Jurisdictional Statement — Louisiana ex rel. Guste v. United States
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89-557, TTS
a
sesso oct 5 Beg
NIOL, JR
CLERK
IN THE
Supreme Court of the United aa
OCTOBER TERM, 1989
BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY AND
AGRICULTURAL AND MECHANICAL COLLEGE,
Appellant,
Vv.
UNITED STATES OF AMERICA,
Appellee.
On Appeal from a Three-Judge Panel of the
United States District Court
for the Eastern District of Louisiana
JURISDICTIONAL STATEMENT
WILLIAM J. JEFFERSON
Counsel of Record
TREVOR G. BRYAN
VINCENT P. BLANSON
JEFFERSON, BRYAN, JUPITER,
LEWIS & BLANSON
650 Poydras, Suite 1850
New Orleans, LA 70130-6101
(504) 561-8933
WILSON - EPEs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
1. Whether the imposition of a desegregation remedy
that restructures Louisiana’s higher education system,
abolishes its constitutionally authorized governance boards,
creates a comprehensive community college system, estab-
lishes a hierarchical tiering system for universities, and
imposes new college admission standards, among other
drastic measures, unnecessarily and improperly involved
the district court in higher educational policy choices;
2. Whether the district court’s power to fashion a
remedy below was limited by the consent decree pre-
viously entered into by the parties, and/or by the re-
medial standards for higher education desegregation pre-
scribed by the U.S. Department of Education under Title
VI of the 1964 Civil Rights Act;
3. Whether the racial identifiability of a State’s higher
educational institutions and governance boards is a suf-
ficient basis for finding a violation of the Fourteenth
Amendment or of Title VI, when the State has long ago
abandoned its laws requiring racial separation in its col-
leges and has instituted good faith non-discriminatory
hiring and admission policies and practices, and whether,
in any event, the United States may raise such a Four-
teenth Amendment claim; and
4. Whether the district court’s rulings on the findings
of the Special Master in this cause, and the district court’s
failure to hold hearings on Consent Decree compliance or
on the merger of the Southern University Law Center
into the Louisiana State University Law Center violated
Due Process requirements and Federal Rules of Civil
Procedure 52 and 65(d).
(i)
TABLE OF CONTENTS
Page
I ____coasietintipbasibincianiantiogsnman 2
en 2
HOW THE FEDERAL QUESTION WAS RAISED.... 2
STATEMENT OF THE CASE............ aires aticnigh biahasanaes 4
THE QUESTIONS ARE SUBSTANTIAL... 15
CONCLUSION....... Riaipandelladaiieelisundscnientenientaidiacetonnttianetuin 30
iv
TABLE OF AUTHORITIES
CASES
Adams v. Bell, 711 F.2d 161 (D.C. Cir. 1983),
cert. denied, 465 U.S. 1065, 104 S.Ct. 1272
(1984) .......... schedacecaunahakaniingedenemisiiacaascnpnadicaniaiabadamadinads
Adams v. Califano, 430 F. Supp. 118 (D.D.C.
1977) (Order, 430 F. Supp. at 121) —....
Adams v. Richardson, 356 F. Supp. 92 (D.D.C.
1973), modified and aff'd per curiam, 480 F.2d
RO Giese CII cibstitcnndtinciinteeicegttastcirtemidndcduniion
Adams v. Richardson. 480 F. Supp. 118 (D.D.C.
1977) ...... niet ilianishicheninstiaieidaeiaageatincsenaaialiaicasadeduaadiniaitals
Alabama State Teachers Association (ASTA) v.
Alabama Public School and College Authority,
289 F. Supp. 784, 788 (M.D. Ala. 1968) (Three-
Judge Court), aff’d per curiam, without written
opinion, 393 U.S. 400, 89 S.Ct. 68 (1969) ..18, 26,
Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct.
RS IS 1 se ae
Ashwander v. T.V.A., 297 U.S. 288, 56 S.Ct. 466
NUIT os scctehicistcisheiumunarisesbonstnanenmedatnmnicedtinmapiaanmanenae
Atiyeh v. Capps, 449 U.S. 1312, 101 S.Ct. 829
RII asctdnsintsanpanatsicnigageiieessauamnnsaneneidamecniatiaaiaeeadinllineions
Ayers v. Allain, 674 F. Supp. 1523 (N.D. Miss.
1987), appeal pending appeal docketed No. 88&-
4103 (5th Cir. argued May 1, 1989) ...................
Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399
tj aaa a ae
Board of Curators of the University of Missouri v.
Horowitz, 435 U.S. 78 (1978)_...... OTT Ee
Caritativo v. California, 357 U.S. 549 (1958) _......
Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S.Ct. 2778
PIII nth caeedhabiedaionclh beicednigthiataialaldaheanatuanindastasenanneninc
City of Richmond v. J. A. Crossen Company,
USS. Ss : ¥-% F: | eRe
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 2532
IIIT si. a. a occ cacieetialcnecendindahmabaasiacsghansaciatesenabedaehenehs
Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 465
(1 RESEERRSCR Re SR RSE acento SPO Tae
Page
16
16
16, 20
25
27, 28
27
v
TABLE OF AUTHORITIES—Continued
Columbus Bd. of Ed. v. Penick, 439 U.S. 1348,
Oe GG Te CI ikctctecccencshcncctinncicccastieedadatiniacbcanias
Dartmouth College v. Woodward, 4 Wheat. 512
I ia ice nsceecs deudeshcehistninaceimasiiesaspanlatadaias
Day v. Wayne County Bd. of Auditors, 749 F.2d
Se hs I icciiniecnrincsntate dicdinbamtaeiiadictiabens
Dayton Bd. of Ed. v. Brinkman, 438 U.S. 406, 99
OF BR RR Ce ee
Earle v. McVeigh, 91 U.S. 503 (1876) _..................
Epperson v. Arkansas, 393 U.S. 97 (1968) ...........
Firefighters Local Union No. 1784 v. Stotts, 467
U.S. 561, 104 S.Ct. 2676 (1984) ..........................
Ford Motor Credit Co. v. Milhollin, 444 U.S. 556,
OR Fe RF, eee
Geier v. Alexander, 801 F.2d 799 (6th Cir. 1986) ..
Green v. County School Board of New Kent
County, 391 U.S. 430, 88 S.Ct. 1689 (1968) ........
Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281
PRSIIIEID sc ciccaciss secedepmobapetiinbonbabesadaeai-ssackxauamaiataealaaseadion
Hopfmann v. Connolly, 471 U.S. 459, 105 S.Ct.
I Ge seciccchinceceeisheihinknncnnnniscnasisinsiansbisbiniepaimeaiias lalate
Hughes v. United States, 342 U.S. 353, 72 S.Ct.
SE CI son srlanccccancsnsnronmninenntteunuiianadidaatadibichieceieen
Keyes v. School District No. 1 Denver, Colo., 413
U.S. 189, 98 S.Ct. 2686 (1978) .............................
Liddell v. Missouri, 731 F.2d 1294 (8th Cir. 1984).
cert. denied, 469 U.S. 816, 105 S.Ct. 82 (1984) ..
Local Number 93, International Association of
Firefighters v. City of Cleveland, 54 U.S.L.W.
Be 8 RR
Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238
| a a Teepe ncbnelsr Pees es SEY FE
Mandel v. U.S. Dept. of HEW, 411 F. Supp. 542
EM ER RRR RE tae ates ts AN ol
Mayor and City Council of Baltimore v. Matthews,
S68 9.26 S16 (4 Cir. 2677)
Meyer v. Nebraska, 262 U.S. 390 (1923) —.............
Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112
‘eo sR ae Ree eR
Page
18
21
22
denen
vi
TABLE OF AUTHORITIES—Continued
Page
Milliken v. Bradley, 433 U.S. 389, 97 S.Ct. 2749
(1977) (Milliken I) ......... Secviaishbeketabithindiadedebeten 13
New York Trust Co. v. Eisner, 256 U.S. 345, 41
Recs: IEE: METI sci cnssccrneupnssnpiasltabictabideinddienditeaesiddaddaias 13
NLRB v. United Food and Commercial Workers
Union, Local 23, AFL-CIO, ——- U.S. , 108
Me Le 16
NLRB v. Southwestern Bell Telephone Co., 730
i of 6 OL | ee Se 22
Norris v. State Council of Higher Education for
Virginia, 327 F. Supp. 1368 (E.D. Va. 1971),
aff'd per curiam sub nom. Board of Visitors of
the College of William & Mary in Virginia v.
Norris, 404 U.S. 907, 92 S.Ct. 227 (1971) 0.0... 27, 28
Pasadena City Bd. of Ed. v. Spangler, 427 U.S.
UIE i TEED \eciiciecsndhedtcabeaasdbanieiniaieneumaaiaienieaaainediean 18
Pierce v. Society of Sisters, 268 U. S. 510 (1925). 21
Price v. Denison Independent School District Bd.
of Ed., 348 F.2d 1010 (5th Cir. 1965) 0000000. 17
Regents of the University of California v. Bakke,
438 U.S. 265, 98 S.Ct. 27383 (1978) .....0. 29, 30
Regents of the University of Michigan v. Ewing,
474 U.S. 214, 106 S.Ct. 507 (1985)... 18
Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976) .. 18
Ruiz v. Estelle, 650 F.2d 555 (5th Cir. 1981), cert.
denied, 460 U.S. 1042 (1988) ..... 19
Singleton v. Jackson Municipal Separate School
District, 348 F.2d 729 (5th Cir. 1965) — 0... 16
Sixty-Seven Minnesota State Senate v. Beens, 406
ise we Fe a ee 18
Spector Motor Service v. McLaughlin, 323 US.
me OF ioe 6, ee Sa 30
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402
is i gee ee Ue ee er 18
Three Affiliated Tribes of Ft. Bertole Reservation
v. Wold Engineering, 467 U.S. 138, 104 S. Ct
I 1 a 30
United States v. Armour & Co., 402 U.S. 673, 91
v. 3) le. : ) PRBS Io REN ie 23
vii
TABLE OF AUTHORITIES—Continued
Page
United States v. Atlantic Refining Co., 360 U.S. 19,
TO BG, BOG Ce ccecccsccenesetsententnsentecesintenteenee 23, 24
United States v. City of Philadelphia, 644 F.2d
ee ee Ls sceailediaceansantansatie 29
United States v. ITT Continental Baking Co., 420
GD ye 24, 25
United States v. Jefferson County Bd. of Ed., 372
F.2d 836 (5th Cir. 1966), aff'd en banc, 380 F.2d
385 (5th Cir. 1967), cert. denied, 386 U.S. 1001
| a eee 17
United States v. Mattson, 600 F.2d 1295 (9th
I ee eee Ee 29
United States v. Overton, 834 F.2d 1171 (5th Cir.
RIED inicedsetesuntn -citiinsenesitansaaniniasnsimaiamniiaissaiininineinis 24
United States v. Solomon, 563 F.2d 1121 (4th Cir.
TFET re nicnnnicnnsitesttinMivsnarssnnnnerntdiiaccatcisiiashtabeaathaiatataednes 29
United States v. State of Alabama, 791 F.2d 1450
CS TI BD . i ncisciicssienieetinieeiredeniansonstadinipisegions 30
United States v. State of Alabama, 828 F.2d 1532
(11th Cir. 1987) (per curiam), cert. denied
sub nom. Board of Trustees of Alabama State
University v. Auburn _.... stl Baa ear aoe 29
United States v. Swift & Co., 286 U.S. 106, 52
S.Ct. 460 (1932)... ia 23
Whitcomb v. Chavis, 403 U Ss. 124, 91 S.Ct. 1858
ITNT” sce cctctcocisnepeeeeudetmacasintestedanadahiadiciaddaiabacsiinnats 18
Williams v. Edwards, 547 F. 2d 1206 (5th Cir.
1977) .. ah eed edie Reena 23
Young v. Community Nutrition Institute, 476 USS.
974, 106 S.Ct. 2360 (1986) ae 16
STATUTES
I chiens 2
, gir Te | eee ee 3
She SR RES nas 3
42 U.S.C.A. 2000d, 2000d-1 (Title VI)... passim
L.S.A.-R.S. Title 17:3121-3133 and Title 17 :3201-
viii
TABLE OF AUTHORITIES—Continued
CONSTITUTION Page
Article 8, §§ 5-7, Louisiana Constitution 1974 4, 5, 6,7
Fourteenth Amendment to the United States Con-
EAE ES a co ee passim
RULES AND REGULATIONS
RS EL eae nalboidapeadl 3
Fed. R. Civ. P. 65(d), 28 U.S.C.A. lodoabascidtdiatle 22, 23
Eis Bis Gis Bro Gis BD Cs nccccccnscasecescensesacesecsees 22
Revised Criteria Specifying the Ingredients of
Acceptable Plans to Desegregate State Systems
of Public Higher Education, 43 Fed. Reg. 6658
(February 15, 1978) —...... 2 ie EN tO passim
Rule 12 of the United States District Court for the
Middle District of Louisiana... ns RSS 3
LAW REVIEW ARTICLES
Baier, Framing and Reviewing a Desegregation
Decree: Of the Chancellor's Foot and Fifth Cir-
cuit Control, 47 La. L. Rev. 123 (1986)... 21
Chayes, Foreword: Public Law Litigation and the
Burger Court, 96 Harv. L. Rev. 4 (1982)... 18
K. Saunders, Agency Interpretations and Judicial
Review: A Search for Limitations on the Con-
trolling Effect Given Agency Statutory Con-
structions, 30 Ariz. L. Rev. 769 (1988)... 17
IN THE
Supreme Court of the United States
OCTOBER TERM, 1989
No.
BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY AND
AGRICULTURAL AND MECHANICAL COLLEGE,
. Appellant,
UNITED STATES OF AMERICA,
Appellee.
On Appeal from a Three-Judge Panel of the
United States District Court
for the Eastern District of Louisiana
JURISDICTIONAL STATEMENT
The Board of Supervisors of Southern University and
A&M College, the appellant, appeals from the final judg-
ment of a Three-Judge District Court entered in separate
decisions:
(1) Its Order and Reasons of August 2, 1988, which
held that the State of Louisiana and other defendants
maintained a dual system of public higher education in
violation of Title VI of the 1964 Civil Rights Act, 42
U.S.C.A. § 2000d (1981) ;
(2) Its Opinion and Order of July 19, 1989, which
held, inter alia, that the system’s dualism also violated
the Fourteenth Amendment to the United States Consti-
tution and which imposed a remedy; and
(3) Its Supplemental Reasons and Order of August 4,
1989, denying motions for a new trial and for a stay of
2
the court’s prior judgment and imposing additional reme-
dies.
OPINIONS BELOW
The August 2, 1988, judgment of the three-judge dis-
trict court, which appears in the appendix hereto, p. 3a,
infra, is reported at 692 F. Supp. 642 (E.D. La. 1988).
The July 19, 1989 and August 4, 1989, judgments are
not reported and are reprinted in the appendix hereto,
pp. 39a and 78a, respectively.
The final recommendations of the Special Master ap-
pointed in the proceedings below by the three-judge panel,
upon which the court’s judgment in part depends, is also
unreported, but appears in the appendix, p. 623a, infra.
JURISDICTION
The final order of the three-judge court constituting
the judgment herein was entered on August 4, 1989, fol-
lowing the district court’s consideration and denial of
appellant’s post-trial motions.
A notice of appeal to this Court was timely filed in the
United States District Court for the Eastern District of
Louisiana on August 10, 1989.
This appeal is being docketed within sixty (60) days
of the filing of the notice of appeal. The jurisdiction of
this Court is invoked under 28 U.S.C. § 1253. These and
other statutes, rules and constitutional provisions relied
upon are set forth in ithe appendix hereto.
HOW THE FEDERAL QUESTION WAS RAISED
The federal question was raised in the complaint of the
United States, filed March 14, 1974, and amended on No-
vember 17, 1980. This action was brought pursuant to
the Fourteenth Amendment to the United States Consti-
tution; Sections 601 and 602 of the Civil Rights Act of
1964, 42 U.S.C.A. 2000d, 2000d-1, and regulations issued
3
thereunder, 45 C.F.R. Part 80, pp. 115a and 887a, infra
and jurisdiction was claimed under 28 U.S.C.A. 13845.
The complaint alleged, inter alia, that the
... (A)ets and practices of the defendants and their
agents maintain and perpetuate an unlawful dual
system of higher education based upon race, and
thereby deprive black students attending state-
supported schools, and prospective black students, of
equal protection of the laws and equal educational
opportunities in violation of the Fourteenth Amend-
ment to the-Constitution of the United States and in
violation of Title VI of the Civil Rights Act of 1964
and the regulations issued pursuant thereto.
Further, the United States prayed that the
(C)ourt enter an order enjoining the defendants, their
agents, officers, employees, successors, and all persons in
active concert with them from maintaining and perpetu-
ating racial dualism in the State-supported’ system of
higher education within the State of Louisiana.”
‘“
.
On the same date on which the original complaint was
filed, the United States filed a request for a three-judge
Court, under 28 U.S.C.A. §§ 2281, 2284, and Rule 12 of
the United States District Court for the Middle District
of Louisiana, infra, appendix, p. 184a. And, on March
28, 1974, an order was entered by the Chief Judge of the
Fifth Cireuit Court of Appeals constituting a court of
thr 2 judges to hear the case, which three-judge court has
been reconstituted four times since, on April 16, 1974, on
November 7, 1979, on November 16, 1979, and on No-
vember 26, 1979.
In its judgment of August 2, 1988, the district court
noted that a three-judge court had been properly requested
and convened, p. 10a, infra, and ruled that the United
States had standing to bring the action under Title VI,
and that the twenty institutions under the four higher
education boards were continuing to be operated under an
unlawful, dual system of education, in violation of Title
VI. Additionally, in its opinion of July 19, 1989, the
4
court stated that the “. .. present scheme for governing
education in Louisiana—three operating boards and one
coordinating board—has perpetuated illegal segregation
in Louisiana’s higher education . . .” and that the “. ..
system of multiple boards is therefore a defect in the
State’s system of higher education that violates the fed-
eral constitution.” Further, the court held that statistics
regarding student performance “. . . demonstrate addi-
tional particular constitutional defects inherent in and
perpetuated by Louisiana’s present system of higher ed-
ucation,” appendix hereto, p. 45a.
STATEMENT OF THE CASE
More than twenty years ago, on January 13, 1969, a
letter was sent from the Department of Health, Educa-
tien;-and Welfare to the State of Louisiana, advising that
Louisiana operated its system of higher education in vio-
lation of Title VI of the Civil Rights Act of 1964. This
message was repeated in letters dated October 21, 1969,
May 21, 1973, November 10, 1973 and November 30,
1973. Louisiana responded that its system complied with
federal law. The facts set forth in these letters-and the
response of the State of Louisiana are the acorn from
which this giant oak of a case sprouted. Through the
years, like the oak from the acorn, it has grown into
something quite different from its beginnings. Louisiana
has changed—in particular its laws on race relations and
the enfranchisement of its black citizens—and so have
many of the facts giving rise to this case. The court be-
low, and now this Court, then, are put to judge allega-
tions now twenty years old against present day facts.
The -appellant, Board of Supervisors of Southern Uni-
versity and Agricultural and Mechanical College, is one
of three higher education management boards established
by the Louisiana State Constitution of 1974, Article 8,
$$ 5-7. The State Constitution also provides, in Article 8,
§ 5 thereof, for a coordinating or policy board, the Lou-
isiana Board of Regents. The Constitution containing
5
these provisions was proposed by a bi-racial Constitu-
tional Convention, adopted by the people of Louisiana on
April 20, 1974, and cleared by the U. S. Department of
Justice as comporting with the 1965 Voting Rights Act.
When the people selected the multi-board higher educa-
tion governance structure, they consciously chose between
alternative propositions on the referendum ballot—Prop-
osition A, for a multi-board structure; and Proposition
B, for a single board, appendix hereto, p. 914a, infra.
So adopted, the Constitution of 1974 replaced the 1921
Constitution, and became effective at midnight on Decem-
ber 31, 1974.
To implement its new constitutionally-mandated higher
education system, the Louisiana Legislature, in an ex-
traordinary session held in 1974, and a regular session in
1975, enacted extensive and new enabling statutes. L.S.A.-
R.S. Title 17:3121-3133 and Title 17:3201-3383, appen-
dix hereto, pp. 126a-148a and 1048a and 1067a. These
statutes and other laws tied to the constitutional gov-
ernance board structure became effective at various times
beginning January 1, 1975.
The foregoing constitutional provisions and laws au-
thorize the Louisiana State University (LSU) system;
the State Colleges and Universities system; and the South-
ern University system. The Southern University system
presently consists of four institutions of higher learning:
(1) Southern University and Agricultural and Mechani-
cal College at Baton Rouge; (2) Southern University at
Shreveport; (3) Southern University at New Orleans;
and (4) the Southern University Law Center. L.S.A.-
R.S. Title 17:3216 placed the Southern University system
under the authority of the Southern University Board of
Supervisors. And, L.S.A.-R.S. Title 17:3335 empowered
appellant and each other management board to operate as
a body corporate and, within certain limited exceptions,
to exercise “all power to direct, control, supervise and
manage the institutions under its control,’ appendix
hereto, pp. 126a-127a,
6
More than 13,000 students are currently enrolled at
the institutions of the Southern University system. Each
institution in the Southern system is predominantly black.
The Southern University Board is predominantly black.
Every other public higher education governance board in
Louisiana is predominantly white. Grambling State Uni-
versity, governed by the Board of Trustees, is also major-
ity black. The productive capacity of Southern and Gram-
bling in graduating black baccalaureate degree holders in
Louisiana has been singularly impressive: fifty-nine per-
cent of the State’s total number of baccalaureate degrees
granted to blacks in 1985 were granted by Southern and
Grambling. In 1986, that figure was sixty-two percent.
National studies have ranked Southern University and
A&M College in the top ten of institutions producing
black college graduates in the nation, appendix hereto,
pp. 947a and 1087a.
However, none of the referenced constitutional provi-
sions or laws require any particular racial make-up of
any of the State’s governance boards, nor of any of its
colleges... The records of the Constitutional Convention
disclose no racial motivation for the adoption of the Con-
stitution of 1974, and, in particular, its higher education
articles. Indeed, a black legislator proposed the creation
of the Southern University Board, appendix, p. 857a,
infra.
The Louisiana Constitution of 1974 manifests a clear
break with Louisiana’s segregative past. It outlaws all
forms of racial discrimination in Louisiana, including in
higher education. The preamble to Article 8 of the
Louisiana Constitution of 1974 proclaims: “The goal of
the public educational system is to provide learning en-
1 The State’s present governor has appointed twenty-nine persons
to the State’s governance boards since his term of office began in
March of 1988. In each case, he appointed a white person to replace
a departing white and a black to replace a departing black. The
racial make-up of the boaids is a product of an exercise of execu-
tive discretion.
7
vironments and experiences, at all stages of human de-
velopment, that are humane, just and designed to promote
excellence in order that every individual may be afforded
an equal opportunity to develop his full potential.”
Indeed, the State repealed its remaining laws requir-
ing separate educational facilities for blacks and whites
at various legislative sessions between 1972 and 1975.
Through Louisiana’s new educational governance struc-
ture, as provided for in the Louisiana Constitution of
1974, each of the State’s undergraduate colleges, except
Louisiana State University and A&M College, is an open
admissions institution. Thus, any student who graduates
from a Louisiana high school is guaranteed admission to
the college of his or her choice, whether the graduate is
black or white. The State’s graduate schools have modest
selective admission standards. None of the State’s gov-
ernance boards created in the 1974 Constitution, particu-
larly Southern’s Board, has ever adopted any official
policy or practice of denying admission to any student
because of the student’s race. No institution now gov-
erned by appellant has ever had any such policy at any
time, however. No evidence was presented at trial to
show any present-day policy or practice on the part of
the State, or any governance board, or any State college,
of denying any person admission to any State institution
of higher learning because of that person’s race. And
new laws adopted by the State legislature, particularly
the “Taylor Plan” legislation, guarantee a free college
education to students meeting certain academic require-
ments regardless of race, appendix hereto, p. 144a.
The United States commenced this action on March 14,
1974, prior to the adoption of the State’s present Consti-
tution. It alleged a racially dual system of higher educa-
tion in Louisiana. The United States purported to bring
suit under Title VI of the 1964 Civil Rights Act as well
as the Fourteenth Amendment.
The complaint was amended on November 17, 1980, to
substitute defendants, and it was at this time that appel-
8
lant and the other governance boards created by the
1974 Constitution became parties. The defendants below,
including Southern, denied liability.2 No allegation was
ever made in the initial or amended complaint that the
laws authorizing the governance boards were unconsti-
tutional or a vestige of de jure segregation.
On September 8, 1981, the parties settled the suit and
signed a Consent Decree, appendix hereto, p. 199a. The
Consent Decree was on that date entered as a judgment,
following a hearing before the district court at which
the court determined that the Decree was “. . . consistent
with the objectives of the Fourteenth Amendment and
Title VI. . .,” appendix hereto, p. 200a. (See also ap-
pendix pp. 262a and 266a).
The Consent Decree provided, inter alia, for affirma-
tive steps to recruit other-race students and faculty, es-
tablishing goals and timetables; for measures to reduce
attrition and require developmental education; for other-
race faculty fellowship programs; and for scholarships for
black students: pursuing medicine, law, and veterinary
science at historically white institutions; for cooperative
efforts between proximate, historically white and black
institutions; and for the enhancement of predominantly
2 The parties participating in the proceedings below not listed
in caption are:
(1) STATE OF LOUISIANA, Defendant Below
(2) BOARD OF TRUSTEES OF STATE COLLEGES AND UNIVERSITIES,
Defendant Below
(3) BOARD OF TRUSTEES OF STATE COLLEGES AND UNIVERSITIES,
Defendant Below
(4) BOARD OF SUPERVISORS OF LOUISIANA-STATE UNIVERSITY
AND A&M COLLEGE, Defendant Below
(5) GRAMBLING STATE ALUMNI ASSOCIATION, Litigating Amicus
(6) LOUISIANA BOARD OF REGENTS, Defendant Below
(7) ST. BERNARD PARISH SCHOOL BOARD, Defendant Below
(8) BOSSIER PARISH SCHOOL BOARD, Defendant Below
(9) LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY
EDUCATION, Defendant Below
9
black institutions, through strengthening existing aca-
demic programs, lecating new high-demand, high-cost
academic programs, and improving physical facilities. It
provided for monitoring progress under the Decree and
for reporting to the court. With respect to governance,
it left the boards intact, and provided that the Regents,
Trustees, and LSU Boards be desegregated to “approxi-
mately reflect the racial composition of the State’s popu-
lation,” but that the Southern Board would “reflect the
racial composition of the State’s population inversely.”
The Southern Board’s present make-up complies with this
requirement.
Part III of the Consent Decree, headed “Effect of De-
cree” stated that it “. . . resolves all issues in contention
between plaintiff and defendants in this lawsuit relating
to compliance with and enforcement of the Fourteenth
Amendment and Title VI.” Further, Part III states in
paragraph B: “The defendants’ compliance with this
Decree, or any modification thereof, as between the par-
ties, shall be deemed compliance with the Fourteenth
Amendment and Title VI as to all matters addressed
hereunder this Decree.” Appendix hereto, p. 234a.
The court retained jurisdiction to assure implementa-
tion of the Consent Decree. The court’s jurisdiction, how-
ever, ended and the Consent Decree terminated on Decem-
ber 31, 1987, unless, the plaintiff or another party by
motion “requests this Court to conduct a hearing for the
purpose of determining whether the defendants have fully
implemented all provisions of this Decree and are operat-
ing the system of public higher education on a unitary
basis.”” Appendix hereto, p. 235a.
On December 29, 1987, the plaintiff, the United States,
filed the contemplated motion, contending that the Con-
sent Decree had not been effectively implemented, and
requesting a hearing at which such determination could
be made, appendix, p. 267a, infra. On December 31,
1987, appellant joined in appellee’s motion, p. 560a,
infra. Yet, the court never held a hearing on these
motions,
_—_—aa sl
10
In refusing to do so, the court relied upon Part IV,
Paragraph E of the decree, which states:
Should this court determine at the time of the hear-
ing that any provision of the Consent Decree has not
been effectively implemented or that the defendants
are not operating the system of public higher educa-
tion in a manner consistent with the goals and ob-
jectives of this Decree, this court shall enter such
orders as are necessary to provide additional or fur-
ther relief as is appropriate and shall retain juris-
diction. until] such implementation has been accom-
plished. Appendix hereto, p. 236a.
The court read the words of Paragraph E “to provide
additional or further reiief as is appropriate” to mean
that “this Court may find that the decree has failed in
its purpose and thus may craft a remedy as if no decree
had ever been made.” 692 F.Supp. at 649, appendix
hereto, p. 15a.
Finally, the Consent Decree established a compliance
standard. It required the parties to make a “good faith”
effort to achieve and implement its goals and commit-
ments. Appendix hereto, p. 237a. The goals of the Decree
were “not to be construed as quotas and therefore the
failure to achieve any goal” would “not in itself consti-
tute non-compliance” with the Decree. Appendix hereto,
p. 237a. Parties were also permitted, where required ac-
tions were not feasible, to pursue reasonable alternatives,
or, in some cases, to move for relief from the obligation.
Appendix hereto, p. 237a. An Addendum to the Consent
Decree and an Amendment to the Addendum were
adopted by the court in September of 1982 and May of
1983, containing substantially the provisions of the prin-
cipal Decree, but applying to the Shreveport, Louisiana
area institutions.
Instead of determining compliance with the Consent
Decree, the court, in a Minute Entry of March 30, 1988,
directed the parties to file summary judgment motions
on the issue of whether a racially dual system existed
11
in Louisiana. At the court’s direction, motions for sum-
mary judgment were filed by the United States, the Board
of Regents, and by the Bossier Parish School Board.
On August 2, 1988, the motion of the United States
was granted and the defendants held liable for violation
of Title VI. While not deciding upon a remedy, the
court suggested one, then warned in its opinion that “a
drastic change” might be required to remedy the remain-
ing vestiges of the former de jure segregated system,
ie., the racial identifiability of the State’s colleges and
boards, appendix, p. 3a at 35a. The district court’s sug-
gested remedy strongly resembled political proposals of-
fered by the State’s governor, but rejected by the state
legislature, appendix, pp. 834a-853a. The governor of-
fered these proposals, not for desegregation purposes, but
rather, for “reform purposes,” appendix, pp. 1001a-1022a.
On October 19, 1988, appellant filed a motion for an
evidentiary hearing and reurged its demand for a deter-
mination of Consent Decree compliance, appendix, p.
569a. The district court denied the motion and required
the parties to fashion a remedy acceptable to the court,
appendix, pp. 577a and 579a.
The parties tried unsuccessfully to reach accord on a
voluntary remedial plan. Thereafter, on December 2,
1988, the court appointed a Special Master to develop a
plan. The Special Master entered his “Recommended Re-
medial Plan” on April 18, 1989. On May 30, 1989, the
Special Master submitted to the court his “Final Report”
embodying his suggested remedy to desegregate Louisi-
ana’s higher education system, which remedy tracked
that suggested by the court in its August 2 Opinion.
Appellant and other parties below, particularly appellee
herein, filed extensive objections to the Special Master’s
initial and final recommendations. Appendix hereto, pp.
582a-617a and 721la-733a. Nonetheless, the district court
issued a judgment on July 19, 1989, adopting most of the
recommendations of the Special Master.
12
As presaged by the court, the remedy it ordered was
drastic indeed. For the first time, the court declared
Louisiana’s governance structure and its higher educa-
tion system unconstitutional, based on the Fourteenth
Amendment. It required that within thirty days of the
entry of its order “the four boards currently governing
public higher education in Louisiana shall be disbanded
and their powers consolidated into a single State govern-
ing board.” The court gave this new board “ultimate au-
thority over academic, budgetary, personnel and admin-
istrative affairs of each public institution currently
overseen by the Board of Trustees, the Southern Super-
visors, and the LSU Supervisors.” Appendix hereto, p.
63a. The court also gave the board the special mission
of monitoring and implementing the court’s remedial plan
and of insuring progress toward eliminating Louisiana’s
racially dual system.
The court set the size of this judicially created board
at seventeen members, plus one non-voting student mem-
ber; fixed the term of office of its members; established
the appointing authority; provided for staggered terms;
set certain qualifications for board members; reserved
to itself the right to appoint members to the board, un-
der certain circumstances, and, in any event, to veto its
composition or any appointee thereto; empowered the
board to appoint a president and an interim president to
run the system and called for a substantial administra-
tive staff whose qualifications it also set; and mandated
advisory boards for each college, appendix hereto, pp.
63a-66a. In setting up the board, the court rejected a
finding of the Special Master that a specific racial make-
up of the board, seven black members out of seventeen,
was necessary to protect the interests of historically black
colleges and black students. Appendix hereto, p. 53a.
The district court structured the State’s colleges into
a hierarchical tier, establishing a flagship/research uni-
versity, several doctoral and graduate program institu-
tions, and comprehensive institutions. With respect to
13
each tier, the court prescribed selective or open admission
standards. For the new selective institutions, the court
provided for a rule of ten percent admissions exceptions
for other-race students, principally because of its con-
cern for the negative effect selective admissions might
have on black students. Indeed, the court decreed an end
to the traditional system of open admissions to all State
universities, in effect, limiting present student choice and
set deadlines for the adoption of new admission standards.
It also limited the availability of remedial education pro-
grams in the State’s four-year colleges, which programs
principally assist in the college education of black stu-
dents. Appendix hereto, pp. 56a, 67a and 7la.
The district court also ordered the establishment of a
new comprehensive community college system, beginning
with the State’s four existing two-year institutions, and
its vocational schools, and then expanding into other areas
of the State with the creation of new community colleges,
It set the requirement for the system’s administrative
head and for his qualifications and mandated admission
standards.’ Appendix hereto pp. 70a-71a.
3 These remedies are less than obvious desegregation tools. Mr.
Justice Holmes has stated in another context, “a page of history
is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S.
345, 349, 41 S.Ct. 506, 507 (1921). Here, literally volumes of
history show the irrelevance of the district court’s remedies to
desegregation. For instance, Florida has had a sircle governance
board since 1905 (Florida Statutes, Title 16, Section 240.205;
Florida State Constitution, Article 9, Section 1); Georgia, since
1931 (Georgia State Constitution, Article 8, § 4); and Mississippi,
since 1910 (Mississippi Statutes, 37-101-3, et seq.; Mississippi Con-
stitution, Article 8, § 2134, et seq.) Yet each was charged by HEW
and/or the U.S. Department of Justice with Title VI violations, as
was Louisiana, a multi-board state. What these states historically
had in common was not their governance structures, but their
official policies and practices of racial discrimination. No state
has ever adopted a single governance structure as a desegregation
remedy, nor selective admissions, nor a community college system;
and the United States did not seek nor support this remedy here.
Compare Milliken v. Bradley, 433 U.S. 289, 297, 97 S.Ct. 2749,
2757-2758 (1977) (Milliken II) (requiring remedies to be related to
desegregation).
ne
14
Although the Southern University Law Center is ad-
mittedly integrated—with a student body that is 58 per-
cent black and 42 percent white, and a faculty that is 50
percent black and 50 percent white—the court ordered its
elimination and merger into the LSU Law Center, where
less than one percent of the student body is black. The
court justified this order on the grounds that: (1) the
merger would eliminate program duplication, a claimed
impediment to desegregation, and (2) the percentage of
Southern graduates who passed the state bar examination
on their first attempt demonstrated that Southern’s was
an “inferior law school,” producing “a secondary class
of lawyers unable to compete fully in the professional
context.” No evidence was adduced at trial to support
these conclusions or this merger. No notice or opportunity
for a hearing was given to the parties of the court’s in-
tention in this regard. The Special Master specifically
recommended against merger of the law centers or any
other institutions.
The court ordered funding to improve the quality of
the State’s predominantly black universities, but only
“whenever fiscally possible”, a standard left undefined.
And it required its newly crtated board to develop a pro-
gram of “financial incentives” for institutions meeting or
exceeding board-established desegregation goals, and “re-
verse incentives or taxes” for those consistently failing
to meet their goals. Appendix hereto, p. 75a.
The court established a monitoring committee to evalu-
ate the progress of the new board and of each institution
toward “specific compliance” with its Order. The court
also appointed members to the specific monitoring board,
including a Dr. Paul Murrill, a former Chancellor of LSU
and A&M College. The court cloaked the monitoring com-
mittee with authority to recommend appointees to the
governance board in certain cases. The court ordered that
if the governance board did not “achieve substantial
progress toward eliminating the racial identifiability of
Louisiana’s universities” within five years, then the moni-
15
toring committee was mandated “to recommend to the
court more direct solutions, including court appointment
of board members or direct control by the committee of
the system of higher education and merger of institu-
tions.” Neither the term “substantial progress” nor
“racial identifiability” were defined in this context. How-
ever, the court retained “continuing jurisdiction to take
appropriate action” to enforce its Order. Appendix hereto,
pp. 76a and 77a.
On July 31, 1989, appellant, the Grambling State Uni-
versity Alumni Association, and appellee filed post-trial
motions variously for a new trial, to amend or alter
judgment, or to have the court’s judgment reconsidered,
appendix hereto, pp. 734a, 779a, and 785a. Additionally,
appellant filed a motion to stay the district court’s judg-
ment. On August 2, 1989, the State of Louisiana,
through its Attorney General, joined in appellant's mo-
tions. On August 4, the district court denied the motion
to stay, and issued a “Supplemental Order,” granting in
part and denying in part the post-trial motions of the
several parties in an effort “to obviate any ambiguity or
uncertainty” contained in its Judgment of July 19, 1989.
Its August 4 Order provided measures to desegregate in-
institutional staffs and administrators. It ordered the
State’s four governance boards to “cease operation .. . no
later than thirty (30) days from entry of the court’s
Order of July 19”; and limited the period of the effect
of its Order to December 1994, appendix hereto, pp. 105a-
108a.
On August 18, 1989, this Court granted appellant’s
and the State of Louisiana’s applications for a stay of the
enforcement of the district court’s judgment in this mat-
ter pending the timely docketing of this appeal and the
final disposition of this case, appendix hereto, p. 2a.
THE QUESTIONS ARE SUBSTANTIAL
The appropriate standards for crafting a desec -egation
remedy in the context of a higher education case, brought
under the Fourteenth Amendment and Title VI, presents
16
a novel and substantial question. It has never been ad-
dressed by this Court.
Appellant asserts that the controlling remedial stand-
ards are embodied in the Revised Criteria Specifying the
Ingredients of Acceptable Plans to Desegregate State
Systems of Public Higher Education, 43 Fed. Reg. 6658
(February 15, 1978). The Criteria were promulgated by
the then Department of Health, Education and Welfare
(HEW), and are now administered by the Department
of Education. Thus, they represent the agency’s inter-
pretation of Title VI compliance standards, as Congress
has specifically required the agency to interpret the laws
its administers. The agency’s interpretation of this law
is a duty reposed to the agency by Congress and is bind-
ing upon courts, according to recent Supreme Court cases.
NLRB v. United Food and Commercial Workers Union,
Local 23, AFL-CIO, US. , 108 S. Ct. 426
(1987); Young v. Community Nutrition Institute, 476
U.S. 974, 106 S.Ct. 2860 (1986); Chevron U.S.A., Ine. v.
Natural Resources Defense Council, Inc., 467 U.S. 837,
843, 104 S.Ct. 2778 (1984); Ford Motor Credit Co. v.
Milhollin, 444 U.S. 555, 100 S.Ct. 790 (1980); Batterton
v. Francis, 482 U.S. 416, 425-26, 97 S.Ct. 2899 (1977).
See also Adams v. Bell, 711 F.2d 161, 165 n.28, 29 (D.C.
Cir. 1983), cert. denied, 465 U.S. 1065, 104 S.Ct. 1272
(1984); Adams v. Califano, 480 F. Supp. 118 (D.D.C.
1977) (Order, 480 F. Supp. at 121). See also Adams v.
Richardson, 356 F. Supp. 92 (D.D.C. 1973), modified and
aff'd per curiam, 480 F.2d 1159, 1164-1167 (D.C. Cir.
1973).
Similarly, in Singleton v. Jackson Municipal Separate
School District, 348 F.2d 729 (5th Cir. 1965), the Fifth
Circuit ordered the district court to apply HEW Criteria
developed for elementary and secondary schools. The ap-
peals court recognized that, in enacting Title VI and in
requiring such promulgations, Congress intended a uni-
form national policy in desegregation cases, and enforce-
ment of that policy by a national agency under nationally
17
applicable guidelines. See also United States v. Jefferson
County Bd. of Ed., 372 F.2d 836 (5th Cir. 1966) aff'd
en bane, 380 F.2d 385 (5th Cir. 1967), cert. denied, 386
U.S. 1001 (1967); Price v. Denison Indepedent School
District Bd. of Ed., 348 F.2d 1010, 1015 (5th Cir. 1965) ;
K. Saunders, Agency Interpretations and Judicial Re-
view: A Search for Limitations on the Controlling Effect
Given Agency Statutory Constructions, 30 Ariz. L. Rev.
769, 770, 800 (1988).
In the instant case, the district court held that the
Criteria applied “only during the voluntary compliance
period” and were “not intended to be applied by courts
adjudicating Title VI violations,” appendix, p. 85a. Thus,
it refused to accord the Criteria any weight whatsoever.
This Court should decide whether there will be uniform
national legal standards regarding higher education de-
segregation remedies, or ad hoc district by district court
articulation of such standards to enforce Title VI. Uni-
form enforcement of the Equal Protection Clause through-
out the United States is one of the chief benefits of Title
VI. Therefore, Title VI compliance requirements should
not differ from state to state nor should they differ de-
pending upon whether compliance is voluntary or not.
The district court’s remedy strikes down provisions of
Louisiana’s Constitution of 1974 and the numerous State
laws that implemented them; eliminates a productive, his- -
torically black professional school; and re-writes, as would
a legislature, broad new chapters of higher education law
for the State. In contrast, the Criteria provide a far less
intrusive remedy.
Even without reference to the court’s disregard of the
Criteria, the sweeping remedial scheme it fashioned was
overly broad, presenting a substantial federal question.
The district court was required to narrowly tailor its rem-
edy to fit the violation of rights involved. It would be jus-
tified in striking Louisiana’s laws as unconstitutional only
where it was necessary to do so to cure the violation. The
18
least intrustive remedy was required to be employed. City
of Richmond v. J. A. Crossen Company, U.S. —,
109 S. Ct. 706 (1989); Dayton Bd. of Ed. v. Brinkman,
433 U.S. 406, 99 S.Ct. 2766 (1978); Milliken v. Brad-
ley, 418 U.S. 717, 744, 94 S.Ct. 3112, 3127 (1974) (Mil-
liken I); Whitcomb v. Chavis, 403 U.S. 124, 160-161,
91 S.Ct. 1858, 1877-78 (1971); Swann v. Charlotte
Mecklenburg Bd. of Ed., 402 U.S. 1, 16, 91 S.Ct. 1267,
1276 (1971); Pasadena City Bd. of Ed. v. Spangler, 427
U.S. 424, 484 (1976); and Rizzo v. Goode, 423 U.S. 362,
377 (1976); Columbus Bd. of Ed. v. Penick, 439 U.S.
1348, 1853, 99 S.Ct. 24, 26-27 (1978). See also Sixty-
Seven Minnesota State Senate v. Beens, 406 U.S. 187,
92 S.Ct. 1477 (1972) (A federal reapportionment court
should accommodate the relief ordered to the appropri-
ate provisions of State statutes relating to the legisla-
ture’s size as far as possible; drastically changing the
size of the State senate and the size of the house of repre-
sentatives of the legislature is not required by the federal
Constitution and is not justified as an exercise of federal
power). Cf. Chayes, Foreword: Public Law Litigation
and the Burger Court, 96 Harv. L. Rev. 4, 49 (1982).
This is particularly true in education cases, where the
Supreme Court has shown increasing reluctance to allow
federal courts to trench on the prerogatives of State and
local educational institutions, but instead leaves public
education, insofar as constitutionally possible, under the
control of state and local authorities. Regents of the Uni-
versity of Michigan v. Ewing, 474 U.S. 214, 226, 106 S.Ct.
507, 513 (1985); Columbus Bd. of Ed. v. Penick, 443
U.S. 449, 465 (1979); Board of Curators of the Univer-
sity of Missouri v. Horowitz, 485 U.S. 78, 90 (1978) ;
Keyes v. School District No. 1 Denver, Colo., 413 U.S.
189, 213 (1973); Alabama State Teachers Association
(ASTA) v. Alabama Public School and College Authority,
289 F. Supp. 784, 788 (M.D. Ala. 1968) (Three-Judge
Court), aff'd per curiam, without written opinion, 393
U.S. 400, 89 S. Ct. 68 (1969); Epperson v. Arkansas,
393 U.S. 97, 104 (1968).
19
In the instant case, the district court could have at-
tacked the offending “racial identifiability” it found in
the governance boards by specific orders requiring a given
racial make-up, and specific orders respecting attracting
other-race faculty and students, leaving to state authori-
ties the details of bringing the state into compliance, if a
valid constitutional violation were found. Ruiz v. Estelle,
650 F.2d 555 (5th Cir. 1981), cert. denied, 460 U.S. 1042
(1983). Thus, there is no geometric fit between the rem-
edy of a single board or the other restructuring ordered
and the claimed violation of racially identifiable boards
and institutions.
Speculation by the Special Master, later adopted by the
court, that under a single board funds would be “freed
up... presumably to aid in the desegregation process”;
that it is “sensible that efficient decisions [of a single
board] might aid in desegregation”; and that while the
“improvement” in desegregation in Florida under a single
board is a “predictive”... “but by no means implausi-
ble’ judgment for Louisiana, is too weak a support
to dismantle a system of governance, admissions, and
organization adopted fourteen -years ago, subsequent to
the de jure segregative actions of the State. Appendix
hereto, p. 658a.
Application of the Criteria or the prevailing jurispru-
dence to this case would not have required or permitted
the elimination of the Southern University Law School.
The Criteria declare a “unique role” for “traditionally
black colleges.” They command that historically “white
and black institutions are to function as part of a unitary
system free of the vestiges of state-imposed racial segre-
gation” appendix hereto, pp. 87la, 878a. To disestablish
the dual structure, the Criteria require a given State or
agency to “specify steps to be taken to strengthen the
role of traditionally black institutions in the state sys-
tem.” * As a desegregation goal, the Criteria seek more
4 As to the unique role of historically black colleges in the edu-
cation of the historical victims of discrimination, see Brief of
20
and better-trained minority group doctors, lawyers, engi-
neers, and other professionals.
The court-ordered merger jeopardizes Southern’s proven
capacity to produce qualified black lawyers in return for
the uncertain prospect of a judicially perceived greater
quality institution. Besides, the court’s reasoning is a
non sequitur. Law graduates who do not pass the oar
do not become attorneys. If bar passage is the stan/lard
of quality, then, can Southern law graduates who pass
the bar be denominated a secondary class? Must they not
be presumed equal in competence to other lawyers who
pass the bar? Are they not, therefore, fully able to com-
pete in the professional context? To condemn those
Southern graduates who become attorneys simply because
they graduated from Southern is to ask, as Nathaniel did
of Philip respecting Jesus Christ; “Can anything good
come out of Nazareth?”—an unfounded and unreasonable
Amicus, National Association for Equal Opportunity in Higher
Education, filed and referenced in Adams v. Richardson, 480 F.2d
1159, 1164-1165 (D.C. Cir. 1973), appendix, pp. 975a-984a. The brief
argues, inter alia, that equal educational attainment—achieving
college degrees—not just equal access, is a goal of Title VI and
the Fourteenth Amendment. See also “Statement by the National
Associatior for Equal Opportunity in Higher Education,” appendix,
pp. 976a, 985a-987a.
In Adams, the court stated:
The problem of integrating higher education must be dealt
with on a state-wide rather than a school-by-school basis. Per-
haps the most serious problem in the area is the lack of state-
wide planning to provide more and better trained minority
group doctors, lawyers, engineers and other professionals. A
predicate for minority access to quality post graduate pro-
grams is a viable, coordinated statewide higher education
policy that takes into account the special problems of minority
students and of black colleges. As Amicus points out, these
black institutions currently fulfill a crucial need and will con-
tinue to play an important role in black higher education,
21
question, then and now.’ The Criteria suggest that im-
proving the quality of the already desegregated histori-
cally black law school, if indeed necessary, would more
effectively assist black citizens to overcome the effects of
de jure segregation, one of which is a paucity of black
lawyers.®
The Southern Law Center was sua sponte ordered
closed without a hearing and without regard to proper
legal standards, in violation of the procedural and sub-
stantive due process rights of appellant and of the law
center’s faculty and students. Cleveland Bd. of Ed. v.
Loudermill, 470 U.S. 2532 (1985); Meyer v. Nebraska,
262 U.S. 390 (1923); Pierce v. Society of Sisters, 268
U.S. 510 (1925) ; Cf. Dartmouth College v. Woodward, 4
Wheat 512 (1819). “Audi alteram partem—hear the
other side!—a demand made insistently through the cen-
turies, is now a command spoken with the voice of the
Due Process Clause.” Caritativo v. California, 357 U.S.
549, 558 (1958) (Frankfurter, J., dissenting). Earl v.
McVeigh, 91 U.S. 503, 510 (1876). This is a principle
of universal obligation. See also Baier, Framing and
Reviewing a Desegregation Decree: Of the Chancellor’s
Foot and Fifth Circuit Control, 47 La. L. Rev. 123, 138
(1986).
The district court’s finding of a constitutional infirm-
ity because the State maintains in the same city two
5 See John 1:46
“And Nathaniel said to him, can anything good come out of
Nazareth? Philip said to him, come and see.”
Only a court that indulges the notion espoused by certain parties
to this cause that a predominantly black law center is necessarily
inferior could, on the basis of such a fleeting glimpse at the
Southern Law Center as the court below had in this case, confirm
its inferiority. As with Philip, the district court was required
to “come and see” in the form of a hearing and supporting record,
to avoid making, as here, an uniformed judgment.
6 Virtually all of Southern’s law graduates pass the bar exam,
although not on the first attempt, appendix, p. 860a.
_—
22
law schools with different admission standards and dif-
ferent orientations is not supported on the record, and is
an impermissible tampering with the State’s valid educa-
tional choices.’
The Criteria also recognize, and the Special Master
specifically found below, that the enhancement of pre-
dominantly black institutions (PBIs) is an essential in-
gredient of a plan to desegregate higher education. In
the light of a clear record, the Special Master ordered
that a percentage of the State’s operating and capital
budgets be set aside each year to enhance PBIs. Under
Rule 52 of the Federal Rules of Civil Procedure, this
finding should have been implemented by the court since
it was not “clearly erroneous.” This reasoning also ap-
plies to the Special Master’s finding that merger of the
Southern Law Center into the LSU Law Center was not
justified on the record. See Day v. Wayne County Bd. of
Auditors, 749 F.2d 1199 (6th Cir. 1984) ; NLRB ». South-
western Bell Telephone Co., 730 F.2d 166, 168 (5th Cir.
1984) ; See also Criteria, I1(B), appendix hereto, p. 875a.
The vague and unclear order of the court to provide en-
hancement funding whenever fiscally possible, violates
both the specificity requirements of Fed. R. Civ. P.
65(d), and the well-stated rule that a State’s fiscal pos-
ture may not be taken into account in fashioning a de-
segregation remedy. See, Liddell v. Missouri, 731 F.2d
1294, 1820 (8th Cir. 1984), cert. denied, 469 U.S. 816,
7Indeed, the record argues otherwise. Two distinguished law
school deans, Peter Hay, Associate Dean of the University of
Illinois School of Law, and Charles Meyers, Dean of Standford
Law School, visited Louisiana law schools, including Southern
University Law Center, and rendered a report to the State Board
of Regents on legal education in Louisiana. This Report was
attached to Chancellor B. K. Agnihotri’s witness statement sub-
mitted to the Special Master which was before the district court.
See appendix, infra, pp. 1030a-1038a. These distinguished legal
educators concluded that: “[I]t is essential for the well-being of all
the people of Louisiana, not just the blacks, for Southern University
Law School to remain in existence and to grow in size and strength.”
Appendix, infra pp. 1044a-1045a and 1047a.
23
105 S.Ct. 82 (1984) ; Atiyeh v. Capps, 449 U.S. 1312, 101
S.Ct. 829 (1981); and Williams v. Edwards, 547 F.2d
1206, 1213 (5th Cir. 1977), presenting other substantial
federal questions. Further, the district court’s failure to
specifically limit the term of its continuing jurisdiction,
and the basis on which it is empowered to act to fashion
new or additional remedies; as well as the failure to
define the terms “substantial progress” and “racial iden-
tifiability,” also violate Fed. R. Civ. P. 65(d).
Similarly, the court below condemned the Consent
Decree—the parties’ voluntary settlement of their dis-
pute, and their voluntary acceptance of a remedy—
without a hearing, even though a hearing was mandated
by the Consent Decree itself. The court simply eye-balled
the racial make-up of the colleges and boards—a test not
permitted by the terms of the Decree—and concluded that
the Decree had not and could not work, appendix hereto,
pp. 34a-35a. It also made unsubstantiated and incorrect
findings related to Consent Decree implementation, ap-
pendix hereto, pp. 35a, 572a-573a. The remedy imposed
by the district court’s judgment was thus unnecessary,
overriding the existing final judgment on remedy already
entered in the case. See Firefighters Local Union No.
1784 v. Stotts, 467 U.S. 561, 590-591, 104 S.Ct. 2576,
2594-2595 (1984) ; United States v. Swift & Co., 286 U.S.
106, 115-117, 52 S.Ct. 460, 462-463 (1932).
The Decree operated as a judgment, whether a predi-
cate violation of Title VI or the Fourteenth Amendment
existed, or whether its remedies were broader than legally
required. Local Number 93, International Association of
Firefighters v. City of Cleveland, 54 U.S.L.W. 5005,
5009-5010 (U.S. July 2, 1986). Since the scope of a consent
decree must be discerned within its four corners, the dis-
trict court clearly exceeded its jurisdiction when it con-
sidered the question of liability under Title VI and the
Fourteenth Amendment, and when it fashioned an en-
tirely new remedy. United States v. Armour & Co., 402
U.S. 673, 682, 91 S.Ct. 1752, 1757 (1971) ; United States
24 Sa
v. Atlantic Refining Co., 360 U.S. 19, 23, 79 S.Ct. 944,
946 (1959); and Hughes v. United States, 342 U.S. 353,
72 S.Ct. 306 (1952).
The district court’s strained reasoning that it had au-
thority under the cited language of the Consent Decree
to “provide additional or further relief as appropriate,”
disregards the obvious requirement that such a deter-
mination must be made “at the time of the hearing” on
Consent Decree compliance, pp. 12a-13a, supra, a hearing
that was never held. Even then, the Consent Decree al-
lows “additional or further relief as appropriate” only
to the extent necessary to insure its effective implemen-
tation.
No party argued, as the district court suggests, that
merely signing the Consent Decree rendered the State’s
system unitary, appendix hereto, p. 15a. But since the
Decree had been entered as a judgment consistent with
Title VI and the Fourteenth Amendment, a determina-
tion of compliance or not with its provisions was neces-
sarily the same as determining whether the system was
unitary. The court’s assertion that it could not enforce
Consent Decree-required remedies at a hearing held after
the December 31, 1987 termination date of the Decree,
even though the enforcement process of requesting a
hearing began prior to the termination date, is non-
sensical. Appendix, pp. 15a-16a. Its reliance on United
States v. Overton, 834 F.2d 1171, 1174, 1176 (5th Cir.
1987), is erroneous. In Overton, the parties’ Consent De-
cree (or stipulated agreement), unlike in the instant
case, had terminated before relief under it was sought.
Understandably, the Overton court could not enforce a
decree that had expired by its own terms. Here, the
plaintiff’s motion was timely filed, thus, in accordance
with the express provisions of the Consent Decree, ex-
tending its life and making its remedies enforceable at
a compliance hearing, appendix hereto, pp. 235a and
236a.
Although a final judgment, a consent decree must be
construed as a contract for enforcement purposes. United
25
States v. ITT Continental Baking Co., 420 U.S. 223, 238,
95 S.Ct. 926, 935 (1975). Thus, the district court lacked
the power to enter a new remedy, but could only enforce
the Decree by its terms. By its clear provisions, the Con-
sent Decree permitted the existence of both racially iden-
tifiable boards and institutions at the end of its term, as
long as the parties discharged their obligations in good
faith, pp. 202a and 237a, supra. The court’s disregard
of the Consent Decree thwarts a national policy favoring
voluntary resolution of Title VI claims, and discourages
settlement of desegregation cases—matters worthy of
consideration by this Court.
Even if the court would apply the Criteria to voluntary
compliance only, as the court below asserts, the Consent
Decree obviously represents voluntary compliance by the
parties. Therefore, the Criteria should have been applied
to this case for this further reason.
Additionally, the court’s requirements of selective ad-
missions, of a community college system, of reverse in-
centives for institutions failing to meet desegregation
goals, and of eliminating remedial education in senior
colleges, place disproportionate burdens on black students
and black institutions, in violation of the Criteria and
relevant jurisprudence.* The Criteria declare that the
8See Adams v. Richardson, 480 F. Supp. 118 (D.D.C. 1977),
where the court stated:
The process of desegregation must not place a greater burden
on black institutions or black students’ opportunity to receive
a quality public higher education. The desegregation process
should take into account the unequal status of black colleges,
and the real danger that desegregation will diminish higher
educational opportunities for Blacks. Without suggesting the
answer to this complex problem, it is the responsibility of
HEW to devise criteria for higher education desegregation
plans which will take into account the unique importance of
black colleges and at the same time comply with the congres-
sional mandate. Cf. Mayor and City Council of Baltimore v.
Matthews, 562 F.2d 914, 922 and n.7 (4th Cir. 1977); and
Mandel v. U.S. Dept. of HEW, 411 F.Supp. 542 (D.C. Md.
1976).
26
“transition to a unitary system must not be accomplished
by placing a disproportionate burden upon black students,
faculty or institutions or by reducing the educational op-
portunities currently available to blacks,” appendix hereto,
p. 837a. Selective admissions, particularly the unre-
strained use of ACT scores which the district court per-
mits, will unduly limit the number of black students at-
tending college. Apparently recognizing this fact, the
court ordered the institutions to reserve up to ten percent
of admissions as “exceptions.” But these exceptions them-
selves will introduce new burdens for black students,
labeling them as second class students.
The requirement of incentives and reverse incentives to
reward and to penalize institutions for progress in ac-
hieving desegregation goals overlooks the obvious fact
that historically black colleges can be expected to make
slower progress. The result will be that these schools,
which need more resources to desegregate, will get less;
and getting less they will be less successful in achieving
integration. The court’s threat of merger of racially
identifiable colleges at the end of the five year term of
the court’s order is, therefore, an ominous one-—portend-
ing the elimination of historically black colleges and their
productive capacity. And, contrary to the district court’s
conclusion, community colleges in the State of Florida
have increased burdens rather than opportunities for mi-
nority students in higher education, appendix hereto, pp.
916a-919a and 957a-974a.
In ASTA, supra, a three-judge court held that where a
State has eliminated de jure racial segregation, as long as
the State or its institutions deal with admissions, faculty
and staff in good faith, it discharges its affirmative duty
to dismantle the racially dual system on the college level.
289 F. Supp. at 790. The Supreme Court’s per curiam
affirmance in ASTA, 393 U.S. 400, 89 S.Ct. 681 (1969)
was a decision on the merits necessarily deciding the
ASTA holding and was, therefore, binding on the district
court. See Hopfmann v. Connolly, 471 U.S. 459, 105 S.Ct.
27
2106 (1985); Anderson v. Celebrezze, 460 U.S. 780, 784,
103 S.Ct. 1564, 1568, n. 5 (1983); Mandel v. Bradley,
432 U.S. 173, 176, 97 S.Ct. 2238, 2240 (1977). The dis-
trict court declined to follow this precedent. Cf. Ayers v.
Allain, 674 F. Supp. 1523 (N.D. Miss. 1987) appeal pend-
ing appeal docketed No. 88-4103 (5th Cir. argued May 1,
1989); Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct.
2281, 2289 (1975).
ASTA correctly recognizes that a State cannot assign
students to colleges as it can assign them to elementary
schools; a State, therefore, cannot be forced by a court
judgment to do something it has no power to do. Hence,
the relative degree of integrati.a of its colleges, without
more, does not determine whether the state has satisfied
its affirmative duty to dismantle a dual system.
The Sixth Circuit in Geier v. Alexander, 801 F.2d 799
(6th Cir. 1986) appears to reach a result opposite to that
of Ayers and ASTA, but in erroneous reliance on the
Supreme Court’s summary affirmance in Norris v. State
Council of Higher Education for Va., 327 F.Supp. 1368
(E.D. Va. 1971), aff'd per curiam sub. nom., Board of
Visitors of the College of William & Mary in Virginia v.
Norris, 404 U.S. 907, 92 S.Ct. 227 (1971). The Norris
court, unlike the court in ASTA, declined to “trace the
perimeter of a state’s obligation to dismantle all racial
characteristics of a system of higher education that was
initially segregated by law.” Norris’ holding, far from
reaching this monumental question, held simply “that one
agency of the state . . . cannot impede another agency of
the state . .. in its efforts to fully integrate its student
body.” 327 F.Supp. at 1373. Thus, Norris’ precedential
value is limited to that simple holding. The court below
misconstrued the Norris holding and incorrectly followed
it.”
* The hope expressed in Green v. County School Board of New
Kent County, 391 U.S. 430, 432, 88 S.Ct. 1689 (1968), for no
white or black elementary and secondary schools, “just schools,”
and the dictum in Norris, 1327 F. Supp. 1373 for “just colleges,”
28
Even if ASTA does not state the controlling law, as
appellant believes, then AS7'A and Ayers, on the one hand,
| and Norris and Geier on the other, present a conflict be-
tween lower courts and the circuits on this most substan-
tial national issue.
Further, the actions that the State agreed to un-
dertake and those that it did undertake under the
Consent Decree must be deemed affirmative steps to dis-
mantle the dual system, to the extent that such are de-
manded by the good faith requirement. The United
States and appellant have argued below that incompar-
able physical facilities at PBIs indirectly exclude cer-
tain white students and affect their free choice, and dis-
proportionately burden the choices of black students who
choose to attend PBIs. Thus, a part of the good faith
test, consistent with ASTA’s rule of unfettered student
choice, is the removal of any impediments to such choice
lingering from the dual system. A state may address this
problem through added resources or other action designed
to improve the integration and offerings of PBIs. The
emphasis here is not on “separate, but equal”, as the dis-
trict court incorrectly observed, since no racial separa-
tion is legally required; it is rather on ending racial sep-
aration through enhancement, appendix hereto, p. 33a.
Appellant believes this is a reasonable reading of ASTA’s
good faith standard, or at the very least, can be en-
do not necessarily argue that majority black public colleges offend
the Constitution. Appellant’s hope is that availing black and
white students of equal access and opportunity in the settings of
hisorically white and black colleges will permit colleges such as
are managed by appellant to be recognized as “just colleges’’—not
predominantly black or formerly all black—within the letter and
spirit of Green, supra.
Indeed, the Criteria commit States to the “goal of organizing
and operating the system and institutions of higher education in
a manner that promises realistically to overcome the effects of past
discrimination and to disestablish the dual system, and which
assures that students will be attracted to each institution on the
basis of educational programs and opportunities uninhibited by
past practices of segregation.” (Emphasis added.)
ee Te a
29
grafted upon the ASTA standard without derogating from
it—-presenting another important and unresolved federal
question.*°
The great weight of authority holds that the United
States may not maintain a claim strictly under the Fovur-
teenth Amendment. Yet, the district court permitted the
United States to do so and struck down Louisiana’s con-
stitution and laws as violative of the Fourteenth Amend-
ment, raising an additional substantial question. United
States v. State of Alabama, 828 F.2d 1532, 1547 (11th
Cir. 1987) (per curiam) (The United States conceded
that it had no standing to raise the Fourteenth Amend-
ment claim.), cert. denied, sub. nom. Board of Trustees
of Alabama State University v. Auburn, —— U.S. —~,
108 S.Ct. 1857 (1988) ; United States v. City of Philadel-
phia, 644 F.2d 187 (3rd Cir. 1980); United States v.
Mattson, 600 F.2d 1295 (9th Cir. 1979); United States
v. Solomon, 563 F.2d 1121 (4th Cir. 1977). Although
this Court has not ruled directly on this issue, based on
the uniform authority of the various circuits, only Title
VI claims were before the district court. Whether appel-
lee could raise Fourteenth Amendment claims is critical.
The district court’s expansive remedy is grounded in con-
stitutional violations, testing the limits of its equitable
powers. Title VI provides a more limited remedy, and
the court could not strike Louisiana’s laws as unconstitu-
tional if appellee could not raise constitutional claims. A
decision on Title VI grounds is distinct from an exercise
in constitutional interpretation. Regents of the Univer-
sity of California v. Bakke, 438 U.S. 265, 281, 98 S.Ct.
1° For instance, just to bring the physical facilities of Grambling
and Southern to a level of comparability with agreed upon histori-
cally white institutions, the State committed during the term of the
Consent Decree to spend $79 million in capital outlay at Southern
and $41 million at Grambling. How»ver, it spent only $14 million at
Southern and $16 million at Grambling in capital outlay funds
during this period. These disparities and the failure to fund
them are admitted on the record and must be dealt with in order
to afford a truly free choice to students, appendix hereto, p. 364a.
30
2738, 2748 (1978). Cf. U.S. v. State of Alabama, 791
F.2d 1450, 1456 n. 6 (11th Cir. 1986). Thus, the dis-
trict court’s findings of unconstitutionality of Louisiana’s
laws is ultra vires.
Furthermore, the district court should have decided the
case on statutory grounds or on the basis of the Criteria,
and avoided the constitutional question. Under well-
settled principles of judicial restraint articulated by this
Court, it was required to do so. Three Affiliated Tribes of
Ft. Bertole Reservation v. Wold Engineering, 467 U.S.
138, 104 S. Ct. 2267 (1984); Regents of the University
of California v. Bakke, 438 U.S. 265, 281, 98 S.Ct. 2733,
2743 (1978); Spector Motor Service v. McLaughlin, 323
U.S. 101, 65 S.Ct. 152 (1944) ; and Ashwander v. T.V.A.,
297 U.S. 288, 347, 56 S.Ct. 466, 483 (1936).
CONCLUSION
For these reasons, this Court should note probable ju-
risdiction of this appeal.
Respectfully submitted,
WILLIAM J. JEFFERSON
Counsel of Record
TREVOR G. BRYAN
VINCENT P. BLANSON
JEFFERSON, BRYAN, JUPITER,
LEWIS & BLANSON
650 Poydras, Suite 1850
_New Orleans, LA 70130-6101
(504) 561-8933
I
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