Filed: May 17, 2005
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals _ Fifth Circuit FILED NO. 04-30356 May 17, 2005 _ Charles R. Fulbruge III JOANN GRAHAM, Clerk Plaintiff-Appellee; UNITED STATES OF AMERICA, Intervenor Plaintiff-Appellee, versus EVANGELINE PARISH SCHOOL BOARD, Defendant-Appellee, versus EVANGELINE PARISH CHAPTER NATIONAL ASSOCIATION OF NEIGHBORHOOD SCHOOLS; JAMES KIRT GUILLORY; RANDY MCCAULLEY; ERIC KENT GUILLORY; GREG ARDOIN; JEFF LEBLANC; EDDIE DOUGLAS;
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals _ Fifth Circuit FILED NO. 04-30356 May 17, 2005 _ Charles R. Fulbruge III JOANN GRAHAM, Clerk Plaintiff-Appellee; UNITED STATES OF AMERICA, Intervenor Plaintiff-Appellee, versus EVANGELINE PARISH SCHOOL BOARD, Defendant-Appellee, versus EVANGELINE PARISH CHAPTER NATIONAL ASSOCIATION OF NEIGHBORHOOD SCHOOLS; JAMES KIRT GUILLORY; RANDY MCCAULLEY; ERIC KENT GUILLORY; GREG ARDOIN; JEFF LEBLANC; EDDIE DOUGLAS; G..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
_______________________________ Fifth Circuit
FILED
NO. 04-30356 May 17, 2005
_______________________________
Charles R. Fulbruge III
JOANN GRAHAM, Clerk
Plaintiff-Appellee;
UNITED STATES OF AMERICA,
Intervenor Plaintiff-Appellee,
versus
EVANGELINE PARISH SCHOOL BOARD,
Defendant-Appellee,
versus
EVANGELINE PARISH CHAPTER NATIONAL ASSOCIATION OF
NEIGHBORHOOD SCHOOLS; JAMES KIRT GUILLORY; RANDY MCCAULLEY;
ERIC KENT GUILLORY; GREG ARDOIN; JEFF LEBLANC; EDDIE
DOUGLAS; GAIL MCDAVID; MATT MARCANTEL; JOYCIE MAE THOMAS;
ODELIA A BOYKINS; STEVEN CRAIG THIBODEAUX; LEAH D
DUPLECHAIN; LUCY JONES GREEN; JOSEPH EUGENE MCDAVID,
Movants-Appellants.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:05-CV-11053
Before GARWOOD, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
This appeal arises from the district court’s denial of
Appellants’ motion to intervene in a forty-year-old school
desegregation case. Because Appellants have failed to demonstrate
their entitlement to intervene as of right or permissively under
Rule 24 of the Federal Rules of Civil Procedure, we AFFIRM the
district court’s denial and DISMISS the appeal.**
BACKGROUND
The entire history of this case is set forth at length by
the district court and need not be repeated here. See Graham v.
Evangeline Parish School Bd., 223 F.R.D. 407, 410-32 (W.D. La.
2004). In sum, from the inception of the case in 1965 until well
into the 1990s, Evangeline Parish complied unenthusiastically and
half-heartedly with federal desegregation decrees.
In September 1996, the case was assigned to Judge
Tucker L. Melancon, who began a series of meetings with the parties
regarding persisting compliance problems cited in Department of
Justice (“DOJ”) reports. Joint consent decrees were entered in
1997 and 1998. By May 2001, the Government requested a status
conference to resolve the parties’ contentious and strained
relations. With the permission of the School Board, its Acting
Superintendent, the school district’s central office staff, the
school district’s fourteen principals, and the United States, the
**
Judge Prado concurs in the judgment only.
2
district court began conducting individual meetings with the
parties and with individual School Board members regarding
compliance issues. Another joint superseding consent decree
followed, mandating, inter alia: (1) racial diversification of the
school district’s supervisory personnel; (2) affirmative action-
based faculty hiring and assignment; (3) increased school
desegregation; (4) attendance zone modifications; (5) restrained
transfer requirements; (6) semiannual reports; (7) quarterly
meetings; (8) amelioration of disparate facilities and resource
distribution; (9) establishment of a biracial committee to act in
furtherance of unitary status; and (10) development of a
constitutionally compliant desegregation plan by the
Superintendent, his appointed committee, the DOJ, and existing
parties. It seems, from the court’s own account, that many of the
provisions of the 2001 decree were included at its “insist[ence],”
and under the threat of even greater superintendence by the court.
See Graham, 223 F.R.D. at 429 (alluding to the decision of another
federal judge, years earlier, to significantly reduce the number of
schools within a neighboring parish several weeks before the school
term).
At an open school board meeting in February 2003, a
school district representative publicly disclosed that a compliance
plan was in development. In May 2003, James K. Guillory and others
3
founded an Evangeline Parish chapter of the National Association
for Neighborhood Schools (“NANS”). NANS’s stated mission was to
end race-based and socioeconomic-based school assignments and
restore the neighborhood school concept. In late 2003, the members
of NANS became aware that the Superintendent was drafting a
desegregation plan. On September 18, 2003, NANS, in coordination
with the named Appellants (collectively “Appellants”), filed a
motion to intervene in this case. The United States opposed
Appellants’ motion, while the School Board did not take a position
other than to maintain that it could adequately represent the
interests of the school district.
When Appellants served the school district with public
information requests, pursuant to LOUISIANA REV. STAT. § 44:1,
et seq., for information related to the development of the plan,
they were refused. Sometime after issuing the 2001 decree, the
district court had instituted a “gag order” that precluded the
school administrators who were formulating the reorganization plan
from publicly disclosing any information about the plan before its
presentation to the School Board. This order was the basis for the
denial of Appellants’ requests. The administrators were even
forbidden to discuss the plan with School Board members. After
receiving information that a member of the committee was leaking
information about the consolidation plan, the district court
4
conducted an on-the-record meeting with each administrator
individually to address the leak and reiterate the seriousness and
consequences of breaching the gag order. The district court
invoked the possibility of perjury if false statements were made
during the meeting.
In late 2003, the committee of school administrators
completed a draft compliance plan, which called for consolidation
and reorganization of the school district (“consolidation plan” or
“plan”), which serves approximately 6,300 students. The consoli-
dation plan involves, at the high school level, the closure of
three of the seven district schools, re-zoning of the four
remaining schools, creation of a visual and performing arts academy
at Pine Prairie High, and creation of a medical science regents
program at Ville Platte High. The plan’s consolidation and re-
zoning measures are intended to address facility and resource
distribution problems, and broaden the curricular and extra-
curricular opportunities available to the Parish’s student
population. The consolidation plan would result in only slight
changes in the racial composition of the four remaining high
schools, while diversity at the remaining schools would be enhanced
through strategically located arts and regents programs. The
consolidation plan is also designed to maintain the “cultural
integrity” of the Parish’s neighborhoods and the ability of most
5
students to attend a school within a reasonable distance from their
homes.1
In January 2004, the DOJ and Graham plaintiffs approved
the plan, and the Superintendent submitted the plan to the School
Board. In less than two weeks, the School Board conducted six
public meetings to introduce the consolidation plan to the
community and invite public comment. Certain of the Appellants and
members of NANS attended each meeting. In February, the School
Board rejected the plan by a vote of seven-to-six. By order, the
district court asked the United States (as well as the other
parties) to submit another reorganization plan in a short period of
1
Pre-Consolidation Plan Grade White Black Other Total
Students
Basile High School 4-12 366 (81.32%) 76 (16.8%) 8 450
Bayou Chicot High School 4-12 386 (79.7%) 93 (19.2%) 5 484
Chataignier High School 4-12 177 (54%) 151 (46%) 0 328
Mamou High 9-12 185 (62.5%) 110 (37.1%) 1 296
Pine Prairie High 1-12 757 (98%) 13 (1.7%) 4 774
Vidrine High School 1-12 488 (80%) 118 (19.3%) 3 609
Ville Platte High School 7-12 184 (26.5%) 503 (72.6%) 5 692
Post-Consolidation Plan Grade White Black Other Total
Students
Basile High School 5-12 358 (81.74%) 73 (16.67%) 7 438
Mamou High 5-12 537 (61.94%) 328 (37.83%) 2 867
Pine Prairie High PK-4 650 (83.55%) 123 (15.81%) 5 778
9-12
Ville Platte High School 5-12 263 (29.09%) 635 (70.24%) 6 904
6
time. Before that could occur, the School Board voted, eight-to-
five, in favor of the proposed plan. Two Board members, Bobby W.
Deshotel and John D. Landreneau, changed their votes from “no” to
“yes.” The School Board moved the district court for authorization
to implement the plan in time for the 2004-05 school year.
At hearings conducted on March 15 and 16, 2004, the
district court considered Appellants’ motion to intervene. On
March 25, 2004, the district court authorized implementation of the
consolidation plan,2 and the next day denied Appellants’ motion to
intervene. Appellants timely noticed their appeal.
STANDARDS OF REVIEW AND JURISDICTION
We review de novo a district court’s denial of a Rule
24(a)(2) (intervention as of right) motion, applying the same
standards as the district court. Saldano v. Roach, 363 F.3d 545,
550 (5th Cir. 2004). We review a district court’s denial of a Rule
24(b) (permissive intervention) motion for clear abuse of
discretion. United States v. Tex. E. Transmission Corp.,
923 F.2d
410, 416 (5th Cir. 1991).
We have jurisdiction over the district court’s denial of
a motion to intervene as of right. Our appellate jurisdiction over
the district court’s denial of permissive intervention Trans Chem.
2
The court later denied Appellants’ motion to stay authorization of
the plan pending appeal.
7
Ltd. v. China Nat’l Mach. Import and Export Corp., 332 F.3d 815,
821 (5th Cir. 2003)(citing Edwards v. City of Houston,
78 F.3d 983,
992 (5th cir. 1996)), is provisional.
Id. at 821-22. If we affirm
the district court, we must dismiss this case for want of
jurisdiction because proper denial of a motion for permissive
intervention does not constitute a final, appealable decision.
Id.
DISCUSSION
I. Rule 24(a)(2) - Intervention as of Right
Pursuant to Rule 24(a)(2), a movant may intervene as of
right when: (1) the motion to intervene is timely; (2) the movant
has an interest related to the transaction that forms the basis of
the controversy in the case; (3) the disposition of the case has
the potential to impair or impede the movant’s ability to protect
its interest; and (4) the existing parties do not adequately
represent the movant’s interest. Saldano, 363 F.3d at 551 (citing
Doe v. Glickman,
256 F.3d 371, 375 (5th Cir. 2001)). In the
absence of any of these elements, intervention as of right must be
denied. United States v. Franklin Parish Sch. Bd.,
47 F.3d 755,
758 (5th Cir. 1995). This Circuit has held that an “interest” for
Rule 24(a)(2) purposes must be “direct, substantial, [and] legally
protectable . . . [,] one which the substantive law recognizes as
belonging to or being owned by the applicant.”
Saldano, 363 F.3d
at 551 (internal citations omitted). As to the fourth prong, an
8
intervenor need only show that “the representation of his interest
by the existing parties ‘may be’ inadequate.” Id. at 553 (internal
citations omitted).
We affirm the district court’s denial of Appellants’
motion to intervene as of right. Appellants have failed to present
a legally cognizable interest that would be impeded or impaired by
the consolidation plan.3 According to their pleadings, Appellants
seek intervention in order to:
oppose[] [] the “consolidation” of schools, the mandatory
assignment of students . . . because of their race, . . .
and [] the use of tax monies for that purpose when . . .
such action is unnecessary and may be . . . in violation
of the equal protection, due process and other rights of
applicants and their children.
preserve the rights of parents to enroll their children
in . . . the public school nearest their home and to
preserve the identity and traditions of their local
communities, neighborhoods, towns and villages - the
heart of which is the public school.
establish that the Evangeline Parish School system is in
law and in fact unitary (or at the very least, partially
unitary) and that the school system is entitled to be
released from . . . court supervision . . . .
The district court correctly held that “[a]n interest in
maintaining local community schools, without a showing that
consolidation would hamper the avowed goal of eliminating the
vestiges of past discrimination, fails to constitute a legally
3
The parties do not appear to dispute the timeliness of Appellants’
motion.
9
cognizable interest in a school desegregation case.” See Graham,
223 F.R.D. at 432 (citing
Perry, 567 F.2d at 279-80) (concerns
about school location are “unrelated to desegregation and the
establishment of a unitary school system” for purposes of
intervention); see also Franklin
Parish, 47 F.3d at 757, n.1
(noting that the parent group “sensibly abandoned its challenge to
. . . the school board’s determination of the number and location
of schools in the parish”). Appellants’ neighborhood school
interest, while vital to them and their children personally, is not
legally cognizable for Rule 24(a)(2) purposes. As in Perry, the
instant Appellants do not challenge the plan as a deficient
implementation of the standing desegregation orders and 2001
decree. Rather, they challenge it as an undesirable and
unnecessary commitment of resources, given their view, discussed
infra, that the school system is unitary. However, Appellants’
policy views of a school board-approved plan are insufficient to
establish interest.
Perry, 567 F.2d at 279-80.
Next, Appellants have failed to show that the pending
consolidation plan is an impediment to any of their other asserted
interests. Contrary to Appellees’ contention, Appellants do have
a legally cognizable “interest in a desegregated school system,”
which necessarily encompasses their specifically asserted interest
in unitary status. Perry, 567 F.2d at 279. Thus, although
10
Appellants do not have a right to intervene to challenge school
board policy, they may have a basis to challenge the proposed plan
that adversely affects achievement of unitary status.
Appellants contend that any further court-ordered plans
are constitutionally impermissible because the district is in fact
desegregated and should be declared unitary. Unlike the plaintiffs
in Franklin Parish, supra, Appellants here assert present “injury”
from court-ordered racial assignments of students pursuant to the
reorganization plan. But their assertion overlooks the history of
the case, which, until the close of the last century, exhibited the
Parish’s insouciance, at best, toward desegregation orders. See
also
Davis, 721 F.2d at 1441 (rejecting intervention where “the
parents are not seeking to challenge deficiencies in the
implementation of desegregation orders . . . . [but] oppose such
implementation”). Moreover, the consolidation barely affects
existing racial balances in the remaining schools, see
n.1 supra,
but seeks to encourage further voluntary desegregation with magnet
programs. Appellants have not shown how attending a school (Ville
Platte High) with a pre-consolidated population of 692 students and
a 27%/73% ratio of white to black students is more constitutionally
suspect than attending the post-consolidated Ville Platte High,
with 904 students and a 29%/70% white to black racial makeup.
11
Because we have concluded that Appellants’ interests are
legally insufficient under Rule 24(a)(2), we need not dwell on
whether the existing parties adequately represented Appellants’
interests. Were we to do so, the record would be clouded by the
district court’s heavy-handed case management style. This aspect
of the case is not controlled by Franklin Parish, where would-be
intervenors offered “no evidence” that the school board was not
representative of its constituency or had a motivation or interest
different from that of appellants. 47 F.3d at 758. We do not
denigrate the School Board. Appellants testified repeatedly,
however, and without objection or substantial contradiction, that
the Board members to whom they spoke (i.e., most of the members)
voiced serious doubts about the reorganization plan but felt
compelled to vote for it out of concern that failure to pass the
plan would evoke, as the district judge warned, a much more radical
plan from the DOJ.
It might not be unreasonable for laymen to believe that
the Board Members’ concern about further court proceedings led to
a temptation to subservience before the court and perhaps even the
forfeiture of their independent judgment of the best direction for
the Parish’s schools. The recent case history supports that
concern. The court ordered the reorganization plan to be
formulated by a select group of school administrators, while the
12
Board members were not allowed to participate. A strict gag order
cloaked the plan in secrecy. Negotiations among the committee, the
DOJ, and the Graham plaintiffs led to those groups’ agreement on
the plan before the Board was allowed to see it. The Board was put
on the spot by being required to publicize and consider the plan,
which took seven months to formulate, in less than one month. The
district judge spoke personally to the two critical Board members
between the time of their first negative votes and their later
affirmative votes for the plan. At the intervention hearing, the
judge questioned those two Board members at some length to explain
the non-nefarious circumstances of the calls.4 The tone and length
of the court’s opinion on this intervention order, and the candid
recitation of the court’s repeated meetings with the parties,
suggest personal involvement in the case that approaches more of an
administrative than a judicial role.
The test for adequacy of representation by existing
parties is whether the party exhibits “adversity of interest,
collusion, or non-feasance.” Franklin Parish, 47 F.3d at 757.
While the adequacy of the School Board’s representation is
presumed,
id., the burden of showing inadequacy is not stringent.
The record developed here could create a perception, whether
4
The court found, in a finding supported by the testimony, that these
Board members changed their votes for reasons not having anything to do with the
telephone calls with the judge.
13
justified or not, that the Board forfeited its role to the district
court. As previously stated, we need not decide the adequacy
question here. We caution the court, however, to limit itself to
traditional judicial decisionmaking rather than school adminis-
tration, and to refrain from day-to-day management of its decrees.
II. Rule 24(b) - Permissive Intervention
Rule 24(b) provides for permissive intervention when:
(1) the motion is timely; (2) a statute of the United States
confers a conditional right to intervene; or (3) the movants’
“claim or defense and the main action have a question of law or
fact in common.” FED. R. CIV. P. 24(b); Trans Chem. Ltd. at 822
(quoting FED. R. CIV. P. 24(b)(2)). The district court’s Rule 24(b)
determination is “wholly discretionary.” Kneeland v. Nat’l
Collegiate Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir. 1987).
Thus, “even [where] there is common question of law or fact, or the
requirements of 24(b) are otherwise satisfied,” a district court
may deny permissive intervention if such would “unduly delay or
prejudice the adjudication of the rights of the original parties.”
Kneeland, 806 F.2d at 1289. Denials of permissive intervention are
only subject to reversal if extraordinary circumstances so require.
Trans Chem.
Ltd., 332 F.3d at 822. We see no extraordinary
circumstances here, so the court’s decision will be upheld.
14
CONCLUSION
For the foregoing reasons we AFFIRM the district court,
and DISMISS this case for want of jurisdiction.
15
