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Case No. 16-31052
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
WILLIE BANKS, FATHER AND NEXT FRIEND OF MINOR CHILDREN W.B. AND J.B.;
MAMIE L. DAVIS, MOTHER AND NEXT FRIEND OF MINOR CHILDREN J.D., S.D. AND
G.D.; RAYMOND JOSEPH, SR., FATHER AND NEXT FRIEND OF MINOR E.J.;
ALEXANDER JACKSON, FATHER AND NEXT FRIEND OF MINORS B.J. AND B.J.,
Plaintiffs-Appellants,
v.
ST. JAMES PARISH SCHOOL BOARD, Defendant-Appellant,
v.
GREATER GRACE CHARTER ACADEMY, INCORPORATED, Intervenor-Appellee.
On Appeal from the United States District Court for the Eastern District of
Louisiana, No. 2:65-cv-16173, SECTION F
(Hon. Martin L.C. Feldman)
REPLY BRIEF FOR PLAINTIFFS-APPELLANTS
GIDEON T. CARTER, III
La. Bar Roll Number 14136
Post Office Box 80264
Baton Rouge, LA 70898-0264
(225) 214-1546
[email protected]
January 12, 2017
SHERRILYN A. IFILL
President and Director-Counsel
JANAI S. NELSON
CHRISTINA A. SWARNS
DEUEL ROSS
RACHEL KLEINMAN
CHRISTOPHER KEMMITT
NAACP LEGAL DEFENSE
AND EDUCATIONAL FUND, INC.
40 Rector Street, 5th Fl.
New York, NY 10006
(212) 965-2200
[email protected]
[email protected]
[email protected]
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TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES .................................................................................... ii
ARGUMENT .............................................................................................................1
I.
GGCA MISCHARACTERIZES SCHOOL DESEGREGATION LAW
.........................................................................................................................4
II.
GGCA DOES NOT COMPLY WITH THE DESEGREGATION
ORDER ............................................................................................................5
III.
A.
The Order Authorizing the GGCA School Promotes
Resegregation ........................................................................................6
B.
The Segregative Effects of the Order Improperly Authorizing the
GGCA School Can be Remedied Through Reasonable
Restrictions ..........................................................................................10
LOUISIANA LAW SUBJECTS GGCA TO THE DESEGREGATION
ORDER AND DOES NOT CREATE AN “INTERDISTRICT”
REMEDY ......................................................................................................10
A.
Louisiana Law Expressly Requires GGCA to Comply with the
Existing Desegregation Order in the District ......................................11
B.
Type-2 charters are not exempted from Louisiana Law .....................13
CONCLUSION ........................................................................................................15
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TABLE OF AUTHORITIES
PAGE(S)
CASES:
Anderson v. Canton Mun. Separate Sch. Dist.,
232 F.3d 450 (5th Cir. 2000) ................................................................................. 5
Board of Education v. Dowell,
498 U.S. 237 (1991) .............................................................................................. 4
Berry v. Sch. Dist. of City of Benton Harbor,
56 F. Supp. 2d 866 (W.D. Mich. 1999) ..................................................... 9, 12, 15
Cleveland v. Union Par. Sch. Bd.,
No. 12,924, 2009 WL 1491188 (W.D. La. May 27, 2009) ................................. 10
Cleveland v. Union Par. Sch. Bd.,
570 F. Supp. 2d 858 (W.D. La. 2008) .......................................................... passim
Columbus Bd. of Ed. v. Penick,
443 U.S. 449 (1979) .............................................................................................. 4
Cowan v. Cleveland Sch. Dist.,
748 F.3d 233 (5th Cir. 2014) ................................................................ 4, 7-8, 9, 15
Davis v. East Baton Rouge Par. Sch. Bd.,
721 F.2d 1425 (5th Cir. 1983) ............................................................................... 7
Ergo Sci., Inc. v. Martin,
73 F.3d 595 (5th Cir. 1996) ................................................................................. 13
Fisher v. Univ. of Texas at Austin,
136 S. Ct. 2198 (2016) .......................................................................................... 9
Freeman v. Pitts,
503 U.S. 467 (1992) ...................................................................................... 4, 5, 6
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PAGE(S)
Green v. Cty. Sch. Bd. of New Kent Cty.,
391 U.S. 430 (1968) .............................................................................................. 4
Missouri v. Jenkins,
515 U.S. 70 (1995) ................................................................................................ 4
Netherton Co. v. Caddo-Shreveport Sales & Use Tax Comm’n,
621 So. 2d 22 (La. Ct. App. 1993) ...................................................................... 12
Parents Involved in Community Schools v. Seattle School District No. 1,
551 U.S. 701 (2007) .............................................................................................. 5
Poindexter v. La. Fin. Assistance Comm’n,
275 F. Supp. 833 (E.D. La. 1967), aff’d, 389 U.S. 571 (1968)........................... 15
Stokes v. Harrison,
115 So. 2d 373 (La. 1959) ................................................................................... 12
Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1 (1971) .................................................................................................. 7
United States v. Pittman,
808 F.2d 385 (5th Cir. 1987) .............................................................................. 8-9
Veasey v. Abbott,
830 F.3d 216 (5th Cir. 2016) ................................................................................. 2
Villanueva v. Carere,
85 F.3d 481 (10th Cir. 1996) ................................................................................. 5
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PAGE(S)
STATUTES & REGULATIONS:
La. R.S.
§ 17:3991(C)(3) ........................................................................................ 1, 2-3, 12
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ARGUMENT
The only question presented by this appeal is whether the district court abused
its discretion in authorizing the operation of a new one-race public charter school in
a manner that is inconsistent with the existing order to desegregate the St. James
School District (the “District”). Louisiana state law, La. R.S. § 17:3991(C)(3),
explicitly requires Intervenor Greater Grace Charter Academy, Inc. (“GGCA”) to
comply with any existing desegregation order in the school district where it seeks to
operate. Consistent with this law, the Louisiana Board of Elementary and Second
Education (“BESE”) granted the GGCA school’s charter on the express condition
that it obtain district court authorization. Accordingly, GGCA intervened in this case
and asked the district court to decide whether the school’s opening would violate the
desegregation order. The district court then incorrectly held—without conducting
the legally-required analysis—that opening a virtually all-Black school, despite the
obvious fact that it increased racial isolation in the District and impaired PlaintiffsAppellants’1 ongoing desegregation efforts, complied with the desegregation order.
In GGCA’s opposition to this appeal, GGCA effectively abandons its prior
contention that it has complied with the desegregation order and, instead, seeks to
rely almost entirely on new arguments which it never raised in the district court.
Specifically, GGCA claims that the charter school should be considered its own
1
Hereinafter “Plaintiffs.”
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school district, and, as a result, it should not have to comply with the existing
desegregation order. This is clearly erroneous.
At the outset, “[a]n issue raised for the first time on appeal, like this one, is
waived.” Veasey v. Abbott, 830 F.3d 216, 252-53 nn.44-45 (5th Cir. 2016) (en banc).
For this reason alone, GGCA’s new arguments should be dismissed.
But, even if these new arguments are not waived, GGCA’s positions should
still be rejected for three additional reasons.
First, GGCA sets forth a tortured and contrived account of the current state of
desegregation law, arguing that the legal standard governing still-desegregating
districts has become less stringent. But, this recitation of the law is simply incorrect.
Second, as set forth in Plaintiffs’ opening brief, Pls. Br. at 13-23, if the district
court had performed the legal and factual analysis that plainly governs GGCA’s
request to open a 93% Black school – see Cleveland v. Union Par. Sch. Bd., 570 F.
Supp. 2d 858 (W.D. La. 2008) – it would have concluded that because the District
already has three one-race schools, GGCA’s school promotes resegregation and
violates the existing desegregation order.
Third, this case does not present the question of whether charter schools in
general are subject to the desegregation orders governing the school districts in
which they are located. Rather, the Louisiana charter school law concedes this point.
Louisiana law explicitly states that a “charter school shall . . . [b]e subject to any
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court-ordered desegregation plan in effect.” La. R.S. § 17:3991(C)(3) (emphasis
added). For that reason, BESE conditioned its grant of a charter to GGCA on both
GGCA’s compliance with the desegregation order and its receipt of authorization
from the district court. ROA.608. GGCA did not question this requirement below.
Rather, as instructed by state law and BESE, GGCA intervened in the instant case
for the sole purpose of seeking permission to operate within the confines of the
desegregation plan, argued that it was in full compliance with the existing
desegregation plan, and received the court’s (improper) approval.
GGCA’s new argument that it should be considered its own school district for
purposes of compliance with desegregation orders is untimely and not supported by
any legal authority. GGCA does not explicitly challenge the governing Louisiana
law or ask this Court to interpret that law to exempt them from its clear requirements.
At most, GGCA suggests that Louisiana’s law may raise legal problems. This
“suggestion” is not the proper subject of this appeal.
This Court should therefore: (1) reverse the district court’s legally and
factually erroneous August 3, 2016 order authorizing the GGCA school; (2) hold
that GGCA failed to meet its burden in showing that the school’s opening would not
harm desegregation efforts; and (3) vacate the prior order and, as necessary, remand
to the district court to apply the correct legal standards and provide the proper relief.
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I. GGCA MISCHARACTERIZES SCHOOL DESEGREGATION LAW
Instead of confronting Plaintiffs’ substantive arguments, GGCA tries to recast
the well-established precedent governing school districts still under desegregation
orders, and betrays its own fundamental misunderstanding of the issues in this case.
GGCA wrongly claims that the Supreme Court’s decisions in Board of
Education v. Dowell, 498 U.S. 237 (1991) and Missouri v. Jenkins, 515 U.S. 70
(1995) lessened the standard for modifying desegregation orders such that
desegregating districts are no longer under an obligation to eliminate the effects of
racial discrimination “root and branch.” GGCA Br. at 11-13. But neither case
contains such a broad holding.
Despite GGCA’s claims, it is “the duty of a former de jure district is to ‘take
whatever steps might be necessary to convert to a unitary system in which racial
discrimination would be eliminated root and branch.’” Freeman v. Pitts, 503 U.S.
467, 486 (1992) (emphasis added) (quoting Green v. Cty. Sch. Bd. of New Kent Cty.,
391 U.S. 430, 437-438 (1968)); see also Cowan v. Cleveland Sch. Dist., 748 F.3d
233, 238 (5th Cir. 2014) (continuing to recognize that “where de jure segregation
existed, the school district’s duty is to eliminate its effects root and branch”) (internal
citations and quotation marks omitted). And it remains the “responsibility” of school
authorities and courts to safeguard against governmental acts that “perpetuate or reestablish” segregation. Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 460 (1979).
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Thus, in reviewing an appeal of an order granting a request for authorization
to open a new school in a district subject to a desegregation order, this Court “cannot
tolerate resegregation of a former dual school system”; accordingly, the school
authority must show that the new school “will not tend to promote such a relapse.”
Anderson v. Canton Mun. Separate Sch. Dist., 232 F.3d 450, 453 (5th Cir. 2000).
II. GGCA DOES NOT COMPLY WITH THE DESEGREGATION ORDER
As Plaintiffs argued in the opening brief, Pls. Br. at 16, the court in Cleveland
v. Union Parish School Board, applied the correct standard for examining a type-2
charter school’s request to open in a district that is still under a desegregation order.2
570 F. Supp. 2d at 869-70. The Cleveland court asked: (1) whether the authorization
of the charter school would promote resegregation; and (2) whether the imposition
of “reasonable restrictions” would ameliorate any detrimental effects arising from
the authorization of the charter school. Id. at 869-70. Because the Cleveland court
found that the authorization of a one-race charter school would undermine the
existing remedial order, it denied the school’s request for permission to open. Id.
“Proper resolution of any desegregation case turns on a careful assessment of
its facts.” Freeman, 503 U.S. at 474. Therefore, as set forth below and in Plaintiffs’
2
Neither Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S.
701 (2007) or Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996) involved desegregation orders
and thus both are inapposite. GGCA Br. at 21, 25. Moreover, the charter school in Villanueva
was expected to have the same racial makeup as the district-wide population. 85 F.3d at 486-87.
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previous brief, GGCA’s arguments do not alter the fact that, had the district court
applied the proper analysis, it would have concluded that allowing GGCA to
establish a one-race school in a racially isolated area would promote resegregation.
A. The Order Authorizing the GGCA School Promotes Resegregation
The first inquiry in the Cleveland analysis, 570 F. Supp. 2d at 869, is the extent
to which the operation of the GGCA school results in racial isolation. See Freeman,
503 U.S. at 474 (“where the issue is the degree of compliance with a school
desegregation decree, a critical beginning point is the degree of racial imbalance”).
However, on appeal, GGCA appears to abandon its prior claim that because the acute
racial isolation at the GGCA school is no worse than that at three of the District’s
other schools, the GGCA school does not violate the desegregation order.
Indeed, GGCA does not dispute Plaintiffs’ substantive argument that the
opening of a fourth one-race school increases segregation and makes future
desegregation efforts more difficult by leaving the GGCA school as a segregated
island unto itself. Pls. Br. at 28-30. Instead, GGCA now contends that (1) the racial
isolation in the District results from “private choices” and that (2) the authorization
of the GGCA school vindicated students’ ability to attend the school of their choice
and therefore somehow helped to restore Plaintiffs to the same position in which
they would have been in the absence of discrimination. GGCA Br. at 12-18. Neither
of these contentions are true.
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For the first point, GGCA appears to rely on Jenkins’ assertion that “private
choices” do not necessarily offend the Constitution. GGCA Br. at 12-13, 21. But,
that ruling has no bearing on this case. Here, GGCA itself admits that it is a
government agency. GGCA Br. at 8, 19. Thus, the facts show that, rather than
“private choices,” it was the governmental acts of GGCA in “locating [a] school[]
in [a] [Black] residential area[ ] and fixing the size of the school[ ] to accommodate
the needs of immediate neighborhood[ ], [that] resulted in segregated education.”3
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U. S. 1, 7 (1971); see also Pls.
Br. at 18, 21-20; Davis v. East Baton Rouge Par. Sch. Bd., 721 F.2d 1425, 1435 (5th
Cir. 1983) (rejecting as “not only factually but legally unsound” a school district’s
reliance on “housing patterns” to justify the continued existence of one-race schools
where the district had chosen to locate its new schools in one-race neighborhoods).
The district court opinion did not even consider Plaintiffs’ evidence showing
that the opening of GGCA in a historically Black neighborhood would increase
segregation. ROA.645-46. And nothing in the Jenkins case or in GGCA’s own brief
undermines the fact that the GGCA school’s opening as yet another one-race Black
public school in a historically Black neighborhood, within a few miles of two other
historically one-race Black schools, continues the harms of racial segregation. Pls.
Plaintiffs also assert that each of the District’s one-race schools are sited at formerly
segregated schools in Black neighborhoods and are vestiges of the de jure system. Pls. Br. at 27.
3
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Br. at 25-28; see Cowan., 748 F.3d at 238-39 (noting that one-race schools are
“particularly unacceptable” where, as here, the district is relatively small, the schools
have not been meaningfully desegregated, are in close proximity to each other, and
“the original purpose of this configuration of schools was to segregate the races”).
Next, GGCA contends that allowing it to open a one-race charter school either
somehow remedies Plaintiffs’ injuries caused by decades of racial isolation, or does
no further harm. GGCA Br. at 14-18. But, GGCA’s arguments have no basis in either
precedent or the district court opinion.
The primary support that GGCA offers for its claims are quotes of platitudes
from the Louisiana charter school law. GGCA Br. at 16-17. However, GGCA’s
restatement of Louisiana’s general reasons for allowing charter schools does not, by
itself, prove that the GGCA school is serving “the best interest of at-risk pupils.” Id.
GGCA also cites the district court’s statement that denying GGCA’s motion
would prevent students from “attending the school of their choice.” Id. at 17. But,
even in the rare instances where allowing students to attend the “school of their
choice” could be an adequate remedy, nothing in the district court order or GGCA’s
brief explains how giving Black students the “choice” to attend yet another racially
isolated school restores them to the position they would have occupied absent the
prior discrimination. See United States v. Pittman, 808 F.2d 385, 389-90 (5th Cir.
1987) (reversing a desegregation order calling for voluntary enrollment of Black
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students in racially isolated Black schools). Deference to a district court order that
is premised on “freedom of choice” is improper where, as here, “there was no
evidence or explanation indicating that the freedom of choice plan was likely to
work, and all the available empirical evidence indicated that the plan is not likely to
contribute to meaningful desegregation.” Cowan, 748 F.3d at 239.
Moreover, this case does not require this Court to make policy judgements
about the propriety of public charter schools. Pls. Br. at 14 & n.7. This Court’s
review of the order authorizing the GGCA school is “limited to the narrow purpose
of remedying past discrimination, and th[is] [C]ourt retains no authority to impose
its views of educationally superior programs not directed to that remedy.” Berry v.
Sch. Dist. of City of Benton Harbor, 56 F. Supp. 2d 866, 879 (W.D. Mich. 1999).
Here, there is no question that the district court order authorizing a fourth onerace public school contributed to resegregation. That order undercut the “educational
benefits” that flow from this case’s end goal: the racial integration of all schools in
the District, which itself “promotes cross-racial understanding, helps to break down
racial stereotypes, and enables students to better understand persons of different
races.” Fisher v. Univ. of Texas at Austin, 136 S. Ct. 2198, 2210 (2016) (citation and
internal quotation marks omitted). GGCA’s failure to offer any explanation of how
its one-race school complies with the desegregation order demonstrates that the
district court order demands reversal.
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B. The Segregative Effects of the Order Improperly Authorizing the
GGCA School Can be Remedied Through Reasonable Restrictions
The second inquiry in the Cleveland court’s analysis is whether a court order
imposing reasonable restrictions on the GGCA school would provide an adequate
means of remedying its detrimental effects. 570 F. Supp. 2d at 870. As set forth in
Plaintiffs’ opening brief, the detrimental effects of the GGCA school can and should
be adequately addressed by, amongst other options, requiring the GGCA to relocate
to a more diverse area or setting material conditions to incite GGCA to create a more
integrated student body. Pls. Br. at 30-31. GGCA does not address these proposals.
Plaintiffs do not wholly oppose the existence of the GGCA school, and do not
seek its permanent closure. Plaintiffs do wish to ensure that the GGCA school fully
complies with an effective desegregation order. Pls. Br. at 22-23, 30-31; see, e.g.,
Cleveland, 570 F. Supp. 2d at 865-66 (denying a motion to open a charter school
that would have opened as a nearly all-white school in a white neighborhood);
Cleveland v. Union Par. Sch. Bd., No. 12,924, 2009 WL 1491188, at *4-5 (W.D. La.
May 27, 2009) (granting the same school’s motion to open after it increased minority
recruitment and enrollment and relocated to a site in a more diverse neighborhood).
III. LOUISIANA LAW SUBJECTS GGCA TO THE DESEGREGATION
ORDER AND DOES NOT CREATE AN “INTERDISTRICT” REMEDY
GGCA raises new arguments on appeal that do not rebut Plaintiffs’
substantive arguments, but, instead, rely on the claim that GGCA is its own local
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school district and it is therefore “inappropriate” for the desegregation order to apply
to it or any other Louisiana type-2 charter school. GGCA Br. at 18. GGCA reasons
that requiring state authorized type-2 charter schools to comply with the
desegregation order in its district constitutes an “impermissible interdistrict
remedy.” Id. at 18-23. But, GGCA’s view is flatly contradicted by Louisiana law.
A. Louisiana Law Expressly Requires GGCA to Comply with the
Existing Desegregation Order in the District
Incredibly, after winning below and facing only the imposition of those
restrictions that GGCA itself suggested, ROA.514-15, GGCA now argues that the
district court’s jurisdiction was “inappropriate” or, alternatively, that the imposition
of a desegregation order on GGCA constituted an “impermissible interdistrict
remedy.” GGCA Br. at 18. However, “the State [of Louisiana] has, by statute,
required charter schools to comply with standing desegregation orders in the
parishes where they wish to operate. Thus, the State invited the Court into the charter
school process for the specific purpose of considering its effects on desegregation.”
Cleveland, 570 F. Supp. 2d at 868.
To the extent that there is any ambiguity as to whether and when a stateauthorized charter school in general is required to comply with a local district’s
desegregation order, no such ambiguity exists with respect to public charter schools
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in Louisiana.4 Id. As the authorizer of type-2 charter schools, Louisiana has
explicitly conceded that those schools who choose to open in a district subject to the
desegregation plan must also submit to that plan. La. R.S. § 17:3991(C)(3). And
nothing in state law suggests that type-2 charters are exempt from this requirement.
Indeed, at no point below did GGCA ever argue that the district court’s
jurisdiction was “inappropriate” or that the imposition of a desegregation order on
GGCA constituted an “impermissible interdistrict remedy.” GGCA Br. at 18. In
moving to intervene, GGCA itself conceded that the “State of Louisiana requires
prospective Charter Schools to request Authority from this Court to operate a charter
school in St. James Parish . . . and this Court has the authority to decide on such
requests to open any new public school or charter school in St. James Parish.”
ROA.163. Similarly, in its motion for authority to operate, GGCA again admitted
that “Louisiana requires prospective Charter Schools to request Authority from this
Regarding GGCA’s claim (at 23-25) that the Berry and Cleveland courts did not address
whether ordering a state-authorized charter school to comply with a local school district’s
desegregation order constituted an improper “interdistrict” remedy—GGCA is simply wrong. In
Berry, the court noted that Michigan was a defendant that had “been adjudicated liable,” and thus
found that applying the local desegregation order to the charter was appropriate as the state could
not be allowed to fund charters that would “have a detrimental effect on the efficacy of the remedial
order.” 56 F. Supp. 2d at 872. In Cleveland, in addition to relying on state law, La. R.S. §
17:3991(C)(3), the court also found that the local board stood in the place of the state—the charter
authorizer—insofar as it “acted as the ‘public body of the State of Louisiana charged with the duty
of administering the [local parish] schools.’” 570 F. Supp. 2d at 868; see Stokes v. Harrison, 238
La. 343, 377 (La. 1959) (“a parish school board is an agency of the State”); Netherton Co. v.
Caddo-Shreveport Sales & Use Tax Comm’n, 621 So. 2d 22, 24 (La. Ct. App. 1993) (same).
4
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Court to operate a charter school in St. James Parish, pursuant to Louisiana Revised
Statutes Annotated 17:3991(C)(3), and this Court has the authority to decide on such
requests to open any new public school or charter school in St. James Parish.”
ROA.220. And, finally, in the memoranda in support of its motion, GGCA stated
that “[u]nder Louisiana Revised Statute 17:39991(C)(3), Louisiana charter schools
shall be subject to any court-ordered desegregation plan in effect for the city or
parish school system.” ROA.440. GGCA is thus estopped from asserting a position
on appeal that is contrary to a position that it repeatedly took on the same issue when
before the district court. Ergo Sci., Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996).
B. Type-2 Charter Schools are not Exempted from Louisiana Law
GGCA’s argument that it is its own school district relies on the fact that, as a
type-2 charter, some of its students come from outside of the District. GGCA Br. at
19, 22. Yet, most of GGCA’s students (77%) came from within the District.
ROA.443. Equally important, Louisiana law does not indicate that this fact matters.
While it may be true that a private school, or a charter school located in
another district without a desegregation order, or a “virtual” school without a
physical location is not always subject to operative desegregation orders, that is not
the case here. GGCA Br. at 14-15. GGCA chose to open a physical school within
the confines of the District. And GGCA knew, at the outset, that doing so would
subject it to the District’s desegregation plan. State law and BESE’s authorization
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letter informed it of as much. ROA.608. At that time, GGCA could have chosen
another location if it did not want to comply with this clear law. Alternatively, it
could have raised these jurisdictional issues before the district court. It did neither.
While GGCA questions the wisdom of Louisiana law, it cannot and does not
attack the validity of the law or offer any credible reason why it should not be
enforced. It would be particularly inappropriate for this Court to narrow the scope
of state law to carve out type-2 charters where, as here, GGCA failed to raise this
argument before the instant appeal and such an interpretation would undermine the
remedial goals of federal desegregation law. Furthermore, these kind of policy
arguments are appropriately directed at the Louisiana legislature that enacted this
aspect of the charter law; not this Court.
Indeed, allowing type-2 charters to open in districts still under desegregation
orders and operate without any judicial oversight would create an obvious loophole
in desegregation law. In Cleveland, for example, the court found that allowing a
nearly all-white charter school to open at the site of a previously closed de jure white
traditional school in a white area, “would undermine the remedial order by drawing
white students out of more racially balanced schools . . . leaving behind one racially
identifiable white school . . . and creating another.” 570 F. Supp. 2d at 869. It also
found that authorizing the charter would “condone the return of so-called ‘white
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flight’ students who left [the district] to attend private schools, but apparently will
return only if there is a ‘white’ public charter school in a ‘white’ neighborhood.” Id.
Similarly, here, GGCA’s suggestion that this Court should exempt type-2
charters from the state law that requires them to comply with local districts’
desegregation orders could allow such charters to become vehicles for “white flight.”
This Court cannot sanction such a possibility. Cowan, 748 F.3d at 237; see also
Poindexter v. La. Fin. Assistance Comm’n, 275 F. Supp. 833, 857 (E.D. La. 1967)
(striking down a state program of tuition grants to private “white academy” schools
and warning that such systems threaten to “shatter to bits the public school system
of Louisiana and kill the hope that now exists for equal educational opportunities for
all our citizens, white and black”), aff’d, 389 U.S. 571 (1968).
Accordingly, GGCA cannot show that the application of the desegregation
order to it is inappropriate. While the burden on charter schools operating in a district
under a desegregation order is different from charters that operate in other districts,
that burden “is not different from the burden on other public schools in the districts
subject to this court’s remedial order. It is thus eminently fair and reasonable to
impose such burdens.” Berry, 56 F. Supp. 2d at 871.
CONCLUSION
The judgment of the district court should be reversed, and the case remanded
to the district court for appropriate relief.
15
Case: 16-31052
Document: 00513834380
Page: 21
Date Filed: 01/12/2017
Respectfully Submitted,
/s/ Deuel Ross
SHERRILYN A. IFILL
President and Director-Counsel
JANAI S. NELSON
CHRISTINA A. SWARNS
DEUEL ROSS
RACHEL KLEINMAN
CHRISTOPHER KEMMITT
NAACP LEGAL DEFENSE
& EDUCATIONAL FUND, INC.
40 Rector Street, 5th Fl.
New York, NY 10006
(212) 965-2200
[email protected]
[email protected]
[email protected]
GIDEON T. CARTER, III
La. Bar Roll Number 14136
Post Office Box 80264
Baton Rouge, LA 70898-0264
(225) 214-1546
[email protected]
January 12, 2017
16
Case: 16-31052
Document: 00513834380
Page: 22
Date Filed: 01/12/2017
CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of January 2017, I electronically filed
the foregoing with the Clerk of the Court for the United States Court of Appeals
for the Fifth Circuit using the appellate CM/ECF system. Counsel for all parties to
the case are registered CM/ECF users and will be served by the appellate CM/ECF
system.
/s/ Deuel Ross
DEUEL ROSS
Case: 16-31052
Document: 00513834380
Page: 23
Date Filed: 01/12/2017
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32, I hereby certify that this
brief complies with the type-volume limitation of Federal Rules of Appellate
Procedure 32(a)(7)(B)(ii).
1. In compliance with Federal Rules of Appellate Procedure 32(a)(5) and
32(a)(6), the brief has been prepared in proportionally spaced Times New
Roman font with 14-point type using Microsoft Word 2016.
2. In compliance with Federal Rule of Appellate Procedure 32(a)(7)(A), the
brief is fifteen pages or less, excluding the parts of the brief exempted by
Federal Rule of Appellate Procedure 32(f) and Fifth Circuit Rule 32.2. As
permitted by Federal Rule of Appellate Procedure 32(g), I have relied upon
the word count feature of Microsoft Word 2016 in preparing this certificate.
/s/ Deuel Ross
Deuel Ross
January 12, 2017