Earl Panior and William M. Johnson, on Behalf of Themselvesand All Others Similarly Situated, Plaintiffs-appellants, v. the Iberville Parish School Board et al., Etc., Defendants-appellees, 498 F.2d 1232 (5th Cir. 1974)

The District Court approved a reapportionment plan for electing members to the Iberville Parish School Board (Board). The plan's operation results in (i) two districts being over-represented by over 21%, two under-represented by over 15%-- a total diviation of 37.45%, and (ii) several incumbents (elected under the previous, concededly malapportioned ward system) being automatically continued in office. Appellants, self described as a class of under-represented black residents of Iberville Parish, claim the new plan violates their federal constitutional rights to fair representation. We agree.

The Board first complains appellants should have pursued a remedy in the Louisiana courts, under the state reapportionment statute. (See note 1, infra). But that ignores the function of the Fourteenth Amendment which secures the equal protection of minorities' rights from the inequalities imposed upon them by state laws. In particular, this includes not only every citizen's right to vote, but the right to have that vote count as such as any other voter's. Reynolds v. Sims, 1964, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506.

The Board, presumably responding to the laudable recent statute¹  requiring equality in Louisiana School Board elections, adopted the challenged 15-district representation plan to replace an earlier state legislatively imposed 9-ward system which had disparities running as high as 48% Under and 42% Over representation. In contrast to the previous ward plan, the new-districts are claimed to have been disigned to conform to the four elementary-to-high school sub-systems existing in four 'communities-of-interest', (i) Maringouin, Rosedale, and Grosse Tete, (ii) Metropolitan Plaquemine, (iii) White Castle, and (iv) a two-district area on the 'other' (East²  side of the Mississippi River.

At the outset there is the question of whether the governmental responsibilities and operations of the Parish School Board call for the one-man-one-vote standard. On argument the Court called for additional briefs. We are of the clear view that the principle applies. Under Louisiana law the Board has the power to determine the number of schools to be operated by the parish and their location, to employ and discharge all employees of the school system including teachers and principals, to fix salaries of all employees, to purchase property and equipment and to construct schools, to lease and sell school system property, and to assign students to the various schools. See, La.R.S. 17:81-17:87, 17:104, 17:443.³ 

These responsibilities and activities are the substantial equivalent of the governmental operations declared to be adequate in Hadley v. Junior College District, 1970, 397 U.S. 50, 90 S. Ct. 791, 25 L. Ed. 2d 45.⁴ 

Relying on Hadley, federal courts have consistently held elected state boards of education and local school boards bound by the 'one person, one vote' standard. Powers v. Maine School Administration District, No. 1, D. Me., 1973, 359 F. Supp. 30 (district board); LoFrisco v. Schaffer, D. Conn., 1972, 341 F. Supp. 743 (local board), summarily aff'd, 1972, 409 U.S. 972, 93 S. Ct. 313, 34 L. Ed. 2d 236; Leopold v. Young, D. Vt., 1972, 340 F. Supp. 1014 (district board); Dameron v. Tangipahoa Parish Police Jury, E.D. La., 1970, 315 F. Supp. 137 (Parish school board); Fahey v. Lexalt, D. Nev., 1970, 313 F. Supp. 417 (state board). See also, Dundee v. Orleans Parish Board of Supervisors of Elections et al., 5 Cir., 1970, 434 F.2d 135. And we do not regard subsequent Supreme Court cases dealing with specialized situations as significantly undermining Hadley or its holding.⁵ 

When it comes to the merits the Board wholly failed to supply a record justification for the 37.45% Deviation from numerical equality among the 15 new districts.⁶  And in assaying the initial arithmetical achievement of the ideal the deviation is the total of the extreme over-representation and the extreme under-representation (see Dist. A and B as under-represented and Dist. I and J as over-represented. App., infra). Indeed, this seems to have been the source of the trial Judge's misjudgment on the extent of the disparity and hence the need for corrective action. For in a number of ways he was positive that the deviation began with zero either up or down, but not both. But in this world of constitutional numbers the test lays the voting strengh of the most disadvantaged voter against that of the most overprivileged. Mahan v. Howell, 1973, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320; Abate v. Mundt, 1971, 403 U.S. 182, 91 S. Ct. 1904, 29 L. Ed. 2d 399.

The principal factor urged by the Board is the existence of the four so-called communities of interest. Complicating, but a part of that, is the geographical separation of the area on the East Bank of the River. We do not doubt that, as in many essentially rural parishes throughout the state or in counties throughout the land, there are here the four pretty well definable groupings, clusters of people, with the natural commercial and social activities flowing from these concentrations. But these facts do not justify the marked deviation in the election of this body.

There is first the fact of history. In the thirty some years in which the highly disparate 9-ward plan was in effect the school system operated without any indicated difficulty through a 9-man Board elected from ward lines bearing no conscious relationship to the four communities of interest.

When it came time to reapportion as the 1970 law required, the Board acted commendably in seeking the assistance of the staff of the Louisiana School Board Association and the Public Affairs Research Council (PAR). Eleven plans were submitted by PAR and the 15-man plan adopted was substantially a joint product of the Board and PAR. But in laying down guideline criteria to PAR for development of a plan other than those eleven, the Board representatives stressed finding lines which would best assure relection of the incumbents.⁷  And considering that PAR was sought out for its familiarity with the problem of reapportionment of Louisiana governmental units and thereby had a non-legal working knowledge of Supreme Court cases on factors and percentages, it is significant that its Director of Research (see note 7, supra) stated that PAR would not have recommended the 15-man plan adopted.

And all these possible subjective motivations aside, the most important thing is the statutory structure of the Board, its duties and responsibilities. (See note 3, supra). The Board acts as a unit. The Board as a whole has the responsibility for operating all of the schools. The Board's function and responsibility is not decentralized into the four segments. Granted that it is both understandable and permissible that election lines may be drawn to take into account centers of interest, this cannot justify deviations approaching those here for election to an operative body which has to act as a unit. Not only must it act as a unit, its actions may have parish-wide consequence on voters.

Each voter is, therefore, entitled, so far as practicable, to an equal voice in the ultimate responsibility for such actions whether the brick and mortar are to go to the East Bank or to Metropolitan Plaquemine. Whether any set of conceivable circumstances could justify a situation such as this where two voters in two districts all but equal three voters in two others, we simply hold this case falls far short of that mark. The Supreme Court has approved a 16.4% Maximum deviation, Mahan v. Howell, 1973, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320, but it is unlikely to approve a much higher variation-- certainly not one more than twice as great. And none of the local factors stressed here measure up either in historial traditions or impossibility of solution to those which led the Court to approve tolerances it would otherwise have struck down in Mahan or in Abate v. Mundt, 1971, 403 U.S. 182, 91 S. Ct. 1904, 29 L. Ed. 2d 399.

.to cap it all off, the 15-man plan, conceived at least in part with a friendly eye toward incumbents (see note 7, supra) did not leave that the chance or voters' wishes or whims. With respect to those members serving at the time of its adoption the plan itself called for them to complete the terms for which they had been elected under the 9-man ward system with its built-in disparity of 100% (48 and 42%-). Thus, out of a 15-man Board 7 were elected by wards by allocation to Districts which do not at all correspond to the wards from which elected.⁸ 

Obviously the continuation in office of those elected under an admittedly unconstitutional system and in no real sense ever 'elected', i.e., chosen by voters on the more palatable but still unacceptable plan cannot square with one-man one-vote. With respect to these hold-over-carry-over pre-1972 incumbents these terms should end at the earliest-- the word is earliest-- possible time. The upshot of this is that we must remand to the District Court with directions to enter appropriate orders. These will include (i) enjoining election (primaries or general) of any Board members under the 15-man plan, (ii) requiring the termination at the earliest possible time of the terms of those who are serving thereunder (or pre-1972 carry-over incumbents⁹ , (iii) requiring the Board to submit an acceptable plan or plans without delay, (iv) requiring further hearings and determinations on an expedited priority basis, (v) the entry of such other orders as are desirable or appropriate in connection with the electoral process to assure the opportunity for voters to vote in 1974 for Board members under a constitutional plan, and (vi) award of attorney's fees including allowance for services in the Court of Appeals. The mandate shall issue forthwith.

Reversed and remanded.

ON PETITION FOR REHEARING ORDER

The Petition for Rehearing is denied. But the Court does wish to make clear that it did not mean to require earlier action with respect to pre-1972 carry-over members than was allowable as to those elected under the 1972 plan. The 'earliest possible time' need not be 'immediate' and may be considered by the District Judge to be the same for each in order to continue the body in existence pending adoption of a new constitutional plan. The Court meant only that members elected under an impermissible plan may not be carried over (without re-election) into a new plan, regardless of the new plan's acceptability, simply to provide 'continuity'.

 APPENDIX IBERVILLE PARISH SCHOOL BOARD ELECTION DISTRICTS IN EFFECT AFTER MAY 1, 1973 BOARD IDEAL PERCENTAGE MEMBERS POPULATION POPULATION POPULATION DEVIATION PER PER ELECTION OF ELECTION PER BOARD BOARD FROM DISTRICT DISTRICT DISTRICT MEMBER MEMBER IDEAL ------------------------------------------------------------------------------- A 1 2,366 2,366 2,050 k15.36% B 1 2,367 2,367 2,050 k15.36% C 1 2,096 2,096 2,050 k2.24% D 1 1,797 1,797 2,050 -12.24% E 2 4,183 2,091 2,050 k2.00% F 1 2,026 2,026 2,050 -1.17% G 1 2,216 2,216 2,050 k8.09% H 1 2,146 2,146 2,050 k4.68% I 1 1,597 1,597 2,050 -22.09% J 1 1,618 1,618 2,050 -21.07% K 2 4,171 2,035 2,050 -0.73% L 2 4,193 2,096 2,050 k2.24% -------------------------------------------------------------------------------

Note FN* Iberville Parish School Board Statistics incorporated in resolution of

Note Februaryy 8, 1972 adopting new plan R. 58, 60-61.