Arkansas Training School for Boys at Wrightsville Board of Managers v. George Brief Amicus Curiae

    No.

I n  T h e

§>upmnp (£mirt nf Ihr lluitpft States
October  T e r m , 1989

B oard of S uperviso rs  of So u t h e r n  U n iv e r sit y  a n d  
A gricultural  a n d  M e c h a n ic a l  College ,

Appellant,
v.

U n it e d  S t a t e s  of A m er ic a ,
Appellee.

On Appeal from a Three-Judge Panel of the 
United States District Court 

for the Eastern District of Louisiana

JURISDICTIONAL STATEMENT

W illiam  J. J efferson 
Counsel of Record 

T revor G. Bryan  
V in c e n t  P. Blanso n  
Jefferson . B r yan , J upiter , 

Lew is & Blanso n  
650 Poydras, Suite 1850 
New Orleans, LA 70130-6101 
(504) 561-8933

W i l s o n  - E p e s  P r i n t i n g  C o . .  I n c . • 7 8 9 - 0 0 9 6  - W a s h i n g t o n . D C .  2 0 0 0 1



QUESTIONS PRESENTED
1. Whether the imposition of a desegregation remedy 

that restructures Louisiana’s higher education system, 
abolishes its constitutionally authorized governance boards, 
creates a comprehensive community college system, estab­
lishes a hierarchical tiering system for universities, and 
imposes new college admission standards, among other 
drastic measures, unnecessarily and improperly involved 
the district court in higher educational policy choices;

2. Whether the district court’s power to fashion a 
remedy below was limited by the consent decree pre­
viously entered into by the parties, and/or by the re­
medial standards for higher education desegregation pie- 
scribed by the U.S. Department of Education under Title 
VI of the 1904 Civil Rights Act;

3. Whether the racial idcntifiability of a State’s higher 
educational institutions and governance boards is a suf­
ficient basis for finding a violation of the Fourteenth 
Amendment or of Title VI, when the State has long ago 
abandoned its laws requiring racial separation in its col­
leges and has instituted good faith non-discriminatory 
hiring and admission policies and practices, and whether, 
in any event, the United States may raise such a l'our- 
teenth Amendment claim; and

4. Whether the district court’s rulings on the findings 
of the Special Master in this cause, and the district court’s 
failure to hold hearings on Consent Decree compliance or 
on the merger of the Southern University Law Center 
into the Louisiana State University Law Center violated 
Due Frocess requirements and Federal Rules of Civil 
Procedure 52 and 65(d).

U)



TABLE OF CONTENTS
Page

OPINIONS BELOW........................................................ 2

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

HOW THE FEDERAL QUESTION WAS RAISED. .. 2

STATEMENT OF THE CASE......................................  4

THE QUESTIONS ARE SUBSTANTIAL...................  15

CONCLUSION.....................................................................  30

(Hi)



TABLE OF AUTHORITIES
CASES Page

Adam* v. Hell, 711 F.2d If.I (D.O. Cir. 1083), 
cert, denied, 465 U.S. 1065, 104 S.Ct. 1272
(1984)....................................................................  16

Adams v. Califano, 430 F. Supp. 118 (D.D.C.
1977) (Order, 430 F. Supp. at 121) ..................  16

Adams v. Richardson, 356 F. Supp. 92 (D.D.C.
1973), modified and aff’d per curiam, 480 F.2d
1159 (D.C. Cir. 1973).........................................  16, 20

Adams v. Richardson, 480 F. Supp. 118 (D.D.C.
1977) .....     25

Alabama State Teachers Association (ASTA) v. 
Alabama Public School and, College Authority,
289 F. Supp. 784, 788 (M.I). Ala. 1968) (Three- 
Judge Court), aff’d per curiam, without written
opinion, 393 U.S. 400, 89 S.Ct. 68 (1969) 18, 26, 27, 28 

Anderson v. Celebrczze, 460 U.S. 780, 103 S.Ct.
1564 (1983) ..........    27

Ashwander v. T.V.A.,  297 U.S. 288, 56 S.Ct. 466
(1936) ..................................................................  30

Atiyeh v. Capps,  449 U.S. 1312, 101 S.Ct. 829
(1981).. ....................................    23

Ayers v. Allain,  674 F. Supp. 1523 (N.D. Miss.
1987), appeal pending appeal docketed No. 88-
4103 (5th Cir. argued May 1, 1989)..................  27,28

Batterton v. Francis,  432 U.S. 416, 97 S.Ct. 2399
(1977)...................................................................  16

Board of Curators of the University of Missouri v.
Horowitz,  435 U.S. 78 (1978) ...........................  18

Carilalivo i>. California,  357 U.S. 549 (1958) 21
Chevron U.S.A., Inc. r. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 104 S.Ct. 2778
(1984) .................................................................. 16

City of Richmond v. J. A. Crossen Company,  — —

U.S.----- -, 109 S. Ct. 706 (1989) .......................  18
Cleveland Bd. of Ed. v. Loudermill,  470 U.S. 2532

(1985) ................................................................... 21
Columbus Bd. of Ed. v. Peniclc, 443 U.S. 449, 465

(1979) ...................................................................  18

TABLE OF AUTHORITIES—Continued
Page

Columbus Bd. of Ed. v. Peniclc, 439 U.S. 1348,
98 S.Ct. 24 (1978)...............................................

Dartmouth College v. Woodward, 4 Wheat. 512
(1819) ............................................................-.....  21

Day v. Wayne County Bd. of Auditors, 749 I* .2d
1199 (6th Cir. 1981)...........................................  22

Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 99
S.Ct. 2766 (1978) ....... .... ....................  18

Earle v. McVeigh, 91 U.S. 503 (1876) 21
Epperson v. Arkansas, 393 U.S. 97 (1968) ........  18
Firefighters Local Union No. 1784 v. Stolls, 467

U.S. 561, 104 S.Ct. 2576 (1984) . ............  23
Ford Motor Credit Co. v. Milhollin, 444 U.S. 555,

100 S.Ct. 790 (1980)............................................  16
Grier v. Alexander, 801 F.2d 799 (6th Cir. 1986). 27,28 
Green v. County School Board of New Kent

County, 391 U.S. 430, 88 S.Ct. 1689 (1968)......  27,28
Ilicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281

(1975) ..................................................................  27
Hopfmann v. Connolly, 471 U.S. 459, 105 S.Ct.

2106 (1985) .........     26
Hughes v. United States, 342 U.S. 353, 72 S.Ct.

306 (1952) .......................    24
Keyes v. School District No. 1 Denver, Colo., 413

U.S. 189, 93 S.Ct. 2686 (1973)........................ -  18
Liddell v. Missouri, 731 F.2d 1294 (8th Cir. 1984),

cert, denied, 469 U.S. 816, 105 S.Ct. 82 (1984) .. 22
Local Number 1)3, International Association of 

Fin'fighters v. (lily of Cleveland, 54 U.S.L.W.
5005 (U.S. July 2, 1986)   23

Mandcl v. Bradley, 432 U.S. 173, 97 S.Ct. 2238
(1977)....................................................................  2?

Mandcl v. U.S. Dept, of HEW, 411 F. Supp. 542
(D.C. Md. 1976) .............   25

Mayor and City Council of Baltimore v. Matthews,
562 F.2d 914 (4th Cir. 1977) .......................  25

Meyer v. Nebraska, 262 U.S. 390 (1923) ........ .....  21
Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112

(1974) (Milliken I) ...........................................  18



VI

TABLE OF AUTHORITIES—Continued
Pace

Millikcn v. Bradley, 433 U.S. 389, 97 S.Ct. 2749
(1977) (Millikcn II)...........................................  13

New York Trust Co. v. Eisner, 256 U.S. 345, 41
S.Ct. 506 (1921)   13

NLRB v. United Food and Commercial Workers
Union, Local 23, AFL-CIO, —— U.S.----- , 108
S. Ct. 426 (1987)...........................   16

NLRB v. Southwestern Bell Telephone Co., 730
F.2d 166 (5th Cir. 1984)..................................... 22

Norris v. State Council of Higher Education for 
Virginia, 327 F. Supp. 1368 (E.D. Va. 1971), 
aff'd per curiam sub nom. Board of Visitors of 
the College of William & Mary in Virginia v.

*Norris, 404 U.S. 907, 92 S.Ct. 227 (1971).......... 27, 28
Pasadena City Bd. of Ed. v. Spangler, 427 U.S.

421 (l 976) ...............    18
Pierce v. Society of Sisters, 268 U.S. 510 (1925) .. 21
Price v. Denison Independent School District Bd.

of Ed., 348 F.2d 1010 (5th Cir. 1965)...............  17
Regents of the University of California v. Bakke,

138 U.S. 265, 98 S.Ct. 2733 (1978) ....... 29,30
Regents of the University of Michigan v. Ewing,

174 U.S. 214, 106 S.Ct. 507 (1985).............. ......  18
Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976).. 18
Ruiz v. Estelle, 650 F.2d 555 (5th Cir. 1981), cert.

denied, 460 U.S. 1012 (1983) .............. . 19
Singleton v. Jackson Municipal Separate School

District., 348 F.2d 729 (5th Cir. 1965)...............  16
Sixty-Seven Minnesota State Senate, v. Brens, 406

U.S. 187, 92 S.Ct. 1477 (1972) ...................  18
Specter Motor Service v. McLaughlin, 323 U.S.

101, 65 S.Ct. 152 (1941)..................................... 30
Swann v. Chariotte-Me.cllenburg Bd. of Ed., 402

IJ.S. 1, 91 S.Ct. 1267 (1971)   18
Three Affiliated Tribes of Ft. Rcrtolc Reservation 

v. Wold Engineering, 467 U.S. 138, 104 S. Ct.
2267 (1981)..........................................................  30

United States v. Armour & Co., 402 U.S. 673, 91 
S.Ct. 1752 (1971).................................................  23

TABLE OF AUTHORITIES—Continued
Pace

United States v. Atlantic Refining Co., 360 U.S. 19,
79 S.Ct. 944 (1959)..............................................  23,24

United States v. City of Philadelphia, 644 F.2d
187 (3rd Cir. 1980) ........................................  29

United States v. ITT Continental Baking Co., 420
U.S. 223, 95 S.Ct. 926 (1975) .......  24,25

United States v. Jefferson County Bd. of Ed., 372 
F.2d 836 (5th Cir. 1966), aff’d en banc, 380 F.2d 
385 (5th Cir. 1967), cert, denied, 386 U.S. 1001
(1967) ....................................................................

United States v. Mattson, 600 F.2d 1295 (9th
Cir. 1979)..........................................................  29

United States v. Overtoil,  834 F.2d 1171 (5th Cir.
1987) ..................... ................................................' 24

United States v. Sidomon,  563 F.2d 1121 (4th Cir.
1977)................... ..................................................  29

United States v. State of Alabama,  791 F.2d 1150
(11th Cir. 1986) ................................................. 30

United States v. State of Alabama,  828 F.2d 1532 
(11th Cir. 1987) (per curiam), cert, denied 
sub nom. Board of Trustees of Alabama State
University v. Auburn ................  29

United States v. Swift & Co., 286 U.S. 106, 52
S.Ct. 460 (1932)..................................................  23

Whitcomb v. Chavis,  403 U.S. 124, 91 S.Ct. 1858
(1971) .........................   18

Williams v. Edwards,  547 F.2d 1206 (5th Cir.
1977) ..................................................................  23

Young v. Community Nutrition Institute,  476 U.S.
974, 106 S.Ct. 2360 (1986).................  16

STATUTES
28U S.C.A. § 1253.....................................................  2
28 U.S.C.A. §§ 2281,2284.........................................  3
28 U.S.C.A. 1345........................................................ 3
42 U.S.C.A. 2000d, 2000d-l (Title V I ) ............................................................passim
L.S.A.-R.S. Title 17:3121-3133 and Title 17:3201- 

3383 ...................................................................... 5



TABLE OF AUTHORITIES—Continued
CONSTITUTION Pn^o

Article 8, §§ 5-7, Louisiana CoiiHlitulion 107-1 ..4,5, (I, 7 
Fourteenth Amendment to the United States Con­

stitution ................................................................. passim

RULES AND REGULATIONS
45 C.F.R. Part 80.................................................... 3
Fed. R. Civ. P. 65(d), 28 U.S.C.A..........................  22, 23
Fed. R. Civ. P. 52, 28 U.S.C.A.....................   22
Revised Criteria Specifying the Ingredients of 

Acceptable Plans to Desegregate State Systems 
of Public Higher Education, 43 Fed. Reg. 6658 
(February 15, 1978)............................................ passim

Rule 12 of the United States District Court for the
Middle District of Louisiana.......... .................... 3

LAW REVIEW ARTICLES
Baier, Framing and Reviewing a Desegregation 

Decree: Of the Chancellor’s Foot and Fifth Cir­
cuit Control, 47 La. L. Rev. 123 (1986)...........  21

Chayes, Foreword: Public Paw Litigation and the
Burger Court, 96 Harv. L. Rev. 4 (1982)...........  18

K. Saunders, Agency Interpretations and Judicial 
Review: A Search for Limitations on the Con­
trolling Effect Given Agency Statutory Con­
structions, 30 Ariz. L. Rev. 769 (1988).............  17

IN THE
§uprrntr (Emtrl nf tljc luttrft &tatrn

OCTOItEK TERM, 1981)

No.

B oard of S upervisors of S o u t h e r n  U niversity  a n d  
A g r i c u l t u r a l  a n d  M e c h a n ic a l  College ,

Appellant,

U n ited  S ta tes  of A m erica ,
Appellee.

On Appeal from a Three-Judge Panel of the 
United States District Court 

for the Eastern District of Louisiana

JURISDICTIONAL STATEMENT

The Board of Supervisors of Southern University and 
A&M College, the appellant, appeals from the final judg­
ment of a Three-Judge District Court entered in separate 
decisions:

(1) Its Order and Reasons of August 2, 1988, which 
held that the Slate of Louisiana and oilier defendants 
maintained a dual system of public higher education in 
violation of Title VI of the 1904 Civil Rights Act, 42 
U.S.C.A. § 2000(1 (1981) ;

(2) Its Opinion and Order of July 19, 1989, which 
held, inter alia, that the system’s dualism also violated 
the Fourteenth Amendment to the United States Consti­
tution and which imposed a remedy; and

(3) Its Supplemental Reasons and Order of August 4, 
1989, denying motions for a new trial and for a stay of



the court’s prior judgment and imposing additional reme­
dies.

OPINIONS BELOW

The August 2, 1988, judgment of the three-judge dis­
trict court, which appears in the appendix hereto, p. 3a, 
infra, is reported at 692 F. Supp. 642 (E.D. La. 1988).

The July 19, 1989 and August 4, 1989, judgments are 
not reported and are reprinted in the appendix hereto, 
pp. 39a and 78a, respectively.

The final recommendations of the Special Master ap­
pointed in the proceedings below by the three-judge panel, 
upon which the court’s judgment in part depends, is also 
unreported, but appears in the appendix, p. 623a, infra.

JURISDICTION
The final order of the three-judge court constituting 

the judgment herein was entered on August 4, 1989, fol­
lowing the district court’s consideration and denial of 
appellant’s post-trial motions.

A notice of appeal to this Court was timely fded in the 
United States District Court for the Eastern District of 
Louisiana on August 10, 1989.

This appeal is being docketed within sixty (60) days 
of the filing of the notice of appeal. The jurisdiction of 
this Court is invoked under 28 U.S.C. § 1263. These and 
other statutes, rules and constitutional provisions relied 
upon are set forth in the appendix hereto.

IIOW THE FEDERAL QUESTION WAS RAISED
The federal question was raised in the complaint of the 

United States, filed March 14, 1974, and amended on No­
vember 17, 1980. This action was brought pursuant to 
the Fourteenth Amendment to the United States Consti­
tution; Sections 601 and 602 of the Civil Rights Act of 
1964, 42 U.S.C.A. 2000d, 2000d-l, and regulations issued

thereunder, 45 C.F.R. Part 80, pp. 115a and 887a, infra 
and jurisdiction was claimed under 28 U.S.C.A. 1345. 
The complaint alleged, inter alia, that the

(A)cts and practices of the defendants and their 
agents maintain and perpetuate an unlawful dual 
system of higher education based upon race, and 
thereby deprive black students attending state- 
supported schools, and prospective black students, of 
equal protection of the laws and equal educational 
opportunities in violation of tbe Fourteenth Amend­
ment to tbe Constitution of tbe United States and in 
violation of Title VI of tbe Civil Rights Act of 1964 
and tbe regulations issued pursuant thereto.

Further, the United States prayed that tbe . 
(C)ourt enter an order enjoining the defendants, their 
agents, officers, employees, successors, and all persons in 
active concert with them from maintaining and perpetu­
ating racial dualism in the State-supported ̂ system of 
higher education within the State of Louisiana.”

On the same date on which the original complaint was 
filed the United States filed a request for a three-judge 
Court, under 28 U.S.C.A. §§ 2281, 2284, and Rule 12 of 
the United States District Court for the Middle District 
of Louisiana, infra, appendix, p. 184a. And, on March 
28, 1974, an order was entered by tbe Chief Judge of the 
Fifth Circuit Court of Appeals constituting a court of 
three judges to hear the case, which three-judge court has 
been reconstituted four times since, on April 16, 1974, on 
November 7, 1 DVD, oil November 16, 1979, and on No­
vember 26, 1979.

In its judgment of August 2, 1988, the district court 
noted that a three-judge court had been properly requested 
and convened, p. 10a, infra, and ruled that the United 
States had standing to bring tbe action under Title VI, 
and that the twenty institutions under the four higher 
education boards were continuing to be operated under an 
unlawful, dual system of education, in violation of Title 
VI. Additionally, in its opinion of July 19, 1989, the



court stated that the . . present scheme for governing 
education in Louisiana—three operating hoards and one 
coordinating hoard—has perpetuated illegal segregation 
in Louisiana’s higher education . . and that the . . 
system of multiple hoards is therefore a defect in the 
State’s system of higher education that violates the fed­
eral constitution.” Further, the court held that statistics 
regarding student performance . . demonstrate addi­
tional particular constitutional defects inherent in and 
perpetuated by Louisiana’s present system of higher ed­
ucation,” appendix hereto, p. 45a.

STATEMENT OF THE CASE

More than twenty years ago, on January 13, 1909, a 
letter was sent from the Department of Health, Educa­
tion, and Welfare to the State of Louisiana, advising that 
Louisiana operated its system of higher education in vio­
lation of Title VI of the Civil Rights Act of 1904. This 
message was repeated in letters dated October 21. 1909. 
May 21, 1973, November 10, 1973 and November 30, 
1973. Louisiana responded that its system complied with 
federal law. The facts set forth in these letters and the 
response of the State of Louisiana are the acorn from 
which this giant, oak of a east* sprouted. Through the 
years, like the oak from the acorn, it has grown into 
something quite different from its beginnings. Louisiana 
has changed— in particular its laws on race relations and 
the enfranchisement of its black citizens and so have 
many of the farts giving rise to this case. The court lie- 
low, and now this Court, then, are put to judge allega­
tions now twenty years old against present day facts.

The appellant, Hoard of Supervisors of Southern Uni­
versity and Agricultural and Mechanical College, is one 
of three higher education management hoards established 
by the Louisiana State. Constitution of 1974, Article 8, 
§§ 5-7. The State Constitution also provides, in Article 8, 
§5 thereof, for a coordinating or policy board, the Lou­
isiana Board ol Regents. The Constitution containing

these provisions was proposed by a bi-racial Constitu­
tional Convention, adopted by the people of Louisiana on 
April 20, 1974, and cleared by I he U. S. Department of 
Justice as comporting with the 1905 Voting Rights Act. 
When the people selected the multi-board higher educa­
tion governance structure, they consciously chose between 
alternative propositions on the referendum ballot—Prop­
osition A, for a multi-board structure; and Proposition 
B, for a single board, appendix hereto, p. 914a, infra. 
So adopted, the Constitution of 1974 replaced the 1921 
Constitution, and became effective at midnight on Decem­
ber 31, 1974.

To implement its new constitutionally-mandated higher 
education system, the Louisiana Legislature, in an ex­
traordinary session held in 1974, and a regular session in 
1975, enacted extensive and new enabling statutes. L.S.A.- 
R.S. Title 17:3121-3133 and Title 17:3201-3383, appen­
dix hereto, pp. 120a-143a and 1048a and 1007a. These 
statutes and other laws tied to the constitutional gov­
ernance board structure became effective at various times 
beginning January 1, 1975.

The foregoing constitutional provisions and laws au­
thorize the Louisiana State University (LSI!) system; 
the State Colleges and Universities system; and the South­
ern University system. The Southern University system 
presently consists of four institutions of higher learning: 
(II Southern University and Agricultural and Mechani­
cal College at Raton Rouge; (2) Southern University at 
Shreveport; (3) Southern University at New Orleans; 
and (41 the Southern University Law Center. L.S.A.- 
It.S. Title 17:3216 placed the Southern University system 
under the authority of the Southern University Board of 
Supervisors. And, L.S.A.-R.S. Title 17:3335 empowered 
appellant and each other management board to operate as 
a body corporate and, within certain limited exceptions, 
to exercise “all power to direct, control, supervise and 
manage the institutions under its control,” appendix 
hereto, pp. 126a-127a,



6

More than 13,000 students are currently enrolled at 
the institutions of the Southern University system, Each 
institution in the Southern system is predominantly hlack. 
The Southern University Board is predominantly black. 
Every other public higher education governance board in 
Louisiana is predominantly white. Grambling State Uni­
versity, governed by the Board of Trustees, is also major­
ity black. The productive capacity of Southern and G ram­
bling in graduating black baccalaureate degree holders in 
Louisiana has been singularly impressive: liftv-nine per­
cent of the State’s total number of baccalaureate degrees 
granted to blacks in 1085 were granted by Southern and 
Grambling. In 1980, that figure was sixty-two percent. 
National studies have ranked Southern University and 
A&M College in the top ten of institutions producing 
black college graduates in the nation, appendix hereto, 
pp. 047a and 1087a.

However, none of the referenced constitutional provi­
sions or laws require any particular racial make-up of 
any of the State’s governance boards, nor of any of its 
colleges.1 The records of the Constitutional Convention 
disclose no racial motivation for the adoption of the Con­
stitution of 1074, and, in particular, its higher education 
articles. Indeed, a black legislator proposed tbo creation 
of the Southern University Board, appendix, p. 857a, 
infra.

The Louisiana Constitution of 1074 manifests a clear 
break with Louisiana’s segregative past. It. outlaws all 
forms of racial discrimination in Louisiana, including in 
higher education. The preamble to Article 8 of the 
Louisiana Constitution of 1074 proclaims: “The goal of 
the public educational system is to provide learning en-

1 The State’s present governor has appointed twenty-nine persons 
to the State’s governance hoards since his term of oflice began in 
March of 1!)K8. In each case, he appointed a white person to replace 
a departing white and a black to replace a departing black. 'I he 
racial make-up of the boards is a product of an exercise of execu­
tive discretion.

<

vironments and experiences, at all stages of human de­
velopment, that are humane, just and designed to promote 
excellence in order flint every individual may he alforded 
an equal opportunity to develop his full potential,”

Indeed, the State repealed its remaining laws requir­
ing separate educational facilities for blacks and whiles 
at various legislative sessions between 1972 and 1975.

Through Louisiana’s new educational governance struc­
ture, as provided for in the Louisiana Constitution of 
1974, each of the State’s undergraduate colleges, except 
Louisiana State University and A&M College, is an open 
admissions institution. Thus, any student who graduates 
from a Louisiana high school is guaranteed admission to 
the college of his or her choice, whether the graduate is 
black or white. The Stale’s graduate schools have modest 
selective admission standards. None of the State’s gov­
ernance boards created in the 1974 Constitution, particu­
larly Southern’s Board, has ever adopted any official 
policy or practice of denying admission to any student 
because of the student’s race. No institution now gov­
erned by appellant lias ever bad any such policy at any 
time, however. No evidence was presented at trial to 
show any present-day policy or practice on the part of 
the Stale, or any governance board, or any State college, 
of denying any person admission to any State institution 
of higher learning because of that person’s race. And 
new laws adopted by the State leg’slature, particularly 
the “Taylor Plan” legislation, guarantee a free college 
education to students meeting certain academic require­
ments regardless of race, appendix hereto, p. 144a.

The United States commenced this action on March 14, 
1974, prior to the adoption of the State’s present Consti­
tution. It alleged a racially dual system of higher educa­
tion in Louisiana. The United States purported to bring 
suit under Title VI of the 1904 Civil Rights Act as well 
as the Fourteenth Amendment.

The complaint was amended on November 17, 1980, to 
substitute defendants, and it was at this time that appel­



lant and the other governance boards created by the 
1974 Constitution became parties. The defendants below, 
including Southern, denied liability.® No allegation was 
ever made in the initial or amended complaint that the 
laws authorizing the governance boards were unconsti­
tutional or a vestige of de jure segregation.

On September 8, 1981, the parties settled the suit and 
signed a Consent Decree, appendix hereto, p. 199a. The 
Consent Decree was on that date entered as a judgment, 
following a hearing before the district court at which 
the court determined that the Decree was “. . . consistent 
with the objectives of the Fourteenth Amendment and 
Title VI. . .,” appendix hereto, p. 200a. (See also ap­
pendix pp. 202a and 200a).

The Consent Decree provided, inter alia, for affirma­
tive steps to recruit other-race students and faculty, es­
tablishing goals and timetables; for measures to reduce 
attrition and require developmental education; for other- 
rac'> faculty fellowship programs; and for scholarships for 
black students pursuing medicine, law, and veterinary 
science at historically white institutions; for cooperative 
efforts between proximate, historically white and black 
institutions; and for the enhancement of predominantly

*Thc parlies participating  in the proceedings below not listed 
in caption a r e :

(1) State of Louisiana , Defendant lielow
(2) BOARD OK TRUSTEES OF STATE (’.01,1,1 .OKS ANO UNIVERSITIES,

Defendant lielow
(:?) Board of T rustees of State Coi.eec.es and U niversities,

Defendant Below
(4) Board of S upervisors of Louisiana State U niversity

AND A&M Coi.EEO.K, Defendant Below
(5) Gramiii.ing State Alum ni Association, L itigating  Amicus
(G) Louisiana Board of R egents, Defendant Below
(7) St . Bernard Rakish School Board, Defendant Below
(8) Bossier P arish School Board, Defendant Below
(9) Louisiana State Board of  Ki.kmentary and S econdary

E ducation, Defendant Below

black institutions, through strengthening existing aca­
demic programs, locating new high-demand, high-cost 
academic programs, and improving physical facilities. It 
provided for monitoring progress under the Decree and 
for reporting to the court. With respect to governance, 
it left the boards intact, and provided that the Regents, 
Trustees, and LSU Hoards be desegregated to “approxi­
mately reflect the racial composition of the State’s popu­
lation,” but that the Southern Board would “reflect the 
racial composition of the State’s population inversely.” 
The Southern Board’s present make-up complies with this 
requirement.

Part III of the Consent Decree, headed “Effect of De­
cree” stated that it “. . . resolves all issues in contention 
between plaintiff and defendants in this lawsuit relating 
to compliance with and enforcement of the fourteenth 
Amendment and Title VI.” Further, Part III states in 
paragraph B: “The defendants’ compliance with this 
Decree, or any modification thereof, as between the par­
ties, shall be deemed compliance with the Fourteenth 
Amendment and Title VI as to all matters addressed 
hereunder this Decree.” Appendix hereto, p. 224a.

The court retained jurisdiction to assure implementa­
tion of the Consent Decree. The court’s jurisdiction, how­
ever, ended and the Consent Decree terminated on Decem­
ber 31, 1987, unless, the plaintiff or another party by 
motion “requests this Court to conduct a hearing for the 
purpose of determining whether the defendants have fully 
implemented all provisions of Ibis Decree and are operat­
ing the system of public higher education on a unitary 
basis.” Appendix hereto, p. 235a.

On December 29, 1987, the plaintiff, the United States, 
filed the contemplated motion, contending that the Con­
sent Decree had not been effectively implemented, and 
requesting a hearing at which such determination could 
be made, appendix, p. 2f>7a, infra. On December 31, 
1987, appellant joined in appellee’s motion, p. 5G0a, 
infra. Yet, the court never held a hearing on these 
motions.



1U

In refusing to do so, the court relied upon Part IV, 
Paragraph E of the decree, which states:

Should this court determine at the time of the hear­
ing that any provision of the Consent Decree has not 
been effectively implemented or that the defendants 
are not operating the system of public higher educa­
tion in a manner consistent with the goals and ob­
jectives of this Decree, this court shall enter such 
orders as are necessary to provide additional or fur­
ther relief as is appropriate and shall retain juris­
diction until such implementation has been accom­
plished. Appendix hereto, p. 23(>a.

The court read the words of Paragraph E “to provide 
additional or further relief as is appropriate” to mean 
that “this Court may find that the decree has failed in 
its purpose and thus may craft a remedy as if no decree 
had ever been made.” 092 F.Supp. at G49, appendix 
hereto, p. 15a.

Finally, the Consent Decree established a compliance 
standard. It required the parties to make a “good faith” 
effort to achieve and implement its goals and commit­
ments. Appendix hereto, p. 237a. The goals of the Decree 
were “not to be construed as quotas and therefore the 
failure to achieve any goal” would “not in itself consti­
tute non-compliance” with the Decree. Appendix hereto, 
p. 237a. Parties were also permitted, where required ac­
tions were not feasible, to pursue reasonable alternatives, 
or, in some cases, to move for relief from the obligation. 
Appendix hereto, p. 237a. An Addendum to the Consent 
Decree and an Amendment to the Addendum were 
adopted by the court in September of 1982 and May of 
1983, containing substantially the provisions of the prin­
cipal Decree, but applying to the Shreveport, Louisiana 
area institutions.

Instead of determining compliance with the Consent 
Decree, the court, in a Minute Entry of March 30, 1988, 
directed the parties to file summary judgment motions 
on the issue of whether a racially dual system existed

l i

in Louisiana. At the court’s direction, motions for sum­
mary judgment were fded by the United States, the Hoard 
of Regents, and by the Dossier Parish School Hoard.

On August 2, 1988, the motion of the United States 
was granted and the defendants held liable for violation 
of Title VI. While not deciding upon a remedy, the 
court suggested one, then warned in its opinion that “a 
drastic change” might be required to remedy the remain­
ing vestiges of the former de jure segregated system, 
i.e., the racial identifiability of the State’s colleges and 
boards, appendix, p. 3a at 35a. The district court’s sug­
gested remedy strongly resembled political proposals of­
fered by the State’s governor, but rejected by the stale 
legislature, appendix, pp. 834a-853a. The governor of­
fered these proposals, not for desegregation purposes, but 
rather, for “reform purposes,” appendix, pp. 10()la-H>22a.

On October 19, 1988, appellant fded a motion for an 
evidentiary hearing and reurged its demand for a deter­
mination of Consent Decree compliance, appendix, p. 
5f)9a. The district court denied the motion and required 
the parties to fashion a remedy acceptable to tbe court, 
appendix, pp. 577a and 579a.

’Phe parties tried unsuccessfully to reach accord on a 
voluntary remedial plan. Thereafter, on December 2, 
1988, tbe court appointed a Special Master to develop a 
plan. The Special Master entered his “Recommended Re­
medial Rian” on April 18, 1989. On May 30, 1989, the 
Special Master submitted to the court bis “Final Report.” 
embodying his suggested remedy to desegregate Louisi­
ana’s higher education system, which remedy tracked 
that suggested by the court in its August 2 Opinion.

Appellant and other parties below, particularly appellee 
herein, filed extensive objections to tbe Special Master’s 
initial and final recommendations. Appendix hereto, pp. 
582a-G17a and 721a-733a. Nonetheless, the district court 
issued a judgment on July 19, 1989, adopting most of the 
recommendations of the Special Master.



As presaged by the court, the remedy it ordered was 
drastic indeed. For the first time, the court declared 
Louisiana's governance structure and ils higher educa­
tion system unconstitutional, based on the Fourteenth 
Amendment. It required that within thirty days of the 
entry of its order “the four hoards currently governing 
public higher education in Louisiana shall be disbanded 
and their powers consolidated into a single State govern­
ing board.” The court gave this new board “ultimate au­
thority over academic, budgetary, personnel and admin­
istrative affairs of each public institution currently 
overseen by the Board of Trustees, the Southern Super­
visors, and the LSU Supervisors.” Appendix hereto, p. 
f>3a. The court also gave the board the special mission 
of monitoring and implementing the court’s remedial plan 
and of insuring progress toward eliminating Louisiana’s 
racially dual system.

The court set the size of this judicially created board 
at seventeen members, plus one non-voting student mem­
ber; fixed the term of office of its members; established 
the appointing authority; provided for staggered terms; 
set certain qualifications for board members; reserved 
to itself the right to appoint members to the board, un­
der certain circumstances, and, in any event, to veto its 
composition or any appointee thereto; empowered the 
board to appoint a president and an interim president to 
run the system and called for a substantial administra­
tive slaff whose qualifications it also set; and mandated 
advisory boards for each college, appendix hereto, pp. 
(>3a-(ifi>a. In setting up the board, the court rejected a 
finding of the Special Master that a specific racial make­
up of the board, seven black members out of seventeen, 
was necessary to protect the interests of historically black 
colleges and black students. Appendix hereto, p. 53a.

The district court structured the State’s colleges into 
a hierarchical tier, establishing a flagship/research uni­
versity, several doctoral and graduate program institu­
tions, and comprehensive institutions. With respect to

each tier, the court prescribed selective or open admission 
standards. For the new selective institutions, the court 
provided for a ride of ten percent admissions exceptions 
for other-race students, principally because of ils con­
cern for the negative effect selective admissions might 
have on black students. Indeed, the court decreed an end 
to the traditional system of open admissions to all State 
universities, in effect, limiting present student choice and 
set deadlines for the adoption of new admission standards. 
It also limited the availability of remedial education pro­
grams in the State’s four-year colleges, which programs 
principally assist in the college education of black stu­
dents. Appendix hereto, pp. 50a, G7a and 71a.

The district court also ordered the establishment of a 
new comprehensive community college system, beginning 
with the State’s four existing two-year institutions, and 
its vocational schools, and then expanding into other areas 
of the State with the creation of new community colleges. 
It set the requirement for the system’s administrative 
head and for his qualifications and mandated admission 
standards.'1 Appendix hereto pp. 70a-71a.

3 These remedies are less than obvious desegregation tools. Mr. 
Justice Holmes has stated in another context, “a page of history 
is worth a volume of logic.” New York Trust Co. v. Kinner, 25fi U.S. 
:M5, 249, 41 S.Ct. fiOG, r>07 (1021). Here, literally volumes of 
history show the irrelevance of the district court’s remedies to 
desegregation. For instance, Florida has had a single governance 
hoard since 1905 (Florida Statutes, Title 1(>, Section 240.205; 
Florida Stale Constitution, Article 9, Section 1); (leorgia, since 
1991 ((ieorgia State Constitution, Article 8, S4) ;  and Mississippi, 
since 1910 (Mississippi Statutes, 27-101-”, etseq .; Mississippi Con­
stitution, Article 8, § 2124, et seep) Yet each was charged by HEW 
and/or the U.S. Department of Justice with Title VI violations, as 
was Louisiana, a multi-board state. What these states historically 
had in common was not their governance structures, but their 
ollicial policies and practices of racial discrimination. No slate 
has ever adopted a single governance structure as a desegregation 
remedy, nor selective admissions, nor a community college system; 
and the United States did not seek nor support this remedy here. 
Compare Millikcn v. Bradley, 422 U.S. 289, 297, 97 S.Ct. 2749, 
2757-2758 (1977) (Milliken II) (requiring remedies to be related to 
desegregation).



14

Although the Southern University Law Center is ad­
mittedly integrated—with a student body that is 58 per­
cent black and 42 percent white, and a faculty that is bO 
percent black and 50 percent white—the court ordered its 
elimination and merger into the LSU Law (/enter, where 
less than one percent of the student body is black. The 
court justified this order on the grounds that: (1) the 
merger would eliminate program duplication, a claimed 
impediment to desegregation, and (2) the percentage of 
Southern graduates who passed the state bar examination 
on their first attempt demonstrated that Southern’s was 
an “inferior law school,” producing “a secondary class 
of lawyers unable to compete fully in the professional 
context.” No evidence was adduced at trial to support 
these conclusions or this merger. No notice or opportunity 
for a hearing was given to the parlies of the court’s in­
tention in this regard. The Special Master specifically 
recommended against merger of the law centers or any 
other institutions.

The court ordered funding to improve the quality of 
the State’s predominantly black universities, but only 
“whenever fiscally possible”, a standard left undefined. 
And it required its newly created board to develop a pro­
gram of “financial incentives” for institutions meeting or 
exceeding board-established desegregation goals, and “re­
verse incentives or taxes” for those consistently failing 
to meet their goals. Appendix hereto, p. 75a.

The court established a monitoring committee to evalu­
ate the progress of the new board and of each institution 
toward “specific compliance” with its Order. rl’he court 
also appointed members to the specific monitoring board, 
including a Dr. Paul Murrill, a former Chancellor of LSIJ 
and A&M College. The court cloaked the monitoring com­
mittee with authority to recommend appointees to the 
governance board in certain cases. The court ordered that 
if the governance board did not “achieve substantial 
progress toward eliminating the racial identifiability of 
Louisiana’s universities” within five years, then the moni­

toring committee was mandated “to recommend to the 
court more direct solutions, including court appointment 
of board members or direct, control by tin' committee of 
the system of higher education and merger of institu­
tions.” Neither the term “substantial progress” nor 
“racial identifiability” were defined in this context. How­
ever, the court retained “continuing jurisdiction to take 
appropriate action” to enforce its Order. Appendix hereto, 
pp. 7fia and 77a.

On July 21, 1089, appellant, the Grambling State Uni­
versity Alumni Association, and appellee filed post-trial 
motions variously for a new trial, to amend or alter 
judgment, or lo have the court’s judgment reconsidered, 
appendix hereto, pp. 724a, 779a, and 785a. Additionally, 
appellant filed a motion to stay the district court’s judg­
ment. On August 2, 1989, the State of Louisiana, 
through its Attorney General, joined in appellant’s mo­
tions. On August 4, the district court denied the motion 
to stay, and issued a “Supplemental Order,” granting in 
part and denying in part the post-trial motions of the 
several parties in an effort “to obviate any ambiguity or 
uncertainty” contained in its Judgment of July 19, 1989. 
Its August 4 Order provided measures to desegregate in- 
institutional staffs and administrators. It ordered the 
State’s four governance boards to “cease operation . . .  no 
later than thirty (20) days from entry of the court’s 
Order of July 1!)” ; and limited the period of the effect 
of its Order to December 1994, appendix hereto, pp. 105a- 
108a.

On August 18, 1989, this Court granted appellant’s 
and the Stale of Louisiana’s applications for a slay of the 
enforcement of the district court’s judgment in this mat­
ter pending the timely docketing of this appeal and the 
final disposition of this case, appendix hereto, p. 2a.

THE QUESTIONS ARE SUBSTANTIAL
The appropriate standards for crafting a desegregation 

remedy in the context of a higher education case, brought 
under the Fourteenth Amendment and Title VI, presents



ir>

a novel and substantial Question. It has never been ad­
dressed by this Court.

Appellant asserts that the controlling remedial stand­
ards are embodied in the Revised Criteria Specifying the 
Ingredients of Acceptable Plans to Desegregate State 
Systems of Public Higher Education, 43 Fed. Reg. f)f).r)8 
(February 15, 1978). The Criteria were promulgated by 
the then Department of Health, Education and Welfare 
(HEW), and are now administered by the Department 
of Education. Thus, they represent the agency’s inter­
pretation of Title VI compliance standards, as Congress 
has specifically required the agency to interpret the laws 
its administers. The agency’s interpretation of this law 
is a duty reposed to the agency by Congress and is bind­
ing upon courts, according to recent Supreme Court cases. 
NLRB v. United Fond and Commercial Workers Union, 
Local S3, AFL-CIO, —  U.S. 1»« S. Cl. 42(5
(1987); Youny v. Community Nutrition Institute, 47(i 
II.S. 974, 1 ()(i S.Ct, 23(50 (198(5); Chevron U.S.A., Inc. v. 
Natural Resources Defense Council, Inc., 4(57 H.S. 8.17, 
843, 104 S.Ct. 2778 (1984); Ford Motor Credit Co. v. 
Milhollin, 444 U.S. 555, 100 S.Ct. 790 (1980); Batterlon 
v. Francis, 432 U.S. 41(5, 425-2(5, 97 S.Ct. 2399 (1977). 
See also Adams v. Bell, 711 F.2d 101, 105 n.28, 29 (D.C. 
Cir. 1983), cert, denied, 4(55 U.S. 10(55, 104 S.Ct. 1272 
(1084) ; Adams v. Califano, 430 F. Supp. 118 (D.D.C. 
1977) (Order, 430 F. Supp. at 121). See also Adams v. 
Richardson, 35(5 F. Supp. 92 (D.D.C. 1973), modified and 
afj’d per curiam, 480 F.2d 1 159, 1 1(54-1 1(57 (D.C. Cir. 
1973).

Similarly, in Sinyleton v. Jackson Municipal Separate 
School District, 348 F.2d 729 (5th Cir. 19(55), the Fifth 
Circuit ordered the district court to apply HEW Criteria 
developed for elementary and secondary schools. The ap­
peals court recognized that, in enacting Title VI and in 
requiring such promulgations, Congress intended a uni­
form national policy in desegregation cases, and enforce­
ment of that policy by a national agency under nationally

applicable guidelines. See also United States v. Jefferson 
Comity Bd. of Ed., 372 F.2d 830 (5th Cir. 1900) aff’d 
cn tunic, 380 F.2d 385 (5th Cir. 1907), cert, denied, 380 
U.S. 1001 (1907) ; Brice n. Denison liidepedent School 
District Bd. of Ed., 348 F.2d 1010, 1015 (5th Cir. 1905); 
K. Saunders, Ayeney Interpretations and Judicial Re­
view: A Search for Limitations on the, ControUiny Effect, 
Given Ayeney Statutory Constructions, 30 Ariz. L. Rev. 
709, 770, 800 (1988).

In the instant case, the district court held that the 
Criteria applied “only during the voluntary compliance 
period” and were “not intended to be applied by courts 
adjudicating Title VI violations,” appendix, p. 85a. Thus, 
it refused to accord the Criteria any weight whatsoever.

This Court should decide whether there will he uniform 
national legal standards regarding higher education de­
segregation remedies, or ad hoc district by district court 
articulation of such standards to enforce Title VI. Uni­
f o rm  enforcement o f  the Equal Protect ion Clause through­
out the United Slates is one of the chief benefits of Title 
VI. Therefore, Title VI compliance requirements should 
not differ from slate to stale nor should they differ de­
pending upon whether compliance is voluntary or not.

The district court’s remedy strikes down provisions of 
Louisiana’s Constitution of 1974 and the numerous State 
laws that implemented them; eliminates a productive, his­
torically black professional school; and re-writes, as would 
a legislature, broad new chapters of higher education law 
for the State. In contrast, the Criteria provide a far less 
intrusive remedy.

Even without reference to the court’s disregard of the 
Criteria, the sweeping remedial scheme it fashioned was 
overly broad, presenting a substantial federal question. 
The district court was required to narrowly tailor its rem­
edy to fit the violation of rights involved. It would be jus­
tified in striking Louisiana’s laws as unconstitutional only 
where it was necessary to do so to cure the violation. The



18

least intrustive remedy was required to be employed. City
of Richmond v. J. A. Crosscn Company,------U .S .------- ,
109 S. (It. 700 (19891; Dayton lid. of Ed. n. Brinkman, 
433 U.S. 400, 99 S.Ct. 2700 (1978); Millikan v. Brad­
ley, 418 U.S. 717, 744, 94 S.Ct. 3112, 3127 (1974) (Mil- 
liken I); Whitcomb v. Chavis, 403 U.S. 124, 100-101,
91 S.Ct. 1858, 1877-78 (1971); Swann v. Charlotte 
Mecklenburg Bd. of Ed., 402 U.S. 1, 10, 91 S.Ct. 1207, 
1270 (1971) ; Pasadena City Bd. of Ed. v. Spangler, 427 
U.S. 424, 434 (1970) ; and li izzo v. Goode, 423 U.S. 302, 
377 (1970); Columbus Bd. of Ed. v. Pentcl:, 439 U.S. 
1348, 1353, 99 S.Ct. 24, 20-27 (1978). See also Sixty- 
Seven Minnesota. State Senate v. Bans,  400 U.S. 187,
92 S.Ct. 1477 (1972) (A federal reapportionment court 
should accommodate the relief ordered to the appropri­
ate provisions of State statutes relating to the legisla­
ture’s size as far as possible; drastically changing the 
size of the State senate and the size of the house of repre­
sentatives of the legislature is not required by the federal 
Constitution and is not justified as an exercise of federal 
power). Cf. Chayes, Foreword: Public Law Litigation 
and the Burger Court, 90 Harv. L. Uev. 4, 49 (1982). 
This is particularly true in education cases, where the 
Supreme Court has shown increasing reluctance to allow 
federal courts to trench on the prerogatives of State and 
local educational institutions, but instead leaves public 
education, insofar as constitutionally possible, under the 
control of state and local authorities. Regents of the Uni­
versity of Michigan v. Ewing, 474 U.S. 214, 220, 100 S.Ct. 
507, 513 (1985); Columbus Bd. of Ed. v. Penick, 443 
U.S. 449, 405 (1979) ; Board of Curators of the Univer­
sity of Missouri v. Horowitz, 435 U.S. 78, 90 (11)78) ; 
Keyes v. School District. No. 1 Denar, Colo., 413 U.S. 
189, 213 (1973); Alabama State Teachers Association 
(ASTA) v. Alabama Public School and College Authority, 
289 F. Supp. 784, 788 (M.D. Ala. 1908) (Three-Judge 
Court), aff'd per curiam, without written opinion, 393 
U.S. 400, 89 S. Ct. 08 (1909); Epperson v. Arkansas, 
393 U.S. 97, 104 (1908).

In the instant case, the district court could have at­
tacked the offending “racial identifiability” it found in 
the governance boards by specific orders requiring a given 
racial make-up, and specific orders respecting attracting 
other-race faculty and students, leaving to state authori­
ties the details of bringing the state into compliance, if a 
valid constitutional violation were found. Ruiz v. Estelle, 
050 F.2d 555 (5th Cir. 1981), cert, denied, 400 U.S. 1042 
(1983). Thus, there is no geometric fit between the rem­
edy of a single board or the other restructuring ordered 
and the claimed violation of racially identifiable boards 
and institutions.

Speculation by the Special Master, later adopted by the 
court, that under a single board funds would be “freed 
up . . . presumably to aid in the desegregation process” ; 
that it is “sensible that efficient decisions fof a single 
board 1 might aid in desegregation” ; and that while the 
“improvement” in desegregation in Florida under a single 
board is a “predictive” . . . “but by no means implausi­
ble” judgment for Louisiana, is too weak a support 
to dismantle a system of governance, admissions, and 
organization adopted fourteen years ago, subsequent to 
the <le jure segregative actions of the State. Appendix 
hereto, p. 058a.

Application of the Criteria or the prevailing jurispru­
dence to this case would not have required or permitted 
the elimination of the Southern University Law School. 
The Criteria declare a “unique role” for “traditionally 
black colleges.” They command that historically “white 
and black institutions are to function as part of a unitary 
system free of the vestiges of state-imposed racial segre­
gation” appendix hereto, pp. 871a, 873a. To disestablish 
the dual structure, the Criteria require a given State or 
agency to “specify steps to be taken to strengthen the 
role of traditionally black institutions in the state sys­
tem.” 4 As a desegregation goal, the Criteria seek more

4 As to the unique role of historically black colleges in the edu­
cation of the historical victims of discrimination, see Brief  of



20

and better-trained minority group doctors, lawyers, engi­
neers, and other professionals.

The court-ordered merger jeopardizes Southern’s proven 
capacity to produce qualified black lawyers in return for 
the uncertain prospect of a judicially perceived greater 
quality institution. Besides, the court’s reasoning is a 
non scquilur. Law graduates who do not pass the bm 
do not become attorneys. If bar passage is the standard 
of quality, then, can Southern law graduates who pass 
the bar be denominated a secondary class? Must they not 
be presumed equal in competence to other lawyers who 
pass the bar? Are they not, therefore, fully able to com­
pete in the professional context? To condemn those 
Southern graduates who become attorneys simply because 
they graduated from Southern is to ask, as Nathaniel did 
of Philip respecting Jesus Christ; “Can anything good 
come out of Nazareth?”—an unfounded and unreasonable

Amicus, National Association for Equal Opportunity in Higher 
Education, tiled and referenced in Ailn ms i>. Richardson, 480 1'.‘2d 
11 no, 1104-1105 (1).C. Oir. 1978), appendix, pp. 975a-984a. The brief 
argues, inter alia, that equal educational attainment achieving 
college degrees—not just c<pial access, is a goal of Title VI and 
the Fourteenth Amendment. Sec also “Statement by the National 
Association for Equal Opportunity in Higher Education,” appendix, 
pp. 970a, 985a-987a.

In Adams, the court stated:
The problem of integrating higher education must tie dealt 
with on a state-wide rather than a school-by-school basis. Per­
haps the most serious problem in the area is the lack of state­
wide planning to provide more and better trained minority 
group doctors, lawyers, engineers and other professionals. A 
predicate for minority access to quality post graduate pro­
grams is a viable, coordinated statewide higher education 
policy that takes into account the special problems of minority 
students and of black colleges. As Amicus points out, these 
black institutions currently fulfill a crucial need and will con­
tinue to play an important role in black higher education.

question, then and now.5 The Criteria suggest that im­
proving the quality of the already desegregated histori­
cally black law school, if indeed necessary, would more 
effectively assist black citizens to overcome the effects of 
de jure segregation, one of which is a paucity of black 
lawyers.0

The Southern Law Center was sva sponte ordered 
closed without a hearing and without regard to proper 
legal standards, in violation of the procedural and sub­
stantive due process rights of appellant and of the law 
center’s faculty and students. Cleveland lid. of Ed. v. 
Louder mill, 470 U.S. 2532 (1985); Meyer v. Nebraska, 
2(52 IJ.S. 390 (1923); Pierce v. Society of Sisters, 208 
U.S. 510 (1925); Cf. Dartmouth College v. Woodward, 4 
Wheat 512 (1819). “Audi alteram partem—hear the 
other side!—a demand made insistently through the cen­
turies, is now a command spoken with the voice of the 
Due Process Clause.” Caritativo v. California, 357 U.S. 
549, 558 (1958) (Frankfurter, J., dissenting). Earl v. 
McVeigh, 91 U.S. 503, 510 (1870). This is a principle 
of universal obligation. See also Baier, Framing and 
Reviewing a Desegregation Decree: Of the Chancellor's 
Foot and Fifth Circuit Control, 47 La. L. Rev. 123, 138 
(1980).

The district court’s finding of a constitutional infirm­
ity because the Slate maintains in the same city two

n Sec John 1 : Hi
“And Nathaniel said In him, can anything good cornu out of 
Nazareth? Philip said to him, come and see.”

Only a court that indulges the notion espoused by certain parties 
to ttiis cause that a predominantly black law center is necessarily 
inferior could, on the basis of such a fleeting glimpse at the 
Southern Law Center as the court below had in this case, confirm 
its inferiority. As with Philip, the district court was required 
to “come and see” in the form of a hearing and supporting record, 
to avoid making, as here, an uniformed judgment.

n Virtually all of Southern’s law graduates pass the bar exam, 
although not on the first attempt, appendix, p. 8G0a.



law schools with different admission standards and dif­
ferent orientations is not sup|>orted on the record, and is 
an impermissible tampering with the State’s valid educa­
tional choices.7

The Criteria also recognize, and the Special Master 
specifically found below, that the enhancement of pre­
dominantly black institutions (PBIs) is an essential in­
gredient of a plan to desegregate higher education. In 
the light of a clear record, the Special Master ordered 
that a percentage of the State’s operating and capital 
budgets be set aside each year to enhance PBIs. Under 
Rule 52 of the Federal Rules of Civil Procedure, this 
finding should have been implemented by the court since 
it was not “clearly erroneous.” This reasoning also ap­
plies to the Special Master’s finding that merger of the 
Southern Law Center into the LSU Paw Center was not 
justified on the record. See Day v. Wayne County lid. of 
Auditors, 719 F.2d 1199 (Oth Cir. 19841 ; NLIU! e. South­
western Hell Telephone Co., 730 F.2d 100, 108 (5th Cir. 
1984); See also Criteria, 1(B), appendix hereto, p. 875a. 
The vague and unclear order of the court to provide en­
hancement funding whenever fiscally possible, violates 
both the specificity requirements of Fed. R. Civ. P. 
05(d), and the well-stated rule that a State’s fiscal pos­
ture may not be taken into account in fashioning a d e ­
segregation remedy. See, Liddell v. Missouri, 731 I* .2d 
1294, 1320 (8th Cir. 1984), cert, denied, 409 IJ.S. 810,

7 Indeed, the record argues otherwise. Two distinguished h|W 
school deans, Peter liay, Associate Dean of the University of 
Illinois School of Law, and Charles Meyers, Dean of Standlord 
Law School, visited Louisiana law schools, including Southern 
University Law Center, and rendered a report to the State Hoard 
of Regents on legal education in Louisiana. This Report was 
attached to Chancellor B. K. Agnihotri’s witness statement sub­
mitted to the Special Master which was before the district court. 
See appendix, infra, pp. 1030a-10:$8a. These distinguished lega 
educators concluded that: "I I |t is essential for the well-being of all 
the people of Louisiana, not iust the blacks, for Southern University 
Law School to remain in existence and to grow in size and strengt i. 
Appendix, infra pp. 1044a-1045a and 1047a.

105 S.Ct. 82 (1984) ; Atiyeli v. Capps, 449 U.S. 1312, 101 
S.Ct. 829 (1981); and Williams v. Edwards, 547 F.2d 
1200, 1213 (5lh Cir. 1977), presenting other substantial 
federal questions. Further, the district court’s failure to 
specifically limit the term of its continuing jurisdiction, 
and the basis on which it is empowered to act to fashion 
new or additional remedies; as well as the failure to 
define the terms “substantial progress” and “racial iden- 
tifiability,” also violate Fed. R. Civ. P. 05(d).

Similarly, the court below condemned the Consent 
Decree—the parties’ voluntary settlement of their dis­
pute, and their voluntary acceptance of a remedy— 
without a hearing, even though a hearing was mandated 
by the Consent Decree itself. The court simply eye-balled 
the racial make-up of the colleges and boards—a test not 
permitted by the terms of the Decree—and concluded that 
the Decree had not and could not work, appendix hereto, 
pp. 34a-35a. It also made unsubstantiated and incorrect 
findings related to Consent Decree implementation, ap­
pendix hereto, pp. 35a, 572a-573a. The remedy imposed 
by the district court’s judgment was thus unnecessary, 
overriding the existing final judgment on remedy already 
entered in the case. See Firefly liters Loeal Union No. 
17H v. Stotts, 4(57 U.S. 5(11, 590-591, 104 S.Ct. 2570, 
2594-2595 (1984) ; United States v. Swift A: Co., 280 U.S. 
100, 115-1 17, 52 S.Ct. 400, 402-403 (1932).

The Decree operated as a judgment, whether a predi­
cate violation of Title VI or the Fourteenth Amendment 
existed, or whether its remedies were broader than legally 
required. Local Number !)%, International Association of 
Fire fly liters v. City of Cleveland, 54 U.S.L.W. 5005, 
5009-5010 (U.S. July 2, 1980). Since the scope of a consent 
decree must be discerned within its four corners, the dis­
trict court clearly exceeded its jurisdiction when it con­
sidered the question of liability under Title VI and the 
Fourteenth Amendment, and when it fashioned an en­
tirely new remedy. United States v. Armour Co., 402 
U.S. 073, 082, 91 S.Ct. 1752, 1757 (1971); United States



v. Atlantic Refining Co., 3(50 U.S. 19, 23, 79 S.Ct. 944, 
94f> (1959); and Hughes v. United States, 342 U.S. 353, 
72 S.Ut. 30(5 (1952).

The district court’s strained reasoning that it had au­
thority under the cited language of the Consent Decree 
to “provide additional or further relief as appropriate, 
disregards the obvious requirement that such a deter­
mination must be made “at the time of the hearing on 
Consent Decree compliance, pp. 12a-13a, supra, a healing 
that was never held. Even then, the Consent Decree al­
lows “additional or further relief as appropriate only 
to the extent necessary to insure its effective implemen­
tation.

No party argued, as the district court suggests, that 
merely signing the Consent Decree rendered the State’s 
system unitary, appendix hereto, p. 15a. But since the 
Decree had been entered as a judgment consistent with 
Title VI and the Fourteenth Amendment, a determina­
tion of compliance or not with its provisions was neces­
sarily the same as determining whether the system was 
unitary. The court’s assertion that it could not enforce 
Consent Decree-required remedies at a hearing held aflei 
the December 31, 1937 termination date of the Decree, 
even though the enforcement process of requesting a 
hearing began prior to the termination date, is non­
sensical. Appendix, pp. 15a-l(5a. Its reliance on United 
States v. Overton, 834 F.2d 1171, 1174, 117(5 (5th Car. 
1987), is erroneous. In Overton, the parties’ Consent De­
cree (or stipulated agreement), unlike in the inslant 
case, had terminated before relief under it was sought. 
Understandably, the Overton court could not enforce a 
decree that had expired by its own terms. Heie, the 
plaintiff’s motion was timely filed, thus, in accordance 
with the express provisions of the Consent Decree, ex­
tending its life and making its remedies enforceable at 
a compliance hearing, appendix hereto, pp. 335a and 
23(5a.

Although a final judgment, a consent decree must be 
construed as a contract for enforcement purposes. United

States v. ITT Continental Raking Co., 420 U.S. 223, 238, 
95 S.Ct. 92(5, 935 (1975). Thus, the district court lacked 
(lie power to enter a new remedy, but could only enforce 
the Decree by its terms. By its clear provisions, the Con­
sent Decree permitted the existence of both racially iden­
tifiable hoards and institutions at the end of its term, as 
long as the parties discharged their obligations in good 
faith, pp. 202a and 237a, supra. The court’s disregard 
of the Consent Decree thwarts a national policy favoring 
voluntary resolution of Title VI claims, and discourages 
settlement of desegregation cases—matters worthy of 
consideration by this Court.

Even if the court would apply the Criteria to voluntary 
compliance only, as the court below asserts, the Consent 
Decree obviously represents voluntary compliance by the 
parlies. Therefore, the Criteria should have been applied 
to this case for this further reason.

Additionally, the court’s requirements of selective ad­
missions, of a community college system, of reverse in- 
eontives for institutions failing to meet desegregation 
goals, and of eliminating remedial education in senior 
colleges, place disproportionate burdens on black students 
and black institutions, in violation of the Criteria and 
relevant jurisprudence.8 The Criteria declare that the

fi See Adams v. Richardson, 480 F. Supp. 118 (D.D.C. 1977), 
where tlie court stated:

The process of deseprepation must not place a preator burden 
on black institutions or black students’ opportunity to receive 
a quality public biplier educat ion. The deseprepat ion process 
should take into account the unequal status of black collepes, 
and the rea' danper that deseprepation will diminish hipher 
educational opportunities for Blacks. Without suppestinp the 
answer to this complex problem, it is the responsibility of 
IllOW to devise criteria for hipher education deseprepation 
plans which will take into account the unique importance of 
black collepes and at the same time comply with the conpres- 
sional mandate. Cf. Mayor and City Council of Baltimore v. 
Matthews. 502 F.2d 914, 922 and n.7 (4th Cir. 1977) ; and 
Mandcl v. U.S. Dept, of HEW, 411 F.Supp. 542 (D.C. Md. 
1976).



26

“transition to a unitary system must not be accomplished 
by placing a disproportionate burden upon black students, 
faculty or institutions or by reducing the educational op­
portunities currently available to blacks,” appendix hereto, 
p. 837a. Selective admissions, particularly the unre­
strained use of ACT scores which the district court per­
mits, will unduly limit the number of black students at­
tending college. Apparently recognizing this fact, the 
court ordered the institutions to reserve up to ten percent 
of admissions as “exceptions.” But these exceptions them­
selves will introduce now burdens for black students, 
labeling them as second class students.

The requirement of incentives and reverse incentives to 
reward and to penalize institutions for progress in ac­
hieving desegregation goals overlooks the obvious fact 
that historically black colleges can be expected to make 
slower progress. The result will be that these schools, 
which need more resources to desegregate, will get less; 
and getting less they will be less successful in achieving 
integration. The court’s threat of merger of racially 
identifiable colleges at the end of the five year term of 
the court’s order is. therefore, an ominous one—portend­
ing the elimination of historically black colleges and their 
productive capacity. And, contrary to the district courts 
conclusion, community colleges in the State of Florida 
have increased burdens rather than opportunities for mi­
nority students in higher education, appendix hereto, pp. 
916a-919a and 957a-974a.

In AST A, supra, a three-judge court held that where a 
State has eliminated de jure racial segregation, as long as 
the State or its institutions deal with admissions, faculty 
and staff in good faith, it discharges its affirmative duty 
to dismantle the racially dual system on the college level. 
289 F. Supp. at 790. The Supreme Court’s per curiam 
affirmance in AST A, 393 U.S. 400, 89 S.Ct. 681 (19(59) 
was a decision on the merits necessarily deciding the 
AST A holding and was, therefore, binding on tbe district 
court. See Hopfmann v. Connolly, 471 U.S. 459, 105 S.Ct.

2106 (1985); Anderson v. Celebrezze, 460 U.S. 780, 784, 
103 S.Ct,. 1564, 1568, n. 5 (1983); Mamlel v. Bradley, 
432 U.S. 173, 176, 97 S.Ct. 2238, 2240 (1977). The dis­
trict court declined to follow this precedent. Cf. Ayers v. 
Allain, 674 F. Supp. 1523 (N.I). Miss. 1987) appeal pcnd- 
iny appeal docketed No. 88-4108 (5th Cir. argued May 1, 
1989) ; Hides v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 
2281, 2289 (1975).

AST A correctly recognizes that a State cannot assign 
students to colleges as it can assign them to elementary 
schools; a State, therefore, cannot be forced by a court 
judgment to do something it has no power to do. Hence, 
the relative degree of integration of its colleges, without 
more, does not determine whether tbe state has satisfied 
its affirmative duty to dismantle a dual system.

The Sixth Circuit in (icier r. Alexander, 801 F.2d 799 
(6th Cir. 1986) appears to reach a result opposite to that 
of Ayers and AST A, but in erroneous reliance on tbe 
Supreme Court’s summary affirmance in Norris v. Stale 
Council of Hiyher Education for Va., 327 F.Supp. 13(58 
(E.I). Va. 1971), aff'd per curiam sub. nom., Board of 
Visitors of the Colleye of William A Mary in Virginia v. 
Norris, 404 U.S. 907, 92 S.Ct. 227 (1971). The Norris 
court, unlike the court in ASTA, declined to “trace the 
perimeter of a state’s obligation to dismantle all racial 
characteristics of a system of higher education that was 
initially segregated by law.” Norris’ holding, far from 
reaching Ibis monumental question, held simply “that one 
agency of the state . . . cannot impede another agency of 
the state . . .  in its efforts to fully integrate its student 
body.” 327 F.Supp. at 1373. Thus, Norris’ precedential 
value is limited to that simple holding. The court below 
misconstrued the Norris holding and incorrectly followed 
it.”

»The hope expressed in Green v. County School Board of New 
Kent County, 391 U.S. 430, 432, 88 S.Ct. 1G89 (19G8), for no 
white or black elementary and secondary schools, “just schools,” 
and the dictum in Norris, 1327 F. Supp. 1373 for “just colleges,”



Even if AST A does not state the controlling law, as 
appellant believes, then AST A and Afters, on the one hand, 
and Norris and drier  on the other, present a eonlli. i be­
tween lower courts and the circuits on Ibis most substan­
tial national issue.

Further, the actions that the State agreed to un­
dertake and those that it did undertake under the 
Consent Decree must be deemed affirmative steps to dis­
mantle the dual system, to the exl-nl that suHi are de­
manded by the good faith requirement. 1 be United 
Slates ami appellant have argued below that incompar­
able physical facilities at Fills indirectly exclude cer­
tain white students and affect their free choice, and dis­
proportionately burden the choices of black students who 
choose to attend Pills. Thus, a part of the good iaitli 
test, consistent with AS'l'A’s rule of unfettered student 
choice is the removal of any impediments to such choice 
lingering from the dual system. A stale may address this 
problem through added resources or other action designed 
to improve the integration and offerings of Fills. The 
emphasis here is not on “separate, but equal”, as the dis­
trict court incorrectly observed, since no racial separa­
tion is legally required; it is rather on ending racial sep­
aration through enhancement, app-ndix hereto, P- Tki. 
Appellant believes this is a reasonable reading of ASTA’s 
good faith standard, or at the very least, can be cn-

(|„ not necessarily mime that majority Mack public' relieves ollon.l 
(1,„ ( 'oti lilnlion. Appellant's hope is that availing black and 
while stud nls of equal access and opportunity in the sellings nl 
hisorieally white and black relieves will permit relieves such as 
are manaved by appellant to be recognized as "just relieves”- not 
predominantly black or formerly all black within the letter and 
spirit of tlrven, supra.

Indeed, the Criteria commit States to the “goal of organizing 
and operating the system and institutions of hivher education in 
a manner that promises realistically to overcome the effects of past 
discrimination and to disestablish the dual system, and winch 
assures that students will he attracted to each institution on the 
tmsis of educational programs and opportunities uninhibited by 
past practices of segregation." (Emphasis added.)

grafted upon the AST A standard without derogating from 
jt—presenting another important and unresolved federal 
question."'

The great weight of authority holds that the United 
States may not maintain a claim strictly under the Four­
teenth Amendment. Yet, the district court permitted the 
United States to do so and struck down Louisiana’s con­
stitution and laws as violative of the Fourteenth Amend­
ment, raising an additional substantial question. United 
States v. State of Alabama, 828 F.2d 1532, 1547 (lllli  
Cir. 15187) (per curiam) (The United States conceded 
that it had no standing to raise the Fourteenth Amend­
ment claim.), cert, denied, stilt, now. Hoard of Trustees
of Alabama State Vmversih/ v. Auburn,------IJ.S.------- ,
108 S.Ct. 1857 (1088) ; United Slates v. Cilf! of Philadel­
phia, (pH  F.2d 187 Clrd Cir. 1080); United Stales v. 
Mattson, GOO F.2d 1205 (0th Cir. 10701; United Slates 
v. Solomon, 5G3 F.2d 1121 (4th Cir. 10771. Although 
this Court has not ruled directly on this issue, based on 
tbe uniform authority of the various circuits, only Title 
VI claims were before the district court. Whether appel­
lee could raise Fourteenth Amendment claims is critical. 
The district court’s expansive remedy is grounded in con­
stitutional violations, testing the limits of its equitable 
powers. Title VI provides a more limited remedy, and 
(lie court could not strike Louisiana’s laws as unconstitu­
tional if appellee could not raise constitutional claims. A 
decision on Title VI grounds is distinct from an exercise 
in con stitu tion a l ini crprel al ion. b'ei/ents of the Uuiver- 
sitji of California v. Hateke, 438 U.S. 2G.r>, 281, 518 S.Ct.

m For instance, just to bring the physical facilities of Gramhling 
ami Southern to a level of comparability with agreed upon histori­
cally white institutions, the State committed during the term of the 
Consent. Decree to spend $79 million in capital outlay at Southern 
and $11 million at Gramhling. However, it spent only $14 million at 
Southern and $10 million at Grambling in capital outlay funds 
during this period. These disparities and the failure to fund 
them are admitted on the record and must be dealt with in order 
to afford a truly free choice to students, appendix hereto, p. 304a.



2733, 2743 (1978). Cf. U.S. v. Slate of Alabama, 791 
F.2d 1450, 1456 n. 6 (11th Cir. 1986). Tims, the dis­
trict court’s findings of unconstitutionality of Louisiana s 
laws is ultra vires.

Furthermore, the district court should have decided the 
case on statutory grounds or on the basis of the Criteria, 
and avoided the constitutional question. Under well- 
settled principles of judicial restraint articulated by tins 
Court, it was required to do so. Three Afjlhated Tribes of 
Ft. Bertole Reservation v. Wold Enpincemnef, 467 U.S. 
138 104 S. Ct. 2207 (1984); n
of California v. B a t h ,  438 U.S. MS, 281, 98 S.Ct 2733 
2743 (1978); Spector Motor Service v. McLau<ihlin, 323 
U.S. 101, 65 S.Ct. 152 (1944) ; and Aslnvander v. T.V.A., 
297 U.S.288, 347, 56 S.Ct. 466, 483 (1936).

CONCLUSION

For these reasons, this Court should note probable ju­
risdiction of this appeal.

Respectfully submitted,

WlI-UAM J. JEFFERSON 
Counsel of Record 

T revor G. B ryan 
V incent  P. Bean  son 
J efferson , Bryan , J upiter, 

Lew is & Bi.anson  
650 I’oydras, Suite 1850 
New Orleans, LA 70130-6101 
(504) 561-8933