408 F.2d 175 (D.C. Cir. 1969), 21167, Smuck v. Hobson

Docket Nº:21167, 21168.
Citation:408 F.2d 175
Party Name:Carl C. SMUCK, a Member of the Board of Education of the District of Columbia, Appellant, v. Julius W. HOBSON et al., Appellees. Carl F. HANSEN, Superintendent of Schools of the District of Columbia, Appellant, v. Julius W. HOBSON et al., Appellees.
Case Date:January 21, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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408 F.2d 175 (D.C. Cir. 1969)

Carl C. SMUCK, a Member of the Board of Education of the District of Columbia, Appellant,

v.

Julius W. HOBSON et al., Appellees.

Carl F. HANSEN, Superintendent of Schools of the District of Columbia, Appellant,

v.

Julius W. HOBSON et al., Appellees.

Nos. 21167, 21168.

United States Court of Appeals, District of Columbia Circuit.

January 21, 1969

Argued June 26, 1968.

Page 176

Messrs. John L. Laskey and Edmund D. Campbell, Washington, D.C., with whom Messrs. F. Joseph Donohue and Thomas S. Jackson, Washington, D.C., were on the brief, for appellants.

Messrs. William M. Kunstler, New York City, and Richard J. Hopking, with whom Mr. James O. Porter, Washington, D.C., was on the brief, for appellees. Mr. Jerry D. Anker, Washington, D.C., also entered an appearance for appellees.

Mr. E. Riley Casey, Washington, D.C., filed a brief on behalf of the National School Boards Association, as amicus curiae, urging reversal.

Mr. William B. Beebe, Washington, D.C., filed a brief on behalf of the American Association of School Administrators, as amicus curiae, urging reversal.

Messrs. Howard C. Westwood and Albert H. Kramer, Washington, D.C., filed a brief on behalf of the National Education Association, as amicus curiae, urging affirmance.

Messrs. J. Francis Pohlhaus and Frank D. Reeves, Washington, D.C., filed a brief on behalf of the National Association for the Advancement of Colored People, as amicus curiae, urging affirmance.

Before BAZELON, Chief Judge, and DANAHER, BURGER, McGOWAN, TAMM, LEVENTHAL and ROBINSON, Circuit Judges, sitting en banc.

BAZELON, Chief Judge, joined by LEVENTHAL and ROBINSON, Circuit Judges, in Part I; and by McGOWAN, LEVENTHAL and ROBINSON, Circuit Judges, in Parts II, III, and IV:

These appeals challenge the findings of the trial court that the Board of Education has in a variety of ways violated the Constitution in administering the District of Columbia schools. 1 Among the facts that distinguish this case from the normal grist of appellate courts is the absence of the Board of Education as an appellant. Instead, the would-be appellants are Dr. Carl F. Hansen, the resigned superintendent of District schools, who appeals in his former official capacity and as an individual; Carl C. Smuck, a member of the Board of Education, who appeals in that capacity; and the parents of certain school children who have attempted to intervene in order to register on appeal their 'dissent' from the order below.

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The school board's decision not to appeal inevitably adds a quality of artificiality to any proceedings in this Court. But the importance of the constitutional issues as stake requires an examination of whether these appellants should, despite the absence of the protagonist at trial, be given their day in a higher court. Moreover, our reluctance to review an order unchallenged by the principal defendant below is in some measure tempered by the fact that the present appointed school board has been superseded by a new Board of Education elected last fall. 2 The most fundamental considerations demand that this new board should have the fullest discretion permitted by the Constitution to reshape educational policy within the District. This Court cannot ignore the importance of assuring that the new school board should not be straitjacketed by an order not rooted in constitutional requirements. We conclude that the parents were properly allowed to intervene of right in order to appeal those provisions of the decree which curtail the freedom of the school board to exercise its discretion in deciding upon educational policy.

Taking up the contentions advanced by the parents, our disposition is as follows: In Part II of this opinion we consider and reject certain procedural objections. In Part III we affirm on the merits those parts of the District Court's decree that relate to pupil bussing, optional zones and faculty integration. In Part IV we conclude that the District Court's rulings on the track system and on certain aspects of pupil assignment do not materially limit the discretion of the School Board, and that accordingly the parents lack standing to challenge the factual and legal bases underlying these provisions of the decree-- a disposition that imports no view by this Court on the merits of the objections tendered by the parents on these issues.

I. STANDING TO APPEAL

The Board of Education, as a corollary of its decision to accept the order below, directed Dr. Hansen not to appeal. Nevertheless, after his resignation was submitted and accepted by the board, Dr. Hansen noted his appeal as Superintendent of Schools. Whatever standing he might have possessed to appeal as a named defendant in the original suit, however, disappeared when Dr. Hansen left his official position. 3 Presumably because he was aware of this, he subsequently moved to intervene under Rule 24(a) of the Rules of Civil Procedure in order to appeal as an individual. Although the trial judge found several reasons why such intervention should be denied, the motion was granted 'in order to give the Court of Appeals an opportunity to pass on the intervention questions raised here * * *.' 4 We agree with the reasoning of the trial court as to Dr. Hansen rather than with its result. The original decision was not a personal attack upon Dr. Hansen, nor did it bind him personally once he left office. And while it may or may not be true that but for the decision Dr. Hansen would still be superintendent of Schools, the fact is that he did resign. He does not claim that a reversal or modification of the order by this Court would make his return to office likely. Consequently, the supposed impact of the decision upon his tenure is irrelevant insofar as an appeal is concerned, since a reversal would have no effect. Dr. Hansen thus has no 'interest relating to the property or transaction which is the subject of the action' sufficient for Rule 24(a), and intervention is therefore unwarranted.

We also find that Mr. Smuck has no appealable interest as a member of the Board of Education. While he was in that capacity a named defendant, the

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Board of Education was undeniably the principal figure and could have been sued alone as a collective entity. Appellant Smuck had a fair opportunity to participate in its defense, and in the decision not to appeal. Having done so, he has no separate interest as an individual in the litigation. 5 The order directs the board to take certain actions. But since its decisions are made by vote as a collective whole, there is no apparent way in which Smuck as an individual could violate the decree and thereby become subject to enforcement proceedings.

The motion to intervene by the parents presents a more difficult problem requiring a correspondingly more detailed examination of the requirements for intervention of right. As amended in 1966, Rule 24(a)(2) permits such intervention

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.

Before its recent amendment Rule 24(a) contained two subdivisions requiring the petitioner to be 'bound by a judgment in the action' or 'so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.' 6 As the trial judge pointed out in his decision to grant intervention to the parents, under the preamendment cases the task of defining what constitutes an 'interest' was typically 'subsumed in the questions of whether the petitioner would be bound or of what was the nature of his property interest.' 7 The 1966 amendments were designed to eliminate the scissoring effect whereby a petitioner who could show 'inadequate representation' was thereby thrust against the blade that he would therefore not be 'bound by a judgment, ' and to recognize the decisions which had construed 'property' so broadly as to make surplusage of the adjective. 8 In doing so, the amendments made the question of what constitutes an 'interest' more visible without contributing an answer. The phrasing of Rule 24(a)(2) as amended parallels that of Rule 19(a)(2) concerning joinder. But the fact that the two rules are entwined does not imply that an 'interest' for the purpose of one is precisely the same as for the other. 9 The occasions upon which a petitioner should be allowed to intervene under Rule 24 are not necessarily limited to those situations when the trial court should compel him to become a party under Rule 19. And while the division of Rule 24(a) and (b) into 'Intervention of Right' and 'Permissible Intervention' might superficially suggest that only the latter involves an exercise of discretion by the court, the contrary is clearly the case. 10

The effort to extract substance from the conclusory phrase 'interest' or 'legally protectable interest' is of limited promise. Parents unquestionably have a sufficient 'interest' in the education of their children to justify the initiation of a lawsuit in appropriate

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circumstances, 11 as indeed was the case for the plaintiff-appellee parents here. But in the context of intervention the question is not whether a lawsuit should be begun, but whether already initiated litigation should be extended to include additional parties. The 1966 amendments to Rule 24(a) have facilitated this, the true inquiry, by eliminating the temptation or need for tangential expeditions in search of 'property' or someone 'bound by a judgment.' It would be unfortunate to allow the inquiry to be led once again astray by a myopic fixation upon...

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