Petition — Brookins v. South Bend Community School Corp.
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- Supreme Court, U.S.
83-915 FILED
DEC 2 1986
ALEXANDER L. STEVAS,
CLERK
Number
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1983
Mary Laura Brookins & al.,
Petitioners,
versus
South Bend Community School Corporation
& al.
and
United States of America,
Respondents
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
P N F CE
David W. Albert
19271 Darden Road
South Bend, Indiana 46637
(219 - 272-1892),
Attorney for the Petitioners
Number
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1983
MARY LAURA BROOKINS & al.,
Petitioners
versus
SOUTH BEND COMMUNITY SCHOOL CORPORATION
& al.
and
UNITED STATES of AMERICA,
Respondents
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
QUESTIONS PRESENTED FOR REVIEW
1. The Federal District Court for the Northern District of
Indiana refused to process a complaint. The complaint alleged
new, intentional, massive, enduring and inter-system discrim-
ination in public education. The Court refused a hearing merely
because a wholly independent suit, regarding different facts
and to which the Petitioners were not parties, had been brought
and settled without evidentiary hearing by the Government,
despite the clear statement in the enabling act for the Govern-
ment, “‘Nothing in this sub-chapter shall affect adversely; the
right of any person to sue for.or obtain relief in any court
against discrimination in public education” (42 U.S.C. 2000c-8).
Is that refusal to even consider the case such a departure from
fundamental fairness and the accepted and usual course of
judicial proceedings so as to unlawfully abridge the rights of
Black and White school children and parents?
1
2. May a Court of Appeals refuse to rule on an appeal from
an ex parte order denying Petitioners the right to prosecute
their suit?
3. Did the District Court, as sanctioned by the Court of
Appeals, deny the Petitioners fundamental, Constitutional
rights in restyling Plaintiffs as Petitioners for Intervention,
then effectively staying their proceeding for a year and then
denying them intervention by delegating its judicial duties to
the defendant Board and refusing to consider either the allega-
tions of the Petitioners or their massive showing of inadequacy
of representation inherent in the representative’s approval of a
school plan which included a segregation program and a breach
of public trust? Did the Court of Appeals continue this process
in overlooking the Petitioner's resistance to identification as
Petitioners for Intervention, in overlooking the Petitioners’
allegations that the Defendant representative was effectively
incompetent and collusive, in overlooking its own case law, in
subordinating manageability to fundamental Constitutional
rights, in misapprehending the purpose of Intervention law, in
denying the Petitioners’ right to make a showing of inadequacy
of representation, in overlooking both essential facts and law
as regards timeliness, and sanctioning the proceedings of the
District Court?
4. Did both the District Court and the Court of Appeals
effectively abrogate Rule 24 in this case?
5. Is the decision of the Seventh Circuit barring litigation by
the Petitioners regarding discrimination in public education in
direct conflict with the decisions of the Fifth Circuit?
6. Did both the District Court and the Court of Appeals act
in conflict not only with its previous decisions generally, but
also with the law of this case particularly?
7. Has the Court of Appeals effectively decided a federal
question in conflict with decisions of this honorable Supreme
Court?
8. Has the Court of Appeals effectively nullified the relevant
state law condemning waste and constructive fraud?
\
ie +
9.Has the District Court, sanctioned by the Court of
Appeals, made an ill-defined umbrella of Federal consent
decrees by which illegal conduct may be made immune from
examination by any Court?
10. May 42 U.S.C. 1706 and 42 U.S.C. 2000c, the enabling
act for the Civil Rights Division, be applied so as to be a ward-
ship act for Black people?
LIST OF ALL PARTIES
Plaintiffs below:
MARY LA’JRA BROOKINS, Mrs. KATHRYN J.W. BROOK-
INS, JAMES REILING, Mrs. ELIZABETH REILING, TRICIA
RIGGS, Mrs. CAROL WILLIAMS, MARK GLEVA, STEVEN
GLEVA, Mrs. KAREN GLEVA, Mr. JOHN C. GLEVA,
ROMERIO BROWN, Mrs. JOYCE LUCAS, BRUCE BUTLER, Jr.,
Ms. TRACiE STAGGERS, and all others similiarly situated.
On 17 September, 1982, the following filed identification of
themselves as further named Plaintiffs: TAMEIA JACKSON,
Ms. VERNA JACKSON, LAMONT CHATMAN, RAYMOND
CHATMAN, Mrs. SANDRA CHATMAN, TYRONE BRAD-
SHAW, and Ms. VANESSA WOMACK.
Defendants below:
SOUTH BEND COMMUNITY SCHOOL CORPORATION,
JAMES P. SCAMMAN, Superintendant, THE BOARD OF
SCHOOL TRUSTEES OF THE SOUTH BEND COMMUNITY
SCHOOL CORPORATION: OSCAR BROOKINS, DONALD
W. YATES, HOLLIS E. HUGHES, Jr., LORETTA JACOBSEN,
EILEEN BENDER, ANTHONY V. LUBER, WILLIAM L.
WILSON, Members of the Board of Trustees (as of 8 September,
1981), and THE UNITED STATES OF AMERICA.
Dr. OSCAR BROOKINS is not represented by counsel in
the proceeding.
The Petitioners named the UNITED STATES as a Defendant
and duly served them. However, the UNITED STATES never
answered.
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ..........
Lee COE MAT PUDER co dc dacs ccbebeccmadee eee
eg es rrr eS eee et ee
STATEMENT OF GROUNDS ON WHITH THE
JURISDICTION OF THIS COURT IS INVOKED ...
CONSTITUTIONAL PROVISIONS AND STATUTES
WHICH THIS CASE INVOLVED ................
SUREMENTS BEE CAD bc Nidicwieveestvaceens
BASIS FOR FEDERAL JURISDICTION IN THE
PR NETO 6 0S 50s whe EES en Owen ore t e's
ARGUMENT
1. MAY A COURT REFUSE TO
PROCESS A COMPLAINT? ..............
. MAY A COURT OF APPEALS REFUSE TO
REVIEW AN EX PARTE ORDER
DLOQCR I BRM, Cinders cecccewes
3. HAVE PETITIONERS’ RIGHTS TO DUE
PROCESS BEEN VIOLATED? ............
4. HAS THE DECISION BELOW
RSA R SEE O4t 6.5. bet eveneoun
5. IS THERE A SERIOUS CONFLICT BETWEEN
pp sk ie A: i oe ey
6. IS THERE AN UNRESOLVED CONTRADICTION
WITHIN THE LAW OF THE CASE BELOW? .
7. IS FUNDAMENTAL DESEGREGATION LAW
RENDERED A NULLITY7...............
te
@.. i ae -Os
13
14
17
19
22
23
27
28
8. IS PENDANT STATE LAW RENDERED
PRUETT oA 0s 00 Cire ops dc eseash ews
9. MAY CONSENT DECREES SHIELD
ELERNGAL ACTIVEGHEO! 2 cc ccccccccccess
10. DOES THE CIVIL RIGHTS ACT MAKE
WARDS OF BLACK PEOPLE? ............
as 53 op wip iia cialags hed a5. 0a peau
APPENDIX
ORDER IDENTIFYING PLAINTIFFS IN
$81-313 AS PETITIONERS FOR
INTERVENTION IN S80-35 .............08.
DECISION ON PETITION OF NAACP and CQE2
TO INTERVENE IN DISTRICT COURT CAUSE
NO. S80-35, UNITED STATES v. SOUTH BEND
COMMUNITY SCHOOL CORPORATION et al.
(692F2d 623 (7th Cir., July 23, 1982)) ........
MEMORANDUM AND ORDER IN BROOKINS et al.
vy. SOUTH BEND COMMUNITY SCHOOL
CORPORATION et al. (S80-35/S81-313, D.C.
We maGictiet, De Geis ocd oavinsns 52d «ss
SUPPLEMENTAL ORDER IN S80-35/S81-313.....
DECISION OF THE SEVENTH CIRCUIT
OCCASIONING THIS PETITION FOR WRIT ..
ORDER DENYING REHEARING ...............
ORDER"DENYING CORRECTION OF CAPTION ..
DOCKET FOR S81-313 (BROOKINS v. SBCSC) .. ..
DOCKET FOR S80-35 (UNITED STATES v.
acco. Cebu dh ook pM ae sed - Ginssices
DECISION IN ADAMS v. BALDWIN COUNTY
BOARD OF EDUCATION 628 F2d 895
Cpe ily SOU s Ces veen chmeaeund eegebinas os
62
69
TABLE OF AUTHORITIES
CASES
ADAMS v. BALDWIN COUNTY BOARD OF 14, 22,
EDUCATION 628 F 2d 895 (Sth Cir., 1980) . . .23, 24, 25
ARMSTRONG v. MANZO 380 U.S. 545, 85 S. Ct. 1181,
Coy 8. arn 15, 22
BODRIE v. CONNECTICUT 401 U.S. 371, 91 S. Ct. 780,
TS oT re t core 15, 22
BRADLEY v. MILLIKEN 433 U.S. 267, 97 S. Ct. 2449,
Pe he Se Seu) ere 30
BRADLEY v. MILLIKEN 460 F. Supp. 299
Se EEE we Sn eases ccceccesccas 30
BROWN v. BOARD OF EDUCATION OF
TOPEKA, KANSAS 347 U.S. 483, 74 S. Ct. 686,
I 5s ea cca bh «bly 0.0 eevee ena 32
CLARK v. F EDU F
LITTLE ROCK 449 F2d 493 (8th Cir., 1971) .. 20(9), 28
CLARK v. SANDUSKY 205 F2d 915
ee RTE Pe See 28
COLUMBUS BOARD OF EDUCATION v. PENICK.
443 U.S. 449, 99 S. Ct. 2941, 61 L Ed 2d 666
gn AMO CET CETL ETE Teh Pee eee 28
COPELAND v. SOUTH BEND COMMUNITY SCHOOL
MEME bikes ss 6b 4 Pad nies serie hs © HES 19(9)
DOWELL v. BOARD OF EDUCATION OF
OKLAHOMA CITY PUBLIC SCHOOLS 430 F2d 865
SRN 6 occas Scntvescteeeacverss. es 26(19)
FORD MOTOR CO. v. BISANG BROS., INC.
oe gk 8 A | ene ee ee 20(9)
GRANNIS v. ORDEAN 234 U.S. 384, 34 S. Ct. 779,
ee en 16, 22
GRAVES v. WALTON SCHOOL DISTRICT
Pe ee SPT Cig ig LODE) oS wicnase hes cae 15, 23, 24
HANSBERRY v. LEE 311 U.S. 32,61 S.Ct. 115,
SP eee ee EN a os bn neh Wad obs ays o's oe sc 16, 21, 22
HINES v. RAPIDES PARISH SCHOOL.BOARD
STF FOG: FOE COU ly BF1OD 6 Fibs whedon Kee ea 14, 15, 24
JONES v. CADDO PARISH SCHOOL BOARD
es TOR BATE COUR ETERS sco bck daees Bowks 15
KELLY v. KOSUGA 358 U.S. 516, 79 S. Ct. 429,
PE ee I IEE n>» Pina pees o Pap pled eee 21
KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO.
413 U.S. 189, 93 S. Ct. 2686, 37 L Ed 2d 548
PORE ire W i 5.5: 0p 3 oh ERAAR CRE ied DRS oO 28
MCPHERSON v. SCHOOL DISTRICT NO. 186,
SPRINGFIELD ILLINOIS 426 F. Supp. 173
Cee BETS REO heb i os takes wine Adee news 30
MCVEIGH vy. UNITED STATES 11 Wall. 267 (c. 1870). 22
MULLANE v. CENTRAL HANOVER TRUST CO.,
339 U.S. 306, 70 S. Ct. 652, 94 L Ed. 865 (1950) ... 15,22
PATE v. DADE COUNTY SCHOOL BOARD
SEG Fae Sek, Pee (OG CR, UGTA a oi 9c eee ns ce 15
PENICK v. COLUMBUS BOARD OF EDUCATION
429 F. Supp. 229 (S. D. Ohio E.D., 1977) ......... 30
SMITH v. MONSANTO 420 F2d i103 (Sth Cir., 1970) . 25(19)
SWANN v. CHARLOTTE-MECKLENBURG BOARD
OF EDUCATION 402 U.S. 1, 91 S. Ct. 1267, 13, 28,
roe Te) eee eee peers 29, 30, 32
UNITED STATES v. BOARD OF SCHOOL
MMI NERS OF , ‘
oe ye fe ee een, ee 28
UNITED STATES v. BOARD OF SCHOOL
COMMISSIONERS OF INDIANAPOLIS, IND. et al.
CPG. F. SECU TRC, TIF RR babs ceseseviweeves 30
7
UNITED STATES v. BOARD OF SCHOOL
COMMISSIONERS OF INDIANAPOLIS, IND. et al.
506 F. Supp. 657(S.D. Ind. 1979) ............... 30
UNITED STATES v. CITY OF MIAMI 614 F2d 1322
SO COUR lag SN des 4 0a os cuctibnswwornenen 27
UNITED STATES v. MARION COUNTY SCHOOL
DISTRICT 590 F2d 146 (Sth Cir., 1979)....... 15, 24(18)
UNITED STATES v. PERRY COUNTY BOARD
OF EDUCATION 567 F2d 277 (Sth Cir., 1978) .... 15
UNITED STATES v. SOUTH BEND COMMUNITY
SCHOOL CORPORATION et al. 692 F2d 623
CPE T IG FOE ia Pia Wains's on Rea adeno dinaces 9,27
VIGO COUNTY COMMUNITY SCHOOL
CORPORATION v. CROCKETT 307 NE2d 510
SRO is bs b U oan edie whe < Sata re eteN omer 30
WINDSOR v. MCVEIGH 93 U.S. 274, 23 L Ed 914
TEED + Kas Bb at 8 Us + CORN aReu ces A Sethe 16, 22
OTHER AUTHORITIES
CONSTITUTION OF THE UNITED STATES
RAE Ue, SUMAN BONE Scie c cece wns cupuveinnwe 9,16
ps | PCT EULER ORT ire yy 9,14
eee eer es 10, 14, 15, 19
PO roe Pr ae 10, 14, 15
STATUTES
Og SN FTG idee icc cece scsensaue 10, 16, 32
SO UBL, BOC BIGG 6 voce sccccccvestveces 10, 14, 20
pt | OSES TTT ET LITT 10, 13, 20
SB UE CH POD ses cee ccecccccnvcevecs 10, 20
42 U.S.C., Section 2000c-6 (bb)... . 2 2. ee eee ee 11,32
42 U.S.C., Section 200008 ............2000:: 11, 20, 32
FEDERAL RULES OF CIVIL SSE,
SE A ab 4b-sene Oo e hb 0-964 040 + 840008008 11,22
U. S. CODE CONGRESSIONAL &
ADMINISTRATIVE NEWS, 88TH CONGRESS,
IND SESBION, 1964 ...... 2... cee cece, 31
REFERENCE TO THE OFFICIAL
AND UNOFFICIAL REPORTS
OF ANY OPINIONS DELIVERED BELOW
No decisions delivered below in the Petitioners’ litigation
have been reported officially or unofficially. Significant de-
cisions delivered below in the Petitioners’ litigation are repro-
duced in the Appendix. A decision by the Seventh Circuit in
the case with which the Petitioners were consolidated and
identified as Petitioners for Intervention is reported as UNITED
STATES v. SOUTH BEND COMMUNITY SCHOOL CORP-
ORATION 692 F2d 623 (7th Cir., 1982) and is also reproduced
in the Appendix attached hereto.
STATEMENT OF THE
GROUNDS ON WH.CH THE JURISDICTION
OF THIS COURT IS INVOKED
The decision of the Court of Appeals for the Seventh Circuit,
of which the Petitioners seek review, was entered on June 23,
1983. A timely petition for rehearing, with suggestion of re-
hearing en banc and a motion for correction of caption were
denied on September 7, 1983. This Petition for Writ of Cer-
tiorari was filed within ninety (90) days of that date of denial
of rehearing and correction of caption,
This Honorable Court's jurisdiction is invoked under 28
U.S.C. 1254 (1).
CONSTITUTIONAL PROVISIONS AND STATUTES
WHICH THiS CASE INVOLVES
Constitution of the United States,
Article III, Section 2.
“The judicial power shall extend to all cases, in law and
equity, arising under this Constitution, the laws of the United
States,...””
Constitution of the United States,
First Amendment
“Congress shall make no law . . . abridging . . . the right of
the people . . . to petition the Government for a redress of
grievances.”’
Constitution of the United States,
Fifth Amendment
““No person shall be . . . deprived of life, liberty or property
without due process of law.”
Constitution of the United States,
Fourteenth Amendment
“... nor shall any state deny to any person within its juris-
diction the equal protection of the laws.”’
20 U.S.C., Section 1706
“An individual denied an equal educational opportunity, as
defined by this subchapter may institute a civil action in an
appropriate district court of the United States against such
parties, and for such relief as may be appropriate. The Attorney
General of the United States . . ., for, or in the name of the
United States, may also institute such a civil action on behalf
of such an individual.”
20 U.S.C., Section 1708
“The appropriate district court of the United States shall
have and exercise jurisdiction of proceedings instituted under
section 1706 of this title.”’
28 U.S.C., Section 1343
“The district courts shall have original jurisdiction of any
civil action authorized by law to be commenced by any person...
*(3) To redress the deprivation, under color of any state
law, statute, ordinance, regulation, custom or usage, of any
right, privilege or immunity secured by the Constitution of the
United States or by any act of Congress providing for equal
rights of citizens or of all persons within the jurisdiction of
the United States.”
42 U.S.C., Section 1983
“Every person who, uhder color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or any person within the jurisdic-
tion thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress. . .”’
10
42 U.S.C., Section 2000c-6 (b)
‘(b) The Attorney General may deem a person or persons
unable to initiate and maintain appropriate legal proceedings
within the meaning of subsection (a) of this section when such
person or persons are unable, either directly or through other
interested persons or organizations, to bear the expense of the
litigation or to obtain effective legal representation; or when-
ever he is satisfied that the institution of such litigation would
jeopardize the personal safety, employment, or economic
standing of such person or persons, their families or their
property.”
42 U.S.C., Section 2000c-8
“Nothing in this subchapter shall affect adversely the right of
any person to sue for or obtain relief in any court against dis-
crimination in public education.”
FEDERAL RULES OF CIVIL PROCEDURE, RULE 24
(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 unconditional right to intervene;
or, (2) when the applicant claims an interest relating to the
property or transaction which is the subject of the action and
he is so situated that the disposition of the action may as a
practical matter impair or impede his ability to protect that
interest, unless the applicant's interest is adequately represented
by existing parties.”
STATEMENT OF THE CASE
On September 8, 1981, the Petitioners filed a Complaint in
the Federal District Court for Northern Indiana. It was not
dismissed for failure to state of cause of action or for want of °
jurisdiction, nor was it heard. It was not processed.
The complaint alleged that the South Bend Community
School Corporation was embarking on a system-wide program
of public school discrimination to re-establish a dual system by
removing eleven (11) of its twenty-eight (28) grade schools,
ten (10) of those eleven (11) being either naturally “racially
balanced” or easily made so by cessation of gerrymandering
or otherwise on a substantially neighborhood basis. Ten (10)
of those eleven (11) formed a complete ring of stripped service
around the major area of Black population and formed areas
deprived of neighborhood school service in precisely those
well-populated residential neighborhoods connecting urban
Black populations to White suburban populations or adjacent
White urban populations. The complaint also alleged that the
removals were waste and constructive fraud under Indiana Law.
In that the Petitioners asked for a Temporary Restraining
Order against a particularly critical grade school removal from
a densely populated neighborhood, which was 20% Black (and
adjacent to suburban and rural White populations) but gerry-
mandered to be 59% Black, the Petitioners attached extensive
exhibits to their Complaint showing further detailed examples
of racial motivation and steering.
The School Corporation answered, moved to dismiss for
failure to name the United States as an essential party, and
moved that the Complaint be consolidated with a previous Case
between the United States and the School Corporation. In that
previous case the statistical results of a new busing program
were approved as describing racial balance, and school closings
were summarized as impacting Black and White children pro-
portionately (Hispanics counted as White).
There was no evidentiary hearing. There wes no adversary
process in that previous case except the prevention of interven-
tion by the NAACP an. by a local group. All issues raised by
the Petitioners remained unaddressed in the previous case. The
Petitioners were not parties to that proceeding.
In their own case the Petitione.. added the United States as
a Defendant by amended complaint following the School
Corporation's answer.
The motion to consolidate and identify as Petitioners for
Intervention was granted ex parte.
The Petitioners moved to reconsider. The Petitioners pointed
to their allegations and evidence of a new and system-wide
segregation plan! as showing the inadequacy of representation
by the Civil Rights Division.
1. Included in the exhibits was evidence that the school segregation program had
inter-district proportions.
12
The Case was not heard. The showing of inadequacy of
representation was not considered or weighed. On September
22, 1982, the District Court denied intervention and dismissed
the Petitioners’ case. On November 12th, the Court sup-
plemented its order.
From these orders the Petitioners appealed to the Court of
Appeals for the Seventh Circuit. The Seventh Circuit sustained
the District Court on the grounds that the reality of a cause of
action is of no weight in determining the adequacy of previous
purported representation, that Petitioners for Intervention may
not use evidence to show inadequacy of a representative, and
that the Petitioners could prosecute their own suit, but “‘chose
to piggy-back on the Department” whom they named as
Defendant.
The Court of Appeals did not address arguments by the
Petitioners concerning a broad new discretion given to the
Civil Rights Division to make agreements ‘“‘on behalf of”’ real
parties in interest and then foreclosing them from bringing
actions in Federal Court, concerning administrative assumption
of effective restraining wardship over Black people and their
White residential neighbors, concerning nullification or
42 U.S.C. 2000c-8 and nullification of SWANN v.
402 U.S. 1 (1971), practically and particularly for the Pet-
itioners. The Court of Appeals also denied the Petitioners’
Request for correction of a misapprehension of the record,
namely, that the Petitioners (never) chose to “‘piggy-back on
the Department.”
BASIS FOR FEDERAL JURISDICTION
IN THE FIRST INSTANCE
In their complaint below, the Petitioners addressed the Dis-
trict Court as follows:
“1. Jurisdiction of this court is invoked under 28 U.S.C.
1343 (3) and (4):
“2. This court has continuing jurisdiction over any and all
actions arising from implementation of any plan for
desegregation entered into pursuant to a consent agree-
ment incidental to actions brought pursuant to the Civil
2. Decision of June 23 occasioning this Petition for Writ, Appendix, p. 54.
13
Rights Act of 1964, 42 U.S.C. 2000c-6 (a) and (b) and
under the Equal Opportunities Act of 1974, 20 U.S.C.,
Sections 1701 et sequentes.
“3. This Court has pendant jurisdiction of all claims arising
under the common law and statutes of the State of
Indiana arising from the implementation of any plan as
aforesaid or requiring remedies which are inseparable, as
a practical matter, from the sudject of orders from
this Court.”
ARGUMENT
1. Could the District Court properly refuse to process the
complaint and could the Court of Appeals lawfully sanction
that refusal?
Upon the filing of the Complaint the District Court had
the duty to process it. Anything less was a denial to the Pet-
itioners of their right to ‘due process of law’’ (UNITED STATES
CONSTITUTION, AMENDMENT V), and an interpretation
and/or application of Congressional acts so as to bring them
into conflict with the Petitioners’ right to “‘petition for redress
of grievances’’ (UNITED STATES CONSTITUTION, AMEND-
MENT I).
The Courts below refused to process the Petitioners’ com-
plaint. Courts may not refuse to do so without violating the
most basic law of judicial procedure. Courts are to hear com-
plaints. A Court must process complaints within its jurisdiction.
If for reasons of orderliness and directness, the Court wished
to simply treat the complaint as a separate suit, such might
be the Court’s discretion. In that framework the Court might
fulfill its Constitutional and statutory duty to process the suit.
“The appropriate district court shall have and exercise
jurisdiction of proceedings instituted under Section
i706 of this title.’ (20 U.S.C. 1708; emphasis added;
oS UNITED STATES CONSTITUTION, AMENDMENT
).
If the Court, however, chose or felt compelled to treat the
Complaint as a Petition for Intervention, again for reasons of
orderliness (cf. HINES v. RAPIDES PARISH SCHOOL BOARD
479 F2d 762: (Sth Cir., 1973)), it was required to observe
“scrupulous due process.” (ADAMS v. BALDWIN COUNTY
14
BOARD OF EDUCATION 628 F21 895, 897 (Sth Cir., 1980)
(Appendix, P. ) in an “evidentiary hearing” (Ibid). Inevitably,
the Constitutional and statutory requirements would oblige
the Court to process the suit, provided it stated a cause of
action. “Parental interest . . . in showing the way in which the
goal of a unitary system had allegedly been frustrated .. .
justifies . . . intervention’’ (GRAVES v. WALTON 91 FRD 457,
474 (D.C. G.A., 1981), UNITED STATES v. MARION COUNTY
SCH ISTR 590 F2d 146, 149 (Sth Cir., 1979),
UNITED STATES v. PERRY COUNTY BOARD OF EDUCA-
TION 467 F2d 277, 279 (Sth Cir., 1978). JONES v. CADDO
PARISH SCHOOL BOARD 487 F2d 1275, 1277 (Sth Cir.,
1973) HINES v. RAPIDES PARISH SCHOOL BOARD 479
F2d 762, 765 (Sth Cir., 1973).° Petitioners stated precisely
that interest, and “*. . . important Constitutional rights are at
stake. (ADAMS v. BALDWIN COUNTY EDU-
CATION 628 F2d 895, 897 (Sth Cir., 1980), Petitioners
REPLY BRIEF to the Appellate Court, p. 5)
The Court neither processed the complaint directly as a
simple complaint nor indirectly as a petition for intervention.
It barred the processing of this suit. It denied the plaintiffs in
a Civil Rights Suit access to the Courts and an opportunity to
prove to a Federal judge the reality of the “‘deni(al of) equal
protection of the laws’ (UNITED STATES CONSTITUTION,
AMENDMENT XIV).
Thus, the Court itself violated .the Constitutional rights of
the Petitioners, effectively denying them their “only oppor-
tunity to be heard’’ (ADAMS v. BALDWIN COUNTY BOARD
OF EDUCATION 628 F2d 895, 897 (Sth Cir., 1980), cf UNITED
STATES CONSTITUTION, AMENDMENT V, BODRIE v.
CONNECTICUT 401 U.S. 371, 377-378, 91 §. Ct. 780, 786,
28 L Ed 2d 113, 119 (1971), ARMSTRONG v. MANZO 380
U.S. 545, 552, 85 S. Ct. 1181, 1191, 14 L Ed 2d 62, 66 (1965),
MULLANE v. CENTRAL HANOVER TRUST CO, 339 U.S.
3. Rule 24 does not abolish access to Court which is otherwise Constitutionally
and otherwise guaranteed. Once basic questions as to the reality of a cause of
action, jurisdiction, ete., have been answered in the affirmative the suit must
be processed. That it may be most appropriately processed as a granted inter-
vention does not mitigate the statutory and Constitutional guarantees of the
processing of a suit, of the right to be heard. This is especially true if the Court
itself has required that the Petition for Intervention form (though designed
perhaps for another purpose) be used for unquestionably valid and jurisdic-
ionally appropriate causes of action.
15
306, 313, 70 S. Ct. 652, 656-657, 94 L Ed 865, 873 (1950),
HANSBERRY v. LEE 311 U.S. 32, 61 S. Ct. 115, 85 L Ed 22
(1940), GRANNIS v. ORDEAN 234 U.S. 384, 394, 34 S. Ct.
779, 783 53 L Ed 1364, 1369 (1914), WINDSOR, v MCVEIGH
93 U.S. 274, 277, 23 L Ed 914, 916 (1876)).
The Court failed to exercise its Constitutional power (CON-
STITUTION of the UNITED STATES, ARTICLE III), its
statutory power (20 U.S.C., Section 1708 and 28 U.S.C. 1343)
and its unavoidable statutory duty (20 U.S.C. 1708). It neces-
sarily violated 20 U.S.C. Section 1708, which mandated that
the Court exercise jurisdiction, and denied the Petitioners’
rights described in 20 U.S.C. Section 1706 and 42 U.S.C.
Section 1983, guaranteed in 42 U.S.C. Section 2000c-8 and
grounded in the Constitution itself.
This abuse was then sanctioned by the Court of Appeals.
The Court of Appeals specifically recognized that the Pet-
itioners had a cause of action, but still sanctioned the District
Court’s refusal of hearing. Moreover, the Court of Appeals
persisted in misapprehending the relationship between the
Petitioners and the Civil Rights Division, even though both
the School System) and the Justice Department Defendants®
agreed with the Petitioners that the Plaintiff did not choose to
““piggy-back on the Department,”” but were placed in that
position, ex parte, and were left there, a motion to reconsider
not withstanding. Moreover, at the Appellate level in the
prescribed specific prayer for relief at the close of their Appel-
late Brief, the Petitioners again asked for relief from this order,
this time as an alternate to being granted intervention:
“The BROOKINS Plaintiffs specifically ask that this Court
order that they be granted Intervention on their causes in
this case or, in the alternative, that their identification as
Petitioners for Intervention be found to be improper.” “
(The Appellate Court even refused to correct the caption so
that the United States, named as a Defendant in the Petitioners’
4. Decision of June 23 occasioning this Petition for Writ, Appendix, p. 54.
5. ef. Infra, p. 18
6. cf. Infra, p. 18
7. Decision of June 23 occasioning this Petition for Writ, Appendix, p. 54.
16
lawsuit, was shown as Defendant vis-a-vis the Petitioners.)
The Court of Appeals refused to recognize that those not
parties to a previous suit could not be excluded by that suit
from their day in Court (HANSBERRY v. LEE 311 US. 32,
61S. Ct. 115, 85 L Ed 22 (1940).
The District Court denied the Petitioners the possibility of
pursuing the separate case. The Appellate Court sanctioned
that denial by its missapprehension of fact and the failure to
reverse on the grounds requested in the Petitioners’ alternative
prayer to that Appellate Court, in fact, failing to rule at all on
one of those grounds.
The Petitioners were totally denied meaningful access to the
Court. Their exhibits were not weighed or considered. Their
complaint was not processed and was arbitrarily put on hold
and then obliterated in a process that fundamentally nullified
their rights as citizens and the reason for courts in our society.
The first principals of the social compact require that a com-
plaint be processed and heard. It may not be critical what it is
called while being processed, but it must be heard either directly
or as a granted intervention. The Constitution will tolerate no
less.
A gap between law and reality is a tragedy. In so far as mem-
bers of a society cannot seek remedies for real wrongs in a legal
process, the judicial system itself will decay into meaninglessness.
2. May a Court of Appeals refuse to rule on an appeal from
an ex parte order blocking the processing of a complaint?
Aside from the focus of Question One, there was a simple
refusal of the Court of Appeals to rule on the ex parte order by
the District Court of October 13, 1981, on a form of order
prepared by the School System Defendants (with the excep-
tion of Dr. Brookins). By that order the Court, upon the
school system’s motion, restyled the Petitioners’ Action, a
complaint alleging a program of public school segregation and
waste of school system resources in order to achieve enduring
segregation, as a Petition for Intervention into a cause no
longer pending before the Court. 8
8. Appendix, p. 34. The cause was then on appeal by NAACP and CQE2.
17
No hearing was had. The Petitioners, by counsel, received a
copy of the order in the mail and promptly moved for recon-
sideration.
As has already been said, in their prayer for relief to the
Seventh Circuit, the Petitioners asked alternatively for Inter-
vention or the reversal of the ex parte order identifying them
as Petitioners for Intervention. Yet, the Court of Appeals, con-
fronted with this record said: “. . . the appellants could if they
had wanted to prosecute their own suit against the School
Board. They started down that road, but then decided to
piggy-back on the Department.” (Decision of June 23, 1983,
occasioning this Petition for Writ)
“The Plaintiffs (Petitioners) never decided to piggy-back on
the Department, nor did they consent to being piggy-backed by
the SBCSC (School System) Defendants or the District Court”
(Petitioners’ Request for Rehearing, Issue 2). ‘‘The Appellate
Court overlooked the fact that the Brookins Plaintiffs (Pet-
itioners) assigned their being identified as Petitioners for Inter-
vention as error and specifically asked that their identification
as Petitioners for Intervention be found to be improper.”
(Idem, Issue 3) “. . . it was the School Corporation that orig-
inally moved to treat the Brookins complaint as a Petition for
Intervention.” (Response of School System Defendants to
Petition for Rehearing, p. 2) “Appellants’ (Petitioners’) asser-
tions that the decision to ‘piggy-back’ their suit on the United
States’ suit was not theirs, and that they did not consent below
to that decision, are correct.”’ (Response of the United States to
Appellants’ Petition for Rehearing, p. 2) “After finding (that) it
was in error for the Brookins Plaintiffs to be piggy-backed on
the Department, the Court overlooked applying that law to the
District Court which committed that error.”’ (Request_for
Rehearing, Issue 4).
Consistent with the Appellate Courts’ misapprehension,
(which omitted a critical portion of the record, and the Courts’
failure, even upon Request for Rehearing, to attend to the
record as it actually existed) it even refused to correct its own
clerical mistake and denied the Petitioners’ motion seeking
correction of the capiton so that the United States was shown
properly as a “Defendant Appellee,” not merely as a “*Plaintiff-
Appellee” (Appendix, p. 57).
18
An ex parte order remained untouched, and the Seventh
Circuit totally refused to rule on an appeal from it, thus further
and dramatically violating the Petitioners’ rights to “due process”
(UNITED STATES CONSTITUTION, AMENDMENT V) and
violating the very essence of the Federal Rules of Appellate
Procedure, under which the Petitioners perfected an Appeal
as of Right. A critical galaxy of facts was misapprehended
even after emphasis by Request for Rehearing. A ruling was
refused when needed by the Petitioners both for the protection
of their fundamental Constitutional rights and for their guid-
ance as to the true state of the law for their city.
3. Was the cumulative effect and interrelationship of the
steps taken by both the District Court and the Appellate Court
in this case such a denial of fundamental fairness as to call for
an exercise of this honorable Court's jurisdiction?
Not only did the District Court, sanctioned by the Appellate
Court, and the Appellate Court itself violate Petitioners’ fun-
damental right to be heard at critical points and on critical
discreet issues, but, in addition, the pattern in this case sumu-
lates to a particularly egregious and massive violation of the
Petitioners’ Constitutional rights, a total denial of fundamental
fairness.
The District Court identified the Plaintiffs as “‘Petitioners for
Intervention” against the Petitioner-Plaintiffs’ wishes, and for
practical purposes stayed proceedings for a year.
The Appellate Court sanctioned that step by refusing to
correct its misappreliension that the Plaintiffs had chosen to
become Petitioners for Intervention, that the Plaintiffs had
chosen to “‘piggy-back”’ on the Defendant Department.
The erstwhile Plaintiffs, having preserved their record,
pointed to the Complaint, now Petition for Intervention, and
to the exhibits which displayed a prima facie case of racially
motivated public school closures.? They further pointed to the
9. Petitioners filed thirty-one (31) exhibits, including a detailed (8°0” square)
“geo-coding™ of K-6 public school child locations by block on census block
data base maps, history of school populations, historical school boundaries and
expert opinion from a sociologist specializing in school desegregation behavior.
The Petitioners also incorporated by reference the record in COPELAND v.
SOUTH BEND COMMUNITY SCHOOL CORPORATION et al. SB67-3803
(D.C. N. ind., 1968), which they retrieved and made available to the Court and
(cont'd. next page)
19
total absence of meaningful litigation between the Civil Rights
Division and School System !0 and the remarkable absence of
a previous record on the issues raised by the Plaintiff-Petitioners
for Intervention. The pleading and proof showed the inadequacy
of representation by the Civil Rights Division on matters of
fundamental Constitutional right to the Plaintiffs.
The District Court brushed past such showing, delegating
the responsibility to hear evidence to the Defendant Depart-
ment!! and the Defendant School Board!2 and declared that
the Court had already found the plan Constitutional in a
previous waa: suit between the Justice Department and the
School System 3 (although without evidence relevant to the
Plaintiff-Petitioners’ showing).!4 That is, the Court did not
even give a scintilla of consideration to the evidence that the
school system was engaged in a new and massive segregation
program.
The District Court enforced a consent decree, a contract
between the Justice Department and the School System,
against the Petitioners, when the Petitioners were clearly
9. (cont'd.) . . . which showed the consistency of the behavior of the SOUTH BEND
COMMUNITY SCHOOL CORPORATION in using site selection and abandon-
ment to achieve racial segregation with a context of dearth of meaningful carto-
graphic information which blunted detection. (cf. FORD MOTOR CO. v.
BISANG BROS., 249 F2d 22 (8th Cir., 1957), CLARK v. SANDUSKY 205
F2d 915 (7th Cir., 1953)).
10. ef. Docket Sheets for $80-35 (Appendix, pp. 57 - 69).
1]. “The question of adequacy of representation does not depend upon the Court's
assessment of the representative's decision,” (Memorandum and Order of
September 22, 1982, in S81-313/S80-35, p. 5, Appendix, p. ) (ef. Pro-
posed Consent Order as submitted April 3, 1981, in S80-35, in which the United
States stated that its decision was “on the basis of information supplied by the
School System™ as noted by Petitioners in their Reply Brief to the Appellate
Court, p. 4.)
12. “School Board and the administrators . . . have aiso fully and fairly considered
those interests” (Memorandum cit., p. 6, Appendix,p.50) “The Brookins
Class had has its day before the Board of School Trustees” (Idem. p. 7, Appen-
dix, p. 50).
13. Referring to Order of April 17, 1981, “This Court has already determined that
the plan was Constitutional based on evidence and information submitted to aid
the Court in making that determination” (Ibid, p. 7, Appendix, p. 49).
14. The Docket shows no evidentiary hearing whatsoever. Appendix, pp. 59 -
69. The full record of S80-35 must be seen for assessment of the extent
of void of meaningful evidence.
20
alleging and ready to show that the contract violated the law
(cf. KELLY v. KOSUGA 358, U.S. 516, 520, 79 S. Ct. 429,
431, 3 L. 2d 475 (1959), HANSBERRY v. LEE 311 U.S. 32,
61 S. Ct. 115, 85 L Ed 22 (1940)). The District Court engaged
in this enforcement in violation of the law, not only refusing
to process the Petitioners’ suit alleging such violation, but also,
refusing to consider Petitioners’ proferred showing that such
violation must be the result of an inadequacy of represen-
tation.
As has been shown, the Appellate Court, having said that the
Petitioners could have filed their own case if they wanted to,!5
refused to correct its misapprehension and acknowledge that
the Petitioners did want to.
The Court of Appeals, even upon emphasis in Request for
Rehearing, overlooked the Petitioners’ resistance to identifica-
tion as Petitioners for Intervention: overlooked the Petitioners’
allegations that the Defendant representative was effectively
incompetent and collusive; overlooked its own case law; sub-
ordinated manageability to fundamental, Constitutional rights;
misapprehended the’ purpose of intervention law; denied the
Petitioners’ right to make a showing of inadequacy of represen-
tative; overlooked both essential facts and law as regards time-
liness; and failed to recognize that the Petitioners had named
the United States as a Defendant. !©
The Appellate Court refused to rule on their prayer for relief
from being designated as Petitioners for Intervention and their
being denied direct prosecution of their suit.
Then, even when they had presented compelling arguments
and evidence within their dourt designated roles, they were still
denied fundamental fairness and due process with novel pro-
‘posed law.
The Appellate Court, while acknowledging ‘‘superficial
appeal” in the logic of the Petitioners’ showing of inadequacy,
sanctioned the District Court’s denial of due process by declar-
ing that the Petitioners were prohibited from making their
showing until after they had been granted intervention, which
in turn, depended upon their having made the showing.
15. Appendix, p. 54.
16. Request for Rehearing, Issues 1, 2, 3, 4,5, 8, 9, 10, 12, 13, 14, & 15.
21
The Fifth Circuit does not permit such denial of due process
(ADAMS v. BALDWIN COUNTY BOARD OF EDUCATION
628 F2d 895, 897 (Sth Cir., 1980)). This Honorable Court
itself has repeatedly held that the Constitution requires a hear-
ing at a meaningful time and in a meaningful manner. (BODKit
v. CONNECTICUT 401 U.S. °371, 377-378, 91 S. Ct. 780,
786, 28 L Ed 2d 113, 119 (1971), ARMSTRONG v. MANZO
380 U.S. 545, 552, 85 S. Ct. 1181, 1191, 14 L Ed 2d 62, 66
(1965), MULLANE v. CENTRAL HANOVER TRUST CO.
339 U.S. 306, 313, 70 S. Ct. 652, 656-57, 94 L Ed 865, 873
(1950)). This Constitutional requirement has led this Court to
require that a case be considered anew, even when the same
real party in interest has been in Court (ARMSTRONG v.
MANZO, loc. cit., cf. HANSBERRY v. LEE, loc. cit.). A
fortiore, someone who has never been made a party to a pre-
vious perfunctory process has a right to a meaningful hearing
appropriate to this case disposing of fundamental rights
(MULLANE v. CENTRAL HANOVER TRUST CO.., loc. cit.).
“The fundamental requisite of due process of law is the
opportunity to be heard.” GRANNIS v. ORDEAN 234 U.S.
385, 394, 34 S. Ct. 779, 783, 58 L Ed 1364, 1369 (1914),
cf. WINDSOR v. MCVEIGH 93 U.S. 274, 277, 23 L Ed 914,
916 (1876)).
In direct collision with fundamental law, the Seventh Circuit
has told Petitioners that they had no right to a hearing. The
Court of Appeals has acted “. . . contrary to the first principles
of the social compact and the right administration of justice,
MCVEIGH vy. UNITED STATES, II Wall., 267 (78 U.S., XX.,
81)” (dem 93 U.S. 274, 277, 23 L Ed 914, 915 (1876)).
4. Was Federal Rule of Civil Procedure 24 effectively abro-
gated in this case?
Intervention law itself was not respected in this case.
Rule 24 (a) (2) provides that intervention is ‘‘as of right”
when, inter alia, the interest of the applicant is, “‘as a practical
matter,” not adequately represented by the existing parties.
Frequently, this has been found to impose a requirement that
the applicant show inadequacy of representation. “Rule 24(a)
(2) . . . makes inadequacy of representation an absolute re-
quirement . . .”” (Appendix, p. 54). “... if the decree is as bad
as they say it is, their interests are not being adequately rep-
22
resented by the Department.’’ (Decision of June 23, 1983,
occasioning this Petition for Writ as quoted in Request for
Rehearing, p. 10, Appendix, p. 54). “. .. the District Court
could not determine whether it was as bad as they say it is
without granting them a hearing.’’ (Idem. p. 54).
Therefore, Rule 24, as well as due process, requires the
opportunity for a threshold hearing, as is explicated in the only
other decision in the country precisely on this point. (ADAMS
v. BALDWIN COUNTY BOARD OF EDUCATION 628 F2d
895, 897 (Sth Cir., 1980), Appendix, p. 69 ).
The only practical way for the Petitioners to show an inad-
equacy of representation was by showing illegal results damag-
ing to the Petitioners and consented to by the Department. This
is in a case in which there is no evidence that the Department
has undertaken independent investigation or considered the
position of the BROOKINS CLASSES and has continuously
acted in apparent harmony with the School System Defendants
in resisting adjudication on the merits. The record shows a
total conflict of interest between the Petitioners and the United
States as to the Petitioners “interest in . . . showing” (GRAVES
v. WA:_ TON SCHOOL DISTRICT 91 FRD 457, 474 (D.C. Ga.,
1981) and prior Fifth Circuit cases) the frustration of the goal
of 4 unitary systeni.
Whether or not representation is inadequate is a question of
fact. Inadequacy of representation, therefore, can only be
shown by an evidentiary hearing or, if the Courts indicate that
such is a sufficient showing for this purpose, by affidavits and
exhibits, though even then a hearing would be appropriate. If
a Petitioner for Intervention is forbidden absolutely to make
such a showing before being allowed to intervene as of right
and such is a prerequisite for that intervention, he or she will
never be able to achieve intervention as of right.
Intervention as of right would truly be effectively abolished
by this decision of the Seventh Circuit. The Seventh Circuit
has no authority to take such a radical step.
5. Does the present decision by the Seventh Circuit pose a
serious conflict between the Circuits?
It is not necessarily wrong that litigants in one part of the
United States process a case in a different manner than litigants
23
in another. It is wrong to judicially combine the two methods
in such a way as to prevent the processing of litigation, to abro-
gate due process. That is what the Seventh Circuit has done.
The Court of Appeals for the Seventh Circuit states in this
decision that, “the Appellants could if they had wanted, pros-
ecuted their own suit against the School Board’’ (Decision of
June 23, 1983, occasioning this Petition, Appendix, p. 54 ).
Thus the Seventh Circuit (notwithstanding its misapprehension
of the record noted above) is in conflict with a long held
position of the Court of Appeals for the Fifth Circuit, which
requires Intervention as the means of redress for those situated
as are the Plaintiffs (e.g, HINES v. RAPIDES PARISH
SCHOOL BOARD vial F2d, 762 (Sth Cir., (1973), ADAMS
v. BALDWIN CO FE 628 F2d
895 (Sth Cir. 1980).
One Circuit requires that litigation over school segrega-
tion!8 be carried on by a Petition for Intervention while
another Circuit requires that it be carried on by a separate suit.
It is, however, intolerable that the Court of Appeals, receiv-
ing an Appeal from litigants who are required (unless the
Court give them relief to the contrary) to proceed as Petitioners
for Intervention (as if they were under Fifth Circuit law) then
conflicted with the Fifth Circuit on the Fifth Circuit’s insis-
tence both that “parental interest . . . in showing the way in
which the goal of a unitary system and allegedly been frus-
trated . . . justifies invervention” (GRAVES v. WALTON
SCHOOL DISTRICT 91FRD 457, 474 (D.C., Ga., 1981)) and
that “‘when parents seek to intervene in school desegregation
cases, the important Constitutional rights at stake demand a
scrupulous regard for due process considerations. . . (Including
an evidentiary hearing)” (ADAMS v. BALDWIN COUNTY
BOARD OF EDUCATION 628 F2d 895, 897 (Sth Cir., (1980)).
17. It has already been pointed out that in this case the Petitioners could not
prosecute their suit. The District Court did not cite law as the basis for pre-
venting the Petitioners from prosecuting “their own suit,” though it was aware
of Fifth Circuit decisions (e.g., HINES v. RAPIDES PARISH).
18. That the segregation is carried out under the umbrella of a consent decree does
not render the racial segregation less real or less justiciable, especially when the
decree is based on perfunctory entries with all evidence prepared by the Defen-
dant school system. (cf. GRAVES v. WALTON 91 FRD 457, 459 (D.G. Ga.,
1981), ADAMS v. BALDWIN COUNTY BOARD OF EDUCATION 628 F2d
895 (Sth Cir. 1980), UNITED STATES v.
DISTRICT 590 F2d 146, 149 (Sth Cir., 1979)) and prior Fifth Cireuit decisions
cited in Petitioners’ Issue one above.
24
The Seventh Circuit has combined two methods of processing
a suit so as to block processing of the Petitioners’ suit. /t has
adopted the Fifth Circuits’ method as ua practical matter by
refusing to rule on the Petitioners’ appeal from being decreed
by the District Court to be Petitioners for Intervention. Then,
while formally requiring them to proceed in the manner in
which they had been positioned by application of Fifth Circuit
law below, it refused to apply the whole of Fift Circuit law so
as to save Petitioners’ fundamental rights.
That is precisely the core of the succinct and important
decision of the Fifth Circuit in the ADAMS case. Once the Fifth
Circuit had decided that intervention would be the vehicle by
which parents would vindicate the rights of their children in a
case such as ours that Circuit also, necessarily, surrounded such
process with the protections appropriate for any lawsuit, par-
ticularly, one by parents, generally of limited means, against
governmental racial discrimination. Consistently, the Fifth
Circuit has refused to entertain political questions, purported
lawsuits or petitions for intervention which did not state a
cause of action, while repeatedly pointing to an interest which
justifies intervention, interest in showing the way in which the
goal of a unitary system had been frustrated. Having required
the route of intervention, in effect, it made Rule 12 a measure
of the resulting petitions and, as a practical matter, treated
petitions with the respect or practical dismissal accorded
separate suits. They couid rot do otherwise without denying
Petitioners, stating true causes of action, their rights under the
Fifth and Fourteenth Amendments and various statutes as well
as, in cases where the United States was the initial party, rights
under the First Amendment.
Consistent with that underlying law, the Circuit also found,
in effect, that since violations of Civil Rights give rise to a cause
of action each day that the violation is perpetrated, nine years
could not be untimely for the granting of intervention to
parents whose interest was a unitary school system (ADAMS v.
BALDWIN COUNTY BOARD OF EDUCATION 628 F2d
895 (Sth Cir., 1980)).
19. Timeliness is not a true problem. “Courts have allowed intervention months or
even years after the original filing of the suit where the substantial litigation of
issues had not been commenced (litigation on the facts has been totally absent
between the UNITED STATES and the SBSCSC. All litigation has been to keep
Petitioners for Intervention or separate Plaintiffs out) when the motion to
intervene was filed” (SMITH v. MONSANTO 420 F2d 1103, 1115 (5th Cir.,
1970). “In school desegregation proceedings, intervention and withdrawal of
25 (cont'd. next page)
Yet, the Seventh Circuit dealing with Court created inter-
venors to whom they refused relief on appeal from such crea-
tion, held that the requirement of reality of a cause of action
was of no more weight than “‘an observation’’ (Decision of
June 23, 1983, occasioning this Petition for Writ, Appendix,
p. 54.) or presumed that causes of action would be stated in
bad faith (Ibid), and brushed aside the Petitioners. complaint
even though it stated a cause of action in detail and incor-
porated a mass of exhibits showing the reality of the segrega-
tion scheme.
The Seventh Circuit also sanctioned the District Courts’
total refusal to consider and, the exhibits which showed the
inadequacy of a representative, who consented to a segregation
plan and resisted its examination of the complaint alleging such
consent and plan. Thus, it partially adopted the procedure of
the Fifth Circuit by refusing to review the ex parte order, but
then destroyed the raison d'etre for that procedure, due process
for citizens and judicial ability to examine alleged frustration
of the goal of a unitary system.
There is no way to reconcile the position of the Fifth Circuit
and that of the Seventh Circuit on these matters.
Either the District Court’s identification of the Complaint as
a Petition for Intervention must be reversed leading to a benign
conflict between the Circuits, or the whole of the Fifth Circuit
law, including identification of the interest which justifies
19. (cont'd) . . .parties should be fully granted as long as it does not seriously inter-
fere with actual hearings” (DOWELL v. BOARD OF EDUCATION OF OKLA.
HOMA CITY PUBLIC SCHOOLS 430 F2d 865 (Sth Cir.. 1970). To require
Black parent to catch the segregationist character of “complicated” and com-
plicated “socio-legel plans’ (SBCSC Brief to Appellate Court, p. 21) by stop-
watch makes a mockery of due process and here ignores that the record showed
that Petitioner, Kathryn J. W. Brookins, was first importuning the Justice
Departrnent and then seeking private counsel months before April 17, 1981, and,
with others, had some reason to hope for a source thereafter of effective rep-
resentation from the NAACP. ef. above, Issue 3. Besides, the Petitioners, all
along, wanted to proceed with their own suit.
It is significant that the Justice Department, once the Petitioners filed their
complaint, rather than expressing the slightest interset in the Petitioners’ allega-
tions, joined with the School System in preventing the hearing of evidence
supporting those allegations, and urged the District Court to delay for months
even the issuance of procedural rulings, thus imposing a massive delay on actual
hearing of the Petitioners’ litigation over current violations of their Civil rights.
There was no evidentiary proceeding to be duplicated. There were no pending
hearings to be interfered with. There was only the uncovering of an alleged
segregation program.
26
intervention and identification of the need for scrupulous due
process must be applied. In the second alternative the law of the
Fifth Circuit must prevail because the decision of the Seventh
Circuit is so repugnant to the Constitution.
6. Did the District Court and the Court of Appeals act in
conflict with both the law of the case and its own case law
without reasoned development?
This question poses the same substantive issues as the pre-
vious questions, but in the framework of the Seventh Circuits’
conflict with its own case law and even with its law of the case.
On 28 July, 1982, the Court of Appeals for the Seventh
Circuit, affirming the District Court’s denial of intervention to
the NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE in UNITED STATES v. SOUTH BEND
COMMUNITY SCHOOL CORPORATION et al., took a position
in substantial harmony with the Fifth Circuit over dismis-
sability for failure to state a cause of action. ““The NAACP has
not attacked the proposed desegregation plan as Constitutionally
or otherwise inadequate and has merely suggested improve-
ments. A consent decree of this nature need not contain a
perfect plan but only one that is ‘not unconstitutional, unlaw-
ful, . . . contrary to public policy, or unreasonable.’ UNITED
STATES v. CITY OF MIAMI 614 F2s, 1322, 1333 (Sth Cir.,
1980). Therefore, the NAACP’s supposed improvements for the
plan do not require its intervention.”” (UNITED STATES v.
SOUTH BEN MUNITY t
692 F2d 623, 628 (7th Cir., 1982), emphasis added).
The Court went on in a footnote to separate out NAACP’s
attach in intervention on the secession of all White, North
Liberty Township from the South Bend school system in the
Fall of 1980 as not part of the consent decree of April 1981,
and so irrelevant for the purpose of adding gravity to the
NAACP’s complaint in intervention (Ibid., No. 5).2° The Court
was clearly concerned with emphasizing the absence of a
justifiable intervention.
20. Whether the Court was correct in so ding might have been doubted. The SBCSC
task force to develop a desegregation plan may have been triggered by the State
of Indiana's concern over a proposal for a new, all White, grade school in North
Liberty made by SBCSC in 1978. The initial consent decree in UNITED STATES
v. SBCSC et al. (February 8, 1980), which adopted the language of the task
force, was made at a time that North Liberty was part of SBCSC. No judicial
leave to secede was granted, but by the time that the purported desegregation
plan (a temporarily enforced busing plan) was decreed on April 17, 1981,
North Liberty was out of the picture.
27
Yet, a year later, in the same case (by reason of consolidation
and identification as Petitioners for Intervention) the same
Court told the Petitioners that the, “quoted statement was an
observation, not a holding” (Decision of June 23, 1983, occas-
ioning this Petition for Writ) in spite of the fact that the state-
ment was pivotal in denying intervention to the NAACP in the
previous decision and was the necessary minor premise in the
syllogism by which the Court kept the NAACP out. (The major
premise was the identification of “‘that interest which justifies
invervention,” found in parallel Fifth Circuit decisions so
similar to the law of dismissability for failure to state a cause
of action.)
The Petitioners in September of 1981 had attacked the plan
as Constitutionally the otherwise inadequate, as contrary to
public policy and unreasonable. Under the law of the case itself
the Petitioners should have been granted intervention.
This conclusion is reinforced in the context of the Seventh
Circuit’s broader law, which can be harmonized with broader
due process requirements. The Petitioners emphatically alleged
a situation in which the purported representative, the Justice
Department, had “‘fail(ed) in the fulfillment of (its) duty,”
(UNITED STATES v. BOAR H SIO
OF INDIANAPOLIS, IND. et al. 466 F2d 573, 575 (7th Cir.,
1972) had acted in practical collusion with the School System
(Ibid) and had, on the record, acted with uninterrupted adver-
sity to the Petitioners’ interest in getting the facts, which
appeared to show a massive segregation scheme, before the
Courts which was the only practical forum for redress available
to the Petitioners (Ibid).
7. Has the Seventh Circuit effectively nullified the holdings
of this Honorable Court in SWANN v. CHARLOTTE-
MECKLENBURG BOARD OF EDUCATION 402 US. 1,
20-21, 91 S. Ct. 1267, 1278-79, 28 L Ed 2d 554, 569-70
(1971)) for the people of South Bend, Indiana?
Evil is the absence of a required good. The newly created
and invidious absence of public grade schools from effectively
racially balanced urban neighborhoods, some of them growing
in population, coupled with the persistence of public grade
schools in heavily White or heavily Black neighborhoods, some
of them falling sharply in population, and coupled with a long
range plan for building new public grade schools in suburban
28
White neighborhoods (in harmofty with current building by an
adjacent White school corporation) is absence of a required
good.2!
Therefore, the school removal program of the SBCSC is evil,
more particularly, a Constitutional evil.
This Court has found that one of the most potent forms of
racial discrimination used by public school systems since
BROWN is locking in “separation of the races by racially mo-
tivated steering programs creating or aggravating the polarity
between White suburbs, (which had ceased to grow around
South Bend prior to the school removal plan, while integrated
urban neighborhoods were growing) and Black urban popula-
tions (SWANN v. CHARLOTTE-MECKLENBURG BOARD
OF EDUCATION 402 U:S. 1, 21, 91 S. Ct. 1267, 1278, 28
L Ed 2d 554, 569 (1971)).
This Court has condemned the selection of sites for schools
“that had the forseeable and anticipated effect of (renewing
and deepening) . . . the racial separation of the schools”
COLUMBUS BOARD OF EDUCATION vy. PENICK 443 U.S.
449, 462, 99 S. Ct. 2941, 2949, 61 L Ed 2d 666, 680 (1979))
(1981) and the formation of discriminatory clusters of schools
aggravated by the inclusion of Hispanics, who are for Court
purposes labelled ‘“‘White’’ by the School system (KEYES v.
DISTR NO. ENVER . 413 U.S. 189,
195-198, 93 S. Ct. 2686, 2691-2693 37 L E2d 548, 556-557
(1973)).
Lower Courts have otherwise condemned not only the
unnecessary closing of racially integrated schools, but also the
failure to build them (CLARK v. BOARD OF EDUCATION
OF LITTLE ROCK 449 F2d 493, 499 (8th Cir., 1971). Cer-
tiorari denied 405 U.S. 936 92 S. Ct. 954, 30 L Ed 2d812
21. We remind the Court that the Petitioners tendered evidence that the adjacent,
almost totally White public school systems were transferring Black students
out of their almost all White schools and into the schools of the Defendant
South Bend system, with the Defendant system's knowledge and apparent
cooperation. All exhibits were responded to with silence and uniform resistance
to presentation or consideration, except for the Appellate Court's identification
of the Petitioners’ contention, “if the decree is as bad as they say it is, their
interests are not being adequately represented by the Department.” (Decision
occasioning Petition for Writ, Appendix, p.54). No known follow-up inves-
tigation has been made by the Civil Rights Division; it has only resisted evalua-
tion of this evidence by a Court.
29
(1972), UNITED STATES v. BOARD OF SCHOOL COM-
MISSIONERS OF THE CITY OF INDIANAPOLIS 494 F2d 81,
87 (7th Cir., 1973) certiorari denied 413 U.S. 920, 93 S. Ct.
3066, 37 L Ed 21 1041 (1973), MCPHERSON v. SCHOOL
DISTRICT NO. 186, SPRINGFIELD, ILLINOIS 426 F. Supp.
173, 188 (S.P. 111., 1976), PENICK v. COLUMBUS BOARD
OF EDUCATION 429 F. Supp. 229, 240-241, 252-254, 255,
259 (S. D. Ohio E. D., 1977) UNITED STATES v. BOARD OF
SCH COMMISSIONER F
APOLIS 506 F. Supp. 657,671 (S.D. Ind., 1979), cf. BRADLEY
v. MILLIKEN 460 F. Supp. 299, 310 (E. D. Mich. S. D., 1978)).
These matters are being kept out of the District Court of
appropriate jurisdiction and every effort is being made to
render the people of South Bend unable to achieve a legal
remedy in spite of the clear mandate of this Court: “In ascer-
taining the existence of legally imposed school segregation,
the existence of a pattern of school construction and abandon-
mentis...a factorof great weight.”” (SWANN v. CHARLOTTE-
MECKLENBURG BOARD OF EDUCATION 402 USS. 1, 21,
91S. Ct. 1267, 1278, 28 L Ed 2d 554, 569 (1971)).
While citizens watch SWANN behavior unfolding in high
speed before them, they are prevented from bringing it to a
Court’s attention, a Court which has not had the advantage of
an adversarial presentation of evidence, and so the law of this
land is rendered a mere phantom for them.
8. May Federal Consent Decrees be used to foreclose true
and valid state causes of action?
The Petitioners alleged that, while the school removal pro-
gram of the school system appeared flawlessly supported by
facts if enduring segregation was its end, otherwise it was
“arbitrary and capricious in that it was not supported by facts
or a reasonable attempt to ascertain the facts.” (VIGO COUNTY
COMMUNITY SCHOOL CORPORATION v. CROCKETT 307
NE 2d 510, 512 (1974)).
Since, the Federal District Court appeared to assume pendant
jurisdiction over the re-organization plan, as well as the tem-
porary busing and teacher hiring and workshops which were
the purported desegretaion plan, the reorganization plan is
apparently insulated from attack the state law of governmental
waste. This was not considered by the Court or by the pur-
ported representative.
30
9. Does the decision create a more far reaching umbrella
shielding illegal conduct from judicial examination?
While the Petitioners noted above the shielding of a school
system from examination for wasteful and constructively
fraudulent school disposals and segregationist engineering, the
decision will invite broader use of such manuevers in other
areas unless the decision is sharply limited.
The greater judicial economy is not in limiting 2 bad decis-
ion, but in reversing it.
10.Is the Civil rights Act an act declaring Black people
legally incompetent and wards of the Justice Department in all
of those situations in which the Department chooses to act on
their behalf?
Obviously, the answer to this question must be, “no,” but,
necessarily, the Court of Appeals has treated the position of the
Justice Department vis-a-vis the Black Petitioners as if the
answer was, “yes.” (Their White fellow Petitioners, who com-
plain of the waste visited upon them in the school system’s
vigorous effort to lock in future segregation and steer White
families away from their Black neighbors, have had their waste
claims made parallel matters of administrative wardship, even
though the Justice Department denies concern for those claims.)
The Civil Rights Act was never intended to be applied as a
wardship act keeping Black parents out of Court. It was passed
because those wishing to block desegretaion were keeping Black
parents out and harrassing their organizations. (cf. U.S. CODE
CONGRESSIONAL & ADMINISTRATIVE NEWS, 88th
Congress, 2nd Session, 1964, p. 2507). It would be truly
ironic if that act now became the vehicle for case law that
renders organizations of Black people meaningless and formally
excludes Black parents and public school children from even
their minimum day in Court when they seek to block a public
school segregation program.
The plain text of the Act prohibits the pre-emptive position
of the Department, which the Court of Appeals seeks to enshrine
as law in the current decisions.
“Nothing in this subchapter shall adversely affect the right of
any person to sue for or obtain relief in any Court against
31
discrimination in public education.” (42 U.S.C. 2000c-8).22
To apply 42 U.S.C. 1706 ff. or 42 U.S.C. 2000c in collision
with 42 U.S.C. 2000c-8 not only tortures the letter of the law
and its legislative history, but effectively has Congress passing
a law denying the Plaintiffs their right to petition for redress of
grievances.
CONCLUSION
Racial segregation has been one of the most pervasive and
damaging evils to infect our Nation’s life. Its institutionaliza-
tion in such broad reaching programs as that described in
SWANN or that described by, and documented by, the
BROOKINS Plaintiffs is particularly pernicious and dangerous.
This has been a major object of concern for the Federal
judiciary. Certainly stopping new state action along these lines
is a most minimal and basic effort within that concern.
What the Court has done is overlooked that concern and
foreclosed access to the Federal Courts for Black people and
others in South Bend, Indiana, on this issue.23 Surely, the
Court of Appeals could not have meant such an effect.
Yet, unless this Honorable Court grants certiorari here, such
is apparent the effect in this case, wiiatever new litigation may
be filed to test the true meaning of the decision.
Even more fundamental, however, is the practical effect of
a Court’s refusal to process a complaint. Without a right to be
heard, citizens are denied the reality of a judicial system and
the fabric of law becomes meaningless for them.
—
22. While of minor, even petty, scale, the Petitioners note that they are ordered to
pay $49.50 in costs to the United States in spite of the language of Federal
Rule 39 (b) . . . “costs shall not be awarded for or against the United States.”
This further petty burden takes on significance in light of 42 U.S.C. 2000 c8.
This subsection may also create an unconditional right to intervene under
FRCP (a) (1).
23. Petitioners remind this Court of their grant of Writ of Certiorari to the Supreme
Court of Illinois and its decision in HANSBERRY v. LEE 311 U.S. 32 (1940),
which laid to rest a parallel means of excluding Black people from Court four-
teen years before this Court's decision in BROWN. Actual access to a Court by
the real parties in interest is a necessity for the vindication of Civil Rights;
conversely, removal of that access is one of the most effective ways of permit-
ting new state action in conflict with Civil Rights.
32
Therefore, the Petitioners urgently ask this Court for a Writ
of Certiorari to the Seventh Cirtuit on this case and access to
the Courts for their cause of action.
id W. Albert
19271 Darden Road
South Bend, Indiana 46637
(219 - 272-1892),
Attorney for the Petitioners
33
APPENDIX
A. ORDER CONSOLIDATING PETITIONERS’ SUIT
WITH S80-35 AND PURPORTEDLY MAKING IT
INTO A PETITION FOR INTERVENTION
Filed: October 13, 1981
Richard E. Timmons, Clerk
U.S. District Court
Northern District of Indiana
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CIVIL NO. S 81-0313
MARY LAURA BROOKINS, et al.,
Plaintiffs
v.
SOUTH BEND COMMUNITY
SCHOOL CORPORATION, et al.,
Defendants
ORDER
Pursuant to the Motion to Consolidate and Consider Com-
plaint as Petition to Intervene filed by the defendants, it is
hereby ORDERED that this action is consolidated with the
case of United States of America v. South Bend Community
School Corporation, et al., Civil No. S 80-0035, presently
pending in this United States District Court.
It is further ORDERED that the complaint in this action is
hereby deemed and considered for all purposes as a petition to
intervene in Civil No. S 80-0035 pursuant to Rule 4 of the
Federal Rules of Civil Procedure.
Dated this 13 day of October, 1981.
Allen Sharp
Judge, United States District Court
USA
ce: D. Albert
F. Morse II
D. Schabel
K. Fedder
T. Atkins
M. Reed
B. DECISION OF COURT OF APPEALS
FOR SEVENTH CIRCUIT IN S80-35
UNITED STATES of America,
Plaintiff-Appellee,
Vv.
SOUTH BEND COMMUNITY SCHOOL
CORPORATION, et al.,
Defendants-Appellees,
and
Clay Quality Education II, Inc. and South Bend Branch
of the National Association for the Advancement of
Colored People, Proposed Intervenors, Appellants.
Nos. 81-1792, 81-2062.
United States Court of Appeals,
Seventh Circuit.
Argued Jan. 18, 1982.
Decided July 28, 1982.*
Opinion Oct. 14, 1982.
On motions to intervene in school desegregation case, the
United States District Court for the Northern District of
Indiana, South Bend Division, Allen Sharp, Chief Judge, denied
motions, 511 F.Supp. 1352, and proposed intervenors appealed.
The Court of Appeals, Cummings, Chief Judge, held that:
(1) students’ interests that parents’ not-for-profit corporation
sought to represent were already adequately represented by
school board, which was charged by law with representing
interests of students, and thus parents’ corporation was not
entitled to intervene as of right; (2) since national organization
which sought to represent all black students in school district
and their parents had not shown inadequate representation by
the government, which had same ultimate objective, and since
it had not attacked proposed desegregation plan as constitu-
tionally or otherwise inadequate, organization’s supposed
improvements for plan did not require its intervention; and (3)
national organization was not entitled to permissive intervention.
Affirmed.
*This appeal was originally decided by unreported order on July 28, 1982. On
motion of defendants-appellees, this Court has decided to publish our July 28, 1982,
order of affirmance as a citable opinion.
35
i. Federal Civil Procedure 331
Since adequate representation of students had to be pre-
sumed in absence of showing of gross negligence or bad faith on
part of school board, which was charged by law with repre-
senting interests of students, and since it had not been shown
that school board did not fairly consider interests of students
in deciding to agree to consent order in school desegregation
case, not-for-profit corporation, which sought to represent
parent members’ children and all other students in school
system, was not entitled to intervene as of right to challenge
consent order. Fed. Rules Civ. Proc. Rule 24(a), 28 U.S.C.A.;
IC 20-5-2-1 (1982 Ed.).
2. Federal Civil Procedure 331
Where national organization which sought to represent
as of right all black students in school district and their parents
and government had same ultimate objective in school deseg-
regation case and where there was no showing of gross neg-
ligence or bad faith on part of government or collusion, in-
adequate representation by government was not shown and
thus organization’s supposed improvements for desegregation
plan, which was not attacked as constitutionally or otherwise
inadequate, did not require its intervention as of right. Fed.
Rules Civ. Proc. Rule 24(a), 28 U.S.C.A.
3. Federal Civil Procedure 331
Where intervention by national organization which
sought to represent all black students in school district and their
parents would have delayed desegregation proceedings and
prejudiced defendants’ ability to open desegregated school
system in fall of 1981, organization’s motion for permissive
intervention was properly denied. Fed. Rules Civ. Proc. Rule
24(b) (2), 28 U.S.C.A.
Donald A. Schabel, Indianapolis, Ind., Tresa Demachak,
N.A.A.C.P., New York City, for proposed intervenors, appel-
lants.
Franklin A. Morse, Il, Thornburg, McGill, Deahl, Harman,
Carey & Murray, South Bend, Ind., for defendants-appellants.
Louise Lerner, Civ. Rights Div., Dept. of Justice, Washing-
ton, D.C. for plaintiff-appellee.
36
Before CUMMINGS, Chief Judge, BAUER, Circuit Judge,
and DOYLE, Senior District Judge.**
CUMMINGS, Chief Judge.
The United States filed this suit in February 1980 against
the South Bend Community School Corporation, its superin-
tendent, its Board of School Trustees and the 7 members
thereof alleging that defendants had engaged in various acts
of discrimination with the intent and effect of segregating
students and faculty on the basis of race in the South Bend,
Indiana public school system. The suit was brought under
Section 407 of Title IV of the Civil Rights Act of 1964 (42
U.S.C. 2000c-6) and Section 207 of the Equal Educational
Opportunities Act of 1974 (20 U.S.C. 1706). The Govern-
ment sought an injunction prohibiting defendants from dis-
criminating on the basis of race or color in operating the
schools within territory served by the South Bend Commu-
nity School Corporation and requiring defendants to develop
and implement a desegregation plan which would remove
“all vestiges of prior discrimination.”
The district court, simultaneously entered a consent order
submitted by the parties and calling for defendants to develop
and implement a desegregation plan for student assignments by
the beginning of the 1981-1982 school year. 511 F.Supp.
1352. The crux of the plan was to provide that black students
in each school would be within 15% of the total percentage of
black students in the school system. The plan was also to ensure
that student transportation or school closings would fall equit-
ably on all racial groups. Faculty assignments were to be ad-
justed by the beginning of the 1980-1981 school year so that
the faculty of each school would reflect the racial composition,
teaching experience and teaching disciplines of the, faculty as
a whole. The plan was also to provide for ancillary relief with
respect to staff training, curriculum evaluation and revision, equal
quality facilities, and substantially equal discipline practices.
Under the consent order, the school board developed a new
faculty assignment plan, which went into effect at the beginning
of the 1980-81 school year. In addition, the school board
enlisted community support for the development of its new
**The Honorable James E. Doyle, Senior District Judge for the Western District of
Wisconsin, is sitting by designation.
37
student assignment plan. A Citizen's Advisory Committee was
formed, and over 300 citizens, many of them residents of Clay
Township, volunteered to serve on subcommittees. Subcom-
mittees met over 150 times between February and December
1980, and nearly 200 people actively participated in the
meetings. All meetings were open to the public and were given
extensive newspaper publicity. The subcommittees’ recommen-
dations were subsequently reported to the school board by the
Citizen’s Advisory Committee.
In the meantime, the school board's planning team form-
ulated a number of alternative desegregation plans during the
fall of 1980, and in late November decided on a recommended
plan. This process was given extensive local media coverage,
and, on December 17, 1980, the precise details of the proposed
plan were made available to the public and the media in printed
form and were aired on the local public television station.
During the months of December 1980 to February 1981, the
school board held a dozen special meetings devoted solely to
the plan. The meetings were heavily publicized in school news-
letters as well as in the local news media, and all citizens were
invited to speak at the meeting and were encouraged as well to
submit written comments. Throughout this process, the school
board made it known to the public that it was operating on a
timetable which required implementation of a desegregation
plan by the beginning of the 1981-82 school year.
At the conclusion of these proceedings, during a meeting
on February 26-27, 1981, the Board of School Trustees passed
a resolution adopting a desegregation plan for student assign-
ments. On February 27, 1981, the parties to this suit sub-
mitted to the district court a proposed consent order incor-
porating the plans. The plan was subsequently revised, resub-
mitted to the district court on April 3, 1981, and was adopted
by that court on April 17, 1981. The validity of the plan is
not before us.
On February 26, 1981, the day before the parties hereto
first submitted to the district court the proposed consent order
incorporating the desegregation plan, appellant Clay Quality
Education II, Inc. (Clay) sought leave to intervene as a defen-
dant. Clay is an Indiana not-for-profit corporation whose mem-
bers are parents of children in the South Bend school system.
Clay seeks to represent its members” children and all other
students in the school system. If Clay’s intervention were
granted, it planned to request the district court to vacate the
first consent order because there was no finding by the court
38
or admission by the defendants of a constitutional violation.
Clay said it would also answer the Government's complaint
by denying any intentional racial discrimination and would file
a cross-claim contending that defendants’ “dismantling of the
neighborhood school system deprived students and their parents
of liberty and property without due process of law.”’ Sub-
sequently Clay contended that the district court had no subject
matter jurisdiction.
Four days after the desegregation plan was submitted to the
district court, the South Bend Branch of the National Associa-
tion for the Advancement of Colored People (NAACP) also
sought leave to intervene, but as a plaintiff. It sought to chal-
lenge the desegregation plan on behalf of black children in the
school district and their parents. It also sought to challenge
the transfer of students in North Liberty Township, an all-
white area, from the South Bend school system to an adjoining
all-white school system. This transfer had been approved by the
school board after the entry of the initial consent order in 1980.
Judge Sharp held a hearing on the motions to intervene on
March 5, 1981. The Government and defendants opposed inter-
vention by Clay and the NAACP. However, in an attempt to
resolve the NAACP’s objections to the consent decree, the
parties subsequently met with it. This resulted in the submis-
sion of a revised consent decree on April 3, 1981, and, as
noted, it was this revised decree that was entered by the district
court on April 17, 1981.
In the memorandum and order entered on April 17, 511 F.
Supp. 1352, the district court inter alia denied the NAACP’s
and Clay’s motions to intervene. As the court noted, the defen-
dants opposed the NAACP’s intervention on the grounds that
it was adequately represented by the Attorney General of the
United States and that its application was untimely.
Judge Sharp stated that this Court had set the standard to
measure the adequacy of representation in school desegregation
cases in United States v. Board of School Commissioners of the
City of Indianapolis, 466 F.2d 573, 575 (7th Cir. 1972) cer-
tiorari denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271.
There we quoted the Fifth Circuit’s opinion in Martin v. Kalvar
Corp., 411 F.2d 552, 553 (Sth Cir. 1969), stating that “‘repre-
sentation is adequate if no collusion is shown between the
representative and an opposing party, if the representative does
not have or represent an interest adverse to the proposed inter-
venor and if the necessary representative does not fail in the
39
fulfillment of his duey.’* See also Meridian Homes Corporation
v. Nicholas W. Prassas & Company, 683 F.2d 201 at 205 (7th
Cir., 1982). The district judge found that the NAACP failed to
show inadequacy of representation by the Justice Department
and that there was no showing of collusion between the parties.
He noted that the NAACP admitted that it and the Govern-
ment had a similar goal and that the NAACP had not shown
that counsel for the Government failed to fulfill his duty.
Because the district court held that the NAACP did not carry
its burden regarding the inadequacy of representation, its
motion to intervene was denied without consideration of
timeliness.
As to Clay's motion to intervene, the court remarked that it
resermbled “Citizens of Indianapolis for Quality Schools”
which was denied intervention in the Indianapolis desegrega-
tion case because that would-be intervenor had also not shown
that the school board was inadequately representing its interests.
United States v. Board of School Commissioners of the City
of Indianapolis, supra, 466 F.2d at 575-576. In response to
Clay’s argument that it should be permitted to intervene
because defendants too eagerly adopted the desegregation
plan, the court pointed out that the Indiana legislature had
required the defendant Board of Trustees to adopt a plan of
desegregation surpassing minimal constitutional standards by
requiring integration to the fullest extent ‘‘reasonable, feasible
and practical.” Ind.Code 20-8.1-2-3. The opinion observed
that Clay could seek redress in the state courts if defendants
had violated Indiana law. Clay’s contention that it wanted to
prevent the defendants from “dismantling the neighborhood
school system’”’ was rejected because there was no constitutional
or statutory right to attend a neighborhood school, as held in
United States v. Perry County Board of Education, 567 F.2d
277, 279 (Sth Cir. 1978). Therefore Clay’s motion to intervene
was also denied. !
On May 27, 1981, the district court stayed the implementa-
tion of the April 17th consent decree pending appeal, and a
few days later denied reconsideration of the order refusing
intervention. Thereafter the parties moved our Court to vacate
the stay and we did so on August 5, 1981, becuase we con-
cluded that appellants had no likelihood of prevailing on the
merits of their appeals from the denials of intervention. In doing
1. The National Educational Association-South Bend has filed an amicus brief in
support of the District Court's order denying the motions to intervene.
+
so, we noted that (1) a claim resembling Clay’s claim of inad-
equate representation by defendants had been rejected by us
in the Indianapolis school desegregation case, supra, 466 F.2d
573 at 575-576, (2) Clay had not established the existence of a
right to attend a neighborhood school, (3) the district court
had not abused its discretion in denying permissive intervention,
and (4) Clay had not shown that it would suffer irreparable
injury by vacation of the stay. At the same time, we consol-
idated the NAACP’s appeal with Clay’s appeal. We now affirm
the district court’s denial of the motions to intervene.
I Clay's Motion to Intervene Was Properly Denied
[1] Clay’s motion to intervene as a right under Rule 24(a)
of the Federal Rules of Civil Procedure was filed on behalf of
all the students in the South Bend school system to challenge
the first consent order.2 The rule provides that such interven-
tion is not warranted if “the applicant's interest is adequately
represented by existing parties.” As we held with respect to a
similar argument in United States v. Board of School Com-
missioners of the City of Indianapolis, supra, the students’
interests were already represented by the school board. The
school board is a governmental body and its officers are charged
by law with representing the interests of the students. Ind.
Code .20-5-2-1. Adequate representation of the students
is therefore to be presumed where, as here, there had been no
showing of gross negligence or bad faith. Commonwealth of
Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir. 1976),
certiorari denied, 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d
375; Blocker v. Board of Education of Manhasset, 229
F.Supp. 714, 715 (E.D.N.Y. 1964). As we observed in the
Indianapolis school litigation, that a proposed intervenor might
be “less prone to agree to the facts and [might take] a different
view of the applicable law does not mean that the school board
did not adequately represent its interests in the litigation.”
466 F.2d at 575. To the same effect, see United States v. Perry
County Board of Education, supra, 567 F.2d at 280.
Clay (as well as the NAACP) relies on Smuck v. Hobson,
408 F.2d 175 (D.C. Cir. 1969) (en banc) to support interven-
tion of right. In Smuck, three of seven circuit judges found that
parents of students could intervene as of right in order to bring
2. C.ay has not challenged on appeal the denial of permissive intervention under
Rule 24 (b) of the Federal Rules of Civil Procedure.
41
an appeal in lieu of the nonappealing school board. 408 F.2d
at 178-182. The district court had found that the parents failed
to meet the procedural requirements for intervention under
Rule 24(c) and moreover failed to allege either ““how they or
their children are affected” by the district court’s decree or
“a denial of any rights, constitutional or otherwise.” Hobson
v. Hansen, 44 F.R.D. 18, 25-26 (D.D.C. 1968). The three cir-
cuit judges, however, would have allowed the parents’ inter-
vention in order to secure appellate jurisdiction. To the extent
that the advice of the three judges in Smuck may be contrary
to United States v. Board of School Commissioners of the City
of <semy yee supra, we will adhere to our opinion in the
latter case.
As stated in the first consent decree, the defendants decided
it was in the best interests of the students to resolve the segrega-
tion controversy without contested litigation, thus avoiding a
substantial expenditure of public funds which could be better
used to achieve the educational goals of the school system
(App. 7). Through that consent order, defendants achieved
flexibility in developing their own preferred plan instead of
requiring the court to come up with its own desegregation
plan. Clay has not shown that defendants did not fairly consider
the interests of the students in deciding to agree to the first
consent order. Since the district court correctly held that
Clay’s interests were adequately represented by the defendants,
there is no need for us to consider the defendants’ alternative
ground that Clay’s motion to intervene was untimely.
Il The NAACP’s Motion to Intervene As of Right Was
Properly Denied
[2] The NAACP first sought to represent as of right all black
students in the South Bend school district and their parents
even though the interests of that class are represented by the
Government under the Civil Rights Act of 1964 and the Equal
Educational Opportunities Act of 1974. The NAACP has
conceded that it and the Government have a similar objective,
namely, “‘the system-wide desegregation of students and staff
as called forin the consent decree’’ (App. 67). The only dis-
agreement shown was with respect to the “road map”’ to be
used to achieve that goal.
3. Smuck has since been limited by the District of Columbia Circuit in Moten v.
Bricklayers, Masons and Plasterers, etc., 543 F.2d 224, 227 (D.C.Cir. 1976),
and the Fifth Circuit has expressly declined to follow Smuck. United States v.
Perry County Board of Education, 567 F.2d 277, 279 (Sth Cir. 1978).
42
Since the NAACP and the Government had the same ult-
imate objective, we presume that the Government adequately
represents the NAACP. United States Postal Service v. Brennan,
479 F.2d 188, 191 (2d Cir. 1978). The presumption is es-
pecially appropriate because the existing representative, namely,
the Government, is charged by law with representing the
interests of the absentee. Commonwealth of Pennsylvania v.
Rizzo, supra, 530 F.2d at 505. There was no showing of gross
negligence or bad faith on the part of the Government or col-
lusion between the parties to overcome the presumption of
adequate representation. Additionally the NAACP did not
demonstrate that the Government was representing any
interests adverse to those of the NAACP or that government
counsel was ineffective. As already noted, the parties to the suit
met with the NAACP and revised the plan incorporated in the
second consent decree before its entry on April 17, 1981. In
sum, inadequate representation by the Government was not
shown.
The NAACP has not attacked the proposed desegregation
plan as constitutionally or otherwise inadequate and has merely
Suggested improvements. A consent decree of this nature need
not contain a perfect plan but only one that is “‘not uncon-
stitutional, unlawful,***contrary to public policy, or unreas-
onable.”’ United States v. City of Miami, 614 F.2d 1322, 1333
(Sth Cir. 1980).4 Therefore the NAACP’s supposed improve-
ments for the plan do not require its intervention.
Ill The NAACP’s Permissive Intervention Motion Was
Properly Denied
{3} In its April 17,1981, opinion, the district court men-
tioned that the NAACP alternatively sought permissive inter-
vention under Rule 24(b)(2) of the Federal Rules of Civil
Procedure. In footnote 6 to the opinion, the court noted that
said Rule required it “in exercising its discretion,” to “consider
whether the intervention will unduly delay or preiudice the
adjudication of the rights of the original parties.” This must
have been the criterion used by Judge Sharp in sub silentio
4. one. COE qetens Ob ates ts ee
435, 441 (1981).
~ 5. The NAACP has stated that it sought intervention partly to challenge the transfer
of North Liberty Township to an adjacent school system. However, this transfer
was not involved in the lawsuit nor in cither consent decree and consequently is
impervious to challenge in this lawsuit.
43
denying permissive intervention to the NAACP because he did
not consider the untimeliness of the request. The NAACP’s
intervention would certainly have delayed the proceedings and
prejudiced defendants’ ability to open a desegregated school
system in the fall of 1981. Therefore the motion for permissive
intervention was properly denied on those grounds. Equal
Employment Opportunity Commission v. United Air Lines, Inc.,
515 F.2d 946, 949 (7th Cir. 1975). As this Court correctly
predicted in vacating the district court’s stay pending appeal,
“there is even less likelihood that appellant can prevail on its
claim that the district court abused its discretion in denying
permissive intervention.”’ April 5, 1981 order p. 4
The order denying the motions to intervene is affirmed.®
C. DECISION OF DISTRICT COURT IN S81-313/S80-35
DENYING INTERVENTION TO PETITIONERS
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
No. S 81-313
Mary Laura Brookins,
Mrs. Kathryn J. W. Brookins,
James Reiling,
Mrs. Elizabeth Reiling,
Tricia Riggs,
Mrs. Carol Williams
Mark Gleva, Steven Gleva,
Mrs. Karen Gleva,
Mr. John C Gleva, Sr.,
Romerio Brown,
Mrs. Joyce Lucas,
Bruce Butler, Jr.,
Ms. Tracie Staggers, and all others similarly situated.
Plaintiffs.
v.
South Bend Community School Corporation,
James P. Scamman, Superintendent,
The Board of School Trustees of the South Bend
Community School Corporation,
Oscar Brookins,
Donald W. Yates, Loretta Jacobsen,
Eileen Bender, Hollis E. Hughes, Jr.,
Anthony V. Luber, William L. Wilson,
Members of the Board of Trustees,
The United States of America
Defendants
No. S 80-35
United States of America
Plaintiff
v.
South Bend Community School Corporation,
James P. Scamman, Superintendent,
The Board of School Trustees of the
South Bend Community School Corporation,
Robert M. Sweeney, Donald W. Yates,
Marilyn Kalamaros, Eileen Bender,
Hollis E. Hughes, Jr.,
Anthony V. Luber, William L. Wilson,
members of the Board of School Trustees
Defendants
MEMORANDUM AND ORDER
On September 8, 1981, a class action was filed by Mary
Laura Brookins and others (Brookins class) against the defen-
dants alleging that the Desegregation Plan approved by this
Court on April 17, 1981 in United States of America v. South
Bend Community School Corporation et al, Civil No. s 80-35,
violates the Constitution of the United States and the laws of
the State of Indiana. On October 9, 1981, the defendants filed
45
a motion requesting that this case be consolidated with United
States of America v. South Bend Community School Corpora-
tion, supra, By order dated October 13, 1981, the defendants’
motion was granted and the amended complaint was there-
after to be treated as a petition to intervene under Rule 24 of
the Federal Rules of Civil Procedure.
In February 1980, the United States filed an action under
Section 407 of Title IV of the Civil Rights Act of 1964, 42
U.S.C: 2000c-6, and Section 207 of the Equal Educational
Opportunities Act of 1974, 20 U.S.C. 1706, against the
South Bend Community School Corporation, its superintendent,
its board of school trustees and the seven members thereof
alleging that defendants had engaged in various acts of dis-
crimination with the intent and effect of segregating students
and faculty on the basis of race in the South Bend, Indiana
public school system. The government sought an injunction
prohibiting defendants from discriminating on the basis of
race or color in operating the schools within the territory
served by the South Bend Community School Corporation
and requiring defendants to develop and implement a deseg-
regation plan which would remove all vestiges of prior dis-
crimination.
The district court simultaneously entered a consent order
submitted by the parties, requiring defendants to develop and
implement a desegregation plan for student assignments by the
beginning of 1981-1982 school year. The crux of the plan was
to provide that black students in each school would be within
15% of the total percentage of black students in the school
system. The plan was also to insure that student transportation
or school closings would fall equitably on all racial groups.
The school board enlisted community support for the devel-
opment of the new student assignment plan. A Citizen's Ad-
visory Committee was formed and over 300 citizens volun-
teered to serve on subcommittees. Subcommittees met over
150 times between February and December 1980 and nearly
200 people actively participated in the meetings. All meetings
were open to the public and were given extensive newspaper
publicity. The subcommittees’ recommendations were sub-
sequently reported to the school board by the Citizens’ Ad-
visory Committee.
During the fall of 1980, the school board’s planning team
formulated a number of alternative desegregation plans and
decided on a recommended plan in late November. On Decem-
ber 17, 1980, the details of the proposed plan were released
and the school board held twelve special meetings during the
months of December 1980 through February 1981 devoted
solely to the plan. All citizens were invited to speak at the
meetings and were encouraged to submit written comments.
The Board of School Trustees passed a resolution adopting
a school desegregation plan for student assignment during a
meeting on February 26-27, 1981. On February 27, 1981, the
parties submitted a proposed consent order to this Court incor-
porating the plan. The plan was subsequently revised and re-
submitted to this Court on April 3, 1981. The Court adopted
the plan on April 17, 1981, and the plan went into effect at
the commencement of the School year in September 1981.
On September 6, 1981, applicants for intervention filed this
action challenging certain aspects of the desegregation plan
approved by this Court and implemented by the South Bend
Community School Corporation. Applicants for intervention
specifically challenged the choices made by the school board
regarding which schools were to be closed and what grade
structures and/or programs were offered at schools which
remained open on the grounds that the plan was unwise, ir-
rational, unconstitutional and in violation of the laws of the
State of Indiana.
II.
The criteria for intervention as a matter of right under
Rule 24(a) (2) of the Federal Rules of Civil Procedure and with
permission of the Court under Rule 24(b) (2) of the Federal
Rules of Civil Procedure are well established. To qualify for
intervention as of right under Rule 24 (a) (2), an applicant must
meet each of four conditions:
(1) The application must be timely.
(2) The applicant must claim an interest relating to the
property or transaction which is the subject of the
action.
(3) The applicant must be so situated that the disposition
of the action may as a practical matter imgair or impede
his ability to protect that interest.
(4) The applicant's interest is or was not adequately rep-
resented by existing parties.
47
Central States, etc. v. Old Security Life Insurance Company,
600 F. 2d 671 (7th Cir. 1979). See also, NAACPC v. New York,
413 U.S. 345 (1973); United Airlines, Inc. v. McDonald, 432
U.S. 385 (1977); United States v. Board of Education of the
City of Chicago, 88 F.R.D. 679 (N.D. Ill. 1981). Failure to
meet any one of the conditions is sufficient to deny interven-
tion as a matter of right. NAACP v. New_York, 413 U.S. at
369; United States v. Board of Education of City of Chicago,
88 F.R.D. at 684. The parties to the original action oppose
the application for intervention of the Brookins class on the
grounds that (1) the Brookins class is adequately represented
by the existing parties, and (2) that the application for inter-
vention is untimely.
This Court is bound by the standard set by the Seventh
Circuit Court of Appeals to measure the adequacy of repre-
sentation in school desegregation cases. United States v. Board
of School Commissioners of the City of Indianapolis, 466 F.
2d $73 (7th Cir. 1972). cert. den., 410 U.S. 909 (197 ); see
United States v. South Bend Community School Corporation,
511 F. Supp. 1352, 1357 (N.D. Ind. 1981), aff'd, F. 2d
(7th Cir. 1982). See also, United States v. Board of
Education of the City of Chicago, supra; United States v.
American Institute of Real Estate Appraisers, 442 F. Supp.
1072, 1081 (N.D. Ill. 1977), appeal dismissed, 590 F. 2d 242
(7th Cir. 1978). That standard is as follows:
[R] epresentation is adequate if no collusion is shown be-
tween the representative and an opposing party, if the rep-
resentative does not have or represent an interest adverse to
the proposed intervenor and if the necessary representative
does not fail in the fulfillment of his duty.
466 F. 2d at 575; see, Martin v. Kalvar Corp., 411 F. 2d 552,
553 (Sth Cir. 1969). See also, Meridian Homes Corporation v.
Nicholas W. Prassas & Company, No. 81-1568, slip op. 7-8 (7th
Cir. July 9, 1982). The Brookins class as the applicant for
intervention bears the burden of establishing inadequacy of
representation. Trbovich v. United Mine Workers of America,
404 U.S. 528, 538 n. 10 (1972). In this circuit, the standard set
forth in the Indianapolis case ‘‘echoes the strict requirement of
a ‘very compeiling showing’ that representation of the public
interest by the United States is not adequate” in school deseg-
regation cases. United States v. Board of Education of the City
of Chicago, supra; United States v. South Bend Community
School Corporation, supra.
48
Under this standard, the Brookins class has failed to make
any showing of inadequacy of representation of its interests by
the Justice Department. Certainly the Justice Department's
conduct in this case has never been colusive, in bad faith or
grossly negligent. Furthermore, the interests of the Justice
Department are not adverse to the interests of the Brookins
class. It is readily apparent from the petition to intervene that
the Brookins class, like the Justice Department, desires that the
South Bend Community School Corporation be desegregated,
the only real point of contention being that the desegregation
plan approved by this Court on April 17, 1981 is not the best
plan that could have been developed. Although this conten-
tion was not an issue in this case at the time the desegregation
plan was approved, the question of the adequacy of representa-
tion does not depend upon the Court's assessment of the
representative’s decision, but rather on whether the interest
of those represented were fully and fairly considered in arriving
at that decision. United States v. American Institute of Real
Estate Appraisers, 442 F. Supp. 1072, 1081-1083 (N.D. II.
1977), appeal dismissed 590 F. 2d 242 (7th Cir. 1978).
Through the course of this action, the Justice Depart-
ment has been responsive to the concerns of all of the persons
it represents, including the members of the Brookins class. In
addition, although the members of the Brookins class believe
that their interests are adverse to the defendants, the defen-
dants have also fully and fairly considered their interests at the
numerous board meetings which the members of the Brookins
class have attended. Consequently, under the standards set forth
in United States v. Board of School Commissioners of the City
of Indianapolis, supra, the interests of the Brookins class have
been adequately represented throughout the course of this
litigation.
This Court has already determined that the plan was con-
stitutional based on evidence and information submitted to
aid the Court in making that determination.
Second, the Brookins class attack the Plan of Desegregation
as unwise and irrational. However, even if the Brookins class
may be said to raise issues not heard earlier, allegations attack-
ing the wisdom of this Plan are not enough to support a petition
to intervene. United States v. American Institute of Real
Estate Appraisers, 442 F. Supp. 1072, 1081-1083 (N.D. Ill.
1977), appeal dismissed, 590 F. 2d 242 (7th Cir. 1978), held
that the question of adequacy of representation does not
depend on the Court’s assessment of the soundness of the
49
decision of a representative party, but rather on whether the
interests of those represented were fully and fairly considered
in arriving at that decision. Although challenged on several
fronts, the efficiency and effectiveness with which the Justice
Department represented those interests has never been success-
fully challenged. Moreover, although the Brookins class believe
their interests are adverse to the defendants, School Board
and the administrators of the School Corporation have also
fully and fairly considered those interests at the numerous
public meetings attended by the plaintiffs and the class.
In light of the foregoing, the Brookins class has failed to
carry its burden in regard to inadequacy of representation so
this Court need not address the further consideration of time-
liness.
The test for permissive intervention under Rule 24(b) (2) of
the Federal Rules of Civil Procedure involves an even stricter
application of the standards for intervention as of right. EEOC v.
United Airlines, 515 F. 2d 946, 949 (7th Cir. 1975); United
States v. Board of Education of the City of Chicago, supra,
88 F. R. D. 687; see also, United States v. South Bend Com-
munity School Corporation, supra. These standards for inter-
vention have been discussed above and measured against them,
the applicants’ petition for permissive intervention fails
fortiori.
In addition, Rule 24 (b) (2) requires the Court to exercise
its discretion in light of potentional delay and prejudice to the
existing parties. Intervention at this late date by the Brookins
class would inevitably distract the School Corporation from its
present task of orderly and effeciently achieving final and com-
plete implementation of the Desegregation Plan, and cause it
to spend substantial time and expense defending the Plan from
objections thoroughly considered and resolved by the School
Board months ago. The Brookins class has had its day before
the Board of School Trustees and intervention now by the
Brookins class would prejudice the rights of the original parties.
IV.
In light of the foregoing, petitioners’ application for interven-
tion is hereby DENIED and plaintiffs’ amended and supplem-
ental complains is DISMISSED. SO ORDERED.
$0
Enter September 22, 1982.
Allen Sharp
Chief Judge
United States District Court
cc: D. Albert
F. Morse
USA
O. Brookins
E. SUPPLEMENTAL ORDER
Filed: Nov. 12, 1982
Richard E. Timmons, CLF
U.S. District Court
Northern District of Indiana
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
Cause No. $81-313
MARY LAURA BROOKINS, et al.,
Plaintiffs,
vs.
SOUTH BEND COMMUNITY SCHOOL
CORPORATION, et al.,
Defendants
Cause No. $80-35
UNITED STATES OF AMERICA
Plaintiff,
vs.
SOUTH BEND COMMUNITY SCHOOL
CORPORATION, et al.,
Defendants.
$1
ORDER
This case is presently before the court on Plaintiffs’ Motion
for Relief From Order entered by this court of October 27,
1981. After due consideration, this Court hereby DENIES said
motion. SO ORDERED.
Allen Sharp
Chief Judge
United States District Court
Entered this 12 day of November, 1982.
cc: USA
F. Morse
D. Albert
O. Brookins
F. DECISION OF COURT OF APPEALS
OCCASIONING THIS PETITION
FOR WRIT OF CERTIORARI
In the
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
No. 82-2910
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
and
MARY LAURA BROOKINS, et al.,
Plaintiffs-Appellants,
v.
SOUTH BEND COMMUNITY SCHOOL
CORPORATION, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
Nos. 81 C 313, 80 C 35~ Allen Sharp, Judge.
ARGUED APRIL 4, 1983 - DECIDED JUNE 23, 1983
$2
Before BAUER and POSNER, Circuit Judges, and JAME-
SON, Senior District Judge.*
POSNER, Circuit Judge. This is the second time in recent
months that we have been asked to reverse an order refusing to
allow intervention entered by the district judge who is presiding
over the South Bend, Indiana school desegregation case. In the
previous case, United States v. South Bend Community School
Corp., 692 F.2d 623 (7th Cir. 1982), the National Association
for the Advancement of Colored People and a group of South
Bend parents called Clay Quality Education II were the would-
be intervenors. Although they were not allowed to intervene,
their objections to the proposed consent decree led the parties
to the suit— the Department of Justice and the South Bend
school board—to renegotiate the decree. The renegotiated
decree was approved by the district court on April 17, 1981. It
was not until September 8, 1981— the day the school year
began and the decree went into effect (this court having on
August 5 vacated its stay of the decree pending appeal, see 692
F.2d at 627)—that the would-be intervenors in the present
case, a group of mostly black parents known as the ‘Brookins
class,’ filed their motion to intervene. (Actually, they filed an
independent lawsuit against the school board, but consented
to have their complaint treated as a motion to intervene in the
Justice Department's suit.) The district court denied their
motion, and they appeal.
Our previous decision, along with many similar decisions in
this and other circuits, see, e.g., United States v. Board of
School Comm'rs of Indianapolis, 466 F.2d 573 (7th Cir. 1972);
Penick v. Columbus Education Ass'n, 574 F.2d 889 (6th Cir.
1978) (per curiam); Hoots v. Commonwealth of Pennsylvania,
672 F.2d 1133 (3d Cir. 1982), largely disposes of this appeal.
In dealing in our previous decision with the NAACP’s motion to
intervene, we pointed out that Rule 24(a)(2) of the Federal
Rules of Civil Procedure creates a right to intervene only if the
interest of the would-be intervenor is not adequately repre-
sented by an existing party, and that since both the NAACP
and the Department of Justice wanted the same thing —deseg-
regation of the South Bend public schools—the Department of
Justice was presumed to be an adequate representative of the
NAACP’s interest. 692 F.2d at 628. The Brookins class has
the same interest as the NAACP and so of the Department-
* Hon. William | Jameson of the District of Montana, sitting by designation.
53
desegregating the South Bend public schools. No more than in
the previous round is there any allegation that the Department
of Justice is incompetent, or acting in bad faith, or colluding
with the school board.
The appellants note the statement in our previous opinion
that “the NAACP has not attacked the proposed plan as con-
stitutionally or otherwise inadequate and has merely suggested
improvements,” id., and point out that they do contend the
plan is inadequate and unconstitutional. But the quoted state-
ment was an observation, not a holding. Adequacy of respre-
sentation and the substantive nature of the would-be inter-
venor’s challenge are analytically distinct. If a parent could
intervene in a school desegregation suit as of right merely by
stating his concern in constitutional terms, or by denouncing
the decree rather than seeking to modify it incrementally, the
requirement of adequacy of representation would be a dead
letter, and school desegregation suits would become unman-
ageable.
Nor was the Brookins class entitled to a hearing to explore
its substantive allegations. That would have amounted to
granting the motion to intervene. We acknowledge some super-
ficial appeal to the appellants’ contention that if the decree is
as bad as they say it is, their interests are not being adequately
represented by the Department, and that the district court
could not determine whether it was as bad as they say it is
without granting them a hearing. But the appellants could if
they had wanted prosecute their own suit against the school
board. They started down that road but then decided to piggy-
back on the Department. This they could do only within the
limits of Rule 24(a)(2), which makes inadequacy of repre-
sentation an absolute requirement in order to prevent litigation
from becoming hopelessly complex.
There is an alternative basis for the district court's denial
of the motion to intervene. Rule 24(a)(2) requires that the
motion to intervene be “timely,”’ although it does not attempt
to define the term or specify rigid time limits. The purpose of
the requirement is to prevent a tardy intervenor from derailing
a lawsuit within sight of the terminal. As soon as a prospective
intervenor knows or has reason to know that his interests
might be adversely affected by the outcome of the litigation
he must move promptly to intervene. The revised consent
decree was entered on April 17 and long before then its outlines
were perceptible. Nevertheless, the Brookins class waited four
$4
and a half months after the decree was entered to file its motion.
It should have filed within days of the April 17 order, if not
sooner; there was no excuse for waiting till the school year
began, so that if the motion had been granted the implementa-
tion of the decree would have been delayed: “[A] motion
to intervene after entry of a decree should be denied except
in extraordinary circumstances.” Delaware Valley Citizens’
Council for Clean Air v. Commonwealth of Pennsylvania, 674
F.2d 970, 974 (3d Cir. 1982). There were none here.
Insofar as the appeal challenges the district court's refusal
to allow permissive intervention (Rule 24(b)(2) ), it is frivolous
in light of our previous decision. See 692 F.2d at 629. And
since the appellants were properly excluded from the lawsuit
they do not have the rights of parties and therefore cannot as
they wish to do appeal from, and hence get us to determine the
validity or adequacy of, the consent decree.
AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
G. DENIAL OF PETITION FOR REHEARING
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
September 7, 1983
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. WILLIAM J. JAMESON, Senior District Judge*
* Hon. William J. Jameson of the District of Montana, sitting
by designation.
$5
No. 82-2910
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
and
MARY LAURA BROOKINS ‘et al.,
Plaintiffs-Appellants
v.
SOUTH BEND COMMUNITY SCHOOL
CORPORATION et al.,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Indiana,
South Bend Division.
Nos. 81 C 313, 81 C35
Allen Sharp, Judge
ORDER
On July 6, 1983, plaintiffs-appellants Mary Laura Brookins,
et al., filed a petition for rehearing with suggestion for rehearing
en banc. All of the judges of the original panel have voted to
deny the petition, and none of the active members of the court
has requested a vote on the suggestion for rehearing en banc.
The petition is therefore DENIED.
H. DENIAL OF MOTION FOR
CORRECTION OF CAPTION
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinos 60604
September 7, 1983
Before
Hon. RICHARD A. POSNER, Circuit Judge
56
No. 82-2910
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
and
MARY LAURA BROOKINS,
MRS. KATHRYN J. W. BROOKINS, et al.,
Plaintiffs-Appellants,
vs.
SOUTH BEND COMMUNITY SCHOOL
CORPORATION, et al.,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Indiana,
South Bend Division
Nos. 81 C 313 and 80 C 35
Judge Allen Sharp
The “MOTION FOR CORRECTION OF CAPTION BY
PLAINTIFF-APPELLANTS MARY LAURA BROOKINS,
ET AL.” is DENIED.
I. DOCKET IN S81-313,
PETITIONERS’ CASE IN DISTRICT COURT
Dist: 0755 O: 1
Off: 3 R 23: 1
Docket Yr.: 81 $ Demand: inj. & decl.
Docket No.: 0313 relief
Filing Date: 09-08-81 Judge: 5507
J: 3 Mag. No.: 55AC
N/S: 440 County: 18141
PLAINTIFFS:
(1) Mary Laura Brookins
(2) Mrs. Kathryn J. W. Brookins
(3) Mrs. Elizabeth Reiling
(4) James Reiling
(5) Tricia Riggs |
(6) Mrs. Carol Williams and all others similarly situated
$7
Add:
Mark Gleva
Steven Gleva
Mr. S. Karen Gleva
Mr. John C. Gleva, Sr.
Romerio Brown
Mrs. Joyce Lucas
Bruce Butler
Mrs. Tracie Marie Staggers
DEFENDANTS (consol w/S80-35)
(1) South Bend Community School Corporation
(2) James P. Scamman, Superintendent
(3) The Board of School Trustees of the South Bend
Community School Corporation
(4) Oscar Brookins
(5) Donald W. Yates
(6) Loretta Jacobsen
(7) Eileen Bender
(8) Hollis E. Hughes, Jr.,
(9) Anthony V. Luber
(10) William L. Wilson,
Members of the Board of School Trustees
(11) United States of America. 10/19/81
CAUSE
(CITE THE U.S. CIVIL STATUTE UNDER WHICH THE CASE
IS FILED AND WRITE A BRIEF STATEMENT OF CAUSE)
28 USC 1343, (42 USC 1983); 42 USC 2000c-6 (a) and (b); 20
USC 1701 et seq. Article III of the U.S. Constitution. Defts.
have deprived Pitfs. of federal constitutionally guaranteed
rights by closures & changes in use, resulting in segregated
education & have been wasteful of their trust & constflic-
tively fraudulant toward their beneficiaries.
ATTORNEYS
David W. Albert 1, 2,3, 5,6, 7, 8,9, 10:
19271 Darden Road Franklin A. Morse II
South Bend, Indiana 46637 6th Floor First Bank Bld
(219) 272-1892 South Bend, IN 46601
(219) 233-1171
58
(11)AUSA/J. Leonardo
Fed. Bidg., S.B.
Oscar Brookins
South Bend Community
School Corp.
Administrative Office
635 S. Main Street
South Bend, IN 46601
Filing Fees Paid: 9-8-81
Receipt No: 1236
C. D. No: 158452
Statistical Cards: Date Mailed: JS-5: 10-1-81
9/8/81
9/8/81
9/9/81
9/14/81
9/22/81
9/24/81
PROCEEDINGS
Complaint for injunctive relief & appl. for TRO
without notice or for a TRO with notice filed w/
abbreviated statement of authority & cert. of ap-
plicant’s atty. regarding attempts to give notice.
Filing fee paid. Bond requested. Summons issued &
delivered to USM. kb
CLASS ACTION ALLEGATION.
Pitf. tenders bond kb
ORDER: Pitf ordered to give notice to defts;
defts shall have 30 days to respond to the com-
plaint. (SE) SHARP, TH(CC’s Albert, USM (for
serv w/compl) th
Pitf. fls. mot for release of bond. ee
Summons returned executed as to Oscar Brookins
on 9/14/81; Eileen Bender on 9/11/81; William W.
Wilson on 9/11/81; Hollis E. Hughes, Jr. by serving
W. Wilson on 9/11/81; Donald Yates, James Scam-
man & Loretta Jacobsen, all on 9/11/81 by serving
Valerie Wrun, secretary; Anthony Luber by serving
Jean Gonter, secretary on 9/11/81; and S. Bend
Comm. School Corp. & Bd. of School Trustees by
serving F. Morse, atty. on 9/10/81. kb
ORDER: Bond of Pitfs in amt. of $10,000.00 is
ordered released to Pltfs. (SE)SHARP, TH(CC’s
Albert & US Fidelity & Guaranty Co.) tb
59
9/25/81
9/28/81
10/2/81
10/7/81
10/8/81
10/8/81
10/9/81
10/13/81
10/13/81
10/16/81
10/19/81
10/22/81
10/27/81
10/27/81
10/27/81
10/28/81
10/28/81
Appear. of Franklin A. Morse II and Bruce R.
Bancroft fls. obo SB Comm. School, J. Scaman,
Bd. of School Trustees, D. Yates, L. Jacobsen,
E. Bender, H. Hughes, A. Luber, W. Wilson, membrs.
ee
Amended compl. fld. for inj. and TRO. w/class act.
alleg. ee
Pitfs’ confirmation of the array of defts. kb
Mot for ext of time by defts. th
Mot. of defts. to dismiss certain defts. kb
ORDER: mot for ext of time granted to & incl
10/16/81. (SEYSHARP, TH(Ccc’s Albert, Morse. th
Defts’ answer, motion to strike w/memo & motion
to consolidate. kb
ORDER: Mot to consolidate w/S80-35 is granted &
is considered pet to intervene pursuant to FRCP
24. (SE)SHARP,TH(cc’s USA, Bancroft, Schabel,
Fedder, Atkins, Reed, Albert, Morse) th
ORDER: O/A & hrng on all pending mots set for
OCTOBER 28, 1981 at 2:00 PM. (SE) SHARP,
TH(cc’s USA, Morse, Schabel, Fedder, Atkins,
Reed, Albert, cals) th
Mot. for Leave to Amend compl. to add USA. fld
by pitf. w/compl. att. ee
ORDER: Mot to amend comp! is granted; & USA is
names as a deft & given 30 days in which to respond
(SE)SHARP,TH(cc’s USA, Bancroft, Schabel,
Fedder, Atkins, Reed, Albert, Morse, USM) th
Sums issued (3)
Pitfs fl. Mot to Reconsider 10/13/81 order and Memo
Memo in Opposition to Def. Mot to Strike fld. _—_ee
Defts.’ mot to deny petitioners’ application to
ntervene and to dismiss complaint. 21
Defts.’ memo in opposition to peition to intervene sl
Pitf. mot. for relief from order w/memo in supportsl
USA memo in opp. to mot. to intervene. sl
Hrg. on mots. Ptys. to file simult. briefs by 11/16/
81. Pitf. files aff. of C. Williams. SHARP, J. sl
60
11/3/81
11/5/81
11/9/81
11/16/81
11/16/81
11/19/81
11/23/81
11/25/81
7/23/82
8/6/82
8/9/82
8/12/82
FILE 3:
8/20/82
9/2/82
9/3/82
9/7/82
Summons returned served on USA-S. Bend by
serving V. Vollmer on 10/27/81. kb
Report of So. Bend Comm. Sch. Corp purs. to
2/8/80 order fid. in 80-35 ee
Summ. rtd. served on Atty. Gen USA by cert mail
on 11/2/81 and on Civil Rights Divon 11/2/81 ee
Pitf. trial brief fld. ee
Def. fls. Supplmt. Memorandum in Oppos. to Pet.
to Intervene. ee
US Files Response to Issues as Framed by Ct. ee
USA FLS. Mot ext time. ee
Pitfs.” response to the mot. of USA for ext. of
time. sl
Minute; Affidavit ‘‘A”’ in support of pltfs’ suppl.
exhibit; Affidavit “‘B” in support of plitfs’ suppl
exhibit; Pitfs’ suppl exhibit No. 21; Cert of serv;
Pitfs’ suppl exhibit No. 20 (in manila envelope) th
AFFID. in Supp Pitf. supp. exh No. 25 Sec. Amd.
Compl. fid. w/att. ee
ORDER: Parties to brief & exchanged by 9/7/82.
(SE)SHARP,TH(cc’s Albert, Morse, USA, Brookins,
Schabel, Fedder, Atkins,Reed) th
AFFID. IN SUPP. Pitf Suppl Exh No. 22 “City
Boundaries incl. Census Tracts & Exh No. 22;
AFFIDS. “A”, “B”, “C” Supp. Exh. No. 23 Locat.
K - 6 students & exh. 23; (Bulky exh 23 in back-
room) SECOND AFFID. Richard Lamanna fd.
being exh 26; AFFID. Supp. supp. exh No. 27
ent. Educ. Reog. Prog. ee
THIRD. AFFID. Richard Lamanna exh 28 Sec.
Amend. Comp; Affid. Supp. of Pitf. Suppl. Exh
29; Affid. Supp. of pitf. Supp. Exh 30 fid. ee
RESPONSE of US fid. w/memo. ee
Brief of pitfs. in S81-313; aff. in support of Ex. 8
& aff. in support of Ex. 31 kb
Defs Sec. Suppimt! Memo in Opposit to Petit to
Intervene fid. ee
9/17/82 Identification of further named plitf & motion;
LaMont & Raymond Chatman; Identification of
further named pltf & motion; Tyrone Bradshaw;
Verified application for preliminary relief; Affidavit
in support of verified appl. for prelim relief; Memo
accompanying same by Pitfs. th
9/23/82 MEMO & ORDER: Application for intervention is
DENIED & Pitfs’ amended and supplemental com-
plaint is DISMISSED. (SE)SHARP,TH(cc’s Albert,
Morse, USA, Brookins) th
9/28/82 PLTF Petit. for Interv. fls Mot for Supplemt
ord w/memo. ee
10/5/82 PLTF MOT to Reconsider and Memorandum fld. ee
10/8/82 CORRECTION of phrase by pltfs fd. ee
10/14/82 ORD. ent. C/A on 10/8/82 by W. Cummings that
unpubl. ord. 7/28/82 be published (in S80-35) — ee
10/15/82 PLTF fls. Corrected Exh No. 14. ¢e
J. DOCKET IN S80-35
Dist: 0755 O: 1
Off: 3 Judge/Mag No: 5507
Docket Yr: 80 Docket Yr: S80
Docket No: 0035 Docket No: 0035
Filing Date: 02-08-80
a7
N/S: 440
PLAINTIFFS:
United States of America
DEFENDANTS (consol w/S81-31)
1 South Bend Community School Corporation
2 James P. Scamman, Supt.
3 The Board of School Trustees of the South Bend Community
School Corporation
4 Robert M. Sweeney
5 Donald W. Yates
6 Marilyn Kalamaros
7 Eileen Bender
8 Hollis E. Hughes, Jr.
9 Anthony V. Luber
10 William L. Wilson, members of the Board of School Trustees
11 United States of America 10/19/81
CAUSE
42 U.S.C. 2000c-6(a) & (b); 20U.S.C. 1701
ATTORNEYS:
USA 1-10 Bruce R. Bancroft
204 S. Main Franklin A. Morse, II
Room 332 Sixth Floor, First Bank Bld.
South Bend, IN South Bend, IN 46601
(219) 233-1171
PROPOSED INTERVENORS ~— PLTF
CLAY QUALITY EDUCATION II INC.
Donald A. Schabel NO. 11
One Indiana Square AUSA/J. Leonardo
Suite 3300 Fed Bldg. SB
Indpls, IN 46204
(317) 632-2670
&
Kenneth P. Fedder
300 First Bank Bldg.
South Bend, IN 46601
(219) 234-6061
PRO HAC VICE
NAACP
Thomas I. Atkins/Teresa Demchak Melvin Reed
NAACP-1709 Broadway 617 West LaSalle Ave.
New York, N.Y. 10019 South Bend, Indiana
(212) 245-2100 (219) 234-5050
Statistical Cards: Date Mailed: JS-5: 3/3/80
2/8/80
2/8/80
2/8/80
2/8/80
11/25/80
2/26/81
2/26/81
2/26/81
2/26/81
2/27/81
3/3/81
3/5/81
3/5/81
3/9/81
3/19/81
3/19/81
PROCEEDINGS
Complaint filed.
Appearance of Bruce R. Bancroft & Franklin A.
Morse, II filed on behalf of all Defts. sl
Consent Order entered (SE)SHARP, J. Copies:
USA, Morse. sl
Judgment entered by Clerk pursuant to Consent
Decree with each party to bear its own costs. sl
Def. SB Comm. School files documents purs. to
Consent order of 2/8/80. with attachments (large
IBM runs) ee
Appearance of Donald A. Schabel and Kenneth P.
Fedder for Clay Quality Education II.
Mot to intervene as deft filed by Clay Quality Edu-
cation II Inc.
Request for O/A & c/s filed by above. th
Ord. entrd. hrg. set for Thurs. 3/5/81 at 3:00 PM
EST. (SE)SHARP.,J. cc: All cps to K. Fedder for
distrib. to all cnsl. Calendars. ee
Jt. Motion for hearing on entry of Consent Decree
fid. ee
S. Bend Branch of NAACP files motion to inter-
vene, brief in support, motion to file intervention
complaint out of time & motion to defer hearing. kb
USA fils. Response to Def. Applica. Mot. to
Intervene and also their Memorandum in oppos.
to Prop. Mot. of Interv. Def. to Vacate Consent
Order. ce
Hrg. on Mots. to intervene & vacate consent order.
All ptys. to file suppl. briefs & exchange b6 3/27/81
SHARP, J. sl
Ordered that all parties who are attempting to inter-
vene are requested to include subject matter juris-
diction in all briefs on or before 3/27/81. (SE)
SHARP,TH(cc’s USA, Bancroft) (Reed, Fedder) th
Pitf-intervenor files motion for leave to appear
pro hac vice. kb
Ct. Rptr. files transcript of proceedings had 3/5/81 kb
64
3/20/81
3/27/81
3/27/81
3/27/81
4/3/81
4/3/81
4/3/81
4/17/81
4/20/81
5/4/81
5/13/81
5/18/81
Ordered that mot of NAACP’s counsel to appear
Pro Hac Vice is GRANTED. (SE)SHARP,TH
(cc’s USA, Morse, Schabel, Fedder, Atkins, Reed) th
USA files response in opposition to motion to inter-
vene & files supplemental response re subject matter
jurisdiction. kb
Application for intervention Clay Quality Educa-
tion files brief & tenders proposed answer & cross-
claim. (all copies of answer & cross-claim to
J. Sharp) kb
Defts. file supplemental memo in opposition to
motions to intervene & in support of motion to
approve amended consent decree kb
Pitf. Applic. for interv. NAACP files Suppl. Brief
and Compl. for Intervention. ee
Req. for Hearing on Desegregation Plan fld. by
def. ee
Consent order submitted. ee
Misc. Itr. from M. Grontkowski revs. ee
Memo & Order entered that Ct approves the
Consent Order submitted on 4/3/81 and amends
it hereto. (SE)SHARP,TH; Consent order approved
& entered (SE)SHARP,TH(cc’s USA, Bancroft,
Schabel, Fedder, Atkins,
Response to requires for hrng of SB Schl Corp's
on desegregation plan filed by NAACP th
Mot. of Pitf.-appl. for intervention NAACP for
reconsideration of this Court's order denying our
mot. to intervene and approving, w/out hrg., the
Defts’ proposed desegregation plan sl
Notice of Appeal filed by Clay Quality Ld. and
Fees paid. Mot. for Stay pend. appeal filed (will
* need supsedeas bond) ee
Clerk's certif. of fil. Not. app. to Ready, Bancroft,
Morse, Schabel, Fedder, Atkins, Reed and to C/A
w/info sheet and cpy dock. ee
Mot. of Def. SB Comm. Sch. for Modif. of Ord.
of 4/17/81 fd. ee
65
ff
|
\
5/21/81
5/21/81
/$/22/81
$/22/81
\
|$/26/81
$/27/81
$/28/81
5/29/81
6/1/81
5/4/81
6/30/81
6/30/81
7/8/81
Response of the United States to Motion of Deft.
for Modification of order of April 1, 1981. al
Ordered that request for modification of order of
April 17, 1981 is modified by provision in para-
graph 5. (SE)SHARP,TH(cc’s USA, Morse, Schabel,
Fedder, Atkins, Reed
Num. assign. In C/A = 81-1792. ee
Mot for O/A; Brief in opposition to mot for stay
by Deft. th
File sent to C/A with index copy of docket sheet,
and copies of transmittal letter sent to Attys and
C/A file sent by Registered Mail No. 0756 al
STAY of injunction pending appeal entered. SHARP,
J. (Copies Fedder, Schabel, Morse, Ready, Turner,
Atkins, Reed, Breckenridge-ejs w/copy to C/A)
Defts’ Mot for reconsideration and vacation of stay
order w/Memo in Support. ejs
Mot. of Pitf. to vacate stay. al
Ordered that mot for reconsideration is DENIED;
ordered that defts’ mot for reconsideration & vaca-
tion of the stay offer is DENIED; ordered that
pitf's mot to vacate stay is DENIED; principal pur-
pose of within rules is to clear and clean the record
so that the issues can be submitted to Ct. of Appeals
(SE)SHARP,TH(cc’s USA, Bancroft, Schabel,
Fedder, Atkins, Reed) (cc CA) th
Substitute page 9 to the above pleading filed by
defts. on 5/28/81. th
vi 7 th
NO DOCKETING FEE OR FILING FEE PAID.
Clerk's Certificate; (cc’s USA, Morse, Schabel,
Fedder, Demchak, Reed, 7th Cir)
information sheet; Cert cc docket entries; sent to
Clerk, 7th Cir. th
Filing fee & docketing f sical 999
(informed CA) (CA No. 81-2062) th
66
7/8/81
8/7/81
10/13/81
10/16/81
10/19/81
10/22/81
10/27/81
10/27/81
10/27/81
10/28/81
10/28/81
11/3/81
11/5/81
11/9/81
11/16/81
11/16/81
11/19/81
11/23/81
Order of 6/1/81; Notice of appeal; Clerk's Certif-
icate; cert cc’s docket entries; Sent 7th Cir. One
fol. Registry No. 70846 Attys notified. th
Order rec'd. from CA VACATING Dist. Ct.’s order
of 5/27/81. kb
ORDER: O/A & hrng on all pending mots set for
OCTOBER 28, 1981 at 2:00 PM. (SE) USA, Morse,
Schabel, Fedder, Atkins, Reed, Albert, Bancroft,
CALS) th
Pitfs. fl. Mot. for leave to Amend comp. w/attach
compl. ee
ORDER: Mot to amend comp! is granted; & USA is
names as a deft & given 30 days in which to respond
(SE)SHARP,TH(cc’s USA, USM, Bancroft, Schabel,
Fedder, Atkins, Reed, Albert, Morse) (Sums issued
* (3)) th
Pitfs. fl. Mot to Reconsider 10/13/81 order nd
Memo. Memo. in Opposit to Def. Mot to Strike fid.ee
Defts.’ memo in opposition to petition to intervene
and to dismiss complaint. sl
Defts’ memo in opposition to petition to intervene sl
Pitf. mot for relief from order w/memo in support sl
USA memo in opp. to mot. to intervene sl
Hrg. ou mots. Ptys. to file simult. briefs by 11/16/
81. Pitf. files aff. of C. Williams. SHARP, J. sl
Summons returned served on USA by serving V.
Vollmer on 10/27/81. kb
Report of So. Bend Comm. Sch. purs. to 2/8/80
fid. ee
Summ. rtd. served on aatty. Gen. USA and on Civil
Rights Div. both by cert. mail and on 11/2/81
(see 81-313) ee
Pitf. trial brief fld. ee
Def. fls. Supp.mt Memo. in Oppos. to Petit to
Intervene ee
US FLS. Response to Issues as framed by Ct. ee
USA fils. Mot for Ext time. ee
67
_-
11/25/81
7/23/82
8/6/82
8/9/82
8/12/82
8/18/82
8/20/82
8/25/82
9/3/82
9/15/82
9/17/82
9/23/82
9/28/82
Pitf. response to the mot. of the USA for
ext. of time. sl
Minute; Affidavit “A” in support of Pitfs’ supp!
exhibit: Affidavit ““B" in support of pitfs’ suppl
exhibit; Pltfs’ suppl exhibit No. 21; cert of serv;
Pitfs’ suppl exhibit No. 20 (in manila envelope) — th
AFFID in Supp Pitf. Supp. exh No. 25 Sec. Amd.
Comp fld in 81-313 ee
ORDER: Parties to brief & exchanged by 9/7/82.
(SE)SHARP,TH(cc’s Albert, Morse, USA, Brookins,
Schabel, Fedder, Atkins, Reed) th
AFFID. supp. plitf. Exh 22; Affids. A,B,C Supp
Exh 23; AFFID. Supp Exh. No. 24; Second Affid.
Richard Lamana exh 26, Affid Supp Exh No. 27
ea. fd. in 81-313 ee
Copy of mot. to publish from C/A filed by Defts. sl
THIRD AFFID. Richard Lamanna exh 28 Sec.
Amend. Comp; Affid. Supp of Pitf. Suppl. Exh 29;
Affid. Supp. of Pitf. Supp. Exh 30 ea. fd. in
$81-313. ee
Cert cc mandate received from 7th cir; ‘judgment
of Dist. Ct AFFIRMED, w/costs) Judges Cummings,
Bauer, Doyle, 7/28/82; File; 5 vols (incl. supple-
ments) | env IBM runs; received from 7th cir. th
Brief of pitfs. in $81-313; aff. in support of Exhibit
8 & aff. in support of Exhibit 31. kb
Bill of Costs fr. C/A for $352.50 fld. (cpy to Vi) ee
Identification of further names plitf & motion;
LaMont & Raymond Chatman; Identification of fur-
ther mnames plitf & motion; Tyrone Bradshaw;
Verified application for preliminary relief; Affidavit
in support of verified appl. for prelim. relief; Memo
accompanying same by Pitfs. th
MEMO & ORDER: Application for intervention
is DENIED & Pitfs’ amended and supplemental
complaint is DISMISSED. (SE)SHARP,TH(cc’s
Albert, Morse, USA, Brookins) th
PLTF. Petit for Interv. fls Mot for Suppimt.
Order with Memo ee
10/5/82 PLTF Mot to Reconsider and Memo fid. ee
10/8/82 CORRECTION by pitfs of phrase fid. ee
10/14/82 ORD. ent. C/A on 10/8/82 by W. Cummings that
unpublished order of 7/28/82 be issued as fully
citable opinion. (cpy judge) ee
10/15/82 Pitfs fl. Corrected Pitf Exh. No. 14.
K. DECISION OF FIFTH CIRCUIT IN
ADAMS V. BALDWIN
Thomas L. ADAMS et al.,
Movants-Appellants,
United States of America, Plaintiff,
v.
BALDWIN COUNTY BOARD OF EDUCATION
OF BALDWIN COUNTY, GEORGIA, et al.,
Defendants-Appllees.
No. 79-3370
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Oct. 23, 1980.
The United States District Court for the Middle District of
Georgia, Wilbur D. Owens, Jr., Chief Judge, denied an applica-
tion to intervene in a school desegregation case, and appeal was
taken. The Court of Appeals held that when parents move to
intervene in school desegregation cases, court must conduct an
evidentiary hearing and enter findings based upon an adequate
record.
Reversed and remanded.
Federal Civil Procedure 321
When parents move to intervene in school desegregation
cases, court must conduct an evidentiary hearing and enter
findings based upon an adequate record. Fed. Rules Civ. Proc.
Rule 24, 28 U.S.C.A.
Charles A. Mathis, Jr.. Thomas M. Jackson, Macon, Ga.,
for movants-appellants.
«
“
69
George M. Stembridge, Jr., Milledgeville, Ga., for defen-
dants-appellees.
Appeal from the United States District Court for the Middle
District of Georgia.
Before CHARLES CLARK, VANCE and SAM D. JOHNSON,
Circuit Judges.
PER CURIAM:
This is a school desegregation case asserting a cause of action
under 42 U.S.C. 2000c-6. The original oomplaint was filed on
February 14, 1968. After remand by this Court in United States
vy. Board of Education of Baldwin County, Georgia, 423 F.2d
1013 (Sth Cir. 1970), the district court entered a Singleton!
decree against the defendants on March 26, 1970. No appeal
was taken “~~. that order.
On May 22, 1979, a number of individuals filed a motion to
intervene, which alleged (1) discrimination in hiring and dis-
missal practices as well as in discipline practices, (2) discrimina-
tion in the nonrenewal of the contract of an assistant prin-
cipal named Olen Reaves, (3) discrimination in the transporta-
tion system, and (4) discrimination assigning students to certain
advanced studies programs. Movants also sought to convert the
suit into a class action composed of two subclasses: (1) all
black elementary and high school students, and (2) all black
teachers, counselors, administrators, and principals whose
employment had been terminated after October 15, 1968. With
the exception of Olen Reaves,-all of the Original movants were
representatives of the student subclass. On July 16, 1979, the
district court denied the application of Reaves to intervene.
The court then invited the remaining applicants, including the
names party, Thomas L. Adams, to submit affidavits in support
of their motion. The court also allowed the school board to
submit counter-affidavits. On the basis: of these, the court
determined that the only nonconclusional facts averred in
support of the motion to intervene were those concerning dis-
crimination in the transportation system, and that
{t]he remainder of their claims have not been supported by
1. Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (Sth
Cir. 1970), modified sub nom. Carter v. West Feliciana Parish School Board,
396 U.S. 290, 90 S.Ct. 608, 24 L.Ed2d 477 (1970), on remand Singleton v.
Jackson Municipal Separate School District, 425 F.2d 1211 (5th Cir. 1970).
2. Because Reaves failed to appeal this order, the issue of the nonrenewal of his
contract has been removed from this suit.
70
affidavits of fact demonstrating any possible substantial
claim of discrimination other than as to a limited number of
individual students whose alleged problems are not shown to
be part of a possible pattern of discrimination.
The court permitted intervention on the transportation
issue only.
Movants argue that they are entitled to intervene as a matter
of right under Rule 24(a)(2) of the Federal Rules of Civil
Procedure. Alternatively, movants urge that the district court
abused its discretion in denying permissive intervention under
Rule 24(b).3
Hines v. Rapides Parish School Board, 479 F.2d 762 (Sth
Cir. 1973), established guidelines for the application of Rule 24
to school desegregation cases. In Hines, this Court held that a
petition for intervention should bring to the district court’s
attention the precise issues that the movants seek to represent
and the ways in which the goal of a unitary system allegedly
has been frustrated. Based upon the petition and accompanying
complaint, the district court should then determine whether
the matters raised in the plea previously have been raised and
resolved and whether the issues sought to be presented by the
new group currently are known to the court and parties in the
initial suit. Under this analysis, if the court determines that the
issues raised by movants have been determined or if it finds that
the parties in the original action are aware of those issues and
completely competent to represent the interests of the new
group, it could deny intervention. Conversely, if the court
feels that the movants have a significant claim that they best
could represent, intervention would be allowed. Jd. at 7654
Movants argue that, in ruling on the motion to intervene the
district court ignored the guidelines established in Hines v.
3. Rule 24(a2) creates a three part test for intervention as of right. A party must
be allowed to intervene if (1) he claims an interest in the subject of the action,
(2) he is so situated that the disposition of the action may as a practical matter
impair his ability to protect that interest, and (3) his interest is not adequately
represented by existing parties. Under Rule 24(b), a district court may permit
intervention if to do so will not unduly delay or prejudice adjudication of the
rights of the original parties. Unlike Rule 24(a), however, a district court's refusal
to grant permissive intervention is reviewable only for abuse of discretion.
4. Movants argue that under this Court's decision in Hines v. Rapides Parish School
Board parent groups with complaints growing out of desegregation litigation are
entitled to intervention as a matter of right. In Pate v. Dade County School
Boerd, 588 F.2d 501, 503 (Sth Cir. 1979), cert. denied, 444 US. 835, 100
S. Ct. 67, 62 L.Ed.2d 44 (1979), however, this Court specifically rejected any
such interpretation of Hines.
71
Rapides Parish School Board, and failed to enter findings of
fact and conclusions of law in conformity therewith. In deseg-
regation cases, a district court’s ruling on a plea in intervention
must be supported by findings based upon an adequate record.
Calhoun v. Cook, 487 F .2d 680 (Sth Cir. 1973); Lee v. Macon
County Board of Education, 482 F.2d 1253 (Sth Cir. 1973).
In the present case, the district court’s order addressed neither
the requirement of Rule 24 nor the standards established in
Hines. Moreover, the court failed to articulate findings in sup-
port of its conclusion that movants’ claims failed to demon-
strate any possible substantial claim of discrimination.
When parents move to intervene in school desegregation
cases, the important constitutional rights at stake demand a
scrupulous regard for due process considerations. Jones y.
Caddo Parish School Board, 499 F.2d 914 (Sth Cir. 1974).
This Court has determined that intervention, rather than a
separate action, is the proper vehicle for parents claiming
inadequate representation to assert their rights. Denial of a
plea in intervention, therefore, often will deprive those parties
of their only opportunity to be heard. Consequently, we adhere
to our earlier decisions requiring the district court to conduct
an evidentiary hearing, and to enter findings based upon an
adequate record. Jones v. Caddo Parish School Board, 499
F.2d 914 (Sth Cir. 1974); Calhoun v. Cook, 487 F.2d 680
(Sth Cir. 1973). See also United States v. Perry County Board
of Education, 567 F.2d 277 (Sth Cir. 1978).
For the aforementioned reasons, we reverse the district
court’s order to the extent that it denies movants’ plea in
intervention and remand for proceedings consistent with this
opinion.
REVERSED AND REMANDED.
72
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.