Brumfield v. La. State Bd. of Educ., 14–31010.

• Decision Date: 10 November 2015
• Docket Number: No. 14–31010.,14–31010.
• Citation: 806 F.3d 289
• Parties: Oless BRUMFIELD; et al, Plaintiffs United States of America, Intervenor–Appellee v. LOUISIANA STATE BOARD OF EDUCATION, Defendant–Appellee v. Mitzi Dillon; Titus Dillon; Michael Lemane; Lakisha Fuselier; Mary Edler; Louisiana Black Alliance for Educational Options, Movants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

806 F.3d 289

Oless BRUMFIELD; et al, Plaintiffs

United States of America, Intervenor–Appellee

v.LOUISIANA STATE BOARD OF EDUCATION, Defendant–Appellee

v.Mitzi Dillon; Titus Dillon; Michael Lemane; Lakisha Fuselier; Mary Edler; Louisiana Black Alliance for Educational Options, Movants–Appellants.

No. 14–31010.

United States Court of Appeals, Fifth Circuit.

Nov. 10, 2015.

Teresa Kwong (argued), Torey Brooks Cummings, Mark Lenard Gross, Esq., Deputy Chief Counsel, U.S. Department of Justice, Washington, DC, for Intervenor–Appellee.

Clint Russell Bolick (argued), Jonathan Matthew Riches, Phoenix, AZ, Murphy Fairfax Bell, Jr., Jackson–Bell, Baton Rouge, LA, for Movant–Appellant.

James David “Buddy” Caldwell, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Defendant–Appellee.

Opinion

EDITH H. JONES, Circuit Judge:

The Department of Justice (“DOJ”) filed a motion for further relief in this 40–year–old case in order to gain oversight and some level of control over Louisiana's school voucher program. The program provides dynamic educational opportunities in the form of scholarships for thousands of students—85% of whom were African American in 2013—to attend better public and private schools. The district court granted the DOJ's motion for further relief and thus mandated annual reporting requirements for Louisiana's school voucher program. Concerned by this interference with the voucher program, parents of African–American students and the Louisiana Black Alliance for Educational Options (“Appellants”) moved to vacate the district court's order under Federal Rules of Civil Procedure 59(e), 60(b)(4), and 60(b)(5). The district court denied the motion. We hold that the order concerning the voucher program is beyond the scope of the district court's continuing jurisdiction in this case and is therefore void for lack of subject matter jurisdiction. The district court should have granted the Rule 60(b)(4)motion. The order is reversed and the injunction is therefore dissolved.

I

Given that the Department of Justice challenged Louisiana's voucher program through a forty-year-old lawsuit, it is not surprising that this case has a lengthy and complicated history.

A

Before 1969, Louisiana operated “dual racially segregated systems of pupil assignment.” Brumfield v. Dodd,405 F.Supp. 338, 342 (E.D.La.1975). Any African–American students attending formerly all-white schools “did so under the exercise of ‘freedom of choice’ options,” rather than any non-discriminatory assignment practice. Id.Between 1969 and 1970, almost all school boards were ordered by various federal district courts to begin assigning students on a race-neutral basis. Id.A significant increase in private school attendance coincided with these court orders. Id.The Louisiana State Board of Education (now the Louisiana Department of Education) was empowered by the state legislature to assist these private schools by providing textbooks, classroom materials, and transportation. Id.

In 1971, a group of African–American families commenced this Brumfieldlawsuit in federal court, and the United States intervened in the lawsuit shortly after the filing. Id.at 340. In 1975, a three-judge district court panel held that Louisiana's practice of subsidizing racially discriminatory private schools violated the Equal Protection Clause of the Fourteenth Amendment. Id.at 348. In an order attached to the findings of fact and conclusions of law, the three-judge panel ordered the state to take four actions:

• Cease “distributing or otherwise making available textbooks, library books, transportation, school supplies, equipment, and any other type of assistance, or funds for such assistance, to any racially discriminatory private school or to any racially segregated private school;”

• Implement a process for private schools to be certified as non-discriminatory and thus be eligible for assistance from the state;

• Create an accounting of all assistance provided to racially discriminatory private schools since 1968; and

• Repossess all textbooks and classroom materials that had been given to discriminatory private schools.

The court retained continuing jurisdiction with regard to the issues in the order.

The state operated under the 1975 injunction for a decade before the United States and Louisiana agreed in 1985 to refine through a consent decree the certification process for assistance-eligible private schools. The consent decree required the state to provide the DOJ with copies of all initial certification applications and all annual compliance reports until 1988, copies of all complaints of racial discrimination by private schools applying for certification for as long as the consent decree exists, and a list by category of all the funds provided to each private school for as long as the consent decree exists. This certification regime has come to be known as Brumfieldcertification.

B

In 2012, the Louisiana legislature passed the Student Scholarships for Educational Excellence Act. La.Rev.Stat. Ann. §§ 17:4011–4025. The voucher program provides scholarships to attend public and Brumfield-certified private schools for students whose family income is below 250 percent of the federal poverty line and who are entering kindergarten or previously attended a school receiving a grade of “C” or lower, with preference for students in “D” and “F” schools. Id.at § 17:4013. Applicants to the program list their top five schools in order of preference. The eligible applications are submitted to a third-party vendor, OneApp, that runs a lottery algorithm on the applicant pool. If the highest ranked school on an applicant's list has available seats, the applicant will be awarded a scholarship to that school. If there are fewer seats than applicants to a particular school, the lottery algorithm optimally matches the students with schools, taking into account their preferences. Results are adjusted based on a few statutory preferences, such as having a sibling in a particular school. Id.at § 17:4015(3)(b). Applicants are then informed of their award and given an opportunity to accept or reject it. This lottery process is performed three times a year. The amount of the scholarship is capped at the average per-pupil spending for the public school district in which the applicant currently resides. Id.at § 17:4016(A). If the applicant is offered a slot to attend a private school, and that private school's tuition is less than the per-pupil spending of the applicant's current school, then the amount of the scholarship will be reduced to the amount of the private school tuition. Id.

In 2012–2013, Louisiana received more than 10,000 applications and awarded 4,900 scholarships. More than 90% of the recipients were minorities. The following year, the state awarded roughly 6,800 scholarships, 85% of which went to African–Americans.

C

The DOJ's scrutiny of the voucher program began with a July 20, 2012 letter requesting information from the Louisiana Department of Education. In the letter, the DOJ stated that it wanted to review the possible impact of the voucher program on “Brumfield-approved schools participating in the program, as well as the possible impact on the public schools and/or public school systems” operating under court orders in other cases. To that end, the DOJ requested not only information and documents related to the mechanics of the program but also the name, address, grades, race, and public school history of every student receiving vouchers and every student who had been offered but declined a voucher. Louisiana responded by answering some of the questions, but maintained that the “additional [unanswered] questions appear to be unrelated to Brumfield v. Doddapproval.”

Rather than file a new lawsuit, the DOJ moved to compel discovery under this case in order to get the information it sought about the voucher program. The magistrate judge granted the motion to compel discovery, but specified that the information could only be used in the present case and only by the Civil Rights Division of the DOJ.

The DOJ subsequently moved under Federal Rule of Civil Procedure 59(e)to alter the magistrate judge's order to allow the requested information to be shared within the DOJ and to be used in the various separate school desegregation cases still pending in many Louisiana parishes.¹The magistrate judge granted the motion to amend.

In August 2013, the DOJ filed a motion for further relief. The DOJ requested an order pursuant to the 1985 consent decree enjoining Louisiana from awarding any school vouchers to students who currently attend public school districts subject to ongoing desegregation orders. Up to this point, however, the orders in this case dealt only with the proper steps required for the state to provide money and assistance to non-discriminatory privateschools. The Brumfieldcase never involved any desegregation issues in publicschools. The DOJ alleged no violation of the consent decree or any other constitutional violation relating to the funding of private schools in this case. Instead, the DOJ argued that a further injunction was needed in this case because the state had failed to “seek the approval of the appropriate federal court prior to awarding the vouchers to students” attending public schools that remained subject to desegregation orders in other cases.

A telephone conference was held on September 18, 2013, to discuss the DOJ's pending motion for further relief. Following the conference, the district court entered an order setting a hearing in November and requiring the parties to brief two issues:

(1) Does the desegregation order issued in Brumfield v. Dodd,405 F.Supp. 338 (E.D.La.1975)apply to the State of Louisiana's Student Scholarships for Educational Excellence Program (“Voucher Program”) so as to require the State to obtain authorization from the Court prior to implementation? (2) If the desegregation order applies to the Program, is there any need to amend existing

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