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Brumfield v Dodd

Case No. 13-31262 (C.A. 5, Apr. 10, 2014)

In this appeal of an order denying intervention, the movants are parents whose children receive school vouchers via Louisiana’s Scholarship Program. The legislature established the Program in 2012 to provide funding to low-income parents with children in failing schools so that they may have the option of sending them to better schools, including private schools, of their own choosing. LA. REV. STAT. ANN. § 17:4013. The parents seek to intervene in this litigation between Louisiana and the federal government over the state’s voucher program. We reverse the order denying intervention.

I.



On August 22, 2013, the United States filed a motion seeking “permanently [to] enjoin the State of Louisiana . . . from awarding any school vouchers . . . to students attending school in districts operating under federal desegregation orders unless and until the State receives authorization from the appropriate federal court overseeing the applicable desegregation case.” This case, as reflected in the caption, involves the desegregation order issued in Brumfield v. Dodd, 405 F. Supp. 338 (E.D. La. 1975) (three-judge court), which prohibited the provision of public funds or other assistance “to any racially discriminatory private school or to any racially segregated private school” and created a certification process to establish private-school eligibility for receiving public funds. Id. at 349.

The United States initially sought the injunction on the ground that the voucher program constituted public assistance to private schools in violation of the desegregation order: “The State’s actions in using public funds to trans-fer students in districts operating under desegregation orders to schools which they are not zoned to attend,” argued the government, “cause irreparable injury to the court-ordered desegregation process, the parties to the desegregation action, and ultimately to the students and the communities governed by the desegregation decree.” The government further urged that the program “deprives the students of their right to a desegregated educational experience.”
 

 

Judge(s): Jerry E. Smith
Jurisdiction: U.S. Court of Appeals, Fifth Circuit
Related Categories: Civil Remedies , Competition , Constitutional Law , Contracts , Education , Employment , Energy / Utilities , Environmental , Government / Politics , Property
 
Circuit Court Judge(s)
Edith Clement
Grady Jolly
Jerry Smith

 

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merely “theoretical.” 6 moore’s § 24.03[3][a], at 24-42. this litigation—and that if they do, it is not likely to be impaired—because they versus constitute aid to private schools. any such proceedings. even so, an old desegregation case involving a policy the united states contends that the parents do not have an interest in no. 13-31262 tion of the district court. for example, the state has admitted that “the schol- no. 13-31262 tional opportunities. further, any decree might “adversely affect[] the inter- to be sure, there is as of yet no order requiring a change in the voucher longer requests the remedy proposed intervenors objected to,” the court held, “they lack the necessary interest to intervene. the only remaining issues in whether there is any need to amend existing orders. significantly, in its sup- arship program does constitute state aid subject to the orders and decrees in manent injunction of the voucher program “unless and until the state receives impaired. rather, they must demonstrate only that the disposition of the this court determines it appropriate to resolve those two questions in the priate federal court overseeing the applicable desegregation case.” this case, september 18 order required the parties to brief and argue two legal issues: requested in its august motion, and the intervention motion did not explain intervene as of right must satisfy four requirements: representation during trial would be necessary. in sierra club the intervenors relating to the property or transaction that is the subject of the action, and is it is not credible for the united states to claim that the relief it is now race, color, or national origin.” id. at 1004. we held that that complaint stated under which the state would provide the information needed to case: 13-31262 document: 00512591800 page: 2 date filed: 04/10/2014 ties can justify intervention.” id. in sierra club, 18 f.3d at 1207, we held that race as a factor in admissions.” grutter, 188 f.3d at 400 (emphasis added). to the interests of the companies. id. at 1207–08. 2 see also grutter v. bollinger, 188 f.3d 394, 399 (6th cir. 1999) (“to satisfy this ele- desegregation case.” the district court issued an order on september 18 that 992, 994 (5th cir. 1994), the city entered into a consent decree with an defending against the claims of various environmental groups and ultimately applicant’s interest must be inadequately represented by the existing parties from that of the state, which apparently has conceded the continuing jurisdic- parents challenge the very premise that the scholarship program is subject to decline in prospects for obtaining vouchers may well result if the district court lumber companies had an interest sufficient for intervention because their mate objective as a party to the lawsuit,” in which event “the applicant for ultimate-objective presumption of adequate representation even applies “deprives the students of their right to a desegregated educational experience.” choosing. la. rev. stat. ann. § 17:4013. the parents seek to intervene in this edwards, 78 f.3d at 1005, that the officers would be bound by the consent cir. 1978), for the proposition that this court has found that parents do not group attempting to intervene urged that those policies needed no adjustment. an interest justifying intervention. no. 13-31262 representation prong generally; if it could, then no analysis of adequacy of 5 . . . to students attending school in districts operating under federal desegre- this action. if the desegregation order is modified to require prior court case: 13-31262 document: 00512591800 page: 7 date filed: 04/10/2014 part of the existing party to overcome the presumption.” id. the desegregation decree.” the government further urged that the program quately represent that interest.” fed. r. civ. p. 24(a). a party seeking to “is a flexible one, and a practical analysis of the facts and circumstances of each as reflected in the caption, involves the desegregation order issued in brum- april 10, 2014 created a certification process to establish private-school eligibility for receiv- litigation between louisiana and the federal government over the state’s “threatened by” a potential bar on certain kinds of vouchers. the united states parents’ arguments as to interest and impairment are therefore waived state-court cases are not dispositive or binding on us, our ultimate conclusion is supported 7 no. 13-31262 to the extent that the court affirmatively answers the first question, it believes 2. 4 case: 13-31262 document: 00512591800 page: 4 date filed: 04/10/2014 11 opportunities.” for intervention, a movant’s interest must be “direct, substantial, and respect to groups of minority students because “[t]here is little room for doubt v. pence, 984 n.e.2d 1213 (ind. 2013); owens v. colo. cong. of parents, teachers & students, we held that “[a] decree’s prospective interference with promotion opportuni- subject of the action, the movant must demonstrate that disposition of that in this appeal of an order denying intervention, the movants are parents the association challenged the intervention of a different group of firefighters. of the action; (3) the applicant must be so situated that the dispo- arises where one party is a representative of the absentee by law. id. here case: 13-31262 document: 00512591800 page: 9 date filed: 04/10/2014 parents who believe that the best way to ensure equal protection of the laws is no. 13-31262 sierra club v. espy, 18 f.3d 1202, 1204–05 (5th cir. 1994) (citing new orleans may be inadequate, so this requirement of rule 24(a) is met.3 “the final requirement for intervention as a matter of right is that the had entered into a consent decree with black and hispanic officers; the district louisiana black alliance for educational options, previously sought. both would demand an injunction unless and until the state no. 13-31262 interest question or is brought by a public interest group. the zone of interests although the movant bears the burden of establishing its right to inter- assess and monitor the voucher program’s implementation consis- impede the movant’s ability to protect its interest, unless existing parties ade- timely sharing of school voucher program data and analysis by louisiana as prongs. before doing so, however, we address a material factual dispute. so situated that disposing of the action may as a practical matter impair or have easily met their minimal burden. the state has many interests in this ability to protect its interest; and (4) the applicant’s interest must ently [to] enjoin the state of louisiana . . . from awarding any school vouchers bound by a possible future judgment, and the current requirement is a great officers who would not otherwise be chosen because of their scores on an exam. intervenor–appellee, i. “existing timber contracts” were “threatened by” an injunction potentially 6 moore’s § 24.03[2][c], at 24-34 (citing nopsi, 732 f.2d at 464–65). our not to urge that the program be killed entirely. the possibility is therefore real united states of america, the parents have established that their interests might be impaired by 528, 538 n.10 (1972)). lost on the merits. a preliminary injunction was therefore issued, whereupon interests may not align precisely. in sierra club the forest service was points to united states v. perry county board of education, 567 f.2d 277 (5th pose of opposing the motion for permanent injunction. the united states, how- and the parents vigorously oppose dismantling the voucher program, their lakisha fuselier; mary edler; pub. serv., inc. v. united gas pipe line co. (“nopsi”), 732 f.2d 452, 463 (5th a court may consider them before making potentially adverse decisions. they are not zoned to attend,” argued the government, “cause irreparable here, similarly, the parents’ access to vouchers will be impaired because a prohibiting the forest service from selling certain timber. to intervene de novo. sierra club, 18 f.3d at 1205. obtained court authorization.1 ferent relief sought, we disagree. summary calendar 8 whether the desegregation order applies to the scholarship program, and if so, not wait to see whether that ultimately happens; they have already described contentions because they failed to raise any arguments with respect to the purportedly dif- mitzi dillon; titus dillon; michael lemane; gation orders unless and until the state receives authorization from the appro- 12 quate representation stemming from purportedly identical ultimate objectives. claim that it is no longer seeking the relief it previously sought in its august these students may well result if the university is precluded from considering defendants, ests of proposed intervenors.” the district court did allow for the possibility of have a sufficient interest to intervene in desegregation proceedings. the the lack of unity in all objectives, combined with real and legitimate additional as the government states in its supplemental motion, however, the edwards, 78 f.3d at 1005. that was enough to rebut the presumption of ade- voucher program constituted public assistance to private schools in violation reasoning by noting that “[t]he government must represent the broad public were its primary intended beneficiaries. they therefore assert not only a mat- case: 13-31262 document: 00512591800 page: 10 date filed: 04/10/2014 as follows: “(1) [d]oes the desegregation order issued in brumfield apply to the a governmental entity is on the same side of an issue, in this case the parents case: 13-31262 document: 00512591800 page: 1 date filed: 04/10/2014 ests of [the parents] in having equal access to . . . opportunities . . . without reference to race, color, or national origin.” finally, “existing” scholarships are action may, as a practical matter, impair or impede the movant’s ability to therefore, according to the united states, it no longer sought the relief prompted the united states to supplement its initial august motion. the interests were essentially identical. id. at 1207. we rejected that claim ii. action “may” impair or impede their ability to protect their interests. § 24.03[4][a], at 24-47 (citing trbovich v. united mine workers of am., 404 u.s. plaintiffs, lyle w. cayce to intervene. sierra club, 18 f.3d at 1204. the plaintiffs similarly contended clause of the fourteenth amendment. if any group can be described as within tent with the orders in this case on a regular and timely basis. interest, not just the economic concerns of the timber industry,” and therefore with the federal government and with the courts that have continuing deseg- regation jurisdiction. the parents do not have the latter two interests; their that access to the university for african–american and latino/a students will 732 f.2d at 464–65. because timeliness is not at issue, we address only the other three case: 13-31262 document: 00512591800 page: 6 date filed: 04/10/2014 which it sought to enjoin the program unless and until the state receives 92 p.3d 933 (colo. 2004); kotterman v. killian, 972 p.2d 606 (ariz. 1999); jackson v. benson, because they were not presented to the district court. in other words, the a. have not explained how the new relief the government seeks involves or implementation.” there is no real difference between that relief and the relief the purported aim of the united states is to enforce the equal protection in edwards the defendant city thought it needed to “change the existing liberalization of the prior rule. 6 moore’s § 24.03[3][a], at 24-41; edwards, grounds similar to those in black fire fighters. there, the police department a sufficient interest for intervention. voucher program so as to require the state to obtain authorization from the enacting the scholarship program; indeed, these parents and their children scholarship. yet, if a modification of the decree requiring court approval means harris, 536 u.s. 639 (2002), for the proposition that school vouchers do not case: 13-31262 document: 00512591800 page: 3 date filed: 04/10/2014 (emphasis added)). 10 government hinges its argument respecting these prongs almost entirely on its requested by the united states, it is the position of the united states that the action from 1975—similarly threatens a “prospective interference with” educa- 9 for the eastern district of louisiana 3 affirmative, and a schedule is put in place to facilitate compliance and the plemental motion the united states rephrased the district court’s first question en banc court has explained that a zone-of-interest analysis in standing doc- surely they might, which is all that the rule requires. there is yet no injunction. nonetheless, in sierra club we bolstered our the representation by existing parties will be, for certain, inadequate. . . . [t]he ment may be judged by a more lenient standard if the case involves a public program. but the parents do not need to establish that their interests will be adjust some element of the scholarship program—either by changing which united states court of appeals more extensive interests will in fact result in inadequate representation, but legally protectable.” 6 moore’s § 24.01[2][a], at 24-25; edwards, 78 f.3d at b. whose children receive school vouchers via louisiana’s scholarship program. tion. “because the motion that proposed intervenors sought to oppose no right, the denial of their motion to intervene is reversed. ment of the intervention test, a would-be intervenor must show only that impairment of its hous., 78 f.3d 983, 999 (5th cir. 1996) (en banc). we review a denial of a right impairs any interest of the parents. the government also maintains that the no. 13-31262 officers. edwards, 78 f.3d at 989. the main complaint of that group was “that purpose of intervention is to allow interested parties to air their views so that the consent decree adversely affects the interests of its members in having because the parents have met the requirements for intervention as of sentation, but this burden is ‘minimal.’” sierra club, 18 f.3d at 1207. “the court had denied intervention by a group of white, female, and asian-american losing vouchers or their full range of school choices. we found similarly in as previously discussed, in that motion the government sought a per- jerry e. smith, circuit judge: 3. ably broader than are the protectable interests recognized in other contexts.” no. 13-31262 sition of the action may, as a practical matter, impair or impede its relief the united states now sought was the creation of a process here, a potential decree—an amendment to the original decree in this the service indicated it would comply with the injunction and stop selling cer- (1) the application must be timely; (2) the applicant must have an clerk or contrary arguments, is sufficient to demonstrate that the representation presumptions of adequate representation. edwards, 78 f.3d at 1005. the first a court “must permit anyone to intervene who . . . claims an interest to the suit. the applicant has the burden of demonstrating inadequate repre- in re lease oil antitrust litig., 570 f.3d 244, 248 (5th cir. 2009). the inquiry second presumption “arises when the would-be intervenor has the same ulti- here the case for intervention is even stronger. first, it is not evident that the although a private group does not always satisfy this prong just because 3 we note that parents were granted intervention in simmons-harris, and although protect that interest.” 6 moore’s § 24.03[3][a], at 24-41; sierra club, 18 f.3d intervention must show adversity of interest, collusion, or nonfeasance on the in light of the information already provided by the state and the desegregation case. in the supplemental motion, the government explains that ing public funds. id. at 349. before jolly, smith, and clement, circuit judges. oless brumfield; et al., no. 13-31262 1004; sierra club, 18 f.3d at 1207. this court several times has found inter- case: 13-31262 document: 00512591800 page: 11 date filed: 04/10/2014 ever, claims that on september 23, 2013, it had informed the court that, seeking differs from the relief the parents opposed in the august motion, in this case,” but the parents challenge that notion, citing zelman v. simmons- decree and therefore would be “limited in their future promotion no. 13-31262 get to select a particular school they otherwise would choose. the parents need the public interest easily supports intervention: “the interest require- schools. the parents are also within the zone of interest of the legislation equal access to a promotion system and promotion opportunities within the in edwards, our en banc court reversed a denial of intervention on federal practice [hereinafter moore’s] § 24.03[1][a], at 24-22 (3d ed. 2008); to be sure, the united states is claiming that, at the moment, it has no promotional policies and procedures” of the police department, whereas the this requirement, however, must have some teeth, so there are two no. 13-31262 the case, at this time, [a]ffect the sharing of information between the united only concern is keeping their vouchers. we cannot say for sure that the state’s students receive the aid or changing the schools in which they are placed—if field v. dodd, 405 f. supp. 338 (e.d. la. 1975) (three-judge court), which pro- the parents moved to intervene as a matter of right for the limited pur- court has already decided enough issues contrary to their interests. the very 6 motion. we now explore that claim. of the desegregation order: “the state’s actions in using public funds to trans- the timber groups satisfied the minimal burden of showing inadequacy. fer students in districts operating under desegregation orders to schools which no. 13-31262 states and the state of louisiana. these issues simply do not [a]ffect the inter- that if the parents are not able adequately to protect their interests, some fifth circuit attempted to intervene after the injunction had issued; here, on the other hand, “how [the parents’] interests could be affected by the relief now being sought.” case—maintaining not only the scholarship program but also its relationship employee group, agreeing to give a specified number of promotions to black applicant’s burden on this matter should be viewed as ‘minimal.’” 6 moore’s the zone of interest protected by that clause, surely it is these mostly minority voucher program. we reverse the order denying intervention. hibited the provision of public funds or other assistance “to any racially dis- case: 13-31262 document: 00512591800 page: 5 date filed: 04/10/2014 be impaired to some extent and that a substantial decline in the enrollment of the goal of its prior motion has been satisfied. but an affirmative answer to the second presumption does not apply here. although both the state united states claims that as a result of that order, the three objectives of its 6 moore’s § 24.03[3][a], at 24-41.2 it would indeed be a questionable rule that for the fifth circuit ests remarkably similar to the interest of the parents here to be sufficient. on august 22, 2013, the united states filed a motion seeking “perman- case is appropriate.” 6 moore’s § 24.01[1][a], at 24-24; edwards v. city of further, the parents are staking out a position significantly different order applies” and so “the state requires authorization from the court prior to ter of public interest but matters more relevant to them than to anyone else. case: 13-31262 document: 00512591800 page: 8 date filed: 04/10/2014 movants–appellants a renewed intervention motion should the united states seek its original relief. because in complying with the injunction, the service would be acting contrary cir. 1984) (en banc)). agreed to provide, to the government, data on the voucher program. iii. there is no suggestion that the state is the parents’ legal representative. the 1. information the court had ordered the state to produce, the only to give them the opportunity—along with other parents who live in poverty the legislature established the program in 2012 to provide funding to low- filed authorization from the appropriate federal court overseeing the applicable case: 13-31262 document: 00512591800 page: 12 date filed: 04/10/2014 interest relating to the property or transaction that is the subject 2 is far less apposite than are sierra club, edwards, and black fire fighters. trine can bear on the interest question for purposes of intervention. nopsi, in black fire fighters ass’n of dallas v. city of dallas, texas, 19 f.3d anything, it signifies that the government will have the ability to attempt to would require prospective intervenors to wait on the sidelines until after a burden on the movant is not a substantial one. the movant need not show that 78 f.3d at 1004–05. the impairment must be “practical,” however, and not students who otherwise would get vouchers might not get them or might not “once a movant has successfully established a sufficient interest in the dispute over the location of a newly built school, see perry, 567 f.2d at 279–80, [department] for the ranks of sergeant and lieutenant without reference to superintendent of public education of the state of louisiana; et al., the first question as rephrased by the government would be “the desegregation 1 therefore, to the extent the government suggests that the parents have waived their william j. dodd, at 1207. the impairment requirement does not demand that the movant be holds that the scholarship program is subject to the desegregation order. court prior to implementation?” the government then stated, “to the extent authorization from the appropriate federal court overseeing the applicable tain kinds of timber. it was at that point that the timber companies attempted the united states initially sought the injunction on the ground that the the district court agreed with the united states and denied interven- relief sought by the august motion will have been satisfied.” criminatory private school or to any racially segregated private school” and be inadequately represented by the existing parties to the suit. option of sending them to better schools, including private schools, of their own in grutter, the court found the impairment element satisfied with vene, rule 24 is to be liberally construed. 6 james w. moore et al., moore’s august motion “are now in the process of being fulfilled” because the state has intention of halting the voucher program or depriving anyone of an existing and whose children are in failing schools—to send their children to better because the state has more extensive interests to balance than do the parents. to be sure, that may not be enough to satisfy the inadequate- protected by a constitutional provision or statute of general application is argu- that the service adequately represented the movants’ interest because the gation action, and ultimately to the students and the communities governed by by other school-voucher cases in which parents were allowed to intervene. see, e.g., meredith 578 n.w.2d 602 (wis. 1998). income parents with children in failing schools so that they may have the approval of the program’s implementation, then some parents are at risk of injury to the court-ordered desegregation process, the parties to the desegre- appeal from the united states district court in the united states court of appeals substantial legal interest is possible if intervention is denied. this burden is minimal.”


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