Bryant v. East Baton Rouge Parish School Board Brief of Appellant

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 82-3298 
NO. 82-3412

CLIFFORD EUGENE DAVIS, JR., ET AL.,
Plaintiffs-Appellees

AND
DR. D'ORSAY BRYANT, ET AL.,

Plaintiff-Intervenors-Appellees
AND
UNITED STATES OF AMERICA,

Plaintiff-Intervenor-Appellee
VERSUS
EAST BATON ROUGE PARISH SCHOOL BOARD, ET AL.,

Defendants-Appellants

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF LOUISIANA

BRIEF OF APPELLANT, EAST BATON ROUGE 
PARISH SCHOOL BOARD

JOHN F. WARD, JR.
ROBERT L. HAMMONDS
1111 South Foster Drive, Suite CP.O. Box 65236
Baton Rouge, LA 70896(504) 923-3462
ATTORNEYS FOR DEFENDANTS-APPELLANTS



IX THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 82-5298 
NO. 82-5412

CLIFFORD EUGENE DAVIS, JR., ET A L .,
Plaintiffs-Appel lees

AND

DR. D'ORSAY BRYANT, ET AL.,
Plaintiff-Intervenors-Appellees

AND

UNITED STATES OF AMERICA,
Plaintiff-Intervenor-App e11e e

VERSUS
EAST BATON ROUGE PARISH SCHOOL BOARD, ET AL.,

Defendants-Appellants

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF LOUISIANA

BRIEF OF APPELLANT, EAST BATON ROUGE 
PARISH SCHOOL BOARD



t

TABLE OF CONTENTS

PAGE

STATEMENT WITH REGARD TO ORAL ARGUMENT (i)

TABLE OF AUTHORITIES (ii)

STATEMENT OF JURISDICTION 1

STATEMENT OF ISSUES 1

STATEMENT OF THE CASE 2
(i) Course of Proceedings and Disposition

in Court Below 2
(ii) Statement of Facts . 2

SUMMARY OF ARGUMENT 13

ARGUMENT 15
I. WHAT DO THE SUPPLEMENTAL ORDERS OF 

THE DISTRICT COURT REQUIRE AND WHAT 
IS THE LAW WITH RESPECT THERETO? 15

A. ELEMENTARY SCHOOL ASSIGNMENT 15
B. HOLDING SCHOOL BOARD RESPONSIBLE 

FOR FAILURE OF ELEMENTARY SCHOOL
PLAN DUE TO "WHITE FLIGHT" 17

C. BATON ROUGE MAGNET HIGH SCHOOL
RACIAL QUOTA 32

D. SCOTLANDVILLE MIDDLE SCHOOL RACIAL
QUOTA 34

E. OTHER ACTIONS AND REQUIREMENTS OF
THE DISTRICT COURT WHICH INTRUDE 
INTO THE DAY-TO-DAY OPERATION OF THE 
SCHOOLS BEYOND THE JURISDICTION AND 
AUTHORITY OF A DISTRICT COURT 45

CONCLUSION 49

CERTIFICATE 50



STA T E M E N T  WITH REGARD TO ORAL A R G U M E N T

The two consolidated appeals which are the subject 

of this brief are the third and fourth appeals arising out 

of this litigation. The first and second appeals (No. 81-3922 

and No. 81-3476) have been briefed and are presently pending in 

this Court, but have not yet been argued. We pointed out in 

brief in the previous appeals that the first years implementation 

of the District Court's desegregation plan (elementary schools 

only) for the 1981-82 school year resulted in the loss of approxi­

mately 4,000 white students from the school system.
With implementation of the secondary school plan (middle 

schools, 6-8 and high schools, 9-12) for the 1982-83 school year, 

approximately 3,000 more white students left the school system. 

With the addition of the subsequent orders of the District Court, 

which are the subject of these two consolidated appeals, early 

projections indicate an additional loss of over 1,000 students.

In view of the adverse impact of the decision and orders of 

the Court below on this community and its public school system, 

the establishment of racial quotas and racial requirements for 

admissions to particular schools by the District Court and the 

changed position of the United States as evidenced by its previous 

motion for a stay of appellate proceedings, defendants-appellants 

respectfully suggest that the issues are of sufficient importance 

and complexity that oral argument will be helpful to the Court and 

is both necessary and desirable.

(i)



TABLE OF AUTHORITIES

CASES PAGE

Andrews, et al. v. City of Monroe, et al.,
CA No. 11,297 .....................................  56

Austin Independent School District v.
United States, 429 U.S. 990, 50 L.Ed.2d
603 , 97 S.Ct. 517 (1977)..........................  29, 49

Brown v. Board of Education, 347 U.S. 483, 74
S.Ct. 686, 98 L .Ed.2d 873 (Brown I - 1954) 
and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed.2d 
1083 (Brown II - 1955)............................  2 , 47

City of Mobile v. Bolden, 446 U.S. 55, 64 L.Ed.2d
47 , 100 S.Ct. 1490 (1980)........................ 29

Columbus Board of Education v. Penick, 443 U.S.
449, 61 L.Ed.2d 666, 99 S.Ct. 2941, reh den
62 L. Ed. 2d 121, 100 S.Ct. 186 (1979).............  29

Davis v. East Baton Rouge Parish School Board,
498 F. Supp. 580 (M.D. La. 1980).................  5 , 9 , 11

Dayton Board of Education v. Brinkman, 453 U.S.
406, 53 L .Ed.2d 851, 97 S.Ct. 2766 (1977)
(Dayton I)......................................... 29,48

Dayton Board of Education v. Brinkman, 443 U.S.
526, 61 L.Ed.2d 720, 99 S.Ct. 2971 (1979)
(Dayton I I ) ....................................... 29

Green v. County School Board, 391 U.S. 430, 88
S.Ct. 1689 , 20 L . Ed. 2d 716 (1968) at 439 ......... 48

Hecht Company v. Bowles, 321 U.S. 321, 329-330
(1944).............................................. 48

Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112,
41 L. Ed. 2d 1069 (1974)............................  16, 28 , 44 ,

49

Pasadena City Board of Education v. Spangler,
427 U.S. 424, 49 L.Ed.2d 599, 96 S.Ct.
2697 (1976).......................................  29 , 50 , 49

Pierce v. Society of Sisters,268 U.S. 510, 45
S.Ct. 571 , 69 L . Ed. 2d 1070 (1925)...............  35

(ii)



CASES PAGE

Ross v. Houston Independent School District,
— F.2d (No. 81-2323, 5th Cir. Feb.

167 19831- .........................................  29
San Antonio School District v. Rodriguez,

411 U.S. 1 , 50 (1973).............................. 49
Singleton v. Jackson Municipal Separate

School District, 419 F . 2d 1211 (Tth Cir.
1 9 6 9 ) ..............................................  3

Swann v. Charlotte-Mecklinberg Board of Education,
402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d
554 ................................................ 16, 28, 44 ,

49

Taylor, et al. v. Ouachita Parish School
Board, et al. , CA No. 12,171.................... 36

United States v. Jefferson County Board of 
— Education, 380 F .2d 385 (5th Cir. 1967)

(en banc) modifying 372 F.2d 836 (1966) . . . .  2

United States v. Southpark Independent School
District, 566 F.2d 1221 (5th Cir. 1978) . . . .  29

United States v. Texas Educational Agency,
606 F . 2d 518 (5th Cir. 1979). 7 . .............. 29

Valley v. Rapides Parish School Board, 646 F.2d
925 , 944 (5th Cir. 1981)........................ 35 , 41

Village of Arlington Heights v. Metropolitan
Housing Development Corporation, 429 U.S.
252, 50 L .Ed.2d 450, 97 S.Ct. 555 (1977). . . .  29

Wright v. Council of City of Emporia, 407 U.S.
451 (1972) .....................................  49

(iii)



STATEMENT OF J U R I S D I C T I O N

These are consolidated appeals from separate final 

judgments or orders of the United States District Court 

for the Middle District of Louisiana. This Court has 

jurisdiction under 28 U.S.C. 1291.

STATEMENT OF ISSUES

I. Does the District Court's pursuit of acheiving 
a racial balance in virtually every school, as 
further exemplified by the supplemental orders 
here appealed from, go beyond constitutional 
requirements and the requirements of existing 
decisions of the Supreme Court and this Court?

II. Do the District Court's supplemental orders
which, among other things, establish flat racial 
quota enrollments at certain schools, establish 
purely racial entrance requirements for certain 
schools, and establish preferential treatment 
for students who attend one particular school 
under his order, clearly exceed the authority of 
the District Court?

III. Is the District Court's plan of May 1, 1981 as
supplemented by these subsequent orders, contrary 
to the constitution and decisions of the Supreme 
Court and this Court in that the remedy now far 
exceeds the violation?

IV. Do the written and verbal directives issued to 
the School Board with regard to the day-to-day 
operation of the school system regarding curriculum, 
maintenance of facilities, use of closed facilities, 
investigating student residences, etc. go beyond 
the jurisdiction and authority of the District Court?



STATEMENT OF THE CAS E

(i) Course of Proceedings and Disposition in Court Below

This school desegregation case vas originally filed on 

February 29, 1956. (Record, Vol. 1, Page 1). Thereafter, 

the parties here, as in other communities throughout the 

South, tried to find the practical meaning of the Supreme 

Court's decisions in Brown v. Board of Education, 547 U.S. 

483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I--1S54) and -349 U.S. 

294 , 75 S.Ct. 753, 99 L.Ed. 1 083 (Brown 11-0 955).
The East Baton Rouge Parish School System was first 

before this Court in the consolidated cases entitled United 

States v. Jefferson County Board of Education, 380 F. 2d 

385 (5th Cir. 1967)(en banc), modifying, 372 F. 2d 836 

(1966). On remand from that decision, the School Board 

called together all of the civic and community leaders in 

the black community in an attempt to find solutions to this 

problem at the community level. This resulted in the Board s 

voluntarily creating a bi-racial committee to develop a 

complete and final plan for desegregation of schools in East 

Baton Rouge Parish. (Record, Vol. 3, Pages '40 and /41).
After many meetings of this Bi-racial Committee and its 

two sub-committees (one studying faculty desegregation and 

one studying student desegregation), the Bi-racial Committee 

recommended to the School Eoard and the School Board adopted

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and filed with the District Court for implementation for 

the 1 970- 71 school year., a neighborhood school-type desegre­

gation plan. (Record, Vol. 3, Rages 747-765). This plan 

thoroughly desegregated all schools located in the central 

part of the parish from north to south, including the schools 

in the two (2) smaller towns of Baker and Zachary. Because 

of racial residential impaction, there were some predominantly 

black schools on the far west side of the parish by the 

Mississippi River and some predominantly white schools on the 

far eastern side of the parish where there are virtually no 

black residents. This plan also reassigned the teachers m  

the system in compliance with Singleton v. Jackson Municipa_l 

Separate School District, 419 F. 2d 1211, (5th Cir. 1969).
On July 23, 1970, the District Court approved such plan 

and ordered it implemented for the opening of school foi the 

1970-71 school year, declaring that the plan did, in law and in 

fact, comply with all pertinent decisions of the United States 

Supreme Court and this Court, eliminate all vestiges of the 

dual system, and convert the East Baton Rouge Parish School 

System to a unitary school system. (Record, Vol. 3, Pages 
766- 773). No appeal was taker from this judgment b> an> part> .

The school system continued to operate successfully under 

this plan until 1974 when plaintiff-intervenors, Bryant, et al . 

filed a motion for further relief alleging the system was still 

not unitary. (Record, Vol. 3, Pages 787-792). In considering 

this motion, the District Court appointed outside experts, the 

Louisiana Educational Laboratory, to study the school system

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and make findings and recommendations to the Court as to whether 

the system had become unitary under its 1970 Order and was still 

unitary. (Record, Vol. 3, Pages 854 and 855).
After a hearing on June 18, 1975 on all pending motions, 

including the report of the court-appointed experts, the District 

Court rendered judgment on August 21, 1975, finding that the 

school system was still, in fact and in law, a unitary school 

system. The Court therefore denied the motion of plaintiff- 

intervenors and dismissed this litigation. (Record, \ol. 3,

Pages 944-956). Plaintiff appealed that judgment, and on 

•\pril 7 , 1978, this Court issued an opinion and order vacating 

the judgment of the District Court and remanding for further 

consideration in light of this Court's opinion. 570 F. 2d 1260.
After remand, the United States was permitted to intervene 

on behalf of plaintiffs. After requiring a report from the 

School Board on the use of other "tools” of desegregation, trial 

proceedings began with the Court entering an order declaring 

this to be "complex litigation" under the rules and ordering 

extensive pre-trial procedures. (Record, Vol. 4, Pages 1072- 

10"6) . The Government then filed a typical cross-town bussing, 

pairing, clustering, etc. plan which was adopted by plamtiff- 

intervenors. (Record, Vol. 4, Pages 1091-1181, Government 

Exhibit "7").
From May, 1980 through July, 1980, the parties were 

involved in the extensive pre-trial and discovery procedures 

required under the "complex litigation" rules. However, on 

August 8, 1980, the United States filed a motion for partial

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summary judgment on the issue of liability (non-unitariness) 

and requested tv.e trial be held only on the issue of appropriate 

relief. Cn September 11, 19S0, the District Court rendered 

a partial summary judgment holding the school system to be 

non-unitary with respect to student assignment, and ordering 

the Board to submit a proposed plan for additional desegregation. 

(Record, Vol. 4, Page; 1329-1344). Although the School Board 

immediately noticed at appeal to this Court from that partial 

summary judgment, it also immediately commenced good faith 

compliance with the District Court's order to develop a plan 

for further desegregation.
On September 11, IPSO, the District Court granted partial 

summary judgment as to the School Beard's responsibility to furthe 

desegregate this school system and ordered the School Beard to 

submit a desegregation plan to the District Court by October Id ,

I 96 0 , barely one ".onth later, even though the School Board had 

requested 120 days to prepare and submit its plan. Davis v. rast 

Baton Rouge Parish School Board, 4 9S F. Supp. sSO (.4.D. La. 19Su) 

(R, 1329- 1344).1 At the time of this order., the school system had 

just employed a new Superintendent of Schools, Dr. Payment: G.

utnougr Dr. .rvesen hs d had p r i c: experie nee : t h - - £

systems 3rid school d esepi efea t ioi.., having beer, oup e r i n -

Schools in .Y , .Vmnesota,, he was net ther oughly

familiar with this school syste: L v i c u s 1 y ,

time to formulate a comprehensive cesegre^at

: e n; r e : e r sThe designation "R" followed b> a r-~- ------ —
sccutively paginated It-volume- reecre. References to the 2 volume
record in 80-3298 and the 4 volume record in 82-3412 are shown by 
the designation S.R. plus the appeal number.

- 5 -



Utilizing his own prior experience with school desegregation 

in Minneapolis and being aware of this school system's own previous 

success with magnet schools, Dr. Arveson obtained School Board 

approval to create a community advisory council, bi-racial in 

nature and composed of citizens from all walks of life m  the 
community, for community input and to employ outside nationally 

recognized experts in school desegregation.3 Superintendent 

Arveson also created a desegregation task force composed of school 

employees to assist in the gathering of necessary data, etc. to

1The nationally recognized experts m  school de_eg:etati ,‘P •
by the Board was the firm of HGH, Inc. The principals of this 
firm are Larry W . Hughes, William M. Gordon, and Lair> W . Hillman.

1arrv Hughes is a professor and the chairman of the Department of 
AdninistratiorLand^Supervision at the University of Houston, Texas. 
Dr? Hughes specialized in the personnel programing side of school 
desegregation. William M. Gordon is a professor of education at 
Miami University, Oxford, Ohio. He specialized m  pupil assignment 
and c u ^ z u l u m  development. Larry K Hillman is a professor of 
education at Wavne State University, Detroit. His specials i- 
pupil transportation and metropolitan plan development.
Together the authors have been the principal designers or significant
contributors to over 75 desegregation pl.n*. 'oL
vere the architects of the plans submitted b> the State hoard or 
Education of Ohio in the Cleveland and CoJu^ us cases. Tv e ha 
served as experts in developing desegregation plans for the Unite 
States in school cases in this state as well as el^ev.-ere. vne o 
more of them recently participated in developing^ . c h S o f ^ t e m )  for 
plan (very similar to the plan developed fo: 1 7 ^ 1  *
Chicago, Illinois, which has recently been appicveu b> the
States ar.d the District Court.
Although the principals in HGH Ino fanrliar^tth
K l S H S  nandat oryDrea*s s i gnr.ent plans it U  i zrngy h . » . l  % of 

same amount of desegregation without the evt, mental effect..

•  6 -



assist him and the outside experts in developing such plan.

The school system expended some $4000,000.00 in developing 

its magnet school concept plan.
At the commencement of trial on the merits of the School 

Board's plan on March 4, 1981, the District Court read a 16 

page statement into the record. This statement warned the 

parties, particularly the School Board, as to what the school 

system would face at the opening of schools, indicated' the 

Court was not satisfied with either the plan proposed by the 

United States and plaintiff-intervenors or the plan proposed 

by the School Board and ordered the parties to commence private 

negotiations looking toward a consent decree with such negotia­

tions to begin at 9:00 a.m. on Wednesday, March 11, 1981 and 

continue through at least March 24, 1981. (R. 1590-1607).
These court-ordered, three-cornered negotiations continued 

on an almost daily basis until April 15, 1981 when the parties 
advised the Court that they were unable to reach agreement on 

a preposed consent decree. On April 16, 1981, the Court issued 

an order terminating such discussions.
A short 15 days later, on May 1, 1981, the District Court 

issued its findings and conclusions rejecting both the School 

Board's plan and the Government's plan and ordering its own 

plan to be implemented. However, rather than taking the plan 

preferred by the local school authorities and modifying it, or 

granting the school authorities an opportunity to modify theii

-7-



plan to correct what the District Court perceived as 

deficiencies, the Court basically adopted the mandatory 

reassignment plan prepared by the Government’s expert, 

including pairing, clustering, rezoning, and cross-town 

busing, with modifications reducing a few of the longest 

cross-town busing components, closing some schools, etc.

The Court's plan closed fifteen elementary school and 

one high school. Of the sixteen middle schools (serving 

grades 6-8), it converted fourteen of them to single-grade 

centers and two of them to two-grade centers. It left six 

predominantly white schools and seven predominantly black 

schools. It paired and clustered (3 § 4 school clusters) all 

of the remaining elementary schools. Some bus routes, due to 

distance, heavy traffic, etc., are as long as twenty-five 

miles and taking forty-five minutes to one hour in time, one 

way. The Court's plan also required the removal of all temporary 

classroom buildings (being utilized in order to alleviate over­

crowding at particular schools) at the remaining few predominantly 

one-race schools and established a maximum student capacity of 

twenty-seven students per classroom. In at least one rapidly 

growing residential area of the parish, this inability to admit 

newly resident students has resulted in having to utilize one 

sixty passenger school bus to transport only twelve students to 

other schools with the bus route being approximately thirty-nine 

miles long and taking one hour to complete.

-8-



The Court's plan also converted the school system's 

middle schools (grades 6-8) to singel-grade centers. Under 

this proposal, a child could go to five different schools 

from the fifth to the ninth grade. Its effect would have 

been absolutely disastrous. It was only after repeated 

urging from Superintendent Arveson that the Court finally 

approved, in part, a proposal maintaining the middle school 

concept. The Board's proposal for middle schools would have 

left one additional one-race school, Scotlandville Middle School 

(adjacent to Scotlandville High School, which the Court had 

closed as being too isolated to be desegregated). The Court 

rejected that portion of the proposal, requiring Scotlandville 

Middle School to remain open but ordering the School Board to 

maintain an actual enrollment of at least 601 white and not 

more than 401 black (order of May 7, 1982).
The Court's order directed implementation of its plan with 

respect to elementary schools with the opening of schools in 

August, 1981 with the provisions applying to the secondary 

schools to be implemented with the opening of schools in August, 

1982. Davis v. East Baton Rouge Parish School Board, 514 F. Supp. 

869, 874 (M.D. La. 1981). The District Court (R. 2010-2011), 
and this Court, denied the School Board's applications to stay 

implementation of the plan. Implementation of the plan, even 

after elimination of the single-grade centers, resulted in the 

loss of approximately 4,000 students after one year and, after 

two years, approximately 7,000 students.

-9-



The School Board and private plaintiff-intervenors 

both noticed appeals from that judgment. The United States 

did not. Those appeals (No. 81-3476 in this Court) have been 

consolidated with the School Board's previous appeal (No.

80-3922 in this Court). The District Court, thereafter 

continued to hear various motions filed by the parties and 

continued to issue orders placing additional requirements on 

the School Board. Some of these additional motions,.rulings, 

etc. are found in the record in Volume V, Page 1620, and pro­

ceeding through Volume VI and Volume VII of the record.

Since the record was completed and forwarded to this Court 

as of October 31, 1981, the District Court has continued to 

hold hearings on various matters and issue orders generally 

placing other additional requirements on the School Board. The 

School Board timely filed notices of appeal from those orders, 

which are the subject of these consolidated appeals and this 

brief.
Thereafter, on August 6, 1982, after approximately one year 

of implementation of the Court's elementary school plan, the 

United States filed in this Court a motion to stay further 

proceedings in this appeal to afford the District Court an 

opportunity to re-evaluate and modify its plan in light of actual 

experience. That motion advised this Court that the United 

States would prepare and provide for the District Court and 

the parties an alternative to the Court's existing desegregation

-10-



plan. See Government Motion to Stay Further Proceedings 

in this Court of August 6, 1982, Page 9. In that motion, 

the United States 3lso stated that the District Court accurately 

described the plan of their expert, Dr. Foster, as a "classic 

pair 'em, cluster 'em, and bus 'em plan." Davis v. East Baton 

Rouge Parish School Board, 514 F. Supp. 869, 873 (M.D. La. 1981).

The Government also in that motion labeled court-ordered 

transportation "...generally to be a failed experiment...".

See Government Motion to Stay Further Proceedings in this Court 

of August 6, 1982 at Page 3. On August 30, 1982, this Court 

granted that motion.
In August, 1982, the United States retained another school 

desegregation expert, Professor Christine Rossell of Boston 

University to undertake a study of this school system and the 

operation of the court-ordered desegregation plan. Dr. Rossell s 

preliminary study confirmed the Board's assertion finding that 

4,244 students had left the system since the year before the 

Court's plan went into effect. See Brief of United States in 

81-3476, Page 4 and Footnote 7.
On December 10, 1982, the United States filed with the 

District Court and the parties its proposed alternative to the 

District Court's plan "...designed to desegregate the public 

schools in a more effective manner...." As stated by the 

Government in its brief in 81-3476, at Page 5, the Rossell plan,

-11-



"...Rather than relying on mandatory assign­
ment techniques ... employed educational 
incentives to attract departing students 
back to the system and achieve a level of 
desegregation comparable to that sought by 
the District Court. Under the Rossel plan, 
desegregation was to be accomplished by court- 
ordered school closings, by encouraging the 
use of majority transfers and by magnet schools..."

In fact, the Rossell plan drew freely from, including specific

references to, the magnet school plan originally proposed by

the School Board.
Upon reviewing the proposed Rossell plan, Superintendent 

Arveson and his staff and the School Board understood the 

Rossell plan to be an alternative plan to be implemented in 

lieu of the District Court's plan for the opening of schools 

for the 1983-84 school year. Superintendent Arveson and his 

staff also felt that the Rossell plan had considerable merit.

At present, the school system is completing its second 

year under the Court's busing plan having lost approximately 

7,000 students. Projections for next year indicate a loss of 

another 1,100 students. That plan has been made even more 

onerous by subsequent orders of the District Court, which are 

the subject of these consolidated appeals. These appeals were 

also included in the stay of proceedings in this Court requested 

by the United States.

-12-



SUMMARY OF A R G U M E N T

The District Court's desegregation plan for this school 

system is presently pending in this Court in consolidated 

appeals Number 80-3922 and 81-3476. In those appeals, appellant 

School Board contends that the District Court's plan far exceeds 

any constitutional violation and, in fact, is designed to 

achieve a racial balance in virtually every school in the system 

contrary to constitutional requirements and the admonitions of 

the Supreme Court in cases cited in argument.

However, not only did the District Court's plan seek to 

achieve a racial balance, the District Court has continued to 

issue supplemental orders at the District Court level which 

clearly show his continued pursuit of racial balance at the 

elementary school level, establish a flat racial quota of 

60% white - 401 black at all magnet middle schools and all magnet 

high schools, and also establishes a flat racial quota of 601 

white - 40% black at one regular middle school. In addition, 

the District Court's supplemental orders give discriminatory 

preferential treatment to some students and holds the School 

Board responsible for the "white flight" that has occurred since 

the District Court's plan was ordered. The school system lost 
approximately 4,000 students in the first year of implementation, 

approximately 3,000 more in the second year of implementation, 

and it appears we will lose approximately 1,000 more for the 

coming school year.

-15-



Furthermore, the District Court has now established 

a series of periodic status conferences (almost monthly) 

during which the District Court involves itself in virtually 

every facit of the operation of the school system.

Appellants respectfully submit that the supplemental 

orders and actions of the District Court which are the subject 

of this appeal, when added to the District Court's original 

plan which is presently pending on appeal in this Court, paint 

an absolutely clear picture of a district court whose original 

desegregation plan improperly sought to achieve a racial balance 

in virtually every school and which is now going even further 

beyond the scope of its jurisdiction and authority with orders 

designed to recreate and maintain that racial balance. Appellants 

further submit that the District Court is involving itself in 

the day-to-day operation of every facit of the school system to 

an extent that is far beyond anything that the Supreme Court or 

this Court has approved in any of the cases cited in argument.

In one of its early decisions, the District Court stated 

that it did not want to become a "sidewalk superintendent", 

he respectfully submit that that is exactly what the District 

Court has now become.
Appellants also believe that the District Court's orders 

assessing responsibility for "white flight" on the local School 

Board, and the implications contained therein that a massive 

reassignment of elementary school students may be necessary to reachieve a

-14-



racial balance, may very veil write the end of this school

system. Every decision of the Supreme Court and this Court 

has clearly he]d that the local school authorities cannot 

be held responsible for those parents and students who leave 

the school system rather than submit to the Court's order,

In addition to the School Board having no power to stop such 

flight, holding it responsible and requiring continual reassign­

ment of students only penalizes those students who stayed with 

the public school system and complied with the Court's order.

ARGUMENT'

I. WHAT DO THE SUPPLEMENTAL ORDERS OF THE DISTRICT COURT

REQUIRE AND WHAT IS THE LAW WITH RESPECT THERETO?

A. ELEMENTARY SCHOOL ASSIGNMENT
As indicated in brief in No. 81-3476, the School Board 

contends that the District Court's May, 1981 desegregation 

plan is improperly designed to achieve a racial balance _.n 

virtually every school in the system. The supplemental orders 

of the District Court, which are the subject of this brief, 

reaffirm that pursuit of racial balance.
In its order of March 8, 1982, we find the District Court

saying with respect to the elementary schools,
"...It is apparent that some adjustment in 
student assignment must be made in the 
elementary schools for 1982. The Court 
requests that the Superintendent and his 
staff analyze the elementary school plan 
and submit" suggestions for changes in student 
assignments such that every elementary school 
...will have a racial balance closely approxi- 
matine the racial make-up of the school 
system. This suggested plan must be predicated 
upon the pairs and clusters set forth in the 
Court's order of May 1, 1981, and must be^ 
submitted on or before March 29, 1982...."
(Emphasis added). [S.R. 82-3298, \ol. I,
Page 2216] .



Again, in the Court's order of August 30, 1982, we find the

District Court saying and requiring the following:

"...The School Board is hereby ORDERED to 
assign kindergarten students for 1982-85, 
next years first grade students, on a racial 
composition assignment that reflects a 
racial composition of the cluster..."
(Emphasis added). [S.R. 82-3412, Vol. II,
Page 2820] .

We respectfully submit that the above are not the orders of a 

District Court seeking simply to meet the requirements of the 

Constitution by eliminating discrimination and denial of equal 

protection of the law, they are the orders of a District Court 

seeking to achieve racial balance.
We respectfully submit that the pursuit of such racial 

balance clearly goes far beyond the requirements of the 

Fourteenth Amendment to the Constitution and are directly 

contrary to the holdings of the Supreme Court in Milliken v. 

Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) 

that the aim of the Fourteenth Amendment guarantee of equal 

protection is to assure equal educational opportunity without 

regard to race; it is not to achieve racial integration in 

public schools and Swann v. Charlotte-Mecklinberg Board of 

Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, that the 

Constitution does not require any particular racial balance in 

schools and district courts that attempt to achieve such racial 

balance should be reversed. It would appear clear, that in

-16-



this school system, the District Court is attempting to do 

exactly what the Supreme Court has repeatedly said it should 

not do.
B. HOLDING SCHOOL BOARD RESPONSIBLE FOR FAILURE OF 

ELEMENTARY SCHOOL PLAN DUE TO "WHITE FLIGHT"

When the District Court’s racial balancing, pairing­

clustering, desegregation plan did not work , the District 

Court immediately assessed the School Board with the responsi 

bility for such failure. The District Court's determination 

that its plan was not "working" was based upon the fact that 

most of the formerly all black schools, which were paired and/or 

clustered with formerly all white schools, such as Harding, 
Progress, Ryan, Belfair, Eden Park, Dufrocq, and Buchanan, were 

still predominantly black after his plan was implemented.

Although not mentioned in the District Court's supplemental 

opinion and order, it is also a fact that many of the formerly 

all white elementary schools, such as Audubon, Broadmoor,

LaSalle, and Goodwood have now also become either majority or 

predominantly black. The supplemental opinion and order of the 

District Court is found at S.R. 82-3412, Vol. II, Pages 2815-2823.
Although the District Court apparently recognized, at least 

to some degree, that "white flight" was primarily responsible 

for the previous all black elementary schools remaining predomi­

nantly black (it is, of course, also primarily responsible for 

the previous all white elementary schools becoming majority or

-17-



predominantly black), it assesses the blame and responsibility 

therefor, by a strange and rather convulted reasoning process, 

on the School Board. We respectfully suggest that the District 

Court's reasoning is incorrect and that its assignment of the 

responsibility for such "white flight" to the School Board is 

contrary to the decisions of the Supreme Court, this Court, and 

other courts of appeal.
The District Court begins its discussion of this problem

with what appears to be the incorrect assumption that when its

plan failed to eliminate previously all black elementary schools

due to "white flight", the School Board and/or the District

Court then had the responsibility of again reassigning the

remaining students by some method of assignment which would

hopefully create a racial balance in those schools. At Page

2816, we find the District Court beginning its discussion with

the following statement:
"...The continuing duty of the School Board 
is, however, to desegregate the entire school 
system and the 1981-82 effort left too many 
black schools remaining at the elementary 
level. The system is not desegregated until 
there are no ’black' schools and no 'white' 
schools, simply schools. It is this Court's 
duty to call for additional remedial measures 
where necessary...."

We would point out that the "1981-82 effort" of the School Board 

was implementation of the District Court's pairing-clustering 

plan.
Beginning on Page 2817 and continuing through Page 2820, 

the Court below discusses the assignment procedure used by the

-18-



School Board for elementary students and by a rather strange 

reasoning process, concludes that such procedure, and not 

dissatisfaction of parents with the Court's plan, caused the 

"white flight" and the resulting continued existence of pre­

dominantly black schools. The Court first notes that it 

granted the School Board permission to establish special schools, 

such as a "fundamental school" or a "continuous progress school" 

at one or more of the elementary schools contained in the Cojrt s 

three and four school clusters. The School Board's purpose in 

requesting permission to establish these special schools was to 

give parents more options or choices in the hope that they \\ ould 

remain with the school system in order for the Court s plan to 

work.
Actually, the elementary student assignment procedure 

utilized by the School Board was simple, computerized, correct, 

logical, and virtually the only procedure that could be utilized 

in assigning students to elementary school under the Court's 

pairing-clustering plan. First, the School Board utilized as 

its bank or pool of students available for assignment, all students 

who attended the public elementary schools in grades K-5 for the 

1980-81 school year. The Court's elementary school plan, which 

was to be implemented for the 1981-82 school year was made public 

on May 1, 1981. The survey of available elementary students and 

the process of reassignment under the Court's plan commenced in 

late May and June of 1981.

-19-



After ascertaining, through the computer, the names of 

all aArailable elementary age students in the public school 

system, the School Board sent forms to each student in each 

cluster showing the three or four schools available to that 

student under the Court's plan. Where a special "fundamental" 

or "continuous progress" school had been established in a 

cluster, the form gave the parents the option of listing their 
first, second, and third choice of schools within their particular 

cluster. This form went to the parents of every elementary 

student who attended public schools the preceeding year, as the 

School Board had no way of knowing that any of those students 

would not attend public schools the following year under the 

Court's plan.
This information was assembled on the basis of each three 

school or four school cluster created by the Court's plan. A 

breakdown of the number and/or percent of students in each 

cluster who did and did not respond and submit a preference 

form is as follows:

CLUSTER #1
Registration Forms 
Not Returned

Total Number Percentage 
in Cluster Not Returned

Eden Park 
Audubon 
Belfair 
Broadmoor

175 1289 14%

CLUSTER #3

Brookstown 
North Highlands 
Delmont

195 1107 18%

-20-



CLUSTER #4
Registration Forms 

Not Returned
Total Number 
in Cluster

Percentage 
Not Returned

Brownfields
Ryan
Tanglewood

188 1175 16%

CLUSTER #5

Buchanan 
Highland 
Magnolia Woods

112 830 13%

CLUSTER #6

LaSalle 
Dufrocq
Cedarcrest-Southmoor 
Goodwood

202 1275 16%

CLUSTER #8

LaBelle Aire 
Glen Oaks Park 
Forest Heights 
Greenbrier

236 1642 14%

CLUSTER #9

Villa Del Rey 
Howell Park 
Greenville 
Red Oaks

109 1285 8%

CLUSTER #10

Progress 
Parkridge 
Harding 
White Hills

226 1366 17%

CLUSTER #12

Lanier 
Merrydale 
Park Forest

149 1305 11%

CLUSTER # 14

Westdale 
Walnut Hills 
Westminster

122 819 15%

-21-



The above information, with respect to each cluster, 

was fed into the computer together with an additional factor 

being the racial composition of that particular cluster as 

mandated by the Court's order and the computer then randomly 

selected students for assignment to particular schools based 

upon the preference stated by the student subject to the limita­

tion established by the racial balance quota established by 

the Court's plan for each cluster. The racial balance or quota 

for each school in the cluster was the paramount factor in such 

assignments. This procedure resulted in each school in the 

cluster having an assigned student enrollment of the approximate 

racial composition of the cluster as a whole.
We respectfully suggest that the procedure utilized by the 

School Board, as set forth above, is the only logical way to 

assign students under the Court's plan, and that any school 

system, or even any court, would have utilized the same procedure 

under these circumstances. This procedure effectively assigned 

to the elementary schools for the 1981-82 school year under the 

Court's plan every student that we could reasonably expect to 

attend the public schools.
However, when school opened for the 1981-82 school year 

under the Court's plan in late August, white flight from the 

Court's plan became apparent, as many of the previously all black 

elementary schools remained predominantly black and some of the 

previously all white elementary schools had become 50-50 or 

majority white. At the present time, some of those previously

-22-



all white schools have now also become predominantly black. 

The Court below, as indicated heretofore, immediately blamed 

the School Board, and particularly its assignment procedure, 

for the failure of the Court's plan to "work".
For example, at Page 3 of the Court's August 30, 1982 

opinion and order (S.R. 82-3412, Vol. II, Page 2817) we find 

the Court saying,
"...Most white parents who intended to send 
their childred to East Baton Rouge Parish 
Public Schools in 1981-82 stated their pre­
ferences . Fewer black parents stated 
preferences, but some did. Most white parents 
who stated a preference chose location over 
the program offered at the school. Few white 
students chose formerly all black schools. A 
significant number of white students submitted 
no preference. This "no preference" group 
included all students who had attended school 
in 1980-81 but who had neither expressed a 
choice, nor informed the school officials 
that they would not return to school in 1981-82.
The white "no preference" group was composed in 
great measure of those white students who had 
either moved away or enrolled in private schools 
Tor 1981-82.

All the names in the "pool" thus created, 
were fed into the computer and "passes" were 
made based upon first choice, second choice, and 
third choice, depending upon the number of schools 
in the cluster. Other factors, such as school 
capacity and racial balance were also fed into 
the computer. Most parents who stated a preference 
received their first or second choice and the 
formerly all white schools (most chosen by white 
students) were pretty well filled on the first and 
second "passes." That left the formerly all black 
schools (least chosen by whites) to be filled on 
the final "pass." Those unassigned until the last 
"pass" included, as noted above, students who had 
already left the school sys~tem but who had not 
notified the School Board..77" (Emphasisadded).

-23-



The obvious problem with the Court's reasoning, as set 

forth above, is that the School Board had no way of knowing 

at the time it used its logical assignment procedure that the 

students the Court refers to would not attend the public 

school system. (The School Board did, in fact, eliminate 

from the pool every student who indicated that they were not 

returning to the school system the following year for whatever 

reason). It is not at all unusual for the parents of many 

students in a school system to fail to respond to this type of 

survey or any other survey which a school system might conduct.

The District Court even admits the School Board could not 

have known when it refers to "...students who had already left 

the school system but who had not notified the School Board..." 

As a matter of fact, even now, we do not know for sure how many 

of the white students who have left the school system were in 

the group who did not submit a preference as compared to the 

group which did submit a preference but who were still not 

satisfied with their assignment and the Court's plan.
For the School Board to have done what the Court apparently 

implies they should have done, i.e., exclude from assignment all 

students who did not submit the preference form and assign only 

those students who did submit the preference form, could have 

resulted in utter chaos at the opening of school in August, 1981 

when all or most of those children showed up to attend school 

without knowing to which school they had been assigned. No

-24-



school system can effectively operate on the basis of 

assignment of only substantially less than its potential 

number of students. Any professional educator and admini­

strator will so testify, as did Superintendent Arveson.

Again, at Page 2818, we find the Court saying,

"...The School Boaid, the Superintendent and 
the staff have insisted and, still insist, 
to the court that the failure to desegregate 
these black schools is the result of "white 
flight," not the assignment procedure. The 
fly in the ointment w ith that approach is 
that the "white fT.Lght" (if, indeed, that 
is what it was) occurred before, not after, 
the assignments were madel By including In 
the assignment "pool" the names of white 
students who had already left the system and, 
therefore indicated no preference of school, 
the procedure used contaminated the results.
The assignment procedure utilized guaranteed 
that the "undesirable" black schools would 
remain black because most of the white students 
assigned to them had already left the system..."
(Emphasis added).

Here again, the Court makes several incorrect assumptions.

First, he assumes that the "white flight" occurred before, not 
after, the assignments were made. There is simply no evidence of that 

in this record and the true fact probably is that no white flight 

occurred prior to May 1, 1581, the date of the Court's order, 

and what white flight did cccur probably continued throughout 

the summer until the opening of schools in last August. Next, 
the Court assumed that the only reason for many students not 

returning the preference form was again that they had "...already 

left the system...". Again, there is simply no evidence in this 

record to support that conclusion. The probabilities are that 

many white parents, like the many black parents who did not

-25-



submit preference forms, did so because they didn't care, 

they didn't take time, they were looking forward to vacation 

time with their children, and various other reasons including, 

of course, that they would not continue their child in public 

school under the Court's plan in any event.

On Page 2819, the District Court again makes a final

conclusion, unsupported by any evidence, that,

"...The assignment procedure utilized 
guaranteed that the 'undesirable' black 
schools would remain black because most 
of the white students assigned to them had 
already left the system... (Emphasis added).

Not only was there no evidence in the record to support the 

District Court's assumptions and conclusions, we would respect­

fully suggest that the evidence actually shows that the "assign­

ment procedure" used by the School Board was not only logical, 

but could have had, at best, only a minimal effect on the Court's 

plan "not working".
For example, we would refer the Court to the figures set 

forth heretofore with respect to the number of students and 

percentage of students in each cluster who did not return 

preference forms. The percentage of students not returning 

preference forms in each cluster ranges from a low of 8% to a 

maximum of only 18% for an average of only 14% for all clusters. 

The total number of students in all ten clusters who did not 

return preference forms is only 1,714. And, these percentages 

and figures also include many black students who likewise did

-2 6-



not return the preference forms as noted by the District 

Court in its opinion. Yet, in the first year of implementa­

tion of the Court's plan, at the elementary school level only, 

the school system lost approximately 4,000 students.
We respectfully suggest that these figures, and the facts, 

make it absolutely clear that the District Court cannot, and 

should not, blame the School Board for the failure of the 
District Court's pairing-clustering-busing plan to "work".

The only time such a plan ever works is during the brief period 

when someone is sitting down at a desk or library table working 

with numbers on a sheet of paper. They never work on the ground 

when the school system must transpose the numbers on the sheet 

of paper to real children and their parents.
One might inquire - Of what moment is all of this? hhat 

difference does it make as to whose fault it is that the Court s 

plan did not work or the reason that the Court's plan did not 

work? We respectfully submit that the answer is immediately 

discernable and of the utmost importance.
First, the District Court's pairing-cluster-busing plan 

which requires the cross-town busing of thousands of small 

elementary school students away from their neighborhoods m  the 

pursuit of racial balance goes so far beyond the Fourteenth 

Amendment to the United States Constitution and decisions of 

the Supreme Court with respect thereto, and is so far beyond 

the proper function, jurisdiction, and authority of a District

-27-



Court under our federal system, that it should not be 

countenanced. Such a plan is, in fact, contrary to the 

holdings of the Supreme Court and in Milliken and Swann 

cited heretofore.

In Swann, supra., the Supreme Court clearly and firmly 

stated,

"...If we were to read the holding of the 
District Court to require, as a matter of 
substantive constitutional right, any parti­
cular degree of racial balance or mixing, 
that approach would be disapproved and we 
would be obliged to reverse...." (28 L.Ed.2d 
554 at 571) .

Although it is true that the District Court found some schools 

to be too "racially isolated" to be desegregated, closing several 

schools and allowing a few to remain open (at least temporarily) 

as racially identifiable schools, it is clear that the District 

Court's original May 1, 1981 plan was designed to acheive the 

60-40 racial balance in all remaining schools. The supplemental 

orders, which are the subject of these appeals, clearly reconfirm 

that purpose and intent of the Court below.
However, these supplemental orders of the District Court 

go far beyond, and are even contrary to, the Constitution and 

holdings of the Supreme Court in another important respect.

They clearly hold the School Board responsible for white flight 

over which the School Board has no control whatsoever. The 

Constitution only prohibits and controls Government or state 

action. The pertinent portion of the Fourteenth Amendment to 
the Constitution on which this litigation is based, says only 

that,

-28-



"AMENDMENT XIV. Section 1. ...No state
shall make or enforce any law which shall 
abridge the privileges or immunities of 
citizens of the United States; nor shall 
any state deprive any person of life, 
liberty, or property, without due process 
of law; nor deny to any person within its 
jurisdiction the equal protection of the 
laws...." (Emphasis added).

The cases are legion that this amendment applies only to 

the states and does not apply to private individual citizens.

The jurisprudence is also clear that neither the state 

nor its agencies, i.e., this School Board, can be held responsible 

for the discriminatory acts or conduct of private individual 

citizens in school desegregation cases or otherwise. Dayton 

Board of Education v. Brinkman, 433 U.S. 406, 53 L.Ed.2d 851,

97 S.Ct. 2766 (1977) (Dayton I); Dayton Board of Education v. 

Brinkman, 443 U.S. 526, 61 L.Ed.2d 720, 99 S.Ct. 2971 (1979) 

(Dayton II); Columbus Board of Education v. Penick, 443 U.S.

449, 61 L .Ed.2d 666, 99 S.Ct. 2941, reh den 62 L.Ed.2d 121, 100 

S.Ct. 186 (1979); Austin Independent School District v. United 

States, 429 U.S. 990, 50 L.Ed.2d 603, 97 S.Ct. 517 (1977);

Village of Arlington Heights v. Metropolitan Housing Development 

Corporation, 429 U.S. 252, 50 L.Ed.2d 450, 97 S.Ct. 555 (1977) 

and City of Mobile v. Bolden, 446 U.S. 55, 64 L.Ed.2d 47, 100 

S.Ct. 1490 (1980). See also, Pasadena City Board of Education 

v . Spangler, 427 U.S. 424, 49 L.Ed.2d 599, 96 S.Ct. 2697 (1976); 

United States v. Southpark Independent School District, 566 F.2d 

1221 (5th Cir. 1978); United States v. Texas Educational Agency, 
606 F .2d 518 (5th Cir. 1979); and Ross v. Houston Independent 

School District, F.2d ___ (No. 81-2323, 5th Cir. Feb. 16,

1983).
-29-



As the Supreme Court said in P a s a d e n a , 49 L.Ed.2d 599

at 607-609,

"...The District Court apparently believed 
it had authority to impose this requirement 
even though subsequent changes to the racial 
mix in the Pasadena schools might be caused 
by factors for which the defendants could 
not be considered responsible. Whatever may 
have been the basis for such a belief in 
1970, in Swann the Court cautioned that 'it 
must be recognized that there are limits' 
beyond which a court may not go in seeking 
to dismantle a dual school system. Id. at 
28 , 28 L .Ed.2d 554 , 91 S.Ct. 1267 ___ "

Or, as Mr. Justice Powell stated it in his concurring opinion

in Austin, supra., while discussing desegregative effect of

residential housing patterns,

"...Such residential patterns are typically 
beyond the control of school authorities.
For example, discrimination in housing-- 
whether public or private--cannot be attri­
buted to school authorities..." (Emphasis 
added).

Obviously, the same reasoning would apply to the flight of 

white students from the public schools to private schools, 

which is likewise beyond the control of the School Board.

What is the likely practical result if the District Court 

is permitted to continue to hold the School Board responsible 

for the white flight which has occurred because of the District 

Court's plan? Although the District Court has not yet ordered 

a massive reassignment of the remaining elementary students 

in the school system, he has clearly intimated that the Board 

must devise a plan to do so with the clear implication that if

-50-



the Board does not, the District Court will. Another 

reassignment of the remaining elementary students in this 

school system would be catastrophic and would result, almost 

immediately, in a virtually all black system.
As noted heretofore, in the District Court's order of 

March 8, 1982 (S.R. 82-3298, Vol. I, Page 2216), we find the

Court saying,
"III. Elementary Schools

It is apparent that some adjustment in 
student assignment must be made in the elem­
entary schools for 1982. The court requests 
that the Superintendent and his staff analyze 
the elementary school plan and submit sugges­
tions for changes in student assignments such 
that every elementary school (excluding those 
which the court indicated would remain as 
one-race) will have a racial balance closely 
approximating the racial make-up of the school 
system. This suggested plan must be predicated 
upon the pairs and clusters set forth in the 
court's order of May 1, 1981, and must be sub­
mitted on or before March 29 , 1982." (Emphasis added).

Again, in his order of April 30, 1982 (S.R. 82-3298, Vol. I,

Page 2335), we find the Court saying,
"...And additional changes in student assign­
ments must be made, if necessary to achieve 
elimination of the dual system....the court is 
particularly concerned about student enrollment 
at Ryan, Harding, Progress, Belfair, Delmont,
Eden Park, Dufrocq, and Buchanan Elementary 
Schools. These former all black schools 
continue to have black enrollments far out of 
proportion to the ratio of the system as a 
whole; they are, therefore, still perceived as 
black schools....Tf the School Board, Superin­
tendent and staff, fail to suggest remedial 
measures, the responsibility will then fall on 
the Court by default...." (Emphasis added).

- 31-



In its order of August 30, 1982, we again find the Court

contemplating reassignment of students when it says,

"...The utilization of the elementary assign­
ment procedure must stop. Whether the Board 
can factor a 'preference' or choice into 
school assignment for future students 
entering the system, depends upon whether 
the Board can devise an assignment procedure 
that will recognize parental choices but will 
also desegregate the 'black' schools.

The court hereby refers this matter to 
Special Master W. Lee Hargrave for further 
consideration and the conducting of any 
hearings that may be necessary to determine 
an equitable and effective assignment procedure 
for students entering the system in the future..." 
(S.R. 82-3412, Vol. II, Page 2820).

Although the Court below has not yet ordered such a massive

reassignment of students, the implication is clear that it

intends to do so. The result of any such massive reassignment

would be disastrous and this Court must tell the District Court

that it has gone beyond its authority.

C. BATON ROUGE MAGNET HIGH SCHOOL RACIAL QUOTA 

However, the Court below does not stop with merely general 

assertions and requirements of achieving a racial balance in 

the schools, it goes further and establishes a specific racial 

quota iji two schools, namely, Scotlandville Middle School and 

the Baton Rouge High Magnet School. The racial quota established 

by the Court below is 601 white and 40% black, which was the 

system-wide racial composition at the time the Court's desegre­

gation plan was ordered. Prior to that time, the system- 

wide racial composition had been approximately 65% white and 

35% black. The present system-wide composition is approximately 

50-50.
-32-



The Baton Rouge High Magnet School was the first 

magnet school created by this School Board in 1972. It 

has operated successfully since that time and is known to 

be an excellent school offering exceptional educational 

opportunities to students who qualify for admission. It has 

received national attention, been visited by other school 

systems, and only recently was selected as one of the finalists 

schools in a nationwide competition for schools of excellence.

However, the District Court with a short one paragraph

minute entry order, establishes a discriminatory racial quota

for that school by providing that,
"...It is ordered that the magnet school 
admissions policy now used by the School 
Board is hereby modified so as to eliminate 
that portion of the policy which permits 
white student applicants to be admitted in 
any proportion greater than 601 of the 
total enrollment...." (Emphasis added).
(S.R. 82-5412, Vol. II, Page 2814).

The obvious question - Under such a quota system, what happens

to fairness and non-discrimination if 200 students apply

for admission and only 40 of them are black? Answer - 100 white

students are discriminated against because they happen to be

white and/or because black students did not choose to avail

themselves of this excellent educational opportunity. There is

simply no decision of the Supreme Court, of this Court, or any

other appellate court, much less the Constitution of the United

States, which permits the imposition of such discrimination and

denial of equal protection of the law by a United States District

Court.
-35-



D. SCOTLANDVILLE MIDDLE SCHOOL RACIAL QUOTA

The 601 white - 401 black racial quota established 

for Scotlandville Middle School by the District Court's 

order of April 30, 1982 (S.R. 82-3298, Vol. I, Page 2323 

at 2331) is somewhat different from the Baton Rouge Magnet 

High racial quota situation. First, Scotlandville Middle 

School is not a magnet school requiring special qualifications 

for eligibility for admission, it is simply a regular middle 

school.
Secondly, the District Court's assignment plan for 

Scotlandville Middle reassigned white students from the 

Parkridge Subdivision immediately adjacent to the Baker Middle 

School and bused them to Scotlandville Middle School. When 

the white students did not show up at Scotlandville Middle 

School because of having fled the school system to private 

schools, the Court's 60-40 racial quota required the reassignment 

and busing of approximately 150 black students from Scotlandville 

Middle School in the northwest area of the parish to Broadmoor 

Middle School and Southeast Middle School in the eastern and 

southeastern portion of the parish.

Third, the District Court's order first penalized the

students who were assigned to, but did not attend, Scotlandville

Middle School by providing that such students could not,

"...Thereafter be accepted into the East Baton 
Rouge Parish school system at any grade level 
except upon specific authorization by the Court 
after demonstrating to the Court that the reason 
for not attending was unrelated to desegregation.
..." (S.R. 82-3298, Vol. I, Page 2332).

-34-



Fourth, that same order gave all students, black or white, 

who attended Scotlandville Middle School for at least two 

years, or for the 1982-83 school year only, a preference 

over all other students in the school system "...to attend 

Baton Rouge Magnet High School or (if established by the 

Board) Scotlandville High Magnet School."

Although the District Court did, on its own motion, 

recall its prohibition against the students ever returning 

to the public school system at any grade level as not being 

in keeping with the teaching of Valley v. Rapides Parish School 

Board, 646 F.2d 925, 944 (5th Cir. 1981) and Pierce v. Society 

of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed.2d 1070 (1925) 

its order still maintains a discriminatory preference for 

students who attend Scotlandville Middle School. This is a 

particularly onerous provision in that it gives students who 

attend Scotlandville Middle School a preference for magnet high 

school admission over other students who stayed with the public 

school system even though they were reassigned under the Court's 

plan to some other desegregated middle school over their objections.

Several other factors are also worth noting with respect 

to the 60-40 racial quota imposed at Scotlandville Middle School. 

First, the District Court's May 1, 1981 plan closed Scotlandville 

High School because the District Court found it too racially 

isolated to be desegregated. Scotlandville Middle School is 

located immediately adjacent to Scotlandville High School and the 

same reasoning should have applied.

-35-



Secondly, no party to this litigation, nor any expert 

employed by any party, suggested converting the school system’s 

existing middle school concept (grades 6-8) to the single-grade 

centers contained in the Court's plan. This was purely an

innovation dreamed up by the Court.
Superintendent Arveson immediately voiced strong objections

to this single-grade center plan and pointed out that it could

require a student to go to five schools in a five year period;
an elementary school in the fifth grade, a different sixth grade

center school, a different seventh grade center school, a
different eighth grade center school, and a different high school

for the ninth grade. He also pointed out to the Court that
another District Court in Louisiana had only recently, on May 19,

1980, issued an opinion and order which rejected and discontinued

a similar single-grade center plan. That order and opinion

(Honorable Tom Stagg, Judge presiding) stated at Page 4:
"...To desegregate the junior high and high 
schools, the decree implemented a curious 
change rule that turns students in certain 
zones into 'mexican jumping beans . In some 
cases, a student would be required to change 
schools five times between the seventh and 
twelfth grades..."

and,
"...The present plan, especially the multiple 
annual school change of the Lee-Carroll- 
Neville debacle is educationally unsound...

See CA No. 11,297 Andrews, et al. v. City of Monroe, et a h  

consolidated with CA No. 12,171, Taylor, et al. u. Ouachita 
Parish School Board, et al., including footnote 9 which shows 

the rejected single-grade assignments.

-36-



Superintendent Arveson then filed a middle school plan 

with the Court, which effectively desegregated every middle 

school in substantially the same degree as the Court's single 

grade center plan with the exception of Scorlandville Middle 

School, which he felt was, like ScotlandvilLe High School, 

too racially isolated to be desegregated. Part of the problem 

with Scotlandville Middle School was that all of the surrounding 

middle schools were already desegregated and assigning black 

students from Scotlandville Middle School to those schools 

while reassigning white students from those schools to Scotland­

ville Middle School would have resulted in those schools becoming 

majority or predominantly black as well.
Although the United States admitted in its response that 

the middle school concept was a constitutionally viable method 

of desegregating the middle schools, it suggested that Superin­

tendent Arveson's plan be modified by closing Park Forest Middle 

School. This proposal was unacceptable because Park Forest is 

one of the larger middle schools, is a relatively new school 

and possible the finest middle school faciLity in the system. 

Furthermore, under Superintendent Arveson's plan it was already 

thoroughly desegregated. The District Court rejected Superinten­

dent Arveson's middle school proposal.
Thereafter, the School Board wrestled with the problem of 

finding a way to successfully desegregate Scotlandville Middle 

School, but was unable to reach a concensus. It did, however,

- 3 7 -



direct Superintendent Arveson to submit various alternatives 

which had been considered, some suggested by parent groups, 

to the Court for its consideration. The District Court also 

rejected these proposals. (S.R. 82-3298, Vol. I, Page 2203).

At a subsequent status conference, the Court suggested 

that further discussion with respect to the middle schools 

might prove fruitful and a series of such discussions were 

subsequently held between Superintendent Arveson and undersigned 

counsel with counsel for the Justice Department, the United 

States Attorney, and counsel for private plaintiffs. During the 

last of these discussion sessions, considerable attention was 

given to the possibility of placing a magnet component at 

Scotlandville Middle School. The parties then reported their 

progress to the Court and during such discussion, Superintendent 

Arveson agreed, due to the short time before opening of schools 

and implementation of the secondary school plan, to provide the 

United States and private plaintiffs with a specific magnet 

component for Scotlandville Middle School the next day.
The United States responded a few days later requesting 

extensive additional specific information which would have been 

virtually impossible for Superintendent Arveson and his staff 

to provide in the short time available. However, any possibility 

of agreement and consent decree with respect to middle schools 

was eliminated a few days later when private plaintiffs advised 

the Board that they would not agree to any revision of the

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Court's May 1, 1981 order with respect to middle schools 

unless the School Board would agree to

(a) Close Park Forest Middle School
(f) Dismiss its pending appeals

The Court then issued its order of March 8, 1982 rejecting 

the School Board's middle school proposal.
Superintendent Arveson then made one last effort to 

save the middle school concept by using three ethnic groups 

to desegregate Scotlandville Middle School. As indicated 

heretofore, Superintendent Arveson's original plan for the 

middle schools successfully desegregated all of the middle 

schools with substantially the same student body racial compo­

sition as the Court's single-grade centers, except for Scotland- 

ville Middle School. The problem with Scotlandville Middle 

School was that if you reassigned black students from Scotlandville 

Middle to the other surrounding middle schools and reassigned 

white students from those schools to Scotlandville Middle School, 

the racial composition of the other middle schools would have 
passed the "tipping point" and become majority black and later 

predominantly black or all black.

Dr. Arveson's final alternative plan was designed to maintain 

a workable racial composition at the other middle schools by 

reassigning some white students into Scotlandville Middle School, 

some black students out of Scotlandville Middle School, and add 

a third ethnic group, Vietnamese students by adding to the 

curriculum at Scotlandville Middle a strong special English

-39-



language component for the Vietnamese students. The School 

Board supported this proposal and it was filed with the 

Court on March 30, 1982. (S.R. 82-3298, Vol. I, Page 2246).

The United States responded to this proposal stating that 

they neither affirmatively supported or opposed this latest 

proposal. However, they did indicate and suggested to the 

Court, that other alternatives which the parties had discussed 

and "...more specifically, the plan developed by Superintendent 

Arveson, which included the magnet school proposal for Scotland- 

ville Middle School..." would be preferable. (S.R. 82-3298,

Vol. I, Pages 2299 and 2300).
By order issued April 30, 1982, the District Court also 

rejected this latest proposal by Superintendent Arveson and 

the School Board while ignoring the Government's recommendation 

with respect to the Scotlandville Magnet School program. Although 

the Court did finally accede to Superintendnet Arveson's strong 

and continuing plea for abandonment of the Court's single-grade 

centers in favor of the middle school concept, it modified, 

without recommendation from any party, Superintendent Arveson's 

middle school proposal with what the Court referred to as "minor 

modifications". These "minor modifications" however, reassigned 

black students out of Scotlandville Middle School into surrounding 

middle schools and reassigned white students out of the surrounding 

middle schools into Scotlandville Middle School which, though 

resulting in Scotlandville Middle School being only 38-a black, 

made Baker Middle School 531 black and Northwestern Middle School 

521 black.

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These "minor modifications" also took white students

from Parkridge Subdivision, which is immediately adjacent

to Baker Middle School and reassigned them a considerable

bus ride away to Scotlandville Middle School. This order

also, as mentioned heretofore, established the 60-40 racial

quota at Scotlandville Middle School providing that,

"...The School Board is further ORDERED 
to maintain the actual enrollment at Scot­
landville Middle School at least 601 white; 
conversely, this means that the actual black 
enrollment shall not exceed 40%...."

Why not the same 60-40 racial quota for Baker Middle SchooL

and Northwestern Middle School? This order also prohibited

any student assigned to Scotlandville Middle School who did not

attend from ever again attending public schools at any grade

(this provision was later recalled by the Court on its own

motion as being not in accordance with the teaching of Valley v .

Rapides Parish School Board, supra.) and established an absolute

preference for admission to any magnet high school for any

student who attended Scotlandville Middle School for two years

or who attended Scotlandville Middle School during the 1982-83

school year. (S.R. 82-3298, Vol. I, Pages 2323-2336 at 2331 and

2332) .
On May 7, 1982, the District Court issued another supplemental 

and amending order reaffirming its 60-40 racial quota at Scotland­

ville Middle School and requiring the Board to report within 

ten days after the beginning of the school term if the racial

-41-



quota at Scotlandville Middle School had not been met 

and was becoming racially identifiable. (S.R. 82-3298,

Vol. I, Page 2341).
During the summer preceeding the beginning of the 

1982-83 school year, the Board and Superintendent Arveson, 

in good faith, prepared for implementation of the District 

Court's secondary school plan, including assigning students 

to Scotlandville Middle School exactly as ordered by the Court.

Of course, there is no way for any school system to know what 

the actual enrollment at any school will be until the school 

year begins and students actually appear at such school for 

registration and attendance. In the case of Scotlandville 

Middle School, a substantial proportion of the white students 

reassigned from other middle schools to Scotlandville, left 

the public school system for private schools, etc., and did 

not attend Scotlandville when school opened.
Shortly after school opened for the 1982-83 school year, 

on September 21, 1982, the School Board filed the report 

required by the Court's previous order as to whether or not 

it had achieved the racial balance or racial quota of 60% white - 

401 black, at Scotlandville Middle School. This report indicated 

that due to "white flight" the Court's racial quota had not 

been achieved, included the names of students assigned to 

Scotlandville Middle as directed by the Court, and included 

various alternatives, with the merits and demerits of each,

-42-



which Superintendent Arveson and the Board had considered 

in attempting to achieve the Court's prescribed racial 

quota.
This report indicated that with the loss of white 

students from the school system, including those previously 

assigned to Scotlandville Middle School, the only way to 

achieve the Court's 60-40 ratio at Scotlandville Middle was 

to reassign approximately 160 black students from Scotlandville 

Middle School to other middle schools. The report also clearly 

indicates that all of the surrounding middle schools had already 

become majority black and that the only middle schools with 

substantial white majorities with capacity to absorb the 160 

black students were located across town in the east-southeast 

portion of the parish. (S.R. 82-3412, Vol. II, Pages 2864-2888; 

See Exhibit "F" at Page 2886).
After status conferences with regard to Scotlandville 

Middle School, the Court issued an order September 30, 1982 

directing the Board to reassign approximately 150 black students 

from Scotlandville Middle School to Southeast Middle School and 

Broadmoor Middle School so as to accomplish a racial balance 

of approximately 551 white, 451 black, at each of the three 

middle schools involved. (S.R. 82-3412, Vol. II, Page 2925). 

Although the School Board immediately reassigned the 150 black 

students from Scotlandville Middle School as directed b\ that 

order, the District Court felt contrained to issue another

-43-



minute entry order on October 4, 1982, which criticized 

the School Board for permitting the enrollment at Scotland- 

ville Middle School to have gotten out of racial balance 

at all, stating that steps should have been taken prior to 

the opening of school to be sure that ..the actual black 

enrollment never exceeded 401..." and indicating the the Court 

had seriously considered sanctions against the School Board 

for such failure. But, the failure was not caused by the 

School Board, the failure was caused by the white students 

and their parents who left the public school system rather than 

be bused to Scotlandville Middle School. (S.R. 82-3412, Vol. 

Ill, Page 3110-3112).
We respectfully submit that this obsession of the District 

Court with achieving racial balance and its continuing and 

apparently never ending pursuit thereof, even to the extent 

of imposing specific racial quotas and granting discriminatory 

preferential treatment to some students, go far beyond constitu­

tional requirements and are directly contrary to the many 

decisions of the Supreme Court and this Court. Dismantling a 

dual school system, the Supreme Court has said,
"...does not require any particular racial 
balance in each 'school, grade, or classroom.
Milliken v. Bradley, 418 U.S. 717, 740-41 
(1974) .

In Swann, supra., the Supreme Court clearly said that if 

they perceived the District Court to be attempting to achieve

-44-



a particular racial balance, they "...would have been 

obliged to reverse...." (28 L.Ed.2d 554 at 571). There 

is simply no decision of the Supreme Court, this Court, 

or any other court of appeals that has ever approved the 
establishment of racial quotas for schools such as the 

District Court has done, and is continuing to do, in this 

case.

E. OTHER ACTIONS AND REQUIREMENTS OF THE DISTRICT
COURT WHICH INTRUDE INTO THE DAY-TO--DAY OPERATION 
OF THE SCHOOLS BEYOND THE JURISDICTION AND AUTHORITY 
OF A DISTRICT COURT

In addition to the clearly impermissible pursuit of racial 

balance, establishing racial quotas, providing for ciscriminatory 

preferential treatment, and assessing the school authorities 

with responsibility for "white flight", the District Court's 

orders, and the directions given in the monthly status conferences 

further impermissibly intrude into the day-to-day operation of 

the school system.
For example, the School Board must obtain District Court 

approval (or opposing party approval) before it can use any of 

the closed schools for other than classroom use or even lease 

those buildings to the City Government or charitable organizations 

(See order of April 30, 1982, S.R. 82-3298, Vol. I, Pages 2332- 

2334). It has ordered the School Board to expend a considerable 

sum of money in renovating and upgrading specific facilities 

requested by the United States. (S.R. 82-3298, Vol. I, Page 

2363).

-45-



It overturned the School Board's policy of recruiting 

white students for the magnet school components placed at 

two previously all black elementary schools from only 

elementary schools which had a 651 white majority and ordered 

them to accept any white student from any school which was 

only majority white. This has resulted in some formerly 

majority white elementary schools becoming majority or pre­

dominantly black. (S.R. 82-3412, Vol. II, Page 2821). It 

has now applied the 60-40 racial quota for Baton Rouge Magnet 

High School to all magnet schools. (S.R. 82-3412, Vol. II,

Page 2822) and, the Court below has now established a procedure 

for holding periodic status conferences (virtually on a monthly 

basis) which the Superintendent is required to attend and in 

which virtually every facit of the operation of the school system 

is discussed and in which conferences the Superintendent is given 

verbal directives by the Court with respect thereto. (S.R. 82-3412, 

Vol. Ill, Page 5112).
These periodic status conferences have covered such matters 

as the School Board's suspension policy, reducing enrollment 

at the remaining one-race schools, matters of curriculum, the 

small number of black students who qualify for the Gifted and 

Talented Program (the Gifted and Talented Program is a part of 

the Special Education Program which is mandated by PL 94-142 as 

supplemented by Act 754 of the Louisiana Legislature) with 

consideration of the possibility of prohibiting this school 

system from offering such program, the policy, or lack of policy,

-46-



of the School Board with regard to the use of school 

facilities by students for social events such as senior 

proms, and the School Board's Reduction in Force Policy 

(adopted by the Board due to financial difficulties and 

the necessity of reducing the budget by approximately Four 

Million Dollars). It seems that these status conferences 

also result in Superintendent Arveson and his staff being 

given several weeks additional work in preparing reports 

requested by the United States or private plaintiffs and 

ordered by the Court.
It would appear clear that not only has the Court below 

gone far beyond the Constitution and the jurisprudence with 

respect thereto in pursuing racial balance, establishing racial 

quotas, etc. as set forth heretofore, but has also gone far 

beyond the jurisdiction and authority of a district court in 

involving itself, or interfering with, the day-to-day operation 

of the school system by the local school authorities. The 

scope of the jurisdiction and authority of a district court is 

not unlimited. The principle of comity and accomodation as 

between the federal judiciary and the states under our federal 

system cries out for judicial restraint in this area.
The Supreme Court established early on that in school

desegregation cases,
"...School authorities have the primary 
responsibility for elucidating, assessing, 
and solving these problems..."

Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 7o5, 99 L.Ed.2d 

1083 (Brown II) at 299-300. This is still the rule today.

-47-



Swann, s u p r a 402 U.S. at 15-16.
Appellants recognize, as the Supreme Court has also 

noted, that there is
"...No universal answer to complex problems 
of desegregation; there is obviously no one 
plan that will do the job in every case.
The matter must be assessed in light of the 
circumstances present and the options a\ail- 
able in each instance..."

Green v. County School Board, 591 U.S. 430, 88 S.Ct. 1689,

20 L .Ed.2d 716 (1968) at 459; and Swann, supra. at 16. In 
Swann, the Supreme Court spoke of the breadth and flexibility

inherent in equity:
"The essence of equity jurisdiction has been 
the power of the Chancellor to do equity and 
to mould each decree to the necessities of 
the particular case. Flexibility rather than 
rigidity has distinguished it. The qualities 
of mercy and practicality have made equity 
the instrument for nice adjustment and recon­
ciliation between the public interest and 
private needs as well as between competing 
private claims."

402 U.S. at 15 (quoting Hecht Company v. Bowles, 521 U.S. 321, 

329-350 [1944])."
In Swann, supra. , the Supreme Court also said that "...the 

power of the federal courts to restructure the operation of 

local and state governmental entities is nofplenary...". In 

Dayton Board of Education v. Erinkman, 435 U.S. 406, 410 (19//) 

the Supreme Court said that although there is no doubt that 

federal courts have authority to grant appropriate relief when 

constitutional violations occur, the courts cases,

-48-



"have just as firmly recognized that local 
autonomy of school districts is a vital 
national tradition. Milliken v. Bradley,
418 U.S. 717, 741-742 (1974); San Antonio 
School District v. Rodriguez, 411 U.S. 1,
50 (1973); Wright v. Council of City of 
Emporia, supraT (4 0 7 U.S. 451 [ 1972 ]) , at 
469. It is for this reason that the case 
for displacement of the local authorities 
by a federal court in a school desegregation 
case must be satisfactorily established by 
factual proof and justified by a reasoned 
statement of legal principles. Cf. Pasadena 
City Board of Education v, Spangler, 427 
U.S. 424 (1976).

Accord, Austin Independent School District v. United States,

429 U.S. 990 (1976). As the Supreme Court said in Milliken v.

Bradley, 418 U.S. 717 at 741-742,
"...No single tradition in public education 
is more deeply rooted than local control over 
the operation of schools; local autonomy has 
long been thought essential both to the main­
tenance of community concern and support for 
public schools and to quality of the educational 
process...." (Emphasis added).

We respectfully submit that the principles enunciated by the

above-cited decisions make it absolutely clear that the Court

below has gone far beyond the scope of its jurisdiction and

authority and must be restrained by this Court.

CONCLUSION

For the foregoing reasons, and for 

in prior briefs of appellant, East Baton 

Board, we respectfully urge the Court to 

of the District Court, vacate its racial

the reasons contained 

Rouge Parish School 

reverse the decision 

balance desegregation

-49-



>
1

plan and the subsequent orders, which are the subject of

this appeal, and remand to the District Court with directions

to give preference to the magnet*incentive type plan preferred

by the local school authorities and with some indication as

to the appropriate limits of the jurisdiction and authority

of a district court in these desegregation cases.

Respectfully submitted,

JOHN F. WARD, JR.
ROBERT L. HAMMONDS
1111 South Foster Drive, Suite C
P.0. Box 65236
Baton Rouge, LA 70896
(504) 923-3462

//ATTORNEYS FOR DEFENDANTS-APPELLANTS, 
/ EAST BATON ROUGE PARISH SCHOOL BOARD

CERTIFICATE OF SERVICE

I do hereby certify that two copies of the above and 
foregoing Brief has this day been mailed, postage prepaid, 
to Ms. Mildred Matesich, Civil Rights Division, Department 
of Justice, Washington, DC 20530; Mr. Robert C. Williams, 
1822 N. Acadian Thruway (W), Baton Rouge, LA 70802; and to 
Mr. Theodore Shaw and Mr. Napoleon Williams, 10 Columbus 
Circle, Suite 2030, New York, NY 10019.

BATON ROUGE, LOUISIANA, this 29th day of July, 1983.

-50-

*