SUPREME COURT OF THE UNITED STATES

                                    --------
                            Nos. 95-1455 AND 95-1508
                                    --------
                          JANET RENO, ATTORNEY GENERAL,
                                    APPELLANT
     95-1455                           v.
                                       __
     BOSSIER PARISH SCHOOL
     BOARD ET AL.

     GEORGE PRICE, ET AL., APPELLANTS
     95-1508                           v.
                                       __
                              BOSSIER PARISH SCHOOL
                                  BOARD ET AL.

      ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
                                    COLUMBIA

                                 [May 12, 1997]

  JUSTICE  STEVENS, with  whom  JUSTICE  SOUTER joins,  dissenting  in  part and
concurring in part.

  In my view, a  plan that clearly violates  S2 is not entitled  to preclearance
under S5 of the Voting Rights  Act of 1965.  The majority's contrary  view would
allow the Attorney General  of the United States to place  her stamp of approval
on a  state action  that is  in clear  violation of  federal law.   It  would be
astonishing if Congress had commanded her to do so.  In fact, how-ever, Congress
issued no such command. Surely no such command can be found in the text of S5 of
the Voting Rights Act. (Ftnote. 1)  Moreover, a fair review of the text and the
                       (Ftnote. 1)

                    
____________________

   1)  As originally enacted, S5 provided:
   1)  
 "Sec. 5.  Whenever a State or political subdivision with respect to

which the prohibitions set forth in section 4(a) are in effect shall enact or
seek to administer any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting different from that in
force or effect on November 1, 1964, such State or subdivision may institute an
action in the United States District Court for the District of Columbia for a
declaratory judgment that such qualification, prerequisite, standard, practice,
or procedure does not have the purpose and will not have the effect of denying
or abridging the right to vote on account of race or color, and unless and until
the court enters such judgment no person shall be denied the right to vote for
failure to comply with such qualification prerequisite, standard, practice, or
procedure: Provided, That such qualification, prerequisite, standard, practice,
           _________
or procedure may be enforced without such proceeding if the qualification,
prerequisite, standard, practice, or procedure has been submitted by the chief
legal officer or other appropriate official of such State or subdivision to the
Attorney General and the Attorney General has not interposed an objection within
sixty days after such submission, except that neither the Attorney General's
failure to object nor a declara-tory judgment entered under this section shall

                       95-1455 & 95-1508 - DISSENT/CONCUR

2                       RENO v. BOSSIER PARISH SCHOOL BD.
                             __

legislative  history of  the 1982  amendment to  S2 of  that Act  indicates that
Congress intended the Attorney General to deny preclearance under S5 whenever it
was clear that a new  voting practice was prohibited by S2.  This  does not mean
that  she must  make  an  independent inquiry  into  possible violations  of  S2
whenever a  request for  preclearance is  made.  It  simply means  that, as  her
regulations provide, she must  refuse preclearance when "necessary to  prevent a
clear violation of amended section 2."  28 CFR S51.55(b)(2) (1996).
  It  is,  of course,  well  settled that  the Attorney  General must  refuse to
preclear a new election procedure in a covered  jurisdiction if it will "lead to
a retrogression in

                    
____________________

bar a subsequent action to enjoin enforcement of such qualification,
prerequisite, standard, practice, or procedure.  Any action under this section
shall be heard and determined by a court of three judges in accordance with the
provisions of section 2284 of title 28 of the United States Code [28 USCS S2284]
and any appeal shall lie to the Supreme Court." 79 Stat. 439.

                       95-1455 & 95-1508 - DISSENT/CONCUR

                        RENO v. BOSSIER PARISH SCHOOL BD.                      3
                             __

the position of  racial minorities with respect  to their effective exercise  of
the electoral franchise."  Beer v. United States, 425  U. S. 130, 141 (1976).  A
                           ____    ______________
retrogressive  effect or  a  retrogressive purpose  is  a sufficient  basis  for
denying a preclearance  request under S5.  Today, however,  the Court holds that
retrogression  is  the  only   kind  of  effect  that  will  justify  denial  of
preclearance under  S5, ante,  at  4-14, and  it assumes  that  "the S5  purpose
                        _____
inquiry [never] extends beyond the  search for retrogressive intent."  Ante,  at
                                                                       _____
14.  While  I agree  that this action  must be remanded  even under the  Court's
miserly interpretation  of S5,  I disagree  with the Court's  holding/assumption
that S5 is concerned only with retrogressive effects and purposes.
  Before explaining  my disagreement  with the  Court, I  think it  important to
emphasize the three factual predicates that underlie our analysis of the issues.
First, we  assume that the plan  submitted by the Board  was not "retrogressive"
because it did not make matters any worse  than they had been in the past.  None
of the 12 districts had  ever had a black majority and a black  person had never
been  elected to  the  Bossier Parish  School  Board (Board).    App. to  Juris.
Statement 67a.  Second, because the majority in both the District Court and this
Court found that even  clear violations of S2 must be precleared  and thus found
it unnecessary to discuss whether S2 was  violated in this action, we may assume
that the  record discloses a "clear violation"  of S2.  This  means that, in the
language  of S2, it is perfectly clear  that "the political processes leading to
nomination  or election  [to positions  on the  Board] are  not equally  open to
participation by members of [the African-American race] in that its members have
less opportunity than other members of the electorate to . . . elect representa-

                       95-1455 & 95-1508 - DISSENT/CONCUR

4                       RENO v. BOSSIER PARISH SCHOOL BD.
                             __

tives of their choice."  42  U. S. C. S1973(b). (Ftnote. 2)  Third, if the Court
                                                (Ftnote. 2)
is correct  in assuming  that the purpose  inquiry under  S5 may  be limited  to
evidence  of "retrogressive intent," it must also  be willing to assume that the
documents submitted in support of the request for preclearance clearly establish
that  the  plan was  adopted for  the  specific purpose  of  preventing African-
Americans from obtaining  representation on the Board.  Indeed,  for the purpose
of analyzing the legal issues, we  must assume that Judge Kessler, concurring in
part and dissenting in part, accurately summarized the evidence when she wrote:

     "The  evidence in  this case  demonstrates  overwhelmingly that  the School
   Board's decision to adopt the Police Jury redistricting plan was motivated by
   discriminatory purpose.  The  adoption of the Police Jury plan  bears heavily
   on the black community because it denies its members a reasonable opportunity
   to elect a candidate  of their choice.  The history  of discrimination by the
   Bossier  School  System  and  the  Parish  itself  demonstrates  the  Board's
   continued  refusal to address the concerns of  the black community in Bossier
   Parish.   The  sequence of  events leading  up to  the adoption  of the  plan
   illustrate  the Board's discriminatory purpose.   The School Board's substan-
   tive  departures   from  traditional  districting  principles   is  similarly
   probative of discriminatory

                    
____________________

   2)  Although the majority in the District Court refused to consider any of
   2)  
the evidence relevant to a S2 violation, the parties' stipulations suggest that
the plan violated S2.  For instance, the parties' stipulated that there had been
a long history of discrimination against black voters in Bossier Parish, see
App. to Juris. Statement 130a-140a; that voting in Bossier Parish was racially
polarized, see id., at 122a-127a; and that it was possible to draw two majority-
              _____
black districts without violating traditional districting principles, see id.,
                                                                          ____
at 76a, 82a-83a, 114a-115a.

                       95-1455 & 95-1508 - DISSENT/CONCUR

                        RENO v. BOSSIER PARISH SCHOOL BD.                      5
                             __

   motive.    Three School  Board members  have acknowledged  that the  Board is
   hostile  to black representation.  Moreover, some of the purported rationales
   for the  School  Board's decision  are  flat-out untrue,  and  others are  so
   glaringly  inconsistent with  the facts of  the case that  they are obviously
   pretexts."  907 F. Supp. 434, 463 (CADC 1995).

If  the purpose and the effect  of the Board's plan were  simply to maintain the
discriminatory status quo as described by Judge Kessler, the plan would not have
been retrogressive.  But,  as I discuss below,  that is not a  sufficient reason
for concluding that it complied with S5.
                                        I
  In  the  Voting  Rights Act  of  1965, Congress  enacted  a complex  scheme of
remedies for racial discrimination in voting.  As originally enacted, S2 of  the
Act was "an  uncontroversial provision" that "simply restated"  the prohibitions
against  such  discrimination "already  contained in  the  Fifteenth Amendment,"
Mobile  v.  Bolden, 446  U. S.  55,  61  (1980) (plurality  opinion).  Like  the
______      _______
constitutional  prohibitions against  discriminatory districting  practices that
were invalidated in cases like Gomillion v. Lightfoot, 364 U. S. 339 (1960), and
                               _________    __________
White v. Regester,  412 U. S. 755 (1973), S2 was made  applicable to every State
_____    _________
and political subdivision  in the country.   Section 5, on  the other hand,  was
highly controversial because it imposed novel, extraordinary remedies in certain
areas  where discrimination  had  been most  flagrant.   See  South  Carolina v.
                                                              _______________
Katzenbach, 383  U. S.  301,  334-335 (1966). (Ftnote. 3)    Jurisdictions  like
                                              (Ftnote. 3)
___________
Bossier

                    
____________________

   3)  Section 4 of the Act sets forth the formula for identifying the
   3)  
jurisdictions in which such discrimination had occurred, see South Carolina v.
                                                             ______________
Katzenbach, 383 U. S., at 317-318.
___________

                       95-1455 & 95-1508 - DISSENT/CONCUR

6                       RENO v. BOSSIER PARISH SCHOOL BD.
                             __

Parish in Louisiana  are covered by S5  because their history of  discrimination
against African-Americans was a matter of special concern to  Congress.  Because
these jurisdictions had resorted  to various strategies to avoid  complying with
court  orders to  remedy discrimination,  "Congress had  reason to  suppose that
[they]  might try similar maneuvers in the future in order to evade the remedies
for  voting discrimination  contained in  the Act  itself." Id.,  at 335.   Thus
                                                            ____
Congress enacted S5, not to maintain  the discriminatory status quo, but to stay
ahead  of efforts  by the most  resistant jurisdictions  to undermine  the Act's
purpose of "rid[ding] the country of racial discrimination."  Id.,  at 315 ("The
                                                             _____
heart of the Act is a complex scheme of stringent remedies aimed at  areas where
voting discrimination has been most flagrant").
  In  areas  of  the  country  lacking a  history  of  pervasive discrimination,
Congress presumed that voting practices were generally lawful.  Accordingly, the
burden of proving a  violation of S2 has always rested  on the party challenging
the  voting  practice.   The  situation  is  dramatically  different in  covered
jurisdictions.  In those  jurisdictions, S5 flatly prohibits the adoption of any
new voting procedure  unless the  State or political  subdivision institutes  an
action  in the Federal District Court for the District of Columbia and obtains a
declaratory judgment  that the change will not  have a discriminatory purpose or
effect.  See 42 U. S. C. S1973c.  The burden of proving  compliance with the Act
rests on  the jurisdiction.   A  proviso to  S5 gives the  Attorney General  the
authority to allow the new procedure to go into effect, but like the immigration
statutes  that give  her broad  discretion to  waive deportation  of undesirable
aliens,  it does  not expressly  impose any  limit on  her discretion  to refuse
preclearance.  See ibid.  The Attorney General's discretion is, however, cabined
                  ______
by regulations that are presumptively valid if they "are reasonable and do not

                       95-1455 & 95-1508 - DISSENT/CONCUR

                        RENO v. BOSSIER PARISH SCHOOL BD.                      7
                             __

conflict with the Voting Rights Act itself," Georgia v. United States, 411 U. S.
                                             _______    ______________
526, 536 (1973).  Those regulations provide that preclearance  will generally be
granted   if  a  proposed  change   "is  free  of   discriminatory  purpose  and
retrogressive  effect"; they also provide, however, that in "those instances" in
which the Attorney General concludes "that a bar to implementation of the change
is necessary  to prevent a clear  violation of amended section  2," preclearance
shall  be withheld. (Ftnote. 4)   There is no basis  for the Court's speculation
                    (Ftnote. 4)
that  litigants would  so "`routinely,' " ante,  at 5,  employ this  10-year old
                                          ____
regulation as to "make  compliance with S5 contingent upon  compliance with S2."
Ante,  at 5.   Nor  do the regulations  require the  jurisdiction to  assume the
_____
burden of proving the absence of vote  dilution, see ante, at 7-8.  They  merely
                                                     _____
preclude  preclearance when  "necessary to  prevent a  clear violation  of . . .
section 2."  While the burden of

                    
____________________

   4)  Title 28 CFR S51.55 (1996) provides:
   4)  
"Consistency with constitutional and statutory requirements.
 "(a) Consideration in general.  In making a determination the Attorney General
      _________________________
will consider whether the change is free of discriminatory purpose and
retrogressive effect in light of, and with particular attention being given to,
the requirements of the 14th, 15th, and 24th amendments to the Constitution, 42
U. S. C. 1971(a) and (b), sections 2, 4(a), 4(f)(2), 4(f)(4), 201, 203(c), and
208 of the Act, and other constitutional and statutory provisions designed to
safeguard the right to vote from denial or abridgment on account of race, color,
or membership in a language minority group.
 "(b) Section 2.  (1) Preclearance under section 5 of a voting change will not
      __________
preclude any legal action under section 2 by the Attorney General if
implementation of the change subsequently demonstrates that such action is
appropriate.  
 "(2) In those instances in which the Attorney General concludes that, as
proposed, the submitted change is free of discriminatory purpose and
retrogressive effect, but also concludes that a bar to implementation of the
change is necessary to prevent a clear violation of amended section 2, the
Attorney General shall withhold section 5 preclearance."  

                       95-1455 & 95-1508 - DISSENT/CONCUR

8                       RENO v. BOSSIER PARISH SCHOOL BD.
                             __

disproving discriminatory purpose  or retrogressive effect is  on the submitting
jurisdiction, if the Attorney General's conclusion that the change would clearly
violate  S2 is challenged,  the burden on  that issue,  as in any  S2 challenge,
should rest on the Attorney General. (Ftnote. 5)
                                     (Ftnote. 5)
  The  Court does not suggest that this regulation is inconsistent with the text
of  S5.   Nor  would  this  be persuasive,  since  the  language of  S5  forbids
preclearance of any voting practice that  would have "the purpose [or] effect of
denying or abridging the right to vote on account of race or color." 42 U. S. C.
S1973c.  Instead the Court rests its entire  analysis on the flawed premise that
our cases hold that a change, even if otherwise unlawful, cannot have an  effect
prohibited  by S5 unless that  effect is retrogressive.   The two cases on which
the Court  relies, Beer v.  United States,  425 U. S.  130 (1976),  and City  of
                   ____     ______________                              ________
Lockhart  v. United  States,  460 U. S.  125  (1983), do  hold  (as the  current
________     _______________
regulations provide) that  proof that a change is  not retrogressive is normally
sufficient  to justify preclearance under S5.   In neither case, however was the
Court  confronted with the question whether that  showing would be sufficient if
the

                    
____________________

   5)  Thus, I agree with those courts that have found that the jurisdiction is
   5)  
not required to prove that its proposed change will not violate S2 in order to
receive preclearance.  See Arizona v. Reno, 887 F. Supp. 318, 321 (DC 1995). 
                           _______    ____
Although several three-judge district courts have concluded that S2 standards
should not be incorporated into S5, none has held that preclearance should be
granted when there is a clear violation of S2; rather, they appear simply to
have determined that a S2 inquiry is not routinely required in a S5 case.  See,
e.g., Georgia v. Reno, 881 F. Supp. 7, 12-14 (DC 1994); New York v. United
_____ _______    _____                                  ________    ______
States, 874 F. Supp. 394, 398-399 (DC 1994); cf. Burton v. Sheheen, 793 F. Supp.
______                                           ______    _______
1329, 1350 (SC 1992) (holding that although courts are not "obligated to com-
pletely graft" S2 standards onto S5, "[i]t would be incongruous for the court to
adopt a plan which did not comport with the standards and guidelines of S2"). 

                       95-1455 & 95-1508 - DISSENT/CONCUR

                        RENO v. BOSSIER PARISH SCHOOL BD.                      9
                             __

proposed  change was  so  discriminatory that  it  clearly violated  some  other
federal law.   In fact,  in Beer-which held  that a  legislative reapportionment
                            ____
enhancing  the position of African-American voters did not have a discriminatory
effect  - the Court stated  that "an ameliorative  new legislative apportionment
cannot violate S5 unless  the new apportionment itself  so discriminates on  the
basis  of  race or  color  as  to violate  the  Constitution."   425  U. S.,  at
141. (Ftnote. 6)  Thus, to the extent that the Beer Court addressed the question
     (Ftnote. 6)                               ____
at   all,  it  suggested   that  certain  nonretrogressive   changes  that  were
nevertheless discriminatory should not be precleared.
  The  Court discounts the significance of the "unless" clause because it refers
to a constitutional  violation rather than a statutory violation.   According to
the Court's reading, the  Beer dictum at most precludes preclearance  of changes
                          ____
that  violate the  Constitution  rather than  changes  that  violate S2.    This
argument is unpersuasive.  As the majority  notes, the Beer Court cites White v.
                                                       ____             ______
Regester,  412  U. S., at  766, which  found unconstitutional  a reapportionment
_________
scheme that  gave African-American residents  "less opportunity  than did  other
residents in the district to participate in the political processes and to elect
legislators of their choice."   Because, in 1976, when Beer was  decided, the S2
                                                       ____
standard  was coextensive with the constitutional standard, Beer did not purport
                                                            ____
to distinguish  between  challenges brought  under  the Constitution  and  those
brought under the statute.  Rather Beer's dictum suggests that  any changes that
                                   ____
violate the standard

                    
____________________

   6)  In Lockhart the Court disavowed reliance on the ameliorative character
   6)     ________
of the change reviewed in Beer, see 460 U. S., at 134, n. 10.  It left open the
                          _____
question whether Congress had altered the Beer standard when it amended S2 in
                                          ____
1982, id., at 133, n. 9, and said nothing about the possible significance of a
      ____
violation of a constitutional or statutory prohibition against vote dilution. 

                       95-1455 & 95-1508 - DISSENT/CONCUR

10                      RENO v. BOSSIER PARISH SCHOOL BD.
                             __

established      in     White      v.      Regester      should      not      be
                        ___________        ______________
precleared. (Ftnote. 7)
            (Ftnote. 7)
  As the Court  recognizes, ante, at 9-10,  the law has changed in  two respects
                           ______
since the announcement  of the Beer dictum.   In 1980, in what was  perceived by
                               ____
Congress  to  be a  change  in the  standard  applied in  White  v. Regester,  a
                                                          _____     _________
plurality  of this Court concluded  that discriminatory purpose  is an essential
element of a constitutional vote dilution  challenge.  See Mobile v. Bolden, 446
                                                           ______    _______
U. S. 55, 62 (1980).   In reaction to that decision, in 1982 Congress amended S2
by placing in  the statute the  language used in the  White opinion to  describe
                                                      _____
what is commonly  known as the "results"  standard for evaluating  vote dilution
challenges.  See 96  Stat.  134 (now  codified  at 42  U. S. C.  SS1973(a)-(b));
Thornburg  v. Gingles,  478  U. S. 30,  35  (1986). (Ftnote. 8)   Thus  Congress
                                                    (Ftnote. 8)
_________     ________
preserved, as a matter of  statutory law, the very same standard that  the Court
had  identified  in Beer  as an  exception to  the  general rule  requiring pre-
                    ____
clearance of nonretrogressive changes.   Because  in 1975, Beer  required denial
                                                           ____
of preclearance for voting  plans that violated the  White standard, it  follows
                                                     _____
that Congress in preserving the White  standard, intended also that the Attorney
                                _______
General should continue to refuse to preclear plans violating that standard.
  That intent  is confirmed  by the  legislative history of  the 1982  Act.  The
Senate Report states:

     "Under the rule of Beer v. United States, 425 U. S.
                        ____    ______________

                    
____________________

   7)  In response to this dissent, the majority contends that, at most, Beer
   7)                                                                    ____
v. United States, 425 U. S. 130 (1976), allows denial of preclearance for those
   ______________
changes that violate the Constitution. See ante, at 10-11.  Thus, the majority
                                           ____
apparently concedes that our "settled interpretation," ante, at 12, of S5 sup-
                                                       ____
ports a denial of preclearance for at least some nonretrogressive changes.
   8)  The amended version of S2 tracks the language in White v. Regester, 412
   8)                                                   _____    _________
U. S. 755, 766 (1973).

                       95-1455 & 95-1508 - DISSENT/CONCUR

                        RENO v. BOSSIER PARISH SCHOOL BD.                     11
                             __

   130 (1976), a voting change which is ameliorative is not objectionable unless
   the change  `itself so  discriminates on the  basis of  race or  color as  to
   violate  the Constitution.'  425 U. S. at  141; see also 142 n. 14 (citing to
                                                   ________
   the dilution  cases from Fortson v.  Dorsey[, 379 U. S.  433 (1965),] through
                            _______     ______
   White v. Regester.   In light of  the amendment to section 2,  it is intended
   _____    ________
   that a section  5 objection also follow  if a new voting  procedure itself so
   discriminates  as to violate  section 2."  S. Rep.  No. 97-417,  p. 12, n. 31
   (1982).

The  House  Report   conveys  the  same  message  in  different  language.    It
unequivocally  states that whether a discriminatory practice or procedure was in
existence before 1965 (and therefore only subject to attack under S2), or is the
product of  a recent change  (and therefore  subject to  preclearance under  S5)
"affects only the mechanism that triggers relief." H. R. Rep. No. 97-227,  p. 28
(1981).   This  statement plainly  indicates that  the Committee  understood the
substantive  standards for S2 and S5 violations  to be the same whenever a chal-
lenged practice  in a covered  jurisdiction represents  a change subject  to the
dictates of S5. (Ftnote. 9)  Thus, it is reasonable to
                (Ftnote. 9)

                    
____________________

   9)  The postenactment legislative record also supports the Attorney
   9)  
General's interpretation of S5.  In 1985, the Attorney General first proposed
regulations requiring a denial of preclearance "based upon violation of Section
2 if there is clear and convincing evidence of such a violation."  50 Fed. Reg.
19122, 19131.  Congress held oversight hearings in which several witnesses,
including the Assistant Attorney General, Civil Rights Division, testified that
clear violations of S2 should not be precleared.  See Oversight Hearings before
the Subcommittee on Civil and Constitutional Rights of the House Committee on
the Judiciary, Proposed Changes to Regulations Governing Section 5 of the Voting
Rights Act, 99th Cong., 1st Sess., 47, 149, 151-152 (1985).  Following these
hearings, the House Judiciary Subcommittee on Civil and Constitutional Rights
issued a Report in which it concluded "that it is a proper interpretation of the
legislative history of the 1982 amendments to use Section 2 standards in the
course of making Section 5 determinations."  Subcommittee on Civil and
Constitutional Rights of the House Committee on the Judiciary, Voting Rights
Act: Proposed Section 5 Regulations, 99th Cong., 2d Sess., Ser. No. 9, p. 5
(Comm. Print 1986).  Although this history does not provide direct evidence of
the enacting Congress' intent, it does constitute an informed expert opinion
concerning the validity of the Attorney General's regulation.

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12                      RENO v. BOSSIER PARISH SCHOOL BD.
                             __

assume that Congress, by endorsing the "unless" clause in Beer, contemplated the
                                                          _____
denial of  pre-clearance for any change  that clearly violates amended  S2.  The
majority by belittling this legislative history, abrogates Congress' effort,  in
enacting the  1982 amendments, "to broaden the protection afforded by the Voting
Rights Act." Chisom v. Roemer, 501 U. S. 380, 404 (1991).
             ______    _______
  Despite this strong  evidence of Congress' intent,  the majority holds that no
deference to the Attorney General's regulation is warranted.  The Court suggests
that  had  Congress wished  to alter  "our  longstanding interpretation"  of S5,
Congress would have made this clear.  Ante, at 4-6.  But nothing in our "settled
                                      _____
interpretation" of S5,  ante, at 12, is inconsistent with the Attorney General's
                        _____
reading of  the statute.  To the contrary, our precedent actually indicates that
nonretrogressive plans that are otherwise discriminatory under White v. Regester
                                                               _____    ________
should not be  precleared.  As neither the language  nor the legislative history
of S5 can be said to conflict with the view that changes that clearly violate S2
are  not entitled to preclearance, there is  no legitimate basis for refusing to
defer to the Attorney General's regulation. See Presley v. Etowah County Comm'n,
                                                _______    _____________________
502 U. S. 491, 508 (1992).
                                       II
  In Part III of its opinion the Court correctly concludes that this action must
be  remanded for  further  proceedings because  the  District Court  erroneously
refused to consider certain evidence that is arguably relevant to

                       95-1455 & 95-1508 - DISSENT/CONCUR

                        RENO v. BOSSIER PARISH SCHOOL BD.                     13
                             __

whether the Board  has proved  an absence  of discriminatory  purpose under  S5.
Because the Court appears satisfied that the disputed evidence  may be probative
of an "`intent to  retrogress,'" it concludes  that it is unnecessary  to decide
"whether the S5 purpose inquiry ever extends beyond the search for retrogressive
intent."  Ante, at 14.   For two reasons, I think  it most unwise to reverse  on
          _____
such a narrow ground.
  First, I agree with JUSTICE BREYER, see ante, at ___,  that there is simply no
                                          _____
basis for imposing  this limitation on the  purpose inquiry.  None of  our cases
have held that S5's purpose test is limited to retrogressive intent. In Pleasant
                                                                        ________
Grove v.  United States, 479 U. S.  462, 469-472 (1987), for  instance, we found
_____     ______________
that the city  had failed to prove  that its annexation  of certain white  areas
lacked a discriminatory purpose.  Despite the fact that the  annexation lacked a
retrogressive effect,  we found it  was subject to  S5 preclearance.  Ibid.; see
                                                                    ________
also  id., at  474-475 (Powell,  J., dissenting)  (contending that  the majority
      ____
erred in holding that a discriminatory purpose could be found  even though there
was no intent  "to have a retrogressive effect").   Furthermore, limiting the S5
purpose inquiry to retrogressive  intent is inconsistent with the  basic purpose
of the Act.  Assume, for example, that the record unambiguously disclosed a long
history of deliberate exclusion of African-Americans from participating in local
elections,  including a  series of  changes each  of which  was adopted  for the
specific purpose of  maintaining the status  quo.  None  of those changes  would
have  been  motivated by  an  "intent  to regress,"  but  each  would have  been
motivated by a  "discriminatory purpose"  as that term  is commonly  understood.
Given the  long settled understanding that S5 of  the Act was enacted to prevent
covered jurisdictions from  "contriving new rules of various  kinds for the sole
purpose of  perpetuating voting  discrimination," South Carolina  v. Katzenbach,
                                                  ______________     ___________
383 U. S., at 335, it is

                       95-1455 & 95-1508 - DISSENT/CONCUR

14                      RENO v. BOSSIER PARISH SCHOOL BD.
                             __

inconceivable  that  Congress  intended  to authorize  preclearance  of  changes
adopted   for  the  sole  purpose   of  perpetuating  an   existing  pattern  of
discrimination.  
  Second, the Court's  failure to make this point  clear can only complicate the
task  of the District Court  on remand. If that court  takes the narrow approach
suggested  by the  Court,  another  appeal will  surely  follow;  if a  majority
ultimately  agrees with  my  view of  the  issue, another  remand  will then  be
necessary.   On  the  other hand,  if  the District  Court  does not  limit  its
consideration to evidence  of retrogressive  intent, and if  it therefore  rules
against the Board, respondents will bring the case back and the Court would then
have to resolve the issue definitively.
  In  sum, both the interest  in orderly procedure  and the fact  that a correct
answer to  the issue is pellucidly  clear, should be sufficient  to persuade the
Court  to state  definitively that  S5  preclearance should  be denied  if Judge
Kessler's evaluation of the record is correct.
  Accordingly, while I  concur in the judgment insofar  as it remands the action
for further  proceedings, I dissent  from the  decision insofar as  it fails  to
authorize proceedings in accordance with the views set forth above.