Lee v. Clay County School System Brief of Plaintiffs-Appellees

    In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT
No. 03-13272-11

ANTHONY T. LEE, et al.,

and
UNITED STATES OF AMERICA,

Plaintiffs-Appellees,

Plaintiff-Intervenor- Appellee,
v.

CLAY COUNTY SCHOOL SYSTEM, et a l,
Defendants-Appellees,

BOBBY CURRY, et al.,
Applicants for Intervention-Appellants.

On Appeal from the United States District Court 
for the Northern District of Alabama

BRIEF OF LEE PLAINTIFFS-APPELLEES

McGOWAN, GRAY & NATHANSON 99 Hudson Street, 16th fl.

OF COUNSEL:

ELAINE R. JONES 
Director-Counsel 
NORMAN J. CHACHKIN 
NAACP Legal Defense and

GRAY, LANGFORD, SAPP, Educational Fund, Inc.

Post Office Box 830239 
Tuskegee, AL 38603-0239 
Telephone No.: (334) 727-4830 
Fax No.: (334) 727-5877

New York, NY 10013-2897 
Tel. No.: (212) 965-2200 
Fax No.: (212) 219-2052

Fred D. Gray (GRA022) 
Stanley F. Gray (GRA053)

Attorneys for Lee Plaintiffs-Appellees



In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT
No. 03-13272-11

ANTHONY T. LEE, et al.,

and Plaintiffs-Appellees,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor-Appellee,

v.

CLAY COUNTY SCHOOL SYSTEM, et a l ,
Defendants-Appellees,

BOBBY CURRY, et al.,
Applicants for Intervention-Appellants.

On Appeal from the United States District Court 
for the Northern District of Alabama

BRIEF OF LEE PLAINTIFFS-APPELLEES

McGOWAN, GRAY & NATH ANSON 99 Hudson Street, 16th fl.

OF COUNSEL:

EL AINE R. JONES 
Director-Counsel 
NORMAN J. CHACHKIN 
NAACP Legal Defense and

GRAY, LANGFORD, SAPP, Educational Fund, Inc.

Post Office Box 830239 
Tuskegee, AL 38603-0239 
Telephone No.: (334) 727-4830 
Fax No.: (334) 727-5877

New York, NY 10013-2897 
Tel. No.: (212) 965-2200 
Fax No.: (212)219-2052

Fred D. Gray (GRA022) 
Stanley F. Gray (GRA053)

Attorneys for Lee Plaintiffs-Appellees



Certificate of Interested Persons 
and Corporate Disclosure Statement

The undersigned counsel of record certifies that the following listed persons

or entities have an interested in the outcome of this appeal:

R. Alexander Acosta 

Arthur Adair 

Demetrius Adair 

Minnie Adair

Alabama State Board of Education

Terri Ann Bailey

Donna Barrett

Jacke Barrett

Kaitlin Barrett

Randy Barrett

George L. Beck, Jr., Esq.

Bryan Belcher 

Trenton Belcher 

Gregory M. Biggs, Esq.

No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

-C- l  o f 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Terrie Scott Biggs, Esq. 

Gerald Warren Billes 

Heloise Elaine Billes 

I.V. Billes 

Mamie Boggan 

Nelson Boggan, Jr. 

Nelson Boggan, Sr. 

Mack Bowman 

Michael Bowman 

Minnie Bowman 

Ralph F. Boyd, Jr., Esq. 

Pam Brooks 

Holly Britton 

Megan Britton 

Bradley Brown 

Emily Brown 

Jacky Brown, Jr.

- C-2 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Janine Brown

Johnny Mack Brown

Lisa Brown

Tyler Brown

Tanya Cantrell

Terry Cantrell

Ethan Carroll

Lori Carroll

Nathan Carroll

Tim Carroll

Sonny Carroll

Chasity Casey

Colton Casey

Darlene Casey

Randall Casey

Norman J. Chachkin, Esq.

Caitlan Cheney

- C-3 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Chase Cheney 

Kelly Cheney 

Michael Cheney 

Buddy Childers 

Daniel Childers 

Mary Childers

Clay County Board of Education

Dewey Clifton

Hannah Clifton

Dylan Cotney

Long Cotney

Matthew Cotney

Stephanie Cotney

Danelle Courson

Dean Courson

Colleen Crawford

Cindy Crawford

- C-4 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Dakota Crawford 

Joey Crawford 

Kayla Crawford 

Willie Cullars 

Willie D. Cullars 

Bobby Curry 

April Dawson 

Shevon Dawson 

Jack Denham 

Alan Denney 

Brittney Denney 

Freda Denney 

Misty Denney 

Dennis J. Dimsey, Esq. 

Clarence Dortch, Esq. 

Ashley Dupree 

Britney Dupree

- C-5 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Edward Dupree 

Legaither Dupree 

Mickey Eargle 

Vivian Eargle 

Colton East 

Jody East 

Jordan East 

Rita East

Brenda Edmondson 

Dorothy Edmondson 

Jason Edmondson 

Joshua Edmondson 

Timothy Edmondson 

Lisa Wilson Edwards, Esq. 

Brett Elder 

Chad Elder 

Dawn Elder

- C-6 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Deric Elder 

Mike Elder 

Bobbie N. Fables 

Janet Fan- 

Mark Farr 

Devin Gaddis 

Sonia Gaddis 

Lakenya Gardner 

Keaunna Gardner 

Tracie Gardner 

Dennis Autney 

Jade Gibbons 

Blain Gilbert 

Keith Gilbert 

Payton Gilbert 

Wymena Gilbert

- C-7 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Jeremiah Glassman, Esq. 

Johnnie Glenn 

Tiffany Glenn 

Wayne Glenn 

Daniel S. Gordon, Esq. 

Ethan Gortney 

Shawnee Gortney 

Tammy Gortney 

Vic Gortney 

Lindell Graham 

Virginia Graham 

Fred D. Gray, Esq. 

Stanley F. Gray, Esq.

Jodi Griffin 

Lynn Griffin 

Melanie Griffin 

Amy Hamlin

- C-8 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Billy Ray Hamlin 

Johnny Hamlin 

Theron Hendrix 

Cheronda Hernandez 

Delane Hodnett 

Eric Hodnett 

Brenda Hogland 

Mable H. Jackson 

Willie M. Jackson, Jr. 

Diane Jacobs 

Hannah Jacobs 

Wayne Jacobs 

Carrie Jett 

Jerry Jett 

Tina Jett

Brenda Faye Johnson 

Dwight W. Johnson

- C-9 of 20 -



No. 03-13272-11 Lee, et a!, v. Clay County School System, et al.

Edward Earl Johnson 

Martha Johnson 

Ruth Johnson 

Qumorris Johnson 

Willie C. Johnson 

Willie C. Johnson, Jr. 

Abbey Jones 

Becky Jones 

Lamar Jones 

Lamarcus Jones 

Rita Jones 

Wanda Jones 

Winfred Jones 

Justin Karr 

Martin Karr 

Shalena Karr 

Anita L. Kelly, Esq.

- C-10 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Charles B . Kinder 

Brenda Kytan 

Jessica Kytan 

Lindsay Kytan 

Mark Kytan 

Nathan Kytan 

Alison Lee 

Anthony T. Lee 

Brandi Lee 

Brandon Adam Lee 

Cheryl Lee 

Detroit Lee 

Hattie M. Lee 

Henry A. Lee 

Mike Lee 

Paul Michael Lee 

Scott Lee

- C - l l  o f 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Timothy Lee 

Ledra Leonard 

Colton Looser 

Dianne Looser 

Huel M. Love, Jr., Esq.

Huel M. Love, Sr., Esq.

Macon County Board of Education 

Alexis Marbury 

Anastazia Marbury 

Annquanetta Marbury 

Antoinette Marbury 

Antonio Marbury 

Benitta Marbury 

Charlotte Marbury 

Jodarius Marbury

Satdrina Marbury 

Shacorri Marbury

- C-12 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Alice H. Martin, Esq. 

Derek Mattox 

April McCain 

Brandon McCain 

Mulvine McCain 

Shawanda McCain 

Katherine McCollum 

Heather McCormick 

Denise McDonald 

Benitta McLain 

Alison Meadows 

Rikkila Meadows 

Joseph Meek 

Terry J. Meek 

Ann Melton 

Hannah Melton 

Gene Miller

- C-13 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Jake Mitchell 

Jared Mitchell 

Jeff Mitchell 

Jo Ann P. Mitchell 

Dylan Moon 

James Moon 

Melanie Moon 

Edna M. Moore 

Edwina M. Moore 

L. James Moore 

William H. Moore 

Caitlin Morris 

Michelle Morris 

Michael Nash

National Education Association 

Beverly Nelson 

Matthew Nelson

- C-14 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Tommy Nelson 

Emma Noble 

Krystal Noble 

Autumn Nolen 

Bob Nolen 

Holly Nolen 

Sharilyn Nolen 

Patricia Norris 

Shandrea Norris 

Arthur O. Oliver 

Kenneth J. Packer 

Matthew Packer 

Billy Parris, Jr. 

James Parris 

Leeann Parris 

Pam Parris 

Lillian Phillips

- C-15 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Symba Phillips

Daniel Ricketson

Toni Ricketston

Adam Schoggins

Vicke Schoggins

Anna Siggers

James W. Smith

Janice K. Smith

Hon. Lynwood C. Smith, Jr.

Megan Smith

Jill S. Smothers

Kent Smothers

Kurtis Smothers

Rachel Smothers

Rebecca Smothers

Mario Stripling

Alan D. Sullins

- C-16 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Della D. Sullins 

Marsha Marie Sullins 

Palmer Sullins 

Palmer Sullins, Jr.

Donald B. Sweeney, Jr., Esq. 

Amber Thompson 

Christie Thompson 

Daniel Thompson 

Karen Thompson 

Katelyn Thompson 

Lisa Thompson 

Ricky Thompson 

Tim Thompson 

Denise Todd 

Anita Waldrep 

Amber Waldrep 

Chassity Waldrep

- C-17 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Lisa Waldrep 

Tim Waldrep 

Wendell Waldrep 

Randy Walker 

Deidra Awre 

Pat Ware 

Robert Ware 

Holly Watts 

Angie Watts 

Jimmy Watts 

Steven Watts 

Yvonne Watts 

Amber Wellborn 

Aaron Wellborn 

Bonnie Wellborn 

Caleb Wellborn 

Danielle Wellborn

- C -18 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

John Wellborn 

Krislyn Wellborn 

Rachel Wellborn 

Rebekah Wellborn 

Stephen Wellborn 

Alyssa Whaley 

Dawn Whaley 

Rebekah Whaley 

Timmie Whaley 

Brenda Wheeles 

Bridget Wheeles 

David Wheeles 

Anthony White 

Heather White 

Latricia White 

Michael White 

Beth Wilkerson

- C-19 of 20 -



No. 03-13272-11 Lee, et al. v. Clay County School System, et al.

Jason Wilkerson 

Kimberly Wilkerson 

Paul Wilkerson 

Wanda Wilkerson 

Jamie Williams 

Jennifer Williams 

Kayla Williams 

Vanessa Williams 

Frederick Wilson 

Julissa Wilson 

Lanell Wilson 

Brenda J. Wyatt 

Thelma A. Whyatt 

Willie B. Wyatt 

Willie B. Wyatt, Jr.

Norman J. Chac^hkin

- C-20 of 20 -



STATEMENT AS TO ORAL ARGUMENT

Lee Appellees respectfully submit that the legal questions presented in this 

appeal are straightforward, and that there is no need for oral argument.

v

1



Table of Contents

Certificate of Interested Persons........................................................................  Cl

Statement as to Oral Argument..............................................................................  i

Table of Citations .................................................................................................. iii

Statement as to Jurisdiction..................................................................................  ix

Standard of Review................................................................................................xii

Statement of the Issues ............................................................................................ 1

Statement of the Case ..............................................................................................2

Statement of F ac ts ....................................................................................................3

A. Background..........................................................................................3

B. Proposed School Closings ..................................................................4

C. Present Appellants Seek to Intervene.................................................. 7

D. The District Court’s Ruling .............................................................. 11

Summary of Argument .......................................................................................... 13

ARGUMENT —

Page

ii



Table of Contents (continued)

I The District Court Correctly Ruled That Appellants Failed 

To Establish That They Were Entitled to Intervene In This

Case As Of Right Pursuant To Fed. R. Civ. P. 24(a)......................17

II Appellants May Not Contest The Consent Order 

Approving The School Closings Under Devlin v.

Scardelletti, 536 U.S. 1 (2002)........................................................  27

Conclusion..............................................................................................................32

Table of Citations

Cases:

Allen v. Alabama State Bd. of Educ.,

816 F.2d 575 (1 1th Cir. 1987) ....................................................................  12

Babicz v. School Bd. of Broward County,

135 F.3d 1420 (11th Cir. 1998) ..................................................................  24

Berry v. Sch. Dist. of Benton Harbor,

184 F.R.D. 93 (W.D. Mich. 1998) ............................................................  30

Page

iii



Table of Citations (continued)

Page

Cases (continued):

Bradley v. Milliken,

828 F.2d 1186 (6th Cir. 1987) .................................................................... 19

*Bradley v. Pinellas County Sch. Bd.,

961 F.2d 1554 (11th Cir. 1992)........................................................x, 17, 21

County of Suffolk v. Long Island Lighting Co.,

710 F. Supp. 1428 (E.D.N.Y. 1989), aff d in pertinent part,

907 F.2d 1295 (2d Cir. 1990)....................................................................  27

Devine v. Indian River County Sch. Bd.,

249 F.3d 1289 (11th Cir. 2001 )............................................................  23, 24

* Devlin v. Scardelletti,

536 U.S. L 153 L. Ed. 2d 27 (2002)..............................x, xi, 16, 27, 28, 29

EEOC v. Eastern Airlines, Inc.,

736 F.2d 635 (11th Cir. 1984) ....................................................................  ix

Evans v. Buchanan,

130 F.R.D. 306 (D. Del. 1990)..................................................................  19

IV



Table of Citations (continued)

Homer v. Kentucky High Sch. Athletic Ass’n,

45 F.3d 265 (6th Cir. 1994) ........................................................................ 24

Lee v. Macon County Bd. of Educ.,

970 F.2d 767 (11th Cir. 1992) .................................................................... 18

Lee v. Macon County Bd. of Educ.,

267 F. Supp. 458 (M.D. Ala.), aff d sub nom.

Wallace v. United States, 389 U.S. 215 (1967) ..........................................x

Lee v. Macon County Bd. of Educ.,

231 F. Supp. 743 (M.D. Ala. 1964) ............................................................2

Lee v. Macon County Bd. of Educ.,

221 F. Supp. 297 (M.D. Ala. 1963) ........................................................x, 2

Meek v. Metro. Dade County,

985 F.2d 1471 (11th Cir. 1993)............................................................  ix, 27

Parker v. Anderson,

667 F.2d 1204 (5th Cir. Unit A 1982)..................................................  26-27

Page

Cases (continued):



Table of Citations (continued)

*Pate v. Dade County Sch. Bd.,

588 F.2d 501 (5th Cir. 1978), cert, denied sub nom.

Beckford v. Dade County Sch. Bd., 444 U.S. 835 (1979) ....................x, 17

Purcell v. BankAtlantic Fin. Corp.,

85 F.3d 1508 (11th Cir. 1996)....................................................................xii

Reynolds v. Mclnnes,

388 F.3d 1201 (11th Cir. 1003)..................................................................xii

*Rinehart v. Ciba-Geigy Corp.,

190 F.R.D. 197 (M.D. La. 1999)................................................................  30

Stovall v. City of Cocoa,

117 F.3d 1238 (11th Cir. 1997)..................................................................  12

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971) ......................................................................................21

United States v. City of Miami,

278 F.3d 1174 (11th Cir. 2002 )..................................................................xii

Page

Cases (continued):

vi



Table of Citations (continued)

^United States v. Georgia,

19 F.3d 1388 ( l l lhCir. 1994)........................................................ 14, 18, 31

United States v. Mississippi,

958 F.2d 112 (5th Cir. 1992) ...................................................................... 18

*United States v. Perry County Bd. of Educ.,

567 F.2d 277 (5th Cir. 1978) ............................................................x, 17, 18

United States v. South Bend Cmty. Sch. Corp.,

692 F.2d 623 (7th Cir. 1982) ...................................................................... 19

Valley v. Rapides Parish Sch. Bd.,

646 F.2d 925 (5th Cir. 1981), cert, denied, 455 U.S. 939 (1982) .............. 18

*Vecchione v. Wohlgemuth,

80 F.R.D. 32 (E.D. Pa. 1978) .................................................................... 30

Walker County Sch. Dist. v. Bennett ex rel. Bennett,

203 F.3d 1293 (1 1th Cir. 20 0 0 )..................................................................  23

Page

Cases (continued):

vii



Table of Citations (continued)

Women in City Gov’t United v. City of New York,

No. 75 Civ. 2868 (MJL) (S.D.N.Y. June 13, 1986),

1986 U.S. Dist. LEXIS 24218 .................................................................... 30

Statutes:

20 U.S.C. §§ 1400 et seq....................................................................................... 22

20 U.S.C. §§ 1681 et seq................................................................................. 15, 24

28 U.S.C. § 1343(3).............................................................................................. ix

Rules:

Fed. R. Civ. P. 2 3 ................................................................................xi, 16, 27, 30

Fed. R. Civ. P. 2 4 ............................................................................................17, 26

Page

Cases (continued):

>

viii



STATEMENT AS TO JURISDICTION

Two groups of appellants here, “claiming] an interest relating to,” 

respectively, “the closing of Mellow Valley School which is the subject of this 

action” (1 R. Exc. Tab 4, at 7 1 8) or “the closing of Bibb Graves School which is the 

subject of this action” (id. Tab 7, at 5 ^ 3), sought to intervene in this school 

desegregation action, over which the District Court had jurisdiction under 28 U.S.C. 

§ 1343(3), by filing two separate motions in the District court on March 5,2003. The 

motions to intervene were denied by the District Court on May 13, 2003 (2 R. Exc. 

Tab 14), and it is from that May 13, 2003 Order that this appeal was taken (id. Tab 

16).

Under the “anomalous rule” [in this Circuit], [this Court has] 
provisional jurisdiction to determine whether the district court 
erroneously concluded that the appellant was not entitled to intervene 
under Rule 24. If [the Court] finds that the district court’s disposition 
of the petition to intervene was correct, then [its] jurisdiction evaporates 
because the proper denial of leave to intervene is not a final decision, 
and [the Court] must dismiss the[] appeal[] for want of jurisdiction.

EEOC v. Eastern Airlines, Inc., 736 F.2d 635, 637 (11th Cir. 1984).1

'SeeMeek v. Metro. Dade County, 985 F.2d 1471,1476 (11lh Cir. 1993) (noting 
that only the denial of intervention as a matter of right pursuant to Fed. R. Civ. P. 
24(a) is appealable at all because “an order denying permissive intervention is neither 
a final decision nor an appealable interlocutory order because such an order does not 
substantially affect the movant’s rights”).

IX



In this case, the Court lacks jurisdiction over this appeal because the interest 

claimed by Appellants to support their request for intervention — concern over 

school closings — is not, in the context of this case, “an interest in a desegregated 

school system,” Pate v. Dade County Sch. Bd., 588 F.2d 501,503 (5th Cir. 1978), cert, 

denied sub nom. Beckfordv. Dade County Sch. Bd.,444 U.S. 835 (1979); and the law 

is well established in this Circuit that only “an interest in a desegregated school 

system” will support intervention as of right in an ongoing school desegregation 

action. Id.; Bradley v. Pinellas County Sch. Bd., 961 F.2d 1554, 1556 (11th Cir. 

1992); United States v. Perry County Bd. ofEduc., 567 F.2d 277, 279 (5th Cir. 1978).

Appellants also claim (Br. at ix) that this Court has jurisdiction over the appeal 

under Devlin v. Scardelletti, 536 U.S. 1, 153 L. Ed. 2d 27 (2002) because the African- 

American appellants who are members of the class on whose behalf this action was 

brought,2 filed “objections to the approval of the class action consent decree

2See Lee v. Macon County Bd. o f Educ., 221 F. Supp. 297, 298 (M.D. Ala. 
1964) (finding plaintiffs entitled to represent class of Negro children attending public 
schools of Macon County); id., 267 F. Supp. 458, 460-61 (M.D. Ala.) (noting filing 
of supplemental complaint adding Governor Wallace and other state officials as 
defendants and seeking statewide relief), id. at 478 (awarding “plaintiffs the relief to 
which they are entitled . . .  a uniform, state-wide plan for school desegregation, made 
applicable to each local county and city system not already under court order to 
desegregate”), aff'd sub nom. Wallace v. United States, 389 U.S. 215 (1967). 
Paragraph IV of that Amended and Supplemental Complaint averred that “Plaintiffs 
bring this action as a class suit pursuant to Rule 23(a) (3) of the Federal Rules of Civil 
Procedure on behalf of themselves and on behalf of all other Negro children and their



[allowing the closing of Bibb Graves school].” As we show infra, Devlin does not 

support jurisdiction here. The District Court’s approval of the Consent Order (see R. 

Exc. Tab 14, at 2-4) is not equivalent to “dismissal or compromise,” Fed. R. Civ. P. 

23(e), of a class action — which Devlin permits unnamed class members to appeal.

See Devlin, 536 U.S. a t___, 153 L. Ed. 2d at 37 (“The District Court’s approval of

the settlement—which binds petitioner as a member of the class—amounted to a 

‘final decision of [petitioner’s] right or claim’ sufficient to trigger his right to appeal. 

See Williams v. Morgan, 111 U.S. 684, 699 (1884)” [brackets in original]). To the 

contrary, this litigation remains open and active in the District Court, which retains 

jurisdiction over the original parties and the subject matter until the applicable 

constitutional standards for finding “unitary status” and dismissing the suit have been 

met.

For these reasons, Lee appellees submit that this Court lacks jurisdiction over 

this appeal.3

parents similarly situated residing in the various counties throughout the State of 
Alabama, all of whom are affected by the policy, practice, custom and usage 
complained of herein as more fully appears.”

3See also “Response of Plaintiffs-Appellees to Inquiry of Court as to Appellate 
Jurisdiction”, submitted July 23, 2003 herein.

XI



STANDARD OF REVIEW

1. This Court “review[s] the district court’s denial of a motion to intervene as 

of right de novo. Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir. 

1996).” United States v. City o f Miami, 278 F.3d 1174, 1178 (11th Cir. 2002).

2. If the propriety of the District Court’s decision to enter the Consent Order 

were within this Court’s appellate jurisdiction, the District Court’s determinations 

that the decree was not “unconstitutional, unlawful, unreasonable, or contrary to 

public policy,” and that the school closings that the Consent Order approved “will not 

perpetuate or re-establish the dual system” are legal conclusions that this Court would 

review de novo. There is no “mixed question of law and fact,” see App’t Br. at ix, as 

in Reynolds v. Mclnnes] see 388 F.3d 1201, 1211 (11th Cir. 1003) (“The inquiry in 

this case involves both the district court's interpretation of what the consent decree 

requires and its application of that interpretation to SPD's recommendations based on 

the job classification study. As such, our inquiry here is a mixed question of law and 

fact”), because there is no disagreement about what the Consent Order requires or 

issue of its interpretation.

xii



STATEMENT OF THE ISSUES

1. Do students and their parents have “an interest in a desegregated school 

system” sufficient to entitle them to intervene as of right in a school desegregation 

suit in which the parties have proposed that the particular schools they have attended 

be closed, where they fail to make credible allegations that the school closings will 

impede progress toward unitary status or will impose disproportionate burdens upon 

or otherwise discriminate against African-American students?

2. Does Fed. R. Civ. P. 23(e) require class notice and fairness hearings prior 

to the entry of interlocutory orders submitted by consent of the parties, including the 

class representatives, in a school desegregation case, where those orders do not 

“dismiss[] or compromise[]” the underlying claims in the suit, the suit remains open 

before the trial court and subject to its continuing supervision, and there has been no 

determination that “unitary status” has been achieved — so that Devlin v. Scardelletti, 

536 U.S. 1, 153 L. Ed. 2d 27 (2002) authorizes appeals of such interlocutory orders 

by members of the class who object to them but who were properly denied 

intervention pursuant to Fed. R. Civ. P.24(a)?

1



STATEMENT OF THE CASH

This litigation was filed in 1963 to desegregate the public schools of Macon 

County, Alabama, see Lee v. Macon County Bd. o f Educ., 221 F. Supp. 297 (M.D. 

Ala. 1963). It was subsequently expanded into a statewide action covering all school 

districts in Alabama that were not already the subject of separate desegregation suits, 

see id., 231 F. Supp. 743 (M.D. Ala. 1964); supra p. ii note 2. In 1970, the 

proceedings concerning Clay County were transferred to the Northern District of 

Alabama. See 1 R. Exc. Tab 1 [Docket Entries] (reflecting assignment of 1970 Civil 

Action Number to case).

Proceedings leading to the present appeal began in 2002, when the Clay 

County School Board considered closing a school or schools because of anticipated 

fiscal constraints. On February 26, 2003, the parties to the action (private plaintiffs, 

the United States as plaintiff-intervenor, and the school board) submitted a proposed 

Consent Order to the District Court providing for the closing of two schools at the 

conclusion of the 2002-03 school year. This prompted the filing of motions by the 

present appellants seeking intervention in the suit for the purpose of preventing the 

school closings. On May 13, 2003, the District Court denied intervention and 

approved the previously submitted Consent Order. This appeal is taken from the May 

13 Order denying intervention.

2



STATEMENT OF FACTS

A. Background

The basic desegregation Order to which the Clay County School District is 

subject was entered July 11, 1974. It requires, inter alia, that the district take no 

action “which tends to segregate or otherwise discriminate against students or faculty 

by or within school [s] on the basis of race, color, or national origin,” and that “[a]ll 

school construction, school consolidation and site selection . . .  be done in a manner 

that will prevent the reoccurrence of the dual school structure.”4

At the time of the events giving rise to this appeal (the 2001-02 and 2002-03 

school years), the Clay County public school system included four schools located 

roughly in the center of the county (Lineville Elementary and Lineville High School, 

and Ashland Elementary and Clay County High School) as well as two K-12 schools 

located in the southwest and southeast areas of the county, respectively (Bibb Graves 

and Mellow Valley). See 1 R. Exc. Tab 2 [map on unnumbered page following 

proposed Consent Order at 10]. All of the schools were roughly the same size in total 

enrollment, but those enrollments were spread over twice as many grades at Bibb 

Graves and Mellow Valley as at the other facilities. All of the schools were

4The July 11, 1974 Order is Attachment A to the “United States’ Response to 
Jurisdictional Question,” submitted to this Court on July 24, 2003.

3



desegregated, being between 18% and 35% black in 2001-02, except for Mellow 

Valley, which had no black students.5

B. Proposed School Closings

“On May 17, 2002, the Board informed the United States that it had voted to 

close Bibb Graves, its desegregated K-12 school, for budgetary reasons.[6] During 

subsequent conversations, the Board informed the parties-plaintiff that it is necessary 

to close at least one school for budgetary reasons, and that closing one, or both of its 

K-12 schools will provide the greatest financial benefit. Pursuant to their obligation 

to monitor the Board’s compliance with its desegregation obligations, the parties- 

plaintiff engaged in an extensive evaluation of the Board’s closure and consolidation

The District Court found: “During the 2001-02 school year, the Board served 
2,346 students, of whom 23% were black, 77% white, and 1% either Hispanic or 
American Indian. The district consisted] of the following schools:

Ashland Elementary School (K-6, 397 students)( 18% black; 78% white);
Clay County High School (7-12,310 students)(24% black; 74% white); 
Lineville Elementary School (K-6,465 students)(31 % black; 64% white); 
Lineville High School (7-12, 383 students)(35% black; 64% white);
Bibb Graves School (K-12, 381 students)(28% black; 72% white); and 
Mellow Valley School (K-12, 410 students)(0% black; 99.5% white).”

(1 R. Exc. Tab 2, Consent Order at 3.)

This paragraph is quoted verbatim from the proposed Consent Order 
developed in the Fall/Winter of 2002, see 1 R. Exc. Tab 9-11, and submitted to the 
District Court in substantially similar form on February 26, 2003, 1 R. Exc. Tab 2.

4



plan, including review of the Board’s responses to the United States’ information 

requests, interviews with district staff and select Board members, tours of the relevant 

school facilities and bus routes, and detailed discussions with the Board’s counsel.[7] 

As a result of concerns raised by the parties-plaintiff and negotiations between the 

parties, the Board withdrew its original plan to close Bibb Graves before the 2002-03 

school year.”

Announcement of the Board’s proposal to close Bibb Graves, however, 

stimulated a June 7, 2002 motion to intervene in the litigation by a number of Bibb

7On July 18, 2002, counsel for the United States summarized the plaintiff 
parties’ objections to the proposed closing only of Bibb Graves in a letter to counsel 
for the Clay County School Board:

[T]he Board’s stated reasons for choosing to close Bibb Graves, a 
desegregated school, over Mellow Valley, the district’s only racially- 
identifiable school, were unpersuasive. It was also apparent, based on 
our site visit and discussion with the district staff and the Board 
members, that the Board’s affirmative obligation to desegregate was not 
seriously considered in the Board’s decision-making process. See 
Harris v. Crenshaw Countv Bd. of Educ.. 968 F.2d 1090, 1095 (11th Cir.
1992) [parenthetical quotation omitted]. Moreover, our site visit 
indicated that closure of Mellow Valley would result in shorter 
transportation times to the Clay County/Ashland schools and fewer bus 
routes, than would the closure of Bibb Graves. In short, the Board has 
failed to provide us with any legitimate reason, let alone a persuasive 
one, for its decision to close a desegregated school in lieu of its only 
racially-identifiable school.

(1 R. Exc. Tab 9-3.)

5



Graves students and their parents (represented by some of the same attorneys who

represent the present appellants). 1 R. Exc. Tab 1 [Docket Entries], at unnumbered

page 4. That motion was denied by the District Court on July 17, 2002 (id.; see also

2 R. Exc. Tab 14, at 2),8 and no appeal was taken.

Subsequently, the School Board on July 23, 2002 voted “to close both Mellow

Valley and Bibb Graves schools” (2 R. Exc. Tab 14, at 2). As the District Court

summarized the events that followed (2 R. Exc. Tab 14, at 2-3.):

After the July 23, 2002 vote, the parties agreed to a consent decree 
closing both Mellow Valley and Bibb Graves school. Before the 
consent decree was submitted to the court for approval, however, 
citizens from Mellow Valley and Bibb Graves asked the Board to defer 
submission until after November 5, 2002, at which time the citizens of 
Clay County would vote on a proposal to increase the ad valorem taxes 
for the benefit of the school system. The tax proposal was defeated.

Although the tax proposal was defeated, the financial projections 
for the Clay County school system changed such that, instead of a 
projected deficit in excess of $600,000 for the 2002-2003 school year, 
the Board anticipated an operating surplus. When parents of students 
attending Bibb Graves and Mellow Valley learned that at least one of 
the principal reasons for the July 23, 2002 Board decision to close both 
schools no longer existed, i.e., a projected deficit, they asked the Board 
to reconsider its decision. The Board did so, but on January 17, 2003, 
by a 3-2 vote, the Board authorized its attorney to submit the consent 
decree for this Court’s approval. This was done on February 26, 2003.

8The District Court’s July 17,2002 Order was included as Attachment C to the 
“United States’ Response to Jurisdictional Question,” submitted to this Court on July 
24, 2003.

6



In the meantime, the Chairman of the school board — who had voted with the 

majority in favor of the Consent Order and of closing both Bibb Graves and Mellow 

Valley — had resigned his post to join the administration of Alabama’s new 

Governor, Bob Riley. Id. at 3 n.7. The vacancy on the school board was not filled 

until February, 2003, and the newly constituted board did not meet until February 27, 

2003, one day after the Joint Motion to Approve Consent Order had been submitted 

to the District Court. On that date, the new school board “by a vote of 3-2, voted to 

rescind the prior Board’s two decisions to close Mellow Valley and Bibb Graves 

schools,” id. at 3, text at n.8, and the Board formally asked the District Court to reject 

the Joint Motion.

C. Present Appellants Seek to Intervene

On March 5, 2003, the present appellants filed separate motions to intervene 

on behalf of white students attending the Mellow Valley school (1 R. Exc. Tab 4) to 

protect their “interest relating to the closing of Mellow Valley School which is the 

subject of this action” (id. at 7 ^ 8) and on behalf of African-American students 

attending the Bibb Graves school (id., Tab 7) to protect their “interest relating to the 

closing of Bibb Graves School which is the subject of this action” (id. at 5 f  3). The 

latter motion alleged that the proposed intervenors were members of the original Lee

7



class, see note 2 , supra at p. ii; that the class was being inadequately represented 

because Lee plaintiffs had not objected to the closing of Bibb Graves and Mellow 

Valley; and that the class should therefore be decertified or, alternatively, these 

appellants should be admitted as parties to represent a subclass of African-American 

students attending the Bibb Graves school.

The Mellow Valley students alleged that the plaintiff parties ignored their 

“rights in attending an integrated school [frc] at a close proximity to their homes and 

to participate in athletics and other extracurricular activities in a small, neighborhood 

school,” but rather conspired with the school board “for the major purpose of 

increasing the number of high school male students at Ashland in order to increase 

their athletic classification from 1A to 2A” (1 R. Exc. Tab 4, at 9 1 13); as well as that 

the closure ofthe Mellow Valley school would involve “transportation of tremendous 

distances and time spent in buses and away from family or school; and lost 

opportunities for participation in athletic and other extracurricular activities” (id. at 

10116).

The Bibb Graves students alleged that “[although the United States and Lee 

Plaintiffs met briefly with the Bibb Graves parties in June and July of 2002, the 

government subsequently closed them out of meetings and negotiations^] opposed 

their right to intervene in other proceedings, generally ignored their concerns, (Ex-1,

8



& 2) and voted [sic] to close Bibb Graves School on May 16, 2002 and again on July 

23, 2002. (Ex-6)” (1 R. Exc. Tab 7, at 6-7 f  6); that “[t]he closing of Bibb Graves 

would cause an unequal burden to be placed upon the African-American students, 

parents, taxpayers and members of Bibb Graves School and community by 

eliminating opportunity for boys and girls in sports, extra-curricular activity and 

participation in school and community programs . . . would remove an integral part 

of the community . . . would cause African-American students to be bused 

disproportionately to white students [j/c] located in the Lineville and Ashland School 

areas. (Ex-1 & 2 ) . . .  [and] would result in a general dilution of black students in the 

remaining schools” (id. at 7-8 f  10);9 that the closing of Bibb Graves “would unfairly 

displace a large number of African-American special education students from a

9The motion averred that “the school closings will cause the student population 
of each to be transferred to Ashland and Lineville School. Presently, the African- 
American students at Lineville and Ashland have substantial input in the direction 
and control of school activities. The majority of Mellow Valley and Bibb Graves 
School student population is white, and the result of the Board’s action will unfairly 
dilute the strength of the African-American student population at Ashland and 
Lineville. (Ex-7) Thus, the African-American students at Bibb Graves, Lineville and 
Ashland will be irreparably injured when their voices are lessened by the arbitrary 
actions of the School Board. To dilute that ability is unfair and disadvantages the 
African-American students again. Additionally, the African-American students at 
Bibb Graves will seriously be effected [sic] because their future percentage of the 
total County white student population will be substantially diminished. Causing the 
African-American students of Bibb Graves to be divided and diluted in the mix of the 
other schools is unfair and puts them at a distinct disadvantage which they would not 
ordinarily encounter.” (Id. at 8-9 TJ 11.)

9



successful and comfortable learning environment to a school from which several of 

the Plaintiffs [sic: putative intervenors] were removed due to the failure of these 

students to achieve and be educated at that school. (Ex-2)”; would result in 

diminished opportunities for African-American athletes, particularly female African- 

American athletes (id. at 12-13 I f  18, 19); and that the closings would “fail[] to 

eliminate the effects of [the Board of Education’s] prior unconstitutional conduct.. .  

in allowing freedom of choice in the past, and in failing to draw district lines 

compatible with demographics and reasonable transportation routes” (id. at 12 f  17).

Appellants sought to support these allegations with a plethora of exhibits, 

principally including a large number of affidavits from parents of students attending 

Bibb Graves (1 R. Exc. Tab 9-1, 9-2). These affidavits were similarly phrased, 

alleging that if Bibb Graves were closed, the transportation required to Ashland or 

Lineville would be, e.g., “too long to be on the school bus each day,” that (whether 

or not a child currently participated in athletic or other extracurricular activities at 

Bibb Graves) they “would be denied those opportunities” if reassigned when Bibb 

Graves was closed, and that Bibb Graves parents “were not allowed to voice our 

opinions to the government attorneys nor the NAACP’s lawyer.”10 Appellants also

’“Identical or substantially similar language on these matters can be found in 
the affidavits of Arthur and Minnie Adair, Shevon Dawson, Legaither and Edward 
DuPree, Sonia Gaddis, Tracie Gradner, CheRhonda Hernandez, Edward Earl Johnson,

10



preferred the affidavit of a Mellow Valley Assistant Principal who stated that “if 

Mellow Valley schools were to be closed, it would have a substantial impact to 

diminish the black/white ratio at Lineville and Clay County Schools” (1 R. Exc. Tab

9- 7),11 as well as copies of2002 high school yearbooks (2 R. Exc. Tabs 10-12, 10-13,

10- 14, and 10-15) and three notarized statements concerning a July, 2002 

conversation with a Board member concerning Mellow Valley’s closing in which the 

Board member allegedly disparaged African-American students at Bibb Graves {id., 

Tab 9-4).

D. The District Court's Ruling

Following extensive briefing {see 1 R. Exc. Tab 1 [Docket Entries], at 

unnumbered pages 5-7), the District Court on May 13, 2003 denied the requested 

intervention and approved the Consent Decree authorizing the closure of the Mellow 

Valley and Bibb Graves schools (2 R. Exc. Tab 14; see id. at 4-5).

LeMarcus and Rita Jones, Antoinette Marbury, Charlotte Marbury, Mulvine McCain, 
Benitta McCain, Emma Noble, Lillian Phillips, Allison Meadows, Patricia Norris, 
Robert and Pat Ware, Vanessa Williams, Frederick and Beverly Wilson [Tab 9-1], 
Mack and Minnie Bowman, Dorothy Edmondson, Brenda Hogland, Martha Johnson, 
and Tommy Nelson [Tab 9-2].

1 ‘The statistics provided by this affiant, which included only two categories — 
“White” and “Minority” — indicated that the racial composition of Lineville High 
School would change from 64.0% White to 65.6% White, while that at Clay County 
High School would remain unchanged at 74.2% White. Id.

11



Relying upon this Court’s decisions in Allen v. Alabama State Bd. ofEduc., 

816 F.2d 575 (11th Cir. 1987)andStovallv. Cityof Cocoa, 117 F.3d 1238, 1242 (1 1 th 

Cir. 1997), the District Court rejected the School Board’s attempt to withdraw its 

earlier approval of the Consent Order (id. at 3). It then held that “[cjlosing Mellow 

Valley and Bibb Graves will not perpetuate or re-establish the dual system” and 

“[tjhere being no evidence presented to the court that the proposed consent decree is 

unconstitutional, unlawful, unreasonable, or contrary to public policy . . . granted] 

the Joint Motion to Approve Consent Order filed on February 26, 2003” (id. at 4). 

The present appellants then sought reconsideration or new trial, and in disposing of 

that request, the District Court expanded upon the basis for its ruling (id. at 4-5):

The key principles of Eleventh Circuit jurisprudence are that those 
seeking intervention in a school desegregation action must demonstrate 
that they seek to further the goal of removing all vestiges of prior 
discrimination, and thereby achieving “unitary status,” rather than 
seeking to advance other interests, such as their desire to keep a 
particular school open or to retain a particular school attendance pattern.
See, e.g., Bradley v. Pinellas County School Board, 962 F.2d 1554,1556 
(11th Cir. 1992); United States v. Perry County Board o f Education, 567 
F.2d 277, 279 (5th Cir. 1978). Neither in their previous filings with the 
court, nor in their current motion, do the proposed intervenors identify 
how they meet this standard. The court finds and concludes that the 
factual allegations of the proposed intervenors are so devoid of merit 
that they justify summary denial of intervention. See Bradley v. Pinellas 
County School Board, 962 F.2d at 1556.

Finally, the Bibb Graves and Mellow Valley intervenors cite 
United States v. City o f Hialeah, 140 F.3d 968, 975 (11th Cir. 1998), for

12



the proposition that Federal Rule of Civil Procedure 23(e) requires the 
court to hold a fairness hearing before approving the consent decree. 
First, as the court has denied the motion to intervene, the proposed 
intervenors have no standing to move for reconsideration of the Court’s 
decision to enforce the consent decree. Cf Cook v. Powell Buick, Inc., 
155 F.3d 758, 761 (5th Cir. 1998). It bears mentioning that the Clay 
County Board has filed no objection and no suggestion or request for 
any hearing regarding the court’s approval of the consent decree. 
Second, City o f Hialeah, does not stand for the proposition cited by the 
Bibb Graves and Mellow Valley intervenors. Third, the parties fail to 
cite, and research fails to reveal, a single case where Rule 23(e) has been 
construed to mandate notice and fairness hearings at each interim step 
in the course of litigation when some interest or position that has been 
advanced or could be advanced by the plaintiff class representatives is 
modified, withdrawn, or affected in some way through consensual action 
of the parties. Instead, application of Rule 23(e) prior to the termination 
of class actions should afford sufficient protection of the interests of 
absent class members without bringing the administration of class action 
lawsuits to a virtual standstill.

This appeal followed.

SUMMARY OF ARGUMENT

Appellants sought to enter this litigation for one purpose and one purpose 

alone: to seek to prevent the closings of two schools in Clay County, including a 

99.5% white school which had never been desegregated, that the minor applicants for 

intervention had attended. Aware of this Court’s long adherence to the principle that 

“[a]n interest in maintaining local community schools, without any showing that 

consolidation would hamper the avowed goal of eliminating the vestiges of past

13



discrimination, fails to constitute a legally cognizable interest in a school 

desegregation case,” United States v. Georgia, 19 F.3d 1388, 1394 ( 1 1th Cir. 1994), 

Appellants attempted to support their request to enter the suit by making broad but 

wholly inadequate and unsustainable allegations that the school closings were 

discriminatory and would retard achievement of unitary status — allegations that the 

court below correctly found “so devoid of merit that they justify summary denial of 

intervention,” including:

•  The allegation that closing a 99.5% white school and reassigning its 

students to desegregated facilities would impair progress toward unitary 

status and failed to address the school system’s prior practice of 

permitting white children residing elsewhere in the district the “free 

choice” to attend that school;

•  The averment that closing the schools places an “unequal burden of 

transportation on African-American students” when virtually all of the 

pupils — both black and white — who formerly attended the closed 

facilities will be transported to their new assignments, and African- 

American students made up 0% of one closed school’s enrollment and 

28% of the other school’s enrollment.

14



•  The claim that opportunities for extra-curricular activities similarly will 

be disproportionately diminished for African-American students by the 

closings and reassignments.

•  The assertion that a reduction of less than ten percentage points in the 

proportion of African-American enrollment after reassignment of pupils 

from the closed schools were made amounted to a legally significant and 

constitutionally objectionable “dilution of the African-American student 

ratio.”

•  The hypotheses that closing the schools violated rights guaranteeed to 

special education students attending them under federal law (IDEA, 20 

U.S.C. §§ 1400 et seq. and that the school closings would prevent the 

system from “effectively accommodat[ing] the interests and abilities of 

female students” to participate in athletic programs at the facilities to 

which they would be reassigned, in violation of Title IX of the 

Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq.

The District Court correctly perceived that none of these allegations — which were 

supported only by inadequate, uniformly worded affidavits from parents and 

irrelevant materials such as school yearbooks — presented a legally valid basis for 

intervention.

15



The alternative argument that those Appellants who are African-American 

students in the Clay County system are entitled to appeal from the entry of the 

Consent Order approving the school closings as members of the plaintiff class who 

objected to a “consent decree” settling the case, under Devlin v. Scardelletti, 536 U.S. 

1, 153 L. Ed. 2d 27 (2002), is equally devoid of substance. Devlin applies only to 

settlements and final orders that terminate class actions and is relevant only in those 

cases in which Rule 23(e) requires class notice and fairness hearings. As the District 

Court recognized, no court has ever held that Rule 23(e) applies to interim rulings 

“when some interest or position that has been advanced or could be advanced by the 

plaintiff class representatives is modified, withdrawn, or affected in some way 

through consensual action of the parties,” and to do so would “bring[] the 

administration of class action lawsuits to a virtual standstill.”

16



ARGUMENT

I

The District Court Correctly Ruled That 
Appellants Failed To Establish That They 
Were Entitled To Intervene In This Case 

As of Right Pursuant to Fed. R. Civ. P. 24(a)

Appellants give lip service to the settled law of this Circuit that only “an 

interest in a desegregated school system” will support intervention as of right 

pursuant to Fed. R. Civ. P. 24(a) in a school desegregation action. Bradley v. Pinellas 

County Sch.Bd., 961 F.2d 1554, 1556(11th Cir. 1992); Pate v. Dade County Sch. Bd., 

588 F.2d 501, 503 (5th Cir. 1978), cert, denied sub nom. Beckford v. Dade County 

Sch. Bd., 444 U.S. 835 (1979); United States v. Perry County’ Bd. ofEduc., 567 F.2d 

277, 279 (5th Cir. 1978). See App’t. Br. at 17-18. Throughout the proceedings, they 

have alleged that their purpose is to further the goal of ending the dual system. But, 

as the District Court correctly perceived, appellants’ allegations are without any 

factual foundation.

Indeed, as we noted above {supra pp. 7-8), appellants’ motions to intervene 

clearly stated that the interest they sought to protect was the continued operation of 

the schools they were attending: Bibb Graves and Mellow Valley. This Court and the 

Fifth Circuit have clearly rejected such an interest as justifying intervention, unless

17



there is a demonstration that the school closure would impair desegregation. E.g., 

United States v. Georgia, 19 F.3d 1388, 1394 ( 1 1 th Cir. 1994) (“An interest in 

maintaining local community schools, without any showing that consolidation would 

hamper the avowed goal of eliminating the vestiges of past discrimination, fails to 

constitute a legally cognizable interest in a school desegregation case”); United States 

v. Mississippi, 958 F.2d 112 (5th Cir. 1992) (opposition to consolidation of three of 

county system’s elementary schools into single facility did not justify intervention as 

of right);12 but see Lee v. Macon County Bd. ofEduc., 970 F.2d 767 (11th Cir. 1992) 

(district court granted intervention to parents and student seeking to present closing 

of only desegregated school in system).

To be sure, appellants repeatedly assert, as they did below, that the closure of 

Bibb Graves and Mellow Valley will impede desegregation. App’t Br. at 18-19. 

Their claims, however, are utterly without substance:

•  Appellants charge that the school closings fail to address the school 

board’s former “free choice” policy which, in 2001-02, for example, 

allowed 48 white students residing throughout the county to attend the

nSee also, e.g., Valley v. Rapides Parish Sch. Bd., 646 F.2d 925, 941 (5th Cir. 
1981) (“parents opposing facets of a desegregation plan have no right to 
intervention”), cert, denied, 455 U.S. 939 (1982); United States v. Perry County Bd. 
o f Educ. (parents who preferred construction of centralized school to facilities plan 
submitted by school board held not entitled to intervention).

18



virtually all-white Mellow Valley school (1 R. Exc. Tab 2, at 3). Yet the 

plan eliminates the system’s only racially identifiable school, eliminates 

ffeedom-of-choice, and establishes zone lines for school attendance. See 

Attachment D to “United States’ Response to Jurisdictional Question,” 

submitted to this Court on July 24, 2003. To the extent that appellants 

suggest that it would be preferable to implement some other pattern of 

rezoning and modification of transportation routes to achieve 

desegregation while leaving all schools open, their disagreement with 

the other parties about the best method for desegregating does not 

support intervention as of right. See, e.g., Bradley v. Milliken, 828 F.2d 

1186, 1192 (6th Cir. 1987) (“A mere disagreement over litigation 

strategy or individual aspects of a remediation plan does not, in and of 

itself, establish inadequacy of representation”); United States v. South 

Bend Cmty. Sch. Corp., 692 F.2d 623, 628 (7th Cir. 1982) (intervention 

denied where disagreement between proposed intervenor and party was 

over ‘road map’ to be used to achieve” “system-wide desegregation of 

students and staff’); Evans v. Buchanan, 130 F.R.D. 306, 313 (D. Del. 

1990) (same).

Appellants claim that the school closings place an “unequal burden of

19



transportation on African-American students” (Br. at 18). The factual 

basis for this statement is never explained. While a decision to close 

only Bibb Graves, the sole K-12 facility attended by African-American 

students — while leaving Mellow Valley open — would have prompted 

legitimate concerns about transportation burdens, the vast bulk of 

students reassigned under the Consent Order are the white children who 

made up 99.5% of Mellow Valley’s enrollment and 72% of Bibb 

Graves’ enrollment.

Appellants assert that the school closings will diminish the opportunities 

for extra-curricular activities for African-American students (Br. at 18;

1 R. Exc. Tab 7, at 12 f  17). Again, appellants fail to identify any aspect 

of the school closing plan that singles out black students — reassigned 

or other — to be barred or limited from participating in extra-curricular 

programs at the four schools that will remain in the Clay County system. 

Appellants had the opportunity to support their assertions in the trial 

court and they submitted affidavits from parents of Bibb Graves students 

for this purpose. But those affidavits simply repeat the blanket assertion 

and, in fact, none of them makes a claim that athletic or other 

opportunities will be reduced only, or even disproportionately, for

20



African-American students. Moreover, appellants made similar 

arguments on behalf of Mellow Valley students (99.5% of whom were 

white) in their separate motion for intervention by these students and 

their parents. See 1 R. Exc. Tab 4, at 10 f  16 (plan will cause “lost 

opportunities for participation in athletic and other extracurricular 

activities” for the Mellow Valley applicants for intervention). The 

District Court correctly ruled that appellants had failed to raise a 

colorable claim of discrimination that would support intervention as of 

right. See Bradley v. Pinellas County Sch. Bd., 961 F.2d at 1557 

(recognizing colorable allegation of “discriminatory practices” and 

denial of “the right of black students to equitable busing as established 

by the district court’s . . . desegregation order”).

•  Appellants claim the closings will cause “dilution of the African- 

American student ratio at the remaining two schools” (Br. at 18). 

Whatever appellants believe to be the legal significance of such a 

result13 — if it were to happen — the claim does not fit the facts.

nSee Swann v. Charlotte-Mecklenburg Bd. o f Educ., 402 U.S. 1, 37-38 
(1971 )(“If we were to read the holding of the District Court to require, as a matter 
of substantive constitutional right, any particular degree of racial balance or mixing, 
that approach would be disapproved and we would be obliged to reverse. The 
constitutional command to desegregate schools does not mean that every school in

21



Appellants’ own estimate was that the proportion of the enrollment that 

was “minority” at one of the “remaining two [high] schools” would be 

unchanged, and that at the other would drop by only 1.6 percentage 

points (see supra p. 11 note 11), and the Superintendent’s projection 

was that under the plan, the ratios would change by less than 10 per 

cent.14 *

Appellants argue that the closing of Bibb Graves and Mellow Valley 

schools, and the consequent reassignment of special education pupils 

who had been attending those schools, violated the rights of those 

putative intervenors who are classified under the IDEA, 20 U.S.C. §§ 

1400 et seq. (Br. at 21-23). Not surprisingly, appellants do not cite a 

single decision of any court holding that IDEA requires a school system

every community must always reflect the racial composition of the school system as 
a whole”).

I4See Attachment D to “United States’ Response to Jurisdictional Question,”
submitted to this Court on July 24, 2003. In 2001 -02, Lmeville High was 35% black 
and Clay County High School 24% black, see supra p. 4 note 5. After the closings, 
the Superintendent projected that Lineville High would become 26.2% black and 
Clay County High was 18.7% black. Appellants never explain why changes of this 
magnitude constitute some sort of harmful “dilution,” except to state that “the 
African-American students at Bibb Graves, Lineville and Ashland will be irreparably 
injured when their voices are lessened” (see supra p. 9 note 9). They cite no authority 
recognizing such a concern about “dilution” of enrollment proportions as an interest 
that justifies intervention in a school desegregation suit.

22



to maintain a particular school facility. Rather, IDEA protects the rights 

of students who are classified as requiring exceptional education 

services to receive a “Free Appropriate Public Education” (“FAPE”);15 

if a school system is unable to provide an appropriate program in its own 

facilities, it is responsible for the costs of an appropriate placement for 

the child, even if that is a private placement secured by the parent.16 

Equally important, IDEA provides an elaborate administrative process 

with ultimate judicial review for individual children to follow in order 

to enforce their right to a FAPE. Attempting to do so through 

intervention in this school desegregation suit is, at a minimum, 

premature in the absence of exhaustion of the administrative remedy

15It bears remarking that, even assuming that the programs operated at Mellow 
Valley and Bibb Graves were educationally “ideal” for some or all of the applicants 
for intervention, nevertheless such programs might not be required by IDEA. “The 
Supreme Court has said that a student is only entitled to some educational benefit; the 
benefit need not be maximized to be adequate. See Board o f Educ. o f Hendrick 
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 3046, 3049 n. 26, 
73 L.Ed.2d 690 (1982).” Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 
1292 (11th Cir. 2001). Appellants thus could not know in March of 2003, when they 
sought intervention, whether special education programs for their children at 
Lineville, Ashland or Clay County High would be “adequate” under IDEA, and at 
that time they had no present interest to enforce through intervention under Rule 
24(a).

16 Walker County Sch. Dist. v. Bennett ex rel. Bennett, 203 F.3d 1293, 1298n.8 
(11th Cir. 2000).

23



available. Devine v. Indian River County’ Sch. Bd., 249 F.3d at 1292 n.2, 

citing Babiczv. School Bd. o f Broward Count)’, 135 F.3d 1420(11th Cir. 

1998).

•  Appellants also make an extended argument (see App’t Br. at 23-31) 

that the school closings violate Title IX of the Education Amendments 

of 1972, 20 U.S.C. §§ 1681 et seq. because they prevent the school 

system from “effectively accommodating] the interests and abilities of 

female students” (Br. at 25). As with appellants’ special education 

contentions, it is noteworthy that appellants cite no decision requiring 

a public school district to continue to operate a particular school facility 

at which, in the past, female students have participated on athletic teams, 

in order to assure that the district “effectively accommodate[s] the 

interests and abilities of female students.”17 Moreover, appellants’ entire 

submission is based upon speculation about the opportunities for athletic 

participation that the Clay County system would make available to its

l7In fact, one case they do cite, Horner v. Kentucky High Sch. Athletic Asss 'n, 
43 F.3d 265 (6th Cir. 1994) emphasizes that Title IX protects students, not schools, 
see id. at 273-74 (“the interests of the member schools is not necessarily identical 
with that of the students . . . .  Under the district court's reasoning, a school system's 
compliance with Title IX can be measured by the personal views of the administrators 
of individual schools, irrespective of whether these views achieve Title IX's equal 
opportunity requirement”).

24



students following the implementation of the school closings. For

example, relying upon high school yearbook pictures, appellants

counted male and female athletic team members at Mellow Valley and

at Lineville High School in 2001-02, finding that “[e]ven though the

attendance by sex is approximately even at Lineville, there are 71%

athletic positions for boys and only 29% for girls” (App’t Br. at 28).18

Apparently assuming that there would be no change whatsoever in

athletic offerings or participation levels at Lineville following the school

consolidations, appellants then assert (id.) that

the closing of Mellow Valley and transferring of their 
students to Lineville will exacerbate [s/c] the opportunity 
for participation for girls. Not only would Mellow Valley 
female students lose their present opportunities for 
participation, but the disparity of athletic positions for boys 
and girls would also negatively impact the girls.

(A similarly speculative argument is made respecting Bibb Graves,

App’t Br. at 29-30.) There simply is no factual basis for appellants’

assumptions. In addition, if there is a failure to “effectively

accommodate” the interests of female athletes at one, several, or all of

lsAppellants have made no claim that in the 2001 -02 school year, the “interests 
and abilities” of female pupils at Lineville High School were not being “effectively 
accommodated.

25



the four schools currently operated by the Clay County district, 

appropriate Title IX remedies remain available to protect appellants’ 

rights.

In sum, the District Court properly concluded that the proposed intervenors’ 

claims that the closing of the Bibb Graves and Mellow Valley schools would impede 

the achievement of unitary status by the Clay County school system were entirely 

without merit, and accordingly that they had no right to intervene in this action 

pursuant to Fed. R. Civ. P. 24(a).19

l9Because Appellants cannot demonstrate that the proposed school closings will 
impede desegregation, their claims of inadequate representation are without merit. 
The responsibility of class counsel is to further the common interests of the class (/.<?., 
in this case, the elimination of all vestiges of the prior dual system) rather than the 
interests of particular individuals or segments of the class. Counsel’s obligation to 
further classwide interests is independent of and paramount over any obligation to 
any particular group of class members — even the named class representatives:

The courts have recognized that the duty owed by class counsel 
is to the entire class and is not dependent on the special desires of the 
named plaintiffs. It has been held that agreement of the named 
plaintiffs is not essential to approval of a settlement which the trial court 
finds to be fair and reasonable. “Because of the unique nature of the 
attorney-client relationship in a class action, the cases cited by 
appellants holding that an attorney cannot settle his individual client’s 
case without the authorization of the client are simply inapplicable.” 
Kincade [v. General Tire & Rubber Company], 635 F.2d [501,] 508 [5th 
Cir. 1981]; . . . Accord, Pettway v. American Cast Iron Pipe Co., 576 
F.2d 1157 (5th Cir. 1978), cert, denied, 439 U.S. 1115,99 S.Ct. 1020,59 
L.Ed.2d 74(1979).

26



II

Appellants May Not Contest The Consent 
Order Approving The School Closings 

Under Devlin v. Scardelletti, 536 U.S. 1 (2002)

In addition to seeking to overturn the District Court’s denial of their application 

to intervene, Appellants raise both procedural (the trial court should have held a 

fairness hearing pursuant to Fed. R. Civ. P. 23(e) before entering the Consent Order 

approving the school closings, see App’t Br. at 38-43) and substantive (the trial court 

erred in accepting the Consent Order, see Br. at 43-53) arguments about the District 

Court’s decision to enter the Consent Order submitted by the parties on February 26, 

2003. Although this Court normally could not entertain those arguments “in the 

absence of [a] conclusion that the district court improperly denied the [putative] 

intervenors’ motions to intervene,” Meek v. Metro. Dade County, 985 F.2d at 1476, 

Appellants contend that Devlin v. Scardelletti, 536 U.S. 1, 153 L. Ed. 2d 27 (2002) 

allows the African-American applicants for intervention below to appeal because (a)

Parker v. Anderson, 667 F.2d 1204, 1211 (5th Cir. Unit A 1982) (affirming approval 
of class action settlement “granted over the objection of all but one of the eleven 
named plaintiffs as well as over the objections of a number of class plaintiffs,” id. at 
1207; see also County o f Suffolk v. Long Island Lighting Co., 710 F. Supp. 1428, 
1435 (E.D.N. Y. 1989) (“[i]n light of her fiduciary responsibility to the class, counsel 
was under a duty to ignore any special interests of the objecting class representatives 
in favor of the overall, general interest of the class as a whole”), aff'd in pertinent 
part, 907 F.2d 1295, 1325 (2d Cir. 1990).

27



they are members of the class on whose behalf the main action was brought, and (b) 

the Consent Order was a “settlement.” App’t Br. at ix, 15. This contention is simply 

wrong.

Devlin was a class action on behalf of employees and retired employees 

covered by a union pension plan. It challenged the 1997 withdrawal of a cost-of- 

living-adjustment of benefits that had been added by the plan’s trustees in 1991. The 

plaintiffs’ counsel negotiated a proposed settlement “whereby the COLA benefits 

would be eliminated in exchange for the addition of other benefits” and the case

would be dismissed, 536 U.S. at___, 153 L. Ed. 2d at 35. Devlin, who was a member

of the class but not a named plaintiff — and who in fact had been denied intervention 

in the proceeding on timeliness grounds, id. — filed objections to the settlement, 

which the district court rejected. Devlin appealed both the denial of intervention and 

the approval of the settlement; the Fourth Circuit “affirmed the District Court’s denial 

of intervention under an abuse of discretion standard,” and also held that “because 

petitioner was not a named representative of the class and because he had been 

properly denied the right to intervene,” he could not appeal approval of the 

settlement. Id.

The Supreme Court reversed, holding that Devlin “should be considered a 

'party’ for the purposes of appealing the approval of the settlement,” 536 U.S. at__ ,

28



153 L. Ed. 2d at 36 [emphasis supplied]. Justice O’Connor’s opinion for the Court 

explained:

Petitioner objected to the settlement at the District Court’s fairness 
hearing, as nonnamed parties have been consistently allowed to do under 
the Federal Rules of Civil Procedure. See Fed. Rule Civ. Proc. 23(e)...
The District Court’s approval of the settlement— which binds petitioner 
as a member of the class—amounted to a ‘final decision o f 
[petitioner's] right or claim ’ sufficient to trigger his right to appeal.
See Williams v. Morgan, 111 U.S. 684, 699 (1884).

536 U.S. a t___, 153 L. Ed. 2d at 27 [emphasis added; brackets in original]. The key

to the result in Devlin, then, is that the order that Devlin sought to appeal was the

final disposition of the lawsuit on behalf of the class of which he was a member —

as the trial court recognized in conducting a fairness hearing pursuant to Rule 23(e)

because the action was being “dismissed or compromised” by the settlement.

The facts of Devlin are entirely distinguishable from the current case. Entry

of the Consent Order did not result in the dismissal of the lawsuit, which remains on

the District Court’s docket and subject to its continuing jurisdiction. The question of

Clay County’s continued progress toward unitary status — the “interest” which

Appellants claim that they wished to pursue through their attempted intervention —

remains central to this case in the District Court. It has neither been compromised nor

settled nor withdrawn, as the District Court recognized in holding that no “fairness
— —>

hearing” was necessary before entering the Consent Order (see 2 R. Exc. Tab 15, at

/
29



Because the Consent Order is simply an intermediate ruling in the course of 

this continuing litigation, Rule 23(e) does not apply to its entry. The language of the 

rule (“dismissal or compromise”) is clear, so it is not surprising that there are few 

cases addressing the argument made by Appellants. The courts which have taken up 

the issue, however, have agreed that Rule 23(e) does not mandate fairness hearings 

except when the litigation is being terminated through settlement. See Rineheart v. 

Ciba-Geigy Corp., 190F.R.D. 197,201 (M.D. La. 1999) (“there is no jurisprudential 

precedent in the Fifth Circuit or in other districts for public notice of the mere denial 

of class certification when dismissal or settlement is not involved”); id. at 202 (“In 

summary, the notice provisions of subdivision (e) of Rule 23 are not applicable unless 

a dismissal or compromise is involved”); Vecchione v. Wohlgemuth, 80 F.R.D. 32,42 

n.10 (E.D. Pa. 1978) (Becker, J.) (“because the April 4, 1975 proceeding was not a 

“dismissal or compromise” of a certified class action, Rule 23(e). . . does not apply 

at all----even applying the rubric ‘settlement,’ the order was at most a settlement of

20Nor was the Consent Order a settlement of claims for or against some, but not 
all parties; in such situations, the requirement of notice and fairness hearing is 
applicable. E.g., Berry v. Sch. Dist. o f Benton Harbor, 184 F.R.D. 93 (W.D. Mich. 
1998) (settlement and dismissal of some, but not all, defendants in inter-district 
school desegregation action); Women in City Gov’t United v. City o f New York, No. 
75 Civ. 2868 (MJL) (S.D.N.Y. June 13, 1986), 1986 U.S. Dist. LEXIS 24218 
(settlement of claims of one plaintiff subclass in employment discrimination case).

5.20

30



a contempt [motion]”).

As the District Court here noted, Appellants’ arguments would mandate “notice 

and fairness hearings at each interim step in the course of the litigation when some 

interest or position that has been advanced or could be advanced by the plaintiff class 

representatives is modified, withdrawn, or affected in some way through consensual 

action of the parties.” 2 R. Exc. Tab 15, at 5. Such a holding would be in 

considerable tension with the principle that differences among class members about 

litigation strategy in pursuit of a common goal will not support intervention as of 

right. See United States v. Georgia, 19 F.3d at 1394 and cases cited supra page 19. 

Certainly, there is nothing in Devlin that remotely suggests that the Court intended 

such a result to govern in the absence of the complete and final settlement of a claim 

or claims against some or all parties.

For these reasons, the Court should reject the Appellants’ argument concerning 

entry of the Consent Order.

31



CONCLUSION

For the foregoing reasons, this appeal should be dismissed.

Respectfully submitted,

OF COUNSEL:

GRAY, LANGFORD, SAPP,
McGo w a n , g r a y  & n a t h a n s o n

Post Office Box 830239 
Tuskegee, AL 38603-0239 
Telephone No.: (334) 727-4830 
Fax No.: (334) 727-5877

ELAINE R. JONe !s 
Director-Counsel 
NORMAN J. CHACHKIN 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th fl. 
New York, NY 10013-2897 
Tel. No.: (212) 965-2200 
Fax No.: (212)219-2052

Fred D. Gray (GRA022) 
Stanley F. Gray (GRA053)

Attorneys for Lee Plaintiffs-Appellees

32



CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME 
LIMITATION, TYPEFACE REQUIREMENTS, AND 

___________ TYPE STYLE REQUIREMENTS___________

1. This brief complies with the type-volume limitations of Fed. R. App. P. 

32(a)(7)B) because this brief contains 8,680 words (as calculated by the WordPerfect 

10 word processing program), excluding the parts of the brief exempted by Fed. R. 

App. P. 32(a)(7)(B).

2. This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief 

has been prepared in a proportionally spaced typeface using WordPerfect 10 in 14- 

point Times New Roman.

Attorney for Lee Plaintiffs-Appellees

Dated: December 5, 2003

33



Certificate of Service

I

I hereby certify that on this 5 th day of December, 2003, a copy of the foregoing 
Brief of Lee Plaintiffs-Appellees was served upon counsel for the other parties, by 
depositing the same in the United States mail, first-class postage prepaid, addressed 
as follows:

Lisa Wilson Edwards, Esq. 
Appellate Section 
Civil Rights Division 
U.S. Department of Justice 
950 Pennsylvania Avenue, NW 

-PHB 5026
Washington, DC 20530

George L. Beck, Jr., Esq.
Terrie S. Biggs, Esq.
22 Scott Street 
Montgomery, AL 36104

Clarence Dortch, III, Esq.
130 East Street North 
Talladega, AL 35160

Donald B. Sweeney, Jr., Esq. 
Bradley, Arant, Rose & White 
One Federal Place 
1819 Fifth Avenue North 
Birmingham, AL 35203

Anita Kelly, Esq.
Alabama State Board of Education 
Room 5130, Gordon Persons Bldg. 
50 North Ripley Street 
Montgomery, AL 36103

Huel M. Love, Sr., Esq.
Love, Love & Love, P.C.
117 East North Street 
Talladega, AL 35161

Norman J. Chacnkin

34



In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT
No. 03-13272-11

ANTHONY T. LEE. et al.,

and
UNITED STATES OF AMERICA.

Plaintiffs-Appellees,

Plaintiff-Intervenor- Appellee,
v.

CLAY COUNTY SCHOOL SYSTEM, et a l,
Defendants-Appellees,

BOBBY CURRY, et al.,
Applicants for Intervention-Appellants.

On Appeal from the United States District Court 
for the Northern District of Alabama

BRIEF OF LEE PLAINTIFFS-APPELLEES

McGOWAN, GRAY & NATHANSON 99 Hudson Street, 16th fl.
GRAY, LANGFORD, SAPP,

OF COUNSEL:

ELAINE R. JONES 
Director-Counsel 
NORMAN J. CHACHKIN 
NAACP Legal Defense and 

Educational Fund, Inc.

Post Office Box 830239 
Tuskegee, AL 38603-0239 
Telephone No.: (334) 727-4830 
Fax No.: (334) 727-5877

New York, NY 10013-2897 
Tel. No.: (212) 965-2200 
Fax No.: (212)219-2052

Fred D. Gray (GRA022) 
Stanley F. Gray (GRA053)

Attorneys for Lee Plaintiffs-Appellees