U.S. v. South Bend Community School Corp.

• Decision Date: 23 June 1983
• Docket Number: No. 82-2910,82-2910
• Citation: 710 F.2d 394
• Parties: 12 Ed. Law Rep. 244 UNITED STATES of America, Plaintiff-Appellee, and Mary Laura Brookins, et al., Plaintiffs-Appellants, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 394

710 F.2d 394

12 Ed. Law Rep. 244

UNITED STATES of America, Plaintiff-Appellee and Mary Laura Brookins, et al., Plaintiffs-Appellants, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION, et al., Defendants-Appellees.

No. 82-2910.

United States Court of Appeals Seventh Circuit.

Argued April 4, 1983.

Decided June 23, 1983.

David W. Albert, South Bend, Ind., for plaintiffs-appellants.

Louise A. Lerner, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Kathleen K. Brickley, South Bend, Ind., for defendants-appellees.

Before BAUER and POSNER, Circuit Judges, and JAMESON, Senior District Judge. ^*

POSNER, Circuit Judge.

This is the second time in recent months that we have been asked to reverse an order refusing to allow intervention, entered by the district judge who is presiding over the South Bend, Indiana school desegregation case. In the previous case, United States v. South Bend Community School Corp., 692 F.2d 623 (7th Cir.1982), the National Association for the Advancement of Colored People and a group of South Bend parents called Clay Quality Education II were the would-be intervenors. Although they were not allowed to intervene, their objections to the proposed consent decree led the parties to the suit--the Department of Justice and the South Bend school board--to renegotiate the decree. The renegotiated decree was approved by the district court on April 17, 1981. It was not until September 8, 1981--the day the school year began and the decree went into effect (this court having on August 5 vacated its stay of the decree pending appeal, see 692 F.2d at 627)--that the would-be intervenors in the present case, a group of mostly black parents known as the "Brookins class," filed their motion to intervene. (Actually, they filed an independent lawsuit against the school board, but consented to have their complaint treated as a motion to intervene in the Justice Department's suit.) The district court, 95 F.R.D. 407 (D.C.1982), denied their motion, and they appeal.

Our previous decision, along with many similar decisions in this and other circuits, see, e.g., United States v. Board of School Comm'rs of Indianapolis, 466 F.2d 573 (7th Cir.1972); Penick v. Columbus Education Ass'n, 574 F.2d 889 (6th Cir.1978) (per curiam); Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1133 (3d Cir.1982), largely disposes of this appeal. In dealing in our previous decision with the NAACP's motion to intervene, we pointed out that Rule 24(a)(2) of the Federal Rules of Civil Procedure creates a right to intervene only if the interest of the would-be intervenor is not adequately represented by an existing party, and that since both the NAACP and the Department of Justice wanted the same thing--desegregation of the South Bend public schools--the Department of Justice was presumed to be an adequate representative of the NAACP's interest. 692 F.2d at 628. The Brookins class has the same interest as the NAACP and so of the Department--desegregating the South Bend public schools. No more than in the previous round is there any allegation that the Department of Justice is incompetent, or acting in bad faith, or colluding with the school board.

The appellants note the statement in our previous opinion that "the NAACP has not attacked the proposed plan as constitutionally or otherwise inadequate and has merely suggested improvements," id., and point out that they do contend the plan is inadequate and unconstitutional. But the quoted statement was an observation, not a holding. Adequacy of representation and the substantive nature of the would-be intervenor's challenge are analytically distinct. If a parent could intervene in a school desegregation suit as of right merely by stating his concern in constitutional terms, or by denouncing the decree rather than seeking to modify it incrementally, the requirement of adequacy of representation would be a dead letter, and school desegregation suits would become unmanageable.

Nor was the Brookins class...