State of Louisiana v. United States of America Jurisdictional Statement

    No. 89-

I n  T h e

£>ujin>mp (Enurt nf tip? llnitrii £>tatps
O c t o b e r  T e r m , 1989

S t a t e  o f  L o u i s i a n a , ex rel. W i l l ia m  J . G u s t e , J r ., 
A t t o r n e y  G e n e r a l  o f  t h e  S t a t e  o f  L o u i s i a n a ,

v Appellant

U n it e d  S t a t e s  o f  A m e r ic a ,

_________ Appellee

On Appeal from a Three-Judge Panel of the 
United States District Court 

for the Eastern District of Louisiana

JURISDICTIONAL STATEMENT ON BEHALF OF THE 
STATE OF LOUISIANA

Dermot S. McGlinchey 
K athleen A. Manning 
Margaret Diamond 
James M. Garner 
McGlinchey, Stafford.

Mintz, Cellini & Lang 
643 Magazine Street 
New Orleans. LA 70130-3477 
Special Counsel

William J. Guste. Jr.
Attorney Genera! of Louisiana
Counsel of Record

Kenneth C. Dejean 
First Assistant Attorney General 

Winston W. R iddick 
Executive Assistant 

Attorney General
David G. Sanders 

Assistant Attorney General
Thomas S. Halligan 

Assistant Attorney General 
Winston G. Decuir 

Special Assistant 
Attorney General 

Paul P,. Baier 
Special Assistant 

Attorney General
Louisiana Department of Justice 
P.O. Box 94005 
Baton Rouge, LA 70804-9005 
Telephone: (504) 342-7013 
Attorneys for State of Louisiana 

ex rel. William J. Guste, Jr., 
Attorney General of the State 
of Louisiana

WlUOK E M *  PRINTING C O . .  In c . -  7 8 9 - 0 0 9 6  - WASHIN GTON, O . C .  2 0 0 0 1



1. Whether, as a matter of law, statistics alone show­
ing a current <fc facto predominance of one race at pub­
lic colleges and universities, which twe"ty-five years ago 
were segregated by state law, are sufficient to establish 
that a state is presently using Federal funds to continue 
racial discrimination in violation of Title VI of the Civil 
Rights Act of 19C>4 and the Fourteenth Amendment to 
the United States Constitution, where

(a) for more than twenty-four years, any high 
school graduate of any race could, under the open 
admissions policy of the state’s public colleges and 
universities, freely choose to be admitted to and at­
tend any public college or university of choice within 
the state; and
(hi the state, its public colleges and universities, 
and its higher education governing boards have en­
gaged, for at least six years, in extensive affirmative 
action including recruitment of other-race students 
and faculty at previously one-race colleges and uni­
versities, an other-race faculty development program 
at previously one-race colleges and universities, en­
hancement of programs and facilities at historically 
black colleges and universities, and the expenditure 
of vast sums of money for historically black colleges 
and universities over-and-ahove a non-discriminatory 
state “ formula”  for funding all public colleges and 
universities in the state.

2. Whether racial balance is required of institutions 
of higher education under the Civil Rights Act of 1%4 
where such institutions have had open admission policies 
for 24 years and where students are exercising their con­
stitutional right of free choice in selecting the college or 
university best suited to their educational needs.

3. Whether the district court exceeded the limits of 
its remedial authority and the constraints of federalism

(i)



by ordering overbroad and unsupported remedies, by rad­
ically restructuring higher education in Louisiana, includ­
ing abolition of the State’s four-board govei nance struc­
ture mandated by the Louisiana Constitution of 11)74, by 
substituting therefor a court-created single board, and 
by ordering the implementation of a court-created plan 
for the structure of higher education in Louisiana con­
trary to the State’s Constitution and laws.

4. Whether the district court exceeded its equitable 
remedial authority and violated due process when it sun 
spoutu ordered the merger of Southern University Law 
Center into Louisiana State University Law Center, with­
out an evidentiary hearing and contrary to the recom­
mendations of all parties and the court-appointed special 
master." *

* Actual parties to ttiis proceeding in tlie United States District 
Court were

( 1) The United States of America, appellee herein,
(2) The Stale of laniisiana, appellant herein,
CD The Slate’s board of Regents,
(d) The Hoard of Supervisors for Southern University and 

Agricultural and Mechanical College, an apiiellant in a com­
panion appeal to this Court,

(f>) The Hoard of Supervisors for Louisiana State Univer­
sity and Agricultural and Mechanical College,

(t'i) The board of Trustees for Stale Uolleges anil Uni­
versities,

(7) The Louisiana board of Elementary and Secondary edu­
cation, a party who obtained in its favor a summary judgment,

(8) The bossier Parish School board, a party who obtained 
in its favor a summary judgment, and

(0) The St. bernard Parish School board, a party who 
obtained in its favor a summary judgment.

In addition. Grumbling State University Alumni Association 
participated in the court below as arnicas curiae.

QUESTIONS PRESENTED ......................................... i

TAULK OK AUTHORITIES .........................................  iv

OPINIONS BELOW .....................................................  2

JURISDICTION .............................................................  2

CONSTITUTIONAL AND STATUTORY PROVI­
SIONS ..........................................................................  4

STATEMENT OK THE CASE ................................... 5
A. background of the. Controversy.........................  6

R. The Holding below   8
(i) On Liability 8

(ii) On Remedy .............................................  10

C. Final Decree; Appeal ..........................................  11

THE QUESTIONS ARE SUBSTANTIAL..................  11

Conflict between AST.A And Norris Must Re Re­
solved ..................................................................... 14

The Standard for Desegregation of Higher Edu­
cation Must Re Defined .......................................  10

The Lower Court’s Judgment based Only On Ra­
cial Identification Demands Review 18

The Court-Created Remedy Lacks Judicial Re­
straint and Demands Review ............................  21

Disaster by Decree: The Dismantling of South­
ern University Law Center ...............................  27

CONCLUSION ...............................................................  30

(iii)



CASES: Page
18Adiclcea v. S.H. Kress A Co., 308 U.R. 144 (1070) .. 

Alabama Slate Teachers’ Am 'ii v. Alabama Public 
School & College Authority, 280 E. Supp. 784 
(M.D. Ala. 1968), aff’d, 303 U.S. 400 (1069) .. 4,13-15 

Artis v. Board of Regents of the University Sys­
tem. of Georgia, No. CV 479-251 (slip op.) (S.D.
Ga. 1981) (unpublished) .................................... 15

Ayers v. Allain, 074 F. Supp. 1523 (N.D. Miss.
1987), appeal pending, No. 88-4103 (5th Cir.) . 15, lfi,

18
Bazemore v. Friday, 478 U.S. 385 (1080) 9, 16-18
Carter v. West Feliciana Parish School Board, 390

U.S. 290 (1070) ...................................................  28
Cleveland Board of Education v. Londcrmill, 470

U.S. 532 (1085) 29
Columbus Board of Education v. Penick, 4 13 U.S.

419 (1979) .......................................   12
Dartmouth College v. Woodward, 4 Wheat. 518

(1819) .................................................................... 29, 30
Dayton Board of Education v. Brinkman, 433

U.S. 400 (1977) ................................................19,21-23
Ge.ie.r v. Alexander, 801 F.2d 799 (0th Cir. 1980)

[Gcic.r II] .............................................................. 18
Green v. School Board of New Kent County, 391

U.S. 430 (1008) .................................................. 9, 13-17
Meyer v. Nebraska, 202 U.S. 390 (1923).............  29
Millikcn v. Bradley, 418 U.S. 717 (1971) [Milliken

H ............................................................................ 13, 22
Milliken v. Bradley, 433 U.S. 207 (1977) [Milliken

HI .............. .........................................................21-24, 20
Minnesota State Senate v. Bcens, 400 U.S. 187

<1°72)................................................................. 12, 23-25
Monroe v. Board of Commissioners, 391 U.S. 450

(1908) ................................................................... 14
Norris v. State Council of Higher Education, 327 

F. Supp. 1308 (E.l). Va. 1071), aff'd sub non,.,
Board of Visitors v. Norris, 404 U.S. 907 
(1971) ............................................................. 10, 14, 15

A i V I > I j i'-i u r  i l U i  l l U n l i i l i O -------L/OlU-**iUCva

Page
Pasadena City Board of Education v. Spangler,

127 U.S. 421 (1970) ........................................10, 19,21
Pierce, v. Society of Sisters, 208 U.S. 510 (1925).. 29
Raney v. Bd. of Educ., 391 U.S. 443 (1908) ......... 14
Soria v. Oxnard School District, 488 F.2d 579 (9th

Cir. 1973)...............................................................  19
Swann v. Charlottc-Mecklcnbnrg Board of Educa­

tion, 102 U.S. 1 (1971) ....................................... 16,21
Sweatt v. Painter, 339 U.S. 029 (1950) ...............  27,29
United States v. Alabama, 828 F.2d 1532 (11th

Cir. 1987)..............................................................  10
United States v. Diebold, Inc., 309 U.S. 054

(1902) ...................................................................  18
Upham v. Sea won, 150 U.S. 37 (1082) 24
Whitcomb v. Chavis, 403 U.S. 124 (1071).............. 24
White v. Wriser, 412 U.S. 783 (1973)..................  24

CONSTITUTION OF THE UNITED STATES:
Article III ..................................................................  22
Fifth Amendment.....................................................  28
Fourteenth Amendment............................................passim

LOUISIANA CONSTITUTION OF 1974:
Article VIII................................................................ 3,4

STATUTES:
U.S. Statutes:

Civil Rights Act of 1904 (Pub. L. 88-325, 75 Stat.
241)  passim

Section 001 ................  5
Section 002 ........................................................  5

Public Law No. 94-381, § 7 .......................................  3

U.S. Code:
28 U.S.C. § 1253 ........................................................ 3
28 U.S.C. § 1345......................................................... 3
28 U.S.C. § 2281 ........................................................ 3
28 U.S.C. § 2284 ......................................................... 3



Page
42 U.S.C. § 2000d ...................................................... 3
42 U.S.C. § 2000<l-l ..........................  3

Louisiana Statiitcs:
Act 252 of the 1989 Regulnr Session........................  13
Act 789 of the 1989 Regular Session........................  8, 13
La. R.S. 17:1453-1456 ..............................................  4
La. R.S. 17:1501-1503...............................................  4
La. R.S. 17:1511-1513...............................................  4
La. R S. 17:1516-1517 ..............................................  4
La. R.S. 17:1521-1523 ..............................................  4
La. R.S. 17:1531-1533...............................................  4
La. R.S. 17:1551-1553 ..............................................  4
La. R.S. 17:1555.....................................................  4
La. R.S. 17:1601 ........................................................ 4
La. R.S. 17:1606-1607 ..............................................  4
La. R.S. 17:1611(5) and (19), 1612, 1641 and

1644 ........................................................................ 4
La. R.S. 17:1806........................................................  4
La. R.S. 17:1808....................................................... 4
La. R.S. 17:1809, 1810, 1812 and 1813.....................  4
La. R.S. 17:1831 and 1833 ........................................ 4
La. R.S. 17:1851 and 1853 .......................................  4
La. R.S. 17:2050 ....................................................... 4
La. R.S. 17:2054 ........................................................ 4
La. R.S. 17:2151-2163...............................................  5
La. R.S. 17:2181-2198...............................................  5
La. R.S. 17:2196.1-2196.9 ........................................  5
La. R.S. 17:2209-2210..........................................  5
La. R.S. 17:3011 (A) ( l )  (a) .......................  5
La. R.S. 17:3121-3133...............................................  4
La. R.S. 17:3201,3305 and 3351 -3387 .....  4
La. R.S. 17:3158(B) .................................... 5
La. R.S. 36:651 (D )(1 ), (2), (3) and (4) .....   5

MISCELLANEOUS:
Baier, Framing and Reviewing a Desegregation 

Decree: Of the Chancellor’s Foot and Fifth 
Circuit Control, 47 La. L. Rev. 123 (1986)....... 29

TABLE OK AUTHORITIES— Continued
Page

Chayes, The Role of the. Judge, in Riiltlie Law
Litigation, Hi) llarv. L. Rev. 1281 (1976) ..........  28

Fed. Rule Civ. Pro., Rule 5 2 (a ) ................................  26
Fed. Rule Civ. Pro., Rule 56 (c) ................................  18
Rufus Choate, Eulogy on Daniel Webster, in I. R.

Ciioate, Works 516 (1862) ...............................  30

TABLE 01« AU'lliUltlTlES— Continued



^ n j i r n i u '  Clim trl m  il/i* iiliit lrtf ^ u u m

O cto iie r  T e r m , 1989

No. 89-

S t a t f , o f  L o u i s i a n a , ex rel. W il l ia m  J. G u s t e , Jr., 
A t t o r n e y  G e n e r a l  o f  t h e  S t a t e  o f  L o u i s i a n a ,

Appellant

U n it e d  S t a t e s  o f  A m e r ic a ,
Appellee

On Appeal from a Three-Judge Panel of the 
United States District Court 

for the Eastern District of Louisiana

JURISDICTIONAL STATEMENT ON BEHALF OF T1IE 
STATE OF LOUISIANA

The State of Louisiana, appellant herein, prays that 
an order he entered noting probable jurisdiction of its 
appeal from the final decree of a three-judge panel of the 
United States District Court of the Eastern District of 
Louisiana, entered in this cause on July 19, 1989, declar­
ing Louisiana and its institutions of higher education to 
be using Federal funds in violation of Title VI of the 
Civil Rights Act of 1904, enjoining enforcement of Ar­
ticle VIII of the Louisiana Constitution of 1974 and rele­
vant parts of Title 17 of the Louisiana Revised Statutes 
as unconstitutional under the Fourteenth Amendment, 
and restructuring Louisiana’s system of public higher ed­
ucation.



OPINIONS BELOW

(i) The July 19, 1989 opinion and order of the three- 
judge court is unreported (App. A, pp. 89a-77a).

(ii) The August 4, 1989 opinion and supplemental or­
der of the three-judge court granting in part and denying 
in part motions of the United States of America, the 
Southern University Board of Supervisors joined by the 
State Attorney General, and Grumbling University 
Alumni Association to alter or amend judgment or for 
new trial is unreported (App. A, pp. 105a-108a).

(iii) The August 4, 15)8!) opinion and order of the 
th ree-judge court denying the motion of Southern Uni­
versity Board of Supervisors joined by tbe State Attor­
ney General for a stay of execution of judgment, pending 
appeal to the United States Supreme Court is unreported 
( App. A, pp. 78a-80a).

(ivl The August 2, 1988 opinion and order of the 
three-judge court determining, inter alia, liability against 
Louisiana as a matter of law on the United States’ sum­
mary judgment motion is reported at f>!)2 F. Supp. 042 
t App. A, pp. 8a-88a).

(vl The September 8, 1981 opinion and order of the 
court below approving entry of tbe Consent Decree is re­
ported at 527 F. Supp. 509 (App. C, pp. 250a-200a).

(vi) The September 8, 15)81 Consent Decree is unre­
ported (App. C, pp. 199a-251a).

(vii) The Special Master’s Final Report, and Proposed 
Order of May 20, 1989 is unreported (App. C, pp. 028a- 
720a).

JURISDICTION
(i) This was an action brought by the United States 

of America against the State of Louisiana alleging that 
Louisiana was maintaining a dual system of public higher 
education on the basis of race in violation of the Four­
teenth Amendment and Title VI of the Civil Rights Act

oi a i m: .^ .u u n  «uiv »•/ »>t; . o u «m y  i . j
by the United Stales existed in explicit conformity with 
State constitutional and statutory provisions (infra, pp. 
4-5) which were racially neutral on their face but. which 
structured, allegedly, a dual system perpetuating racial 
identifiability as shown by statistics attached to the com­
plaint. Jurisdiction in the district court was predicated 
on 28 U.S.C. $ 1845 and 12 U.S.C. !;§ 2000d and 2000d-l.

(ii) The final judgment and decree of the court, below 
holding that Louisiana and its institutions of higher ed­
ucation were using Federal funds to further discrimina­
tion by maintaining a dual system of public higher edu­
cation in violation of Title VI of tbe Civil Rights Act of 
1 !)(> I. enjoining the enforcement of Article VIII of the 
Louisiana Constitution of 1974 and the relevant sections 
of Title 17 of the Louisiana Revised Statutes as being 
unconstitutional, and restructuring Louisiana’s system of 
public higher education was entered on July 15), 15)85), in 
combination with its August 2, 1988, interlocutory order 
finding violations by Louisiana and its public higher edu­
cational authorities. Motions to alter or amend the judg­
ment, for new trial, and to stay execution of the judg­
ment pending appeal to tbe United States Supreme Court 
were denied on August 4, 1989. The State of Louisiana’s 
notice of appeal (App. F, pp. 1157a-l IfiOa) was filed in 
the court below on August 10, 1985).

(iii) This action was heard by a three-judge court re­
quested by the United States subsequent to the filing of 
the original complaint, on March 14, 1974. Jurisdiction 
properly lies in this Court under 28 U.S.C. §5 1258, 2281, 
2284 and Public Law No. 94-881, § 7, which preserves 
direct appeals for all three-judge actions brought under 
28 U.S.C. § 2281 prior to August 12, 1970. The three- 
judge court which rendered the orders now before this 
Court concluded in its August 2, 1988 opinion that “ Plain­
tiff having properly requested a three-judge court pur­
suant to 28 U.S.C. §§ 2281 and 2284, a three-judge court 
was convened.” App. A, p. 10a.



(iv) The case relied on to sustain the jurisdiction of 
the three-judge court and hence to establish that the rem­
edy here is by appeal is Alabama Stale Teachers’ Ass’n 
v. Alabama I'ablie School it Collci/c Aalhorilij, 289 I1’. 
Supp. 784 (M.D. Ala. 1968), afl’d, 393 U.S. 400 (1969).

CONSTITUTIONAL ANO STATUTORY PROVISIONS
Provisions of the Louisiana Constitution invalidated 

and enjoined from enforcement by the court below as 
violative of the Fourteenth Amendment and Title VI of 
the 1964 Civil Rights Act include Article VIII, Sections 
1, 5, 6, 7, 8, and 12 thereof. (App. B, pp. 116a-125a.) 
So unrestrained was the sweep of the lower court’s judg­
ment that it also enjoined the enforcement of almost half 
of the entire title? of Louisiana's Revised Statutes on ed­
ucation, such that it is difficult to compile a comprehen­
sive list.

Those most obviously invalidated and enjoined include 
Louisiana Revised Statutes, Title 17, Sections 3215 
through 3221 (cited as La. R.S. 17:3215-3221) and La. 
R.S. 17:3121-3133 (App. B, pp. I26a-I13a).

Also immediately and directly invalidated and enjoined 
were La. R.S. 17:3201-3202; La. R.S. 17:3205-3207; La. 
R.S. 17:3301-3306; La. R.S. 17:3351-3356; La. R.S.
17:3.361-3367; La. R.S. 17:3371; and La. R.S. 17:3381- 
3383. (App. I), pp. 1048a-1067a.)

Other related statutes the enforcement of which is
either enjoined directly or made into an impossibility by 
tin? lower court’s judgment include La. R.S. 17:1453- 
1456; La. R.S. 17:1501-1503; La. R.S. 17:1511-1513; La. 
R.S. 17:1516-1517; La. R.S. 17:1521-1523; La. R.S.
17:1531-1533; La. R.S. 17:1551-1553; La. R.S. 17:1555; 
La. R.S. 17:1601; La. R.S. 17:1606-1607; La. R.S.
17:1611 (5) and (19), 1612, 1641, and 1644; La. R.S. 
17:1806; La. R.S. 17:1808; La. R.S. 17:1809, 1810. 1812, 
and 1813; La. R.S. 17:1831 and 1833; La. R.S. 17:1851 
and 1853; La. R.S. 17:2050; La. R.S. 17:2054; La. R.S.

17:2151-2163; La. ll.S. 17:2181-219.4; La. u.o. n .^ .m .i -  
2196.9; La. R.S. 17:2209-2210; La. R.S. 17:3011 (A H  l > 
(a l ; La. R.S. 17:3453(15); and La. R.S. 36:651 ( D) (1 ), 
(2), (31, and (4).

STATEMENT OF THE CASE
This is a higher education desegregation case. The 

United Stales sued the State of Louisiana on March 14, 
1974, pursuant to sections 601 and 602 of the Cavil Rights 
Act of 1964 and the Fourteenth Amendment, alleging 
Louisiana was maintaining a dual system of higher edu­
cation based on race. Louisiana denied liability because 
of its open admissions policy at all public institutions of 
higher education since 1964. In September 1981 the par­
ties voluntarily settled the suit by entering into a Con­
sent Decret? approved by the court below. After six years 
enforcement of the Consent Decree, the United Stales 
moved for a hearing to determine (1) whither the de­
fendants had fully implemented all provisions of the Con­
sent Decree and (2) whether Louisiana’s higher educa­
tion system was unitary. However, no such compliance 
hearing was held. Instead, the court below insl nich'd the 
parties to till cross-motions for summary judgment on 
the issue of nubility. Thereafter, the court below found 
the stale to he liable and in violation of the Civil Rights 
Act of 19(54 and accordingly granted the United States’ 
Motion for Summary .lodgment. It appointed a special 
master for purposes of fashioning a remedial decree, and, 
following submission of desegregation plans by the par­
ties and the final report of the special master, the court 
entered a final decree holding Louisiana liable and en­
joining the enforcement of Louisiana’s constitutional and 
statutory provisions regarding the management of public 
higher education. The court below converted Louisiana’s 
junior colleges into community colleges; it judically legis­
lated the establishment of a comprehensive system of 
community colleges for Louisiana; it re-tiered and al­
tered the missions of Louisiana’s public institutions of



higher learning; it restricted degrees awardable by in­
stitutions; it established new, stricter, and more selective 
admissions standards. The panel went further and abol­
ished Louisiana’s constitutional boards of higher educa­
tion, judicially legislating a single “ superboard” of gov- 
erance for public higher education in the State. And 
most drastically of all, the district court ordered merger 
of Southern University Law Center into Louisiana State 
University Law Center without a hearing, contrary to 
the recommendations of all parties and the court-appointed 
special master.

A. Itackgrmind of the Controversy
In January 10(50, the Department of Health, educa­

tion and Welfare ( 1I.K.W. I notified Louisiana that the 
Stale’s higher education system was not in compliance 
with Title VI of the Civil Rights Act of 10(54. 1LK.W. 
requested the State to submit a desegregation plan. Re­
lieving it was in compliance, the Stale submitted none. 
This suit followed on March 14, 1074.

In lt)74, the people of Louisiana ratified a now stale 
constitution restructuring the State’s system of higher 
education and putting into place the current multiple- 
board governing system. Given a choice on the ballot, 
Louisiana’s citizens specifically rejected the single board 
proposal and voted instead for the alternative provision 
creating four governing boards. The Hoard of Regents 
was created and charged with planning, coordinating, and 
budgeting the higher educational system as a whole. 
Thi ee additional boards manage the 17 colleges and uni­
versities in the public sector.

Prior to trial on the merits, defendants, although deny­
ing liability, entered into a Consent Decree with plaintiff. 
The Consent Decree was approved by the court below on 
September 8, 1081. Ry the express terms of the decree, 
the measure of compliance was good faith. Sec App. C, 
p. 2.37a (“ PART VII, Compliance Standard” ).

The Consent Decree was to expire automatically on De­
cember 31, 1087, unless a party filed a timely motion to 
determine whether defendants had fully implemented the 
Decree and were operating public higher education on a 
unitary basis. Since the effective date of the Civil Rights 
Act of 10(54, Louisiana’s public colleges and universities 
have had a policy of permitting any high school graduate 
of any race to freely choose to be admitted to and to at­
tend any public college or university.

For six years following the Consent Decree in 1081, 
Louisiana engaged in an extensive program designed to 
fully integrate its system of higher education as outlined 
in the Decree. The Hoard of Regents distributed informa­
tional brochures describing all institutions of higher edu­
cation, encouraging all citizens to attend other-race in­
stitutions, informing students of available financial as­
sistance, and clearly reciting a non-discrimination policy. 
Fach school in the system has a student-recruitment plan, 
designed to attract other-race students, administered by 
an employee specifically responsible for other-race re­
cruitment. Active recruitment of other-race faculty was 
encouraged by establishment of a graduate fellowship 
program providing state funds for full-time graduate 
study by persons who would become faculty members at 
other-race schools. New academic programs were imple­
mented at, the predominately black institutions where 
facilities were improved and financial support increased 
as part of enhancement efforts. Sac Hoard of Regents’ 
Motion for Summary Judgment, App. G, pp. 472a-407n. 
According to the court below, Louisiana expended “ over 
$200 million towards the consent decree,” App. A, p. 35a, 
aimed at enhancing black colleges and universities.

In complying with the Consent Decree, Louisiana went 
far beyond neutral admissions and nondiscriminatory pol­
icies and practices in its higher educational system. 
Apart from the Consent Degree, the most recent Legisla-



ture enacted the “ Taylor rian,” 1 Act 789 of the 1989 
legislative session, La. It.S. 17:302(5 ( Aj>|». B, pp. 148a- 
ir>2ai, which provides a tuition anil fee waiver to “ all 
needy, qualified, college-bound state residents." I his Act, 
removes all economic obstacles to the exercise of a truly 
free choice by high school students, regardless of race, in 
pursuit of higher education in Louisiana. The “ Taylor 
Plan” signifies that Louisiana has gone farther than any 
other state in providing equal access to public institutions 
of higher learning.

II. The Holding Below
(i) On linbililu-

Two days before the Consent Decree was to expire, the 
United Stales moved for a compliance bearing. None was 
held.

The district court held Louisiana to be in violation of 
Title VI of the 19(54 Civil Rights Act, It condemned “ the 
entire structure of the consent decree,” App. A, p. 35a, 
which the court below had itself approved, without meas­
uring Louisiana’s good faith compliance. While admitting 
that Louisiana had open admissions, the district court 
granted summary judgment based on statistics showing 
the continuing dr facto racial predominance at Louisi­
ana’s colleges and universities.

1 Nailed for Patrick Taylor, a prominent Louisiana liusinessnian 
who inspired an entire high selionl class of Mack disadvantaged stu­
dents to stay ill school, earn “ It" averages, ami ohtaln llielr high 
school diplomas hy promising to pay their college expenses. See 
"Tiinlor In The Ki ll," Times Picayune/Slates Item, Jan. 22, I'.W.I, 
;inl ed. Section I?, p. 2. The promise of a free college education so 
motivated these “ Taylor kids,” as they are known, that their grades 
and ambitions soared. Their success prompted Patrick Taylor to 
propose a similar tuition and fee waiver program statewide. The 
Isuiisiana Legislature's adoption of the “ laylor Plan in Act 78.) 
evinces the State’s commitment to increase the educational oppor­
tunities of all its citizens, particularly the financially disadvantaged, 
regardless of race.

The district court acknowledged that Louisiana had 
long since dismantled dr, jure segregation at the higher 
('duration level:

“ The present admissions policies to all of Louisiana’s 
public institutions of higher education no longer dis­
criminate on the basis of race or otherwise; any 
Louisiana citizen who has graduated high school may 
attend the Louisiana public college of his choice, re­
gardless of the person’s academic qualifications.”

Id., p. ,r»a. But these neutral admissions policies were not 
enough, according to the district, court, to satisfy what 
the court below determined to be the controlling legal 
standard, viz., (Irani v. School Hom'd of New Kent, 
Com,lit, 391 U.S. 4 30 (19(581 :

“The rationale in Green for finding that racially 
neutral admissions policies may at times be insuffi­
cient to satisfy the constitutional mandate to achieve 
unity | sic 1 systems of public education carries the 
same force in the higher education context as it does 
in the primary and secondary education context; all 
deliberate speed to achieve non-racially identifiable 
colleges is a must, just as it is for primary and sec­
ondary schools. When open admissions alone fail to 
disestablish a segregated school system, be it a 
primary/secondary school system or a college, then 
something more is required.”

Id., p. 31a.
Rejecting the rationale of this Court’s opinion in llazr- 

7,i,ore v. Friday, 478 U.S. 385 (198(5), the court below 
insisted upon “ achieving integration,”  App. A, p. 34a, 
at the college level. The court below did this, notwith­
standing the liberty of college students to attend the in­
stitution best suited to their educational needs. Under 
the district court’s rationale, so long as Louisiana’s col­
leges and universities remain racially identifiable, the



State fails in its duty of " ‘convert|ingl its white colleges 
and black colleges to just colleges.’ ” Id. at 3f>a, quoting 
Norris v. Slate Council of Higher Education, 327 K. Supp. 
1308, 1373 (E.D. Va. 1971) ( three-judge court).

As for Louisiana’s four governing boards, they were 
also condemned as a matter of law.

(ii) The Holding l!elo\v on Remedy: Restructuring Louisi­
ana's Sgstcm of Higher Education

Drastic indeed was the judicially-imposed remedy. It 
radically restructured Louisiana’s system of higher edu­
cation—from top to bottom.

Louisiana’s four governing boards, established in its 
1974 Constitution by popular choice, were abolished, and 
a single “ superboard” substituted in their place. Louisi­
ana’s traditional system of open admissions to colleges 
was condemned as a failure. In addition, a number ol 
Louisiana’s statutes were enjoined. A new system of 
“ tiering” all colleges and universities was put into place, 
altering the educational mission of certain universities, 
restricting the degrees awardable, establishing new, 
stricter, and more selective admissions standards, and 
creating a new community college system throughout the 
State. App. A, pp. <>3a-7Ja.

In one vital particular, the district court rejected the 
recommendation of its own special master not to merge 
Southern University Law (tenter and Louisiana Stale 
University Law (tenter. Special Master Paul R. Vcrkuil, 
a distinguished legal educator and former Dean of the 
Tulane University Law School, had expressly rejected the 
idea. App. 0, pp. (>47a-fi49a, <591a-(>93a. The United 
States also opposed merger of the law centers. App. (\ 
pp. 78.r>a, 787a-793a. Dean Charles Meyers of Stanford 
Law School and Dean Peter Hay of Illinois Law School 
had reached the same conclusion in a report that was

before the special master and the court below. App. D, 
pp. l()38a-l»47a.

The judges ruled otherwise and ordered the merger.

(t. Final Decree; Appeal
Motions to alter or amend the district court’s final de­

cree, for new trial, and for a stay of execution were de­
nied by the court below on August 4, 1989 (App. A, pp. 
78a-108a). Louisiana filed its timely Notice of Appeal 
to this Court on August 10, 1989 ( App. E, p. 1Lr»7a). 
Enforcement of the district court’s final decree against 
Louisiana was stayed by this Court on August 18, 1989, 
pending the timely docketing of appeals and final disposi­
tion thereof by this Court (App. A, p. 2a).

Til 10 DIIIOSTIONS A RIO S1MISTANTIAL
It. is Louisiana’s position that the district court erred 

in finding Louisiana in violation of the Civil Lights Act 
of |9C»4. Its finding was based solely on statistics show­
ing a high predominance of one-race students at colleges 
and universities which 2f» years ago were segregated by 
state law.

Rut these statistics alone arc insufficient to show a cur­
rent violation of the Civil Rights Act of 19(54, where such 
colleges and universities for 24 years have permitted any 
high school graduate of any race to be freely admitted to 
any college or university, where colleges and universities 
o f ' the Slate have in good faith recruited other-race fa­
culty members and students at historically one-race col­
leges and universities, and where the State has spent vast 
sums of money to upgrade academic programs and physi­
cal facilities at colleges and universities which have been 
historically attended by black students although open to 
all races for many years.

Louisiana is not discriminating in violation of the Civil 
Rights Act of 19(54. On the contrary, all students are



exercising their constitutional right of free choice in se­
lecting the college or university best suited to their edu­
cational needs.

Whether a state and its institutions of higher educa­
tion are in violation of the Civil Rights Act of 1904 and 
the Fourteenth Amendment under these circumstances is 
a question that has never been decided by this Court. It 
cries for decision.

Louisiana and states similarly situated which are oper­
ating systems of higher education with completely open 
admission policies and without discrimination need to be 
freed from this turmoil.

In addition, the court below erred in judicially legis­
lating a remedy which has swept aside the constitutional 
choices of the people of Louisiana regarding management 
of higher education, substituting a system drastically dif­
ferent from that freely chosen by Louisiana’s people. 
Such radical surgery is plainly impermissible, Cf. Minne­
sota. Stale Snialc ik //eras, 40(5 IJ.S. 187, 198 ( 1972 t.

This Court should hear this case. It should require 
restraint. It should establish limits to judicial activism. 
It should require lower courts to respect the constraints 
of federalism. This Court should take federal district 
courts out of the business of establishing the governance, 
structure, and policies for the operation of higher educa­
tion in states which have open admission policies and 
whose students have exercised their constitutional free­
dom to attend the institution of their choice.

The district court’s higher education plan for Louisiana 
represents “ as complete and dramatic a displacement of 
local authority by the federal judiciary as is possible in 
our federal system,”  Columbus Hoard of Education v. 
Hr nick, 443 U.S. 449, 489 (1979) (Relmquist, J., dissent­
ing), all without the compelling justification found in 
reniclc either factually or in the district court’s “ truism” 
fastening liability upon Louisiana as a matter of law.

In pursuit of the exclusive goal of racial balance in 
Louisiana’s colleges and universities— as well as their 
governing boards the court Iwdow has misinterpreted 
this Court’s precedents.

The district court has erroneously equated the duty to 
desegregate higher education with that governing ele­
mentary and secondary schools, viz., Green v. School 
Hoard, 391 U.S. 4 30 ( 19(58). This is contrary to this 
Court’s summary affirmance in Alabama Slal<' Teachers’ 
Ass’n o. Alabama I’nblic School tfc Colleye Authority, 289 
F. Hupp. 784 ( M.D. Ala. 19(58), aff’d, 393 U.S. 400 
(19(59) | hereinafter “ .l.S'7',1” |. Such a result can be
“ supported only by a drastic expansion of the constitu­
tional right, itself, an expansion without any support in 
cither constitutional principle or precedent." Millikan r. 
Headley, 418 U.S. 717, 747 ( 1974).

And in blindly condemning the Consent Decree below 
and finding the State in violation of Title VI— all in pur­
suit of racial balance—-the district court has ignored the 
liberty of individuals to attend the coliege or university 
best suited to their educational needs.

Indeed, it is the State’s position that Louisiana has 
more than met its duly under the Civil Rights Act of 
19(54 and the Fourteenth Amendment. For more than 24 
years, any high school graduate of any race has been 
permitted to freely choose to be admitted to and to attend 
any college or university. For years, Louisiana s col­
leges nnd universities have* actively recruited other-race 
students and faculty members at colleges and universities 
that 2f> years ago were segregated. Today, Louisiana has 
adopted a tuition savings and tuition waiver plan to fi- 
naneially assist all citizens seeking higher education.2 
And Louisiana has spent more than $90 million dollars 
to upgrade facilities and programs at colleges and uni-

2 Acts 252 and 789 of tlio 1989 Regular Session of the Louisiana 
Legislature, App. It, pp. 144a-152a.



versities historically dedicated to the higher education of 
black students. That colleges and universities are ra­
cially identifiable 25 years after the adoption of the <’ml 
Rights Act of 1904 is the result only of the exercise of the 
constitutional right of free choice by students attending 
these institutions.

And by liquidating Southern University Law Center— 
nun spout a and without so much as pausing to hear from 
the affected parties— the court below has denied equal 
educational opportunity to countless law students, both 
black and white, under the guise of enforcing the liberat­
ing equality of Title VI of the Civil Rights Act of 1UC, 1 
and the Fourteenth Amendment.

A result so destructive of local autonomy and educa­
tional opportunity imperatively calls for corrective re­
view by this Court.

Conflict between ASI A and Norris Must be Resolved
First.. The ruling below rests upon a false conclusion 

of law, viz., that the continuing racial identiliability of 
Louisiana’s colleges and universities—and their four gov­
erning boards—constitutes as a matter of law a present 
violation of Title VI and the Fourteenth Amendment not­
withstanding the policy of nondiseriminatory open admis­
sions at all colleges and universities for twenty-four 
years, but as Judge Frank Johnson noted in AST A (289 
F. Supp. at 787) :

“ 1 N |o court, in dealing with desegregation of institu­
tions in the higher education area has gone farther 
than ordering nondiseriminatory admissions. That 
is also as far as Congress went in the 1901 Civil 
Rights Act.”

The A ST A court, unlike the court below, distinguished 
Green v. School Hoard, 31)1 U.S. 430 (1% 8) and its com­
panion cases, Monroe v. Hoard of Commissioners, 301 
U.S. 4f>0 (1908); lianey v. ltd. of Kduc., 391 U.S. 443 
(19G8), saying (289 F. Supp. at 790):

“ |w|e do not interpret those decisions as applying to 
the operation of an education system on a college 
level. Freedom to choose where one will attend col­
lege, unlike choosing one’s elementary or secondary 
public school, has a long tradition and helps to per­
form an important function, viz., fitting the right 
school to the right student.”

And more M.S771, 289 F. Supp. at 788, 789-90) :
“ Higher education is neither free nor compulsory. 

Students choose which, if any, institution they will 
attend. In making that choice they face the full 
range of diversity in goals, facilities, equipment, 
course offerings, teacher training and salaries, and 
living arrangements, perhaps only to mention a few.

“ We conclude, therefore, that as long as the State 
and a particular institution are dealing with admis­
sions, faculty and staff in good faith the basic re­
quirement of the affirmative duty to dismantle the 
dual school system on the college level, to the extent 
that the system may be based upon racial considera­
tions, is satisfied.”

Accord, Artis v. Hoard of Repents of the University Sys­
tem of Georyia, No. UV 479-251 (slip op.) (S.I). Ga. 
1981) (unpublished) (App. C, pp. 344a-354a) ; Ayers v. 
Attain, 074 F. Supp. 1523 (N.D. Miss. 1987), appeal 
pendiny, No. 88-4103 (5th (fir.).

This Court summarily afiir mod in AST A, 393 U.S. 400 
(1909). We submit the court below erred in not follow­
ing ASTA's rationale.

True, this Court’s summary affirmance in Norris v. 
State Council of lliyhcr education, 327 F. Supp. 1308 
(E.I). Va. 1971), aff’d suh nom., Hoard of Visitors v. 
Norris, 404 U.S. 907 (1971), bespeaks a contrary rule, 
namely, that Green v. School Hoard applies with full force 
in the context of higher education.



Resolution of this conflict is itself a substantial federal 
question presented by this case, and tbe need for a defini­
tive ruling from this Court is heightened by tbe pendency 
of other higher education desegregation cases in the lower 
courts. See, <’.</•, United States e. Alabama, 828 F.2d 
1532 (11th Cir. 1087); Ayers v. Allain, f.74 F. Supp. 
1523 (N.I). Miss. 10871, appeal pendiny, No. 88-4103 
(5th Cir.).

The Standard for Desegregation of 
Higher Education Must lie Defined

Second. In Uazemore v. Friday, 478 U.S. 385, 408 
(1080), this Court held that the “ mere continued exis­
tence of single-race 14-111 clubs does not make out a con­
stitutional violation,” where “ one’s choice of a Club is 
entirely voluntary," and the stale has “ discontinued its 
prior discriminatory practices and has adopted a wholly 
neutral admissions policy.”  This Court distinguished 
Green: “ |II|owever sound Green may have been in tbe 
context of tbe public schools, it has no application to this 
wholly different milieu. We agree with the submission 
of tbe United States in this respect.”  Id.

What the United States argued in Uazemare (App. I>, 
p. 813a) is that “ l)e facto segregation that is purely the 
product of private decision making, and thus not attribut­
able to any action by the state, is not proscribed by tbe 
Constitution.” Brief for the Federal l ’etitioners, Nos. 85- 
93, 85-428, October Term 1985, pp. 44-45 (the pertinent 
part of the United States’ Brief is set forth in full in 
App. I), p. 8<>2a-8l9a). “ | It I acini imbalance caused by 
these voluntary choices of private citizens’ is beyond the 
reach of federal courts. “ To conclude otherwise would be 
to equate racial balance with effective desegregation; an 
equation that, as noted, Swann and Spanyler expressly 
rejected.”  Id. at 45, 46.

The United States distinguished tbe bolding and analy­
sis in G reen  and its companion cases “ in situations where 
private choice, rather than official compulsion, is the

means by which attendance is determined.” Id. at 46. 
This includes the field of higher education, according to 
the United States’ submission in Uazemare:

“ No such constitutional infirmity attaches to the 
continuance of free choice in those situations where 
such choice is a traditional aspect of the government 
program or activity. In contexts such as public 
parks, liiyher education and the 4-II Clubs here, par­
ticipation or attendance in the state activity is 
wholly voluntary in all respects.”

Id. at 48 (emphasis added). The United States cited this 
Court’s summary affirmance in ASTA in support of its 
submission that Green is “ inapposite in the higher edu­
cation context because admissions there are traditionally 
governed by private choice.” Id. at 49.

In tbe court below, the United States took the position 
that “ Uazemare applies.” App. A, p. 30a. To this, tbe 
court below responded: “ Plaintiffs position is curious,
for if Uazemare applied, defendants would almost surely 
be entitled to summary judgment.”  Id., n. 70.

We agree with the United States that Green is inap­
plicable in the context of higher education and that Haze- 
more applies here, flood faith and affirmative conduct on 
the part of the Stale to provide equal opportunity for a 
quality education are criteria which Louisiana has satis­
fied. As tfie court below recognized, application of tbe 
Uazemare standard “ surely” results in a summary judg­
ment for the Slate.

Tbe freedom of Louisiana high school graduates to 
choose the public college or university they will attend is 
not, of course, tbe sole basis on which Louisiana’s efforts 
should be judged. Louisiana not only gives an opportun­
ity, by open admissions, for students to pursue any edu­
cational path they choose, but the State also actively en­
courages its high school graduates to choose other-race in­
stitutions. Through recruiting and incentive programs



Louisiana is integrating the administration, staff, and 
faculty of its public colleges and universities with the 
goal of making all institutions attractive to students of 
both races. Louisiana has increased funding for capital 
improvements on predominantly black campuses and is 
introducing new academic programs at these institutions 
to make them attractive to students of all races. See 
Board of Regents’ Motion for Summary Judgment, App. 
C, pp. 472a-497a. Surely Louisiana’s good faith efforts 
should not have been swept aside by the court below as 
a matter of law. At a minimum, Louisiana’s compliance 
with the Consent Decree presented a genuine issue of ma­
terial fact precluding summary judgment. Fed. Rule Civ. 
Pro. f»P>(cl ; Adiekes v. S.H. Kress & Co., 998 U.S. 144, 
157-159 (1970); United States v. Piebald, Inc., 909 U.S. 
054, 055 (1902).

The lower courts are divided on the question whether 
Bazcmorc applies in the field of higher education. Com­
pare Ayers v. Allain, 074 F. Supp. 1529 (N.I). Miss. 
1987), appeal pend inn, No. 88-4109 (5th Cir.) {Haze- 
mare applies), with Oder v. Alexander \Gcier II1, 801 
F.2d 79!) (0th Cir. 198(5) l Haze-more inapplicable). The 
question is an important one. The matter warrants ple­
nary review here.

The bower Court’s .hnlj*ment Based Only On 
Racial Identification Demands Review

Third. The court below says “ that the twenty institu­
tions under the four higher education boards are con­
tinuing to be operated under an unlawful, dual system 
of education in violation of Title VI,” App. A, p. 10a. 
And more, “ In failing to achieve a truly unitary system 
at the higher level of public education, the State continues 
to provide polarization and separation on a racial basis. 
App. A, p. 33a. But nowhere is there any reasoned ex­
planation for these legal conclusions— beyond the single 
fact, repeatedly emphasized by the court below, that

Louisiana’s colleges and universities remain racially iden­
tifiable following enforcement of the 1981 Consent Decree. 
But the fact of continuing de facto racial identifiability 
is not enough to fasten liability on Louisiana as a matter 
of law. Cf. Pasadena City Hoard of Education v. Sjum­
pier, 427 U.S. 424, 435 (197(5): “ There was also no 
showing in this case that those |>ost-1971 changes in the 
racial mix of some Pasadena schools which were focused 
upon by the lower courts were in any manner caused by 
segregative actions chargeable to defendants.”

In Payton Hoard of Edneation v. Brinkman, 433 IJ.S. 
40(5, 410 (19771, this Court cautioned that “ the case for 
displacement of the local authorities by a federal court in 
a school desegregation case must be satisfactorily estab­
lished by factual proof and justified by a reasoned state­
ment of legal principles.” We think it plain that the dis­
trict court’s ruling below falls short on both grounds. Not 
only has the' court below misinterpreted this Court’s pre­
cedents to require racial balancing at the university level, 
but there is simply no factual proof that the post-1981 
changes in the racial mix of Louisiana’s colleges and uni­
versities, which were the exclusive focus of the court 
below in granting summary judgment, were in any man­
ner caused by intentionally segregative actions chargeable 
to the State. On the contrary, they are the result of free 
choice by students.

Without question, Louisiana has removed all racial har­
riers to its institutions of higher education. After 
twenty-four years of open admissions regardless of race, 
we submit that a finding of duality may not be premised 
solely on enrollment statistics. Payton Hoard of Educa­
tion v. Brinkman, supra, at 413. Similarly, where a 
school Imard has carried out a Consent Decree in good 
faith and has made substantial progress toward integra­
tion, a court should consider the intentions of the state 
before concluding that its higher education system re­
mains dual. See, e.y., Soria v. Oxnard School Pistrict, 
488 F.2d 579, 587 (9th Cir. 1973), in which the court



held that a finding of duality may not he made on fium- 
mary judgment.

Accordingly, if the intentions of the Slate of Louisiana 
are given any consideration, the United States was not 
entitled to summary disposition of this case. To the con­
trary, on the record presented and under a standard ap­
propriate for institutions of higher education, the court 
below should have found that Louisiana has a unitary 
system of higher education.

The ruling below is equally deficient regarding the 
four boards of higher education in Louisiana. The court 
below says (App. A, p. 44a): “ The governing boards of 
these universities are also racially identifiable. Hut 
again there is no finding whatever that this racial iden- 
liliability is in any way attributable to segregative action 
on the part of the State or its governor, who holds the 
power of appointment to the boards. “ Retaining such 
vestiges of segregation,”  says the court below < App. A, 
]). 44a), “ is not an appropriate solution to the problems 
before this Court,” but surely the district court’s under­
standing of “ vestiges of segregation” is strained, given 
the fact that Louisiana’s multiple board governance struc­
ture is like that of other lawful higher education struc­
tures in this country and was deliberately adopted by the 
people of Louisiana by constitutional choice in 1974.

Poise is likely to be lost in contemplating what the 
court lielow next says (App. A, p. 4f,a) (emphasis added) 
in sweeping aside L ou isian a 's four-board governance  
structure authorized in the Louisiana Constitution o 
11)74:

“ A truism thus emcrycs: The present scheme for 
governing education in Louisiana— three operating 
boards and one coordinating board— has perpetuated 
illegal segregation in Louisiana’s higher education, 
even though the system’s creation postdates the filing 
of this case. The system of multiple boards is there­
fore a defect in the state’s system of higher educa­
tion that violates the federal constitution.”

,I toil how I li<‘ present governing st ructure "lia s  perpetu  
aled illegal segregation” is never explained.

The Court-(Tenled Remedy Lacks Jiulicinl Restraint 
and Demands Review

Fourth. Next, we reach what is doubtless the most 
troubling aspect of this case: the wholesale revision of 
Louisiana's higher education system by federal court de­
cree. Surely the judicial takeover of the structure and 
content of Louisiana higher education should give this 
Court pause.

This Court has cautioned that “ it must be recognized 
that there are limits,”  Sirann v. Cliarlotte-Mccklcuhurp 
Itoord of Education 402 U.S. 1, 28 (1971), “ beyond 
which a court may not go in seeking to dismantle a dual 
system.” Hasadcna ('ill/ Hoard of Education v. S]>anylcr, 
427 U.S. 424, 494 (1970). And in MUlikcn v. Headley, 
4:i9 U.S. 207, 280-81 (1977), this Court warned that “ the 
federal courts in devising a remedy must take into ac­
count the interests of stale and local authorities in man­
aging their own affairs, consistent with the Constitution.” 
Again,

“ The power of the federal courts to restructure the 
operation of local and stale governmental entities is 
not plenary. It “ may be exercised ‘only on the basis 
of a constitutional violation.’ ”  Once a constitutional 
violation is found, a federal court is required to 
tailor “ the scope of the remedy” to fit “ the nature 
and ext out of tin* const itutional violation.” ”

Piii/Iiiii lloanl of Education v. Hrinkuuw, 499 U.S. 40(5, 
419-20 (1977) (citations omitted).

On the record below, we think these limits were widely 
exceeded by the district court.

Preliminarily, we pause to note the obvious: the dis­
trict court’s higher education plan will “ disrupt and alter 
the |constitutional! structure of public |higher 1 educa­
tion in (Louisiana]. The [statewide] remedy would re­
quire, in effect, consolidation of [ 4] independent | boards] 
historically administered as separate units into a vast



new super [hoard 1.”  MiUikcn v. Bradley, 418 U S 717 
752-43 (1974). What this Court feared in MiUikcn I 
has happened here:

“ absent a complete restructuring of the laws of 
Michigan relating to school districts the Distuct 
Court will become first, a dc facto ‘ legislative au­
thority’ to resolve these complex 1 operational 1 ques­
tions and then the ‘school superintendent’ for the 
entire area. This is a task which few, if any, judges 
are qualified to perform and one which would deprive 
the people of control of schools through their elected 
representatives.”

Id. at 743-744.
Without question, the district court’s higher education 

„lan for Louisiana is the most disruptive exercise of fed­
eral equity jurisdiction as can be imagined in our federal 
system. Whatever the educational merits of the plan, it 
cannot stand as a lawful exercise of Article III judicial
power.

Item. Since the district court’s “ truism” condemning 
Louisiana’s multiple board arrangement fails for want of 
proof, the court below “ imposed a remedy which we think 
was entirely out of proportion to the constitutional viola­
tions found by the District Court,” Dai,ton Board of lulu- 
cation v. Brinkman, supra at 418. Nothing other than 
the district court’s ipse dixit justifies a finding that 
Louisiana’s four-board governance structure “ has perpet­
uated illegal segregation in Louisiana higher education 
and "is therefore a defect in the state’s system at h ig he r 

education that violates the federal constitution. Hence 
the court below violated the well-settled principle that 
“ federal court decrees exceed appropriate limits it they 
are aimed at eliminating a condition that does not violate 
the constitution or does not flow from such a violation. 
MiUikcn v. Bradley, 433 U.S. 2G7, 282 (1977).

Item. Assuming, arguendo, that the current racial lden- 
tifiability of Louisiana’s higher education system, inc u< - 
ing its governing boards, constitutes “ lingering segrega­
tion”  mandating summary judgment, as held by the couit

liciovv, see App. a , p. :nia, we mioiuii mat no compelling 
reason supports the district court’s choice of a single­
board governance structure over the multi-board system 
deliberately chosen by the people in the Louisiana Consti­
tution of 1974. The link between the remedy imposed and 
the goal of desegregation is simply too weak, on the rec­
ord made out below, to justify the drastic disruption of 
policy choices that are, we submit, “ for the State to de­
termine in the exercise of its wisdom and in the light of 
its awareness of the needs and desires of its people.” 
Minnesota Slate Senate v. IJcens, 400 U.S. 187, 200 
(1972).

We agree completely with the United States’ submis­
sion before the special master that “ the decision whethci 
or not. to create a single board should be for the stale 
alone to make, not for the Court to order.”  See App. C, 
p. i;r>:?a. Otherwise local control of schools and colleges 
will be lost to federal judges, contrary to this Court’s 
frequent admonition that “ local autonomy of school dis­
tricts is a vital national tradition.” Dayton Board of 
Education v. Brinkman, 433 U.S. 40(1, 410 (1977).

The panel decided that Louisiana’s four board system 
“ has perpetuated illegal segregation in Louisiana’s higher 
education 1 system!.” App. A, at p. 45a. This unex­
plained and unjustified finding ignores the efforts of the 
State since the 1981 Consent Decree. The panel also 
failed to explain why or how the single board it requires 
will eliminate the racial idcntifiability which the three 
judges ho strongly condem ned. A h the special master 
specifically noted: “Segregation occurs in single board 
stales and integration in multi-board or coordinated 
states.”  App. C, at p. G5f»a. The panel has not explained 
how its drastic restructuring of the Louisiana system is 
related to the violation found or will have the remedial 
effects required by MiUikcn II.

That a single board “ would help” ; that it is “ a step in 
that direction” ; that it “ has facilitated desegregation in 
Florida” ; and that its potential for success in Louisiana



is “ not in any way implausible” •H— these links are simply 
too attenuated to meet the standard of necessity required 
of federal court decrees that intrude upon vital state pol­
icy choices and local educational autonomy. See, Mil 
liken v. Bradley, 433 U.S. 207, 275, 277 (1977) (approv­
ing only what “ was necessary” ; “ only what is essential” ). 
Cf. Whitcomb v. Chavis, 403 U.S. 124, 100-01 (1971), 
“ in which we held that the District Court erred in fash­
ioning a court-ordered plan that rejected state policy 
choices more than was necessary to meet the specific con­
stitutional violations involved.” llpham v. Seaman, 4.>0 
U.S. 37, 42 (1982).

What this Court has said about tailoring reapportion­
ment decrees to (it stale policy choices applies as well to 
desegregation decrees:

“ |A) federal district court should follow the policies 
and preferences of the State, as expressed in statu­
tory and constitutional provisions whenever adher­
ence to state policy does not detract from the require­
ments of the Federal Constitution . . . .

While v. Weiser, 412 U.S. 783, 795 (1973). And in fash­
ioning a desegregation plan “ or in choosing among plans, 
a district court should not pre-empt the legislative task 
nor ‘ intrude upon state policy any mare than necessary: ’ 
Id., quoting Whitcomb v. Chavis, supra, at 1(50.

We submit it was not open to the court below to cast 
aside Louisiana's multi-hoard constitutional arrangement 
in favor of a remedy whose potential for success is reg­
istered only as “ not in any way implausible” by the com I. 
appointed special master.

In Minnesota State Senate v. Becns, 40fi U.S. 187 
(1972), the district court cut the size of the State Senate 
in half in order to “ best”  apportion it and to achieve 
“ positive benefits to the State” — all with the Governor 
of Minnesota’s blessing. 40C> U.S. at 191, 192. Said this 
Court by way of summary reversal on appeal: *

* See Report of Special Master, App. C. PP- CBIta, G5Ga, 654a, G58a.

til C”| lull is a inauer ui state policy, we m im m j 
not equipped— and it is not our function and task— 
to cfTeetuale |>olicy of that kind or to evaluate it once 
il has been determined by the State. Neither is it 
the function and task of the Federal District Court. 
Size is for the State to determine in the exercise of 
its wisdom and in the light of its awareness of the 
needs and desires of its people.”

Id. at 200.
We say the same thing regarding the structure and 

content, of Louisiana’s higher education.
As for Governor Charles F. “ Buddy”  Roemer’s support 

for the single hoard, the short answer is what this Court 
said in Cents: “ The present Governor’s contrary recom­
mendation, all hough certainly entitled to thoughtful con­
sideration, represents only the executive’s proffered cur­
rent policy.” 100 U.S. at 197. The Louisiana Legislature 
has quite a different current policy, one favoring the mul­
tiple hoard structure written into the Louisiana Consti- 
t lit ion of 1974.'

Item. With regard to classifying and tiering Louisi­
ana’s institutions of higher learning, the special master 
noted: “ The crucial issue regarding these remedies re­
mains their relationship to the goal of integrating Louisi­
ana higher education.” Report of the Special Master, 
App. C, p. 007a. Here is what the master found:

“ The relationship between classifying or tiering 
public institutions and the desired goal of desegrega­
tion is an inferential one. There is no obvious and 
necessary connection between organization and de­
segregation. Thus how state universities are organ­
ized can he viewed as an educational matter not ris­
ing to constitutional levels. However, there is much 
to he said for structuring higher education to en­
hance quality and then ensuring that minority stu­
dents participate at all levels of the system.”

Id., p. (>()8a (emphasis added).

4 See Allidavit of Senator Foster L. Campbell, Jr., App. D, pp. 
820a-821a.



A careful reading of the district court’s opinion of 
July 19, 1989, shows that the court below, which is bound 
bv the special master’s findings of fact unless cleaily 
erroneous, Fed. Rule Civ. Pro., Rule 52(a) bolstered 
what was only “ an inferential”  connection before the 
special master into “ a strong correlation” before the re­
viewing court— all out of thin air. Here is what the dis­
trict court said:

“ With regard to the structure of a proposed rem- 
dial system and the roles of the particular institu­
tions within the system, there is no obvious and nec­
essary connection between organization and desegre­
gation. [Thus how state universities are organized 
can be viewed as an educational matter not rising 
to constitutional levels.] However, a •'(»'"»'/ eonelu- 
tion between classifying and tiering public institu­
tions and desegregation may surely be inferred from 
structuring higher education to enhance qua ity while 
ensuring minority students participate at all levels.

App. A, p. 54a (bracketed sentence deleted from master’s 
report by the court below) (emphasis supplied).

Surely this kind of judicial bootstrapping is impermis­
sible given “ the principles of federalism abrogated by 
S T d i n * ."  U U likm  ». ««».•», « *  US. 207, 201 
(1977).

We submit— respectfully but (irmly— that the district 
court’s higher education plan for Louisiana blatantly ig­
nores the remedial guidelines set, forth in Milhhen II. 
It is disproportionate to the violation found, it is not 
remedial, and it ignores the State’s paramount, interest 
in managing public higher education in its own consti­
tutional way. Moreover, the novel higher education con­
text of this case suggests that the Court should take this 
opportunity to address the scope of remedial action, if 
any, which is appropriate when racial polarity persists 
for reasons unrelated to discrimination in public insti­
tutions of higher education.

Disaster by Decree: The Dismantling of 
Southern University Law Center

Fifth ami frnalhi. Wo submit that the district court 
below exceeded its equitable remedial authority and vio­
lated due process when it sua spoilt e ordered the merger 
of Southern University Law Center into the LRU Law 
Center without an evidentiary bearing and contrary to 
the recommendations of all parties and the court-appointed 
special master.

Surely (he dismantling of Southern University Law 
Center without a hearing is a grave matter. Whether we 
are beyond tbe dark days of Sweatt v. Painter, 3.19 U.S. 
(•,21) (1950), whether today Southern University Law 
Center affords “ equal educational opportunity”  to count­
less students, both black and white,0 who might not other­
wise become lawyers- plainly these are agonizing ques­
tions worthy of this Court’s consideration.

Hut we need not argue the merits of the courts order 
merging Southern’s Law Center with LSU s nor could 
we on this record.'1 A gross procedural error taints the

* Southern University I .aw Center is the most inlegrated institu­
tion of higher education in Louisiana: 58%  black and 42%  white 
students. .S', e A|i|i. A, |>. C»0n; App. C, p. 00In.

a \y(. cannot, however, let pass without comment the surmise of 
the special master and the court below that “ LSU Law Center’s low 
percentage of blacks seems to he a factor of an admissions policy 
that makes no ell'ort to attract black applicants . . . .” App. C, 
,, a ,,,,. A, p. Cl a. The nllidnvit of William I). Ilawkland,
Chancellor of the LRU Law Center, which was before the social 
master and the court below, shows (App. I), pp. I024a-I025a) :

( 1) “Special recruitment strategics have been implemented in the 
etfort to increase black enrollment."

(2) "In  an elfort to increase black student enrollment, the Law 
Center admits blacks who do not qualify for admission under the 
regular admissions criteria.”

(;i) “The Law Center has used its own resources to assist in the 
recruitment of minority students. In 1988, the LSU Board of 
Supervisors authorized the Law Center to award up to 10 [now 50] 
three-year tuition waivers per year to minority students. It is



decision below: the district court condemned Southern
University Law Center as "the inferior school,”  App. A, 
p. (iOa, producing "n secondary class of lawyers unable to 
compete fully in the professional context," id., !>• hi a, 
without an evidentiary hearing and without affording the 
affected parties an opportunity to be heard. This violates 
due process. U.S. Const., Fifth Amend.; Carter v. West 
Feliciana ravish School Hoard, HOC, U.S. 200, 202 (1070). 
Even the most enthusiastic supporters of institutional re­
form litigation stick to a modicum of due process. Thus, 
Professor Abraham Chaycs, extolling “ The Triumph of 
Equity” in public law litigation, cautions that: “ The de­
cree is also an order of the court, signed by the judge 
and issued under his responsibility . . . .  Hut, it cannot 
be supposed that the judge, at least, in a case of any com- 
plexily, composes it out of liis own head, (/hayes, / i< 
Hole of the .Indue in Public I,aw Idtit/alion, Hi) Harv. L. 
Rev. 1281, 125)2, 12i»8 ( 197G).

Yet that is precisely what happened here. No party 
below recommended merging the law schools; the special 
master expressly rejected the idea: “ |M|erger would in­
volve vastly different institutional goals and faculty out-

hoped that this financial support will assist in the competition for 
black candidates.”

The court below ordered that “ I.SU l.nw School” I sic 1 shall 
undertake as soon as practicable, but no later than the 1990-1991 
school year, vigorous efforts for recruiting blacks, including ten 
percent admissions exceptions for black students, offering scholar­
ships to prospective blacks and U|>|minliiig a special admissions 
officer for black students . . . . "  App. A, p. 79a. Surely this is a 
bizarre order, for the record plainly shows that the LSU I.aw 
Center has had a special admissions officer for black students since 
1982 as well as a vigorous recruitment program, including admis­
sions exceptions and scholarships for black students. See Affidavit 
of Professor Kulis Simien, Jr., “ Other-Race Recruiter for Paul 
M. llcbert I.nw Center," App. I), pp. 1027a-1029a.

In light of Chancellor Hawkland’s and Professor Simien’s sworn 
statements, the special master’s and the district court’s condemna­
tion of the LSU Law Center’s admissions isdicy regarding recruit­
ment of black students remains a complete mystery.

looks, as well as levels ui suiuciii achievement, ami n. 
should not be resorted to unless other approaches fail. 
Report of the Special Master, App. C, pp. G91a-G92a.

The district court’s merger order hit Southern Univer­
sity Law Center, its faculty, students, and alumni like a 
lightning bolt. Surely due process requires a hearing be­
fore a proud academic community is shattered by the 
force of law. Cf. Far!mouth Collerje v. Woodward, 4 
Wheat. 518 (1819). Liberty and property interests are 
jeopardized. Ma/cr v. Nebraska, 2G2 U.S. 390 (1923) , 
Pierce v. Soviet a of Sisters, 2G8 U.S. 510 (1925). “ How­
ever worthy I he goal of desegregation, it must not be 
achieved by means that fall short of minimum due proc­
ess requirements.”  Raier, Framine) and Rewewhuj a /><:- 
set)reflation Decree-. Of the Chancellor’s Foot and Fifth 
Circuit Control, 47 La. L. Rev. 123, 1.18 (198G).

At the heart of due process is the opportunity to be 
heard. Cleveland Hoard of education v. Loudermill, 470 
U.S. 532 (1985). Even in the Sweatt case, “ a hearing 
was held on the issue of the equality of the educational 
facilities at the newly established school as compared with 
the University of Texas Law School.”  339 U.S. at G32.

We submit Southern University Law Center, its Chan­
cellor, students, and faculty should not have been con­
demned to merger without a bearing and without an op­
portunity to contest the order and to explain their mis­
sion, their methods, and “ those qualities which are in­
capable of objective measurement but which make for 
greatness in a law school.”  Sweatt v. Painter, 339 U.S. 
at G34. Surely their voices are entitled to be heard:

“ I decided to pursue my legal training at Southern 
University Law Center because I felt it would af­
ford me an unparalleled opportunity to obtain a law 
degree in an environment which was sensitive to my 
concerns, while at the same time challenging and 
stimulating enough to insure me a quality education.



"My decision to attend the Southern University 
Law Center was a conscious, affirmative am 
sidcred decision, made to the exclusion of a o ie 
possibilities.

"I did not and do not wish to attend the Louisiana 
State University Law Center. 1 do not know if I 
would gain admission to the LSU Law Center under 
its current admission standards. However, I do de­
sire to become a practicing attorney.

Affidavit of Italy Gorr.ll, Student. Southern University 
Law Center, App. D, pp. 1155a-115(»a.

The State of Louisiana firmly believes that Southein 
University Law Center is not “ the law school foi N 
croes” of Iieman Sweatt’s day. It was error for tin 
court below to order merger without an evidentiary' heal­
ing. The constitutional question presented is substantial.

We leave the last word to Webster:
"Sir you may destroy this little Institution; it is 

wonk; it i . in your hand.,! 1 know it is one of tire
lesser lights------You may put it out.

“ It is, Sir, as I have said, a small college. And 
yet there are those who love it." 7

CONCLUSION

The decision below rests on grounds that cannot be 
sm>,wilted and the questions presented are substantial. 
This Court should therefore take jurisdiction of the pres­
ent appeal.

r These lines, of course, are from Daniel Webster’s immortal 
peroration in the Dartmouth College case, Dartmouth Colletjc v■ 
Woodward 4 Wheat. 518 (1819). They do not appear in Hemy 
Wheaton’s'ollieial re,K,rl of the ease. They were, however preserve 
for students of the law in ?.ufus Choate’s KuUujy on Darnel Webste,. 
in I It CHOATE. WORKS 51C (18G2) (emphasis in original).

Kespccuuny s u m iii. l-cw,

DERMOT S. McGl.lNCIlKY 
K AT 111.KEN A. MANNINC.
Makoaket Diamond 
James M. Carner
MoGI.INOIIEY, SrAKEOKO,

Mint/ ,  Cki.i.ini &. I.ano 
(MS Magazine Street 
New Orleans, I.A 70150 5477 
S)>i vial Counsel

Wll.I.IAM .1. C.t'STE. JR.
Attorney (leneral of Louisiana 
Counsel of lierord

Kenneth C. Dejf.an
first Assistant Attorney (.eneral

Winston W. Riddick 
executive Assistant 

Attorney ( leneral
David G. Sanders

Assistant Attorney General
T homas S. Hai.i.ioan

Assistant Attorney General
Winston G. Deouir 

Special Assistant 
Attorney General

|>AII1. It. I’ AIKR 
Special Assistant 

Attorney General
Louisiana Department of Justice 
1* O. Itox 94005 
Union Itouge, I.A 70804-9005 
Telephone: (5041 1142-701:1
Att„rne,,s for State of Louisiana

ex rel. William ./. Caste, Jr., 
Attorney (leneral of the State

5 Oct 89 of Louisiana