U.S. v. State of La.
| Decision Date | 10 December 1993 |
| Docket Number | No. 93-3061,93-3061 |
| Citation | 9 F.3d 1159 |
| Parties | 87 Ed. Law Rep. 361 UNITED STATES of America, Plaintiff-Appellee, v. STATE OF LOUISIANA, the Governor of Louisiana, the Louisiana Board of Regents, the Board of Supervisors of Southern University and Agricultural and Mechanical College, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, and the Board of Trustees for State Colleges and Universities, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard P. Ieyoub, Atty. Gen. of La., La. Dept. of Justice (argued), Paul R. Baier, Sp. Counsel to the Atty. Gen. (argued rebuttal), Thomas S. Halligan, E. Kay Kirkpatrick, Asst. Attys. Gen., W. Shelby McKenzie, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for defendants-appellants.
Trevor G. Bryan, Vincent P. Blanson, Bryan, Jupitor, Lewis & Blanson, New Orleans, LA, for So. Univ.
Margaret E. Woodword, New Orleans, LA, for Louisiana Bd. of Regents.
Robert A. Kutcher, Jan Marie Hayden, Bronfin & Heller, New Orleans, LA, for Board of Trustees/State Colleges & Univ.
Constance Koury, Sp. Counsel to the Governor, Baton Rouge, LA, for State of La.
Robert G. Pugh, Pugh & Pugh, Shreveport, LA, for State of La., etc.
Mark L. Gross, Jessica Dunsay Silver, Attys., Franz R. Marshall, Civ. Rights Div., Appellate Sec., Lavern M. Younger, Michael S. Maurer, Washington, DC, for plaintiffs-appellees.
Thomas N. Todd, Chicago, IL, amicus, for Grambling.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before SMITH, DUHE, and WIENER, Circuit Judges.
The State of Louisiana and the four governing boards of its public colleges and universities ask that we reverse the summary judgment granted in this desegregation case, vacate the remedial order, and remand for trial. Because summary judgment was improperly granted, we vacate the remedial order, reverse the liability judgment, and remand.
In the civil rights era Louisiana repealed its school segregation laws. The United States sued Louisiana in 1974 alleging that the State was still maintaining a racially discriminatory system of higher education violating the Fourteenth Amendment 1 and Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d. 2
In 1981 the court entered a consent decree under which Louisiana was to begin affirmative action and enhance its predominately black public institutions of higher education. In December 1987 the United States moved for a hearing to determine Louisiana's compliance with this consent decree and to determine whether the State and the governing boards of its colleges and universities were operating its system of public higher education on a unitary basis.
The parties filed cross-motions for summary judgment on the issue of liability, i.e., the question whether the State maintained an unlawfully segregated system of higher education. The district court ruled for the United States, holding that the State had under the consent decree failed to dismantle its racially dual structure. United States v. Louisiana, 692 F.Supp. 642, 653-57 (E.D.La.1988) (sometimes called the "1988 liability order"). Following lengthy hearings before During the appeal and remand of the remedial order, this Court decided Ayers, which held that a race-neutral admissions policy satisfies a state's obligation to desegregate. Ayers v. Allain, 914 F.2d 676 (5th Cir.1990) (en banc). Considering Ayers and Louisiana's open admissions, the district court then vacated its earlier orders and granted summary judgment in favor of the State Defendants. United States v. Louisiana, 751 F.Supp. 606, 608 (E.D.La.1990). When Ayers was reversed, United States v. Fordice, --- U.S. ----, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992), this Court vacated the new summary judgment and remanded for reconsideration in light of Fordice.
a special master on the question of remedy, the district court directed the State to implement the special master's recommended remedial plan as modified. United States v. Louisiana, 718 F.Supp. 499, 515-21 (E.D.La.1989). Primarily this 1989 remedial order required consolidation of the State's four higher education boards into a single board, classification of the institutions by selective admissions and separate mission statements, a comprehensive community college system, and consolidating measures such as program transfer. Id. at 515-19.
The district court then ordered the parties to show cause why its 1988 liability order should not be reinstated and a revised remedial order should not be entered in light of Fordice. After responses were filed, the district court reinstated the 1988 liability order and entered another revised remedial order (the "1992 order"). 811 F.Supp. 1151. The State Defendants appeal.
In a separate appeal, the Southern University Board of Supervisors complains that the district court lacked jurisdiction to abrogate the 1981 consent decree because the validity of the consent decree was not a justiciable case or controversy.
The Southern Board argues that the only dispute about the consent decree was whether the State had complied with it--not its validity or terms. This is inaccurate. Near the end of the term of the consent decree, when the United States moved for a determination of Louisiana's compliance with the consent decree, it also requested a hearing to determine "whether defendants ... are operating the system of public higher education on a unitary basis" and requested an order maintaining jurisdiction over the entire litigation. The consent decree provided for the court's continuing jurisdiction "to insure that the Louisiana system of public higher education is operated on a unitary basis in all respects." The consent decree also provided that the Plaintiff could before December 31, 1987 request the court to determine whether Defendants were operating the system of public higher education on a unitary basis. This is precisely what the United States did.
After the motions for summary judgment were filed, the district court noted that the consent decree "was directed more towards merely enhancing the State's black schools as black schools rather than towards 'convert[ing] its white colleges and black colleges to just colleges.' " 692 F.Supp. at 658 (footnote omitted). The court found a continuing constitutional violation, concluded that the consent decree had not dismantled the dual system, and that a more effective remedy was required.
The Southern Board's argument that the court lacked jurisdiction because it sua sponte took a question about which there was no case or controversy is without merit. The parties could not agree on whether the State had dismantled its dual system. By the terms of the consent decree, no determination of whether Defendants violated any law had been made. The United States' motion put at issue the efficacy of the consent decree in achieving a unitary system. The court retained jurisdiction to address this issue and properly reviewed the entire question whether the Defendants were maintaining an unconstitutional dual system.
The Southern Board next argues that the court's reason for invalidating the consent decree in 1988--the continued racial identifiability of the institutions--was erroneous in light of the 1992 decision in Fordice. The The Southern Board's argument centers on how Fordice changes a state's accountability for failure to obtain racially homogenized schools in the higher education context. We agree that racial identifiability, while relevant under Fordice, does not define the standard for determining whether a state has dismantled its dual system (or whether a consent decree has been effective to achieve a unitary system). As of 1992 Fordice provides the standard by which to determine whether the state is maintaining an unlawful dual system, and the United States is now entitled to another hearing on the question of the State's liability, as discussed next. But the Fordice decision does not breathe any new life into the consent decree.
Southern Board is vague on what relief it is requesting from this Court, but apparently it desires reinstatement of the consent decree.
The State first contends that the district court based its liability decision on nothing more than the racial identifiability of the institutions, even though Fordice established a stricter standard for holding a state liable for unlawful segregation. The State argues that the 1988 liability order was based solely on racial identifiability of the schools and boards. The Southern Board also argues that the court misinterpreted Fordice by presuming unlawful segregation exists if the schools are racially identifiable.
We agree with the State Defendants that under Fordice, "[t]hat an institution is predominately white or black does not in itself make out a constitutional violation." Fordice, --- U.S. at ----, 112 S.Ct. at 2743. Under Fordice liability is based on specific state policies or practices: "[A] State does not discharge its constitutional obligations [to dismantle its prior dual university system] until it eradicates policies and practices traceable to its prior de jure dual system that continue to foster segregation." Id. at ----, 112 S.Ct. at 2735.
If the State perpetuates policies and practices traceable to its prior system that continue to have segregative effects--whether by influencing student enrollment decisions or by fostering segregation in other facets of the university system--and such policies are without sound educational justification and can be practicably eliminated, the State has not satisfied its burden of proving that it has dismantled its prior system.
Id. at ----, 112 S.Ct. at 2737. We read Fordice to require that each suspect state policy or practice...
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