Boudreaux v. St Mary Parish

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

CLAUDE BOUDREAUX, ET AL. CIVIL ACTION NO. 65-11351

VERSUS JUDGE SUMMERHAYS

SCHOOL BD. OF ST. MARY MAGISTRATE JUDGE WHITEHURST

PARISH, ET AL.

MINUTES OF ORAL ARGUMENT AND RULING

On February 7, 2022, the undersigned magistrate judge conducted oral

argument from 10:30 a.m. to 11:30 a.m.1 on two pending motions: (1) Motion for

Protective Order [Doc. 95] filed by the St. Mary Parish School Board, and (2) Motion

to Compel [Doc. 99] filed by the plaintiffs. The plaintiffs responded to the Motion

for Protective Order [Doc. 98], and the School Board responded to the Motion to

Compel [Doc. 101]. In response to both motions, the United States of America filed

a Position Statement regarding the dispute at issue. [Doc. 100]. Participating in the

argument were Gideon Carter III, Michaele Turnage Young, Anuja Thatte, and

Ashok Chandran for the plaintiffs; John Blanchard, Pamela Wescovich Dill, and

Timothy Riveria for the School Board; and Ceala Breen-Portnoy, Jerry Edwards,

and LeighAnn Rosenberg for the United States.

1 Statistical time: 1 hour.

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Having taken the matter under advisement at the conclusion of the conference,

the Court now makes the following findings.

A. Legal Standards

Federal Rule of Civil Procedure 26(b)(1) allows a party to obtain discovery

“regarding any nonprivileged matter relevant to any party’s claim or defense,” as

follows:

(b) Discovery Scope and Limits

Unless otherwise limited by court order, the scope of discovery is as

follows: Parties may obtain discovery regarding any nonprivileged

matter that is relevant to any party's claim or defense and proportional

to the needs of the case, considering the importance of the issues at

stake in the action, the amount in controversy, the parties' relative

access to relevant information, the parties' resources, the importance of

the discovery in resolving the issues, and whether the burden or expense

of the proposed discovery outweighs its likely benefit. Information

within this scope of discovery need not be admissible in evidence to be

discoverable.

Fed. R. Civ. P. 26(b)(1). This Court has explained that “[i]n the discovery context,

‘relevancy is broadly construed and a request for discovery should be considered

relevant if there is any possibility that the information sought may be relevant to the

claim or defense of any party.’” Quality Constr. & Prod., LLC v. Collins, 2021 WL

3520626, at *2 (W.D. La. Aug. 10, 2021).

A party seeking a Rule 26(c) protective order prohibiting deposition testimony

and document production must establish good cause and a specific need for

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protection. Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125,

133 (E.D. Tex. 2003), citing Landry v. Air Line Pilots Ass'n, 901 F.2d 404, 435 (5th

Cir.1990). “Good cause” exists when justice requires the protection of “a party or

person from annoyance, embarrassment, oppression, or undue burden or expense.”

See Landry, 901 F.2d at 435, quoting Fed. R. Civ. P. 26(c). The burden is upon the

movant to prove the necessity of a protective order, “which contemplates a particular

and specific demonstration of fact as distinguished from stereotyped and conclusory

statements.” United States v. Garrett, 571 F.2d 1323, 1326 n. 3 (5th Cir.1978)

(citations omitted). If both of these requirements are proven, the court may “make

any order which justice requires to protect a party or person from annoyance,

embarrassment, oppression, or undue burden and expense.” Fed R. Civ. P. 26(c). If

a district court denies a motion for a protective order in whole or in part, the court

may, “on such terms and conditions as are just, order that any party or other person

provide or permit discovery.” Id. In deciding whether to grant a motion for a

protective order, the court has significant discretion. Ferko, 218 F.R.D. at 133, citing

Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir.1985).

On May 18, 2021, plaintiffs served a Notice of Deposition Pursuant to Fed.

R. Civ. P. 30(b)(6) (“30(b)(6) Notice”) on the School Board. The School Board

provided a written response, which included objections and identification of topics

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to which it had no objection. Since that time, the parties have attempted to resolve

their disputes regarding the 30(b)(6) topics, however, as of this date, they have been

unable to resolve three main disputed topics. In its Motion for Protective Order, the

School Board seeks protection from the following: (1) topics related to special

education, which it contends are beyond the scope of this litigation; (2) topics that

are vague and overly broad by inclusion of language that topics “include but are not

limited” to certain areas of inquiry; and (3) a number of the 30(b)(6) topics, which

allegedly span an unknown period of time or seek information from the time period

when this case was initiated in 1965.

1. Special education classes

In considering whether the vestiges of de jure segregation have been

eliminated to the extent practicable, this Court must look “to every facet of school

operations” including student assignment, faculty, staff, transportation, facilities,

and extracurricular activities (known as the “Green” factors). Green v. County

School Bd. of New Kent County, Va., 391 U.S. 430, 435–37, 88 S.Ct. 1689, 20

L.Ed.2d 716 (1968). See also Freeman v. Pitts, 503 U.S. 467, 492, 112 S.Ct. 1430,

118 L.Ed.2d 108 (1992). The Supreme Court has made clear that the “Green factors”

are not intended to be a “rigid framework,” Freeman, 503 U.S. at 492–93, but are

among the most important indicia of a segregated system,” Swann v. Charlotte-

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Mecklenburg Bd. of Educ., 402 U.S. 1, 18 (1971), and they are often “intertwined or

synergistic in their relation, so that a constitutional violation in one area cannot be

eliminated [without remedies in another].” Freeman, 503 U.S. at 497.

In addition to the Green factors, federal courts may examine other factors,

such as “administration attitudes,” Keyes, 413 U.S. at 196, and quality of education,

including graduation rates, in-grade retention, and discipline, Freeman, 503 U.S. at

492–93. Importantly, in Johnson v. Jackson Par. Sch. Bd., 423 F.2d 1055, 1056 (5th

Cir. 1970), the Fifth Circuit made clear that the decisions of the Supreme Court and

this Court required the elimination of not only segregated schools, but also

segregated classes within the schools.

With those legal precepts in mind, the School Board seeks protection from

disclosure of discovery related to the general implementation of its special education

program, arguing that discovery related to special education is not within the scope

of this case and is outside the scope of Rule 26(b)(1). The School Board contends

that its general operation of special education has not been a matter of concern until

the plaintiff’s May 2021 discovery requests. The School Board argues against what

it views as an audit of the School Board’s compliance with the Individuals with

Disabilities Education Act (“IDEA”), enacted in 1975, and further argues that the

plaintiffs are attempting to conduct a top-down review of the School Board’s

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evaluation and provision of special education of services to all its students with

disabilities. The School Board contends that such a review is not appropriate at this

juncture, nearly a half century after the filing of this case.

The plaintiffs and the United States counter that the School District has a duty

to operate all areas of student assignment in a racially non-discriminatory manner,

that is, when identifying students as gifted; when assigning disciplinary

consequences that involve exclusion from classrooms; or when identifying students

as needing the provision of special services, including special education. The

plaintiffs argue that the topics outlined in the Rule 30(b)(6) deposition notice are

relevant to the Court’s analysis of the Green factors and will allow the Court to

determine whether all areas of student assignment – including special education

classes – are operated in a racially non-discriminatory manner.

The issue of the scope of unitary status appears to have been disputed by the

parties since the January 16, 2020 Status Conference conducted with the district

judge. At that conference, the district judge stated:

The Court: There was also some mention in the status report. It appears

to be a dispute over the scope of unitary status and whether the Court

should consider educational quality and discipline as additional areas

in which the Court has to make a determination of unitary status. Is that

correct?2

2 See Transcript of January 16, 20202 Status Conference, Doc. 55, at p. 19, ll. 15-19.

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After listening to the arguments of the parties – which are similar to the

arguments of the parties in the briefing herein, albeit in a more general way -- the

district judge discussed the need to swiftly resolve this case without opening areas

of inquiry that were not considered when the case was originally filed, as follows:

THE COURT: And I'm sure the district has a position on this, but my

view on this is that this case will be resolved by a determination of

unitary status based on the five Green factors, and if some of these other

issues may be relevant to a Green factor, if the parties don't reach an

agreement, you know, that's a different question than an independent

unitary determination on these two additional areas. I'm saying this

because I believe, based on my review of the historical pleadings in this

case, that those two areas were not considered by the Court as an

independent basis for a unitary status determination.

There was a 1975 order from Judge Putnam acknowledging the most

recent status report and indicating that the parties needed to object to

unitary status, and, in default, that he was going to declare the district

unitary, that it had achieved unitary status. No other further order was

issued from that. I think that's what led Judge James at one point -- and,

Heather, you can correct me if I'm wrong because you know the history

that much better. Based on that 1975 order, he had an original order

declaring the district unitary and then that was withdrawn.

I don't want to change the face of this case going forward. This is a 50-

year-old case and I think it is important that we reach a point where we

have, as the Supreme Court and the Constitution dictates, eliminated

the vestiges of segregation from the school district, but, you know, the

test also refers to as practicable.

You know, in a 50-year-old case, we need to get to an end here, and I

know Judge James -- this is not -- this work plan was formulated under

Judge James, and what I appreciate from that work plan is that it is very

aggressive. It puts us on a track to get this resolved swiftly. And that is

something that the parties had put together. I don't want to get in the

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way of that, but what I do want to do is make sure that we stay with that

plan moving forward.

So that's my ruling as far as what we're going to determine as far as

making a unitary status determination. We're going to stay with the five

Green factors because I believe that that's historically where this case

has focused. These other issues that were raised, to the extent that they

may be relevant to a Green factor, you know, the parties are free to

argue that, but the Court's ultimate determination will be the five Green

factors.3

In discussing these issues, the School Board pledged to cooperate in the

discovery process, barring any “unforeseen objection:”

John Blanchard for the School Board: And this may allay Mr. Ross's

concerns, that while the school board does have objections about these

two ancillary factors, we will cooperate in discovery. We will let them

propound whatever requests they have on discipline and quality of

education. Barring any unforeseen objection, we will fully cooperate in

discovery so that this issue may be fully presented to the Court at an

appropriate time.

Notwithstanding the Court’s adherence to the Green factors and the overall

interests of judicial efficiency, the district judge made clear that, for the purposes of

discovery, evidence not directly related to the Green factors – to the extent it is

relevant – would be allowed:

THE COURT: And I may have misunderstood the concern from the

plaintiffs. You know, even if this wouldn't be an independent Green

factor, it may be relevant to that, and the fact that it's relevant,

they're entitled to discovery.4

3 Id. at pp. 22-24.

4 Id. at pp. 28-29.

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After considering the arguments of the parties, and specifically considering

the posture of this case, the Court agrees that the topic of special education is relevant

to the analysis of the Green factors. The Court further finds that the School Board

has not shown good cause to limit the discovery, that is, the School Board has not

shown that the plaintiffs’ requests are annoying, embarrassing, oppressive, or unduly

burdensome. Indeed, considering that the St. Mary Parish school system has not

attained unitary status, any current displacement disparities in special education

classes entitles the plaintiffs to a presumption that the disparities are causally related

to prior segregation. The burden then shifts to the School Board to prove that such

disparities are not due to impermissible segregation. See Vaughns by Vaughns v.

Board of Educ. of Prince George’s County, 758 F.2d 983, 991 4th Cir. 1985), citing

Dayton Board of Education v. Brinkman, 443 U.S. 526, 537, 99 S.Ct. 2971, 2978,

61 L.Ed.2d 720 (1979) and United States v. Gadsden County School District, 572

F.2d 1049, 1050 (5th Cir.1978).

Because the Court must consider “every facet of school operations” the

composition of special education classes is relevant to the Court’s analysis of the

Green factors, which includes an examination of student assignments. Thus,

regardless of whether such information is ultimately considered admissible for the

purpose of an examination of the Green factors, under Rule 26(b), the information

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regarding special education classes may be relevant to the plaintiffs’ claims.

Considering the foregoing, IT IS ORDERED that the Motion for Protective Order is

DENIED, and the plaintiffs’ Motion to Compel is GRANTED.

2. Topics that are vague and overly broad by inclusion of language

that topics “include but are not limited” to certain areas of

inquiry

The School Board objects to a number of the plaintiffs’ 30(b)(6) topics on

grounds they include language that makes it impossible for a deponent to be properly

prepared to testify on behalf of the School Board because they include language that

topics “include, but [are] not limited to” certain areas and/or other similar terms that

lack specificity.

The Court rejects the blanket objection of the School Board but nevertheless

finds that, with respect to the following topics, the requests are overly broad and/or

vague. Accordingly, IT IS ORDERED that the plaintiffs shall more specifically

tailor the following requests:

General Topic 1. The District’s policies, practices, efforts to comply

with, and actual compliance – or lack thereof – with state and federal

laws that prohibit racial discrimination, including but not limited to the

Civil Rights Act of 1964 and the Equal Protection Clause of the

Fourteenth Amendment of the U.S. Constitution.

General Topic 5. The District’s policies, practices, efforts to comply

with, and actual compliance - or lack thereof - with its desegregation

obligations, including, but not limited to, the orders of the court in this

lawsuit.

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Faculty and Staff Topic 16. Defendant’s efforts, including any

policies and practices, to ensure that employment procedures comply

with the Desegregation Order and its affirmative desegregation

obligations.

Faculty and Staff Topic 17. All facts and reasons that would support

an assertion by Defendant that it has complied with the Desegregation

Order and its affirmative desegregation obligations and eliminated the

vestiges of its past de jure discrimination to the extent practicable with

respect to faculty and staff assignment.

Faculty and Staff Topic 18. All other issues concerning faculty and

staff previously raised by the parties in their motions and

correspondence.

Facilities Topic 6. All facts, information, and documents that would

support an assertion by Defendant that it has complied with the

Desegregation Order since it was entered and that the Defendant has

eliminated the vestiges of its past de jure discrimination to the extent

practicable with respect to facilities.

3. Relevant Time Period

The parties dispute the scope and time length of requests from the plaintiffs.

Some include requests from 1965 forward, others seek information from the last

“five (5)” years, from more than three (3) years ago, or from an unspecified length

of time. The School Board has attempted to provide discovery responses from the

2018-19 school year forward, arguing that anything before that time period can only

be relevant for the purposes of comparing where the School Board was in the Reports

already filed into the record when it was on the cusp of unitary status in 1975. The

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School Board argues that the Fifth Circuit’s long-standing minimum of three years

of compliance is the relevant time period for any assessment of the Green factors,

and that, therefore, the reasonable time period for the discovery requests should be

three years. See, e.g., Flax v. Potts, 915 F.2d 155, 158 (5th Cir. 1990) (“A district

court in this circuit does not dismiss a school desegregation case until at least three

years after it has declared the system unitary.”), citing Youngblood v. Board of Pub.

Instruction, 448 F.2d 770, 771 (5th Cir.1971). See also Thomas v. Sch. Bd. St.

Martin Par., 544 F. Supp. 3d 651 (W.D. La. 2021) (“The Fifth Circuit has held that

a period of three years without circumstances adverse to desegregation is adequate

to show a reasonable period of time acting in good faith.”).

The plaintiff argues that if the School Board can raise, in its defense, time

periods that pre-date the 2018-19 school year, the plaintiffs should be permitted to

seek discovery into those time periods. The efforts of the parties to enter into a

stipulation regarding time periods have been unsuccessful.

After considering the arguments of the parties, the Court finds that the

discovery in this matter may include the exchange of information which allows for

a comparison between where the School Board was in 1975 and where it is now;

consequently, to that extent, the time period of the requests may exceed three years.

However, for all other requests, as a general rule, the discovery should only cover

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the time period from the 2018-19 school year going forward, unless any party can

show a particular relevancy not addressed herein with respect to an earlier time

period.

4. Stay

Indicating that it plans to appeal the instant Ruling, the School Board moved

to stay the deadlines contained in the Fifth Amended Plan of Work [Doc. 88] until

such time as the district judge has ruled on the appeal. The request for a stay was

GRANTED, but with the clarification that only the discovery that is the subject

matter of the instant ruling is STAYED pending a ruling by the district judge on

appeal. All scheduled depositions that are unrelated to the subject matter of the

instant Ruling are permitted to go forward.

IT IS ORDERED that for all discovery that has been ordered produced herein,

the School Board shall supplement its responses to the plaintiffs’ discovery requests

within thirty (30) days of the date of the conference.

THUS DONE AND SIGNED this 9" day of February, 2022.

(wth &

CAROL B.WHITEHURST ——i«w

UNITED STATES MAGISTRATE JUDGE

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