Petition — East Baton Rouge Parish School Board v. Davis

Su Coust, U. S, \

——_t

AUG 22 1978 :

\

No. MICHABL AOBAK, JR., CLERK |

in the

Supreme Court of the Anited States

OCTOBER TERM, 1978

EAST BATON ROUGE PARISH SCHOOL BOARD, ET AL.,

Petitioners,

Vv

CLIFFORD EUGENE DAVIS, JR., ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES FIFTH CIRCUIT COURT

OF APPEALS

JOHN F. WARD, JR.

1111 South Foster Drive, Suite C

Post Office Box 65236

Baton Rouge, Louisiana 70896

(504) 923-3462

ATTORNEY FOR PETITIONERS

i

TABLE OF CONTENTS

PAGE

Or ee Ses a ba bane caper sue haee ii

Citations to Opinions Below .............+.eee08: 1

Jurisdiction ......... Rh eh uk was Nedees aah an 2

Question Presented for Review .................. 2

eS ne ives auc cena skeseeeuss 3

kc cecivnkeneswneewebes 3

Statement of the Facts..... NG re tn gee ey ee A My 8

Reasons for Granting the Writ ................... 13

REET SER RRR RAIS Te © AGEL RAE Rarer PCS r tf er 26

a hake camo GWA cl bu ees ews We ee en 27

ENS ani 4 a 0t as GUNG s UNS Seka bai eed 28

SRG as i oo 05 Vn cn ckd che badeeceebiiT ewer 42

ii

TABLE OF AUTHORITIES

Cases: PAGE

Austin Independent School District v. United

| in ? Tae ge |

fee Re eee | eee 13

Brown v. Board of Education, 347 U.S. 483, 74

S.Ct. 686, 98 L.Ed. 873 (Brown I-1954) and 349

U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083) Brown

SOE kkk c Asiad cbWh de KDE Cee Coed bh oes 0 3

Bush v. Orleans Parish School Board, United

States District Court, Eastern District of

eR ER eer re 13

Calhoun v. Cook, 522 F.2d 717, rehearing and

rehearing en bance denied, 525 F.2d 1208..... 13

Carr v. Montgomery County Board of Education,

377 F. Supp. 1123, affirmed 511 F.2d 1374 (5th

Cir.), rehearing and rehearing en banc denied,

cert. denied, 96 S.Ct. 397, 423 U.S. 986, 46

EE eae ia oka ck bos Ganudadieabageess 13

Dayton Board of Education v. Brinkman, ——

U.S. __, 53 L.Ed.2d 851, 97 S.Ct. ___ June

i: MS Wk ne eu Sasi ko nS oe nn bee bo 13

Green v. County School Board of New Kent County,

1968, 381 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d

Tb cacauchikepeSeedenhhatessebadaseansees 12

Hall v. St. Helena Parish School Board, 417 F.2d

Dike Kites daddakées tan ban end dienes sewabhaes 1

Horton, et al. v. Lawrence County Alabama Board

of Education, No. 77-2937 (5th Circuit) ...... 13

Milliken v. Bradley, 418 U.S. 717, 41 L.Ed.2d 1069,

Oe GEE» Nik vebln kd 55a do eneskdeneasas 13

Pasadena City Board of Education v. Spangler, 427

U.S. 424, 49 L.Ed.2d 599, 96 S.Ct. 2697 (1976) 13

Singleton v. Jackson Separate School Systems, en

banc, (5th Cir., 1970) 419 F.2d 1211 ......... 4

iii

PAGE

United States v. Jefferson County Board of

Education, 1966, 372 F.2d 836 (Jefferson I)

affirmed on rehearing en bane 1967, 380 F.2d

385 (Jefferson II) cert. denied, 389 U.S. 840.. 4

Village of Arlington Heights v. Metropolitan

Housing Development Corporation, ——_ U.S.

—___., 50 L.Ed.2d 450, 97 S.Ct. 555 (1977) ..... 13

Washington v. Davis, 426 U.S. 229, 48 L.Ed.2d 597,

Se Ge MME pc decacecasbis cadgabices 13

Statutes:

United States Constitution, Fourteenth

ee teiceweees 3

Treatises:

“Teacher Effectiveness”, Smith, Dr. Fred M. and

Gremillion, Dr. J. B.; February, 1971;

Louisiana Sch»vol Boards Association and

Bureau of Educational Material and Research

of the College of Education, Louisiana State

SPINS iain: 400k SUA take NAc ce EN eR eT se® 22

No.

in the

Supreme Court of the United States

OCTOBER TERM, 1978

EAST BATON ROUGE PARISH SCHOOL BOARD, ET AL.,

Petitioners,

Biss

CLIFFORD EUGENE DAVIS, JR., ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES FIFTH CIRCUIT COURT

OF APPEALS

To the Honorable the Chief Justice and Associate

Justices of the Supreme Court of the United States:

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of Ap-

peals for the Fifth Circuit, entered in the above entitled

case on April 7, 1978, rehearing denied May 25, 1978.

CITATIONS TO OPINIONS BELOW

The opinion of the United States District Court for

the Middle District of Louisiana is unreported and ap-

pears herein as Appendix A. The opinion of the Court of

Appeals for the Fifth Circuit is also not yet reported and

appears herein as Appendix B.

2

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on April 7, 1978. A timely applica-

tion for rehearing was denied on May 25, 1978 and this

petition for certiorari was filed within ninety (90) days of

that date. This Court’s jurisdiction is invoked under 28

USC 1254(1).

QUESTION PRESENTED FOR REVIEW

Did the Court of Appeals err in disregarding the

District Court’s twelve page opinion as to facts and law

merely because the District Court failed to make specific

findings of fact and conclusions of law as to certain alle-

gations of plaintiff’s complaint under the circumstances

of this case where:

A. The District Court had declared the system to be

unitary in 1970 after implementation of a de-

segregation plan devised by a bi-racial commit-

tee; and

B. Upon the filing of the instant complaint by

plaintiff-intervenors, the District Court ap-

pointed an outside expert to review the opera-

tion of the school system as to its continued uni-

tariness and such Court appointed expert found

the system to be still unitary; and

C. The plaintiff-intervenors produced virtually no

evidence with regard to any of the allegations of

their complaint and no evidence, whatsoever,

with respect to many of the allegations of their

complaint, and

D. The District Court opinion clearly finds in favor

of defendants on the issues.

3

STATUTORY PROVISIONS

Amendment XIV, Section 1 of the Constitution of

the United States.

“AMENDMENT XIV.—CITIZENSHIP; PRIVI-

LEGES AND IMMUNITIES; DUE PROCESS:

EQUAL PROTECTION

“Section 1. All persons born or naturalized in the

United States and subject to the jurisdiction there-

of, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal protec-

tion of the laws.”

STATEMENT OF THE CASE

The East Baton Rouge Parish School System as op-

erated by the School Board, its Superintendent and staff

during the past seven or eight years, has been, and is,

the most progressive public school system in this state

and possibly in the Fifth Circuit. As decisions of this

Court and the Courts of Appeal made clearer, step-by-

step and year-by-year, the requirements of public school

systems in carrying into effect the spirit and letter of the

law under the Fourteenth Amendment to the United

States Constitution and the decision of the United States

Supreme Court in Brown v. Board of Education, 347

U.S. 483, 74 S.Ct. 686, 98 L.Ed 873 (Brown I-1954) and

349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II-

1955), this School Board and school system were gener-

ally moving forward in advance of such decisions. For

4

example, it studied both the Orleans Parish School Sys-

tem and the Atlanta School System as being relatively

comparable metropolitan school systems and adopted

some of the plans and provisions already being utilized

by those two systems. The last time this school system

has been before this Court on this issue was in 1966 as

one of several school boards from several states in this

circuit in United States v. Jefferson County Board of

Education, 1966, 372 F.2d 836 (Jefferson I) affirmed on

rehearing en banc 1967, 380 F.2d 385 (Jefferson II) cert.

denied, 389 U.S. 840. After rendition of the Jefferson

decision, this School Board moved immediately to im-

plement each and every provision of such decree.

Thereafter, with the advent of the decisions of the

Fifth Circuit in Hall v. St. Helena Parish School Board,

417 F.2d 801, and Singleton v. Jackson Separate School

Systems, en banc, (5th Cir., 1970) 419 F.2d 1211, and

even though this school system was not directly involved

in either of those cases, it again moved progressively

forward to implement the spirit and letter of those deci-

sions in its school system. For example, it was the first

school system in Louisiana, and possibly in this circuit,

to voluntarily appoint a bi-racial committee to assist it in

desegregating its schools and converting to a unitary

school system, and did so prior to decisions of this Court

suggesting such procedure.

On December 18, 1969, the East Baton Rouge

Parish School Board called together virtually all of the

leaders of the black community for the purpose of obtain-

ing their assistance in devising a desegregation plan

which would meet constantly changing requirements

and create a unitary school system for this community.

5

As a result of this meeting, the school board officially

adopted, on that same day, a resolution creating an

inter-racial steering committee composed of leaders in

the black community selected by them, leaders in the

white community and school board members.

This original parent bi-racial committee ultimately

became known as the Public Education Study Commit-

tee. This parent bi-racial committee appointed two sub-

committees; a Faculty Desegregation Subcommittee

composed of ten white citizens and ten black citizens and

a Student Desegregation Sub-Committee composed of

26 citizens, twelve of whom were white, thirteen of

whom were black, and one of whom was oriental. Al-

though the cited portion of the record indicates that the

bi-racial committee was created after the issuance of the

court’s order of January 16, 1970 (issued as a result of

this court’s decision in Hall and Singleton, supra) the

Public Education Study Committee was actually created

on December 18, 1969 and had already met three times

and established its subcommittees prior to the District

Court’s January 16, 1970 order.

During the next six months the Public Education

Study Committee held twenty meetings, the Faculty

Desegregation Subcommittee held six meetings and the

Student Desegregation Subcommittee held ten meet-

ings. These meetings resulted in the Public Education

Study Committee recommending to the school board a

new plan designed to create a unitary school system in

all respects including faculty, staff, transportation,

extra-curricular activities, student body composition

and school facilities as required by the most recent deci-

sions of this Court and the Court of Appeals. This plan

6

proposed by the bi-racial committee was adopted by the

school board and proposed to the District Court without

change except to accede to the request of the black and

white high school student councils that graduating

seniors be permitted to remain at their present school

for the next school year, their senior and final year in

high school.

This plan of the bi-racial committee and school

board was approved and ordered implemented for the

1970-71 school year by the District Court’s opinion and

order of July 22, 1970 without objection from plaintiffs or

intervenors and no appeal was taken therefrom. The

East Baton Rouge Parish School System has operated in

compliance with that order since that date.

Subsequently, on April 2, 1971, plaintiffs and inter-

venors filed a Motion for Further Relief and noticed

same for hearing. On July 25, 1971, by agreement of the

parties, the questions raised in the 1971 motion were

referred to the Bi-Racial Committee for consideration.

Two years later, on June 7, 1974, present counsel

for intervenors was added as additional counsel of record

for intervenors and filed a new Motion for Further Relief

accompanied by voluminous interrogatories and request

for admission of facts. Due to the great volume of infor-

mation requested by intervenors’ interrogatories and

request for admissions, defendants were granted an ex-

tension of time to file answers thereto, which answers

and exhibits, were filed with the Court on May 31, 1974,

intervenors’ motion being set for hearing on August 2,

1974. On Augus* 1, 1974 defendants filed a motion to

upset the hearing and requesting the Court to refer In-

tervenors’ Motion for Further Relief to the Bi-Racial

—_—-~-~

7

Committee which motion was also set for August 2,

1974. At the beginning of the hearing, the District Court

denied Defendants’ motion to upset the hearing and nro-

ceeded to hear Intervenors’ Motion for Further Relief,

reserving ruling on the motion to refer to the Bi-Racial

Committee. At the completion of the hearing on Inter-

venors’ Motion for Further Relief, the Court ordered the

matter submitted.

Thereafter, on August 14, 1974, the District Court

issued an order indicating the Court’s feeling that it

needed the assistance of outside educational experts to

assist the Court in resolving the issues before the Court,

and appointing the Louisiana Educational Laboratory as

such outside educational expert. The order further re-

quired such experts to submit an interim report to the

Court as to any immediate steps that might be needed

by January 1, 1975. It further required a final report by

March 1, 1975 (later extended to May 1, 1975) with the

fees of the experts to be assessed as costs (later deter-

mined to be $27,949.89 and paid by the School Board).

Intervenors noticed an appeal from such order on

August 26, 1974 but after clarification by the Court by

minute entry of September 23, 1974 that this was not a

final order and that their motion was still pending inter-

venors withdrew their appeal. On January 17, 1975, the

interim report of LEL (previously filed with the Court)

was filed in the record. On February 26, 1975 the Dis-

trict Court, based on the LEL interim report, issued

“Finding and Interim Order” directing immediate im-

plementation of certain LEL interim recommendations

including converting the Bi-Racial Committee to a Court

appointed committee and referring the faculty reas-

8

signment problem (a primary complaint of intervenor) to

such committee for study. On March 26, 1975 inter-

venors noticed their appeal from the February 26, 1975

Interim Order. On April 25, 1975, intervenors again vol-

untarily dismissed their appeal.

In the meantime, LEL filed its final report with the

Court on April 28, 1975 and on May 4, 1975 the Court

issued a minute entry directing service of the LEL final

report on the parties and setting intervenors motions for

hearing on June 16, 1975, later changed to June 18, 1975.

At the conclusion of the hearing, the Court took the

matter under advisement ordering briefs and proposed

orders from both sides within ten days. After briefs had

been submitted, the District Court rendered its Opinion

and Judgment on August 21, 1975 denying Intervenors

Motions, finding the East Baton Rouge Parish School

System to still be unitary and dismissing the complaint.

Intervenor then noticed an appeal on September 17,

1975.

On appeal, the Court of Appeals reversed the Dis-

trict Court’s decision and remanded with directions to

the District Court to hold further hearings on the issues

and to make specific findings of fact and conclusions of

law with respect thereto and virtually directed pairing

and clustering of schools to eliminate any predominantly

one-race schools.

STATEMENT OF FACTS

East Baton Rouge Parish is a large metropolitan

area located on the Mississippi River approximately 90

miles north of New Orleans. Within its boundaries are

the City of Baton Rouge, the capitol city of the State of

9

Louisiana, and two smaller incorporated towns located

approximately 10 and 15 miles north of the City of Baton

Rouge, Baker and Zachary. It is second only to New

Orleans in population and similar to New Orleans in

many respects. The present population of the parish is

350,400; the population of the City of Baton Rouge is

approximately 204,897; the population of the town of

Baker is approximately 8,000 and the population of the

town of Zachary is approximately 5,000.

The parish is geographically large containing 468.35

square miles made up of the urban city of Baton Rouge,

a suburban area and a rural area. East Baton Rouge

Parish is bounded on the west by the Mississippi River,

on the north by West and East Feliciana Parishes, on

the east by Livingston Parish and on the south by por-

tions of Ascension and Iberville Parishes. The parish

measures on a straight line, 35 miles from north to south

and something over 20 miles from west to east.

The school system in East Baton Rouge Parish is a

parish-wide school system and there are no separate city

school systems. The school board presently operates a

total of 113 schools serving over 70,000 students and

employing approximately 3500 teachers. The racial com-

position of the parish is approximately 65 percent white

and 35 percent black.

Black citizens of the community reside primarily in

a north-south belt located in the west central part of the

parish, the older part of the city. This belt runs from just

north of the Louisiana State University campus on the

south through the City of Baton Rouge, the unincorpo-

rated community of Scotlandville (in which Southern

10

University is located) and northward through the small-

er towns of Baker and Zachary which are in the rural

area of the parish. As population movement to the west

is cut off by the Mississippi River, population movement

and growth has been primarily to the east although

somewhat to the north and south. As is the case with any

metropolitan area, as the older inner city became less

residential and more commercial in nature, with the cor-

responding higher crime rate, the people, both black and

white, have moved out primarily eastward.

Because of this deterioration and commercialization

of the older inner city and the consequent movement

east, north and south of the more affluent black and

white citizens, leaving behind the lower socioeconomic

groups both blacks and white, we do have a few schools

which might be considered as be racially identifiable be-

cause of their student body composition. Conversely,

this eastward movement has also resulted in a few of the

schools on the far eastern boundary of the parish being

predominantly white. This north, south and primarily

eastward population movement due to the commercial-

ization and deterioration of the old inner city and the

desire of various groups to live together was supported

by the testimony of plaintiffs’ own witness, Dr. John

Moland, Jr., professor of sociology and research at

Southern University. However, as found by the experts

appointed by the Court, the great majority of our

schools are well integrated and the faculty of each school

has substantially the same ratio of black and white

teachers as the overall parish-wide ratio of approxi-

mately 65 percent black and 35 percent white.

An examination of typical student body composi-

11

tions of schools in East Baton Rouge Parish, starting on

the south and moving northward, reveals the following:

NAME OF SCHOOL % BLACK % WHITE

Southdowns Elementary ........... 21.1 78.9

University Terrace Elementary ..... 84.6 15.4

Walnut Hills Elementary .......... 43.7 56.3

Highland Elementary .............. 10.1 89.9

Magnolia Woods Elementary ....... 15.3 84.7

Kenilworth Junior High School ..... 27.0 73.0

Valley Park Junior High School ..... 26.9 73.1

South East Junior High School ..... 4.1 95.9

Tara Senior High School ..... hdbsi a 11.0 89.0

Robert E. Lee High School ........ 18.3 81.7

Westdale Elementary .............. 39.2 60.8

Broadmoor Elementary ............ a 99.3

Goodwood Elementary ............. 5.7 94.3

Highland Elementary .............. 10.1 89.9

Lanier Elementary ................ 15.6 84.4

Melrose Elementary ............... 41.4 58.6

Mayfair Elementary ............... 40.9 59.1

Merrydale Elementary ............. 16.5 83.5

Mohican Elementary .............. 52.0 48.0

Bernard Terrace Elementary ....... 38.7 61.3

Brookstown Elementary ........... y 8.9 91.1

Choctaw Elementary .............. 72.6 27.4

Claiborne Elementary ............. 27.6 72.4

Dalton Elementary ................ 66.5 33.5

Delmont Elementary .............. 54.8 45.2

Forest Heights Elementary ........ 39.1 60.9

Howell Park Elementary ........... 39.5 60.5

Capitol Junior High School ......... 99.7 3

Westdale Junior High School ....... 38.5 61.5

Istrouma Junior High School

(formerly all white) .............. 86.5 13.5

Glen Oaks Junior High School ...... 40.8 59.2

Baton Rouge High School

(formerly ail white) .............. 66.7 33.3

Istrouma High School ............. 25.5 74.5

Broadmoor High School ............ 1.0 99.0

Moving on toward the north end of the parish through

Seotlandville, Baker and Zachary:

NAME OF SCHOOL % BLACK % WHITE

Brownsfield Elementary ..........- 7.5 92.5

Ryan Elementary ............es00- 99.8 Be

Glen Oaks Park Elementary ........ 10.6 . 89.4

Hollywood Elementary ............ 59.0 41.0

Bakerfield Elementary ............. 31.9 68.1

Baker Heights Elementary ......... 9.6 90.4

White Hills Elementary ............ 5.9 94.1

Zachary Elementary ............... 33.1 66.9

Northwestern Elementary ......... 47.5 52.5

Northwestern Middle School ....... 46.9 » 53.1

Baker Junior High School .......... 23.3 76.7

Scotlandville Junior High School .... 100.0 0.0

Park Forest Junior High School .... 10.4 89.6

Prescott Junior High School ........ 13.5 86.5

Glen Oaks Senior High School ...... 22.0 78.0

Baker Senior High School .......... 27.3 72.7

Zachary High School .............. 49.1 50.9

Central High School ............... 6.6 93.4

is fk err 30.9 69.1

The East Baton Rouge Parish School Board re-

spectfully submits that the type of figures shown above

clearly indicate the unitariness of this school system.

When these figures are combined with a completely de-

segregated faculty, transportation, extracurricular ac-

tivities, equal facilities, etc. the other facets of a school

system to be considered in inquiring into the desegre-

gated status of a school system indicated by the Su-

preme Court in Green v. County School Board of New

Kent County, 1968, 381 U.S. 430, 88 S.Ct. 1689, 20

L.Ed.2d 716, there can be no doubt that the East Baton

Rouge Parish School System has been, and is, a unitary

school system. Also, the report of the Court appointed

experts indicated that using an alternate method such as

clustering schools would not have an appreciable effect

upon the racial composition of the schools included in

such clusters.

13

REASONS FOR GRANTING THE WRIT

The decision of the Court below, if not in direct

conflict with recent decisions of this Court cited here-

after, direct the District Court to go so far beyond the

limitations established by this Court’s recent decisions in

Pasadena City Board of Education v. Spangler, 427

U.S. 424, 49 L.Ed.2d 599, 96 S.Ct. 2697 (1976); Wash-

ington v. Davis, 426 U.S. 229, 48 L.Ed.2d 597, 96 S.Ct.

2040 (1976); Village of Arlington Heights v. Metropoli-

tan Housing Development Corporation, U.S. ;

50 L.Ed.2d 450, 97 S.Ct. 555 (1977); Milliken v. Brad-

ley, 418 U.S. 717, 41 L.Ed.2d 1069, 94 S.Ct. 3112; Aus-

tin Independent School District v. United States,

U.S. , 50 L.Ed. 603, S.Ct. (1977); and

Dayton Board of Education v. Brinkman, U.S.

, 53 L.Ed.2d 851, 97 S.Ct. (June 27, 1977) as to

require review by this Court.

The decision of the Court of Appeals in this case also

appears to be in conflict with other decisions of that

Court such as Carr v. Montgomery County Board of

Education, 377 F.Supp. 1123, affirmed 511 F.2d 1374

(5th Cir.) rehearing and rehearing en banc denied, cert.

denied, 96 S.Ct. 397, 423 U.S. 986, 46 L.Ed.2d 303; Cal-

houn v. Cook, 522 F.2d 717, rehearing and rehearing en

bane denied, 525 F.2d 1203 and Bush v. Orleans Parish

School Board, CA No. 3630 declared unitary by District

Court order of August 22, 1975 and noted with approval

by the Fifth Circuit in its denial of rehearing in Calhoun,

supra, and its more recent decision in No. 77-2937, Hor-

ton, et al. v. Lawrence County Alabama Board of Edu-

cation (August 14, 1978).

14

The thrust of these recent decisions of this Court is

that there are limits as to how far a lower court can go in

fashioning remedies in school desegregation cases and

that the remedy cannot exceed the constitutional viola-

tion. These decisions also recognize that predominantly

one-race schools are not necessarily the result of con-

stitutional violations but may result from residential im-

paction due to causes over which the local school board

or State has no control, nor any responsibility for, and

that such result, therefore, can not be imputed to the

State or local school boards.

An examination of the East Baton Rouge Parish

School System reveals that the few remaining predomi-

nantly one-race schools are due purely and solely to resi-

dential impaction caused by the kind of factors referred

to in the above cited recent decisions of this Court. The

evidence in the record in the District Court verifies this

fact, even the testimony of plaintiffs’ witnesses substan-

tiated this condition, and the District Court, being “on

the ground level” and familiar with Baton Rouge clearly

found that this non-State action residential impaction is

what causes the few predominantly one-race schools

which exist in this school system.

If one moves from the south end of East Baton

Rouge Parish on the west side of the Parish one will run

into some predominantly black schools as you move

through the old City on the west. But as you progress

further northward past the old City of Baton Rouge and

into the rural area along that same line you again run

into completely integrated schools. If one proceeds from

the south end of East Baton Rouge Parish on the far

eastern side of the Parish one will run into some predom-

15

inantly white schools as you progress northward simply

because there are very few black citizens who live in the

eastern area of East Baton Rouge Parish. On the other

hand, if one proceeds from the south end of the Parish

through the central portion of the Parish to the north,

every school is integrated and there are no predomin-

antly one-race schools except in a few instances where a

formerly all white school has now become a predomi-

nantly black school due to white citizens moving further

east and black citizens moving from the old inner city on

the west to the northeast. In all areas of East Baton

Rouge Parish where white citizens and black citizens

live in anything near to close proximity to each other, all

of the schools are completely integrated.

It is only when you move to the extreme west side

of the Parish where there are virtually no white citizens

or to the extreme east side of the Parish where virtually

no black citizens reside that you find any predominantly

one-race schools. The only way to eliminate the few

existing one-race schools would be to cross-town bus

children from the extreme eastern area to the extreme

western area of the Parish and conversely bus the chil-

dren from the extreme western area to the extreme

eastern area of the Parish and, to do so it would be

necessary to jump already thoroughly integrated

schools. The outside experts appointed by the District

Court also found that clustering schools would have little

appreciable effect on the racial identifiability of the

schools. This was clear from the record and from the

District Court’s opinion and the Court of Appeals erred

in not accepting the District Court’s findings with re-

spect thereto.

16

The thrust of these recent decisions of this Court, as

they apply to the decision in this case and to the factual

situation existing in East Baton Rouge Parish can best

be summed up by the following language from Mr. Jus-

tice Powell’s concurring opinion in Austin, supra, and

the following language from Dayton, supra. In granting

certiorari, vacating the Fifth Circuit’s judgment, and

remanding, Justice Powell’s concurring opinion contains

the following language: ‘

“.. . As suggested by this Court’s remand prem-

ised upon Washington v. Davis, supra, the Court of

Appeals may have erred by a readiness to impute to

school officials a segregative intent far more perva-

sive than the evidence justified. That Court also

seems to have erred in ordering a desegregation

plan far exceeding any identifiable violations of con-

stitutional rights. . . .” (emphasis added)

and

“ ‘the task is to correct by a balancing of the indi-

vidual and collective interests, ‘the condition that

offends the Constitution.’ A federal remedial power

may be exercised ‘only on the basis of a constitu-

tional violation’ and, [a]s with any equity case, the

nature of the violation determines the scope of the

remedy.’ Milliken v. Bradley, 418 U.S. 717, 736, 41

L.Ed.2d 1069, 94 S.Ct. 3112 1974), quoting Swann

v. Charlotte-Mecklinberg Board of Education, 402

U.S. 1, 16, 28 L.Ed.2d 554, 91 S.Ct. 1267 (1971).”

Justice Powel!’s concurring opinion then goes on to note

that,

“. .. the principle cause of racial and ethnic imbal-

ance in urban public schools across the country—

north and south—is the imbalance in residential

patterns... .”

17

and that,

“

. -such residential patterns are typically beyond

the controls of school authorities. For example, dis-

crimination in housing—whether public or pri-

vate—cannot be attributed to school authori-

Rs,

and further that,

“. . .economic pressures and voluntary preferences

are the primary determinants of residential pat-

terns... |

In Dayton, supra, we also find this court saying,

“ ...The finding that the pupil population in the

various Dayton schools is not homogeneous, stand-

ing by itself, is not a violation of the Fourteenth

Amendment in the absence of a showing that this

condition resulted from intentionally segregative

actions on the part of the Board. . . .” (emphasis

added)

The Court also noted at page 861, that

“..It is clear from the findings of the District

Court that Dayton is a racially mixed community,

and that many of its schools are either predomi-

nantly white or predominantly black. This fact,

without more, of course, does not offend the con-

stitution. Spenser v. Quegler, 404 U.S. 1027, 30

L.Ed.2d 723, 92 S.Ct. 707 (1972); Swann, supra, at

24, 28 L.Ed. 554, 91 S.Ct. 1267... .”

This is exactly the situation that prevails in East

Baton Rouge Parish. It is a racialiy mixed community

and it does have some schools that are either predomi-

nantly black or predominantly white. This is not, how-

ever, due to any segregative intent or action on the part

of the local School Board but is due instead to existing

18

residential patterns and is not based on racial considera-

tion. See also Horton, supra. Plaintiff-intervenors failed

to present any evidence whatsoever to the contrary; the

testimony of their own witness on cross-examination

supported this residential pattern condition; the report

and testimony of the outside experts appointed by the

Court not only confirmed same but also found that the

use of devices such as clustering of schools would have

no appreciable effect on the racial composition of schools;

and the District Court clearly found for the defendant

School Board on this issue.

In addition, the other areas of school operation con-

sidered by the Courts in desegregation cases, faculty,

transportation, facilities and extra-curricular activities,

are completely integrated and no real complaint was

raised by plaintiff-intervenors with regard to these is-

sues. In any event, the Court appointed experts and the

District Court found no constitutional violations with re-

spect thereto.

For example, the ratio of black and white teachers

in the system as a whole in 1970 was approximately 65%

white and 35% black. Although this ratio has varied

slightly from year to year, the overall ratio of teachers in

this system today remains approximately the same. In

1970, pursuant to the desegregation plan formulated by

the Bi-Racial Committee and implemented by the Dis-

trict Court in accordance with the Fifth Circuit decision

in Singleton, supra, the School Board reassigned its

teachers in each school so that the faculty in each school

had substantially the same ratio of black and white

teachers as the ratio of black and white teachers in the

school system as a whole. And, today, for the 1978-79

19

school year, the faculty ratio at each school in the system

is still substantially the same as the faculty ratio in the

system as a whole.

For illustrative purposes, the schools heretofore

listed with their student enrollment percentages by

race, have the following percentage ratios of black and

white teachers on their faculties:

FACULTY RATIO

NAME OF SCHOOL % BLACK % WHITE

Southdowns Elementary ........... 32 68

University Terrace Elementary ..... 35 65

Walnut Hills Elementary .......... 35 65

Highland Elementary .............. 31 69

Magnolia Woods Elementary ....... 33 67

Kenilworth Junior High School ..... 33 67

Valley Park Junior High School ..... 38 62

South East Junior High School ..... 29 71

Tara Senior High School ........... 28 72

Robert E. Lee High School ........ 32 68

Westdale Elementary .............. 30 70

Broadmoor Elementary ............ 30 70

Goodwood Elementary ............. 33 67

Highland Elementary .............. 31 69

Lanier Elementary ................ 33 67

Melrose Elementary ............... 35 65

Mayfair Elementary ............... 35 65

Merrydale Elementary ............. 32 68

Mohican Elementary* .............

Bernard Terrace Elementary ....... 30 7

Brookstown Elementary ........... 30 70

Choctaw Elementary* .............

Claiborne Elementary ............. 36 64

Dalton Elementary ................ 37 63

Delmont Elementary .............. 36 64

Forest Heights Elementary ........ 40 60

Howell Park Elementary ........... 40 60

Capitol Junior High School ......... 44 56

Westdale Junior High School ....... 30 70

Istrouma Junior High School ....... 46 54

* Converted to Special Education Centers.

20

FACULTY RATIO

NAME OF SCHOOL % BLACK % WHITE

Glen Oaks Junior High School ...... 38 62

Baton Rouge High School .......... 31 «69

Istrouma High School ..........--. 32 68

Broadmoor High School ............ 31 69

Brownsfield Elementary ..........- 32 68

Ryan Elementary ............-+45- 44 66

Glen Oaks Park Elementary ........ 33 67

Hollywood Elementary ............ 42 58

Bakerfield Elementary ............. ca 67

Baker Heights Elementary ......... 31 69

White Hills Elementary ............ 30 70

Zachary Elementary .............-- 30 70

Northwestern Elementary ......... 36 64

Northwestern Middle School ....... 42 58

Baker Junior High School .......... 33 67

Scotlandville Junior High School .... 44 56

Park Forest Junior High School .... 32 68

Prescott Junior High School ........ 35 65

Glen Oaks Senior High School ...... 31 69

Baker Senior High School .......... 31 69

Zachary High School .............. 30 70

Central High School ............... 31 69

Price Hee BeeGe ng oc icccccecnn's 32 68

Certainly, no reasonable man could argue that these

schools do not have completely integrated faculties.

Plaintiff-intervenor did raise one additional issue

which, to undersigned counsel’s knowledge, is a brand

new issue in desegregation cases. That issue is the dis-

tribution of more experienced—less experienced teach-

ers, regardless of race, throughout the schools in the

system. Although it may be true that some of the pre-

dominantly or majority black schools may have more less

experienced teachers than some other schools, it is also

true that some of the majority white schools will also

21

have more less experienced teachers than some other

schools. Although it is very doubtful that the issue of

more experienced versus less experienced teachers, re-

gardless of race, rises to constitutional proportions or is

even a question for judges rather than educators, we

would point out that plaintiff-intervenors did not offer a

single shred of evidence in the District Court with re-

gard to this issue. Plaintiff-intervenors offered no evi-

dence as to the average or mean experience of teachers

in any schools in the Parish. In fact, that information is

not readily available because the school system and its

educators have never considered the experience of

teachers in the system to be even an educational prob-

lem, much less a desegregation or judicial problem. The

system has, however, recently run a small sampling of a

few majority black and majority white schools selected

at random which shows a variance in average or mean

experience of only a low of 10.7 to a high of 11.13 as

shown below:

ELEMENTARY SCHOOLS

TOTAL NUMBER OF AVG. EXP.

SCHOOL EXPERIENCE TEACHERS (mean)

(Majority Black)

Alsen Elementary ........ 155 13 11.9

Banks Elementary ....... 306 31 12.1

Beechwood Elementary ... 161 17 9.4

mean 11.13

(Majority White)

Audubon Elementary ..... 320 25 12.8

Baker Heights Elem. ..... 438 36 12.1

Belingrath Hills Elem. ... 464 45 10.3

mean 11.7

22

SECONDARY SCHOOLS

TOTAL NUMBER OF AVG. EXP.

SCHOOL EXPERIENCE TEACHERS (mean)

(Majority Black)

GE OE ke dvvceesess 700 65 10.7

McKinley High .......... 650 64 10.1

Scotlandville High ....... 614 54 113

mean 10.7

(Majority White)

a ere 802 79 _. a

Broadmoor High ......... 977 70 13.9

Comires SR sic sicaacwas 751 70 9.3

mean 11.1

Furthermore, plaintiff-intervenor introduced no

evidence, by expert witness or otherwise, that experi-

ence is a real factor in teacher competence or that a less

experienced teacher is less competent than a more ex-

perienced teacher. There is, however, at least one study

which indicates that although a teacher’s performance

improves through her first three years of teaching it

thereafter levels off and may even decline after fifteen to

twenty years of teaching. This study was made by Dr.

Fred M. Smith, Associate Professor and Director of

Educational Research Bureau, College of Education,

Louisiana State University, and Dr. J. B. Gremillion,

Professor of Education and Chairman, Department of

Education, Louisiana State University, and is entitled

“Teacher Effectiveness” and was published in February,

1971 by the Louisiana School Boards Association and the

Bureau of Educational Material and Research of the Col-

lege of Education, Louisiana State University.

In any event, plaintiff-intervenors introduced no

evidence in support of that allegation of their complaint

and did not even discuss same at the hearing held by the

23

District Court. We would also respectfully suggest that

this issue has no constitutional significance and if it de-

serves any consideration at all that consideration directs

itself to educational interests rather than to the judi-

ciary. The Court appointed experts obviously found no

problem with this allegation; the District Court obvi-

ously found for defendants with respect thereto, and the

District Court’s judgment should be reinstated.

With respect to school construction, Baton Rouge is

a rapidly growing metropolitan area with a constantly

shifting population. The School Board must provide ade-

quate facilities for these many new students as well as

existing students who have moved their residence. Even

today we are experiencing further overcrowding in

areas where new schools have been constructed. As long

as black citizens and white citizens in this nation con-

tinue to choose to build their homes, etc. in neighbor-

hoods which are predominantly of their own race, we

will continue to have some predominantly black and pre-

dominantly white schools.

In addition to being in virtual direct conflict with

the cited recent decisions of this Court, or at least direct-

ing a remedy which goes so far beyond the limits estab-

lished by those decisions of this Court so as to require

review by this Court, the decision of the Court below

also appears to be in direct conflict, or far out of line,

with other decisions of that Court cited heretofore. In

Carr, supra, the Court below approved a desegregation

plan which contained at least as many, if not more, pre-

dominantly one-race schools, proportionately, as are

found in the East Baton Rouge Parish School System.

As noted, this Court also declined to review that plan by

24

denying certiorari. Furthermore, there can be no doubt

but that the school systems in Atlanta, Georgia and New

Orleans, Louisiana have far more predominantly one-

race schools, particularly predominantly black schools,

than does East Baton Rouge Parish. Although it may be

true that the increase in the number of predominantly

black schools in Atlanta and New Orleans may be the

result of prior too far-reaching desegregation plans im-

posed by the Court below, such result serves as a road-

sign as to the result to be expected from imposition of

the similar remedies directed by the Court below in this

case. Residential patterns in East Baton Rouge Parish

have already begun to adjust themselves toward more

homogeneity as exemplified by the large number of inte-

grated schools that now exist including particularly

those schools which were formerly all white and have

now stabilized at 50-50 or with a slight white or black

majority. Left alone to develop normally, the residential

preferences of both black and white citizens will gradu-

ally and naturally change most of the predominantly

one-race schools into schools with more mixed enroll-

ments.

Defendants respectfully suggest that the Court

below seriously erred in ignoring the report and findings

of the Court appointed experts contained in the record,

in rejecting the District Court’s obvious findings and

conclusions merely because they were not set forth in

specific “1, 2, 3, 4” fashion, and in remanding to the

District Court with directions which clearly direct the

District Court to implement remedies which clearly go

beyond the limits established by this Court in its recent

decisions. Therefore, defendants would respectfully

25

suggest that certiorari should be granted, the judgment

of the Court below vacated and the judgment of the

District Court reinstated.

At the very least, defendants respectfully submit

that certiorari should be granted to review the opinion

and judgment of the Court below and, at the very least,

to clarify same in light of this Court’s recent decisions in

order to give the District Court guidance under those

decisions which the Court below apparently did not fol-

low.

26

CONCLUSION

For the above and foregoing reasons, this petition

for a writ of certiorari should be granted and the judg-

ment of the Court below vacated and the judgment of

the District Court reinstated. In the alternative, this

petition for certiorari should be granted and the opinion

and judgment of the Court below should be reviewed by

this Court for the purpose of bringing it in line with

recent decisions of this Court, or, at the very least,

clarifying such opinion and judgment with respect to the

responsibilities and limitations as to remedies estab-

lished by this Court’s recent decisions, for the benefit of

the District Court on remand.

Respectfully submitted,

JOHN F. WARD, JR.

1111 South Foster Drive, Suite C

Post Office Box 65236

Baton Rouge, Louisiana 70896

(504) 923-3462

ATTORNEY FOR

PETITIONERS

27

CERTIFICATE

I hereby certify that a copy of the above and fore-

going Petition for Writ of Certiorari was mailed, postage

prepaid, to Robert C. Williams, 1822 North Acadian

Thruway, W., Baton Rouge, Louisiana 70802, and Mur-

phy W. Bell, Post Office Box 319, Baton Rouge, Louisi-

ana 70821.

Baton Rouge, Louisiana, this day of August,

1978.

JOHN F. WARD, JR.

28

APPENDIX A

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CLIFFORD EUGENE DAVIS, JR.,

A MINOR, By HIS FATHER AND NEXT

FRIEND, CLIFFORD EUGENE DAVIS,

Sr., Etc., ET AL

VERSUS CIVIL ACTION

EAST BATON ROUGE PARISH SCHOOL NUMBER 1662

BOARD, a Corporation, and LLOYD

FUNCHESS, as Superintendent of Public

Schools in East Baton Rouge Parish

* * K KX *

Robert C. Williams, Esq.

WILLIAMS & EAMES

1822 North Acadian Thruway West

Baton Rouge, Louisiana 70802

Murphy W. Bell, Esq.

Post Office Box 319

Baton Rouge, Louisiana 70821

Attorneys for Plaintiffs-Intervenors

John F. Ward, Jr., Esq.

770 North Street

Baton Rouge, Louisiana 70802

Attorney for East Baton Rouge

Parish School Board

E. GORDON WEST, District Judge:

This suit, seeking to desegregate the East Baton

Rouge Parish school system, was originally filed on Feb-

ruary 29, 1956, almost 20 years ago. Over the years,

many hearings have been held and many orders have

29

been issued by this Court in an effort to bring the opera-

tion of this school system within the requirements of the

United States Constitution as it understood those re-

quirements to be.

The East Baton Rouge Parish School Board has, in

each instance, been totally cooperative and has at all

times made a good faith effort to comply with the orders

issued. Indeed, it has in fact always complied with the

orders of this Court. Today, no student in the East

Baton Rouge Parish school system is denied either the

right or the opportunity to attend an integrated school.

In accordance with sound educational principles, the

neighborhood school system has, as much as possible,

been preserved. This Court, in all of its hearings in con-

nection with the operation of nine separate public school

systems, including the East Baton Rouge Parish sys-

tem, has never heard a single qualified educator state

that the neighborhood concept for school attendance is

not a sound educational concept. Indeed, the almost

unanimous opinion of those who have testified before

this Court is that if we are truly interested in the educa-

tional welfare of the children involved, the neighborhood

concept, at least as far as initial assignment is con-

cerned, should be preserved at all cost. The East Baton

Rouge Parish School Board has consistent!y endeavored

to preserve and apply this concept in assigning students

to the many schools in its system. Because of purely

voluntary housing patierns throughout the Parish of

East Baton Rouge, this has, of course, resulted in some

schools having an initial assignment of all black students

and some having an initial assignment of all white stu-

dents. Out of the total of 108 schools in the system, 20

30

are all black and 2 are all white. All other schools have

racially mixed student bodies to varying degrees.

It seems to have become a custom for some lawyers

to file a motion in this case each year before school starts

seeking what they broadly refer to as “Supplemental

Relief.” It is such a motion that is presently before the

Court.

After this rather vague motion was filed, confer-

ences were held with counsel for all parties present. All

aspects of the East Baton Rouge Parish school opera-

tions were discussed, and the Court tried diligently to

ascertain exactly what the attorney who filed the motion

was seeking. The only concrete thing that emerged from

these conferences as far as the Court could determine

was that there were really no “plaintiffs” involved; that

the attorney was appearing as an “intervenor”; that no

parents of children in the system were appearing to

voice any complaints; and that the only thing sought by

the attorney-intervenor was “more integration.” The

Court was unable to elicit any constructive suggestions

from the attorney-intervenor, and it was obvious that

the requested “more integration” was being sought sole-

ly for sociological reasons rather than for the purpose of

improved educational opportunity for children. On the

basis of these conferences, the Court would have been

justified in simply denying the motion for “supplemental

relief.” However, out of an abundance of caution, and in

an effort to obtain the opinion of experts completely de-

tached from the East Baton Rouge Parish school sys-

tem, the Court appointed the Louisiana Educational

Laboratory (LEL) to act as a court-appointed expert to

investigate the entire operation of the East Baton Rouge

31

Parish school system and to advise and assist the Court

in determining what action, if any, was needed to bring

the East Baton Rouge Parish school system into com-

pliance with the prior desegregation orders of this Court

and with present constitutional requirements. At a cost

of $27,949.89, borne by the East Baton Rouge Parish

School Board, the LEL made an intensive study of the

entire school system and filed two comprehensive re-

ports with the Court, a preliminary report dated De-

cember 23, 1974, and a final report dated May 1, 1975.

These reports have been made a part of the record.

Following receipt of the first report, and after con-

ferences with counsel, the Court issued an order dated

February 26, 1975, whereby it ordered certain recom-

mendations of the LEL implemented. These recommen-

dations related to the appointment of blacks to the

School Board staff at the decision making and planning

levels; further implementation of majority to minority

transfer provisions including provisions for furnishing

transportation to transferees; re-constituting the Bi-

Racial Committee; re-examination of distribution of

teachers on basis of race and experience; and re-

examination of attendance zones. Evidence since that

time has shown that this order has been fully complied

with.

Following receipt and distribution of the final report

of May 1, 1975, an evidentiary hearing was held. At that

hearing the only witnesses called by the “attorney-

intervenor” were Dr. Lionei O. Pellegrin, the LEL staff

member who authored the reports; Dr. John Moland,

Jr., a teacher and researcher at Southern University;

and Mr. Ed Steimel, of the Public Affairs Research

32

Council (PAR). No plaintiffs were called, and no com-

plainants were presented in court.

The sum total of the evidence adduced from these

witnesses was (1) students in the Baton Rouge school

system are not being denied access to any public school

because of race; (2) all students in the East Baton Rouge

Parish school system are being offered equal and high

quality education; and (3) further forced mixing of the

races in the various schools would not in any way im-

prove the quality of education being offered students in

the East Baton Rouge Parish schools.

This, in essence, was the testimony offered by the

“attorney-intervenor” in support of his request for “sup-

plemental relief.” All witnesses testified that as a gen-

eral rule, assignment on the neighborhood school basis

produces the best educational opportunity because it

produces greater interplay between students, parents,

and teachers, and it creates more stability in the school

system. Dr. Moland stated that in his opinion, while the

neighborhood concept does not always enhance desegre-

gation because of the fact that white students tend to

move out when the ratio of blacks to whites becomes too

large, placing a few white students in a predominantly

black school does not improve the educational quality of

the school. He concluded that such a move is purely

sociological and does not necessarily enhance the educa-

tional opportunity available to students. This was one of

the plaintiffs witnesses. Mr. Ed Steimel, the only other

witness called by the intervenor, based his testimony

primarily on the recent report of Dr. James S. Coleman,

the University of Chicago sociologist who originally sup-

ported the concept of massive bussing to achieve forced

33

racial balance in public schools. But he, in his most re-

cent report, concludes that “You can’t create integration

by court edict” alone. Based largely on Dr. Coleman’s

report, Mr. Steimel concluded that it is far better from

an educational standpoint to keep schools either all

black, or with a majority of white students. He con-

cluded that experience has shown that black students

learn better when their school is all black than they do

where there is only a token number of whites mixed in.

This was the testimony of another one of plaintiff’s wit-

nesses. This observation, allegedly supported by Dr.

Coleman’s report, is important when considering the va-

lidity of attendance zones established by the School

Board. The evidence in this case makes it abundantly

clear that there is no forced segregation of the races in

the East Baton Rouge Parish school system, and that

every student has the opportunity to attend an inte-

grated school, with transportation furnished, if he

wishes to do so. Whatever segregation exists, as it does

in a few all black and all white schools in the system,

exists by deliberate choice and because of legitimate,

voluntary neighborhood patterns. To force a few white

students to attend a few all black schools, or to force a

few black students to attend the two all white schools,

sclely for the purpose of being able to say that 100 per

cent of the schools in the system have racially mixed

student bodies would be the height of foolishness. If

there was any credible evidence to suggest that the stu-

dents involved in a presently all black or all white school

would be afforded better educational opportunity by

sending a few students of the opposite race there, a valid

argument might be made for doing so. But experience,

34

as well as the evidence in this case, has shown the oppo-

site to be true. It must be remembered that the true

objective in this whole school integration turmoil was

supposed to be to improve the quality of education avail-

able to all students. The objective was never intended to

be to reduce educational opportunity to the lowest com-

mon denominator, nor to play a “constitutional numbers

game” with a view to being able to merely say that cer-

tain pre-determined ratios of mixing have been

achieved, across the board, in all schools, without regard

to its effect on the quality of education being offered the

students involved. It is imperative that we immediately

turn away from the absurd course that some would have

us follow whereby court decrees are sought and used in

school desegregation cases for the sole purpose of bring-

ing about some sought after sociological change rather

than for the purpose of securing to all students, regard-

less of race, their constitutional right to equal educa-

tional opportunity.

The Federal Courts have demonstrated their ability

and their determination to see that constitutional rights,

as they pertain to equal educational opportunity for all

students, are protected. This they should, of course, do.

But the Courts should be equally determined to see that

they are not used, or mis-used, for the purpose of bring-

ing about purely sociological changes that do not fall

within the limited jurisdiction granted to the Federal

Courts by the Congress and by the Constitution. eae

Public Law 93-380, known as the Equal Educational

Opportunities Act of 1974, became effective on August

21, 1974. Title II of this Act, (hereafter “the Act”), deals

with the Equal Educational Opportunities of Students.

35

See 20 U.S.C.A. §1701-1720, 1751, 1752-1758. Section

202 of the Act re-establishes the policy that all children

are entitled to equal educational opportunity, and that

the neighborhood is the appropriate basis for public

school assignment. Section 205 indicates that lack of bal-

ance on the basis of race is not necessarily a denial of

equal educational opportunity. Section 206 states that

assignment of students on a neighborhood basis is not a

denial of equal educational opportunity unless such as-

signment is for the purpose of segregation or unless the

school was purposely located on the site for the purpose

of segregation. Such is not the case in the East Baton

Rouge Parish system. Section 208 provides that once a

school system is determined by the Court to be desegre-

gated, or unitary, school population changes shall not

per se constitute a cause for a new plan of desegregation.

The evidence in this case shows conclusively that the

East Baton Rouge Parish school system has been de-

segregated, and is a unitary system, and there is no

evidence to justify the ordering of a new plan of de-

segregation. Section 213 calls for imposition of only such

remedies as are essential to correct particular denials of

equal educational opportunity or equal protection of the

laws. Neither the LEL, in its intensive and extensive

investigation, nor this Court finds any evidence of denial

of equal educational opportunity or equal protection of

the laws in the East Baton Rouge Parish school system.

The attorney-intervenor in this case would have the

Court order massive bussing for the sole purpose of

achieving a greater percentage of racial mixing in each

school. The mere suggestion of this is preposterous and

any such order would be clearly illegal. Section 214 of

36

the Act establishes a priority of remedies, if indeed rem-

edies were found necessary. Included in these rem-

edies is the assignment of students to the closest school,

permitting majority to minority transfers, creation of

attendance zones that will not require transportation,

and establishment of magnet schools. All of these things

are either being done, or are currently under study by

the East Baton Rouge Parish school system. But further

than this, the Act specifically provides that the provi-

sions of Section 214 are subject to the provisions of Sec-

tion 215 which specifically limits transportation of stu-

dents to schools closest or next closest to the place of

residence of the student. Then, to emphasize the intent

of Congress, the Act, in Section 251 specifically states

that the Act shall not be interpreted to require the use of

transportation of students to overcome a racial imbal-

ance. These are among the pertinent provisions of the

Equal Educational Opportunities Act of 1974. While the

Act provides in Section 203 (b) that the provisions of the

Act are not intended to modify the authority of a court to

fully enforce the Fifth and Fourteenth Amendments,

this provision is no license for the Federal Courts to

ignore or thwart the clear intent of Congress. The

enumeration by Congress of the things that should not

be done for the purpose of achieving some predeter-

mined degree of racial mixing in schools is an unambigu-

ous indication of the intent of Congress. The Courts

should be bound by those proscriptions, and it should be

only in cases where lack of integration in a particular

school is the result of some positive act on the part of the

state, the municipality, or the school authorities to

further segregation that the reference to the Fifth and

37

Fourteenth Amendments in the Act becomes important.

There is no evidence in this case of Fifth or Fourteenth

Amendment violations.

The evidence and the record in this case show with-

out question of doubt that the East Baton Rouge Parish

school system is indeed a unitary, desegregated school

system and that it is being operated in compliance with

the Constitution and laws of the United States. It is

being operated in complete accord with the Equal Edu-

cational Opportunities Act of 1974, supra, and there is

not the slightest indication present of any violation of the

prior orders of this Court.

The final report of the LEL contained several sug-

gestions and recommendations pertaining to the future

operation of the schools. While many of these sugges-

tions obviously have merit and should be seriously con-

sidered by the School Board, they are, nevertheless, not

changes that are required by law or by court order. Sev-

eral of the recommended changes have been imple-

mented, for which the School Board should be com-

mended. They have added two black administrators at

policy making level to the staff. The suggested extension

of the majority to minority transfer provision has been

widely publicized and implemented. Not only has trans-

portation been provided for those requesting transfer,

but transportation is provided for students who wish to

take a look at another school in which he might be in-

terested. Applications for transfer are being encour-

aged. A new Bi-Racial Committee has been organized

and meets on a regular basis. This Committee has under

active consideration such items as teacher assignment,

attendance zones, consolidation of schools, and estab-

38

lishment of magnet schools. Many of the LEL recom-

mendations, such as those pertaining to Staff Organiza-

tion, Responsibility of the School Board, Staff Responsi-

bility, ete., while undoubtedly having merit, are not

matters over which this Court should exercise jurisdic-

tion. However, as the evidence clearly shows, most of

those recommendations have either been implemented

or are under serious consideration by the School Board

and by the Bi-Racial Committee. As to the specific rec-

ommendations made by LEL pertaining to attendance

zone changes, the Court concludes that these recom-

mended changes are not required in order to bring the

system into compliance with either the law or prior or-

ders of this Court. While some of the recommendations

may have merit, the question of whether or not they are

to be followed by the School Board is entirely a matter of

school administration, and not a matter to be decided by

the Court. Most, if not all, of the recommended changes

in attendance zones would have only a minimal effect on

the degree of integration of student bodies. None of the

recommended changes are required either by law or by

prior order of the Court, and there is no evidence to

suggest that the recommended changes in attendance

zones would substantially affect the quality of education

being offered the students in the system. While good

school administration would suggest a constant review

of such things as transportation routes, school atten-

dance zones, ete., this Court concludes that in view of

the record in this case, no mandatory changes in atten-

dance zones is indicated. This Court further finds, as a

fact, that the East Baton Rouge Parish school system is

a unitary system being operated on a non-ciscriminatory

39

basis, in accordance with the requirements of law and

the prior orders of the Court.

This case has now been under the continuing juris-

diction of this Court for close to 20 years. The retention

of such jurisdiction was mandated by the Supreme Court

in Brown v. Board of Education of Topeka, Kansas, 75

S.Ct. 753, 756. The Court said that the District Courts

should supervise the transition of school systems from

segregated to unitary systems, and that “During this

period of transition the Courts will retain jurisdiction of

these cases.” (Emphasis added.) This mandate, by clear

implication, requires that at the end of the period of

transition, or when the school system has been declared

to be a unitary system, the jurisdiction of the Court over

that particular case should come to an end. There is good

reason for this as the present case clearly shows. The

transition has been completed. There are no longer any

plaintiffs in this suit. Retention of jurisdiction perpetu-

ates an intolerable “motion practice” in these school

cases which denies the school boards the fundamental

right to be sued only by a plaintiff who must carry the

burden of proving his case. This “motion practice” that

has developed and has been perpetuated in these de-

segregation cases enables people, such as the attorney-

intervenor in this case, to simply file a motion, obtain a

show cause order, and this shift the burden of proof to

the School Board. This procedure had its place during

the early stages of the desegregation process. But after

the school system has been declared to be a unitary sys-

tem, operating in accordance with law and constitutional

principles, the transition is complete even though

further improvements may be made or future violations

40

may occur. After 20 years, this schoo! system has been

and is now declared to be a unitary system. The time has

come to say that if future causes of action arise in con-

nection with the administration of the East Baton Rouge

Parish school system, the complainant must follow the

long established principles of our law and file his suit as

in any other civil proceeding, permit the defendant to

answer the suit, and then proceed, if he can, to carry the

burden of proving his case by a preponderance of the

evidence. The dual standard that has been established in

these school cases should be terminated as soon as the

school board has been found to be operating the school

system in accordance with law. The constant harassment

of school boards by those who are permitted to engage in

this unjustified “motion practice” is costly to the school

system, costly to the people of the community, and det-

rimental to the operation of the schools. We must re-

turn to the long accepted principle that he who asserts

the affirmative of an issue in a civil case must carry the

burden of proving it by a preponderance of the evidence.

The school board, after having been found to have con-

verted its system to a unitary system, should no longer

be presumed to be guilty and thus required to prove its

innocence. The East Baton Rouge Parish school system

is a unitary system, and there are simply no justiciable

issues left in this particular case. If new causes of action

arise, they must be the subject of new suits.

Therefore, for these reasons, the demands of the

“plaintiff-intervenor” for “supplemental relief” will be

denied, and this suit will be dismissed and closed. Judg-

ment will be entered accordingly.

41

Baton Rouge, Louisiana, August 21, 1975.

/s/) E. GORDON WEST

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CLIFFORD EUGENE DAVIS, JR:,

A Minor, By HIS FATHER AND NEXT

FRIEND, CLIFFORD EUGENE

DAVIS, SR., Etc., ET AL

VERSUS CIVIL ACTION

NUMBER 1662

EAST BATON ROUGE PARISH SCHOOL

BOARD, a Corporation, and LLOYD

FUNCHESS, as Superintendent of Public

Schools in East Baton Rouge Parish

JUDGMENT

This matter came on for hearing on a former day on

motion of plaintiff-intervenor for supplemental relief.

After due consideration of the evidence heard and the

record made in this case, for the written reasons this day

assigned:

IT IS ORDERED that the motion of plaintiff-

intervenor for supplemental relief be, and it is hereby

DENIED, and this entire suit is now DISMISSED.

Baton Rouge, Louisiana, August 21, 1975.

/s/ E. GORDON WEST

* UNITED STATES DISTRICT JUDGE

APPENDIX B

DAVIS v. EAST BATON ROUGE PARISH SCH. BD. 3288

Clifford Eugene DAVIS, Jr., et

al., Plaintiffs,

Dr. D’Orsay Bryant and Alphonso O.

Potter,

Plaintiffs-Intervenors-Appellants,

v.

EAST BATON ROUGE PARISH

SCHOOL BOARD et al,

Defendants-Appellees.

No. 75-3610.

United States Court of Appeals,

Fifth Circuit.

April 7, 1978.

Intervenors in school desegregation

case filed motion for supplemental relief,

seeking further integration of East Ba-

ton Rouge Parish school. The United

States District Court for the Middle Dis-

trict of Louisiana, 398 F.Supp. 1013, E.

Gordon West, J., dismissed case with

prejudice, and intervenors appealed.

The Court of Appeals, Tjoflat, Circuit

Judge, held that: (1) where district court

failed to determine whether eradication

of vestiges of past discrimination evi-

denced by one-race schools could be ac-

complished by remedial alternative de-

segregation methods, case would be re-

manded for such determination, and (2)

where teacher reassignment plan, al-

though facially neutral, led to placement

of less experienced teachers in “black”

schools and more experienced teachers in

“white” schools, case would be remanded

for making of specific findings concern-

ing such plan, and (3) district court

would be directed to consider and make

findings on other issues raised by inter-

venors’ motion for supplemental relief.

Vacated and remanded with instruc-

tions.

1. Schools and School Districts

@ 13(21)

Where over half of schools in school

district had student bodies that were

90% or more of one race, where over half

of black students attended schools that

were substantially all black, and where

district court commended neighborhood

school plan utilized by school board with-

out determining whether further eradi-

cation of vestiges of past discrimination

evidenced by one-race schools could be

accomplished by means of desegregation

tools such as remedial altering of attend-

ance zones or pairing and clustering of

noncontiguous school zones, school deseg-

regation case would be remanded for

consideration of possible alternatives to

neighborhood schoo! concepts and for

making of findings regarding feasibility

and efficacy of implementing one or

combination of such alternatives.

2. Federal Courts 841

Findings and conclusions Court of

Appeals reviews must be expressed with

sufficient particularity to allow Court of

Appeals to determine rather than specu-

late that law has been correctly applied.

3. Schools and School Districts

@= 141(5)

Where teacher reassignment plan

designed to remedy disproportionate ra-

cial balance of teachers in schools, while

facially neutral, led to placement of less

experienced teachers in “black” schools

and more experienced, and therefore al-

legedly more qualified, teachers in

“white” schools, district court would be

directed to consider plan in light of dual

purposes of effecting desegregation and

promoting quaiity education.

4. Schools and School Districts

@ 13(21)

In school desegregation case, district

court would be directed on remand to

43

3289 DAVIS v. EAST BATON ROUGE PARISH SCH. BD.

consider and make findings on issues

raised by intervenors’ motion for supple-

mental relief, including issues concerning

alleged discrimination in new school con-

struction and site selection, planning of

schools, and use of biracial committee.

Appeal from the United States Dis-

trict Court for the Middle District of

Louisiana.

Before COLEMAN, TJOFLAT, and

FAY, Circuit Judges.

TJOFLAT, Circuit Judge:

In the proceedings below, the district

court found that the East Baton Rouge

Parish school system is a unitary system

being operated on a nondiscriminatory

basis and dismissed this case with preju-

dice. The intervenors appeal from the

district court’s order; they claim that

the school system is not and never has

been unitary.!

Like so many school desegregation

suits in this circuit, this case has been in

the federal courts for many years. The

suit was instituted in 1956, following the

Supreme Court’s decisions in Brown v.

Board of Education (Brown I), 347 U.S.

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

Brown v. Board of Education (Brown II),

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

(1955). In the course of this protracted

litigation, the district court has entered

1. Dr. D’Orsay Bryant and Mr. Alphonso O.

Potter were allowed to intervene as plaintiffs

by the district court on December 19, 1969.

Dr. Bryant, President of the Baton Rouge

Chapter of the NAACP, and Mr. Potter, Re-

gional Vice-President of the NAACP for the

Sixth District, were both black citizens of the

Parish and fathers of school-age children. In

their motion to intervene, they alleged that the

interests of local black children were not being

properly and expeditiously represented. In

1974, the intervenors sought further integra-

various injunctive orders, keeping pace

with the evolving law in this area as

espoused ‘by the Supreme Court and this

circuit.”

The East Baton Rouge Parish school

system was last before this court in a

consolidated case decided in 1967. Unit-

ed States v. Jefferson County Board of

Education, 380 F.2d 385 (5th Cir. 1967)

(en banc), modifving, 372 F.2d 836

(1966). This court remanded the case to

the district court in 1967, with instruc-

tions that the district court enforce the

affirmative duty of the

boards and officials administering pub-

lic schools to bring about an

integrated, unitary school system in

which there are no Negro schools and

no white schools—just schools.

The necessity of overcoming the ef-

fects of the dual school system in this

circuit requires integration of facul-

ties, facilities, and activities, as well as

students.

Id. at 389 (footnotes omitted). Follow-

ing this court’s remand, East Baton

Rouge Parish operated a combined geo-

graphic zone and _ freedom-of-choice

school assignment plan. Davis v. East

Baton Rouge Parish School Board, 269

F.Supp. 60 (M.D.La.1967). Two years la-

ter, this court held in Hall v. St. Helena

Parish School Board, 417 F.2d 801 (5th

Cir.), cert. denied, 396 U.S. 904, 90 S.Ct.

218, 24 L.£d.2d 180 (1969), that a free-

tion of the East Baton Rouge Parish schools by

filing a motion for supplemental relief. The

district court's opinion denying this motion

and dismissing the entire suit is reported at

398 F.Supp. 1013 (M.D.La.1975).

2. In addition to the order of dismissal now on

appeal, see note | supra, there have been three

other reported decisions by the district court.

These decisions can be found at 269 F.Supp.

60 (M.D.La.1967), 219 F.Supp. 876 (M.D.La.

1963), and 214 F.Supp. 624 (M.D.La. 1963).

~

44

DAVIS v. EAST BATON ROUGE PARISH SCH. BD. 3290

dom of choice plan was unacceptable

when it did not effectively desegregate

the school system. Following the Hall

decision, in 1970 the East Baton Rouge

Parish School Board established a bira-

cial committee, the Public Education

Study Committee, which created two bi-

racial subcommittees to consider sepa-

rately the problems of student and facul-

ty desegregation. The biracial commit-

tee formulated a proposed school deseg-

regation plan that was unanimously ap-

proved by the school board and .ub-

mitted to the district court, which adopt-

ed it on July 22, 1970. Second supp.

record at 30. No appeal was taken.

The 1970 plan provided for desegrega-

tion of faculty, staff, transportation, ex-

tracurricular activities, student body

composition, and school facilities. Stu-

dent assignment was based primarily on

the neighborhood school concept, under

which children would attend the school

closest to their place of residence. A

majority-to-minority transfer provision

was also incorporated into the plan, al-

lowing a child attending a school in

which the majority of students were of

his race to transfer to a school in which

he would be in the minority.

In 1974, the intervenors filed a motion

for further relief. Drawn in general

terms, the motion alleged that the 1970

plan was not desegregating the school

system effectively. This contention was

based primarily on two grounds. First,

in East Baton Rouge Parish there still

exist many one-race or substantially one-

3. The district judge found that the school

board had made “a good faith effort to comply

with the prior orders of this Court, and to

bring this school system into compliance with

the Court’s orders and with constitutional re-

quirements.” Record, vol. I, at 110. Despite

this finding, the judge ordered immediate

school board action on several of the LEL rec-

ommendations: (1) the appointment of a

second biack to a high administrative position;

race schools. Second, the present teach-

er reassignment plan, although desegre-

gating the faculty, places less experi-

enced teachers in the “black” schools,

thereby allegedly lowering the quality of

education.

On August 14, 1974, the district judge

designated the Louisiana Educational

Laboratory (LEL) as a court-appointed

expert to assist the court in the case and

directed LEL to file an interim report by

January 1, 1975, indicating any immedi-

ate remedies that the court should im-

pose. Based upon the recommendations

made by LEL, the district court entered

an interim order on February 26, 1975.

After the LEL filed its final report, the

district court set a final hearing on the

intervenors’ motion for supplemental re-

lief and challenge to the LEL study.

This hearing was held on June 18, 1975.

Four witnesses testified: the LEL offi-

cer who supervised the study, the school

board superintendent, and twe witnesses

not directly involved in either the LEL

study or the administration of the school

system. At the conclusion of the hear-

ing, the district judge requested briefing

from the parties.

On August 21, 1975, the district court

handed down the order that is the basis

of this appeal. 398 F.Supp. 1013 (M.D.

La.1975). The district judge stated that

the interim relief ordered in February

had been fully complied with, that the

biracial committee was in the process of

studying further desegregation tech-

niques (e. g., alteration of attendance

(2) the provision of public transportation to

complement the majority-to-minority transfer

option; (3) the reorganization of the biracial

committee, rendering it a court-appointed ad-

visory body; and (4) the consideration of fur-

ther planning in the areas of the magnet

school concept, the restructuring of attendance

zones, and the racial composition of the school

board's central staff.

45

3291 DAVIS v. EAST BATON ROUGE PARISH SCH. BD.

zones, reassignment of teachers, and

clustering of schools), and that the school

board had already done everything that

the Constitution mandates in eliminating

a dual school system. He declared the

system to be unitary and held that under

Brown II’s mandate that the federal

courts retain jurisdiction over a school

system pending its transition from a

dual to a unitary system, the East Baton

Rouge Parish school system was no long-

er appropriately within his jurisdiction.

Accordingly, he dismissed the suit with

prejudice.

I. Student Assignment

The main thrust of the intervenors’

attack on East Baton Rouge Parish’s

school desegregation is the large number

of substantially one-race schools. The

record discloses that East Baton Rouge

Parish School System serves both the

city of Baton Rouge and the parish of

East Baton Rouge. The parish contains

468.35 square miles, is_ irregularly

shaped, and is approximately thirty miles

from north to south and twenty miles

from east to west. Along with the city

of Baton rouge, there are suburban and

rural areas in the parish. There are ap-

proximately 70,000 students enrolled in

the school system, of which some 36,000

are transported daily by provision of the

school board. The racial mix is approxi-

mately sixty-five percent white, thirty-

five percent black.

Of the approximately 110 schools in the

system, twenty have student bodies com-

prised solely of black children. In addi-

tion, over half of the schools have stu-

dent bodies that are ninety percent or

more of one race, and over half of the

black students attend schools that are

substantially all black.

In its order dismissing the case, the

court below commended the neighbor-

hood school plan now utilized by the

school board without determining wheth-

er further eradication of the vestiges of

past discrimination, which are evidenced

by the one-race schools, could be accom-

plished by means of the “desegregation

tools” approved in Swann vy. Charlotte-

Mecklenburg Board of Education, 402

U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554

(1971). See also, Green v. County School

Board, 391 U.S. 430, 88 S.Ct. 1689, 20

L.Ed.2d 716 (1968); United States v.

Mississippi, 567 F.2d 1276 (5th Cir. 1978).

There is a presumption under Swann

against the maintenance of a school sys-

tem with substantially one-race schools.

The Supreme Court declared as follows:

Where the school authority’s proposed

plan for conversion from a dual to a

unitary system contemplates the con-

tinued existence of some schools that

are all or predominately of one race,

they have the burden of showing that

such school assignments are genuinely

nondiscriminatory. The court should

scrutinize such schools, and the burden

upon the school authorities will be to

satisfy the court that their racial com-

position is not the result of present or

past discriminatory action on their

part.

402 U.S. at 26, 91 S.Ct. at 1281. In the

absence of explicit and specific findings

by the district court, we are unable to

determine whether the school board has

met its burden and whether these

schools have been subjected to the close

scrutiny that is requiced prior to declar-

ing that a school system passes constitu-

tional muster. We therefore vacate the

district court’s order dismissing the case

and remand the case for further proceed-

ings. See, e. g., United States v. South

Park Independent School District, 566

F.2d 1221 (5th Cir. 1978).

{1,2] At a minimum, the district

court on remand must evaluate whether

any of the essentially one-race schools

would be eliminated by the remedial al-

DAVIS v. EAST BATON ROUGE PARISH SCH. BD.

tering of attendance zones or the pairing

and clustering of noncontiguous school

zones. Sev Swann, 402 U.S. at 27-29 &

n. 10, 91 S.Ct. at 1281-82; Lemon v.

Bossier Parish School Board, 566 F.2d

985 (Sth Cir. 1978): Cisneros v. Corpus

Caristi lncdepenvent Senvol District. 467

F.2d 142, 152 HW (Sth Cir. 1972) (en

banc), cert. denied, 413 U.S. 922, 93 S.Ct.

3052, 37 L.Ed.2d 1044 (1973). These are

only examples of the permissible tools

that may be used to integrate a school

system. The district court is directed to

consider the possible alternatives to the

neighborhood school concept and to make

findings regarding the feasibility and ef-

ficacy of implementing one or a combi-

nation of these alternatives. As this

court has repeatedly stated, “The find-

ings and conclusions we review must be

expressed with sufficient particularity to

allow us to determine rather than specu-

late that the law has been correctly ap-

plied.” Golf City, Inc. v. Wilson Sport-

ing Goods Co., 555 F.2d 426, 433 (5th Cir.

1977) (quoting Hydrospace-Challenger,

Ine. v. Tracor/MAS, Inc., 520 F.2d 1030,

1034 (5th Cir. 1975)).

I]

{[3) The second point raised by the

intervenors concerns the present teacher

reassignment plan, implemented pursu-

ant to Singleton v. Jackson Municipa!

Separate School District, 419 F.2d 1211

(5th Cir.), ref’d in part on other grounds

sub nom. Carter v. West Feliciana Parish

School Board, 396 U.S. 290, 90 S.Ct. 608,

24 L.Ed.2d 477 (1970). The plan was

designed to remedy the disproportionate

racia] balance of teachers in the schools.

Although facially neutral, the plan has

led to the placement of inexperienced

teachers in the “black” schools and more

experienced, and therefore allegediy

more qualified, teachers in the “white”

schools. This occurred because transfers

were made in reverse order of seniority;

3292

the teacher in a particular school with

the most seniority, whether white or

black, is the lust teacher to be transfer-

red to another school. Two of the fac-

tors contributing to this imbalance in ex-

perience are the larger number of white

teachers and the lenger durauosr of

biack teachers in tne school sysiem.

These factors create a larger pool of rel-

atively inexperienced white teachers so

that when they, are “traded” for black

teachers, the school system places a dis-

proportionate number of relatively inex-

perienced teachers into the “black”

schools.

We reserve any decision on the teacher

reassignment scheme utilized by the

East’ Baton Rouge Parish school board.

As stated previously, the biracial com-

mittee has been studying the present

plan. The district court on remand is

directed to consider the plan in light of

the dual purposes involved: desegrega-

tion must be effected, and quality educa-

tion must be promoted. Specific find-

ings must be made by the district court

on this aspect of the desegregation of

the school system so that we can proper-

ly review the issue. See Golf City, Inc.

v. Wilson Sporting Goods, Inc.

Ill

(4) As part of its inquiry on remand,

the district court is directed to consider

and to make findings on the other issues

raised by the intervenors’ motion for

supplemental relief. These issues con-

cern alleged discrimination in new school

construction and site selection, funding

of schools, and use of the biracial com-

mittee.

The judgment dismissing the case is

vacated. The case is remanded for fur-

ther proceedings and specific findings in

accordance with this opinion.

VACATED AND REMANDED WITH

INSTRUCTIONS.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn» *