Reno v Bossier Parish School Board Brief Opposing Motion to Dismiss or Affirm

    Nos. 98-405, 98-406

In The

S u p re m e  Olmiri a i  ttye JJn ttcb  S t a t e s

October Term, 1998

Janet Reno, Attorney General of 
The United States,

Appellant, and
George Price, et al.,

Appellants,
v.

Bossier Parish School Board,
Appellee.

On Appeal from the
United States District Court for the District of Columbia

BRIEF OF GEORGE PRICE, ET AL., OPPOSING 
MOTION TO DISMISS OR AFFIRM

Barbara R. Arnwine 
Thomas J. Henderson 
Edward Still 

Lawyers' Committee for 
Civil Rights Under Law 
1450 G Street, N.W.,
Suite 400
Washington, D.C. 20005 
(202) 662-8600

* Counsel of Record

Patricia A. Brannan*
John W. Borkowski 

Hogan & Hartson L.L.P. 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202) 637-8686

Counsel for Appellants 
George Price, et al.



TABLE OF CONTENTS

Page

INTRODUCTION........................................................ 1

A. This Appeal Is Not Moot Because, If the
Decision Below Is Left Undisturbed, the 
School Board's Redistricting Plan Will Be 
Used in Any Special Election and To Form 
the Baseline for Retrogression Analysis in 
Redistricting After the Year 2000...................2

B. The Record Below Does Not Include
Election Results Under the Plan..................... 4

C. The District Court Failed To Assess the
Evidence Under the Legal Standard for 
Weighing Discriminatory Intent Set Forth 
by This Court in Arlington Heights', Its 
More Restrictive Standard of Retrogressive 
Intent Is Not Appropriate Under Section 5..... 7

CONCLUSION............................................................10

- 1 -



Page

CASES
Adickes v. S.H Kress & Co., 398 U.S. 144 (1970)................6
Arizonans for Official English v. Arizona, 117 S. Ct.

1055(1997)........................................................................... 4
Beer v. United States, 425 U.S. 130 (1976)........................... 8
Berry v. Doles, 438 U.S. 190 (1978).......................................3
Boone v. Chiles, 35 U.S. (10 Pet.) 177 (1836)........................6
Burke v. Barnes, 479 U.S. 361 (1987)..................................... 4
Bush v. Vera, 517 U.S. 952 (1996)..........................................6
City o f  Richmond v. United States, 422 U.S. 358 (1975)...... 8
Clark v. Calhoun County 21 F.3d 92 (5th Cir. 1994).............6
Clark v. Roemer, 500 U.S. 646 (1991)....................................3
FW/PBS, Inc. v. City o f  Dallas, 493 U.S. 215 (1990)............5
Hall v. Beals, 396 U.S. 45 (1969)............................................2
Hunter v. Underwood, 471 U.S. 222 (1985).......................... 9
NAACP v. Hampton County Election Comm'n,

470 U.S. 166(1985)..............................................................3
Pleasant Grove v. United States, 479 U.S. 462 (1987).......... 9
Reno v. Bossier Parish Sch. Bd., 517 U.S. 1154 (1996)........5
Ruizv. City o f  Santa Maria, 160 F. 3d 543 (9th Cir. 1998)....6
Russell v. Southard, 53 U.S. 139 (1851)................................ 6
Southern Christian Leadership Conference o f Ala. v.

Sessions, 56 F.3d 1281 (11th Cir. 1995), cert, denied,
516 U.S. 1045(1996)............................................................6

Thornburg v. Gingles, 478 U.S. 30 (1986)............................. 6
United States v. Munsingwear, Inc., 340 U.S. 36 (1950)...... 4
Village o f Arlington Heights v. Metropolitan Hous. Dev.

Corp., 429 U.S. 252(1977).................................................. 7
Watkins v. Mabus, 502 U.S. 954 (1991)............................... 2,4
Westwego Citizens for Better Gov't v. City ofWestwego,

906 F.2d 1042 (5th Cir. 1990)..............................................6
Witters v. Washington Dep't of Servs. for the Blind,

474 U.S. 481 (1986)...........................................................5,6

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TABLE OF AUTHORITIES



- Ill -

TABLE OF AUTHORITIES -  Continued

Page
STATUTES

LA. R.S. 18:402 (E)..................................................................2
Section 5 of the Voting Rights Act,

42 U.S.C. § 1973c .................................................... passim
TRANSCRIPT OF ORAL ARGUMENT
Reno v. Bossier Parish Sch. Bd, 1996 WL 718469.............10



INTRODUCTION

The Motion to Dismiss or Affirm ("Motion") presents 
this Court with two telling contradictions. In part I of the 
Motion, the Bossier Parish School Board ("School Board") 
urges the Court to decline review of the merits of the decision 
below on grounds that it is moot, because there has been a 
general election for the School Board since the decision 
below using the precleared election plan. The School Board 
fails to acknowledge that there are legal and practical uses 
that will be made of the plan. Moreover, the School Board 
fails to face the consequence of a declaration of mootness at 
this stage of the proceedings: reversing or vacating of the 
judgment below.

With respect to parts II and III of the Motion, the 
School Board argues in part III that the correct legal standard 
for review of whether an election plan was adopted with the 
"purpose" of denying or abridging the right to vote on 
account of race or color "relates exclusively to retrogressive 
intent" on minority voters. Motion at 19. Yet the School 
Board argues in part II of its Motion that the three-judge 
court applied a different standard: Whether the election plan 
was infected with "non-retrogressive, but nevertheless 
discriminatory, 'purpose.'" Motion at 15. The School Board 
thus is trying to shield from appellate review a judgment that 
it believes evaluated the evidence under the wrong legal 
standard.

The confusion in the School Board's arguments 
highlights the importance of this Court's consideration of the 
decision below on the merits in order to confirm that the 
purpose prong of Section 5 forbids the implementation of an 
election change adopted with a racially discriminatory intent 
whether or not it is retrogressive.

- 1 -



2

A. This Appeal Is Not Moot Because, If the
Decision Below Is Left Undisturbed, the School 
Board's Redistricting Plan Will Be Used in 
Any Special Election and To Form the Baseline 
for Retrogression Analysis in Redistricting 
After the Year 2000.

The School Board argues that this appeal is moot 
because its 1992 redistricting plan will "never again be used 
for any purpose," Motion at 9, and thus no further judicial 
consideration of the plan is consistent with the "case or 
controversy" requirement of Article III. The School Board 
cannot assure this Court that the election plan will "never" be 
used again.

First, the plan precleared below remains in effect 
regardless of the passage of the 1998 general election. 
Although the next scheduled School Board election will not 
be held until 2002, Louisiana law provides that a special 
election will be held to fill any vacancy on the School Board 
which may arise prior to the next scheduled election. LA. 
R.S. 18:402 (E). On a 12-member school board, the 
likelihood of at least one vacancy arising due to death, 
resignation, or other reasons over the course of a four-year 
term is high. In the event of a special election, the plan 
precleared by the court below would be used by the School 
Board, since the terms of that plan are not limited to the 1998 
election or to regularly scheduled elections. This case 
accordingly is different from Watkins v. Mabus, 502 U.S. 954 
(1991) and Hall v. Beals, 396 U.S. 45 (1969), in which the 
election change at issue was no longer in effect and the 
election had taken place.

Second, whether the election plan remains valid has 
important legal consequences and is not "of purely academic 
interest." Motion at 11. When the School Board adopts a 
new election plan after the Year 2000 Census, as the School 
Board pledges to do, Motion at 2, the existing plan will be 
the benchmark against which a new plan is compared to



3

determine if it will have the "effect of [denying] or abridging 
the right to vote on account of race or color," as provided in 
Section 5. This Court has explained in this case that 
"[retrogression, by definition, requires a comparison of a 
jurisdiction's new voting plan with its existing plan." App. 
35a. 1/ If the preclearance decision is reversed by this Court, 
a different plan will be used as the benchmark: a new plan, if 
such a plan is precleared, or the 1980s School Board election 
plan. This alone creates a significant live controversy.

Finally, this appeal is not moot because equitable 
relief may be appropriate if  the plan precleared below 
ultimately is found not to satisfy Section 5. See Clark v. 
Roemer, 500 U.S. 646, 660 (1991) (explaining that a "District 
Court should adopt a remedy [for a violation of Section 5] 
that in all circumstances of the case implements the mandate 
of § 5 in the most equitable and practicable manner"). If it is 
ultimately determined that the plan does not comply with 
Section 5, the Attorney General or the defendant-intervenors 
could seek relief such as voiding the election or an order for a 
special election under a proper plan. See Clark, 500 U.S. at 
660; NAACP v. Hampton County Election Comm'n, 470 U.S. 
166, 182-83 (1985), Berry v. Doles, 438 U.S. 190, 192-93 
(1978). To find this appeal moot, thereby allowing a 
discriminatory plan to remain in effect and depriving its 
victims of any remedy, would be to do precisely "what § 5 
was designed to forbid: allow the burdens of litigation and 
delay to operate in favor of the perpetrators and against the 
victims of possibly racially discriminatory practices." Berry, 
438 U.S. at 194 (Brennan, J., concurring).

The School Board should not be heard to complain 
that the case is moot, in an effort to protect the decision

1/ "App." references are to the Appendix to the 
Jurisdictional Statement filed on behalf of Janet Reno in No. 
98-405.



4

below, but to foreclose appellate review sought in this Court. 
"[W]hen a civil case becomes moot pending appellate 
adjudication, 'the established practice in the federal system is 
to reverse or vacate the judgment below and remand with a 
direction to dismiss."' Arizonans for Official English v. 
Arizona, 117 S. Ct. 1055, 1058 (1997) (quoting United States 
v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)); see Watkins 
v. Mabus, 502 U.S. 954 (1991); Burke v. Barnes, 479 U.S. 
361 (1987). If the School Board were correct that it would 
never use the plan again and the case were moot, the 
judgment below should be vacated and the case remanded 
with instructions to dismiss. Because the plan will be used, 
however, this Court should reach the merits of whether the 
district court on remand from this Court applied the 
appropriate legal standard to the evidence.

B. The Record Below Does Not Include Election 
Results Under the Plan.

After accusing the appellants of "gross factual 
distortions," Motion at 2, the School Board fails to identify 
any basis for such invective. Instead, the School Board uses 
its Counterstatement to argue that two elections held under 
the School Board's redistricting plan prove that the plan is not 
infected with discriminatory purpose. 2/ The School Board

2/ The School Board also seems to contend that because 
new precincts would have been required to formulate a 
School Board election plan that respected minority voting 
strength, use of the Police Jury plan must be automatically 
precleared for the School Board. The School Board's heavy 
emphasis on the "precinct splitting" issue is curious, because 
the district court had before it extensive stipulations of the 
parties on the timing and methods allowed for the creation of 
precincts in Louisiana. The School Board's contention that 
timing made it "impossible" for the Police Jury to establish 
new precincts to accommodate a different School Board 
redistricting plan, Motion at 4, is not supported by the record 
and is raised for the first time in the Motion. See Appendix 
to the Jurisdictional Statement in Nos. 95-1455 and 95-1508 
at 69a-73a.



5

seeks to have this Court take "judicial notice" of the results of 
two sets of school board elections: the 1994 and 1998 
elections. See Motion at 8. This Court, however, already has 
rejected in this case an effort by the School Board to inject 
into the record election results that post-date the adoption of 
the plan.

In March of 1996, the School Board filed in the 
earlier proceeding in this Court, Numbers 95-1455 and 95- 
1508, a Motion to Supplement Record attempting to bring to 
the Court's attention election results from earlier that month. 
The Court denied the motion. Reno v. Bossier Parish School 
Board, 517 U.S. 1154 (1996). On remand from this Court's 
decision in Numbers 95-1455 and 95-1508, the district court 
asked "whether the record needs to be reopened and whether, 
on what issues, and on what schedule additional briefs should 
be filed." Order dated August 13, 1997 in CA No. 94-1495. 
The parties agreed that the record should not be opened, 1/ 
however, and the district court concluded "that there is no 
need to reopen the evidentiary record. . . . "  Order dated Sept. 
9, 1997 in CA No. 94-1495.

The 1998 election results that the School Board 
argues are virtually dispositive never have been analyzed in 
any way or presented to the district court. The election took 
place on October 3, 1998, after the filing of the Jurisdictional 
Statements in this matter on September 4, 1998.

It would be unfair and highly irregular for the Court 
to take "judicial notice" on appeal of the results of elections 
held while these proceedings are still in progress. The 
judgment of the district court should be reviewed based on 
the evidence of record when the judgment was rendered. 
FW/PBS, Inc. v. City o f  Dallas, 493 U.S. 215, 235 (1990); 
Witters v. Washington Dep't o f  Servs. fo r the Blind, 474 U.S.

2/ See Memorandum of Defendant-Intervenors George Price, 
et al., Concerning Remand Issues, at 1-2 (Sept. 5, 1997).



6

481, 486 n.3 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 
144, 157 n.16 (1970); Russell v. Southard, 53 U.S. 139 
(1851); Boone v. Chiles, 35 U.S. (10 Pet.) 177, 208 (1836). 
That is the only way for an appellate court to review properly 
the election decisions of public officials; those officials did 
not have the later election results before them when they 
adopted the districting plan in question. See Bush v. Vera, 
517 U.S. 952, 971 n.* (1996); Ruiz v. City o f  Santa Maria, 
160 F.3d 543, 548 n.13 (9th Cir. 1998). This is particularly 
true where, as here, the pending litigation itself may have had 
an impact on the election. See, e.g., Thornburg v. Gingles, 
478 U.S. 30, 76 (1986); Clark v. Calhoun County., 21 F.3d 
92, 96 (5th Cir. 1994).

The School Board's contention that "appellate courts 
have routinely taken judicial notice of post-trial elections in 
voting rights cases," Motion at 7 n. 4, is not even supported 
by the cases cited. Southern Christian Leadership 
Conference o f Ala. v. Sessions, 56 F.3d 1281, 1288 n.13 
(11th Cir. 1995), cert, denied, 516 U.S. 1045 (1996) and 
Westwego Citizens for Better Gov't v. City ofWestwego, 906 
F.2d 1042, 1045 (5th Cir. 1990) do not allow judicial notice 
by appellate tribunals of post-trial election results. In 
Southern Christian Leadership Conference, the Eleventh 
Circuit, in the course of reviewing a district court decision 
upholding Alabama's at-large election of trial judges, took 
judicial notice that one black judge had retired since the 
district court decision. Southern Christian Leadership 
Conference, 56 F.3d at 1287-88. The judge's retirement did 
not speak to the district court's analysis of electoral systems, 
did not impact the appellate court's review, and had nothing 
to do with a post-trial election. Id. at 1287-88. In Westwego 
Citizens, the Fifth Circuit did not take judicial notice of 
anything. There, the court reviewed a district court decision 
dismissing a challenge to Westwego's at-large election of 
aldermen. Westwego Citizens, 906 F.2d at 1042-43. The



7

Fifth Circuit remanded the case to the district court twice, id. 
at 1042-44, and held that the district court erred in failing to 
consider evidence of a subsequent election on the first 
remand. Id. at 1042. The court remanded the case again, and 
ordered the district court to hear evidence of subsequent 
elections. Id.

The School Board has not even sought leave to bring 
the election results into this record. Leave would be 
inappropriate in any event. As the Court has done before in 
this case and others, it should disregard election results after 
the redistricting decision at issue because they have no 
relevance to the School Board's "purpose" under Section 5 
when it adopted the districting plan.

C. The District Court Failed To Assess the 
Evidence Under the Legal Standard for 
Weighing Discriminatory Intent Set Forth by 
This Court in Arlington Heights; Its More 
Restrictive Standard of Retrogressive Intent Is 
Not Appropriate Under Section 5.

The district court identified the legal standard it used 
to evaluate whether the School Board had demonstrated the 
lack of "purpose" to deny or abridge the right to vote on 
account of race or color in its districting plan: "The question 
we will answer. . . is whether the record disproves Bossier 
Parish's retrogressive intent in adopting the Jury plan." App. 
4a. The School Board tries mightily to cast the district 
court's analysis of discriminatory intent as the type delineated 
by this Court in Village o f  Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252 (1977). Motion 
at 14 - 19. That possibility is contradicted by the district 
court's own repeated references to "retrogressive intent" as 
the measure for evaluating specific categories of evidence. 
Those references were reviewed at pages 16 - 17 of our 
Jurisdictional Statement, so will not be repeated here.



8

There is something very new about the School 
Board's argument in its Motion: For the first time, after
extensive evidentiary proceedings in the district court, review 
by this Court, and remand proceedings before the district 
court, it argues that "retrogressive intent" is the proper 
standard for evaluating whether the districting plan is 
infected with a "purpose" to deny or abridge the right to vote 
on account of race within the meaning of Section 5.

The principal Supreme Court cases cited in part III of 
the School Board's Motion undercut its argument that "intent 
to retrogress" is the only form of intent outlawed by Section 
5. The School Board bases much of its argument on the 
original case holding that retrogression is the only effect 
covered by Section 5. Beer v. United States, 425 U.S. 130, 
141 (1976). The Beer Court acknowledged, however, that 
retrogressive effects are not the only denial or abridgment of 
the right to vote on account of race or color that Section 5 
addresses:

We conclude, therefore, that such an ameliorative 
new legislative apportionment cannot violate § 5 
unless the new apportionment itself so discriminates 
on the basis o f  race or color as to violate the 
Constitution.

Beer, 425 U.S. at 141 (emphasis added). Of course, one way 
to discriminate on the basis of race is to act with a 
discriminatory intent:

An official action, whether an annexation or 
otherwise, taken for the purpose o f discriminating 
against Negroes on account of their race has no 
legitimacy at all under our Constitution or under the 
statute.

City o f  Richmond v. United States, 422 U.S. 358, 378-79 
(1975) (emphasis added). Richmond's purpose, as found by 
the lower court, was "perpetuating white majority power to 
exclude Negroes from office through at-large elections." 422



U.S. at 373. See also Hunter v. Underwood, 471 U.S. 222 
(1985).

9

In Pleasant Grove v. United States, 479 U.S. 462 
(1987), the Court said that the City's purpose was 
"perpetuating] Pleasant Grove as an enlarged enclave of 
white voters." 479 U.S. at 470 (emphasis added). Since the 
City had only two black voters out of a total population of 
7,000, the black voting strength at the time of the decision 
was effectively zero. Given that state of affairs it is hard to 
see how the School Board can argue that Pleasant Grove was 
proposing to retrogress from its then-current status of blacks 
lacking any voting power. This Court explained that ”[t]he 
failure to annex black areas while simultaneously annexing 
nonblack areas is highly significant in demonstrating that the 
[City's] annexations were purposefully designed to perpetuate 
[Pleasant Grove] as an enlarged enclave of white voters." Id. 
A purpose to stop or counteract the growth in black voting 
strength is not a retrogressive purpose but an intent to 
maintain the status quo — a status quo in which whites hold 
the power.

The novelty of the School Board's argument is 
underscored by its earlier, consistent position that 
retrogressive intent was not the only "purpose" covered by 
Section 5. This Court confirmed the agreement of the parties 
on that issue at oral argument in 1996:

QUESTION: Well, what is your position
here? Is it your position here that the only purpose 
that is relevant under Section 5 is purpose to cause 
retrogression, as distinct from purpose to discriminate 
by effecting a purposeful dilution?

MR. CARVIN: Oh, no. No, not at all. I 
think that decision, the Court's decision in Richmond 
and Pleasant Grove has already decided that issue 
and, indeed, since it was stipulated that it didn't even 
have the effect of retrogression, you can obviously



10

assume they didn't have the purpose to retrogress, and 
this would have been a one-paragraph opinion.

QUESTION: But there could have been a 
purpose to dilute.

MR. CARVIN: Yes. That's the whole point.

Reno v. Bossier Parish Sch. Bd, Transcript of Oral 
Argument, Dec. 9, 1996, 1996 WL 718469 at *30-*31. The 
Price appellants agree with the position taken by the School 
Board in 1996.

For all of these reasons, and those described in the 
Jurisdictional Statements, we submit that the Court should 
note probable jurisdiction.

CONCLUSION

Respectfully submitted,

Barbara R. Arnwine 
Thomas J. Henderson 
Edward Still 

Lawyers' Committee for 
Civil Rights Under Law 
1450 G Street, N.W., Suite 400 
Washington, D.C. 20005 
(202) 662-8600

Patricia A. Brannan* 
John W. Borkowski 

Hogan & Hartson L.L.P. 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202) 637-8686

* Counsel of Record

Counsel fo r Appellants 
George Price, et al.