Reno v. Bossier Parish School Board Motion to Dismiss or Affirm

    Nos. 95-1455 & 95-1508

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In The

Supreme Court of the United States
October Term, 1995

----------------«----------------

JANET RENO, ATTORNEY GENERAL OF 
THE UNITED STATES,

Appellant,
and

GEORGE TRICE, ET AL„
Appellants,

v.

BOSSIER PARISH SCHOOL BOARD,
Appellee.

On Appeal From The United States District 
Court For The District Of Columbia

MOTION TO DISMISS OR AFFIRM
---------------- ♦----------------

J ames J. T hornton , Counsel of Record 
for Appellee Bossier Parish School Board 
P. O. Box 4426 (71134-0426)
642 Stoner Ave. (71101)
Shreveport, Louisiana 
Telephone (318) 221-6294 
Fax (318) 221-4456

_ navTTNG co . (*»)
OOLLBCT <«2) 342-2*31



I

QUESTIONS PRESENTED

1 Whether the Trhil Court was eorreet in holding that 
evidence of alleged violations of Section 2 of the Vetting 
Rights Act cannot be used to deny preclearance under 
Section 5 of the Voting Rights Act

2. Whether the Trial Court was correct in its findings of 
fact that the Bossier Parish School Board redistricting 
plan was adopted without discriminatory purposes.

3. Whether the Trial Court correctly precleared the Bos­
sier Parish School Board redistricting plan.



i a m i: o f  ( O N i i n i s
I’a^e

Questions Presented 1

Statement of the Case I

Argument..................................................................................... 3

I Adoption of the Police )ury Plan Was Not
Racially Motivated................................................... 3

II I he Conduct of the Justice Department 5

III The Trial Court Was Correct in I folding I hat a 
Violation of Section 2 Should Nol Be the Basis 
for Denying Preclearance Under Section 5. .. 7

IV. The Trial Court Considered All Relevant Evi­
dence in Determining Discriminatory Purpose 
Under Section 5 in This Case 11

V. Appellants'  Redistricting Plan Is Neither
Appropriate Nor Constitutional 18

VI. The Long Run Consequences 20

Conclusion.................................................................................. 30

in

1 ABLE OH AUTHORITIES
Page

C a s k s :

Bossier Parish School Hoard v. Reno, 907 F. Supp. 434
(D D C 1995).......................................................................  14

Hays v. Louisiana, 839 1 Supp. 1188 (W.D. La. 1994) . . . .  20

Holder v. Hall, I 14 S e t  2581 (1994)................................  20

Miller v. Johnson, 115 S Ct 2475 (1995) ..............  6, 19, 21

New York v. United States, 874 F. Supp. 394 (D.D.C.
1994)............................................................................................ 13

Orr v. Orr, 440 U.S. 268 (1979)........................................... 27

Rev. Jesse Carroll Knight, Sr, el al v. VV Fox 
McKeilhen, Secretary of State, No. 94-848-A-2,
(M.D La. 1995)..................................................................... 18

Rome v. United States, 446 U.S. 156 (1980) .................... 12

Shaw v. Reno, 113 S Ct 2816 (1993).................................... 6

Thornburg v. Gingles, 478 U.S. 30 (1986) ..............................  20

Village o f Arlington Heights v. Metropolitan Housing
Dev. Corp., 429 U.S. 252 (1977)............................................. 11

C onstitution  and S tatutls:

United States Constitution 
Amend. XIV..................

Amend XV

Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.
Sec. 2 42 U.S.C. 1973................................  7, 10, II, 12

Sec. 5, 42 U.S.C. 1973c...........................................passim



I \

1 A l i i  F  ( >1 A l l  1 III >R1 1 1 I S l  o l l t l l i n e d

Page

Louisiana Rev Stat 11tie 17, Sec 7 1 3 F 4

Attorney General's Regulations. 28 l I K  I’l 51, ft
s e i ] ......................................... 8

•1

APPELLEE'S MOTION LOR DISMISSAL OF 
APPELLANTS' APPEAL AND/OR AFFIRMATION OF 

THE JUDGMENT OF HIE TRIM COURT

Appellee respectfully requests that the Court deny 
the appeals of Appellants Janet Reno, Attorney General 
of the United States and George Price et al. from the 
judgment of the United States District Court for the Dis­
trict of Columbia. I he Trial Court opinion is reported at 
907 E.Supp 434 (For the convenience of the Court, all 
citations to the Trial Court opinion will be to the opinion 
as reproduced in the Appendix attached to the Jurisdic­
tional Statement filed by Appellant, Janet Reno, Attorney 
General of the United States.) Because the Jurisdictional 
Statements ot both appellants are substantially the same 
and are based on the same set ot facts, this response is 
directed at both appeals. In this response, we will identify 
the appeals by designation of the particular appellant

---------------- +-----------------

STATEMENT OF THE CASE

This case should never have been litigated. That it is 
now posited in the United States Supreme Court emphas­
izes the wreckage that is so often wrought by the exercise 
of virtually unlimited authority coupled with an 
unbridled penchant for social engineering It illustrates 
beyond peradventure the danger of zeal untempered by 
judgment, the quick fix without thought to long term, 
unsavory political consequences.

In 1991, the Bossier Parish Police Jury, the governing 
body of the parish, redistricted. The Jury consists of 
twelve members elected from single member districts. In 
1991, eleven members were white, one black The redis­
tricting plan was unanimously approved by the Jury and



submitted to the lullin' I )t-pa 1 1 ment AIUt arranging lor 
the relocation of several polling stations, the justice 
Department blessed the etlort and granted preclearance 
(Trial Court Opinion at pp da, da )

Dossier Parish has a population of 86,088 ot whom 
20.1 per cent are black blacks comprise 17 6 per cent of 
the voting population and 15 5 per cent of the registered 
voters Dossier City, the largest city in the parish, has a 
population of 52,721 of whom 17 95 per cent are black 
The remaining black population is scattered throughout 
the parish in Denton, Plain Dealing, Princeton and 
Haughton 1 (Trial Court Opinion at p 2a.)

because the concentrations of black residences are so 
scattered, the Police jury's cartographer was unable to 
draw any black-majority districts that were contiguous 
and compact. (See Complainant's Exhibit No 17 at pp. 
2-6.) After the 1980 census, twelve districts with white 
majorities had been drawn. Nonetheless, Mr Jerome 
Darby, a black, had won two terms, each time in runoffs 
against a white candidate. After prci learance of its new 
plan, Mr. Darby ran unopposed. (Irial Court Opinion at 
P 2a.)

The Dossier Parish School board began its redistrict­
ing in 1991. There was no emergency because the next 
school board elections u ere not scheduled until the fall of 
1994. Mr. Gary Joiner, the cartographer who had assisted 
the Police Jury, was hired by the School board lie set 
about his tusk by discussing with board members their

1 The Justice Department's jurisdictional Statement states
that black residences are concentrated in two areas. Not so The
Trial Court opinion at page 2a has the accurate picture

3

preferences.2 In September, 1991, board member Thomas 
Myrick suggested that because the Police jury and the 
School board were the same si/e, the School board should 
simply adopt the Jury plan His suggestion, although not 
immediately acted on, planted a seed that matured a year 
later

ARGUMENT

I. Adoption of the Police Jury Plan Was Not Racially
Motivated

Ihe Irial Court had no difficulty in divining the 
reasons the School board adopted the Police Jury plan. 
The Trial Court found as fact that the motives were not 
discriminatory. (See Trial Court Opinion at 27a cl sci/ ) 
Two paramount reasons were emphasized by the C ourt:

1. The Jury plan offered "guaranteed preclearance."

2. The Jury plan offered "easy implementation.'

I he Trial Court could have added that adopting the 
Jury plan was less expensive than fashioning a new plan, 
was a suitable compromise to competing appetencies 
advanced by the members, would terminate a matter that 
threatened to divert attention from educational consider­
ations, and obeyed Louisiana electoral law in that it did 
not retjuire the splitting of existing precincts.3 In essence,

2 Joiner testified that in addition to the usual concerns ol 
incumbents, school board members identify with schools in 
their districts and try to hold on to them

3 The Trial Court had difficulty dealing with the Louisiana 
Statute that prohibited the splitting of any existing precincts 
whatever if the Police Jury and the School Board of a parish



4

Hie Inal Court lomul as tart that the School hoard |>re 
sented a prinui fiuic case for preelearance It did not 
believe that Appellants' rebuttals were sufficient to tip 
the balance in their favor (lrial Court Opinion at p 
27a-30a ) The Trial Court rejected the allegations that the 
Board did not want a black member by pointing out that 
the Board during the period when it was considering a 
plan, appointed Nlr Jerome Blunt, a black, to fill a Board 
vacancy

were the same size See l a Kev Stat , 11tie 17, Sec 71.3b. No one 
ever alleged that this statute was unconstitutional; had it been 
so challenged, the Trial Court would have been obligated to 
invite the Louisiana Attorney General into the suit to defend the 
statute. The Louisiana prohibition against splitting precincts 
has no racial overtones It is based merely on the happy 
assumption that when the Justice Department preclears a police 
jury plan on Monday, it will not repudiate its action on Triday 
To be sure, some precincts are split with the permission of the 
Police Juries in matters of this kind, but we are chary of 
asserting that a Police Jury can violate state law at its whim 
Perhaps, a federal court can give a plan splitting prec incts its 
blessing and cure the violation (and again we doubt that a 
federal court can order violation of a state law without an 
allegation that the law is unconstitutional), but when the School 
Board was reviewing its options, its attorney and cartographer 
both told the Board that splitting precincts was not an option 
(Tr. Vo I 1 pp 488, 49, 108, 109, 143. 148 ) In any case, the Trial 
Court found that the NAACP plan advanced at the time split 
some forty-six precincts, a ridiculous and unprecedented 
number. But this is sophisticated and slightly convoluted legal 
reasoning, far beyond the province of the average Board 
member.

5

11 The Conduct of the Justice Department

Prom the beginning, Justice Department personnel 
along with intervenors were persuaded that Bossier Par­
ish is a cesspool of racial bigotry, a bit of stereotyping 
that would be denounced with strident indignation if 
applied to any ethnic or racial minority.-* This was the 
predisposition of the Justice Department before any evi­
dence was taken; thereafter, they combed through the 
evidence in a frantic search for something, just anything, 
to sustain their predilections. In negotiations prior to this 
suit, the personnel were stern and unyielding. They made 
it abundantly clear that nothing less than two black- 
majority districts would support a preclearance; they also 
let it be known that they did not care how bizarre the 
districts appeared, how unsound demographically tluy 
were, or how many Louisiana statutes would be violated 
in the process. One black-majority district would not 
suffice.

Of course, political entities can always seek justice by 
filing for a declaratory judgment in the United States 
District Court in the District of Columbia. Except that few 
can. Many small entities cannot afford the luxury of 
resistance which Justice Department personnel warn 
them will be cost prohibitive. Most of these political 
entities are represented by district attorneys who are 
chronically overworked and understaffed, have no 
knowledge of the Voting Rights Act, have not the time lo 4 *

4 The most pernicious phrase tossed about by the Justice
Department involves the right of blacks to elect candidates o 
their choice, as though it is inconceivable that a black should 
vote for a white or a white for a black, without regard to the 
experience of the candidate, his political agenda, and his 
political appeal.



(1

study it, arc largely skilled in criminal law only, and, in 
short, do not have the resources to counter the inexhaust­
ible funds and live bodies the justice Department can 
hurl against them 5 1 hey are less than thrilled at litigating 
in a strange court with unfamiliar rules And, of course, 
before Shaw v Reno, 113 5 Ct 2816 (1993) and Miller v 
Johnson, 115 S Ct 2475 (1995), there was every reason to 
believe that litigating the matter was the proverbial exer­
cise in futility Fmtity after entity m I ouisiana collapsed, 
indignation turning to mush, under the pressures exerted 
by the relentless personnel of the Justice Department. The 
Bossier School Board alone in Louisiana dared the gov­
ernment and braved the costly litigation in the District of 
Columbia, not because its membership was racist, but 
because its cause was just t here is something to be said 
for sacrifice in pursuit ol principle, old-fashioned and 
trite as it may sound. The determination of a free people 
to seek justice and to retain control of its electoral system, 
a precious democratic heritage, should not be confused 
with racism. It is shameful for Appellants to stereotype 
the Board members as racists because they are white;

5 The Justice Department descended on Bossier Parish in 
platoon strength. They pored through every record the School 
Board had and demanded copies of things that were not even 
remotely relevant. They brought these records to court in a 
device not unlike the carts used by hotels to tote around 
baggage They flew to Washington eight witnesses, three 
opinion witnesses and a tarlographer At tunes arrayed against 
the Board were upwards ol a dozen attorneys and support 
personnel Supplying what the Justice Department demanded 
was a full time job Counsels lor the Board felt they could not tax 
the School Board's resources beyond taking to Washington two 
board members,  the cartographer and the school 
superintendent. If the United States operates at a fiscal deficit, 
no one has bothered to tell Justice Department personnel about

were we to stereotype blacks or other ethnic minorities in 
the same manner, we would immediately be showered 
with charges of racism and discrimination. The sad fact is 
that despite recent Supreme Court and lower courts' 
opinions, political entities will probably still be bully­
ragged and dragooned by the Voting Rights Section of the 
Justice Department who continue to insist, like Robes­
pierre, that they have a monopoly on virtue.6

111. The Trial Court Was Correct in Holding that a 
Violation of Section 2 Should Not Be the Basis for 
Denying Preclearance under Section 5.

The Appellant Justice Department in its Jurisdictional 
Statement argues that alleged violations of Section 2 of 
the Voting Rights Act should be cause to deny pre­
clearance to a jurisdiction under Section 5 of the Voting 
Rights Act.

6 Test we be misunderstood, we do not believe that the 
Voting Rights Act was a mistake. It was needed to correct abuses 
that had too long persisted It certainly met the needs and 
circumstances of the day We cannot s.iy the same for the 
distortions of the Act for which the Justice Department is 
responsible. Even today, we would not dismantle the Act. We 
would amend it so that preclearances could also be granted by 
local three-judge federal courts, whose judges take the same 
oath of office as District of Columbia judges, and have been 
entrusted with integrating the school system, handling civil 
cases involving discrimination, handling Section 2 cases under 
the Voting Rights Act, and presumably have as much integrity 
and knowledge as federal judges in other parts of the country It 
would make it less costly for political entities to seek justice and 
have their rights vindicated Mr. Justice Holmes was quite 
correct when he spoke of rights without remedies. Justice 
should not depend on the weight of the pocket book



K

I he argument is threefold I) h> hold otherwise sen 
ously undermines the Justice Dep.irtment s efforts to 
enforce Section 5; (Jurisdictional Statement of the Justice 
Department p 13) 2) The legislative history shows that 
the Senate intended this to be the case; (Jurisdictional 
Statement of the Justice Department p 4) and 3) The 
Attorney General s regulations to this effect (2$ C Pk It 
51, ft seq ) should be given great deference (Jurisdic tional 
Statement ot the Justice Department p 14)

1) Lnfoneinenl ot Sec lion 5 As the lrial Court cor­
rectly holds, this Court's decision in Miller v Johnson, 
supra, disposes of this claim. (Trial Court Opinion, at pp. 
20a-24a ) The Trial Court states that the Supreme Court in 
Miller held that

[T|he manner in which the Attorney General 
liad employed Section 5 of the Voting Rights Act 
was 'insupportable', and that the Attorney Gen­
eral's incorrect interpretation of Section 5 could 
not be a compelling state interest sufficient to 
survive strict scrutiny (Trial Court Opinion at p 
2()a, citing Miller at 2492 )

The District Court further points out that the Miller Court 
"noted that the purpose ol Section 5 is to avoid retrogres­
sion in the position of minority voters, and stated that the 
'Justice Department's maximization policy seems quite 
far removed from this purpose " (Inal l our I Opinion at 
p 21a, citing Miller at 2 4 0  )

When the Justice Department denied preilcarance in 
this case they were operating under the same "maximiza­
tion" policy as the policy repudiated by this Court in 
Miller. As the Trial Court held,

[DJefendant's argument that the School Board's 
adoption of the Police Jury plan rather than

something like the NAACP plan runs afoul of 
Section 5 is indistinguishable from an argument 
rejected Dy the Court in Miller v Johnson. Here, 
defendant argues that the School Board has 
failed to provide an adequate reason explaining 
why it declined to act on a proposal featuring 
two majority-black districts The Supreme Court 
described this position as insupportable" and 
stated that Georgia's adherence to "other dis­
tricting principles instead of creating as many 
majority-minority districts as possible does not 
support an inference that the plan 'so discrimi­
nates on the basis of race or color as to violate 
the constitution,' and thus cannot provide any 
basis under Section 5 for the Justice Depart­
ment's objection." (Trial Court Opinion at pp.
24a-35a, citing Miller at 2492, citations omitted.)

The Trial Court correctly followed this Court s hold­
ing in Miller and held that

The key to defendant's position in this case, 
similarly, is that the School Board has not pro­
vided an adequate explantion for adopting the 
precleared Police Jury plan when it had before it 
the NAACP plan. As Miller makes clear, the 
adoption of one nonretrogressive plan rather 
than another nonretrogressive plan that contains 
more majority-black districts cannot by itself 
give rise to the inference ot discriminatory pur­
pose. . . The Miller Court rejected this theory of 
Section 5, and we will not resuscitate it here. 
(Trial Court Opinion at pp 35a-36a.)

Appellant's argument that the District Court s holding 
should be overturned because it impedes Justice Depart­
ment efforts to enforce their erroneous interpretation of 
Section 5, is unavailing.



2) / egislative Hishoi/ As the District C ourt con- 
eluded "We hold. <is h.is every court lh.it h.is considered 
the question, th.it .i political subdivision th.it does not 
violate either the 'effect' or the 'purpose' prong of Section 
5 cannot he denied preclearance because of an alleged 
Section 2 violation " (lrial Court Opinion at pp I la 12a ) 
Given the serious federalism concerns invoked by Section 
5's "extraordinary procedure" of requiring federal pre­
clearance of states' redistricting legislation (lrial Court 
Opinion at p 13a), the different functions of the two 
sections (Trial Court Opinion at pp 14a 15a), the differ­
ence in the allocation of the burden of proof between the 
two sections (Trial Court Opinion at p lba); and the 
unambiguity of the statutes (Trial Court Opinion at p 
17a); the Court below "would not be pursuaded that what 
little legislative history defendant has discovered is suffi­
cient to justify the radical expansion of already significant 
encroachment on the prerogatives of States and their 
subdivisions " (Trial Court Opinion at p 17a )

3) Deference In Attorney General's Regulation. In 
response to the deference argument, the lrial Court 
pointed out "Wherever else the Attorney General's inter­
pretations of Section 5 of the Voting Rights Act may be 
entitled to deference, it certainly is not in this court We 
will not defer to the Attorney General where, under the 
statute, an action seeking preclearance may he brought 
here in the first instance " (Trial Court Opinion at p lHa 
citing cases at IHa-ITi )

IV. The Trial Court Considered All Relevant Evidence 
in Determining Discriminatory Purpose Under 
Section 5 in This Case

The Trial Court majority correctly held that the flos­
sier Parish School Board Plan was entitled to preclearance 
because the plan does not have a discriminatory "effect" 
and was not adopted with a discriminatory "purpose" 
but rather was adopted for legitimate, nondiscriminatory 
reasons

Appellants argue that even even if a Section 2 viola­
tion is no basis for denying preclearance under Section 5, 
evidence of such an alleged violation (i.e., of factors set 
forth in Village o f Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U S 252 |I977|) should nonethe­
less be considered by the District Court in making a 
determination under the "purpose" prong of Section 5.

As this Court is aware, Arlington Heights is not a 
Section 5 case. The case articulates a much-used standard 
for evaluating "discriminatory purpose" in constitutional 
and Section 2 cases. As the Trial C'onrt recognizes, how­
ever, this is not the appropriate standard for the "extraor­
dinary procedure" called for under Section 5. The Trial 
Court's opinion makes clear its analysis of Section 5 and 
the jurisprudence leads it to the conclusion that the "fed­
eralism costs" of Section 5 put it in a different category 
from constitutional challenges under the Fourteenth and 
Fifteenth Amendments and Section 2 challenges. The 
Trial Court held:

|T|he statutory language sets forth differing 
standards for the two sections. The line cannot 
be blurred by allowing a defendant to do indi­
rectly what it cannot do directly. The federalism 
costs already exacted by Section 5 are seriously



increased it under the guise ot ''purpose evi­
dence, alleged Section 2 violations must be 
countered by the political subdivision whenever 
it seeks preclearance (Trial Court Opinion at 
21a, n 11), 23a )

: Instead, the District Court correctly humiliated and 
utilized the proper "purpose" analysis in a Section 5 
proceeding. The Court held that the plaintiff (here the 
School board) bears the burden ol proving that it did not 
adopt the Police jury plan with a discriminatory purpose. 
(Trial Court Opinion at 24a, citing Rome v. United Stales, 
446 U S 156, 183 (1480) ) The Court goes on to note that 
"(H|ow this plays itself out in litigation has been left 
largely unexplored But a burden of proving non­
discrimination on the plaintiff is anomalous under our 
law; the plaintiff is put in the position of proving a 
negative " (Trial Court Opinion at 25.i )

The District Court held that

|0|nce the Board makes out its prima pm e  case, 
it is entitled to preclearance unless its prima facie 
case is rebutted If, however, the School
Board's evidence is more persuasive than the 
evidence proffered against it, the School Board 
is entitled to preclearance To make out a prima 
facie case for preclearance, the School Board 
must demonstrate that the proposed change will 
have no retrogressiv e effect, and that the change 
was undertaken without a discriminatory pur­
pose. Proof of nondiscriminatory purpose must 
include "legitimate reasons" for settling on the 
given change. (Tnal Court Opinion at pp 
26a-27a, cases omitted here )

The District Court followed a co-equal panel in this 
analysis. (Trial Court Opinion at p. 27 a, n.14, citing New

13

)mk v United States, 874 h Supp. 364, at 4(H) (D D C, 
1494))

Both the justice Department and George Price, et al. 
claim that the evidence of discriminatory purpose pre­
sented at trial was probative ot the School Board's dis­
criminatory purpose. (Jurisdictional Statement of the 
Justice Department at p. 15 and Jurisdictional Statement 
of George Price, et al at p 2.)

hven though the Trial Court decided that much of 
this evidence was not relevant to a Section 5 action (Trial 
Court Opinion at p 9a n 6), it may be helpful to elaborate 
for this Court on the nature of some of the evidence that 
the Appellants claim the Court below ignored.

The Justice Department and George Price, et al. claim 
that "The white Police Jurors and their demographer 
knew, just as the School Board knew during its subse­
quent redistricting process, that it was feasible to create 
two reasonably compact black-majority districts " (Juris­
dictional Statement of the Justice Department at p 8, 
citing Stipulations. 76a #36, 82a-83a #53, 114a #148 and 
Jurisdictional Statement of George Price, et al at p. 5 ) 
The referenced stipulations read as follows:

#36: At the time of the 1990-91 redistricting 
process, some Police Jurors were specifically 
aware that a contiguous black-majority district 
could be drawn both in northern Bossier Parish 
and in Bossier City. At the time of the 1990-91 
redistricting process, it was obvious that a rea­
sonably compact black majority district could be 
drawn within Bossier City. "Contiguous here 
means that all units of geography in the district 
have some common border with some adjacent 
unit." (emphasis added]



11

#53: At the April 25, 1491 Bossier Parish I’olice 
fury meeting, ('.ary |oiner presenter! three plans 
to the Pul in’ fury These alternative plans Brawn 
by Joiner were called Plan 5, Plan 8, ami Plan 9 
A number of members of the bl.uk community 
attended and asked about the creation of a 
black-majority district Joiner stated that the 
wide distribution of blacks in the parish marie a 
black-majority disliict "statistically impossible"
At deposition, |omer acknowedged that he 
knew at th.it time that drawing two black-major­
ity districts within Bossier Parish was "statis­
tically" possible, in that you could create two 
majority-black districts at a census block level 
with the correct population, ignoring precinct 
considerations. |emphasis added|

#148: The northern parish minority district in 
the Cooper Plan, District H, is similar in shape 
and location to District 2 ol the NAACP Plan, 
but is less elongated and more compact The two 
are sufficiently similar so that the possibility of 
creating a district like the Cooper District 8 was 
readily discernible However, Cooper District 8 
is shorter and more compact

Where in this "evidence" (which Appellants claim 
was "ignored" by the Court) is proof that a majority of 
the School Board members knew during their subsequent 
redistricting process that it was feasible to create two 
reasonably compact black districts? The evidence clearly 
shows that they were told by both the demographer and 
the District Attorney (the two persons upon whose 
opinons they would most likely and most reasonably 
rely) that in fact they could not draw the majority black 
districts in the NAACP plan without violating state law 
and without violating traditional districting principles. 
(Tr. Vol. I, pp- 48-49, 108-109, 143, 148 )

15

The Trial Court pointed out that Defendant and Inter- 
venors below

contend that the Police Jury plan itself was pre­
cleared by the Attorney General only because 
relevant information was withheld from the 
Attorney General In order for this to be evi­
dence that the School Board adopted the Police 
Jury |>l.in with an impermissible purpose, the 
School Hoard would have to have known that 
such information had been withheld from the 
Attorney General, and that but for that with­
holding, the Attorney General would not have 
precleared the Police Jury plan. We know of no 
evidence even suggesting the School Board had 
any knowledge that the Police Jury plan had 
been precleared illegitimately it in fact it had 
been. (App. 28a-29a.)

The Trial Court did not ignore evidence "that the School 
Board knew during their subsequent redistricting process 
that it was feasible to create two reasonably compact 
black districts". There was no such evidence to be 
ignored.

As the Trial Court correctly recognized, the fact that 
the School Board originally did not like the Police Jury 
plan (because it pit incumbents against each other and 
did not include schools in every district), argues not for 
their willingness to subvert these concerns to their dis­
criminatory purpose, but rather the importance they 
placed on the legitimate purposes, i e., "guaranteed pre­
clearance" and "easy implementation." (Trial Court Opin­
ion at p. 28a.) As the Trial Court said,

The Police Jury plan wreaked havoc with the 
incumbencies of four of the School Board mem­
bers and was not drawn with school locations in



It,

mind When, however, the redistncting process 
began to cause agitation within the black com­
munity, anti when it became obvious that any 
plan adopted by the School board would give 
rise to controversy and division (and we find 
that by the time the NAACP's redistricting plan 
had been presented to the School Board, the 
Board could very reasonably foresee this), the 
Police Jury plan became, as Board member Myr- 
ick described it, 'expedient.' Any port will do in 
a storm, anti when the clouds over the School 
Board's redistricting process began to grow omi­
nous, the only close port was the already pre­
cleared Police jury plan." (Trial Court Opinion 
at p 2Ha )

Appellants make much of statements made by three 
School Board members as evidence of discriminatory pur­
pose. (Jurisdictional Statement of George Price, et al. at 
pp. 10-11 and Trial Court Opinion at p 30a ) The Trial 
Court found this evidence unconvincing, as did the dis­
senting judge. (Trial Court Opinion at pp. 30a-32a and 32a 
n. 17.) And this was, by their own assertion, the "best 
evidence of discriminatory purpose" put forward by 
counsel for Intervenors below. (Trial Court Opinion at p 
32a n.17.) The Trial Court majority found that this evi­
dence constituted the "direct” evidence presented by 
Defendant and Intervenors (Appellants here) and consis­
ted of the alleged statements of three School Board mem­
bers. The Trial Court concluded that "none of these 
statements attributed to these Board members, it they 
were in fact made, show that the Board acted with dis­
criminatory motivation " (Trial Court Opinion at p 30a ) 
The dissenting judge found "These statements standing 
alone would certainly be insufficient to show discrimina­
tory purpose." (Trial Court Opinion at p. 32a n 17.)

17

The majority in the Irial Court below then discusses 
the "indirect" evidence. The Court found that the evi­
dence that "defendant relies most heavily upon is the 
'sequence of events leading to the school board s adop­
tion of the police jury plan.' " (Trial Court Opinion at p 
33a, citing Defendant's Brief at p 15 ) The Trial Court says 
that "Defendant argues that these events raise an infer­
ence that the plan was adopted with a discriminatory 
purpose " (Trial Court Opinion at p. 33a ) The Court, 
however, rejects this argument, holding

(Wje think that assuming that the quick rejec­
tion of the NAACT plan is probative of a dis­
criminatory purpose requires at least that the 
Board have regarded the NAAC1’ plan as a plau­
sible plan. We have no evidence that the plan 
was, as an objective matter, plausible. And, 
we have no indication that the School Board 
itself thought the plan plausible. The existence 
of the NAACT plan demonstrated to the Board 
that its efforts to redistrict would be subject to 
exacting review and vociferous criticism I he 
swift selection ol the only plan around that bore 
the imprimatur of the Attorney General resem­
bles not a brazen stroke in the name of racist 
redistricting but an understandable, if not nec­
essarily laudable, retreat from a protracted and 
highly charged public battle. (Trial Court Opin­
ion at pp. 33a-34a.)

Thus, as the Trial Court found, there is insufficient 
evidence in the record which is relevant to a Section 5 
inquiry to rebut the School Board's prima facie case that it 
adopted the precleared Police Jury plan for legitimate, 
nondiscriminatory reasons and the judgment of the Trial 
Court should be affirmed.



18

V. Appellants' Redistricting Plan Is Neither Appropri­
ate Nor Constitutional

Despite Appellants' assertion to the contrary, the 
redistricting plan they sponsored as an alternative is nei­
ther appropriate nor constitutional It is not appropriate 
because it fashions two bizarre and outrageously gerry­
mandered black majority districts solely for racial consid­
erations. We have already mentioned that the NAACP 
plan split some forty-six precincts. (Even Creel, their 
witness on splitting precincts, testified that the most he 
had seen split was eight ) The final Cooper plan split 
twenty-four precincts by C ooper's own account. (Tr., Vol. 
II at pp 176-177 ) In the District Court for the Middle 
District of Louisiana, the first plan devised by Appel­
lants cartographer, Mr William C ooper, was put forward 
to the Court in a suit brought by certain black Bossier 
Parish residents as a proper alternative to the Bossier 
Plan.7

I he final Cooper plan was a most unimpressive 
effort Mr Cooper obligingly told us that he prepared this 
plan to fashion two black majority disli n Is lie admitted 
fo Judge Richey that his districts were not compact, when 
he was asked by the Court it compactness was important.

7 This suit was entitled Rev last' Carroll Knight Sr ft al v 
W. Fox McKeithen, Secretary of Slate. No. 94 848-A-2. in the 
United States District Court for the Middle District of I ouisiana, 
Judge John Y Parker, presiding Judge Parker characterized the 
Cooper plan as an octopus with tentacles in all directions See 
copy of Judge Parker's comments into the record at the end of 
the trial in the Knight case which forms an exhibit in this case 
(See Complainant's Exhibit No 9 ) Judge Parker refused to 
install Mr Cooper's plan The second Cooper plan advanced by 
Defendant/Intervenors in this case was the same plan as in 
Knight with very insignificant alterations

19

he assured Judge Richey that compactness was of no real 
significance That is news to us and appeared to be news 
to the Court as well (See Ir, Vol II at pp 178 el set}.)

But it we lead Miller v johnson correctly, the Cooper 
plan would also be unconstitutional The majority opin­
ion in the Miller case squarely held that Section 5 of the 
Act did not require maximization of black-majority dis­
tricts, and, indeed, to fashion districts solely or substan­
tially for racial purposes is a violation of the Equal 
Protection clause of the Fourteenth Amendment See Mil­
ler v. Johnson, 115 S.C t. at 2-193 I he Miller case made it 
crystal clear that the Voting Rights Act was intended to 
prevent retrogression and did not mandate a policy of 
maximization of black-majority districts so vigorously 
and uncompromisingly advanced by the Justice Depart­
ment.

Were this court to invalidate the judgment of the I rial 
Court, the Bossier Parish School Board would be in a 
dilemma from whic h there is no escape. Lett to the lender 
mercies of the Justice Department, it would no doubt be 
compelled to disobey Louisiana law' and install the Coop­
er plan, the octopus with tentacles in all directions, as 
Judge Parker so wryly put it. If challenged by white 
voters, the Board would be compelled to testify that the 
gerrymandered districts were fashioned for racial reasons 
only, or perjure themselves and pretend that the bizarre 
districts were fashioned for reasons other than race. If the 
Board opted to tell the truth, the plan would clearly be a 
violation of the Equal Protection clause as Miller v. John 
son points out.



211

VI.  The  l o n g  Run Co ns e q ue nc e s

Appellants' interpretations ot the Voting Rights Ait 
bear small resemblance to its purposes To be sure, it was 
enacted to effect equality in the electoral process, to cor 
reef past abuses, to guarantee black voting registration 
and to promote it, and to put a stop to gerrymandering to 
dilute black voting strength The task of administering 
the Act was entrusted to the Voting Rights Section of the 
Civil Rights Division of the Department of Justice The 
personnel of that section set about their task with fervor 
and, at times, a vengeance It was not long before white 
gerrymandering ceased and impediments to black regis­
tration, or even discourtesies in the process, triggered the 
intervention of federal enforcement agencies Perhaps 
Justice Clarence Thomas put it best m Hohler v Hull, 114 
S.Ct 2581, 2612 (1994) when he chided the / horn he rg v 
Gingles Court for studiously ignoring the Dole Amend­
ment of 1982: "We have stated time and again that a 
legislature says in a statute what it means and means in 
statutes what it says."

"Power corrupts and absolute power corrupts abso­
lutely," commented Lord Acton Lord Acton's dictum is 
nowhere more evident than when the Justice Department 
wields its enormous powers The Voting Rights Section, 
burgeoned with young, exuberant social engineers, con­
vinced that they possess a monopoly on virtue, deter­
mined to create in its subject territories its own brand of 
electoral justice Justice Thomas m Hohler v 11,ill 114 S t't 
2581, 2599 (1994) captured this attitude when he sharply 
scored tlie Justice Department personnel for imposing 
their will on political entities who want only to avoid 
costly and disruptive Voting Rights Act litigation," all 
aided by some federal courts The opinion of Judge 
Wiener in Hays v Louisiana, 839 FSupp 1188, fn 21 at

21

pp 1196, 1197 (WD La 1994) also was critical of the 
machinations of Justice Department personnel, as was the 
Trial Court in Miller v. Johnson, 864 FSupp. 1354, 1362 et seij. 
(S D Ga 1994), to name but a few. Under the draconian 
program of the government, the wheel of logic has come full 
circle: blacks are equal to whites, but in Orwellian fashion, 
some are more equal than others. Gerrymandering in favor 
of blacks and I lispanics became the standard for the social 
engineers, the modern day literati

In a few decades American historians will applaud a 
few of the intentions of the Justice Department and 
lament the unsavory consequences of its follies, its pen­
chant for quick fixes, its abuse of the immense power it 
was granted. The historians will wonder how the courts 
turned blind eyes to a deliberate defiance of the Dole 
Amendment which so clearly states: Provided, nothing
in this section establishes a right to have members of a 
protected class elected in numbers equal to their propor­
tion in the population." (See 42 U.S.C., Sec. 1973, 2(6) )

This case, like Miller v. Johnson, supra (and countless 
others unlitigated and unknown to the courts and tlie 
public in general), illustrate beyond peradventure the 
scorn heaped on the Dole Amendment. The Justice 
Department demanded that the Bossier Parish School 
Board fashion two black-majority districts, not because 
proper demographic principles supported two, but 
because two safe black districts conformed roughly to the 
proportion of blacks to the population I his was the price 
for preclearance. In Georgia, the demand was for three 
black-majority districts because three was approximately 
the proportion of blacks to the state population. The 
redistricting plan that had two seats was not enough to 
please the literati. The black witnesses in this case all 
stated that they were entitled to two seats because two



conformed to their percentage ot the population It the 
Justice Department did not implant that notion it ccr- 
tamly did nothing to disabuse its witnesses (.| p 1 he 
demand letters to the School Hoard from the )ustice 
Department all specified two safe seats, never one H (See 
Complainant's Exhibit No 4 )

Historians may be unkind enough to point out that 
the scheme of emphasizing race, of pitting racial and 
ethnic groups against one another, of emphasizing differ­
ences rather than similarities, has promoted the very 
hostilities and distrust the Voting Rights Act was fash­
ioned to remove They might reflect that the creation of a 
new system of apartheid spelled an end to the American 
dream of unity, the Americanism that St John Crevecoeur 
pridefully wrote about in the early years of our republic, 
of the pride we took in welcoming into our midst refu­
gees from abroad and assimilating them into our society. 
The loss of this dream, a sense of national mission, cannot 
be quantified in a computer, but it is a heritage that 
makes our nation unique. It is not too much to say that 
we today are becoming a sharply divided nation stress­
ing, as we do, the issue of race in matters such as affirma­
tive action and electoral redistricting If this Court 8 *

8 We are aware that a tew courts stale that the h'stice
Department's demand foi safe seats reflet live of the minority 
population does not constitute proportional representation We 
concede that it certainly is not a pristine i opy ot tin system 
invented by the Belgian M Dfionl But the Dole Amendment 
does not proscribe proportional representation a s  an eleitor.il 
system, it proscribes creating districts with a view to electing 
protected minorities in numbers proportionate to the 
population We challenge anyone to distinguish what the |ustice 
Department demanded in Bossier Parish from the proscription 
contained in the Dole Amendment

2 1

believes that we are paranoid about this, we suggest that 
others whose dedication to civil rights has never been 
challenged are also deeply troubled4 A nation cannot as 
official policy treat races and ethnic groups differently 
without itself becoming disunited. As the Trial Court 
pointed out in fn 12 at p 24a of its opinion:

At closing argument, defendant's counsel 
was presented with the question of whether a 
school board that affirmatively decides not to 
take race into account in any way could be 
found to have violated section 5 Counsel stated 
that a school board with the history and context 
of the bossier Parish School board which 
declined to take race into account would indeed 
violate section 5. This strikes us as double 
counting. The reason the Bossier Parish School 
board is subject to Section 5 at all is, at least in 
part, because of its history and context. Now 
that it is subject to Section 5, defendant would 
again cite the School board's history as a reason 
to saddle it with the additional burden of affir­
matively taking race into account in order to 
prove that it did not have the proscribed pur­
pose.

9 See for example, Schlesinger, Tin■ Disuniting of America, 
Norton, 1991; Professor I asch, The Revolt of the Elites oiul the 
Betrayal of Democracy. Norton, ll)9S, Sykes. A Nation of Victims. 
The Decay of the American Character, St Martin Press, 1992; 
Hughes, Culture of Complaint, Warner Books, 1993; Sleeper, The 
Closet of Strangers: Liberalism ami the Politics o) Race in New Tork, 
1990; and his excellent followup, "The End of the Rainbow, 
New Republic, November 1, 1993. These writers, and many other 
observers, concur in warning of recreating segregation by 
treating races differently



I lie Court i on It I have ijniii' In rtlu't As tin |iislne 
Department fans eonlliet and hostility by arranging con­
frontation among the rat es aiul ethnic groups, ami hy its 
policies arranges for ami even encourages bloc voting, it 
then uses the painlul results of its misguitletl zeal as 
justification for its agenda to erase the very tragedies it 
has staged. The more apartheid crystah/es, the more the 
Justice Department can claim its program is indispens­
able to equality. And so on, ad infinitum, ad nauseam It is a 
bureaucrat's dream; a self perpetuating program It 
resembles a political commentary co-authored by George 
Orwell and Fran/ Kafka

But what will distress future historians most is that 
this is one more example of the erosion of the right of 
plain, ordinary Americans to control their own destinies 
Nothing is more precious to democracy than control of its 
electoral system; nothing erodes a democratic system 
more than the emergence of a clerisy, a modern day 
literati whose members believe with a certainty that is 
frightening that they are better and brighter than the rest 
of us, and that they, and only they, have the virtue and 
talents to qualify them to rig our election machinery to 
superintend who will be our Representatives in Congress 
and state legislatures, who will as judges preside over 
our system of justice, who will wield power as commis­
sioners, councilmen, school board members and, indeed, 
the entire gambit of elected offices. Once again issues of 
substance have been wrested from the public realm and 
entrusted to an elite presumably to save us commoners 
from ourselves.10

10 Lewis Lapham, longtime editor of Harpers has charted 
this movement in The Wish for Kings, Grove Press, New York, 
1993. In a recent appellate court opinion which hy some logical

2?

And yet, the record ot America s majority is not 
really so bad If Americans were agonizingly backward in 
our early treatment of dark-skinned peoples (and also 
Irish, Chinese, Japanese, Jews and Slavic immigrants), 
who in the world was so majestically tolerant and com­
passionate? The Belgian King, Teopold II, whose myr­
midons in fl ic ted u nsp e akab le  a troc i t ies  on the 
Congolese? Or the European imperialists who uniformly 
mistreated Africans and Asians in the name of religion 
and civilization Or Bostonians who in 1835 paraded the 
abolitionist William Lloyd Garrison through the streets 
with a rope around his neck? Or the mob in 1837 that 
murdered the abolitionist Elijah Lovejoy in Alton, Illi­
nois? Or the mob of "respectable'' citizens of Utica, New 
York in 1835 including at least one judge, a Congressman 
and a clergyman who cracked skulls in a rout of a small 
group of abolitionists who, according to all contempora­
neous accounts, were merely minding their own busi­
ness?

In the "Gilded Age" of the American Industrial Revo­
lution, the much maligned common man persisted in

tour de force found the right to die written in the Constitution, 
Judge Andrew Kleinfeld, in dissent noted: The founding
Fathers did not establish the United States as a democratic 
republic so that elected officials would decide trivia, while great 
questions would be decided by the judiciary. He might well 
have been restating Thomas Jefferson who wrote: Slate a moral 
case to a ploughman and a professor, the former will decide it as 
well, and often better than the latter, because he has not been led 
astray by artificial rules." Reproduced at page 18 of Roberts and 
Stratton, The New Color l ine How Quotas and Privilege Destroy 
Democracy, Regnery Publishing, Inc., Washington D C., 1995 It 
is embarrassing that most of the world s democracies exhibit a 
great deal more confidence in the people than do we.



2b

electing state officials wlm recognized the need tor 
reforms in the work place

I he majority concur red with Woodrow Wilson that 
Imperial C>ermany should not stand astride k.irrope in its 
jackboots and with Roosevelt, the charismatic patrician in 
a wheel chair and in his far-reaching reforms, despite the 
ferocious opposition of so many elites. Americans 
rejected both communism and fascism, unlike the Ital­
ians, Germans, Russians, Hungarians, Roles and the 
Yugoslavians, to name but a few

I he majority supported the war against fascism and 
showed extraordinary judgment and compassion in sup­
porting policies that treated our conquered enemies with 
justice anti dignity The Marshall Rian, the most generous 
program in the history of the world, was supported 
whole-heartedly by a vast majority of the people.

Anti so on. History shows that when the majority 
seems slow to act, there is no shortage of elites to mount 
their offensives. As in keeping with Jefferson's belief, 
their record is not all that thrilling It was the bureaucra­
tic elite that supported a series of childish policies to 
assassinate Castro and mounted senseless interventions 
in Iran, Grenada, Guatamala, Nicaragua, Ranatna, Viet­
nam, and Chile, to name only a few These were "covert" 
programs, covert for fear that Americans would learn of 
them and dismantle them The targets of these policies 
always knew about them

Do we waste the Court's time? Rerhaps this Court is 
more interested in who testified to what, or the metrical 
embroideries the Justice Department employs in trans­
mogrifying the Voting Rights Act into a convenient way 
to specify who our leaders will be It is a heady power; 
small wonder that they fight to retain it We respectfully

27

suggest that anyone who can reconcile himself to what 
the Justice Department is doing has misplaced his priori­
ties Nothing worse can befall us than to become a federa­
tion of races, a Balkan type republic where races and 
ethnic groups are taught hate and distrust, so tragically 
embodied among Muslims, Catholic Croatians, Orthodox 
Serbs, and Albanians. When hatred and distrust are insti­
tutionalized, as the Justice Department is on the road to 
doing, tolerance becomes ever so difficult to restore.”

We are not now and never will be free of prejudice. 
Loves and hatreds, however ugly, are prices we pay for 
democracy. Love and tolerance cannot be legislated 
Resentment flourishes among a free people when an 
unelected elite herd them about like animals. The path 
toward unity is not legislation imposing a litany of dos 
and don'ts on a free people, but in education, social 
pressures, and programs that treat all people equally and 
fairly, and stress likenesses rather than differences. This 
approach has a much better chance of working. The gross 
anti semitism of pre-World War II America has warn'd 
enormously without extraordinary legislation largely 
through education, social pressures, and the development 
of tolerance. In 1979 in Urr v. Orr, 440 U S. 268, 99 S C t . 
1102 (1979), this Court in a well reasoned decision 
decided that cosseting women hail the unfortunate result 
of institutionalizing a belief in their inferiority. It argued 
that when we tell women they are inferior, we may soon 
become the architects of their inferiority. Today women in 11

11 The damage already done will persist well into the next 
century unless this Court restores some balance to the Voting 
Rights Act. When the census of the year 2000 is finalized, the 
outrageous and racially gerrymandered districts will have to be 
retained because Section 5, as the Justice Department reads it, 
prohibits any retrogression.



28

law, engineering, medicine, and business testily to the 
wisdom of that decision If indeed, people respond better 
to challenges, why should this widely accepted psycho­
logical concept not be equally beneficial to racial anil 
ethnic minorities as well .is to women?

The people of Bossier Parish are not the clerisy. It is 
easy to dismiss them as "bumpkins", "rubes", and "red­
necks." Nor is the School Board extraordinary; it consists 
of housewives, former teachers, local businessmen, a 
banker and a retired Chief Probation officer in the United 
State Court system None is an Ivy l eague graduate. 
They take pride in what they do. 1 hey are not racists, nor 
do they claim to be saints They became stubborn because 
they deeply resent being patronized at best and denomi­
nated "racists" at worst 12 They have difficulty accepting 
that they cannot be trusted to do justice In the election of 
March, 1996 which took place alter the Board was given 
preclearance, a black was elected outright, and three 
others will vie for Board seats in the runoff scheduled for 
April 20, 1996. One black in the runoff got 41% of the vote 
to his white opponent's 34%; the black may well win that 
seat. In another race the black and white candidates in 
the runoff each got 39% of the vote. In the third runoff, 
the black lagged well behind the white The outcome, 
however, may well place as many as three blacks on the 
Board. See Motion to Supplement the Record filed by 
Appellee. This election certainly offsets the gloomy testi­
mony of Dr Richard Engstrom who saw no way for

12 It is unfortunate that the designation ol r.uist is no 
more meaningful in most instances than "communist" in the 
McCarthy era. Calling a person "racist" who does not agree one 
hundred per cent with one's agenda, is a ploy to place the target 
on the defensive and extract something from the leverage 
created

blacks to be elected under the Board plan Dr Engstrom 
testified that in Bossier Parish there is a degree 
(unspecified) of racial bloc voting Because there is a 
degree of racial bloc voting everywhere (as well as reli­
gious bloc voting, gender bloc voting, etc.) the Court 
appeared to believe that Dr Engstrom had advanced 
mankind's knowledge very little. We concur.

| he black who won outright ran against another 
black. He is Julien Darby, brother to Jerome Darby who 
twice in the 1980s won contested seats on the Police Jury 
in a white majority district and won an unopposed race in 
his new white-majority district created after the census. It 
is illuminating to read the direct testimony of the local 
NAACP President, Mr. George Price. In commenting on 
Jerome Darby's political success in three consecutive 
races, Price comes very near characterizing Jerome Darby 
as an "Uncle Tom" because he has not made race an Issue. 
Never has it occurred to Mr. Price and the Justice Depart­
ment that perhaps Bossier voters may well be tired of the 
racial issue and wish to dwell on ideas and performance.

When speaking ot the elite bureaucrats in the Justice 
Department, some historian may recognize a parallel to 
the oft-quoted comment of Tacitus, defender of republica­
nism: "they have made a wilderness and called it peace.
It is time to correct the imbalance, to give effect to the 
Equal Protection Clause, and to cease arranging racial 
confrontations. It would not be a travesty to deliver back 
to the people control of their electoral systems and the 
larger measure of democracy that would result. Perhaps 
this Court might say to the Justice Department what



ill

Cromwell told Parliament Aon have ât too long tor the 
good you have done In the name of find go1"

♦

CONCLUSI ON

For the reasons set forth above, the decision of the 
Trial Court should be affirmed

Respect fully submitted,

J AMI S | Till I K N I U N  

Counsel of Record 
for Appellee Bossier 
Parish School Board 
I’O Box 4426 (71134 1)426) 
642 Stoner Ave (71101) 
Shreveport, Louisiana 
Telephone (318) 221-6294 
Fax (318) 221-4456