Carlson v. Green Brief for the Lawyers' Committee for Civil Rights Under Law as Amicus Curiae

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 81-3476

CLIFFORD EUGENE DAVIS, JR., et al.,
Plaintiffs-Appellees 

AND
DR. D'ORSAY BRYANT, et al.,

Plaintiffs-Intervenors-Appellees 
and Cross-Appellants

AND
UNITED STATES OF AMERICA

Plaintiff-Intervenor-Appellee 
VERSUS

EAST BATON ROUGE PARISH SCHOOL BOARD, et al.,
Defendants-Appellants and 
Cross-Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF LOUISIANA

REPLY BRIEF AND BRIEF AS CROSS-APPELLEE OF THE 
EAST BATON ROUGE PARISH SCHOOL BOARD

JOHN F. WARD, JR.
ROBERT L. HAMMONDS
1111 South Foster Drive, Suite CP.O. Box 65236
Baton Rouge, LA 70896
(504) 923-3462
ATTORNEYS FOR DEFENDANTS-APPELLANTS AND CROSS-APPELLEES , EAST BATON ROUGE PARISH SCHOOL BOARD



TABLE OF CONTENTS

PAGE

STATEMENT WITH REGARD TO ORAL ARGUMENT (i)
TABLE OF AUTHORITIES (ii)
QUESTIONS PRESENTED 1
STATEMENT OF THE CASE 2

(i) Course of Proceedings and Disposition
in Court Below 2

(ii) Statement of Facts 2
SUMMARY OF ARGUMENT 15
ARGUMENT 19

I. The District Court erred in not giving the 
local school authorities an opportunity to 
try their preferred magnet school concept 
plan, or, at the very least, in not pointing 
out the deficiencies in that plan and giving 
the local school authorities an opportunity 
to correct same before imposing its own plan 
which was clearly based on an impermissible 
racial balancing standard 19

II. The position of plaintiff-intervenors-
appellants 31

CONCLUSION 35
CERTIFICATE 56



STATEMENT REGARDING ORAL ARGUMENT

Defendant -appel 
Parish School Board 
these appeals are of 
system, this communi 
circuit as to make o

lant-cross-appellee, East Baton Rouge 
believes that the issues presented in 
sufficient importance to this school 
ty, and other communities within this 
ral argument useful and desirable.

(i)



TABLE OF AUTHORITIES

CASES PAGE

Alexander v. Holmes County Board of
Education, 396 U.S. 19, 90 S.Ct.
29, 2 4 L i'Ed. 2d 19 (1969)...................... 32

Austin Independent School District v.
United States, 429 U.S. 990, 50 L.Ed.2d
"603 , 97 S.Ct. 517 (1977)...................... 32

Brown v. Board of Education (Brown I), 347
U.S. 483 , 74 S.Ct. 686 (1954) ................. 27 , 32

Brown v. Board of Education (Brown II),
349 U.S. 294, 75 S.Ct. 753, 99 L.Ed.2d
1083.......................................... 15 , 32 , 33

Calhoun v. Cook, 522 F. 2d 717, rehearing en 
banc denied, 525 F. 2d 1203 (5th Cir.
1975)........................................ 20

Carr v. Montgomery County Board of Education,
377 F. Supp. at 1131..........................28

Davis v. East Baton Rouge Parish School Board,
498 F. Supp. 580 (M.D. La. 1980).............. 3 , 8 , 9

Davis v. School Commissioners, 402 U.S. 3357 . . . .  It), 29, 33
Fullilove v. Klutznick, 948 U.S. 498, 483, 65

L.Ed.2d 902, 927-928, 100 S.Ct. 2758 (1980) . . 15, 29
Green v. County School Board, 391 U.S. 430,

88 S.Ct. 1689 , 20 L.Ed. 2d 716 (1968).......... 16, 26, 29 , 32 , 33
Keyes v. School District Number 1, 413 U.S.

189 (1973)................................
Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 

41 L.Ed.2d 1069 ..........................
Ross v. Houston Independent School District,

F. 2d ___ (No. 81-2323, 5th Cir.
February 16, 1983)....................

Stout v. Jefferson County Board of Education, 
537 F. 2d 800 (5th Cir. 1976) ........

21 , 33

16, 21, 22, 29, 32

(ii)



CASES PAGE

Swann v. Charlotte-Mecklinberg Board of 
Education, 402 U.S. 1, 91 S.Ct.
1267 , 28 L. Ed. 2d 554 , at 571 .................. 15 , 18 , 25 , 26 , 27 ,

29, 32, 53United States v. Gregory-Portland
Independent School District, F. 2d
__  (No. 80- 1943 , 5th Cir. 1981)..............32

United States v. Scotland Neck City Board
of Education, 407 U.S. 84 (1 972).............. 21

United States v. Texas Education Agency,
et al., CA No. 81-2257, __  F. 2d _
(5th Cir. March 1 , 1982)......................32

Valley v. Rapides Parish School Board, 646 
F. 2d 925 (5th Cir. 1981) cert, denied 
455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 
650 (1982)....................................32

1 (iii)



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 81-3476

CLIFFORD EUGENE DAVIS, JR., et al.,
Plaintiffs-Appellees

AND
DR. D'ORSAY BRYANT, et al.,

Plaintiffs-Intervenors-Appellees 
and Cross-Appellants

AND
UNITED STATES OF AMERICA

Plaintiff-Intervenor-Appellee
VERSUS

EAST BATON ROUGE PARISH SCHOOL BOARD, et al.,
Defendants-Appellants and 
Cross-Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF LOUISIANA

REPLY BRIEF AND BRIEF AS CROSS-APPELLEE OF THE 
EAST BATON ROUGE PARISH SCHOOL BOARD

QUESTIONS PRESENTED

1. Whether the District Court erred in not permitting 
the School Board and its Superintendent to try their own compre­
hensive magnet school concept desegregation plan, or, in not,



at the very least, pointing out the deficiencies in the School 
Board's plan and giving them an opportunity to modify their 
plan to overcome those deficiencies, before imposing its own 
plan based upon an impermissible racial balancing standard?

2. If the Court below did not err in the respects indicated 
above and as otherwise contended by appellant School Board, is 
its present plan constitutionally insufficient as contended by 
private plaintiffs-appellants?

STATEMENT OF THE CASE
(i) Course of Proceedings and Disposition in Court Below
(ii) Statement of Facts

The procedural history of this school desegregation case 
is described in detail in the prior brief for the East Baton 
Rouge Parish School Board as appellant in these consolidated 
case, No. 80-3922 and No. 81-3476, filed on or about May 24,
1982. See brief for appellant-cross-appellee East Baton Rouge 
Parish School Board at 2-8 and 9-11. Accordingly, we include here 
only the procedural history and facts that are relevant to the 
issues presented by this appeal: The improper racial balancing 
standard applied by the District Court in fashioning its plan, its 
failure to permit the local school authorities to try their magnet 
school concept plan (or at least permit them an opportunity to modify

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their plan to correct any deficiencies found by the District 
Court), the over-reach of the District Court's plan, and its 
constitutional sufficiency over the objection of private plain­
tiffs- appellants .

This brief will serve as the reply brief for the East Baton 
Rouge Parish School Board to the brief of the United States in 
No. 8105476 and as the brief of the East Baton Rouge Parish School 
Board as cross-appellee to private plaintiffs-appellants in No. 
81-3476. We will address first the position of the United States 
and secondly the position of plaintiffs-appellants.

On September 11, 1980, the District Court granted partial 
summary judgment as to the School Board's responsibility to further 
desegregate this school system and ordered the School Board to 
submit a desegregation plan to the District Court by October 15, 
1980, barely one month later, even though the School Board had 
requested 120 days to prepare and submit its plan. Davis v. East 
Baton Rouge Parish School Board, 498 F. Supp. 580 (M.D. La. 1980)
(R, 1329-1344).1 At the time of this order, the school system had 
just employed a new Superintendent of Schools, Dr. Raymond G. 
Arveson. Although Dr. Arveson had had prior experience with big 
city school systems and school desegregation, having been Superin­
tendent of Schools in Minneapolis, Minnesota, he was not thoroughly 
familiar with this school system and, obviously, would need some 
time to formulate a comprehensive desegregation plan.

■̂ The designation "R" followed by a page number refers to the con­
secutively paginated 16-volume record.



Utilizing his own prior experience with school desegregation 
in Minneapolis and being aware of this school system's own previous 
success with magnet schools, Dr. Arveson obtained School Board 
approval to create a community advisory council, bi-racial in 
nature and composed of citizens from all walks of life in the 
community, for community input and to employ outside nationally 
recognized experts in school desegregation."' Superintendent 
Arveson also created a desegregation task force composed of school 
employees to assist in the gathering of necessary data, etc. to 1

1The nationally recognized experts in school desegregation employed 
by the Board was the firm of HGH, Inc. The principals of this 
firm are Larry IV. Hughes, William M. Gordon, and Larry W. Hillman.
Larry Hughes is a professor and the chairman of the Department of 
Administration and Supervision at the University of Houston, Texas. 
Dr. Hughes specialized in the personnel programming side of school 
desegregation. William M. Gordon is a professor of education at 
Miami University, Oxford, Ohio. He specialized in pupil assignment 
and curriculum development. Larry W. Hillman is a professor of 
education at Wayne State University, Detroit. His specialty is 
pupil transportation and metropolitan plan development.
Together the authors have been the principal designers or significant 
contributors to over 75 desegregation plans. Most recently, they 
were the architects of the plans submitted by the State Board of 
Education of Ohio in the Cleveland and Columbus cases. Tye have 
served as experts in developing desegregation plans for the United 
States in school cases in this state as well as elsewhere. One or 
more of them recently participated in developing the magnet school 
plan (very similar to the plan developed for this school system) for 
Chicago, Illinois, which has recently been approved by the United 
States and the District Court.
Although the principals in HGH, Inc. were familiar with the desegre­
gation expert employed by the United States, Dr. Gordon Foster, and 
his belief in mandatory reassignment plans utilizing the tools of 
pairing, clustering, non-contigious zones, cross-town busing, etc., 
they concluded that such a plan would not work in this community, 
would be detrimental to the school system, and that a magnet school 
concept, incentive-type approach would accomplish substantially the 
same amount of desegregation without the detrimental effects.

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assist him and the outside experts in developing such plan.
The school system expended some $400,000.00 in developing its 
magnet school concept plan.

Due to Dr. Arveson having only recently become Superinten­
dent and the magnitude of developing a comprehensive desegregation 
plan for a metropolitan school system of this size, he repeatedly 
requested the Court for additional time to develop a plan in 
accordance with the guidelines established by the Court which the 
Court, albeit reluctantly, granted permitting the filing with the 
Court on January 9, 1981, a 185 page document entitled "A Proposal 
for the Further Desegregation of the East Baton Rouge Parish 
Schools". (R 1378-1428). This plan utilized mandatory reassignments 
such as rezoning, pairing, etc., with a comprehensive use of magnet 
schools, special focus schools, and special programs at all levels 
of the school system.

At the commencement of trial on the merits of the School Board's 
plan on March 4, 1981, the District Court read a 16 page statement 
into the record. This statement warned the parties, particularly 
the School Board, as to what the school system would face at the 
opening of schools, indicated the Court was not satisfied with 
either the plan proposed by the United States and plaintiff inter- 
venors or the plan proposed by the School Board and ordered the 
parties to commence private negotiations looking toward a consent 
decree with such negotiations to begin at 9:00 a.m. on Wednesday, 
March 11, 1981 and continue through at least March 24, 1981.
(R 1590-1607).

-5-



These court - ordered, three-cornered negotiations continued 
on an almost daily basis until April 15, 1981 when the parties 
advised the Court that they were unable to reach agreement on a 
proposed consent decree. On April 16, 1981, the Court issued an 
order terminating such discussions.

A short 15 days later, on May 1, 1981, the District Court 
issued its findings and conclusions rejecting both the School 
Board's plan and the Government's plan and ordering its own plan 
to be implemented. However, rather than, taking the plan preferred 
by the local school authorities and modifying it, or granting the 
school authorities an opportunity to modify their plan to correct 
what the District Court perceived as deficiencies, the Court 
basically adopted the mandatory reassignment plan prepared by the 
Government's expert, including pairing, clustering, rezoning, and 
cross-town busing, with modifications reducing a few of the longest 
cross-town busing components, closing some schools, etc.

The Court's plan closed fifteen elementary schools and one 
high school. Of the sixteen middle schools (serving grades 6-8), 
it converted fourteen of them to single-grade centers and two of 
them to two-grade centers. It left six predominantly white schools 
and seven predominantly black schools. It paired and clustered 
( 3 8 4  school clusters) all of the remaining elementary schools. 
Some bus routes, due to distance, heavy traffic, etc., are as 
long as twenty-five miles and taking 45 minutes to one hour 
in time, one way. The Court's plan also required the

- 6 -



removal of all temporary classroom buildings (being utilized 
in order to alleviate overcrowding at particular schools) at 
the remaining few predominantly one-race schools and established 
a maximum student capacity of 27 students per classroom. In at 
least 1 rapidly growing residential area of the parish, this in­
ability to admit newly resident students has resulted in having 
to utilize one 60 passenger school bus to transport only twelve 
students to other schools with the bus route being approximately 
39 miles long and taking 1 hour to complete.

The Court's plan also converted the school system's middle 
schools (grades 6-8) to single-grade centers. Under this proposal, 
a child could go to five different schools from the fifth to the 
ninth grade. Its effect would have been absolutely disastrous.
It was only after repeated urging from Superintendent Arveson that 
the Court finally approved, in part, a proposal maintaining the 
middle school concept. The Board's proposal for middle schools 
would have left one additional one-race school, Scotlandville 
Middle School (adjacent to Scotlandville High School which the 
Court had closed as being too isolated to be desegregated). The 
Court rejected that portion of the proposal, requiring Scotlandville 
Middle School to remain open but ordering the School Board to 
maintain an actual enrollment of at least 101 white and not more 
than 40% black (Order of May 7, 1982).

The Court's order directed implementation of its plan with 
respect to elementary schools with the opening of schools in 
August 1981 with the provisions applying to the secondary schools

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to be implemented with the opening of schools in August 1982.
Davis v. East Baton Rouge Parish School Board, 514 F. Supp.
869, 874 (M.D. La. 1981). The District Court (R 2010-2011), 
and this Court, denied the School Board's applications to stay 
implementation of the plan. Implementation of the plan, even 
after elimination of the single-grade centers, resulted in the 
loss of approximately 4,000 students after one year and now, 
after two years, approximately 6,500 students.

The School Board and private plaintiff-intervenors both 
noticed appeals from that judgment. The United States did not.
Those appeals (No. 81-3476 in this Court) have been consolidated 
with the School Board's previous appeal (No. 80-3922 in this 
Court). The District Court, thereafter continued to hear various motions 
filed by the parties and continued to issue orders placing additional 
requirements on the School Board. Some of these additional motions, rulings, 
etc. are found in the record in Volume V, Page 1620 and proceeding 
through Volume VI and Volume VII of the record.

Since the record was completed and forwarded to this Court 
as of October 31, 1981, the District Court has continued to hold 
hearings on various matters and issue orders generally placing 
other additional requirements on the School Board. None of these 
additional orders are contained in the record presently before this 
Court and are not before this Court in this appeal. However, the 
School Board timely filed notices of appeal from those orders 
which are presently pending before this Court as Numbers 82-5̂ .98 
and 82-3412, consolidated.

-8-



In the meantime, the School Board sought a stay of imple­
mentation of the District Court's secondary school plan on 
August 11, 1982. The Board's motion was denied by the District 
Court on August 16, 1982 and its request to this Court for a 
stay was denied on August 30, 1982.

Thereafter, on August 6, 1982, after approximately one year 
of implementation of the Court's elementary school plan, the 
United States filed in this Court a motion to stay further proceedings 
in this appeal to afford the District Court an opportunity to re­
evaluate and modify its plan in light of actual experience. That 
motion advised this Court that the United States would prepare and 
provide for the District Court and the parties an alternative to 
the Court's existing desegregation plan. See Government Motion 
to Stay Further Proceedings in this Court of August 6, 1982, Page 
9. In that motion, the United States also stated that the District 
Court accurately described the plan of their expert, Dr. Foster, 
as a "classic pair 'em, cluster 'em, and bus 'em plan." Davis v.
East Baton Rouge Parish School Board, 514 F. Supp. 869, 873 (M.D.
La. 1981).

The Government also in that motion labeled court - ordered 
transportation "...generally to be a failed experiment...". See 
Government Motion to Stay Further Proceedings in this Court of 
August 6, 1982 at Page 3.

On August 30, 1982, this Court granted that motion, and on 
September 15, 1982, this Court entered an order deferring for

-9-



sixty days action on a motion to reconsider its August 30 order 
filed by private plaintiffs, by which time the parties were to 
advise this Court "concerning the steps actually taken toward 
seeking modification of the District Court's desegregation orders 
and such further facts and circumstances on why the appeal should 
be or should not be further delayed." The District Court then 
issued a subsequent order requiring the Government to file its 
proposed alternative plan within certain time limits.

The United States indicated a particular concern with the 
School Board assertion that the Court's plan had caused approximately 
4,000 students to leave the system in that first year of implementa­
tion. In August 1982, the United States retained another school 
desegregation expert, Professor Christine Rossell of Boston Univer­
sity to undertake a study of this school system and the operation 
of the court-ordered desegregation plan. Dr. Rossell's preliminary 
study confirmed the Board's assertion finding that 4,244 students 
had left the system since the year before the Court's plan went 
into effect. See brief of United States in 81-3476, Page 4 and 
Footnote 7.

On December 10, 1982, the United States filed with the 
District Court and the parties its proposed alternative to the 
District Court's plan "...designed to desegregate the public 
schools in a more effective manner...." As stated by the Government 
in its brief in 81-3476, at Page 5, the Rossell plan,

-10-



"...Rather than relying on mandatory assign­
ment techniques ... employed educational incen­
tives to attract departing students back to 
the system and achieve a level of desegregation 
comparable to that sought by the District 
Court. Under the Rossell plan, desegregation 
was to be accomplished by court - ordered school 
closings, by encouraging the use of majority 
transfers and by magnet schools...."

In fact, the Rossell plan drew freely from, including specific references
to, the magnet school plan originally proposed by the School Board.

Upon reviewing the proposed Rossell plan, Superintendent 
Arveson and his staff and the School Board understood the Rossell 
plan to be an alternative plan to be implemented in lieu of the 
District Court's plan for the opening of schools for the 1983-84 
school year. Superintendent Arveson and his staff also felt that 
the Rossell plan had considerable merit.

On January 7, 1983, under the auspices of the District Court, 
representatives of the Department of Justice met with members of 
the School Board and Superintendent Arveson and his staff to explain 
in greater detail the Rossell plan. It was at this meeting that 
Superintendent Arveson and the School Board received their first 
indication that this was not an alternative to the Court's plan, 
but was to be gradually phased in over a period of time. No phase- 
in implementation program had yet been devised by the Government..
On that same day, and again under the auspices of the District Court, 
Superintendent Arveson and the School Board met with attorneys for 
the NAACP to hear their objections to the Government's proposal.



Department representatives and Professor Rossell subsequently 
met with members of the School Board staff on January 10-11, 1983 
for a more detailed discussion. During these discussions, Super­
intendent Arveson and his staff learned that the Government's 
views with regard to gradual phasing-in of the Rossell plan would 
offer no relief from the District Court cross-town busing, etc. 
for several years. Later in January, the United States filed 
with the District Court and the parties a comprehensive phase-in 
implementation procedure, guidelines, quotas, a requirement -for 
the expenditure of almost Two Million Dollars initially but with 
no relief from the District Court's cross-town busing plan for 
almost four years.

On February 7, 1983, Justice Department representatives met 
with the School Board in a specially called public meeting to make 
a formal presentation of the Rossell plan and to answer questions 
about its implementation. Following that session, and a separate 
meeting with NAACP representatives, the School Board on February 10, 
1983 voted not to endorse the United States proposal at that time. 
Because the United States believes that the success of the Rossell 
plan depended on the full and complete support of the School Board, 
they informed the District Court that it would be premature to press 
for alternative remedial action and requested this Court to lift 
the stay entered in this appeal at their request on August 50, 1982. 
This Court, in response to that request, lifted the stay on March 18, 

1983.

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We agree with the United States that any plan imposed on 
the school system should have the full and complete support of 
the School Board. We would also hope they would have the full 
and complete support of the United States. It would have been 
helpful to have their support for the "incentive" or magnet school 
concept two years ago when Superintendent Arveson and his staff 
were developing the magnet school plan proposed by the Board.

As indicated heretofore, Superintendent Arveson and his staff 
felt that the Government's incentive plan had considerable substan­
tive merit and still feel that it does. At the time, however,
School Board elections had just been concluded and a virtually new 
School Board had taken office on January 1, 1985. Six of the twelve 
members of the Board had just been elected to the Board. In addition, 
strong opposition from the N.AACP indicated that discovery, etc. 
District Court hearings, etc. on the Government's plan could well 
run into the summer before the Board would have any new order from 
the District Court permitting it to make changes. With schools 
opening in August 1983 for the 1983-84 school year, there was 
simply not time to implement a comprehensive and complex proposal 
for the 1983-84 school year, much less have the new members of the 
Board fully understand the Governmen't meritorious and comprehensive 
but complicated plan. Superintendent Arveson and his staff will, 
of course, continue to look for modifications to the Court's plan, 
or even an alternative plan, which does have a realistic chance 

to work.

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At present, the school system is completing its second 
year under the Court's busing plan having lost something over 
6,000 students. As indicated heretofore, that plan has been 
made even more onerous by subsequent orders of the District Court 
issued since this appeal and since the District Court record was 
made up for this appeal. Those orders are not before this Court 
on this appeal, but are the subject of other pending appeals 
docketed in this Court as Numbers 82-3298 and 82-3412, consolidated. 
Those appeals were also covered by the previous stay of proceedings 
in this Court, but have now been released from such stay and a 
new briefing schedule is being established for them.

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SUMMARY OF ARGUMENT

I. THE DISTRICT COURT ERRED IN NOT GIVING THE LOCAL 
SCHOOL AUTHORITIES AN OPPORTUNITY TO TRY THEIR 
PREFERRED MAGNET SCHOOL CONCEPT PLAN, OR, AT THE 
VERY LEAST, IN NOT POINTING OUT THE DEFICIENCIES 
IN THAT PLAN AND GIVING THE LOCAL SCHOOL AUTHORI­
TIES AN OPPORTUNITY TO CORRECT SAME BEFORE IMPOSING 
ITS OWN PLAN WHICH WAS CLEARLY BASED ON AN IMPER­
MISSIBLE RACIAL BALANCING STANDARD.

The law in school desegregation cases is clear with respect 
to the following principles:

(1) There is no universal answer to complex problems 
of desegregation; there is obviously no one plan 
that will do the job in every case. Green v.
County School Board, 391 U.S. 430, 88 S.Ct. 1689,
TO L.Ed.2d 716 (1968) ;

(2) The aim of the Fourteenth Amendment guarantee of 
equal protection on which this litigation is 
based is to assure equal educational opportunity 
without regard to race; it is not to achieve 
racial integration in public schools. Mi 11iken v . 
Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 
1069 (1974);

(3) The Constitution does not require any particular 
racial balance in schools and district courts that 
attempt to achieve such racial balance should be 
reversed. Swann v. Charlotte-Mecklinberg Board of 
Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 
1541

(4) In the first instance, school authorities have the 
primary responsibility for elucidating, assessing, 
and solving these problems. Brown v. Board of 
Education, 349 U.S. 294, 75 S.Ct. 755, 99 L.Ed.2d 
1083 (Brown II - 1955);

(5) Only if school authorities fail, may judicial 
authority be invoked. Swann, supra.

(6) Even when the Federal Court devises its own plan, 
its power to restructure the operation of local 
school systems is not plenary, the Court should 
tailor the scope of the remedy to fit the violation

-15-



in light of the circumstances present and 
the options available, taking into account 
the practicalities of the situation, and 
should defer to the preference of the local 
school authorities wherever possible.
Fullilove v. Klutznick, 948 U.S. 498, 65 
L.Ed.2d 902, 100 S.Ct. 2758 (1980); Green v.
County School Board, supra.; Davis v. School 
Commissioners, 402 U.S. 3357 (1971 ) and 
Stout v. Jefferson County Board of Education,
537 F. 2d 800 (5th Cir. 1976).

In the instant case, the School Board has not failed. It 
has on repeated occasions voluntarily moved to meet constitutional 
requirements as declared by decisions of this Court, and the Supreme 
Court. In 1970, when advised by the District Court that its 
existing operation did not meet the constitutional requirements 
as expressed by later decisions, it voluntarily appointed a bi- 
racial committee and ultimately submitted a new desegregation plan 
which the District Court accepted as converting the system to a 
unitary school system under existing decisions and from which 
decision no party appealed. In 1980, when the Court again advised 
that its existing operation, although previously approved by the 
District Court, no longer met constitutional requirements as 
established by newer decisions of the Supreme Court and this Court, 
it immediately developed and filed with the Court a new comprehensive 
plan designed to meet constitutional requirements and the criteria 
established by the District Court itself.

The District Court should have deferred to the preference of 
the local school authorities and given them an opportunity to try 
their proposed magnet school-incentive plan. At the very least,

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the District Court should have pointed out to the School Board 
any deficiencies which it found in the School Board's plan and 
given the School Board an opportunity to correct those deficien­
cies before it imposed its own plan on the school system without 
affording the opportunity for a hearing thereon. The District 
Court, in devising its own plan, should have again deferred to 
the expressed preference of the local school authorities for a 
magnet-incentive type plan in building its own plan rather than 
building its own plan off of the pairing-clustering-busing plan 
then proposed by the United States.

This Court, at the very least, should reverse and remand to 
the District Court with specific directions that racial balancing 
is not required and that it should defer to the expressed preference 
of the local school authorities for a magnet-incentive type plan 
even though the District Court may feel some modifications to their 
preference is necessary.

II. THE POSITION OF PLAINTIFF-INTERVENORS-APPELLANTS 
COMPLETELY FAILS TO ESTABLISH ANY ABUSE OF DIS­
CRETION IN THE DECISION OF THE DISTRICT COURT 
WHICH WOULD JUSTIFY ITS REVERSAL ON THE GROUNDS 
THAT IT DOES NOT GO FAR ENOUGH

Plaintiff-intervenors-appellants contend that the plan and 
judgment of the District Court does not go far enough. They contend 
that it should eliminate every racially identifiable school regard­
less of the practicalities of the situation, the existing facts, 
problems, obstacles, etc. and that it places the burden of desegre­
gation only upon black citizens. Most of what they contend is

-17-



simply not correct. The District Court's plan leaves only a 
very few one-race schools which the Court concluded were too 
residentially, geographically, and racially isolated to be 
desegregated without extreme long distance bus routes which 
would impinge on the educational and physical well-being of 
students under Swann, supra. In order to eliminate the totally 
objectionable long distance busing as much as possible, he closed 
both white schools and black schools. The rest of the schools 
he either paired or clustered, which by their very nature equally 
distributes the burden of desegregation as between black students 
and white students.

It would be incomprehensible for this Court to order the 
District Court to inflict more damage on this school system and 
this community under the circumstances here present.

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ARGUMENT

I. THE DISTRICT COURT ERRED IN NOT GIVING THE LOCAL 
SCHOOL AUTHORITIES AN OPPORTUNITY TO TRY THEIR 
PREFERRED MAGNET SCHOOL CONCEPT PLAN, OR, AT THE 
VERY LEAST, IN NOT POINTING OUT THE DEFICIENCIES 
IN THAT PLAN AND GIVING THE LOCAL SCHOOL AUTHORI­
TIES AN OPPORTUNITY TO CORRECT SAME BEFORE IMPOSING 
ITS OWN PLAN WHICH WAS CLEARLY BASED ON AN IMPER­
MISSIBLE RACIAL BALANCING STANDARD.

As stated by the United States in its brief at Page 11,
"...Once a constitutional violation is found, 
it is in the first instance the responsibility 
of local school officials to remedy that vio­
lation. The District Court here recognized 
that fact and encouraged the Board to devise 
an acceptable desegregation plan. The Board's 
preference for voluntary student transfers 
triggered by educational incentives was well 
founded.. . . "

We agree with that statement, but would point out that in every 
instance this School Board has always come forth with a plan to 
remedy such violation. In 1970, this Board voluntarily appointed 
a bi-racial committee to devise an acceptable desegregation plan 
and then adopted and filed with the Court the bi-racial committee's 
plan with virtually no change. The School Board's 1970 desegrega­
tion plan met constitutional requirements as indicated by the 
jurisprudence at that time, was approved by the District Couit as 
converting this school system to a unitary school system, and no 
appeal was taken by any party.

When the District Court in 1980 finally rendered partial 
summary judgment declaring that the Board's existing plan vas no 
longer constitutionally sufficient under the new jurisprudence and 
ordered the Board to submit a new plan, it immediately did so. And,

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even though the District Court gave the local school authorities 
a very short time within which to develop a new plan to meet 
new jurisprudential constitutional requirements, the local 
school authorities did not submit just a meager, hastily thrown 
together plan. Under the guidance of a new Superintendent of 
Schools, Dr. Raymond G. Arveson, with past experience in school 
desegregation as Superintendent of the Minneapolis, Minnesota 
School System, the School Board employed, at considerable expense, 
a nationally recognized firm of experts in devising desegregation 
plans, HGH, Inc. These experts believed, as did Superintendent 
Arveson, that this school system could build upon its previous 
success with magnet schools to formulate an incentive-type 
desegregation plan which would acheive substantially the same 
success as the "busing" type plan then proposed by the United States 
and one which truly gave "realistic" promise of "working" and 
working now. Equally important, they felt that it would "work" 
without converting the system to a segregated all black system as 
had occurred in other metropolitan areas such as Dallas, Atlanta, 
Houston, New Orleans, Chicago, Detroit, and others, under the 
mandatory assignment busing-type plans then proposed by the United 

States.
This Court has previously noted the ineffectiveness of these 

pairing-clustering-busing plans when it said in Calhoun v. Cook,
522 F. 2d 717, rehearing en banc denied, 525 F. 2d 1205 (5th Cir. 

1975) at Page 718,

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"Since 1958 when this school desegregation 
suit was filed, the winds of legal effort 
have driven wave after wave of judicial 
rhetoric against the patrons of the Atlanta 
public school system. Today, hindsight high­
lights the resulting erosion, revealing that 
every judicial design for acheiving racial 
desegregation in this system has failed. A 
totally segregated system which contained
115.000 pupils in 1958 has mutated to a sub­
stantially segregated system serving only
80.000 students today. A system with a 70% 
white pupil majority when the litigation began 
has now become a district in which more than 
85% of the students are black...Out of 148 
schools in the city system, Atlanta still 
operates 92 schools with student bodies which 
are over 90% black."

Present information indicates that the Atlanta school system is 
now approximately 95% black. See also Ross v. Houston Independent
School District, ____ F. 2d ____ (No. 81-2523, 5th Cir. February 16,
1983) in which this Court affirmed the District Court in refusing 
to impose additional pairing, busing requirements on HISD and 
instead permitted them to continue to implement and expand their 
magnet school program.

Although the School Board was aware of the Supreme Court's 
holding that fear of white flight cannot be accepted as a reason 
for acheiving anything less than the Constitution requires,
United States v. Scotland Neck City Board of Education, 407 U.S.
84 (1972), it was also aware of the disastrous effect that these 
pairing-clustering-busing plans had had on metropolitan areas such 
as Atlanta, New Orleans, Houston, Dallas, Detroit, Chicago, Cleve­
land, etc. Furthermore, it was also aware of this Court's holding in 
Stout v. Jefferson County Board of Education, 557 F. 2d 800 (5th

-21 -



Cir. 1976) that in considering various permissible plans, a plan 
"calculated to minimize white boycotts” may be preferred.

In attempting to develop an acceptable plan as permitted 
under Stout, supra. , the School Board spared neither effort nor 
expense. It utilized the past experience in school desegregation 
in Minneapolis, Minnesota of its new Superintendent, it employed 
a nationally recognized firm of desegregation experts at consider­
able expense, created a community advisory committee, a working 
desegregation task force of its own employees taken away from 
their normal duties and ultimately developed and presented to the 
Court a comprehensive magnet-incentive type plan which had real 
promise of "working realistically".

Superintendent Arveson and his staff also spent a great deal 
of time studying the already successful Houston Independent School 
District's magnet school program and the School Board's plan was 
modeled, to a great extent, after the Houston plan. The School 
Board also employed Mr. Larry Marshall, a black Assistant Super­
intendent for HISD, in charge of their magnet school program, to 
review and assist the Board in their proposed magnet school plan, 
and he testified during the trial as to the succes of the magnet 
school program in Houston and the likelihood of its success in 
Baton Rouge.

Mr. Marshall also testified that based upon his experience 
in Houston and studies of desegregation plans in other school 
systems that pairing-clustering-cross - town busing as desegregation 
tools were obsolete. He further testified that such pairing had

-22-



not worked in Houston and that ultimately the Courts had unpaired 
the schools which had previously been paired. As a matter of 
fact, the end result had been that they were busing black children 
from a formerly all black school to a school which had now become 

also all black.
In spite of this good faith effort and expense, the District 

Court announced, at the outset of the trial, that the School Board’s 
magnet school plan was not acceptable, ordered the trial to commence, 
and ordered the parties into private negotiations as soon as the 
trial was completed. (R, 1590-1607). The trial itself consisted 
primarily of presentation of the Board's plan by the Board's 
Superintendent and expert and the Government's plan by the Govern­
ment's expert. The private, three-cornered, negotiations commenced 
on March 11, 1981 as specified and continued on an almost daily 
basis until April 15, 1981 (most of the negotiating was between 
the School Board and the United States with the NAACP giving little 
indication as to what, if anything, that it would agree to) when 
the parties advised the Court that they had been unable to reach 
agreement as to a consent decree. Approximately 15 days thereafter, 
on May 1, 1981, the District Court issued its findings, conclusions, 
and order rejecting the School Board's magnet school proposal and 
ordering its own plan implemented without ever pointing out to 
the School Board the perceived deficiencies in its plan and giving 
them an opportunity to correct same. No hearing was held on the 
Court's plan before it was imposed.

-23-



An examination of the Court's plan (R, 1555-1607, 514 F.
Supp. 869) clearly indicates that the Court built its plan off 
of the mandatory assignment, pairing-clustering-busing plan 
proposed by the United States with certain modifications elimina­
ting a few of the longest (time and distance) cross-town bus 
routes. The Court did so by closing fifteen elementary schools 
and one high school, converting fourteen of sixteen middle schools 
to one-grade centers and two middle schools to two-grade centers, 
leaving six predominantly white schools and seven predominantly 
black schools due to their complete racial and geographic isolation 
and pairing and clustering (3 § 4 school clusters) of all the 
remaining elementary schools. An examination of the projected 
student enrollment by race attached to the Court's plan indicates 
clearly that except for the schools closed or left alone because 
of racial and geographic isolation, the Court's primary purpose 
was to achieve, as closely as possible, a 601 white and 401 black 
racial balance in all of the remaining schools. (Findings, Con­
clusions, and Plan, Record, Vol. V, Pages 1555-1588, also found 
at 514 F. Supp. 869).

We respectfully submit that the Court's plan makes it clear 
that the Court started out with the goal of acheiving a racial 
balance in as many of the schools to remain open as possible by 
using the tools of closing schools, pairing and clustering to 
do so. Additional orders of the District Court issued subsequent 
to the record before the Court in this appeal, which established

-24-



a mandatory perpetual racial balance of 601 white and 401 black 
at Scotlandville Middle School and a 601 white 401 black quota 
for admission to the Baton Rouge High Magnet School are further 
examples of the Court's racial balancing intent. We suggest 
that such is clearly contrary to the holding of the Supreme Court 
in Swann v. Charlotte-Mecklinberg Board of Education, 402 U.S. 1,
91 S.Ct. 1267, 28 L.Ed.2d 554, at 571, that requiring or attempting 
to racially balance every school goes beyond constitutional 
requirements.

This principle was again expressed by the Supreme Court in 
1974 in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 
1069 when it said:

"...The aim of the Fourteenth Amendment 
guarantee of equal protection on which this 
litigation is based, is to assure that state 
supported educational opportunity is afforded 
without regard to race; it is not to acheive 
racial integration in public schools..."
[Emphasis Added].

We respectfully submit that the District Court's plan is fatally 
defective in attempting to acheive a racial balance in all schools 
and then imposing a remedy which goes far beyond the scope of the 
existing violation under the circumstances and facts here present.

In addition, we respectfully submit that the District Court 
further erred in not pointing out its perception and conclusion 
as to specific deficiencies in the School Board's plan and giving 
the School Board an opportunity to correct those deficiencies and 
make their plan a constitutionally acceptable plan. It is true

-25-



.  W .— * * K

that during the course of the proceedings in the Court below , 
the United States and private plaintiffs raised objections to 
the plan and the United States pointed out what it perceived 
to be certain deficiencies in the plan. They have reiterated 
some of those deficiencies in their brief. It must be remembered, 
however, that at that time the parties were in trial proceedings 
and the School Board, its Superintendent, and its outside experts 
disagreed with the Government as to those deficiencies and were 
trying to convice the’ District Judge that they were not deficiencies.

We respectfully submit that after the trial was completed, 
the District Court as the final arbiter, should, at the very least, 
have advised the Board of what it perceived and had concluded to 
be fatal deficiencies and given the Board an opportunity to correct 
those decisions before inserting itself into the educational process 

and drawing its own plan.
Our courts have long recognized that there is no one desegre­

gation plan that is the only solution in eradicating a formerly 
dual school system. The Supreme Court noted as far back as 1968 
in Green v. County School Board, 391 U.S. 430 , 88 S.Ct. 1689, <-0 
L.Ed.2d 716 (1968), at 439, that there is

"...no universal answer to complex problems 
of desegregation; there is obviously no one 
plan that will do the job in every case. The 
matter must be assessed in light of the cir­
cumstances present and the options available 
in each instance...".

This principle is still in effect today. See Swann v . Chailotte 
Mecklinberg Board of Education, supra., at 16.

-26-



V • •*. • V ’

4 6 f ~ 2 * r *  - -v -
W l <  7

Another principle established by the Supreme Court early 
on, and which still exist today, as the rule in desegregation 
cases, is that,

"...School authorities have the primary 
responsibility for elucidating, assessing, 
and solving these problems;..."

Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed.2d 
1085 (Brown II) at 299-300 and Swann, supra., 402 U.S. at 15-16.
Only if school authorities fail, may judicial authority be invoked. 
Swann, supra., 402 U.S. at 15-16. Here, the School Board has not 
failed. In 1970, when the District Court told the School Board 
it must further desegregate its schools, the School Board voluntarily 
appointed a bi-racial committee and subsequently filed a desegregation 
plan which the District Court found to be constitutionally acceptable 
under existing law and from which no appeal was taken by any party.

In 1980, when the District Court again told the School Board 
it must further desegregate its schools in compliance with present 
judicial decisions, the School Board through Superintendent Arveson 
and his staff immediately commenced full scale, good faith efforts 
to provide the Court with a constitutionally acceptable plan under, 
and in accordance with, the guidelines specifically established by 
the Court. (R, 1329-1344 at 1343). This plan, prepared by profes­
sional educators with the assistance of nationally recognized 
desegregation experts, was based upon and designed to meet the 
specific criteria established by the District Court in its order.

-27-



the

, J55 •

Considering the specific criteria established by 
District Court, it should not have come as a surprise to anyone 
that professional educators would try to develop some type of 
plan, some alternative, to the experience proven disruptive and 
disastrous pairing-clustering-busing type plan then proposed by 
the United States and plaintiff-intervenors. Those specific 
criteria were:

"1. To acheive a unitary school system.
2. To provide an organizational structure 

which will ensure optimum educational 
opportunities for all children with a 
minimum of disruption.

5. To adjust the assignment of students to 
available physical facilities .

4. To utilize available funds to the great­
est educational advantage.

5. To acheive the maximum possible community 
acceptance of the plan thereby resulting 
in minimal resegregation.

6. To reassign students in a manner which 
enhances the instructional program of the 
system.

7. To provide for maximum teachability through 
the matching of assignments with teacher 
competencies and training.

8. To utilize the existing transportation in 
a supportive role to the instructional and 
organizational framework of the system.

9. To minimize disruptive transition for 
students, school personnel, and parents 
and at the same time comply with the man- 
date of the courts in achieving a unitary 
system." (Carr v. Montgomery County Board 
of Education, 377 F. Supp. at 1131). 
[Emphasis Added].

-28-



The School Board's plan met these criteria and had 
of "working" and working "realistically", that is, 
constitutional requirements and perserving a first 
tional system for all students regardless of race.

real promise 
meeting 
class educa-

The Supreme Court has repeatedly held that school authorities
have broad discretionary powers in the area of educational policy
and that courts have this power only if a constitutional violation
takes place. Swann, supra. , 28 S.Ct.2d at 567. It has also said

"...The power of the federal courts to restruc­
ture the operation of local and state governmental 
entities is not plenary... federal court is required 
to tailor the scope of the remedy to fit the 
nature and extent of the...violation." (Citations 
Omitted). Fullilove v. Klutznick, 948 U.S. 498,
483, 65 L.Ed.2d 902, 927-928, 100 S.Ct. 2758 
(1980).

Court orders to remedy constitutional deprivations, the Supreme
Court has said, must be drawn

"...in light of the circumstances present and 
the options available..." Green, supra. , 391 
U.S. at 439 (1968), "taking into account the 
practicalities of the situation..." Davis v.
School Commissioners, 402 U.S. 3337 (1971) .
The law of the Fifth Circuit is the same.
Stout v. Jefferson County Board of Education,
537 F. 2d 800 (5th Cir. 1976).

In view of those decisions, the practicalities of the s 
here existing, the geographic obstacles to be faced, the res 
preferences of individual citizens, the very emotional impac 
by judicial decrees affecting peoples children, the dismal r 
of pairing-clustering-busing plans in other metropolitan are 
the good faith effort of this school system, Dr. Arveson and

ituation 
idential 
t caused 
esul t 
as and 
his

-29-



staff, to provide the Court with a plan which would meet 
constitutional requirements and the Court's own criteria,

Ithe District Court should have afforded the local school 
authorities with an opportunity to try their preferred plan.
At the very least, before imposing its own plan without giving 
the parties an opportunity to be heard with respect to that plan, 
the District Court grievously erred in not pointing out to the 
School Board the deficiencies he perceived in their plan and 
giving them an opportunity to correct same.

As noted heretofore, the United States noted certain claimed 
deficiencies in the Court below as they do in their present brief. 
We believe it is also worth noting, however, that the alternative 
proposal which they submitted to the Court and the parties in 
December 1982 (the Rossell plan) specifically refers, basically 
with approval, to the School Board's original magnet school pro­
posal approximately 20 times (Rossell plan Pages 1415, 1417, 1418, 
1419, 1420, 1421, 1422, 1423, 1424, 1425, and 1429 - However, such 
plan is not contained in this record and is not before this Court 
on appeal) and either approved or adopted and expanded most of 
the concepts and programs in the School Board's original magnet 

school proposal.
If the United States had learned by 1979- 80 wThat it apparently 

learned by December 1982, that busing plans are a "...failed 
experiment..." and if the cooperative reasonable and responsible 
attitude exhibited by the United States in 1982 had also been

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present in 1979-80, it is highly probable that this school 
system would today be operating under a constitutionally 
acceptable plan providing a better educational opportunity 
for all children without the catastrophic loss of some 6,500 
students. That liklihood would also be present if the Court 
below had given the school system an opportunity to correct 
any deficiencies which the Court found in Superintendent Arveson's 
plan.

. Defendants-appellants, East Baton Rouge Parish School Board, 
its Superintendent and staff, respectfully submit that the decision 
and judgment of the Court below should be reversed and remanded 
back to that Court for further proceedings with specific directions 
to the District Court to defer to the local school authorities 
preference for a magnet school-incentive type desegregation plan 
without the disastrous pairing-clustering-cross-town busing except 
where absolutely necessary, as a last resort, to meet constitutional 
requirements. Such remand should also contain directions regarding 
limitations on the racial balancing approach and intrusion by the 
Court into the daily operation of the school system.

II. THE POSITION OF PLAINTIFF-INTERVENORS-APPELLANTS
Plaintiff-intervenors urge 

of the District Court primarily 
Court's order and plan does not 
Court to remand to the District

this Court to reverse the judgment 
on the grounds that the District 
go far enough and urges this 
Court with directions to eliminate

-51-



• >

every predominantly one-race school regardless of the consequences 
and regardless of the effect on children, whether black or white.
They also urge the prohibition of any magnet schools, special 
programs, etc., in which parents would have any choice regarding 
the educational opportunities of their children, whether white 
or black. We respectfully submit that such action by this Court 
would have an absolutely disastrous effect, not only on this school 
system, but on this community as a whole.

We would also respectfull-y suggest that such a decision would 
be contrary to the holdings, spirit, and intent of every decision 
of the Supreme Court beginning with Brown v. Board of Education,
347 U.S. 483, 74 S.Ct. 686 (1954)(Brown I), Brown II, supra.,
Green v. County School Board, supra., Alexander v. Holmes County 
Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), 
Keyes v. School District Number 1, 413 U.S. 189 (1973), Swann, 
supra., Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 
1069 and Austin Independent School District v. United States, 429 
U.S. 990, 50 L.Ed.2d 603, 97 S.Ct. 517 (1977). We would also 
respectfully submit that such decision would be contrary to, and 
go far beyond, the decisions of this Court in this area of the law 
including United States v. Texas Education Agency, et al., CA No.
81-2257 ____ F. 2d ____ (5th Cir. March 1, 1982); Stout v. Jefferson
County Board of Education, supra.; Valley v. Rapides Parish School 
Board, 646 F. 2d 925 (5th Cir. 1981), cert, denied 455 U.S. 939,
102 S.Ct. 1430, 71 L.Ed.2d 650 (1982); United States v. Gregory- 
Portland Independent School District, ___  F. 2d ____ (No. 80-1943,

-32-



5th Cir. 1981); and Ross v. Houston Independent School D i s t r i c t ,

No. 81-2523 (5th Cir. February 16, 1983).
As indicated heretofore, it is clear that,

"...School authorities have the primary 
responsibility for elucidating, assessing, 
and solving these problems;..." Brown 11, 
supra., at 299-300 and Swann, supra., at 
15-16

and only if school authorities fail, may judicial authority be 
invoked. Swann, supra., 402 U.S. at 15-16. Beyond that point, 
it is also clear that the District Courts are accorded broad and 
flexible powers in fashioning an appropriate remedy for the 
particular facts of the case before it. Such remedies and plans 
should be drawn "in light of the circumstances present and the 
options available..." Green, supra., 591 U.S. at 439, "...taking 
into account the practicalities of the situation..." Davis v.
School Commissioners, 402 U.S. 33 at 37 and such plan should 
reconcile "...the competing interests involved..." Swann, supra. ,
402 U.S. 1, at 26.

As indicated heretofore, there is no one plan that is sacrosanct 
in desegregating a school system. Here, plaintiff-intervenors never 
submitted a desegregation plan of their own. They only supported 
the Government's plan. The District Court tried to reconcile the 
competing interests and take into consideration the practicalities 
of the situation, the geography of the parish, the location of 
schools, and to minimize, at least to some extent, the objectionable 
long distance cross-town busing.



The District Court found it necessary to close some formerly 
all black schools and some formerly all white schools. In fact, 
the closure of some of the black schools complained of by 
plaintiff-intervenors such as Hollywood Elementary School, Fair- 
field Elementary School, and Wyandotte Elementary School, were 
actually formerly white schools which had gradually become black 
schools due to residential population changes.

With regard to plaintiff-intervenors' contention that the 
busing is one way with only black students being bused to white 
schools, this is simply not true. The great majority of the 
schools in the system under the Court's plan were either paired 
or clustered. A pair or a cluster, by its very nature, calls for 
assigning black students from a formerly all black school to 
formerly all white schools and reassigning white students from
formerly all white schools to formerly all black schools. For
example, the Court's order pairs Pride (formerly white) and
Cheneyville (formerly black); it .pairs Baker Heights (formerly 
white) and Beechwood (formerly black); and it paired Jefferson 
Terrace (formerly white) and Mayfair (formerly black). The Court's 
three and four school clusters included one formerly black and 
either two or three formerly white schools, and all the students 
in the cluster, white and black, were reassigned within those four 
schools. Obviously, more white students are being reassigned than 
are black students.

Insofar as plaintiff-intervenors contend that the Court 
below did not go far enough, defendants respectfully submit that

- 54 -



it is clear that there has been no abuse of discretion on
the part of the District Court. To the contrary, if anything, 
the District Court went too far.

CONCLUSION
For the foregoing reasons, and for the reasons contained 

in prior briefs of appellant, East Baton Rouge Parish School 
Board, we respectfully urge the Court to reverse the decision 
of the District Court and, at the very least, remand to that 
Court with directions to give preference to the magnet - incentive 
type plan preferred by the local school authorities and, hopefully, 
by the United States.

Respectfully submitted
JOHN F. WARD, JR.
ROBERT L. HAMMONDS
1111 South Foster Drive, Suite C
P.0. Box 65236
Baton Rouge, LA 70896
(504) 923-3462

ATTORNEYS FOR DEFENDANTS-APPELLANTS 
‘AND CROSS-APPELLEES, EAST BATON 
ROUGE PARISH SCHOOL BOARD

-55-



CERTIFICATE OF SERVICE

I do hereby certify that two copies of the above and 
foregoing Brief has this day been mailed, postage prepaid, 
to Ms. Mildred Matesich, Civil Rights Division, Department 
of Justice, Washington, DC 20530; Mr. Robert C. Williams, 
1822 N. Acadian Thruway (W), Baton Rouge, LA 70802; and to 
Mr. Theodore Shaw and Mr. Napoleon Williams, 10 Columbus 
Circle, Suite 2030, New York, NY 10019.

BATON ROUGE, LOUISIANA, this 20th day of May, 1983.

- 36-