Willie Banks v. St. James Parish School Boa ( 2018 )

Case: 16-31052 Document: 00514757623 Page: 1 Date Filed: 12/12/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 12, 2018
No. 16-31052
Lyle W. Cayce
Clerk
WILLIE BANKS, Father and Next friend of Minor Children W.B. and J.B.;
MAMIE L. DAVIS, Mother and next friend of minor children J.D., S.D. and
G.D.; RAYMOND JOSEPH, SR., Father and next friend of minor E.J.;
ALEXANDER JACKSON, Father and next friend of minors B.J. and B.J.,
Plaintiffs - Appellants
v.
ST. JAMES PARISH SCHOOL BOARD,
Defendant - Appellant
v.
GREATER GRACE CHARTER ACADEMY, INCORPORATED,
Intervenor - Appellee
Appeals from the United States United States District Court
For the Eastern District of Louisiana
USDC No. 2:65-CV-16173
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Before STEWART, Chief Judge, and JOLLY and WIENER, Circuit Judges.
PER CURIAM:*
In 1965, a group of students and parents (“the plaintiffs”) sued the
St. James Parish School Board (“the Board”) to compel the Board to
desegregate its schools. The district court granted relief to the 1965 parties
and, in 1967, entered an injunction ordering desegregation. This
desegregation order is still in effect, and, indeed, it is from that 1967 order that
this appeal arises.
Fast forward to 2016, more than half a century after the underlying case
commenced. Greater Grace Charter Academy, Inc. (“Greater Grace”), a
nonprofit corporation, applied with the Louisiana Board of Elementary and
Secondary Education (“BESE”) to open a Type 2 charter school. BESE and the
Louisiana Department of Education (“LDOE”) granted Greater Grace’s
request, subject to the condition that Greater Grace must “obtain[] approval
from the federal court” before it could open, “because St. James Parish is under
a desegregation order.” So Greater Grace moved under Federal Rule of Civil
Procedure 24 to intervene in the 1965 lawsuit to obtain the district court’s
approval to operate its charter school in St. James Parish. There was no
objection to the intervention and it was allowed.
The Board and the plaintiffs (collectively, “the 1965 parties”), however,
opposed Greater Grace’s efforts to obtain approval from the district court to
open the school. The 1965 parties argued that if Greater Grace is to operate in
St. James Parish, it must comply with the desegregation order to the same
extent as any school operating in the parish. The district court, nevertheless,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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granted Greater Grace’s request to open the school. The 1965 parties now
appeal, arguing that the district court erred in approving Greater Grace’s
operation of a charter school in St. James Parish.
We do not reach the merits of this alleged error because, as we discuss
below, Greater Grace’s procedural posture must be further analyzed by the
district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Before examining the legal issues presented, we turn to a more detailed
explanation of the facts underlying this appeal. In 2016, after many failed
attempts to become a Type 1 charter school (requiring the Board’s approval),
Greater Grace applied to BESE to become a Type 2 charter school (independent
of the Board). 1 BESE approved that application, authorizing Greater Grace as
a Type 2 charter school, but on certain conditions. Relevant here is the
condition that Greater Grace must “obtain[] approval from the federal court”
before it could open “because St. James Parish is under a desegregation order”
that was originally entered in 1967. This approval was requested because
LDOE interpreted La. Stat. Ann. § 17:3991(C)(3)—which provides that charter
schools shall “[b]e subject to any court-ordered desegregation plan in effect for
the city or parish school system”—to require Greater Grace to receive such
court approval. LDOE advised Greater Grace that because Greater Grace
“ha[d] not yet secured federal judicial approval to open pursuant to the active
desegregation order in St. James Parish, BESE [could not] execute a contract
and [] [LDOE could not] provide funding for the operation of Greater Grace . .
. until this court approval [was] obtained.”
1 Type 1 charter schools are created by a charter between nonprofit corporations and
local school boards while Type 2 charter schools are created through a charter between a
nonprofit corporation and the BESE, rather than a local school board. La. Stat. Ann.
§ 17:3973(2)(b)(i)–(ii) (1997).
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So, as a procedural means of obtaining this approval, Greater Grace
moved, without opposition, to intervene in the 1965 case under Rule 24, “solely
for the purpose of petitioning the Court for permission to open and operate its
public charter school in St. James Parish.” The district court granted the
unopposed motion to intervene. Greater Grace then moved for a scheduling
conference. The district court denied that motion. A few weeks before the
school was set to open, Greater Grace filed a “Motion for Authority to Operate
a Charter School in St. James Parish,” arguing that the district court had the
authority to approve the school, and promising that Greater Grace would
comply with all of the statutory non-discrimination requirements, along with
the various factors established by the Supreme Court for school districts to
achieve unitary status. 2 Two days before the planned school opening, Greater
Grace filed an emergency motion for expedited consideration, seeking a prompt
ruling in order to receive state funding in time for the school to open that year.
The next day, before the 1965 parties had filed a response, the district
court granted Greater Grace’s motion for authority to operate a charter school,
subject to the conditions proposed by Greater Grace in that motion. Later that
day, the 1965 parties filed their respective responses, arguing that Greater
Grace was subject to the desegregation order by virtue of La. Rev. Stat.
§ 17:3991(C)(3) (1997) and that Greater Grace’s operation would not be
consonant with the desegregation order because it would further entrench
segregation in St. James Parish. 3 Importantly, the Board acknowledged that
it had “no control whatsoever” over Greater Grace’s operations, but it argued
2 “Unitary status” means that “a school district [] has completely remedied all vestiges
of past discrimination.” Bd. of Educ. of Oklahoma City Pub. Sch., Indep. Sch. Dist. No. 89 v.
Dowell, 498 U.S. 237, 245 (1991).
3 The United States, which is a party to this litigation but not participating in this
appeal, also filed a response opposing Greater Grace’s motion to operate the charter school.
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that if Greater Grace were to operate, it “should have the same obligations to
desegregate its student body as are imposed on the Board.”
After the responses had been filed, the district court issued a five-page
order explaining its reasons for granting Greater Grace’s motion for authority
to operate. The court said that it granted the motion because (1) failure to open
the school would deprive students of attending the school of their choice, (2)
Greater Grace undertook efforts to attract a diverse student body and no
student was turned away, (3) the district is primarily African American and
still contains other schools that are over 90% African American after 50 years
of being under the desegregation order, and (4) Greater Grace agreed to
continue attracting diverse students. The court also suggested that the parties
should bring Greater Grace into additional desegregation discussions. As far
as the record before us indicates, Greater Grace has been operating since
August 2016.
The 1965 parties now appeal the district court’s order, arguing that the
district court did not, in its brief opinion, thoroughly consider all of the relevant
facts, and that the court abused its discretion by allowing Greater Grace to
operate. In their briefs before us, the 1965 parties reassert their arguments
made below, contending that the district court erred by allowing Greater Grace
to operate. They argue that a Louisiana statute—La. Rev. Stat.
§ 17:3991(C)(3)—placed Greater Grace under the district court’s 1967
desegregation order, and that allowing Greater Grace to operate would violate
that order by enhancing segregation in St. James Parish. 4 Greater Grace, on
the other hand, contends that applying § 17:3991(C)(3) to it is inappropriate
4 Section 17:3991(C)(3) provides that a charter school shall “[b]e subject to any court-
ordered desegregation plan in effect for the city or parish school system.” To this contention—
that a state, through its statutes, can determine who is or who is not bound to respect a
federal injunction—we need not respond in this opinion.
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because it is completely independent from the Board and its authority.
Moreover, Greater Grace argues that it has no history of racial discrimination,
justifying an injunction.
In the meantime, our focus was drawn away from these arguments and
directed to the procedural posture of this case. While this appeal was pending,
the Supreme Court decided Town of Chester, New York v. Laroe Estates, Inc.,
in which the Court held that Article III’s standing requirements apply to
intervenors as of right under Rule 24 who seek “relief that is different from
that which is sought by a party with standing.” 137 S. Ct. 1645, 1651 (2017).
In the light of that decision, we asked the parties to address the issue of
standing and the relevance of Town of Chester to this appeal.
In its supplemental briefing, Greater Grace acknowledged that its
intervention creates no legally cognizable dispute with the 1965 parties, to wit,
Greater Grace has suffered no injury caused by these parties, nor does it seek
any relief from them. It has no complaint against the 1965 parties, nor does
Greater Grace seek to change the conduct of these parties in any way.
Consequently, Greater Grace asserts that its seeking approval to operate does
not satisfy Article III’s standing requirements that there be a justiciable
controversy between it and the 1965 parties. On the other hand, the 1965
parties argued that the district court had jurisdiction to hear the motion to
operate a charter school based upon the court’s authority to protect its
desegregation order from interference by Greater Grace—as courts may do, for
example, in the so-called “splinter district” cases, in which new school districts
are formed within the established district. See Augustus v. Sch. Bd. of
Escambia Cty., Fla., 507 F.2d 152, 156 (5th Cir. 1975) (saying that, in
desegregation cases, “[a] court has inherent power to enter such ancillary
orders as are necessary to carry out the purpose of its lawful authority”); see
also Wright v. Council of City of Emporia, 407 U.S. 451, 470 (1972). The 1965
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parties are absolutely correct that the district court has the general authority,
in a proper case, to assert its jurisdiction to protect its desegregation order.
That point alone, however, does not address whether Greater Grace, as an
intervenor, has a case or controversy with the 1965 parties.
The issue of Greater Grace’s standing and their necessary or
indispensable party status was not presented to the district court. The parties
also did not address before the district court the import of the supervening
Supreme Court case, Town of Chester. Moreover, the United States has a stake
in this case and did not have the opportunity to address Greater Grace’s
procedural posture. Therefore, a more comprehensive review of these issues in
the district court is imperative.
II. ANALYSIS
It is undisputed that St. James Parish has not yet reached complete
unitary status. 5 It is also undisputed that La. Stat. Ann. § 17:3991(C)(3)
demands that Greater Grace is compliant with the 1967 desegregation order.
Therefore, Greater Grace was required to present itself before the court so that
the court could exercise its duty to enforce the desegregation order. “[T]he State
has, by statute, required charter schools to comply with standing
desegregation orders in the parishes where they wish to operate. Thus, the
State invited the Court into the charter school process for the specific purpose
of considering its effects on desegregation.” Cleveland v. Union Par. Sch. Bd.,
570 F. Supp. 2d 858, 868 (W. D. La. 2008). The district court’s role is limited to
determining whether the operation of the charter school would undermine the
desegregation order. Id. at 867; see also Smith v. Concordia Par. Sch. Bd., No.
5 While this appeal was pending, the Board was declared unitary in the area of
extracurricular activities and the court entered a judgment vacating and lifting all previous
injunctions and orders with respect to extracurricular activities and transportation
obligations (which was declared unitary at an earlier date). Banks v. St. James Par. Sch. Bd.,
No. CV 65-16173, (E.D. La. July 17, 2017), ECF No. 132.
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65-CV-11577, 2017 WL 2508197, at *3 (W.D. La. June 8, 2017) (citing
Augustus, 507 F.2d at 156).
Charter schools have intervened in the ongoing school desegregation
cases in the city or parish where they seek to be located pursuant to the
mandate of La. Stat. Ann. 17:3991(C)(3). See Cleveland, 570 F. Supp. 2d 858,
866–67 (holding that a charter school properly sought to intervene in the
ongoing school desegregation case); Tangipahoa Charter School Association
First Motion to Intervene, Moore v. Tangipahoa Par. Sch. Bd., No. CV 65-
15556, (E.D. La. Feb. 10, 2015), ECF No. 1235. However, the text of the statute
does not explicitly state that a charter school must intervene in a desegregation
case. See, e.g., Cleveland, 570 F. Supp. 2d at 867 n.21 (“The Court notes that it
appreciates the efforts of [D’Arbonne Woods Charter School] and its counsel to
comply with both the requirements of state law and, in its view, of federal
desegregation law by seeking review prior to opening its doors.”).
As mentioned, an important issue that was not presented before the
district court was whether Greater Grace is a necessary or indispensable party
under Fed. R. Civ. P. 19. Within Rule 19, there are two main considerations if
a third party is absent from the litigation and their joinder is sought: prejudice
to the initial parties (see Fed. R. Civ. P. 19(a)(1)(A)), and prejudice to the
interest of the proposed party to be joined (see Fed. R. Civ. P. 19(a)(1)(B)(i)). 6 A
court can sua sponte determine that a required party is missing, and it can add
that party to the case under Fed. R. Civ. P. 21. See Republic of Philippines v.
Pimentel, 553 U.S. 851, 861 (2008) (“A court with proper jurisdiction may also
6 “If the absent party is a necessary party, but its joinder is not feasible [because it
would defeat the court’s diversity jurisdiction], the court must decide whether the absent
party is an “indispensable” party to the action under Rule 19(b). See Fed. R. Civ. P. 19(b).”
Core Construction Services, LLC v. U.S. Specialty Insurance Company, No. 16-13447, 2017
WL 1037444, *1–2 (E.D. La. Mar. 17, 2017).
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consider sua sponte the absence of a required person and dismiss for failure to
join.”).
Plaintiffs assert that there is not a significant distinction between
joinder as a necessary party and intervention of right, citing Atlantis Dev.
Corp. v. United States, 379 F.2d 818, 823–25 (5th Cir. 1967). The Atlantis
appeal considered whether the district court erred in declining to permit
Atlantis to intervene in the case. Id. at 822. This court stated Rule 19(a)(2)(i)
has nearly identical language to Rule 24(a)(2), which addresses intervention
as of right, and shares a similar objective of ensuring the litigation includes
the affected parties. See id. at 823–25 (recognizing the similar phrasing and
underlying purposes of the two rules). With that perspective, this court first
analyzed whether Atlantis was a necessary party to determine whether it could
intervene. Id. “[T]he question of whether an intervention as a matter of right
exists often turns on the unstated question of whether joinder of the intervenor
was called for under Rule 19.” Id. at 825. Because the court found that the
party should have been joined as a defendant under Rule 19 (a)(2)(i), 7 the party
was entitled to intervene as of right. Id.However, Town of Chester has emphasized a substantial difference
between joinder and intervention. Intervention as of right under Rule 24 and
pursuant to Chester requires a showing of independent Article III standing,
whereas there is no standing analysis for joinder. 137 S. Ct. at 1650–51.
Therefore, reading Atlantis and Chester together, there is a distinction between
joinder and intervention.
“[The] issue[] [of whether Greater Grace should be joined as a necessary
or indispensable party has] not been previously [presented to the district court]
by the [parties]. [It is] more appropriately presented to the district court, which
7 This rule is now stated as Fed. R. Civ. P. 19(a)(1)(B)(i).
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may fully consider them for the first time.” Howard v. Fortenberry, 728 F.2d
712, 713–14 (5th Cir. 1984); see also Pulitzer-Polster v. Pulitzer, 784 F.2d 1305,
1309 (5th Cir. 1986) (“Rule 19’s emphasis on a careful examination of the facts
means that a district court will ordinarily be in a better position to make a
Rule 19 decision than a circuit court would be.”); BroadStar Wind Sys. Grp.
Liab. Co. v. Stephens, 459 F. App’x 351, 358 (5th Cir. 2012) (per curiam)
(unpublished) (“[b]oth Rule 19(a) and Rule 21 provide wide discretion for the
District Court to order joinder of parties. . .”) (quoting EEOC v. Brown & Root,
688 F.2d 338, 341 (5th Cir. 1982)) (internal quotations omitted); Pimentel, 553
U.S. at 861.
The court reviews a district court’s determination as to whether a party
is a necessary or indispensable party under an abuse-of-discretion standard.
See Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 520 (5th Cir.
2010) (“Rulings on the joinder of parties are reviewed for abuse of discretion.”)
Therefore, it is appropriate to have a more robust record to determine whether
the district court abused its discretion.
Because of the lack of a comprehensive record regarding whether
Greater Grace is a necessary or indispensable party, we posit that remand is
appropriate. See Delta Fin. Corp. v. Paul D. Comanduras & Assocs., 973 F.2d
301, 306 (4th Cir. 1992) (“We do not require dismissal, however, but remand
the case so that the district court may develop the record and determine in the
first instance whether Cranch indeed must be joined.”); see also Bakia v. Los
Angeles Cty. of State of Cal., 687 F.2d 299, 302 (9th Cir. 1982) (“This court can
best review an alleged abuse of discretion when the record, supported by
findings and reasoning, shows that discretion has indeed been exercised. On
this record, the decision of the district court cannot adequately be reviewed.”);
Francis Oil & Gas, Inc. v. Exxon Corp., 661 F.2d 873, 880 (10th Cir. 1981) (“In
our view then the cause must be remanded for the purpose of having a trial, or
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hearing, one which seeks to ascertain some of the factual matters which have
not been determined.”).
III. CONCLUSION
For the reasons stated above, we REMAND this case to the district court
with instructions to determine whether Greater Grace is a necessary and/or
indispensable party. Additionally, to the extent that the district court does not
find that Greater Grace is a necessary and/or indispensable party, then the
district court is instructed to determine whether Greater Grace has standing
given the United States Supreme Court’s holding in Town of Chester. The
district court is not precluded from conducting any further proceedings that it
finds necessary.
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E. Grady Jolly, Circuit Judge, partially concurring:
I agree to remand this case for further proceedings below. I respectfully
disagree with the majority’s suggestion that the district court must determine
whether Greater Grace is a necessary or indispensable party, joined under
Federal Rule of Civil Procedure 19, or an intervenor as of right under Rule 24.
The record before us is unequivocal that Greater Grace entered this case as an
intervenor. No one has ever attempted to join Greater Grace as a party.
As recounted by the majority opinion, this action began in 1965 when the
plaintiffs sued the Board to compel desegregation of its schools. An injunction
entered in 1967 ordering desegregation remains partly in effect. Greater Grace
involved itself in this decades-old action in 2016 when it filed an Unopposed
Motion to Intervene. In that motion, Greater Grace explicitly, and only,
invoked Rule 24 as the basis for inserting itself in this litigation. No party
argued below that Greater Grace should be joined as a necessary or
indispensable party under Rule 19. 1 Joinder, respectfully, is a diversionary
tactic in an attempt to avoid the difficult issue of standing.
Nevertheless, the majority’s first error leads to a second, more
fundamental problem: the suggestion by the majority that no standing analysis
is required for joinder. In Town of Chester v. Laroe Estates, Inc., the Supreme
Court was clear that “[f]or all relief sought, there must be a litigant with
standing.” 137 S.Ct. 1645, 1651 (2017). Greater Grace seeks relief in this
case—approval to operate a charter school—that has no relationship to the
relief sought by the 1965 plaintiffs, that is, the dismantling of de jure
segregation. See id. (“[A]n intervenor of right must have Article III standing
1 The majority cites Howard v. Fortenberry, for the proposition that the unaddressed
issue of joinder should be remanded to the district court. 728 F.2d 712 (5th Cir. 1984). That
case is inapposite because the remanded issue was raised below but not addressed by the
district court. Id. at 713–14.
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in order to pursue relief that is different from that which is sought by a party
with standing.”). Even if Greater Grace were to be joined as a third-party
defendant, it cannot seek relief without first establishing standing. See 13A
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
3531 (3d ed. 2018) (“If a defendant makes a claim, as for example by
counterclaim, crossclaim, or third–party claim, standing is likely to be
measured by the same tests as apply to plaintiff claimants.”). In short, this
case should be remanded to allow the district court to consider whether Greater
Grace has Article III standing in the light of Town of Chester; or, stated
differently, to decide whether Greater Grace has a justiciable controversy with
the 1965 parties.
13