United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 29, 2005
Charles R. Fulbruge III
No. 03-30395 Clerk
KEVIN PAUL CAVALIER, on behalf of
Hunter Paul Cavalier; JULIE ANN CAVALIER,
on behalf of Hunter Paul Cavalier,
Plaintiffs-Appellants,
versus
SCHOOL BOARD OF CADDO PARISH;
PHILLIP R. GUIN; WILLIE D. BURTON;
GINGER ARMSTRONG; EURSLA D. HARDY;
ALVIN MIMS; MARK MILAM; MICHAEL J.
THIBODEAUX; WANDA J. WRIGHT;
JERRY TIM BROOKS; MILES HITCHCOCK;
MILDRED B. PUGH; and MIKE POWELL,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion 3/1/05, 5 Cir., , F.3d )
Before Judges GARWOOD, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:
A. The panel opinion issued herein March 1, 2005 is hereby
modified in (and only in) the following two respects as set out in
(1) and (2) below, viz:
(1) The last two sentences which begin on page 5 of the
manuscript opinion (also being the third and fourth sentences which
begin in the right-hand column on slip opinion page 1622), reading
as follows:
“Because this consent decree no longer applies to CMMS,
it cannot justify the Board’s policy, and because the
Board shows no other compelling governmental interest for
its racial classification, we hold that the policy is
unconstitutional. Furthermore, even if CMMS were still
subject to the decree, because the Board has not shown
that it has considered any race-neutral means to achieve
its desired racial mix and relies exclusively on a racial
quota, the policy is not narrowly tailored.”
are hereby deleted from the opinion and replaced by the following,
viz:
“Because this consent decree no longer applies to CMMS,
it cannot justify the Board’s policy, and because the
Board shows no other compelling governmental interest for
its racial classification, we hold that on this record it
was error to grant the School Board’s motion for summary
judgment and the policy is unconstitutional.
Furthermore, because the Board has not shown that it has
considered any race-neutral means to achieve its desired
racial mix and relies exclusively on a racial quota, the
policy is not narrowly tailored.”
(2) The first sentence of the second grammatical paragraph
which commences on page 27 of the manuscript opinion (the first
sentence of the third grammatical paragraph in the left-hand column
on slip opinion page 1633), reading as follows:
“Moreover, even if the 1981 Consent Decree were still in
some respects applicable to CMMS, the School Board’s
policy is not narrowly tailored to remedy the present
effects of past segregation, the compelling interest
allegedly supported by the Consent Decree.”
is hereby deleted from the opinion and replaced by the following,
viz:
“Moreover, the School Board’s policy is not narrowly
tailored to remedy the present effects of past
segregation, the compelling interest allegedly supported
by the Consent Decree.”
B. Except as above provided, the panel opinion issued herein
March 1, 2005 is unchanged.
C. The Petition for Rehearing is DENIED. Judge Wiener
dissents from the denial of rehearing.
D. No member of this panel nor judge in regular active
service on the court having requested that the court be polled on
Rehearing En Banc, (FED. R. APP. P. and 5TH CIR. R. 35) the Petition
for Rehearing En Banc is also DENIED.
E. The motion of appellees to “stay the effects of the March
1, 2005 opinion” to “allow the district to operate under its
current admissions policy during the 2005-06 school year” is
DENIED.