Plaquemines Parish School Board v. United States
| Citation | 415 F.2d 817 |
| Decision Date | 15 August 1969 |
| Docket Number | No. 24009.,24009. |
| Parties | PLAQUEMINES PARISH SCHOOL BOARD et al., Appellants, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
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Sidney W. Provensal, Leander H. Perez, New Orleans, La., Luke A. Petrovich, Buras, La., for appellants.
David L. Norman, Frank M. Dunbaugh, Owen M. Fiss, Joseph Ray Terry, Jr., Attys., Dept. of Justice, Washington, D. C., Hugh W. Fleischer, Atty., Dept. of Justice, New Orleans, La., Louis C. La Cour, U. S. Atty., John Doar, Asst. Atty. Gen., for appellee.
Before GODBOLD and SIMPSON, Circuit Judges, and McRAE, District Judge.
The Commission Council of Plaquemines Parish, Louisiana, and the Parish School Board appeal from the district court's permanent injunction of June 27, 1967, against the Commission Council and the School Board with respect to the desegregation of the public schools of Plaquemines Parish. The district court entered a Jefferson-type, freedom-of-choice decree.1 By preliminary injunction entered August 26, 1966, it ordered the Commission Council to take no action which would prevent the School Board from operating the public schools during the 1966-67 school year in substantially the same manner, except for the desegregation requirements of the order, as it operated the public schools during the 1965-66 school year. The final decree required desegregation of all grades, including kindergarten, for the school year of 1967-68.
The court's decree was exceptionally detailed and provided, among other things, for parity in school curriculum, equalization of fringe benefits for faculty members, revision of the transportation system, reestablishment of previous school hours, reinstitution of bookmobile service at schools which had previously been afforded the service and improvement of general maintenance and repair, including construction of necessary facilities at the schools within the district.2 Further, the court specifically enjoined the Commission Council and its members from transferring any real or personal property of the Plaquemines Parish Schools for the use of a private school system, and it ordered both the School Board and the Commission Council not to discourage students of Plaquemines Parish from public school attendance and not to encourage students to attend the private schools contemplated. On July 21, 1966, the United States brought this suit3 against the School Board alone pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6(a) and (b). On August 4, 1966, prior to the hearing on a motion for preliminary injunction, on motion of the United States, the district court directed the original defendants to show cause why the Plaquemines Parish Commission Council and its individual members should not be added as defendants.4 Subsequently, the district court ordered addition of the Commission Council and its members as defendants, and the court also ordered that the Commission Council show cause why it should not be enjoined from transferring or otherwise disposing of any school property and temporarily restrained the Commission Council from making such transfers. As indicated above, the district court granted a preliminary injunction on August 26, 1966, similar in terms to the permanent injunction appealed from in the instant case.5
The points raised on appeal divide themselves, roughly, into two categories: (a) objections to procedures adopted by the court below, or to the manner in which the trial court conducted the trial, and (b) attacks upon the findings of fact, conclusions of law and the injunctive provisions of the final decree, in other words, objections going to the merits. We discuss the questions raised in the same order.
Most of the procedural questions are raised by both the School Board and the Commission Council. First, they complain that this action should have been dismissed for the government's refusal to produce evidence to establish its right to file suit under Section 407 of the Civil Rights Act of 1964, 42 U.S.C., § 2000c-6.6 The defendants attempted to learn the names of the complainants and the precise nature of their complaints by directing certain interrogatories to the Department of Justice. The Department refused to answer, and the district court declined to order the Department to do so.
Section 407 provides essentially that when the Attorney General is satisfied that he has received meritorious complaints from the parents of the children in a school system to the effect that the children are being deprived of the equal protection of the laws and when he is further satisfied that the parents are unable to initiate legal proceedings themselves, he may, after notifying the School Board and issuing a certificate verifying the existence of the complaints, file suit for or in the name of the United States against such parties and for such relief as may be appropriate. As noted above, the School Board attempted by discovery procedure to learn the names of the complainants and the nature of their complaints. Failing in this objective, the Board argues that it was precluded from facing its "accusers" and thus denied due process of law. The argument is specious. The accuser is the Attorney General of the United States, and this is a civil suit rather than a criminal one. While it is true that the School Board might need to know the nature of the complaint in order to begin to remedy conditions to the satisfaction of the Attorney General, there can be no doubt that when the Attorney General issues this certificate, the complaint is that Negro students have been denied equal protection of the law because of the continuance of some characteristics of the dual school system. In fact, the School Board through its superintendent was notified that this was the case. The legislative history of the Civil Rights Act of 1964 makes clear that complaining Negro parents are entitled to the anonymity provided by the Attorney General's notification procedure. The determinations upon which the certification of the Attorney General was based are not reviewable. It would not help this School Board to meet the constitutional obligations it has ignored since 19547 to know the names of the particular complaining parents or the precise language of their complaints. This School Board knows full well the nature of this suit. See United States v. Greenwood Municipal Separate School District, 5 Cir. 1969, 406 F.2d 1086.
The Commission Council asserts that it did not receive notice of the government's intention to proceed on a motion for preliminary injunction as required by Rule 65(a), Federal Rules of Civil Procedure.8 This argument fails for a number of reasons. First, it should be noted that the district court's temporary restraining order and the order to show cause, together with the amended complaint, were personally served on the Commission Council and its individual members. These papers fully advised the Commission Council and its members of the nature of the claim against them and of the plaintiff's application for a preliminary injunction. Nor can lack of actual notice be alleged since the president of the Commission Council appeared as counsel for the School Board from the inception of the proceedings below. Moreover, issues raised relevant to the granting of a preliminary injunction are irrelevant to an appeal from the granting of a permanent injunction. 7 Moore, Federal Practice, § 1651; Monfort v. Korte, 7 Cir. 1939, 100 F.2d 615, 617. An order to show cause generally will constitute sufficient notice for the motion for preliminary injunction. 3 Barron & Holtzoff Federal Practice and Procedure (Wright Ed. 1958) § 1433, p. 490. We have no doubt that the appellant Commission Council and its members were on specific notice as to why they were joined as defendants, the relief sought against them and the request for temporary injunction. Finally, Rule 65 (a) does not specify the particular type of notice required in order properly to bring defendants in an injunction proceeding before the trial court. The sufficiency of the written and actual notice is a matter for the trial court's discretion. We find here no abuse of that discretion.
The Commission Council next urges that it was entitled to the right of trial by jury, because the government's suit against it was in the nature of a suit to try the title to land. The government's motion to enjoin the Council, as owner of public school properties, from transferring those properties so as to interfere with the other orders of the court is the only possible foundation for this ingenious but unconvincing argument. This school desegregation suit is strictly an action for injunctive relief from a denial of constitutional rights; it cannot be remotely considered as a suit to try title to land. There is no right to trial by jury in injunction proceedings relevant to school desegregation brought under Section 407, or otherwise.
The Council also argues that because it has completed negotiations for lease of the school property to the School Board that the motion for a mandatory injunction should have been dismissed for mootness. We do not agree. The conduct of the defendant Commission Council throughout this controversy supplies ample proof of the need for it to be under the onus of a court order with respect to its dealings with the defendant School Board. Without the grant of injunctive relief, a strong probability remains that the Commission Council, because of its powerful position in Plaquemines Parish, would once again induce the School Board to transfer school properties back to the Council. Even though violation of constitutional rights may have temporarily ceased, there are ample grounds for injunctive relief.9
The appellant Commission Council also contends that the trial judge should not have denied its motion to...
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