Monteilh v. St. Landry Parish School Board Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 87-4224

MARILYN MARIE MONTEILH, et al.,
PIaint iffs-Appellants, 

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

Defendants-Appellees.
mammammmmmmm_______________- — mmm— mm

.

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

----- -----------------

BRIEF FOR APPELLANTS

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

JULIUS L. CHAMBERS 
TJIEODORE M. SHAW 
I (tRMAN J. CHACHKIN 

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

Attorneys for Appellants



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

CERTIFICATE OF INTERESTED PERSONS 
The undersigned counsel of record certifies that the following 

listed persons and bodies have an interest in the outcome of this 
case. These representations are made in order that the Judges of 
this Court may evaluate possible disqualification or recusal.

Marilyn Marie Monteilh, Daron Anthony Monteilh,
Martha Ann Monteilh and Geromaine Rita Monteilh, minors, 
by their father and next friend Embrick Monteilh; Sandra 
Ann Benson, Calvin Benson and Paul Benson, minors, by 
their mother and next friend, Rose Benson; Mary Glenda 
Malveau, Michael Malveau, Agnes Marie Malveau and Leo 
Paul Malveau, minors, by their father and next friend,
Joseph Malveau; Elnora Malveaux, Jean Alice Malveau,
Robert Malveaux and Anthony Malveaux, minors, by their 
father and next friend, George Malveaux; Richard James 
Durrisseau, minor, by his father and next friend, Theo- 
dule Durriseau, Jr.; Larry Alpough, Carl Alpough, Terry 
Alpough, Fran Alpough, Wanda Alpough and Leon Alpough,
Jr., minors, by their father and next friend, Leon Al­
pough; Hilda Mae Lewis, minor, by her father and next 
friend, Clifton Lewis; Donald R. Semien and Annie Mae 
Semien, minors, by their father and next friend, Adrien 
Semien; Shirley Ann Semien, Wilfred Semien, Jr., Carbino 
Blaze Semien, Tommy Semien, John Michael Semien, Linda 
Faye Semien, Brenda Gail Semien and Blanche Semien, min­
ors, by their father and next friend, Wilfred Semien.



The class of black children attending or entitled to 
attend the public schools of St. Landry Parish, and their 
parents and next friends

Rebecca R. Boudreaux, Veronica LeBlanc, Eula Tezeno, 
McKinley Brown, Sr., Jake Paul, and Velma Savant, as 
parents of children attending the public schools of St. 
Landry Parish, and more particularly, Melville High School

The St. Landry Parish School Board
Joshua J. Pitre, Gus Breaux, Clifton Clause, Bryant 

Goudeau, Patty Prather, Roger Young, John Miller, Gilbert 
Austin, Jackie Beard, Jack Ortego, Jerry Domengeaux, 
August L. Manual, and Ronald Carriere, as members of 
the St. Landry Parish School Board

Henry DeMay, as Superintendent of Schools of St. Landry Parish
The United States of America

NORMAN J. CHACHKIN 
Attorney for 'Plaintiffs- 

Appellants

July 13, 1987



Request for Oral Argument

Appellants respectfully request that oral argument be sched­
uled in this case, which involves issues of considerable importance 
not only to the future operation of the public schools of St. Lan­
dry Parish, Louisiana on a fully desegregated basis, but also is­
sues central to the proper functioning of the district courts in 
this Circuit in school desegregation lawsuits.

Under the plan approved below, the number of high schools 
operated by St. Landry Parish would decrease from twelve to six, 
including three newly constructed schools to replace existing fa­
cilities, with consolidation and realignment of attendance zone 
lines. The location of those new facilities and the configuration 
of their attendance zones will determine the extent to which the 
Parish's high schools are substantially desegregated for many years 
to come. Oral argument will assist the Court in understanding, 
the reasons for appellants' concern about the impact of the plan 
adopted by the school board.

In addition, this appeal involves substantially irregular 
litigation procedures sanctioned by the court below that call for 
careful scrutiny by this Court and the exercise of its supervisory 
jurisdiction. In recent years, in this and other school desegre­
gation suits which have come before the district judge, modifica­
tions to permanent injunctions have been made through informal 
conferences in which plaintiffs' counsel was not invited to parti­
cipate, and contested matters have been handled through hearings 
called sua sponte by the court without appropriate motion papers

iii



having been filed by the school board. As a result, and as typi­
fied by the instant appeal, essential and reliable information 
about the impact of student assignment shifts upon racial enroll­
ment patterns is not included in the record. Oral argument will 
provide an opportunity for the members of this Court to explore 
in depth the adequacy of the procedures followed in this litiga­
tion.



Certificate of Interested Persons .........................  i
Request for Oral Argument....................................iii
Table of Authorities.......................................viii
Statement of Jurisdiction .................................  1
Statement of Issues Presented for Review ................. 1
Statement of the C a s e .....................................  3

1. Proceedings below .................................  3
a. Background of the c a s e .......................  3
b. Recent "proceedings" .........................  4

2. Statement of F a c t s ...............................  8
a. Status of school desegregation in the Parish . 9
b. The original consolidation p l a n ........ . . n
c. The Melville-Grand Prairie closings .... 15
d. The final board plan and the Austin-

Pitre p l a n ..............................  16
e. Projected enrollments under the plans . . . .  19

Summary of Argument.......................................  22
ARGUMENT —

I The School Board Failed To Meet Its Burden Of 
Justifying Its High School Construction And 
Consolidation Plan As An Acceptable Means Of 
Further Dismantling The Dual School System In 
St. Landry P a r i s h ...................................  25

A. The School Board's Projections of Student 
Enrollment and Racial Composition for the 
Consolidated High Schools are Unrealistic 
Because they are Based on an Invalid Assump­
tion and Insufficient Information ............  26

Table of Contents
Page

v



B. The School Board's Consolidation Plan will 
Increase Segregation in the St. Landry
Parish High S c h o o l s ...........................  29

C. The School Board did not Seek to Eradicate 
the Vestiges of the Dual System in Designing
its Consolidation Program ..................... 30

1. The school board did not consider 
desegregation in the crucial early 
stages of designing the consolidation
p l a n ...................................  31

2. The guidelines for drawing the new at­
tendance zones limited the new plan to 
maintaining the status q u o ............  33

3. The school board failed to consider all 
relevant conditions in the Parish related
to desegregation....................... 35

4. The school board failed to examine the
feasibility of the Austin-Pitre plan, 
despite all indications that it would 
result in more desegregation than the 
final consolidation plan, and has ad­
vanced no acceptable justification for 
rejecting it ................. .. 37

D. The School Board's Retention of a School with 
a Substantially Disproportionate Racial Com­
position when Feasible Alternatives Exist
does not Satisfy its Remedial Obligations . . .  40

E. The School Board's Consolidation Plan Will
Result in Unequal Educational Opportunities 
for Students Attending the Predominantly Black 
North Consolidated High School................. 42

II The District Court's Repeated Ex Parte Communications 
And Proceedings In This Litigation, His Refusal To 
Reschedule The Hearings Below Despite Inadequate Notice 
To Plaintiffs' Counsel And The Need For Time To Prepare 
And To Conduct Discovery, And His Refusal To Require 
That The School Board File Motion Papers To Secure 
Modifications Of Injunctive Orders, All Constitute 
Serious Abuses Of The Court's Discretion Which Should 
Be Corrected In The Exercise Of This Court's Supervisory 
Jurisdiction .........................................  44

vi



44
A. The District Court's Management of TheseProceedings .............................
B. The Denial of Plaintiffs' Requested Contin­uances .........................................  47

III Further School Construction By The St. Landry Parish 
School Board Should Be Enjoined Pending Formulation 
Of A High School Consolidation Plan Designed To 
Accomplish Desegregation And An Appropriate Hearing 
Thereon, Preceded By Adequate Notice to Plaintiffs . . 49

Conclusion................................................ 50
Appendices (maps).........................................  3.a

vii



Table of Authorities
PageCases:

Brown v. Bd. of Educ. , 347 U.S. 483 (1954) ..........  42
Brown v. Neeb, 664 F.2d 541 (6th Cir. 1981)..........  45
Castaneda v. Pickard, 781 F.2d 456 (5th Cir. 1986) . . 35
Chavez v. Balesh, 704 F.2d 774 (5th Cir. 1983) . . . .  45
Copeland v. Lincoln Parish School Bd., 598 F.2d

977 (5th Cir. 1979) .............................  31n, 33n
Davis v. Board of School Comm'rs of Mobile, <02

U.S. 33 (1971)...................................  34n
Davis v. Board of School Comm'rs of Mobile, 483 F.2d

1017 (5th Cir. 1973)....................  33n
Davis v. East Baton Rouge Parish School Bd., 721

F.2d 1425 (5th Cir. 1983) ..............  27, 35, 36, 38
Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526

(1979)............................................ 9n
Dowell v. Board of Educ. of Oklahoma City, 795 F.2d 1516

(10th Cir.), cert, denied, 107 S. Ct. 428 (1986) . 45
Green v. County School Bd., 391 U.S. 430 (1968) . . . .  27, 35
Grochal v. Aeration Processes, Inc., 759 F.2d 801

(D.C. Cir. 1985).................................  47n
Hall v. St. Helena Parish School Bd., 417 F.2d 801

(5th Cir.), cert, denied, 396 U.S. 904 (1969) . . 3
Hughes v. United States, 342 U.S. 353 (1942) ........  45
In re Stone, 588 F.2d 1310 (10th Cir. 1978)..........  45
Lee v. Autauga County Bd. of Educ., 514 F.2d 1140 (5th

Cir. 1975)...............................  27, 31n, 34n, 49
Littlejohn v. Shell Oil Co., 483 F.2d 1140 (5th Cir.),

cert, denied, 414 U.S. 1116 (1973)..............  47n
Mayberry v. Maroney, 529 F.2d 332 (3d Cir. 1976) . . .  45
Monteilh v.St. Landry Parish School Bd., No. 71-2604

(5th Cir. Jan. 3, 1972) .............. .. 3n
viii



Page

Monteilh v. St. Landry Parish School Bd., No. 30315
(5th Cir. June 16, 1971).........................  3n

Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert.
denied, 426 U.S. 935 (1976) ..................... 42

Pitts v. Freeman, 755 F.2d 1423 (11th Cir. 1985) . . . 25n, 36
Rhodes v. Amarillo Hospital Dist., 654 F.2d 1148

(5th Cir. 1981) .................................  47
Stotts v. Memphis Fire Dept., 679 F.2d 541 (6th Cir.

1983), rev'd on other grounds sub nom. Firefighters
Local Union No. 1784 v.Stotts, 467 U.S. 561 (1984) 45

Swann v. Chari otte-Meckle.t>urg Bd. of Educ., 402 U.S.
1 (1971)...................................  3, 36, 38n, 48

Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978), cert.
denied, 444 U.S. 437 (1980) ..................... 36

Tasby v.Estes, 517 F.2d 92 (5th Cir.), cert, denied, 423
U.S. 939 (1975) ............................. ; . 31n, 49

Taylor v. Ouachita Parish School Bd., 648 F.2d 959
(5th Cir. 1981) .............. ..................  31, 34n

United States v.Board of Public Instruction of Polk
County, 395 F.2d 66 (5th cir. 1968) . . . .  27, 30, 35, 49

United States v.DeSoto Parish School Bd., 574 F.2d 804(5th Cir. 1978) .................................  34n
United States v. Jefferson County Bd. of Educ., 380 F.2d 

385 (5th Cir.), cert, denied sub nom. Caddo Parish 
School Bd. v. United States, 389 U.S. 840 (1967) . 42

United States v. Lawrence County School Dist., 799 F.2d
1031 (5th Cir. 1986)................ 25n, 31, 34, 35, 40

United States v. South Park Ind. School Dist., 566 F.2d
1221 (5th Cir.), cert, denied, 439 U.S. 1007 (1978) 25n, 34n

United States v. Texas, 447 F.2d 441 (5th Cir. 1971), 
cert, denied sub nom. Edgar v. United States, 404 U.S. 1016 (1972) ...............................  42

ix



Page

United States v. Texas Educ. Agency, 532 F.2d 380 (5th 
Cir.), vacated and remanded, 429 U.S. 990 (1976), 
reaff'd, 564 F.2d 162 (5th Cir. 1977), on rehearing,
579 F.2d 910 (5th Cir. 1978), cert, denied, 443 U.S.
915 (1979).......................................  25n, 30

United States & Pittman v. Hattiesburg Municipal Separate
School Dist., 808 F.2d 385 (5th Cir. 1987) . . . .  40

Universal Oil Products Co. v. Root Refining Co., 328 U.S.
575 (1945).......................................  45

Valley v. Rapides Parish School Bd., 702 F.2d 1221 (5th
Cir.), cert, denied, 464 U.S. 914 (1983) . . . 38n, 39, 40

Wells Rushing, 755 F.2d 376 (5th Cir. 1985) . . . .  47

Statutes and Court Rules; 
28 U.S.C. § 1291 . . . .
28 U.S.C. § 1292(a)(1) 
F.R. Civ. P. 60(b) . . .

1
1

34n, 45

Other Authorities:
7 J. Moore & J. Lucas, Moore's Federal Practice (2d ed.) 45

x



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

BRIEF FOR APPELLANTS 

Statement of Jurisdiction
This Court has jurisdiction pursuant to 28 U.S.C. § 1291 be­

cause the Order appealed from is a final order for purposes of 
appeal and pursuant to 28 U.S.C. § 1292(a)(1) because the order ap­
pealed from grants a modification of the permanent injunctive re­
lief previously awarded in this case.

Statement of Issues Presented for Review 
As both district judges who considered this matter in 1986 

recognized, the St. Landry Parish school system has never been 
adjudicated, in accordance with the procedures that are now stand­
ard in this Circuit, to have achieved "unitary status." Accordingly, 
its plans for new construction and school abandonment must further 
the complete disestablishment of the old dual school system.



In 1986, the St. Landry Parish School Board decided to build 
three new high schools, to close a number of existing facilities, 
and to consolidate attendance areas so as to reduce the number of 
high schools from twelve to six. Plaintiffs challenged this plan 
in the court below on the grounds that the sites selected for the 
new facilities and the attendance zones drawn for them would result 
in the operation of three heavily black and three heavily white 
high schools.

The following issues are raised on this appeal:
1. Did the school board meet its burden of demon­

strating, through competent and reliable evi­
dence, that its school construction and zoning 
plan would not cause resegregation at the high 
school level and would further the process of 
completely eliminating the vestiges of the dual system?

2. Did the district court err in failing to amend 
its orders so as to require that the St. Landry 
Parish school authorities strictly enforce attendance zone lines?

3. Did the district court deny plaintiffs an ade­
quate opportunity to conduct discovery and to 
prepare for a hearing before approving the 
school board's construction and zoning plan? 4

4. Should the district court be required to con­
duct judicial proceedings in this matter only 
upon the filing of proper motion papers by 
the school board, served upon counsel for plain­
tiffs, rather than scheduling hearings sua 
sponte on short notice based upon what the 
court "reads in the newspaper" or otherwise 
learns through extrajudicial processes?

2



Statement of the Case
1. Proceedings below

a. Background of the case
This lawsuit was originally filed in 1965 to end the dual 

biracial system of public schooling in St. Landry Parish. It 
progressed, in now familiar stages, through freedom of choice, 
which was found ineffective in 1969 sub nom. Hall v. St. Helena 
Parish School Board. 417 F.2d 801 (5th 3ir.), cert, denied. 396 
U.S. 904 (1969). On August 8, 1969, an JLEW-drafted plan (as modi­
fied by the district court) , which inclu '.ed school pairings within 
the City of Opelousas, was ordered to be implemented effective 
with the 1969-70 school year.1 The following year, the district 
court granted a school board motion to substitute a zoning plan 
for the Opelousas schools.2 On plaintiffs' appeal, this Court 
first vacated and remanded for reconsideration3 4 in light of Swann4 
and then affirmed the district court's re-approval of that zoning 
plan.5

1See district court's Decree, Appendix 1 to Appellees' Oppo­
sition to Appellants' Motion for Injunction Pending Appeal [here­
after cited as "Appellees' Opposition"] at pp. 73-77.

2See Appendix 1 to Appellees' Opposition, at pp. 44-63.
3Monteilh v. St. Landry Parish School Bd. . No. 30315 (5th 

Cir. June 16, 1971), reprinted in Appendix 1 to Appellees' Oppo­sition, at pp. 42-43.
4Swann v. Chariotte-Mecklenburg Bd, of Educ. . 402 U.S. 1 (1971).
5Monteilh v. St. Landrv Parish School Bd. . No. 71-2604 (5th 

Cir. Jan. 3, 1972), reprinted in Appendix 1 to Appellees' Opposi­tion, at pp. 32-33.

3



As modified, the original desegregation plan remained in ef­
fect6 and there were no further proceedings concerning student 
assignment in the suit until 1979, when the school board closed 
Washington High School after a series of racial fights. Plaintiffs 
thereupon filed a motion for further relief and for contempt 
against the school board because of the closing. Following a con­
ference among the court and counsel, a consent decree was entered 
governing the terms ind conditions under which the school would 
be reopened.7

b . Recent ’'proceedings. "
In recent years, the board has made substantial modifications 

to the court-approved plan, but without following the usual course 
of filing a motion, serving it upon counsel, and having an orderly 
adjudication before the district court.

For example, in 1984 the board closed four school facilities 
without giving notice to the court or to plaintiffs' counsel.8 In 
1985, the superintendent of schools and the two-member "Bi-Racial 
Committee"9 met with the district judge in the absence of counsel,

6Not all of the terms of Judge Scott's 1971 Order were carried 
out by the school board, however. See infra notes 9, 10, 62 andpp. 10-11.

7See Appendix 1 to Appellees' Opposition, at pp. 30-31.
8See Appellees' Opposition, at pp. 6-7.
9As originally conceived by the district court in orders en­

tered in 1970 and 1971, the bi-racial committee was to be composed 
of twenty-two members (eleven of each race) who were parents of 
children attending public schools and who were not employed by the 
system nor related to employees of the system. Plaintiffs and 
the school board, respectively, were to select the members of the

4



and agreed upon zone line changes between Grolee Elementary School 
and Lawtell Elementary School, and between Washington High School 
and Port Barre High School; in each instance, students affected 
by the zone changes were given "freedom of choice" to attend either 
the predominantly black or the predominantly white school (3 R. 
42-43, 67-69, 102-04). The only entry in the case file resulting 
f.vom the meeting was an Order concerning the Grolee-Lawtell zone 
change,* 3 * * * * * * 10 which was served upon plaintiffs' counsel after it was

committee. See Docket Entries, pp. 16-17, 19, 23 [Orders of June
3 1970, June 10, 1970, March 29, 1971,and October 7, 1971].)
Paragraph 7 of Judge Scott's August 12, 1971 Order required the
school board to consult with the bi-racial committee concerning
the promulgation and maintenance of school zone lines, the selec­
tion of sites for new schools, school transportation policies,
and student transfers (see Appendix 1 to Appellees' Opposition, at p. 40).

Some time between 1971 and 1985, the bi-racial committee be­
came a two-member body. At the time of trial, the members were a 
Mr. Champaign and a Mr. Jerome (a former school principal) (R. 
Vul. 3 [8/12/86 Tr.] [hereafter cited as "3 R."] 26-28). Neither 
the proposed construction sites nor the realignment of attendance 
zones at the high school level were submitted to this "Bi-Racial 
Committee." The Docket Entries fail to indicate that any motion 
to modify the committee's composition or responsibilities was ever 
filed; no notice of any such changes was ever received by plain­
tiffs' counsel, no hearing was ever held, and no order was ever entered concerning these subjects.

10See Appendix 1 to Appellees' Opposition, at p. 29. Accord­
ing to testimony at the TRO hearing, Judge Shaw had indicated that 
he would inform plaintiffs' counsel about both modifications (3 
R. 69) . Plaintiffs' counsel did not become aware of these zone 
changes from changes in enrollment figures: although paragraph 6 
of Judge Scott's 1971 decree (Appendix 1 to Appellees' Opposition, 
at p. 40) requires the school board to submit semi-annual Hinds 
County reports to the district court and the Bi-Racial Committee, 
the Docket Entries reflect no filings and plaintiffs' counsel have not received a copy of any such report since 1972.

5



entered by the court —  but no hearing was ever held on any of 
these matters.11

Despite consideration by the St. Landry Parish School Board, 
over a period of several years, of proposals for high school con­
solidation and new construction, no motion to modify the outstand­
ing injunctive decrees was ever filed by the school board once it 
adopted a specific consolidation plan. During the summer of 1986, 
plaintiffs' counsel learned that the board had approved interim 
steps for 1986-87, with full implementation of the consolidation 
plan to follow in the 1987-88 school year.12 on August 4, 1986, 
plaintiffs filed a Motion for Further Relief and Temporary Re­
straining Order, seeking to enjoin the- 1986-87 changes (R. 1-9). 
On the following day, the district judge instructed the clerk to 
place in the official court file correspondence from the school 
superintendent about these changes that had been sent to the court 
on June 10, 1986 (R. 11-23) —— along with the district judge's
June 16, 1986 response stating that the court had "no objections

^Similarly, on June 6, 1985 and June 26, 1985, the district 
court entered orders modifying portions of Judge Scott's August 
12, 1971 decree (see Docket Entries, p. 25). Again, counsel re­
ceived copies of these orders after they were entered; no motion 
requesting this relief was ever submitted by school authorities 
nor was any hearing held. On January 9, 1986, the court (again, 
apparently sua sponte) vacated a paragraph in the school system's 
affirmative action plan, retroactive to January 1, 1986. The dock­
et sheet indicates that the court expressly directed that no notice 
of entry of this order should be given (Docket Entries, p. 25) 
and no copy was received by plaintiffs' counsel.

12These interim steps included the closing of the Melville 
High School building, transfer of its grades to the former middle 
or junior high school, and reassignment of high school students 
residing in the Krotz Springs community to Port Barre High School.

6



to the plan or the transfers approved by the Board" (R. 10).13 
On the same date, August 5, 1986, the motion for temporary restrain­
ing order was set for hearing before Judge Duhe in Lafayette on 
August 12, 1986 (R. 24).14 Relief was denied following the hearing 
(see 3 R. 26—33).

After the school board approved final zone lines for the con­
solidation plan, it still submitted no formal motion for modifica­
tion of the outstanding orders. Instead, on December 9 1986 the 
district court filed a Minute Entry scheduling a hearirg for De­
cember 29, 1986 "to consider approval of the new high sch'ol atten­
dance zones approved by the St. Landry Parish School Board on 
November 20, 1986" (R. 40). As Judge Shaw later sought to explain, 
he had "read in the newspaper" that the school board was purchasing 
sites for new schools under a consolidation plan and accordingly 
decided to schedule the hearing (R. 116).

On December 2, 1986 Judge Shaw had made an ex parte request 
of the school superintendent for documents concerning the consoli­
dation plan, which were transmitted ex parte to the court on Decem­
ber 4, 1986 (R. 41-42; see R. Vol. 2 [12/29/86 Tr. ] [hereafter

13Copies of these letters were never served upon plaintiffs7 counsel when they were sent.
14That hearing concerned only the 1986-87 changes, rather 

than the entire consolidation and construction plan (which had 
not yet received final approval by the school board, according to the testimony).

7



cited as "2 R."] 6-7). These documents were never served upon
plaintiffs' counsel.15

Requests for continuances to provide an opportunity for ade­
quate preparation and discovery, and to secure the services of an 
expert witness were denied (R. 70-79; see 2 R. 18 [request renewed 
at start of hearing]).

At the conclusion of the December hearing the district court 
approved the board's consolidation jv.an (R. 86). Plaintiffs sub­
mitted a Motion for New Trial or, ir the alternative, to Alter or 
Amend the court's ruling (R. 90-115), which was denied except that 
the court announced that once the consolidation plan was fully 
implemented, inter-district transfers would no longer be permitted 
(R. 116-17) . It is from the denial of the Motion for New Trial
or to Alter or Amend that this appeal is prosecuted.16

2. Statement of Facts
This case concerns modifications of the attendance zones orig­

inally set out in a 1971 court-ordered desegregation plan for St. 
Landry Parish, resulting from the school board's adoption of a 
high school consolidation plan.

15After 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.

160n March 20, 1987 the district court extended the time with­
in which a Notice of Appeal could be filed (R. 125), an extension 
necessitated by a postal delivery mixup (see R. 118-23). There­
after, on March 31, 1987, plaintiffs sought a Temporary Restraining 
Order and Injunction Pending Appeal to delay the board's proposed 
new high school construction (R. 128-42), relief which the district 
court denied on April 13, 1987 (R. 154-60); similar relief was denied by this Court on April 29, 1987.

8



The Parish encompasses a geographic area of some 930 square 
miles.17 In the 1985-86 school year, 17,480 students were enrolled 
in forty-one public schools, including twelve high schools.18 
(The number of students has been steadily decreasing since 1972- 
73, when there were 21,572 students).19

a. Status of school desegregation in the Parish 
Although Par: sh-wide enrollment is 53.3% black,20 there are 

six "virtual one race" schools21 and another six schools have en­
rollments of 80% :o 89% one race. At the high school level (grades 
9 through 12),22 23 eleven schools were operated in 1986-87.22 Five

17Defendants' Exhibit 1, introduced at the hearing held Decem­
ber 29, 1986, includes a map of the Parish.

18See Defendants' Exhibit 3, 12/29/86 hearing. The original 
court decree provided for a thirteenth high school, Morrow, which 
burned in 1984? its students were reassigned to Palmetto, see infra note 26.

19See Defendants' Exhibit 1, 12/29/86 hearing, at 4.
20Defendants' Exhibit 3, 12/29/86 hearing.
21"Virtual one race schools" refers to schools with student 

enrollments of 90% or more one race. Davton Bd. of Educ. v. Brink- 
man , 443 U.S. 526, 528 n.l (1979). The "virtual one race schools" 
were Creswell Elementary, Krotz Springs Elementary, Morrow Elemen­
tary, North Elementary, Plaisance High, and Southwest Elementary.

22There is no uniform grade structure in the Parish. Eunice 
and Opelousas High Schools house only grades 10-12; Arnaudville, 
Plaisance and Washington are K-12 schools; Port Barre is a 4-12 
school; Leonville and Melville are 6-12 schools; Palmetto High is 
a 7-12 school; and Lawtell and Sunset are 9-12 schools.

23The twelfth high school, Grand Prairie, was closed after 
the 1985-86 school year and its students reassigned to Plaisance and Washington. See infra p. 15.

9



had student enrollments of 80% or more one race.24 Three of these 
five high schools were "virtual one race schools."

The administrative staff requirements of the 1971 desegrega­
tion order have never been fulfilled.25 At predominantly black 
Plaisance High, Washington High, and Palmetto High, the admini­
strative staffs are entirely black except for one white assistant 
principal in each school (3 R. 34). Also, no predominantly white 
high school has ever had a black principal or head coach (id. at 
99-100). A black has never been considered for a principal's posi­
tion at a majority-white high school (id. at 100).

Many pupils in the Parish attend schools outside their zone 
of residence, including a substantial number who cross district 
lines.26 The school system has no effective policy for enforcing

24Plaisance was 98% black; Palmetto was 91% black; Arnaudville 
was 91% white; Washington was 83% black; Port Barre was 82% white.
(Percentages were calculated from enrollment figures in Attachment 
VIII to Defendants' Exhibit 2, 12/29/86 hearing (R. 59-69).)

25Paragraph 9 of the 1971 desegregation order states: "[T]he
Board is to specifically assign personnel in the positions of prin­
cipal, assistant principal, guidance counselor, and head coach in 
each school so that the race of these does not indicate that the 
school was intended for Negro students or for white students." 
Appendix 1 to Appellees' Opposition, at p. 40.

26For example, when Morrow High School burned down in 1984- 
85, its students were assigned to the adjacent, but virtually all­
black, Palmetto High. The majority of the white former Morrow 
students suddenly developed allergies and produced doctors' notes 
recommending that they attend an air-conditioned school. St. Lan­
dry School Superintendent DeMay sent the Morrow students to the 
two-member "Bi-Racial Committee," which approved their transfer to schools in Avoyelles Parish (3 R. 27) .

When Grand Prairie High school was closed at the end of the 
1985-86 school year, and its students reassigned to Washington 
High or Plaisance, none of the approximately 55 students so trans­
ferred actually attended Plaisance; a maximum of thirteen went to

10



its zone lines. Primary responsibility is placed upon individual 
school principals, but the amount of their salaries is dependent 
in part upon student attendance at their schools (2 R. at 109) . 
The school district's attendance officers investigate "zone jump­
ing" only if a specific complaint is made (id. at 100, 109; 3 R. 
68, 94). The system does not have a pupil locator map.

The "Bi-Racial Committee" also has approved intra-district 
transfers which detract from integration of the schools (see, e.q. 
2 R. 43); its recommendations and approvals are sent to the dis­
trict court but no notice is provided to counsel (id. at 44).

b. The original consolidation plan 
Consolidation of the St. Landry Parish high schools has been 

under consideration for a number of years (2 R. 38) , but the school 
board's present effort apparently began in late 1985 or early 
1986.27 School superintendent DeMay admitted that further dismant­
ling of the dual school system was not a consideration in designing 
the consolidation plan (id. at 32).

The original proposal, upon which the final consolidated 
school zone plan is based, was drawn up by the school system's

Washington (2 R. 103-09). The balance either went to public school 
in Evangeline Parish, see, e.q.. Plaintiffs' Exhibit 1, 12/29/86 
hearing, or to other St. Landry Parish high schools —  for in­
stance, by driving a family car to another school (2 R. at 108-09).

27According to Superintendent DeMay, the factors behind the 
consolidation were the high cost of maintaining multi-floored 
schools up to the Fire Marshal's standards, the cost of overstaf­
fing caused by having many schools with small enrollments, and 
the corresponding ability of the system to offer a broader cur­
riculum at larger schools (3 R. 11-12).

11



two supervisors of child welfare and attendance, Mr. Boudreaux 
and Mr. Auzenne (id. at 106). This proposal, including tentative 
zone lines, was considered by a school district supervisory com­
mittee headed by Mr. Dartez and, virtually unchanged by that com­
mittee, was then presented to the school board for approval on 
February 13, 1986 (id. at 106; Attachment I to Defendants' Exhibit 
2, 12/29/86 hearing). It consolidated the twelve high schools of 
the parish into six schools with rearranged attei.c.ance areas.28 
In drafting the proposal, Auzenne and Boudreaux did not consider 
desegregation but based the plan solely upon administrative con­
venience (3 R. 116); the same factors (excluding desegregation) 
influenced their review of alternative zoning and construction 
proposals (id. at 124). Although Auzenne and Boudreaux calculated 
projections for the racial composition of the new schools, the 
implications of these results for the desegregation status of the 
Parish schools were never discussed (id. at 116).

On December 8, 1985, over ten weeks before the consolidation 
plan was even presented to the school board, the district published 
a notice in the newspaper soliciting offers for the sale of land 
upon which to build the North Consolidated High School.29 On Jan­

28Auzenne and Boudreaux called for a North Consolidated 
School, Northwest Consolidated High school, Southwest Consolidated 
High School, Port Barre High, Opelousas High School, and Eunice 
High School. Port Barre, Opelousas, and Eunice would be renovated, 
and the other three schools would be newly constructed (id.). 
Maps of the existing and proposed zones drawn by Auzenne and Bou­
dreaux are Plaintiffs' Exhibits 1 and 2, 8/12/86 hearing, and are contained in the record, R. 38-39.

29See Exhibit 1 to Appellees' Opposition.

12



uary 23, 1986, the board approved the purchase of forty acres of 
land at Lebeau which was recommended by the all-white Building, 
Lands, and Sites Committee.30 (The Lebeau site was chosen because 
it lies geographically midway between Morrow and Melville.31) 
The land was actually purchased on February 26, 1986.32

On March 6, 1986, the school board approved the consolidation 
plan and called for a public vote on approval of a bond issue to 
finance both salary increases arc the construction of three new high 
schools.33 (The map showing the tentative consolidated high school 
attendance zone lines, which hac. been made available at the school 
board meeting, was published in the newspaper;34 35 the Lebeau site 
was marked on the map.) The vote was held on May 3 and the bond 
issue was approved.3^

At some point after the March 6 board meeting, the zone lines 
were changed in one significant respect. Under the original 
(Auzenne-Boudreaux) proposal, the Lawtell zone was to be divided

30See Exhibit 3 to Appellees' Opposition; 3 R. 54.
312 R. 143.
32See Exhibit 2 to Appellees' Opposition.
33See Defendants' Exhibit 1, 8/12/86 hearing [Official Pro­

ceedings of St. Landry Parish School Board, March 3, 1986].
343 R. 54. The map was Plaintiffs' Exhibit 2 at the August 12, 1986 hearing and is found at R. 39.
35R. 15-16. During the bond approval campaign, the predomi­

nantly white Port Barre and Krotz Springs communities were promised 
that the Port Barre lines would not be changed except to bring 
Krotz Springs within the zone, as shown on the map published in 
the newspaper. DeMay admitted that this promise was made to get 
the communities to vote for the bond issue (2 R. 35-36).

13



roughly in half between Eunice High and Opelousas High. See R.
39. After the revision, however, the Eunice and Opelousas zones 
remained virtually unchanged, while all of the former Lawtell zone 
(except for the Lewisburg region) was assigned to the Northwest 
Consolidated zone, which also included the former Plaisance zone, 
the southern third of the former Washington High zone, and most 
of the former Grand Prairie High zone.36

Also, tire Southeast consolidated zone, combining Araaudville, 
Leonville, and Sunset, now included the Lewisburg region (previously 
assigned to Lawtell High and originally transferred to Opelousas 
High in the tentative proposal crafted by Auzenne and Boudreaux.)37 
Mr. Austin, the black school board member whose district includes 
Lewisburg, disagreed with the superintendent's estimates that the 
area transferred from Opelousas to the Southeast consolidated high 
school was racially mixed; he thought it was 99% white (2 R. 127- 
28, 137-38, 140).

36The Lawtell change was made in response to a survey of par­
ents' wishes conducted in March, 1986, which indicated that most 
preferred that students then enrolled in Lawtell Elementary and 
Lawtell High School attend the Northwest consolidated school (2 
R. 15) . The change was decided upon before the August, 1986 hearing 
on plaintiffs' motion for temporary restraining order, well before 
the supervisory committee's full review of the attendance zones 
described below (see Defendants' Exhibit 1, 8/12/86 hearing [pro­jections at pp. 2-3]).

37Compare R. 39 (tentative zones prepared by Auzenne and Bou­
dreaux) with R. 54 (Superintendent's revision to supervisory com­mittee's recommended plan).

14



c. The Melville-Grand Prairie closings
On June 5, 1986, the board approved a decision made by Super­

intendent DeMay to close predominantly white Melville and Grand 
Prairie High Schools for the upcoming 1986-87 school year. Under 
the Superintendent's proposal, the Melville students would move 
to classrooms in Melville Junior High, except for the students 
from the 99% white Krotz Springs area previously attending Mel­
ville, who would be assigned to predominantly white Port Barre 
High. The Grand Prairie students would be reassigned to predomin­
antly black Washington High and Plaisance High (R. 13-15). While 
student reassignments from the schools to be closed followed the 
tentative attendance zone lines of the proposed consolidation plan, 
the school board did not consider the impact of the Melville-Grand 
Prairie closings on the receiving schools' racial compositions, and 
no projections of the resulting 1986-87 enrollments, by race, were 
made (3 R. 58).

After plaintiffs filed a motion for a TRO on August 4, 1986, 
a hearing was held before Judge Duhe, following which the request 
for emergency relief to bar the 1986-87 changes was denied.38

38Judge Duhe found that despite the "non-unitary status" of 
the St. Landry Parish School System, the school board had failed 
to consider or include desegregation objectives in the decision­
making process by which the Melville-Grand Prairie closing plan 
had been approved (R. 29-30). However, Judge Duhe approved the 
plan because he found that (a) the motivations behind the school 
closings and student transfers were financial rather than racial, 
(b) although the school board did not consider racial issues in 
approving the Melville-Grand Prairie plan, they had been a factor 
considered in devising the overall consolidation plan, and (c) the 
school board's projections indicated that no major change would 
occur in enrollments by race in the schools affected by the Mel­
ville-Grand Prairie closings; students from predominantly white

15



d. The final board plan and the Austin-Pitre plan
On August 28, 1986, a school board committee requested that 

central office staff set the attendance zones and determine what 
the racial composition of each high school would be under those 
zones.39 Superintendent DeMay delegated these tasks to a super­
visory committee under Mr. Dartez, and he directed the committee 
to follow four guidelines in establishing the final zones: (1) 
current attendance areas for elementary and junior high schools 
should not be changed, (2) new attendance zones were needed only 
for the three new consolidated high schools to be built, (3) new 
zone lines should enable students to attend school as near as pos­
sible to their residence, and (4) the racial makeup of the new 
consolidated schools should reflect the racial makeup of those 
former high schools which they would replace (2 R. 11-12; Defen­
dants' Exhibit 2, 12/29/86 hearing, at p. 1).

On October 16, the Dartez committee's zones were presented 
to the school board, which requested its Executive Committee to 
look more closely at the lines, and, for the first time, asked

Grand Prairie would be transferred to predominantly black schools, 
while the predominance of whites at Melville would be reduced (R. 
31-33). These expectations did not materialize at Grand Prairie. See supra note 26.

39Exhibit 7 to school board's Opposition to Plaintiffs' Motions 
for Temporary Restraining Order and Injunction Pending Appeal 
and/or Motion for Filing of a Bond (submitted in district court), 
at p. 3. This pleading, having been filed after the Notice of 
Appeal, is not a part of the record on this appeal but has been 
transmitted separately to this Court by the District Court Clerk. 
It is referred to only for the purpose of providing a more complete 
narrative description of the events. Exhibit 7 consists of ex­
cerpts from school board minutes filed on behalf of the St. Landry Parish School Board.

16



that alternate plans be submitted40 On November 20, the Board 
received the supervisory committee's plan with a minor revision 
made by Superintendent DeMay,41 and an alternate plan drawn by Mr. 
Austin and Mr. Pitre (two of the Board's three black members).42

The Austin-Pitre plan contemplated five high schools serving 
the northeast, northwest, Opelousas, Eunice and southern areas of 
the Parish. The northeast zone would combine the previous Palmetto 
(including Morrow), Melville, and Port Barre areas. The northwest 
school would combine the Plaisance, Grand Prairie, and Washington 
zones along with portions of the Lawtell and Op.slousas High atten­
dance areas. Opelousas High would serve a redrawn area including 
parts of its former zone along with portions of the prior Leonville 
and Lawtell attendance areas. Eunice High would serve its former 
area along with a portion of the old Lawtell zone. Finally, the 
southern consolidated school would combine Sunset, Arnaudville 
and part of the Leonville zone. Under the Austin-Pitre proposal, 
Eunice High and Opelousas High would be renovated and the other

40Id. at p. 4.
41The Superintendent's revision consisted of moving the north­

ern boundary of the Northwest Consolidated School zone in the Wash­
ington region to the intersection of La. Highway 10 and U.S. I- 
49. Compare map of "Proposed Consolidation High School Lines," 
Plaintiffs' Exhibit 1, 8/12/86 hearing, R. 39 with overlay map,
Defendants' Exhibit 1, 12/29/86 hearing. Otherwise, the supervisory 
committee's plan was virtually identical to the original Auzenne- 
Boudreaux proposal that had been approved by the school board on 
March 6, 1986, as subsequently modified with respect to the Lawtell area, supra pp. 13-14.

42See Attachment III to Defendants Exhibit 2, 12/29/86 hearing, R. 48-51.

17



three schools would be newly constructed. (See Court Exhibit 2, 
12/29/86 hearing.)

The objectives of the Austin-Pitre plan were markedly dif­
ferent from the superintendent's instructions to his staff: (1) 
There would be five consolidated high schools, each housing a uni­
form grade structure (9-12) ; (2) Student bodies at each school would 
be equal in number or as close thereto as possible; (3) The schools 
would each have the same nu:i>er of teachers; (4) The schools would 
offer the same curriculum; ;5) The schools would have equal facil­
ities; and (6) The three n« w schools would each cost the same to 
construct. (2 R. 117-20; Court Exhibit 2, 12/29/86 hearing, at p. 
1.)

As an appendix to this brief, three maps show the pre­
consolidation high school zone lines for the Parish and the final 
school board plan as well as the Austin-Pitre proposal. These 
schematic drawings are approximate and were traced from Defendants' 
Exhibit 1, 12/29/86 hearing [overlays] and Court Exhibit 2 from 
the same hearing. But they indicate, when compared, the major 
differences in approach between the board plan and the Austin-Pitre 
alternative.43

43The board's plan, as revised by the superintendent from 
the Auzenne-Boudreaux draft, draws zones generally in an east-west 
direction with the effect of combining whiter areas together (as 
in the zones for Port Barre and the South consolidated high schools) 
and more heavily black areas together (as in the case of the North­
west consolidated high school and the North consolidated high 
school). On the other hand,the Austin-Pitre proposal has atten­
dance areas aligned differently in a manner which includes black 
and white residential areas in the same zones (as in the case of 
the Northeast and Northwest consolidated high schools and the re­vised Opelousas zone).

18



At the school board meeting on November 20, 1986, after pres­
entation of the Superintendent's revisions to the Auzenne-Boudreaux 
proposal and of the Austin-Pitre plan, Austin made a motion to 
hire a professional firm to conduct a demographic study of the 
Parish before attempting to adopt final zone lines. A white board 
member, Mrs. Prather, agreed, noting that the members knew little 
about the actual population distribution. Five of the eleven school 
board members present, including the three black members, felt 
that an objective demographic study was necessary. However, over 
their opposition, the six other members of the school board voted 
to approve the Superintendent's revisions to the zones effective 
for the 1987-88 school year without further inquiry. (Attachment 
III to Defendants' Exhibit 2, 12/29/86 hearing, R. 49; see 2 R. 80.)

e. Projected enrollments under the plans 
Projections of 1989-90 and 1991-92 high school student enroll­

ment and racial composition, under the consolidation plan zone 
lines adopted on November 20, 1986, were prepared by the supervisory 
committee chaired by Mr. Dartez in late October, 1986 (2 R. 8-9, 
29-30) .44 They consist simply of tallies of present student enroll­
ment in the lower grades of the schools expected to feed the con­
solidated high schools (id. at 5-10; 3 R. 116-17 [same method used 
for projections made by Auzenne and Boudreaux under tentative zones 
they drafted, discussed at August hearing on TRO motion]).

44The actual projections are Attachments VI and VII to Defen­dants' Exhibit 2, 12/29/86 hearing, R. 55-58.
19



The projections assume that 100% of the present lower-grade 
students will advance from the feeder schools to the corresponding 
high schools (2 R. 37; 3 R. 117) —  in spite of Dartez' own ex­
perience as an administrator at a predominantly black junior high 
school in Opelousas, where only 30% to 35% of the white students 
in the feeder school continued to the corresponding upper-grade 
school (2 R. 75). Dartez also testified that there is a general 
trend for students to drop out of high school when they reach the 
age of sixteen (id. at 74) and that, from his experience, white 
students in St. Landry Parish attending predominantly black schools 
drop out or change schools in the eighth or ninth grade (id. at 
75) .

Moreover, projections made by the Louisiana Department of 
Education are also inconsistent with those of the school system's 
supervisory committee. The state figures indicate that in two 
years, 19.4% of the pupils in the St. Landry feeder grades will 
not advance into the public high schools, and in four years, 25% 
of the students in the feeder grades will not reach the public high 
schools.45

45See Plaintiffs' Exhibit 3, 12/29/86 hearing [Item 2]. Com­
paring the number of St. Landry Parish students in grades 7 through 
10 in 1984-85 to the number projected in grades 9 through 12 in 
1986-87 yields a 19.4% decline. Comparing the number of students 
in grades 5 through 8 in 1984-85 to the number projected in grades 
9 through 12 in 1988-89 yields a 25% decline.

The state's projections appear to be substantially accurate. 
For example, they indicated that in 1986-87 St. Landry Parish would 
have 4,439 students in grades 9-12. The actual total for grades 
9-12 shown in Attachment VIII to Defendants' Exhibit 2, 12/29/86 
hearing, R. 59-69, excluding only students in grade 9 who attend 
Eunice Junior High and Opelousas Junior High, is 3,768.

20



In drawing the attendance zones and calculating projections, 
the supervisory committee did not take into account demographic 
trends,46 drop-out rates, zone-jumping patterns47 or students leav­
ing public schools for private schools. As indicated previously, 
no demographic study was made. Not surprisingly, therefore, there 
was some disagreement among school officials and board members 
about the projections. For example: (1) Mr. Auzenne, who drew the 
original consolidation plan along with Mr. Boudreaux, estimated 
that the North consolidated high school would be about 80% bleick, 
rather than 67% black as projected (3 R. 101). (2) Under the f: nal 
plan the Lewisburg area would be transferred from predominantly 
black Opelousas High to the heavily white South consolidated school; 
the projections show 25 white and 20 black students from Lewisburg. 
Board member Austin, who represents the electoral district inclu­
ding Lewisburg and who has campaigned there, disagreed with the 
superintendent's description of the area, and with the projections; 
he said it is 99% white (see 2 R. 128, 137-38, 140).

Similarly, while the projections for Port Barre High, following 
transfer of the virtually all-white Krotz Springs area from Mel­
ville, were for no change in racial composition (see 3 R. 19) ,

46A critical demographic factor addressed by the Austin-Pitre 
plan is the sparse population in the north and northwestern areas 
of St. Landry Parish. Mr. Dartez explained that the population 
of the Parish is moving southward and decreasing generally and 
Board member Austin stated that farmers are leaving the northern 
parts of the Parish (2 R. 73, 120, 149).

47See supra pp. 10-11.

21



in 1986-87 the high school grades increased from 79% white to 82% 
white (see 3 R. 19, R. 69).

Austin and Pitre requested that the school system's central 
office prepare projected enrollments and racial breakdowns for 
their alternative plan. According to the incomplete figures fur­
nished to them, each of the high schools would enroll approximately 
700 students, except for Opelousas Senior High which would have 
about 1,000 students (see Court Exhibit 2, 12/29/86 hearing). A 
complete racial breakdown was provided only for the Palmetto-Morrow- 
Melville-Port Barre-Krotz Springs school, vhich would be 58% white 
and 42% black (see Court Exhibit 2, 12/29/86 hearing, at p. 2).48

Summary of Argument 
I

St. Landry Parish has not achieved unitary status, and the 
school board therefore had the burden of showing that its proposed 
high school construction and consolidation plan would further the 
complete dismantling of the dual system. The court below erred

48A variety of cost savings were built into the Austin-Pitre 
plan. Port Barre High would be converted to a kindergarten through 
eighth-grade school. Port Barre Elementary, presently a kinder­
garten through third-grade school, could then be closed, saving 
$43 6,095. The cost of renovating Port Barre High up to high school 
standards would also be saved (2 R. 118-19). Although the mileage 
for transporting students from Morrow would increase, only one 
bus would be needed (id. at 142). Moreover, the mileage would 
decrease for transporting a far greater number of students from 
Melville and Krotz Springs (id. at 120). Because the three new 
high schools would be the same size, the same architectural plan 
could be used for all three (id. at 129). Operating five schools 
instead of six would also yield savings from not having to duplicate 
utilities and staff salaries (id. at 132) . Austin estimated his 
plan would save close to $1 million (id. at 143).

22



in concluding that the board had met its burden and should not 
have approved the plan.

A. The board relied entirely upon a set of "projections" 
purporting to show enrollments by race anticipated under the plan, 
but the method of calculating the projections was fatally flawed 
because it ignored demographic trends, widespread zone jumping 
under the present plan (which the district court refused to correct) 
and a high drop-out rat<>. among white students assigned to predomin­
antly black schools.

B. The currei t enrollments of schools grouped together 
for purposes of consoliJation indicate that the plan will increase 
high school segregation in the Parish.

C. Promoting desegregation was not a factor in the design 
of the consolidation plan, the selection of the site for a new 
high school, or the configuration of attendance zones under the 
plan; rather, the plan was drawn to conform to a guideline that 
required maintaining existing attendance patterns to the greatest 
extent possible. Accordingly, the drafters of the plan failed to 
consider either important demographic factors or the availability 
of more desegregative alternatives, such as a consolidation plan 
proposed by two black members of the school board.

D. The board advanced no acceptable justification for 
the maintenance of Port Barre High as a disproportionately white 
school.

23



E. The plan will create a small, heavily black, unequal 
and inferior high school in the northern part of the Parish and 
thus deny equal educational opportunity to its students.

II
The district court abused its discretion in permitting ex 

parte communications to the court from the school superintendent, 
in conducting "informal hearings" with school officials without 
not .ce to or participation of plaintiffs' counsel, and in scheduling 
headings sua sponte on the basis of its extrajudicial observations, 
rather than following submission of appropriate motion papers by 
the school board. The court similarly abused its discretion by 
setting the hearing below on short notice, without allowing adequate 
opportunity for discovery, preparation, or retention of expert 
witnesses on behalf of the plaintiffs, and in denying requests 
for continuance of the hearing on those grounds. These matters 
require correction by this Court in the exercise of its supervisory 
jurisdiction.

Ill
Further school construction in St. Landry Parish should be 

enjoined on remand pending formulation and approval, following a 
hearing with adequate notice and opportunity for preparation by 
plaintiffs' counsel, of a consolidation plan designed to accomplish 
desegregation.

24



ARGUMENT
I

The School Board Failed To Meet 
Its Burden Of Justifying Its High 

School Construction And Consolidation 
Plan As An Acceptable Means Of Further 
Dismantling The Dual School System In 

____________ St. Landry Parish___________

Because St. Landry Parish is not a unitary school system,49 
it has an "affirmative duty to seek means to eradicate the vestiges 
of the dual system,"50 and must, at a minimum, make a reasonably 
sophisticated and realistic examination of the impact of its pupil 
assignment policies and school construction plans on desegregation. 
The district failed to demonstrate that it had met its affirmative 
duty, and the court below erred in approving the high school con­
solidation and construction plan.

49Both Judge Duhe and Judge Shaw concluded that St. Landry 
Parish remains a non-unitary system (R. 29; 2 R. 156). Although 
Judge Scott labelled the Parish "unitary" in his 1972 desegregation 
order, the district court retained jurisdiction for a minimum of 
three years (see Appendix 1 to Appellees' Opposition, at p. 41) . 
Retention of jurisdiction is standard practice in this Circuit 
and indicates a continuing non-unitary status. United States v. 
Lawrence County School Dist.. 799 F.2d 1031, 1037 (5th Cir. 1986); 
United States v. South Park Independent School Dist.. 566 F.2d 
1221, 1225 (5th Cir.), cert, denied. 439 U.S. 1007 (1978). Also, 
a hearing, with previous notice given to the parties, is required 
before a school system can be declared unitary. United States v. 
Lawrence County School Dist.. 799 F.2d at 1037-38 and cases cited; 
see Pitts v. Freeman. 755 F.2d 1423 (11th Cir. 1985).

50United States v. Texas Education Aaencv. 532 F.2d 380, 398 
(5th Cir.), vacated and remanded. 429 U.S. 990 (1976), reaff'd. 
364 F.2d 162 (5th Cir. 1977), on rehearing. 579 F.2d 910 (5th Cir. 1978), cert, denied. 443 U.S. 915 (1979).

25



A. The School Board's Projections of Student Enrollment 
and Racial Composition for the Consolidated High 
Schools are Unrealistic Because they are Based on an 
Invalid Assumption and Insufficient Information_____
The school board claims, based upon its enrollment projections, 

that its consolidation plan will increase integration in the public 
schools of St. Landry Parish. But the assumption underlying the 
projections is invalid, and the information on which the projec­
tions are based is grossly insufficient. Therefore, the projec­
tions do not realistically portray the future student enrollment 
and racial composition of the consolidated high schools, and the 
district court erred in relying upon them as a basis for approving 
the plan.

The supervisory committee's projections were based solely on 
present enrollment in the lower grades that will feed the consoli­
dated high schools. Their validity thus rests upon the assumption 
that present lower-grade students will attend the Parish's high 
schools. The only rationale for this approach, according to Super­
intendent DeMay, was that "factual information is better than pull­
ing numbers out of your head anytime" (2 R. 21). Judge Shaw echoed 
this rationale in his oral opinion, stating: "We only know where
we are, we don't know where we may be" fid, at 155) . Such reasoning 
negates the basic premise of projections, which is that by gathering 
all relevant data and examining demonstrable trends, one.can make 
an informed prediction about the future.

In examining the effect of its construction plans upon desegre­
gation, a school board is obligated to consider demographic pat­
terns and changes, student residence, the availability of private

26



academies, etc. See Green v. County School Board. 391 U.S. 430, 
439 (1968); Davis v. East Baton Rouae Parish School Board. 721
F.2d 1425, 1435 (5th Cir. 1983); Lee v. Autauga Countv Board of
Education, 514 F.2d 646, 648 (5th Cir. 1975); United States v.
Board of Public Instruction of Polk Countv. 395 F.2d 66, 70 (5th 
Cir. 1968). However, both the supervisory committee and the St. 
Landry Parish School Board looked only at present feeder school 
enrollments. No attempt was made to tcke account of other cogniz­
able factors that will certainly afcect the student enrollment 
and racial composition of the consolidated high schools, including: 
(a) the shift of population out of the northern area of the Par­
ish,51 (b) substantial zone jumping by white high school students,52 
and (c) the significant drop-out rate between the lower grades and 
high school.53

The significance of the drop-out rate and of white student 
zone-jumping was dramatically evidenced by the testimony of Mr.

51See supra note 46.
52See supra pp. 10-11.
5 3 The Louisiana Department of Education's projections for 

student enrollment in the St. Landry Parish public school system 
show that a substantial percentage of feeder school students (19.4% 
oyer two years and 25% over four years) do not advance into the 
higher grades. The school board did not consider this trend in 
making its projections. Therefore, the board's projections for general student enrollment are inflated.

Moreover, the school board should have compared the black 
drop-out rate to the white drop-out rate. Because whites assigned 
to attend heavily black secondary schools in St. Landry Parish 
often do not appear, see text infra, it is likely that the drop­
out rate in predominantly black schools is higher for whites than 
for blacks, and that the proposed North and Northwest consolidated 
schools will be much more heavily black than projected.

27



Dartez, who chaired the supervisory committee responsible for cal­
culating the board's projections. In his experience, white stu­
dents assigned to heavily black schools drop out or change schools 
in the eighth or ninth grade: only 30% to 35% of the white students 
in feeder schools went on to the junior high school where he worked 
(2 R. 75). This suggests, particularly in light of the Parish's 
loose or nonexistent procedures for enforcing its zone lines and 
the ease with which students obtain approval for transfers from the 
"Bi-Racial Committee," that the number of white students who will 
attend the predomir -mtly black consolidated schools is substantially 
over-estimated in the supervisory committee's projections.

If there were to be any hope at all for realization of the 
enrollment projections prepared on behalf of the school board, it 
would rest upon an effective mechanism to insure that students 
attend the school serving their zone of residence. In their Motion 
to Alter or Amend, plaintiffs sought this relief from the district 
court and submitted two examples of federal court decrees in other 
cases requiring it (see R. 96-114). However, the district court 
ignored the request, except to enjoin students from attending school 
outside the Parish when consolidation is implemented. This, of 
course, will do nothing to prevent white students who in the past 
have preferred to go out of the Parish rather than attend predomin­
antly black schools, from zone jumping within the Parish in the 
future. Indeed, the likelihood that this will occur is great, 
because of the substantial disparity in racial composition among



the consolidated high schools which the school board's own figures 
reveal.

B. The School Board's Consolidation Plan will Increase 
Segregation in the St. Landrv Parish High Schools

The consolidation plan approved by the school board consti­
tutes a major step backwards in the process of desegregation be­
cause it will eliminate all of the currently non-racially identi­
fiable high schools in the Parish, and then create three racially 
identifiable white schools and three racially identifiable black 
schools. A close look at the map of the original high school at­
tendance zones makes this conclusion evident. See infra p. la.

In a school district like St. Landry Parish with so many sub­
stantially white and substantially black schools, any forthright 
attempt at using consolidation to further eradicate the dual system 
would combine substantially one-race schools of opposite racial 
composition. However, the school board's plan does the reverse:

—  Substantially white Port Barre High is combined with the 
Krotz Springs area, which is 99% white, resulting in a readily identifiable white school.

—  The Southeast consolidated school combines Arnaudville 
High, Leonville High, and Sunset High (a virtually all-white school, 
a predominantly white school, and a well-integrated school), re­sulting in a larger, identifiably white school.54

54The Southeast consolidated high school will also include the 
Lewisburg area, formerly a part of the Lawtell zone. As noted 
above, the Superintendent and Board member Austin disagree about 
the racial composition of the area, which Austin believes to be 
99% white (see supra p. 21) . Lewisburg is closer to the center 
of the Northwest zone than to the center of the Southeast zone, 
and the school board offered no explanation why this one portion 
was separated from the rest of the Lawtell zone in its final con­solidation plan.

29



—  The North consolidated high school combines Palmetto High, 
part of Washington High, and Melville High (two heavily black 
schools and one previously well-integrated school), resulting in 
an identifiably black school, and one which is likely to be much 
more heavily black than officially projected. See. e.g.. 3 R. 
101 [Auzenne: school will be 80% black]; id. at 27 [white students 
reassigned to Palmetto from Morrow did not attend school but trans­
ferred to Avoyelles Parish schools because of •'allergies"]).

—  The Northwest consolidated school combines Plaisance High, 
part of Washington High, Grand Prairie High, and Lawtell High (a 
virtually all-black school, a predominantly black school, a small, 
predominantly white school, and an integrated school), resulting in an identifiably black facility.

In light of the established practice for white students in 
St. Landry Parish to avoid attending heavily black high schools, 
the board's consolidation plan will further accentuate the dif­
ferentiation of public education in the Parish along racial lines 
—  exactly the opposite of the objectives to which this litigation 
has been addressed for more than twenty years.

C. The School Board did not Seek to Eradicate the Vestiges 
of the Dual System in Designing its Consolidation Program

Because school construction has such a profound effect on 
racial composition, a school board which has operated a dual school 
system has "an affirmative duty overriding all other considerations 
with respect to the locating of new schools, except where inconsis­
tent with 'proper operation of the school system as a whole,' to 
seek means to eradicate the vestiges of the dual system." United 
States v. Texas Education Agency. 532 F.2d at 398, guoting United 
States v. Board of Public Instruction of Polk Countv [emphasis in

30



original].55 "The failure sufficiently to satisfy this obliga­
tion continues the constitutional violation." United States v. 
Lawrence County School District. 799 F.2d at 1044, quoting Tavlor 
v. Ouachita Parish School Board. 648 F.2d 959 (5th Cir. 1981) [em­
phasis omitted]. Further, a school board does not satisfy its 
constitutional obligation by choosing a school construction plan 
that merely maintains the status quo.56 57 It must actively seek 
to promote complete dismantling of the dual system.5’

1. The school board did not consider 
desegregation in the crucial early 
stages of designing the consolidation plan__________________________________

Auzenne and Boudreaux did not consider how their plan would 
affect school desegregation until after they had configured high 
school zones based solely on geography. Similarly, alternative

55See United States v. Lawrence County School District: Pitts 
v. Freeman; Tavlor v. Ouachita Parish School Board. 648 F.2d 959 
(5th Cir. 1981) ; Copeland v. Lincoln Parish School Board. 598 F.2d 
977 (1979); Tasbv v. Estes. 517 F.2d 92, 105 (5th Cir.), cert. 
denied, 423 U.S. 939 (1975); Lee v. Autauga County Board of Educa­tion.

56As we have suggested in the preceding section, there is in 
fact every reason to believe that the school board's consolidation 
plan will substantially decrease the level of desegregation in the high schools.

57For example, in Lee v. Autauga Countv. a school board oper­
ating under a 1970 desegregation order had considered how its plans 
to construct a new school would affect the existing attendance 
zone in which it was to be located. This Court ordered the board 
to examine alternatives that might alleviate continuing segregation 
within the school system as a whole. 514 F.2d at 648. In Copeland 
3L_Lincoln Parish School Board, in comparison, a school construc­
tion plan was approved because the new schools would have racial 
compositions closely approximating that of the school system as a 
whole, and achievement of desegregation was a critical element in 
the school system's planning and site selection. 598 F.2d at 981.

31



plans were compared and eliminated by them solely on the basis of 
administrative convenience. Although projections of student en­
rollment and racial composition were made, they were not affirma­
tively considered in fashioning the plan but were looked at only 
after the plan was completed; no revisions to the plan were made 
in light of the projections.

The approach used by Auzenne and Boudreaux is significant in 
that their plan defined the essertial design of the attendance 
zones. This was the only plan presented to the school board for 
approval in February, 1986, and '.t served as the basis for the 
final attendance zones drawn in the fall of 1986. Moreover, the 
Lebeau site for the North consolidated high school was chosen even 
before any consolidation plan was approved by the school board; 
in selecting the site, the board d;.d not consider how desegregation 
might be advanced but simply chose a location approximately halfway 
geographically between Morrow and Melville without regard to popu­
lation distribution in the Parish 'see 2 R. 143-44). This decision 
limited the options available to the board for designing attendance 
zones.58 A location more central to the entire Morrow, Melville,

58Placing the North consolidated high school in Lebeau effec­
tively limits the school's attendance zone to the Morrow, Palmetto 
and Melville regions. At the same time, it creates the need for 
a separate school to serve Port Barre and Krotz Springs (3 R. 25) . 
The result is a small, predominantly (under the official projec­
tions) or overwhelmingly (plaintiffs' concern) black school with 
few students in each grade in the north, and a small, heavily white 
school with few students in each grade in Port Barre. (See Attach­
ment VII to Defendants' Exhibit 2, 12/29/86 hearing, R. 55-58 [pro- 
jections] ; Attachment VIII to id. , R. 66 [small numbers of students 
in each grade in 1986—87 at Port Barre High, already joined with 
Krotz Springs area in that school year].) The small size of the 
schools will limit their funding, which is allocated on a per-

32



Palmetto, Port Barre and Krotz Springs areas would have avoided 
the creation of a disproportionately white school at Port Barre. 
See 2 R. 68-69 [Dartez agrees that school serving entire area would 
be more desegregated than Lebeau site].

2. The guidelines for drawing the new
attendance zones limited the new plan 
to maintaining the status cruo________

In the fall of 1986, when the supervisory committee was asked 
to draw a fins.l attendance zone plan, Superintendent DeMay gave 
the committee 'our guidelines on which to base the plan.59 These 
guidelines in no way directed the committee "to seek means to erad­
icate the vestiges of the dual system."60 In fact, the Superinten­
dent's guidelines called for as little change as possible and re­
stricted the plan to maintaining the status cruo? when the committee 
finished its work, the attendance zones approved by the St. Landry

student basis and may limit the breadth of their curricula (2 R. 
20, 89-91, 131; see also Attachment III to Defendants' Exhibit 2, 
12/29/86 hearing, R. 49 [official proceedings of November 20, 1986 
meeting at which Superintendent DeMay stated that smaller schools 
may have fewer electives]). The Austin-Pitre plan envisions one 
large school in an area central to the Morrow, Palmetto, Melville, Port Barre and Krotz Springs regions (2 R. 120).

59The guidelines are set out supra at p. 16.
60Compare the Superintendent's guidelines to the standard set out in Davis v. Bd. of School Commissioners of Mobile County. 483 

F.2d 1017, 1019 (5th Cir. 1973): "Site must be as centrally located 
as possible to maximize desegregation." In Copeland v. Lincoln 
Parish School Bd.. a guideline stipulating "maintenance of racial 
balance" was approved, but no school in that parish was more than 
56% black, 598 F.2d at 981, and the two new schools approved in 
Copeland were both projected to have student enrollments within 
5% of the racial ratio of the school system as a whole.

33



Parish School Board for the consolidated high schools followed 
the existing zone lines as closely as was feasible.

As this Court made abundantly clear in Lawrence Countv. a 
school board may have to go beyond the status quo —  even when 
the status quo is a court-decreed attendance zone plan —  in order 
to fulfill its continuing constitutional obligation to eradicate 
the vestiges of the dual school system. 799 F.2d at 1045.61 And 
where a system has failed to carry out an existing court order, 
going beyond the original desegregation decree is not only war­
ranted, but required. Lawrence Countv. 799 F.2d at 1044.

In light of the continuing existence of racially identifiable 
schools and the school board's failure to comply fully with all 
provisions of the 1971 decree,62 the district court should have

61In Lawrence County, this Court ordered a revision of atten­
dance zones after finding that (a) the school board had violated 
the existing desegregation order, (b) racially identifiable schools 
continued to exist, and (c) a more even distribution of students 
by race was achievable. See also Davis v. Board of School Comm'rs 
of Mobile. 402 U.S. 33, 37 (1971); Taylor v. Ouachita Parish School 
Bd.. 648 F.2d at 967-68; United States v. Desoto Parish School 
Bd., 574 F.2d 804, 818 (5th Cir. 1978); Lee v. Autauga Countv Bd. of Educ.

62This school district has not lived up to its obligations 
under the 1971 decree nor met its constitutional responsibilities 
in a number of respects. For example, it has not enforced existing 
zone lines and has allowed students to avoid attending integrated 
schools in accordance with the court order. See United States v. 
Lawrence County School Dist.. 799 F.2d at 1047. It closed a number 
of schools in 1984 without seeking the court's approval —  even 
through the informal means it has more recently employed (which 
themselves do not satisfy the requirement of F.R. Civ. P. 60(b) 
relating to modification of injunctive relief, see infra p. 45). 
See Lawrence County. 799 F.2d at 1040. It has continued to assign 
principals to schools in a fashion that perpetuates their racial 
identifiability. See United States v. South Park Ind. School 
Dist.. , 566 F.2d at 1226. It has failed to file regular Hinds County reports.

34



rejected the zone lines prepared by the school authorities and 
required that new attendance zone lines be drawn so as to effect 
the most desegregation possible.

3. The school board failed to consider all relevant 
conditions in the Parish related to desegregation

A school board cannot affirmatively seek ways to use new 
school construction to eradicate the vestiges of the dual system 
without first studying conditions in the district and examining 
the feasibility and desegregative effects of alternative plans 
and sites. See Castaneda v. Pickard. 781 F.2d 456, 461 (5th Cir. 
1986) ; United States v. Board of Public Instruction of Polk County. 
395 F.2d at 70; Green v. County School Board of New Kent Countv. 
391 U.S. at 439. Requiring less of public officials would convert 
their obligation from an "affirmative duty" to a hollow one, be­
cause numerous possibilities for further desegregation would be 
left unidentified and unexplored.

Part of the school board's duty is to "respond as much as 
reasonably possible to patterns and changes in the demography of 
the parish." Davis v. East Baton Rouge Parish School Board. 721 
F.2d at 1435. See also Lawrence Countv. 799 F.2d at 1045-46. The 
St. Landry Parish School Board, however, refused to commission a 
demographic study before approving the final sites and attendance 
zones. No pupil locator map or any other documentation of student 
residence was presented by the school board at the hearing nor is 
any discussed in the minutes of the school board proceedings.

35



No projections of racial composition for alternative school sites 
or attendance lines were presented. No time-and-distance studies 
measuring travel burdens or other feasibility studies were offered. 
See Davis v. East Baton Rouge Parish School Board. 721 F.2d at 
1438; Tasby v. Estes. 572 F.2d 1010, 1014 (5th Cir. 1978)(Tasby 
II) , cert, denied. 444 U.S. 437 (1980) (such studies crucial in 
assessing feasibility of Swann techniques for further desegrega­
tion) .

The School Board's projections of student enrollment and ra­
cial composition represent the Board's sole ef.ort to consider, 
at any time, the desegregative impact of its ccnsolidation plan. 
But the projections were not affirmatively considered by Auzenne 
and Boudreaux in fashioning the plan nor by the supervisory com­
mittee or the school board in reviewing it.63

Thus, the school board's approach was to design the most ad­
ministratively convenient plan without considering its effect on 
desegregation or what modifications might be made to the plan, in 
light of demographic and other conditions in the school system, to 
increase the level of desegregation. Such an approach is quite 
different from seeking the plan that achieves the greatest desegre­
gation possible within practicable limits, as the school board 
was obligated to do. See Pitts v. Freeman. 755 F.2d at 1427.

63Maps depicting the proposed attendance lines were presented 
to a school board committee as early as October 2, 1986 —  see Ex­
hibit 7 to school board's Opposition to Plaintiffs' Motions for 
Temporary Restraining Order and Injunction Pending Appeal and/or 
Motion for Filing of a Bond (submitted in district court), at p. 
3 —  well in advance of the time when racial projections were avail­able, see supra. text at note 44.

36



4. The school board failed to examine the feasibility 
of the Austin-Pitre plan, despite all indications 
that it would result in more desegregation than 
the final consolidation plan, and has advanced no 
acceptable justification for rejecting it_________

The only alternative plan considered by the school board was 
the Austin-Pitre plan, but the board's examination of that plan 
was cursory at best. The available information indicated that
this plan would result in greater integration,64 was more educa­
tionally sound,65 and would cost less than the final consolidation 
plan.66 By not examining whether the plan was feasible, the school 
board left unsatisfied its constitutional obligation to seek means 
to eradicate the vestiges of the dual system.67

64Projections of racial composition were requested by Austin 
but were furnished only for the Northeast school (combining the 
Morrow, Palmetto, Melville, and Port Barre zones). The enrollment 
at this school was projected to be 58% white and 42% black. This 
is much more integrated than the North Consolidated and Port Barre 
High schools contemplated by the final consolidation plan, which 
were projected to be 67% black and 22% black, respectively. (Of 
course, the reliability of the North high school projection is 
open to doubt. Auzenne expected the school to be 80% black and 
plaintiffs fear it will be a virtually all-black facility.) Austin 
and Pitre could not project student ratios for the other schools 
because the School Board's central office staff did not supply 
the necessary information.

65Under the Austin-Pitre plan, except for Opelousas Senior 
High, all the high schools would be virtually the same size, and 
all five high schools would include only grades 9 through 12. 
This design would guarantee equal educational opportunities to 
all of St. Landry Parish's high school students. In contrast, 
under the final consolidation plan, the predominantly black North 
consolidated high school would have fewer students and lesser fund­
ing, and would be likely, therefore, to have a more limited cur­
riculum and fewer facilities. See supra note 58; infra note 71.

66See supra note 48.
67It should also be noted that the Austin-Pitre plan parallels 

the recommendations of the Blue Ribbon Committee for Consolidation, 
issued on January 9, 1984. The Blue Ribbon Committee is referred

37



The primary reason asserted by the school board at the hearing 
for rejecting the Austin-Pitre plan was that the location of the 
Northeast school which they proposed would result in unduly burden­
some travel for students living in Morrow, and greater travel time 
in general. However, no time-and-distance studies or equivalent 
documentation was presented to support this claim, as required in 
Davis v. East Baton Rouge Parish School Board. 721 F.2d at 1438.68

Super]ntendent DeMay stated that the school board rejected 
the Austin-Pitre plan because it "saw no reason to disturb" Port 
Barre Higt since it "has a very good curriculum" (2 R. 16). Such 
reasoning,, in the face of Port Barre's disproportionate white en­
rollment, demonstrates a clear disregard by the school board of 
its affirmative duty to eradicate the vestiges of the dual system. 
Also, according to DeMay, the Board did not want to close Port 
Barre High because it was in good condition fid, at 16). However, 
Port Barre High would not be closed under the Austin-Pitre plan. 
Instead, it would be converted to a kindergarten through eighth 
grade school, resulting in a savings of $435,000.

DeMay also opposed the plan because it would divide the stu­
dents of Lawtell High and Leonville High among different consoli­

to by superintendent DeMay at 2 R. 27, 38. Its report, however, is not included in the record.
68Indeed, in light of current travel patterns, there is no 

chance that the board could demonstrate that under the Austin-Pitre 
plan, "the time or distance of travel is so great as to either 
risk the health of the children or significantly impinge on the 
educational process." Valiev v. Rapides Parish School Bd.. 702 
F•2d 1221, 1229 (5th Cir.) cert, denied. 464 U.S. 914 (1983), emo­ting Swann. 402 U.S. at 30-31.

38



dated high schools. However, the board's final consolidation plan 
itself divides the students of Lawtell High, Washington High, and 
Melville High. There may be some benefits in not dividing com­
munities among attendance areas, but "the maintenance of such val­
ues may not serve to supersede the constitutional imperative of 
desegregation." Valley v, Rapides Parish School Board. 702 F.2d 
at 1229.

DeMay and Dartez claimed that the Northwest high school, as 
contemplated by the Austin-Pitre plan, would be less integrated 
than the Northwest consolidated high school under the board's final 
plan. (2 R. 17, 18). This claim was based on the assumption that 
all or nearly all of the students living in the area of northern 
Opelousas which would be zoned into the Northwest school under the 
Austin-Pitre plan were black. However, Dartez admitted that he 
did not know how many white families lived in the area (see id. 
at 80-82) and neither he nor DeMay based their estimates on a demo­
graphic study or pupil locator map. Since Dartez agreed that 
northern Opelousas was not all-black, id. at 82, use of such a 
map would permit precise tailoring of the zone to send white pupils 
to the Northwest school under the Austin-Pitre plan.

Finally, the school board argued that the Austin-Pitre plan 
would require abandoning the Lebeau site, which cost $225,000. 
As Austin pointed out, however, the site could easily be resold 
and because the Austin-Pitre plan would save nearly $1 million 
over the school board's final consolidation plan, any financial 
loss would be more than compensated (2 R. 142-43). As noted, the

39



school board approved the Lebeau site without considering its ef­
fect on desegregation; to allow the board to reject a practical, 
more desegregative consolidation plan because the Lebeau site was 
already purchased would encourage school authorities in St. Landry 
Parish and elsewhere throughout this Circuit to ignore their con­
stitutional obligations.

D. The School Board's Retention of a School with 
a Substantially Disproportionate Racial Com­
position when Feasible Alternatives Exist 
does not Satisfy its Remedial Obligations____

School authorities who once operated a dual system have _n 
obligation to eliminate racial identification of schools as far 
as possible. Lawrence County. 799 F.2d at 1047.69 Thus, there Is 
a presumption against schools that are "substantially dispropor­
tionate in their racial composition." Retention of such schools 
is unacceptable where reasonable alternatives may be implemented. 
United States & Pittman v. Hattiesburg Municipal Separate School 
District. 808 F.2d 385, 390-92 (5th Cir. 1987); Valiev v. Raoidss 
Parish School Board. 702 F.2d at 1226.

The principle established in these cases applies with full 
vigor to the St. Landry Parish School Board's retention of Port 
Barre High as an identifiably white facility. In 1986-87, after 
receiving Krotz Springs high school pupils, Port Barre High was

69In the Lawrence County case, where 44% of the students were 
black, this Court held a school that was 71% black, and a school 
that was 64% white with an 80% white faculty, to be racially iden­
tifiable. The Court ordered that the student assignment zones of 
the existing desegregation plan be altered so as to reduce the racial identifiability of the schools.

40



79% white, and in the high school grades (9-12) was 83% white.70 
Without reform of the system's procedures for enforcing zone lines, 
it is likely that in the near future, Port Barre High will become 
even more disproportionately white.71

The school board has the burden of showing that no practical 
alternatives exist to the maintenance of this disproportionately 
white school at Port Barre. The Austin-Pitre plan included a 
Northeast school combining the Morrow, Palmetto, Melville, and Port 
Barre zones, whose enrollment was projected as 58% white and 42% 
black. Unless the school board can demonstrite that operation of 
the Northeast school envisioned under the Austin-Pitre plan is 
infeasible, it is obligated to adopt at least this aspect of the 
Austin-Pitre plan. As demonstrated above in Argument I.C.4., how­
ever, the board's proferred reasons for rejecting the Austin-Pitre 
plan are not persuasive on this record.

70Both the principal and the head coach were white.
71In light of the projections made by the Louisiana Department 

of Education, of Dartez' statements about white students' tendency 
not to advance to predominantly black high schools, and of the 
general demographic shift away from the northern area of St. Lan­
dry Parish, it is evident that the projections for student enroll­
ment in the North consolidated high school are considerably over­
estimated. As Judge Shaw indicated during the hearing and in his 
ruling, there is a strong probability that the small student body 
in the North consolidated school will necessitate a transfer of 
the Ouachita area from the Port Barre zone to the North consoli­
dated zone (2 R. 25, 155). There are presently thirty-nine black 
students and twenty-eight white students in the Ouachita area (id. 
at 24). Transferring the Ouachita area will increase the percen­
tage of whites at Port Barre in grades 4 through 12 to 82%, since 
there were 176 blacks and 664 whites attending Port Barre in 1986- 
87. See Attachment VIII to Defendants' Exhibit 2, 12/29/86 hear­ing, R. 66.

41



E. The School Board's Consolidation Plan Will Result in 
Unequal Educational Opportunities for Students Attending 
the Predominantly Black North Consolidated High School

Underpinning the entire line of school desegregation cases is 
the right to equal educational opportunity. See Brown v. Board of 
Education. 347 U.S. 483, 493 (1954). Providing students with sub­
stantially equal curricula and equal facilities is a necessary 
element in guaranteeing equal educational opportunity. United 
States v. Texas. 447 F.2i 441, 448 (5th Cir. 1971), cert, denied 
sub nom. Edgar v. Unite:! States. 404 U.S. 1016 (1972); United 
States v. Jefferson Coun :v Board of Education. 380 F.2d 385, 393 
(5th Cir.)(en banc), cert, denied sub nom. Caddo Parish School 
Board v. United States. 389 U.S. 840 (1967). "[T]he realistic 
prospect of discriminatory inequality of support for schools which, 
though no longer subject to racial districting, transfer, or other 
such policies, remai[n] predominantly black is a pragmatic factor" 
supporting the need for full desegregation, Morgan v. Kerrigan. 
530 F.2d 401, 419 (1st Cir.), cert, denied. 426 U.S. 935 (1976).

It is significant, for these reasons, that the North consoli­
dated school planned by the school board will have less funding 
than the other high schools of the Parish, leading to a more limi­
ted curriculum and fewer facilities as well.72

72Mr. Dartez, who chaired the supervisory committee which 
drew the final lines, explained that five hundred students is the 
minimum number of students that could be considered ideal for a 
high school (2 R. 70). Realistic projections would place the num­
ber of students at the North consolidated facility significantly 
below this ideal minimum. See supra notes 53, 71 & accompanying 
text. Since the school board allots money to pay for teachers, 
textbooks, and non-educational facilities on a per-pupil basis, 
the North school will receive fewer funds for these purposes than

42



According to the board's projections, the North consolidated 
high will be the smallest of the high schools, with 654 students 
in 1988-89 and 645 students in 1990-91 spread through grades 7 to 
12. If the board's projections are viewed in light of those made 
by the Louisiana Department of Education for St. Landry Parish as 
a whole, there will be 527 students in 1988-89 and 484 students 
in 1990-91.73 The demographic shift away from northern St. Landry 
Paris! will reduce the actual number of students even further, 
even apart from the tendency of white students to leave predomin­
antly olack public schools in the eighth or ninth grade.

The school board's consolidation plan is thus discriminatory 
because it will create an identifiably black school with funding, 
facilities, and course offerings inferior to those of the other 
Parish high schools.

all the other high schools. Furthermore, the school will have 
to spread these scarce funds over more grades than every other 
high school except Port Barre. Dartez claimed the facilities at 
North Consolidated will not be inferior because less money will 
have to be spent on the smaller plant. Dartez also stated that 
the same number of electives can be offered as elsewhere, although 
fewer sections can be offered of each elective. However, no docu­
mentary evidence was presented in support of these claims.

Austin believes the lower funding and greater grade range 
will result in inferior facilities and educational opportunities 
at the North school (see 2 R. 131-32). At the meeting at which 
the school board approved the consolidated zone lines, Superinten­
dent DeMay reported to the board that the North facility might 
have fewer electives because of its small size (R. 49) . This would 
apparently result from having fewer teachers, as well as fewer 
classes, because of the small numbers of students in each class.

73These figures represent reductions in the school board's 
projections of 19.4% and 25%. See supra note 45 & accompanying text.

43



II
The District Court's Repeated Ex Parte Communications 

And Proceedings In This Litigation, His Refusal To Reschedule 
The Hearing Below Despite Inadequate Notice To Plaintiffs' 
Counsel And The Need For Time To Prepare And To Conduct 

Discovery, And His Refusal To Require That The School Board 
File Motion Papers To Secure Modifications Of Injunctive 

Orders, All Constitute Serious Abuses Of The Court's 
Discretion Which Should Be Corrected In The Exercise 

__________ Of This Court's Supervisory Jurisdiction___________

A. The District Court's Management Of These Proceedings
The manner in which recent proceedings in this litigation 

have been conducted, described in some detail in the Statement of 
the Case, supra pp. 4-8, is quite extraordinary, to say the least. 
The district court appears to have injected himself, to a remark­
able degree, into the operations of the school system on the basis 
of ex parte meetings and communications with the school superinten­
dent or school board members, private review of the decisions on 
transfers made by the vestigial two-member "Bi-Racial Committee,'*74 
and the issuance of modifications to prior injunctive orders on 
the basis of informal submissions by the school superintendent. 
From all of these activities, which are of vital importance to 
plaintiffs and the class of black schoolchildren whom they repre­
sent, their counsel has been excluded. Indeed, on one occasion 
the district judge apparently directed that no one should be ap­
prised of the contents of an order in the case (see supra note 
11) .

74At the December 29, 1986 hearing, the District Judge cut 
off questioning about the Committee and the identity of its members 
(2 R. 39-40)? this information had already been revealed during the TRO hearing (3 R. 27-28) .

44



Judge Shaw's ex parte modifications of the original desegre­
gation order are improper as a matter of law. A permanent injunc­
tion can be modified only by motion or by an independent action, 
with adequate notice to the opposing parties, F.R. Civ. P. 60(b); 
Chavez v. Balesh. 704 F.2d 774, 777 (5th Cir. 1983); 7 J. Moore & 
J. Lucas, Moore's Federal Practice (2d ed.)  ̂ 60.28. Moreover, an 
evidentiary hearing is required which accords the parties an ade­
quate opportunity to raise all relevant issues and to be heard 
thereon. Universal Oil Products Company v. Root Refining Cogpanv. 
328 U.S. 575 (1945); Hughes v. United States. 342 U.S. 353 (1942); 
Dowell v. Board of Education of Oklahoma City. 795 F.2d 151£ (10th 
Cir.), cert, denied. 107 S. Ct. 428 (1986); Stotts v. Memphis Fire 
Department. 679 F.2d 541, 561 (6th Cir. 1983), rev'd on other 
grounds sub nom. Firefighters Local Union No. 1784 v. Stotts. 467 
U.S. 561 (1984); Brown v. Neeb. 664 F.2d 551, 560 (6th Cir. 1981); 
In re Stone. 588 F.2d 1310 (10th Cir. 1978); Mavberrv v. Maronev. 
529 F.2d 332 (3d Cir. 1976).

The district court's failure to require the filing of appro­
priate motion papers or other pleadings, and its private consul­
tations and equally private decision-making in the case, have 
sharply constricted the record that could be assembled in this 
case, making the task of this Court on appeal substantially and 
unnecessarily difficult.75

75This can readily be seen in connection with the present 
appeal. The August, 1986 hearing before Judge Duhe on plaintiffs' 
Motion for Temporary Restraining Order took place because the 
school superintendent had written the court directly about the pro­
posed student assignment changes for the 1986-87 school year (on

45



Finally, this method of conducting litigation is at odds with 
fundamental notions of fairness and due process. It is also a rank 
abuse of the district court's discretion to control its own docket 
and the scheduling of proceedings before it, which necessitates 
corrective action through exercise of this Court's supervisory 
jurisdiction.

June 10, 1986, R. 11-23) and had received in return an ex parte 
letter from Judge Shaw purporting to approve it (R. 10). Rather 
than having the opportunity to respond, in what can only be termed 
the expected normal course of proceedings, to school board moving 
papers and to obtain an evidentiary hearing to resolve contested 
matters, plaintiffs' counsel was never made aware either of the 
school system's plans or of the court's reaction to them. When 
counsel, like other members of the general public, did hear abut 
it, he was forced to take the initiative by seeking prohibitory 
relief. By this time, the opening of tho school year was imminent 
and little time remained for factual investigation or discovery 
prior to the scheduled hearing, 8 days after the motion was filed.

It was made quite clear at the August 12 hearing that the 
school board had not yet approved final attendance boundaries under 
the high school consolidation plan (see 3 R. 8, 49-50). On Novem­
ber 20, 1986, zones were finalized; however, it still did not re­
sult in the filing and service upon plaintiffs' counsel of any 
notice, or motion on behalf of the school board. Instead, having 
"read in the newspaper" (R. 116) of the board's action, the Dis­
trict Judge on December 9, 1986 sua soonte scheduled a hearing on 
the adequacy of the new zones for 20 days later, amid the 
Christmas-New Year's holiday period. At this time, plaintiffs' 
counsel had never received any communication from the school board 
or its counsel and had no descriptive information about the zone 
lines —  nor was he aware that the District Judge had requested 
that information ex parte on December 2, 1986. (The Superintendent 
furnished the requested documentation in a December 4 letter which 
was not sent to plaintiffs' counsel.) Counsel had to pick the 
information up from the district court's chambers.

Because of this procedural history, as well as the District 
Judge's denial of motions for continuances, see infra. plaintiffs' 
counsel was unable to fully prepare for the hearing, either through 
appropriate discovery or by utilizing the services of expert wit­
nesses. As a result, the record herein is silent on some impor­
tant questions. This situation, which seriously impedes effective 
appellate review, is likely to continue absent strong direction to the District Judge from this Court.

46



B. The Denial of Plaintiffs7 Requested Continuances
After the December 29, 1986 hearing date was set, plaintiffs' 

local counsel and associated New York attorneys filed separate 
motions requesting a postponement of the hearing to permit dis­
covery, retention of expert witnesses, and adequate preparation 
for the hearing. These requests were rejected out of hand by the 
district court —  rulings that also were a clear abuse of the lower 
court's discretion that should be overturned by this tribunal. 
See Wells v. Rushing 755 F.2d 376 (5th Cir. 1985) ; Rhodes v, Amar­
illo Hospital Distri<t. 654 F.2d 1148, 1153 (5th Cir. 1981).76

In this case, a continuance was requested so that plaintiffs 
could obtain an expert witness in the area of education and school

76In general, a motion for a continuance should not be denied 
unless it represents bad faith, deliberate misconduct, or a tac­
tical effort to delay. See Grochal v. Aeration Processes. Inc.. 759 F.2d 185, 187-88 (D.C. Cir. 1985).

Where a continuance has been requested in order to locate a 
witness, a denial is an abuse of discretion if the witness's depo­
sition and the testimony of other witnesses are inadequate substi­
tutes for the witness's personal testimony. Wells v. Rushing.

Where a continuance has been requested in order to make dis­
covery, a denial is an abuse of discretion where the case is com­
plicated, there exists a significant difference in the parties' 
relative access to the information sought, and the party is thereby 
prejudiced. Littlejohn v. Shell Oil Co.. 483 F.2d 1140 (5th 
Cir.)(en banc), cert, denied. 414 U.S. 1116 (1973). It is obvious 
that much information, solely in the possession of the board, could 
be crucial to the plaintiffs' case: grade-by-grade breakdowns of 
school attendance and racial composition for the years prior to 
1986-87; the data necessary to complete the projections for the 
Austin-Pitre plan; criteria for allocating funds and for determin­
ing the number of electives to be offered at each school; lists 
of alternatives sites and the board's reasons for rejecting them; 
racial breakdowns of school personnel. It should be noted that 
even Austin, a member of the school board, was unable to obtain 
the data needed to complete the projections for his plan.

47



desegregation, and so that they could conduct discovery to obtain 
accurate information about the current operation and racial com­
position of the schools of St. Landry Parish. The allotted time 
was clearly inadequate for these purposes, yet they are indispen­
sable to any meaningful examination of a school assignment plan 
and its segregatory effects. By denying the continuance, Judge 
Shaw made it impossible to subject the consolidation plan to the 
clcse scrutiny mandated by Swann and this Court's rulings, and 
thereby severely prejudiced the plaintiffs.

The only reason given by Judge Shaw for denying the continu­
ance was that "the consolidation plan must go on" (2 R. 154). He 
explained, "I don't have time nor do any of us have time to wait 
any longer before we move on this consolidation plan." fid, at 
156) . But Judge Shaw did not explain his urgency in finalizing 
the consolidation plan. Even if the consolidation was delayed for 
one year, let alone ninety days (as contemplated by the motions 
for continuance), the injury to the students of St. Landry Parish 
would be insignificant compared to the injury caused year after 
year by the implementation of a plan that would resuscitate segre­
gation. Development of a more efficient and desegregative plan 
would save money in both the short and the long run. By emphasi­
zing speed of review over depth of review, Judge Shaw abdicated 
his duty under Swann to scrutinize carefully the construction and 
student reassignment plans of the school authorities.

48



Further School Construction By The St. Landry Parish 
School Board Should Be Enjoined Pending Formulation Of
A High School Consolidation Plan Designed To Accomplish 

Desegregation And An Appropriate Hearing Thereon,
_______ Preceded By Adequate Notice to Plaintiffs_______
Where school authorities have not attempted to locate new 

schools in a manner which would assist in the elimination of the 
vestiges of the dual school system, new construction must be de­
layed until that is done. Tasbv v. Estes. 517 F.2d 92, 105 (5th
Cir.), cert, denied. 423 U.S. 939 (1975); Lee v. Autauaa County
Board of Education; United States v. Board of Public Instruction 
of Polk County.

In Lee v. Autauaa County, the district court held that school 
authorities had sufficiently considered desegregation in deciding 
upon the location of a new school. This Court reversed because 
the school district had focused upon a single attendance area, 
and indicated that construction should not go forward until the 
school authorities reconsidered the site decision in light of its 
impact upon the entire system. 514 F.2d at 648.

For similar reasons, further school construction and consoli­
dation by the St. Landry Parish School Board should be enjoined 
until it has realistically examined the effects of its plan on 
desegregation and has adequately explored alternatives, and until 
plaintiffs have been given a fair and adequate opportunity to exam­
ine and present opposition to the school board's plan and analysis. 
While the school board will claim that halting construction and 
starting over with a new plan will present too great a financial

III.

49



burden to be feasible, this argument must be rejected. Otherwise, 
school authorities in other non-unitary districts will be encour­
aged to circumvent their constitutional obligations.

Conclusion
For the foregoing reasons, the judgment below should be re­

versed and the case remanded to the district court, with instruc­
tions: to enjoin further school construction pendente lite, to re­
quire that a demographic study be conducted and a pujil locator 
map prepared, to require the school board to prepare a high school 
consolidation plan with the goal of furthering desegiegation of 
the Parish's school system, to conduct proceedings only upon ade­
quate notice to the parties and following the submission of ap­
propriate motion papers or other pleadings, to cease its practice 
of conducting ex parte proceedings or entertaining ex parte com­
munications from the school superintendent, and to grant the relief 
sought in plaintiffs' Motion to Alter or Amend its judgment.

Attorneys for Appellants*

♦Counsel for Appellants gratefully acknowledge the invaluable as­
sistance in the preparation of this brief of Harlan M. Mandel, a 
student at Columbia University School of Law.

Respectfully submitted

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

THEODORE M. SHAW
NORMAN J. CHACHKIN 

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

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Certificate of Service

I hereby certify that on this 13th day of July, 1987, I served 
two copies of the foregoing 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 fol­
lows:

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 Building500 Fannin Street
Shreveport, Louisiana 71101