Sullivan v. Little Hunting Park Brief Amicus Curiae

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 87-4224

MARILYN MARIE MONTEILH, et al.,
Plaintiffs-Appellants, 

v.
ST. LANDRY PARISH SCHOOL BOARD, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 
Western District of Louisiana, Opelousas Division

REPLY BRIEF FOR APPELLANTS

MARION OVERTON WHITE
516 East Landry Street 
Opelousas, Louisiana 70570-6128 
(318) 948-8296

JULIUS L. CHAMBERS 
THEODORE M. SHAW 
NORMAN J. CHACHKIN 

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Attorneys for Appellants



Table of Authorities

Page
Georgia State Conference of Branches of NAACP v.

Georgia, 775 F.2d 1403 (11th Cir. 1 9 8 5 ) ..................7
International Woodworkers v.Champion International 

Corporation, 790F.2d 1174 (5th Cir. 1986),
aff7d, 55 U.S.L.W. 4820 (U.S. June 15, 1987) ........... 5

F.R.A.P. 1 0 ........................................................



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 87-4224

MARILYN MARIE MONTEILH, et al.,
Plaintiffs-Appellants, 

v.
ST. LANDRY PARISH SCHOOL BOARD, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 
Western District of Louisiana, Opelousas Division

REPLY BRIEF FOR APPELLANTS

The Brief for the School Board simply fails to come to grips 
with the salient facts and legal issues presented on this appeal. 
For the reasons set forth below as well as those presented in our 
main Brief, the judgment below should be reversed and the case 
remanded with instructions.

I.
Preliminarily, we note that counsel for the School Board has 

tendered to the Court a document entitled "Appendix Summarizing 
Testimony" in purported reliance upon "Appeal to the Fifth Circuit 
Manual, Volume 2, Chapter 21, Page 12" (transmittal letter to Clerk 
of this Court, dated August 31, 1987). While we do not object to 
consideration of this material by the Court, we wish to make clear 
exactly what the document is, and what it is not.



The "Appendix Summarizing Testimony" submitted by the School
Board's counsel is a highly selective, argumentative and misleading
recapitulation of the trial evidence in this matter. It is not a
statement on the evidence or proceedings nor an agreed statement
as the Record on Appeal as provided for by F.R.A.P. 10(c) or (d).
The "Appeal to the Fifth Circuit Manual," upon which appellees
rely, is a private publication and not an official promulgation
of this Court —  but even the portion of the Manual cited by
counsel clearly contemplates the preparation of an objective,
dispassionate summary of all relevant trial testimony:

Where the record is voluminous and the 
testimony before the district court extensive, 
an appendix to the brief which summarizes 
testimony, indexes according to either 
transcript or printed appendix page number, 
and digests the content of the testimony is 
most helpful. This is, of course, optional.
If this material is not argumentative it too 
does not count against FRAP 28(g) page 
limitations.

The School Board's submission wholly fails to conform to these 
requirements. For a glaring example of subjectivity, the "Appendix 
Summarizing Testimony" at p. 23 passes from page 100 to page 102 
of the transcript of the August 12, 1986 hearing without including 
Mr. Auzenne's admission at p. 101 (cited in the Brief for 
Appellants at p. 21] that the North Consolidated High School would 
be 80% black. Examples of the insertion of editorial commentary

2



on the evidence abound.1 We respectfully urge the Court to conduct 
its own examination of the Record in this matter.

II.
In its Brief, the School Board suggests that Appellants' 

counsel had information about the zoning for the proposed 
consolidated high schools prior to the August, 1986 hearing so 
that the notice provided in the district court's December 9 Minute 
Entry was more than sufficient to prepare for the hearing (e.q.. 
Brief for Appellees at 9, 10). In fact, the evidence in this
matter is uncontradicted —  and was presented as part of counsel's 
direct examination of the Superintendent —  that zone lines for 
all of the schools had not been established at the time of the 
August hearing (3 R. 8). The School Board itself recognizes in 
its Brief (at p. 6) that "On November 20, 1986, [well after the 
August, 1986 hearing] proposed new attendance zone lines for the 
three new consolidated schools were adopted."

The Board's assertion that "Plaintiffs received student 
population figures and preliminary attendance zone maps for the 
proposed consolidated schools before the August 12, 1986, hearing 
in Judge Duhe's court" (Brief for Appellees, at p. 9) is flatly 
wrong. The School Board's Exhibit No. 1 at the August hearing 
did include projections (confected without the Board's having

1See, e.g., pp. 10 ("thereby neatly ignoring the fact that a 
school combining those grades had operated successfully in the 
small town since 1969 [no record citation]"), 11 ("of course, this 
assertion is flatly contradicted by the statistics . . .").

3



adopted final zone lines, of course), and was technically received 
by plaintiffs' counsel "before the August 12, 1986, hearing"—
the morning of the hearing (3 R. 23) . But the Board introduced 
no maps at the hearing (see 3 R. 5-9, 23; appellees' Record 
Excerpts, Appendices Nos. 1-4; compare id. . Appendix No. 6 [exhibit 
at December 29, 1986 hearing]). In fact, when plaintiffs' counsel 
questioned the Superintendent about a map that had been published 
in the newspaper at the time of the bond vote (3 R. 39) , the School 
Board disclaimed the validity or significance of the map:

THE COURT: PLAINTIFF ONE shows the
proposed attendance zones? Which is it?

THE WITNESS: They were never proposed
to the Board officially

A. Mr. White, I— to my memory we did not use 
that map to campaign for the tax. The purpose 
of this particular map was only sent— first 
of all was only sent to Board members. And 
at one time we were going to propose these 
attended [sic] zones to the Board, but at— at 
the Board meeting there was confusion about 
where the kids from Lawtell would attend. So 
the whole discussion was— the discussion at 
the Board meeting was held and this particular 
map was never presented for official action 
by the Board.

MR. BURSON: Your Honor, at this point
I'm going to object to any further questions 
about this map on the grounds that it's 
irrelevant. It was not proposed to the Board, 
adopted by the Board, submitted to the Court 
for approval. Therefore, it's really 
irrelevant to what we are about.

(3 R. 38-39, 50.)

4



Under these circumstances, counsel acted properly and 
responsibly in awaiting finalization of attendance zoning and 
submission of an appropriate motion to the district court before 
attempting to assess the impact on desegregation of the zone lines 
being proposed, and before attempting to secure expert assistance 
in evaluating the School Board's plan.2

III.
The School Board also implies that plaintiffs were fully 

informed at all times because "Plaintiffs through Messrs. Pitre

2This is particularly true since, in light of this Court's 
decision in International Woodworkers v. Champion International 
Corporation, 790 F.2d 1174 (5th Cir. 1986), aff'd. 55 U.S.L.W. 
4820 (U.S. June 15, 1987) , counsel would have had to seek the 
district court's authorization for the expert testimony if 
plaintiffs wished to recover the witnesses' fees and expenses should they prevail.

Counsel for the Board misstates the record and misinterprets 
a sentence in our Brief in asserting that "statistics were also 
provided to plaintiff's counsel at least 20 days in advance of 
the hearing on the zones lines (2 R. 5, Plaintiff's Brief, p. 8, 
note 15)" [Brief for Appellees, at p. 10].

The citation to the record is to plaintiffs' oral request 
for a continuance at the start of the December 29, 1986 hearing, 
at which time counsel for plaintiffs explicitly stated that "we 
did not have sufficient time to prepare in obtaining experts who 
were able to review the voluminous amount of statistics pertaining to this matter."

The statement in our brief was that "After receiving the 
December 9 Minute Entry setting the hearing, plaintiffs' counsel 
was forced to pick up a copy of the board's submission from the 
district court's chambers" (emphasis added). The Minute Entry 
reflects that it was mailed by the Clerk of the district court on 
December 9. After it was received, plaintiffs' counsel called 
the court to advise that no motion had been filed by the Board 
and was then told that a copy of the material submitted by the 
Superintendent (see Brief for Appellants, at pp. 7-8) would be 
made available for pick-up at the Court's chambers.

5



and Austin had been considering the particulars of the 
consolidation plan since at least February 13, 1986 . . . [and] 
had full access to the same information used by the Board to 
support the plan or any other information they needed" (Brief 
for Appellees, at pp. 36-37)(emphasis added).3 In addition to 
the fact that neither Mr. Austin nor Mr. Pitre represent the 
plaintiff class in this case, before either the district court or 
the school board, it is unfortunately the case that the black 
members of the St. Landry Parish School Board are not afforded 
adequate assistance and information by the white majority of the 
Board or by the administrative staff, as indicated by Mr. Austin's 
inability to secure from the school staff a complete set of 
enrollment projections for the plan he supported (see 2 R. 117, 
134-35).

IV.
A careful reading of the briefs in this case will demonstrate 

that the School Board fails to address the important legal issues 
raised by the appellants in this matter.

First, the Board simply repeats the assertion that the school 
system was declared unitary by Judge Scott in 1971 (Brief for 
Appellees, at pp. 28-29) without any analysis of the case law cited

3See also Brief for Appellees, at pp. 5, 6 (Joshua Pitre, 
identified as "law partner of the plaintiffs' lead attorney," 
served on the School Board and "he and the other two black board 
members enjoyed intimate access to all statistics, facts, and 
figures used by the School Board in developing a consolidation 
plan.") In fact, although Mr. White and Mr. Pitre share office 
space, they are not involved in a formal partnership.

6



in our Brief (p. 25 n.49) . It is clear that Judge Scott was using 
the term "unitary" in 1971 to signify that overt dualism had been 
abolished, not that "unitary status," justifying dismissal of the 
case, had been achieved. See Georgia State Conference of Branches 
of NAACP v. Georgia, 775 F.2d 1403, 1413-14 & nn. 11, 12 (11th
Cir. 1985)(recognizing confusion in use of term).

Second, the Board fails completely to address Appellants' 
concerns about the manner in which these proceedings are being 
conducted by the district court, except to suggest that the 
ultimate outcome of the Superintendent's ex parte communication 
to the district court a hearing —  was the same as the ultimate 
outcome would have been had the school board filed a motion. This 
position would make it futile to have any court rules and 
procedures at all.

Finally, the Board's brief is premised entirely upon the 
projections introduced below (e.g.. Brief for Appellees, at pp. 
23, 29-30), without any meaningful defense of their validity.
The Board's arguments simply assume the point in issue.

Conclusion
The judgment below should be reversed and the case remanded 

to the district court, with instructions: to enjoin further school 
construction pendente lite, to require that a demographic study 
be conducted and a pupil locator map prepared, to require the 
school board to prepare a high school consolidation plan with the 
goal of furthering desegregation of the Parish's school system,

7



to conduct proceedings only upon adequate notice to the parties 
and following the submission of appropriate motion papers or other 
pleadings, to cease its practice of conducting ex parte proceedings 
or entertaining ex parte communications from the school 
superintendent, and to grant the relief sought in plaintiffs' 
Motion to Alter or Amend its judgment.

Respectfully submitted,

MARION OVERTON WHITE 
516 E. Landry Street 
Opelousas, Louisiana 70570-6128 
(318) 948-8296

JULIUS L. CHAMBERS 
THEODORE M. SHAW 
NORMAN J . CHACHKIN 

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Attorneys for Appellants

8



Certificate of Service

I hereby certify that on this 12th day of September, 1987, I 
served two copies of the foregoing Reply Brief for Appellants upon 
counsel for the Appellees and the United States, by depositing 
same in the United States mail, first class postage prepaid, 
addressed as follows:

I. Jackson Burson, Esq.
Assistant District Attorney 
27th Judicial District Court 
P. 0. Drawer 1419 
Opelousas, Louisiana 70571-1419
Hon. Joseph S. Cage, Jr.
United States Attorney
Joe D. Waggoner Federal Building
500 Fannin Street
Shreveport, Louisiana 71101

Norman J. Chachkin