Reno v. Bossier Parish School Board Brief of Appellants

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October 5, 1998

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  • Brief Collection, LDF Court Filings. Reno v. Bossier Parish School Board Brief of Appellants, 1998. cd533607-c29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/9419dcae-2dbd-475c-ac5e-b87c349ea847/reno-v-bossier-parish-school-board-brief-of-appellants. Accessed June 13, 2025.

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    Nos. 98-405 & 98-406

In The

Supreme Court of the United
States

October Term, 1998

Janet Reno, Attorney General of 
The United States,

Appellant, and
George Price, etal.,

Appellants,

v.

Bossier Parish School Board,
Appellee.

On Appeal from the
United States District Court for the District of Columbia

BRIEF OF APPELLANTS GEORGE PRICE, ETAL.

Barbara R. Arnwine 
Thomas J. Henderson 
Edward Still 

Lawyers’ Committee for 
Civil Rights Under Law 
1450 G Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 662-8600

* Counsel of Record

Patricia A. Brannan*
John W. Borkowski 

Hogan & Hartson L.L.P. 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202)637-8686

Counsel for Appellants 
George Price, et al.



QUESTION PRESENTED

Whether a redistricting plan submitted to the United States 
District Court for the District of Columbia under § 5 of the 
Voting Rights Act of 1965, 42 U.S.C. § 1973c, for a 
declaration that the plan “does not have the purpose and will 
not have the effect of denying or abridging the right to vote 
on account of race or color,” should be precleared even if 
infected with an unconstitutional, racially discriminatory 
purpose that is not retrogressive?

(i)



11

PARTIES TO THE PROCEEDINGS
The Defendant-Intervenors below, Appellants George 

Price, et al., who are not listed in the caption are:
Leroy Harry 
Thelma Harry 
Clifford Doss 
Odis Easter 
Jerry Hawkins 
Barbara Stevens King 
Hurie Jones
Grover Cleveland Jaggers 
Floyd Marshall 
Rubie Fowler

All other parties are named in the caption.



Ill

QUESTION PRESENTED.................   i

PARTIES TO THE PROCEEDINGS.........................................ii

TABLE OF AUTHORITIES......................................   vi

OPINIONS BELOW.................           1

JURISDICTION................................     - 2

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED.................................................2

STATEMENT.......................    2

A. This Court’s Decision Vacating and
Remanding the First Declaratory Judgment.............3

B. The District Court’s Analysis on Remand.................6

1. Effect o f the P lan .......................       7

2. Historical Background of the
Adoption of the Plan.........................-...................8

3. Specific Sequence of Events Leading
to the Decision to Adopt the Jury
Plan ............................       8

4. Board Departures from Normal
Practice..................  9

5. Contemporary Statements of
Participants..........................................................— 9

TABLE OF CONTENTS
Page

SUMMARY OF THE ARGUMENT 11



IV

ARGUMENT.......................... ........................... ..... - ....... . 12

I. THE WORDS OF § 5, AND DECISIONS OF THIS 
COURT APPLYING THEM, MAKE CLEAR 
THAT THE “PURPOSE . . .  OF DENYING OR 
ABRIDGING THE RIGHT TO VOTE ON 
ACCOUNT OF RACE OR COLOR” IS ANY 
UNCONSTITUTIONAL, RACIALLY

TABLE OF CONTENTS—Continued
Page

DISCRIMINATORY PURPOSE....................................... 12

A. In Cases Evaluating Whether a Voting
Change Satisfies § 5, This Court Has 
Examined the Full Scope of Discriminatory 
Purpose that Could Violate the Constitution.........14

B. Until This Case, the D.C. District Court Had 
Not Limited the Analysis of “Purpose”
Under § 5 to Intent to Retrogress........................... 21

C. The “Retrogression” Limitation on the
“Purpose” Analysis Imposed by the Court 
Below Is Inconsistent with the Intent of 
Congress...............    22

D. Limiting the Purpose Inquiry Under § 5 to 
Retrogressive Intent Would Require 
Preclearance of Voting Changes that
Violate the Constitution...... .............................   25

II. APPLYING THE ARLINGTON HEIGHTS
STANDARD TO THE UNCONTESTED FACTS 
BELOW, THIS COURT SHOULD REVERSE 
BECAUSE THE BOARD’S PROPOSED 
DISTRICTING PLAN WAS MOTIVATED BY A 
PURPOSE TO DISCRIMINATE ON THE BASIS 
OF RACE........................................................... . 27



V

A. Effect o f the Plan................... ...................................28

B. Historical Background of the Adoption of
the Plan........... .........................................     30

C. Specific Sequence of Events Leading to the
Decision to Adopt the Jury Plan.............................33

D. Board Departures from Normal Practice...............37

E. Contemporary Statements of Participants...............38

CONCLUSION..... ..............................................................  40

TABLE OF CONTENTS—Continued
Page



VI

CASES:

Anderson v. Martin, 375 U.S. 399 (1964)...............................  25
Arizona v. Reno, 887 F. Supp. 318 (D.D.C. 1995), 

appeal dismissed, 516 U.S. 1155 (1996)..............................21
Beerv. United States, 425 U.S. 130(1976).......... ..... ......passim
Brown v. Board o f Educ., 347 U.S. 483 (1954)......................  31
Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), 

aff’d, 459 U.S. 1166(1983)...................................... ..... 18-21
City o f Lockhart v. United States, 460 U.S. 125 

(1983;............................................................................... 22-23
City o f Pleasant Grove v. United States, 568 F. Supp.

1455 (D.D.C. 1983)................................. ........... ................  18
City o f Pleasant Grove v. United States, 623 F. Supp.

782 (D.D.C. 1985), aff’d, 479 U.S. 462 (1987).............passim
City o f Port Arthur v. United States, 459 U.S. 159 

(1982)......................         17
City o f Richmond v. United States, 376 F. Supp. 1344 

(D.D.C. 1974), vacated, 422 U.S. 358 (1975).............. passim
City ofRome v. United States, 446 U.S. 156 (1980)........... 13
County Council o f Sumter County v. United States,

596 F. Supp. 35 ( D.D.C. 1984)...................................... 21-22
Georgia v. Reno, 881 F. Supp. 7 (D.D.C. 1995), aff’d 

sub. nom. Brooks v. Georgia, 516 U.S. 1021 (1995)............21
Gomillion v. Lightfoot, 364 U.S. 339 (1960)..........................  17

TABLE OF AUTHORITIES
Page



CASES (cont’d):
Hale County v. United States, 496 F. Supp. 1206 

(D.D.C. 1980)........................................................................ 22
Hall v. St. Helena Parish Sch. Bd., 417 F.2d 801 

(5th Cir. 1969)..................    32
Heckler v. Chaney, 470 U.S. 821 (1985)................................  13
Hunter v. Underwood, 471 U.S. 222 (1985)............................26
Lemon v. Bossier Parish Sch. Bd., 240 F. Supp 709 

(W.D. La. 1965), affd, 370 F.2d 847
(5th Cir.), cert, denied, 388 U.S. 911 (1967).................... 8, 31

Lemon v. Bossier Parish Sch. Bd., 421 F.2d 121 
(5th Cir. 1970)...............................................   32

Lemon v. Bossier Parish Sch. Bd., 444 F.2d 1400 
(5th Cir. 1971)....................................................................... 32

Lopez v. Monterey County, 119 S. Ct. 693 (1999)................... 13
Louisianav. United States, 380 U.S. 145 (1965)..................... 30
Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983)..................  30
Miller v. Johnson, 515 U.S. 900(1995)...................................  17
Montclair v. Ramsdell, 107 U.S. 147 (1883)........................... 13
New York v. United States, 874 F. Supp. 394 

(D.D.C. 1994)....................................................................... 22
Perkins v. Matthews, 400 U.S. 379 (1971).............................. 26
Reno v. Bossier Parish Sch. Bd., 517 U.S. 1154 

(1996)

vii
TABLE OF AUTHORITIES—Continued

Page

7



V l l l

TABLE OF AUTHORITIES—Continued
Page

CASES (coni ’d):
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997).....passim
Rogers v. Lodge, 458 U.S. 613 (1982)........................ ........ 24
Shawv. Reno, 509 U.S. 630 (1993)........................ ...............  39
Singleton v. Jackson Mun. Separate Sch. Dist., 419 

F.2d 1211 (5th Cir. 1969), cert, denied sub nom.
West Feliciana Parish Sch. Bd. v. Carter, 396 U.S. 
1032(1970).................................    32

South Carolina v. Katzenbach, 383 U.S. 301 (1966)..... 14, 23-24
Texas v. United States, 785 F. Supp. 201 

(D.D.C. 1992)....................................................................... 22
Texas v. United States, 866 F. Supp. 20 (D.D.C.

1994)...................................................................................  21
United States v. Albertini, 472 U.S. 675 (1985).............. 13
United States v. Menasche, 348 U.S. 528 (1955)...........    13
Village of Arlington Heights v. Metropolitan. Hous.

Dev. Corp., 429 U.S. 252 (1977)...................................passim
Washington v. Davis, 426 U.S. 229 (1976).......................... 5, 21
Western Union Tel. Co. v. Foster, 247 U.S. 105 

(1918)................     17



CONSTITUTION:
U.S. Const, amend. XIII................................................ ......... 30
U.S. Const, amend. XIV......................................................2, 25
U.S. Const, amend. XV............................................... ....passim

STA TUTORY PRO VISIONS:
Voting Rights Act of 1965,

42U.S.C. § 1973............................................................. 4, 23
42U.S.C. § 1973a.................     23
42U.S.C. § 1973b............................................................23-24
42 U.S.C. § 1973c....................................................... ..passim

La. Rev. Stat. Ann. § 17:71.3E(2)(a)....................................... 29
La. Rev. Stat. Ann. § 17:71.3E(3)(a)....................................... 29

LEGISLA TIVE MA TERIALS:
H.R. Rep. No. 97-227 (1981).............................................24-25

ix
TABLE OF AUTHORITIES—Continued

Page



In The

Supreme Court of the United
States

October Term, 1998

Nos. 98-405 & 98-406

Janet Reno, Attorney General of 
the United States,

Appellant, and
George Price, etal.,

Appellants,

v.

Bossier Parish School Board,
Appellee.

On Appeal from the 
United States District Court 
for the District of Columbia

BRIEF OF APPELLANTS GEORGE PRICE, ETAL.

OPINIONS BELOW

The decision of the United States District Court for the 
District of Columbia (“D.C. District Court”) that is the 
subject of these appeals is reported at 7 F. Supp. 2d 29



2

(D.D.C. 1998) and is reprinted at App. 1 a-28a.1 An earlier 
decision o f the D.C. District Court in this case is reported at 
907 F. Supp. 434 (D.D.C. 1995) (App. 78a-144a); this 
Court’s decision vacating and remanding that earlier decision 
is reported at 117 S. Ct. 1491 (1997) (App. 29a-77a).

JURISDICTION

The D.C. District Court had jurisdiction pursuant to 42 
U.S.C. § 1973c. It entered the judgment at issue on May 4, 
1998. George Price, et al., and Janet Reno filed timely 
notices of appeal on July 6, 1998 and filed timely 
jurisdictional statements on September 4, 1998. This Court 
noted probable jurisdiction on January 22, 1999. This 
Court’s jurisdiction is based on 42 U.S.C. § 1973c.

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

Section 1 of the Fourteenth Amendment to the United 
States Constitution provides in pertinent part that no state 
shall “deny to any person within its jurisdiction the equal 
protection o f the laws.” Section 1 of the Fifteenth 
Amendment provides: “The right of citizens of the United 
States to vote shall not be denied or abridged by the United 
States or by any State on account of race, color, or previous 
condition of servitude.” Section 5 of the Voting Rights Act, 
42 U.S.C. § 1973c, is reprinted at App. 244a-246a.

STATEMENT

Because the Bossier Parish School Board (“Board”) is a 
jurisdiction subject to the preclearance requirements of §5 of 
the Voting Rights Act of 1965, 42 U.S.C. § 1973c, it is 
required to obtain the approval either of the Attorney General 
of the United States or of the D.C. District Court before 
implementing any changes to a “voting qualification or

1 Citations to “App.” refer to the separately bound appendix 
to the Jurisdictional Statement filed on behalf of Janet Reno in No. 
98-405. Citations to “J.A.” refer to the Joint Appendix filed on 
March 5, 1999.



' Ji

prerequisite to voting, or standard, practice, or procedure.” 
App. 244a. Because the 1990 census revealed wide 
population disparities among its election districts, the Board 
proceeded to redraw its election districts to meet the mandate 
of this Court’s one-person — one-vote decisions. Id  at 30a. 
The Board seeks in this declaratory judgment action a 
determination that its redistricting plan adopted following the 
1990 census “does not have the purpose and will not have the 
effect of denying or abridging the right to vote on account of 
race or color.” 42 U.S.C. § 1973c (App. 245a).

This is the second time that the Court has noted probable 
jurisdiction in this case. In 1997, this Court vacated and 
remanded the first judgment of the D.C. District Court 
preclearing the Board’s proposed redistricting plan. 
Although the D.C. District Court found on remand “powerful 
support for the proposition that the Bossier Parish School 
Board in fact resisted adopting a redistricting plan that would 
have created majority black districts” and a “tenacious 
determination to maintain the status quo,” in which all 
election districts were majority white, App. 7a, it once again 
precleared the 12-of-12 majority white election district plan.

A. This Court’s Decision Vacating and Remanding the
First Declaratory Judgment.

This Court decided two questions in its review of the D.C. 
District Court’s first judgment granting preclearance of the 
Board’s proposed redistricting plan:

(i) whether preclearance must be denied under § 5 
whenever a covered jurisdiction’s new voting “standard, 
practice, or procedure” violates § 2 [of the Voting Rights 
Act]; and

(ii) whether evidence that a new “standard, practice, or 
procedure” has a dilutive impact is always irrelevant to 
the inquiry whether the covered jurisdiction acted with 
“the purpose . . .  of denying or abridging the right to vote 
on account of race or color” under § 5.

App. 29a-30a.



4

The Court first reviewed the Board’s process of 
redistricting following the 1990 census:

[The Board] considered, and initially rejected, the 
redistricting plan that had been recently adopted by the 
Bossier Parish Police Jury, th e ' parish’s primary 
governing body (the Jury plan), to govern its own 
elections. Just months before, the Attorney General had 
precleared the Jury plan, which also contained 12 
districts. . . .  (Stipulations, f  68). None of the 12 
districts in the Board’s existing plan or in the Jury plan 
contained a majority of black residents.. . .  (Stipulations, 
f  82) (under 1990 population statistics in the Board’s 
existing districts, the three districts with highest black 
concentrations contain 46.63%, 43.79%, and 30.13% 
black residents, respectively);. . .  . (Stipulations, If 59) 
(population statistics for Jury plan, with none of the 
plan’s 12 districts containing a black majority). Because 
the Board’s adoption of the Jury plan would have 
maintained the status quo regarding the number of black- 
majority districts, the parties stipulated that the Jury plan 
was not “retrogressive.”. . . (Stipulations, 252). . .  . 
Appellant George Price, president of the local chapter of 
the NAACP, presented the Board with a second option -— 
a plan that created two districts each containing not only 
a majority of black residents, but a majority of voting-age 
black residents. . . .  (Stipulations, f  98). Over vocal 
opposition from local residents, black and white alike, the 
Board voted to adopt the Jury plan as its own.........

App. 30a-31a (citations omitted).

The Court recounted that the Attorney General rejected the 
Board’s proposed redistricting plan when it was submitted 
for preclearance, on grounds that it would violate § 2 of the 
Voting Rights Act, 42 U.S.C. § 1973, “because it 
‘unnecessarily limit[ed] the opportunity for minority voters 
to elect their candidates of choice.’” App. 32a. The Attorney 
General had concluded that black residents are sufficiently 
numerous and geographically compact to form a majority in 
two o f the 12 election districts. Id. at 31a-32a.



5

While the Court concluded that a voting change should not 
automatically be denied preclearance under § 5 of the Voting 
Rights Act, because the change would violate § 2 of the Act, 
App. 33a-45a, it held that evidence of minority vote dilution 
should not be excluded in a § 5 preclearance proceeding. A 
remand was necessary because it was not clear whether the 
District Court considered proffered evidence that would be 
relevant to a § 2 claim in order to determine whether the 
redistricting plan has the “purpose . . .  of denying or 
abridging the right to vote on account of race or color.” 
42 U.S.C. § 1973c (App. 45a-51a).

The Court commended to the D.C. District Court on 
remand the factors relevant to determining discriminatory 
intent for purposes of Fourteenth Amendment analysis, 
outlined in Village o f  Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252, 265 (1977):

The “important starting point” for assessing 
discriminatory intent under Arlington Heights is “the 
impact of the official action whether it ‘bears more 
heavily on one race than another.”’ 429 U.S., at 266 
(citing Washington v. Davis, 426 U.S. 229, 242 (1976)). 
In a § 5 case, “impact” might include a plan’s 
retrogressive effect and, for the reasons discussed above, 
its dilutive impact. Other considerations relevant to the 
purpose inquiry include, among other things, “the 
historical background of the [jurisdiction’s] decision”; 
“[t]he specific sequence of events leading up to the 
challenged decision”; “[departures from the normal 
procedural sequence”; and “[t]he legislative or 
administrative history, especially . . .  [any] contemporary 
statements by members of the decisionmaking body.” 
Id., at 268.

App. 49a.

The Court concluded:

Because we are not satisfied that the District Court 
considered evidence o f the dilutive impact of the Board’s



6

redistricting plan, we vacate this aspect o f the District 
Court’s opinion. The District Court will have the 
opportunity to apply the Arlington Heights test on remand 
as well as to address appellants’ additional arguments that 
it erred in refusing to consider evidence that the Board 
was in violation of an ongoing injunction “to ‘remedy 
any remaining vestiges of [a] dual [school] system’,” 907 
F. Supp., at 449, n. 18.

App. 50a-51a.

The Court noted that it was leaving “open for another day 
the question whether the § 5 purpose inquiry ever extends 
beyond the search for retrogressive intent. . . . Reserving this 
question is particularly appropriate when, as in this case, it 
was not squarely addressed by the decision below or in the 
parties’ briefs on appeal. . . . The existence of such a [non- 
retrogressive but nevertheless discriminatory] purpose, and 
its relevance to § 5, are issues to be decided on remand.” 
App. 45a-46a (citations omitted).

B. The District Court’s Analysis on Remand.

Soon after this Court issued its mandate, the three-judge 
D.C. District Court called for short memoranda from the 
parties setting forth their views of what further proceedings 
should be required. 2 The court required the parties to state 
“whether the record needs to be re-opened” and whether 
additional briefs were required.3 The record was not re­
opened on remand to receive the results of the School Board 
elections held in March and April 1996 under the Jury plan, 
because the parties agreed “that there is no need to reopen the

2 Order filed Aug. 13, 1997, Civ. No. 94-1495. On remand, 
United States District Judge James Robertson was assigned to fill 
the vacancy on the panel left by the death of Judge Charles 
Richey. The panel on remand accordingly consisted of Judge 
Robertson, District Judge Gladys Kessler, and Circuit Judge 
Laurence H. Silberman.

3 Id.



7

evidentiary record.”4 5 In fact, this Court had denied a Board 
motion to supplement the record on the first appeal with the 
1996 election results. Reno v. Bossier Parish Sch. Bd, 517 
U.S. 1154 (1996). The court set a schedule for further 
briefing on the application of the Arlington Heights criteria to 
the largely stipulated record previously developed and “on 
the relevance to Section 5 o f a non-retrogressive, but 
nevertheless discriminatory, ‘purpose[.]”’

The D.C. District Court received the parties’ briefs on those 
issues, but ostensibly “decline[d]” to address whether §5’s 
purpose prong encompasses a search for discriminatory intent 
beyond retrogressive intent. App. 3a. The court searched the 
record, however, only for retrogressive intent: “The question 
we will answer . . .  is whether the record disproves Bossier 
Parish’s retrogressive intent in adopting the Jury plan.” 
Id. at 4a (emphasis added). The court applied the Arlington 
Heights factors to this limited question:

1. Effect of the Plan. The D.C. District Court pointed 
out that “[t]he first Arlington Heights factor is ‘the impact of 
the official action — whether it bears more heavily on one 
race than another.’” App. 5a, quoting Arlington Heights, 429 
U.S. at 266. The court noted the argument of Mr. Price and 
the other intervening defendants that the redistricting 
worsened the position of black voters by diminishing slightly 
the percentage of black voting age population in two of the 
12 election districts, but concluded that the parties had 
“stipulated the point away” by agreeing that these reductions 
are "de minimis.” App. 6a. The court next addressed “other 
allegedly dilutive impacts of the Jury plan”: “that some of 
the new districts have no schools, that the plan ignores 
attendance boundaries, that it does not respect communities 
of interest, that there is one outlandishly large district, that 
several of them are not compact, that there is a lack of 
contiguity, and that the population deviations resulting from

4 Order filed Sept. 9, 1997, Civ. No. 94-1495.
5 Id., quoting Reno v. Bossier Parish Sch. Bd., 520 U.S. 

471,486(1997) (App. 46a).



8

the jury plan are greater than the limits (+ 5%) imposed by 
Louisiana law.” Id. The court conceded that “[t]wo of those 
points — failure to respect communities of interest and cutting 
across attendance boundaries — might support a finding of 
retrogressive intent,” id. (emphasis added), but thought the 
point “too theoretical, and too attenuated, to be probative.” 
Id.

2. Historical Background of the Adoption of the
Plan. The D.C. District Court characterized its previous 
findings on the historical background of the Jury plan as 
“provid[ing] powerful support for the proposition that the 
Bossier Parish School Board in fact resisted adopting a 
redistricting plan that would have created majority black 
districts.” Id. at 7a. In this context, the panel majority 
addressed for the first time the history of “the school board’s 
resistance to court-ordered desegregation, and particularly its 
failure to comply with the order of the United States District 
Court in Lemon v. Bossier Parish School Board, 240 F. 
Supp. 709 (W.D. La. 1965), a f fd  370 F.2d 847 (5th Cir. 
1967), cert, denied, 388 U.S. 911 (1967), that it maintain a 
bi-racial committee to ‘recommend to the School Board ways 
to attain and maintain a unitary system and to improve 
education in the parish.’” App. 7a, quoting Stipulation ^ 111. 
The court found that the intent proved by that history “is a 
tenacious determination to maintain the status quo.” Id. 
This, however, the court found “is not enough to rebut the 
School Board’s prima facie showing that it did not intend 
retrogression.” Id. (emphasis added).

The D.C. District Court conducted only a summary review 
of the other Arlington Heights factors. The pattern on each is 
the same: The court found fact after fact that supports the 
conclusion that the Jury plan was adopted with racial animus, 
but minimized that evidence because the Jury plan did not set 
back even further the voting position of the black citizens of 
Bossier Parish.

3. Specific Sequence of Events Leading to the 
Decision to Adopt the Jury Plan. The D.C. District Court 
found that the sequence of events “does tend to demonstrate



9

the school board’s resistance to the NAACP plan; it does not 
demonstrate retrogressive intent.” Id. (emphasis added).

4. Board Departures from Normal Practice. The
court referenced its earlier review of evidence “tending to 
establish that the board departed from its normal practices,” 
and found that it “establishes rather clearly that the board did 
not welcome improvement in the position of racial minorities 
with respect to their effective exercise of the electoral 
franchise,” but concluded that such “is not evidence of 
retrogressive intents Id. (emphasis added).

5. Contemporary Statements of Participants. The
D.C. District Court referred back to its earlier findings 
concerning such statements, and concluded that “[t]hey do 
not establish retrogressive intent.” Id. at 8a (emphasis
added).

Judge Gladys Kessler once again dissented, because she 
remained convinced that the Board’s decision to adopt the 
Jury plan was motivated by discriminatory purpose. Id. at 
12a. Judge Kessler pointed out that her “colleagues have 
limited their § 5 purpose inquiry to a search for intent to 
retrogress and have declined to consider whether the § 5 
inquiry ever extends beyond that search for retrogressive 
intent.” Id. at 13a. That analysis, in Judge Kessler’s view, 
“avoid[ed] carrying out the Supreme Court’s directive to (1) 
inquire into the existence of ‘some nonretrogressive, but 
nevertheless discriminatory, purpose’; and (2) determine the 
relevance of such a purpose (should one exist) to [the] § 5 
inquiry.” Id. (internal quotation omitted).

Since the parties agreed that the Board’s proposed 
redistricting plan would not have a retrogressive effect. Judge 
Kessler first addressed whether a nonretrogressive but 
nonetheless discriminatory purpose to deny or abridge the 
right to vote on account of race or color warrants denial of 
preclearance under § 5. She reasoned that if the court “were 
to deny preclearance under § 5 only to those new plans 
enacted specifically with a retrogressive purpose, . . . [it] 
would commit [itself] to granting § 5 preclearance to a



10

‘resistant’ jurisdiction’s nonretrogressive plan even if the 
record demonstrated an intent by that jurisdiction to 
perpetuate an historically discriminatory status quo by 
diluting minority voting strength.” Id. at 17a. Because “a 
construction of § 5 that limits its purpose inquiry to a search 
for retrogressive intent could require us to preclear 
nonretrogressive but nevertheless unconstitutional voting 
plans,” id. (emphasis in original), Judge Kessler concluded 
that the purpose inquiry does extend beyond a search for 
retrogressive intent.

That conclusion prompted Judge Kessler to review again 
the full range of the evidence demonstrating the real reasons 
why the Board adopted the Jury plan. She cited the Board’s 
admission in a stipulation that it is ‘“ obvious that a 
reasonably compact black-majority district could be drawn in 
Bossier City.’” Id. at 19a, quoting Stipulation f  36. 
Stipulations also demonstrate that the Parish is racially 
polarized, id. at 19a, citing Stipulations ]f*|181-96, and “that 
no black person ha[d] been elected to the Bossier Parish 
School Board despite the fact that 20.1% of the population is 
black.” Id. (footnote omitted), citing Stipulations f^[153, 5. 
Bossier Parish has a history, recounted by Judge Kessler, of 
official and voting-related discrimination including 
implementation by the State of Louisiana of procedures since 
the adoption of the Voting Rights Act that dilute minority 
voting strength. Id. at 20a-21a. Reviewing her previous 
assessment of the Arlington Heights factors on these facts, 
Judge Kessler reached the same conclusion:

[T]he only conclusion that can be drawn from the 
evidence is that the Bossier School Board acted with 
discriminatory purpose. The adopted plan has a 
substantial negative impact on the black citizens of 
Bossier Parish. The sequence of events leading up to the 
decision show conclusively how the School Board 
excluded the black community from the redistricting 
process and rushed to adopt the Police Jury plan only 
when faced with an alternative plan that provided for 
black representation. The plan itself ignores and



11

overrides a number of the School Board’s normal 
paramount interests. And the statements of some School 
Board members certainly lend strength to the other 
evidence. . . . We cannot blind ourselves to the reality of 
the situation and the record before us.

App. 23a (citation omitted).

These appeals followed.

SUMMARY OF THE ARGUMENT

Section 5 of the Voting Rights Act calls for a declaratory 
judgment by the D.C. District Court preclearing a voting 
change where the covered jurisdiction can establish that the 
change “does not have the purpose and will not have the 
effect of denying or abridging the right to vote on account of 
race or color.” Section 5 echoes the words of the Fifteenth 
Amendment to the Constitution, which is the authority for 
Congress’ enactment of the Voting Rights Act: “The right of 
citizens of the United States to vote shall not be denied or 
abridged by the United States or by any State on account of 
race, color, or previous condition o f servitude.”

This Court’s cases reviewing the D.C. District Court’s § 5 
decisions establish core principles supporting the conclusion 
that the discriminatory “purpose” that bars preclearance of a 
voting change under § 5 is as broad as the discrimination 
prohibited by the Constitution:

• The “purpose” and “effect” inquiries both must be 
conducted in order to determine whether a proposed 
voting change passes muster under § 5.

• Even if the effect of a voting change is not 
retrogressive, the proposed change will not be 
precleared if it was motivated by a discriminatory, 
unconstitutional purpose. •

• The test for determining whether a voting change was 
motivated by a discriminatory purpose is set forth in 
Arlington Heights.



12

Consistent with these principles, on remand the D.C. 
District Court should have applied the Arlington Heights 
factors to determine whether any racially discriminatory 
purpose to deny or abridge the right to vote motivated the 
redistricting plan submitted by the Bossier Parish School 
Board, without restricting its analysis to a search for 
“retrogressive intent.” The D.C. District Court applied the 
Arlington Heights factors, but in its analysis of each 
Arlington Heights element it addressed only whether the 
evidence demonstrated “retrogressive intent.” See App. 
5a-8a. That limitation should not be read into the “purpose” 
analysis under § 5 because it has no foundation in the 
language or history o f the statute, or in the § 5 decisions of 
this Court. Indeed, the Court has decided “purpose” cases 
that would have had a different result if its analysis had been 
limited to a search for purpose to retrogress. Moreover, 
limiting “purpose” to “retrogressive intent” would require the 
Attorney General and the D.C. District Court to preclear 
voting changes that violate the Constitution.

The D.C. District Court found that the Board’s adoption of 
the Jury plan violated traditional districting principles and 
reflected a strong resolve to maintain 12-of-12 majority- 
white election districts. The Board sought through its 
redistricting to maintain a status quo characterized by non- 
compliance with its unsatisfied desegregation obligations. 
Under a proper application of the Arlington Heights analysis, 
these conclusions warrant reversal of the judgment below and 
denial of preclearance of Bossier’s redistricting plan.

ARGUMENT

I. THE WORDS OF § 5, AND DECISIONS OF THIS 
COURT APPLYING THEM, MAKE CLEAR THAT 
THE “PURPOSE . . .  OF DENYING OR ABRIDGING 
THE RIGHT TO VOTE ON ACCOUNT OF RACE OR 
COLOR” IS ANY UNCONSTITUTIONAL, RACIALLY 
DISCRIMINATORY PURPOSE.

The critical error of the D.C. District Court on remand was 
in its failure to recognize the many cases holding that



13

consideration o f purpose is not limited to a search for 
retrogression The analysis of “purpose” and “effect” are not 
the same, and both must be conducted in a declaratory 
judgment action seeking preclearance of a voting change: 
“By describing the elements of discriminatory purpose and 
effect in the conjunctive, Congress plainly intended that a 
voting practice not be precleared unless both discriminatory 
purpose and effect are absent.” City o f  Rome v. United 
States, 446 U.S. 156, 172 (1980) (emphasis in original); 
accord Lopez v. Monterey County, 119 S. Ct. 693, 703 
(1999) (“once a jurisdiction has been designated, [§ 5 of] the 
Act may guard against both discriminatory animus and the 
potentially harmful effect of neutral laws in that jurisdiction”) 
(emphasis in original). Giving meaning to both “purpose” 
and “effect” implements the common-sense principle of 
statutory construction that sections of a statute generally 
should be read to give effect, if possible, to every clause. 
Heckler v. Chaney, 470 U.S. 821, 829 (1985) (finding 
distinct applications for two provisions of Administrative 
Procedure Act).6

This Court’s cases applying the “purpose” prong of § 5 
confirm that the purpose analysis is not the same as the effect 
test, and is not limited to retrogressive intent. The D.C. 
District Court’s limitation of purpose to retrogressive intent 
would require preclearance o f voting changes adopted with 
an unconstitutional discriminatory purpose.

6 See also United States v. Albertini, 472 U.S. 675, 682-83 
(1985) (declining to read statute in way that renders one paragraph 
superfluous); United States v. Menasche, 348 U.S. 528, 538-39 
(1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883) 
and refusing to “emasculate an entire section” of Immigration and 
Nationality Act because it is the Court’s “duty ‘to give effect, if 
possible, to every clause and word of a statute’”).



14

A. In Cases Evaluating Whether a Voting Change 
Satisfies § 5, This Court Has Examined the Full 
Scope of Discriminatory Purpose that Could Violate 
the Constitution.

This Court’s § 5 decisions are based on the principle that 
“[t]he Voting Rights Act of 1965 reflects Congress’ firm 
intention to rid the country of racial discrimination in 
voting.” South Carolina v. Katzenbach, 383 U.S. 301, 315 
(1966) (footnote omitted). In Katzenbach, the Court upheld 
the constitutionality of challenged sections of the Voting 
Rights Act, including § 5, as a valid exercise of Congress’ 
authority under the Fifteenth Amendment. Id. at 327. 
Section 5 is an appropriate exercise of congressional power 
because a judicial determination to preclear a voting change 
“is a judicial determination that continued suspension of the 
new rule is unnecessary to vindicate rights guaranteed by the 
Fifteenth Amendment.” Id. at 335. An analysis o f whether a 
proposed voting change reflects a discriminatory purpose that 
would offend the Constitution is the touchstone for 
preclearance, since “[t]he Act suspends new voting 
regulations pending scrutiny by federal authorities to 
determine whether their use would violate the Fifteenth 
Amendment.” Id. at 334.

A determination whether a proposed voting change “will 
not have the effect of denying or abridging the right to vote 
on account of race or color” calls for some prediction, as 
Congress’ use of the future tense suggests, of how a voting 
change will operate in practice. Where redistricting is at 
issue, “a legislative reapportionment that enhances the 
position of racial minorities with respect to their effective 
exercise of the electoral franchise can hardly have the ‘effect’ 
of diluting or abridging the right to vote on account of race 
within the meaning of § 5.” Beer v. United States, 425 U.S. 
130, 141 (1976). The Court accordingly concluded in Beer 
that a new apportionment plan for the New Orleans City 
Council did not have the “effect” o f denying or abridging the 
right to vote on account of race or color, since the old 
apportionment plan had five councilmanic districts, in one of 
which blacks were a majority o f the population and about



15

half o f the registered voters. Id. at 135. Under the new post- 
1970-census plan, two districts had black population 
majorities and one district had a black voter majority. Id. at 
135-36.

The key to the Court’s analysis in Beer is the selection of 
the baseline for comparison with the new plan to determine 
whether the new plan will have the “effect” of denying or 
abridging the right to vote on account of race or color. The 
Court rejected the proposition that comparison of the 
“mathematical potential” of black majority districts and 
“predicted reality” under the new plan was appropriate. Id. at 
137. Instead, the Court held that the “effect” prong is 
properly measured in the redistricting context by comparing 
the old and proposed new plans. Where the new plan is an 
“ameliorative new legislative apportionment,” it does not 
have the “effect” of denying or abridging the right to vote. 
Id. at 141.

The Court carefully explained in its Beer holding that the 
analysis of “effect” did not change the principle that voting 
changes in violation of the Constitution should be denied 
preclearance under the “purpose” prong of § 5: “We
conclude, therefore, that such an ameliorative new legislative 
apportionment cannot violate § 5 unless the new 
apportionment itself so discriminates on the basis o f  race or 
color as to violate the Constitution.” Id. at 141 (emphasis 
added). The Court explained why even a voting change with 
no retrogressive effect should be rejected if it manifests a 
discriminatory purpose: “It is possible that a legislative
reapportionment could be a substantial improvement over its 
predecessor in terms of lessening racial discrimination, and 
yet nonetheless continue so to discriminate on the basis of 
race or color as to be unconstitutional.” Id. at 142 n.14. 
Because facts demonstrating discriminatory purpose were not 
present in Beer, and the effect of the redistricting plan was 
not retrogressive, preclearance was granted.

Beer built on the Court’s holding in City o f  Richmond v. 
United States 422 U.S. 358 (1975), in which the D.C. District 
Court had refused to preclear annexation of an area of



16

Chesterfield County to the City of Richmond, Virginia, on 
grounds that it was discriminatory both in its purpose and 
effect. City o f  Richmond v. United States, 376 F. Supp. 1344 
(D.D.C. 1974), vacated, 422 U.S. 358 (1975). The D.C. 
District Court relied on evidence that the City initially 
proceeded without seeking the preclearance mandated by § 5, 
that no legitimate purpose for annexation had been shown, 
and that a proposed post-election ward system had not 
minimized to the extent possible the dilution o f black voting 
strength that would be caused by annexing an area with a 
more substantial proportion of white voters than were present 
in the City before annexation. City o f  Richmond, 422 U.S. at 
367.

This Court held in City o f  Richmond that an annexation has 
the effect of denying or abridging the right to vote on account 
of race or color only if the resulting election system fails to 
fairly reflect the voting strength of the black community as it 
exists after the annexation; the Court rejected the notion that 
an annexation should be rejected for preclearance because the 
black community will lose relative influence in the City. Id. 
at 370-72. Although the Court concluded that the effect of 
the annexation did not violate § 5, it went on to weigh 
whether it had a racially discriminatory purpose. Id. at 372. 
The Court remanded for further proceedings to consider 
possible legitimate, non-discriminatory reasons for the 
annexation, a remand that would have been meaningless if 
the absence of retrogression were dispositive. The Court 
made very clear in City o f  Richmond why the inquiry into 
purpose is required, even if a voting change is not 
retrogressive:

We have held that an annexation reducing the relative 
political strength of the minority race in the enlarged city 
as compared with what it was before the annexation is not 
a statutory violation as long as the post-annexation 
electoral system fairly recognizes the minority’s political 
potential. If this is so, it may be asked how it could be 
forbidden by § 5 to have the purpose and intent of 
achieving only what is a perfectly legal result under that



17

section and why we need remand for further proceedings 
with respect to purpose alone. The answer is plain, and 
we need not labor it. An official action, whether an 
annexation or otherwise, taken for the purpose of 
discriminating against Negroes on account of their race 
has no legitimacy at all under our Constitution or under 
the statute. Section 5 forbids voting changes taken with 
the purpose of denying the vote on the grounds of race or 
color. Congress surely has the power to prevent such 
gross racial slurs, the only point of which is “to despoil 
colored citizens, and only colored citizens, of their 
theretofore enjoyed voting rights.” Gomillion v. 
Lightfoot, 364 U.S. 339, 347 (1960). Annexations 
animated by such a purpose have no credentials 
whatsoever; for “[a]cts generally lawful may become 
unlawful when done to accomplish an unlawful end. . . .” 
Western Union Telegraph Co. v. Foster, 247 U.S. 105, 
114 (1918); Gomillion v. Lightfoot, supra, at 347. An 
annexation proved to be of this kind and not proved to 
have a justifiable basis is forbidden by § 5, whatever its 
actual effect may have been or may be.

City o f  Richmond, 422 U.S. at 378-79. Accord Miller v. 
Johnson, 515 U.S. 900, 924 (1995) (“[ajmeliorative changes, 
even if they fall short o f what might be accomplished in 
terms of increasing minority representation, cannot be found 
to violate section 5 unless they so discriminate on the basis of 
race or color as to violate the Constitution”) (citation 
omitted); City o f  Port Arthur v. United States, 459 U.S. 159, 
168 (1982) (even an electoral scheme that “might otherwise 
be said to reflect the political strength of the minority 
community . . . would nevertheless be invalid if adopted for 
racially discriminatory purposes, i.e., if [a] majority-vote 
requirement. . . had been imposed for the purpose of 
excluding blacks from any realistic opportunity to represent 
those districts or to exercise any influence on Council 
members elected to those positions. City o f  Richmond v. 
United States, 422 U.S., at 378-379”).



18

This Court’s affirmances after Beer and City o f  Richmond 
in City o f  Pleasant Grove v. United States, 479 U.S. 462 
(1987) and Busbee v. Smith, 459 U.S. 1166 (1983), further 
establish that the discriminatory “purpose” prohibited by § 5 
is not limited to retrogressive intent. The voting changes at 
issue in those cases were not retrogressive, but were 
nonetheless rejected because they were infected with 
discriminatory purpose.

Pleasant Grove, like Richmond, was an annexation case. 
The City of Pleasant Grove, Alabama, was “an all-white 
enclave in an otherwise racially mixed area of Alabama.” 
City o f  Pleasant Grove, 479 U.S. at 465 (citation omitted). 
Pleasant Grove annexed two parcels of land, one o f which 
was uninhabited and one of which was home to an extended 
white family. Id. at 465-66. While these annexations were in 
process, Pleasant Grove rejected the annexation of an 
adjacent black neighborhood and attempted to cut off that 
area’s fire protection and paramedic services. Id. at 466. The 
D.C. District Court found no prohibited effect under § 5, 
because it could not be said that annexation of a white area 
that did not alter the racial composition of the voting 
population had a retrogressive “effect” as described in Beer. 
City o f  Pleasant Grove v. United States, 568 F. Supp. 1455, 
1458-59 (D.D.C. 1983). The court found, however, that 
summary judgment preclearing the annexation could not be 
granted because of evidence o f discriminatory purpose under 
the Arlington Heights analysis. The City’s history of 
discriminatory policies and practices included ordinances “to 
restrict colored property,” opposition to a “colored housing 
project,” refusal to annex black residential areas, and 
maintenance of a segregated school system. Id. at 1456-57. 
After trial on the merits, the D.C. District Court denied 
preclearance based on the purpose prong alone. City o f  
Pleasant Grove v. United States, 623 F. Supp. 782 (D.D.C. 
1985), a ff’d, 479 U.S. 462 (1987).

This Court affirmed, holding that the trial court’s findings 
were not clearly erroneous that Pleasant Grove’s economic 
justifications for treating adjacent white and black areas



19

differently were flawed pretexts developed after the fact. 
Pleasant Grove, 479 U.S. at 470. The Court specifically 
rejected Pleasant Grove’s argument that “since the 
annexation could not possibly have caused an impermissible 
effect on black voting, it makes no sense to say that appellant 
had a discriminatory purpose.” Id. at 471. A covered 
jurisdiction cannot “short-circuit a purpose inquiry under § 5 
by arguing that the intended result was not impermissible 
under an objective effects inquiry.” Id. at 471 n . l l ,  citing 
City o f  Richmond, 422 U.S. at 378-79. Section 5 prohibits 
voting changes with discriminatory purposes beyond the 
dilution of existing minority voting strength, the Court 
concluded, because:

One means o f thwarting this process [of racial 
integration] is to provide for the growth of a monolithic 
white voting block, thereby effectively diluting the black 
vote in advance. This is just as impermissible a purpose 
as the dilution o f present black voting strength. Cf. City 
o f  Richmond, supra, at 378. To hold otherwise would 
make appellant’s extraordinary success in resisting 
integration thus far a shield for further resistance. 
Nothing could be further from the purposes of the Voting 
Rights Act.

City o f  Pleasant Grove, 479 U.S. at 472.

In Busbee v. Smith, 459 U.S. 1166, this Court summarily 
affirmed the D.C. District Court’s conclusion that the 
Georgia congressional redistricting following the 1980 
census could not be precleared under § 5 because it was 
tainted with discriminatory purpose, although “the voting 
plan does not have a discriminatory effect, as that term has 
been construed under the Voting Rights Act.” Busbee v. 
Smith, 549 F. Supp. 494, 516 (D.D.C. 1982), a ff’d, 459 U.S. 
1166 (1983) (relying on Beer, 425 U.S. at 141). The D.C. 
District Court found no retrogressive effect, because there 
was one majority black congressional district in the Atlanta 
area in both the previous and proposed plans; that district 
gained a few percentage points in black population under the 
proposed plan. Busbee, 549 F. Supp. at 498, 516. The



20

court’s findings of discriminatory purpose, as in Pleasant 
Grove, were based on application of the Arlington Heights 
factors. Id. at 517. The court found overt racial statements 
(such as statements by the Chairman of the House Permanent 
Standing Committee on Legislative and Congressional 
Reapportionment opposing drawing of a “nigger district, 
549 F. Supp. at 512); the conscious minimization of black 
voting strength in the Atlanta area (especially as contrasted 
with efforts to consolidate communities with consistent 
interests in other parts of the state, such as the mountains of 
North Georgia); a history of invidious discrimination; and the 
absence of legitimate non-racial reasons for the plan. Id. 
The process was questionable as well. By excluding black 
legislators “solely because of their race . . . from the final- 
decision making process,” -  a legislative conference 
committee -  and entrusting those decisions to “whites who, 
for racially discriminatory reasons, opposed the creation of a 
district which might allow black voters an opportunity to 
elect a candidate of their choice,” the process failed to 
function in a nondiscriminatory manner. Id. at 518.

The D.C. District Court stressed that it expressed no view 
as to what congressional redistricting plan the Georgia 
legislature should adopt, and that its “decision does not 
require the State of Georgia to maximize minority voting 
strength in the Atlanta area.” Id. at 518. The court 
concluded: “The State is free to draw the districts pursuant to 
whatever criteria it deems appropriate so long as the effect is 
not racially discriminatory and so long as racially 
discriminatory purpose is absent from the process.” Id.

On appeal, the State of Georgia appellants specifically 
sought this Court’s review of whether a voting plan that lacks 
the effect of diminishing black voting strength can be held to 
have a discriminatory purpose.7 This Court summarily 
affirmed. Busbee, 459 U.S. 1166.

The questions presented in Busbee were:
A. Whether a Congressional reapportionment plan that has 
no discriminatory effect, that enhances black voting



21

B. Until This Case, the D.C. District Court Had Not 
Limited the Analysis of “Purpose” Under § 5 to 
Intent to Retrogress.

The D.C. District Court in numerous § 5 cases since Beer— 
in addition to Busbee and City o f  Pleasant G rove- has 
evaluated whether a proposed voting change has a 
retrogressive effect; regardless of that result, the court also 
has considered whether the proposed change is the product of 
a discriminatory purpose, with Arlington Heights and 
Washington v. Davis setting the framework for the analysis. 
For example, where a voting change — the creation of new 
judgeships — was found not to have a retrogressive effect, the 
D.C. District Court has granted summary judgment to a 
covered jurisdiction on the effect prong of the analysis, but 
has permitted the United States to conduct discovery into 
purpose in order to develop evidence regarding the Arlington 
Heights factors. Arizona v. Reno, 887 F. Supp. 318 (D.D.C. 
1995), appeal dismissed, 516 U.S. 1155 (1996). Accord 
Georgia v. Reno, 881 F. Supp. 7, 11, 14 (D.D.C.), a ff’d sub. 
nom. Brooks v. Georgia, 516 U.S. 1021 (1995) (finding 
neither effect nor purpose in creation of new judgeships); 
Texas v. United States, 866 F. Supp. 20, 27-28 (D.D.C. 1994) 
(summary judgment denied on both purpose and effect 
prongs because of disputed facts concerning change from 
elected to appointed governing board).

strength, and that provides blacks with equal access to the 
political process can be deemed to violate Section 5 of the 
Voting Rights Act.
B. Whether a Congressional reapportionment plan that 
does not have the purpose of diminishing the existing 
level of black voting strength can be deemed to have the 
purpose of denying or abridging the right to vote on 
account of race within the meaning of Section 5 of the 
Voting Rights Act.

Jurisdictional Statement at i, Busbee v. Smith, 459 U.S. 1166.
8 Accord County Council o f Sumter County v. United States,

596 F. Supp. 35 (D.D.C. 1984) (change to at-large election system 
for county council had both the purpose and effect of denying or



22

Since Beer, the D.C. District Court has measured the effect 
prong by analyzing retrogression, but, until the decision 
below, the D.C. District Court had never, so far as we are 
able to discover, restricted a § 5 “purpose” analysis to a 
search for retrogressive intent. See New York v. United 
States, 874 F. Supp. 394, 399-400 (D.D.C. 1994) (creation of 
new judgeships precleared; “preclearance under section 5 
represents nothing more than an official determination that a 
proposed voting change will not diminish the position of 
minority voters and that it was not undertaken for a 
discriminatory purpose”); Texas v. United States, 785 F. 
Supp. 201, 203-04 (D.D.C. 1992) (“Plaintiffs burden in a 
suit for declaratory judgment under section 5 is twofold: 
First, it must demonstrate that the redistricting plan does not 
lead to a retrogression in the position of racial minorities; 
second, the State must demonstrate that the plan is free of a 
discriminatory purpose. Even if a change is ‘ameliorative,’ it 
may violate Section 5 if it ‘so discriminates on the basis of 
race or color as to violate the Constitution’” (quoting Beer, 
425 U.S. at 141)).

C. The “Retrogression” Limitation on the “Purpose” 
Analysis Imposed by the Court Below Is 
Inconsistent with the Intent of Congress.

The court below ruled that “[t]he language of Beer 
[defining retrogression in terms of a comparison of an old 
election plan to the proposed plan] is just as applicable to the 
‘purpose’ inquiry as to the ‘effect’ inquiry.” App. 4a. To be 
sure, this Court explained in Beer that “the purpose of § 5 has 
always been to insure that no voting-procedure changes 
would be made that would lead to a retrogression in the 
position of racial minorities with respect to their effective 
exercise of the electoral franchise.” Beer, 425 U.S. at 141; 
see City o f  Lockhart v. United States, 460 U.S. 125, 133

abridging right to vote based on race); Hale County v. United 
States, 496 F. Supp. 1206, 1218 (D.D.C. 1980) (change to at-large 
elections for the Hale County, Alabama county commission had 
both the purpose and effect of denying or abridging the right to 
vote on account of race; Arlington Heights factors applied).



23

(1983) (“Section 5 was intended to halt actual retrogression 
in minority voting strength without regard for the legality 
under state law of the practices already in effect”; voting 
change evaluated only for retrogressive effect, since purpose 
inquiry had been bifurcated by D.C. District Court) (footnote 
omitted). Beer and Lockhart both addressed only the “effect” 
prong of § 5, so these broad statements can most reasonably 
be understood to describe the particular analysis required to 
determine whether a voting change has the prohibited 
“effect.”

More fundamentally, the Court’s statement in Beer could 
not fairly be read to suggest that in adopting § 5 Congress 
intended only to halt new stratagems that would actually 
diminish meaningful participation in elections by black 
voters as compared to some earlier level. Voter registration 
and election participation by black voters in some parts of 
this country in 1965 was almost non-existent. This Court in 
Katzenbach summarized the evidence that was before the 
Congress when it first enacted the Voting Rights Act:

According to estimates by the Attorney General during 
hearings on the Act, registration of voting-age Negroes in 
Alabama rose only from 14.2% to 19.4% between 1958 
and 1964; in Louisiana it barely inched ahead from 
31.7% to 31.8% between 1956 and 1965; and in 
Mississippi it increased only from 4.4% to 6.4% between 
1954 and 1964. In each instance, registration of voting- 
age whites ran roughly 50 percentage points or more 
ahead of Negro registration.

Katzenbach, 383 U.S. at 313.

Congress made clear through its adoption of multiple 
means of combating discrimination in voting that it knew the 
job would be massive. Congress authorized new kinds of 
litigation to secure voting rights, 42 U.S.C. §§ 1973, 1973a; 
suspended the use of tests and devices in determining 
eligibility to vote in certain states and political subdivisions 
where voter registration and participation were very low, 42



24

U.S.C. § 1973b; and imposed the preclearance requirement in 
§ 5 for new voting qualifications or prerequisites.

There is no evidence that Congress thought that the 
enactment of these tools through passage of the Voting 
Rights Act would create such a level baseline of 
nondiscriminatory voting opportunity that Congress intended 
in § 5 only to bar deterioration in the opportunity o f blacks to 
vote. The perpetuation of discrimination through new 
devices with the purpose of keeping black citizens from 
participating as voters, even if the new devices were merely 
as effective as the old ones, would insure that the promise of 
the Fifteenth Amendment could not become a reality. It is in 
this context that this Court, in its voting rights decision 
closest to the date of the passage of the Act, observed that 
numerous discriminatory requirements and stratagems to bar 
black citizens from voting had been outlawed by federal 
courts, but “some of the States affected have merely switched 
to discriminatory devices not covered by the federal decrees 
or have enacted difficult new tests designed to prolong the 
existing disparity between white and Negro registration.” 
Katzenbach, 383 U.S. at 314 (footnote omitted) (emphasis 
added). Accord Rogers v. Lodge, 458 U.S. 613, 625 (1982) 
(affirming denial of § 5 preclearance of voting change due to 
purposeful discrimination evident in part through “practices 
which, though neutral on their face, serve to maintain the 
status quo”). The Voting Rights Act was designed to combat 
a discriminatory status quo as well as to avoid future 
retrogression.

Congress has not limited the overall reach of § 5 to 
retrogressive voting changes as the circumstances of black 
and other minority voters have improved. In the 
reauthorization of the Voting Rights Act in 1982, the 
Committee on the Judiciary of the House of Representatives 
found “that there has been much progress in increasing 
registration and voting rates for minorities since the passage 
of the Voting Rights Act of 1965,” but that “these gains are 
fragile. The registration figures for minorities remain 
substantially lower than those for white voters.” H.R. Rep.



25

No. 97-227 at 7 (1981). In light of that evidence, and 
evidence of continued discrimination in registration and 
voting through a variety of mechanisms, the Judiciary 
Committee recommended and the Congress approved the 
extension o f § 5, the “speedy review mechanism to correct 
existing Fifteenth Amendment violations and to prevent 
future voting discrimination,” with no change in the language 
of § 5 that would limit “purpose” to purpose to retrogress. 
Id. at 13.

D. Limiting the Purpose Inquiry Under § 5 to 
Retrogressive Intent Would Require Preclearance of 
Voting Changes that Violate the Constitution.

This Court and the Congress have linked § 5 preclearance 
to the goal of barring voting changes that discriminate on the 
basis of race or color. It takes no imagination to identify 
voting changes that should be denied preclearance under § 5 
because of their discriminatory purpose, but that would not 
be halted if the search for purpose is limited to “purpose to 
retrogress.” This Court has held that certain voting practices 
or requirements violate the Fourteenth or Fifteenth 
Amendment although they do not present “retrogression” in 
anything like the numerical sense addressed in Beer. For 
example, if  a covered jurisdiction were to seek a declaratory 
judgment preclearing a rule requiring candidates to be 
identified by race on the ballot, that change should be denied 
preclearance. Such a requirement violates the equal 
protection clause of the Fourteenth Amendment. See 
Anderson v. Martin, 375 U.S. 399, 402 (1964). Yet that type 
of voting change is not readily analyzed under a retrogression 
test. Fact issues could be extensive in litigation over whether 
listing of race on the ballot would have an impact on voting 
patterns. Regardless of whether such a requirement would 
gain or lose votes for candidates by race, it should be denied 
preclearance because it represents government’s endorsement 
of consideration of race in the casting of ballots. Id.

If a covered jurisdiction proposed preclearance of a rule 
requiring the disenfranchisement of misdemeanants 
convicted of crimes involving moral turpitude, for example,



26

preclearance should be denied if the jurisdiction does not 
demonstrate the absence of a racially invidious intent to limit 
the eligibility of black voters. See Hunter v. Underwood, 
471 U.S. 222 (1985). Fact and opinion witnesses no doubt 
would clash in their predictions of whether such a change 
would diminish voter participation by race. Whether or not it 
is possible to prove that such a device actually would 
diminish the practical ability o f black citizens to elect 
candidates of their choice, such a rule should be denied 
preclearance if it is intended to disqualify black voters.

If  a covered jurisdiction relocated polling places from 
centers that are familiar and readily accessible to black voters 
to areas inconvenient and perceived as hostile to the black 
community, that voting change is subject to the preclearance 
requirement of § 5. See Perkins v. Matthews, 400 U.S. 379, 
387-88 (1971). If the jurisdiction brought the change in 
polling places to the D.C. District Court for preclearance, it 
should be denied regardless of factual conflicts about whether 
black voters would actually be deterred. If white leaders 
testified that they changed the polling places just out of 
hatred, to force black voters to come to them in order to 
participate, it should matter not at all whether a single black 
voter would refrain from voting at the new polling place. 
Such discrimination should not be dignified with 
preclearance since it is unsupported by any rational, 
nondiscriminatory basis.

Denial of preclearance to a redistricting plan infected with 
a discriminatory purpose that is not retrogressive is important 
in jurisdictions like Bossier Parish, in which the existing plan 
against which retrogression is measured has no majority 
black election districts and only white candidates had ever 
been elected to the School Board at the time of the adoption 
of the proposed plan. In such jurisdictions, voting changes 
imposing any conceivable means of limiting black voter 
participation could pass muster under the “effect” prong of 
§ 5, as long as they merely hold even the white dominance of 
the electoral system. If the “purpose” analysis also is limited 
to “intent to retrogress,” the D.C. District Court would have



27

to preclear even the most flagrantly racist efforts to hold 
down a low baseline of meaningful black voter participation.

In short, a covered jurisdiction’s “extraordinary success in 
resisting integration” should not become a “shield for further 
resistance,” City o f  Pleasant Grove, 479 U.S. at 472, that 
requires preclearance of voting changes that seek only to 
maintain the status quo for the racially invidious reason that 
the status quo is very favorable to white voters. In 
redistricting cases, such a jurisdiction could pass a plan 
designed to maintain the status quo, accompanied even with 
the most overt and outlandishly racist statements, and still 
gain preclearance of its plan.

Congress sought in the Voting Rights Act to break the 
status quo, which was characterized by discrimination that 
kept meaningful black voting participation at very low 
levels. Racially motivated efforts to maintain that status quo 
are as invidious and violative of the Constitution as are 
efforts to retrogress.

II. APPLYING THE ARLINGTON HEIGHTS 
STANDARD TO THE UNCONTESTED FACTS
BELOW, THIS COURT SHOULD REVERSE
BECAUSE THE BOARD’S PROPOSED DISTRICTING 
PLAN WAS MOTIVATED BY A PURPOSE TO 
DISCRIMINATE ON THE BASIS OF RACE.

The facts in this case, to a remarkable degree, have been 
stipulated by the parties. App. 145a-232a. The summary of 
the facts herein relies principally on the stipulations and on 
the findings of the majority below, and applies the Arlington 
Heights factors, as the D.C. District Court was directed to do 
on remand. Id. at 49a.

Because the Board was starting from a baseline of no 
majority black election districts, retrogression is not the 
salient factor in the inquiry. The Board’s adoption of the 
Jury plan was surrounded with racial tension, marked by 
irregular procedures and deviations from traditional 
districting principles, and what the D.C. District Court found 
to be a “tenacious determination to maintain the status quo.”



28

Id. at 7a. The evidence establishes that preclearance of the 
plan should be denied because the Board has not carried its 
burden of demonstrating the absence of a purpose to deny or 
abridge the right to vote on account of race or color.

A. Effect of the Plan.

In 1992, in response to the need to redistrict for one- 
person-one-vote purposes following the 1990 census, the 
Board adopted a 12 single-member-district reapportionment 
plan with 12 majority-white districts. The Board’s plan 
during the 1980s also had no majority black districts. By 
1990, however, Bossier Parish, Louisiana had a population 
that was 20.1% black, id. at 145a-146a (*! 5), and a voting age 
population that was 17.6% black. Id. at 146a (f  6). Black 
students also comprise 29% of the enrollment in the Parish’s 
public schools. Id. at 81a n.2; id. at 191a ( |  142). No black 
candidate, however, had ever been elected to the 12-member 
School Board when the plan was adopted in 1992. Id. at 
145a ( t  4).

As the parties stipulated below, voting patterns in Bossier 
Parish are affected by racial preferences. Id. at 201a-207a 
(TH181-196). The foreseeable impact of the Board’s adoption 
of a redistricting plan with all majority-white districts, 
therefore, was to ensure that when black voters and white 
voters prefer different candidates, white voters’ preferences 
will prevail, see id. at 118a-120a, perpetuating the status quo.

The record furthermore showed that the creation o f 12 
majority-white election districts was not dictated by 
adherence to traditional redistricting principles. The parties 
stipulated and the court below found that the black 
population of the Parish is concentrated in two areas. More 
than 50% of the black residents live in Bossier City, App. 
79a; id. at 146a-147a (f  10); another significant percentage of 
black residents is concentrated in communities in the 
northern rural portion of the Parish. Id. The School Board 
stipulated that it was “obvious that a reasonably compact 
black-majority district could be drawn within Bossier City,” 
id. at 154a-155a (̂ | 36), and that the outlines of a second such



29

district in the northern part of the parish were “readily 
discernible.” Id. at 194a flj 148). By fragmenting or 
“fracturing” predominantly black residential areas, however, 
the Board avoided drawing any majority-black districts. See 
id. at 190a-192a (tlf 137-138, 142). On remand, Bossier 
conceded that “[t]he impact of [its] plan does fall more 
heavily on blacks than on whites,” and, more specifically, 
that its election plan “did dilute black voting strength.” Brief 
In Behalf of Plaintiff on Remand at 12, 21.

The Board’s plan not only has a harsh impact on black 
voters; it departs substantively from its earlier districting 
plans and ignores factors that it had previously considered 
paramount. App. 128a-129a. For example, the Police Jury 
plan pitted School Board incumbents against one another in 
two districts. Id. at 85a. Likewise, as the court below 
recognized, the Police Jury plan distributed schools unevenly, 
with some election districts containing no schools and other 
districts containing several. Id. at 85a; see also id. at 151a, 
1 9 1 a m  24, 141).

The plan also contained one district that included “almost 
half o f the geographic area in the Parish,” id. at 129a, several 
others that were not compact according to the Board’s own 
cartographer, id. at 191a (*| 139), and one district that was not 
contiguous. Id. at 6a; J.A. 221-238 (Cooper). The plan also 
violated a state law requirement that no election district 
deviate from the one-person, one-vote ideal by more than 
5%. Id. f  31; La. R.S. 17:71.3 E(2)(a) and E(3)(a) (J.A. 374- 
379).

The Board stipulated to facts showing that its plan does 
“not respect communities of interest in Bossier Parish.” App. 
129a (citing Stipulations 135-37). What the plan did 
accomplish was splitting black communities and retaining all 
white-majority election districts. The panel majority below 
found that those departures from the Board’s traditional 
districting criteria “establish^ ] rather clearly that the board 
did not welcome improvement in the position of racial 
minorities with respect to their effective exercise of the 
electoral franchise.” Id. at 7a.



B. Historical Background of the Adoption of the Plan.

The adverse effects o f racially polarized voting on the 
ability of black voters to elect candidates of their choice are 
exacerbated in Bossier Parish by the effects of past 
discrimination. App. 210a-218a ( f f  213-243). It was 
undisputed below that the depressed socioeconomic and 
educational levels o f black citizens of Bossier Parish make it 
hard for them “to obtain necessary electoral information, 
organize, raise funds, campaign, register, and turn out to 
vote; [these factors] in turn cause a depressed level of 
political participation.” Id. at 207a-210a (f f  197-202, 206- 
213).

The dark history o f voting discrimination in Bossier Parish 
was undisputed below. Id. at 210a-216a (^jf 214-232). The 
parties stipulated that “vestiges of discrimination persist 
which affect the rights o f black persons to register, to vote or 
otherwise participate in the democrative process.” Id. at 210a 
(f 214). After the passage of the Thirteenth Amendment, 
significant numbers o f black Louisianans registered to vote. 
Id. at 210 (If 215). Beginning in 1896, however, Louisiana 
enacted laws intended to reduce black voting; black 
registration decreased by 90% within a few years. App. 
121a; id. at 210a-211a fl[ 215-219). In 1921, an amendment 
to the State Constitution required persons seeking to register 
to vote to ‘“ give a reasonable interpretation’” of a 
constitutional provision. Id. at 122a, 21 la-212a ( t  221). 
That amendment, which disenfranchised most black citizens, 
was not invalidated until 1965. Louisiana v. United States, 
380 U.S. 145 (1965). After an all-white Louisiana 
Democratic primary was invalidated, the party then adopted 
an anti-single-shot rule and a majority-rule requirement for 
party office. App. 122a; id. at 212a (f 222); Major v. Treen, 
51A F. Supp. 325, 340-41 (E.D. La. 1983).

The School Board’s history of discrimination in education 
against black citizens demonstrates its motive for wanting to 
continue 12 majority-white districts. The schools in Bossier 
Parish are segregated by race. App. 123a-124a (four 
elementary schools have predominantly black enrollments);

30



31

id. at 217a-218a flflf 240-242). While the District’s total 
school enrollment is only 29% black, Bossier and Butler 
Elementary Schools, whose attendance areas are adjacent to 
one another in Bossier City, were 77% and 74% black in 
1994. U.S. Exh. 84YY; U.S. Exh. 84KK. Likewise, both 
schools in Board Member Thomas Myrick’s district in the 
northern portion of the Parish have become more than 75% 
black, J.A. 247-248, a telling contrast to the Board’s claim 
periodically in this litigation that black residential population 
is not sufficiently concentrated to permit it to draw majority- 
black voting districts. So long as black voters had no voice, 
and their children are largely isolated in predominantly black 
schools, the Board could safely ignore their concerns. For 
decades this has been the case.

The Board maintained de jure  segregation in its schools 
long after Brown v. Board o f  Education, 347 U.S. 483 
(1954). App. 122a; id. at 216a 235). While the Board has
been a defendant for more than 30 years in the school 
desegregation case of Lemon v. Bossier Parish School Board,
C.A. No. 10,687 (W.D. La.), it still has not fulfilled its 
constitutional obligations to remedy segregation and establish 
a unitary school district. App. 122a-124a See Lemon v. 
Bossier Parish Sch. Bd., 240 F. Supp. 709 (W.D. La. 1965), 
a ff’d, 370 F.2d 847 (5th Cir.), cert, denied, 388 U.S. 911 
(1967).

The parties stipulated that the “Board for years sought to 
limit or evade its desegregation obligations.” App. 216a 
(If 237). The Board used techniques such as assigning “black 
children of Barksdale Air Force Base personnel to black 
schools without a right, to transfer to white schools [on 
grounds] that they were ‘federal children’ and not within the 
‘jurisdiction’ of the school district.” Id. at 216a-217a (1j 237). 
Judge Wisdom rejected the Board’s “new and bizarre excuse 
for rationalizing [its] denial of the constitutional right of 
Negro school children to equal educational opportunities as 
white children.” App. 217a (f 237) quoting Bossier Parish 
School Bd. v. Lemon, 370 F.2d 847, 849 (5th Cir. 1967). The 
federal courts rejected the Board’s “freedom of choice” and



32

other student assignment plans, including one that proposed 
to assign students to schools in Plain Dealing on the basis of 
their scores on the California Achievement Test. App. 217a 
(f 238). See Hall v. St. Helena Parish Sch. Bd., 417 F.2d 801 
(5th Cir. 1969); Lemon v. Bossier Parish Sch. Bd., 421 F.2d 
121 (5th Cir. 1970); Lemon v. Bossier Parish Sch. Bd., 444 
F.2d 1400 (5th Cir. 1971).

While the school desegregation consent decree requires the 
Board to follow Singleton standards and assign teachers to 
schools by race in approximately their proportion in the 
District as a whole, the Board has assigned black teachers 
disproportionately to predominantly black schools, such as 
Bossier and Butler Elementary Schools, contributing to their 
increasing racial identifiability. See Singleton v. Jackson 
Mun. Separate Sch. Dist., 419 F.2d 1211, 1218 (5th Cir. 
1969), cert, denied sub nom. West Feliciana Parish Sch. Bd. 
v. Carter, 396 U.S. 1032 (1970); App. 217a-218a (Yf239- 
240); J.A. 281-287 (Lewis) (admitting deliberate assignment 
of more than 70% black faculty to predominantly-black 
Butler Elementary School, despite the fact that district-wide 
black faculty had declined to less than 10%).

As the court below recognized when it examined this 
evidence on remand, “the intent [this history] proves . . .  is a 
tenacious determination to maintain the status quo.” App. 7a. 
Black citizens have tried without success to alter these 
policies and practices. Bossier is required by federal court 
order to maintain a biracial committee to “recommend to the 
School Board ways to attain and maintain a unitary system 
and to improve education in the parish.” Id. at 182a ( f i l l ) .  
The Board admitted that, for decades, it simply ignored this 
requirement altogether. Id. at 182a-183a (f 112). In 1993, 
the Board established a committee; but when black members 
made policy suggestions, the Board unilaterally disbanded 
the committee. App. 184a (f 116); id. at 124a. As Board 
members admitted, they did not want this committee getting 
into “policy” questions. Id. Even in the face o f a federal 
court mandate to listen to the concerns of the black 
community, Bossier refused to do so. As a result, the black



33

citizens of Bossier Parish are effectively cut off from any 
opportunity to have a voice in the operation of their public 
schools. Adopting a redistricting plan with 12 majority- 
white districts continued this pattern of exclusion. This 
history, as the majority found on remand, “provides powerful 
support for the proposition th a t. . . Bossier . . . resisted 
adopting a redistricting plan that would have created majority 
black districts.” Id. at 7a.

C. Specific Sequence of Events Leading to the Decision 
to Adopt the Jury Plan.

The redistricting process began in May 1991, when the 
Board decided to develop its own plan rather than adopt the 
one previously accepted by the Police Jury in response to its 
own need to redistrict following the 1990 census. Throughout 
the 1980s the Jury and the Board had different election 
districts, but both had 12 single-member districts that were 
majority white. Id. at 79a-81a; 151a, 171a 22, 80-81).

Given the fact that the next School Board election was not 
scheduled until November 1994, there was no need for hasty 
Board action. Id. at 81a-82a. The Board hired Gary Joiner, 
the cartographer who had drawn the Jury plan. Id. He was 
hired to perform 200-250 hours of work, far more time than 
would be needed simply to recreate the Jury plan. Id. at 173a 
(t1  86-87).

On July 29, 1991, the Police Jury plan was precleared by 
the Justice Department. Id. at 80a. The parties stipulated, 
however, that members of the Police Jury were “specifically 
aware that a contiguous black-majority district could be 
drawn both in northern Bossier Parish and in Bossier City.” 
Id. at 154a, 160a-161a, 162a (Tf1f 36, 52-53, 57); the parties 
stipulated that it was “obvious that a reasonably compact 
black-majority district could be drawn within Bossier City.” 
Id. at 154a- 155a 36). Alternate configurations for a
contiguous majority-black district in the northern part of the 
Parish also could be created. Id. at 194a (f 148). However, 
the Police Jury deliberately misled the public, id. at 161a- 
162a (*[f 54), the only black police juror, id. at 159a flj 47),



34

and the Attorney General, id. at 165a-166a 65-66), by
claiming that drawing any majority-black district was 
impossible. Despite these misrepresentations, some black 
community groups opposed the plan and specifically asked 
that their letter expressing concerns about it be included in 
the Police Jury’s § 5 submission. Id. at 147a, 165a-166a 
(ffl 11, 65-66). The letter was not submitted.

School Board member Thomas Myrick participated in 
private meetings with Mr. Joiner and white police jurors 
during this time. App. 82a; id. at 159a-160a, 172a-173a 

48, 85).9 After these meetings, Mr. Myrick, who lives in 
an area that the parties stipulated “would likely be included 
in any majority-black district to be drawn in the northern part 
of Bossier Parish,” id. at 160a 48), recommended that the
Board adopt the Police Jury plan. Id. at 174a (f 90). “On 
September 5, 1991, however, the Board decided not to adopt 
the Jury plan, largely because it would pit incumbents against 
each other.” Id. at 125a (emphasis added). “Over the course 
of the next year, Board members considered a number of 
redistricting options.” Id. “Mr. Joiner met privately with 
Board members and demonstrated different possibilities to 
them on his computer.” Id. at 125a; 176a flj 96). These 
meetings were not open to the public, nor were there any 
recorded minutes or published notices of the meetings. Id. at 
126a; 176a (f 96).

While the School Board was meeting and planning in 
private, the black community was trying, unsuccessfully, to 
participate in public. Id. at 126a. In March of 1992, George 
Price, on behalf o f a coalition of black community groups, 
wrote to the Board asking to participate in its redistricting 
process. App. 82a; id. at 175a 93). Neither the Board nor
the Superintendent responded to this request. Id. In August

9 Despite the Board’s stipulations about Mr. Myrick’s 
meetings with Mr. Joiner and the Police Jurors, App. 159a-160a, 
172a-173a ( f l  48, 85), and Mr. Joiner’s live testimony about such 
meetings, J.A. 260-266 (Joiner), Mr. Myrick denied on the witness 
stand that any of them took place. J.A. 247-258 (Myrick). The
D.C. District Court rejected Mr. Myrick’s testimony. App. 82a.



35

of 1992, Mr. Price sent another letter asking specifically to be 
involved in every aspect of the redistricting process. Id. 
(194).

Frustrated by the Board’s unresponsiveness, Mr. Price 
contacted the NAACP Redistricting Project in Baltimore, 
Maryland. Id. at 177a (198). The Project was able to 
develop a partial plan for Mr. Price to discuss with the 
School Board. That illustrative plan consisted of two 
majority-black districts. Id. The plan did not show the other 
10 districts that would make up the Parish. Id. When Mr. 
Price gave this information to a school district official, he 
was told that it would not even be considered because it only 
showed two districts. Id. (]f 99). Mr. Price went back to the 
NAACP, and a complete 12-district illustrative plan was 
drawn up. Id. The parties stipulated that this plan 
demonstrated that “two contiguous districts with a black 
voting age population majority can be drawn within Bossier 
Parish for the Bossier Parish School Board.” Id. at 192a 
(1143).

On September 3, 1992, when Mr. Price appeared on behalf 
o f the black community at a Board meeting and presented a 
new plan showing all 12 districts, including 10 
majority-white and two majority-black districts, the Board 
dismissed it summarily, claiming incorrectly that it could not 
even consider any plan that split precinct lines. Id. at 177a- 
179a flflj 100-102). Until that time, however, the School 
Board had been actively considering alternatives to the Police 
Jury plan, almost all of which would have split precincts. See 
App. 107a; id. at 151a, 174a (ff  23, 89).

At the Board’s next meeting, on September 17, 1992, 
Mr. Price again presented the NAACP’s illustrative plan. Id. 
at 179a-180a (f 106). Instead of discussing the plan with Mr. 
Joiner, or asking him to further analyze the possibility of 
drawing black-majority districts without splitting precincts 
(the Board’s purported reason for rejecting the plan, but see 
id. at 151a (123)), the Board responded by immediately 
passing a motion of intent to adopt the Jury plan. Id. at 127a.



36

Around this time, a narrow majority of the Board appointed 
Jerome Blunt as the first black person ever to serve on the 
Board. Id. at. 84a. Mr. Blunt was appointed to a six-month 
term representing an 11% black district. Id. at 84a-85a. He 
was sworn in at the September 17, 1992, meeting but was 
defeated by a white candidate in the special election six 
months later. Id. at 85a As Judge Kessler observed:

Certainly, Board members knew that adopting the Police 
Jury plan would ignite controversy in the black 
community. And on the very night of that decision, the 
School Board appointed a black to fill a seat that they 
knew he would be unable to hold, hoping to quell the 
political furor over adoption of the Police Jury plan. [Id. 
at 133a-134a n.9.]

On September 24, 1992, an overflow crowd attended the 
state-mandated public hearing on the redistricting plan. Id. at 
85a. Fifteen people spoke against the Board’s proposed plan, 
most of whom objected because it would dilute minority 
voting strength. App. 85a; id. at 180a-181a (f 108). Not a 
single person spoke in favor of the plan. Id. At this hearing, 
Mr. Price also presented the Board with a petition signed by 
more than 500 Bossier Parish residents, asking the Board to 
consider an alternative redistricting plan. Id. at 85a. This was 
the largest petition presented to the Board on any subject in 
years. Id. at 180a 108).

Despite the one-sided input from Bossier citizens, and 
despite the fact that elections still were more than two years 
away, the Board voted, at its very next meeting on October 1, 
1992, to adopt the Jury plan. While Jerome Blunt encouraged 
the other Board members to explore the issues being raised 
by the black community, the Board refused. J.A. 125-130 
(Blunt); id. at 80-83 (U.S. Exh. 36). Mr. Blunt abstained 
from the vote in protest, id; but the white majority present 
voted unanimously for the Jury plan. App. 85a. Neither at 
this hearing nor at its other meetings did the Board members 
explain on the record their reasons for their support of the 
Police Jury plan. See J.A. 60-69, 72-83 (U.S. Exhs. 23-36). 
Thomas Myrick, in the one verbatim statement concerning



37

redistricting recorded in two years of Board minutes, told Mr. 
Blunt that this was not a question of “black and white” but of 
“majority rule.” J.A. 80-83 (U.S. Exh. 36 at 67). The 
Board’s minutes reflect an unexplained retreat to the Police 
Jury plan that it had rejected a year earlier. J.A. 72-77, 80-83 
(U.S. Exhs. 32, 34, 36). Thus, no perceived strengths of the 
Police Jury plan are discussed or documented anywhere on 
the public record of the Board’s action. As with the meetings 
of September 3 and September 17, 1992, the minutes of this 
meeting reflect virtually no substantive consideration of the 
Police Jury plan.

The D.C. District Court concluded that “[wjhen . ..  the 
redistricting process began to cause agitation within the black 
community, . . .  the Police Jury plan became, as Board 
member Myrick described it, ‘expedient.’” App. 106a. The 
Jury plan only became “expedient” when the Board was 
publicly confronted with an illustration that alternatives to 12 
white-majority districts were possible. Faced with the 
growing frustration of the black community at being 
excluded from educational policy decisions and from the 
electoral process, the only way for the Board to ensure a plan 
with all majority-white districts was to adopt the Jury plan 
quickly, despite its other drawbacks. App. 128a; id. at 85a, 
106a.

D. Board Departures from Normal Practice.

The sequence of events described in section C. above 
illustrates numerous departures from normal practice in the 
Board’s consideration and adoption of the Jury plan. 
Procedurally, the Board rushed to a decision, with no 
upcoming election, upon being confronted with a 
demonstration that majority black election districts could be 
drawn. The Board departed from the conduct expected of 
elected officials when it adopted the Jury plan in defiance of 
the contrary views of every speaker at the public hearing and 
in the face of the largest petition it had received in recent 
years on any issue. The Board hid its real deliberations from 
the public, made no official record of its reasoning, and



38

ignored the efforts o f leaders in the black community to be 
included.

On the substance of the plan as well, the Board reached a 
result contrary to its own districting goals and traditional 
principles that would be expected to govern the development 
of an election plan for a school board. See page 29, supra. 
The D.C. District Court majority below evaluated these 
departures from traditional districting practice as part of its 
analysis of the “effect” of the plan. App. 6a. The D.C. 
District Court summarized its earlier findings as “tending to 
establish that the board departed from its normal practices,” 
and found that this “establishes rather clearly that the board 
did not welcome improvement in the position o f racial 
minorities with respect to their effective exercise of the 
electoral franchise.” Id. at. 7a.

E. Contemporary Statements of Participants.

The motivation that School Board member Thomas Myrick 
described on the stand as “expediency,” he and other Board 
members spoke about more candidly in private. Mr. Myrick, 
who lives in one of the areas that could accommodate a 
black-majority district and that contains two schools ~  both 
of which have student enrollments that are more than 75% 
black -  told black leaders that he would not “let [them] take 
his seat away from him.” Id. at 83a n.4. School Board 
member Henry Bums told a black acquaintance that “while 
he personally favors having black representation on the 
board, other school board members oppose the idea.” Id. at 
83a n.4. The School Board offered no evidence denying or 
explaining this statement. School Board member Barry 
Musgrove told a prominent black leader that “while he 
sympathized with the concerns of the black community, there 
was nothing more he could do . . .  on this issue because the 
Board was ‘hostile’ toward the idea of a black-majority 
district.” Id.

In subsequent efforts to justify the unexplained reversal of 
its initial decision and its refusal to consider alternatives from 
the black community, the Board later offered the Attorney



39

General and the District Court a series of pretextual 
explanations, including several which the majority itself 
found “clearly were not real reasons.” Id. at 106a n.15. For 
example, the Board argued that it adopted the Police Jury 
plan (on October 1, 1992) to comply with Shaw v. Reno, 509 
U.S. 630 (1993) (decided June 28, 1993) even though Shaw 
was decided nine months after the Board adopted its plan. Id.

The Board also reiterated its claim that it could not adopt a 
plan with fewer than 12 majority-white districts because any 
such plan would require precinct-splitting, which it 
erroneously claimed violates state law. App. 135a. The 
majority found, however, that when “the School Board began 
the redistricting process, it likely anticipated the necessity of 
splitting some precincts.” Id. at 108a. Indeed, the majority 
found and the parties stipulated that the Board was aware 
when it entered the redistricting process that if it did not 
adopt the same plan as the Police Jury, it would need to have 
new precincts established. App. 108a, id. at 174a (f 89). Yet 
the Board hired Gary Joiner to perform 200 to 250 hours of 
work, far more than would be necessary simply to recreate 
the Jury Plan. Id. at 173a flffl 86-87).

But it was only after the black community presented its 
alternative plan that the School Board proffered the “no 
precinct-splitting” rationale. Furthermore, while the Board 
itself may not split precincts, police juries have the authority 
to establish and modify precinct lines, and many do so when 
requested by a school board. Id. at 148-152a, 164a flflj 13-25, 
60-61). Here, as the majority found, the Board never made 
such a request. Id. at 84a.

Bossier’s final later-proffered justification for adopting the 
Police Jury plan was that it guaranteed preclearance; that is, 
the Attorney General would approve the Board’s plan 
because it was identical to the Jury plan which already had 
been precleared. Id. at 137a. However, “guaranteed pre­
clearance” was not the Board’s objective; if it had been, the 
Board would not have waited until October 1, 1992 — almost 
14 months after the Jury plan was precleared — to adopt it. 
Id. Moreover, adopting a plan with one or more majority-



40

black districts certainly would not have made preclearance 
less likely. To the contrary, given the Board’s history and the 
Attorney General’s position, the Board could not reasonably 
have believed that a plan that would both honor traditional 
districting principles and improve the opportunity of black 
citizens to participate in the political process would have had 
less chance of preclearance than the Police Jury plan.

For all of these reasons, this Court should reverse the 
judgment below.

CONCLUSION

Respectfully submitted,

Barbara R. Arnwine 
Thomas J. Henderson 
Edward Still 

Lawyers’ Committee for 
Civil Rights Under Law 
1450 G Street, N.W., Suite 400 
Washington, D.C. 20005 
(202) 662-8600

Patricia A. Brannan* 
John W. borkowski

Hogan & Hartson l.l.p. 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202) 637-8686

* Counsel of Record Counsel for Appellants 
George Price, et al.

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This collection and the tools to navigate it (the “Collection”) are available to the public for general educational and research purposes, as well as to preserve and contextualize the history of the content and materials it contains (the “Materials”). Like other archival collections, such as those found in libraries, LDF owns the physical source Materials that have been digitized for the Collection; however, LDF does not own the underlying copyright or other rights in all items and there are limits on how you can use the Materials. By accessing and using the Material, you acknowledge your agreement to the Terms. If you do not agree, please do not use the Materials.


Additional info

To the extent that LDF includes information about the Materials’ origins or ownership or provides summaries or transcripts of original source Materials, LDF does not warrant or guarantee the accuracy of such information, transcripts or summaries, and shall not be responsible for any inaccuracies.

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