U S COURT OF APPEALS FOR THE FIFTH CIRCUIT Pls-Reply-Br-5CA-stjames... · Netherton Co. v. Caddo-Shreveport Sales & Use Tax Comm’n, ... Villanueva v. Carere, ... law or ask this

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]

Case: 16-31052 Document: 00513834380 Page: 1 Date Filed: 01/12/2017

i

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

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

III. 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


ii

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


iii

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


iv

PAGE(S)

STATUTES & REGULATIONS:

La. R.S.

§ 17:3991(C)(3) ........................................................................................ 1, 2-3, 12


1

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 Plaintiffs-

Appellants’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.”


2

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


3

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.


4

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 re-

establish” segregation. Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 460 (1979).


5

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.


6

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.


7

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.

3 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.


8

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


9

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 one-

race 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.


10

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


11

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 state-

authorized 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


12

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

4 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).


13

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


14

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


15

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.


16

Respectfully Submitted,

GIDEON T. CARTER, III

La. Bar Roll Number 14136

Post Office Box 80264

Baton Rouge, LA 70898-0264

(225) 214-1546

[email protected]

/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]

January 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


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


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