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
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March 18, 2005

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Brief Collection, LDF Court Filings. 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, 2005. 28f32a1f-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b291f338-715a-41d0-ad9a-b3b5546ac89c/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. Accessed May 14, 2025.
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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 l 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