Virgie Lee Valley, United States of America, Intervenor v. Rapides Parish School Board, Richard P. Ieyoub, Attorney General of the State of Louisiana

WISDOM, Senior Circuit Judge,

dissenting:

I respectfully dissent.

This case is so bursting with over-ripeness that it emits an unpleasant odor.

Should this case be sent back to the district court, the district judge will find again the controlling fact already well known to the district judge, a life-long Alexandrian and a federal district judge since his appointment in October 1970. The controlling fact, well known to Louisiana and to this Court, is that the area covered by the ninth, tenth, and eleventh wards of the eleven wards in Rap-ides Parish is clearly defined as the predominantly white section of Alexandria. It is admittedly eighty-seven per cent white, and may be more. The proposed majority opinion is, therefore, a blatant attempt to establish a special public school district for whites in a limited area'known as the white section of Alexandria.

The notion expressed in the first sentence of the proposed majority opinion that the *335 enabling legislation was “designed to divide the Rapides Parish School District into two districts”, is indeed an admission of the fact that the plan is an attempt to establish de jure segregation in Alexandria public schools — at least for the time it will take to overcome stalling and for the case to be decided en banc or for it to reach the United States Supreme Court.

The enabling legislation is directly contrary to Brown 1 Brown II, 2 and to Bolling v. Sharpe, 3 and to the spirit of numerous decisions of this Court.

The time to stop it is now. 4

It is incredible that half a century after Brown, one should have to ask for an en banc judgment to prevent the establishment of a school for whites in a public school system. That is necessary in this case where ripeness “is a cape for unauthorized appellate rule making”. 5 Here, however, the cape has rubbed hard against the rock of controlling fact. The cape is in tatters.

The majority’s opinion, not the first submitted on the immediate issue, impels an en banc proceeding.

. 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954).

. 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955).

. 347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 (1954).

. The majority is willing to accept Wright v. Council of City of Emporia, 407 U.S. 451 , 92 S.Ct. 2196 , 33 L.Ed.2d 51 (1972). Fine. The true "test” from Wright and the similar case of United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484, 490 , 92 S.Ct. 2214, 2217-18 , 33 L.Ed.2d 75 (1972), is "whether [the splinter district plan] hinders or furthers the process of desegregation. If the proposal would impede the dismantling of a dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out”. Ross v. Houston Ind. School Dist., 559 F.2d 937 , 943 (5th Cir.1977). Wright , like the Rapides case, involved a school district under court order to dismantle a dual educational system. 407 U.S. at 455-59, 92 S.Ct. at 2199-202. The Wright court's chief concern with the creation of a splinter school district was that the division would impede the efforts to dismantle the dual system. The court held that "a new school district may not be created where its effect would be to impede the process of dismantling the dual system.” Id. at 470 , 92 S.Ct. at 2207. This point is important. The obvious effect of the plan to divide the Rapides Parish School District is the creation of a predominately white school district north of the Red River and a predominately black school district south of the Red River. There is no justification for considering the current plan two or three years down the road, thanks to the appellate process. The court must now consider the racial makeup of the new district.

. Marathon Oil Corp. v. Ruhrgas, No. 96-20361 (5th Cir.1998) (en banc) (Higginbotham, J., dissenting).