The opinion of the court was delivered by: ROBERTSON
Opinion for the Court filed by Judge ROBERTSON
ROBERTSON, District Judge: This case is before us on remand from the United States Supreme Court for further proceedings consistent with the Court's decision of May 12, 1997, 117 S. Ct. 1491, 137 L. Ed. 2d 816. The parties have agreed that the record should not be reopened for the taking of additional evidence,
but they have submitted additional briefs. After reviewing the record in compliance with the Supreme Court's opinion, we adhere to our decision of November 18, 1995 granting preclearance under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, to the Bossier Parish School Board's redistricting plan ("the Jury plan"). The facts bearing upon our conclusion are all set forth in the opinions issued with our original judgment, 907 F. Supp. 434 (D.D.C. 1995). The reasons for our decision to adhere to that judgment are set forth below.
In compliance with the Supreme Court's instructions, we have considered the relevance of certain "§ 2 evidence" in evaluating the school board's intent for § 5 purposes. We have considered whether the plan in question "has a dilutive impact . . . [making] it 'more probable' that the jurisdiction adopting that plan acted with an intent to retrogress than 'it would be without the evidence.'" 117 S. Ct. at 1501. We have applied the multi-part test articulated in Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977), to evaluate the school board's purpose. And, we have "addressed appellants' additional arguments that [we] erred in refusing to consider evidence that the board was in violation of an ongoing injunction to remedy any remaining vestiges of [a] dual [school] system." 117 S. Ct. at 1503 (internal quotations omitted).
Before carrying out the tasks assigned to us on remand, and particularly before applying the Arlington Heights test to the record before us, it is necessary to decide what question we are answering. The Supreme Court was clearly interested in our view as to whether considering all of the evidence, the school board has carried its burden of proving that it did not intend to retrogress. The Court "left open for another day the question whether the § 5 purpose inquiry ever extends beyond the search for retrogressive intent." Justice O'Connor's opinion for the Court suggested that we might consider that question on remand.
Justices Breyer and Ginsburg were clearly uncomfortable with leaving the question for another day, "for otherwise the District Court will find it difficult to consider the evidence that we say it must consider," 117 S. Ct. at 1504.
We are not certain whether or not we have been invited to answer the question the Court left for another day, but we decline to do so in this case, because the record will not support a conclusion that extends beyond the presence or absence of retrogressive intent. We can imagine a set of facts that would establish a "non-retrogressive, but nevertheless discriminatory, purpose," but those imagined facts are not present here. The question we will answer, accordingly, is whether the record disproves Bossier Parish's retrogressive intent in adopting the Jury plan.
We must next decide what we mean by "retrogression." The controlling law is clear -- up to a point. "Retrogression, by definition, requires a comparison of a jurisdiction's new voting plan with its existing plan... [citation omitted]. It also necessarily implies that the jurisdiction's existing plan is the benchmark . . . ." 117 S. Ct. at 1497. Intervenor argues that to search for retrogression in a jurisdiction that has never elected a black person to its school board is a fool's errand, because "it would appear impossible to retrogress from zero." Brief on remand of defendant-intervenors, at 35. But the test of retrogressive intent, in our view, need not depend on the number of black persons elected. The language of Beer v. United States, 425 U.S. 130, 96 S. Ct. 1357, 47 L. Ed. 2d 629 (1976), is just as applicable to the "purpose" inquiry as to the "effect" inquiry. Thus, a plan has an impermissible purpose under § 5 if it is intended to "lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer, 425 U.S. at 141, 96 S. Ct. at 1364. That test is broad enough to identify "retrogression" regardless of the outcome of an election, if (to imagine an example not present in this case) polling places were located so that they are less convenient to black voters than before the change, or if (for an example closer to the facts of this case) downward adjustments were made in the percentage of black voters in one or more districts.
In applying the standard set forth above to the record of this case we adhere to our earlier attempt to fashion a method of analysis, set forth in our earlier opinion, 907 F. Supp. at 445-446, that acknowledges the difficulty of the school board's burden to prove the absence of discriminatory intent. Thus, we begin again with the observation that the school board's resort to the pre-cleared Jury plan (which it mistakenly thought would easily be pre-cleared) and its focus on the fact that the Jury plan would not require precinct splitting, while the NAACP plan would, were "legitimate, non-discriminatory motives" entitling the school board to a finding that it had presented a prima facie case for preclearance.
The first Arlington Heights factor is "the impact of the official action -- whether it 'bears more heavily on one race than another.'" 429 U.S. at 266, 97 S. Ct. at 564. In this case, the question is whether the Jury plan bears more heavily on blacks than the pre-existing plan. The intervenor, referring to stipulations of record, argues that
the board knew that the black population was growing in the northern portion of the county, where District 4 of the 1980's plan already had a black voting age population of 42.1 percent. . . Faced with that information . . . the board chose a plan that extended District 4 to the southeast and decreased the black voting age population to 40.9 percent. . . . The board offered no race-neutral explanation for these changes. Therefore the board failed to carry its burden of proving that such changes were not intended to have their foreseeable effect: 'to worsen the position of minority voters.'
Brief on Remand of Defendant-Intervenors, at 36-37. That percentage shift in dilution, even though it applies to only one of the twelve districts in question, might indeed be enough to rebut the non-discriminatory reasons advanced by the school board, were it not for the fact that the parties have stipulated the point away, agreeing that this reduction, and the reduction of the black population in another district from 36.9 percent to 36.1 percent, are de minimis. Stip. P 252.
The intervenor points to a number of other allegedly dilutive impacts of the Jury plan in support of its discriminatory intent argument: that some of the new districts have no schools, that the plan ignores attendance boundaries, that it does not respect communities of interest, that there is one outlandishly large district, that several of them are not compact, that there is a lack of contiguity, and that the population deviations resulting from the jury plan are greater than the limits (+- 5 %) imposed by Louisiana law. Two of those points -- failure to respect communities of interest and cutting across attendance boundaries -- might support a finding of retrogressive intent, if there were any corroborating evidence that the school board had deliberately attempted to break up voting blocks before they could be established or otherwise to divide and conquer the black vote. In the absence of such evidence in this record, however, the point is too theoretical, and too attenuated, to be probative.
The second Arlington Heights factor is the historical background of the school board's adoption of the jury plan. That background is summarized at 907 F. Supp. 434 at 455-56 and provides powerful support for the proposition that the Bossier Parish School Board in fact resisted adopting a redistricting plan that would have created majority black districts. Part of that history is the school board's resistance to court-ordered desegration, and particularly its failure to comply with the order of the United States District Court in Lemon v. Bossier Parish School Board, 240 F. Supp. 709 (W.D. La. 1965), aff'd 370 F.2d 847 (5th Cir. 1967), cert. denied, 388 U.S. 911, 18 L. Ed. 2d 1350, 87 S. Ct. 2116 (1967), that it maintain a bi-racial committee to "recommend to the School Board ways to attain and maintain a unitary system and to improve education in the parish." Stip. P 111. All of that history is ...