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Justice Dept. Will Press To End Desegregation Suits

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WASHINGTON--The Justice Department plans to press for the dismissal of nine school-desegregation cases in Georgia, despite indications that the districts in question would prefer not to become involved in the litigation that would be required.

"The law is clear,'' Nathaniel Douglas, chief of the department's educational-opportunities-litigation section said last week. "If a district has complied with its orders, the case should be closed.''

The nine cases have become a test of the department's plan to seek dismissals in any federal desegregation suits in which district officials have complied with relevant court orders for a minimum of three years. Department officials are reviewing as many as 220 such cases to determine if they are eligible for dismissal. (See Education Week, May 25, 1988.)

The department acknowledges in its most recent filing in the case that U.S. District Judge Wilbur Owens would need to rule on the issue of whether the districts have attained "unitary status,'' the legal designation for a district that has fully remedied past constitutional violations.

Such a determination would require a trial because the NAACP Legal Defense and Educational Fund Inc., which represents plaintiffs in the cases, opposes the department's motions for dismissal, officials with both parties said last week.

Whose Proof Burden?

The primary issue dividing Justice and the LDF, who are nominally on the same side in the cases, is which party should bear the burden of proof in any further desegregation-related litigation.

Department lawyers argue in their filing that once a school district has met its constitutional obligations to remedy past discrimination, it should be held to the same standard of proof as a district that had never been found liable for segregation.

Under that standard, any party accusing a district of illegal discrimination would have the difficult task of proving that school officials intended to discriminate when taking the action in question.

Lawyers for the LDF, on the other hand, argue that the protections won in desegregation cases should be permanent, and that school boards should bear the burden of proving that actions that appear discriminatory were in fact motivated by other legitimate concerns.

The LDF, in a brief filed in response to the department's argument, suggests that it would be willing to allow dismissal of the nine Georgia cases if permanent injunctions issued in the cases in 1974 were allowed to remain in effect.

"It is clear that the burden of proof is on the districts under the 1974 orders,'' Mr. Douglas said last week.

Lawyers for eight of the nine districts indicated at a judicial conference in May that they would be willing to leave the 1974 orders in place, according to Norman Chachkin, a lawyer for the LDF.

Lawyers and officials for several of the nine districts have said in interviews that they would prefer to remain under judicial supervision, which they said has not proved burdensome, rather than become involved in lengthy litigation.

But in its brief, the department argues that "the fact that one or two of the three parties may not want the court to determine whether it can lawfully retain jurisdiction of the case does not mitigate the court's obligation to do so, especially when another party in the case--i.e. plaintiff United States--has asked for such a determination.''

The department suggests that a new permanent injunction, which would shift the burden of proof to the plaintiffs, be entered when the cases are dismissed. The next step is up to Judge Owens, who must determine how the cases should proceed.

The department is continuing its review of other cases that might prove eligible for dismissal, but will not file new motions until the Georgia cases are ruled on, Mr. Douglas said last week.

The review has also turned up some school districts in which "there may be a need for enforcement action, and we'll be doing that,'' he said.

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