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

• Decision Date: 28 July 1982
• Docket Number: Nos. 81-1792,81-2062,s. 81-1792
• Citation: 692 F.2d 623
• Parties: 7 Ed. Law Rep. 492 UNITED STATES of America, Plaintiff-Appellee, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION, et al., Defendants-Appellees, and Clay Quality Education II, Inc. and South Bend Branch of the National Association for the Advancement of Colored People, Proposed Intervenors, Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 623

692 F.2d 623

7 Ed. Law Rep. 492

UNITED STATES of America, Plaintiff-Appellee, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION, et al., Defendants-Appellees, and Clay Quality Education II, Inc. and South Bend Branch of the

National Association for the Advancement of

Colored People, Proposed Intervenors, Appellants.

Nos. 81-1792, 81-2062.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 18, 1982.

Decided July 28, 1982. ^*

Opinion Oct. 14, 1982.

Donald A. Schabel, Indianapolis, Ind., Tresa Demachak, N.A.A.C.P., New York City, for proposed intervenors, appellants.

Franklin A. Morse, II, Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, Ind., for defendants-appellants.

Louise Lerner, Civ. Rights Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, BAUER, Circuit Judge, and DOYLE, Senior District Judge. ^**

CUMMINGS, Chief Judge.

The United States filed this suit in February 1980 against the South Bend Community School Corporation, its superintendent, its Board of School Trustees and the 7 members thereof alleging that defendants had engaged in various acts of discrimination with the intent and effect of segregating students and faculty on the basis of race in the South Bend, Indiana public school system. The suit was brought under Section 407 of Title IV of the Civil Rights Act of 1964 (42 U.S.C. Sec. 2000c-6) and Section 207 of the Equal Educational Opportunities Act of 1974 (20 U.S.C. Sec. 1706). The Government sought an injunction prohibiting defendants from discriminating on the basis of race or color in operating the schools within territory served by the South Bend Community School Corporation and requiring defendants to develop and implement a desegregation plan which would remove "all vestiges of prior discrimination."

The district court, 511 F.Supp. 1352, simultaneously entered a consent order submitted by the parties and calling for defendants to develop and implement a desegregation plan for student assignments by the beginning of the 1981-1982 school year. The crux of the plan was to provide that black students in each school would be within 15% of the total percentage of black students in the school system. The plan was also to ensure that student transportation or school closings would fall equitably on all racial groups. Faculty assignments were to be adjusted by the beginning of the 1980-1981 school year so that the faculty of each school would reflect the racial composition, teaching experience and teaching disciplines of the faculty as a whole. The plan was also to provide for ancillary relief with respect to staff training, curriculum evaluation and revision, equal quality facilities, and substantially equal discipline practices.

Under the consent order, the school board developed a new faculty assignment plan, which went into effect at the beginning of the 1980-81 school year. In addition, the school board enlisted community support for the development of its new student assignment plan. A Citizen's Advisory Committee was formed, and over 300 citizens, many of them residents of Clay Township, volunteered to serve on subcommittees. Subcommittees met over 150 times between February and December 1980, and nearly 200 people actively participated in the meetings. All meetings were open to the public and were given extensive newspaper publicity. The subcommittees' recommendations were subsequently reported to the school board by the Citizen's Advisory Committee.

In the meantime, the school board's planning team formulated a number of alternative desegregation plans during the fall of 1980, and in late November decided on a recommended plan. This process was given extensive local media coverage, and, on December 17, 1980, the precise details of the proposed plan were made available to the public and the media in printed form and were aired on the local public television station. During the months December 1980 to February 1981, the school board held a dozen special meetings devoted solely to the plan. The meetings were heavily publicized in school newsletters as well as in the local news media, and all citizens were invited to speak at the meeting and were encouraged as well to submit written comments. Throughout this process, the school board made it known to the public that it was operating on a timetable which required implementation of a desegregation plan by the beginning of the 1981-82 school year.

At the conclusion of these proceedings, during a meeting on February 26-27, 1981, the Board of School Trustees passed a resolution adopting a desegregation plan for student assignments. On February 27, 1981, the parties to this suit submitted to the district court a proposed consent order incorporating the plan. The plan was subsequently revised, resubmitted to the district court on April 3, 1981, and was adopted by that court on April 17, 1981. The validity of the plan is not before us.

On February 26, 1981, the day before the parties hereto first submitted to the district court the proposed consent order incorporating the desegregation plan, appellant Clay Quality Education II, Inc. (Clay) sought leave to intervene as a defendant. Clay is an Indiana not-for-profit corporation whose members are parents of children in the South Bend school system. Clay seeks to represent its members' children and all other students in the school system. If Clay's intervention were granted, it planned to request the district court to vacate the first consent order because there was no finding by the court or admission by the defendants of a constitutional violation. Clay said it would also answer the Government's complaint by denying any intentional racial discrimination and would file a cross-claim contending that defendants' "dismantling of the neighborhood school system deprived students and their parents of liberty and property without due process of law." Subsequently Clay contended that the district court had no subject matter jurisdiction.

Four days after the desegregation plan was submitted to the district court, the South Bend Branch of the National Association for the Advancement of Colored People (NAACP) also sought leave to intervene, but as a plaintiff. It sought to challenge the desegregation plan on behalf of black children in the school district and their parents. It also sought to challenge the transfer of students in North Liberty Township, an all-white area, from the South Bend school system to an adjoining all-white school system. This transfer had been approved by the school board after the entry of the initial consent order in 1980.

Judge Sharp held a hearing on the motions to intervene on March 5, 1981. The Government and defendants opposed intervention by Clay and the NAACP. However, in an attempt to resolve the NAACP's objections to the consent decree, the parties subsequently met with it. This resulted in the submission of a revised consent decree on April 3, 1981, and, as noted, it was this revised decree that was entered by the district court on April 17, 1981.

In the memorandum and order entered on April 17, 511 F.Supp. 1352, the district court inter alia denied the NAACP's and Clay's motions to intervene. As the court noted, the defendants opposed the NAACP's intervention on the grounds that it was adequately represented by the Attorney General of the United States and that its application was untimely.

Judge Sharp stated that this Court had set the standard to measure the adequacy of representation in school desegregation cases in United States v. Board of School Commissioners of the City of Indianapolis, 466 F.2d 573, 575 (7th Cir. 1972), certiorari denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271. There we quoted the Fifth Circuit's opinion in Martin v. Kalvar Corp., 411 F.2d 552, 553 (5th Cir. 1969), stating that "representation is adequate if no collusion is shown between the representative and an opposing party, if the representative does not have or represent an interest adverse to the proposed intervenor and if the necessary representative does not fail in the fulfillment of his duty." See also Meridian Homes Corporation v. Nicholas W. Prassas & Company, 683 F.2d 201 at 205 (7th Cir., 1982). The district judge found that the NAACP failed to show inadequacy of representation by the Justice Department and that there was no showing of collusion between the parties. He noted that the NAACP admitted that it and the Government had a similar goal and that the NAACP had not shown that counsel for the Government failed to fulfill his duty. Because the district court held that the NAACP did not carry its burden regarding the inadequacy of representation, its motion to intervene was denied without consideration of timeliness.

As to Clay's motion to intervene, the court remarked that it resembled "Citizens of Indianapolis for Quality Schools" which was denied intervention in the Indianapolis desegregation case because that would-be intervenor had also not shown that the school board was inadequately representing its interests. United States v. Board of School Commissioners of the City of Indianapolis, supra, 466 F.2d at 575-576. In response to Clay's argument that it should be permitted to intervene because defendants too eagerly adopted the desegregation plan, the court pointed out that the Indiana legislature had required the defendant Board of Trustees to adopt a plan of desegregation surpassing minimal constitutional standards by requiring integration to the fullest extent "reasonable, feasible and practical." Ind.Code Sec. 20-8.1-2-3. The opinion observed that Clay could seek redress in the state courts if defendants had violated Indiana law. Clay's contention that it wanted to prevent the defendants from "dismantling the neighborhood school system" was rejected because there was no constitutional or statutory right to attend a neighborhood school as held in United States v. Perry County Board...