Cavalier v. School Board of Caddo Parish Brief of Amicus Curiae of the NAACP Legal Defense and Educational Fund in Support of Defendant-Appellees' Petition for Rehearing En Banc

    No. 03-30395

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

KEVIN PAUL CAVALIER, on behalf of Hunter Paul Cavalier; 
JULIE ANN CAVALIER, on behalf of Hunter Paul Cavalier,

PLAINTIFFS-APPELLANTS

v.

SCHOOL BOARD OF CADDO PARISH, et al., 

DEFENDANTS-APPELLEES.

BRIEF OF AMICUS CURIAE
THE NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 

IN SUPPORT OF DEFENDANTS-APPELLEES’ 
PETITION FOR REHEARING EN BANC

Theodore M. Shaw 
Director-Counsel 

Norman J. Chachkin 
Elise C. Boddie 
Chinh Quang Le 
Anurima Bhargava 
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 965-2200 Phone 
(212) 226-7592 Fax

Attorneys for Amicus Curiae
The NAACP Legal Defense & Educational Fund, Inc.



CERTIFICATE OF INTERESTED PERSONS

No. 03-30395

KEVIN PAUL CAVALIER, on behalf of Hunter Paul Cavalier;
JULIE ANN CAVALIER, on behalf of Hunter Paul Cavalier,

PLAINTIFFS-APPELLANTS

v.

SCHOOL BOARD OF CADDO PARISH, et al.,

DEFEND ANTS-APPELLEES.

The undersigned counsel of record certifies that the following listed persons 

and entities as described in the fourth sentence of Rule 28.2.1 have an interest in 

the outcome of this case. These representations are made in order that the judges 

of this court may evaluate possible disqualification or recusal.

1. Kevin Paul Cavalier, plaintiff pro se/appellant.

2. Julie Ann Cavalier, plaintiff pro se/appellant.

3. Hunter Paul Cavalier, plaintiff pro se/appellant.

4. School Board of Caddo Parish, Louisiana, defendant/appellee.

5. Phillip R. Guin, defendant/appellee.

6. Willie D. Burton, defendant/appellee.

7. Ginger Armstrong, defendant/appellee

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8. Eursla D. Hardy, defendant/appellee.

9. Alvin Mims, defendant/appellee.

10. Mark Milam, defendant/appellee.

11. Michael J. Thibodeaux, defendant/appellee.

12. Wanda J. Wright, defendant/appellee.

13. Jerry Tim Brooks, defendant/appellee.

14. Miles Hitchcock, defendant/appellee.

15. Mildred B. Pugh, defendant/appellee.

16. Mike Powell, defendant/appellee.

17. Julie M. Lafargue, Attorney at Law, of the law firm Abrams & 
Lafargue, Shreveport, Louisiana, attorney for the defendants/appellees, School 
Board of Caddo Parish, Phillip R. Guin, Willie D. Burton, Ginger Armstrong, 
Eursla D. Hardy, Alvin Mims, Mark Milam, Michael J. Thibodeaux, Wanda J. 
Wright, Jerry Tim Brooks, Miles Hitchcock, Mildred B. Pugh, and Mike Powell.

18. Reginald W. Abrams, Attorney at Law, of the law firm Abrams & 
Lafargue, Shreveport, Louisiana, attorney for the defendants/appellees, School 
Board of Caddo Parish, Phillip R. Guin, Willie D. Burton, Ginger Armstrong, 
Eursla D. Hardy, Alvin Mims, Mark Milam, Michael J. Thibodeaux, Wanda J. 
Wright, Jerry Tim Brooks, Miles Hitchcock, Mildred B. Pugh, and Mike Powell.

19. The NAACP Legal Defense & Educational Lund, Inc., as amicus 
curiae, is a nonprofit 501(c)(3) corporation and not a publicly held company that 
issues stock. It has no financial interest in the outcome of this litigation.

20. Theodore M. Shaw, President and Director-Counsel, the NAACP Legal 
Defense & Educational Fund, Inc. is an attorney for amicus curiae.

n



21. Norman J. Chachkin, Director of Litigation, the NAACP Legal Defense 
& Educational Fund, Inc. is an attorney for amicus curiae.

22. Elise C. Boddie, Associate Director of Litigation, the NAACP Legal 
Defense & Educational Fund, Inc. is an attorney for amicus curiae.

23. Chinh Quang Le, Assistant Counsel, the NAACP Legal Defense & 
Educational Fund, Inc. is an attorney for amicus curiae.

24. Anurima Bhargava, Assistant Counsel, the NAACP Legal Defense & 
Educational Fund, Inc. is an attorney for amicus curiae.

Dated: March, 2005

Attorney for Amicus Curiae
NAACP Legal Defense & Educational Fund, Inc.

m



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ....................................................  j

TABLE OF CONTENTS ....................................................................................  lv

TABLE OF AUTHORITIES ..............................................................................  v

STATEMENT OF INTEREST............................................................................  1

ARGUMENT ......................................................................................................  2

I. Rehearing en banc is warranted because this case involves the
exceptionally important question of whether a school system that 
remains under a federal court desegregation order is permitted -  
if not required -- to take account of race until it is formally and 
judicially released from its obligations.............................................  2

II. Rehearing en banc is warranted because the panel departed from
established U.S. Supreme Court law in subjecting the race­
conscious magnet school student assignment policy of a school 
district under a federal desegregation order to strict scrutiny..........  8

CONCLUSION..................................................................................................  15

CERTIFICATE OF SERVICE ..........................................................................  16

CERTIFICATE OF COMPLIANCE ................................................................  17

IV



TABLE OF AUTHORITIES

Federal Cases

Adarand Const. Inc. v. Pena,
515 U.S. 200 (1995) ................................................................................  10

Bd. of Educ. of Oklahoma City v. Dowell,
498 U.S. 237 (1991) ..........................................................................passim

Brewer v. West Irondequoit Cent. Sch. Dist.,
212 F.3d 738 (2d Cir. 2000 )....................................................................  14

Brown v. Bd of Educ.,
347 U.S. 483 (1954) ..................................................................................  1

Brown v. Bd. of Educ.,
349 U.S. 294(1955) ............................................................................  9, 11

Bryant v. Caddo Parish Sch. Bd.,
CV No. 95-0441 (W.D. La. Jan. 3, 1997), aff d No. 97-30135
(5th Cir. Sept. 26, 1997) {per curiam) ......................................................  2

Columbus Bd. of Educ. v. Penick,
443 U.S. 449(1979) ................................................................................  12

Comfort v. Lynn Sch. Cmte.,
283 F. Supp.358 (D. Mass. 2003), rev’d, 2004 WL 2348505
(1st Cir. Oct. 20, 2004) (No. 03-2415), opinion withdrawn on
grant of rehearing (Nov. 24, 2004)..........................................................  14

Davis v. East Baton Rouge Parish Sch. Bd.,
721 F.2d 1425 (5th Cir. 1983) ................................................................  1 1

Dayton Bd. of Educ. v. Brinkman,
443 U.S. 526(1979) ................................................................................  12

v



Freeman v. Pitts,
503 U.S. 467 (1992) ................................................................  2 ,3 ,6 ,7 ,12

Green v. County Sch. Bd. of New Kent County,
391 U.S. 430 (1968) ..........................................................................passim

Grutter v. Bollinger,
539 U.S. 306 (2003) ..........................................................................  10,14

Hampton v. Jefferson County Pub. Schs.,
102 F. Supp. 2d 358 (W.D. Ky. 2000) ....................................................  14

Hampton v. Jefferson County Pub. Schs.,
72 F. Supp. 2d 753 (W.D. Ky. 1999) ......................................................  14

Harris v. Crenshaw County Bd. of Educ.,
968 F.2d 1090 (1992) ................................................................................  3

Hull v. Quitman County Bd. of Educ.,
1 F.3d 1450 (5th Cir. 1993) ......................................................................  3

Lee v. Anniston City Schs.,
737 F.2d 952 (11th Cir. 1984) ................................................................  10

McDaniel v. Barresi,
402 U.S. 39 (1971) ..................................................................................  10

McFarland v. Jefferson County Pub. Schs.,
330 F. Supp. 2d 834 (W.D. Ky. 2004) ....................................................  14

Milliken v. Bradley,
433 U.S. 267 (1977) ..................................................................  8,9, 10, 12

Missouri v. Jenkins,
515 U.S. 70 (1995) ..........................................................................  1,8, 12

vi



Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,
377 F.3d 949 (9th Cir. 2004), opinion withdrawn on grant of
rehearing, 395 F.3d 1168 (9th Cir. 2005)................................................  14

Pasadena City Bd. of Educ. v. Spangler,
427 U.S. 424(1976) ............................................................................  8,10

Ross v. Houston Ind. Sch. Dist.,
699 F.2d 218 (5th Cir. 1983) ..................................................................  10

Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1(1971) ........................................................................  1,8,9,11

United States v. Bd. of Educ. of City of Chicago,
567 F. Supp. 290 (N.D. 111. 1983)..............................................................  7

United States v. Paradise,
480 U.S. 149(1987) ............................................................................  9? 10

Washington v. Seattle Sch. Dist. No. 1,
458 U.S. 457(1982) ................................................................................  H

vii



STATEMENT OF INTEREST

The NAACP Legal Defense & Educational Fund, Inc. (“LDF”) is a non­

profit legal organization that assists African Americans and other people of color 

secure their constitutional and civil rights. The nation’s oldest civil rights law 

firm, LDF has been integral in dismantling racial segregation and ensuring equal 

educational opportunity. It has been involved in more cases before the United 

States Supreme Court than any organization save the U.S. Department of Justice.

LDF represented African American plaintiffs in the cases leading up to and 

including Brown v. Board o f Education, 347 U.S. 483 (1954), and has litigated 

numerous subsequent landmark school desegregation cases before the Supreme 

Court. See, e.g., Missouri v. Jenkins 515 U.S. 70, 151 (1995); Bd. ofEduc. o f 

Oklahoma City v. Dowell, 498 U.S. 237 (1991); Swann v. Charlotte-Mecklenburg 

Bd. ofEduc., 402 U.S. 1 (1971); Green v. County Sch. Bd. o f New Kent County, 

391 U.S. 430, 437-38 (1968).

Given its expertise and experience, LDF believes its perspective would be 

helpful to this Court in resolving the issue presented here, which deals with the 

ongoing obligations of formerly dual school systems that remain under court 

supervision and the standards which apply when challenges are issued to remedies 

ordered in such cases.

1



ARGUMENT

Because the panel’s decision involves a matter of exceptional importance 

and could impact scores of school desegregation cases in this Circuit, and because 

the panel’s ruling is in direct conflict with established precedents of the U.S. 

Supreme Court and of this Court, rehearing en banc is appropriate.

I. Rehearing en banc is warranted because this case involves the 
exceptionally important question of whether a school system that 
remains under a federal court desegregation order is permitted -- 
if not required -  to take account of race until it is formally and 
judicially released from its obligations.

The defendant school district in this case, the Caddo Parish Public Schools 

(“defendant”), long maintained a dual school system. See Slip Opinion (“Slip 

Op.”) at 9 (citing cases). It has not yet been held to have attained unitary status by 

any court. That fact notwithstanding, the panel found the defendant’s race­

conscious magnet school assignment policy unconstitutional — even though that 

policy was designed to comply with an unvacated consent decree in the case (“the 

1981 Consent Decree”) and was recently sustained by a federal district court, and 

by this Court on appeal, in the face of legal challenge. See Bryant v. Caddo 

Parish Sch. Bd., CV No. 95-0441 (W.D. La. Jan. 3, 1997), aff'd No. 97-30135 (5th 

Cir. Sept. 26, 1997) (per curiam). The panel concluded that the assignment policy 

could not be justified by any continuing duty (or any authority) of the school

2



system to promote desegregation. See Slip Op. at 15, 19 (ruling that such 

constitutional obligations may be “reduced or eliminated even if the entire school 

system is not totally in compliance [with prior orders or decrees] or has not been 

declared unitary”).

Federal courts have long held, however, that “as long as a school district 

remains under the superintendence of a federal desegregation order, it has a duty 

‘to take all steps necessary to eliminate the vestiges of the unconstitutional de jure 

system.’” Hull v. Quitman County Bd. ofEduc., 1 F.3d 1450, 1453 (5th Cir. 1993) 

(quoting Freeman v. Pitts, 503 U.S. 467, 485 (1992)); see also Bd. ofEduc. o f 

Oklahoma City v. Dowell, 498 U.S. 237 (1991). “To fulfill this duty, school 

officials are obligated not only to avoid any official action that has the effect of 

perpetuating or reestablishing a dual school system, but also to render decisions 

that further desegregation and help to eliminate the effects o f the previous dual 

school system.” Harris v. Crenshaw County Bd. ofEduc., 968 F.2d 1090, 1095 

(1992) (citing, inter alia, Green v. County Sch. Bd. o f New Kent County, 391 U.S. 

430, 437-38 (1968)) (emphasis added). The reasoning of the panel, therefore, is a 

departure from the established precedents of the U.S. Supreme Court and of this 

Circuit, and thus warrants en banc review by this Court.

3



The panel attempts to justify its conclusion by interpreting an order issued 

by the district court in this case (“the 1990 Order”) as implicitly affording the 

school system partial unitary status under Freeman, and thereby relieving the 

system of its duty to comply with the 1981 Consent Decree -  at least with regard 

to the challenged magnet school. See Slip Op. at 14-19. This rationale, however, 

is flawed for at least two reasons.

First, the 1990 Order predated both Dowell and Freeman, and thus it would 

be erroneous to attribute to the district court that signed it the kind of clarified 

understanding of “unitary status” discussed in Dowell, 498 U.S. at 245-51, or the 

concept of partial unitary status described in Freeman, 503 U.S. at 489. Indeed, 

the first question that Dowell addressed was whether a district court order that 

explicitly acknowledged a school system’s compliance with a desegregation plan 

and “terminate[d]” the court’s jurisdiction should be read to release the system 

from a continuing duty to promote desegregation. Dowell, 498 U.S. at 244-46.'

The Supreme Court held that its substance and content notwithstanding, such an 1

1 The Dowell Court concluded that while eventual termination of school 
desegregation cases and restoration of local control is appropriate in the long run, 
a district court should reach that conclusion only after engaging in a deliberate, 
fact-intensive assessment of whether the school system had eliminated the vestiges 
of segregation to the extent practicable and demonstrated its good faith intention 
to operate a unitary system. 498 U.S. at 250.

4



order does not constitute a judicial finding of “unitary status” relieving the school 

system from any further obligation. Id. at 246. The Court went on to state that 

“[i]f such a decree is to be terminated or dissolved, [plaintiffs] as well as the 

school board are entitled to a like statement from the court.” Id.

In the instant case, no unequivocal statement of the sort Dowell described 

has yet been issued. In interpreting the 1990 Order as such, the panel made the 

same mistake as had the petitioner in Dowell, especially in light of the Supreme 

Court’s recognition there that courts supervising school desegregation cases 

during this time period operated without the benefit of a common, well-defined 

vocabulary. Id. Indeed, the language from the 1990 Order upon which the panel 

relied to find, retroactively, that the school system here was partially unitary is 

even less definite than the language of the order at issue in Dowell.1 2

2 The panel views the provisions of the 1990 Order, terminating the 1981 
Consent Decree as to magnet schools and indicating that “the United States shall 
not be entitled to seek any further or additional remedy with respect to such 
schools,” as “unambiguous[].” Slip Op. at 13, 15. The “Order Terminating Case” 
at issue in Dowell, however, contained language even more explicit than the 1990 
Order here, and yet the Supreme Court ultimately deemed it “too ambiguous” to be 
a definitive order terminating all desegregation obligations. See 498 U.S. at 237- 
41 (quoting district court order concluding that “substantial compliance with the 
constitutional requirements ha[d] been achieved”; that school board was “entitled 
to pursue in good faith its legitimate policies without the continuing constitutional 
supervision of this Court”; and that “^Jurisdiction in this case is terminated ipso 
fiacto”).

5



Moreover, as the district court that issued the 1990 Order did not have the 

benefit of Freeman's guidance on the concept of partial unitary status, the panel 

also errs in treating that Order as having incrementally relinquished judicial 

supervision through a procedure that had not yet been recognized by the Supreme 

Court. See Slip Op. at 16-17.

Second, even assuming that the 1990 Order could have conferred partial 

unitary status upon the Caddo Parish Public Schools, the panel’s reasoning is 

nonetheless flawed because it expands the notion of partial unitary status well 

beyond what the Supreme Court in Freeman intended to allow. By viewing the 

1990 Order as eliminating any continuing obligation of the school system to 

comply with the magnet school provisions in the 1981 Consent Decree while 

retaining judicial supervision over other “student assignment” provisions such as 

Majority-to-Minority transfers, see Slip Op. at 13-14, the panel essentially holds 

that a school system may be granted partial unitary status not as to one or more 

Green factors, which Freeman contemplates, but as to a specific strategy; that falls 

within the Green factor of student assignment.3

3 This inconsistency predictably led the defendant to believe it was still 
authorized to use its magnet assignment policy. Such confusion, however, 
demonstrates why this collateral challenge would be more properly resolved if the 
trial court had an opportunity to perform the “deliberate, fact-intensive” analysis 
described by the Court in Dowell. See supra note 1.

6



Thus, rather than taking seriously Freeman's caution that “[t]wo or more 

Green factors may be intertwined . . so that a constitutional violation in one area 

cannot be eliminated unless the judicial remedy addresses other matters as well,” 

Freeman, 503 U.S. at 497, the panel -  unsupported by case law in this Circuit or 

elsewhere — has gone to the other extreme, viewing one desegregation strategy 

(magnet schools) in isolation from the district’s overall system of student 

assignment. This excision of magnet schools from the whole scheme in which it 

belongs ignores the obvious impact that the student population at one school has 

on others within the same system. See, e.g., United States v. Bd. ofEduc. o f City 

o f Chicago, 567 F. Supp. 290, 295-96 (N.D. 111. 1983) (“What plaintiffs fail (or 

refuse) to acknowledge is that individual aspects of the [desegregation] Plan, in 

isolation from one another, must necessarily impact disproportionately on white 

students and minority students. . . . But those points suggest only that it is the 

whole with which a desegregation plan is necessarily concerned. And it is the 

whole that must be constitutionally judged.”) (emphasis in original).

Indeed, given the panel’s recognition that, due to practicalities that make 

their elimination infeasible, Caddo Parish still operates virtually one-race schools, 

it makes both legal and logical sense to view student assignment holistically, 

considering magnet schools as one tool of desegregation that can afford some

7



students a desegregated learning environment for at least a portion of their 

education.

II. Rehearing en banc is warranted because the panel departed from 
established U.S. Supreme Court law in subjecting the race­
conscious magnet school student assignment policy of a school 
district under a federal desegregation order to strict scrutiny.

The panel’s decision is also a stark departure from U.S. Supreme Court 

precedent because it applies strict scrutiny to the race-conscious magnet school 

assignment policy of a formerly dual school system still subject to federal court 

desegregation obligations. See Slip Op. at 7. The Supreme Court has never 

applied this standard of review in evaluating either remedial steps adopted by a 

school system seeking to comply with court orders and decrees or those decrees 

themselves. See, e.g., Pasadena City Bd. Of Educ. v. Spangler, 427 U.S. 424, 433- 

37 (1976) (applying Swann v. Charlotte-Mecklenburg Bd. o f Educ., 402 U.S. 1 

(1971)); Missouri v. Jenkins, 515 U.S. 70, 86-102 (1995) (applying Swann and 

Milliken v. Bradley, 433 U.S. 267 (1977)).

The consequences of subjecting school desegregation remedies to strict 

scrutiny are severe. First, it would require for the first time that remedies -  both 

those judicially crafted by courts and those devised by school districts to comply 

with the obligations set forth in court orders or decrees -  satisfy a narrow-tailoring

8



inquiry. See Slip Op. at 27. In this case, for instance, the panel concluded that 

even if the defendant had been able to demonstrate that it had a continuing duty 

under the 1981 Consent Decree as to magnet schools, the challenged assignment 

policy could only be sustained if there was sufficient “evidence that the School 

Board considered race-neutral means” to satisfy its obligations before resorting to 

race-conscious remedies. Id. at 28-29.

Yet, for almost fifty years, the Supreme Court has granted district courts 

broad authority to order remedial relief in school desegregation cases, evaluating 

the propriety of such remedies not through the application of strict scrutiny, but 

under traditional equitable remedial principles. Swann, 402 U.S. at 15 (“Once a 

right and a violation have been shown, the scope of a district court's equitable 

powers to remedy past wrongs is broad, for breadth and flexibility are inherent in 

equitable remedies.”); Milliken, 433 U.S. at 279-80 (1977) (“In fashioning and 

effectuating the (desegregation) decrees, the courts will be guided by equitable 

principles.”) (quoting Brown v. Bd. ofEduc., 349 U.S. 294, 300 (1955) (“Brown 

//”)); see also United States v. Paradise, 480 U.S. 149, 191 (1987) (Stevens, J., 

concurring). In this context, not only has the Supreme Court never required the 

consideration of race-neutral remedies before the adoption of race-conscious ones, 

but it has held that race-neutral remedies are inadequate to address a race-specific

9



constitutional violation. See, e.g., McDaniel v. Barresi, 402 U.S. 39, 41 (1971); 

Green, 391 U.S. at 439-441.

Even when the Court found occasion to establish limitations on permissible 

remedies in school desegregation cases, it expressed those limitations exclusively 

in terms of the equitable constraints of judicial authority to order remedies that 

exceed the scope of the constitutional violation. See, e.g., Spangler, 427 U.S. at 

440 ; Milliken, 433 U.S. at 281-82. Thus, while satisfaction of the narrow 

tailoring inquiry may be essential in justifying voluntary race-conscious efforts in 

affirmative action cases such as Grutter v. Bollinger, 539 U.S. 306 (2003) or 

Adarand Const. Inc. v. Pena, 505 U.S. 200 (1995), it is inapposite here. See, e.g., 

Paradise, 480 U.S. at 187 n.2 (Powell, J., concurring). In the context of school 

desegregation cases, given the wide latitude afforded to trial courts, appellate 

review of remedies “is limited to determining whether the [district] court’s order 

was an abuse of discretion,” not whether the remedies at issue are narrowly 

tailored. Lee v. Anniston City Schs., 737 F.2d 952, 955 (11th Cir. 1984) (citing 

Milliken, supra-, Ross v. Houston Ind. Sch. Dist., 699 F.2d 218, 226 (5th 

Cir. 1983)).

Similar deference is accorded local school authorities who are charged, 

upon an initial finding of liability, with the “primary responsibility” of crafting

10



remedies to eliminate the vestiges of their prior segregation, Brown II, 349 U.S. at 

299-300 (1955), and implementing court ordered relief. See Swann, 402 U.S. at 

15; Davis v. East Baton Rouge Parish Sch. Bd., 721 F.2d 1425, 1437 (5th Cir. 

1983).4 Indeed, the Supreme Court has stated on several occasions that as 

extensive as the equitable powers of a federal court may be, the “broad 

discretionary powers of school authorities” to “formulate and implement 

educational policy” afford them even greater latitude in crafting policies that 

would promote desegregation for pedagogical reasons. Swann, 402 U.S. at 16; see 

also Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 472-74 (1982).

To now insist that remedies designed to cure constitutional violations -- be 

they judicially or politically crafted -  must satisfy strict scrutiny would be to 

change the entire course of school desegregation. Requiring that the remedies be 

as narrowly tailored as possible not only greatly diminishes the longstanding 

equitable power of the federal district courts that supervise the day-to-day matters 

arising in these cases, Swann, 402 U.S. at 15-16, but also undermines the time- 

honored national traditions of local autonomy in public education and deference to

4 In fact, it is only when local school officials “fail to ‘come forward with a 
plan that promises realistically to work, and promises realistically to work now,' 
[that] it becomes the responsibility of the district court to develop an adequate 
remedy.” Davis, 721 F.2d at 1437 (quoting Green, 391 U.S. at 439).

11



educational experts who formulate the policies in the individual school systems. 

See, e.g., Missouri v. Jenkins 515 U.S. at 151; Dowell, 498 U.S. at 248; Freeman 

503 U.S. at 489-90; Columbus Bd. ofEduc. v. Penick, 443 U.S. 449, 488 (1979); 

Milliken, 418 U.S. at 744.

Second, the panel’s application of strict scrutiny shifts well-established 

burdens of proof and reverses the presumptions that have traditionally attached in 

school desegregation cases. The law provides that an initial judicial finding of 

liability establishes the legal presumption that any ongoing racial disparities are 

continuing vestiges of the original segregation and discrimination. See, e.g., 

Dayton Bd. o f Educ. v. Brinkman, 443 U.S. 526, 537-38 (1979). It is the burden of 

the party seeking to dissolve a governing court order to prove that these vestiges 

have been eliminated to the extent practicable such that remedial action is no 

longer necessary. Slip. Op. at 42 (Weiner, J., dissenting). Indeed, as discussed 

above, until formerly dual school systems are released from court supervision, 

they are not only permitted, but required, to consider race in decisionmaking. See 

Dowell, supra\ Freeman, supra. Yet, despite these clear directives, the panel here 

demanded that the defendant school system satisfy the compelling interest prong 

of the strict scrutiny test and repeatedly criticized it for not producing sufficient

12



evidence of the present effects of its past segregation and discrimination. See, 

e.g., Slip Op. at 8 & n.8.

As the dissent properly observes, the panel’s decision places the Caddo 

Parish Public Schools -- and countless other similarly situated school systems in 

this Court’s jurisdiction — between the proverbial “rock and a hard place.” The 

school board would expose itself to judicial sanction from one group of plaintiffs 

if it does not “make bona fide efforts to fulfill all of its obligations under the 

order,” Slip Op. at 35 (Weiner, J., dissenting); on the other hand, it faces the 

possibility of judicial sanction from another set of potential plaintiffs if it does try 

to comply. See id. at 42 n.38 (observing the unfairness and illogic of “forc[ing] 

the Board to prove, as many times as there are plaintiffs, the justification for its 

policy while the district as a whole remains subject to court order”).

To adopt the panel’s legal analysis, therefore, would be to offer school 

systems still under court order to desegregate no legal certainty whatsoever. It 

would leave them vulnerable to legal action from any parent dissatisfied with 

some aspect of his/her child’s school assignments.5 As a practical matter, it would

5 This awkward result is yet another reason why this Court should stay the 
panel’s order pending final resolution of the issues the defendant raises in its 
petition for rehearing. Such a stay is necessary to avoid the risk of additional 
interim judgments against the defendant through collateral attacks waged by 
dissatisfied parents here and in other school districts still under court jurisdiction.

13



invite collateral attacks on any race-conscious remedial steps taken by school 

systems not yet determined by a supervising trial court to have achieved unitary 

status -  remedial efforts which would then be held to the same kind of searching 

judicial scrutiny that federal courts apply to affirmative action programs, despite 

the obvious differences in context.6

To avoid this kind of result, at least one federal court determined that the 

only proper way to dissolve a federal court’s remedial desegregation order in 

whole or in part is to require a formal petition for declaration of unitary status or 

partial unitary status -- not to entertain the collateral attack on some individual 

aspect of the school desegregation decree by subjecting it strict scrutiny. See 

Hampton v. Jefferson County Pub Schs., 72 F. Supp. 2d 753 (W.D. Ky. 1999); id., 

102 F. Supp. 2d 358 (W.D. Ky. 2000) (court first addressed issue of whether 

school district remained under desegregation obligations, then reviewed the

6 Space does not allow a full discussion of the significant historical, legal, 
and analytical differences between racial preferences in affirmative action cases, 
such as Grutter, and race-conscious student assignment policies in the context of 
public primary and secondary schools, but courts and litigants have recognized 
such differences in a number of cases. See, e.g., Comfort v. Lynn Sch. Cmte., 283 
F. Supp. 2d 358 (D. Mass. 2003), rev’d, 2004 WL 2348505 (1st Cir. Oct 20, 2004) 
(No. 03-2415), opinion withdrawn on grant o f rehearing (Nov 24, 2004); Parents 
Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 7, 377 F.3d 949 (9th Cir. 2004), 
opinion withdrawn on grant o f rehearing, 395 F.3d 1168 (9th Cir. 2005); 
McFarland v. Jefferson County Pub. Schs., 330 F. Supp. 2d 834 (W.D. Ky. 2004); 
Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738 (2d Cir. 2000).

14



challenged assignment policy for a magnet high school). Even if this Court were 

to bypass that route here and were then to conclude that the challenged policy 

exceeded the defendant’s discretion and/or the district court’s equitable authority, 

it should modify its opinion expressly to so hold, remanding the case to the district 

court to allow the defendant an opportunity to devise a more appropriate — but still 

race-conscious — plan consistent with its ongoing remedial obligations.

CONCLUSION

For the foregoing reasons, amicus curiae, the NAACP Legal Defense & 

Educational Fund, Inc., respectfully requests that this Court grant the petition for 

rehearing en banc.

Respectfully submitted,

Theodore M. Shaw 
DIRECTOR-COUNSEL

Dated: J j?  March, 2005

Norman J. Cha^hkin 
Elise C. Boddie 
Chinh Quang Le 
Anurima Bhargava
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
(212) 965-2200 Phone
(212) 226-7592 Fax

15



CERTIFICATE OF SERVICE

I hereby certify that two copies, one hardcopy and one computer readable 

diskette, of the foregoing Brief of Amicus Curiae the NAACP Legal Defense & 

Educational Fund, Inc., in Support of Defendants-Appellees’ Petition for 

Rehearing En Banc, has been deposited in the United States mail, postage prepaid 

and properly addressed, to counsel for all other parties in this suit, as follows:

Julie Mobley Lagargue 
Reginald W. Abrams 
ABRAMS & LAFARGUE, L.L.C. 
330 Marshall Street, Suite 1020 
Shreveport, Louisiana 71101

Attorneys for Defendants-Appellees

Kevin Paul Cavalier 
Julie Ann Cavalier 
Hunter Paul Cavalier 
903 River Road 
Shreveport, Louisiana 71105

Pro se Plaintiffs-Appellants

Dated: /IT March, 2005

Norman J. Chachkin
Attorney for Amicus Curiae
NAACP Legal Defense & Educational Fund, Inc.



This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) & 35(b)(2) because it contains 3500 words, one-half of the number of 

words permitted for the submission of the principal party in support of which this 

brief is filed, see Fed. R. 29(d), excluding the parts of the brief exempted by Fed. 

R. App. P. 32(a)(7)(B)(iii).

This brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using WordPerfect 9.0 

in 14 point, Times New Roman font.

Dated: ] £  March, 2005 O  ,7 /  ✓  ^

Norman J. Chachkin
Attorney for Amicus Curiae
NAACP Legal Defense & Educational Fund, Inc.

CERTIFICATE OF COMPLIANCE