UNITED STATES of America, Plaintiff–Appellee,
v.
The STATE OF MISSISSIPPI, et al., Defendants.
The STATE OF MISSISSIPPI and the Newton County School District,
Defendants–Appellees,
v.
The HICKORY IMPROVEMENT ASSOCIATION, etc., et al., Appellants.
No. 91–1449.
United States Court of Appeals,
Fifth Circuit.
April 15, 1992.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before THORNBERRY, KING, and DEMOSS, Circuit Judges.
THORNBERRY, Circuit Judge:
The Hickory Improvement Association (the "Association")
appeals the district court's denial of its motion to intervene in
this school desegregation case. The Association is a
racially-integrated group of parents and guardians of children
affected by the Newton County, Mississippi School Board's plan to
reorganize the Newton County schools. The reorganization plan was
presented to the federal district court for approval because the
court retained jurisdiction over Mississippi's schools after
entering an order desegregating the schools in 1970. The
Association sought to intervene in the district court suit in order
to oppose the school board's reorganization plan. The district
court denied the Association's motion to intervene, and the
Association appeals.
Background
In the fall of 1989, the Newton County School Board began
considering a plan to reorganize the district's schools to
alleviate financial pressures on the district. The plan was
discussed and debated at school board and PTA meetings that fall.
Among other things, the plan sought to consolidate the district's
three elementary schools at one school in Decatur, Mississippi,
which is located near the geographic center of Newton County.
Although the School Board was primarily interested in the increased
efficiency of consolidation, the reorganization would also produce
a unitary system completing the desegregation of the Newton County
schools. Members of the Association opposed consolidation because
they lived in outlying Hickory, Mississippi, and the reorganization
plan would increase the length of time their children would spend
on buses to and from school. Despite these objections, the School
Board approved the reorganization plan at a school board meeting
held on January 22, 1990.
The school district, however, was subject to a federal court
order entered in 1970 desegregating the Mississippi schools. Prior
to implementing the reorganization, the School Board moved to
modify the 1970 order to allow the reorganization. On July 5,
1990, the district court granted the School Board's motion to
modify the 1970 order according to a schedule submitted by the
School Board along with its motion. According to that schedule,
the reorganization would be phased in between the 1991 and 1995
school years, with the Hickory elementary school to be closed in
1993. On December 14, 1990, the School Board elected to accelerate
the reorganization and began seeking bids for the construction of
the new elementary school in Decatur. According to the accelerated
schedule, the Hickory elementary school would be closed in 1991.
In February 1991, the School Board sought modification of the
district court's July 5, 1990 order to allow acceleration of the
timetable for the reorganization.
Prior to the district court's receipt of the motion to
accelerate the schedule for reorganization, the Association moved
to intervene in the district court action in order to challenge the
court's July 5, 1990 order approving the reorganization plan and to
oppose the acceleration of the reorganization. The district court
held a hearing on the motion to intervene on February 27, 1991, and
entered an order denying intervention on April 2, 1991. The
Association appeals.
Discussion
The Association asserted three alternative bases for
intervention under Rule 24 of the Federal Rules of Civil Procedure:
first, that 20 U.S.C. § 1717 provides an unconditional right of
intervention under Fed.R.Civ.P. 24(a)(1); second, that
Fed.R.Civ.P. 24(a)(2) provides a right to intervention because the
Association's interest in the litigation is inadequately
represented by existing parties; and third, that the district
court erred by denying the Association permissive intervention
under Fed.R.Civ.P. 24(b). We will address each claim in turn.
A. Statutory Right of Intervention under Fed.R.Civ.P. 24(a)(1)
Rule 24(a)(1) of the Federal Rules of Civil Procedure
provides for mandatory intervention "when a statute of the United
States confers an unconditional right to intervene." Fed.R.Civ.P.
24(a)(1). In Cisneros v. Corpus Christi Independent School
District, we held that 20 U.S.C. § 1717 creates merely a
conditional right of intervention, and therefore does not provide
proposed intervenors with an absolute right to intervene under
Fed.R.Civ.P. 24(a)(1). Cisneros v. Corpus Christi Independent
School District, 560 F.2d 190, 191 (5th Cir.1977), cert. denied,
434 U.S. 1075, 98 S.Ct. 1265, 55 L.Ed.2d 781 (1978). The
Association urges us to abandon Cisneros and grant the Association
mandatory intervention pursuant to an unconditional statutory right
under 20 U.S.C. § 1717. We decline the invitation to do so.
The court in Cisneros based its holding upon the statutory
language of 20 U.S.C. § 1717. Section 1717 provides that:
A parent or guardian of a child ... transported to a public
school in accordance with a court order ... may seek to reopen
or intervene in the further implementation of such court
order, currently in effect, if the time or distance of travel
is so great as to risk the health of the student or
significantly impinge on his or her educational process.
20 U.S.C. § 1717 (1990) (emphasis added). We agree with the prior
panel that the legislature's use of the permissive language "may
seek to intervene" creates a conditional right of intervention,
taking the statute out of the purview of Fed.R.Civ.P. 24(a)(1). We
are unpersuaded by the Association's proposed analogy to U.S. v.
Metropolitan St. Louis Sewer District because the statute at issue
there, 33 U.S.C. § 1365(b)(1)(B), differs significantly from 20
U.S.C. § 1717. See U.S. v. Metropolitan St. Louis Sewer District,
883 F.2d 54 (8th Cir.1989). 33 U.S.C. § 1365(b)(1)(B) provides
that "any citizen may intervene as a matter of right. " 33 U.S.C.
§ 1365(b)(1)(B) (1988) (emphasis added). This statutory language
clearly evinces the legislature's intent to provide for a mandatory
right of intervention. The contrast between the language of 33
U.S.C. § 1365(b)(1)(B) and the language of 20 U.S.C. § 1717
convinces us that Cisneros interpreted 20 U.S.C. § 1717 correctly.
We therefore affirm the district court's denial of intervention on
this ground.
B. Mandatory Intervention under Fed.R.Civ.P. 24(a)(2)
Our reaffirmance of Cisneros guides our analysis of the
Association's claim of a mandatory right of intervention under
Fed.R.Civ.P. 24(a)(2). Rule 24(a)(2) grants a mandatory right of
intervention "when the applicant claims an interest relating to the
property or transaction which is the subject of the action and the
applicant is so situated that the disposition of the action may as
a practical matter impair or impede the applicant's ability to
protect that interest, unless the applicant's interest is
adequately represented by existing parties." Fed.R.Civ.P.
24(a)(2). To intervene under Rule 24(a)(2), the Association must
assert a "direct, substantial, legally protectable interest in the
proceedings." Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1124
(5th Cir.), cert. denied sub nom., Trefina v. U.S., 400 U.S. 878,
91 S.Ct. 118, 27 L.Ed.2d 115 (1970). As set forth above, 20 U.S.C.
§ 1717 creates merely a permissive right of intervention, provided
for under Rule 24(b). Conversely, the interest recognized in §
1717 is not legally protectable by mandatory intervention.
We recognized this principle in our 1978 decision in U.S. v.
Perry County Board of Education, 567 F.2d 277 (5th Cir.1978).
Although the proposed intervenors in Perry County did not base
their right of intervention on 20 U.S.C. § 1717,1 the nature of the
interest claimed was the same as the interest asserted here. The
proposed intervenors in Perry County opposed the construction of a
centralized consolidated high school at the school board's chosen
site, based on the intervenors' concern for the safety and welfare
of school children and the impact of the travel distance required
to attend school at the new location. See Perry County, 567 F.2d
at 279 & n. 3. The panel found that, because the intervenors'
opposition to the school board's decision was based on policy
reasons unrelated to desegregation, the interest asserted was
insufficient to trigger a mandatory right of intervention in a
school desegregation case under Rule 24(a)(2). We agree with the
Perry County panel that "[t]hese matters of policy are to be
determined by the Board of Education, not by the federal courts."
Id. at 280.
This reasoning relates as well to the requirement of
inadequate representation under Rule 24(a)(2). The Association has
1
The statute was, however, available to them at that time.
20 U.S.C. § 1717 was enacted in 1974, and the Perry County
decision was reached in 1978.
not shown that the School Board's interests are adverse to the
Association's interests or that the School Board has acted in bad
faith. See U.S. v. Board of School Commissioners of the City of
Indianapolis, Indiana, 466 F.2d 573 (7th Cir.1972), cert. denied
sub nom., Citizens of Indianapolis for Quality Schools, Inc. v.
U.S., 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973). The
School Board as a whole considered the Association's arguments in
opposition to consolidation at school board and PTA meetings, but
were pressured by financial hardship to consolidate in spite of
those concerns. Cf. Hines v. Rapides Parish School Board, 479 F.2d
762, 765 (5th Cir.1973). The School Board's representative stated
at the hearing on the motion to intervene that the Board had
attempted to finance the maintenance of community elementary
schools:
[W]e've had some five bond issues in Newton County,
Mississippi to attempt to do that very thing but none of them
have passed and we're simply unable on the funds that we have
in a small county with some 19,000 people to fund four or five
schools.... In a county that small we simply could not
survive without consolidation on an economic basis. So the
only logical thing for us to do which we are attempting to do
is to provide a unitary desegregated school on an economic
basis to provide these children of this county with a better
education.
Hearing on Motion for Temporary Restraining Order at 17. As we
stated in Perry County, "[a]ppellants are not entitled to
intervention of right simply because they would have voted
differently had they been members of these representative bodies."
Perry County, 567 F.2d at 280. Because the Association has not
rebutted the School Board's showing of adequate representation, the
district court properly denied intervention under Fed.R.Civ.P.
24(a)(2).
C. Permissive Intervention under Fed.R.Civ.P. 24(b)
The Association sought permissive intervention in the
district court pursuant to Fed.R.Civ.P. 24(b), which provides:
Upon timely application anyone may be permitted to intervene
in an action (1) when a statute of the United States confers
a conditional right to intervene.... In exercising its
discretion the court shall consider whether the intervention
will unduly delay or prejudice the adjudication of the rights
of the original parties.
Fed.R.Civ.P. 24(b). We review the district court's denial of the
Association's motion for permissive intervention under an abuse of
discretion standard. Cisneros v. Corpus Christi Independent School
District, 560 F.2d 190, 191 (5th Cir.1977).
As we previously held in Cisneros, and reaffirmed in the
foregoing section, 20 U.S.C. § 1717 confers a conditional right of
intervention. The statute sets forth the condition: The
Association must show that "the time or distance of travel is so
great as to risk the health of the student or significantly impinge
on his or her educational process." 20 U.S.C. § 1717 (1990). At
the district court's hearing on the motion to intervene, the
Association presented testimony regarding the health effects of the
increased travel. The School Board countered with testimony from
the Superintendent and the Transportation Director for the Newton
County School District. These witnesses testified that for any
child, the most that the travel distance would increase would be
10.6 miles, which is the distance from the Hickory elementary
school to the site of the new elementary school in Decatur. The
district court found that "[t]he Association's testimony failed to
show that such a short distance of travel would so seriously affect
the welfare, safety, health and educational achievement of the
students in question." Record at 376. After reviewing the record,
we cannot say that the district court abused its discretion in
denying permissive intervention based on this finding.
Our holding is further bolstered by the timeliness
requirement of Fed.R.Civ.P. 24(b). Although the Association argues
that it seeks intervention to challenge the acceleration of the
consolidation, it is in actuality contesting the advisability of
the consolidation itself, which was approved by a court order
entered on July 5, 1990. Because the Association did not seek
intervention until February of 1991, its application for
intervention was properly denied as untimely. To the extent that
the Association seeks to challenge the acceleration, we agree with
the district court that the Association failed to establish that
the acceleration presented a risk to the health or educational
development of the children of Hickory, who would be bused to
Decatur in any event under the district court's July 5, 1990 order.
We affirm the district court's denial of intervention under
Fed.R.Civ.P. 24(b).
In its brief and at oral argument, the Association sought to
contest the validity of the district court's July 5, 1990 order.
Because the Association was properly denied party status in this
action, it may not appeal the merits of the case. See Commonwealth
of Pennsylvania v. Rizzo, 530 F.2d 501, 507–08 (3d Cir.), cert.
denied sub nom., Fire Officers Union v. Pennsylvania, 426 U.S. 921,
96 S.Ct. 2628, 49 L.Ed.2d 375 (1976).
For the foregoing reasons, we AFFIRM the district court's
denial of intervention under Rules 24(a) and (b) of the Federal
Rules of Civil Procedure.