Avent v. North Carolina Petition for a Writ of Certiorari to the Supreme Court of North Carolina

    In the
Ittitefc jptatc* Court oi 

Cor ifje €lrbcntt) Circuit
.No. 91-3344

LEON W. BRADLEY, JR., et a l.

Plaintiffs-Appellees, 

v.

PINELLAS COUNTY SCHOOL BOARD, et aL

Defendaiits-Appel'ees,

DAN E. SCHRAMEK and MARCUS D GRIFFITH,

Applicants for Intervention- 
Appellants.

Appeal from, the United States District Court 
. for the Middle District, of Florida

BRIEF FOR FL41NTIFFS-AfPELLF.ES

ROGER W. PLATA 
216 Mirror Lake Drive 
P. O. Box 13903 
St. Petersburg, FL 33733 
(813) S23-9188

ENRIQUE ESC A.RRAZ, III 
695 Central Avenue, Suite 107 
P. O. Box 347 
St. Petersburg, FL 33731 
(813) 894-8507

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
99 Hudson Street, 16th floor 
New York, New York 10013 
(212) 219-1900

Attorneys for PSai Miffs-Appellees



91-3344 BRADLEY v. PINELLAS COUNTY SCHOOL BOARD

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons 

have an interest in the outcome of this appeal:

Sylvia Jean Barton, a minor, by Emma Lee Barton, her mother 
and next friend

Leon W. Bradley, Jr ., a minor, by Leon W. Bradley, Sr ., his 
father and next friend

Norman J. Chachkin, attorney for plaintiffs-appellees

Julius L. Chambers, attorney for plaintiffs-appellees

Roland D. Devine, a minor, by Sam Devine, his father and next 
friend

Enrique Escarraz, III, attorney for plaintiffs-appellees

Dyril L. Flanagan, attorney for appellants

Joyce Maria Green, a minor, by Alexander Green, her father 
and next friend

Magnolia Vilydia Green, a minor, by Alexander Green, her 
father and next friend

Marcus D. Griffith

J. Howard H insley, Superintendent of Schools of Pinellas, County, 
Florida

Hon. William Terrell Hodges, United States District Judge

C-l



91-3344 BRADLEY v. PINELLAS COUNTY SCHOOL BOARD

Pinellas County School Board

ROGER W, Plata, attorney for plaintiffs-appellees

Janice Faye Rutledge, a minor, by Charles Rutledge, her 
father and next friend

Spencer Clayton Rutledge, a minor, by Charles Rutledge, his 
father and next friend

Dan E. Schramek

Bruce P. Taylor, attorney for defendants-appellees

The class of "all Negro children eligible to attend the public schools 
of Pinellas County, Florida"

C-2



Statement Regarding Oral Argument

Plaintiffs-appellees do not believe that oral argument is necessary in order 

for the Court to dispose of this matter.

Table of Contents

Page

Certificate of Interested Persons ...........................................................................C-l

Statement Regarding Oral Argument ......................................................................... {

Table of Authorities ....................................................................................................jj

Statement of Jurisdiction ...........................................................................................vii

Statement of Issues Presented for R eview .............................. ...........................  1

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

A. Proceedings B elow ........................................................................  2

B. Relevant F a c ts ......................................................................................... 5

1. School desegregation in Pinellas County ...................................... 5

2. Appellants’ allegations.................................................................... 10

C. Standard of rev iew ................................................    13

Summary of the A rgum ent...............................................................   13

-  i  -



Table of Contents (continued)

Page

ARGUMENT............................................................................................................ 15

In troduction ..................... . . ........................................................................  15

Appellants Have No Legally Protectible Interest In The Subject 
Matter Of This Litigation That Is Not Already Being 
Adequately Represented By The Existing Parties; For This 
Reason The District Court’s Denial Of Intervention "As of 
Right" Must Be Affirmed .................................................................... 16

The District Court Did Not Abuse Its Discretion In Refusing To
Grant Permissive Intervention To A ppellants............................... 30

The District Court Did Not Err By Failing To Conduct A Hearing On
the Motion for Intervention............................................................. 32

Conclusion ...................................   34

Certificate of Service ...........    35

Table of Authorities

Cases:

Athens Lumber Company, Inc. v. Federal Election Commission, 690 F.2d
1364 (11th Cir. 1982) ....................................................................................  17

Board of Education of Oklahoma City v. Dowell, 112 L. Ed. 2d 715 (1991) . . 25

Boykins v. Fairfield Board of Education. 457 F.2d 1091 (5th Cir. 1972) .........  30

Bradley v. Board of Public Instruction of Pinellas County, 453 F.2d 408 (5th
Cir. 1971)  20

- ii -



Table of Authorities (continued)

Cases (continued): p

Bradley v. Board of Public Instruction, 431 F.2d 1377 (5th Cir. 1970) cert.
denied, 402 U.S. 943 (1971) ........................................................  2, 5n-6n, 7n

Bradley v. Board of Public Instruction of Pinellas County, No 64-98 Civ T
(M.D.Fla. Nov. 9, 1971) ................................................................... ’ ' 26

Bradley v. Milliken, 828 F.2d 1186 (6th Cir. 1987) ............................................. 21

Davis v. Board of School Commissioners of Mobile Countv 40? U S 33
i1911) ....................................................................................................... 29, 30

Diaz v. Southern Drilling Corporation, 427 F.2d 1118 (5th Cir.), cert, denied
sub nom. Trefina, A.G. v. United States, 400 U.S. 878 (1970) ..............  17

Evans v. Buchanan, 555 F.2d 373 (3d Cir.)(en banc), cert, denied, 434 U S
880 (1977) ......................................... ............. \ ...................... ' 31

Evans v. Buchanan, 130 F.R.D. 306 (D. Del. 1990) ..........................................  22

Ferris v. Board of Public Instruction of Sumter County, 119 So 2d 389 fFia
Dist. Ct. App. 1960) ........................................................................ ....  * 27n

Graves v. Walton County Board of Education, 686 F.2d 1135 filth  Cir.
1982) ....................................................................................................... 20n-21n

Harrington v. Colquitt County Board of Education, 460 F.2d 193 (5th Cir )
cert, denied, 409 U.S. 915 (1972) ...................................................... ' ' 23n

Hatton v. County Board of Education, 422 F.2d 457 (6th Cir. 1970)................  20

Hines v. Rapides Parish School Board, 479 F.2d 762 (5th Cir. 1973) . 20, 24, 32,
’ 33

Hoots v. Commonwealth of Pennsylvania, 703 F.2d 722 (3d Cir. 1983) .........  31

In re Malesus Area Concerned Parents, 557 F.2d 1225 (6th Cir. 1977) .........  20

- iii -



Table of Authorities (continued)

Cases (continued): Page

International Tank Terminals, Ltd. v. M/V Acadia Forest, 579 F.2d 964 (5th
Cir. 1978) ........................................................................................... ...........  3()

Kneeland v. NCAA, 806 F.2d 1285 (5th Cir.), cert, denied, 484 U.S. 817
(1987) ...............................................................................   32

Lelsz v. Kavanagh, 710 F.2d 1040 (5th Cir. 1983) ............................................. 16n

Lelsz v. Kavanagh, 98 F.R.D. 11 (E.D. Tex. 1982), aff’d, 710 F.2d 1040 (5th
Cir- 1983) ................................................................................................ 22, 25

Medley v. School Board of Danville, 482 F.2d 1061 (4th Cir. 1973) cert
denied, 414 U.S. 1172 (1974) ...........................................................................30

Monroe v. Board of Commissioners of Jackson, 391 U.S. 450 (1968) ............ 27n

Moore v. Tangipahoa Parish School Board, 298 F. Supp. 288 (E.D. La
1969) .........................................................................      28

Morgan v. McDonough, 726 F.2d 11 (1st Cir. 1984) ..........................................  25

North Carolina State Board of Education v. Swann, 402 U.S. 43 (1971) . . 28, 29

Panola Land Buying Association v. Clark, 844 F.2d 1506 (11th Cir. 1988) . . . .  7

Pate v. Dade County School Board, 588 F.2d 501 (5th Cir.), cert, denied sub
nom. Beckford v. Dade County School Board, 444 U.S. 835 (1979) . 19-20

Pate v. Dade County School Board, 79 F.R.D. 638 (S.D. Fla. 1978), aff’d,
588 F.2d 501 (5th Cir.), cert, denied sub nom. Beckford v. Dade 
County School Board, 444 U.S. 835 (1979) .............................. .. 32-33

Ross v. Eckels, 468 F.2d 649 (5th Cir. 1972) ........................................................  20

Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (1983) ...................................  27n

- iv -



Table of Authorities (continued)

Cases (continued):

St. Helena Parish School Board v. Hall, 287 F.2d 376 (5th Cir.), cert, denied,
368 U.S. 830 (1961) .......................................................    28

School Board of Orange County v. Blackford, 369 So. 2d 689 (Fla. Dist. Ct.
App. 1979) ..................................................................................................  27n

Spangler v. Pasadena City Board of Education, 552 F.2d 1326 (9th Cir.
1977) ................................................................................................................  27

Spangler v. Pasadena City Board of Education, 427 F.2d 1352 (9th Cir.
1970), cert, denied sub nom. Alexander v. Pasadena City Board of 
Education, 402 U.S. 943 (1971) .................................................................  21

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) 2, 5n, 28

Trahan v. Lafayette Parish School Board, 616 F. Supp. 220 (W.D. La.
1985) ..................................................................................................  20, 31, 33

United States v. Coffee County Board of Education, 134 F.R.D. 304 (S.D.
Ga. 1990) ................................................................................................ 20, 21

United States v. Marion County School District, 590 F.2d 146 (5th Cir.
1979) ..................................................................................................  18, 19, 31

United States v. Oregon, 839 F.2d 635 (9th Cir. 1988) ...................................  27n

United States v. Perry County Board of Education, 567 F.2d 277 (5th
c ir- 1978) .............................................................................  4, 17, 19, 21n, 33

United States v. South Bend Community School Corporation, 692 F.2d 623
(7th Cir. 1982) ........................................................................................  21, 25

United States v. South Bend Community School Corporation, 511 F. Supp.
1352 (N.D. Ind. 1981), aff’d, 692 F.2d 623 (7th Cir. 1982) .....................  28

United States v. South Florida Water Management District, 922 F.2d 704
(11th Cir. 1991) .............................................................................................  vi

- v -



Table of Authorities (continued)

Cases (continued):

United States v. Stringfellow, 783 F.2d 821 (9th Cir. 1986)

Valley v. Rapides Parish School Board, 646 F.2d 925 (5th Cir 1981) cert 
denied, 455 U.S. 939 (1982) ........................................................

Page 

27 n

. 19

Rules:

Fed . R. Civ. P. 23 

Fed . R. Civ. P. 24

................................... 2n

1, 3n, lln , 13, 16, 24, 30

Statement of Jurisdiction

This Court has provisional jurisdiction of this appeal for the purpose of 

determining whether the order below, denying intervention, was correct — in which 

case jurisdiction is lacking and the appeal must be dismissed. E.g., United States v. 

South Florida Water Management District, 922 F.2d 704, 706 (11th Cir. 1991).

- vi -



In the
39mteb States; Court of Appeals

for tte ClrbEntlj Circuit
No. 91-3344

LEON W. BRADLEY, JR., et al.,

Plaintiffs-Appellees,

v.

PINELLAS COUNTY SCHOOL BOARD, et al.,

Defendants-Appellees,

DAN E. SCHRAMEK and MARCUS D. GRIFFITH,

Applicants for Intervention- 
Appellants.

Appeal from the United States District Court 
---------- for the Middle District of Florida

BRIEF FOR PLAINTIFFS-APPELLEES

Statement of Issues Presented for Review

1. Whether the District Court erred in denying appellants’ motion to 

intervene in this longstanding school desegregation case as a matter of right 

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

2. Whether the District Court abused its discretion denying appellants’ 

motion for permissive intervention pursuant to Fed. R. Civ. P. 24(b).

3. Whether the District Court erred in ruling upon appellants’ motion to 

intervene without conducting an evidentiary hearing.



Statement of the Case

A. Proceedings Below

This school desegregation case involving the public schools of Pinellas 

County, Florida was originally instituted on May 7, 1964.1 The early history of the 

case is briefly described in Bradley v. Board of Public Instruction, 431 F.2d 1377 

(5th Cir. 1970), cert, denied, 402 U.S. 943 (1971).

On May 18, 1971, plaintiffs filed a motion for further relief in light of the

Supreme Court’s decision in Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971). This resulted ultimately in the entry of an order by the district

court on July 23, 1991 approving a revised student assignment plan based on

geographic attendance zones, including "satellite" zoning and pupil transportation.

Upon motion of the school board, on July 30, 1971 the district court amended its

judgment to give the school district

authority to implement "elastic" zone lines for all schools so that the 
ratio of black students in any school shall not exceed 30 percent or 
fall below the lowest ratio in each grade level, that is, 3.1 percent for

JThus, the case was filed prior to the 1966 amendment of Fed . R. Civ. P. 23 to 
require formal class certification. Flowever, on May 18, 1977, the district court 
"specifically ordered . . . [t]hat this cause is maintained as a class action on behalf 
of all Negro children eligible to attend the public schools of Pinellas County, 
Florida, from the inception of this cause, currently, and in the future."

-  2 -



the senior high schools, 5.6 percent for the junior high schools, and 
9.1 percent for the elementary schools.121

In subsequent years, the 1971 Orders were modified on a number of occasions 

pursuant to stipulation of the plaintiffs and the school board in order to provide 

greater flexibility to the school system in making student assignments while 

maintaining desegregation.3 (Where relevant, the details of these orders are 

referred to infra.)

On May 31, 1990 the present appellants filed a motion to intervene in the 

case "as a parties defendant."4 The motion was not accompanied by a 

memorandum as required by the local rules. Following the filing of responses,5 

the District Court on July 12, 1990 denied the motion for intervention because of

2In other words, the district was relieved of the obligation to obtain prior court 
approval before implementing any modifications in attendance zone lines for its 
schools, so long as the resultant school enrollments were within the ranges 
specified in the July 30, 1971 order.

3Such orders were entered on May 18, 1977; November 26, 1980; June 3, 1982; 
July 2, 1985; October 2, 1986; June 2, 1988 and April 24, 1989.

4Rl-5/31/90 Motion-1. [Because the certified docket entries forwarded to this 
Court are not numbered, counsel has been instructed by the Clerk’s Office to cite 
to the Record on Appeal by volume and date of pleading or order.] The motion 
sought intervention as of right under Fed. R. Civ. P. 24(a) or permissive 
intervention under FED. R. Civ. P. 24(b).

5Defendants filed a Response to the motion on June 15, 1990 (Rl-6/15/90 
Response); plaintiffs filed a Memorandum in Opposition to the motion on June 
20, 1990 (Rl-6/20/90 Memorandum).

- 3 -



the failure to comply with the local rules.6 Thereafter on July 30, 1990 the 

present appellants refiled their motion for intervention, together with a supporting 

memorandum.7 The plaintiffs and defendants again responded to these 

pleadings.8

On March 8, 1991 the District Court denied the motion to intervene on the 

merits. The Court first held, following the teaching of United States v. Perry County 

Board of Education, 567 F.2d 277 (5th Cir. 1978), that the appellants had no 

"legally protectible interest in the proceedings" sufficient to support their claim for 

intervention as of right because they "are challenging elements of the plan. Rather 

than seeking to assert rights established by prior Court orders, they seek to modify 

those orders."9

Further, the Court ruled, appellants had failed to establish that their 

interests were not adequately represented by the existing parties. "The proposed

6R 1-7/12/90 Order.

7A week later, appellants filed affidavits in support of the motion (Rl-8/6/90 
Affidavits).

sThe school board submitted a response to the new filing and a motion to 
strike the affidavits and memorandum filed below by appellants (Rl-8/14/90 
Response and Motion to Strike) and plaintiffs submitted a supplemental 
memorandum in opposition to the intervention (Rl-8/14/90 Supplemental 
Memorandum).

9R 1-3/8/91 Order-2.

. 4 .



intervenors contend that the Plaintiff is not adequately representing the class in 

this case. . . .  To the extent they [appellants] contend that the parties have not 

diligently attempted in good faith to implement the Court’s desegregation orders, 

the record belies this contention."10 Finally, the Court denied permissive 

intervention.11 On April 8, 1991 the Notice of Appeal was filed.12

B. Relevant Facts

1. School desegregation in Pinellas County

As previously indicated, on July 23, 1971 the District Court in this case 

approved a plan to desegregate the public schools of Pinellas County. The basic 

technique of the plan was the creation of non-contiguous "satellite zones" for 

schools where contiguous zoning would have produced enrollments with a racial 

composition substantially disproportionate to that of the overall student population 

of the system.13 The school system has continued to adhere to this basic

10Rl-3/8/91 Order-1, -2.

nRl-3/8/91 Order-3. The Court also denied the motions to strike the 
appellants’ memorandum and affidavits, and denied as moot a motion that 
defendants had filed to disqualify one of counsel below for the appellants. Id.

12Rl-4/8/91 Notice of Appeal.

13Pairing and clustering of contiguous schools with grade restructuring had 
been ordered by the Fifth Circuit panel in its pre-Swann decision, Bradley v. Board 
of Public Instruction, 431 F.2d 1377 (5th Cir. 1970), cert, denied, 402 U.S. 943

(continued...)

- 5 -



framework in making student assignments since that time and all of the county’s 

schools have continued to be operated on a desegregated basis.

On a number of occasions, the District Court’s orders have been modified to 

accommodate changing circumstances within the framework of the initial plan.14 

Because some of appellants’ contentions are intimately connected to specific 

portions of the instrumental remedial decrees in this litigation, we trace the 

modifications in some detail below.

First, as noted previously, on July 30, 1971 the school district was granted 

the authority it requested: to make changes in the attendance zones so long as 

school populations did not fall below specified racial proportions or exceed a 

maximum black student enrollment, in any school, of 30 per cent.15

Subsequently, on May 18, 1977 the District Court approved the parties’ 

Stipulation of October 27, 1976 and ordered them to comply with its provisions. 

This Stipulation made two major changes in previous orders:

13(...continued)
(1971). However, a plan limited to those techniques did not eliminate all-black 
and all-white schools from the system. See id., 431 F.2d at 1384-85. The 1971 
plan restored a regular grade structure to all schools by eliminating pairing and 
clustering, while also desegregating all schools.

14See supra note 3.

15In the preceding (1969-70) school year, the system’s total student enrollment 
was approximately 16% black. 431 F.2d at 1378.

-  6 -



(a) It provided that the school system should not be required to 
reassign students after the beginning of a school year in order to adjust 
enrollments at schools that exceeded the 30% maximum black enrollment 
target established in 1971 for the first time, despite a good faith effort in 
zoning decisions for that year, nor to do so at such schools in which the 
ratio did not exceed a 32% maximum in the succeeding year (again 
assuming good faith zoning efforts). However, if the 32% maximum were 
exceeded in the second year, the Stipulation called for reassignments within 
four weeks in order to bring enrollments into compliance with the original 
target.

(b) It divided the county into two parts, along an east-west line, and 
established floating targets for minimum black enrollment proportions at 
each school equal to one-half the total student population proportion at the 
schools’ grade level in each area of the county. (The two areas have been 
referred to as the "down county" and "up county" areas.)

The purpose of the first change was to reduce the number of reassignments after

the beginning of a school year that were "disruptive to the schools and students

involved." Similarly, the second change lessened reassignment and transportation

burdens on black pupils (most of whom lived in the southern portion of the

county16) by reducing the minimum black student enrollment ratios required in

the heavily white northern areas of Pinellas County.17

16See 431 F.2d at 1378.

/ 'T h e  Stipulation also articulated the parties’ understanding of the manner in 
which the school system would establish attendance zones. Specifically, when 
zones for inner-city schools and those in integrated areas" were modified, they 
were to be drawn in such a fashion as to produce an expected black enrollment 
sufficiently below the 30% maximum as to allow for a "margin of error" 
("underprojection"). In addition, where a school was projected to exceed the 
maximum minority enrollment ratios but was overcrowded, the contiguous 
predominantly minority portion of its zone would be reduced in size; conversely,

(continued...)

- 7 -



In 1982, again pursuant to stipulation, the District Court orders were 

amended to eliminate the 30% black enrollment maximum and substitute a 

"floating" target based on the total student enrollment proportions — by grade level 

-  in each of the two areas into which the system had been divided in 1977. This 

modification reflected the overall increase in black pupil population in the school 

system’8 and minimized reassignments of black children while still insuring that 

all schools would remain desegregated.19

17(...continued)
where a school exceeded the maximum but was under capacity, the predominantly 
white "satellite" portion of its attendance zone would be enlarged.

On November 26, 1980 the District Court approved a further Stipulation of 
the parties refining the approach to modification of attendance zones by utilizing 
overprojection" of white satellite areas as well as "underprojection" of contiguous 

zones in predominantly black portions of the system.

18The Stipulation recited that since 1971, "the ratio of black students has 
steadily increased and continues to increase. Because of demographics, it has 
become extremely difficult for the Board to assign black students to elementary 
schools in the lower part of the County and continue to maintain the 30%-70% 
ratio required by the Court Order."

19The 1982 stipulation carried forward the approach adopted in 1977, of not 
requiring reassignments after the school year began unless the maximum targets 
had been exceeded for two years in a row by specified degrees despite good faith 
attempts to rezone (utilizing the "underprojection" and "overprojection" 
techniques), although it modified the tolerance levels.

In 1985 the parties agreed that the requirements of prior orders need not be 
applied to require the reassignment of nine black students from one up county 
high school to another in the 1985-86 school year. This exception was continued 
by stipulation the following year, when the parties also agreed to a more general 
exemption, on a trial basis, from requiring zone shifts ancT reassignments after the

(continued...)

-  8 -



In 1988 the parties agreed (and the Court adopted their Stipulation) that 

Lakewood High School -  the focus of appellants’ concerns -  need not be in 

compliance with the requirements of the District Court’s orders, as amended, for a 

period of one year.20 The effect of this stipulation was to permit Lakewood High 

School to have a proportion of black students in attendance that was higher than 

the target maximum in the down county area.21

Since the early 1970’s the school district has carried out these decrees so 

that all schools were operated on a desegregated basis. No Pinellas County 

schools have had majority-black student bodies and no schools have had all-white 

student enrollments during this time period.

19(...continued)
^ nn’n§ a school year. This general exemption was extended through the 
1991-92 school year in the parties’ 1988 stipulation, approved by the District Court 
(See infra note 21.)

°The Stipulation recited that the one-year exception "is due to the projected 
origination of the Magnet School Program(s) at Lakewood High School." Bv
^ rJ ? er ^ tipulatlon of APril 20, 1989 (approved by the District Court on April 24. 
1989), the parties authorized the establishment of magnet programs at four high 
schools — including Lakewood High School — in the system.

The 1988 Stipulation also extended the period during which reassignments 
after the opening of school in the fall would not need to be made, see supra note 
19, and provided that, "to achieve as much stability as possible for students and 
assist them in obtaining a better education while at the same time complying with 
the original Court order," high school rezoning should be phased in by applying the 
changes to incoming ninth grade students only.

- 9 -



2. Appellants’ allegations

Each of the appellants, applicants for intervention below, is the parent of 

children attending the public schools of Pinellas County, Florida.22 Each resides 

in the Lakewood-Pinellas Point" area of St. Petersburg,23 which, except for the 

small barrier islands that make up St. Petersburg Beach and Cabbage Key, is 

located at the southernmost extremity of Pinellas County abutting Tampa Bay. 

The children of each of them were reassigned pursuant to attendance boundary 

changes adopted by the Pinellas County School Board for the 1990-91 school
24year.

22For the purposes of this brief, the factual allegations of the Motion for 
Intervention (Rl-7/30/90 Motion for Intervention) are taken as true unless they are 
contradicted by the record in this case. (For example, the motion incorrectly 
identifies the plaintiff in this action as the "NAACP Fegal Defense Fund.")

23Rl-7/30/90 Motion-2.

24One of appellant Schramek’s daughters "was rezoned to attend St. Petersburg 
High School for the 1990-91 school year" while his other daughter continued to 
attend Fakewood High School (Rl-7/30/90 Motion-2, 11 3). Mr. Griffith’s two 
elementary school-age children attended Bay Point Elementary school and were 
rezoned to Shore Acres Elementary School for the 1990-91 school year and then 

to Sawgrass Elementary School for the 1991-92 school year" (Rl-7/30/90 Motion-2, 
-3, 11 6).

-  10 -



In "Count I" of their Motion for Intervention,25 appellants alleged that 

these attendance zone changes violated provisions of applicable court orders in this 

action,26 and denied appellants’ right to attend "neighborhood schools" in their 

area of the county.27 Appellants also alleged that the school board had violated 

the court orders and their rights by failing adequately to represent black parents in 

the process by which the changes were formulated for presentation to the school 

board,28 and "by not providing adequate facilities at Lakewood High School and 

the other ‘feeder’ middle and elementary schools located on the far south side of 

St. Petersburg in order to encourage white families with school age children to

^Appellants did not, as required by FED. R. Civ. P. 24(c), file with their 
motion a separate "pleading setting forth the claim or defense for which 
intervention is sought."

26See Rl-7/30/90 Motion-5, U 14 (changes "ignored the stipulations of the 
subsequent Court Orders"), -6 1! 16 (even with zone changes, Lakewood High 
School "is still expected to be out of compliance with the 30%/70% provision of 
the Court Order for the 1990-91 school year").

27See Rl-7/30/90 Motion-6, -7, 11 16 § (2) (changes predicated upon capacity 
figure for Lakewood High School which had been manipulated and artificially 
reduced to justify reassignment of black students away from "their neighborhood 
school"); Rl-7/30/90 Motion-7 U 17 (capacity figures for Bay Point Elementary and 
Middle Schools [also located in the Lakewood-Pinellas Point area] similarly 
manipulated to require assignment of black students to "non neighborhood 
schools"); Rl-7/30/90 Motion-8, 11 19 (attendance changes violated black "student’s 
right to attend their ‘neighborhood school’ after goal of achieving integrated 
neighborhood accomplished"); id. (changes violated black students’ "constitutional 
right, [not] to be forcibly bused from an integrated neighborhood once the school 
system has become an unitary system. The Pinellas school system has now 
achieved unitary status").

^See Rl-7/30/90 Motion-6, 11 16 § (1).

-  11 -



move to or remain in integrated areas."29 Appellants requested, as relief, that the 

District Court order modifications of the student assignment plan adopted by the 

school board "to eliminate all busing of students from an integrated 

neighborhood,"30 and that the Court require upgrading of "far south side St. 

Petersburg schools."31

In "Count II" of their motion, appellants alleged that ”[s]ince 1971, a unitary 

school system has evolved and the School Board no longer operates a dual school 

system or segregated school system."32 They requested modification of the 

"30/70% provision of the Court desegregation Order" "to exempt naturally 

integrated communities" or, in the alternative, that the District Court "relinquish 

jurisdiction of the above-captioned case."33

Each of the appellants also executed an identical affidavit stating that he 

had "provided all the information in" the Motion for Intervention and that "the

29See Rl-7/30/90 Motion-9, -10, HU 21, 23.

30See Rl-7/30/90 Motion-10, 11 (c); see also id. 11 (e). 

31See Rl-7/30/90 Motion-10, 11 (d).

32See Rl-7/30/90 Motion-11, -12, 11 30.

33See Rl-7/30/90 Motion-12 [prayer for relief].

-  12 -



facts and statements contained in said motion are true and correct to the best of 

my knowledge."34

C. Standard of review

The legal standard applied by the District Court in reaching its conclusion 

that "the proposed interveners have not established their entitlement to intervene 

[as a matter of right] under Rule 24(a)(2)" is subject to plenary review by this 

Court.

The District Court’s decision to deny permissive intervention under Fed . R. 

ClV. P. 24(b)(2) is reviewed here for abuse of discretion only.

The District Court’s action in ruling upon the motion for intervention 

without conducting a hearing is subject to plenary review for legal error.

Summary of the Argument

I

Appellants were not entitled to intervene in this action as of right under 

FED. R. Civ. P. 24(a) because they assert no "legally protectible interest in a 

desegregated school system" that is not already adequately represented by the

34See Rl-8/6/90 Affidavits.

- 13 -



existing parties. Neither appellants’ preference for a different student assignment 

plan to accomplish the desegregation of the public schools of Pinellas County nor 

their alternative request that this lawsuit be dismissed furnishes a proper ground 

for intervention.

Appellant seek to enforce a claimed right to have their area of the county 

exempted from inclusion in the overall desegregation strategy of the school district 

in order that their children may enjoy the asserted constitutional right to attend 

neighborhood schools. Because both these contentions have been authoritatively 

rejected as a matter of law in school desegregation jurisprudence, they provide no 

support for appellants’ efforts to intervene in this matter.

II

The District Court’s denial of permissive intervention was well within the 

bounds of its discretion.

III

There was no error in denying intervention without conducting an 

evidentiary hearing in this matter because the Motion for Intervention did not 

allege that the goal of a unitary system has been frustrated nor provide any other 

colorable basis that would entitle appellants to participate in this litigation.

- 14 -



ARGUMENT

Introduction

Appellants opening brief is replete with statements and allegations

unsupported by reference to the Record on this appeal or to earlier pleadings and

decrees in this litigation. Indeed, in the "Preamble" to their brief (pp. iii-vi)

appellants seek to rewrite history by distancing themselves from and disavowing

the statements made in their Motion for Intervention below:

If Griffith’s and Schramek’s Motion to Intervene created the 
impression that they were claiming that the Pinellas County School 
System was unitary, that was not their intent and they hereby waive 
and disclaim any such intent. Appellants Griffith and Schramek are 
not satisfied that the Pinellas County School System is currently a 
unitary system. Griffith and Schramek do not desire an end to court 
supervision, indeed they are asking for more careful supervision.

(Appellants’ brief, at iv.) But appellants’ position below was crystal clear. In both

"counts" of their Motion for Intervention, they alleged that the "Pinellas school

system has now achieved unitary status" and that "[sjince 1971, a unitary school

system has evolved." See supra note 27 & text at note 32. The prayer of "Count

II" of the motion requested, as one form of alternative relief being sought by

appellants, that the District Court "relinquish jurisdiction of the above-captioned

case and permit the School Board to operate and administer the school system

without federal Court intervention." See Rl-7/30/90 Motion-12 [prayer for relief].

- 15 -



The correctness of the judgment below must be determined by this Court 

based upon the record and based upon the claims that appellants sought to present 

to the District Court. We do not suggest that there is any greater merit to the 

welter of new or modified assertions made by appellants in their brief to this Court 

than there was merit to their District Court submission. But we strenuously object 

to being required to respond to wholly new versions of events and to contentions 

that were not communicated to the court below, especially since such assertions 

could not serve as a basis for overturning the District Court’s action.35 In our 

brief, therefore, we apply the well-established legal standards for intervention to 

the facts of record, and we ignore the newly minted versions of the facts with which 

appellants’ brief is peppered.

I

Appellants Have No Legally Protectible Interest In The Subject Matter 
Of This Litigation That Is Not Already Being Adequately Represented 

By The Existing Parties; For This Reason The District Court’s 
Denial Of Intervention "As of Right" Must Be Affirmed

Fed . R. Civ. P. 24(a)(2) authorizes intervention "as of right" when four 

conditions are met36:

35C/ Lelsz v. Kavanagh, 710 F.2d 1040, 1046-47 (5th Cir. 1983)(change in legal 
arguments on appeal from denial of intervention).

36Only Rule 24(a)(2) is at issue in this matter. Clause (1) of Rule 24(a) 
authorizes intervention "when a statute of the United States confers an

(continued...)

- 16 -



(1) The application must be timely;

(2) the applicant must have an interest relating to the property 
or transaction which is the subject of the action;

(3) the applicant must be so situated that disposition of the 
action, as a practical matter, may impede or impair his ability to 
protect that interest; and

(4) the applicant must demonstrate that his interest is 
represented inadequately by the existing parties to the suit.

Athens Lumber Company, Inc. v. Federal Election Commission, 690 F.2d 1364, 1366

(11th Cir. 1982). The "interest" which will support intervention as of right must be

a "direct, substantial, legally protectable interest in the proceedings," Panola Land

Buying Association v. Clark, 844 F.2d 1506, 1509 (11th Cir. 1988)(emphasis in

original), quoting Diaz v. Southern Drilling Corporation, 427 F.2d 1118, 1124 (5th

Cir.), cert, denied sub nom. Trefina, A.G. v. United States, 400 U.S. 878 (1970). In

school desegregation cases, the only sufficient interest is "an interest in a

desegregated school system," United States v. Perry County Board o f Education, 561

F.2d 277, 279 (5th Cir. 1978). "[T]he court will consider [only] arguments which

show that a particular court-ordered plan does not achieve or maintain the desired

unitary status. Hines v. Rapides Parish School Board, [479 F.2d 762 (5th Cir.

36(... continued)
unconditional right to intervene." Appellants have made no claim that there is any 
such statute applicable to this case.

- 17 -



1973)]," United States v. Marion County School District, 590 F.2d 146, 148 (5th Cir. 

1979).

Appellants’ position is quite simple. They make two kinds of claims. First, 

they insist that in 1990-91, the board should have altered the attendance zones for 

Lakewood High and Bay Point Elementary and Middle Schools by enlarging their 

predominantly white "satellite" areas -  rather than by reducing the size of these 

schools’ contiguous zones (with consequent reassignment of some Lakewood- 

Pinedas Point resident pupils to other schools).37 On this claim, they sought 

intervention to obtain a District Court order requiring school authorities to adopt 

their preferred plan. Second, appellants assert that the Pinellas County school 

system has achieved unitary status" and they therefore seek entry of an order 

dismissing this action completely.38

37In fact, as appellants now concede (Brief at 23), the school board in 1990-91 
made both kinds of modifications to the Lakewood High School zone.

38Appellants also asserted in their Motion for Intervention that the school 
board had failed to provide facilities in the Lakewood area adequate in order to 
encourage white families to move there. Rl-7/30/90 Motion-9, -10, 1PJ 21, 23. This 
matter is not a proper basis for intervention because it does not involve issues of 
fact or law common with those being considered in the desegregation case. 
Similarly, appellants complained that the 1990-91 zoning modifications violated 
state law and board policy because of the manner in which they were formulated. 
Rl-7/30/90 Motion-6, 11 6 § (1). No commonality of these claims -  even if they 
had merit — with the issues that have been litigated in this desegregation action is 
either indicated or apparent. Certainly, nothing that the District Court has 
decided or will be called upon to decide in the remedial phase of the case will

(continued...)

- 18 -



Nowhere in their Motion for Intervention did appellants contend that by the 

actions complained of, the school board is failing to maintain compliance with the 

basic purposes of the 1971 order: the elimination of any all-white and all-black 

schools and the achievement of a desegregated enrollment at all schools in Pinellas 

County. Appellants thus failed to assert the kind of legally protectible interest in 

this litigation that is necessary to support intervention in this Circuit.

Appellants first claim simply represents a disagreement with the mechanism 

that the school board -  the entity vested under state law with the authority and 

responsibility for making the decision — has adopted to comply with the District 

Court s decrees in this litigation. The federal courts in this and other Circuits have 

consistently held that such disagreements do not rise to the level of a legally 

protectible interest that will support intervention as of right in a school 

desegregation action -  especially where prospective intervenors are concerned only 

with the details of a plan as it affects a few schools. See, e.g., Valley v. Rapides 

Parish School Board, 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. Marion County School District; United States v. Perry County 

Board of Education, 567 F.2d at 279-80; Pate v. Dade County School Board, 588

-IQ . .

(...continued)
affect appellants’ opportunity to enforce the asserted state law rights in a separate 
action.

- 19 -



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

Board, 444 U.S. 835 (1979); In re Malesus Area Concerned Parents, 557 F.2d 1225 

(6th Cir. 1977); Hines v. Rapides Parish School Board, 479 F.2d 762, 765-66 (5th 

Cir. 1973); Ross v. Eckels, 468 F.2d 649, 651 (5th Cir. 1972)("alleged class of white 

pupils residing only within certain attendance zones within the Houston 

Independent School District"); Hatton v. County Board of Education, 422 F.2d 457 

(6th Cir. 1970); Trahan v. Lafayette Parish School Board, 616 F. Supp. 220 (W.D. 

La. 1985); compare United States v. Coffee County Board of Education, 134 F.R.D. 

304, 309 (S.D. Ga. 1990)(applicants for intervention "seek to block actions that 

allegedly would thwart the goal of a unitary system"). Indeed, in this very case, the 

predecessor Fifth Circuit affirmed per curiam the denial of intervention to a white 

student who sought to attack the plan submitted by the school board and approved 

by the District Court on July 23, 1971. Bradley v. Board o f Public Instruction of 

Pinellas County, 453 F.2d 408 (5th Cir. 1971).39

39Graves v. Walton County Board of Education, 686 F.2d 1135 (11th Cir. 1982), 
relied upon by appellants, is not to the contrary. In Graves, the Court held that 
parents whose children would have been directly and adversely affected if relief 
sought by one party (the Social Circle School Board) had been granted, should 
properly be permitted to intervene where no other party asserted the parents’ 
interest in continuation of hardship transfers. Id. at 1142 ("failure of both boards 
to affirmatively assert what appears to be a tenable position for the movants: that 
both school boards permitted some student transfers out of zone five for 
compelling nonracial reasons"). Here, no party was seeking modification of the 
court orders in a manner disadvantageous to appellants; rather, they complain 
about actions taken by the Pinellas County School Board to carry out those orders

(continued...)

-  20 -



Moreover, it is quite clear that any such legal interests in these proceedings 

which appellants might have are more than adequately protected by the existing 

parties. 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. 

Smith Bend Community School Corporation, 692 F.2d 623, 628 (7th Cir. 1982) 

(where proposed intervenor and party had "a similar objective, namely, ‘the system- 

wide desegregation of students and staff as called for in the consent decree’" and 

"only disagreement shown was with respect to the ‘road map’ to be used to achieve 

that goal," intervention would be denied); Spangler v. Pasadena City Board of 

Education, 427 F.2d 1352, 1355 (9th Cir. 1970)(decision by elected school board 

not to appeal adequately protected legal interests of applicants for intervention), 

cert, denied sub nom. Alexander v. Pasadena City Board of Education, 402 U.S. 943 

(1971); United States v. Coffee County Board of Education, 134 F.R.D. at 309-10

39(...continued)
-  asserting that the Board should have complied in a different way. That 
contention is squarely within the ambit of Perry County and the other decisions 
cited above.

Significantly, the Court m Graves made it clear that interveners were limited 
to the narrow transfer issue and could neither seek to modify the desegregation 
orders nor renew their motion to dismiss the lawsuit entirely as moot: in the same 
decision, the Court ruled (thus establishing the law of the case applicable on 
remand) that new plaintiffs could be added to prevent mootness and that 
continuation of the pupil assignments in question was appropriate.

-  21 -



(requiring compelling showing of inadequacy of representation); Evans v. 

Buchanan, 130 F.R.D. 306, 313 (D. Del. 1990)("When there is an identity of 

interest or ultimate objective, mere disagreement over how to achieve the stated 

goal is insufficient to show inadequacy of representation for purposes of Rule 

24(a)(2)"); Lelsz v. Kavanagh, 98 F.R.D. 11, 20-21 (E.D. Tex. 1982), ajfd on other 

grounds, 710 F.2d 1040 (5th Cir. 1983).

The history of the instant case reflects the parties' sensitivity to the issues of 

burden-sharing, fairness, and disruptive reassignments that concern the appellants. 

The modifications to the 1971 Order in this case have been designed, while 

assuring the continued operation of desegregated schools, to accommodate 

changes in demography and to avoid unnecessary transportation burdens upon 

black students and residents of the more heavily black down county area. Unlike 

appellants, who sought intervention on behalf of a narrow group in order to 

protect its perceived interests,40 plaintiffs must take into account how changes in 

the plan or in the Order will affect all students, particularly all black students, in 

the system. For example, exempting the Lakewood-Pinellas Point area of the

Despite the broad language of appellants’ Brief in this Court (see, e.g.. Brief 
at 25 ["there are other communities in all parts of the county that either currently 
face or will face in the future the same problems that the Lakewood area faces 
today”]), they moved to intervene to represent only "parents whose children are 
enrolled at Lakewood High School and Bay Point Elementary School in Pinellas 
County, Florida," Rl-7/30/90 Motion-1.

-  22 -



district from inclusion in the overall desegregation strategy employed by the school 

district will simply shift reassignment and transportation burdens, of which 

appellants complain, from their children to other students.41

Appellants’ concerns were considered by the school system’s staff and by the 

school board, which concluded that the exemption from the plan seek would be 

impractical because of its impact on other areas and on the functioning of the plan 

as a whole.42 The 1990-91 zone changes, however, did establish a white satellite 

zone for Lakewood High School for the first time, utilizing the techniques for 

which appellants contend, though obviously not in the precise manner that they 

suggested.43

Appellants assert that because of neighborhood characteristics, Lakewood 

High School should be allowed to have a minority student enrollment in excess of

41Appellants themselves indicate that until recently students in this area (unlike 
pupils in many other parts of the district) have not been included in satellite zones 
and been subject to reassignment or transportation (Brief, at 11). To the extent 
that this is true, including the area in the overall plan now does not seem unfair 
and, indeed, suggests that exemption from the plan would result in other students 
bearing a disproportionate share of the transportation and reassignment burdens. 
Cf Harrington v. Colquitt County Board of Education, 460 F.2d 193, 196 n.3 (5th 
Cir.)(burdens of desegregation should be shared equally by black and white 
students), cert, denied, 409 U.S. 915 (1972).

42See R1-Motion to Disqualify Counsel-Ex. 3 [affidavit].

43See Brief for Appellants, at 21 ("force bus large numbers of white students to 
Lakewood").

- 23 -



30%. Without accepting appellants’ reasoning, we note that this is precisely the 

result of the 1976 and subsequent Stipulations between the parties in this case. 

Appellants simply want a higher maximum than that permitted under the current 

Orders. As to "exemption" from the mechanics of the overall plan, while some 

school districts’ geography and demography may make desegregation plans 

incorporating such features feasible, it has been the judgment of Pinellas County 

school authorities that such a scheme will not be effective in this case. Plaintiffs 

have not been persuaded that the judgment is erroneous. But the significant point 

is that -  at least with respect to the first count of their Motion for Intervention -- 

appellants rely on their disagreement with that judgment about how to achieve and 

maintain desegregation in the public schools of Pinellas County as the basis for 

their intervention. As indicated above, such a policy disagreement does not 

constitute the "legally protectible interest" necessary to support intervention as of 

right under Rule 24(a)(2).

Appellants’ second claim, that the district has achieved unitary status and 

the case should be dismissed, does not furnish any more appropriate basis for 

intervention. Such a claim is, of course, the antithesis of the paradigmatic issue 

which, at least since Hines, is necessary to support intervention. Furthermore, it is 

apparent that as to this claim, appellants again simply have a disagreement over 

strategy. Appellants in essence disagree with the school board about what is the

- 24 -



appropriate moment in this lawsuit to undertake the showing in the District Court 

that "the vestiges of de jure segregation hajve] been eliminated as far as practicable 

[in] . . . student assignments [and in] ‘every facet of school operations-faculty, 

staff, transportation, extra-curricular activities and facilities,’" Board o f Education of 

Oklahoma City v. Dowell, 112 L. Ed. 2d 715, 730 (1991). But appellants’ "legally 

protectible interest," if any, in this issue is being adequately represented. See 

Morgan v. McDonough, 726 F.2d 11, 14 (1st Cir. 1984)(school board "has an 

interest in independence from court supervision even greater than" intervenors and 

since it is "the legal representative of the parents, its tactical choices rather than 

[intervenors’] should control"); United States v. South Bend Community School 

Corporation, 692 F.2d at 628 (school authorities who entered into consent order 

achieved flexibility in developing their own preferred plan" and adequately 

represented interests of students seeking intervention); Lelsz v. Kavanagh, 98 

F.R.D. at 15-19, affd  on other grounds, 710 F.2d 1040 (5th Cir. 1983).

In an effort to justify their intervention, appellants included in their Motion 

a series of conclusory allegations that various "rights" which they have were 

violated by the 1990-91 zoning changes. (See supra, text at nn. 26-29.) A brief 

examination of these claims demonstrates their complete insubstantiality.

Appellants first claim that they are seeking "to have the Court enforce rights 

given to them under the plan" (Brief, at iv). But the entry of a desegregation

- 25 -



decree does not confer upon strangers to the litigation any new rights, including 

any "right" to enforce the terms of the decree. The court’s orders are merely 

instrumental mechanisms for achieving the goal of implementing the plaintiffs' 

right to the operation of a desegregated school system.44 As Judge Krentzman 

found at an earlier stage of this litigation (in dealing with a motion to intervene), 

although the 1971 plan contained certain projected enrollments and although the 

July 30, 1971 Order established a thirty per cent maximum, "[t]he Court is unable 

to construe these orders to create in movants the right to attend a school with only 

a specified percentage of black students." Bradley v. Board of Public Instruction of 

Pinellas County, No. 64-98 Civ. T. (M.D. Fla. Nov. 9, 1971) at 2 (emphasis

44Appellants assert that plaintiffs are failing to insist upon compliance with 
orders because appellants believe that the school board deviated from provisions of 
the existing decrees in some respects in the 1990-91 zone changes and plaintiffs did 
not file a motion with the court to require correction. As noted above, however, 
the board’s actions have not disturbed the continued maintenance of desegregated 
schools in Pinellas County. Moreover, appellants fail to comprehend that some 
provisions of the decrees establish only minimum standards but do not prevent the 
board from taking more vigorous measures to preserve desegregation, if it so 
decides. We can assure the Court that if significant evidence of non-compliance 
were to materialize, plaintiffs would not hesitate to take immediate action 
including filing an appropriate motion with the District Court if satisfactory 
corrective measures could not be negotiated with the school board. In any event, 
on the record of this case, appellants’ disagreement with the judgment of plaintiffs’ 
counsel about the timing and necessity of judicial enforcement proceedings hardly 
suffices to show inadequacy of representation.

- 26 -



supplied). See also Spangler v. Pasadena City Board of Education, 552 F.2d 1326 

(9th Cir. 1977).45

Appellants also claimed below that the zoning changes violated the 

constitutional right of black students to go to "neighborhood schools."46 It is well 

settled, however, that there is no such constitutional right -  for black students or 

white students, especially in the context of a school desegregation case.47 E.g.,

45Appellants claim inadequacy of representation because, they say, plaintiffs 
have failed to adapt the decrees to changing circumstances (see, e.g., Brief, at 16). 
The history of this case reflects, however, that plaintiffs have worked together with 
the school board to modify outstanding orders in response to changes in 
demography and have, just as appellants claim they should, relaxed the original 
30% maximum enrollment ratio in the down county area. Appellants simply 
disagree with the manner in which the school board has chosen -  within the 
constraints of the outstanding orders — to carry out these policies.

The cases on which appellants rely, United States v. Oregon, 839 F.2d 635 
(9th Cir. 1988), United States v. Stringfellow, 783 F.2d 821 (9th Cir. 1986), and 
Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (1983) all involved intervention 
prior to the trial on liability or determination of the remedy. Thus they speak to 
situations quite distinct from the present case, in which the shape of the remedy 
has long been established. That appellants would now prefer a different sort of 
remedy cannot justify reopening settled issues in this litigation -  especially since 
there has been and can be no credible allegation that the current remedial 
approach is not producing desegregated schools.

46See supra note 27.

47Of course, individual parents have no federal constitutional or statutory right 
to select the public school to which their children will be assigned. E.g., Monroe v. 
Board of Commissioners of Jackson, 391 U.S. 450 (1968). Nor is there any right 
under Florida law to do so. See School Board of Orange County v. Blackford, 369 
So. 2d 689 (Fla. Dist. Ct. App. 1979); Ferris v. Board of Public Instruction of Sumter 
County, 119 So. 2d 389 (Fla. Dist. Ct. App. 1960).

- 27 -



North Carolina State Board o f Education v. Swann, 402 U.S. 43 (1971); United States

v. South Bend Community School Corporation, 511 F. Supp. 1352, 1360 (N.D. Ind.

1981), affd, 692 F.2d 623, 627-28 (7th Cir. 1982); see Swann v. Charlotte-

Mecklenburg Board o f Education, 402 U.S. at 16 (emphasis supplied):

School authorities are traditionally charged with broad power to 
formulate and implement educational policy and might well conclude, 
for example, that in order to prepare students to live in a pluralistic 
society each school should have a prescribed ratio of Negro to white 
students reflecting the proportion for the district as a whole. To do 
this as an educational policy is within the broad discretionary powers of 
school authorities . . . .

There is no right to intervene in order to litigate issues that have been squarely 

resolved as a matter of governing law. St. Helena Parish School Board v. Hall, 287 

F.2d 376 (5th Cir.), cert, denied, 368 U.S. 830 (1961); Moore v. Tangipahoa Parish 

School Board, 298 F. Supp. 288, 292 (E.D. La. 1969).

Finally, the relief which appellants seek (apart from dismissal of the lawsuit, 

which plaintiffs vigorously resist) is also contrary to established law. Appellants 

asked that the District Court "exempt naturally integrated communities from the 

30/70% provision of the Court desegregation Order"48 and "provide[] an 

integration plan so that no white or black student who lives in an integrated

48R 1-7/30/90 Motion-12. See also, e.g, Brief for Appellants, at 34 ("must [the 
maximum] remain at the same 30% maximum established twenty years ago?"). As 
we have detailed in the Statement, there has not been a 30% minority enrollment 
maximum in force in this litigation since 1982. The appellants therefore need not 
intervene in order to obtain relaxation of that provision of the decree.

- 28 -



neighborhood will be required to be bused away from his ‘neighborhood school’ in 

order to achieve racial balances.”49 Wholly apart from the difficulties of 

definition and application that would be created by appellants’ suggested decretal 

language, the constitutional obligation of the Pinellas County School Board that is 

being enforced in this action is to desegregate its entire system of public schools. 

A priori limitations on remedies that the Board may utilize in that process are 

invalid, whether they are restrictions on pupil transportation generally, North 

Carolina State Board of Education v. Swann, or fencing off geographic areas for 

separate treatment, Davis v. Board of School Commissioners of Mobile County, 402 

U.S. 33 (1971). As the Supreme Court explained in Davis, desegregating one 

portion of a school system in isolation (including through geographic zoning) may 

complicate or make impossible the effective dismantling of the dual system in 

other areas of the district:

Under the District Court’s elementary school plan for the 
metropolitan area, the eastern and western sections were treated as 
distinct, without either interlocking zones or transportation across the 
highway. Not surprisingly, it was easy to desegregate the western 
section, but in the east the District Court left 12 all-Negro or nearly 
all-Negro elementary schools, serving over 90% of all the Negro 
elementary students in the metropolitan area.

The Court of Appeals rejected this solution in favor of a modified 
version of a plan submitted by the Department of Justice. As further

49Rl-7/30/90 Motion-10, 11 (e); see id., 1T (c) (requesting "injunction requiring 
the School Board to eliminate all busing of students from an integrated 
neighborhood").

- 29 -



modified after a second appeal, this plan reduced the number of all- 
Negro or nearly all-Negro elementary schools from 12 to six schools 
. . . Like the District Court’s plan, the Court of Appeals’ plan was 
based on treating the western section in isolation from the eastern.
There were unified geographic zones, and no transportation of 
students for purposes of desegregation. The reduction in the number 
of all-Negro schools was achieved through pairing, rezoning, and 
adjusting grade structures within the eastern section.

Davis, 402 U.S. at 36. For this reason, the Court held, it was essential that all

parts of the school system be susceptible to inclusion in a single, overall

desegregation strategy. Id. at 38. See also, e.g., Medley v. School Board of Danville,

482 F.2d 1061 (4th Cir. 1973), cert, denied, 414 U.S. 1172 (1974)(river); Boykins v.

Fairfield Board of Education, 457 F.2d 1091 (5th Cir. 1972)(highway).

For all of these reasons, the District Court correctly held that appellants

were not entitled to intervene in this action as a matter of right pursuant to Fed .

R. Civ. P. 24(a)(2).

II

The District Court Did Not Abuse Its Discretion 
In Refusing To Grant Permissive Intervention To Appellants

We think it is quite clear from the discussion in the preceding section that 

there was no abuse of discretion in denying permissive intervention in this case. 

See International Tank Terminals, Ltd. v. MIVAcadia Forest, 579 F.2d 964, 968 (5th 

Cir. 1978). There were no pending contested proceedings before the court.

- 30 -



Existing parties have cooperated in carrying out the Court’s Orders and in

modifying them as necessary to resolve practical problems and adapt to changing

circumstances. Appellants sought to obtain basic modifications of Orders whose

contours had been established years ago and been repeatedly reaffirmed, and to

introduce extraneous pendent or unrelated claims to this lawsuit. As the Fifth

Circuit said with respect to a similar situation

We are not unaware of the possible burdens the [alteration of the 
plan] may impose on [the proposed organizational intervenor’s] 
members. However, the school board in making its decision was also 
aware of these problems as well as other interests throughout the 
county. The appropriate forum for [the proposed intervenor] to air 
its complaints was before the county school board.

United States v. Marion County School District, 590 F.2d at 149. Accord, e.g.,

Trahan v. Lafayette Parish School Board, 616 F. Supp. at 222 ("As to whether there

are less onerous means of rezoning, ‘[t]hese matters of policy are to be determined

by the Board of Education, not by the Federal Courts[,]’ Perry, supra, 567 F.2d at

280").

"An improper use of discretion exists only when the judicial action is 

arbitrary, fanciful, or unreasonable, or when improper [legal] standards, criteria or 

procedures are used." Hoots v. Commonwealth of Pennsylvania, 703 F.2d 722, 725 

(3d Cir. 1983), quoting Evans v. Buchanan, 555 F.2d 373, 378 (3d Cir.){en banc), 

cert, denied, 434 U.S. 880 (1977). The denial of permissive intervention to 

appellants does not by any stretch of the imagination fall within this category.

- 31 -



Ill

The District Court Did Not Err By Failing 
To Conduct A Hearing On the Motion for Intervention

Appellants contend that the District Court committed legal error in acting

on their Motion for Intervention without conducting a hearing, citing a line of

cases deriving from the seminal decision in Hines v. Rapides Parish School Board.

These decisions do not, however, announce a mechanical rule that requires a

hearing on every petition to intervene. Rather, the determination whether a

hearing should be held is guided by the content of the moving papers:

The petition for intervention would bring to the attention of the 
district court the precise issues which the new group sought to 
represent and the ways in which the goal of a unitary system had 
allegedly been frustrated. The district court could then determine 
whether these matters had been previously raised and resolved and/or 
whether the issues sought to be presented by the new group were currently 
known to the court and parties in the initial suit.

Hines, 479 F.2d at 765 (emphasis supplied). It has consistently been held that

where the intervention petition does not meet these standards on its face, no

hearing is required. E.g, Kneeland v. NCAA, 806 F.2d 1285, 1289 (5th Cir.)(”an

evidentiary hearing is not required in the present case because the record clearly

demonstrates that SMU is not entitled to intervene"), cert, denied, 484 U.S. 817

(1987); Pate v. Dade County School Board, 79 F.R.D. 638, 640 (S.D. Fla.

1978)(intervention denied without hearing where petition "d[id] not allege that the

goal of a unitary system has been frustrated"), aff’d, 588 F.2d 501 (5th Cir.), cert.

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denied sub nom. Beckford v. Dade County School Board, 444 U.S. 835 (1979); Perry 

County, 567 F.2d at 280; Trahan v. Lafayette Parish School Board, 616 F. Supp. at 

223.50

In this case, the allegations of the Motion for Intervention communicated 

quite clearly the scope and nature of appellants' claims, as well as their 

insufficiency under the Hines and Perry County standards. The District Court 

accordingly acted correctly in denying intervention without conducting a hearing.

50While hardly dispositive, it is of some relevance that the Tampa Division of 
the United States District Court for the Middle District of Florida suspended civil 
trials indefinitely as of February 1, 1991 in order to deal with the Division’s 
backlog of criminal matters. The district courts must have the ability to weed out 
insubstantial matters without conducting time-consuming hearings; this is exactly 
the office of the "precise petition" required by Hines.

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Conclusion

For the foregoing reasons, the judgment below was correct; this Court 

therefore lacks jurisdiction over the appeal which must be dismissed.

ROGER W. PLATA 
216 Mirror Lake Drive 
P. O. Box 13903 
St. Petersburg, FL 33733 
(813) 823-9188

Respectfully submitted.

ENRIQUE ESGARRAZ, III 
695 Central Avenue, Suite 107 
P. O. Box 847 
St. Petersburg, FL 33731 
(813) 894-8507

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
99 Hudson Street, 16th floor

New York, New York 10013 
(212) 219-1900

Attorneys for Plaintiffs-Appellees



Certificate of Service

I hereby certify that on this 21st day of October, 1991,1 served two copies of 

the foregoing Brief for Plaintiffs-Appellees upon counsel for the other parties 

hereto, by arranging for prepaid Federal Express next-day delivery to the 

following:

Dyril L. Flanagan, Esq.
2950 5th Avenue, North 
St. Petersburg, Florida 33713 
(Counsel for Appellants)

Bruce P. Taylor, Esq.
301 Fourth Street, S.W.
Largo, Florida 34640
(Counsel for Defendants-Appellees)

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