 57). the police Jury itself did not adopt a plan with 
the i■)i11i11111in number ol precinct splits, id. at 8Sa S!la 
(11 7(1), and the School Hoard itself “ likely anticipated 
the necessity of splitting some precincts” during its 
own redisl l iet ing effort, id. at 29a, 95a (K 8!)). See 
also J.S. 22. (liven all the circumstances, appellee's 
failure to create any majority black districts for 
School Hoard elections constituted a clear violation of 
Sect ion 2.'

1 Appellee suggests that its failure to adopt a plan with any 
inajoritydilaek districts was excusable because adopting a less 
dilutive plan would amount to “ fashion|ing| districts solely or 
substantially for racial purposes" in violation of equal pro 
tertion. Mol. to Aff III It plainly was possible in this case, 
however, to draw one nr two majority black districts without 
"subordinat I mg I traditional rare-neutral districting principles." 
Millrr, Ilf) S. f t .  at gpOv The failure to adopt even a single 
majority black district constituted a clear violation of Section 2 
under Tl< mu li a nj v. 11 oit/l i*. trS I' S. ttO (11186).

t



<

For the reasons stated in our jurisdictional state­
ment and herein, the Court- should note probable 
jurisdict ion.

Respect fully submitted.

I * +

Dim:w S. Da ys . Ill 
Sulicitor Gnicm l

M\\ p.mm;