Bivins v. Board of Public Education and Orphanage for Bibb County Brief for Plaintiffs-Appellants

    IN THE UNITED STATES COURT OP APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 7*1-1971

SHIRLEY BIVINS, et al.,
Plaintiffs-Appellants,

v s .

BOARD OF PUBLIC EDUCATION AND ORPHANAGE FOR BIBB COUNTY, et al.,
Defendants-Appellees.

BRIEF FOR PLAINTIFFS-APPELLANTS

THOMAS M. JACKSON 
655 New Street 
Macon, Georgia 31201

JACK GREENBERG
NORMAN CHACHKIN10 Columbus Circle New York, New York 10019
NANCY J. MOORE 299 Park Avenue New York, New York 10017
ATTORNEYS FOR APPELLANTS



»
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 74-1971

SHIRLEY BIVINS, et al.,
Plaintiffs-Appellants,

v s .

BOARD OF PUBLIC EDUCATION AND - 
ORPHANAGE FOR BIBB COUNTY, et al. ,

Defendants-Appellees.

Appeal from the United States District Court 
for the Middle District of Georgia, Macon Division

CERTIFICATE REQUIRED BY LOCAL RULE 13(a)

The undersigned, counsel of record for the 
plaintiffs Shirley Bivins, et al., certifies that the fol 
lowing listed parties have an interest in the outcome of 
this case. These representations are made in order that 
the Judges of this Court may evaluate possible disquali­
fication or recusal pursuant to Local Rule 13(a):



• -  Vs* £  J» iV

i >i
1. The original plaintiffs who commenced this 

action in 1963 include Shirley Bivins, James Bivins, Larry 
Bivins and Franklin Bivins, minors, by Hester L. Bivins, 
their mother and next friend; Solomon Bouie, Glory Ann 
Bouie and Dorothy Mae Bouie, minors, by Rev. Willie R. 
Bouie, their father and next friend; Joyce Dickey, minor, 
by Rev. E. Grant Dickey, her father and next friend;
Helen Goodrum, Lela Goodrum, Thomas Goodrum, John Goodrum 
and Jo Ann Goodrum, minors, by Thomas Goodrum, their 
father and next friend; Patricia Ann Harper, minor, by 
Abe Harper, her father and next friend; Charlie Bell 
Williams, Sara Jeanette Williams and Tommie Lee Williams, 
minors, by Mrs. Vada D. Harris, their mother and next 
friend; Alice Marie Hart, minor, by Mrs. Willie Mae Hart, 
her mother and next friend; Paul Hill, Jr., Clyne Hill, 
Bernestine Hill and Lucie Mae Hudson, minors, by Inez 
Hill, their mother and next friend; Carolyn Holston, 
Melvin Holston, Lyre Holston, Maxine Holston, and Earnes- 
tine Holston, minors, by Henry Holston, their father and 
next friend; Solomon Hughes III, minor, by Solomon Hughes 
Jr., his father and next friend; Billy Joe Lewis, Harold 
Martin Lewis, Yvonne Dianne Lewis, Ray Charles Lewis and 
Estella Marie Lewis, minors, by Ray Lewis, their father

2



*

and next friend; Merrit Johnson, Jr. and Pamela Sue 
Johnson, minors, by Merrit Johnson, their father and 
next friend; Willie Howard, Jr., Delores Howard and 
Randolph Howard, minors, by Gertrude Howard, their mother 
and next friend; Delmarie McDow, minor, by Wyatt J. McDow, 
her father and next friend; Lois Farmer, Larry Stewart,
Maxine Stewart, Joe L. Stewart and Lolita Rutland, by 
Dorothea Stewart, their mother and next friend.

2. The original plaintiffs above named com­
menced and maintained this action pursuant to F.R. Civ. P.
23 on behalf of "all other Negro children and their parents 
in Bibb County who are similarly situated."

3. The parties joined as plaintiffs and repre­
sentatives of the original plaintiff class by the District 
Court in its order of March 13, 197^> include Mr. and Mrs. 
Julius C. Adams; Mr. Andrew Dillard; Mrs. Mary E. Deshazler; 
Mrs. Minnie Seabrooks; Mrs. Jacquelyn Turner; Mr. Alfred
L. Sandlfer; Mrs. Lillian Nixon; Mrs. Jennie M. Harris;
Mr. and Mrs. Melvin Cheney; Mr. and Mrs. James Mays;
Mrs. Lucille Wells; Mr. and Mrs. Albert Hill; Mrs. Mary 
C. Jones; Mrs. Thelma Bradley; Mr. and Mrs. Charles Blackmon; 
Mrs. Grade Sandifer; Mrs. Irene Mallory; Mr. and Mrs.
Joseph Rodgers; Mr. and Mrs. J. C. Walker; Mr. Walter 
Williams; Mrs. Lillie M. White.

3



The parties joined as plaintiffs and rep­
resentatives of a new class of white elementary students 
and their parents by the District Court in its order of 
March 13, 1974, include Mr. and Mrs. Lee A. Adams;
Mrs. Gloria W. Harden; Mr. and Mrs. Tommy Joe Neyman;
Mrs. L. H. Matthews; Mr. and Mrs. Wilson Reich, Jr.;
Mr. and Mrs. Marvin P. Wilson; Mr. and Mrs. D. H. Ethridge; 
Mrs. Margaret Paircloth; Mr. and Mrs'. George Crutchfiled; 
Mr. and Mrs. Eddie Battle; Mr. and Mrs. W. R. Woodall;
Mr. and Mrs. C. J. Peacock, Jr.; Mr. and Mrs. J. D. Daniel;
Mr. and Mrs. Joseph B. Stanley; Mr. and Mrs. George R. 
Small; Mr. and Mrs. John E. Avera; Mr. John B. Sheppard;
Mr. and Mrs. Glenn R. Wiseman; Mr. and Mrs. Roy G. Miller;
Mr. and Mrs. Blois C. Grissom; Mrs. Frances Blackburn;
Mr. and Mrs. Edward Moskaly; Mr. and Mrs. Hubert R. Moody; 
Mr. and Mrs. Ernest L. Smith; Mr. and Mrs. D. F. Hidle;
Mr. William C. Mauder; Mr. W. Elliott Dunwody, III, Mr. 
and Mrs. R. L. Merritt; Mr. and Mrs. Tommy C. Wood, Sr.; 
Mrs. H. L. Land; Mrs. Linda Kay Bracewell; Mr. and Mrs.
Richard J. Story.

5. The defendants include Board of Public Edu­
cation and Orphanage for Bibb County; F. Emory Greene;
R. Lanier Anderson, III; Bruce A. Hettel; William S. 
Hutchings; Mrs. Sigfried Dayon; Dr. R. J. Martin; Mrs.



»
Dolores J. Cook; Larry G. Justice; Mayor Ronnie Thompson; 
T. Louie Wood, Jr.; Grover C. Combs; Joseph E. Taylor;
Dr. L. Linton Deck, Jr.

6. The unsuccessful applicants for Interven­
tion as plaintiffs and representatives of the original 
plaintiff include Rev. Julius C. Hope, next friend of 
Tonya Hope, minor; Ralph Wesley, next friend of Peggie 
Wesley and Theresa Wesley, minors; Leonard Ussery, next 
friend of Arleen Ussery, Carolyn Ussery, Jamie Ussery and 
Leonard Ussery, Jr., minors; Matthew Hamilton, next 
friend of Matthew Hamilton and Keith Hamilton, minors; 
Mrs. Edna Rozier, next friend of David Rozier, minor;
Rev. A. F. Holloway, next friend of Arthur Holloway 
and Faye Holloway, minors; Mrs. Annie Smart, next friend 
of Charles Smart, Cornelius Smart and Camille Smart, 
minors; Mrs. Betty Willis, next friend of Venessa Willis, 
Vincent Willis and Victor Willis, minors; Rev. Cornelius 
Demps, next friend of Beverly Ann Demps, Carolyn Marie 
Demps, Keith Dwayne Demps and Lashelle Denice Demps, 
minors; William Ellis, Jr., next friend of Valerie Ellis, 
Theresa Ellis and Angela Ellis, minors; George Cornelius, 
next friend of Anthony George Cornelius and Phillip Keith 
Cornelius, minors; Mrs. Betty Henderson, next friend of 
Alton Leon Henderson, minor; Edgar Harrison, next friend

5



t
of Dwayne Harrison, minor; Mrs. Marjorie Moore, next 
friend of Carol Louise Moore, minor; Solomon Hughes, 
next friend of Elaine Hughes, Pamela Renee Hughes,
Jerome Hughes, Michael Hughes, Derrick Hughes and Sheila
Faye Hughes, minors; Mrs. Hertha Mims, next friend of 
Anthony C. Pitts, Cherlyne E. Pitts and Andrea Joel 
Mims, minors; William C. Randall, next friend of Dav/n 
Randall, Jeffrey Randall and Allison Randall, minors;
Mrs. Josephine May, next friend of Christan May, minor;
Mrs. Willie J. May, next friend of Reginald May, miner;
Mrs. Mary Horton, next friend of Angelia Horton and 
Tommy Horton, minors; Ervin H. White, next friend of 
Tony White and Liza White, minors; Arthur Stephens, next 
friend of Lisa Stephens, Mark Stephens and Cherry Stephens, 
minors; Mrs. Mary Harvey, next friend of Vanessa Harvey 
and Agnes Harvey, minors.

/s/ Nancy J. Moore__________
Attorney of Record for Plaintiffs-Appellants.

6



»
I N D E X

Page
Table of Authorities............................  iii
Preliminary Statement..............................  1
Issues Presented for Review. . ....................  3
Statement of Facts ................................  ^

History of the Case..........................  ^
Proceedings Since This Court's

Last Remand............................... 6
The Procedural Issues Raised Below............ 10

ARGUMENT —
I. The district court erred ir. holding 

that the original named plaintiffs are no longer adequate representatives 
of the plaintiff class.................  15
A. Once the court determined that the

suit could be maintained as a class action, the mooting of the claims 
of most of the named plaintiffs did not render them inadequate repre­
sentatives of the class...............  18

B. Assuming that the original named student-plaintiffs no longer enrolled 
in the school system are not adequate class representatives, the remaining 
plaintiff currently enrolled In the 
system can properly represent the
entire class ........................  22
1. Plaintiff Bivins' current 

status as a high school 
student does not render him an inadequate representative 
of the entire class..............  23

i



II.

III.

»

2. Applying established standards 
for determining adequacy, plain­
tiff Bivins is a proper repre­
sentative of the class............

Assuming that the original named student-plaintiffs are no longer 
adequate representatives of the class , 
the district court erred in joining additional court-selected black plain­
tiffs and denying the motion of 
petitioners to intervene ..............
A. The district court had no powerto order the random selection of 

members of the class and to join 
such randomly selected persons as 
involuntary parties plaintiff........

B. If the original named student-
plaintiffs are no longer adequate 
representatives of the class, 
petitioners were entitled to inter­
vene as a matter of right.............

C. Even if petitioners were not en­titled to intervene as a matter of 
right , and even if the court had the power to join randomly selected 
class members as parties , the dis­trict court abused its discretion in denying petitioners* application 
to intervene in favor of joining such randomly selected persons as parties and representatives of the 
class..............................

The district court erred in joining 
on its own initiative a class of white students and their parents as 
parties to this action, whether as 
plaintiffs or defendants..............
A. The district court had no power 

to join, on its own initiative, 
a class of white students and their parents as parties to this action. .

Page

26

29

32

38

40

47

48

ii



I
Page

B, Even if the district court had
the power to join a class of white
students and their parents asparties to this action, there was
no basis for ordering joinder at
this late stage of the litigation. . . 54

IV. The district court should be ordered 
to comply with this Court's mandate 
cf May 3, 1972, by immediately pass­
ing on the merits of the three plans 
before it at that time and ordering 
the implementation of one of those 
three plans before the 1974-1975 
school t e r m ............................  57

Conclusion......................................  ^

Table of Authorities
Cases:
Acree v. County Bd. of Educ., 458 F.2d 486 (5th

Cir.), cert, denied, 409 U.S. 1006 (1972) . .
Alexander v. Holmes County Bd. of Educ., 396

U.S. 19 (1 9 6 9)..............................
Barr̂  Rubber Products Co. v. Sun Rubber Co. ,425 F.2d 1114 (2d Cir. 1970). . . . . . . . .
Bivins v. Bibb County Bd. of Educ., 424 F.2d

97 (5th Cir. ................................
Bivins v. Bibb County Bd. of Educ., 460 F.2d

430 (5th Cir. 1972) ........................
Bivins v. Board of Public Educ. , 342 F.2d 229

(5th Cir. 1965) ............................
Boykins v. Fairfield Bd. of Educ. , 421 F.2d

1330 (5th Cir. 1970)...................... .

62

8 ,

55

4

6 ,

4

60

59

58

, 61

iii



1 PaRe
Brown v. Board of Educ., 446 F.2d 75 (5th Cir.

1971). ...................................... 6 0 , 61

Brown v. Gaston County Dyeing Machine Co.,
457 F. 2d 1377 (4th Cir.), cert, denied,
409 U.S. 982 (1972).......................... 18

Clark v. Board of Educ., 465 F.2d 1044 (8th 
Cir. 1972), cert, denied, 413 U.S. 923 
(1973) ...................................... 61

Coleman v. Humphreys County Memorial Hospitals,
55 F.R.D. 507 (N.D. Miss. 1972).............. 24, 25

Cooper v. Aaron, 358 U.S. 1 (1958).. . . . . . . . . 61

Crosby Steam, Gage & Valve Co. v. Manning,Maxwell & Moore, 51 F.Supp. 972 (D. Mass.
1 9 4 3 ) ................................ . . . . 55

Cypress v. Newport News Gen'l & Nonsectarian 
Hospital Ass'n, 375 F.2d 648 (4th Cir.
1967)........................................ 18

Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y. 1968) . 41
Eisen v. Carlisle & Jacquelin, 391 F.2d 555

(2d Cir. 1968) .............................. 46
English v. Seaboard Coast Line R.R. Co.,

465 F.2d 43 (5th Cir. 1972).................. 49, 50
Fair Housing Development Fund Corp. v. Burke,55 F.R.D. 414 (E.D.N.Y. 1972)................
Gatling v. Butler, 52 F.R.D. 389 (D. Conn. 1971). • 19
General Time Investment Co. of Conn. v. Ackerman,

37 F.R.D. 38 (S.D.N.Y. 1964) ................ 35
Hatton v. County Bd. of Educ., 422 F.2d 457

(6th Cir. 1970). . . ........................ 50, 51, 56
Jenkins v. United Gas Corp., 400 F.2d 28 

(5th Cir. 1968).................. . 23, 25

iv

I



»

Johnson v. Georgia Highway Express, Inc.,
417 P.2d 1122 (5th Cir. 1969)..............

Joseph v. House, 353 F.Supp. 367 (E.D. Va. 1973).
Kelley v. Metropolitan County Bd. of Educ.,463 P•2d 732 (6th Cir.), cert, denied,

409 U.S. 1001 (1972) ......................
Kelly v. Wyman, 294 F.Supp. 887 (S.D.N.Y. 1968) .
Lamb v. Hamblin, 57 F.R.D. 58 (D. Minn. 1972) . .
Martin v. Kalvar Corp. , 4ll F.2d 552 (5th Cir.

1969) ....................................
McSwain v. County Bd. of Educ., 1 8 F.Supp.

570 (E.D. Tenn. 1956)......................
Mersay v. First Republic Corp., 43 F.R.D. 465

(S.D.N.Y. 1968)...................... . . .
Moore v. Tangipahoa Parish School Bd., 298

F.Supp. 288 (E.D. La. 1969)................
Moss v. The Lane Co., 50 F.R.D. 122 (W.D. Va.

1970) . . . ...............................
Moss v. The Lane Co., 471 F.2d 853 (4th Cir.

1973).............. ........................
Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1 9 6 7) • •
Peterson v. United States, 4l F.R.D. 131

(D. Minn. 1966)............................
Potts v. Flax, 313 F•2d 284 (5th Cir. 1963) . . •
Rackley v. Board of Trustees, 310 F.2d 141

(4th Cir. 1962)............................
Reyes v. Missouri-Kansas-Texas R.R. Co.,

53 F.R.D. 293 (D. Kan. .1971)..............
Schutten v. Shell Oil Co., 421 F.2d 869

(5th Cir. 1969)............................

Page

2 3 , 26 

55

1 8 , 19, 20 
18 

19

51

18

4l

41, 5 0 , 51 

28

19
51

52 
22

25

19

33, 54

v



»
Page

Singleton v. Jackson Municipal Separate School
Dist., 419 F.2d 1211, 1222 (5th Cir. 1969), rev'd in part sub nom. Carter v. West 
Feliciana Parish School Bd., 396 U.S.
290 (1970)..................................

St. Helena Parish School Bd. v. Hall, 287 F.2d 
376 (5th Cir.), cert, denied, 368 U.S.
830 (1 9 6 1).......... .. . . "................

Sullivan v, Houston Independent School Dist.,
307 F.Supp. 1328 (S.D. Tex. 1969) ..........

Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1 (1971) ..........................

Thomas v. Clarke, 54 F.R.D. 245 (D. Minn. 1971). •
1

United States v. Board of School Comm'rs,
466 F.2d 573 (7th Cir. 1972), cert, denied, 
410 U.S. 909 (1973) ........................

United States v. Jefferson County Bd. of Educ.,
372 F.2d 836 (5th Cir. 1966) , aff'd on 
rehearing en banc, 380 F.2d 385 (5th Cir.), 
cert, denied sub nom., Caddo Parish School 
Bti. vT United States, 389 U.S. 840 (1967) • •

United States v. Texas Educ. Agency, 467 F .2d
848 (5th Cir. 1972)........ ................

Vaughan v. Bower, 313 F.Supp. 37 (D. Ariz.),aff’d, 400 U.S. 884 (1970)..................
Wymelenberg v. Syman, 54 F.R.D. 198 (E.D. Wise.

1972) ......................................

Statutes and Rules:
F.R. Civ.
F.R. Civ.

7, 15

50

28

4, 61, 62 
19

50, 51, 56

22

7

18

19, 21

F.R. Civ. P. 20

vi

34, 49
34, 35, 49
35, 53



»

P,R. Civ. P. 21
Page 
34, 48

F.R. Civ. P. 23..................................  32
F.R. Civ. P. 24..................................  34, 38

Other Authorities:
Advisory Committee's Note: "Proposed Amendments 

to Rules of Civil Procedure for the United States 
District Courts," 39 F.R.D. 69 (1966). . . . . .

3A Moore Federal Practice (2d Ed. 1974)..........
3B Moore Federal Practice (2d Ed. 1974)..........
7 Wright & Miller, Federal Practice and
Procedure (1970) ..............................

32, 38, 50
35
33, 36, 41

33, 34, 35
54, 55

vii



IN THE UNITED STATES COURT OP APPEALS
FOR THE FIFTH CIRCUIT 

NO. 74-1971

SHIRLEY BIVINS, et al.,
Plaintiffs-Appellants,

vs.
BOARD OF PUBLIC EDUCATION AND 
ORPHANAGE FOR BIBB COUNTY, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Middle District of Georgia, Macon Division

BRIEF FOR PLAINTIFFS-APPELLANTS 

PRELIMINARY STATEMENT

This action was initially filed in August 1963 
in the Middle District of Georgia, Macon Division, by 
fifteen black adult citizens of Bibb County and their 45 
minor children enrolled in the Bibb County school system. 
It sought to enjoin the defendant Board of Public Educa­
tion and Orphanage for Bibb County (the "Board") from con­
tinuing to operate and maintain a dual school system 
based on race. On October 26, 1973, in response to a



)
motion filed by the Board, the district court entered an 
order ruling that because all but one of the original 
student-plaintiffs are no longer enrolled in the public 
schools, as a result of graduations and otherwise, plain­
tiffs are no longer adequate representatives of the class. 
The court also directed the Board to use a computer to make 
a random selection of members of the class and announced 
its intention to join such randomly selected members as 
parties plaintiff and class representatives. In addition, 
the district court, sua sponte, announced its Intention to 
join as parties and representatives of a class white stu­
dents and their parents, to be selected in the same manner 
as the proposed new black plaintiffs. Shortly thereafter 
petitioners Hope et al., members of the plaintiff class, 
filed an application to Intervene and serve as represen­
tatives of the class. On the same day plaintiffs filed a 
motion requesting that the district court grant petitioners’ 
application to intervene and reconsider and vacate its 
order of October 26, 1973* On March 13> 197^ the dis­
trict court entered an order denying petitioners appli­
cation to intervene and plaintiffs' motion to reconsider 
and vacate the order of October 26, 1973. In a second 
order entered the same day, the court also added the compu­
ter-selected parties as representatives of the class of

2



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black elementary students and their parents, and as rep­
resentatives of a new class of white students and their 
parents. This brief is submitted in support of plain­
tiffs' appeal from such orders.

ISSUES PRESENTED FOR REVIEW

1. Did the district court err in holding that the origi­
nal plaintiffs are no longer adequate representatives of 
the class because all but one of the original student- 
plaintiffs are no longer enrolled in the public schools 
as a result of graduations and otherwise?

2. Assuming that the original plaintiffs are no longer 
adequate representatives of the class, did the district 
court err in denying the petitioners' application to in­
tervene in favor of joining as parties plaintiff and 
representatives of the class randomly—selected members 
of the class?

3. Did the district court err in Joining, sua sponte, 
randomly selected white students and their parents as 
parties plaintiff and representatives of a class in a 
suit which has been pending more than ten years insti­
tuted by black students and their parents to desegregate 
the public schools?

3



I
M. Should the district court be ordered to comply with 
the mandate of this Court issued May 3s 1972 by immediately 
passing on the merits of plans then before it and ordering 
the implementation of one of such plans before the commence­
ment of the next school term?

STATEMENT OF FACTS 

History of the Case
This school desegregation suit was initially 

filed as a class action in August, 1963. At that time, 
the Board admittedly was operating and maintaining a com­
pulsory biracial school system perpetuated through the 
use of dual school zones based on race. See Bivins v.
Board of Public Educ., 3^2 F.2d 229, 230 (5th Cir. 1965).

The case has been before this Court on numerous
occasions. Most recently, in May 1972, this Court decided
an appeal from the district court's action on remand from

1/an earlier Fifth Circuit ruling. The district court had 
entered an order approving a plan of desegregation proposed 
by the Board, over the objection of plaintiffs, shortly 
before the Supreme Court decided Swann v. Charlotte- 
Mecklenburg Board of Education, A02 U.S. 1 (1971)> and com—

“ Bivins v. Bibb County Bd. of Educ., *424 F.2d 97 (5th 
Cir. 1970). _

k



>
panion cases. Plaintiffs filed a motion for further re­
lief in light of Swann, alleging that within the Bibb 
County school system there continued to exist a substan­
tial number of schools attended either entirely or pre- 
dominantely by pupils of one race. In response to a 
show-cause order issued by the district court, the Board 
submitted a "sector-proximity" plan which was objectionable 
to plaintiffs on the ground that it placed an unequal 
burden on black students by closing black neighborhood 
schools and by assigning black students outside their 
residential neighborhoods on a disproportionate basis. 
Plaintiffs contended that a "sector-bumping" plan previous­
ly submitted more equally distributed the burden of de­
segregation among black and white children.

At an evidentiary hearing the district court, 
without hearing argument, read Its memorandum opinion 
from the bench in which it refused to consider the merits 
of the plans presently before it. The court held that 
implementation by the Board of its prior remand order 
converted the Bibb County school system into a unitary 
system and that additional busing would be "unreasonable, 
impractical and unwarranted". Pursuant to such opinion, 
an order denying plaintiffs' motion for further relief 
was entered.

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I
On appeal, this Court held that the district 

court erred in failing to pass upon the relative merits 
of the plans presented to it, ruling (1) that its prior 
order of February 5, 1970 was designed merely to expe­
dite the disestablishment of the dual school system in 
Bibb County, and (2) that the Supreme Court decision in 
Swann required school authorities and the courts to make 
every effort to eliminate or minimize one-race schools. 
Bivins v. Bibb County Bd. of Educ., 460 F.2d *130, *432—33 
(5th Cir. 1972). The opinion concluded:

Upon remand, the district court should con­
sider the relative merits of the plans submitted 
by the parties designed to eliminate or minimize 
the number of one-race elementary schools in 
Bibb Co. and should frame his order with that in 
objective - compliance with Swann - beai'lng in 
mind that the burdens of closed schools and being 
bussed should not fall unequally on the minority 
race. . . .
The judgment of the district court is reversed and 
the cause is remanded for further proceedings not 
inconsistent with this opinion. 460 F.2d at *4 33 -

Proceedings Since This Court’s Last Remand
On remand, the district judge ordered the Board 

to proceed with "deliberate speed" to formulate a plan 
for the desegregation of the Bibb County elementary schools

2/ An acceptable plan of secondary school desegregation 
is in effect in Bibb County.

6



I
in compliance with the May 3, 1972 order of this Court

3/and Swann. (See R. 26.) On January 11, 1973, the Board 
filed a "Supplementary Response of Defendants" in which it 
informed the court that it could not recommend any one 
of the three updated plans then before the court, on the 
grounds that all three plans would necessitate increased 
transportation of students requiring more funds than were 
currently available, that all three plans would have an 
extremely disruptive effect on the educational process, 
that none of the plans would receive the support of the 
community, md that the decision of this Court in United 
States v. Texas Educ. Agency, 467 F.2d 848 (5th Cir. 1972) 
mitigated against the adoption of the plans. (See R. 26- 
27.) The Board requested the district court to approve 
its recommendation that none of the three plans be adopted 
and to make findings identifying the schools which are 
segregated as the result of discrimination in accordance 
with the Texas Education Agency decision. (See R. 14.)

The district court denied the request of the 
Board, and on February 28, 1973, entered an order again 
directing the Board to submit recommendations. (R. 14.)

3/
Citations are to the reproduced Record on Appeal in 

this matter. See Singleton v. Jackson Municipal Separate School Dlst. , TO" F.2d 1211, 1222 (5th Cir. 1 9 6 9).

7



»
On May 1, 1973, the Board submitted a "New Plan" which 
proposed. Inter alia, that the elementary students "con­
tinue to attend schools located In the geographic zones 
where they live", that no child "be bussed involuntarily 
to a school outside his or her zone", and that "[f]or 
the 1973-7^ school year, at least, all existing elementary 
schools will continue in operation" with the possible ex­
ception of one school. (R. 17.) In a motion filed 
May 2*J, 1973, plaintiffs objected to this plan on the 
grounds that it totally disregarded plaintiff's right to 
immediate relief, failed to comply with the May 3, 1972 
mandate of this Court, and ignored this Court's reliance 
on Swann and Alexander v. Holmes County Bd. of Educ. ,
396 U.S. 19 (1969), by failing to eliminate immediately 
the vestiges of the dual system reflected in the numer­
ous racially identifiable schools left untouched. (R. 29- 
30.) Plaintiffs further objected to the Board's refusal 
to recommend for adoption any of the three plans previous­
ly submitted, contending that none of the Board's objec­
tions provided a constitutional basis for the continued 
existence of racially identifiable schools. (R. 30-^1.)

Following a hearing held on July 27, 1973, the 
district court yet again directed the Board to file, on 
or before August 17, 1973, a definitive plan for the further

8



I
desegregation of the elementary schools. (See R. 8 7 .)
In response, the Board submitted the "Trotter Plan".
This plan, like previous plans submitted by the Board, 
assigns pupils to schools on the basis of residence, re­
jects the use of busing to achieve maximum desegregation, 
and leaves untouched a substantial number of racially 
identifiable schools. (R. 40, 43-46.)

Despite this Court's order of May 3, 1972 that 
the district court immediately consider the relative 
merits of the updated plans then before it, there have 
been no prcceedings in the district court with respect 
to the merits of this case since the submission of the 
"Trotter Plan" in August 1973- Two years have elapsed 
since this Court's mandate issued, yet the district 
court has failed to order the implementation of a plan 
to desegregate the elementary schools of Bibb County. 
Rather, the only order of any consequence entered by the 
district judge since May 3, 1972, the order from which 
this appeal is taken, will not expedite a decision on the 
merits but will further delay the substantive proceedings 
through an unnecessary and unwarranted interference with 
the structure of the parties to this litigation.

9

1



»
The Procedural Issues Raised Below

On May 24, 1973, shortly after it had announced
that it would not recommend any of the plans before the 
court, the Board filed a "Motion by Defendants for Order
Adding Additional Parties as Plaintiffs and Defendants .
The motion requested the district court, inter alia, to add 
additional parties plaintiff, alleging that as a result 
of graduations and otherwise, almost all of the original 
named student-plaintiffs are no longer enrolled in the
school system. (R. 22.) ^

Plaintiffs objected to the Board’s proposal on
the grounds (1) that a class action, such as this, which 
alleges continuous constitutional violations should not 
become moot because of years of delay— attributable in 
large part to the Board itself— which occasioned the grad­
uation of most of the original named students; and (2) 
that the motion was untimely because it was made subse­
quent to the mandate of this Court ordering the district 
court immediately to consider the relative merits of

"Motion to Dismiss Defendants' Motion to Add Parties 
(R. 96).

10

1



5/plans presently before it. (R. 96-101.)
On October 26, 1973, the district court entered 

an order granting the Board's motion. The court found 
that none of the original named plaintiffs could ade­
quately represent the class, because all but one of the 
original named student-plaintiffs are no longer enrolled 
in the public schools and because the one remaining plain­
tiff is not enrolled in the elementary schools, and that 
it was the "duty" of the court to "fashion a procedure 
to select from the plaintiff class representative parties 
who will fairly and adequately protect the interests of
the plaintiff class". (R. 105-106.) In addition, the 
court sua sponte determined that it was necessary to add 
a class of white students and parents as additional parties 
defendant, on the ground that the Board "should no longer

5/ At a hearing held on October 24, 1973, plaintiffs 
further objected to the motion, claiming that no useful 
purpose would be served by redetermining the issue of 
class representation at this stage of the litigation 
and that the motion was a "diversive tactic" on the part of the Board designed to turn the district court's at­
tention away from what should have been its paramount concern: the immediate implementation of a plan toeliminate all vestiges of the dual school system in 
Bibb County. R. 128-129. Plaintiffs also suggested 
that any alleged inadequacy in the representation of 
the class could be satisfied by voluntary intervention, 
pursuant to notice sent by the court to the members of 
the class. R. 147.

11



»
be expected to be the advocate of the interests of the 
white students and parents" but instead should be "freed 
of the assumptions of the past and placed in a position 
to impartially operate the public schools of this county
for the benefit of all the students and parents of Bibb 
County". (R. 104.)

The court proceeded to fashion the following 
procedure for selection of the additional parties: (1) 
each class (white and black) was to be represented by at 
least one student from each elementary school and that 
student's parents; (2) the total number of representa­
tives from each school should be in proportion to the total 
number of students of each race now enrolled in each school;
(3) the Board was directed to use its computer facilities 
to make a random selection of black and white students from 
each school and to supply the court with names and addresses
(4) following the receipt of such names and addresses, the
court would communicate with each student and parent to
determine whether each was willing to be a representative
of his particular class. (R. 106-107.) The court further
noted its "expectation" that plaintiffs' present lawyer,
Thomas M. Jackson, Esq., would continue to represent the

6/plaintiff class. (R. 107.)— The Board produced the com­
puter listings and the district judge, at separate meetings

6/ Later the court noted that the new plaintiffs could 
"fire" Mr. Jackson at any time. R. 198.

12



I
held with black and white parents on December 11 and 12, 
1973, informed these parents that unless they notified 
the court of their unwillingness to serve as class repre­
sentatives, they would be added as parties to the litiga­
tion. (R. 179, 206.)

On December 28, 1973, petitioners Hope, et al. 
filed an application to intervene as plaintiffs, and to 
serve as representatives of the class of plaintiffs which 
the district court by its order of October 26, 1973 de­
clared was inadequately represented. Petitioners alleged 
that they are black citizens and residents of Bibb County, 
Georgia, that they have children presently enrolled in one 
or more of the Bibb County elementary schools, and that 
all are subject to the Jurisdiction of the court; that 
they are members of the plaintiff class, have interests 
to protect in the litigation, and can adequately represent 
the class. (R. 159-16^.)

On the same day, the original plaintiffs filed 
a "Motion to Reconsider Order of October 26, 1973, and to 
Vacate Same and to Order a Plan for Further Desegregation", 
requesting that the district court grant petitioners' 
application to intervene and reconsider and vacate its 
order establishing a computer selection process for new 
plaintiffs, since the addition of court-appointed parties

13



would no longer be necessary or desirable. (R. 165-)~~
On March 13, 197*1, the district court entered 

an order denying petitioners' application to intervene 
and plaintiffs' motion to reconsider and vacate the
order of October 26, 1973. In a second order entered 
the same day, the court also added the computer-selected 
parties as representatives of the class of black ele­
mentary students and their parents, and as representatives
of a new class of white students and their parents.

8 /(R. 217-20.)
Plaintiffs timely noticed aheir appeal from 

such orders.

Plaintiffs also requested that the court not add a 
class of white parents as parties, since white parents 
and students have neither the constitutional right to 
oppose desegregation nor the power or authority to formu­
late and implement a desegregation plan for the school 
system. R. 168-69-
8/ At this time the court amended its order of October 
2 8 , 1973, which added the class of white parents and students as parties defendant, to add them as parties 
plaintiff.



I
ARGUMENT

I. THE DISTRICT COURT ERRED IN HOLD­
ING THAT THE ORIGINAL NAMED PLAIN­
TIFFS ARE NO LONGER ADEQUATE REPRE- 
SENTATIVES OF THE PLAINTIFF CLASS.

On August 14, 1963, fifteen black adult citi- 
zents of Bibb County and their 45 minor children enrolled 
In the Bibb County School System filed this action on be­
half of themselves and "on behalf of all other Negro 
children and their parents in Bibb County who are simi­
larly situated and affected," against the defendant Board 
of Public Education of Bibb County, Georgia, its indi­
vidual members and its Superintendent, to enjoin them 
"from continuing their policy, practice, custom and usage 
of operating a dual school system in Bibb County, Georgia 
based wholly on the race and color of the children attend 
ing schools in said county". (R. 102.) Since the filing 
of the original complaint, there have been numerous pro-

t

ceedings in the district court, many of which have been 
reviewed by this Court, and, on one occasion, by the 
United States Supreme Court.2/ On May 3, 1972, this

9/ Reported opinions in this case include 342 F.2d 229 
(5th Cir. 1 9 6 5); 284 F. Supp. 888 (M.D. Ga. 1967); 419 F.2d 1211 (5th Cir. 1969), rev1d in part sub nom. Carter 
v. West Feliciana Parish School Bd. ,* 396 U.S. 290 (1970); 
331 F. Su p p . 9 (M.D. Ga. 1971), re'v'd, 460 F.2d 430 (5th 
Cir. 1972).

15



»
Court issued a mandate to the district court to consider 
the relative merits of plans which had been submitted 
to it, in order to "eliminate or minimize the existence 
of one-race elementary schools in Bibb County," and to 
frame a decree "with that objective— compliance with 
Swann— in mind". *160 F.2d at *4 33 -

IJow, more than ten years since the initial fil­
ing of this action and two years since the issuance of 
the mandate from this Court directing the district court 
to consider and implement a plan of desegregation in com­
pliance wi'.h Swann, the defendant Board has yet to ful­
fill its constitutional duty to immediately eliminate the 
vestiges of its dual system reflected in the numerous 
racially identifiable elementary schools. Instead, the 
Board has repudiated previously submitted plans, on the 
clearly unacceptable grounds that such plans necessitated 
the use of busing and might therefore be unpopular in the 
community, and it has submitted two new plans which fail 
either to eliminate or justify the continued existence of 
numerous racially identifiable elementary schools, as re­
quired by Swann. In addition, the Board has interjected 
into this action totally unwarranted and unnecessary pro­
ceedings with respect to the adequacy of representation 
by the existing plaintiffs in this litigation, the sole

16



I
effect of which has been and will continue to be to dis­
rupt the proceedings on the merits and to further delay 
the elimination of continuous constitutional violations 
by the Board.

Since the filing of the complaint in this ac­
tion, it is not surprising that most of the *)5 original 
named student-plaintiss have either been graduated or 
are otherwise no longer enrolled in.the Bibb County School 
System. However, one original named plaintiff (Larry 
Bivins) is still enrolled, as a high school senior.
(R. 102.) Plaintiffs submit that even if all the origi­
nal named plaintiffs were no longer enrolled in the school 
system they would still be adequate class representatives 
and, in any event, the student-plaintiff who is in fact 
presently enrolled in the school system can adequately 
represent the class without the addition of court-ap­
pointed parties.

17



A. ONCE THE COURT DETERMINED THAT 
THE SUIT COULD BE MAINTAINED AS 
A CLASS ACTION, THE MOOTING OF 
THE CLAIMS OF MOST OF THE NAMED 
PLAINTIFFS DID NOT RENDER THEM INADEQUATE REPRESENTATIVES OF 
THE CLASS.__________________

It is well-settled, as both the Board and the 
district court concede, that the mooting of the claim 
of a named representative does not moot the claims of 
the remaining members of the class. See , e.g. , Kelley __v. 
Metropolitan County Bd, of Educ., 463 F.2d 732, 743 
(6th Cir.), cert, denied, 409 U. S, 1001 (1972); Brown_v. 
Gaston County Dyeing Machine Co., 457 F.2d 1377, 1380 
(4th Cir.), cert. denied, 409 U.S. 982 (1972); Cypress _v . 
Newport News Gen'l & Nonsectarian Hospital Ass'n, 375 F.2d 
648 (4th Cir. 1967); Vaughan v. Bower, 313 F. Supp. 37,
40 (D. Ariz.), aff'd, 400 U.S. 884 (1970); Kelly v. Wyman, 
294 F. Supp. 887, 890 (S.D.N.Y. 1968); McSwaln v. County 
Bd. of Educ., 138 F. Supp. 570 (E.D. Tenn. 1956). This 
is particularly true in a school desegregation case, 
which involves continuing constitutional violations and 
in which the delay in reaching a decision on the merits is 
in great part, attributable to the defendant Board itself.

10/ R. 124, 134.

18



)
Kelley v. Metropolitan County Bd. of Educ., supra, 463 
F.2d at 743. Were this not the case, the Board would 
Improperly benefit from Its own wrongful conduct. See
Reyes v. Mlssourl--Kansas-Texas R.R. Co., 53 F.R.D. 293,
298 (D. Kan. 1971).

While the Board and the district court concede 
that this action is not moot with respect to the members 
of the plaintiff class still enrolled in the public 
schools, it is their contention that because nearly all 
of the original named student plaintiffs are no longer 
enrolled in such schools they cannot adequately represent 
the class. However, once it has been determined that a 
suit may proceed as a class action, the mooting of the 
claim of the named party does not render him or her an 
inadequate representative of the class. See Moss v. The 
Lane Co. , Inc. , 471 F.2d 853, 855 (4th Cir. 1973); Wymelen-
berg v. Syroan, 54 F.R.D. 198, 200 (E.D. Wis. 1972); Lamb 
v. Hamblin, 57 F.R.D. 58 (D. Minn. 1972); Thomas v. Clarke, 
54 F.R.D. 245, 252 (D. Minn. 1971); Gatling v. Butler, 52
F.R.D. 389, 394-95 (D. Conn. 1971).— /

11/
Moreover, in those cases in which it was held that the 

mooting of the claims of the named parties did not warrant 
dismissal of the action, the implication was clear that 
the named plaintiffs could continue to act as representa­
tives for the class. See Kelley and other cases cited in text, supra.

19



I
The rationale for allowing persons whose claims 

have become moot to continue to represent the claims of 
the members of the class is to avoid the inevitable delay 
which would be occasioned if a court were forced to con­
tinually redetermine the adequacy of representation in 
a class action. This is of particular importance when, 
as in the present case, because of the lengthy history 
of litigation, continuous redetermination is not only 
impractical but also works an injustice on the members 
of the class by delaying a decision on the merits. Thus, 
the Sixth Circuit’s opinion in Kell ay, supra, adopting 
that of the district judge, stated:

This Court does not feel once a class 
action has been adjudicated and the action of 
the trial court has been reviewed by the Court 
of Appeals, that it is necessary or proper to 
continue to redetermine the standing of the 
plaintiffs to represent a class. The United 
States Supreme Court in its order implementing 
the amendment to Rule 23 states:

”. . .  the foregoing amendments and 
additions to the Rules of Civil Pro­
cedure shall take effect on July 1,
1966, and shall govern all proceed­
ings in actions then pending except to the extent that in the opinion of 
the Court their application in a par­
ticular action then pending would not 
be feasible or would work injustice in which event the former procedure 
applies."

This clearly indicates an intent that there should 
not be a continuous readjudication of this question

20

1



I
in cases where there has been a lengthy history of 
litigation, both in the district and the appellate 
courts. Frankly, this Court feels that it is not 
feasible or practical to have continuous adjudica­
tion of such items. 463 F.2d at 750.

So long as the named plaintiffs' current status does not
create interests antagonistic to those of the class and 
so long as plaintiffs' counsel is competently and vigor­
ously pursuing the interests of the class, the named 
plaintiffs continue adequately to represent the class.
Wymelenberg v. Syman, supra, 54 F.R.D. at 200.

Here there is nothing antagonistic in the named
plaintiffs' status as graduates of the public school 
system, and the competency and vigor of representation 
by plaintiffs' counsel has been expressly recognized by 
the district court. (R. 107.) Thus the court below 
clearly erred in holding that the fact that most of the 
original named student-plaintiffs are no longer enrolled 
in the public schools renders them inadequate representa­
tives of the plaintiff class.

21



B. ASSUMING THAT THE ORIGINAL NAMED 
STUDENT-PLAINTIFFS NO LONGER EN­
ROLLED IN THE SCHOOL SYSTEM ARE 
NOT ADEQUATE CLASS REPRESENTATIVES, 
THE REMAINING PLAINTIFF CURRENTLY 
ENROLLED IN THE SYSTEM CAN PROPER­
LY REPRESENT THE ENTIRE CLASS.

The district court held that one of the origi­
nal plaintiffs, Larry Bivins, who is currently a high 
school senior, is not an adequate representative of the 
class on the ground that he has no direct interest in 
the operation of the elementary schools in Bibb County, 
the remaining area of dispute in this litigation. Plain­
tiffs submit that the district court erred in so holding 
and that, upon proper application of the standards announced 
by this Court with respect to adequate representation, it 
is clear that plaintiff Bivins can adequately represent
the interests of the class without the joinder of court-

12/appointed parties.

12/
Any other determination would in fact conflict with the long-settled principle of this Circuit that minor plaintiffs in school desegregation cases are entitled 

to decrees having school system-wide effect. Potts v. 
Flax, 313 F.2d 2o4 (5th Cir. 1963); United States v. Jefferson County Bd. of Educ., 372 F.~2d 8 3 6 , 864-70 
(5th Cir. 1 9 6 6) , aff'd on rehearing en banc, 380 F.2d 
385 (5th Cir.), cert, denied sub nom. Caddo Parish School 
Bd. v. United States , 389 U. S7HJ4(TTl9577T

22



>
1. Plaintiff Bivins' Current Status 

as a High School Student does not Render 
Him an Inadequate Representative of the 
Entire Class._____ ___________— --------

As this Court has consistently held, in an ac­
tion to enjoin racially discriminatory policies and prac­
tices, a single plaintiff affected by such discriminatory 
policies and practices may represent all persons so af­
fected, regardless of the particular area of discrimina­
tion. Thus in the leading case of Jenkins v. United Gas 
Corp. , MOO F.2d 28 (5th Cir. 1968), an employee who had 
been denied a promotion was allowed to maintain a class 
action on behalf of all past, present and future employees 
in an action alleging plant-wide racial discrimination. 
Simlarly, in Johnson v. Georgia Highway Express, Inc.,
H17 F .2d 1122 (5th Cir. 1969), a discharged employee was 
allowed to represent a class consisting of "all other 
similarly situated Negroes seeking equal employment op­
portunities without discrimination on the grounds of race 
or color" in an "across the board" attack on unequal em­
ployment practices in the areas of hiring, firing, pro­
motion, and maintenance of facilities. 417 F.2d at 1123- 
24. There this Court stated, with respect to the differ­
ent fact situations of different employees:

23



I
[T]he "Damoclean threat of a racially dis­
criminatory policy hangs over the racial 
class [and] is a question of fact common to 
all members of the class." 417 F.2d at 1124.

In cases such as the present one involving pub­
lic facilities and Institutions, the ability of a small 
number of plaintiffs to represent all persons affected 
by unconstitutional racially discriminatory policies and 
practices, regardless of their particular contact with 
the institutions, is of particular Importance. Thus, in 
Coleman v. Humphreys County Memorial Hospitals, 55 F.R.D. 
507, 510-11 (N.D. Miss. 1972), plaintiffs who had used 
the waiting rooms and outpatient facilities of the defen­
dant hospital were held to have standing to bring a class 
action on behalf of all black residents and citizens of 
the area served by the hospital to attack "all phases of 
the institution's operations" including employment prac­
tices and policies:

It is quite clear to the court that 
in the area of public facilities and In­
stitutions, such as schools, hospitals, li­
braries and the like, where the facility or 
institution is one maintained for the bene­
fit of the general public, any member of a 
race which is subjected to unlawful racially 
discriminatory policies, and who has suffered 
a deprivation of any rights, privileges, or 
Immunities secured by the Constitution and 
laws of the United States by reason- thereof, 
has standing to bring a class action against 
such facilities or institutions for the elimi-

24



I
nation of such discriminatory policies and to 
attack all phases of the institution's opera­
tions where such discriminatory practices 
exist.

See also, Rackley v. Board of Trustees, 310 F.2d 1^1 (^th 
Cir. 1962).

The failure of the defendant Board to eliminate 
the vestiges of a dual system has been a discrimination 
affecting all members of the class, including high school, 
junior high school and elementary students. The fact 
that at this late stage, the remaining critical area of 
concern is the desegregation of the elementary schools, 
does not render plaintiff Bivins (who was enrolled in the 
elementary schools at the commencement of this litigation) 
an inadequate representative of the class.

Even if Bivins' claims as to elementary schools 
are considered mooted, this does not render him an inade­
quate representative of the class. Thus, in Jenkins— v. 
United Gas Corp., supra, this Court held that an employee 
who had been offered and who had accepted a promotion sub­
sequent to the filing of the action could continue to
represent the class. Similarly, in Coleman v._Humphreys
County Memorial Hospitals, supra, the court rejected the 
contention of defendants that because they had remedied 
the discriminatory treatment to which named plaintiffs
had been subjected, they had no standing to challenge the

25



»
defendant hospital’s'discriminatory employment practices 
since none alleged that they had sought or obtained em­
ployment with the hospital. The court held that plaintiffs 
could continue to represent a class including "all black
residents of the area served by the hospital who have been 
victims of the hospital's racially discriminatory policies.’ 
55 F.R.D. at 510.

2. Applying Established Standards 
for Determining Adequacy, Plaintiff Bivinsis a Proper Representative of the Class.

In the leading case on adequacy of representation 
i<n this Circuit, Johnson v. Georgia Highway Express, Inc., , 
supra, this Court announced the following standard to be 
applied with respect to the plaintiffs' ability to protect
the interests of the class:

"An essential concomitant of adequate 
representation is that the party's attorney 
be qualified, experienced, and generally able 
to conduct the proposed litigation. Addi­
tionally, it is necessary to eliminate so far 
as possible the likelihood that the litigants 
are involved in a collusive suit or that plain­
tiff has interests antagonistic to those of 
the remainder of the class." ^17 F.2d at 1125.

As noted above, the competency and vigor of 
representation of plaintiff's counsel in this action has 
been expressly recognized by the district court. Seie p. 19, 
supra.

26



I
With respect to the second criterion established 

by Johnson, there has been no suggestion of collusion in 
this action, nor could there be in view of the history 
of this litigation.

Finally, there has been no suggestion that plain­
tiff Bivins has interests antagonistic to those of the 
remainder of the class, other than a vague assertion by 
the Board that the "interests” of the members of the class 
"vary widely” and "[t]here is no single point of view as 
to what is the best way to desegregate the elementary 
schools further in accordance with the Fifth Circuit man­
date." (R. 13^-5.) Thus, while the Board concedes that 
”it is technically possible for one or only a few persons 
to represent a class", it argues that "the adequate repre­
sentation of a class of this magnitude in a case of such 
importance to all of the citizens of Bibb County requires 
that a substantial number of additional named plaintiffs 
be added as parties to this action." (R. 23.) However, 
in an action seeking to eliminate constitutional violations 
(applicable per se to a class), in which the very nature 
of the right plaintiffs seek to vindicate requires that 
the decree run to the benefit of all persons similarly 
situated, the possibility that some members of the class 
may disagree with the particular views expressed by the

27

J



I
plaintiff is irrelevant in considering whether or not the 
plaintiff is an adequate representative of the class.
Thus, in Sullivan v. Houston Independent School Dlst.,
307 F. Supp. 1328 (S.D. Tex. 1969), the court stated:

Plaintiffs have designated a class com­
posed of all the students presently enrolled 
in the secondary schools of the Houston Inde­
pendent School District. Defendants contend 
that this designation is not proper under Rule 23 because the majority of Houston secon­
dary students are not in sympathy with the views 
or methods of these plaintiffs and are, there­fore not 'similarly situated'. This contention 
misses the point. All of the members of the 
class are subject to the same regulations of the Houston School District which have been alleged 
to be unconstitutional on their face. It is irrelevant to speculate how many students might 
need to invoke the first amendment as protection 
from official sanctions; the fact that each mem­
ber is subject to the same specific sort of de­
privation of constitutional rights as the repre 
sentative parties is enough. This case is 
clearly maintainable as a class action. . . .
307 F. Supp. at 1337-8.

See also Moss v. The Lane Co., Inc., 50 F.R.D. 122 (W.D.
Va. 1970). Thus the mere fact that some members of the 
class may hold different views on the best way to further 
desegregate the schools in Bibb County does not render 
plaintiff an inadequate representative under Johnson.
Were this so, there could never be adequate representa­
tion In a class action unless all of the members of a 
class were in complete unanimity at every stage of the 
litiation. Such was clearly not the intent of the framers
of Rule 23-

28



I
II. ASSUMING THAT THE ORIGINAL NAMED 

STUDENT-PLAINTIFFS ARE NO LONGER 
ADEQUATE REPRESENTATIVES OF THE 
CLASS, THE DISTRICT COURT ERRED 
IN JOINING ADDITIONAL COURT-SELEC­
TED BLACK PLAINTIFFS AND DENYING 
THE MOTION OF PETITIONER TO IN­
TERVENE^_________________________

In its preliminary order of October 26, 1973 
the district court, having found that the original named 
plaintiffs were no longer adequate representatives of 
the class, held that It was "the duty of the court to 
fashion a procedure to select from the plaintiff class 
representative parties who will fairly and adequately pro­
tect the interests of the plaintiff class. (R. 106.)
The court then directed the Board, "using its computer 
facilities, to make a random selection of the number of 
Negro . . . students of each elementary school . . . and
to supply the court as soon as reasonably possible with 
a list of the names and mailing addresses of those selec­
ted and their parents." (R. 107.) The court then indi­
cated Its intent, upon receipt of such list to "communi­
cate with each student and his parents and determine 
whether or not each will be willing to be a representa­
tive of his particular class." (Ibid.)

Upon receipt of the list of computer-selected 
students, the district judge convened a meeting of the

29



I
parents of such students, where the parents were informed 
by the court that unless they affirmatively indicated 
their desire not to become parties to the litigation, 
they would automatically be joined as plaintiffs and
representatives of the class:

THE COURT: . . .  I hope that each one 
of you will discuss this with your husband or 
your wife and your students (sic) and, in the 
event you do not wish to participate, in the 
next couple of days I wish you would telephone 
our Clerk's Office. You remember at the bottom 
of the letter we put the number of the Clerk's 
Office, and just say "I was at the meeting but 
I do not want to be involved." Now— if we— do not hear from you we are going to leave your 
name upon the ' 1ist of those who are willing to 
be Involved. CR- 179*) (Emphasisadded.)

On December 28, petitioners filed their appli­
cation to intervene as parties plaintiff and to serve as 
representatives of the plaintiff class, alleging that theyI
are black citizens and residents of Bibb County, that their 
children are enrolled in the Bibb County public schools, 
that they are members of the plaintiff class with inter­
ests to protect in the litigation and that they can ade­
quately protect the interests of the class. (S®J1 P* -̂3> 
supra.)

March 13, 1974, the district court denied peti­
tioners' application to intervene. Instead, having ex­
cluded "a very small number of parents [who] advised that

30



they are unwilling to represent the children"of the pub- '' 
lie schools of this county in this lawsuit” (R. 218), the 
court added as parties and representatives of the plain­
tiff class those randomly selected persons who had indi­
cated by silence alone their willingness to join in the 
litigation and serve as representatives.— ^

Plaintiffs' submit that this highly unorthodox 
method of expanding the litigation through the addition 
of court-appointed parties was beyond the power of the 
court. Even assuming that the court had the power to 
join such persons, once members of the class actively 
sought to intervene in the action and act as representa­
tives of the class, the district court erred in denying 
their application in favor of the joinder of court-appointed 
parties who at no time indicated by more than passive 
silence their willingness either to join as parties or 
to protect the Interests of the remaining members of the 
class.

13/ The court also denied plaintiffs’ motion to reconsider 
and vacate its October order that directed the Board to 
randomly select members of the class to be joined as new 
class representatives, which plaintiffs suggested would be appropriate once the court granted the petitioners’ 
motion to intervene (R. 168).

31



A. THE DISTRICT COURT HAD NO 
POWER TO ORDER THE RANDOM 
SELECTION OF MEMBERS OF THE 
CLASS AND TO JOIN SUCH RAN­
DOMLY SELECTED PERSONS AS IN- 
VO LUNTARYPARTIESPLAINTIFF^

In Its order of October 26, 1973, the district 
court cited Rule 23, Fed. R. Civ. P., as the source of its 
authority to add as named representatives of the plain­
tiff class, those randomly selected members who did not 
expressly indicate their unwillingness to join. (R. 105.) 
However, nowhere does Rule 23 expressly grant the district 
judge the power to appoint as representatives members of 
the class who have not soubht to intervene as parties.
Nor can such a grant of power be reasonably implied in 
view of the legislative history of amended Rule 23, which 
clearly indicates that the proper remedy to be applied 
by the court when faced with the problem of inadequate 
representation by the named plaintiffs is to condition 
the maintenance of a class action on the intervention of 
additional parties who can adequately protect the in­
terests of the class:

An order embodying a determination [that 
an action may be maintained as a class action] 
can be conditional; the court may rule, for 
example, that a class action may be maintained 
only if the representation is improved through 
Intervention of additional parties of a stated ̂ 
type. A determination once made can be altered

32



or amended before the decision on merits if, upon 
fuller development of the facts, the original 
determination appears unsound. A negative de­
termination means that the action should be 
stripped of its character as a class action.
See subdivision (d)(4). Although an action 
thus becomes a nonclass action, the court may 
still be receptive to interventions before the 
decision on the merits so that the litigation may 
cover as many interests as can be conveniently handled. [Advisory Committee's Note: "Proposed 
Amendments to Rules of Civil Procedure for the 
United States District Courts, 39 F.R.D. 69, 104 
(1966).] (Emphasis added.)

As the Advisory Committee's Note clearly indicates, in the 
absence of the intervention by persons who can adequately 
represent the class, the court has no power to add parties 
of its own volition, but rather is limited solely to con­
ditioning the maintenance of the class action on the in­
tervention of proper parties pursuant to Rule 23 (d)(3) 
or dismissing the class action. See 3B Moore, Federal 
Practice (2d Ed. 1974) H 23-73, PP- 23-1441 to 1443-

The procedure contemplated by the drafters of 
amended Rule 23 is in accordance with the traditionally 
limited role of the trial court in shaping the litigation. 
Ordinarily, the plaintiff has the right "to decide who 
shall be parties to a lawsuit", 7 Wright & Miller, Federal 
Practice and Procedure (1970), § 1602 , p. 17- See_ also_ 
Schutten v. Shell Oil Co., 421 F.2d 8 6 9, 873 (5th Cir. 
1969). In recognition of this fundamental proposition,

33



' the Federal Rules of Civil Procedure provide for only a 
few limited exceptions when justice requires. Thus per­
sons not already parties, who affirmatively seek to join 
in the litigation, may intervene in certain situations
pursuant to Rule 24. When, as in the case at bar, the 
defendant seeks to compel the joinder of persons not al­
ready parties who have not sought to intervene, the au­
thority of the court to compel such.joinder is governed 
by Rules 17, 19 and 21.

Rule 21 provides in relevant part that:
Misjoinder of parties is not grounds for dis­
missal of an action. Parties may be dropped 
or added by order of the court on motion of 
any party or of its own initiative at any
stage of the action and on such terms as are
j ust.

Its purpose is to provide a "mechanism for remedying either
the misjoinder or non-joinder of parties." 7 Wright and
Miller, supra, § 1683, p. 322. The rule does not delimit 
the circumstances under which additional persons should 
be made parties to the litigation, but "simply describes 
the procedural consequences of failing to do so and makes 
it clear that the defect can be correct." Id. at 324.
Any requirement that particular individuals be added to 
an action must flow from Rule 17 (which provides that the 
"action shall be prosecuted in the name of the real party

3̂



in interest” and is thus clearly inapplicable in the
present case) or from Rule 19, which provides for the
"Joinder of Persons Needed for Just Adjudication."

I VIbid.-
rtule 19(a) provides that a person is to be

joined if feasible if
(1) in his absence complete relief cannot be 
accorded among those already parties, or
(2) he claims an interest relating to the 
subject of the action and is so situated that 
the disposition of the action in his absence 
may (i) as a practical matter impair or im­
pede his ability to protect that interest or 
(ii) leave any of the persons already parties 
subject to a substantial risk of incurring 
double, multiple, or otherwise Inconsistent 
obligations by reason of his claimed interest.

Such persons, termed "necessary" or "indispensable" parties,
must be joined if the action is to be continued unless
they are not subject to service or process or their joinder

I V Although Rule 20 provides that
[a]ll persons may Join in one action as 
plaintiffs if they assert any right to relief jointly, severally, or in the al­
ternative in respect of or arising out of 
the same transaction, occurrence, or series 
of transactions or occurrences and if any 
question of law or fact common to all these 
persons will arise in the action,
(emphasis added)

and thus members of the class in a class action may qualify for permissive joinder, such joinder would be 
at their option and cannot be compelled by defendants.
See General Investment Co. of Conn, v. Ackerman, 37 F.R.D. 
38, 41 (S.D.N.Y. 1964)'. See also 3A Moore, supra, 20.05, 
p. 2774.

35



would deprive the court of subject matter jurisdiction.
See 3B Moore, supra, 11 19.02.

Members of the class in a suit which has been 
determined to be a valid class action pursuant to Rule
23 are clearly not "necessary" parties under Rule 19(a).
It is not contended that "in [their] absence complete re­
lief cannot be accorded among those already parties."
Nor is it contended that their absence would "leave any 
of the persons already parties subject to a substantial 
risk of incurring double, multiple or otherwise inconsis­
tent obligations," since the relief afforded runs to the 
entire class.

Finally, it is clear that members of the class 
are not "so situated that the disposition of the action 
in [their] absence may impede [their] ability to protect 
that interest" even when it has been held that the original 
named plaintiffs are no longer adequate representatives, 
since until a proper representative intervenes, the action 
cannot continue as a class action and thus no binding 
adjudication will be made with respect to the claims of 
such absent members.

Conceding that "the court cannot compel partic­
ular students and their parents to serve as representative

36



parties," (R. 107), the district district court errone­
ously characterized its highly unorthodox procedure of 
section and appointment as merely a "renam[ing] of the 
plaintiff class." (R. 132.) But the court has in fact
ordered the Joinder, as parties, of members of the class 
who have at no time sought to Intervene in this action, 
but who merely remained silent in the face of the strong 
urging of the district Judge that they show "an interest 15/
in [their] schools" and Join in the litigation. R. 17 .

There can be no doubt that the "opt-out" pro­
cedure adopted by the district court is not the equiva­
lent of voluntary intervention, and, therefore, Joinder 
of such persons is governed by the Rules which provide 
for compulsory Joinder. For the reasons set forth above, 
it is clear that under those rules, the district court 
had no authority to add randomly selected members of the 
class as parties plaintiff.

Thus, at the meeting o f  December 1 1 , e v e n e d  by the

c l a s ^ r e p r e s e n t a t i v e s . S j j . ”  .13^ S S g | - £
was f o r m a l l y  ad° p^ d J j . y - ^ c o u n s e l ’ i n  th e  March 13 o r d e r  
o f ^ h e 1 d i s t r i c t  c o u r t ,  from w h i c h ’ t h i s  a p p e a l  was t a k e n .

37



B. IF THE ORIGINAL NAMED STUDENT-
PLAINTIFFS ARE NO LONGER ADEQUATE 
REPRESENTATIVES OF THE CLASS, PETI­
TIONERS WERE ENTITLED TO INTERVENE 
AS A MATTER OF RIGHT.

Rule 24(a)(2), F. R. Civ. P. provides that persons
directly interested In the subject matter of a lawsuit may
intervene as a matter of right

when the applicant claims an Interest relating to 
the property or transaction which is the subject of the action and he is so situated that the dis­
position of the action may as a practical matter 
impair or impede his ability to protect that in­
terest, unless the applicant *s'Interest is ade­quately represented by existing parties.

Since all members of a class are bound by the 
judgment in a class action, each member has clearly satis­
fied the prerequisites of Rule 24(a)(2) "unless his interest 
is adequately represented by the existing parties". This
was expressly recognised by the authors of amended Rule 
24(a):

A class member who claims that his "representative" 
does not adequately represent him, and is able to 
establish that proposition with sufficient proba­bility, should not be put to the risk of having a 
judgment entered in the action which by its terms 
extendes to him, and be obliged to test the validity 
of the judgment as applied to his interest by a later 
collateral attack. Rather he should as a general 
rule, be entitled to intervene in the action! ["Ad­
visory Committee's Note, supra, at 110.1 (Emphasis added.)

38



It is not disputed that petitioners are bona 
fide members of the plaintiff class, as alleged in their 
application (R. 163.) Moreover, there can be no doubt that 
neither petitioners' interests in the litigation, nor those 
of the plaintiffs, can be adeuately represented within the 
meaning of Rule 24(a) by parties randomly selected and ap­
pointed by the court who at no time sought to intervene in 
the action and serve as class representatives or even af­
firmatively indicated their desire to do so. Once the dis­
trict court found that the original named plaintiffs were 
no longer adequate representatives of the class, therefore, 
petitioners were entitled to intervene as a matter of right 
and the district court clearly erred in denying their appli 
cation.

The fact that at the time petitioners sought to 
intervene there was an order in effect directing the Board 
to make a random selection of members of the class, in con­
templation of naming such members as parties and represen­
tatives of the class, does not alter petitioners' absolute 
right to Intervene under Rule 24(a)(2). In fact, when 
petitioners filed their application on December 28, 1974, 
no new parties had been formally joined or named as repre­
sentatives. It was not until March 13, 1974 that the dis-

39



trict court joined the additional parties and simultaneously 
denied petitioners’ application.

C. EVEN IP PETITIONERS WERE NOT ENTITLED TO INTER­
VENE AS A MATTER OF RIGHT, AND EVEN IF THE COURT 
HAD THE POWER TO JOIN RANDOMLY SELECTED CLASS
MEMBERS AS PARTIES, THE DISTRICT COURT ABUSED 
ITS DISCRETION IN DENYING PETITIONERS' APPLI­
CATION TO INTERVENE IN FAVOR OF JOINING SUCH 
RANDOMLY SELECTED PERSONS AS PARTIES AND REP- 
RESENTATIVES OF THE CLASS.______________________ _

On October 26, 1973, the district court entered 
its order holding that the original named plaintiffs were 
no longer adequate representatives of the class and simul­
taneously directing the Board to randomly select members of 
the class in contemplation of naming such members as parties 
and representatives of the class. As the members of the class 
had received no prior notice that the representation by the 
existing parties was inadequate, it is not surprising that 
at that time there were no members actively seeking to inter­
vene in the litigation. However, within a short time after 
the entering of the October 26 order, and before the dis­
trict court had joined additional parties and named them 
as representatives, petitioners filed their application to 
intervene. Simultaneously plaintiffs filed a motion re­
questing the district court to grant petitioners' applica­
tion and to reconsider its announced intention of joining

40



as additional parties persons selected by the court. Plain­
tiffs submit that even if the district court in the first 
instance had the authority to name additional court-appointed 
parties to serve as representatives, once members of the
class actively sought to intervene, the district court 
abused its discretion in denying such application in favor 
of naming its own appointees as representatives of the 
class.

The primary factor in determining whether a party 
will adequately represent the class is "the forthrightness 
and vigor with which the representative party can be ex­
pected to assert and defend the interests of the members of 
the class". Mersay v. First Republic Corp., 43 F.R.D. 465, 
470 (S.D.N.Y. 1 9 6 8). See also e.&., Dolgov; v. Anderson, 43 

F.R.D. 472, 493-94 (E.D.N.Y. 1968); cf. Moore v. Tangipahoa 
Parish School Bd., 298 F. Supp. 288, 294 (E.D. La. 1 9 6 9).
See generally 3B Moore, supra, f 23.07C1]. There can be no 
doubt that as between members of the class actively seeking 
to intervene in the litigation, and randomly selected mem­
bers of the class who have neither sought to intervene in 
the action nor affirmatively indicated their willingness or 
desire to do so, the former are more likely to vigorously 
"assert and defend the interests of the member of the class" 
and are therefore more adequate representatives.

41



ts.

The position of the Board, adopted by the dis­
trict court, is that the parties selected and appointed by 
the court are better able to represent the class than are 
petitioners for two reasons: 1) the failure of plaintiffs
to supply additional representatives prior to the decision 
of the court to fashion its own procedure; and 2) the "ab­
solutely fair and impartial manner in which the additional 
parties named were selected". (R. 214-5.) Such arguments 
misapprehend the proper role to be played both by plaintiffs 
and by the court in structuring the lawsuit.

Failure of Plaintiffs to Supply Additional
________  Representatives_________ -

Both the Board and the district court place con­
siderable emphasis on the fact that, as stated by the Board, 
plaintiffs "declined to take the initiative in naming addi­
tional representatives", thus making it "incumbent upon 
the Court to devise a plan for accomplishing the desired
result". (K. 211; 213; 1 0 6 .)

First, it is simply not true, as has been sug­
gested by the Board, that plaintiffs "never offered any 
suggestions whatever to the Court" with respect to the man­
ner in which an alleged lack of adequate representation 
might be cured in this action. (R. 211.) At a hearing

42



j b i i t  . . . i . 4:. '• % 4J*.

held on October 24, 1973, plaintiffs’ counsel suggested 
that notice might be sent out to the members of the class 
to the effect that "any parent who wants to join as a party
in this suit can come in and join". (R. 147.) Such a pro­
cedure would have had the effect of curing any inadequacy 
in the class representation in the manner contemplated by 
the authors of revised Rule 23, i.e., intervention by mem­
bers of the class actively interested in pursuing the liti­
gation and protecting the interests of the members of the 
class. See pp. 32-33 supra. However, this procedure was sum­
marily rejected by the district court, in part because of 
its misapprehension as to the court's "duty" to ensure 
that volunteers would be forthcoming:

THE COURT: . . . Frankly, . . .  in the Court's best judgment I think we have progressed 
to the point where there is an almost 100$ apathy 
among the members of the public about public mat­ters until they have been decided and then the public as a whole wants to rise up in arms about 
it, but we can't change the attitude of people, 
and, frankly, I think in this case the people need, short of compulsion, to be brought into 
the matter. (R. 151-52.)

Second, contrary to the implied assertions of the 
Board and the court below, it is not the proper function of 
either plaintiffs or plaintiffs' attorney to "supply" the 
court with new representatives. Nor is it the proper func­
tion of the court to "fashion a procedure to select from

43



the plaintiff class representative parties who will fairly 
and adequately protect the interests of the plaintiff class", 
particularly when that procedure involves the random selec­
tion of parties by a computer and the passive "opt-out" pro­
visions for joinder ultimately adopted by the district court. 
Rather, plaintiffs submit, the proper course to be taken by 
the trial court to cure any inadequacy in the representation 
of the class is that contemplated by the authors of Rule 23, 
i.e., conditioning the maintenance of the class action on 
the intervention of proper parties. Thus any inadequacy 
in the representation of the class in this action would 
have been quickly cured by the granting of petitioners' 
application to intervene.

Manner in which Additional
Parties Were Selected

The Board argues that the random selection of the 
additional parties indicates that they are better able to 
represent the class than are petitioners, who were "selec­
ted by some person or persons that has not been shown to the 
Court". (R. 215.) Plaintiffs again submit that the Board 
misapprehends the proper role of both the court and plaintiffs 
in determining who will be the parties to a litigation. It



is not the role of the court to "select” parties to an ac­
tion, whether "in an absolutely fair and impartial manner 
or otherwise. Likewise it is not the role of plaintiffs 
or plaintiffs’ counsel to "select" additional parties to 
the action. As stated by the district judge himself,
"[t]he people bring the lawsuit to the court". (R. 174).

The Board’s insistence on the "fair and abso­
lutely impartial" manner in which the additional parties 
were selected is designed to demonstrate that "the chances 
are pretty good that those 100 black parents would repre­
sent just about every point of view and every attitude and 
every divergence of opinion and so forth in Bibb County."
(R. 146.) Thus the Board points out that where the peti­
tioners have children enrolled in 12 elementary schools, 
the additional black students and their parents "represent
a total of 41 schools". (R. 215.)

We reiterate that it is not the function of the
representative of a class to present to the court "every 
point of view and every attitude and every divergency of 
opinion" of all of the members of the class. All that is 
required of a representative, in addition to his competency 
to pursue the litigation vigorously, is that he not have 
interests antagonistic to the rest of the class and that



"the interest of the representative party be coextensive 
with the interest of the entire class". Elsen v. Carlisle 
& Jacquelin, 391 F.2d 555, 562-63 (2d Cir. 1968). And as 
the court in Elsen further noted, what "this amounts to is
little more than an alternative way of stating that the 
plaintiffs’ claim must be typical of the entire class".
Id. at 563. (Emphasis added.) Petitioners' "claim" in 
this action, which is typical of the claims of the members 
of the class, is their "Judicially declared constitutional 
right to an education in a school system unburdened with the 
vestiges of the past totally segregated system". (R. 165-66.) 
The potentially divergent viewpoints of various members of the 
class as to how this constitutional right might best be enforced 
is irrelevant in determining whether a party can adequately rep­
resent the class. Seê  pp. 27—28, supra. If any member of the 
class has views to express on the merits of any particular 
plan before the court which are not adequately expressed by 
petitioners, he or she may seek to appear as amicus curiae
for that limited purpose.

Nor is it the proper function of the court to
ensure that the representatives represent a "broad middle 
group [of] opinion and judgments" as requested by the Board 
in the following colloquy at the October 24 hearing.

46



LCounsel for the BoardJ: . . . .  Your.Honor, I 
don’t want to prolong the hearing, and I don’t 
think I would want to make this statement for 
public consumption but I would like to voice 
some concern about relying on volunteers only 
to come forward. I am just afraid you might 
wind up with people that had extreme points of 
view on one end of the spectrum or another, and you might not get an adequate representation of 
broad middle ground opinion and judgments.

THE COURT: The Court agrees with you on 
that. X think when you ask for volunteers you 
create an opportunity for people to go out and stir up situations. The activists come forward and certainly in this case we are not looking just 
for activists. We are looking for people, as you 
have previously said, who represent the various views of the community, various geographical areas, 
neighborhoods of the community and so to relieve 
your mind I will tell you the Court has already considered and crossed off the volunteer situation, 
and some type of random selection, in the Court's 
present judgment, is what should be used. (R.
152-53.)

The Board has no legitimate concern with the "views" which 
might be expressed by petitioners: so long as the peti­
tioners' claims are typical of the class, and so long as 
petitioners can be expected to vigorously pursue such claims, 
they are adequate representatives of the class.

III. THE DISTRICT COURT ERRED IN JOINING ON ITS 
OWN INITIATIVE A CLASS OF WHITE STUDENTS AND THEIR PARENTS AS PARTIES TO THIS AC- TION, WHETHER AS PLAINTIFFS OR DEFENDANTS.

In Its October 26 order the district court, on 
its own initiative, announced its intention to add a class

47



of white parents and students as parties defendant, to be 
selected and joined in the same manner as the additional 
black parties. In its order of March 13, 197*1, in which 
the randomly selected white parents were actually Joined
as parties, the court noted that it had determined that it 
was more "appropriate" that the "additional class be re­
ferred to as a plaintiff class." Plaintiffs submit that 
whether they are referred to as plaintiffs or defendants, 
the district court erred in joining such persons on its 
own Initiative as parties to this action.

A. THE DISTRICT COURT HAD NO POWER TO JOIN,
ON ITS OWN INITIATIVE, A CLASS OF WHITE 
STUDENTS AND THEIR PARENTS AS PARTIES 
TO THIS ACTION _______________ _

The district court cited Rule 21, Fed. R. Civ. P. as 
the source of its authority to add as parties to this action a 
class of white students and their parents (R. 10*0; however, 
plaintiffs submit that neither Rule 21 nor any other Rule 
provides the district court with the authority to so act on 
its own initiative.

As noted above, Rule 21 is merely the mechanism 
whereby the misjoinder or non-joinder of parties can be 
cured without dismissing the action, whereas the rules for 
determining who should be made parties to the litigation



are Rule 17 (real party in interest) and Rule 19 (joinder 
of persons needed for just adjudication). See pp. 34—35, 
supra.

Rule 19(a)(1) provides that a person should be 
joined if feasible if "in his absence complete relief can­
not be accorded among those already parties. This is an 
action brought by black students and their parents to de­
segregate the schools operated by the defendant Board. 
White students and their parents have no constitutional 
right to oppose desegregation, nor do they have the power 
or authority, which is vested solely in the Board, to for­
mulate and implement a plan of desegregation for the Bibb 
County school system. Therefore it is clear that in their 
absence complete relief can be accorded among the existing 
parties, as has been done in numerous school desegregation 
cases. See, e.£. , English v. Seaboard Coast Line R.R. Co.
465 F.2d 43, 46 (5th Cir. 1972).

Rule 19(a)(2) provides that a person should be
joined if feasible if

he claims all interest in the subject of the ac­
tion and is so situated that the disposition of 
the action in his absence may (i) as a practical matter impair or impede his ability to protect 
that interest or (ii) leave any of the persons 
already parties subject to a substantial risk of 
incurring double, multiple or otherwise incon­
sistent obligations by reason of his claimed 
interest.



While there may be some instances in which Rule 19(a)(2) 
would require joinder in cases in which "interests' of 
white persons may be affected by a court decree terminat­
ing racially discriminatory practices, this Court has pre­
viously noted that "within the context of public school de­
segregation" such joinder would not be required. English. 
v. Seaboard Coast Line R.R. Co., 465 ?*2d 25. 46 •

Thus it has been consistently held that under16/
Rule 24(a)(2), the counterpart to Rule 19(a)(2)(i), white 
students and their parents may not intervene as a matter 
of right in school desegregation cases, since ordinarily 
their interests are adequately represented by the school 
board. See United States v. Board of School Comm'rs, 466 
F.2d 573, 575 (7th Cir. 1972), cert. denied, 410 U.S. 909 
(1973); Hatton v. County Bd. of Educ., 422 F.2d 457, 46l 
(6th Cir. 1970); St. Helena Parish School Bd. v. Hall,
287 F.2d 376, 379 (5th Cir.), cert. denied, 368 U.S. 30 
(1961); Moore v. Tangipahoa Parish School Bd., 298 F. Supp.
288 (E.D. La. 1969).

Nor, as the district court held, does the fact 
that black citizens are now members of the Board alter the 
traditional assumption that the Board will adequately rep-

16/ See Advisory Committee Note, supra, at 109.

50



resent the interests of white students and their parents.
For purposes of Rule 24(a)(2) intervention, it has been 
held that representation by existing parties is adequate 
"if no collusion is shown between the representative and 
the opposing party, if the representative does not have or 
represent an interest adverse to the proposed intervenor 
and if the representative does not fail in the fulfillment 
of his duty." Martin v. Kalvar Corp., 411 F.2d 552, 553
(5th Cir. 1969). See also, e.g_. , United States.v. Boar_d
nf School Comm'rs, supra, 466 F.2d at 575; Hatton v. County 
School Bd., supra, 422 F.2d at 46l; Moore v. Tangipahoa 
Parish School Bd. , supra, 298 F. Supp. at 291-92. Clearly 
there has been no collusion between the existing parties 
in this case, as is amply demonstrated by their failure to 
agree on a plan to desegregate the elementary schools. And 
while "interests need not be wholly 'adverse' before there 
is a basis for concluding that existing representation of a 
'different' interest may be inadequate , Hue s se— v.— Camjc , 385  

F.2d 6 9 4 , 703 (D.C. Cir. 1967), "Ci]t is well established 
that when the interests of the applicant and his represen­
tative in the outcome of the lawsuit are identical, their 
interests are not adverse so as to make representation in­
adequate, even though they may be in conflict in other re-

51

I



spects." Peterson v. United States, 4l P.R.D. 131, 13^
(D. Minn. 1966 ) .

There has been no showing in this case that the 
interests of the Board differ in any material manner from
the interests of the white students and their parents; nor 
has such a divergence of interests even been alleged. The 
district court merely voiced its hope that the public elec­
tion of members of the Board would make it "possible" for 
the Board to "be freed of the assumptions of the past and 
placed in a position to impartially operate the public
schools of this country for the benefit of all of the stu-

17/dents and parents of Bibb County." (R. 104.) Absent such 
a showing, the interests of white students and their parents 
are adequately represented by the Board and they are not

—  While plaintiffs join the court in hoping that at some 
future date the Board will in fact operate the public schools "impartially", they recognize that unfortunately such is not 
the case today, as is demonstrated by the record in this action. 
Thus, after more than ten years of protracted litigation, the Board has yet to initiate any action to desegregate its schools 
in fulfillment of its constitutional obligations except when 
ordered to do so by the court. Most recently, despite a 
mandate from this Court issued two years ago to implement a 
plan immediately to eliminate the still existing racially iden­
tifiable schools in compliance with Swann, the Board has 
responded by rejecting already existing plans and instead sub­
mitting two new plans which fail either to eliminate or to justify the continued existence of such racially identifiable 
schools. See pp. 7-9, supra.

52



18/persons required to be joined under Rule 19(a)(2).
In summary, while it may be true that white stu­

dents and their parents have legally- cognizable "interests" 
in the subject matter of this action, the district court 
had no authority to add them as parties to this action on 
its own initiative.

1 8 / If one assumes that the court has power to add on its own initiative persons who are not "necessary" or "indispensable" 
parties under Rule 19 but only "proper" parties under Rule 20, 
(see note l1!, supra) the class of white students and their 
parents still do not qualify for permissive joinder as plaintiffs 
or defendants.

Rule 20(a) provides for joinder as plaintiffs all persons
who

assert any right to relief jointly, severally, 
or in the alternative in respect of or arising out 
of the same transaction, occurrence, or series of 
transactions or occurrences and if any question of 
law or fact common to all these persons will arise 
in the action.

Since the white students and their parents here do not now assert, nor can they assert, any claim for relief against the 
defendant Board, they are clearly not proper parties plaintiff 
who can be joined pursuant to Rule 20(a).

Nor can persons be joined as defendants under Rule 20(a) 
unless

there is asserted against them jointly, sever­
ally, or in the alternative, any right to relief in 
respect to or arising out of the same transaction, 
occurrence or series of transactions or occurrences 
and if any question of law or fact common to all 
defendants will arise in the action.

As already noted, white students and their parents have 
neither the power nor the authority to grant the relief sought 
in this action, see p. ^9, supra, and thus they cannot be 
joined as defendants pursuant to Rule 20(a).

53



B. EVEN IF THE DISTRICT COURT HAD THE POWER
TO JOIN A CLASS OF WHITE STUDENTS AND THEIR 
PARENTS AS PARTIES TO THIS ACTION, THERE 
WAS NO BASIS FOR ORDERING JOINDER AT THIS 
LATE STAGE OF THE LITIGATION.______________

Over the course of this litigation, there have 
been several occasions when whites have sought to intervene 
for the limited purpose of presenting their views on a par­
ticular plan which directly affects them. (See, e.£. ,
R. 90.) Plaintiffs did not object to such prior Inter­
ventions which were narrowly limited in scope; however, 
plaintiffs do object to the joinder by the court, on its 
own initiative, of a broad class of white students and 
their parents as parties plaintiff for all purposes, in­
cluding the submission of yet more plans. (R. 196.) The
addition of a class of whites at this point in the litiga­
tion serves no useful purpose but rather unduly prejudices 
plaintiffs by further delaying a speedy resolution of the 
remaining issues.

It is a well-settled principle, recognized by 
this Court, that the plaintiff has the right to "control" 
his own litigation. Schutten v. Shell Oil Co., supra, at 
8 7 3. See also 7 Wright & Miller, supra, § 1602, p. 18. 
Thus, ordinarily the plaintiff’s choice of parties will 
be compromised only "when significant countervailing con­
siderations make the joinder of particular absentees de-



sirable." 7 Wright &'Miller, supra, § 1602, p. 17. Plain­
tiffs submit there are no such considerations making the 
joinder of a class of white students and their parents 
either necessary or desirable in this action. Rather,
joinder of such parties at this late stage in the litiga­
tion would merely cause further delay and prejudice the 
plaintiffs in their right to a speedy disposition of the 
merits of this lawsuit.

Since "[additional parties always take additional
time," Crosby Steam Gage & Valve Co. v. Hanning, Maxwell

19/& Moore, 51 P. Supp. 972, 973 (D. Mass. 19*13), when a 
motion to add parties who are neither "necessary" nor "in­
dispensable" is made at a late stage in the litigation, it 
will be denied when the effect will be to unnecessarily 
delay the resolution of the case, unduly prejudice the 
present parties or unduly broaden the scope of the liti­
gation. Fair Housing Development Fund Corp. v. Burke, 55 
F.R.D. 4l4 (E.D.N.Y. 1972). See also Barr Rubber Products 
Co. v. Sun Rubber Co., 425 F.2d 1114; 1126-27 (2d Cir.
1970); Joseph v. House, 353 F. Supp. 367> 371 (E.D. Va. 
1973). Similarly, permissive intervention by white students 
and their parents in school desegregation cases has been 
consistently denied when the effect would be to delay and

Additional parties mean additional counsel as well, as 
the district court recognized in advising white parents to 
retain an attorney. R. 184-85.

55



prejudice the rights of the present plaintiffs. See, e.g. 
United States v. Board of School Commas, supra; Hatton 
v. County Bd. of Educ., supra.

More than ten years have elapsed since the com­
mencement of this lawsuit. At the present time, the sole 
remaining business before the district court is to pass on 
the merits of plans previously submitted to desegregate the 
elementary schools of Bibb County in compliance with Swann, 
pursuant to the mandate issued by the Court on May 3, 1972. 
The addition at this late stage of the litigation of a class 
of white students and their parents who have at no time ac­
tively sought to intervene in this action serves no useful 
purpose, but rather prejudices the constitutional right of 
plaintiffs to the immediate termination of racial discrim­
ination in the operation of their school system, and frus­
trates the mandate issued by this Court to resolve the 
merits of this lawsuit without further delay.

Furthermore, the addition of a class of white 
students, and their parents as parties upon the sole ini­
tiative of the court may have the unfortunate effect of 
further exacerbating whatever community hostilities might 
now exist. The inevitable effect of the district court's 
action, even though the designation of the whites has been 
changed to "plaintiffs," is to reinforce the traditional

56



perception that whites and blacks are categorically on 
opposite sides of the legal issues in school desegregation 
cases. Consider, for example, the following remark made 
by a v/hite parent at the December 12 meeting convened by
the district judge:

MAN: Let me see if I got it straight in my 
own mind now. What this Court wants to do is get a group of negroes and a group of white people and 
have a* battle royal and let the School Board off 
of the hook? (R. 1 8 9 .)

While plaintiffs do not suggest that such is the intention 
of the district court, it must be recognized that the joinder 
of a class of white persons at this stage in the litigation 
may only increase the difficulty of implementing Swann in 
Bibb County.

For the reasons stated above, plaintiffs submit 
that it was an abuse of discretion for the district court 
to order the joinder of a class of white students and their 
parents as parties to this litigation.

IV. THE DISTRICT COURT SHOULD BE ORDERED TOCOMPLY WITH THIS COURT'S MANDATE OF MAY 3, 1972, BY IMMEDIATELY PASSING ON THE MERITS 
OF THE THREE PLANS BEFORE IT AT THAT TIME 
AND ORDERING THE IMPLEMENTATION OF ONE OF 
THOSE THREE PLANS BEFORE THE 197^-1975 
SCHOOL TERM. _______ _________________

On May 3, 1972 this Court issued its mandate to 
the district court to "consider the relative merits of plans

57



submitted by the parties designed to eliminate or mini­
mize the number of one-race elementary schools in Bibb 
County" See p. 6, supra. At that time this Court also 
noted that its prior order of February 5, 1970

"was designed to expedite the process of dis­
establishment of the dual school system in 
that county without the necessity for further 
proceedings in the’district court. . . . |T"
460 F .2d at 432-33^ (Emphasis added.)

Two years have elapsed since the above mandate issued, yet 
the district court has failed to approve and order the 
implementation of a plan which would desegregate the ele­
mentary schools in Bibb County in compliance with recent 
pronouncements of the Supreme Court.

This delay is totally unwarranted. More than 
eight months after this Court's mandate issued, the Board 
"responded" by announcing that it could not recommend 
any one of the three updated plans presently before the 
court. See p. 7, supra. Subsequently the Board submitted 
two new plans, neither of which would eliminate or justify 
the continued existence of racially identifiable schools, 
as required by this Court in reliance on Swann. Sê . pp. 
8-9, supra. Since the submission of the second of these 
plans in August, 1973 there have been no proceedings in the 
district court with respect to the merits of this case.

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Even now It is clear that the district court has
no intention of immediately passing on the merits of the 
plans presently before it. Thus, at the December 12 meet­
ing convened by the court, the district judge informed
the newly selected white parents that "the door is wide 
open" if they wished to submit yet another plan, and, in­
deed, the court would "welcome" such submission. (R. 196). 
Plaintiffs submit that not only is it past the time when "the 
door is open" to the submission of new plans, but also 
it is clearly time for the district court to immediately 
approve and order the implementation of one of the plans 
presently before it.

In Alexander v. Holmes County Bd. of Educ.,
396 U.S. 19 (1969), the Supreme Court held impermissible 
any further delays in the Implementation of constitution­
ally required school desegregation:

[C]ontinued operation of segregated 
schools under a standard of allowing "all de­liberate speed" for desegregation is no longer 
constitutionally permissable. Under explicit 
holdings of this Court the obligation of every 
school district is to terminate dual school 
systems and to operate now and hereafter only 
unitary schools. 396 U.S. at 20. (Emphasis 
added.)

This action has been pending more than ten years. Any . 
further delay would irreparably injure plaintiffs in their 
judicially declared constitutional right to attend now a

59



unitary school system.
In view of the fact that after two years the 

district court has failed to comply with the mandate is­
sued by this Court, it is necessary under the holding of
Alexander that the district court be ordered to comply 
immediately with such mandate by approving one of the plans 
presently before it and ordering the implementation of 
such plan prior to the 1974-1975 school term. See, e. g_. 
Brown v. Board of Educ. , 446 F.2d 75 (5th Cir. 1971); 
Boykins v. Fairfield Bd. of Educ., 421 F.2d 1330 (5th 
Cir. 1970).

In order to avoid additional unnecessary delays, 
plaintiffs further request this Court to order the dis­
trict court to approve one of the three updated plans 
present before it at the time this Court's last mandate 
issued, disregarding the two new plans submitted by the 
Board subsequent to that date which do not in good faith 
attempt to comply with the standards announced by the 
Supreme Court in Swann.

The Board has failed adequately to justify its 
refusal to recommend one of the three updated plans before 
the district court in May 1972, since none of the reasons 
submitted by the Board for refusing to recommend one of 
such plans, see p . 7, supra, provides a constitutional

60

I



basis for leaving the elementary schools in their present 
posture.

First, the necessity and cost of increased 
transportation does not justify the Board's failure to 
eliminate the vestiges of its dual system reflected in 
the continued existence of racially identifiable schools. 
Swann, supra, 402 U.S. at 30; Brown v. Board of Educ. ,
464 F .2d 382 (5th Cir. 1972); Boykins v. Fairfield Bd. 
of Educ., 457 F .2d 1091 (5th Cir. 1972); Clark v. Board 
of Educ., 465 F .2d 1044 (8th Cir. 1972), cert. denied,
413 U.S. 923 (1973).

Second, as the Supreme Court has consistently 
held, community objections'to a plan of school desegre­
gation cannot overcome the plaintiffs' judicially declared 
right to an education in a school system unburdened with 
the vestiges of a prior dual system. See, e.g_. Swann, 
supra, 402 U.S. at 13; Cooper v. Aaron, 358 U.S. 1,
15-16 (1958).

Similarly, the claimed disruptive effect a 
plan of desegregation is no defense, particularly when, 
as here, the deliberate resistance and dilatory tactics 
of the Board in response to clear pronouncements of this 
Court as well as the Supreme Court are in large part re­
sponsible for any difficulties which may ensue when such

61



plan Is finally Implemented. See Swann, supra, at 13; Acree 
v. County Bd. of Educ., 458 F.2d 486 (5th Cir.), cert. 
denied, 409 U.S. 1006 (1972).

Finally, it Is clear that neither of the two
new plans submitted by the Board subsequent to May 3>
1972 either eliminate or justify the continued existence 
of racially identifiable schools. Both the 'New Plan' 
submitted by the Board in May 1973 and the "Trotter Plan" 
submitted in August 1973 continue the current practice 
of assigning elementary students to neighborhood schools 
while expressly rejecting the use of busing to maximize 
desegregation, thus leaving untouched numerous racially 
identifiable schools with no adequate justification.
(R. 17, 40, 43-46.) As it is abundantly clear that neither 
of these plans meets the requirements of Swann, plaintiffs 
request that the district court be instructed to disre­
gard them and to approve one of the three updated plans 
before it on May 3, 1972.

CONCLUSION

WHEREFORE, for the reasons set forth above, appellants 
respectfully pray (1) that the order of the district court 
finding that the original named plaintiffs are no longer

62



adequate class representatives be reversed; (2) that the 
order of the district court joining additional parties 
as representatives of the original plaintiff class and as 
representatives of a new class of white students and 
parents be vacated; (3) that the order of the district 
court denying petitioners' application to intervene be 
reversed; and (^) that the district court be ordered to 
immediately pass on the merits of the three plans present 
before it at that time and order the implementation of 
one of those three plans before the 197^-75 school term.

Respectfully submitted,

/s/ Nancy J . Moore_______

THOMAS M. JACKSON 
655 New Street Macon, Georgia 31201

JACK GREENBERG
NORMAN CHACHKIN

10 Columbus Circle 
New York, New York 10019

NANCY J. MOORE 
299 Park Avenue 
New York, New York 10017

ATTORNEYS FOR APPELLANTS

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