834 F.2d 1171 (5th Cir. 1987), 87-1576, United States v. Overton

CourtUnited States Court of Appeals (5th Circuit)
Citation834 F.2d 1171
Date15 December 1987
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dedra Estell OVERTON, et al., Plaintiffs-Intervenors, Appellants, v. TEXAS EDUCATION AGENCY, et al., Defendants-Appellees. Samantha PRICE, et al., Plaintiffs-Appellants, v. AUSTIN INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.
Docket Number87-1576,87-1635.

Page 1171

834 F.2d 1171 (5th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,

v.

Dedra Estell OVERTON, et al., Plaintiffs-Intervenors, Appellants,

v.

TEXAS EDUCATION AGENCY, et al., Defendants-Appellees.

Samantha PRICE, et al., Plaintiffs-Appellants,

v.

AUSTIN INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.

Nos. 87-1576, 87-1635.

United States Court of Appeals, Fifth Circuit

December 15, 1987

Page 1172

Napoleon B. Williams, Jr., Julius L. Chambers, New York City, for Price, et al.

Norma V. Cantu, Maldef, Albert H. Kauffman, San Antonio, Tex., Antonia Hernandez, E. Richard Larson, Los Angeles, Cal., for Diana Castaneda.

Wm. Bradford Reynolds, Clint Bolick, Dennis J. Dimsey, David K. Flynn, Washington, D.C., for U.S.

William H. Bingham, James R. Raup, McGinnis, Lochridge & Kilgore, Austin, Tex., for Texas Educ. Agency, et al.

Norma Cantu, San Antonio, Tex., Antonia Hernandez, E. Richard Larson, Los Angeles, Cal., for Herrera.

David Van Os, Austin, Tex., for Harrington, amicus.

James Austin Pinedo, Austin, Tex., interested party for United South Austin.

William H. Bingham, James R. Raup, Austin, Tex., for Austin ISD.

Wm. Bradford Reynolds, Clint Bolick, Spec. Asst. Atty. Gen., Civil Rights Div., Dennis J. Dimsey, David K. Flynn, Washington, D.C., for amicus, U.S.

Appeals from the United States District Court for the Western District of Texas.

Page 1173

Before WILLIAMS and HIGGINBOTHAM, Circuit Judges, and BROWN [*], District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In 1980, after ten years of litigation, the Austin Independent School District consented to a decree contemplating that in three years the school district would be declared unitary and the case dismissed. In July, 1987, some four years after a judicial declaration that the AISD had achieved unitary status, the Overton appellants, Plaintiff-Intervenors in the earlier AISD litigation, requested further relief because AISD allegedly had violated the terms of the consent decree. The district court observed that the case had been dismissed, concluding that it was "no longer empowered to enforce the consent decree."

On August 7, 1987, Price appellants filed a new lawsuit seeking relief similar to that denied in the Overton case. The district court denied their request for a preliminary injunction because the Price-Plaintiffs had failed to prove the required purposeful discrimination. The district court also found that the Price-Plaintiffs were tardy in seeking injunctive relief and, with the opening of schools at hand, the granting of requested relief would have been disruptive, if not impossible, 671 F.Supp. 484.

We are persuaded that the original consent decree is no longer enforceable both by its own terms and because a school district fettered by such a decree does not enjoy unitary status as we have defined it. We accordingly affirm the district court's rejection of the effort to resurrect the Overton litigation. We also are persuaded that the district court properly denied the preliminary injunction in the Price case for failure to demonstrate a likelihood of success on the merits due to a lack of proof of purposeful discrimination, and because of the disrupting effect of the requested relief upon the opening of school.

I

The Overton Case

The Austin desegregation litigation was settled by a consent decree entered on January 2, 1980. 1 One provision of the consent decree is of particular concern here:

For a period of three years from the date of the entry of this Consent Decree, AISD shall remain under the jurisdiction of this Court. This case shall be placed on the inactive docket, but the Court shall be available at all times to perform the duties and functions set out herein. At the end of three years from the date of entry of this Consent Decree and notice to the parties, unless there is objection by the parties hereto, AISD shall be declared to be a unitary school system and this case shall be dismissed.

Thus the consent decree provided specifically that the district court was to retain jurisdiction only for three years, after which AISD would be declared unitary and the case dismissed, unless a party objected.

The Overton-Plaintiffs did object and the parties entered into negotiations that resulted in a motion to dismiss accompanied by a stipulation providing that objections would be withdrawn and AISD declared unitary. The stipulation contemplated that during its life the district court would conduct a hearing if AISD substantially changed its student assignment plan and was said to unlawfully discriminate against AISD students; AISD would then be required to demonstrate why the case should not be reopened. The life of the stipulation was governed by the following provision:

This stipulation shall remain in effect until January 3, 1986, and is enforceable by any of the parties thereto during that period. If Kealing Junior High School is not constructed substantially in accordance

Page 1174

with the schedule contained in Exhibit "A", and paragraph (c) of this stipulation, this stipulation shall be extended until its completion.

On June 14, 1983, the district court entered an order declaring AISD unitary and dismissed the case without prejudice. Kealing Junior High School was completed in September, 1986.

On April 13, 1987, AISD's Board of Trustees adopted a student assignment plan retaining majority to minority transfer, but eliminating most of the busing required by the consent decree. The new plan would cause 16 of a total of 65 elementary schools to be racially identifiable. Overton-Plaintiffs opposed the plan as an "abandon[ment of] the plan of desegregation for grades K-6...." They admit that the Overton case was dismissed but argue that the district court nonetheless retained the power to enforce the consent decree, relying in part upon Dowell v. Board of Education. 2 It is argued, by analogy to consent decrees in other civil litigation, including antitrust and securities cases, that dismissal of the case did not end AISD's obligations under the decree. We are not convinced.

The consent decree is unenforceable for three related reasons. First, it expired by its own terms. The stipulation was to remain in effect until January 6, 1986, or until construction of Kealing Junior High School was completed, whichever occurred later, and was to be "enforceable by any of the parties thereto during that period." (emphasis supplied). While the consent decree does not explicitly provide a date for its termination, it cannot fairly be read to operate in perpetuity, as appellants would have it. The parties negotiated for a three year period within which any party could object further and specifically left the decree open until certain other conditions were met, which were. This bargain loses sense if dismissing the lawsuit did not terminate the consent decree.

Second, the consent decree cannot lie alongside a final declaration that the school district is unitary. The assertion that a district court retains superintendence of a school district by the terms of a consent decree entered in a lawsuit later dismissed cannot be reconciled with the declaration that the district has achieved unitary status and is free of judicial superintendence.

Appellants rely upon Dowell v. Board of Education. 3 After being found unitary, the Oklahoma City school district instituted a reassignment plan that caused some schools to be racially identifiable. In rejecting an attack upon the plan, the district court required proof of discriminatory purpose, holding that earlier findings of discrimination would not suffice. The Tenth Circuit reversed, concluding that the reassignment plan violated the terms of an injunction entered in the litigation. The appellate court placed upon the defendants the burden of showing either that changed conditions required modification of the injunction or that the facts or law no longer required its enforcement; the plaintiffs needed only to demonstrate the order was being violated. 4

The Fourth Circuit reached the opposite conclusion, however, in Riddick v. School Board. 5 The Riddick court explained that a district court was required to retain jurisdiction only until it determined that the district had become unitary; "once the goal of a unitary school system is achieved, the district court's role ends." 6 The Dowell court disagreed with Riddick, suggesting that "the [Fourth Circuit] makes a bridge between a finding of unitariness and voluntary compliance with an injunction." It also suggested that Riddick was inconsistent with our decision in Lee v. Macon

Page 1175

County Bd. of Education, 7 in which we allowed a petitioner in a pending case to amend a school plan after finding that a school was "unitary in nature." The Dowell court pointed to our observation that public school officials, after full responsibility has been returned to them by the federal courts, " 'are bound to take no actions which would reinstitute a dual school system.' " 8 It asserted that "the purpose of court-ordered school integration is not only to achieve, but also to maintain, a unitary school system." 9

Dowell 's description of our jurisprudence is incorrect. We did observe in Lee v. Macon County that a unitary district is "bound to take no actions which would reinstitute a dual school system" and that school districts should maintain unitary status once achieved. 10 In doing so, however, we relied upon the Supreme Court's observation that "in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter ... the racial composition of the schools, further intervention by a district court should not be necessary." 11 Three school years from the declaration of unitary status had not passed, 12 and Judge Hand had not dismissed the suit against the Macon County Board of...

To continue reading

Request your trial
39 practice notes
  • 236 F.Supp.2d 791 (E.D.Mich. 2003), Civ. 02-40289, Big Time Worldwide Concert & Sport Club at Town Center, LLC. v. Marriott Intern., Inc.
    • United States
    • United States District Court (Eastern District of Michigan)
    • January 2, 2003
    ...clearly demand it." Overstreet, 305 F.3d at 573 (emphasis added) (citing Leary, 228 F.3d at 739); see also United States v. Overton, 834 F.2d 1171, 1177 (5th Cir. 1987) ("a preliminary injunction is a drastic remedy for which the movant has a heavy burden." (emphasis added)).......
  • 833 P.2d 70 (Hawai'i 1992), 15263, Birmingham v. Fodor's Travel Publications, Inc.
    • United States
    • Supreme Court of Hawai'i
    • July 20, 1992
    ...publication's contents and makes no warranty as to its contents); Pittman v. Dow Jones & Co., 662 F.Supp. 921, 922 (E.D.La.), aff'd, 834 F.2d 1171 (5th Cir.1987) ("[A] newspaper has no duty, whether by way of tort or contract, to investigate the accuracy of advertisements placed wi......
  • 729 F.Supp. 533 (W.D.Tex. 1990), A-87-CA-483, Price by Price v. Austin Independent School Dist.
    • United States
    • Federal Cases United States District Courts 5th Circuit United States District Courts. 5th Circuit. Southern District of Texas
    • January 12, 1990
    ...in Cause No. A-70-CA-80 expired, as did its power to enforce the Stipulation and the Consent Decree. United States v. Overton, 834 F.2d 1171 (5th The present case was born of an attempt by Plaintiffs to reopen United States v. Texas Education Agency, A-70-CA-80 ( Overton ), by filing a moti......
  • 681 F.Supp. 730 (N.D.Ala. 1988), Civ. A. 70-AR-0251, Lee v. Macon County Bd. of Educ.
    • United States
    • United States District Court of Northern District of Alabama
    • March 18, 1988
    ...are: United States v. Board of Education of Jackson County, 794 F.2d 1541 (11th Cir. 1986); United States v. Overton, 834 F.2d 1171 (5th Cir. 1987); Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987); Dowell v. Board of Education of Oklahoma City, 795 F.2d 1516 (10th Cir. 1986), cert. denied, --......
  • Request a trial to view additional results
2 firm's commentaries
  • How the First Amendment Affects Tort Law
    • United States
    • LexBlog United States
    • December 14, 2012
    ...694 F. Supp. 1216, 1217 (D. Md. 1988) (nursing textbook); Pittman v. Dow Jones & Co., 662 F. Supp. 921, 923 (E.D. La. 1987), aff’d, 834 F.2d 1171 (5th Cir. 1987) (per curiam); Lewin v. McCreight, 655 F. Supp. 282, 284 & n.2 (E.D. Mich. 1987); Sears, Roebuck & Co. v. Employers In......
  • On Suing Publishers
    • United States
    • LexBlog United States
    • April 7, 2011
    ...Pittman v. Dow Jones & Co., 662 F. Supp. 921, 923 (E.D. La. 1987) (newspaper publisher not liable for advertisements), aff’d, 834 F.2d 1171 (5th Cir. 1987); Lewin v. McCreight, 655 F. Supp. 282, 284 & n.2 (E.D. Mich. 1987) (publisher not liable for “defective” formula in book); Demu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT