State of Louisiana v. United States of America Motion to Dismiss

    Nos. 89-556, 89-557, and 89-771

IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1989

STATE OF LOUISIANA, EX REL. WILLIAM J. GUSTE, JR., ET AL.,
APPELLANT

v .

UNITED STATES OF AMERICA

BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY AND 
AGRICULTURAL AND MECHANICAL COLLEGE, APPELLANT

v .

UNITED STATES OF AMERICA

STATE OF LOUISIANA EX REL. CHARLES E. "BUDDY" ROEMER, III,
ET AL., APPELLANT

v .

UNITED STATES OF AMERICA

ON APPEALS FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

MOTION TO DISMISS

KENNETH W. STARR 
Solicitor General

JAMES P. TURNER
Acting Assistant Attorney General 

ROGER CLEGG
Deputy Assistant Attorney General

JESSICA DUNSAY SILVER 
MARK L. GROSS 
Attorneys
Department of Justice 
Washington. D.C. 20530 
(202) 633-2217



QUESTION PRESENTED
Whether the action filed by the United States against the 

State of Louisiana and others required the convening of a three 
judge district court under 28 U.S.C. 2281 (1970 ed.) (repealed 
1976), thereby vesting this Court with appellate jurisdiction 

under 28 U.S.C. 1253.

(I)



IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1989

No. 89-556
STATE OF LOUISIANA, EX REL. WILLIAM J. GUSTE, JR., ET AL.,

APPELLANT
v.

UNITED STATES OF AMERICA

No. 89-557
BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY AND 
AGRICULTURAL AND MECHANICAL COLLEGE, APPELLANT

UNITED STATES OF AMERICA

NO. 89-771
STATE OF LOUISIANA EX REL. CHARLES E. "BUDDY" ROEMER, III,

ET AL., APPELLANT
v.

UNITED STATES OF AMERICA

ON APPEALS FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

MOTION TO DISMISS

OPINIONS BELOW
The opinion of the district court (J.S. App. 3a-38a) is 

reported at 692 F. Supp. 642.A/ The opinion of the district 
court approving the remedial plan (J.S. App. 39a-77a) is reported 
at 718 F. Supp. 499. The opinion of the district court on 
motions to alter or amend the judgment (J.S. App. 81a-104a) is 
reported at 718 F. Supp. 525. The opinion of the district court 
on motions to stay, together with its supplemental order (J..-. 
App. 78a-80a, 105a-108a), are reported at 718 F. Supp. 521.

■1/ "J.S. App." refers to the joint appendix to the
jurisdictional statements in Nos. 89-556 and 89-557, unless
otherwise indicated.



2
i JURISDICTION

The judgment of the district court was entered on August 4, 
1989. J.S. App. 78a-80a. The notices of appeal in Nos. 89-556 
and 89-557 were each filed on August 10, 1989. J.S. App. 1157a- 
1160a, 1161a-1163a. The notice of appeal in No. 89-771 was 
filed on September 29, 1989. 89-771 J.S. App. 210a-212a. The
jurisdiction of this Court is invoked under 28 U.S.C. 1253.2/
For the reasons stated, see pp. 11-16, infra, this Court lacks 

• jurisdiction over these appeals.
STATEMENT

1. a. In 1974, after the United States Department of 
Health, Education, and Welfare had notified the State of 
Louisiana that, in the Department's view, it was operating a 
racially segregated system of higher public education, the 
Attorney General of the United States filed this action in the 
Middle District of Louisiana under Title VI of the Civil: Rights 
Act of 1964, 42 U.S.C. 2000d, and the Fourteenth Amendment. The 
complaint named the State and.the State's several boards of 
higher education as defendants. As relief, the United States 
sought an order enjoining the defendants from maintaining its 
segregated system and an order requiring them "to develop, submit 
and implement detailed plans which promise realistically and 
promptly to eliminate all vestiges of a dual system of higher 
education existing within the State of Louisiana * * *." J.S. 
App. 163a; see id. at 9a-10a.

Along with the complaint, the United States filed a formal 
request that the district court convene a three-judge court under 
28 U.S.C. 2281 (1970 ed.) (repealed 1976) and 28 U.S.C. 2284./

2/ Section 1253 provides in pertinent part that
any party may appeal to the Supreme Court from an order 
granting or denying, after notice and hearing, an 
interlocutory or permanent injunction in any civil 
action, suit, or proceeding required by any Act of 
Congress to be heard and determined by a district court 
of three judges.

2/ 28 U.S.C. 2281 (1970 ed.) provided in pertinent part:
An interlocutory or permanent injunction restraining

(continued...)

I



3
See J.S. App. 184a-196a. That request was granted in March 
1974. See id. at 197a-198a. After the restructuring of the 
State's higher education boards in 1976,4/ the parties jointly 
moved to substitute the following defendants: appellant Board of
Regents, appellant Board of Supervisors of Southern University 
and Agricultural and Mechanical College (Southern Board), 
appellant Board of Trustees for State Colleges and Universities 
(State College Board), and appellant Board of Supervisors of 
Louisiana State University and Agricultural and Mechanical 
College (LSU Board). Id. at 10a.•§/

2/ (...continued)
the enforcement, operation or execution of any State 
statute by restraining the action of any officer of 
such State in the enforcement or execution of such 
statute * * * shall not be granted by any district 
court or judge thereof upon the ground of the 
unconstitutionality of such statute unless the 
application therefor is heard and determined by a 
district court of three judges under section 2284 of 
this title.
Congress, by the Act of Aug. 12, 1976, Pub. L. No. 94-381, § 

1, 90 Stat. 1119, repealed 28 U.S.C. 2281. That repeal does not 
affect this case because the complaint was filed before the 
repeal's effective date, August 12, 1976. See Act of Aug. 12, 
1976, Pub. L. No. 94-381, § 7, 90 Stat. 1120; see also Lewis v.
BT Inv. Managers. 447 U.S. 27, 30 n.l (1980).

1/ In 1974, Louisiana established the current four-board 
system for governing the State's public colleges and 
universities. See La. Const, of 1974, art. 8, §§ 5-7. The Board 
of Regents "has general responsibility for planning, coordinating 
and reviewing the budgets and academic program offerings of each 
state university." J.S. App. 40a. The remaining three boards, 
the Board of Supervisors of Southern University and Agricultural 
and Mechanical College, the Board of Trustees for State Colleges 
and Universities, and the Board of Supervisors of Louisiana State 
University and Agricultural and Mechanical College, each have 
"direct management authority for a number of" those state 
schools. Ibid.

The Board of Supervisors of Southern University oversees the 
following Southern University campuses —  Southern at Baton 
Rouge, Southern at New Orleans, and Southern at 
Shreveport/Bossier City. The Board of Trustees for State 
Colleges and Universities oversees the following state schools —  
Louisiana Tech, Grambling State, University of Southwestern 
Louisiana, Northeast Louisiana, Northwestern State, Southeastern 
State, McNeese State, Nicholls State, and Delgado Community 
College. The Louisiana State University Board of Supervisors 
oversees the LSU system of colleges, including LSU at Baton 
Rouge, LSU at Shreveport, LSU at Alexandria, LSU at Eunice, and 
the University of New Orleans. See J.S. App. 40a-41a.
2/ in No. 89-556, the Attorney General of the State of 

Louisiana has filed a jurisdictional statement on behalf of 
defendant/appellant State of Louisiana. In No. 89-557, the 
Southern Board has filed its own jurisdictional statement. And

(continued...)



4
In August 1980, the district court, with the parties' 

consent, transferred the case to the Eastern District of 
Louisiana under 28 U.S.C. 1404(a). Trial was scheduled for 
September 1981. J.S. App. 10a.

b. In anticipation of trial, the parties developed a 
comprehensive record. The record showed that the State had 
segregated its colleges "up to at least 1954" and continued the 
schools' racial exclusivity through the mid-1960s. J.S. App.
5a. Although the State had implemented an "open admissions" 
policy that permitted, students of both races to attend all 
schools, the student enrollment and faculty employment pattern of 
Louisiana's colleges, as of 1973, remained segregated:^/

School % black % black
students faculty

historically white schools
LSU system 7.7 1.6
Louisiana Tech. Univ. 6.2 0.0
McNeese State 8.4 0.5
Nicholls State Univ. 5.5 2.1
Northeast Louisiana Univ. 9.3 1.7
Northwestern Louisiana Univ. 10.2 1.6
Southeastern Louisiana Univ. 4.2 0.7
Univ. of Southwestern Louisiana 8.3 3.2

historically black schools
Southern Univ. system 99.3 87.2
Grambling State 99.1 77.7

See J.S. App. 164a-165a.
Depositions were also taken of experts who had considered 

the effect of the State's dual system on educational concerns 
such as academic offerings, physical facilities, and 
apportionment of resources among the various state schools. 
Those experts concluded that the State, together with appellant

5/ (. . .continued)
in No. 89-771, the Governor of the State of Louisiana has filed a 
jurisdictional statement on behalf of the following 
defendants/appellants: the State, the Board of Regents, the
State College Board, and the LSU Board. We will refer to the 
jurisdictional statement in No. 89-556 as "Att. Gen. J.S.," the 
jurisdictional statement in No. 89-557 as "Southern J.S.," and 
the jurisdictional statement in No. 89-771 as "Gov. J.S."

The record also showed that, as of 1981, the membership of 
appellants LSU Board and State College Board was predominantly 
white, while that of appellant Southern Board was predominantly 
black. J.S. App. 44a.



5
Boards, had created the following inequalities under the dual 
system they had perpetuated: (1) historically white colleges
received more desirable and better conditioned physical 
facilities than historically black colleges; (2) historically 
white colleges obtained superior and more diverse academic 
programs than historically black colleges;-Z/ and (3) current 
financial assistance formulas maintained, and did not eliminate, 
the unequal effect of past funding deficits at historically black 
colleges

In other words, segregation in Louisiana's higher education 
accomplished not only the separation of students by race, but 
also created inequalities in educational opportunities. Those 
inequalities, together with the proximate placement of black and 
white schools with overlapping curricula, continued the racial 
identifiability of the State's schools, and discouraged white 
students from attending the traditionally black schools, even 
after the State abolished formal segregation in the wake of Brown 
v. Board of Educ.. 347 U.S. 483 (1954). See, e.q.. J.S. App. 44a, 
670a, 689a.

2. a. After extensive briefing and lengthy pretrial 
conferences, the United States and appellants entered into a 
consent decree. The district court approved the decree in 
September 1981, concluding that it "embodies a reasonable and 
specific system-wide desegregation plan which promises 
realistically to work." J.S. App. 266a. Under the consent 
decree, see id. at 199a-255a, the State agreed to take the

2/ In this regard, one expert noted that the academic 
offerings at white colleges located near historically black 
schools were not only better, but also duplicated the course 
offerings at those black schools. See C. Conrad, Louisiana 
Curriculum Analysis (Mar. 30, 1981), attached to Deposition of 
Clifton F. Conrad (Apr. 13, 1981).
OS See generally C. Conrad, Louisiana Curriculum Analysis 

(Mar. 30, 1981), attached to Deposition of Clifton F. Conrad 
(Apr. 13, 1981); H. Kaiser, Facilities Evaluation of Eight 
Institutions of Higher Education of the State of Louisiana (Mar. 
10, 1981), attached to Deposition of Harvey Kaiser (Apr. 7,
1981); L. Leslie, The Financial Conditions of Historically Black 
and Comparable Louisiana Institutions of Higher Education (Mar. 
23, 1981), attached to Affidavit of Larry L. Leslie (May 9,
1988) .



6
following remedial measures: (1) increase other-race membership
on the four governing boards, appellants Board of Regents,
Southern Board, State College Board, and LSU Board; (2) recruit 
other-race students to historically white and black schools 
through open admissions, increased information and recruitment 
campaigns, and additional student financial assistance; (3) 
increase faculty integration and provide educational 
opportunities to blacks in order to increase the number of black 
faculty members; and (4) increase faculty and student exchange 
programs and cooperative degree programs between historically 
white and black schools located near each other. See id. at 
199a-r220a.2/ The consent decree also committed the State to 
placing new academic programs at the historically black schools, 
id. at 222a-228a, as well as making significant capital 
improvements and increasing financial support for those schools, 
id. at 228a-231a.lS/

b. As of late 1987, six years after the decree had been 
entered, the student enrollment figures for the state colleges 
had scarcely changed. Grambling remained 98.5% black, and 
Southern's Baton Rouge campus remained 86% black. With two 
exceptions,!^ all the former historically white schools 
remained over 80% white. See J.S. App. 7a; see also p. 4, supra. 
The three governing boards, appellants Southern Board, LSU Board, 
and State College Board, also remained racially identifiable.
See J.S. App. 661a; note 6, supra. The State had spent only $34 
million of the $125 million earmarked for capital improvements, 
and had failed fully to fund other financial and academic aspects

1/ For example, Grambling and Louisiana Tech are located in 
Lincoln Parish. LSU's Baton Rouge campus is nearby Southern's 
Baton Rouge campus, as are LSU's and Southern's respective 
schools in New Orleans.
1°/ Parts IV and V of the decree specifically provided th it 

the decree (and the court's jurisdiction over the action) wou’. d 
expire on December 31, 1987, unless a party filed a motion fcetore 
that date "either to seek compliance with [the decree] or to seek 
other relief necessarily implicating [the decree] * * *." J.S. 
App. 235a; see id. at 11a.
il/ Northwestern State's student body had become 66% white; 

the University of New Orleans' student body had become 75% 
white. See J.S. App. 7a; see also p. 4, supra.



7
of the decree. See J.S. App. 364a. In these circumstances, the 
United States was of the view that the State and appellant Boards 
had not fully eliminated the vestiges of segregation. And in 
light of the continuing inequalities between the historically 
white and black schools and the proximate placement of such 
schools with overlapping curricula, the United States considered 
that students in Louisiana did not have a truly "unfettered 
choice" of where to attend school. See Bazemore v. Friday. 478 
U.S. 385, 407 (1986) . -

c. In late December 1987, the United States therefore 
exercised its right under the consent decree and filed a motion 
with the district court that requested "a hearing * * * for the 
purpose of determining whether [appellants] have fully 
implemented all provisions of [the decree] and are operating the 
[Louisiana state] system of public higher education on a unitary 
basis." J.S. App. 267a. Appellant Southern Board, although 
aligned as a defendant in the action, joined the United States' 
motion, contending, among other things, that the State had not 
fulfilled "its commitment [under the decree] to enhance 
predominantly black institutions," had not satisfied "the equal 
opportunity provisions of the decree," and had not otherwise 
implemented [the decree] in good faith." Id. at 563a.

In lieu of an evidentiary hearing, the parties submitted 
"hundreds of pages of briefs and exhibits," and filed cross­
motions for summary judgment on the issue of liability. J.S.
App. 4a.

3. In August 1988, the district court held that appellants 
were continuing to operate "an unlawful, dual system of public 
higher education in violation of Title VI." J.S. App. 4a. The 
court found that the State, through the supervision of appellmt 
Board of Regents and each of the other appellants, operates ; 
institutions. Four institutions "that were originally 
established as 'black* schools [including Southern] * * * remain 
predominantly black"; the eleven institutions "that were 
originally established as 'white schools' * * * remain



8
predominantly, and disproportionately, white." Id. at 5a, 6a.
The court noted that the other four schools "are all
predominantly, and disproportionately, white." Id. at 6a. The
court also found that "the four board[s] governing these twenty
schools suffer from similar racial exclusivity. The Southern
Board remains over three-fourths black, while the other three
boards are between 70% and 80% white." Id. at 9a. Thus, the
court fully accepted appellant Board of Regent*s concession that
"the racial identifiability of Louisiana's public colleges and
universities persists today is * * * undisputed." Ib.jd■
(internal quotation marks omitted; ellipsis in original).

Turning to the merits of the controversy, the district court
determined that "[i]n failing to achieve a truly unitary system
at the higher level of public education, the State continues to
provide polarization and separation on a racial basis." J.S.
App. 33a. ̂-2/ The court acknowledged the State's interest in
fostering "freedom of choice," but concluded that

although the State has the authority, and should be 
encouraged, to promote different and unique types of 
higher learning institutions, the State fails when it 
fosters two universities or colleges in close 
geographic proximity offering overlapping courses and 
programs —  especially where one is predominantly black 
and one is predominantly white.

Id. at 34a.
4. In December 1988, the district court appointed a special 

master, under Fed. R. Civ. P. 53, and charged him with the 
responsibility "to review the proposed [remedial] plans submitted 
by the parties and to conduct hearings regarding the viability of 
the proposed plans, and any other appropriate remedial measures." 
J.S. App. 626a-627a; see also id. at 577a-578a, 579a-581a.

In May 1989, after holding hearings and1receiving 
submissions from the parties, the special master issued his final 
report. See J.S. App. 623a-715a. That report recommended 
detailed and comprehensive measures to overhaul the State's

12/ The court also stated that the consent decree's increased 
funding could not desegregate the system because that funding 
would neither eliminate the duplication of course offerings 
between proximate white and black schools, nor attract white 
students to the historically black schools. J.S. App. 34a-35a.



9
higher education system, including: (1) abolishing the State's
current four-board structure and replacing it with a single 
governing board responsible for implementing and overseeing 
specific changes in the school system (id. at 652a-665a); (2)
creating "campus-based advisory committees [to] help * * * 
maintain channels of communication between institution and 
board" (i£. at 665a); (3) classifying institutions ("tiering") 
and implementing selective admissions standards —  as opposed to 
the then statewide policy of open admissions (id. at 667a- 
680a ) (4) implementing a "community college system" (id. at 
680a-688a); (5) reducing instances of "program duplication" among
schools (id. at 689a-69la); (6) and taking steps to desegregate 
LSU Law Center (short of merger with the predominantly black 
Southern Law Center), such as offering substantial scholarships 
to black students, undertaking "vigorous recruitment efforts," 
and setting a "10 percent category of admissions exceptions [for 
minority applicants]" (id. at 692a, 693a).

5. In July 1989, after receiving comments and objections 
from the parties, the district court issued an order generally 
accepting the special master's report and recommendations. See 
J.S. App. 39a-77a. With respect to the State's current four- 
board structure, the district court observed that "[g]iven the 
racially identifiable membership of the Boards, none, including 
the Southern board which vigorously seeks to preserve its 
separate identity, is an exponent of racial integration." Id. at 
44a. It then found that "[t]he present scheme for governing 
education in Louisiana —  three operating boards and one 
coordinating board —  has perpetuated illegal segregation in 
Louisiana's higher education, even though the system's creation 
postdates the filing of this case." Id. at 45a. The court 
therefore concluded that "[t]he system of multiple boards is

1^/ The report recommended establishing three separate "tiers" 
of schools —  a flagship school (LSU), doctoral institutions 
(including Southern University), and comprehensive institutions 
(including Grambling) —  with the new governing board to adopt 
more select admissions criteria appropriate to each "tier." See 
J.S. App. 667a-680a.



10
* * * a defect in the state's system of higher education that 
violates the federal constitution." Ibid. Accordingly, the. 
court ordered that "the four boards currently governing public 
higher education in Louisiana shall be disbanded [within 30 days] 
and their powers consolidated into a single state governing 
board." Id. at 63a.14/

Turning to problem of the effects of racial segregation on 
legal education in Louisiana, the district court found that as 
long as the two institutions of disparate quality exist" —  
Southern Law Center and LSU Law Center —  "the State will 
continue to produce a secondary class of lawyers unable to 
compete fully in the professional context." J.S. App. 61a. The 
court further found that "[g]iven the racial composition of the 
two schools, the negative impact of this disparity will fall 
largely upon the black student population, and given the consent 
decree experience, a simple provision of funds will not resolve 
this problem, even assuming such funding is a realistic 
possibility." Ibid.-^/ Accordingly, the district court did not 
accept the special master's recommendation to defer a merger of

14/ The new board would consist of 17 voting members (and one 
non-voting student member); the voting members would be appointed 
by the Governor and confirmed by the Louisiana Senate. J.S.
App. 64a-65a. In addition, the board would have "the special 
mission of monitoring and implementing [the court's remedial 
order] and of insuring that progress toward eliminating 
Louisiana's racially dual education system if achieved." Id. at 
63a.

The district court, agreeing with other recommendations 
filed by the special master, specifically charged the new board 
with a variety of tasks within certain deadlines, including: 
developing and implementing procedures for the use of advisory 
committees at each school (J.S. App. 66a); implementing a scheme 
for classifying each school with regard to programs and 
admissions standards (id. at 66a-68a); developing selective 
admission requirements to replace the "traditional system of open 
admissions to all state universities" (id. at 68a); drafting a 
comprehensive plan for a community college system (id. at 70a- 
71a); and implementing "a system of enrollment management, 
program review and program transfer to address the problem of 
program duplication and accompanying waste of resources and 
segregation" (id. at 71a).

15/ AS the court observed, "Southern Law Center is 
desegregated, with a student body of 58 percent black and 42 
percent white and a faculty (including part-time) which is 
virtually 50/50." J.S. App. 60a. LSU Law Center, on the other 
hand, "has a minuscule percentage of black students. During the 
period of the consent decree, it ranged from 1.9 percent to 0.8 
percent. In 1988, it was only three percent." Ibid.



11
the two schools. Instead, the court directed the newly created 
board, over the next five years, to "develop a plan for merger of 
the two schools * * * [that] will minimize the necessary 
adjustment by the students, administration, and faculty and the 
impact of curriculum change." Ibid.l^

6. On August 4, 1989, after modifying its remedial order in 
certain respects, see J.S. App. 81a-99a, the district court 
denied motions to stay its orders, see id. at 78a-80a.A2/ On 
August 18, this Court stayed the district court's orders pending 
the timely docketing and disposition of appeals then filed by 
the Southern Board (No. 89-557) and the Attorney General on 
behalf of the State (No. 89-556). Id. at 2a.IS/

ARGUMENT
These separately docketed appeals bring before this Court 

the federal government's longstanding challenge to the State of 
Louisiana's failure to eliminate the lasting effects of its 
racially segregated system of higher public education. In our 
view, however, the action filed by the United States in 1974 did 
not reguire the convening of a three-judge district court under 
28 U.S.C. 2281 (1970 ed.) (repealed 1976). As a result, the 
Court at this time lacks appellate jurisdiction under 28 U.S.C.

1§/ The court also ordered the board, by the 1990-1991 school 
year, to "begin implementing the merger of Southern Law Center 
into the LSU Law Center," and specifically directed the LSU Law 
Center to "undertake as soon as practicable, but no later than 
the 1990-1991 school year, vigorous efforts for recruiting 
blacks, including ten percent admissions exceptions for black 
students, offering scholarships to prospective black students and 
.appointing a special admissions officer for black students 
* * *." J.S. App. 72a, 73a.
12/ At this point in the litigation, the State began to speak 

with two voices. Although the State's Attorney General sought a 
stay of the district court's orders, the Governor of Louis iir. i 
also filed a brief with the district court. The Governor, cn 
behalf of the State of Louisiana, opposed the motion to stay.
See J.S. App. 81a n.2. The dispute over the State's legal 
representation continues before this Court. See note 5, supra.
!§/ on Septembe_ 29, 1989, the Governor of Louisiana, also on 

behalf of the State, filed a separate notice of appeal in No. 89- 
771. See J.S. App. 210a-212a.



12
1253 and the appeals must be dismissed. E.g. . Weinberger v.
Saifi. 422 U.S. 749, 763 n.8 (1975).

1. Appellants each invoke this Court's jurisdiction under 
28 U.S.C. 1253. E.g.. Att. Gen. J.S. 2-4; Southern J.S. 2; Gov. 
J.S. 2-4, 8-16; see note 2, supra. The Court has appellate 
jurisdiction over this appeal under Section 1253 only if the 
action filed by the United States required the convening of a 
three-judge court under 28 U.S.C. 2281 (see note 3, supra).
E.g.. Weinberger v. Salfi. 422 U.S. at 763 n.8; see Norton v. 
Mathews. 427 U.S. 524, 531 (1976). In its complaint, the United 
States alleged that, "[a]cting pursuant to Louisiana law and. 
usage," appellants "have established and perpetuated dualism 
based upon race in the operation of state institutions of higher 
education by constructing and maintaining institutions of higher 
learning designed to serve students of a particular race." J.S. 
App. 159a. The complaint further alleged that trie institutions 
maintained explicitly racial admissions policies before 1953.
Id. at 160a-161a. Thereafter, the complaint charged, "[t]he acts 
and practices of [appellants] * * * maintain[ed] and 
perpetuate[d] an unlawful dual system of higher education based 
upon race," id. at 162a, and appellants "failed in their 
affirmative duty * * * to eliminate the vestiges of the dual 
system," ibid.

As relief, the complaint sought an order enjoining 
appellants from maintaining their segregated system and an order 
requiring them "to develop, submit and implement detailed plans 
which promise realistically and promptly to eliminate all 
vestiges of a dual system of higher education existing within the 
State of Louisiana * * *." Id- at 163a. Since the complaint 
raised a substantial constitutional challenge to the State's 
practice and policy and sought widespread injunctive relief, ne 
United States requested (and received) a three-judge court ur. ier

11/ Because resolution of the jurisdictional issue will 
determine the forum in which litigation of this case will 
proceed, and in light of the importance of an expeditious 
decision on the merits of the underlying controversy, we urge 
the Court not to postpone ruling on that issue.



13
Section 2281, as then construed by the Fifth Circuit in Sands v. 
Wainwriaht■ 491 F.2d 417, 421-423 (5th Cir. 1973) (en banc), 
cert, denied, 416 U.S. 992 (1974). See J.S. App. 185a-196a.
This Court's intervening decisions in Morales v. Turman. 430 
U.S. 322 (1977), and Costello v. Wainwriaht. 430 U.S. 325 (1977), 
however, rejected the Sands court's construction of Section 
2281, and thus establish that the action filed by the United 
States action did not require the convening of a three-judge 
court. Accordingly, the Court at this time lacks jurisdiction 
over these appeals under 28 U.S.C. 1253.21!/

In Morales v. Turman■ supra, plaintiffs raised 
constitutional challenges to a state agency's practices 
concerning the custodial supervision of juveniles. In ordering 
the convening of a three-judge court under Section 2281, the 
Fifth Circuit concluded that Congress had not drawn a 
distinction between challenges to state "regulations" as opposed 
to challenges to state "practices." Morales v. Turman. 535 F.2d 
864, 872 (1976). This Court, however, rejected that conclusion, 
expressly holding that a challenge to statewide practices did not 
call for the convening of a three-judge court under Section 2281:

In construing 2281, this Court has concluded that the 
three-judge court procedure is brought into play in any 
"suit which seeks to interpose the Constitution against 
enforcement of a state policy, whether such policy is 
defined in a state constitution or in an ordinary 
statute or through the delegated legislation of an 
'administrative board or commission.'" Phillips v.
United States. 312 U.S. 246, 251 (1941). We have 
never, however, considered the generalized, unwritten 
practices of administration to be equivalent to the 
"delegated legislation" of an administrative board.

430 U.S. at 323. And in Costello v. Wainwriaht. supra, this
Court made clear that "the applicability of § 2281 as written
turns on whether a state statute is alleged to be

2-2/ None of the parties, including the United States, ever 
requested the district court to reconsider the propriety of 
convening a three-judge panel, although alerted to that issue by 
Chief Judge Brown's initial order. See J.S. App. 197a-198a. Nor 
did the district court address the issue, other than in a brief 
statement in its 1988 liability opinion. See id. at 10a 
("Plaintiff having properly requested a three-judge court 
pursuant to 28 U.S.C. §§ 2281 and 2284, a three-judge court was 
convened.").



14
unconstitutional, not on whether an equitable remedy for 
unconstitutional state administrative behavior ultimately 
impinges on duties imposed under concededly constitutional state 
statutes." 430 U.S. at 326.

By its terms, the complaint here alleged that appellants had 
maintained segregated public colleges, in violation of Title VI 
and the Fourteenth Amendment, and sought an injunction against 
various acts, practices, and derelictions in duty on the part of 
appellants that had perpetuated the racially segregated school 
system. See J.S. App. 153a-165a. But as this Court made plain 
in Morales v. Turman. 430 U.S. at 323-324, a constitutional 
challenge to a state actor's practice is not equivalent to the 
type of action seeking to enjoin implementation (or enforcement) 
of an allegedly unconstitutional state statute that calls for a 
three—judge court under Section 2281. Unless the former lawsuit 
specifically seeks to enjoin operation of state law, the Court 
explained, it does not meet the threshold requirements of 
jurisdiction under Section 2281. See Morales, 430 U.S. at 322- 
323 .

To be sure, the district court did enjoin the continued 
existence of the State's four-board structure —  a system created 
by Louisiana state law —  on the ground that this structure had 
facilitated the perpetuation of illegal segregation. See J.S. 
App. 63a; see pp. 9-10, supra. However, no party to this action 
ever alleged that the statutory scheme creating the governing 
boards was unconstitutional and the district court itself did not 
suggest that the state laws creating that structure were enacted 
(or maintained) for racially discriminatory purposes.^1/

21/ Although the complaint set forth the Louisiana state 
statutes that had originally required explicit racial segregation 
on each of the State's college campuses (see J.S. App. 159a- 
162a), the complaint, by its terms, did not seek to enjoin those 
laws. Indeed, the State conceded that it had long abandoned 
implementation of those statutes. See id. at 4a-5a. In any 
event, a constitutional challenge to those laws would not have 
supported the convening of a three—judge court under Section 
2281. Patently unconstitutional statutes do not present 
substantial constitutional issues requiring a three-judge panel. 
See, e.g.. Goosbv v. Osser■ 409 U.S. 512, 518 (1972); Bailey v. 
Patterson. 369 U.S. 31, 33-34 (1962).



15
Accordingly, since the complaint here, like those in Morales and 
Costello, challenged state officials' illegal practices taken 
within their authority under state law, and since the only state 
laws affected by the district court's remedial orders were not 
specifically challenged in this action, the convening of a three- 
judge court was unwarranted.

2. The State seeks to avoid Morales' holding by claiming 
that "[t]his case, unlike Morales. does not involve challenged, 
unwritten practices of administration. * * * Here state 
officials have acted under written authority, both statutory and 
constitutional." Gov. J.S. 15 (internal quotation marks and 
citation omitted). But no party in Morales contended that state 
officials were operating the state facility without statutory 
authorization; rather, plaintiffs there, as here, alleged that 
state officials were exercising their authority in an 
unconstitutional manner. See Morales. 430 U.S. at 322-323.22/

In any event, the State's submission, if accepted, would 
vitiate the holdings in both Morales and Costello. and would have 
rendered the convening of a three-judge court under Section 2281 
a routine) rather than an extraordinary, event. State officials 
can only take state action when they act under color of some 
state law. Congress assuredly did not intend such a commonplace 
factor, capable of being alleged in every action brought against

21/ An attempt to distinguish Costello is similarly ill-fated.
As we have stated, see p. 12, supra. and contrary to the State's 
assertion, the complaint here plainly did not "alleg[e] that the 
implementation of Louisiana statutes and sections of the 
Louisiana Constitution violated Title VI and the Fourteenth 
Amendment." Gov. J.S. 16.

The State also claims (Gov. J.S. 13-14) that the district 
court's remedial orders' possible effect on officials' actions 
mandated by state statute required the convening of a three-judge 
court. That claim is meritless. In Costello. this Court 
expressly held that "[t]he applicability of § 2281 * * * [does 
not] turn[] * * * on whether an equitable remedy for 
unconstitutional state administrative behavior ultimately 
impinges on duties imposed under concededly constitutional state 
statutes." 430 U.S. at 326. Indeed, the State would have the 
Court now ignore the very pitfalls of that approach identified in 
Costello. As the Court there explained, "[t]o hold otherwise 
would require the postponing of the threshold question of 
jurisdiction until the merits of the controversy had been fully 
resolved and the broad outlines of equitable relief discerned. 
Section 2281 embodies no such wasteful and uncertain mandate." Ibid.



16
state officials, to satisfy the requirements for convening a 
three—judge court under Section 2281. In sum, under the 
circumstances presented, this Court lacks jurisdiction over each 
of the appeals under 28 U.S.C. 1253 and should dismiss those 
appeals for want of jurisdiction.

In recognition of the jurisdictional obstacle, the State, in 
filings by both the Governor and the Attorney General, has filed 
separate notices of appeal to the Fifth Circuit. Southern has 
filed its own notice of appeal to that court, as has the United 
States. See 89-771 J.S. App. 209a . s o u n d  judicial 
administrative practices further confirm that appellate review 
over this case should proceed first in the court of appeals. 
Courts of appeals have considered and decided cases raising 
similar issues in the context of challenges to state higher 
education systems. See United States v. Alabama, 828 F.2d 1532 
(11th Cir. 1985), cert, denied, 108 S. Ct. 1270 (1988); Geier v. 
University of Tennessee. 597 F.2d 1056 (6th Cir.), cert, denied, 
444 U.S. 886 (1979). Indeed, the Fifth Circuit is currently 
reviewing the federal government's appeal from a district court's 
judgment tfiat the State of Mississippi had complied with its 
affirmative duty under Title VI to dismantle a segregated higher 
education system. See Avers v. Alain. 674 F. Supp. 1523 (N.D.
Miss. 1987), appeal pending, No. 88-4103 (5th Cir.) (argued May 

1, 1989).

7lU  we will challenge the district court's order requiring 
the merger of the Southern and LSU Law Centers.



17
CONCLUSION

The appeals should be dismissed for lack of jurisdiction 
under 28 U.S.C. 1253.

Respectfully submitted.

KENNETH W. STARR 
Solicitor General

JAMES P. TURNER
Acting Assistant Attorney General 

ROGER CLEGG
Deputy Assistant Attorney General

JESSICA DUNSAY SILVER 
MARK L. GROSS 
Attorneys

DECEMBER 1989