Reno v Bossier Parish School Board Brief Appellants

    Nos. 98-405 & 98-406

In  The

Supreme Court of the United 
States

October Term , 1998

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

George Price , etal. ,
Appellants,

v.

Bossier  Parish  School Board ,
Appellee.

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

REPLY BRIEF
OF APPELLANTS GEORGE PRICE, ETAL.

Barbara R. Arnwine 
Thomas J. Henderson 
Edward Still 

Lawyers’ Committee for 
Civil Rights Under Law 
1450 G Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 662-8600

* Counsel of Record

Patricia A  Brannan* 
JohnW. 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.



1

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

I. SECTION 5 PROHIBITS PRECLEARANCE OF
VOTING CHANGES ADOPTED WITH ANY 
RACIALLY DISCRIMINATORY PURPOSE...................... 2

A. The Statute Itself................................................................ 2

B. This Court’s § 5 Decisions................................................ 4

C. The Principle Prohibiting Discriminatory
Govermental Action.. .........................................................7

II. WHEN THE CORRECT LEGAL STANDARD IS
APPLIED TO THE STIPULATIONS AND THE
FINDINGS OF FACT, PRECLEARANCE
SHOULD BE DENIED.........................................................10

A. The NAACP Plan and Precinct-Splitting........................11

B. Traditional Districting Principles.....................................14

C. Election Results............................................................... 16

D. Resistance to Desegregation.............................................18

CONCLUSION............................................................................. 20

TABLE OF CONTENTS

Page



Allen v. State Bd. o f Elections, 393 U.S.
544(1969)......................... .............................................4

Beer si. United States, 425 U.S. 130 (1976)............... passim

Board ofEduc. o f Oklahoma City v. Dowell,
498 U.S. 237 (1991).....................................................  19

Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),
aff’d, 459 U.S. 1166 (1983)........................................... 6

Cedar Rapids Community Sch. Dist. v. Garret F.,
119 S. Ct. 992(1999)...................................................... 5

City o f Carrollton Branch ofNAACP v. Stallings,
829 F.2d 1547 (11th Cir. 1987)...................................  17

City o f Lockhart v. United States, 460 U.S.
125 (1983)....................................................................3 ,5

City o f Pleasant Grove v. United States, 479 U.S.
462(1987).....................................................................5-7

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

City o f Rome v. United States, 446 U.S.
156 (1980)........................................................................4

Clark v. Calhoun County, 21 F.3d 92
(5th Cir. 1994).........’......................................................17

11

TABLE OF AUTHORITIES
Page

CASES:



Ill

Cooperative Servs., Inc. v. Dep’t o f Housing 
and Urban Dev., 562 F.2d 1292 
(D.C. Cir. 1977)............................................................  14

Dougherty County Bd. ofEduc. v. White,
439 U.S. 32 (1978)...........................................................4

Feazell v. Tropicana Prods., Inc., 819 F.2d 1036
(11th Cir. 1987).............................................................  14

Freeman v. Pitts, 503 U.S. 467 (1992)........................  18-19

Gomillion v. Lightfoot, 364 U.S. 339 (1960).................. 8-9

Green v. School Bd. o f New Kent County,
391 U.S. 430(1968).....................................................  19

Hadnott v. Amos, 394 U.S. 358 (1969)................................4

Heckler v. Chaney, 470 U.S. 821 (1985)............................ 3

Holder v. Hall, 512 U.S. 874 (1994)..................................... 5

Jauregui v. City o f Glendale, 852 F.2d 1128
(9th Cir. 1988)...............................................................  14

Lemon v. Bossier Parish School Bd.,
240 F. Supp. 709 (W.D. La. 1965),
aff’d, 370 F.2d 847 (5th Cir.),
cert, denied, 388 U.S. 911 (1967)...............................  18

McKennon v. Nashville Banner Pub. Co.,
513 U.S. 352(1995).........................................................2

TABLE OF AUTHORITIES -  Continued
Page

CASES (cont’d):



IV

Miller v. Johnson, 515 U.S. 900 (1995)............................. 9

Missouri v. Jenkins, 515 U.S. 70 (1995)...........................  19

Mull v. Ford Motor Co., 368 F.2d 713
(2d Cir. 1966)................................................................  14

O ’Bannon v. Union Pacific R.R. Co.,
No. 98-2279, 1999 WL 47730
(8th Cir. Jan. 2, 1999)...................................................  16

Osborne v. United States, 351 F.2d 111
(8th Cir. 1965)...............................................................  14

Patterson v. McLean Credit Union,
491 U.S. 164(1989).........................................................5

Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)........................................................ 2

Reno v. Bossier Parish Sch. Bd.,
520 U.S. 471 (1997)...............................................passim

Reno v. Bossier Parish Sch. Bd.,
517 U.S. 1154(1996)...................................................  17

Rogers v. Lodge, 458 U.S. 613 (1982)............................... 9

Solomon v. Liberty County Comm’rs,
166 F.3d 1135 (11th Cir. 1999)................................... 17

South Carolina v. Katzenbach,
383 U.S. 301 (1966)........................   8

TABLE OF AUTHORITIES -  Continued
Page

CASES (cont’d):



V

Thornburg v. Gingles, 478 U.S. 30 (1986)....................... 17

United States v. 3,788.16 Acres o f Land,
439 F.2d 291 (8th Cir. 1971).......................................14

United States v. Albertini, 472 U.S. 675 (1985)................ 3

United States v. Menasche, 348 U.S. 528 (1955)............... 3

United States v. Mulderig, 120 F.3d 534
(5th Cir. 1997)............................................................... 17

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

Waid v. Merrill Area Public Schools,
130 F.3d 1268 (7th Cir. 1997)............................... 16-17

Washington v. Davis, 426 U.S. 229 (1976).........................9

Western Union Tel. Co. v. Foster, 247 U.S.
105 (1918)....................................................................... 9

Tick Wo v. Hopkins, 118 U.S. 356 (1886).......................8-9

York v. American Tel. & Tel. Co., 95 F.3d 948
(10th Cir. 1996)............................................................  17

STATUTORY PROVISIONS:

Voting Rights Act of 1965,
42 U.S.C. § 1973c................................................. passim

TABLE OF AUTHORITIES -  Continued
Page

CASES (cont’d):



VI

Page
STATUTORY PROVISIONS (corn’d):

TABLE OF AUTHORITIES -  Continued

Voting Rights Act of 1970,
42 U.S.C. § 1973aa........................................................8

La. R. S. 18:532.l.H .(2)......................................................13

La. R. S. 18:532.1(A)............................................ ..............12

LEGISLATIVE MATERIALS:

S. Rep. No. 97-417 (1982)................................................... 8



INTRODUCTION

This Court’s remand in Bossier 1 1 called upon the D.C. 
District Court to address a legal issue under the Voting Rights 
Act of 1965: “[W]hether the § 5 purpose inquiry ever
extends beyond the search for retrogressive intent.” App. 
45a. The D.C. District Court was to consider evidence that 
the Bossier Parish School Board (“Board” or “Appellee”) 
violated an ongoing injunction in its federal court 
desegregation case, App. 51a, as well as facts the court 
apparently had excluded concerning the plan’s dilutive effect 
on minority voting strength, App. 50a.

For a party seeking an affirmance, the Board advocates an 
unusually different opinion than the court below issued. The 
Board now seeks a legal standard it claims was not applied on 
remand: That preclearance of a voting change should be 
denied under § 5 only if the change has a “retrogressive 
purpose” to abridge or deny the right to vote on account of 
race. The Board’s argument that “purpose” prohibits only 
voting changes adopted with the “purpose to retrogress” 
twists the statutory language and this Court’s cases 
interpreting § 5 beyond recognition. This Court consistently 
has barred preclearance of voting changes adopted with any 
purpose that is racially discriminatory and has applied the 
comprehensive factual inquiry of Village o f Arlington Heights 
v. Metropolitan Housing Development Corp., 429 U.S. 252 
(1977), in making that determination.

The Board next asks this Court for new fact findings that 
are contrary to many of the findings and the parties’ 
stipulations. The reason is apparent: If any court ever
applied the Arlington Heights standard to the facts actually 
found and stipulated, as Judge Gladys Kessler has done twice, 
the Board will lose this case. This Court should reject out of 
hand the Board’s invitation to make new fact findings in the 1

1 Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997), 
Appendix to the Jurisdictional Statement (“App.”) at 29a-77a.



2

course of resolving the legal issue presented on this appeal. 2

I. SECTION 5 PROHIBITS PRECLEARANCE OF
VOTING CHANGES ADOPTED WITH ANY
RACIALLY DISCRIMINATORY PURPOSE.

Voting changes should be denied preclearance if they have 
the effect of retrogression or if purpose to discriminate on the 
basis of race or color is identified through the analysis 
outlined in Arlington Heights.

A. The Statute Itself. The plain language of § 5 
makes clear that the “purpose” and “effect” prongs provide 
different protections. Congress provided that if a covered 
jurisdiction can demonstrate that a voting change “does not 
have the purpose and will not have the effect of denying or 
abridging the right to vote on account of race or color,” it 
should be granted preclearance. 42 U.S.C. § 1973c. The 
“purpose” inquiry focuses on the contemporary motivation 
for the proposed voting change: “does not have the
purpose.” Congress’ use of the present tense is consistent 
with the principle that analysis of discriminatory intent focuses 
on the state of mind of the actor at the time of the act. See, 
e.g., McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 
359-60 (1995); Price Waterhouse v. Hopkins, 490 U.S. 228, 
250, 252 (1989); id. at 260-61 (White, J., concurring), id. at 
261 (O’Connor, J., concurring). The “effect” analysis is 
different. It calls for a prediction of the impact of the voting 
change in the future: “will not have the effect.” For a voting 
change such as a districting plan, “effect” is measured by 
comparing the impact of the present plan to the projected 
impact of the proposed plan. See Beer v. United States, 425 
U.S. 130(1976).

Appellee is incorrect that Beer construed the words 
“denying or abridging the right to vote on account of race or 
color” to limit both the “purpose” and “effect” inquiries to 
retrogression. Appellee’s Brief (“Bd. Br.”) at 17-19. The

2 Appellee’s “mootness” argument was addressed in the Brief 
of George Price, et al„ Opposing Motion to Dismiss or Affirm at 2- 
4.



Beer Court made clear that retrogression is inherent in the 
word “effect”:

It is thus apparent that a legislative reapportionment that 
enhances the position of racial minorities with respect to 
their effective exercise of the electoral franchise can 
hardly have the “effect” of diluting or abridging the right 
to vote on account of race within the meaning of § 5.

425 U.S. at 141. The Court in Beer harmonized its holding 
with City o f Richmond v. United States, 422 U.S. 358 (1975), 
stating that Richmond “decided when a change with an 
adverse impact on previous Negro voting power met the 
effect’ standard of § 5.” 425 U.S. at 139 n .ll. Because the 

voting change in Beer was ameliorative with respect to the 
voting power of African-Americans, it had no “effect” 
prohibited by § 5. See Bossier I, App. 46a (“we have adhered 
to the view that the only ‘effect’ that violates § 5 is a 
retrogressive one,” citing Beer, 425 U.S. at 141 and City o f 
Lockhart v. United States, 460 U.S. 125, 134(1983)).

If “purpose” were limited to retrogressive intent, purpose 
would be virtually read out of § 5. It is difficult to imagine 
public officials having the “purpose” to retrogress in adopting 
a voting change which cannot be projected to result in 
retrogression. Yet under Appellee’s submission, that would 
be the universe of plans subject only to the “purpose” prong 
of § 5. An actually retrogressive voting change would be 
covered by the “effect” prong, with the “purpose” prong 
adding no evident protection. Section 5 should be read in a 
way that satisfies the Court’s “duty to give effect, if possible, 
to every clause and word of a statute.” United States v. 
Menasche, 348 U.S. 528, 538-39 (1955). See Heckler v. 
Chaney, 470 U.S. 821, 829 (1985); United States v. 
Albertini, A ll  U.S. 675, 680-82 (1985).

Limiting “purpose” to “purpose to retrogress” also fails to 
square with the Court’s holding in Bossier I  that, in 
conducting the purpose inquiry, “courts should look to our 
decision in Arlington Heights for guidance.” App. 48a. 
While the effect of the official action is a factor encompassed 
in the Arlington Heights inquiry, it is not dispositive.

3



4

Arlington Heights counsels that a court weighing 
discriminatory intent also should examine the historical 
context, sequence of events leading to the decision, 
contemporaneous statements of public officials, and other 
probative evidence. 429 U.S. at 267-68. If “purpose” were 
limited to intent to retrogress, where a voting change is not 
retrogressive it is difficult to imagine why the inquiry would 
proceed beyond consideration of the “effect.”

Limiting application of § 5 only to retrogressive voting 
changes also would create vexing issues when changes are 
considered that do not lend themselves readily to the now 
well-developed vote dilution or other mathematical analyses. 
Section 5 covers many voting changes other than 
reapportionment, including procedural and residency 
requirements,3 and leave policies for campaigning 
employees.4 The Court should decline to adopt a rule of law 
ill-suited to protect against discrimination in the full range of 
voting practices covered by § 5.

Limitation of purpose to “purpose to retrogress” would 
leave minority voters in jurisdictions like Bossier Parish 
vulnerable to some forms of intentional racial discrimination. 
Nothing in § 5 suggests that some category of covered voting 
changes enacted by covered jurisdictions should evade any 
meaningful § 5 review because the mathematical possibilities 
for retrogression are absent or obscure. The Board’s 
proposed plan should not be exempted from full Arlington 
Heights scrutiny for discriminatory purpose solely because it 
is impossible to retrogress from zero.

B. This Court’s § 5 Decisions. Appellee claims that 
“stare decisis principles demand fidelity to Beer and 
Lockhart,” Bd. Br. at 23 n.17. Appellants agree. Stare

3 See Hadnott v. Amos, 394 U.S. 358, 365-66 (1969); Allen 
v. State Bd. of Elections, 393 U.S. 544, 551 (1969) (discussing 
consolidated case, Whitley v. Williams); City of Rome v. United 
States, 446 U.S. 156, 160-61 (1980).

4 Dougherty County Bd. ofEduc. v. White, 439 U.S. 32, 38- 
43 (1978).



5

decisis has "special force" in cases involving statutory 
interpretation. See Cedar Rapids Community Sch. Dist. v. 
Garret F„ 119 S. Ct. 992, 999 n.10 (1999), citing Patterson 
v. McLean Credit Union, 491 U.S. 164, 172-73 (1989). See 
also Holder v. Hall, 512 U.S. 874, 886 (1994) (O’Connor, I ,  
concurring in part and concurring in the judgment). The 
application of principles of stare decisis should not be limited 
here, however, to Beer and Lockhart.

1. At oral argument of Bossier I, counsel for the Board 
cited Richmond and City o f Pleasant Grove v. United States, 
479 U.S. 462 (1987), for the proposition that “purpose” 
under § 5 is not limited to purpose to retrogress. Transcript 
of Oral Argument, 1996 WL 718469, at 30-31. He was 
correct.

Richmond would not have resulted in a remand for farther 
development of the facts concerning discriminatory purpose if 
“purpose” had been limited to intent to retrogress. Although 
Appellee claims that the annexation at issue was 
“retrogressive,” Bd. Br. at 30, the Richmond Court ruled that 
the annexation did not have a prohibited “effect” because the 
post-annexation election system fairly recognized minorities’ 
political potential in the expanded jurisdiction. The Board 
claims that “[t]he C ourt. . . remanded the case to insure that 
the motivation behind the annexation was not to cause such 
obvious retrogression in black voting strength, but was done 
for ‘verifiable, legitimate reasons.’” Bd. Br. at 31, quoting 
Richmond, 422 U.S. at 375 (emphasis in original). The word 
“retrogression” is nowhere to be found on the cited page nor 
anywhere in Richmond’s remand directive.

The purpose inquiry in Richmond was not preempted by a 
finding that the voting change lacked a retrogressive effect:

An official action, whether an annexation or otherwise, 
taken for the purpose of discriminating against Negroes 
on account of their race has no legitimacy at all under our 
Constitution or under the statute. Section 5 forbids 
voting changes taken with the purpose of denying the vote 
on the grounds of race or color. . . .  An annexation



6

proved to be of this kind and not proved to have a 
justifiable basis is forbidden by § 5, whatever its actual 
effect may have been or may be.

422 U.S. at 378-79.

In Pleasant Grove, decided after Beer, the Court held that 
proposed annexations of land that was vacant or inhabited by 
a few whites did not have a present effect on black voters in 
the city, since there were no black voters in the city. 479 U.S. 
at 470-71. Despite that, the Court held that the city had failed 
to carry its burden of demonstrating a lack of discriminatory 
purpose within the meaning of § 5. Id. at 472. The Court 
made clear that “purpose” is not limited to present 
circumstances and can contemplate future effects, see Bd. Br. 
at 28-29, but the analysis went further. The Court found the 
city’s argument “also incorrect insofar as it implies that a 
covered jurisdiction can short-circuit a purpose inquiry under 
§ 5 by arguing that the intended result was not impermissible 
under an objective effects inquiry. . . . We rejected such 
reasoning in City o f Richmond. . . .” 479 U.S. at 471 n .ll. 
Pleasant Grove would have resulted in a reversal and 
preclearance of the annexations if the only purpose 
comprehended by § 5 is purpose to retrogress, since no 
retrogression could have been involved.

2. The Appellee dismisses Busbee v. Smith, 549 F. Supp. 
494 (D.D.C. 1982), a ff’d, 459 U.S. 1166 (1983), arguing that 
“the primary flaw in Busbee was that the submitting 
jurisdiction had ‘split a cohesive black community in Districts 
4 and 5,’” Bd. Br. at 30 n.23, quoting 549 F. Supp. at 498- 
99. The D.C. District Court in Busbee found that the overall 
“plan does not have a discriminatory effect,” since the one 
majority black district in the previous districting plan 
remained in the new plan, and gained a few percentage points 
in black population. 549 F. Supp. at 516, citing Beer, 425 
U.S. at 141. The splitting of the cohesive black communities 
in Busbee was highly relevant to the finding of discriminatory 
purpose. Id. at 517. This Court’s summary affirmance can 
mean something other than agreement with the finding of 
discriminatory purpose, not limited to retrogressive intent,



7

only through a chain of logic something like this: This Court 
rejected the D.C. District Court’s conclusion of no 
retrogressive effect; it adopted a definition of retrogression, at 
odds with Beer, that encompassed splitting of cohesive black 
communities even where one black majority district existed in 
the old and in the proposed plans; and it silently affirmed on 
that basis. It is inconceivable that the Court did this rather 
than accept the thorough and careful findings that the 
districting plan was infected with racial animus.

3. Beer itself took care to explain that “an ameliorative 
new legislative apportionment cannot violate § 5 unless the 
new apportionment itself so discriminates on the basis of race 
or color as to violate the Constitution.” 425 U.S. at 141. 
Appellee would have those words mean only that some 
separate constitutional case can be brought to attack a 
discriminatory but ameliorative voting change. Bd. Br. at 33. 
The Court, however, addressed whether an ameliorative 
apportionment can “violate § 5, ” because it discriminates. 
Accord Richmond, 422 U.S. at 378-79 (a discriminatory 
voting change “has no legitimacy at all under our Constitution 
or under the statute” and “is forbidden by § 5, whatever its 
actual effect may have been or may be”) (emphasis added)).

Section IV of Appellee’s Brief addresses musings “raised by 
dicta in Beer,” Bd. Br. at 33, not by the questions presented 
in the Jurisdictional Statements, decided by the court below, 
or argued by the Appellee during the long course of these 
proceedings. Appellee embarks on this excursion because it 
needs to find some meaning for the language in Beer other 
than the apparent one: That § 5 prohibits preclearance of 
voting changes adopted with a discriminatory intent that is 
not retrogressive. Section IV of Appellee’s Brief suggests the 
morass of legal issues that awaits if the Court restricts 
“purpose” to “purpose to retrogress.”

C. The Principle Prohibiting Discriminatory 
Governmental Action. Appellee makes much of the 
statement in Beer that “the purpose of § 5 has always been to 
insure that no voting-procedure changes would be made that 
would lead to a retrogression in the position of racial



8

minorities with respect to their effective exercise of the 
electoral franchise.” 425 U.S. at 141, quoted in Bd. Br. at 17 
n.13, 20. This statement stands alongside powerful assertions 
that “the basic purpose of Congress in enacting the Voting 
Rights Act was ‘to rid the country of racial discrimination in 
voting,’” and that “[s]ection 5 was intended to play an 
important role in achieving that goal.” Beer, 425 U.S. at 140, 
quoting South Carolina v. Katzenbach, 383 U.S. 301, 315 
(1966). Accord Bossier I, App. 33a (“[t]he Voting Rights 
Act of 1965. . .was enacted by Congress in 1964 to ‘attac[k] 
the blight of voting discrimination’ across the Nation,” 
quoting S. Rep. No. 97-417, at 4 (1982). Appellee suggests 
that § 5 reaches only voting changes adopted with the “intent 
to increase discrimination against minorities,” Bd. Br. at 18- 
19, as if there is some acceptable level of racial discrimination 
in official acts regarding voting. That is contrary to the 
purpose and reach of § 5.

In the 1970 Voting Rights Act, Congress banned the use of 
any “test or device” as a prerequisite for voting or 
registration, 42 U.S.C. § 1973aa, thus stamping out some of 
the most flagrant means by which African-Americans had 
been denied the opportunity to vote at all. By requiring in § 5 
that jurisdictions that had engaged in the most widespread 
voting discrimination preclear changes in voting practices and 
procedures, Congress did “freeze” voting practices. There is 
no reason to think, however, that Congress accepted that 
status quo as non-discriminatory as long as things got no 
worse for African-American voters.

It is unsurprising that Congress would bar preclearance of 
voting changes that are motivated by discriminatory animus, 
even voting changes that otherwise are valid. Anti- 
discrimination statutes — and the constitutional amendments 
they enforce — routinely prohibit conduct that would be legal 
and appropriate if motivated by legitimate goals. See Yick Wo 
v. Hopkins, 118 U.S. 356 (1886) (striking down San 
Francisco laundry permit ordinance deliberately enforced to 
prevent Chinese from operating laundries); Gomillion v. 
Lightfoot, 364 U.S. 339, 341 (1960) (reinstating claim that



9

Alabama legislature’s change in boundaries of City of 
Tuskegee from a square to a “strangely irregular twenty- 
eight-sided figure” was intended to deny Equal Protection to 
excluded African-Americans). A municipality has a legitimate 
interest in regulating laundries to avoid the danger of fire. 
States have authority to draw municipal boundaries. But 
where such acts are designed to exclude persons on the basis 
of race or nationality, even where the pattern of exclusion is 
stark “it was the presumed racial purpose of state action, not 
its stark manifestation, that was the constitutional violation.” 
Miller v. Johnson, 515 U.S. 900, 913 (1995). Accord Rogers 
v. Lodge, 458 U.S. 613, 617 (1982) (‘“the invidious quality of 
a law claimed to be racially discriminatory must ultimately be 
traced to a racially discriminatory purpose,’” quoting 
Washington v. Davis, 426 U.S. 229, 240 (1976)).

Federal courts generally refrain from reviewing the merits of 
legislative and administrative decisions because they are owed 
deference in the effort to balance competing considerations. 
Arlington Heights, 429 U.S. at 265. But “[wjhen there is a 
proof that a discriminatory purpose has been a motivating 
factor in the decision, this judicial deference is no longer 
justified.” Id. at 265-66. As authority for the proposition 
that even a single governmental act, lacking a pattern of 
official discrimination, is not immune from scrutiny for 
discriminatory intent, Justice Powell cited the page in 
Richmond that explained the reason for the remand to 
consider discriminatory purpose under § 5. Id. at 266 n.14, 
citing 422 U.S. at 378. Because “[ajcts generally lawful may 
become unlawful when done to accomplish an unlawful end,” 
Western Union Tel. Co. v. Foster, 247 U.S. 105, 114 (1918), 
quoted in Richmond, 422 U.S. at 379, preclearance should be 
denied to any voting change adopted with a purpose to 
discriminate, as identified by the Arlington Heights analysis.



10

II. WHEN THE CORRECT LEGAL STANDARD IS 
APPLIED TO THE STIPULATIONS AND THE 
FINDINGS OF FACT, PRECLEARANCE 
SHOULD BE DENIED.

The D.C. District Court held that “[t]he question we will 
answer. . . is whether the record disproves Bossier Parish’s 
retrogressive intent in adopting the Jury plan.” App. 4a 
(emphasis added). Judge Kessler, in dissent, argued that her 
“colleagues have limited their § 5 purpose inquiry to a search 
for intent to retrogress,” App. 13a, which the majority did 
not deny.

What Appellee characterizes as a “fact finding” by the D.C. 
District Court that the Board’s redistricting plan was not 
motivated by discriminatory intent is a confused recitation of 
legal standards and questions presented in the opinion below, 
that is further confounded in Appellee’s presentation. 
Contrary to Appellee’s submission, the D.C. District Court 
did not make a clear finding on the record before it that there 
was no intent to discriminate in any way, including any intent 
to retrogress. Bd. Br. at 12. The D.C. District Court made 
two general statements about the facts concerning intent and 
whether they demonstrate only a purpose to retrogress or a 
broader discriminatory purpose:

First, it said that “the record will not support a conclusion 
that extends beyond the presence or absence of retrogressive 
intent.” App. 3a. This statement is inscrutable. It is not a 
finding one way or the other on whether there is evidence of 
intent beyond intent to retrogress. It seems to assume that all 
of the record evidence concerning the Board’s purpose goes 
to the issue of intent to retrogress, which makes no sense with 
respect to a voting plan that is not retrogressive.

Second, the court stated that it could “imagine a set of facts 
that would establish a ‘non-retrogressive, but nevertheless 
discriminatory, purpose,’ but those imagined facts are not 
present here.” App. 3a-4a, quoting Bossier I, App. 46a. The 
court did not describe what facts it could “imagine.” A 
“finding” that the facts in this case do not measure up to a



11

standard set by unrevealed “imagined” facts cannot be called a 
fact finding to which this Court owes deference.

The case now is back before this Court for resolution of an 
issue of law concerning the meaning of “purpose” in § 5. The 
correct legal principle can be applied by this Court to the 
record because it is largely stipulated, App. 145a-232a, and 
was not reopened on the last remand. Application of the 
proper legal principle to the stipulations and fact findings 
warrants reversal and rejection of the Board’s districting plan. 
Appellee’s efforts to overreach that record are inappropriate 
here and inaccurate, as demonstrated by the examples that 
follow.

A. The NAACP Plan and Precinct-Splitting. The
Board attempts to sow confusion when it asserts that it was 
faced with a choice between the NAACP plan and the Police 
Jury plan in late 1992 and had no choice but to adopt the Jury 
plan because the NAACP plan split precincts and thus was a 
facial violation of state law. Bd. Br. at 2-4, 20-21, 44-48. 
These assertions rest on a fundamental misunderstanding of 
the NAACP plan.

The NAACP plan was never offered as a “take it or leave 
it” proposal. Mr. Price presented it to prompt examination of 
whether majority-black districts could be part of the overall 
districting plan. Indeed, Mr. Price originally provided a 
drawing of only two election districts, to illustrate the point:

The NAACP did not draw a complete plan because they 
were most interested in demonstrating ways to more fairly 
reflect black voting strength and did not want to raise 
issues as to the other districts: the School Board was free 
to draw them in any way they chose.

App. 177a, f  99. Mr. Price was rebuffed not because the two 
districts would require precincts to be split, but because a 
Board official told him “he would need to come up with a 
plan that contained all twelve districts.” Id. The Board never 
undertook what Mr. Price requested: Incorporation in the



Board’s own planning of an effort to unify black communities 
into election districts.3 * 5

The configuration of precincts was a “barrier” to the 
drawing of majority African-American districts only because 
the Board allowed it to be. “[T]he parties have stipulated that 
school boards redistricting around the time . . .  were Tree to 
request precinct changes from the Police Jury necessary to 
accomplish their districting plans.’” App. 84a, quoting 
Stipulation f  23 (App. 151a). The Police Jury has power, 
subject to provisions of Louisiana law, “to change the 
configuration, boundaries, or designation of an election 
precinct.” La. R.S. 18:532.1(A) (J.A. 385).

The D.C. District Court found that “[wjhen the School 
Board began the redistricting process, it likely anticipated the 
necessity of splitting some precincts. It hired the Police 
Jury’s cartographer with the expectation that he would spend 
a substantial amount of time on the project.” App. 108a. 
Indeed, the Board’s cartographer gave precinct maps to the 
Board members, telling them that “they would have to work 
with the Police Jury to alter the precinct lines.” App. 174a, 
f  89. When the NAACP plan was presented and “summarily 
dismissed” by the Parish District Attorney and the Board’s 
cartographer for the stated reason that it “crossed existing 
precinct lines, and therefore violated state law,” they “were 
aware of the option of obtaining precinct line changes from 
the police jury.” App. 179a, f  102.

The D.C. District Court was correct that the Board could 
adopt a plan with precincts different from the Police Jury plan 
and work out an acceptable accommodation under Louisiana 
law.6 First, state law provided a window from April 1, 1991

12

3 Appellees are incorrect that the NAACP plan “was drawn 
by William Cooper for the exclusive purpose of ‘creat[ing] two
majority black districts,’” Bd. Br. at 3 (quoting Mr. Cooper’s 
testimony about a different plan at J.A. 371), since Mr. Cooper did
not draw the NAACP plan at all. See App. 83a; 177a, j[ 98.

6 The Board claims that “Appellants’ contention that such 
precinct splits are ‘common’ is . . . misleading.” Bd. Br. at 46.



13

to May 15, 1991 within which the Police Jury could divide 
precincts in order to meet applicable state and federal 
guidelines in the creation of its reapportionment plan. La. 
R.S. 18:532.l.H .(2) (J.A. 389). The Police Jury developed 
its plan, which created new precincts, in this window. See 
App. 162a-165a, f l  58-63.' Had the Board begun its 
redistricting earlier, it could have worked with the Police Jury 
to develop precincts during the 1991 window that would 
accommodate a different plan. Second, the Board is incorrect 
that it was legally impossible for the Board, after missing the 
1991 precinct change window, to adopt a plan that would 
require Police Jury approval of precinct changes because the 
Board had to act before December 31, 1992 but the Police 
Jury next could consolidate precincts only after January 1, 
1993. Bd. Br. at 3. The Board could have adopted a plan 
before December 31, 1992, as it did, and asked the Police 
Jury actually to accomplish the precinct changes necessary 
after January 1, 1993. There was no School Board election 
until 1994, so the Board and Police Jury had ample time to 
work together. *

The D.C. District Court cited witness testimony that precinct splits 
were “quite common,” App. 107a, and that the witness had 
“routinely drawn redistricting plans that split precincts,” App. 84a. 
The parties stipulated that two other parish school boards 
accomplished their recent redistricting by requesting precinct 
changes from their police juries; the Board’s cartographer testified 
that the practice “is not unheard of, it has been done in other 
places.” App. 151a, 123. Appellee offers no citation, or record 
support, for the proposition that the Board and Police Jury “had 
never split precinct lines.” Bd. Br. at 3 n.2.

If the Board is trying to imply that the Police Jury could not 
split existing precincts even to create its own redistricting plan, Bd. 
Br. at 3 n.2, that is incorrect, since “20 new precincts were created 
when the 1991 Police Jury plan was drawn,” App. 167a, 170. The 
parties stipulated that “[pjrecinct realignments are a normal 
practice within Bossier Parish, occurring every three or four years. 
Bossier Parish has made a number of such precinct realignments 
within the last ten years.” App. 155a, 138. At the time of trial, the 
Board’s cartographer was working with the Police Jury on precinct 
consolidations. J.A. 273-275 (Joiner).



14

Finally, it is not the position of appellants that it was a 
violation of any law for the Board not to adopt the NAACP 
plan. The Attorney General’s letter denying preclearance 
explained that “while the School Board was not required to 
‘adopt any particular plan, it is not free to adopt a plan that 
unnecessarily limits the opportunity for minority voters to 
elect their candidates of choice.’” App. 86a, quoting App. 
235a. The NAACP plan provided the context in which the 
Board addressed the question of drawing majority-black 
districts. When confronted with that option, the Board ran to 
a plan it previously had rejected and “never approached the 
Police Jury to request precinct changes.” App. 84a. The 
Board never asked the cartographer “to approach the Police 
Jury to request that the precinct lines be redrawn to enable the 
creation of majority-black School Board districts.” App. 
188a, 1128.

B. Traditional Districting Principles. Appellee 
argues that the NAACP plan subordinates traditional 
redistricting principles “because it is not compact,” Bd. Br. at 
3 (footnote omitted), and disavows a stipulation that a 
reasonably compact majority-black district could be drawn in 
Bossier City, App. 154a, f  36.8 This new argument ignores 
the parties’ further stipulation that the majority-black district 
in Bossier City in the Cooper plans “is an acceptable

8 Appellee does not attempt to demonstrate that this case 
presents the “exceptional circumstances” or “manifest injustice” 
which must be shown to overturn stipulations, particularly after 
judgment. See, e.g., Feazell v. Tropicana Prods., Inc., 819 F.2d 
1036, 1040 (11th Cir. 1987) (“[mjatters stipulated to in a pretrial 
order are binding on the parties unless modified and normally 
cannot be objected to on appeal”); Cooperative Servs., Inc. v. Dep’t 
of Housing and Urban Dev., 562 F.2d 1292, 1294 (D.C. Cir. 
1977); United States v. 3,788.16 Acres of Land, 439 F.2d 291, 
294-95 (8th Cir. 1971). Appellee’s failure to seek relief in the trial 
court defeats its effort to escape the stipulations here. See Jauregui 
v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988); Mull v. 
Ford Motor Co., 368 F.2d 713, 716 (2d Cir. 1966); Osborne v. 
United States, 351 F.2d 111, 120 (8th Cir. 1965).



configuration from the standpoint of district shape.” App. 
194a, f  150.9

Moreover, there is no district court finding in Knight v. 
McKeithen that it is impossible to draw a reasonably compact 
majority-black election district in Bossier City, as Appellee 
contends. Bd. Br. at 4 n.3. To the contrary, the court in that 
separate litigation stated from the bench that it was “not 
comfortable” with the first Cooper plan, but had “not had 
sufficient time or sufficient evidence presented to convince 
[it] that some other plan, which complies with Section 2 of 
the Voting Rights Act, cannot be drawn that will recognize 
compactness .../■■ J.A. 51.

The Board fails to disclose that, under the statistical test for 
compactness used by the Board’s own cartographer, at least 
four of the 12 election districts in the Jury plan fail. App. 
191a, 1 139.10 The alternative configurations drawn by Mr. 
Cooper for a second minority district in the relatively sparsely 
populated northern part of Bossier Parish are “virtually 
identical in length to the School Board’s proposed district 
configuration and cover[ ] 40 percent less land area.” App. 
194a, f  149.

Appellee’s efforts now to have this Court hold that 
incumbency was not a problem in the Police Jury plan, Bd. 
Br. at 48, fly in the face of the D.C. District Court’s finding 
that “[t]he Police Jury plan wreaked havoc with the 
incumbencies of four of the School Board members. . . .” 
App. 106a. Two pairs of Board incumbents were pitted * *

15

9 The first Cooper plan was a proposed interim election plan 
that the Price Appellants provided to the court in Knight v. 
McKeithen, No. 94-848-A2 (M.D. La.), as an option when the 
Board lacked a precleared election plan for the scheduled 1994 
elections. App. 193a, ][ 147. The Board proposed that the Police 
Jury plan be ordered instead; the court declined to order either. J.A. 
51-52.

*0 The Board also offers no response to the uncontested fact 
that the Police Jury plan exceeds the one-person-one-vote standard 
in Louisiana law. See App. 181 a-182a, U 109.



16

against each other and, unsurprisingly, in each pair one 
member had decided not to run by the time of the testimony 
below. The citations in Appellee’s Brief do not support any 
inference that the Police Jury plan met the Board’s 
incumbency concerns.

The Board derides “appellants’ newly-minted principle” that 
school board members sought location of schools in their 
election districts. Bd. Br. at 48. In fact, the parties stipulated 
the “School Board members . . .  are typically concerned with 
having a public school or schools in each district.” App. 
151a, 1 24.

It is characteristic of the Board’s treatment of the facts that 
it notes the support of the one black Police Juror — Jerome 
Darby -  for the Jury plan, Bd. Br. at 44, as if to endorse its 
fairness to the black community. Mr. Darby testified below 
that he “was deliberately misled” with regard to the possibility 
of drawing majority-minority election districts in the parish, 
and that “[i]f [he] had known then what [he] know[s] now, 
[he] would have voted against the Police Jury plan.” J.A. 
135-36. The parties have stipulated that this testimony is 
true. App. 165a, f  64.

C. Election Results. The Board seeks “judicial 
notice” of two sets of Board election results under the Police 
Jury plan. The “1994 election” results11 were available when 
the Court remanded this case in 1997, but the Board rejected 
the invitation to supplement the record. App. la, n.l. The D.
C. District Court properly refused to take notice of the 
election results when the Board raised them in a reply brief, 
concluding that if it were to consider the election results, it 
“would need more information about them.” Id. Where a 
district court refuses to take judicial notice of an adjudicative 
fact, the appellate court should reject that decision only upon 
a showing of abuse of discretion. See O’Bannon v. Union 
Pacific R.R. Co., No. 98-2279, 1999 WL 47730 (8th Cir. Jan. 
2, 1999); Waid v. Merrill Area Public Schools, 130 F.3d

11 What the board calls “1994” elections, Bd. Br. at 5, 
apparently are those of March and April 1996.



17

1268, 1272 (7th Cir. 1997); United States v. Mulderig, 120 
F.3d 534, 542 (5th Cir. 1997); York v. American Tel. & Tel 
Co., 95 F.3d 948, 958 (10th Cir. 1996).

The court below did not abuse its discretion, since the 
election results had not been subjected to the expert analysis 
of racial polarization and voter turnout that the parties 
conducted regarding previous elections. There also was no 
exploration of special circumstances that bear on their 
probative value, including the impact of the pending litigation. 
See Thornburg v. Gingles, 478 U.S. 30, 76 (1986) (district 
court properly considered whether “pendency of this very 
litigation [might have] worked a one-time advantage for black 
candidates in the form of unusual organized political support 
by white leaders concerned to forestall single-member 
districting”); Solomon v. Liberty County Comm’rs, 166 F.3d 
1135, 1143-46 (11th Cir. 1999) (district court’s reliance on 
electoral success of minority candidate during pendency of 
lawsuit to support finding of no vote dilution was clear error); 
see also Clark v. Calhoun County, 21 F.3d 92, 96 (5th Cir. 
1994); City o f Carrollton Branch ofNAACP  v. Stallings, 829 
F.2d 1547, 1560 (11th Cir. 1987). The 1998 elections 
likewise are limited in probative value because they occurred 
while appellants were seeking this Court’s review of the D.C. 
District Court decision.

On the first appeal to this Court, the Board tried to 
introduce the 1996 election results through a motion to 
supplement the record, which this Court denied. Reno v. 
Bossier Parish Sch. Bd., 517 U.S. 1154 (1996). On this 
appeal, the Board does not attempt a motion but simply 
asserts the election results as if they were part of the record 
and considered below (which they were not) and as if election 
of African-Americans proves that the African-American 
community has elected its candidates of choice (which it does 
not). See Gingles, 478 U.S. at 76 n.27. The Board’s 
strategic bypass of the trial court, where a factual inquiry 
could be fully and fairly accomplished, should not be 
rewarded with judicial notice of the one-sided presentation in 
its brief.



18

D. Resistance to Desegregation. The D.C. District 
Court found that the historical background of the adoption of 
the Police Jury plan “provides powerful support for the 
proposition that the Bossier Parish School Board in fact 
resisted adopting a redistricting plan that would have created 
majority black districts.” App. 7a. The intent proved by the 
Board’s resistance to school desegregation “is a tenacious 
determination to maintain the status quo.” Id.*2

The Board now seeks to overturn what it calls “appellants’ 
suggestion” that the Board violated the desegregation decree 
when it disbanded a bi-racial committee. Bd. Br. at 49. In 
fact, it is a finding of fact that it asks this Court to reject:

Part of [the] history is the school board’s resistance to 
court-ordered desegregation, and particularly its failure 
to comply with the order of the United States District 
Court in Lemon v. Bossier Parish School Board, 240 F. 
Supp. 709 (W.D. La. 1965), aff’d, 370 F.2d 847 (5th 
Cir. 1967), cert, denied, 388 U.S. 911 (1967), that it 
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.” Stip. 
1111 .

App. 7a.

The Board also concludes that “[t]here is no evidence that 
the school’s alleged racial imbalance is attributable to the 
Board’s conduct.” Bd. Br. at 49. The Board provides no 
basis to infer that the increasing number of majority-black 
schools, to which the parties have stipulated (App. 218a, 
1241), is due to “demographic factors over which [the 
Board] has no control. See Freeman v. Pitts, 503 U.S. 467, 
494 (1992).” Bd. Br. at 49. Freeman teaches that a school

12 The Board questions whether “the status quo ” refers to the 
Police Jury plan or the 1980’s Board plan. Bd. Br. at 16 n.12. In 
the context of the history of resistance to desegregation, the status 
quo is the ongoing Board reluctance to address the interests of the 
African-American community.



19

district seeking unitary status has the burden of 
demonstrating, among other things, “whether the vestiges of 
past discrimination ha[ve] been eliminated to the extent 
practicable.” 503 U.S. at 492, quoting Board o f Educ. o f 
Oklahoma City v. Dowell, 498 U.S. 237, 249-50 (1991). The 
Board sought unitary status in 1979 and was denied. App. 
217a, 1239. It accordingly has the ongoing affirmative 
obligation to “take whatever steps might be necessary to 
convert to a unitary system in which racial discrimination 
would be eliminated root and branch.” Green v. School Bd. 
o f New Kent County, 391 U.S. 430, 437-38 (1968). “[A] 
critical beginning point” in the analysis when the board next 
moves for unitary status will be “the degree of racial
imbalance in the school district___ ” Missouri v. Jenkins,
515 U.S. 70, 87 (1995), quoting Freeman, 503 U.S. at 474. 
How the Board can show that racially identifiable black 
schools result from demographic patterns while it claims that 
there are inadequate concentrations of African-American 
voters to form compact majority-black election districts is an 
interesting conundrum, but one that will be faced only when 
the Board again seeks unitary status and is put to its proof.



20

CONCLUSION

This Court should reverse the judgment below.

Barbara  R. Arnwine 
Thomas J. Henderson 
Edward  Still 

Law yers’ Committee for 
Civil Rights Under Law  
1450 G Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 662-8600

* Counsel of Record

Respectfully submitted,
Patricia A. Brannan* 
Jo h n W. Borkowski 

H ogan  & H a r t so n L.L.P. 
555 Thirteenth Street, N.W 
Washington, D.C. 20004 
(202) 637-8686

Counsel for Appellants 
George Price, et al.