United States Court of Appeals,
Fifth Circuit.
No. 94-40770
Summary Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
FRANKLIN PARISH SCHOOL BOARD, et al., Defendants-Appellees,
v.
SAVE OUR SCHOOLS, Movant-Appellant.
March 20, 1995.
Appeal from the United States District Court for the Western
District of Louisiana.
Before KING, JOLLY and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Save Our Schools, an unincorporated association of parents,
residents and taxpayers in Franklin Parish, appeals the district
court's denial of its petition to intervene as of right in a
longstanding school desegregation suit. The district court denied
the motion, finding that Save Our Schools' claimed interest did not
warrant intervention and that the association's interest was
adequately represented in the litigation by the existing parties.
Because we find that Save Our Schools was not entitled to intervene
as a matter of right, we dismiss for lack of appellate
jurisdiction.
BACKGROUND
Twenty four years ago the United States brought a school
desegregation suit against the Franklin Parish School Board (FPSB).
1
In August 1970 the district court entered a desegregation order
permanently enjoining FPSB from operating the school system in a
discriminatory manner and requiring that FPSB take specified
actions to implement the order. The district court maintained
continuing jurisdiction for the purpose of enforcing or modifying
its order.
In June 1994, motivated by economic and educational concerns,
the FPSB approved a plan consolidating some of the schools in the
parish. Prior to voting on the plan, FPSB entertained lively
debate from the community and considered at least two independent
studies relating to consolidation. Because the district court
still has continuing jurisdiction to determine the impact of any
proposed consolidation on implementation of its desegregation
order, the proposed plan is subject to approval by the district
court following agreement by both parties. As of this appeal,
negotiations between the United States and FPSB are ongoing and the
plan has not been submitted to the district court.
Several parents, residents and taxpayers of Franklin Parish,
who objected to the proposed consolidation because it would close
certain schools and potentially raise taxes, banded together to
form Save Our Schools ("SOS"). In July 1994, SOS moved to
intervene as of right in the school desegregation suit, claiming
that the school system was already unitary and seeking a temporary
restraining order against implementation of the proposed
consolidation plan. Both the United States and FPSB opposed the
motion. After a hearing, the district court denied the motion, and
2
SOS timely appealed.
DISCUSSION
SOS sought to intervene solely as a matter of right under
Federal Rule of Civil Procedure 24(a)(2). That rule imposes four
requirements: (1) the applicant must file a timely application;
(2) the applicant must claim an interest in the subject matter of
the action; (3) the applicant must show that disposition of the
action may impair or impede the applicant's ability to protect that
interest; and (4) the applicant's interest must not be adequately
represented by existing parties to the litigation. FED.R.CIV.P.
24(a)(2). The district court found that SOS's motion to intervene
was timely, that SOS did not demonstrate an interest in the
litigation sufficient to support intervention, and that SOS's
purported interest was adequately represented by the United States
and FPSB.
SOS's Interest
SOS's petition for intervention contended that although the
school system had achieved the desired unitary status, FPSB had
failed in its duty to seek orders terminating federal control of
the school system.1 SOS claims its members are directly affected
1
The memorandum accompanying the petition also alleged that
members of SOS were facing school closings, long-distance busing
and the potential for additional taxation as a result of the
proposed consolidation plan and requested that the district court
issue a temporary restraining order prohibiting enforcement of
that plan. SOS sensibly abandoned its challenge to the
consolidation plan in the hearing, conceding that it could not
intervene to challenge the school board's determination of the
number and location of schools in the parish. See, e.g., United
States v. State of Mississippi, 958 F.2d 112, 115 (5th Cir.1992)
(there is no right to intervene to challenge school board
3
by the loss of control over their school system, that no other
forum allows redress of their complaint and that their interest in
having the school system declared unitary is not adequately
represented by either the United States of FPSB because neither
party is currently asserting the position that the school system
has achieved the desired unitary status. The United States and
FPSB respond that they share SOS's interest in having the school
system declared unitary so that control can be returned to the
local authority and that SOS's disagreement as to the time required
to achieve that objective does not demonstrate the type of interest
required to justify intervention.
In Hines v. Rapides Parish School Board, 479 F.2d 762 (5th
Cir.1973) this Court recognized that the proper procedural remedy
for parental groups challenging deficiencies in the implementation
of desegregation orders is intervention. Id. at 765-66 (finding
that intervention rather than separate suit was the appropriate
remedy, but nonetheless refusing to remand for possible
intervention). Subsequent cases clarified that the parental
interest which justifies intervention is an interest in achieving
decisions based on policy matters, except to the extent that a
proposed plan impacts whether the school board is operating a
unitary system); Pate v. Dade County Sch. Bd., 588 F.2d 501, 503
(5th Cir.1979) (groups are not entitled to intervene because they
would have voted differently had they been members of the school
board); United States v. Perry County Bd. of Educ., 567 F.2d
277, 279-80 (5th Cir.1978) (intervenor's concerns about travel
and the outlay of public funds are policy concerns not related to
desegregation which do not justify intervention in federal
desegregation suit).
4
a desegregated school system.2 SOS maintains that because language
in Hines recognized that parent groups could intervene to show that
discrimination still existed, that this Court is now bound to
recognize SOS's right to intervene for the purpose of showing that
discrimination has been eliminated. However, intervention is not
appropriate if the would-be intervenors present issues that the
existing parties are aware of and stand competent to represent.
Hines, 479 F.2d at 765. Both the United States and FPSB share
SOS's interest in returning local control to the schools.
"In the context of public school desegregation, there are
innumerable instances in which children, parents, and teachers may
be deprived of various "rights' without having had the opportunity
to participate directly in the judicial proceedings which divest
them of those "rights.' " Perry County Bd. of Educ., 567 F.2d at
279. SOS is not entitled to intervene based merely on conclusory
allegations that their duly elected representatives on the school
board are not aggressively defending the suit. See Dade County
Sch. Bd., 588 F.2d at 503 (parent group disagreement with school
board decision not to appeal order issued in desegregation case did
not demonstrate sufficient interest to justify intervention).
Their remedy for that breach, if any, is embodied in their right to
2
Dade County Sch. Bd., 588 F.2d at 503 (affirming denial of
motion to intervene based on school board's policy decision not
to appeal order entered in desegregation suit and rejecting
would-be intervenor's challenge to district court's jurisdiction
based on prior finding that school system was unitary); Perry
County Bd. of Educ., 567 F.2d at 279 (affirming denial of motion
to intervene based on board's policy decision because petitioners
failed to allege that school board action impeded achievement of
unitary school system).
5
select new representatives. Further, SOS did not allege that
continued federal control of the school system injured them in any
specific way. To the contrary, SOS wants to invoke the power of
the federal court to settle their dispute with the local school
board. We hold that SOS's stated interest in accelerating release
from federal control, without any articulation of present or
potential injury from that control, is insufficient under the facts
of this case to warrant intervention pursuant to rule 24(a)(2).
Adequacy of Representation
Even assuming SOS's asserted interest in returning control to
local authorities was sufficient to justify intervention, that
interest is adequately represented by the existing parties. When
the "party seeking to intervene has the same ultimate objective as
a party to the suit, the existing party is presumed to adequately
represent the party seeking to intervene unless that party
demonstrates adversity of interest, collusion, or nonfeasance."
Kneeland v. Nat'l Collegiate Athletic Ass'n, 806 F.2d 1285, 1288
(5th Cir.), cert. denied, 484 U.S. 817, 108 S.Ct. 72, 98 L.Ed.2d 35
(1987); see also United States v. South Bend Community School
Corp., 692 F.2d 623, 627 (7th Cir.1982); United States v. Board of
Sch. Comm'r, 466 F.2d 573, 575 (7th Cir.1972), cert. denied, 410
U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973) (both recognizing a
presumption that a school board adequately represents its student's
interests absent a showing of gross negligence or bad faith).
There was no evidence offered at the hearing that FPSB was
operating in bad faith or was in any way not representative of the
6
majority of its constituency. Likewise, there was no evidence that
FPSB had any motivation or interest that was different from that of
SOS.3 SOS cites no authority for the proposition that they are
entitled to intervene because no other party is asserting their
current position that a unitary school system has been achieved.
Certainly, after twenty-four years of federal control, FPSB is in
a better position to determine when it can successfully seek
release from federal court control. Finally, disposition of the
action, when there is a final determination that a unitary school
system has been achieved, will advance rather than impair SOS's
interest in returning control to local authorities. See
FED.R.CIV.P. 24(a)(2). We hold that SOS's claimed interest in
having the school system declared unitary so that control can be
returned to the local authorities was adequately represented by
FPSB. Because absence of even one of the four factors required by
rule 24(a)(2) is sufficient to defeat intervention, it is not
necessary to review the district court's timeliness determination.
Conclusion
Our Court has only provisional jurisdiction to hear an appeal
from the denial of a motion to intervene as of right. See Woolen
v. Surtran Taxicabs, Inc., 684 F.2d 324, 330-31 (5th Cir.1982).
3
SOS's reliance on Freeman v. Pitts, 503 U.S. 467, ---- - --
--, 112 S.Ct. 1430, 1443-45, 118 L.Ed.2d 108 (1992) is misplaced.
Freeman addressed the issue of whether a district court can
relinquish control over a school district in incremental stages
before full compliance with the court's order. As the district
court correctly noted, SOS cannot advance arguments related to
whether partial or complete withdrawal of federal control is
appropriate in this case unless and until it is granted the right
to intervene.
7
Once the Court determines that the motion to intervene as of right
is without merit, the appropriate remedy is to dismiss for lack of
appellate jurisdiction. Id. We have reviewed the district court's
decision de novo and conclude that SOS was not entitled to
intervene as of right pursuant to rule 24(a)(2). Accordingly, this
appeal is DISMISSED.
8