Petition — Beckford v. Dade County School Board

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

tigen nit VEY

FILED

—

MAY 26 1979 |

_ MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. W8-17738

ETHEL BECKFORD, CYNTHIA LAWRENCE, HENRY

LAWRENCE, DEVITA BRUTON, WILLY CLYDE STROUD,

JOHNNY FLETCHER, GERALDINE FLETCHER, LEE BOHLER,

SARA LAWRENCE, LEE ARTHER LAWRENCE, ANNIE MAY

LABORN, MADELYN SCHERE, LESLIE ALAN SCHERE, JOHN

CUNNING, CAROL CUNNING, THOMAS RUSSELL, LAURIE

RUSSELL, DOUGLAS KNOWLES, EDYTH KNOWLES, WAYNE

LOUGH and PATRICIA LOUGH,

Petitioners,

versus

DADE COUNTY SCHOOL BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

FOR THE UNITED STATES FIFTH CIRCUIT

COURT OF APPEALS PURSUANT TO 28 UNITED STATES

CODE, SECTION 1254(1)

NORMAN S&S. SEGALL, ESQ.

Suite 607, New World Tower

100 North Biscayne Boulevard

Miami, Florida 33132

Telephone: (305) 373-3019

Attorney for Petitioners

SCOFIELOS QUALITY PRINTERS, P_ O BOX 53096.N 0. LA 70153 - 504/622-1611

INDEX

Page

aR ET SEE TS Rr eR 2

EE EE rae 2

QUESTIONS PRESENTED FOR REVIEW ........ 2

FEDERALRULE OF CIVIL PROCEDURE IN-

Et ee a has « 4

UTE a PPE GABE fo bik cc ieccccccccccs 5

Oe e ee GP PETE FACTS 2. nce ceccccesccces 9

RT ET SR SR 14

Point I — The Decision Below Conflicts

With The Decisions Of Other Courts Of

Appeal And The Supreme Court ........... 14

Point II — The Decision Below Prevents

Consideration Of Fundamental Con-

stitutional Issues Which Have Not Been

But Should Be Resolved By This Court ..... 27

ee ie daa Vewse bees 37

ee er VOLES ciscacccdsccccecces 38

BR RCE DO al ag la

TABLE OF CITATIONS

Cases

Adams v. Mathews, 536 F.2d 417 (D.C. Cir.

OEE ES a ae 15,25

Armstrong v. O’Connel, 75 F.R.D. 452 (E.D.

sud a eaee ss ensee 15

TABLE OF CITATIONS (Continued)

Page

Atkins v. State Board of Education, 418 F.2d

a are pn ean en age 15,20

Darville v. Dade City School Board, 497 F.2d

Pe es OE Pes Nake s ed sh aR dee EOS 22

Dayton Board of Education v. Brinkman, 97

Ae NT aw ks Bb ord a Baz Wale eed. oae'v's 36

Green v. County School Board, 391 U.S. 430,

88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) ......... 36

Hatton v. County Board of Education, 422

eg og 2a eer rey ater eer ee 22

Hines v. Rapides Parish School Board, 479

Bide Te MERE ROPE 2 ocd -s cieehascavehe s«es< 21

Holmes v. Government of the Virgin Islands,

61 FAR. 3, 4A VL T97E) ok ei eds cae 15,25

Johnson v. San Francisco Unified School Dis-

trict, 500 F.2d 349 (9 Cir. 1974) ........ 15,24,25

Jones v. Caddo Parish School Board, 499 F.2d

UG Be te es Ces ced PAE eA haw 22

Liddell v. Caldwell, 546 F.2d 768 (8 Cir. 1976) .15,23

Neugebauer v. A. S. Abell Co., 77 F.R.D. 712

EPR OM REO chs G kd ed eh paieuass ingen ncaa 15

Pasadena City Board of Education v. Spangler,

427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599

SONNE 00d 5 ns 00 48e 0 eoe sh edew ic eeeen el 29,30

ili

TABLE OF CITATIONS (Continued)

Page

Pate v. Dade County School Board, 434 F.2d.

TEST, BETES Re Be eh ne os 6,35,36

Pate v. Dade County School Board, 447 F.2d

150 (5 Cir. 1971), cert. denied 405 U.S. 1064,

02 S(t. 1693; 31 £60.20 TOO ISTE) ok iki ce 7

Pate v. Dade County School Board, 509 F.2d

Ob OOF CS Ge ae oct eds Seb ko cieciine 7,32

Pate v. Dade County School Board, 588 F.2d

SR; SOG CG SA ea a eek 5,15,24

Pierson v. United States, 71 F.R.D. 75, 78

27% SSE Vedch occ eeasceneweee bon 15,25

Rios v. Enterprise Association Steamfitters

Local Union, 520 F.2d 352, 357 (2 Cir.1975) .... 26

Romasanta v. United Airlines, 537 F.2d 915 (7

CO RE, 3 shake Ohee hee kk biG Kak eas 15,23

Smuck v. Hobson, 408 F.2d 175 (D.C. Cir.

WN ro oan ie ete eee oe ae Td passim

Spangler v. Pasadena City Board of Education,

SEF Fe Le Ve es AE ae aeons vie 24

Spangler v. Pasadena City Board of Education,

$52 F.2d 1326; 1529 (9 Cir. 2077) oc acca se 24

Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 91 S.Ct. 1267, 28

SR OR AEP ED 30 ie hace ea zee 7,31,32,36

TABLE OF CITATIONS (Continued)

Page

United Airlines v. McDonald, 432 U.S. 385, 97

S.Ct. 2464, 53 L.Ed.2d 423 (1977) ae ee 15,23

United States v. Board of School Com-

missioners, 466 F.2d 573 (7 Cir. 1972) ...... 15,22

United States v. Perry County Board of

Education, 567 F.2d 277 (5 Cir. 1978) ...15,20-21

United States v. Texas Education, 564 F.2d

162 (S Cig. 210979) scccascacssansseen 31,32,33

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

ETHEL BECKFORD, CYNTHIA LAWRENCE,

HENRY LAWRENCE, DEVITA BRUTON, WILLY

CLYDE STROUD, JOHNNY FLETCHER, GER-

ALDINE FLETCHER, LEE BOHLER, SARA

LAWRENCE, LEE ARTHER LAWRENCE, ANNIE

MAY LABORN, MADELYN SCHERE, LESLIE ALAN

SCHERE, JOHN CUNNING, CAROL CUNNING,

THOMAS RUSSELL, LAURIE RUSSELL, DOUGLAS

KNOWLES, EDYTH KNOWLES, WAYNE LOUGH

and PATRICIA LOUGH,

Petitioners,

versus

DADE COUNTY SCHOOL BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

FOR THE UNITED STATES FIFTH CIRCUIT

COURT OF APPEALS PURSUANT TO 28 UNITED

STATES CODE, SECTION 1254(1)

The Petitioner, Ethel Beckford, by undersigned

counsel, respectfully requests that a Writ of Certiorari

issue to review the judgment and opinion of the Unit-

ed States Court of Appeals for the Fifth Circuit entered

on January 26, 1979.

A. OPINIONS BELOW

The opinion of the Court of Appeals is reported at

588 F.2d 501 (Sth Cir. 1979). A copy of the decision is

appended to this Petition.

The opinion of the United States District Court for

the Southern District of Florida is not reported and is

contained in the appendix to this Petition.

B. JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on January 26, 1979. A

Petition for Rehearing was denied on March 1, 1979.

This Petition was timely filed. The jurisdiction of this

Court is based on Title 28 U.S.C. §1254(1).

C. QUESTIONS PRESENTED FOR REVIEW

Point I

Whether the Fifth Circuit Court of Appeals Erred in

Affirming the Decision of the District Court Denying

the Motion to Intervene... ;

A. Whether a Bi-Racial Group of Parents of

Children Attending Either of Two

Elementary Schools Affected by Propos-

ed Court Ordered Students Assignment

Changes has a Viable and Judicially

Cognizable Interest so that a Motion to

Intervene should have beenGranted. . .

B. Whether the Dade County School Board

Failed to Adequately Represent the

Legitimate Interests of the Bi-Racial

Parental Group by Refusing to Appeal

the District Court’s Order to Adopt one

of Several Plans Submitted by the “Bi-

Racial Tri-Ethnic Committee” Where the

Applicants were Unduly Prejudiced by

the Denial of the Motion to Intervene,

and are now Foreclosed from Appealing

the Order.

Point Il

Whether the Decision below prevents Consideration

on the Merits of Fundamental Constitutional Issued

Which have not been but Should be Resolved by this

Court...

A. Whether the District Court Exceeded its

Authority When it Ordered the School

Board to Adopt One of the Bi-Tri Com-

mittee’s Proposals Because such Action

was not Within the Limited Scope of the

Court’s Continuing Jurisdiction . . .

B. Whether the District Court’s Order Plac-

ing the Burden of Proof Upon the School

Board, to Disprove a Segregative Intent,

was Clearly Erroneous...

C. Whether the District Court Erred in

Finding a Coxistitutional Violation and in

Taking Remedial Action Where the Local

School Board had not Defaulted in its

Obligation to Assure a Unitary System of

Education.

D. FEDERAL RULES OF CIVIL

PROCEDURE INVOLVED

RULE 24. Intervention

A. Intervention of Right. Upon timely application

anyone shall be permitted to intervene in an action: (1)

when a statute of the United States confers an uncon-

ditional right to intervene; or (2) when the applicant

claims an interest relating to the property or transac-

tion which is the subject of the action and he is so

situated that the disposition of the action may asa prac-

tical matter impair or impede his ability to protect that

interest, unless the applicant’s interest is adequately

represented by existing parties.

B. Permissive Intervention. Upon timely application

anyone may be permitted to intervene in an action: (1)

when a statute of the United States confers a con-

ditional right to intervene; or (2) when an applicant's

claim or defense and the main action have a question of

law or fact in common. When a party toanaction relies

for ground of claim or defense upon any statute or ex-

ecutive order administered by a federal or state

governmental officer or agency or upon any regula-

tion, order, requirement, or agreement issued or made

pursuant to the statute or executive order, the officer

or agency upon timely application may be permitted to

intervene in the action. In exercising its discretion the

court shall consider whether the intervention will un-

duly delay or prejudice the adjudication of the rights of

the original parties.

E. STATEMENT OF THE CASE

This Petition seeks review of a United States Fifth

Circuit Court of Appeals decision! affirming the denial

of a motion to intervene. The applicants seeking in-

tervention were a bi-racial group of separate parents of

elementary school children, attempting to intervene

for the purpose of gaining standing to appeal the Unit-

ed States District Court’s Order of June 16, 1978. (17a-

22a) That Order required the School Board to set aside

its attendance zones for two elementary schools and

select from several plans of the Bi-Racial Tri-Ethnic

Committee.

This committee was established to review, the

1 Pate v. Dade County School Board, 588 F.2d 501 (Sth Cir. 1979).

operations of the majority to minority transfer rule,

the transportation system, the selection of school sites,

and other special assignments which the court might

direct. Furthermore, the committee was authorized to

hold hearings and to make recommendations to the

school board. The committee was activated pursuant to

the June 26, 1970, District Court Order which, in addi-

tion, approved the school board’s final desegregation

plan. Pate v. Dade County School Board, 434 F.2d 1151,1171

(Sth Cir. 1970).

In August, 1970, the school board’s desegregation

plan, which had been already approved by the District

Court, was approved by the Fifth Circuit Court of

Appeals. The Fifth Circuit ordered that several

modifications to the plan be made. Once the

modifications were implemented, the Fifth Circuit

determined that the total plan as modified would effec-

tively desegregate the Dade County Schools. Id. at

1159.

On June 14, 1971, the District Court entered an

order reaffirming its earlier orders (June 26, 1970, and

July 24, 1970) which declared the Dade County school

systems to be unitary. The Court held that having

established a unitary system the only authority

remaining vested in the court was the responsibility to

assure no reversion to a state-imposed dual system.

The District Court on June 18, 1971, approved the

school board’s 1971-72 pupil assignment plan and

relieved the school board of any further duty to obtain

prior approval of further changes. The Court also

stated that the burden as to any further proceedings

would be upon the parties or future intervenors to

demonstrate a prima facie case of the school board’s

failure to act according to the principles outlined in the

Court's June 14 Order. The Court retained jurisdiction

solely for the above-described purpose. Pate v. Dade

County School Board, 509 F.2d 806, 807 (5 Cir. 1975).

On June 30, 1971, in response to objections to the

1971-72 pupil assignment plan and motions for a new

evidentiary hearing, the District Court denied further

evidentiary hearings and found that the Dade County

school system was a unitary system incompliance with

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.

1,91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The Fifth Cir-

cuit summarily affir..1ed the decision. Pate v. Dade County

School Board, 447 F.2d 150 (5 Cir. 1971), cert. denied 405

U.S. 1064, 92 S.Ct. 1493, 31 L.Ed.2d 794 (1972).

Approximately five years later, in July, 1977, the Dis-

trict Court ordered the school board to file a responsive

memorandum, justifying the attendance zones that

were listed in the school board’s semi-annual report.

After reviewing this memorandum, the District Court

in an Order dated July 7, 1977, approved the school

board’s 1977 attendance zone charges.

Other than an Order dropping numerous parties

from the case in October, 1977, there were no further

proceedings until May 4, 1978, when the District Court

ordered the school board to file a Memorandu™ in sup-

port of its decision not to put into effect certain recom-

mendations of the Bi-Tri Committee. Although there

is no letter in the record, nor any pleading filed, the Dis-

trict Court indicated that the Order was in response to

a request by the Bi-Tri Committee for the court to take

positive action to implement the attendance zone

changes which the committee recommended,

specifically for Richmond Elementary and Pine Lake

Elementary Schools.

After the school board filed its Memorandum op-

posing the changes, an evidentiary hearing was held.

On June 16, 1978, the District Court issued an Order

stating that the school board acted with discrim-

inatory intent when it established attendance zones for

the Pine Lake Elementary School. The court ordered

the Board to accept one of the proposed plans that the

Bi-Tri Committee had recommended, and stated that if

the Board could not make a decision within 10 days

then that decision would be made by the court.

On June 23. 1978, Ethel Beckford and a group of

black and white parents from both the Richmond and

Pine Lake Elementary zones filed their Motion to In-

tervene for the purpose of appealing the June 16 Order

together with a Motion for Emergency Hearing and

Motion to Stay. On June 30 the school board filed its

response to the June 16 Order, indicating acquiescence

and opposing the pending Motion to Intervene. The

motion was also opposed by the ACLU which has since

withdrawn from the case. Intervenors replied to these

responses.

On July 13, 1978, intervenors Beckford, et. al. filed a

Notice of Appeal from the June 16 Order.

On August 2, 1978, the District Court, without a

hearing, entered an Order and Memorandum Opinion

denying the Motion to Intervene, to Stay and for Emer-

gency Hearing. Immediately thereafter, Petitioners

appealed the denial of the Motion to Intervene to the

Fifth Circuit Court of Appeals. The appeals were con-

solidated in the Fifth Circuit which affirmed the deci-

sion of the District Court denying the Motion to In-

tervene and as a result dismissed the appeal on the

merits for lack of standing. Specifically, the Fifth Cir-

cuit held that parents of elementary school children

have no right to intervene, nor should permissive in-

tervention be granted, in order to oppose a “desegrega-

tion” order.

F. STATEMENT OF THE FACTS

In 1969, an action was brought against the Dade

County School Board by a group of citizens who sought

to enjoin the school board from implementing the

desegregation plan it had approved for the 1969-70

school year. In 1970, the District Court denied the

Plaintiffs’ relief and approved the school board's

desegregation plan. The Fifth Circuit Court of Appeals

approveu the District Court's decision and ordered that

some modifications of the plan be made. Both the Dis-

trict Court and the Fifth Circuit indicated that once the

plan with the modifications was implemented, the

Dade County schools would be desegregated and

would be considered a unitary system of education.

Prior to the institution of the action there were four

elementary schools between Coral Reef Drive and Eu-

reka Drive and west of U.S. Highway #1. These were

Colonial Drive, Richmond, Miami Heights and Moton

Elementary Schools (See Figure #1, 8a). The school

board desegregation plan which was approved by the

District Court and the Fifth Circuit changed the boun-

daries of these elementary schools.

The boundary change resulted in the transfer of

Colonial Drive pupils to Richmond. The result was a

black-white ratio of 77.4 to 22.6% at Richmond

Elementary. Colonial Drive, whose boundaries were

established contiguous to Richmond, had a white-black

ratio of 67% to 33% (See Figure #2, 8a).

During the years 1970-1976, Richmond, with the

court’s approval, had contiguous boundaries with

predominantly white Colonial Drive and Miami

Heights. Neither the Bi-Tri Committee nor the District

Court, nor anyone else objected to the maintenance of

these boundaries throug}.out the six year period. Dur-

ing the same period, the District Court declared on two

occasions that Dade County was operating a unitary

system of education in conformity with constitutional

guidelines. Both of these decisions were affirmed by

the Fifth Circuit Court of Appeals.

‘

Severe overcrowding at Colonial Drive and Miami

Heights caused the school board to build Pine Lake

Elementary to alleviate the problem. When Pine Lake

was built in 1976, boundaries were drawn so that Pine

Lake had the same boundaries contiguous to Richmond

as those which were previously maintained by Colonial

Drive and Miami Heights (Figure #3, 8a). The Bi-Tri

Committee made no objection to the boundaries when

they were established.

In the summer of 1977, the Bi-Tri Committee

suggested that the school board change the Pine Lake

attendance boundaries. The school board decided not

to do so.

In 1978, the Bi-Tri Committee submitted a report to

the school board and to the District Court in which it

recommended that the Pine Lake/Richmond boun-

daries should be changed for the 1978-1979 school

year. In March of 1978, the school board, after con-

sideration of the committee’s report and after a public

hearing decided to maintain the Pine Lake/Richmond

boundaries as they had previously been established.

The boundaries which were maintained left Pine Lake

and Richmond with the same contiguous boundaries as

had previously been maintained by Colenial Drive and

Richmond. The boundary which was maintained was

the same boundary which was a part of the previously

approved Dade County desegregation plan.

After the Board decided not to implement the com-

mittee’s recommendations, the committee submitted a

report to the District Court in which it urged the Court

to take positive action with respect to the school

board’s decision. Although the committee, having been

established by the Court, was not an official party to

the action; and although no pleading was filed seeking

relief, the District Court entered an Order to Show

Cause. The Court ordered the school board to submit a

memorandum in support of its decision not to imple-

ment the recommendations of the Bi-Tri Committee.

The school board filed a memorandum stating that

its reasons for not changing the Pine Lake/Richmond

boundaries were:

a) The boundaries were the same ones

which were set by the court itself in 1969-

1970, and the racial composition of the schools

had remained approximately the same since

that time.

b) The racial ratio at Richmond Elementary

is 78% black-22% white; a desegregated school

according to the court’s criteria.

c) Pine Lake was built to relieve over-

crowding at Colonial Drive and Miami

Heights Elementary Schools. There was no

similar overcrowding at Richmond Elemen-

tary. Accordingly, boundaries for Pine Lake

had been drawn to take students from Miami

Heights and Colonial Drive, which happened

to be majority white students.

d) The movement of children from Rich-

-mond would cause a change in the concentra-

tion of Title I eligible children and would place

Richmond on a lower priority insofar as con-

tinued receipt of Title I funds, and would

probably result in the loss of those funds.

[This prediction has now come true].

The District Court held an evidentiary hearing on the

matter at which time the only party to participate was

the School Board. Dr. Gordon Foster, Chairman of the

Bi-Tri Committee testified in opposition to the school

board. On June 16, 1978, the court issued an order

stating that the School Board had acted with

segregative intent in maintaining the Pine Lake/Rich-

mond boundaries. The Court ordered the School Board

to accept one of the Bi-Tri Committee’s proposals for

boundary changes (6a).

The School Board decided not to appeal the court's

decision. Petitioners, a bi-racial group of parents repre-

senting students of both Pine Lake and Richmond

Elementaries, filed motions with the District Court

requesting leave to intervene for the purpose of appeal-

ing the Court’s June 16, 1978, Order and requesting a

hearing on the Motion to Intervene.

The intervenors alleged that their interests and

those of their children were not being adequately

represented in the decision not to appeal. They further

alleged that it was not their intention to substitute

their judgment for that of the school board but tu free

the board from judicial restraint so that it might exer-

cise its discretion to the fullest degree constitutionally

permissible in deciding educational policies.

After denial of all intervenors’ motions without

hearing, the consolidated appeals and this petition

followed.

G. ARGUMENT

THE DECISION BELOW CONFLICTS

WITH THE DECISION OF OTHER

COURTS OF APPEALS AND THE

SUPREME COURT.

Point I

The Fifth Circs:it Court of Appeals Erred in

Affirming the D«cision of the District Court

Denying the Motion to Intervene...

The Fifth Circuit specifically declined to follow, and

the decision below therefore squarely conflicts with

the landmark decision of Smuck v. Hobson, 408 F.2d 175

(D.C. Cir. 1969). Although the Fifth Circuit might not

follow the principals of law set forth in Smuck2, those

same precepts are widely accepted and followed by

other Courts.3

The Smuck court rendered an interpretation of Rulé

24(a)(2), Federal Rules of Civil Procedure soon after

this Rule was amended in 1966. The Rule, of course,

deals with intervention as a matter of right. It was to be

determined:

1) Whether the applicants for intervention,

parents of school children, had a sufficient in-

terest in the education of their children such

that they should be allowed to take part in

litigation which would directly affect their

children;

2 See Pate v. Dade County School Board, 588 F.2d 501, 504 (Sth Cir.

1979) where the Court acknowledged the existence and credi-

bility of the Smuck rationale, but nevertheless, refused to auopt it

as the law of the Fifth Circuit. See Also, United States v. Perry County

Board of Education, 567 F.2d 277 (Sth Cir. 1978).

3 Smuck has been recognized and followed by District Courts in

the Third Circuit. Holmes v. Government of the Virgin Islands, 61 F.R.D.

3, 4 (D.C.V.1. 1973); Pierson v. United States, 71 F.R.D. 75, 78

(D.C.Del. 1976). Smuck has also been accepted and/or cited with ap-

proval by the Fourth, Seventh, Eighth, Ninth and D.C. Circuit

Courts of Appeals. Atkins v. State Board of Education, 418 F.2d 874 (4th

Cir. 1969); Neugebauer v. A. S. Abell Co., 77 F.R.D. 712 (D.C.Md.

1978); Romasanta v. United Airlines, 537 F.2d 915 (7th Cir. 1976);

United States v. Board of School Commissioners, 466 F.2d 573 (7th Cir.

1972); Armstrong v. O’Connel, 75 F.R.D. 452 (E.D.Wis. 1977); Liddell

v. Caldwell, 546 F.2d 768 (8th Cir. 1976); Johnson v. San Francisco Uni-

fied School District, 500 F.2d 349 (9th Cir. 1974); Adams v. Mathews,

536 F.2d 417 (D.C.Cir. 1976). The U.S. Supreme Court cited Smuck

with approval in United Airlines v. McDonald, 432 U.S. 385, 97 S.Ct.

2464, 53 L.Ed.2d 423 (1977).

2) Whether these applicants for interven-

tion are so situated that the disposition of the

action at bar may as a practical matter impair

or impede their ability to protect their in-

terest;

3) Whether the parents were adequately

represented by the school board’s decision not

to appeal a court order which order was to

force the school board to implement a judicial-

ly proposed plan for school desegregation.

The Smuck decision resolved the issues presented by

granting to the parents the right to intervene. The

precept therefore arose that a group of parents, as a

matter of right, are entitled to intervene in continuing

litigation regarding school desegregation matters, in-

itially because they unquestionably, have a sufficient

and legally cognizable “interest” in the education of

their children.

Secondly, the Court in Smuck recognized that the

parents seeking intervention were so closely con-

cerned and connected with the action at bar that to dis-

pose of the case without allowing parental intervention

would as a practical matter, impair or impede their

ability to safeguard their interest. The Court stated:

If the right to intervene is denied and the deci-

sion below becomes final, there is no apparent

way for the parents to pursue their interests

in a subsequent lawsuit. True, they could

assert that the new policies adopted by the

Board of Education in compliance with the

order below are unconstitutional. But this

would be a sterner challenge than they would

face as intervenors here: although the new

policies might not be constitutionally re-

quired, they might also not be unconstitu-

tional. Smuck, supra at 180-181.

In short, it was unnecessary for the parents to

demonstrate that denial of intervention would cause

them irreparable harm. Rather, the intervenors were

successful in bearing their burden to show that their

interests would “as a practical matter” be affected by a

final disposition of this case without appeal. Id. at 181.

The remaining requirement for intervention is that

the applicant not be adequately represented by others.

The court held the parents were not adequately repre-

sented by the school board’s decision not to appeal. The

court stated:

... the interests of the parents who wish to

intervene in order to appeal do not coincide

with those of the Board of Education. The

school board represents all parents within the

District. The intervening appellants may have

more parochial interests centering upon the

education of their own children. While they

cannot of course ask the Board to favor their

children unconstitutionally at the expense of

others, they like other parents can seek the adoption of

policies beneficial to their own children. (Emphasis

added). Smuck, supra at 181.

In determining whether the school board adequately

represented the legitimate interests of the parents

seeking intervention, the school board is presumed to

be acting in its representative capacity in good faith.

However, the presumed good faith of the school board,

in deciding to refrain from appealing the court order to

comply with the proposed desegregation plan, is not

conclusive. Id. at 181. The parents are not forced to

demonstrate the board’s bad faith in deciding not to

appeal, as a condition precedent to intervention. Nor

are the parents compelled to accuse the board of a lack

of vigor in defending the suit below before an order

granting intervention will issue. In Smuck, the parents

were successful in securing the right to intervene

because they effectively illustrated to the court that

their interest in the litigation was to free the school

board from the unwarranted judicial restraints im-

posed by the preceding court order. As in the case at

bar, the parents’ objective was to restore to the school

board “the broadest discretion constitutionally per-

missible in deciding upon educational policies.” This ob-

jective was to be implemented through the procedural

tool of intervention; to intervene as a matter of right,

for the purpose of appealing an unfounded and anti-

pragmatic court order to desegregate and to

demonstrate that acquiescence to the plan was at-

tributable to judicial coercion and interference. In

short, the parents perceived their school board as in-

timidated and unwilling to override court order such

that parental involvement was necessitated.

By granting the parent/applicants the right to in-

tervene, the Smuck court then had jurisdiction to and

did reach the merits of the appeal pursued by the

parents. At bar, the problems which were anticipated

or found to be existent in Smuck are a reality. They are

magnified by the fact that the District Court’s order

affected only the two schools where the intervenors

children attended. The Smuck court observed exactly

what would have been shown here had a requested

evidentiary hearing been permitted — that other con-

siderations may have led to the school board’s deter-

mination not to appeal.

And the Board of Education, buffeted as it like

other school boards is by conflicting public

demands, may possibly have less interest in

preserving its own untrammeled discretion

than do the parents. It is not necessary to ac-

cuse the board of bad faith in deciding not to

appeal or of lack of vigor in defending the suit

below in order to recognize that a restrictive

court order may be a not wholly unwelcome

haven. Smuck at 181.

The school board has never admitted that it was

wrong, in rejecting the Bi-Tri Committee’s recom-

' mendations. It specifically refused to defend the merits

of the District Court’s decision before the Fifth Circuit.

The only other party opposing intervention, the

ACLU, subsequently withdrew from the case and

never filed a brief. Other parties before the District

Court have not been heard from since the mid-1970’s.

In short, it appears that intervenors children have been

sacrificed for peace and tranquility between the school

board and the District Court, who are the only active

entities in the case.

The Fourth Circuit Court of Appeals was confronted

with acase strikingly similar to both Smuck and the case

at bar. Atkins v. State Board of Education, 418 F.2d 874 (4th

Cir. 1969). In Atkins, the court held that children’s

parents should be permitted to intervene in a school

desegregation case. The Court asserted:

[This] court has long recognized the intense

interest*6f parents in the education of their

children, and it has been solicitous of their

opportunity to be heard. Intervention in suits con-

cerning public schools has been freely allowed, and we see

no reason why it should be denied here, especially in

view of the lack of prejudice to other parties.

(Emphasis added). Atkins, supra at 876.

With respect to the applicable law of the Fifth Cir-

cuit, regarding parental rights of intervention in school

desegregation matters, the cases directly on point are

split. The case at bar plus Uvited States v. Perry County

Board of Education, 567 F.2d 277 (Sth Cir. 1978) stand for

the proposition that parental intervention in school

desegregation matters should be denied as a matter of

right. Hines v. Rapides Parish School Board, 479 F.2d 762

(Sth Cir. 1973) merely indicates that it is improper for

disgruntled parents to attack deficiencies in the im-

plementation of desegregation orders by means of a

class action suit. The Hines court directed the parents,

seeking to question the efficacy of the implementation

of the desegregation order, to instead petition the Dis-

trict Court to allow theni to intervene. As a matter of

fact, the Hines court left open the possibility that in

tervention as a matter of right may be appropriate fora

parent group where the group has a “significant claim

which it can best represent.” Id. at 763. The Court

predicted that in most school integration cases in-

tervention would most likely consist of the opportunity

to present claims to the court and toany group, such as

a bi-racial committee, working under the court’s super-

vision to achieve a unitary system and to have the

allegations considered on the merits. Furthermore, the

Hines court suggested intervention may be granted un-

less the following is deemed adequate:

Where a committee is involved, the court

might feel it desirable to allow the applicants

representation on that body. This procedure

would seem sufficient to ensure that different

points of view would be presented in the dif-

ficult and often emotional struggle to achieve

the constitutionally mandated but highly

elusive unitary school system.‘ Id. at 765.

It is imperative to point out that in the case at bar, none

of the parents seeking intervention were asked to join

or speak to the Bi-Racial Tri-Ethnic Committee to

thereby ensure that different points of view would be

represented. Nor did it hold any public hearings.

Two other cases handed down by the Fifth Circuit

have as an outcome, the denial of intervention to

parents in school desegregation matters. Darville v. Dade

City School Board, 497 F.2d 1002 (Sth Cir. 1974); Jones v.

Caddo Parish School Board, 499 F.2d 914 (Sth Cir. 1974).

The Sixth Circuit forbids parents of children in the

county’s public schools from intervening as a matter of

right where it is affirmatively shown that their position

is adequately represented by the school board. Hatton v.

County Board of Education, 422 F.2d 457 (6th Cir. 1970).

The case law adjudicated by the Seventh Circuit

reveals the acceptance of the Smuck legal principles as

previously set forth. In United States v. Board of School Com-

missioners, 466 F.2d 573 (7th Cir. 1972), the Seventh Cir-

cuit determined that Citizens of Indianapolis for Quali-

ty Schools (CIQS) were entitled to intervene in an

ongoing school desegregation lawsuit since members

of CIQS had children enrolled in the public school

4 The Dade County school system has been declared unitary by

the Fifth Circuit on two previous occasions.

system. In addition, intervention was granted to a

group of stewardesses in a civil rights action against an

employer-airlines alleging sex discrimination in the

creation and enforcement of a “no-marriage” rule

applicable to female flight attendants but not male. See

Romasanta v. United Airlines, 537 F.2d 915 (7th Cir. 1976).

The grant of intervention was upheld by this Court

relying on Smuck. See United Airlines v. McDonald, 432

U.S. 385 (1977). Furthermore, in that case this Court

went on to evaluate the merits since standing had been

conferred. Petitioner urges this Court to follow the

same course here.

The Fighth Circuit has allowed six black people,

through their parents and friends, to intervene in a

school desegregation matter. Liddell v. Caldwell, 546 F.2d

768 (8th Cir. 1976). The Eighth Circuit determined

that the applicants for intervention were not adequate-

ly represented by the school board since the repre-

sentative school board failed in the fulfillment of its

duty. In Liddell, the applicants for intervention did not

attempt to assert a right to relitigate or undo the fac-

tual stipulations of the parties. Rather, the applicants’

primary purpose in seeking intervention related to

their objections to the proposed remedy, that is, to the

ultimate plan of desegregation. Id. at 771. Similarly,

this was the case with the Petitioners herein on seeking

intervention to oppose the continued shuffling of their

children to and from schools which are already

desegregated in a system which is already unitary.

Spangler v. Pasadena City Board of Education, 427 F.2d 1352

(9th Cir. 1970) was misconstrued by the Fifth Circuit in

this case below. See Pate v. Dade County School Board, 588

F.2d 501, 504 (Sth Cir. 1979). The Fifth Circuit assert-

ed that the Spangler court rejected application of the

Smuck decision by holding that the applicants were not

entitled to intervene for the purpose of appealing an

order which the board of education had decided not to

appeal. More precisely, the Ninth Circuit in Spangler

never foreclosed intervention as a matter of right, asa

procedural safeguard available to parents where they

are interested in involving themselves in a school

desegregation lawsuit. The Ninth Circuit acknowl-

edges that issues may arise during the course of the

main desegregation proceeding that would necessitate

parental intervention. Spangler v. Pasadena Board of Educa

tion, 552 F.2d 1326, 1329 (9th Cir. 1977). In other

words, in Spangler, the court followed the rationale of |

Smuck, but reached a different conclusion.

In other actions involving school desegrega-

tion, however, we have allowed intervention

by parents as a matter of right where the is-

sues that emerge during the litigation are

such that intervention is warranted. Spangler,

supra at 1329.

The Ninth Circuit also decided Johnson v. San Francisco

Unified School District, 500 F.2d 349 (9th Cir. 1974) where

the court initially allowed a group of racially mixed

parents the right tointervene in aschool desegregation

lawsuit, and then subsequently granted intervention as

a matter of right to a separate group of Chinese parents

whose interest was found to be inadequately repre-

sented by both the school board and the initial, bi-racial

intervening parents. The Chinese parents of elemen-

tary school children opposed the compulsory reassign-

ment of such students outside the area in which they

reside. The Johnson court favorably relied upon Smuck,

not only applying its rationale but coming to the same

conclusion — parental intervention should be granted

as a matter of right. Johnson, supra at 352-353.

Smuck has remained good law in its “birthplace”

jurisdiction. See Adams v. Mathews, 536 F.2d 417

(D.C Cir. 1976). Smuck provided the authority upon

which to allow a women’s group intervention as a

matter of right where no party in the racial discrimina-

tion suit represented the women’s interest. Id. at 418.

The foregoing survey of the existing case law of the

Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Dis-

trict of Columbia Circuits, reveals a serious split within

and amongst the various Circuit Courts of Appeal.

There is no existing case law on this matter out of

either the First or Tenth Circuits. Within the Third

Circuit, Smuck has been cited favorably in two federal

district court cases. See Holmes v. Government of the Virgin

Islands, 61 F.R.D. 3, 4 (D.C.V.1. 1973); Pierson v. United

States, 71 F.R.D. 75, 78 (D.C.Del. 1976). The Second

Circuit has followed Smuck, on different facts, in deter-

mining whether or not applicants for intervention have

a significant protectable interest in the litigation. Rios v.

Enterprise Association Steamfitters Local Union, 520 F.2d 352,

357 (2nd Cir. 1975).

Not only would the Fifth Circuit not follow Smuck in

allowing intervention as of right, it broke new ground

in determining that permissive intervention would not

be allowed either, holding:

The parental interest that justifies permissive

intervention is an interest in a desegregated

school system. Here... the parents are not

seeking to challenge deficiencies in the im-

plementation of desegregation orders. . . Pate

v. Dade County School Board, 588 F.2d 501, 503

(Sth Cir. 1979).

Where the Fifth Circuit has missed the mark is in its

failure to recognize that this case does not fit the stand-

ard desegregation case mold. The intervening parents

are asked to demonstrate an interest in a desegregated

school system when their system has already been

declared unitary. They are condemned for opposing a

“desegregation” order when the schools their children

attend are already desegregated at the exact racial mix

and boundaries prescribed by the Fifth Circuit in 1970.

There can be no standard for permissive interven-

tion which determines in advance the merits of the

argument to be presented. To do so subverts due

process since applicants in intervention may never get

appellate review. To allow parents of children in the

same school to intervene if they take Position A but not

if they take Position B is patently erroneous.

There exists a clear and long standing conflict among

the Circuit Courts of Appeal on the right of parental in-

tervention. For the foregoing reasons the Petition’

should be granted.

Point If

The Decision Below Prevents Consideration

On The Merits Of Fundamental Con-

stitutional Issues Which Have Not Been But

Should Be Resolved By This Court.

A, The District Court Exceeded Its Authority When

It Ordered The School Board To Adopt One Of

The Bi-Tri Committee's Proposals Because Such

Action Was Not Within The Limited Scope Of

The Court's Continuing Jurisdiction.

The District Court retained jurisdiction over this

ongoing desegregation action for the limited purpose

of insuring that the Dade County school system did not

revert to a dual system of education. The Court ex-

ceeded its authority when it took action which was out-

side the limited scope of its retained jurisdiction.

In June, 1971, one year after the decision of the Fifth

Circuit affirming the District Court’s approval of the

School Board’s desegregation plan, the District Court

outlined the continuing duty of the School Board to

make the desegregation plan work, recognizing the

Court’s responsibility to assure that the school system

remained unitary. The Court stated:

Once having disestablished the dual school

system and eliminated racial discrimination

through official action from the system, there

remains vested in the authority of this Court

only the responsibility to assure that the

school system does not revert to a state-

imposed dual school system.

The logical extension of this limitation is that absent at

least an allegation of such a reversion by a party to the

action the Court was without authority to exercise

such jurisdiction.

In the case at bar, no such allegation has ever been

made. The only allegation made was that the School

Board, in deciding not to accept the Bi-Tri Committee’s

proposed changes for the Pine Lake/Richmond boun-

daries, somehow failed to racially balance the schools.‘

This allegation purported to support the conclusion

that the School Board’s inaction was a failure of their

duty to ensure a unitary system.

5 It should be noted that this allegation was made by the Bi-Tri

Committee, a Court appointed committee, that was not a party to

the action. The Court's order was in direct response to this allega-

tion which was made in a committee-written report.

An allegation that the School Board’s inaction would

lead to a reversion to the dual system could never have

been made. All the School Board’s decision did was to

maintain boundaries which were part of a prior Court

ordered desegregation plan. The boundaries being

maintained were part of a school system which had on

two previous occasions been declared unitary by the

same Court which now claims that the School Board

acted with segregative intent in deciding to maintain

these Court approved boundaries.

In Pasadena City Board of Education v. Spangler, 427 U.S

424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976) the Supreme

Court was faced with the issue of the scope of a Court's

authority in desegregation matters particularly with

respect to the retention of jurisdiction after the initial

controversy is resolved. The Court found that when a

racially neutral attendance pattern is established, in

order to remedy perceived constitutional violations,

the courts have fully performed their function in

providing appropriate remedy for previous racially dis-

criminatory attendance patterns. The Court further

stated that once a unitary system was established the

District Court’s jurisdiction would be limited to in-

suring that the unitary system was maintained.

Both the Ninth Circuit and Supreme Court ridiculed

the lifetime jurisdiction asserted by the District Court.

Even the dissenters on the Supreme Court disagreed

with any such concept, particularly to the extent that it

might suggest that continuous zoning changes could be

required “even after the Court has determined that its

plan has been effectively implemented and racial dis- |

crimination (has been] eliminated from the system.”

427 U.S. at 443, 96 S.Ct. at 2708.

In Spangler this Court also dealt with the issue of

mootness in a case which began as an individual private

action seeking to have schools desegregated. The

Court found that the case was not moot, only because the

United States had intervened and was authorized to continue as a

party Plaintiff. The Court stated that absent the United

States’ intervention the case would have been moot

due to “the disappearance of the original Plaintiffs and

the absence of any class certification”. 96 S.Ct. at 2702.

Here, the District Court has clearly resurrected a moot

case for the purpose of asserting continuing jurisdic-

tion. The case should be remanded to the District

Court for dismissal.

B. The District Court's Order Placing The Burden

Of Proof Upon The School Board, To Disprove A

Segregative Intent, Was Clearly Erroneous.

The District Court, in its Order to Show Cause dated

May 4, 1978, ordered the School Board to show cause

why its inaction did not constitute segregative intent.

This Order, and the hearing held pursuant thereto,

erroneously thrust the burden of proof upon the Board

of disproving segregative intent. At that hearing, no par-

ty other than the board presented any evidence. The

Court held on June 16, 1978, that the Board had failed

to meet the burden of proof placed on it, and held fur-

ther that a segregative intent existed within the defini-

tion set out by the Fifth Circuit in United States v. Texas

Education, 564 F.2d 162 (5 Cir. 1977), (hereinafter Austin

III). This Order was entered despite the fact that no

evidence was offered to show that there had been any

segregative intent in the Board’s decision to maintain

the Pine Lake/Richmond boundaries.

Absent a showing that the School Board has

deliberately attempted to fix or alter school boundaries

to affect the racial composition of the schools, the Dis-

trict Court should refrain from interfering with the

School Board's discretionary powers. Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1, 32, 91 S.Ct.

1267, 1284, 28 L.Ed.2d 554 (1971). At bar, the School

Board demonstrated that its actions in setting boun-

daries for Pine Lake had no effect on previously ap-

proved boundaries and did not adversely affect racial

composition of the schools.¢

In the Swann case, the District Court held lengthy

evidentiary hearings, received voluminous evidence,

and based its holdings upon the massive record it had

collected. In reviewing the lower Court’s decision, the

Supreme Court held that the burden of proof is only

6 Since the racial composition of Richmond is identical to that

previously approved by the District Court and Fifth Circuit, it is

not segregated. Pine Lake, at 79% white-21% black, reflects the

-acial composition of the schools whose overcrowding it was built

to relieve, which racial composition was similarly approved.

upon the School Board when the system is being con-

verted from a dual to a unitary system. Swann, 402 U.S.

at 26, 91 S.Ct. at 1281. The rationale for this is clear;

once a Plaintiff has previously met his burden of proof

and demonstrated that a Board’s actions are dis-

criminatory, it is incumbent upon that Board to prove

its remedial actions are nondiscriminatory. In the case

at bar, this initial burden has never been met; the Dis-

trict Court initially ruled that the School Board had to

disprove any segregative intent.

This initial ruling was in direct contrast to the court’s

own order dated June 18, 1971, and quoted with ap-

proval by the Fifth Circuit in Pate v. Dade County School

Board, 509 F.2d 806 (1975), wherein the Court stated:

The burden shall be upon the present in-

tervenors or any other persons hereinafter

permitted to intervene to demonstrate to this

Court a prima facie case of the School Board’s

failure to act in accordance with the prin-

ciples outlined in this Court’s order of June 14,

1971.

Inchoosing to ignore this previous order, the District

Court relied on the Fifth Circuit’s holding in Austin III,

564 F.2d 162 (5 Cir. 1977) on the issue of segregative

intent. In that case the court adopted the tort law rule

that one intends the natural and foreseeable conse-

quences of his actions. Although the Fifth Circuit did

not clarify the specific burden the plaintiff must meet,

it did make it clear that before this tort theory could be

applied, the plaintiff had to present a prima facie case of

impermissable ethnic discrimination. Austin III, 564

F.2d at 168.

In the case at bar, the “plaintiffs” never established

the prima facie case required by Austin III. The District

Court in its June 16 Order refers summarily to the

evidentiary hearing and merely states that it applied

the Austin III standards. The Court made no findings of

fact upon which it relied, nor did it specify how the

standards were applied. The Court concluded, “that

discriminatory intent may be inferred from a School

Board’s refusal to take action to ameliorate segregation.”

The District Court then proceeded to apply the stan-

dards applicable to a dual system.

It is this misapplication of these principles to a uni-

tary system which is clearly erroneous. The Austin II]

court held that intent could be implied only after the

Board failed to correct an already proven illegal course

of action. Before any implication can be made, a plain-

tiff must first prove that segregation within the system

exists. The District Court ignored this first essential

step and applied the law from cases which dealt with

the conversion over from a dual to a unitary system.

The only conclusion which may. properly be made

from the School Board’s refusal to adopt the com-

mittee’s recommendations is that the original scheme

of integration approved by the Fifth Circuit has been

preserved. It is one thing to imply continued

segregative intent to a board which has fostered a

discriminatory system; but that intent cannot be im-

plied to a board which has for eight years maintained a

lawful unitary system.

C. The District Court Erred In Finding A Constitu-

tional Violation And In Taking Remedial Action

Where The Local School Board Had Not Default-

ed In Its Obligation To Assure A Unitary System

Of Education.

Assuming arguendo that the court had jurisdiction,

it exceeded its authority when it ordered the School

Board to adopt one of the Bi-Tri Committee’s recom-

mendations for attendance boundary changes. The

court issued the order to a School Board that had not

committed a constitutional violation and had been

operating a unitary system of education for eight years.

In discussing the authority of the courts with respect

to desegregation matters, the United States Supreme

Court stated:

_.. judicial powers may be exercised on the

basis of a constitutional violation. Remedial

judicial authority does not put judges auto-

matically in the shoes of the school authorities

whose powers are plenary. Judicial authority

enters only when local authority defaults.

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 91 S.Ct. 1267, (1971).

The Dade County School Board is under a continuing

duty to appraise the system in light of “actual con-

ditions and experience” and to make changes within the

limits set by the court to assure the maintenance of a

unitary school system. Pate v. Dade County School Board,

434 F.2d 1151 (5 Cir. 1970). Petitioners maintain that

the unitary system was not and is not threatened. The

Dade County School Board has not defaulted in its

obligation to maintain such a system and therefore the

court erred in substituting its judgment for that of the

board.

The “actual conditions and experience” in the area do

not require a change. The racial make-up of the area

has not changed. Only the number of people has cha ng-

ed, requiring the construction of an additional school in

the majority white area. A case for the District Court

could be made if the School Board had used this oppor-

tunity to change the boundary between the majority

white and majority black zones. A case could be made if

the board had gerry-mandered the majority white

attendance zone to create a “lily-white” school at Pine

Lake. But this was not the case. The attendance zone

established for Pine Lake was consistent with a good

faith effort to maintain the present level of desegrega-

tion in the area based on the existing boundaries. Pine

Lake is an integrated school.

In Green v. County School Board, 391 U.S. 430, 88 S.Ct.

1689, 20 L.Ed.2d 716 (1968), the Supreme Court stated

“that existing policy with regard to faculty, staff,

transportation, extracurricular activities, and facilities

were among the most important indicia of a segre-

gated system.” 88 S.Ct. at 1692. These criteria were

satisfied in Dade County in 1970. Pate v. Dade County

School Board, 434 F.2d 1151 (5 Cir. 1970). No allegations

were made, even by the Bi-Tri Committee, that the

School Board had failed in these areas in the

Richmond/ Pine Lake boundary question.

Thus the issue is exposed for what it is — the desire

of the District Court and the Bi-Tri Committee to in-

crease the racial mix beyond that already existing in

this unitary school system. While this goal may be com-

mendable it is not constitutionally required. Nor is the

District Court permitted to substitute its discretion for

that of the elected School Board in the absence of a

showing of constitutional violation. Swann, 91 S.Ct. at

1282; Dayton Board of Education v. Brinkman, 97 S.Ct. 2766

(1977).

The finding that the pupil population .. . is

not homogeneous, standing by itself, is not a

violation of the Fourteenth Amendment in

the absence of a showing that this condition

resulted from intentionally segregative ac-

tions on the part of the Board. Dayton, 97 S.Ct.

at 2772 citing Washington v. Davis, 426 U.S. 229,

96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976).

mae. tee

It can therefore be seen that the District Court

unconstitutionally infringed on the School Board's dis-

cretion in deciding educational policy and will continue

to do so in the future. Unfortunately, the School Board

does not find this continuing spectre as uncomfortable

as do the parents of the children involved, who elected

the School Board to determine such policy. Without

any other active party in the case, the situation will

continue for the lifetime of the District Court.

CONCLUSION

The Court is faced with a case where School Board

has, to the detriment of the children involved, failed to

appeal a clearly erroneous decision of the District

Court. The District Court and the Court of Appeals

have refused to allow the parents of these children to

intervene to establish that the School Board’s position

was correct and to assert that a District Court ina uni-

tary system is not permitted to substitute its judgment

for that of the elected board. Based upon the facts and

law the Petition for Writ of Certiorari should be

granted.

Respectfully submitted this ___. day of May, 1979.

NORMAN S. SEGALL, ESQ.

100 North Biscayne Boulevard

Suite 607

Miami, Florida 33132

Telephone: (305) 373-3019

CERTIFICATE OF SERVICE

I CERTIFY that three copies of foregoing were fur-

nished by mail this ___ day of May, 1979, to: Frank A.

Howard, Jr., Esq., Attorney for School Board, Suite

200, 1410 N.E. 2 Avenue, Miami, Florida.

NORMAN S. SEGALL

Attorney for Petitioner

100 North Biscayne Boulevard

Suite 607

Miami, Florida 33132

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

HERBERT PATE, et al

Plaintiffs,

V. No. 69-1020-Civ-CA

DADE COUNTY SCHOOL BOARD, et al

Defendants

ORDER

(Filed: June 16, 1978)

In Pate v. Dade County School Board, 434 F.2d 1151 (Sth

Cir. 1970), the Fifth Circuit ordered this Court to

monitor the actions of the Dade County School Board

(“Board”) so as to insure that the Board carries out its

continuing duty to act in a manner consistent with a

unitary system of education. Pursuant to that man-

date, the Court established the Bi-Racial, Tri-Ethnic

Committee (“Committee”) to oversee the actions of the

Board and report to the Court any conduct by the

Board which might be inconsistent with the guidelines

set out by the Fifth Circuit.

Prior to the Board’s final decision as to the 1978-79

attendance zone changes, the Committee recommend-

ed a plan containing three exceptions to the Board’s

proposed changes which, in the Committee’s opinion,

conformed with the teachings of the United States

Supreme Court and the Fifth Circuit Court of Appeals.

The Board accepted one recommendation, that relating

to Leewood Relief Elementary School, and rejected

those relating to Miami-Sunset Senior High and Pine

Lake-Richmond Elementary Schools.

On April 19, 1978, the Committee filed a report in

which it urged this Court to take positive action in

preventing what it believes is a violation of the law by

the Board in setting attendance zones for the 1978-79

school year.

On May 15, 1978, the Court received the Board’s

memorandum in opposition to the Committee's

Report. The Court has received several memoranda,

reports and letters from concerned citizens and com-

mittees, and considered them along with all the other

relevant evidence offered in these proceedings.

As the Court noted, in a prior Order, the Court will

examine this dispute under the two-pronged analysis

set forth in Dayton Board of Education, namely:

“The duty of the district court is first to deter-

mine whether there was any action in the con-

duct of the business of the school board which

was intended to, and did in fact, discriminate

against minority pupils. If such violations are

found, the District Court must determine

how much segregative effect these violations

made [and design a remedy to cure such

effect].”

Poa

The Court notes that these proceedings do not

challenge the Board’s conduct with respect to the entire

Dade County School System, but rather, they involve a

challenge to the Board’s conduct as to two newly con-

structed schools. As such, such challenge is an attempt

to excise any incipient, unlawful developments that

may infect the entire system.

Thus, the Court heard evidence from the Board and

the Committee on whether the Board had the req-

uisite discriminatory intent in adopting the subject

attendance zones. The Court also heard evidence on

the various proposals offered.

As to the issue of intent, the Court draws upon the

Fifth Circuit’s opinion in Austin, III, 564 F.2d 162 (Sth

Cir. 1977) as supplying the controlling law. There, the

Fifth Circuit adopted an objective test for ascertaining

discriminatory intent and incorporated in school

segregation law the ordinary rule of tort law that a per-

son is presumed to intend the natural and foreseeable

consequences of his actions. Id. at 167. The Fifth Circuit

also laid down several factors which the District Court

should consider in ascertaining intent. As stated by the

Appellate Court:

“The presumption is especially probative in

assessing the official intent behind such affir-

mative school board decisions as those con-

cerning school locations, the construction and

renovation of school, the closing of schools,

the drawing of school attendance zones, and

the assignment of faculty and staff.”

Id. at 169.

The appellate court also suggested that dis-

criminatory intent may be inferred from a school

board’s refusal to take action to ameliorate segregation.

Id. at note 10. The appellate court further noted that

statistics, the history of both the schools in question

and the Board’s prior conduct are also relevant to the

determination of intent. Id. at 170-71.

Upon examining the evidence in these proceedings

and applying the same to the aforementioned stand-

ards, the Court finds that the School Board had the req-

uisite discriminatory intent in setting the attendance

zones both for Pine Lakes/Richmond Elementary

Schools and for Miami Sunset High School.

A. As to the Pine Lake/Richmond Elementary

Schools, the Court notes with regret that the Board has

failed to seize an excellent opportunity to ameliorate

the segregative conditions in that area. The schools are

virtually next to each other, yet when the Pine Lakes

Elementary School was opened one year ago, the Board

did nothing to improve the educational milieu to which

the black students in the Richmond Heights area are

subjected. The Court refused to take any action last

year upon the Board’s representation that it would im-

pose an inequitable burden on its system of adjusting

attendance zones because of the purportedly untimely

request by the Committee in seeking judicial relief.

This year, however, no such excuse exists, and the only

meritorious justification the Board has proposed is that

Title I funds may be withheld from Richmond Heights

_ students, a justification which carries little weight in

ensuring that the state’s constitutional mandates are

carried out. The fact that Pine Lakes was built with so-

called “open classrooms” has no material bearing on the

issues in this proceeding.

Mr. Eldridge Williams, furthermore, was unable to

explain the benefits of maintaining the present atten-

dance zone, nor was he able to suggest any burdens

that would encumber the educational system if the

zones were re-drawn to ameliorate the segregative

effects that now exist in the area.

Pine Lakes Elementary School is a newly constructed

schoo!. Being in close proximity with Richmond

Heights, its location would permit the drawing of

attendance zones that would allow black Richmond

Heights students to attend Pine Lakes, and white Pine

Lakes students to attend Richmond Heights, without

such disruptive effects as busing. There is no excuse for

the Board’s failure to act in this situation. The Court,

therefore, must now exercise the constitutional

authority it has withheld for the past eight years. Since

the Board is presumed to intend the natural and

foreseeable consequences of its actions, the Court finds

that the Board has acted with discriminatory intent,

and thus violated its constitutional duty, in main-

taining an 80% white-20% black ratio at Pine Lakes, and

an 80% black-20% white ratio at Richmond Heights.

As to the remedy for such violations, the Court will

allow the Board to select from the several plans propos-

ed or adopted by the Committee. In this regard, the

Board and Committee should meet to amicably arrive

at a plan. If none is reached by June 26, 1978, the Court

will decide on such a plan.

B. Miami Sunset High School

Although the Court gives considerable credibility to

the Board’s witnesses as to the reasons for the building

of Miami Sunset High School (which is equidistant

between, and will thus relieve the overcrowding in,

Killian and Southwest High Schools), the fact that the

attendance zones were so drawn as to restrict the black

enrollments there to 1 percent, rather thanenlarge the

zones to include a larger percentage of blacks, coupled

with the Board’s failure to provide evidence (other than

convenience for blacks living in the Killian Heights

area) in justification of its position, supplies prima facie

proof of the Board’s intent to discriminate. Not-

withstanding, the Court recognizes that the Miami

Sunset area will shortly experience a (relatively)

precipitous increase in population. Accordingly, the

Court will stay its hand as to Miami Sunset in reliance

upon the Board’s demographic prediction that the

school will become segregated when the area becomes

segregated. Assuming the correctness of such predic-

tion, the Court will, therefore, place Miami Sunset

High School in a separate category, and closely monitor

the demographic configuration of the area. This,

therefore, will be a test case for the validity of the.

Board’s hypothesis as to such demographic patterns.

ENTERED at Miami, Florida, this 16th day of June,

1978.

Is} C. CLYDE ATKINS

CHIEF UNITED STATES

DISTRICT JUDGE

cc: Frank A. Howard, Esq.

Dr. Gordon Foster

Elizabeth J. DuFresne, Esq.

_ COM ALEF ORE (Sw 182 ST) ae ORDER DENYING MOTION TO INTERVENE,

Hea pepe NE, Se > MOTION FOR EMERGENCY HEARING AND

1 wae qe COLONIAL OR 2 MOTION TO STAY

micuuono onve | a sit (Number and Title Omitted)

MIAM! HEIGHTS eve Fig. 1 ‘

an OD , 4 RR woTom someatans OF Setentad Sive. (Filed: August 3, 1978)

ot Bae ents, Ri chz0né

* a D and Hoton Elementary

EUREKA ORIVE (sw 104 $7) Senools.

THIS CAUSE having come before the Court on

-- ‘ motions of Intervenors to permit intervention as

id i y

MIAM! HEIGHTS | sgh

ELEM

4 | , RR MOTON

, ELEM y

defendants in this cause, motion for emergency hear-

ing and motion to stay, and the Court having con-

sidered the record in this cause, and being otherwise

duly advised, it is

Fig. 2

Colonial Drive, Sichnond,

te ced. ¢~ A ORDERED AND ADJUDGED that said motions are

piven Hit iakte te DENIED.

DONE AND ORDERED at Miami, Florida, this 2nd

rac eee day of August.

oe brarerss

1 COLOMIaL OR

Pinte LAKE

€.L™ |

Is} C. CLYDE ATKINS

UNITED STATES

oe DISTRICT JUDGE

siiertare oreteroatin : Copies furnished:

myn debe ta eins Shaw & Segall

ALS | Frank A. Howard, Jr., Esq.

James W. Matthews, Esq.

Irma Robbins Federa, Esq.

Elizabeth J. DuFresne, Esq.

10a

General Counsel, State Board of Education

Dr. Gordon Foster, Chairman, Bi-Tri Committee

(for distribution to all Committee members)

Mr. John Cunning, Chairman, Pine Lake Elementary

Advisory Committee

Mr. James E. Vilberg, Chairman, Richmond Elemen-

tary Advisory Committee

Ms. Phyllis Miller

MEMOF DUM OPINION

(Number asd Title Omitted)

(Filed: August 3, 1978)

On June 16, 1978, in an exercise of its continuing

duty to assure the maintenance of a unitary school

system in Dade County, Florida, this Court ordered the

Dade County School Board, in consultation with the

Bi-Racial/Tri-Ethnic Advisory Committee to select a

plan to remedy violations arising from the attendance

zones for Pine Lake and Richmond Elementary

Schools. The Board did not seek to appeal from the

Order of June 16, 1978, but instead decided to comply

with that Order; and at a public meeting on June 28,

1978, the Board adopted a plan of pairing the two

schools under which grades K-3 will attend Pine Lake

Elementary School and grades 4-6 will attend Rich-

mond Elementary School.

lla

On June 23, 1978, a group of parents of children

residing within the Pine Lakes and Richmond Heights

school districts moved to intervene for the purpose of

appealing from the Order of June 16, 1978. The Board

and the American Civil Liberties Union oppose such in-

tervention. For the reasons set forth below, the Court

denies the motion to intervene.

The intervenors assert that they are entitled to in-

tervene for the purpose of freeing the Board from

judicial restraint so as to allow it to exercise its discre-

tion to the fullest degree constitutionally permissible,

relying on Smuck v. Hobson, 408 F.2d 175 (D.C. Cir.

1969). In the recent case of United States v. Perry County

Board of Education, 567 F.2d 277, 279 (Sth Cir. 1978),

however, the Fifth Circuit declined to follow the “broad

approach to intervention illustrated by the Smuck case,”

noting that

“li]Jn the context of public school desegrega-

tion, there are innumerable instances in which

children, parents, and teachers may be depriv-

ed of various ‘rights’ (e.g., the ‘right’ to attend

a neighborhood school) without having had

the opportunity to participate directly in the

judicial proceedings which divest them of

those ‘rights.’ When these adversely affected

groups have sought to intervene, we have fre-

quently declined to permit it.” [citations

omitted]

12a

The criteria applicable to a determination of the right

to intervene in desegregation cases is set forth in Hines

v. Rapides Parish School Board, 479 F.2d 762 (Sth Cir. 1973).

Under Hines, parents seeking to intervene must

demonstrate an interest in a desegregated school

system. Perry, supra. As in Perry, nowhere in the motion

for intervention or in the memoranda in support

thereof do those seeking to intervene contend that the

goal of a unitary school system has been frustrated. To

the contrary, intervenors contend that a unitary

system existed under the attendance zones as

previously drawn and, thus, the Court has required

more of the Board than is constitutionally required.

Additionally, the case presently before the Court is

factually distinguishable from\Smuck. An important fac-

tor in the District of Columbia Circuit’s decision to

\allow intervention in that case was that Congress had

recently enacted legislation to provide for the first time

for an elected school board in the Distxict of Columbia.

Id. at 180, n. 18. As a result, the appoint&d school board

which had made the decision not to appeal¥rom the dis-

trict court’s order had been superseded \by a new

elected Board of Education. In this context, the Court

found it imperative that the new board be allowed “the

fullest discretion permitted by the Constitution to

reshape educational policy within the District.” Id. at

177. Further, the new board did not oppose the in-

tervention. In contrast, the Dade County School Board

which has made the decision not to appeal this Court’s

Order of June 16, 1978, is the same board which must

13a

comply with the Order for the coming school year, and

opposes the attempt tointervene. Thus, this case is vir-

tually identical to Spangler v. Pasadena City Board of Educa-

tion, 427 F.2d 1352 (9th Cir. 1970), in which the Ninth

Circuit affirmed the District Court’s denial of a motion

to intervene by a group of parents dissatisfied with a

desegregation decree and the decision of the Board of

Education not to appeal.

In Spangler, the Court distinguished Smuck, and found:

“In the case before us the decision not to

appeal was in effect a decision to acquiesce in

the court decree — a decision made by the very

board affected by the decree. The decision was

made by a board of elected representatives of

the residents of the school district, including

these appellants. It was made following public

hearings at which appellants had full oppor-

tunity to influence the board’s decision. That

decision was within the competence of the

board in balancing many competing factors

against the relatively modest degree of

restraint imposed by the decree.

Pursuant to court decree the board has now

adopted a plan for integration of the schools

which has been submitted to the court and

received court approval. Before us the board

opposes appellants in their effort to in-

tervene. It wishes to be free forthwith to put

14a

its plan into operation and argues per-

suasively that intervention anda prolongation

of this suit will cause confusion and turmoil

within the school district and be disruptive of

their plan.

It is clear that the protectable interest of

appellants in the freedom of their school board

from excessive judicial interference is sub-

stantially less apparent here than it was in

Smuck. Such restraints as were imposed have

in substance been found acceptable by the

board and thus create no present prejudice.”

Id. at 1354.

The avowed purpose of the parents seeking in-

tervention here is “not to substitute their judgment for

that of the elected School Board, but to free the Board

from judicial restraint so that it may exercise its discre-

tion, to the fullest degree constitutionally permissible,

in deciding educational policies.” However, that same

board, in the exercise of the same discretion which the

intervenors ostensibly seek to preserve, has deter-

mined that an appeal is not in the best interests of the

school system. Contrary to their protestations, the in-

tervenors do seek to substitute their judgment for that

of their elected representatives on the issue of whether

compliance with this Court’s Order or appeal is the

better course. Tirese parents are not entitled to in-

tervene simply because they would have voted

differently had they been members of the Board. Perry,

supra.

15a

Finally, intervenors have moved for a hearing as re-

quired by Calhoun v. Cook, 487 F.2d 680 (Sth Cir. 1973)

and Jones v. Caddo Parish School Board, 499 F.2d 914 (Sth

Cir. 1974). In Hines, supra, the Fifth Circuit held that the

proper course for groups seeking to question deficien-

cies in the implementation of desegregation orders is to

file a petition for intervention that would bring to the

attention of the district court “the precise issues which

the new group sought to represent and the ways in

which the goal of a unitary system had allegedly been

frustrated.” Id. at 765. When presented with such a

precise petition, an evidentiary hearing is necessary to

enable the court to determine if the criteria in Hines are

satisfied, in that it must be determined whether the

issues sought to be raised were properly represented by

the existing parties. Jones, supra. The necessity for this

procedure arises because“ every group must be allowed

the opportunity to show the court that the desired and

legally required unitary system has not been achieved

....” Hines, supra at 765.

The motion to intervene filed in this cause is clearly

not the precise petition mandated by Hines, Calhoun, and

Jones, supra; and thus, intervenors have failed to meet a

threshold requirement entitling them to a hearing.

Further, unlike the parents in Hines, these intervenors

have not placed themselves within the area of jurisdic-

tion retained by this Court, since they do not allege that

the goal of a unitary system has been frustrated. When

such allegations have been made this Court has not

hesitated to hold evidentiary hearings, and, in fact, held

a lengthy evidentiary hearing prior to reaching the

16a

decision reflected in the Order of June 16, 1978;

however, under the present circumstances, a further

evidentiary hearing would not fulfill the role en-

visioned by the cases cited above and would not aid the

Court’s determination of the issues presently raised.

Therefore, the motion for emergency hearing is also

denied.

A separate Order shall be entered in accordance

herewith.

ENTERED at Miami, Florida, this 2nd day of August,

1978.

Is} C. CLYDE ATKINS

CHIEF UNITED. STATES

DISTRICT JUDGE

Copies furnished to:

Shaw & Segall

Frank A. Howard, Jr., Esq.

James W. Matthews, Esq.

Irma Robbins Federa, Esq.

Elizabeth J. DuFresne, Esq.

General Counsel, State Board of Education

Dr. Gordon Foster, Chairman, Bi-Tri Committee

(for distribution to all Committee members)

Mr. John Cunning, Chairman, Pine Lake Elementary

Advisory Committee

Mr. James E. Vilberg, Chairman, Richmond Elemen-

tary Advisory Committee

Ms. Phyllis Miller

17a

Herbert PATE et al.,

Plaintiffs,

versus

DADE COUNTY SCHOOL BOARD, etc., et al.,

Defendants-Appellees,

versus

Ethel BECKFORD et al.,

Movants-Appellants.

Nos. 78-2634, 78-2750.

United States Court of Appeals,

Fifth Circuit.

Jan. 26, 1979.

Rehearing Denied March 1, 1979.

Appeals from the United States District Court for

the Southern District of Florida.

Before BROWN, Chief Judge, GEE and VANCE, Cir-

cuit Judges.

PER CURIAM:

In the fall of 1977 the Dade County School Board

opened the new Pine Lake Elementary School, just four

18a

or five blocks from its existing Richmond Elementary

School. The physical characteristics of the two schools

generally reflect the differences between the middle

and upper class, predominantly white, neighborhood

served by Pine Lake and the predominantly black

neighborhood served by Richmond. The student body

at Pine Lake was eighty percent white and twenty per-

cent black. The student body at Richmond was eighty

percent black and twenty percent white.

In compliance with the requirements imposed by this

court in Pate v. Dade County School Board, 434 F.2d 1151

(Sth Cir. 1970), the district court had previously estab-

lished a bi-racial tri-ethnic committee to monitor the

actions of the county school board. At the request of

the so-called bi-tri committee the district court issued a

show cause order to the county school board on May 4,

1978. The school board was required to justify its deci-

sion not to put into effect the recommendations of the

bi-tri committee as to attendance zone changes for the

1978-1979 school year. The school board responded by

defending its action and argued that the court had no

basis for intervention. Following an evidentiary hear-

ing the district court entered an order on June 16, 1978

requiring in the Pine Lake-Richmond situation that the

school board adopt one of the alternative plans propos-

ed hy the bi-tri committee.

On June 26, 1978, appellants filed a motion to in-

tervene in the district court. Appellants are dis-

satisfied parents of children in both the Richmond

19a

Heights and Pine Lakes districts. They alleged that

their interests were not adequately represented by the

existing parties and that they desired to intervene in

order to appeal the district court’s order. On June 28,

1978, intervenor, American Civil Liberties Union of

Florida, filed its opposition to the proposed interven-

tion. On June 30, 1978, the school board filed a

response to the June 16, 1978 order. The school board

reported that school officials had met with the bi-tri

committee, that the school board had adopted the com-

mittee’s recommendation pairing the two schools in

question, had fully complied with the court’s order and

had determined that no appeal should be taken. The

school board stated to the court that there was no

longer any case or controversy between the parties and

objected to intervention by the present appellants. On

August 3, 1978, the district court denied appellants’

motion for intervention.

Two separate appeals have been taken. In Case No.

78-2634 the applicants in intervention appealed the dis-

trict court’s order of June 16, 1978. In Case No. 78-2750

applicants appealed the court’s subsequent order deny-

ing intervention. A motion to consolidate was filed in

this court and is hereby granted.

The school board moves to dismiss both appeals on

the grounds that the original controversy is moot and

that the appellants lack standing to appeal the June 16

order. The school board also urges that the district

court correctly denied intervention. Appellants con-

20a

cede that unless they are successful in establishing

their right to intervene they have no standing in this

court in respect to the June 16, 1978 order.

Appellants cite Smuck v. Hobson, 132 U.S.App.D.C.

372, 408 F.2d 175 (1969), to support their contention

that they have a right to intervene. They argue that

parents of school children have an interest in the litiga-

tion and that the failure of the school board to appeal.-

demonstrates that such interest was not being ade-

quately represented. Smuck, however, has not been

followed in this circuit. In United States v. Perry County

Board of Education, 567 F.2d 277 (Sth Cir. 1978) we

specifically declined to do so. Our holdings in the Perry

County case and in Hines v. Rapides Parish School Board, 479

F.2d 762 (Sth Cir. 1973) control the present question.

In Hines this court explored when and by what means

parent groups might present complaints growing out

of desegregation litigation. The proper course in-

dicated was a petition for intervention. There was no

intimation, however, that such petition was one of

right. Thecourt held that: “Certainly every group must

be allowed the opportunity to show the court that the

desired and legally required unitary school system has

not been achieved by an earlier court order.” Id. at 765.

But it also concluded that: “If the court determined that

the issues these new plaintiffs sought to present had

been previously determined or if it found that the par-

ties in the original action were aware of these issues

and completely competent to represent the interests of

the new group, it should deny intervention.” Id. at 765.

21a

The parental interest that justifies permissive in-

tervention is an interest in a desegregated school

system. Here, as in the Perry County case, “(t]he parents

are not seeking to challenge deficiencies in the im-

plementation of desegregationorders. . . .” United States

v. Perry County Board of Education, supra at 279. They op-

pose such implementation. Their complaint is that the

school board does not also oppose such implementa-

tion, but we have held that “Appellants are not entitled

to intervention of right simply because they would

have voted differently had they beenmembers of these

representative bodies.” United States v. Perry County Board

of Education, supra at 280.

Applicants in intervention claim a right to protect the

local school board from the district court’s exercise of

unconstitutional authority. They challenge the lower

court’s jurisdiction because of its June 30, 1971 finding

that Dade County has a unitary system. There has,

however, been no relinquishment of the continuing

jurisdiction of the district court. In both our original

consideration of this case, Pate v. Dade County School Board,

supra, and in our more recent opinion, Pate v. Dade County

School Board, 509 F.2d 806 (Sth Cir. 1975), we recognized

that the district court has acontinuing responsibility to

appraise the system in the light of actual conditions and

experience and make required changes to assure the

maintenance of a unitary system. Lee v. Macon County

Board of Education, 584 F.2d 78 (Sth Cir. 1978) makes clear

that in the absence of a final judgment or dismissal of

the case subject matter jurisdiction is retained over

22a

questions such as the question before the district court

in this case. Appellants’ contention as to jurisdiction is

facially without merit.

Appellees invite to our attention the ninth circuit’s

opinion in Spangler v. Pasadena City Board of Education, 427

F.2d 1352 (9th Cir. 1970) in which the facts are

strikingly similar to those before us. The Spangler court

also rejected application of the Smuck decision. It held

that the applicants were not entitled to intervene for

the purpose of appealing an order which the board of

education had decided not to appeal. The ruling in

Spangler is consonant with the holdings in this circuit

and we conclude, as did the court there, that the lower

court’s ruling is free of error.

The appeal from the order of June 16, 1978 is dis-

missed. The order of the district court denying in-

tervention is affirmed.

CASE NO. 78-2634 APPEAL DISMISSED.

CASE NO. 78-2750 AFFIRMED.

23a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 78-2634 & 78-2750

HERBERT PATE, ET. AL.,

Plaintiffs,

versus

DADE COUNTY SCHOOL BOARD, ETC., ET AL.,

Defendants-Appellees,

versus

ETHEL BECKFORD, ET. AL.,

Movants-Appellants.

Appeals from the United States District Court for the

Southern District of Florida

24a

ON PETITION FOR REHEARING

(March 1, 1979)

Before BROWN, Chief Judge, GEE and VANCE, Cir-

cuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby DENIED.

ENTERED FOR THE COURT:

ls) ROBERT D. VANCE

United States Circuit Judge

[Filed: Mar. 1, 1979]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.