Davis v. East Baton Rouge Parish School Board Brief for the United States

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

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

DR. D'ORSAY BRYANT, et al.,Plaintiffs-Intervenors-Appellees 
and Cross-Appellants

and
UNITED STATES OF AMERICA,

Plaintiff-Intervenor-Appellee
v.

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

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

BRIEF FOR THE UNITED STATES

STANFORD O. BARDWELL, JR. 
United States Attorney

WM. BRADFORD REYNOLDS
Assistant Attorney General

J. HARVIE WILKINSON, III
Deputy Assistant Attorney General

BRIAN K. LANDSBERG 
MILDRED M. MATESICH 

Attorneys
Department of Justice 
Washington, D.C. 20530



STATEMENT REGARDING ORAL ARGUMENT
The United States believes that the issues presented in 

these appeals are adequately addressed in the briefs. We do not, 
however, oppose oral argument.

X



TABLE OF CONTENTS

Page
QUESTIONS PRESENTED --------------------------------------  ±

STATEMENT-------------------------------------------------  2
1. Procedural history ------------------------------ 2
2. The school board's desegregation plan ---------  7
3. The district court's remedial plan ------------  9

INTRODUCTION AND SUMMARY OF ARGUMENT --------------------  H
ARGUMENT:

I. THE DISTRICT COURT DID NOT ABUSE ITS
DISCRETION IN REJECTING THE SCHOOL BOARD'S 
DESEGREGATION PLAN THAT DID NOT PROMISE 
TO DISMANTLE THE DUAL EDUCATIONAL SYSTEM -------  13

II. THE DISTRICT COURT'S PLAN SHOULD CONTINUE 
IN EFFECT UNTIL IT CAN BE MODIFIED OR 
REPLACED WITH A DESEGREGATION PLAN WITH A 
REALISTIC PROSPECT OF COMMUNITY SUPPORT AND SUCCESS-------------------------------------  17

CONCLUSION 20



TABLE OF AUTHORITIES
Cases: page

Alexander v. Holmes County Board of Education,
396 U.S. 19 (1969)------------------------- ---- 19

Brown v. Board of Education, 349 U.S. 294(1955)----------- ______-----------------------  l2fl8
Clark v. Board of Education of Little Rock

School District, No. 8 2-18 34 (8th Ci'rY Mar. 31,
1983) --------------------------------------------  16,20

Davis v. East Baton Rouge Parish School Board,
498 F. Supp. 580 (M.D. La. 1980) --------------- 2

Davis v. East Baton Rouge Parish School Board,
514 F. Supp. 869 (M.D. La. 1981) --------------- 3,7,8,9,

10,14Davis v. Board of School Comm'rs of Mobile
County, 402 U.S. 33 (1971 ) ---------------------  13

Green v. County School Board, 391 U.S. 430 (1968) 13,15,18
Milliken v. Bradley, 433 U.S. 267 (1977)--------  18
Singleton v. Jackson Municipal Separate School 

District, 419 F.2d 1211 (5th Cir.) (en banc), 
ce’rti cfenied, 396 U.S. 1032 (1970)----rrrr---- 10

Swann v. Charlotte-Mecklenburg Board of Education,402 u . s Y T  (1971) — irrrrrrrrrrrrrrrrrrrrrrrrrr 13,18,20
United States v. Board of Education of Chicago,

554 F. Supp. 912 (N . D. Ill. 19 8 3 )------------- 16,17



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 81-3476
CLIFFORD EUGENE DAVIS, JR., et al.,

Plaintiffs-Appellees
and

DR. D'ORSAY BRYANT, et al.,
Plaintiffs-Intervenors-Appellee 
and Cross-Appellants

and
UNITED STATES OF AMERICA,

Plaintiff-Intervenor-Appellee
v .

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

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

BRIEF FOR THE UNITED STATES 

QUESTIONS PRESENTED
1. Whether the district court abused its discretion in 

rejecting the school board's desegregation plan.
2. Whether the district court abused its discretion in 

fashioning its own desegregation plan for the school system.



2
STATEMENT

1. Procedural history
The procedural history of this school desegregation suit, 

begun in 1956, is described in detail in the brief for the United 
States as appellee in the companion case, No. 80-3922, now pending 
before this Court. See Brief for the United States at 2-6. Accord 
ingly, we include here only the procedural history that is relevant 
to the issue presented by this appeal: the propriety of the relief
ordered by the district court in this case.

On September 11, 1980, the district court granted partial 
summary judgment on the issue of the school board's liability for 
failing to dismantle its dual school system. Davis v. East Baton 
Rouge Parish School Board, 498 F. Supp. 580 (M.D. La. 1980). The 
court ordered the school board to submit a desegregation plan (R.y1329-1344). It later extended the deadline for filing the board's
plan (R. 1368), and on October 8, 1980, the court ordered the board
to submit progress reports every ten days until the plan was
completed (R. 1369). On January 9, 1981, the school board filed it

2/ ^proposed desegregation plan; the United States had submitted 
a plan in May, 1980 (R. 1088-1181). The court conducted hearings 
on the proposed remedies on March 4-6, 9-10, 1981 (R. 1522-1526).

l7’̂ T^-~d¥¥xg!iaT:ion "R." followed by a page number refers to the 
consecutively paginated sixteen-volume record.
2/ The school board's plan is discussed in detail infra, at 7-9.



3
On March 4, 1981, prior to commencement of the remedy hearings,

the district court urged the parties to negotiate a desegregation 
plan themselves (Tr. XI, 8B-13), and it ordered them to meet from
March 11, 1981, at least through March 20, 1981 (Tr. XI, 13-14). On
April 15, 1981, the parties advised the court that they could not
agree on a desegregation plan, and on April 16, 1981, the court
terminated the settlement discussions. The court ordered a desegre-

4/gation plan of its own design on May 1, 1981 (R. 1555-1607). The
school board and the private plaintiff intervenors appeal that 

5/
order.

The district court ordered the school board to implement the 
court's desegregation plan for elementary schools in August, 1981, 
and to implement the court's plan for secondary schools the following 
year. Davis v . East Baton Rouge Parish School Board, 514 F. Supp.
869, 874 (M.D. La. 1981). The district court (R. 2010-2011), and 
this Court denied the school board's applications to stay implemen­
tation of the plan, and this Court consolidated the school board's 
appeal from the liability finding with the appeals by the board 
and the private plaintiff intervenors from the district court's 
remedial order.

3? THe~3esignatTon "Tr." followed by a Roman numeral and page 
number refers to the five-volume transcript of the remedy trial, 
conducted March 4-6, 9-10, 1981, and one volume of post-trial 
proceedings conducted July 30-31, 1981.
4/ The district court's remedy order is reported at 514 F. Supp.
869 and is discussed in detail infra, at 9-10.
5/ The United States has not appealed the district court's decision 
not to order implementation of the plan proposed by the government.



4
Approximately one year after implementation of the elemen­

tary school plan, the United States, on August 6 , 1982, filed in 
this Court a motion to stay further proceedings in this appeal 
to afford the district court an opportunity to reevaluate and 
modify its plan in light of actual experience. On August 30,
1982, this Court granted that motion, and on September 15, 1982, 
this Court entered an order deferring for sixty days action on a 
motion to reconsider its August 30 order, by which time the 
parties were to advise this Court "concerning the steps actually 
taken toward seeking modification of the District Court's desegre­
gation orders and such further facts and circumstances on why

6/the appeal should be or should not be further delayed."
In August, 1982, the United States retained a school desegrega­

tion expert, Professor Christine Rossell of Boston University, to 
undertake a study of the East Baton Rouge Parish school system and 
the operation of the court-ordered desegregation plan. Of particular
concern was the board's assertion that the court's plan had caused

7/
a large number of students to leave the system. Professor Rossell

6/” The school "board sought a stay of the district court's secon- 
Hary school plan on August 11, 1982 and we opposed the stay. The 
board's motion was denied on August 16, and its request to this 
Court for a stay (also opposed by the United States) was denied 
on August 30, 1982.
7/ In its brief filed in this Court in this appeal, the board 
asserted that implementation of the district court's plan for 
elementary schools had caused some 4,000 students to leave the 
system (Brief for Appellant at 11, 33, 36). Professor Rossell's 
study concluded that 4,244 students at all grade levels had left 
the system since the year before the court's plan went into 
effect.



5
compiled substantial data on enrollment, individual school charac­
teristics, and student transportation in East Baton Rouge Parish, 
with the goal of identifying the extent of enrollment loss due to 
desegregation and the factors that contribute to or detract from 
interracial contact on a school-by-school basis. Based on her 
analysis, Professor Rossell prepared and the United States pre­
sented to the school board, the parties and the district court on 
December 10, 1982, the framework of an alternative plan for East 
Baton Rouge Parish designed to desegregate the public schools in a 
more effective manner. Rather than relying on mandatory assignment 
techniques, the Rossell Plan employed educational incentives to 
attract departing students back to the system and achieve a level 
of desegregation comparable to that sought by the district court. 
Under the Rossell Plan desegregation was to be accomplished by
court-ordered school closings, by encouraging the use of majority

8/
transfers and by magnet schools.

8/~ The RosseTT plan, as submitted in final form to the district 
court in February, 1983, was attached to our motion filed February 28, 
1983, to lift this Court's stay. Although copies of the Rossell 
Plan were filed with the district court and this Court, it was not 
formally proposed to the court and it has not been the subject of 
hearings because the board declined to endorse it.

The location of each magnet in the Rossell Plan was based on 
an evaluation of its desegregative impact and the plan proposed 
various measures to minimize racial identifiability of the magnet 
schools and to stimulate "non-resident" race enrollment. Admission 
of students to the magnets would be in the ratio of 55% white and 
45% black plus or minus some percentage points.



6
On January 7, 1983, under the auspices of the district court, 

representatives of the Department of Justice met with members of the 
school board to explain the plan, to discuss a phased transition 
from the court plan to the Rossell Plan, and to receive the board 
members' general reaction to the proposal. Department representa­
tives and Professor Rossell subsequently met with members of the 
school board staff on January 10-11, 1983, for a more detailed 
discussion and to explore implementation techniques and obtain 
specific information about the school system's operation since the 
effective date of the court's order.

Because it was apparent that orderly implementation of the 
Rossell Plan would require a "phasing" schedule, calling for a 
staged withdrawal from the existing plan, the Justice Department 
and Professor Rossell prepared a comprehensive implementation 
procedure lodged with the district court and presented to the board 
for its consideration.

On February 7, 1983, Justice Department representatives met 
with the school board in a specially-called public meeting to make 
a formal presentation of the Rossell Plan and to answer questions 
about its implementation. Following that session, and a separate 
meeting with NAACP representatives, the school board on February 10, 
1983, voted not to endorse the United States' proposal at the 
present time. Because of our belief that the success of the Rossell 
Plan depends on the full and complete support of the school board, 
we informed the district court on February 17, 1983, that until



7
such time as an agreement can be reached and brought to that court 
jointly with the board, it is premature for us to press for alter­
native remedial action by the district court. For that reason, 
we asked this Court to lift the stay entered in this appeal 
at our request on August 30, 1982, and adjudicate on the merits

9/the issues presented. In response to our motion, this Court
lifted the stay on March 18, 1983.
2. The school board's desegregation plan

On January 9, 1981, the East Baton Rouge Parish School Board
submitted to the district court its proposal to dismantle the dual
system —  a plan described by the district court as "basically a
neighborhood school-voluntary magnet plan." Davis v. East Baton
Rouge Parish School Board, supra, 514 F. Supp. at 871.

The board's plan would have established three "magnet zones"
running east-west across the parish. Id_. at 872. In each zone
certain high schools, middle schools, and elementary schools were

10/
designated as magnet or special focus schools. Id^ at 872. How­
ever, most magnet programs were to be separate from the existing

9/ On November 15, 1982, we filed a memorandum with this Court 
Tn response to its order of September 15, in which we described our 
efforts to prepare an alternative plan for the district court's 
consideration, and requested this Court to continue its stay for 
an additional sixty days to enable us to complete that process.
This Court has not acted on that request as of this date.
10/ East Baton Rouge already had one magnet high school and two 
magnet middle schools in operation in 1980. IcK at 873. After 
several years of operation, the magnet high school had only a 16% 
black enrollment; black enrollment was somewhat higher at the middle 
schools, Istrouma and Glasgow. Ibid.



8
school programs, many of which would continue one-race. The
district court found that the magnet "school within a school"
itself provided insufficient assurances that it would actually

12/
desegregate. Ibid.

The board believed that the magnet programs would be so 
attractive to parents that they would voluntarily enroll their 
children thereby desegregating the system without mandatory student 
reassignments. Ibid. The school board projected that it would 
require three years before the magnet schools would have enrollments 
of 25% of the other race, and the board conceded that until the 
schools were actually set up and operating it would be unable to 
determine which magnets would be successful at attracting students

13/and which would not. Ibid.

11/

n y  Of the 21 magnets proposed by the board, 20 were "add on" pro­
grams at one-race schools where there would be little or no inter­
action between the magnet students and the regular school students, 
and magnets would occupy only the excess capacity in any school (Tr. 
XIV, 9-212 to 9-214). The disadvantages of that approach are 
discussed in_f_ra, at note 20.
1_2/ The board refused to consider using school closings in its plan. 
Icy at 871. In contrast, the court's plan used school closings to 
further desegregation.
1_3/ In determining that magnet schools would succeed in desegregating 
the system, the school board relied on the results of a parent 
survey in which parents were asked to identify what special programs 
would interest them. The survey gave no specific information as 
to the principal, faculty, or location of the program, however, 
notwithstanding that nearly two-thirds of the parents who responded 
to the survey stated that the most important factor in their decision 
to enroll their child in a magnet program would be the location of 
the program, or the principal, or the faculty (Tr. XIV, 9-229 to 
9-234). Moreover, there was nothing in the board's plan reflecting 
an effort to place particular magnet programs at particular schools 
with a view toward attracting students of the non-resident race —  
obviously a key factor in using magnets effectively as tools for 
desegregation.



9
The district court found that the net effect of the plan was

to leave nearly half the elementary students in one-race schools
"with no serious indication that the ratio will improve in the

14/future." Id. at 873. For this reason, the court rejected the 
the school board's proposal. Ibid.
3. The district court's remedial plan

Like the school board's plan, the district court's desegrega­
tion plan divided the system into three east-west zones. Davis v.
East Baton Rouge Parish School Board, supra, 514 F. Supp. at 875-876.
The court's plan used mandatory student reassignment, clustering 
or pairings and school closings to achieve desegregation. Id. at 
874. Substantial numbers of students in noncontiguous pairings 
were assigned to schools away from their neighborhood. In addition, 
the court ordered the board to continue the majority to minority 
transfer policy and to utilize magnets "to the fullest extent 
practicable, considering its resources in both funding and personnel."
Id. at 873. Another feature of the court's plan called for termina­
tion of the use of temporary buildings "which the Board has utilized 
to perpetuate all-white schools" (id. at 875), and the closing of 
selected schools where the court concluded that continued operation

147 Becau_se__tHe board's proposal for secondary schools was based on the 
use of feeder schools from the elementary level, the board's plan left 
substantial segregation at the secondary level (Tr. XII, 5-161 to 5-163). 
In this brief, however, our discussion is confined primarily to the 
elementary school plan. See infra, note 21.



10
was educationally and economically unsound. Id. at 876. The court
projected that under its plan 82.5% of the elementary students
would be in desegregated schools, and the remaining 17.5% would
move into desegregated schools at the secondary level. Id. at 883.

Capitol High School, racially isolated in the inner city,
remained 100% black and Woodlawn High School, 87% white under the
court's plan. Id. at 883. The court proposed to make these two
schools "sister school[s]" with joint meetings of faculty and
students and periodic rotation of faculty and administrative staff.
Jtd_. at 881. The court also approved installation of a magnet at 

15/
Capitol. Ibid.

The court ordered implementation of its plan for elementary 
schools in the 1981-1982 school year (id. at 880), and implementa­
tion of the plan for secondary schools the following year. jrbid.
The court also ordered the school board to prepare and submit a 
faculty staff employment and assignment policy consistent with 
this Court's decision in Singleton v. Jackson Municipal Separate 
School District, 419 F.2d 1211 (5th Cir.) (en banc), cert, denied,
396 U.S. 1032 (1970).

157 FTTteen percent of the total high school enrollment would attend 
Capitol and Woodlawn under the district court's plan. Id. at 883.
The court concluded there was no practical and effective means of 
completely desegregating Capitol because of its location. Id. at 881.



11
INTRODUCTION AND SUMMARY OF ARGUMENT 

Once a constitutional violation is found, it is in the 
first instance the responsibility of local school officials to 
remedy that violation. The district court here recognized that fact, 
and encouraged the board to devise an acceptable desegregation plan. 
The board's preference for voluntary student transfers triggered by 
educational incentives was well founded. But the record demon­
strates that the particular proposal it submitted did not promise 
to dismantle the dual system, and lacked the essential underpinnings 
of success. Faced with that fact, the district court had no recourse 
but to devise its own plan.

Where local officials default in their obligation to develop
a plan for dismantling a dual school system, the court must formulate
its own remedy. All too often what results in such circumstances
is the imposition of a plan, like the one here, that relies to an
unfortunate degree on mandatory transportation, with adverse and

16/
counterproductive consequences for the school system. However,
the place to repair that damage is not in this Court, but in the
district court. It was with that understanding that the United
States sought and was granted by this Court the opportunity to

17/prepare and present an alternative to the court's plan.

167 THe’-schooT board has advised this Court that more than 4,000 
students have left the public school system of East Baton Rouge 
Parish in the first year of implementation of the court's plan, 
with every indication that enrollment losses will continue, perhaps 
at accelerated rates, throughout the current school year. Brief for 
Appellant at 11, 33, 36.
17/ See discussion supra, at 4-7.



12
The appellate courts are in no position to fashion desegre­

gation plans ab initio . That responsibility falls to the local 
district courts when school boards fail to provide a viable remedial 
option. Moreover, the court-ordered relief is entitled on review 
to considerable deference based on the district court's greater 
familiarity with the record and with local conditions. Brown v.
Board of Education, 349 U.S. 294, 299-300 (1955).

Under controlling case law, the sole issue before the Court 
in the instant case is whether the remedial decision of the court 
below was an abuse of discretion. Despite grave reservations 
about the mandatory student assignment aspects of the district 
court's plan and the plan's continued draining effect on white 
enrollment in the East Baton Rouge public schools, we cannot say 
that there is a record basis for finding such an abuse in this 
instance. The current court-ordered plan is an interim measure 
that the district court has clearly indicated is not set in concrete. 
It thus can be subject to substantial modification, or even whole­
sale replacement, in the event that a constitutionally acceptable 
alternative is forthcoming from local school authorities. Until 
that occurs, however, the district court's plan is entitled to
remain in effect.



13
ARGUMENT

I
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 
IN REJECTING THE SCHOOL BOARD'S DESEGREGATION 
PLAN THAT DID NOT PROMISE TO DISMANTLE THE DUAL 
EDUCATIONAL SYSTEM

The school board urges this Court to reverse the district 
court's remedial order of May 1, 1981, on the ground that the court 
should have accepted the school board's desegregation plan instead 
of formulating a plan of its own. That argument cannot prevail 
in the circumstances of this case.

The task confronting the district court was to select a 
remedy "that promises realistically to work * * * now." Green 
v. County School Board, 391 U.S. 430, 439 (1968) (emphasis in 
original). Such a plan must reconcile "the competing interests 
involved," Swann v. Board of Education, 402 U.S. 1, 26 (1971), and 
must take "into account the practicalities of the situation."
Dav_i_s v . Board of School Comm' rs, 402 U.S. 33, 37 (1971). Where, 
as here, the board does not claim that the court applied an incor­
rect legal standard in formulating a remedy, the standard of review 
on appeal is whether the district court abused its discretion in 
rejecting the board's plan.

The main component of the school board's desegregation 
proposal was the use of special focus or magnet programs to attract 
students of the other race voluntarily to attend otherwise one-race 
schools. That concept is a sound one. Indeed, the court stated 
that it was "impressed with the magnet or special focus school as



14
a concept for improving the quality of education." Dayis v. East 
Baton Rouge Parish School Board, supra, 514 F. Supp. 869, 875 
(M.D. La. 1981). It also recognized that the three magnet schools 
already operating in the system were "clearly successful educational­
ly." W_._ at 873. Far from rejecting the magnet concept, the court 
urged the board to develop magnets "to the fullest extent practicable, 
considering its resources in both funding and personnel." Ibid.

But to label a plan a magnet school plan is alone not enough. 
Like any desegregation proposal, a magnet plan must be accompanied 
by sufficient supporting details to demonstrate its likelihood of 
success. Here such details were lacking. The court concluded 
that the nature of the outstanding constitutional violation required 
a remedy providing more promise of dismantling the dual system 
than the board's sketchy and amorphous proposal provided. 514 F.
Supp. at 871. The bases for that conclusion were factual findings 
that cannot be shown to be clearly erroneous.

The board proposed to use magnet schools exclusively to
18/dismantle East Baton Rouge's dual system. The board paired some 

adjacent schools, but it declined to close schools or to eliminate 
the use of temporary classrooms, against the recommendation of its

IF/ No’lJorTsTHe’ration was given to including with the proposed 
magnet programs the additional desegregative techniques of an 
expanded program of majority to minority transfers and a judicious 
selection of school closings.



15
own superintendent who proposed closing several schools to further 
desegregation (Tr. XIV, 9-215 to 9-217; Tr. XV, 10-49). The record 
establishes that the board had taken no steps to ensure that the plan 
would be a desegregation tool that "promises realistically to work

19/* * * now." Green v. County School Board, supra.
The board proposed to place the magnet programs primarily

in unused classroom space separated from students enrolled in
the schools' regular programs which would continue to serve one

20/
race. Facts essential to the district court's assessment of the 
potential success of the program were totally lacking in the 
board's proposal. For example, the board did not explain how it 
would fund the program, although it conceded that the program 
would entail substantial additional costs for recruitment, trans­
portation, staff, and equipment (Tr. XII, 5-166 to 5-167, Tr.
XIV, 9-146). There was no plan for implementing the board's

19/ The board's plan made no effort to utilize a variety of 
measures that could facilitate the magnet's usefulness as a 
desegregation device, including designation of programs designed 
to reduce a school's racial identifiability and to attract students 
of the nonresident race, and specific racial percentage goals for 
admitting students to the programs.
20/ There are two obvious reasons why this use of magnets as 
1radd-on" programs undermines their desegregative potential. First, 
because the school remains basically racially identifiable, it is 
even more difficult to recruit the nonresident race to the school 
than usual. Second, because there is a segregated enclave, inter­
group hostility is always a problem. Thus, it is generally recog­
nized that magnets are most effective when they completely replace 
the program that previously existed in the schools designated as 
magnets.



16
proposal. The superintendent could not state whether the system 
had a sufficient number of qualified principals and teachers to 
staff the proposed magnets, and there was no training program to 
prepare them to work in magnet schools (Tr. XIV, 9-79, 9-171 to 
9-172). Because the board had not established admissions policies 
for the magnet schools, it could not estimate the size of the 
available pool of students for any of the special programs (Tr. 
XIV, 9-115 to 9-116, 9-171). And the board had not developed 
a recruitment plan, (Tr. XIV, 9-143), although all the witnesses 
agreed that aggressive recruitment was indispensable to a success­
ful magnet program.

Given the deficiencies in the school board's proposal, the 
court below did not abuse its discretion in rejecting it. This 
conclusion in no way detracts from what other courts are now 
acknowledging about the remedial approach in this area for large 
urban school systems: the use of educational incentives instead
of busing to produce stably desegregated schools is a permissible 
and desirable option for school authorities. See Clark v. Board 
of Education of Little Rock School District, No. 82-1834 (8th Cir. 
Mar. 31, 1983); United States v. Board of Education of Chicago,
554 F. Supp. 912, 924-925 (N.D. 111. 1983). Particularly where a 
mandatory busing program would accelerate declining white enroll­
ment, thereby leading to resegregation, school authorities and



17
courts have reason to look to alternative desegregation tools.
As the court pointed out in Chicago, supra, 554 F. Supp. at 925:

Once within the range of constitutionally permissible 
desegregation plans, * * * the Board was free to 
choose one calculated to minimize parent resistance 
and thereby serve its larger goal.
Here, however, the board's proposal, as submitted, was not 

within the range of "constitutionally permissible desegregation 
plans." It thus received proper treatment below.

II
THE DISTRICT COURT'S PLAN SHOULD CONTINUE 
IN EFFECT UNTIL IT CAN BE MODIFIED OR 
REPLACED WITH A DESEGREGATION PLAN WITH 
A REALISTIC PROSPECT OF COMMUNITY SUPPORT 
AND SUCCESS

In 1979, the Attorney General certified that this case was 
of general public importance, and the United States intervened in 
order to help bring an end to the long history of de jure segregation 
of the East Baton Rouge schools. In 1980, the district court found
--  correctly, in our view --- that de jure segregation continued
in the school system. Accordingly, the court established a procedure 
for developing a remedy. That procedure properly relied in the 
first instance on efforts of the parties to devise an acceptable 
desegregation plan. Unfortunately, the plan developed by the 
school board was inadequate, and the plan developed by Dr. Foster, 
the expert retained by the United States, relied too heavily on 
busing. In light of the inadequacies of those plans, the lack of 
any other proposal from private plaintiffs and the failure of 
negotiations, the district court had little choice but to devise 
its own plan.



18
The district court's task was to devise a desegregation plan 

that would be effective, both in ensuring a truly nondiscriminatory 
education and in preserving quality public education. Milliken v. 
Bradley, 433 U.S. 267, 280-281 (1977); Swann, supra, 402 U .S . at 
25; Green v. County School Board, supra, 391 U.S. at 439. To this 
end the court's objective must be the establishment of a unitary 
non-racial system, not the attainment of an artificial racial 
balance. Swann, supra, 402 U.S. at 24. Appellate court review of 
the district court's plan is limited, under the Supreme Court's 
decisions in Brown__I_l and Swann, where the district court has 
adhered to these principles. Given their lack of familiarity with 
local conditions, appellate courts by their nature are less well- 
equipped than district courts to devise school desegregation plans.

Even where the district court has utilized undesirable and 
counterproductive techniques, such as mandatory busing, the Supreme 
Court has held that "the remedial techniques used in the District 
Court's order were within that court's power to provide equitable 
relief." Swann , supra, 402 U.S. at 30. Had the school board pre­
sented a viable alternative as its own plan —  one that promised 
to establish a unitary school system free of discrimination —  

the district court would in all likelihood have been obliged to 
have adopted it. As already pointed out, however, the board's 
magnet plan fell far short of the constitutional standard and 
thus, the district court's plan, even with all its flaws, must
stand.



19
Nor do the post hoc attacks on the district court's plan by 

both the school board and the private plaintiffs alter the outcome.
The board's challenge rests largely on the alleged massive enroll­
ment losses suffered by the parish system due to the court order 
(Brief for Appellant at 11, 33, 36); the private plaintiff inter- 
venors argue that the court plan has unfairly burdened black 
students without accomplishing its remedial goal (Brief for Appel- 
lees-Cross-Appellants at 19-29). Both of these claims appear to have 
some merit, but they are arguments properly addressed to the district 
court in the first instance, not here on appeal. If such infirmities 
do indeed exist -- and we suspect they might -- review must take 
place in the context of proposed alternatives for seeking meaningful 
desegregation, and that can only be accomplished below. This Court 
can ill afford to disapprove a desegregation plan on the basis of 
post hoc attacks if there is no substitute to put into effect.
The resulting vacuum would invariably lead to further delay in the 
vindication of constitutional rights, a situation that is not 
looked upon with favor. Alexander v. Holmes County Bd. of Educ.,
396 U.S. 19 (1969). Accordingly, we see no basis in law or fact

21/for reversal of the district court's remedial order of May 1, 1981.

2T/ Pres¥hTfly"~pending before this Court in Nos. 82-3298 and 82- 
3412 are the school board's appeals from the district court's 
remedial orders of March 8, 1982, April 30, 1982, May 7, 1982, May 21, 
1982, June 2, 1982, June 7, 1982, and June 24, 1982. On November 23, 
1982, this Court granted the board's motion to stay further proceed­
ings in those appeals until the stay in this appeal and No. 80-3922 
is lifted.



20
This does not, in our judgment, mean that the current desegre­

gation plan for the East Baton Rouge schools should be considered 
by this or any other court as final. In Swann, supra, the Supreme 
Court stated that if school authorities fail in their affirmative 
obligation to dismantle a dual school system, judicial authority 
may be invoked. 402 U.S. at 15. The converse of that proposition 
is also true: the authority of a court to impose its own desegrega­
tion remedy exists only in the absence of a constitutionally accep­
table plan from school authorities.

Court-ordered plans are not engraved in stone; they are 
interim measures that rarely, if ever, survive the vicissitudes 
of implementation without need for change. As school officials 
observe deficiencies and come forward in response with an alternative 
desegregation plan that is within the range of constitutional 
permissibility, courts should readily defer to the educators in 
this area where the judiciary has such limited expertise. See 
Clark v. Board of Education of the Little Rock School District, 
supra. Until that time, however, the court's plan must continue in 
effect.

CONCLUSION
For the foregoing reasons, the judgment of the district 

court entered May 1, 1981, should be affirmed.
Respectfully submitted,

STANFORD 0. BARDWELL, JR. WM. BRADFORD REYNOLDS
United States Attorney Assistant Attorney General

J. HARVIE WILKINSON, III
Deputy Assistant Attorney General

'hsUAui  %  ■/huXZ*Ml jBRIAN K. LANDSBERG
MILDRED M. MATESICH 

Attorneys
Department of Justice 
Washington, D.C. 20530



CERTIFICATE OF SERVICE
I hereby certify that I have served this brief by mailing

two copies to all counsel, postage prepaid, addressed as follows
John F. Ward, Jr., Esquire 
P.0. Box 65236
Baton Rouge, Louisiana 70896
Robert C. Williams, Esquire 
1822 North Acadian Thruway West 
Baton Rouge, Louisiana 70802
Theodore M. Shaw, Esquire 
Napoleon Williams, Esquire 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorney

This 18th day of April, 1983.