Lemon v. Bossier Parish School Board Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 30447

URA BERNARD LEMON, et al..

Plaintiffs-Appellants, 

UNITED STATES OF AMERICA

Plaintiff-intervenor,

v.

BOSSIER PARISH SCHOOL BOARD, et al.,

De fendants-Appellees.

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On Appeal From The United States District Court For The 
Western District Of Louisiana, Shreveport Division

BRIEF FOR APPELLANTS

JACK GREENBERG 
NORMAN J. CHACHKIN 
MARGRETT FORD

10 Columbus Circle 
New York, New York

JESSE N. STONE
1116 Pierre Avenue 
Shreveport, Louisiana

A. P. TUREAUD
1821 Orleans Avenue 
New Orleans, Louisiana

Attorneys for Appellants



Table of Cases

Page

Allen v. Board of Public Instruction of 
Broward County, No. 30032 (5th Cir., 
August 13, 1970) . . . . . 10

Berry v. School Dist. of Benton Harbor, C.A. 
No. 9 (W.D. Mich., February 17, 1970) . 18

Bivins v. Board of Educ., 424 F.2d 97 (5th 
Cir. 1970) ........ . 11

Brown v. Board of Educ., 347 U.S. 483 (1954) . 13, 14
Carter v. West Feliciana Parish School Bd. 

396 U.S. 226 (1969) . . . . 4
Clark v. Board of Educ. of Little Rock, 426 

F .2d 1035 (8th Cir. 1970) . . . . 10, 12
Dove v. Parham, 282 F.2d 256 (8th Cir. 1960) . 12, 19
Gaston County v. United States, 395 U.S 284 (1969)................... . 18
Green v. County School Bd. of New Kent Countv 

391 U.S. 430 (1968) . . . . 2, 20, 23
Hall v. St. Helena Parish School Bd., 417 F.2d 

801 (5th Cir.), cert, denied, 396 U.S904 (1969)............. • 3, 10
Henry v. Clarksdale Municipal Separate School 

Dist., 409 F .2d 682 (5th Cir.), cert, 
denied, 396 U.S. 940 (1969) . 10

Henry v. Clarksdale Municipal Separate School 
Dist., No. 29165 (5th Cir., August 12, 1970) ........... . 10

Hightower v. West, No. 29933 (5th Cir.. Julv 14, 1970) . . . .  y . 11
Hilson v. Ouzts, n o . 30184 (5th Cir., August 20, 1970) . . . . 10
Hilson v. Ouzts, No. 29216 (5th Cir., April 3, 1 9 7 0 ) ......... P 11
Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 

1967), aff'd sub nom. Smuck v. Hobson, 
408 F .2d 175 (D.C. Cir. 1969) 16, 19, 20

Jackson v. Marvell School Dist. No. 22, 425 
F.2d 211 (8th Cir. 1970) . . 11



- X V -

Table of Cases (continued)

United States v. Sunflower County School Dist., 
No. 29950 (5th Cir., August 13, 1970) . [

United States v. Tunica County School Dist 
421 F . 2d 1236 (5th Cir. 1970)

United States v. Webster County, No. 29769
(5th Cir., July 7, 1970) .................

I

Youngblood v. Board of Public Instruction of
Bay County, No. 29369 (5th Cir., July 24, 
1970) ........................

Page

. 11 

. 11 

. 11

. 22



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 30447

)
URA BERNARD LEMON, et al., )

)
)

Plaintiffs-Appellants, )
)
)UNITED STATES OF AMERICA )
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Plaintiff-Intervenor, )
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)v. )
)
)BOSSIER PARISH SCHOOL BOARD, et al., )
)
)

Defendants-Appellees. )
___________________________________________________ )

On Appeal From The United States District Court For The 
Western District Of Louisiana, Shreveport Division

BRIEF FOR APPELLANTS

Issues Presented for Review

1. Whether a school district which has been segregated and

dual throughout its history, except for one short semester 

during which contiguous black and white schools were paired, 

may implement a new plan of pupil assignment which results



-2-

in the assignment of a majority of black students to a 
91% black school.

2. Whether the use of achievement test scores to assign 
students in a desegregating school district to separate 
school facilities and district curricular programs violates 
the Fourteenth Amendment.

3. Whether the availability of other assignment methods, which 
retain the professed educational values of the plan approved 
below but eliminate the segregation which it creates, requires 
reversal of the district court's decision under the test of 
Green v. County School Bd. of New Kent Countv. 391 U.S. 430 
(1968) .



-4-

Lemon v. Bossier Parish School Bd. . No. 28,745 (5th Cir.,
Dec. 12, 1969) .-2/

On remand, the district court entered an order January 20,

1970 directing implementation of the HEW plan for the Plain 

Dealing area of the parish effective with the second semester 
of the 1969-70 school year.

2. The School District Plan

April 29, 1970, the district court entered ex parte "Findings 

of Fact and Decree Relating to Consolidated School District Number 1, 

Plain Dealing, Louisiana" approving a new plan of operation for the 
schools in Plain Dealing.-^

3/ Following the decision in Carter v. West Feliciana Parish School 
Bd̂ _, 396 U.S. 226 (1969), appellants filed a Motion for Recall 
and Amendment of Mandate and on January 6, 1970, this court 
ordered that the school board "take no steps which are incon­
sistent with, or which will tend to prejudice or delay, a 
schedule to implement on or before February 1, 1970, desegre­
gation plans submitted by the Department of Health, Education 
and Welfare for student assignment simultaneous with the other 
steps previously ordered by us in Singleton v. Jackson Municipal 
Separate School District, No. 26,288, slip opinion dated 
December 1, 1969." Lemon v. Bossier Parish School Bd.. No.
28745 (5th Cir., Jan. 6, 1970).

—/  Court found that the school board after months of consultation
with experts, and community leaders and educators, both black and 
white, ha[d] devised a plan which is calculated to educate and 
train each student according to his abilities.

The School Board plan incorporated into the attached decree has 
broad support from all segments of the Plain Dealing community, 
both black and white. This Court has personally interviewed 
black educators and community leaders to determine this community 
support.



-5-

The board's plan consolidated the two schools in Plain Dealing 

into a single administrative unit; however, two physically separate 

and functionally different programs —  vocational and college 

preparatory —  were established for grades 4-12. Vocational 

courses are not generally given until the ninth grade but voca­

tional program students in the lower grades receive remedial 

instruction.

Students were assigned to the college preparatory program 

or the vocational program on the basis of their past composite 

scores on the California Achievement Tests complete battery 

(Tr. 157-59) ' Students in grades 4-6 who scored six months or

more below grade level were assigned to the vocational program, 

as were students in grades 7-12 who scored eight months or more 

below grade level; the remainder of the students were assigned 

to the college preparatory program at the north campus (the 

formerly all white school) (Tr. 90). In order to move from one 

program to another, the student or his parent must apply for a 

transfer (Tr. 38) and the request must be approved by a majority 

of an "educational review committee" composed of teachers and 

other employees of the school district (Tr. 15, 42).

Initial assignments for 1970-71 made on the basis of past 

scores on the California Achievement Test resulted in 286 white 

students and 391 black students (58%) enrolled in the college

5/ References are to the transcript of depositions of August 6, 
1970.



-6-

oriented program at the north campus (the former white school), 

and 42 white students and 419 black students (91%) in the 

vocational training-remedial program at the south campus (the 

former black school) (Tr. 90, 131). The two campuses are 

located three blocks apart (Tr. 123).

3. Proceedings in the district court and this Court

May 14, 1970, appellants (plaintiffs below) filed a motion 

for an extension of time within which to file a Motion for New 

Trial, which was granted; such a Motion was filed June 26, 1970 

seeking reconsideration of the April 29 ex parte order. The 

district court set the matter down for a hearing on August 7, 1970.

Thereafter appellees advised counsel that they planned to 

call numerous witnesses at the hearing, and that the scheduled 

time would probably be insufficient. Appellees therefore sought 

and were granted permission by the district court to introduce 

evidence by way of depositions, which were taken August 6, 1970. 

However, the court reporter stated that the transcript of the 

depositions would not be available until after the commencement 

of the school year. Plaintiffs accordingly filed a Motion for 

Injunction Pendente Lite August 20 seeking either a decision on 

the merits or, if the court declined to rule without the transcript, 

entry of an injunction pendente lite requiring continued adherence 

to the HEW plan until the court could render its decision upon



-7-

plaintiffs1 challenge to the testing plan. The district court 

denied plaintiffs' motion for an injunction and declined to rule 

without the transcript on August 24, 1970. Notice of Appeal was 
filed August 26, 1970.

The same day, appellants filed a Motion for Injunction Pending 

Appeal which was granted by this Court on September 2, 1970. 

September 8, 1970, this Court denied appellees' request for a 

five-day stay of the injunction pending appeal. September 29, 

1970, this Court entered an order denying petition for rehearing 

by appellees.

The transcript of the depositions was filed in the district 

court on or about September 23, 1970; thereafter, appellees again 

presented modification of their plan to the district court ex 

parte, which entered an order October 1, 1970 approving the plan 
as modified: (1) by providing that one required course be avail-

able at each campus only.2 s (2) by establishing a bi-racial 

committee; and (3) by requiring HEW to consult with the parties 

and report on the plan to the court. Appellants filed another 

Motion for Injunction with this Court on October 6, ruling on 

which was deferred pending submission of briefs by order dated 
October 14, 1970.

No enrollment report has been filed by appellees nor has HEW 

contacted plaintiffs as of the date this brief is prepared.

6/ [Thus, all students would be transferred from one campus 
to the other for at least one course]



-8-

ARGUMENT

The Plan Approved By The District 
Court Embodies A Racial Classi­
fication Justified Neither On 
Educational Grounds Nor in Light 
of the Alternatives Available To 

The School District

This case presents the narrow but critical issue 

whether this school district may utilize achievement test 

scores to assign pupils to school buildings and differen­

tiated curricular programs where the actual result of such 

a plan is to recreate a "black" school bearing the additional 

stigma of being a "lower track" school. Our argument is 

on several levels: first, that in the context of past

segregation in the district, unaltered except for one brief 

semester, the Constitution forbids this racial classification, 

no matter what sort of educational justification is offered 

for it. Second, if the board's professed theories are to 

be weighed, the evidence in this case and recent rulings 

on the subject fail to support the use of standardized test 

scores for assignment of students to buildings, for they are 

inherently discriminatory and unreliable. Third, we argue 

alternatively that even accepting appellees' own statements 

of purpose, the ready availability of other pupil assignment 

techniques to achieve the same purpose which do not involve 

the creation of a 91%-black school renders the board's plan 

indefensible.



-9-
This appeal does not involve appellees' right to

institute a program of vocational education in the Plain
7/

Dealing area. Disposition in appellants' favor will not 

require the school board to undo any renovation it has made 

at the former black (south campus) school for the purpose 

of accommodating vocational training equipment. What is 

involved in the nature of a pupil assignment plan which 

isolates more than half the black children in the Plain Deal­
ing area in a virtually all-black school.

A. The Board's Plan is an Impermissible Racial Classification
Scheme

Let there be no mistake: the plan approved below

classifies racially, regardless of its intent. It produces a 

lower-track school to be attended overwhelmingly by Negroes

7/ The black witnesses called by appellees vigorously supported 
the decision to offer vocational training in a wide range 

of subjects in Plain Dealing schools (Tr. 9, 246, 270), Which 
the black community had been seeking for some time (Tr. 245).
It is less clear that the witnesses were enthusiastic about, 
the tracking provisions of the plan. Mr. Lee, for example, 
saw no problem in continuing the pairing along with the voca­
tional program, but said:

This is a plan which has been issued by the 
courts, and now what I am trying to do is 
implement it according to what the court says 
[Tr. 46]. . . .

I am only looking at the court order as it was 
issued. Now if the court made its mistake 
in approving another plan, I have nothing to 
do with that. . . . And how it went out according 
to the court order I don't know the reasons as 
to why it was changed or what. I could have no 
—  nothing that I could actually say from facts 
that prevented them from carrying out the plan on 
as it was, I don't know [Tr. 53-54].

See also, Tr. 45. Mr. Wattre said he would have preferred to 
keep all students on a grade level together (Tr. 253).



-10-

in this district wherein but for the second semester of

the past school year, a completely dual, segregated school

system was operated. The historic overlapping black and

white school attendance areas have been maintained until

quite recently by a variety of devices, including freedom
8/of choice. Hall v. St. Helena Parish School Bd., supra.

The question here presented is whether a pupil assignment 

plan whose effect is to reestablish the racial classification 

is constitutional in these circumstances.

We emphasize that this plan must be judged in 

terms of its effect, and not the professed intention with 

which it was implemented. E .g ., Keyes v. School Dist. No. 1, 

Denver, 303 F. Supp. 279, 286-87 (D. Colo. 1969); Clark v.

Board of Educ. of Little Rock, 426 F.2d 1035 (8th Cir. 1970); 

Henry v. Clarksdale Municipal Separate School Dist., 409 F.2d 

682 (5th Cir.), cert, denied, 396 U.S. 940 (1969). And 

where the effect is a racial classification, the state's 

burden of justification is especially severe. E.g., McLaughlin 

v. Florida, 379 U.S. 184 (1964).

8/ The HEW plan which was implemented during the spring, 1970 
semester by direction of this Court, completely eliminated 

the dual school system by the recognized educational tool of 
contiguous pairing, which has been consistently sanctioned 
by this Court. E.g., Hall, supra; Allen v. Board of Public 
Instruction of Broward County, No. 30032 (5th Cir., August 
13, 1970); Henry v. Clarksdale Municipal Separate School 
Dist., No. 29165 (5th Cir., August 12, 1970); Hilson v. Ouzts, 
No. 30184 (5th Cir., August 20, 1970).



-11-

in the circumstances of a school district undergoing 

initial desegregation, there can be no justification for the 

re-imposition of racial classifications. That is the import, 

for example, of this Court's related holdings in Singleton 

v. Jackson Municipal Separate School Dist., 419 F.2d 1211,

1219 (5th Cir. 1969); United States v. Tunica County School 

Dist., 421 F.2d 1236 (5th Cir. 1970) and United States v. 

Sunflower County School Dist., No. 29950 (5th Cir., August 13, 

1970) barring the use of achievement tests for the purpose of 

pupil assignment in school systems which are not yet unitary. 

Perhaps this case falls within that proscription despite 

implementation of the HEW pairing plan in Plain Dealing for 

a short semester. Such a ruling, however, would merely 

postpone rather than resolve the issue. We submit that in 

the context of past segregation only so recently ameliorated 

to any degree, any plan whose effect is to reestablish racially

identifiable schools is a constitutionally impermissible
. 2/racial classification.

9/ We do not think appellees' plan is saved by the inclusion 
in the district court's October 1, 1970 decree of the 

requirement that all students at each campus take on required 
course at the other campus. For one thing, nothing in the 
plan indicates that the transfers will not be of intact 
classes, see McNeese v. Board of Educ., 199 F. Supp. 403 
(D. 111. 1960), aff'd 305 F.2d 783 (7th Cir. 1962), rev'd 
373 U.S. 668 (1963), resulting in segregated classes.
Johnson v. Jackson Parish School Bd., 423 F.2d 1055 (5th Cir. 
1970); Jackson v. Marvell School Dist. No. 22, 425 F.2d 211 
(8th Cir. 1970). For another, such part-time desegregation 
has been rejected as unsatisfactory by this Court. Hightower 
v. West, No. 29933 (5th Cir., July 14, 1970); Hilson v. Ouzts, 
No. 29216 (5th Cir., April 3, 1970); Bivins v. Board of Educ., 
424 F.2d 97 (5th Cir. 1970); United States v. Webster County, 
No. 29769 (5th Cir., July 7, 1970).



-12-

The rule was well expressed by the Eighth Circuit

in Dove v. Parham, 282 F.2d 256, 258 (8th Cir. 1960):

Standards of placement cainot be de­
vised or given application to preserve 
an existing system of imposed segregation.
Nor can educational principles and 
theories serve to justify such a result.
These elements, like everything else, 
are subordinate to and may not prevent 
the vindication of constitutional rights.
An individual cannot be deprived of the 
enjoyment of a constitutional right, 
because some governmental organ may 
believe that it is better for him and for 
others that he not have this particular 
enjoyment. . . .

In summary it is our view that the 
obligation of a school district to 
disestablish a system of imposed segre­
gation, as the correcting of a consti­
tutional violation, cannot be said to 
have been met by a process of applying 
placement standards, educational theories 
or other criteria, which produce the 
result of leaving the previous racial 
situation existing, just as before. . . .
If placement standards, educational 
theories, or other criteria used have 
the effect in application of preserving 
a created status of constitutional violation, 
then they fail to constitute a sufficient 
remedy for dealing with the constitutional 
wrong.

Whatever may be the right of these things 
to dominate student location in a school 
system where the general status of 
constitutional violation does not exist, 
they do not have a supremacy to leave 
standing a situation of such violation, 
no matter what educational justification 
they may provide, or with what subjective 
good faith they may have been employed.

And see, Clark v. Board of Educ. of Little Rock, supra; Kelley

v. Altheimer, 297 F. Supp. 753, 757 (E.D. Ark. 1969).

This Court should declare the reestablishment of 

racially identifiable schools impermissible, no matter what 

the purported justification.



-13-

B. The Use of Standardized Test Scores to Assign Students to 
Different School Buildings and to Vocational or Academic 
Curricula Violates the Equal Protection Clause of the 
Fourteenth Amendment_____

Appellees have proposed a plan to assign Plain 

Dealing students to separate buildings and to distinct 

academic or vocational programs according to their score, 

in relation to national norms (Tr. 127), on achievement tests 

(Tr. 88), in spite of the admitted weight of professional 

opinion favoring individualized instruction within hetero­

geneous groupings (Tr. 184). The virtue of such assignment, 

the ostensible purpose of which is to permit application of 

concentrated time and effort to the learning problems of 

educationally deprived children (Tr. 115), is its supposed 

objectivity: although its effect is to create a segregated

school, "it so happens that the numbers fall this way as 

far as achievement is concerned" (Tr. 166).

The proposed "equal application" of an "objective" 

test for all students as a basis for determining their place­

ment in particular schools suffers from the same defect as 

the separate but equal doctrine. The rationale of the Brown 

decision was that public education, " . . .  where the State 

has undertaken to provide it, is a right which must be made 

available to all on equal terms," and that segregated educa­

tion is unequal education. This was also basically the 

rationale of Sweatt v. Painter, 339 U.S. 629 (1950) and 

McLaurin v. Oklahoma State Bd. of Regents, 339 U.S. 637 (1950).

These cases, predecessors of Brown, respectively held



-14-

violative of the separate but equal rule of Plessy v.

Ferguson, 163 U.S. 537 (1896), segregated law school and 

graduate school education. They had as their basis the 
fact that Negroes were treated unequally with respect to 

qualities "incapable of objective measurement," in large
10/measure because they were isolated from the majority group.

The tests themselves are anything but objective

and are particularly unsuited for the use to which they are

now being put. The 1965 teachers' Manual for the California
11 /tests (Tr. 144)“—  contains precautionary language about 

interpreting the tests by using composite scores alone:

10/ in Sweatt, among the vital immeasurable ingredients 
which the Court considered in the University of Texas 

Law School as contrasted with the separate Negro law school 
was the exclusion from the Negro institution of members of 
racial groups which included most of the lawyers, judges, 
witnesses, jurors and public officials with whom the Negro 
law student would have to deal when he became a member of 
the bar. The Court also considered the comparative standing 
in the community of the two institutions.

In Brown, the Court ruled that the intangible considera­
tions involved in depriving Negro students of the opportunity 
for association with members of the majority group applied 
"with added force" to children in elementary and secondary 
schools, 347 U.S. at 494. The Court concluded, "[t]o separate 
them [Negro children] from others of similar age and 
qualifications solely because of their race generates the 
feeling of inferiority as to their status in the community 
that may affect their hearts and minds in a way unlikely ever 
to be undone."
11/ it is unclear from the transcribed depositions whether

these exhibits have been transmitted to this Court. For 
that reason, we are forwarding our single copies to the Clerk 
for the Court's use.



-15-

. . . If ability and achievement within
a school system are either exceptionally 
high or low, the norms for "typical" 
populations are not appropriate standards 
to use in evaluating test results without 
making necessary adjustments. In such 
districts, it may be advisable for school 
personnel to set up local expectancies 
in terms of percentiles, standard scores, 
or stanines derived from their own 
testing [p. 19].
Any deficiencies indicated by the Diagnostic 
Analysis of Learning Difficulties should 
be individually verified by the teacher or 
counsellor. It then may be determined to 
what extent the pupil requires remedial 
work in specific skills or areas of learning.
The purpose of the Diagnostic Analysis is 
to identify for further study those 
particular areas in which deficiencies 
in pupil performance may exist. In no case 
should this rough screening be interpreted 
as the sole or final indicator of a pupil's 
strengths or weaknesses, since the small 
number of items in some categories do not 
provide sufficiently high reliabilities.
[p. 22]
Standardizes testing programs are adminis­
tered for one principal purpose: to
improve instruction and learning. To this 
end, it is essential in all uses and 
interpretations of test results that school 
personnel be aware of the mental or physical 
handicaps, the social and emotional problems. 
or the language difficulties which may 
limit individual performance and achievement.
. . . [p. 24]

Individual data from teachers' observations 
and cumulative records must be reflected 
in the interpretation of Anticipated 
Achievement Grade Placements. Individual 
abilities, attention span, emotional 
maturity, health status, breadth of exper­
ience outside of school, motivations, 
interests, and the like are all factors 
to be considered to bring expectancies into 
perspective. . . . [p. 45][all emphases supplied]

There are two sources of information about the uses 

and abuses of achievement tests to which we refer t]ie Court.



-16-

The first is the record in No. 28261, Anthony v. Marshall 

County Bd. of Educ., in which the issue was thoroughly 

explored with expert testimony being taken. The question 

was pretermitted on that appeal, decided sub nom. Singleton 

v. Jackson Municipal Separate School Dist., supra. The 

second is the decision in Hobson v. Hansen, 269 F. Supp. 401 

(D.D.C. 1967), aff'd sub nom. Smuck v. Hobson, 408 F.2d 175

(D.C. Cir. 1969). Judge Wright's finding with regard to the
12/tests is relevant:

The evidence shows that the method 
by which track assignments are made 
depends essentially on standardized 
aptitude tests which, although given 
on a system-wide basis, are completely 
inappropriate for use with a large 
segment of the student body. Because 
these tests are standardized primarily 
on and are relevant to a white middle 
class group of students, they produce 
inaacurate and misleading test scores 
when given to lower class and Negro 
students. As a result, rather than 
being classified according to ability 
to learn, these students are in 
reality being classified according to 
their socio-economic or racial status, 
or —  more precisely —  according to 
environmental and psychological factors 
which have nothing to do with innate ^3 / 
ability. [footnote omitted] — '

269 F. Supp. at 514.

12/ The Hobson case is probably the most thorough review 
of the validity of testing ever undertaken.

13/ The Washington tests were aptitude tests, but the
distinction between an aptitude test and an achievement 

test is de minimus, particularly in this case. In Hobson, 
the district court found (269 F. Supp. at 477)-:

A scholastic aptitude test is specifically 
designed to predict how a student will 
achieve in the future in an academic 
curriculum.



-17-

The Department of Health, Education and Welfare
has stated its opposition to testing plans. At the request
of the United States District Court for the Northern District
of Mississippi, see United States v. Sunflower County School
Dist.. No. GC 6637-K (N.D. Miss., June 25, 1969), the Office
of Education commented upon such plans:

We feel obligated to express our serious 
concerns about the educational merits of 
the proposed Sunflower plan, especially 
in light of "reasonably available other 
ways promising speedier and more effective 
conversion to a unitary non-racial system."
It is our clear judgment that the proposed 
testing program will retain most aspects 
of the dual school system due to the very 
nature of standardized achievement and/or 
aptitude tests. Much research has docu­
mented that students from low socio-economic 
backgrounds are disadvantaged in competing 
with such tests since the tests are 
standardized on student populations which 
do not adequately represent low socio-eco­
nomic students. Based on these factors, 
we wish to make clear our strong feeling 
that this plan is neither administratively 
nor educationally sound. We also do not 
believe the proposed plan " . . .  achieves 
the constitutional duty upon this school 
district for the elimination of racially 
segregated schools.

[See record in Anthony v. Marshall County Bd. of Educ., supra].

The California tests provide a soore measure labelled 
"Anticipated Achievement" about which the Manual, supra, says
at p. 44:

The California Test Bureau, in its 1957 
standardization of the California Test of 
Mental Maturity Series and the California 
Achievement Tests refined previous expec­
tancy concepts by introduction of Anticipated 
Achievement. The administration of the two 
test batteries concurrently on a single 
population provided comparable intelligence 
and achievement normative data. The CAT 
norms represent the Anticipated Achievement 
of a certain grade placement and its related 
chronological age. [footnote omitted]



-18-

The creation of black schools when tests are 

used for the purpose of assignments is far from a fortuity, 

as appellees suggest (Tr. 166). It is rather a self-fulfilling 

prophecy, given the knowledge on the part of the district 

that black children in the parish scored poorly on such 

tests (Tr. 129). As this Court said in United States v.

Choctaw County Bd. of Educ., 417 F.2d 838, 841 n. 15 (5th 

Cir. 1969),

School desegregation cannot be delayed 
on the ground that Negroes have lower 
educational levels than whites in the 
same grades or age groups; that, there­
fore, "compliance with the Supreme Court's 
decision would be detrimental" to the 
students. Stell v. Savannah-Chatham 
County Board of Education (5th Cir. 1961),
318 F.2d 376; 333 F.2d 55; Jackson 
Municipal School District v. Evers 
(5th Cir. 1961), 357 F.2d 653. The 
existing effects of past discrimination 
do not justify perpetuating the 
unconstitutional conditions which cause 
the present educational inequalities.

Accord, United States v . Board of Educ. of Lincoln County,

301 F. Supp. 1024 (S.D. Ga. 1969)(rejecting a testing plan

and relying upon Stell and Evers); Monroe v. Board of Comm1rs

of Jackson. 427 F.2d 1005, 1008 (6th Cir. 1970)(". . . while

there may be some disparity in the achievement levels of

students from different socio-economic backgrounds, greater,

not less, student and faculty desegregation is the proper

manner in which to alleviate the problem."); Berry v. School

Dist. of Benton Harbor, C.A. No. 9 (W.D. Mich., February

17, 1970) (oral opinion). Cf. Gaston County v. United States,

395 U.S. 285 (1969); United States v. Local 189, U.P. & P.,

AFL-CIO, 282 F. Supp. 39 (E.D. La. 1968), aff’d 416 F.2d 980
(5th Cir. 1969).



-19-

This case is strikingly similar to Hobson since

the tracking system in Plain Dealing operates to lock a

student into one program, much like Pupil Placement, by

requiring a request for transfer (see Dove v. Parham, supra).

For that reason, we call the Court's attention to the

following significant passages in Hobson, which we submit are

precisely applicable here:

10. The aptitude tests used to assign 
children to the various tracks are 
standardized primarily on white middle 
class children. Since these tests do 
not relate to the Negro and disadvan­
taged child, track assignment based on 
such tests relegates Negro and disad­
vantaged children to the lower tracks 
. . . [269 F. Supp. at 407].

And Negroes read in the eyes of the 
white community the judgment that 
their schools are inferior and without 
status, thus confirming and reinforcing 
their own impressions. Particularly 
is this true in Washington, where the 
white community has clearly expressed 
its views on the predominantly Negro 
schools through the behavior of white 
parents and teachers who, the court 
finds, in large numbers have withdrawn 
or withheld their children from, and 
refused to teach in, those schools, 
rId. at 420-21; cf. Tr. 61].

. . . the court cannot ignore the fact 
that until 1954 the District schools 
were by direction of law operated on a 
segregated basis. It cannot ignore 
the fact that of all the possible forms 
of ability grouping, the one that won 
acceptance in the District was the one 
that —  with the exception of completely 
separate schools -- involves the greatest 
amount of physical separation by grouping 
students in wholly distinct, homogeneous 
curriculum levels. It cannot ignore 
that the immediate and known effect of 
this separation would be to insulate



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the more academically developed white 
student from his less fortunate black 
schoolmate, thus minimizing the impact 
of integration; nor can the court ignore 
the fact that this same cushioning effect 
remains evident even today. Therefore, 
although the track system cannot be 
dismissed as nothing more than a sub­
terfuge by which defendants are attempt­
ing to avoid the mandate of Bolling v. 
Sharpe, neither can it be said that 
the evidence shows racial considerations 
to be absolutely irrelevant to its 
adoption and absolutely irrelevant to 
its continued administration. To this 
extent the track system is tainted, 
[footnotes omitted][Id. at 443].

Appellants respectfully submit that the only kind 

of ability grouping which is permissible is not based 

primarily on standardized test scores, is not based on 

separation by bui.1 dings or by rigid tracks but is a fluid 

system of individualized instruction according to appropriate 

performance levels in various subject matter areas. This 

is, in fact, precisely the kind of ability grouping used 

in Bossier Parish in the past (Tr. 47-48, 126, 269) and it 

is the kind of ability grouping toward which the school 

system is generally moving (Tr. 93, 118-19, 142-43). It is 

the only kind of ability grouping the Constitution, and 

this Court, should permit.

C. In Light of Alternative Pupil Assignment Plans Available 
to this District Which Do Not Interfere With Its 
Vocational or Remedial Programs And Which Establish A 
Unitary System, the Decision Below Cannot Be Sustained 
Under the Test Enunciated in Green v. County School Board 
of New Kent County, 391 U.S. 430 (1968).

If there were any doubt about the racial design 
and effect of the plan approved below, it is eliminated by



-21-

a consideration of the surrounding circumstances and the 
alternatives available.

Appellees have claimed that the tracking program 

they proposed was necessitated by (1) their introduction of 

a vocational education program in the Plain Dealing area, 

and (2) the need to centralize remedial resources. But 

the evidence in this case shows that both of these objectives 
can be accomplished fully without putting into effect a 

plan which maximizes the segregation of more than half 

the black students.

Initially, we note that Bossier Parish had never 

before assigned students to different school buildings on the 

basis of test scores or ability grouping (Tr. 156). Tests 

have been used in the past to group students within 

heterogeoneous classrooms for the purpose of individualizing 

instruction (Tr. 126, 184) and are presently being used in 

Bossier Parish for that purpose outside the Plain Dealing area 

(Tr. 118-19, 142-43). The school board presently operates 

a vocational-technical school to which students are transported 

for half-day sessions (Tr. 179); in all of the schools outside 

the Plain Dealing area, remedial instruction is offered 

within each school rather than in a separate facility (Tr.

110, 156). It is significant, then, that the effect of 

this single deviation from the parish's consistent educational 

policy has been to move from a plan which called for all stu­

dents in Plain Dealing on a given grade level to attend the



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example placing the upper grades and the vocational offerings 
at the south campus (E.q., Tr. 44, 46, 162). There is suffi­
cient capacity in regular classrooms at the south campus to 
accommodate such a program (Tr. 237-38). Shuttle buses now
operate between the schools (Tr. 123) which are three blocks

14/apart (ibid.). The only function the present plan can
serve —  and the only function it does serve —  is to separate 
a majority of the black students in Plain Dealing in a black 
facility.

The ultimate irony of this case is provided by 
the features added by the district court in its October 1 
decree, which require shuttling the entire school population 
of Plain Dealing back and forth once each day to the other 
school. Why the district insists upon this expensive and 
time-consuming procedure is a mystery to appellants, but it 
does illustrate very clearly that remedial services could 
easily be located in one building and students for special 
subject remedial classes transported to that location.

As the Court said in Green v. County School Bd. of 
New Kent County, supra, 391 U.S. at 439, "the availability 
to the board of other more promising courses of action may 
indicate a lack of good faith; and at the least it places a 
heavy burden upon the board to explain its preference for 
an apparently less effective method." Appellants submit that

14/ Thus appellees' assertion (Tr. 172) that two sets of 
remedial materials would be needed if the schools were 

paired is an absurdity.



-24-

the availability of another method of pupil assignment which 
is both more effective in terms of desegregation and at least 
equally effective in carrying out the stated purposes of the 
Bossier parish School Board to afford vocational and remedia 
services is apparent on this record, and that appellees have 
not supplied any constitutionally acceptable explanation for 
their failure to adopt that method.

0



CONCLUSION

WHEREFORE, for the foregoing reasons, appellants 
respectfully pray that the judgment below be reversed and 
the district court instructed to reinstate the HEW pairing 
plan as contained in its order of January 17, 1970.

NORMAN J. CHACHKIN 
MARGRETT FORD
10 Columbus Circle 
New York, New York 10019

JESSE N. STONE 
1116 Pierre Avenue 
Shreveport, Louisiana

A. P. TUREAUD 
1821 Orleans Avenue 
New Orleans, Louisiana 70130

Attorneys for Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of October, 
1970, I served two popies of the foregoing Brief for Appellants 
upon counsel for defendants, J. Bennett Johnston, Jr., Esq.,
406 Lane Building, Shreveport, Louisiana and counsel for the 
Utiitied States, Edward S. Christenbury, Esq., Civil Rights 
Division, United States Department of Justice, Washington, D.C. 
2(5530>.chy United States mail, air mail postage prepaid.