Petition — Holloway v. Valley

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Office - Supreme Court, U.S.

FILED

JUL 26 1983

3-129

583-129

~~ ] ALEXANDER L. STEVAS.

In the Supreme Court of the United States

OCTOBER TERM, 1983

CLYDE HOLLOWAY, ET AL., PETITIONERS

VIRGIE LEE VALLEY, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Pau R. BAIER,

Paul M. Hebert Law Center,

Louisiana State University,

Baton Rouge, Louisiana 70803;

CHRISTOPHER J. Roy,

711 Washington Street,

Alexandria, Louisiana 71309,

Counsel for Petitioners.

QUESTIONS PRESENTED

1. Whether the district court exceeded its remedial authority

in swa sponte framing a desegregation decree for Rapides

Parish, Louisiana, which closed two small rural communities’

only schools, one predominantly black (Lincoln Williams) and

one predominantly white (Forest Hill), and ordered the racial

mixing of their entire student bodies, kindergarteners

included, in another community located 10 miles midway

between the closed schools where (1) no factual proof exists and

no findings of fact were made by the district court linking the

racial composition of Lincoln Williams and Forest Hill Schools

to segregative actions on the part of the Rapides Parish School

Board; (2) such a decision deprives the small rural towns of

Cheneyville and Forest Hill, Louisiana, of their only schools

built and maintained at the expense of local \axpayers; and (3)

less drastic remedial alternatives were available to the district

court.

2. Whether the district court applied the proper legal stan-

dard in insisting upon “the greatest amount of integration” as

its “sole purpose,” to the neglect of countervailing equitable

considerations, including the value of a rural community’s only

school and the demonstrable risk to the safety and educational

well-being of five-year-olds in busing them upwards of 30 miles

and two hours a day.

3. Whether the district court erred in substituting its own

view of the physical condition of the Lecompte schools for the

judgment of the Rapides Parish School Board.

PARTIES TO THE PROCEEDING

Clyde Holloway was an intervenor below and is a petitioner

here. He represents a class of citizens opposed to the closing of

Forest Hill Elementary School, which is in Rapides Parish,

Louisiana. Virgie Lee Valley and others represent a class of

black citizens of Rapides Parish; they were plaintiffs below and

are respondents herein. The Rapides Parish School Board, its

individual members, and the Superintendent of Schools, Mr.

E. Allen Nichols, were defendants below; they seek certiorari

here in a companion petition. The United States of America

was a plaintiff-intervenor below and is, presumably, a respond-

ent herein.

ili

INDEX

QUESTIONS PRESENTED .............scccceees

PARTIES TO THE PROCEEDING............

RIE ENON Ss odhe'a voc dh cae on caescusti mnie

doa att ROPE PIE rine ea nan

CONSTITUTIONAL PROVISIONS INVOLVED....

ERMINE CFP TEEID CAME. occ cscrivvcvccadass

Bi I ec, iets We aig eget yo rare ire

2. The Proceedings Through July 3, 1980,

Terminating in Judge Scott's Sua Sponte

Decision To Close Forest Hill School..........

3. The School Board's Response to Judge Scott's

Decision To Close Forest Hill School..........

4. Judge Scott's Final Order and Opinion of

I Cs eins oa cack we ea ae pawns ke

5. The Fifth Circuit’s Decision in Forest Hill] ...

6. The Proceedings on Remand.................

7. Forest Hill's Evidence on Remand............

8. Judge Scott's Decision on Remand............

9. The Fifth Circuit's Decision in Forest Hill I] ..

REASONS FOR GRANTING THE WRIT:

EE x vin bu «am we round cee sae deuce eaen

conn om

II.

INDEX (Continued)

Page

THE TRIAL COURT AND THE PANEL

MAJORITY ERRED IN ESTABLISHING

AS THEIR “ONE ALL-ENCOMPASSING

PURPOSE: THE ADOPTION OF A PLAN

WHICH ACHIEVES THE GREATEST

AMOUNT OF INTEGRATION” (499

F.Supp. at 491). THIS WAS WRONG.

INTEGRATION FOR INTEGRATION’S

SAKE IS NOT A CONSTITUTIONAL

ET NEW va hecieaeessisiecss cas 12

THE TRIAL COURT AND THE PANEL

MAJORITY ERRED IN IMPOSING A

REMEDY BEYOND THE SCOPE OF THE

VIOLATION CONTRARY TO THE

REASONING OF MILLIKEN vy.

PRUE Scecnne ued sc cibcks baukue cele 13

A. Nothing in the Remedial Principles of

Brown II or Swann Sanctions the Theory

Espoused by the Trial Court and Affirmed by

the Panel Majority of the Reciprocal

Destruction of Black and White Schools for

Purposes of Integration ...............000- 13

B. Nothing in the Record or in the Trial

Court’s Opinions in This Case Links the

Post-1970 Change in the Racial Mix of the

Lecompte Area Schools to Segregative

Actions Chargeable to the Rapides Parish

School Board. This Failure of Proof Is Fatal. . 16

INDEX (Continued)

Page

III. THE TRIAL COURT'S BLIND

INSISTENCE UPON CLOSING FOREST

HILL SCHOOL IN THE FACE OF THE

EXTREME HARDSHIP TO THE

COMMUNITY AND THE RISK TO THE

SAFETY OF THE CHLDREN INVOLVED

PLAINLY EXCEEDS THE LIMITS OF

EQUITABLE DISCRETION SET IN

Serre Gani vedeces es sacses ves. 18

A. Closing Good Schools Is Not the

Business of Federal Courts. The Trial Court

Erred in Substituting Its Own View of the

Physical Condition of the Lecompte Schools

for the Judgment of the Rapides Parish

ee Cova lebeusavieceeseass 18

B. Forest Hill Elementary School Is the

Only School in a Small Rural Community. It

Is an Excellent Facility Built and Maintained

by the People of Forest Hill. The School Is

the Center of Community Life. Judge Scott's

Unilateral Decision To Close Forest Hill

School Can Hardly Be Characterized as an

Exercise of Equitable Discretion ........... 21

C. The United States and the Panel

Majority Concede that Judge Scott Failed in

His Duty To Make Essential Findings of Fact

Regarding the Length of Time of Travel for

Students Affected by His Plan. These

Concessions Compel a Reversal and Remand. 24

INDEX (Continued)

Page

D. Judge Scott Erred in Refusing To Hear

Forest Hill's Evidence Regarding the

Dangers of Travelling from Forest Hills to

Lecompte and the Risks to the Young

I oy oa ciwaubwkesie'cunts sss 26

IV. LESS DRASTIC REMEDIAL

ALTERNATIVES WERE AVAILABLE TO

THE DISTRICT COURT TO CORRECT

THE CONDITION IT FOUND IN

VIOLATION OF THE CONSTITUTION... — 27

A. Judge Scott's Disregard of

Neighborhood Considerations for Rural

Schools and His Peremptory Rejection of

Private Plaintiffs’ Proposal To Allow Lincoln

Williams and Forest Hill To Remain K-3

Schools Is Unreasonable and a Denial of

Equal Protection of the Laws .............. 27

B. Judge Scott's Rejection of Forest Hill’s

Plan 2 and School Board Plans 1, 2, and 3

Because They Proposed Busing Blacks Into

Forest Hill Is Unwarranted in Law......... 30

eC RUU AG SksabeKerdvekesaees 32

vii

TABLE OF AUTHORITIES

CASES: Page

Allen v. Ashville City Board of Education, 434 F.2d

SE STEN case dhe sadocneceavab ea been pace 20

Austin Independent School District v. United States,

TENG ss sc aekh he vaueeée tose res es 12, 16

Brown vy. Board of Education [Brown IT), 349 U.S. 294

GC ea a acco Mew e ee ee Re ce eues 11, 18, 14, 15, 19

Carr v. Montgomery County Board of Education, 377

F.Supp. 1123 (M.D. Ala. 1974).........ccceeeee 28 n.25

Carr v. Montgomery County Board of Education, 511

F.2d 1374 (5th Cir. 1975), cert. denied 423 U.S. 986

CCG civ he sarnes cirak Pavineunka es tk 28 n.25

Cisneros v. Corpus Christi Independent School

District, 467 F.2d 142 (5th Cir. 1972) (en banc),

cert. denied 413 U.S. 922 (1978)... cc cccccceccesencs 24

Columbus Board of Education v. Penick, 443 U.S. 449

Ma aeNed s eeene renal + cavik caso cee h nirwames 26

Cumming v. Board of Education, 175 U.S. 528 (1899).... 14

Dartmouth College v. Woodward, 4 Wheat. 518 (1818) 33 n.32

Davis v. East Baton Rouge Parish School Board, 514

F.Supp. 869 (M.D. La. 1981), appeal pending .... 16 n.14

Davis v. School Comm'rs of Mobile County, 402

een CoN ates e sere eed ae ee hina 23

Dayton Board of Education v. Brinkman [Dayton 1),

oe a Ts Se ae 13, 16, 17, 31

Estes vy. Metropolitan Branches, Dallas NAACP, 444

8 errr err ree 25 n.23

viii

TABLE OF AUTHORITIES (Continued)

Page

Fitzpatrick v. Enid Board of Education, 578 F.2d 858

CORE Ale Bc oi tit we cue sscunemeevannuemane 20 n.17

Green v. County School Board, 391 U.S. 430

CE ws denccndassacdesansnerckees seen 23,32 n.30

Haney v. Sevier County Board of Education, 429 F.2d

oe eRe T Tee ee ere re 20

Hudson Water Co. v. McCarter, 209 U.S. 349 (1908) . 12 n.10

Kelley v. Nashville Metropolitan County Board of

Education, 687 F.2d 814 (6th Cir. 1982), cert.

Conte GED UB. cece (UGB) os sisicdiccvcecees 24, 29 n.27

Kennedy v. Great Atlantic & Pacific Tea Co., 551 F.2d

SR Fe ibn ore tinstcatatetssateuvane eens 19

Lee v. Macon County Board of Education, 616 F.2d

eS PO eR errr Tere rr 28, 31

Milliken v. Bradley, 418 U.S. 717 (1974) ....... 12, 13, 15, 16

Mitchell v. McCunney, 651 F.2d 188 (8rd Cir.

As oben as bans nan bee eee oka 15 n.12, 20 n.17

Morgan vy. Kerrigan, 401 F.Supp. 216 (D. Mass. 1975) 20 n.17

Morgan v. Kerrigan, 530 F.2d 401 (Ist Cir. 1976)..... 20 n.17

Morgan v. McDonough, 689 F.2d 265 (1st Cir. 1982).. 15 n.12

Northcross v. Memphis Board of Education, 444 F.2d

Pe Per Ree rer oe Ce oc 24

Pasadena City Board of Education v. Spangler, 427

SiN RUPEE no kk ccc ibsoracnasuaussanens 16, 18 n.15

Penick v. Columbus Board of Education, 583 F.2d 787

SURE SOU os 0h csw cea ndasonyeuxtaanedn eee 20 n.17

TABLE OF AUTHORITIES (Continued)

Page

Pitts v. Cherry, 598 F.2d 1005 (5th Cir. 1979)............ 29

Robertson v. Natchitoches Parish School Board, 431

a 17 n.15

San Antonio School District v. Rodriguez, 411 U.S. 1

SC ahiais Salads. 0's din’ 454-00. 0 ole 000 000% 16

Smiley v. Blevins, 514 F.Supp. 1248 (S.D. Tex.

aaa das bapavcsecsd doescees 26 n.23

Swann v. Board of Education, 402 U.S. 1

rer 10, 11, 12, 13, 14, 15, 18, 19, 22, 23, 24,

25 n.22, 26, 28, 30, 31

Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978) ........ 25 n.23

Tasby v. Wright, 520 F.Supp. 683 (N.D. Tex. 1981)... 25 n.23

Thompson v. Newport News School Board, 363

F.Supp. 468 (E.D. Va. 1978) ..........c000. 26 n.23, 30

Thompson v. Newport News School Board, 465 F.2d 83

(4th Cir. 1972) (en bance), cert. denied 413 U.S. 920

EE 24

United States v. Burr, 25 Fed. Cas. 30 (1807)........... 32

United States v. Jefferson County Board of Education,

372 F.2d 836 (5th Cir. 1966), aff'd on rehearing en

banc, 380 F.2d 385 (5th Cir. 1967), cert. denied sub

nom., Caddo Parish School Board v. United

States, 389 U.S. 840 (1967)..........cccceeeees 21n.19

United States v. Scotland Neck Bd. of Educ., 407 U.S.

ESE 13

United States v. Texas Education Agency, 467 F.2d

848 (Sth Cir. 1972) (en banc)...........ceeeeceeeees 14

TABLE OF AUTHORITIES

Page

Valley v. Rapides Parish School Board, 434 F.2d 144

CRE CER BOE once discccecetesdevurcinaaue 15 n.12, 17

Valley v. Rapides Parish School Board (Forest Hill 1),

646 F.2d 925 (5th Cir. 1981)............ (fe me oe

Valley v. Rapides Parish School Board (Forest Hill

IT), 702 F.2d 1221 (Sth Cir. 1983) ............. 10, 17, 28

Wright v. Council of City of Emporia, 407 U.S. 451

GEE vicar ccomele rere ene bene kat arer eerie 16

CONSTITUTION OF THE UNITED STATES

Pe I cn cok wea tao ae cuee bee De uae 14, 19

UN IN ss co og. aa pain ape ba olen 14

MISCELLANEOUS

R. CHoaTte, Eulogy on Daniel Webster (1853), in I

THE Works OF RUFUS CHOATE WITH A MEMOIR

oF His Lire, 493, 516 (S.G. Brown, ed Boston,

WE Cin c etree kaGusk alee ueeen eae cree 33 n.32

L. HAND, THE BILL oF R1GutTs 73 (The Oliver

Wendell Holmes Lectures 1958) ....... 0.00 ees 21 n.20

STATE OF LOUISIANA GEOLOGICAL SURVEY, WATER

RESOURCES BULL. No. 8 (April 1966)........... 3n.1

The Shreveport Bossier-City Times, Feb. 15, 1981.... 20 n.18

Transcript of Oral Argument, Estes v. Metropolitan

Branches, Dallas NAACP, No. 78-253, Oct. 29,

1979, cert. dismissed 444 U.S. 437 (1980),

reproduced in THE COMPLETE ORAL

ARGUMENTS OF THE SUPREME CCURT OF THE

UNITED StaTEs 1979 TERM (University

Publications of America, Inc.; microfiche) ...... 29 n.27

]

In the Supreme Court of the United States

OcTOBER TERM, 1983

No.

CLYDE HOLLOWAY, ET AL., PETITIONERS

VIRGIE LEE VALLEY, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners, Clyde Holloway, et al., respectfully pray that a

writ of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Fifth Circuit

entered in this matter on March 30, 1983.

OPINIONS BELOW

The March 30, 1983 opinion of the Court of Appeals is

reported at 702 F.2d 1221 and is reprinted in the separate

Appendix to this Petition, pp. la-2la. The May 18, 1981 opinion

of the Court of Appeals, reversing the District Court and

remanding, is reported at 646 F.2d 925 (App., infra, 42a-75a).

The District Court’s Preliminary Opinion of June 6, 1980 is

unreported (App., infra, 95a-98a). The District Court's August

6, 1980 opinion is reported at 499 F.Supp. 490 (App., infra,

82a-94a). The District Court's July 22, 1981 opinion on remand

is unreported (App., infra, 27a-40a).

JURISDICTION

The judgment of the Court of Appeals was entered March 30,

1983. Forest Hill Intervenors’ petition for rehearing and

rehearing en banc was denied on April 29, 1983 (App., infra,

24a-25a). Rapides Parish School Board's petition for rehearing

and rehearing en banc was denied on May 26, 1983 (App., infra,

26a). The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Equal Protection Clause of the Four-

teenth Amendment and the Due Process Clause of the Fifth

Amendment to the United States Constitution.

STATEMENT OF THE CASE

1. Introduction

This is a petition by the people of Forest Hill, Louisiana,

complaining of the loss of Forest Hill Elementary School, the

only school in a small rural community located in Rapides

Parish, Louisiana. Petitioners are here seeking review of a split

decision of the United States Court of appeals for the Fifth

Circuit, which affirmed Judge Scott's decision to close Forest

Hill School. An earlier three-judge panel of the Fifth Circuit

had unanimously reversed Judge Scott's order closing Forest

Hill School and remanded for reconsideration.

2. The Proceedings through July 3, 1980, terminating in

Judge Scott's sua sponte decision to close Forest Hill

School

Forest Hill's petition stems from the district court's response

to a motion for supplemental relief filed by the private plaintiffs

in 1979. The motion complained of the continued existence of

one-race schools in Wards 1, 8, and 9 of Rapides Parish, which

encompass the cities of Alexandria and Pineville. Forest Hill is

an incorporated village located in Ward 4, a rural area of the

Parish, some 20 miles from Alexandria.! Forest Hill Elemen-

tary School is the only school in School District 16. It is a

modern physical facility consisting of sixteen classrooms, a

library, a cafeteria, and a gymnasium, all of which are air-

conditioned. The School is situated on ten acres of public prop-

e) ty, which include two athletic fields, one of which is equipped

with lighting.? The citizens of Forest Hill built their first school

in 1901. They have maintained a school in Forest Hill ever since

by virtue of a separate bonding district and at the expense of

the Community's taxpayers.®

! Rapides Parish is 1,369 square miles in total area, roughly 40 miles wide

and 35 miles long. STaTeE oF LouIsIANA, GEOLOGICAL SURVEY, WATER

RESOURCES BULL. No. 8 (April 1966), p. 4. This case thus involves an area

larger than the State of Rhode Island and two and a half times the size of the

area in the Swann case, which the Chief Justice described as “large” (402

U.S. at 6). A schematic depiction of Rapides Parish, showing the wards in

question, appears infra, Appendix A, 75a. A map of Rapides Parish, showing

the school taxing districts in question, appears infra, Appendix Q, 108a.

2 Response of Rapides Parish School Board to Court's Preliminary Opinion

of June 6, 1980 and Order of July 3, 1980 Suggesting a Proposed Plan of

Desegregation for Rapides Parish, July 28, 1980 (hereinafter referred to as

Board Response], p. 8. Excerpts from the Boerd Response appear infra,

Appendix N, 100a.

3 Forest Hill School started out as a smal! wooden frame building. In 1911

the Community built a completely new two-story red-brick building. In 1952

the present structure was built, and it was completely renovated in 1966, with

the addition of a carpeted library and air-conditioning ti:rsughout the build-

ings. Over the years, a total of $430,000 in assessed millage has been

expended by the citizens of Forest Hill in support of their public school.

Most recently, one day after the Fifth Circuit denied rehearing en banc, on

April 30, 1983, the citizens of Forest Hill voted to treble their tax assessment

to a total of 6 mills for continued maintenance of Forest Hill Elementary

School, notwithstanding the fact that the School has been legally dead for

three years. This millage will produce an annual revenue of $60,000 for

maintenance of Forest Hill School should this Court see fit to save it.

The idea to close Forest Hill Elementary School was Judge

Scott’s alone, conceived ex parte in chambers and announced to

the parties in a plan handed down by the trial court on July 3,

1980. Neither the private plaintiffs nor the United States Gov-

ernment as intervenor had ever proposed closing Forest Hill

Elementary School as a possible remedy in the Rapides Parish

desegregation case. In fashioning his own desegregation plan

involving wards and schools outside the scope of the evidence

adduced at the April 29, 1980 hearing, Judge Scott not only

rejected the plan of the United States Government's expert

witness, Dr. Gordon Foster, but announced to the parties that

he would draw up the plan himself, saying: “I also feel that I am

the best expert that I know and I intend to draw this plan

myself.” Preliminary Opinion, June 6, 1980, Exhibit A, p. 1

(App., infra, 97a).4

Judge Scott's plan of July 3, 1980 ordered Lincoln Williams

School closed because, as Judge Scott explained in his opinion

4 Judge Scott's tentative plan, issued on July 3, 1980, closed Tioga Junior

High School — “an excellent physical plant” according to the School Board's

response to Judge Scott's plan. Board response, p. 7. Judge Scott later

recanted this decision, saying (App., infra, 92a): “Our original plan had the

very objectionable feature of closing Tioga Junior High School, making the

role of that single community far more burdensome than the other junior high

schools in the metropolitan area.” Judge Scott's tentative plan of July 3, 1980

closed the Poland High School, which caused the Board to say (Board

Response, p. 9): “With respect to the Poland area, it must be pointed out that

the Court's proposal also requires abandonment of an excellent facility in

which the Board has a substantial financial investment. The school, serving

grades K-12, is worth approximately $3,000,000.00 and is completely air-

conditioned.” It was the School Board's view that “closing and abandoning

Poland High School as suggested by this Court's proposal is totally unsound

from both an educational! and an administrative viewpoint.” Board Response,

p. 9. Judge Scott agreed. Just as he had ordered Tioga Junior High reopened,

Judge Scott reopened Poland, making it a K-6 school and assigning to it black

students in those same grades from Lincoln Williams School, located in

Cheneyville, Louisiana, some 12.6 miles away.

of August 6, 1980 (App., infra, 87a): “[T]here is no con-

centration of white students available in the Cheneyville area

to integrate Lincoln Williams Elementary (92.2% black), Con-

sequently Lincoln Williams (K-8) must be closed and its stu-

dent body assigned to other schools in the Lecompte area.”

Next, in order to increase the number of whites attending

schools in Lecompte, Judge Scott proceeded to close Forest

Hill Elementary School and he ordered the entire K-8 student

population at Forest Hill to be bused to Lecompte, some ten

miles distant from Forest Hill School.°

3. The School Board's Response to Judge Scott's Decision

To Close Forest Hill School

At an emergency School Board meeting® held on July 22,

1980, the Rapides Parish School Board adopted Board member

Jo Ann Kellogg’s motion urging Judge Scott to reconsider his

plan “on account of physical conditions which would jeopardize

sound educational programming, particularly as related to

5 The panel majority put the distance between Forest Hill and Lecompte as

“approximately nine miles” (App., infra, 9a). The district court found the

distance to be 9.7 miles (App., infra, 29a), which adds almost two miles extra

a day round-trip. And there is uncontested record testimony shuwing that the

young K-3 children are bused 2.2 miles and twenty-five minutes within the

city limits of Lecompte before starting the return trip home. See note 7,

infra. A map showing the bus routes for 1979-80 elementary schools, prior to

the closing of Forest Hill and Lincoln Williams Schools, appears infra,

Appendix R, 109a.

6 Through their attorney the people of Forest Hill filed a petition for

intervention in this case on August 1, 1980. This petition sought to contest

Judge Scott's ex parte decision to close Forest Hill School and prayed for an

opportunity to adduce record evidence showing the factual assumptions of

Judge Scott's July 3, 1980 opinion regarding the location of Forest Hill

students and the distances they would have to be bused under Judge Scott's

plan to be in error. Judge Scott, however, denied Forest Hill's intervention

petition the same day it was filed and he then cancelled the formal hearing

scheduled for August 1, 1980 because, according to Judge Scott, “no new

evidence existed.” Order, August LI, 1980, p. 3.

Group 5 — Forest Hill, Lincoln Williams, Poland, Lecompte,

C.C. Raymond, and Rapides High . . . .” Board Response, p.

5. Mrs. Kellogg urged the reopening of Forest Hill School as a

K-3 school serving both the Forest Hill and the Lecompte

areas. She also suggested that Lecompte Elementary School

be closed because of its age and condition and that its student

population be bused to Forest Hill for grades K-3. See Board

Response, Exhibit G, p. 1. With respect to the physical condi-

tions at Lecompte Elementary and Carter C. Raymond, Board

member Kellogg stated (Board Response, Exhibit G, p. 2)

(App., infra, 106a):

“The campuses at Lecompte Elementary and Carter C.

Raymond are located in a highly congested area within L/2

block of each other. There presently exists problems with

bus loading and unloading, staff parking, public access not

only to the schools but to the residences surrounding the

schools. These facilities are surrounded by very narrow

streets. The addition of the volume of students to be added

to these facilities would compound these problems immea-

surably and create additional problems of safety both to

the citizens of the community and the students and staff of

the school facilities. These problems do not exist in the

schools outside the Lecompte area.”

Board member Charles Holloway in his response to Judge

Scott's proposed plan stated in part (Board Response, Exhibit

E, p. 1): (App., infra, 103a): “The safety factor alone should

convince the Court to reconsider its proposed plan. The one-

story structure at Forest Hill is far superior to the three-story

structure of Lecompte Elementary.”

4. Judge Scott's final order and opinion of August 6, 1980

On August 6, Judge Scott entered a final order closing both

Lincoln Williams and Forest Hill Elementary Schools. In its

opinion, the trial court stated (App., infra, 89a):

“This plan achieves our sole purpose, the greatest

amount of integration with a reasonably assured prospect

of success.”

On August 27, 1980 a hearing was held on the School Board's

motion to modify the trial court's desegregation plan. The

Board objected to closing “good, usable school facilities” (Tr.

August 27, 1980 Proceedings, p. 6) and to busing “in some

instances, busing kids forty miles, not just right next door.”

(Tr. August 27, 1980 Proceedings, p. 27). The trial court denied

the Board’s motion to modify, saying (Tr. August 27, 1980

Proceedings, pp. 34-35):

“My task here is to accomplish that integration, the

required integration, and what we are talking about is

racially black identifiable schools. That is the name of the

game. ... And the logistical expense I feel is not some-

thing that this Court can take any notice of. It is merely

logistical expense against a constitutional right, it is just

that simple.”

5. The Fifth Circuit's decision in Forest Hill I

On May 18, 1981, a unanimous panel of the Fifth Circuit

Court of Appeals reversed Judge Scott's decision closing Lin-

coln Williams and Forest Hill Elementary Schools. The Fifth

Circuit found no adequate justification supported in the record

on which to approve the closing of Forest Hill and Lincoln

Williams Schools. The judgment of the district court was

reversed and the matter was remanded to Judge Scott.

6. The proceedings on remand

On remand, Judge Scott sua sponte reversed his earlier

decision denying the Forest Hill intervention and allowed Mr.

Roy, representing the people of Forest Hill, to participate in

the ordered re-examination of specific desegregation measures

for southeastern Rapides Parish. The private plaintiffs, the

United States Government, the School Board, and the Forest

Hill intervenors all participated in an evidentiary hearing held

on June 30, 1981 to consider alternatives to Judge Scott's plan.

The School Board proposed closing one of the Lecompte

schools. According to data worked up by School Board officials,

under this alternative Forest Hill would have forty percent

black, Lecompte would be fifty-four percent black, Poland

thirty-eight percent black, and Lincoln Williams would be

forty-eight percent black. Tr. June 30, 1981 Proceedings, p. 20.

The private plaintiffs submitted a plan that re-opened Forest

Hill as a K-5 school and Lincoln Williams as a sixth grade

center, with children coming to the latter from Forest Hill,

Cheneyville, Poland, and Lecompte. Tr. June 30, 1981, Pro-

ceedings, p. 8. Other less drastic alternatives were submitted

on remand, including a proposal supported by private plain-

tiffs, the School Board, and Forest Hill intervenors to allow

both Cheneyville and Forest Hill, Louisiana, to keep their

young children in grades K-3 at home in their own community.

7. Forest Hill’s evidence on remand

Mr. Parks W. Sansing, an employee of the Rapides Parish

School Board, was called as an expert witness by the Forest

Hill intervenors in connection with Forest Hill Exhibit 13, a

map showing student pick-ups and the distances travelled by

the various bus drivers in the Forest Hill district. Mr. Sansing

testified that the map he prepared shows that only 3 of 311

former Forest Hill Elementary School students live closer to

Lecompte than to Forest Hill. Tr. June 30, 1981 Proceedings, p.

53. The evidence adduced by Mr. Sansing, including Forest Hill

13, shows that under Judge Scott's plan a total of 181 students

must be bused past Forest Hill Elementary School and then on

to Lecompte, adding another 25 miles and approximately 60

minutes busing time a day.’ Mr. Roy for Forest Hill attempted

to put into evidence the testimony of bus drivers familiar with

the difficulties of traveling from Forest Hill to the Lecompte

schools, but Judge Scott excluded this testimony as irrelevant.

Tr. June 30, 1981 Proceedings, p. 56. In response, Mr. Roy made

an offer of proof stating (id. at 70): “And if the bus drivers were

called... they would testify that they have had — they

recalled accidents on the bus where the little kindergarten

kids, one would fall asleep, fall on the floor, and ruin their

pants, and that is what they would testify to.” The last witness

for Forest Hill was Dr. Jack Wright, Jr., a rural sociologist with

a Ph.D. in sociology from Louisiana State University. Dr.

Wright testified regarding the importance of Forest Hill School

to the community.® No other parties put on any evidence at the

7 A copy of Forest Hill Exhibit 13 appears infra, App. S, LI0a. Contrary to

the intimation of the panel majority (App., infra, 13a _n.10), this map pertains

only to former Forest Hill Elementary School students. As explained by Mr.

Sansing: “I used the trip sheets of the last school year Forest Hill was in

session, and from that trip sheet took a master map, placed each bus driver's

stop and the number of students that he picked up at each stop in School

District 16, concerning Forest Hill Elementary School, Grades K through 8.”

Tr. June 30, 1981 Proceedings, p. 51. Mr. Sansing also testified, with respect to

kindergarteners through third-graders, that these pupils are bused under

Judge Scott's plan a total of 2.2 miles, consuming approximately twenty to

twenty-five minutes, and twice crossing railroad tracks paralleling Louisiana

Highway 71, a busy four-lane thoroughfare, without ever having so much as

left the city limits of Lecompte as buses move from Lecompte Elementary to

Carter C. Raymond and thence to Rapides High School before beginning the

trip back to Forest Hill. Tr. June 30, 1981 Proceedings, p. 57.

8 “(I}t is organized around that school. It is the one thing which they have in

common, and there is the raison d’etre to the community, without which

nothing, or it is how they come together to affirm their oneness as a com-

munity. .. . And that is why they are so cohesive in their desire to keep it,

because it represents their way of life.” Tr. June 30, 1981 Proceedings, pp.

75-76. Compare the plea of the Cheneyville Concerned Citizens Group:

“It is our prayer that the Lincoln Williams Elementary and the Forest

Hill Elementary schools be reopened. The school is the only source of

hearing on June 30th, nor did the other litigants question

Forest Hill's evidence in any way.®

8. Judge Scott's decision on remand

Judge Scott was unpersuaded by any of the evidence

adduced at the hearing on June 30; nor was he satisfied with

any of the alternative plans submitted by private plaintiffs, the

School Board, and the Forest Hill intervenors. In an opinion

handed down on July 22, 1981, Judge Scott adhered to his

earlier decision closing both Lincoln Williams and Forest Hill

Schools. Once again, Forest Hill took its case to the Fifth

Circuit Court of Appeals.

9. The Fifth Circuit's decision in Forest Hill II

On Forest Hill's second appeal, the Fifth Circuit split 2 to 1,

affirming the decision to close both Lincoln Williams and For-

est Hill Schools. Citing language from this Court's opinion in

Swann, the majority reasoned (App., infra, 6a) that even

“bizarre” plans are constitutional, and that there is no excep-

tion that would allow a court to save a rural community's only

school. All grades must be bused, said the majority, citing this

Court's recent denial of certiorari in the Nashville school case,

Kelley v. Nashville Metropolitan County Board of Education,

687 F.2d 814 (6th Cir. 1982), cert. denied 459 U.S. —_ (1982).

recreation and is the community center for our community. What is a

community without a church and a schoo!?”

RI, p. 3("R’ refers to the Record on Appeal when this case reached the Fifth

Circuit the second time; “I” is the Volume no. }.

® At the conclusion of the hearing, Mr. Berry, counsel! for the private

plaintiffs, told Judge Scott (Tr. June 30, 1981 Proceedings, pp. 89, 90):

“In behalf of private plaintiffs, I would like to make this statement

that private plaintiffs are not — do not desire to have any school closed

up, if we can possibly keep them open. . . . I want to make that crystal

clear so that no one in the community would believe that private

plaintiffs are attempting to close down any school.”

The majority did not mention the fact that the trial court had

allowed three all-black K-2 neighborhood schools to remain

intact in Alexandria. This exception was deleted from the

majority's recitation of facts by the use of an ellipsis (App.,

infra, 3a). The majority conceded that the trial court's plan did

involve excessive busing for some of Forest Hill’s children

(App., infra, 18a-l4a n.10). Nevertheless, the majority

affirmed. Chief Judge Clark, in dissent, did not think equity so

draconian.

REASONS FOR GRANTING THE WRIT

Introduction

This case raises grave questions regarding the exercise of,

and the limits to, federal judicial power in desegregation cases.

No opinion of this Court suggests federal judges can close good

schools against the wishes of the school board where less

drastic remedial alternatives are available. The decision below

not only usurps local control of education, but it plainly carries

federal courts into realms of policy and plant management

better left to local school officials. Nothing in Brown I] or

Swann requires the reciprocal destruction of black and white

schools and the busing of five-year-olds upwards of 40 miles and

two hours a day. The decision of the Fifth Circuit panel major-

ity adopts far too rigid an interpretation of Swann, and the

district court’s decision is likewise tainted by a single-

mindedness of purpose and a logical extremism! wholly out of

line with the equitable teachings of Swann. The approach of the

district court and the panel majority is in conflict with the

decisions of six other Circuit Courts of Appeals, which rightly

leave questions regarding utilization of school facilities to the

10 The words of Holmes, if we may borrow them, are a telling reply to the

absolutism of the trial court and the panel majority below. Holmes’s thinking

sound discretion of local school boards. To the extent the deci-

sion below requires the busing of five-year-olds two hours a

day, it is in conflict with this Court’s decision in Swann and with

an en bance decision of the Fourth Circuit Court of Appeals.

Lower courts, we submit, are sorely in need of guidance

regarding the proper interpretation of Swann, particularly as

it affects elementary-age children. See Austin Independent

School District v. United States, 429 U.S. 990, 991 (1976)

(Powell, J. concurring). A ruling that destroys a rural com-

munity’s only school and drives its children, both black and

white, out of their public school and into a Baptist church for

their schooling imperatively calls for corrective review by this

Court.

THE TRIAL COURT AND THE PANEL MAJORITY

ERRED IN ESTABLISHING AS THEIR “ONE ALL-

ENCOMPASSING PURPOSE: THE ADOPTION OF A

PLAN WHICH ACHIEVES THE GREATEST AMOUNT

OF INTEGRATION” (499 F.Supp. at 491). THIS WAS

WRONG. INTEGRATION FOR INTEGRATION’S SAKE

IS NOT A CONSTITUTIONAL REQUIREMENT.

Dismantling a dual school system, this Court has said, “does

not require any particular racial balance in each ‘school, grade,

or classroom.’ ” Milliken v. Bradley, 418 U.S. 717, 740-41

(1974). The trial court’s salt and pepper theory of the case (Tr.

Jan. 15, 1981 Proceedings, p. 45):

is our answer to those who would kill a school in order to desegregate it:

“All rights tend to declare themselves absolute to their logical

extreme. Yet all are in fact limited by the neighborhood of principles of

policy which are other than those on which the particular right is

founded, and which become strong enough to hold their own when a

certain point is reached.”

Hudson Water Co. v. McCarter, 209 U.S. 349, 355 (1908).

“You have to have in the schools white and black children

alike . . . so some whites have to go to schools that were

formerly black, located in black communities, and some

blacks have to go to the white community,”

is contradicted by higher authority. Swann v. Board of Educa-

tion, 402 U.S. 1, 26 (1971); Dayton Board of Education v.

Brinkman, 433 U.S. 406, 417 (1977). Integration for integra-

tion’s sake is not, as the trial court expressed it (Tr. Jan. 15, 1981

Proceedings, p. 45), “the name of the game.”

THE TRIAL COURT AND THE PANEL MAJORITY

ERRED IN IMPOSING A REMEDY BEYOND THE

SCOPE OF THE VIOLATION CONTRARY TO THE REA-

SONING OF MILLIKEN vy. BRADLEY.

A. Nothing in the Remedial Principles of Brown II or

Swann Sanctions the Theory Espoused by the Trial

Court and Affirmed by the Panel Majority of the

Reciprocal Destruction of Black and White Schools for

Purposes of Integration.

The Fifth Circuit, in its first panel opinion in this case, said

(App., ifra, 65a): “As far as we can determine, the only justi-

fication for closing Lincoln Williams was its predominance of

black pupils.” Obviously the members of the panel in Forest

Hill I wanted to know why Judge Scott had closed Lincoln

Williams School. On remand Judge Scott made it crystal clear

(App., infra, 29a) that he closed Lincoln Williams because he

feared whites would not attend it. We submit that if the School

Board had suggested closing Lincoln Williams because of a fear

of white flight, this Court would not hesitate to declare such

action in violation of the Equal Protection Clause of the Four-

teenth Amendment. United States v. Scotland Neck Bd. of

Educ., 407 U.S. 484, 491 (1972). Yet it is plain from his own

words that Judge Scott did exactly the same thing when he

closed Lincoln Williams School. Hence we say that the trial

court’s decision to close Lincoln Williams for fear that whites

would not attend it which, in turn, led to the reciprocal demise

of Forest Hill School, deprives black students at Lincoln

Williams and white students at Forest Hill of equal protection

of the law. Accord, United States v. Teras Education Agency,

467 F.2d 848, 871-72 (5th Cir. 1972) (en banc) (Wisdom, J.)

(district court's fear of “white flight” unacceptable as basis for

closing black school). Judge Scott's expert plan thus got off toa

grotesque start. Nothing in the remedial principles of Brown //

or Swann allows a federal judge to ignore the commands of the

Fifth Amendment while purporting to remedy a violation of

the Fourteenth Amendment. Judge Scott's principle of recipro-

cal destruction of good schools (App., infra, 32a):

“It was not fair to the black community nor legally proper

that only identifiably black schools be closed for purposes

of integration,”

is unwarranted in law and contrary to the reasoning of the elder

Mr. Justice Harlan in Cumming v. Board of Education, 175

U.S. 528 (1899)."! The same kind of practical wisdom continues

to shape this Court's thinking about how far equitable remedial

“In the Cumming case, Justice Harlan stopped short of requiring the

reciprocal destruction of black and white schools in the name of equal protec-

tion, saying (175 U.S. at 444):

“The substantial relief asked for is an injunction that would either

impair the efficiency of the high school provided for white children or

compel the Board to close it. But if that were done, the result would

only be to take from white children educational privileges enjoyed by

them, without giving to colored children additional opportunities for

the education furnished in high schools. The colored school children of

the country would not be advanced in the matter of their education by a

decree compelling the defendant Board to cease giving support to a

high school for white children.”

power extends in school desegregation cases. Swann, supra;

Milliken v. Bradley, 418 U.S. 729 (1974). To put it in the

simplest terms, the district court's doctrinaire approach goes

too far. Nothing in the cases cited by the panel majority, nor in

the equitable remedial principles of Brown // or Swann, autho-

rizes a federal judge who closes a black school for fear whites

will not attend it, to close a good white school by way of quid

pro quo. Such a result wastes thousands of tax dollars, deprives

both blacks and whites at Lincoln Williams and Forest Hill of

their only schools, and is plainly punitive in nature.”

We submit that the reasoning of Milliken v. Bradley, 418

U.S. 729, 745 (1974), which delineates the permissible scope of

remedial authority in desegregation cases, governs here and

mandates reversal.!* True, this case does not involve separate

school districts as in Milliken. But separate wards and sepa-

rate bonding districts are involved. According to Superinten-

dent Nichols’s testimony (Tr. April 29, 1980 Proceedings, p.

128): “[Y Jou have two different bonding districts there. Forest

Hill is the School District Number 16, they have their own

bond, they built that school.”

2 Contrary to the suggestion of the panel majority (App., infra, 9a_n.7),

nothing in Morgan v. McDonough, 689 F.2d 265 (1st Cir. 1982), or in Mitchell

v. McCunney, 651 F.2d 188 (3d Cir. 1981), supports the bizarre result reached

in this case. In Morgan the district court was only following the wishes “of all

parties” (689 F.2d at 273) (emphasis in original) in ordering Richards Elemen-

tary School closed. What is even more telling, the trial court in Morgan

reversed itself and ordered Conley Elementary School reopened when

Boston schoo! officials objected. /d. Likewise in Mitchell the facts show that

the district court was acting only at the behest of the school board in closing

the schools in question. See 651 F.2d at 186.

‘8 Surely the element of surprise is the same. As far back as 1970 the Fifth

Circuit itself treated the legal issues in the Rapides Parish School desegrega-

tion case on a ward by ward basis, ruling that further relief was necessary in

only wards 1 and 8. Valley v. Rapides Parish School Board, 434 F.2d 144 (5th

Cir, 1970).

B. Nothing in the Record or in the Trial Court's Opinions in

This Case Links the Post-1970 Change in the Racial Mix

of the Lecompte Area Schools to Segregative Actions

Chargeable to the Rapides Parish School Board. This

Failure of Proof Is Fatal.

Judge Scott’s unexplained conclusion in his Preliminary

Opinion of June 6, 1980 (App., infra, 95a) that “the Rapides

Parish School system is not unitary and that additional relief

must be granted” is left wholly unelaborated in his final opinion

of August 6, 1980.!4 While there is no doubt that federal courts

have authority to grant appropriate relief when constitutional

violations on the part of school officials are proved, this Court's

cases

“have just as firmly recognized that local autonomy of

school districts is a vital national tradition. Milliken v.

Bradley, 418 U.S. 717, 741-742 (1974); San Antonio School

District v. Rodriguez, 411 U.S. 1, 50 (1973); Wright v.

Council of City of Emporia, supra (407 U.S. 451 (1972)),

at 469. It is for this reason that the case for displacement

of the local authorities by a federal court in a school

desegregation case must be satisfactorily established by

factual proof and justified by a reasoned statement of legal

principles. Cf. Pasadena City Board of Education v.

Spangler, 427 U.S. 424 (1976).”

Dayton Board of Education v. Brinkman, 433 U.S. 406, 410

(1977). Accord, Austin Independent School District v. United

4 It is quite revealing — and most distressing — that at the outset of the

April 29, 1980 hearing, when this matter got started some three years ago,

Judge Scott admitted on the record: “I don't know what a unitary system is

from the point of view of specifics.” Tr. April 29, 1980 Proceeding, p. 32. This

is not to blame the trial court. It is only to emphasize the need for further

guidance from this Court, lest other communities lose their schools by

judicial decree. It has happened again. See Davis v. East Baton Rouge Parish

School Board, 514 F.Supp. 869 (M.D. La. 1981), appeal pending.

States, 429 U.S. 990 (1976). The trial court’s opinions in this

case fail on their face to meet these requirements, a failure of

proof which plainly bothered the panel in Forest Hill J, and

rightly so. Contrariwise, the majority in Forest Hill I] leap

over what is a glaring failure of proof, paying only lip service to

this Court’s holding in Dayton J. Furthermore, the record is

barren of any evidence linking the high proportion of blacks at

Lincoln Williams to segregative actions on the part of the

School Board. All schools in Ward 3 were desegregated thir-

teen years ago by Judge Hunter's decree. The Fifth Circuit

affirmed, declaring the schools in Wards 3 and 4, after imple-

mentation of Judge Hunter's plan, in compliance with the law.

Valley v. Rapides Parish School Board, 434 F.2d 144, 153 (5th

Cir. 1970). The post-1970 change in the racial mix of the

Lecompte area schools, including Lincoln Williams, has

nothing to do with segregative actions on the part of the School

Board. This failure of proof is fatal, and Judge Scott plainly

exceeded his remedial authority in mixing for mixing’s sake.

5 It is ironic that 13 years ago a white rural school was left standing in

Ward 5 of Natchitoches Parish, Louisiana, and the Fifth Circuit refused to

order its pairing with a black school located 12 miles away in the same ward,

saying: “Theoretically these schools could be paired. A good look at the map

indicates the great distance children would be compelled to travel to effectu-

ate the criss-cross between the two plants.” Robertson v. Natchitoches Par-

ish School Board, 431 F.2d 11, 1113 (5th Cir. 1970). Natchitoches Parish

borders Rapides Parish, and we submit that the common-sense approach of

Robertson, which “separately examin[es] the city schools (Ward 1) and the

rural schools (Wards 2 through 10)” (431 F.2d at 1112) and takes into account

the geographical isolation of rural schools in parishes as large as

Natchitoches (1,297 square miles) (“This Court, of course, cannot alter geog-

raphy.” 431 F.2d at 1113), should also be applied in assessing the soundness of

the district court's plan for Rapides Parish (1,369 square miles), which is

larger than Natchitoches Parish and which also has a few one-race schools out

in the country. Just how this Rapides case differs legally from the

Natchitoches case was left unexplained by the panel majority. Contrariwise,

III.

THE TRIAL COURT'S BLIND INSISTENCE UPON

CLOSING FOREST HILL SCHOOL IN THE FACE OF

THE EXTREME HARDSHIP TO THE COMMUNITY

AND THE RISK TO THE SAFETY OF THE CHILDREN

INVOLVED PLAINLY EXCEEDS THE LIMITS OF

EQUITABLE DISCRETION SET IN SWANN.

A. Closing Good Schools Is Not the Business of Federal

Courts. The Trial Court Erred in Substituting Its Own

View of the Physical Condition of the Lecompte Schools

For the Judgment of the Rapides Parish School Board.

In Swann, Chief Justice Burger for a unanimous Court said

that the closing of a school is one of “the most important

functions of local school authorities and also [one] of the most

complex.” 402 U.S. at 20. We know of no appellate opinion

sustaining a federal judge’s decision to close an admittedly

excellent school facility as a remedy in a school desegregation

case. Judge Scott’s decision to close Forest Hill School “for

purposes of integration” is wholly unprecedented, and we take

the position that, in the circumstances of this case, closing

Forest Hill School was beyond the remedial authority of Judge

Scott and an abuse of his equitable discretion. We submit that

decisions to close schools for purposes of desegregation must

be left to local school officials, not to federal judges, and where

Chief Judge Clark, in his dissent, probed the essentials of this case when he

stated (App., infra, 18a-19a):

“The record shows without contradiction that the Forest Hill area

became predominantly white because of a change in the community's

economic industrial conditions which had nothing to do with schools.

Cf. Pasadena City Board of Education v. Spangler, 427 U.S. 424,

436... . (1967) [sic]. Neither the Lincoln Williams nor the Forest Hill

school was constructed or maintained to evade desegregation. The

school board has never used either school for racial purposes. The

punishment of these innocents fits no crime of their or the district's

making.”

such decisions are not racially motivated, no federal judge has

the power to substitute his own view of the premises and to

decide which schools he thinks it best to close. The unsafe

conditions at Lecompte Elementary were emphasized by both

Board members Kellogg and Holloway in their responses to the

trial court’s plan, but Judge Scott rejected the idea of closing

Lecompte Elementary, relying on his own “detailed personal

inspection of these schools” (App., infra, 3la). But the Fifth

Amendment precludes any federal judge from finding

adjudicative facts based on personal inspection of the premises

in question dehors the record. Kennedy v. Great Atlantic &

Pacific Tea Co., 551 F.2d 593 (5th Cir. 1977). Where commu-

nities stand to lose their only schools there is every reason to

enforce the protective mantle of due process.'® At any rate, we

submit that the questions of comparative physical plant raised

in this case are for the Rapides Parish School Board, not for

Judge Scott. Otherwise federal courts will assume a role

wholly beyond their competence and completely outside the

scope of relief contemplated by Brown II and Swann.

“Remedial judicial authority,” it must be remembered, “does

not put judges automatically in the shoes of school authorities

whose powers are plenary.” Swann, 402 U.S. at 16. “Judicial

authority enters only when local authority defaults.” Jd.

Nothing in this record suggests that Board members Holloway

and Kellogg’s concerns over the inadequate facilities and the

16 In approving Judge Scott's ex parte inspections of the Lecompte schools,

which Judge Scott twice admits in his July 22, 1981 opinion (App., infra, 30a,

3la), the panel majority says (App., infra, l4da n.11): “Forest Hill residents do

not dispute the [trial] court's findings as to the adequacy of these

schools . . . .” But this is plainly mistaken. In our opening brief in Forest Hill

II, we told the Fifth Circuit (p. 52): “Certainly the comparative physical

plants at Lecompte Elementary, Carter C. Raymond, and Forest Hill were

adjudicative facts upon which the parties, including Judge Scott, who made

himself a witness in this case, were in basic disagreement.” We fail to see how

attendant safety problems at Lecompte Elementary were in

any way disingenuous or in default of their responsibilities. We

know of no opinion of this Court — certainly not Swann — that

suggests federal judges can close good schools against the

wishes of a local school board where less drastic alternatives

are available. The approach of the panel majority in this case is

in conflict with the decisions of at least six other Circuit Courts

of Appeals, which rightly leave utilization of physical plant to

the sound discretion of local school boards. The Eighth Circuit

has said that: “The matter of utilization of available facilities is

within the province and discretion of the school board.” Haney

v. Sevier County School Board, 429 F.2d 364, 372 (8th Cir.

1970). The Fourth Circuit has also rejected the dangerous

notion “that it is ordinarily for the district courts to determine

which schools shall be closed rather than for the school board,”

to which the Fourth Circuit replied, “we reject the proposi-

tion.” Allen v. Ashville City Board of Education, 434 F.2d 902,

907 (4th Cir. 1970).!7

With all respect, we submit that the trial court's extra-

judicial self-assessment in this case —

“Anybody can predict what I'm going to doifthey’re smart

enough to know what's best for the school system.”!*

we could have made our challenge to Judge Scott's findings on this matter

more explicit.

17 Accord, Morgan v. Kerrigan, 401 F.Supp. 216, 245-46 (D. Mass. 1975)

(only schools in poor condition closed), aff'd 530 F.2d 401 (1st Cir. 1976) (no

objection on appeal to closing orders); Fitzpatrick v. Enid Board of Educa-

tion, 578 F.2d 858, 862 (10th Cir. 1978) (no showing that “defendants abused

their discretion in their utilization of District facilities”); Penick v. Columbus

Board of Education, 583 F.2d 787, 818 (6th Cir. 1978), aff'd 443 U.S. 449 (1979)

(closing of 33 elementary schools [see 443 U.S. at 490] by local Board, not

district court, affirmed); Mitchell v. McCunney, 651 F.2d 183, 186 (3d Cir.

1981) (school board decision to close schools on account of age and condition

affirmed).

18 The Shreveport Bossier-C ity Times, Feb. 15, 1981, p. 18-A, a front-page

— is quite out of line with the humility demanded of judges who

wield the awesome power of desegregation by decree. Judge

Scott's bold statement — and there are others of record equally

eye-opening !* — runs quite contrary to the chord of restraint

sounded on another « xtra-judicial occasion by one of our great-

est judges, Judge Learned Hand:

“For myself it would be most irksome to be ruled by a

bevy of Platonic Guardians, even if I knew how to choose

them, which I assuredly do not. If they were in charge, I

should miss the stimulus of living in a society where I

have, at least theoretically, some part in the direction of

public affairs.”*°

B. Forest Hill Elementary School Is the Only School in a

Small Rural Community. It is an Excellent Facility

Built and Maintained by the People of Forest Hill. The

School Is the Center of Community Life. Judge Scott's

interview with Judge Scott captioned “I'd like to explain.” The interview was

set forth in full as Appendix D to our opening brief to the Fifth Circuit in

Forest Hill 1], At the same time Judge Scott defended his plan in the local

papers, he also permanently enjoined any member of the Forest Hill Com-

munity from so much as stepping foot on the ten acres of public property that

constitute the Forest Hill School, where upset parents had gathered to

protest “quietly and peaceably” (646 F.2d at 934; App., infra, 53a) Judge

Scott's decision closing their school.

19 Jtem: “I am going to do this since I am a big cheese.” Tr. Jan. 15, 1981

Chambers Proceedings, p. 20.

Item: “I am the best expert that I know and I intend to draw this plan

myself.” Preliminary Opinion, June 6, 1980, Exhibit A, p. 1(App., ivy‘ra, 97a).

Certainly Judge Scott's claiming to be his own best expert is inconsistent

with the humility demanded of judges who wield the awesome power of

desegregation by decree: “We approach decision-making here with humility.”

United States v. Jefferson County Board of Education, 372 F.2d 836, 848 (5th

Cir. 1966) (per Wisdom, J.), aff'd on rehearing en banc 380 F.2d 385 (5th Cir.

1967), cert. denied sub nom. Caddo Parish School Board vy. United States, 389

U.S. 840 (1967).

20 L. HAND, THE BILL OF RIGHTS 73 (The Oliver Wendell Holmes Lectures

1958).

Unilateral Decision To Close Forest Hill School Can

Hardly Be Characterized as an Exercise of Equitable

Discretion.

In Swann, this Court spoke of the breadth and flexibility

inherent in equity:

“The essence of equity jurisdiction has been the power of

the Chancellor to do equity and to mould each decree to

the necessities of the particular case. Flexibility rather

than rigidity has distinguished it. The qualities of mercy

and practicality have made equity the instrument for nice

adjustment and reconciliation between the public interest

and private needs as well as between competing private

claims.”

402 U.S. at 15. We submit that Judge Scott's plan fails to meet

the test of basic fairness set in Swann. Judge Scott's plan is

basically unfair to the students at Forest Hill, both black and

white, who under his plan are bused for 13 years, from kinder-

garten through the 12th grade, whereas the students in

Lecompte are not bused at all.*! That is plainly an inequitable

distribution of the burdens of desegregation. Judge Scott's plan

is also totally insensitive to the needs of the people of Forest

Hill, whose community life centers around their school and

whose hard-earned tax dollars built Forest Hill Se.ool.

The district court's rigidity in this case — its singleminded-

ness of purpose — is faithless to the weighing and balancing of

interests inherent in equity. The trial court identified as its

“sole purpose” the achievement of the greatest amount of inte-

2) True, as noted by the panel majority (App., infra, 3a_n.3): “Since 1966,

all high schou! students in this southeast portion of Rapides Parish have

voluntarily attended the desegregated Rapides High School in Lecompte.”

But that is hardly a reason for increasing the burden on the elementary

students at Forest Hill and for requiring the busing of five-year-olds to

Lecompte.

gration possible. Never mind, said the trial court, the “logisti-

cal expense” of destroying good schools and busing five-year-

olds forty miles and two hours a day. This reasoning, we

respectfully submit, is plainly at odds with this Court’s teach-

ing in Swann. Only Chief Judge Clark's opinion below

addresses the devastating practical consequences of closing

Lincoln Williams and Forest Hill Schools and busing young

children away from home for two hours a day. Only Chief Judge

Clark's opinion is merciful enough to weigh the pleas of con-

cerned parents, both black and white, who are justifiably wor-

ried about the safety and educational well-being of thei:

children. Desegregation decrees, this Court has said, must be

drawn “in light of the circumstances present and the options

available,” Green v. County School Board, 391 U.S. 430, 489

(1968), “taking into account the practicalities of the situation.”

Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 37

(1971). We think the special circumstances of this case and the

practicalities of the situation are best expressed by the testi-

mony (Tr. Sept. 17, 1980 Proceedings, pp. 30-31) of Mary Miles,

a black seamstress and mother of a five-year-old child. Her

words are straightforward enough:

“IT have a five-year-old child that is entering kinder-

garten and it looks as if he is going to be bused about

thirty-five miles away from home. And I don’t see no

reason for him to pass by a school to go thirty-five miles to

another school, which is — I am about twenty-five miles

away from home and if something happens then I have got

to come twenty-five miles plus go another fifteen or

thirty-five miles to go and pick him up, and I just can’t see

it. But to me it looks as if the issue is desegregation plan,

which I am not for that, I am for saving Forest Hill

Elementary School, because if we lose the school out of

Forest Hill then that is all we got.”

This mother's plea should not go unanswered. Forest Hill is a

paradigm case for this Court to speak anew to the Nation ona

matter of vital public importance.

C. The United States and the Panel Majority Concede that

Judge Scott Failed in His Duty to Make Essential Find-

ings of Fact Regarding the Length of Time of Travel for

Students Affected by His Plan. These Concessions Com-

pel a Reversal and Remand.

Judge Scott's finding in his July 22 opinion (App., infra, 33a):

“there are practically no students living in the Forest Hill

district west of Forest Hill city limits” is patently erroneous. It

is contradicted by Judge Scott’s own admission, later in the

same opinion (App., infra, 39a) that 23 students live west of

Forest Hill in the Mill Creek area; 18 live south of Forest Hill in

the Bennett Bay area; 9 live southeast of Forest Hill on Blue

Lake Road. Thus some 50 students, by Judge Scott’s own

count, experience a considerable busing burden under his plan.

The Government concedes this much. U.S. Brief [Fifth Cir-

cuit], p. 19. Yet the panel majority affirms Judge Scott's plan,

leaving these 50 students hanging on the footnote hope (App.,

infra, 18a-14a_n.10) of some future modification of a desegrega-

tion plan already three years old. This is a dangerous approach

to appellate review of desegregation decisions.

Our position is that before any federal judge can decree

extensive busing, he must first determine by findings that are

capable of appellate review what the facts are regarding the

length and time of travel for students affected by such a plan.

Swann, 402 U.S. at 30-31; Northcross v. Memphis Board of

Education, 444 F.2d 1179, 1188 (6th Cir. 1971); Thompson v.

Newport News School Board, 465 F.2d 83, 88 (4th Cir. 1972) (en

bane), cert. denied 413 U.S. 920 (1973); Cisneros v. Corpus

Christi Independent School District, 467 F.2d 142 (5th Cir.

1972) (en bane), cert. denied 413 U.S. 922 (1973); Kelley v.

Nashville Metropolitan County Board of Education, 687 F.2d

814, 822 (6th Cir. 1982), cert. denied 459 U.S. (1983).

Certainly a judge should know what the risks to the safety and

educational well-being of young children are before he orders

his plan into effect. It is remarkable, and yet quite true, that

Judge Scott’s August 6, 1980 opinion fails on its face to consider

the length and time of travel for students affected by his plan.

The reader is not even told how far Forest Hill is from

Lecompte. Nor is the reader told that under Judge Scott's plan

five-year-olds will be bused past their neighborhood school and

transported 25 miles and 60 minutes extra a day.** Those data,

we submit, would give any reader pause.~? We respectfully but

22 The bus driver route sheets introduced as Forest Hill Exhibit 14 show

that 181 former Forest Hill Elementary School students must be bused past

Forest Hill School en route to Lecompte. These students, including five-year-

old kindergarteners, already travel as much as 25 miles to reach Forest Hill

School. The route sheets of Troy Murry and Robert Melder, Forest Hill

Exhibit 14, show that students are picked up as early as 6:45 a.m. and they are

on buses about an hour en route to Lecompte. Contrast the Chief Justice's

explicit recital of the busing distance and time in Swann (402 U.S. at 30):

“The trips for elementary school pupils average about seven miles and the

District Court found that they would take ‘not over 35 minutes at the most.’”

23 In Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978), a case familiar to this

Court, the Fifth Circuit took the position that appellate review of a desegre-

gation decree involving busing is meaningless without adequate findings of

fact regarding time and distance:

“There are no adequate time-and-distance studies in the record in this

case. Consequently, we have no means of determining whether the

natural boundaries and traffic considerations preclude either the pair-

ing and clustering of schools or the use of transportation to eliminate

the large number of one-race schools still existing.”

572 F.2d at 1014. On review here, certiorari was dismissed as improvidently

granted, presumably because this Court also realizes that without adequate

findings regarding the times and distances young children are being bused,

meaningful appellate review is impossible. Estes v. Metropolitan Branches,

Dallas NAACP, 444 U.S, 437 (1980). On remand, the district court in Estes

made extensive findings of fact regarding time and distance, and the court

exempted children in grades K-3 from bus rides longer than 30 minutes.

firmly submit that where the safety and well-being of young

children are at stake, the law requires more than the ipse dixit

of the district court, however well-meaning or self-confident

the trier may be. Otherwise, “the entire federal-court system

will experience the disaffection which accompanies violation of

Cicero’s maxim not to ‘lay down one rule in Athens and another

rule in Rome.’ ” Columbus Board of Education v. Penick, 443

U.S. 449, 492 (1979) (Rehnquist, J. dissenting).

D. Judge Scott Erred in Refusing To Hear Forest Hill's

Evidence Regarding the Dangers of Traveling from For-

est Hill to Lecompte and the Risks to the Young Chil-

dren Involved.

When Mr. Roy attempted to introduce the testimony of bus

drivers regarding the risks to the young children, Judge Scott

cut him off. Tr. June 30, 1981 Proceedings, pp. 56, 70. A duty to

find facts necessarily includes a duty to hear relevant evidence

bearing on those facts. It was constitutional error for Judge

Scott to exclude the proffered testimony. Swann, 402 U.S. at

30-31. The Government's and the panel majority's blind refusal

to weigh such evidence in considering the soundness of Judge

Scott’s plan is insensitive at best; at worst, it is dangerous to

the safety and health of young children.*4

Tasby v. Wright, 520 F.Supp. 683, 714-733 (N.D. Tex. 1981). Other district

courts, after meticulously detailing the times and distances involved, have

reached similar results, with circuit court approval. See, e.g., Thompson v.

Newport News School Board, 363 F.Supp. 458, 462-64 (E.D. Va. 1973) (Wal-

ter Hoffman, J.) (grades K-2 exempt from busing plan), aff'd 498 F.2d 195 (4th

Cir. 1974) (en bane); Smiley v. Blevins, 514 F.Supp. 1248 (S.D. Tex. 1981)

(grades K-1 exempt from busing).

24 We disagree completely with the Government's suggestion (U.S. Brief

[Fifth Circuit], p. 37, n.40) that “in view of the nature of this testimony — i.e.,

kindergarteners soiling their pants while on the school buses — the exclusion

was proper.” Unlike the Government, concerned parents everywhere would

naturally worry about five-year-olds soiling their pants while on a ten-mile

bus ride to school. Moreover, the proffered testimony also shows that the bus

IV.

LESS DRASTIC REMEDIAL ALTERNATIVES WERE

AVAILABLE TO THE DISTRICT COURT TO CORRECT

THE CONDITION IT FOUND IN VIOLATION OF THE

CONSTITUTION,

A. Judge Scott's Disregard of Neighborhood Considerations

for Rural Schools and His Peremptory Rejection of Pri-

vate Plaintiffs’ Proposal To Allow Lincoln Williams and

Forest Hill To Remain K-3 Schools Is Unreasonable and

a Denial of Equal Protection of the Laws.

In Forest Hill J a unanimous pane! of the Fifth Circuit said

that Judge Scott's statement that neighborhood schools do not

exist outside of metropolitan areas was a “curious observa-

tion,” and the panel went on to hold (App., infra, 62a):

“The appellants contend that the district court erred in

failing to accord the same respect to neighborhood schools

in rural areas as to those in Alexandria; the comment that

there can be no rural neighborhood schools is cited as an

example of this asserted misconception. We agree that the

comment, taken in its absolute context, is clearly

erroneous. A review of case law concerning the neighbor-

hood school concept will reveal that it should apply equally

to metropolitan and rural facilities.”

Having corrected Judge Scott as a matter of law, the Forest

Hill I panel reversed and remanded for a re-examination of

specific desegregation measures, saying (App., infra, 66a):

“We cannot ignore the district court's disregard of neigh-

borhood considerations for rural schools in this context,

particularly where K-2 students in Alexandria were

spared transfer to the point that three schools remain

virtually all-black.”

drivers “recalled accidents on the bus where the little kindergarten kids, one

would fall asleep, fall on the floor, and ruin their pants.” Tr. June 30, 1981

Proceedings, p. 70.

This last statement gave the parents of Forest Hill, both black

and white, hope at last. And the Court’ clue led private plain-

tiffs to propose that Lincoln Williams and Forest Hill remain

open as K-3 schools. But Judge Scott rejected this proposal,

quite peremptorily, with the cryptic comment (App., infra,

35a): “We cannot allow K-3 schools . . . .” Judge Scott did not

explain why K-3 schools were impermissible.

On Forest Hill's second appeal to the Fifth Circuit, the

United States conceded Judge Scott had misstated the law of

the Fifth Circuit in this regard. U.S. Brief [Fifth Circuit], pp.

28-29 n.33. Indeed, in Lee v. Macon County Board of Educa-

tion, 616 F.2d 805, 812 (Sth Cir. 1980), the Fifth Circuit noted

that there is nothing unlawful about omitting grades K-3 froma

pairing or grouping program where good reasons for doing so

appear in the record. Since in this case Judge Scott left three

all-black neighborhood schools intact in Alexandria, we submit

the young children in the rural parts of the Parish, both black

and white, are entitled to the same treatment under the Fifth

Amendment’ guarantee of equal protection of the laws and

under the test of basic fairness laid down in Swann. The panel

majority in Forest Hill J], instead of rationalizing Judge Scott's

eryptic rejection of the K-3 proposal, should have instructed

Judge Scott to exercise his discretion — “in the first

instance” 26 — in accordance with the law of the Fifth Circuit,

25 What was good law in Montgomery County, Alabama, is good law in

Rapides Parish, Louisiana:

“It cannot be denied that there is value in having elementary children

attend schools near their homes. Recognition of this benefit of neigh-

borhood elementary schools does not constitute abandonment of the

goal of desegregation as required by the United States Constitution.”

Carr v. Montgomery County Board of Education, 377 F.Supp. 1123, 1138

(M.D. Ala. 1974) (per Johnson, C.J.) aff'd 511 F.2d 1374 (Sth Cir. 1975), cert.

denied 423 U.S. 986 (1975).

26 Dayton Board of Education v. Brinkman, 433 U.S. 406, 420 (1977). In

precisely as did the earlier unanimous panel in Forest Hill J.

The Fifth Circuit has never required the busing of five-year-

olds: “We have uniformly held that kindergarten children need

not be included in desegregation plans . . . .” Pitts v. Cherry,

598 F.2d 1005, 1006 (Sth Cir. 1979) (citations omitted). Plainly,

the panel majority in this case erred in ruling, as a matter of

law, that Swann requires all grades to be bused, regardless of

the times and distances of busing and the threat to the safety

and educational well-being of the children involved.** Such a

harsh result, particularly in a case involving a rural com-

Dayton I this Court cautioned that: “The proper observance of the division of

functions between the federal trial courts and the federal appellate courts is

important in every case. It is especially important in a [desegregation]

case... .” 433 U.S. at 410.

27 Citing this Court's denial of certiorari in the Nashville case, Kelley v.

Nashville Metropolitan County Board of Education, 687 F.2d 814 (6th Cir.

1982), cert. denied 459 U.S. —— (1983), the panel majority stated (App.,

infra, 12a): “This constitutionally erected barrier to the operation of segre-

gated schools applies to all children within the school system, including those

in elementary grades.” In Kelley, the Sixth Circuit rightly objected to a

district judge's order that would have left 47 of 75 elementary schools more

than 90% one-race, with 14 schools projected as more than three-fourths

black. See 687 F.2d at 820. But that is a far cry from the situation in Rapides

Parish viewed as a whole. The panel majority has read far too much into this

Court's denial of certiorari in Kelley. A much better window to this Court's

thinking on the matter of busing elementary-age children is the following

excerpt from the oral argument in the Estes case, supra note 23, which was

argued in this Court on October 29, 1979:

“THE COURT: Well, doesn’t the district court have some discretion

when it comes to very young children in saying there shall be less

bussing with respect to them than with respect to older children?

“MR. WALLACE [Deputy Solicitor General}: Some discretion based

on adequate factual inquiry and findings.

“THE COURT: Didn't Swann say precisely that, Mr. Wallace?

“MR. WALLACE: Swann did say that, and | answered consistently

with that answer.”

Ty. Oral Arg. pp. 39-40 (Hoover Reporting Co., Inc.), reproduced in THE

ComPLETE ORAL ARGUMENTS OF THE SUPREME COURT OF THE UNITED

States 1979 Ter (University Publications of America Inc.; microfiche).

munity’s only school, is certainly not required by Swann. Fur-

thermore, the panel majority's approach in the instant case is

squarely at odds with the law of the Fourth Circuit:

“If certain proper circumstances may justify an entire

school remaining of one race then, a fortiori, the same

circumstances will justify the two lowest grades and kin-

dergarten remaining predominantly of one race,

especially considering the time of travel and age of the

children.”

Thompson v. Newport News School Board, 363 F.Supp. 458,

463-64 (E.D. Va. 1973), aff'd 489 F.2d 195 (4th Cir. 1974) (en

banc).

B. Judge Scott's Rejection of Forest Hill Plan 2 and School

Board Plans 1, 2, and 3 Because They Proposed Busing

Blacks into Forest Hill Is Unwarranted in Law.

Judge Scott rejected various plans zoning blacks into Forest

Hill because he said (App., infra, 35a) they would involve

“segregated bussing” in violation of the Constitution.** Man-

ifestly, this is legal error. There is nothing illegal about pro-

posals to bus blacks into Forest Hill, especially since white

students at Forest Hill have been bused to Rapides Senior High

School in Lecompte since 1966.°° Likewise Judge Scott's rejec-

tion of the School Board’s proposal to zone K-5 blacks from

Lecompte to Forest Hill was based on a misunderstanding of

® The district court is quite mistaken in saying (App., infra, 35a): “We

doubt seriously if there are 15 black students in the Woodworth area.” In

point of record fact, certified copies of the trip tickets of bus drivers Alex

Baker, Jr., J. D. Glass, and Vernon Linzey show that 31 black elementary

students live in the Woodworth area and could easily be bused the shorter

route to Forest Hill. Ferest Hill Exhibit 14; Tr. June 30, 1981 Proceeding, pp.

55-56 (testimony of Parks W. Sansing).

® The district court and the pane! majority view the Cheneyville, Forest

Hill, and Lecompte schools “as integral elements of a single educational

the law. Judge Scott took the position (App., infra, 36a) that

“Students in a one-race zone can be bussed for purposes of

integration but they should not be bussed to a K-5 zone when a

K-5 school exists in their own zone.” The obvious question at

this point is what about the 181 Forest Hill students who are

bused past their neighborhood school under Judge Scott's

plan? At any rate, Judge Scott is quite mistaken in saying he

was powerless to zone K-5 blacks from the Lecompte area into

the Forest Hill School. Non-contiguous subzoning is a well-

established desegregation tool in the Fifth Circuit and

elsewhere. See, e.g., Lee v. Macon County Board of Educa-

tion, 616 F.2d 805 (Sth Cir. 1980); Swann, 402 U.S. at 27.

It is apparent from the above, that at least three legal errors

cabined the exercise of the trial court’s discretion within too

narrow bounds. In these circumstances, a reversal and

remand, under proper instructions as to the law, are in order.

Dayton Board of Education v. Brinkman, 433 U.S. 406, 419

(1977). With regard to other plans, all we can do here is point to

the transcript of the June 30, 1981 hearing on remand, which

shows a concerted effort on the part of the plaintiffs, the

Rapides Parish School Board, and Forest Hill intervenors to

draw up a realistic plan, one that promised to work effectively

network” (App., infra, 9a), and both the trial court (App., infra, 39a) and the

panel majority (App., infra, 3a n.3) make much of the fact that Forest Hill

students have voluntarily attended Rapides Senior High School in Lecompte

since 1966. But the record is uncontradicted that when Rapides Senior High

School Consolidated Taxing District 61 was voted upon favorably:

“the sine qua non and/or quid pro quo for the passage of the bond

election in 1964 to erect and construct Rapides Senior High School

were the reciprocal agreements and understandings among al! of the

citizens of the areas involved, that the elementary schools in Forest

Hill, Louisiana, Cheneyville, Louisiana, and Lecompte, Louisiana,

would remain open and in their communities.”

Affidavit of School Superintendent E. Allen Nichols, 3 June 1982, 2nd Supp.

R., Exhibit “C”, para. 7.

while at the same time not destroying good schools so badly

needed by both blacks and whites alike.2° We would also

respectfully direct this Court’s attention to the dissenting opin-

ion of Chief Judge Clark where a realistic and less drastic

alternative plan is plainly set forth.

CONCLUSION

It would be easy for this Court to dispose of this case on the

general proposition that district courts have broad discretion in

desegregation cases. And of course they do. But as Chief

Justice Marshall stated long ago, to say that the matter is

within a court’s discretion means that it is addressed not to the

court's “inclination, but to its judgment; and its judgment is to

be guided by sound legal principles.” United States v. Burr, 25

Fed. Cas. 30, 35 (1807). The decision to close Forest Hill School

rests on grounds that cannot be supported, and the questions

presented are substantial.*! This Court should therefore grant

the petition for writ of certiorari.

% In Green v. County School Board, supra, this Court emphasized that

desegregation plans must “promise[ ] realistically to work, and promise[ ]

realistically to work now.” 391 U.S. at 439. In point of fact (App., infra, 38a),

only 47 of 311 former Forest Hill Elementary School students have remained

in the public school system. One wonders how any plan that closes two good

schools and runs both blacks and whites out of the public school system and

inte their neighborhood Baptist church for their schooling can be said to be

“realistic” in any rational sense. During the 1980-81 academic year, 178 stu-

dents attended the Forest Hill Free School, which was built on the premises

of the local Baptist church in Forest Hill. The latest figures, for 1981-82, show

an increase in the number of students attending the Forest Hill Free School

to 198, including 7 black children. A photograph showing the protest of the

parents of Forest Hill on the opening day of the 1981-82 school year appears

infra, Appendix T, lla.

31 Forest Hill School remains intact. A janitor has cleaned the rooms and

maintained the grounds for three years. None of the School's furnishings has

been moved. It is not too late to save it.

We leave the last word to Webster:

“‘Sir, you may destroy this little Institution; it is weak;

it is in your hands! . . . You may put it out.

“‘It is, Sir, as I have said, a small College. And yet,

there are those who love it—.’ "3

Respectfully submitted,

Pau R. BAIER,

Paul M. Hebert Law Center,

Louisiana State University Law Center,

Baton Rouge, Louisiana 70803;

CHRISTOPHER J. Roy,

711 Washington Street,

Alexandria, Louisiana 71309,

Counsel for Forest Hill

Intervenors-Petitioners.

JULY 1983

32 These lines, of course, are from Webster's immortal peroration in the

Dartmouth College Case. They do not appear in Henry Wheaton’s official

report of the case, Dartmouth College v. Woodward, 4 Wheat. 518 (1818).

They were, however, preserved for students of the law in Rufus Choate’s

Eulogy on Daniel Webster (1853), in I THE WorKs OF RUFUS CHOATE WITH A

Memoir OF His LiFe 493, 516 (S. G. Brown, ed. Boston 1862) (emphasis in

original).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.