honor sal and percy on behalf of darin kenny lewis sons as you're aware this case involves a reimportation meant of the schools on the east bank of the mississippi river in ascension parish and i know you're very familiar with the record and you know what happened where we are today is if you would assume that planned to be as implemented by the school board contained no reference to race it was strictly a series of maps demographic data that type of thing what they now call today to be if you assume that that's what was considered by the school board and voted on on the night of january fifteenth  two thousand and eight then i've got a real problem that's what happened in the marion case that's what happened in the spurlock case but they haven't done what we have here did they go by boundaries to try to you call out things  prior to the night that they voted and on the night that they voted these are the only charts that were ever presented to the deliberative members the school board members and ordered to make their distinction between the various alternatives being offered these are the only charts and that's in the evidence in those the findings of fact by the judge this is what they voted on and if you look at this document it is purely demographic data there are no streets here there's nothing like that all it says is total enrollment the population affected the minority percentages and the at risk percentages it's pure demographics it's not geographic after the fact but now somebody new with the streets where because they put these numbers in here but the deliberative members the school board members they weren't discussing streets this wasn't like lower merion where school board members rode school buses and actually went to see how far these kids were from school or anything like that none of that happened if you look at the record none of that happened in this case all of the discussions by the school board members related soley to these two charts the first chart a number one by mr gautreaux laid it all out a whole number of different options and when he laid it out he didn't talk streets he didn't talk geographics he talked demographics how many black people are we going to affect how many at risk students are we going on that seems to get to a maybe a discriminatory purpose which the district court didn't have to get to but to say that looking at what the policy makers were relying on makes it facial racial  classification that means in every case we have to be looking at what individual policy makers are relying on when you get to a much bigger body than a school board say a state legislature when you've got hundreds of people in in courts would have to inquire into what all these different members were relying on when they voted for a plan that on its space doesn't select by race well your honor i wouldn't go beyond this and let's go to the testimony of the school board members themselves as to what they were deliberating on and relying on we are going to look at each case on this background analysis of what people relied on not just what the policy ends up looking like that's correct your honor but there was no evidence there was no evidence at the trial that they relied on anything other than the demographic data as a matter of fact when you look at the the quotes that we cited you know they talked about moving black people and they talked about unitary status and things like that which is not something that you can rely on based on the seattle case  certainly relied on the number of students at the school right and that was the whole motivation was to reduce overcrowding in one school so when they looking at the number that was the initial impetus for the change to start with that is correct but once again they looked at the numbers of the school but you have what did they do your honor and they knew they were doing it because this was pointed out to all dutch town high school the proud of ascension parish as a feeder system it has one title one school one is dissension one hundred percent feeder system title one school so what do they do they look at the demographics they look at everything and they turn around and they move the one title one school from dutch town it's now a very pristine system they don't have these challenges and they move that one title one school into the east ascension feeder system so not only is it it's continues to be one hundred percent power one through out they have now put more at risk students in there and this directly affects the educational opportunity of those kids in that classroom now and i think you raise in the way it happened right after the change to unitary status when i think there's a lot to me to be concerned about here but i'm just not sure how you get to this being an express facial racial classification i mean the state of louisiana the legislature we districts its legislative seats they're looking at greens in the renames of demographic data every time they do that and the supreme court has never said that makes it a racial classification so how do you get around the political redistricting all i can tell you on that your honor is the night they voted and the document they looked at in the document they voted on and the choice they made was based on this document if there was another document that showed streets and all of that those other issues if it existed on that night i don't think it did if it existed on that night there's no evidence that it even existed that night there's no evidence that wasn't created after this meeting what they decided how to divide up the blacks and whites in the at risk kids so in a political redistricting case the plaintiff challenging that would be able to depose every member of the legislature and say what were you looking at the night before you vote i mean maybe that's the right word answer i mean i'm just trying to figure out how this went out in they looked at all of those other factors and they made them a part of the plan and they debated them and when they did and when the deliberative body sat down and looked at everything all of these factors were there they looked at cost they looked at distances they rode school buses they looked at geography they looked at diversity as a part of it it was it was a part of it i think appropriately it should be ok they looked at educational quality if all of these things had actually taken place objectively in ascension parish on the night of january fifteenth and before and if it had been done like spurlock if it had been done like marion county i wouldn't be here tonight i wouldn't be here tonight i would have a case but that's not how it was done that's not how it was done and whether you look at strict scrutiny because i say that this is the plan that was voted on and it has race based distinctions on its face whether you look at it there or whether you look at it under another standard and you start looking for discriminatory intent there i would reference you to the various quotes where the school board every school board member who testified it's clear from the testimony racial balance unitary status all of that was a prime concern you also have to look at the fact that they destroyed evidence this was not even this was not even discussed by the trial court it's funny  honor but if you read the factual findings he says what i just said as to what took place at that meeting in before way down five or six findings later he says but the plan is the plan is the plan and that's the plan that was introduced at trial later no evidence that plan even existed the night he doesn't say that's the plan that was voted on he doesn't say that was the plan that was adopted that's the plan that was implemented and i don't know how he made the jump your honor plan that was adopted later if he's saying that the plan that was adopted that this night didn't then that then i would disagree i would disagree my point there my point there was that the plan that if that plan existed it was somewhere in the bowels of the school board and the school board members weren't looking at it and discussing it they were those maps didn't exist at that time they weren't drawing maps for twenty two different plans in strong maps everywhere they were just giving demographic numbers they were just giving demographic numbers and when you look at what happened the effect is clear when you look at the widening gap widening achievement gap when you look at what's going on in ascension parish east ascension high school now they all say it's improving improving improving but if you look at the numbers well that's great we should be real proud east ascensions getting a little better and dutch down in sound of our taken off in the gap is widening all the time but we should be happy with a majority minority school this is ok we're doing better all the time they're given a sex to teachers they're doing all of this other stuff but they can't address the real problem and dr bates talked about this problem the judge shoved him off we're talking dr bates university of michigan he was on he was one of the moderators in the baton rouge desegregation case he was the expert they brought in and he shoved him off and he testified as  to the detriment to the students in a classroom when you've got more than forty percent at risk students in the classroom he said learning really does not go on it's babysitting did he i read the district court's opinion and based on my review of the record which which isn't this the rule is yours to say that there wasn't an expert testifying on a comparative basis you know i think it's clear that this school is lower performing than the other schools high schools in the district but to show that this plan has a disparate impact it seems like there has to be a comparative inquiry of here was the gap before and now the gap as you said is widening but that was in the explain that that testimony to me was that that was in the record what they had with first of all of the raising of the head with the cult s p s course school performance scores and they come out every year ok and what we showed a trial was yes all of them improved all of them improved but as i said the gap while the gap widened and there's a natural grade inflation beyond that i'm sure you're going to hear that used to since it isn't a scoop well this is louisiana and in louisiana a sixty percent score is an no i don't know of any other system in the world where sixty percent is an eight but when they tell you may please remember sixty percent that's what we're talking about and once again it gets back yet they're wonderful teachers they kill themselves they do the best they can they have great students they kill themselves but they're facing insurmountable odds they're not being faced by the students that dutch town or santa monica the majority but dominantly white schools and when they had a chance to fix it on that night they did just the opposite they did just the opposite they turned around and moved all of these at risk students and enhance the minority numbers so that when you went from thirty eight thirty nine percent today we predicted we predicted it that you would be over fifty percent and within a very short period of time you would have a predominantly minority school and a predominantly at risk group and those are not the same things in the sentient perishing  we have a we have a very strong on already community that is is financially capable and educated when we talk about the at risk students in the east ascension system quite a few of them are the white students so there's a difference here and our whole case is based on when that that this was a discriminatory at an unknown discriminatory act as they were warned it was a discriminatory act when they load it up and enhance the number of at risk students in that school the school that was already the largest minority school and with what they were doing was soon to become a predominantly minority school and everything we predicted has happened do the cases involving over tauriel boundaries in deciding electorial districts and boundaries do those cases apply in this particular case or do we do we look at them in the same way do those have some influence or effect on on how we should look at your case i don't think so your honor but i'm really not i'm not qualified to answer that question i don't think it is i don't think it is and i are those different well i guess i guess they're not defining the right you're talking to electoral rights versus your right to an equal education with those students so in the sense that you're affecting equality or hurting equality i do think that they would apply in that sense it just seems like that but they just seem somewhat different to me and we use those as some sort of guide guidelines to to interpret how we should look at this case with regard to boundaries and we're looking at the school district boundaries those cases we're looking at electoral districts in deciding whether there were too many or not enough minorities and situations of the types of do we do those cases help us in deciding your case there are i think i've already said when you go back and look at the lower merion case in the spurlock case those courts make clear that having  race you know our ballots as a factor to be considered is not inappropriate and i would agree with that my problem here is this was the predominant factor and it was in fact what was geographical but not we're going to have so many percentages of between but they decided to boundaries and if you look at the boundaries there race neutral ok but your honor they didn't look at the boundaries at that point on that night the boundaries were located in the computer the edge a log system and some computer guy said if you do this we do this we do this here that in the numbers would just come over and flash up that's what would happen they had no idea what streets they were talking about when they looked to to be so these streets when even printed out and shown to him until later they were just looking at these demographic numbers and i think that's what's precluded by by the seattle case and for that reason i'm not the decision maker i'm not the policy maker people have asked me what would you do if you could fix it and i say well perhaps in today's world perhaps an ascension parish we need to quit using boundaries and start looking at other ways to to to to arrange participation in schools and that may be the world we're getting to and that may be what we have to do to provide our children effective educations i mean the problem of at risk students in classrooms it's a terrible problem  and i'm standing here today because our school board specifically made it worse for the school system of the subsystem in ascension parish that was predominantly minority thank you  may please the court good morning well you're on our money miss pamela west if it still represent the ascension parish school board i'm joined here today miss and you provide who is representing the superintendent the superintendent is not here today because it is the most important day of the year wheezy and it's back to school day and in ascension parish there today there are over twenty one thousand students who have reported to their assigned schools these kids each of those over twenty one thousand kids have reported to one of twenty eight different schools of based solely on where they live not because of their race whether it be black white hispanic asian american indian we have a lot of races in our in our parish and whether you're a good football player goes and hopefully you're on earth but you know it is louisiana so football ability a baseball ability makes a lot of difference  in any event this school year is the eighth consecutive school year that option two f will be applied in two thousand and eight as opposite stated to alf was a boundary driven plan for student assignment that was adopted they found a law suit about four months later or so they never sought a preliminary injunction even though they raise nine different causes of action this plan has been in effect ever since and what's significant about that is when we get to the point where we need to talk about similarly situated parsons being treated differently or whether there was discriminatory impact in the six years that had that had occurred at the time we came to trial they only came up with three little things that they wanted to point to to prove that they were treated differently you know like any who has been successful in district court were not happy to be here but after receiving the request from the panel for the twenty eight j letter last week took the opportunity to review the standard of review issue and i believe that what we have here is a problem opportunity for this panel to set something straight for the circuit and listening to the argument counsel opposite i think it's even more clear at this point that he is arguing to this court that we need to look at ultimate facts and this courtney's to reweigh those facts he even goes so far now for the first time suggesting that this court should look again at whether the district court properly judge the credibility of the and reasonable i think i mentioned that in my letter brief that i gave to you and i compared the original opinion with the modified opinion and then i looked with real pleasure actually just  believe that your warning there is exactly what we have here that we believe that lewis mr lewis has heard the message that was sent by that opinion and a lot of others and i'm going to read the words that you said because i think they're perfect here if you don't like the trial court's finding the fifth circuit doors are wide open to endless re trials or appeals and you did judge you said that those cases the ransome those cases where the paint where the fifth circuit panels have looked at the ultimate facts and instead of applying the real clear error standard which is supposed to be applied under fifty to a four ultimate fact questions they engage in a balancing a re weighing in their substituting their decisions which is not the correct way to apply clear air or standard in this particular case i think we had the chance for this panel to actually shut that door and not just talk the talk which i think is what happened in their ranks it's project and some of the other cases but to actually walk the walk for our review and that is to look to see whether the trial judge has determined these factual issues such that there is a preponderance of the evidence produced to support that issue sure you may say you know when i may not have decided it that same way on these facts but that's not the role of the circuit court in a clear error standard every view i mean when you look at the pullman standards and it the supreme court specifically said there is no distinction in fifty two between ultimate facts and subsidiary facts it's still a fact question and what we have here are similar to proximate cause being a fact question the most favorable view of the plaintiff's case was given and that point they remain and did a very narrow issue the same issue that's before us here today remained that was the only substantive issue that was really ended because they found the dispute facts with regard to discriminatory intent and discriminatory impact they made some statements with regard to parents involved and reach some conclusions at least opinion which didn't really lead to any conclusive statement i don't believe and i would submit to you that none of that dicta is binding as far as the impact of parents involved the parents involved case is not disc a case we do not have pacific individualized racial classifications which say this kid must go to this school because of their race as a matter of fact and this may be a good time to point this out even the exhibit so that the council opposite gave to you this morning the testicle analysis that was prepared by the superintendent and it shows a comparison of several different plans it doesn't have anything that would be useful in assigning students to schools it just has broad percentages so that's just an awareness of demographics it's nothing that even if it were attached to what the court definitively found to be the play in it there's nothing there to assign kids to the various schools so i believe that that's totally irrelevant to the determination of explicit classifications but to get back to my point this is not appear involved case it's interesting that counsel opposite on behalf of the playing to or the apple appellant has knitted that he does not disagree with any of the fact findings if he doesn't disagree with any of the fact findings why are we here because the fact findings were rich they were broad they were expansive they were very specific and those fact findings specifically supported the ultimate findings of fact which resolved each of these issues i want to point out also that under starred if it supported it if there is a misunderstanding of the of the legal standard or if there is an assertion that he upon the wrong legal standard in this case if you read there there are blue brief and the reply there is absolutely no allegation that the trial court applied the wrong standard as a matter of fact counsel opposite has cited the exact standard of law that the trial court sided with the exception of one little element which is really not determinative at this point so for each and every one of these individual elements of the equal protection test you have a factual determination under the correct legal standard that they just want you to reweigh your honour's this is the political challenge they don't agree politically to this particular student assignment plan which has now been in effect for eight years they were able to review this your position is that we should review this under rational is undisputed throughout the record that this playing on was developed after a long period of time in order to address overcrowding in the dutch town schools which borders the respect and rouge area it just was exploding it exploded so much that they had to take the gym in the middle school and put up dividers to make classrooms so the purpose is undisputed they were trying to even out the student populations at the record shows that at the time believe different some population was five or six hundred students between sentiment dutch town and an e t a after the implementation of two f that that was accomplished at this point we now have pretty much balanced overall student populations and so overcrowding is there is the rational basis it does seem from looking at the statistics that the number of our a student is going up but he's dissention that the standardized test scores like the c t e are showing a drop how do you how was the district were able to find no discriminatory impact with those kinds of numbers well there are two issues at play here first is and i haven't even been able to address the similarly situated issue but we relied on the information we presented to you but with regard to treated differently and discriminatory impact they pointed to three things they pointed to a one year report of a c t scores those scores were nineteen point four for twenty point three and twenty one point three less than a two point difference for one year the advanced placement they gave two years and for one year of schools where us isn't having some sort of resegregation of well your honor let me address that had on this case is not about racial balancing the case before you is not about resegregation they that claim was specifically dismissed and waived it was not addressed on the last appeal lewis won they did not raise that claim in their pretrial order in their summary judgment motion before the court the trial court court didn't address it they didn't even raise that issue again when they tried to raise it to salvage their case here anything to do with racial balancing that they have presented to you is wholly irrelevant  the increase in at risk students the percentage increase was actually greater at dutch town or our son a man than it was that e t a all of them had been creased in the projections did show when increase but here's something interesting if you look at these numbers the projections that they want you to think is part of option two well off the projections actually showed that the percentage of at risk students was going to decrease from the current plan that they had so if you compare what they currently had and if they were to run along keeping that same plan and they adopted option two well of course the number of students receiving train reduced lunch and that's what we're talking about are going to increase they increase at every school but the projection showed that it was going to decrease from what their current playing in even was and the statistical analysis that they are claiming is part of option two well if they didn't vote if that was the reason that they voted and there was no evidence that that was a basis for their vote it shows a decrease in the percentage of at risk students  a from the current number i think the current number was forty percent and the superintendent's projection showed it dropping to thirty seven percent to me that suggests that oh well that's going to decrease the number rather than increase the number i didn't want to point out about the discriminatory impact treated differently issue that the judge's findings specifically stated that the board members were in possession of that statistical analysis that the superintendent they were in possession of it the night they voted it six of the members were aware of general racial demographics some of them he knew about gautreaux who is by the way the man who prepared the two page projections you have there he is a member of the board who voted against option two f some of them didn't even remember ever seeing it at all so the judge concluded that he couldn't even be starting how many of them even saw it or were aware of that much less considered it there was no evidence that any board member actually considered this information when they voted to adopt this a student assignment play i'm don't think that's very important and he kind of sloughed off the importance of the increased educational or academic success of the system you can't slough off increased academic success this whole argument that he makes is that having these at risk kids are hurting us  i heard judge really say the other day to one of the attorneys arguing why how did you get hurt i think that's the same question that needs to be asked how were you hard how did how did these three simple statistics the district court judge as i read it basically and i know mr similarly situated applies in a case like this and i think you make that point in your brief but if it does the district court says well they can't the minority students can't show that similarly situated people  different race were treated differently because there's there's some white students that he's dissention is in the comparison to other students in the district and that would basically mean that if you did have some plan that was pushing you know making a school ninety nine point nine percent minority and you that one white student there that you can show similarly situated how do you defend that analysis well i believe that that's a wholly different ballgame when you get to to the scenario that you pointed out and i understand that that was one of his arguments however what we have here is we have a feeder pattern at least let's talk about the high school because that's where all the kids eventually end up we have a high school that has forty eight percent white students and he's claiming that only the minorities are being adversely affected discriminatorily impacted by the presence of at risk kids even as expert said at all students at a school that has a high number of at risk kids are impacted adversely of course all of his test most of his testimony was rejected by the court as having no foundation but in most heavily minority it's one it is a but there is a distinct line of cases from the supreme court and otherwise in this jurisdiction that says an equal protection case cannot be based on a predominant effect just because a predominant amount of a race is affected that's not an equal protection case the heart of an equal protection case is that there is a person of an opposite race who stands in the same position with is with you has to be treated differently what is more standing in the same place says under option two well under pseudonyms sign the plane and then the then the white person who sits in the desk next to you how can that not be more similarly situated now i don't have a problem really with talking about the students at dutch town and stan amar however there are black students there is a well so i think it's difficult would be difficult for the court to resuscitate this absolutely what i believe is the dio way on that equal protection element the fundamental proof that he has to show is that some white person was treated differently that there was a similarly situated white person treated differently if i thought white kids in the same class as me how can i be treated differently than them and i believe that upon testimony at trial the court clearly solve that and recognize that based of all around her she talked about percentages and at risk in that between the high schools you know they say numbers don't lag but we have some other things going on well of course the percentage at least ascension they started with a larger base number so their percentage of growth is going to be smaller on a percentage basis when you have schools that have almost no at risk students and they get ten more they may have a twenty five percent increase in a can get up forty eight more and only have a two percent increase because they're starting with a larger number so that's that's deceptive back to talking about the whole geographic district thing what struck me as i was sitting there listening to or was that all you have to do today is use whatever basis you want and make what changes you want and then at the end of the day wrap it in a geographic line in the informal as in the form of geographics and guess what you've just killed in the civil rights claim because you did it on geographic's and that's what happened here you want to kill every civil rights going right that's your own and it's going to comes down to it when you look at the scores you look at the school as you look at the s p s scores and she you know we have a wonderful school board p r department and if you read the local newspaper we've got the greatest schools in the world that sounds really good school these dissensions below average is dissension is getting worse and that's just a fact and if we can't come to this court and hopefully get some kind of relief in the civil rights program in this in this country has a problem thank you