United States Court of Appeals

Fifth Circuit

FILED

March 29, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-30395

 

KEVIN PAUL CAVALIER, on behalf of 

Hunter Paul Cavalier; JULIE ANN CAVALIER, 

on behalf of Hunter Paul Cavalier,

Plaintiffs-Appellants,

versus

SCHOOL BOARD OF CADDO PARISH; 

PHILLIP R. GUIN; WILLIE D. BURTON; 

GINGER ARMSTRONG; EURSLA D. HARDY; 

ALVIN MIMS; MARK MILAM; MICHAEL J. 

THIBODEAUX; WANDA J. WRIGHT; 

JERRY TIM BROOKS; MILES HITCHCOCK; 

MILDRED B. PUGH; and MIKE POWELL,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Western District of Louisiana

 

ON PETITION FOR REHEARING AND REHEARING EN BANC

(Opinion 3/1/05, 5 Cir., , F.3d )

Before Judges GARWOOD, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:

A. The panel opinion issued herein March 1, 2005 is hereby

modified in (and only in) the following two respects as set out in

(1) and (2) below, viz:
(1) The last two sentences which begin on page 5 of the

manuscript opinion (also being the third and fourth sentences which

begin in the right-hand column on slip opinion page 1622), reading

as follows:

“Because this consent decree no longer applies to CMMS,

it cannot justify the Board’s policy, and because the

Board shows no other compelling governmental interest for

its racial classification, we hold that the policy is

unconstitutional. Furthermore, even if CMMS were still

subject to the decree, because the Board has not shown

that it has considered any race-neutral means to achieve

its desired racial mix and relies exclusively on a racial

quota, the policy is not narrowly tailored.”

are hereby deleted from the opinion and replaced by the following,

viz:

“Because this consent decree no longer applies to CMMS,

it cannot justify the Board’s policy, and because the

Board shows no other compelling governmental interest for

its racial classification, we hold that on this record it

was error to grant the School Board’s motion for summary

judgment and the policy is unconstitutional.

Furthermore, because the Board has not shown that it has

considered any race-neutral means to achieve its desired

racial mix and relies exclusively on a racial quota, the

policy is not narrowly tailored.”

(2) The first sentence of the second grammatical paragraph

which commences on page 27 of the manuscript opinion (the first

sentence of the third grammatical paragraph in the left-hand column

on slip opinion page 1633), reading as follows:

“Moreover, even if the 1981 Consent Decree were still in

some respects applicable to CMMS, the School Board’s

policy is not narrowly tailored to remedy the present

effects of past segregation, the compelling interest

allegedly supported by the Consent Decree.”

is hereby deleted from the opinion and replaced by the following,

viz:
“Moreover, the School Board’s policy is not narrowly

tailored to remedy the present effects of past

segregation, the compelling interest allegedly supported

by the Consent Decree.”

B. Except as above provided, the panel opinion issued herein

March 1, 2005 is unchanged.

C. The Petition for Rehearing is DENIED. Judge Wiener

dissents from the denial of rehearing.

D. No member of this panel nor judge in regular active

service on the court having requested that the court be polled on

Rehearing En Banc, (FED. R. APP. P. and 5TH CIR. R. 35) the Petition

for Rehearing En Banc is also DENIED. 

E. The motion of appellees to “stay the effects of the March

1, 2005 opinion” to “allow the district to operate under its

current admissions policy during the 2005-06 school year” is

DENIED.