Amicus Curiae Brief — Louisiana ex rel. Guste v. United States

Nos. 89-556, 89-557 and 89-771

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

STATE OF LOUISIANA, ex rel. WILLIAM J. GUSTE, JR..,

ATTORNEY GENERAL OF THE STATE OF LOUISIANA,

Appellant,

STATE OF LOUISIANA, ex rel. CHARLES E. ‘“‘BuppDyY’”’

ROEMER, GOVERNOR OF THE STATE OF LOUISIANA, ef al.,

Appellants.

BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY AND

AGRICULTURAL AND MECHANICAL COLLEGE,

Appellant,

Ni

UNITED STATES OF AMERICA,

Appellee.

On Appeal from the United States District Court

for the Eastern District of Louisiana

MOTION FOR LEAVE TO FILE AND

BRIEF OF THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC. AS AMICUS

CURIAE URGING DISMISSAL OF THE APPEAL

*JuLIuS LEVONNE CHAMBERS

CHARLES STEPHEN RALSTON

NORMAN J. CHACHKIN

JANELL M. Byrp

NAACP Legal Defense and

Educational Fund, Inc.

99 Hudson Street

16th Floor

New York, NY 10013

(212) 219-1900

Counsel for Amicus Curiae

*Counsel of Record

PREC OF RYRPON CC ADAM WACTHIINGE TON ml (9N91 947 Cana

In the

Supreme Court of the United States

October Term, 1989

Nos. 89-556, 89-557 and 89-771

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

General of the State of Louisiana;

State of Louisiana, ex rel. Charles E. "Buddy" Roemer,

Governor of the State of Louisiana, et al.;

Board of Supervisors of Southern University and

Agricultural and Mechanical College,

Appellants,

United States of America,

Appellee.

On Appeal from the

United States District Court

for the Eastern District of Louisiana

MOTION OF THE NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC. FOR LEAVE TO

FILE BRIEF AS AMICUS CURIAE URGING

DISMISSAL OF THE APPEAL

The NAACP Legal Defense & Educational Fund,

Inc., (LDF) respectfully moves the Court for leave to file

the attached brief as amicus curiae supporting the

position of the United States on the jurisdictional issue

addressed herein.

The following parties have consented to the filing of

this brief: the United States, the State of Louisiana (by

the Governor), the Supervisors of Southern University

A&M College, Board of Regents of the State of

Louisiana, the Louisiana Board of Trustees for State

Colleges and Universities, the Board of Supervisors of

Louisiana State University and A&M College, and the

Bossier Parish School Board. As of the time of filing this

brief the Attorney General for the State of Louisiana has

not granted consent.

LDF is a non-profit corporation organized under the

laws of the State of New York. it was formed to assist

'

i)

:

black citizens in securing their rights under the

Constitution."

This lawsuit raises important issues regarding the

dismantling of formerly dual systems of higher education.

LDF historically was involved in the major cases on this

question that have been decided by this Court, and based

on its experience believes that the law in this area should

be developed upon full consideration by the Court with

the benefit of intermediate appellate review in the Courts

of Appeals.

‘Further description of the interest of amicus LDF appears at

pages 2-5 of the attached brief, including a description of LDF's

history of involvement in school desegregation litigation.

We respectfully submit that LDF’s participation will

be of assistance to the Court.

Respectfully submitted,

‘s/ Norman J. Chachkin

*Julius LeVonne Chambers

Charles Stephen Ralston

Norman J. Chachkin

Janell M. Byrd

NAACP Legal Defense and

Educational Fund, Inc.

99 Hudson Street

16th Floor

New York, NY 10013

(212) 219-1900

Counsel for Amicus Curiae

*Counsel of Record

Question Presented

Whether the Court lacks jurisdiction to entertain

this direct appeal under 28 U.S.C. § 1253 where the case

was not required to be heard by a panel of three judges

because no state statute, law, or regulation was

challenged, sought to be enjoined, or actually was

enjoined on grounds of its repugnance to the

Constitution.

TABLE OF CONTENTS

Page

STE ios daececipn ndemennbesaininabasocebineceesention i

IE TITIES cs: caconessennesseenecossndssesenesnensosnouneonseosses iv

Interest Of The NAACP Legal Defense Fund As

i ol cen sbaepnaniinnabinndioes 2

PUMOBTIGTE OF FREISVATIE FACIE 2..ccccccesccescsecccccescecscszccsesoeces 6

1. Consideration Below Of The Jurisdictional

A Ae TRA RTT aS NA CEN 6

2. Allegations Of The Complaints Affecting

III sdnaesnvascocuessisntiiidesasdasnasnanhaosublinnadehiarens 8

3. Basis For The Relief Ordered Below......... 10

SUMMARY OF THE ARGUMENT ..............cccsseeee 12

la a acetic cisileaaliniil 14

A. The Court Lacks Jurisdiction To Entertain

This Direct Appeal Because The Case Was

Not Required To Be Heard By A Three-

Judge Court As No State Law Was

Challenged Or Enjoined On Constitutional

SIIITITIIT isibscipscescssenensniinamnanbesieddteintinntasiniaadestien

4

TABLE OF CONTENTS (continued)

ARGUMENT (continued

B. The Case Was Not Required To Be Heard

By A Three-Judge Court Because A Single

Judge Should Have Initially Resolved The

Statutory Claim And Obviate 1 Any Need

For A Three-Judge Court .0.........ccccccceseses

Ase UGE sanncicutaniiestonunaciselaacsaaeess mannan

a}

aa — Ns

TABLE OF AUTHORITIES

Page

Cases:

Adams v. Lucy, 228 F.2d 619 (Sth Cir.), cert

OE San Ble SOE CERIO) ccccnteretnccansctticennien 2

Adams v. Richardson, 356 F. Supp. 92 (D.D.C.

1973), modified and affd unanimously en

banc, 480 F.2d 1159 (D.C. Cir. 1973) ........2.. 2

Alabama Stat ache ssociati abama

ublic School and Colle

289 F. Supp. 784 (M.D. Ala. 1968), aff'd

per curiam, 393 U.S. 400 (1969) ........cesesereees 2

Alexander v. Fioto, 430 U.S. 634 (1977) .....scsseeeeee- 26

Allen v. State Board of Elections, 393 U.S. 544

|) eRe A aa ees 15

Bailey v. Patterson, 396 U.S. 31 (1962) .....cecseeserenees 18

Baxter v. Palmigiano, 425 U.S. 308 (1976) .... 12, 17, 18

Bradley v. School Board of City of Richmond,

324 F. Supp. 396 (E.D. Va. 1971) ........cseeeee0- 27

Brotherhood of Locomotive Engineers v. Chicago,

R.1. & P.R., 382 U.S. 423 (1966) ...........02002002. 25

o We

TABLE OF AUTHORITIES (continued)

Cases (continued):

Brown v. Board of Education, 347 U.S. 483 (1954) 2

Butler v. Dexter, 425 U.S. 262 (1976) wo.cccccccceeee 13, 18

Costello v. Wainwright, 430 U.S. 325

CRPPH D wanaisdduonsdadunssnimnetabitediadiamunianuaenadieun 12, 16, 17

Costello v. Wainwright, 539 F.2d 547 (Sth Cir.

SPOT da naaicieiiahinindiladiiaiiicadindiaticec ater aen carer tee ae 20

Florida Lime & Avocado Growers v. Jacobsen,

Pee Bes Ae CED scctbassistbeoieadaiamimenas 4, 25

Geier v. Alexander, 593 F. Supp. 1263 (M.D.

Tenn. 1984), aff'd, 801 F.2d 799 (6th

A RESTRIC Eat 2

Gonzalez v. Automatic Emplovees Credit

Union, 419 U.S. 90 (1974) ............ 4, 14,15, 25, 27

Hagans v. Lavine, 415 U.S. 528 (1974) ........ 13, 25, 26

MTM vy. Baxley, 420 U.S. 799 (1975) ... 8, 14, 24, 25, 27

McLaurin v. Oklahoma State Regents, 339 U.S. 637

SS TPUN \sistslaesaethamaneieebh chaniabaediaaaaaadtameuctacasematnaece, me

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Meredith v. Fair, 305 F.2d 343 (Sth Cir.),

cert. denied, 371 US. SZB (19GZ) ccccsrsccccsscssevess 2

Morales v. Turman, 430 U.S. 322 (1977) ............000 iz. a7

Norris v. State Council of Higher Education

for Virginia, 327 F. Supp. 1368 (E.D.

Va.), aff'd mem., 404 U.S. 907 (1971) ............ 2

Philbrook v. Glodgett, 421 U.S. 707 (1975) 0... 26

Phillips v. United States, 312 U.S. 246

CEE 16, 24

Rosado v. Wyman, 397 U.S. 397 (1970) oes 13, 25

Sweatt v, Painter, 339 U.S. GZF (1950) cccssescsssessessseves 2

Swift & Co. v. Wickham, 382 U.S. 111 (1965) ...... 16, 24

United States v. Louisiana, 543 F.2d 1125

CSUs CRe. BPD unaiaseseucsisataeviniianiulambincaniieicieain 6, 8, 28

United States v. Louisiana, 669 F.2d 314 (Sth

CAME, “ROTEL ) nniscssnctecisewichanseneontgetenneisamiaaaabaaedaaiiaiinias 8

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

United States v. Texas, 523 F. Supp. 703 (E.D.

I ec ee re 27

Weiser v. White, 505 F.2d 912 (Sth Cir. 1975) .......... 7

Constitution and Statutes:

See ic OE ERED ncdicrnantesiiisedscamecnoanninixvisasecuseniens 1, 8, 12, 14

I aici clisaia de aes tbs rcandenddsauisininiahdepaieiin 6, 7, 15

pO * ot Gh: SERNA UE An ERA me REE Rea 6

Act of August 12, 1976, Pub. L. No. 94-381, 90

ae ee eS 1, ) ee 7, 15

Pm ie. BBE Ort Te |. 5 ee 14, 29

Civil Rights Act of 1964, 42 U.S.C. §§ 2000d

WE ND sicticscnessccscncsscsasccsssscnscsscsssnscocsessnccscsonenescaseseess 1]

1974 Constitution of Louisiana, Article VIII,

| ety OC) Se be + gee FSW SS eT TN 21

- Vii -

TABLE OF AUTHORITIES (continued)

Page

Legislative Materials:

S. Rep. No. 94-202, 94th Cong., 2d Sess., 3-8,

reprinted in 1976 bs. Code Cong. & Admin.

Se RRR A POLE 24

In the

Supreme Court of the United States

October Term, 1989

Nos. 89-556, 89-557 and 89-771

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

General of the State of Louisiana;

State of Louisiana, ex rel. Charles E. "Buddy" Roemer,

Governor of the State of Louisiana, et al.;

Board of Supervisors of Southern University and

Agricultural and Mechanical College,

Appellants,

United States of America,

Appellee.

On Appeal from the

United States District Court

for the Eastern District of Louisiana

BRIEF OF THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC. AS AMICUS

CURIAE URGING DISMISSAL OF THE APPEAL

Interest Of “he NAACP Legal

Defense Fund As Amicus Curiae’

The NAACP Legal Defense and Educational

Fund, Inc. (LDF) is a non-profit corporation established

to assist black citizens in securing their constitutional and

civil rights. LDF historically has had and continues to

have a major role in litigation efforts challenging

discrimination and segregation in education.?

'The Legal Defense Fund supports the position of the United

States on the jurisdictional issue addressed herein.

See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954).

LDF represents plaintiffs in the litigation that resulted in the

initiation of desegregation efforts in public higher education systems

in 18 states, including the State of Louisiana. Adams v. Richardson,

356 F. Supp. 92 (D.D.C. 1973), modified and affd unanimously en

banc, 480 F.2d 1159 (D.C. Cir. 1973). Other LDF higher education

desegregation cases have included: Sweatt v. Painter, 339 U.S. 629

(1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950);

Adams v. Lucy, 228 F.2d 619 (5th Cir.), cert. denied, 351 U.S. 931

(1956); Meredith v. Fair, 305 F.2d 343 (Sth Cir.), cert. denied, 371

U.S. 828 (1962); Alabama State Teachers Association v. Alabama

Public School and College Authority, 289 F. Supp. 784 (M.D. Ala.

1968), affd per curiam, 393 U.S. 400 (1969); Norris v. State Council

of Higher Education for Virginia, 327 F. Supp. 1368 (E.D. Va.),

affd_ mem., 404 U.S. 907 (1971); Geier v. Alexander, 593 F. Supp.

1263 (M.D. Tenn. 1984), affd, 801 F.2d 799 (6th Cir. 1986).

-

Based upon this institutional commitment to the

ciliata of discrimination in education, LDF agrees

with the district court below that a state has not fulfilled

its affirmative obligation to dismantle its de jure racially

dual higher education system where substantial vestiges of

the de jure system persist, as the record demonstrates is

the case in Louisiana with respect to, inter alia, student

enrollment, employment of faculty and staff, distribution

and development of academic programs, financing, and

school facilities.* In light of this showing of a continuing

violation, LDF strongly supports the adoption of a

remedial plan adequate to assure that those victimized by

continuing racial discrimination and its effects are made

whole. Such a plan must formulate remedies that

promise to increase educational opportunities for the

3J.A. 291a-326a [United States’ List of Material Facts to the

Motion for Summary Judgment, filed May 13, 1988].

~

members of the class subjected to discrimination -- not

limit them -- and courts supervising the remedial process

must eschew ineffective or illusory remedies as well as

devices that may harm and disadvantage black students in

their attempts to surmount the dismal legacy of racially

discriminatory education.

By virtue of its active participation in higher

education desegregation suits, LDF has a significant

interest in the instant appeal, and in particular LDF has

a legitimate concern that the law in this area be

developed upon a record that is subject to comprehensive

review.4

4This Court has emphasized that intermediate appellate review

facilitates its consideration of important questions by helping to

narrow and refine issues and by allowing full development and

exploration of the legal theories underpinning a decision. See, ¢.g.,

Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 99

(1974) ("mediating wisdom of a court of appeals"); Florida Lime &

Avocado Growers v. Jacobsen, 362 U.S. 73, 92-93 (1960) ("dominant

principle of having this Court review decisions only after they have

gone through two judicial sieves") (Frankfurter, J., dissenting).

my en

0, ili Se Te See eR ee Eee ee Nees

Here, direct review from the district court’s

approval of the Special Master’s report is not only

contrary to law,° but also would be imprudent and likely

to impair this Court’s ability fully to consider and resolve

the weighty issues framed in the Jurisdictional Statements.

This case should first proceed in the Court of Appeals for

the Fifth Circuit® and, in order to aid this Court’s

eventual jurisdiction over this matter, the stay issued by

the Court should remain in effect during the pendency of

appellate proceedings.

SAs argued infra at 14-28, the three-judge court was not

"required" to hear this case and therefore the Court lacks jurisdiction

to entertain this appeal.

The appellants in this Court have all filed protective notices

of appeal to the United States Court of Appeals for the Fifth

Circuit.

"a

—S ae!

Statement of Relevant Facts

1. Consideration Below Of The Jurisdictional Issue

To date no court has given full consideration to

the propriety of empaneling a three-judge court in this

case. When the case was filed in 1974, the United States

requested that a three-judge court be convened pursuant

to 28 U.S.C. §§ 2281 and 2284 (J.A. 184a). Without

deciding the issue, the Chief Judge of the United States

Court of Appeals for the Fifth Circuit designated the

members of the special tribunal and directed that the

three-judge court itself determine if the case was properly

before it (J.A. 197a-98a). A three-judge district court was

empaneled on April 16, 1974’ but apparently failed to

consider or resolve the question put to it by the Fifth

Circuit.

7United States v. Louisiana, 543 F.2d 1125, 1126 (Sth Cir.

1976).

6

=.) a

Despite the fact that the three-judge court was

reconvened on three occasions after repeal of 28 U.S.C.

§ 2281 in 1976,° the propriety of the three-judge court

was not disputed, or even seriously addressed, by the

parties or the court prior to the instant appeal.°

However, in 1976 the Fifth Circuit exercised

jurisdiction over an interlocutory appeal from a ruling of

the three-judge district court in this case denying a

petition for intervention. In so doing, the Fifth Circuit

overruled its prior decision in Weiser v. White, 505 F.2d

912 (Sth Cir. 1975), requiring such appeals to proceed

directly to this Court. The decision was based upon this

Court’s narrowing of the scope of review of three-judge

See Act of August 12, 1976, Pub. L. No. 94-381, 90 Stat. 1119,

§ 7 (1976).

®The issue was addressed in passing in 1988: one sentence

appears in the district court opinion, without analysis or citation,

Stating simply that the request for a three-judge court had been

properly made in this case (J.A. 10a).

=, »

court cases under 28 U.S.C. § 1253, and in particular

upon MTM v. Baxley, 420 U.S. 799 (1975), where the

Court ruled that a direct appeal would lie only ee

order of the three-judge court rested on constitutional

grounds. Thus, the Fifth Circuit previously exercised

jurisdiction over an appeal from a non-constitutionally

based decision in this case in 1976 -- and it did so again

in 1981.'°

2. Allegations Of The Complaint Affecting

Jurisdiction

Neither the original Complaint filed in this case in

1974 nor the Amended Complaint filed in 1980 challenge

any state law, statute, or regulation as unconstitutional

(J.A. 153a-65a, 166a-81a). Instead, both allege that "acts

and practices" of state officials maintain and perpetuate

‘United States v. Louisiana, $43 F.2d 1125 (Sth Cir. 1976);

United States v. Louisiana, 669 F.2d 314 (Sth Cir. 1982)(denial of a

petition for intervention).

-8-

the dual system previously mandated by state law (J.A.

162a, 176a). Similarly, no request was made to enjoin

any state statute or law on grounds that it violated the

Constitution (J.A. 162a-63a, 177a).

The gravamen of the Complaint is a challenge to

state practices by multiple state officers acting under the

authority of state laws themselves left unchallenged.

Indeed, in its Memorandum in Support of The Request

for A Three-Judge Court, the United States expressly

acknowledged that its "Complaint . . . seeks relief . . .

which will enjoin the practices of the State of Louisiana

as applied and interpreted by the defendants and their

agents" (J.A. 193a-94a)(emphasis added). The "Complaint

alleges that the defendants and their agents have failed in

their affirmative duty to provide specific measures and

timetables to eliminate [the racial] dualism" (J.A. 195a).

3. Basis For The Relief Ordered Below

When, in 1981, the parties agreed on a settlement

and the court below approved it, no state statute, law, or

regulation was stricken or limited in enforcement (J.A.

199a-255a, 256a-66a).

Although in 1989 the State itself advocated a

remedial plan, which the court below approved, that

substantially restructured Louisiana’s higher education

system,’’ neither the State nor any other party contended

that the supersession of numerous existing provisions of

Louisiana law necessary to accomplish that goal should be

directed because any of such provisions were repugnant

to the federal Constitution."*

"See Appendix to Jurisdictional Statement of Governor

Roemer, at 25a-3la.

'€The Southern University Supervisors objected to the plan

(J.A. 721a-29a), and the United States "remain[ed] skeptical that the

record in this case [could] support the finding that a single board is

warranted or that it will enhance desegregation" (J.A. 603a; accord

(continued...)

-

‘ "

‘5 ¥ . 4

mMrinnuedc

VA shLaiiwVurse

, =~ T

tats .euer ’ ;

A | a Ihe State neve } x

lated the federa!] Constitution

'SWhile there is language in the d

invokes the Constitution as the basis for striking the m

system (¢.g., J.A. 45a), it is clear from the collective 1101

court, and emphasized in its Reasons for Ruling (August 4

(J.A. 84a), that the judgment below rested on Statut

Because it concluded that the substantive standard under

was the same as that under the Fourteenth Amendment ‘

22a, 24a), the court in its opinions referred to the C

Title VI interchangeably

:

:

SUMMARY OF THE ARGUMENT

The appeal from the district court’s decision must

proceed initially in the Court of Appeals for the Fifth

Circuit, not this Court. Because the case was not one

"required by any Act of Congress to be heard and

determined by a district court of three judges," the three-

judge court was improperly empaneled and therefore the

requirements for direct appeal under 28 U.S.C. § 1253

are not satisfied.

A three-judge court may be convened properly

under Section 2281 only if the complaint raises a federal

constitutional challenge to an identified state law or

regulation and requests that enforcement of the state law

or regulation be enjoined on the ground of its repugnance

to the federal Constitution. Morales v. Turman, 430 U.S.

322 (1977) (per curiam); Costello v. Wainwright, 430 U.S.

325 (1977) (per curiam); Baxter v. Palmigiano, 425 U.S.

-%.

tn LA

eS SS tS srs

308 (1976); Butler v. Dexter, 425 U.S. 262 (1976) (per

curiam). No such challenge was raised here (J.A. 153a-

83a.); thus, a three-judge court should never have been

empaneled and most assuredly should not have been

reconvened once it became clear that it had been

improperly empaneled at the outset.

Moreover, the correct procedure in cases raising

both constitutional and non-constitutional claims is to

have a single judge make an initial determination of the

statutory issues -- which may obviate the need to convene

a three-judge court. Hagans v. Lavine, 415 U.S. 528, 543-

44 (1974); Rosado v. Wyman, 397 U.S. 397, 403 (1970).

Had this procedure been fo!lowed in the instant case,

there would have been no need to convene a three-judge

district court.

This conclusion is bolstered by the fact that the

three-judge court here was convened and reconvened

-13-

ultimately to render a decision resting only on statutory

grounds, Title VI (J.A. 17a). The Court has held that a

three-judge court is not required in these circumstances.

MTM, Inc. v. Baxley, 420 U.S. 799 (1975); Gonzalez v.

Automatic Employees Credit Union, 419 U.S. 90 (1974).

This appeal should proceed in the Court of

Appeals for the Fifth Circuit and the stay issued by this

Court should, pursuant to the All Writs Act, 28 U.S.C. §

1651, remain in effect during the pendency of appellate

proceedings.

ARGUMENT

A. The Court Lacks Jurisdiction To Entertain This

Direct Appeal Because The Case Was Not

Required To Be Heard By A Three-Judge Court

As No State Law Was Challenged Or Enjoined on

Constitutional Grounds.

The Jurisdictional Statements rely on 28 U.S.C. §

1253 as the basis for this Court’s jurisdiction of these

_

appeals. That section allows direct appeals to this Court

from an order granting or denying an interlocutory OF

permanent injunction in any civil action "required by any

Act of Congress to be heard and determined by a district

court of three judges." (Emphasis added.) This Court's

appellate jurisdiction under Section 1253 turns on

whether the three-judge court was correctly convened."4

1. Appellants apparently contend that 28 U.S.C. §

2281 required this case to be heard by three judges."

14Gonzalez v. Automatic Employees Credit Union, 419 U.S. at

95 n.12.

15section 2281 was repealed by Congress in 1976 but remains

applicable to actions commenced before the date of repeal. Act of

August 12, 1976, Pub. L. No. 94-381, 90 Stat. 1119, § 7 (1976). It

provided that

an interlocutory or permanent injunction restraining

the enforcement . . . of any State statute... shall

not be granted by any district court OF judge thereof

upon the ground of unconstitutionality of such

statute unless the application therefore is heard

and determined by a district court of three judges.

The statute is to be strictly construed. Allen v. State Board of

(continued...)

- 15 -

However, this Court has unanimously held that Section

2281 required a three-judge court only where the initial

pleadings framed a chalienge to a specific state law

provision on constitutional grounds'’® and requested an

injunction against enforcement of an identified state law

or regulation on constitutional grounds.

In Costello v. Wainwright, 430 U.S. 325 (1977)

(per curiam), the Court held:

The applicability of § 2281 as written turns

on whether a state statute is challenged to

be unconstitutional, not on whether an

equitable remedy for unconstitutional state

administrative behavior ultimately impinges

on duties imposed under _ concededly

constitutional state statutes.

13(. continued)

Elections, 393 U.S. 544, 561 (1969); Phillips v. United States, 312

U.S. 246, 251 (1941).

‘The challenge must be based upon a provision of the

Constitution other than the Supremacy Clause. Swift & Co. v.

Wickham, 382 U.S. 111 (1965).

a ee ee Oe eee

Id. at 326.17 Likewise in Morales v. Turman, 430 US.

322 (1977) (per curiam), the Court emphasized that the

threshold requirements for cofyening a three-judge court

must be satisfied in the complaint, which must contain (1)

a specific challenge to a state statute, rule or regulation,

and (2) a request for an injunction against the

8 In rendering this

enforcement of an identified law."

holding in Morales, the Court relied on a decision

reached a year earlier in Baxter v. Palmigiano, 425 US.

308 (1976).'2 Morak 430 U.S. at 323 (citing Baxter,

17In Costello this Court rejected the contention that a three-

judge court was required because equitable relief for prison

overcrowding might require suspending or superseding a state statute.

18The Court in Morales reversed a ruling that a three-judge

court was required because a constitutional challenge to inhumane

conditions maintained by state officials in Texas juvenile correctional

facilities was effectively a challenge to a state-wide policy.

19Raxter involved a challenge to the denial of counsel and the

use of a prisoner’s silence against him in a prison disciplinary

proceeding. The Court found that despite the fact that the state had

detailed regulations governing prison disciplinary proceedings, the

regulations did not address the right to counsel or the use of an

(continued...)

«87 «

425 USS. at 313 n.2);*° accord Butler v. Dexter, 425 U.S.

262 (1976) (per curiam).?'

The record in this case makes clear that this

threshold requirement was not met. Neither the original

Complaint nor the Amended Complaint challenged any

identified state constitutional provision, statute or

regulation, nor was there any request to enjoin the

enforcement of any identified state law (J.A. 153a-

19(. continued)

inmate’s silence. "[The] complaint did not mention or challenge any

rule or regulation of the Authority; nor did it seek an injunction

against the enforcement of any identified rule.". Baxter, 425 US. at

313 n.12. Thus, the Court concluded that a three-judge court was

not required. Id.

20Tn the instant matter, had the Complaint in 1974 challenged

the constitutionality of some provision of Louisiana law that

purported explicitly to require racial segregation in the state’s higher

education system, a three-judge court still would not have been

"required." Bailey v. Patterson, 396 U.S. 31 (1962)(where uncon-

Stitutionality is beyond dispute, single judge may enjoin state law).

2'In Butler the Court held that it lacked jurisdiction of an

appeal from an injunction granted by a three-judge court where local

Officials had acted unconstitutionally in using a state statute as a

pretext for arrest and where no question of the constitutionality of

the underlying statute was presented to the three-judge court.

a

SAA tS wl abl ys” ts

183a). The United States’ request for a three-judge court

was admittedly founded not upon a direct attack to a

state law on constitutional grounds, but rather on a claim

that defendants’ "acts and practices" in carrying out their

duties were unconstitutional (J.A. 191a).

The State, through Governor Roemer, makes

several novel arguments to support its claim that this

Court does have direct appellate jurisdiction. For

example, the Governor argues that this case is within the

parameters of Section 2281 because it is a suit seeking to

interpose the Constitution against enforcement of

delegated legislation, in the form of the Board of

Regents’ Master Plan (Jurisdictional Statement of

Governor Roemer at 11-12). The argument will not

withstand scrutiny. The United States’ specific complaint

about the Master Plan was that it "fails to address the

dismantling of the State’s racially dual system of higher

ae.

education" (Appendix to Jurisdictional Statement of

Governor Roemer [hereafter Roemer Appendix] at

69a). Thus the challenge raised here is very much like

that made in Costello, where effectively it was the

absence of a policy that caused the condition that

offended the Constitution.

Here the Complaints allege that the absence of

an affirmative policy to dismantle the dual system,

combined with numerous decisions of the multiple

administrative decision makers, creates the constitutionally

offensive condition. The Complaints focus throughout on

the establishment of the dual system and allege that the

defendants have failed in their affirmative duty to provide

22The 1974 Complaint identifies the Master Plan as simply a

proposal (J.A. 162a). It clearly was not a statute or regulation, nor

was it being challenged as such.

23Plaintiffs in Costello challenged the State’s failure to provide

medical services to prisoners and to deal adequately with

overcrowding. See Costello v. Wainwright, 539 F.2d 547 (5th Cir.

1976).

- 20 -

specific measures and timetables to eliminate the

continuing vestiges of that system (J.A. 162a [§ 26], 177a

[gq 35]). The Complaints do not challenge as unconsti-

tutional any policies or regulations of the Board of

Regents (whether contained in its Master Plan or not), or

of any other defendant, either on their face or as

applied.*4

This case thus is not about any particular policy or

regulation, but rather about the cumulative effect of

24Quoting ¢ 33 of the Amended Complaint, where the United

States alleges that the Regents’ Master Plan "would maintain and

perpetuate the dual system of public higher education based upon

race,” the Governor characterizes the Master Plan as the equivalent

of delegated legislation. (Jurisdictional Statement of Governor

Roemer at 12 n.16.) However, while adoption of the Master Plan

may not require legislative approval, implementation of its provisions

is dependent upon appropriations decisions made by each session of

the Louisiana Legislature, which determines whether or not to accept

the recommendations of the Board of Regents. (See J.A. 317a-18a

[United States’ List of Material Facts to the Motion for Summary

Judgment, qq 141-43, 147](referring to Board of Regents’ funding

recommendations and to disparities in legislative appropriations to

historically white and black institutions); J.A. 119a, 122a [1974

Louisiana Constitution, Article VIII, §§ 5(D)(4), 11, 12](Board of

Regents recommends funding formula but the Legislature makes

discrete appropriations directly to individual institutional. governing

boards).)

1.

scores of individual decisions by the Governor (who

appoints members to the Board of Regents and the three

institutional boards) and by each of these bodies which,

collectively, perpetuate the State’s dual system and

thereby violate the Constitution (see Roemer Appendix

at 66a-68a).

The State, through the Governor, also

misconstrues the record in asserting that the United

States directly challenged the 1974 Louisiana Constitution

as violative of the federal Constitution (Jurisdictional

Statement of Governor Roemer at 13). Relying on

selected excerpts from the United States’ Interrogatory

Responses, the State attempts to construct a direct

challenge to its Constitution which (1) does not appear in

the original or amended Complaint in this case, and (2)

is inconsistent with the United States’ position that it is

the action and inaction of the numerous decision-making

<2.

bodies (admittedly created by the State’s Constitution),

not their mere existence, that offends the Constitution

(Roemer Appendix at 66a-68a). There is in this litigation

no direct challenge to the State’s Constitution or statutory

provisions.

The State’s attempt (again through the Governor)

to distinguish Costello and Morales also is unavailing.

Like Morales, there is no central body of written

regulations or policies challenged by the United States in

this case and, like Costello, it is the defendants’ failure to

act under the circumstances -- not the presence of any

particular offending regulation or state policy -- that

causes the violation.

Costello, Morales, Baxter, and Butler solidly

establish that challenges, such as those made here, to

multiple unwritten policies or practices of state officials

in implementing their duties under state law, are not

~ o

required to be determined by a three-judge court. Thus

the initial empaneling of the three-judge court was

improper.

2. Moreover, when the case was reactivated after

the Morales, Costello, Baxter, and Butler cases were

decided in 1976 and 1977, the three-judge court should

not have been reconvened as it was undoubtedly

improper at that time.*°

25Evolution of three-judge court jurisdiction to its current

narrow application grew out of a recognition by this Court and the

Congress that the policy behind three-judge courts -- "saving state

and federal statutes from improvident doom at the hands of a single

juc ve,” MTM, Inc. v. Baxley, 420 U.S. 799, 804 (1975), had become

largely anachronistic. See Swift & Co. v. Wickham, 382 U.S. 111,

128-29 (1965) (noting that the three-judge procedure dislocates “the

normai structure and function of the lower federal courts,” “expands

this Court’s obligatory jurisdiction,” and “contradicts the dominant

principle of having this Court review decisions only after they have

gone through two judicial sieves") (quoting Florida Lime & Avocado

Growers, Inc. v. Jacobsen, 362 U.S. 73, 92-93 (1960) (Frankfurter, J.

dissenting)). See also S. Rep. No. 94-202, 94th Cong., 2d Sess., 3-

8, reprinted in 1976 U.S. Code Cong. & Admin. News 1988, 1990-

96 (finding that the original rationale that gave rise to the three-

judge court concept in 1910 had virtually disappeared). Thus, even

before repeal of Section 2281 by the Congress, the Court increasingly

limited three-judge court jurisdiction. E-g., i

Phillips v. United States,

312 U.S. 246 (1941); Swift & Co, v. Wickham, 382 U.S. 111 (1965);

(continued...)

~ e

vena

B. The Case Was Not Required To Be Heard By A

Three-Judge Court Because A Single Judge

Should Have Initially Resolved The Statutory

Claim And Obviated Any Need For A Three-

Judge Court.

In Hagans v. Lavine, 415 U.S. 528 (1974), decided

on March 25, 1974, prior to the initial empaneling of the

three-judge court in this case, the Court approved as

“accurately reflecting recent jurisprudence” the practice of

having a single judge initially determine the substantiality

of the constitutional claim (as noted above, the threshold

prerequisite for applicability of § 2281) and then inaine

any statutory claims, convening a three-judge court

thereafter and only if the case could not be disposed of

on non-constitutional grounds.” Accord Rosado_v.

IO aay ere ‘i

redit Union, 419 U.S. 90 (1974);

MIM, Inc. v. Baxley, 420 US. 799 (1975)

26The Court in Hagans acknowledged that its holding "may

appear at odds" with two prior opinions, Brotherhood of Locomotive

Engineers v. Chicago, R.l. & P.R., 382 U.S. 423 (1966) and Florida

(continued...)

~~ 2

Wyman, 397 U.S. 397, 403711970) (resolution of statutory

claim initially by a single judge would avoid consuming

the time of three federal judges in a matter not required

to be determined by a three-judge court).2”. Under these

precedents, the three-judge district court should have

never been cciivened in this case.

This conclusion is further supported by the fact

that the three-judge court was reconvened in order to

reach a judgment that rests exclusively upon non-

26. continued)

Lime & Avocado Growers v. Jacobsen, 362 U.S. 73 (1960), but it

declined to follow them because it concluded that the Hagans

holding "accurately reflects the recent evolution of three-judge-court

jurisprudence." Hagans, 415 U.S. at 543-44. Both those earlier cases

cited, however, do satisfy the threshold requirement (not met here)

of a facial challenge to a state statute on constitutional -- non-

Supremacy Clause -- grounds.

27In Philbrook v. Glodgett, 421 U.S. 707, 712 n.8 (1975), the

Court excused the district court’s failure to follow the procedure

approved in Hagans because the complaint raised only constitutional

claims and the statutory claim arose for the first time at oral

argument before the three-judge court. Accord Alexander v. Fioto,

430 U.S. 634, 636 nn.6 & 7 (1977) (only basis of claim set out in

the complaint was unconstitutionality of a statute).

.

ARR he Nr ct

constitutional grounds. See supra note 13. The Court

has ruled repeatedly that a three-judge court is not

required to rendei a ruling on a _ non-constitutional

challenge to state law. Gonzalez v. Automatic Employees

Credit Union, 419 U.S. 90 (1974), holds that denial, on

non-constitutional grounds, of a requested injuncwon

against a state law need not be issued by a three-judge

court. Similarly, the Court ruled in MTM, Inc. v. Baxley,

420 U.S. 799 (1975), that a direct appeal under Section

1253 from the denial of an injunction was proper only

where the three-judge court’s order was based on the

merits of a constitutional claim.@®

28See also United States v. Texas, 523 F. Supp. 703, 724-28

(E.D. Tex. 1981) (district court declined to request a three-judge

court in action initiated prior to repeal of § 2281 where there was

no direct attack On the constitutionality of a state statute and the

court concluded it would be inappropriate to expand the parameters

of § 2281 in light of the repeal); Bradley v. School Board of City of

Richmond, 324 F. Supp. 396, 398 (E.D. Va. 1971) (district court

declined to request a three-judge court because even if the relief

ordered would require non-compliance with a state law, “such an

(continued...)

a.

Thus, a three-judge court was not "required" for

the purpose of rendering the orders below and direct

appeal under Section 1253 does not lie.

CONCLUSION

For these reasons, LDF urges the Court to dismiss

this appeal and direct that the parties seek review in the

United States Court of Appeals for the Fifth Circuit.

LDF also urges the Court to exercise its authority under

28(... continued)

injunction would not necessarily be ‘upon the ground of the

unconstitutionality of such statute”); accord United States _v.

Louisiana, 543 F.2d 1125 (Sth Cir. 1976).

. -

Sea rr Se Ae

the All Writs Act, 28 U.S.C. § 1651, to maintain its stay

of the district court’s order during the pendency of the

appellate proceedings.

Respectfully submitted,

*Julius LeVonne Chambers

Charles Stephen Ralstor.

Norman J. Chachkin

Janell M. Byrd

NAACP Legal Defense and

Educational Fund, Inc.

99 Hudson Street

16th Floor

New York, NY 10013

(212) 219-1900

Counsel for Amicus Curiae

*Counsel of Record

>.