Reno v. Bossier Parish School Board Brief of Appellants
Public Court Documents
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.