Davis v. East Baton Rouge Parish School Bd.
| Decision Date | 26 February 1996 |
| Docket Number | Civil Action No. 56-1662-A. |
| Citation | 916 F. Supp. 575 |
| Parties | Clifford Eugene DAVIS, Jr., et al. and United States of America v. EAST BATON ROUGE PARISH SCHOOL BOARD, et al. |
| Court | U.S. District Court — Middle District of Louisiana |
Robert C. Williams, Baton Rouge, Louisiana, for Plaintiffs.
Franz Marshall, Department of Justice, Civil Rights Division, Washington, DC, L.J. Hymel, United States Attorney, M.D.LA, Brian Jackson, Assistant U.S. Attorney, Baton Rouge, Louisiana, for the United States.
Charles S. Patin, Jr., William R. D'Armond, Gregg R. Kronenberger, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, L.L.P., Baton Rouge, Louisiana, for East Baton Rouge Parish School Board.
Jack M. Weiss, III, Mark B. Holton, Stone, Pigman, Walther, Wittman & Hutchinson, New Orleans, Louisiana, for Capital City Press.
SUPPLEMENTAL REASONS
On February 22, 1996, the court held a hearing on the motions by the Capital City Press, Bill Pack and the Louisiana Television Broadcasting Corporation d/b/a WBRZ-TV (intervenors), to intervene and to "vacate gag order." For reasons orally given, the court granted the motion to intervene and denied the motion to "vacate the gag order." While it is sufficient for reasons to be orally stated, the court finds that further explanation regarding reasons for denial of the motion to vacate is appropriate.1
Prior to 1954, the East Baton Rouge Parish School Board operated separate schools for white and black children by force of law. This school desegregation case was filed in 1956 following the landmark decisions in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). The history of this litigation has been well documented in several legal decisions, including Davis v. East Baton Rouge Parish School Bd., 721 F.2d 1425 (5th Cir.1983). For present purposes, it suffices to say that the School Board has had a continuing duty under the well settled jurisprudence to eradicate the vestiges of the dual school system. Id.
As the court attempted to explain at the February 22 hearing, the present members of the School Board have expressed a sincere interest in attempting to develop a proposed plan to submit to the court that might finally result in a just conclusion to this case. This is a vitally important matter to the entire community affecting not only the education of the children in this Parish but impacting on race relations generally. The history of this litigation has shown that this is the first time in forty years that a majority of the members of the school board have recognized and accepted their own personal responsibility to eradicate the vestiges of the dual system maintained by their predecessors.2
As the record will reflect, in 1980 this court again found that the East Baton Rouge Parish School Board was operating a dual system of public education based on race, (see 489 F.Supp. 498) and in 1981, by reason of the default of the Board, the court began issuing a series of orders intended to cause desegregation of the public schools (see 514 F.Supp. 869) all rulings were appealed and affirmed by the Court of Appeals. The 1980s, as the record will reflect, saw a series of confrontations between court and Board. Ultimately, the Board and staff adopted an attitude of reluctant compliance with the specific letter of court orders but nothing more.
In recent years the court, counsel for the United States and counsel for plaintiffs-intervenors have carefully monitored the Board's Singleton reports. Numerous status conferences have been held during which counsel for the United States and counsel for plaintiffs-intervenors have pointed out to counsel for the School Board (and other Board representatives) that the reports establish that despite the many orders of the court over the last 15 years, the public schools in East Baton Rouge Parish are still not in compliance with the Constitution. Counsel for the Board has not seriously disputed that position. Counsel for the United States has made plain that further efforts by the Board are required and has indicated that formal pleadings to that end will be forthcoming in the absence of action by the Board.
A little more than a year ago, a new School Board was elected and took office. The court has held status conferences with counsel and on one occasion with all the members of the new Board (there has been one change in the membership since.)
Based on representations made, this court is convinced that for the first time in the forty year history of this litigation, the new School Board acknowledges that it, not the court or any other entity, is charged with responsibility for desegregating the public schools and that it intends to implement that responsibility.
To that end, the Board has engaged a new superintendent and has publicly announced its intention to fashion a desegregation plan. It has begun to move forward.
The new Board now recognizes, as it perhaps did not at first, that there are adverse parties to the litigation who will have a say about whatever plan is fashioned and now are aware that if a consent decree is to be hammered out, the Board must consult with and discuss proposals with the adversary parties. Hence the occasion for the order about which objection is now made. The School Board seeks the opportunity to discuss privately among themselves, with their attorneys and such members of their staff as may be required, all matters relating to a possible plan of desegregation, the opportunity to privately discuss and plan strategy to be used in closed door negotiations with their adversary parties and to privately discuss reactions to those closed door negotiations. In addition, the Board wants to maintain the confidentiality of all such information during the preparation for and negotiations for such a plan and to require that the Board, attorneys and such Board staff as may become privy to such information, keep such information in confidence during these extremely delicate and sensitive activities.
Against this backdrop, on February 6, 1996, the court entered an order at the suggestion of the School Board prohibiting "its members, officers, employees, staff, agents, attorneys and all others acting ... on behalf of the ... Board" from "making any written or oral comments to any person or entity other than representatives and attorneys for litigants ... concerning any aspects of any drafts of desegregation plans ..."3 While no written or oral reasons were given at that time, the parties were intimately familiar with the history of this case and there was no doubt that the order was requested to facilitate the efforts of the School Board in its attempt to expeditiously arrive at a proposal to submit to the court which satisfies the mandate of the Constitution and represents a local community resolution as opposed to a decree imposed upon the community by a "foreign" federal court.
Unfortunately, the order fails to make certain aspects crystal-clear. First and perhaps foremost, the order has been incorrectly interpreted by the intervenors and others as allowing the School Board to promulgate a final desegregation plan which is set in stone and will be summarily approved by the court. Far from it, the order is intended to allow the school board to develop a proposal (regrettably referred to in the order as a "final proposed desegregation plan") to be submitted to the court. Public hearings will be conducted by the Board and by the court before and after the submission of the proposal.
Counsel for intervenors has repeatedly argued that the order allows the School Board to unveil its "final plan" thereby depriving the citizens of this Parish of their First Amendment rights to influence the contents of the "plan." See, e.g., Reply brief of Intervenors filed February 21, 1996, p. 10. Counsel for intervenors again focuses on false issues by citing Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3rd Cir.1994). In Pansy, newspapers intervened to gain access to a settlement agreement of an individual's civil rights action.
This case is readily distinguishable from Pansy () inasmuch as the court is not precluding disclosure of any settlement agreement. To the contrary, the court has expressly authorized any tentative plan or proposal that is reached to be fully disseminated to the public. The court has merely afforded the School Board an opportunity to negotiate in private — a chance for discussion unimpeded by outside sources. Moreover, the product of their negotiations will be a proposed desegregation plan of the School Board (not a settlement agreement between the parties) that must be approved by the court prior to implementation. It will of necessity become a matter of public judicial record, unlike the settlement agreement in Pansy. Moreover, it will, for the first time in forty years be a plan fashioned by the local Board itself — not an order imposed by a federal court.
Even after the intended purpose of the order has been made plain to intervenors by the court and counsel for the School Board, intervenors conveniently overlook the history of this litigation and the obvious difficulties faced by the School Board in arriving at a proposal to submit to the court. Intervenors continue to emphasize the secrecy of the negotiations and the "draconian" effect of the order, rather than placing this matter in proper perspective. Intervenors attempt to obscure the fact that this is a kind of confidentiality order requested by one of the parties and its attorneys to facilitate it in deriving at a tentative proposal to submit to the court, a preliminary step that has yet to be made in the history of this litigation. It is clear that intervenors, while purporting to champion the rights of the public, have done nothing but impede the...
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