78 F.3d 920 (5th Cir. 1996), 96-30153, Davis v. East Baton Rouge Parish School Bd.

Docket Nº:96-30153.
Citation:78 F.3d 920
Party Name:Clifford Eugene DAVIS, Jr.; United States of America, Plaintiffs-Appellees, v. EAST BATON ROUGE PARISH SCHOOL BOARD, a corporation, Defendant-Appellee, v. CAPITAL CITY PRESS; Bill Pack; Louisiana Television Broadcasting Corporation, doing business as WBRZ-TV, Intervenors-Appellants.
Case Date:March 15, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
FREE EXCERPT

Page 920

78 F.3d 920 (5th Cir. 1996)

Clifford Eugene DAVIS, Jr.; United States of America,

Plaintiffs-Appellees,

v.

EAST BATON ROUGE PARISH SCHOOL BOARD, a corporation,

Defendant-Appellee,

v.

CAPITAL CITY PRESS; Bill Pack; Louisiana Television

Broadcasting Corporation, doing business as

WBRZ-TV, Intervenors-Appellants.

No. 96-30153.

United States Court of Appeals, Fifth Circuit

March 15, 1996

Page 921

[Copyrighted Material Omitted]

Page 922

Robert C. Williams, Baton Rouge, LA, for Clifford Eugene Davis, Jr., plaintiff-appellee.

Brian Anthony Jackson, U.S. Attorney's Office, Baton Rouge, LA, for United States of America, plaintiff-appellee.

Charles L. Patin, Jr., Baton Rouge, LA, Michael Charles Garrard, Gregg R. Kronenberger, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, LA, for East Baton Rouge Parish School Board, a Corporation, defendant-appellee.

Jack M. Weiss, Mark Benjamin Holton, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, LA, for intervenors-appellants.

Thomas S. Leatherbury, Vinson & Elkins, Dallas, TX, Merril Jay Hirsh, Curtis E. Von Kamn, Farhana Y. Khera, Ross, Dixon and Masback, Washington, DC, Andrew James Logan, Vinson & Elkins, Houston, TX, for amici curiae.

Appeal from the United States District Court for the Middle District of Louisiana.

Before KING, GARWOOD and DENNIS, Circuit Judges.

KING, Circuit Judge:

Capital City Press, Bill Pack, and the Louisiana Television Broadcasting Corporation d/b/a WBRZ-TV appeal from the district court's February 22, 1996 denial of their motion to vacate the court's February 6, 1996 confidentiality order, from the district court's March 1, 1996 amended confidentiality order, and from the district court's March 8, 1996 order for private sessions. We must decide whether the district court's orders violate news agencies' rights protected by the First Amendment.

I. BACKGROUND

Prior to 1954, the East Baton Rouge Parish school system was racially segregated as a matter of law. This school desegregation case was filed in 1956 following the decisions in Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and Brown v. Board of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). For the past forty years, the district court has maintained continuing jurisdiction over this case under Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), to ensure that the East Baton Rouge Parish School Board (the "Board") fulfills its duty to eliminate all vestiges of segregation from its school system. The history of this case is set out in greater detail in past decisions of this court, including Davis v. East Baton Rouge Parish Sch. Bd., 721 F.2d 1425 (5th Cir.1983).

Page 923

In late January or early February 1996, the newly elected Board, through its newly retained counsel, indicated to the district court that it was interested in formulating a proposed desegregation plan to finally end this litigation. The Board members indicated to the district court that they wished privately to discuss among themselves, their attorneys and some members of their staff, all aspects of a possible desegregation plan, as well as privately to plan the Board's strategy for negotiating the proposed plan with the adverse parties to the litigation.

At the Board's request, on February 6, 1996, the district court entered an order prohibiting the members of the Board, its attorneys, employees, and other agents from discussing "any aspects of any drafts of desegregation plans" with anyone other than the parties to the litigation (the "February 6th order"). 1 The Board did not make a formal motion requesting this order, nor did the district court enter findings or written or oral reasons supporting the order. On February 14, 1996, the Capital City Press, Bill Pack, and the Louisiana Television Broadcasting Corporation d/b/a WBRZ-TV (collectively, the "news agencies") filed a motion to intervene to challenge the February 6th order as a violation of their First Amendment rights, and a motion to vacate the February 6th order. The Capital City Press publishes The Advocate, the Baton Rouge daily newspaper. Bill Pack is a reporter for The Advocate who has successfully investigated the Board's actions regarding desegregation in the past. The Louisiana Television Broadcasting Corporation d/b/a WBRZ-TV broadcasts one of the local news programs in Baton Rouge.

On February 22, 1996, the district court held a hearing on the news agencies' motions, and entered an order granting the motion to intervene and denying the motion to vacate (the "February 22nd order"). At the hearing, the district court orally explained its reasons for entering the February 6th order and for denying the news agencies' motion to vacate the February 6th order. The court, citing the oath of silence taken by the participants in the Constitutional Convention, reasoned that "there are some things, some public matters, that are better discussed and argued about in private than they are in public." The district court noted that although past East Baton Rouge Parish School Boards had been unwilling to accept their responsibility to desegregate the schools, the present Board was finally ready and willing to formulate a desegregation plan. The court stated that it issued the February 6th order to give the Board an opportunity to hash out the relevant issues in private, without interference from the public or the news media, in order to facilitate and expedite the Board's formulation of a proposed desegregation plan.

On February 26, 1996, the district court entered written Supplemental Reasons for its February 6th and 22nd orders (the "February 26th order"). The February 26th order reiterated the history of unwillingness on the part of the Board, and its current readiness to work to desegregate the school system. The district court stated that in entering its February 6th order, it "merely afforded the School Board an opportunity to negotiate in private--a chance for discussion unimpeded by outside sources." The court emphasized that its order expressly authorizes the Board to disseminate its proposal to the public once

Page 924

it has been created. Additionally, the court rejected the news agencies' arguments that the February 6th order was procedurally defective because it was entered without a written motion, without supporting findings, or without affording the press or public notice and an opportunity to be heard. The court stated that "the [February 6th] order is necessary to afford the members of the School Board a realistic chance at arriving at a proposed desegregation plan." The court also justified the February 6th order as an exercise of its equitable powers to fashion orders in desegregation cases under Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The court admitted that the order may have been "inartfully drawn," in that it applied to all of the more than 7,000 School Board employees, and accordingly, the court directed counsel for the Board to prepare and submit an amendment. The court concluded, however, that "[t]he necessity for the [February 6th] order clearly outweighs the 'amorphous "hope to hear" ' rights of the news media." Finally, the court asserted that "there are no practical alternatives that would effectively safeguard the Board's progress in bringing this matter to a conclusion after forty years."

After filing a notice of appeal, on February 29, 1996, the news agencies filed an Emergency Motion for Expedited Appeal of District Court's Order Refusing to Vacate Confidentiality Order, and, Alternatively, Emergency Petition for Writ of Mandamus, as well as their original appellants' brief. On March 1, 1996, the district court entered an order amending the February 6th order by limiting the scope of the order to the members of the Board, the Superintendent, the Board's attorneys, and twenty-three specifically named staff members and employees (the "March 1st order" or the "confidentiality order"). 2

On March 4, 1996, the news agencies filed an amended notice of appeal and an amended emergency motion for expedited appeal/petition for writ of mandamus, adding review of the March 1st order to their appeal. Also on March 4th, the Board filed a motion to dismiss the appeal, to which the news agencies responded. On March 7, 1996, the Board filed a memorandum in opposition to the motion to expedite the appeal. Later that day, we granted the news agencies' motion to expedite their appeal and we denied the Board's motion to dismiss.

On March 8, 1996, the district court entered a third order relating to the confidentiality of the Board's activities in formulating a desegregation plan (the "March 8th order"). The March 8th order directed the Board to conduct private meetings to compose a proposed desegregation plan and ordered the participants in the meetings to keep the meetings and any drafts of desegregation plans confidential. 3 Having learned

Page 925

that the Board intended to meet secretly over the weekend of March 9 and 10, 1996, the news agencies immediately filed an emergency motion for a stay of the March 8th order pending this appeal. We granted the news agencies' motion and stayed the March 8th order.

On March 11, 1996, the news agencies filed a second amended notice of appeal, appealing from the March 8th order, as well as the March 1st order and the February 22nd order denying the news agencies' motion to vacate the February 6th order.

II. DISCUSSION

In addressing this interlocutory appeal by a non-party, we must first examine two preliminary issues: whether appellate jurisdiction exists and whether the news agencies have...

To continue reading

FREE SIGN UP