1 United States Court of Appeals,

Fifth Circuit.

No. 94-40770

Summary Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

FRANKLIN PARISH SCHOOL BOARD, et al., Defendants-Appellees,

v.

SAVE OUR SCHOOLS, Movant-Appellant.

March 20, 1995.

Appeal from t he United States District Court for the Western

District of Louisiana.

Before KING, JOLLY and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Save Our Schools, an unincorporated association of parents,

residents and taxpayers in Franklin Parish, appeals the district

court's denial of its p etition to intervene as of right in a

longstanding school desegregation suit. The district court denied

the motion, finding that Save Our Schools' claimed interest did not

warrant intervention an d that the association's interest was

adequately represented in the litigation by the existing parties.

Because we find that Save Our Schools was not entitled to intervene

as a matter of right, we dismiss for lack of appellate

jurisdiction.

BACKGROUND

Twe nty four years ago the United States brought a school

desegregation suit against the Franklin Parish School Board (FPSB).2

In August 1970 the district court entered a desegregation order

permanently enjoining FPSB fr om operating the school system in a

discriminatory manner and requiring that FPSB take sp ecified

actions to implement the order. The district court maintained

continuing jurisdiction for the purpose of enforcing or modifying

its order.

In June 1994, motivated by economic and educational concerns,

the FPSB approved a plan consolidating some of the schools in the

parish. Prior to voting on the plan, FPSB entertained lively

debate from the community and considered at least two independent

studies relating to c onsolidation. Because the district court

still has continuing jurisdiction to determine the impact of any

proposed consolidation on implementation of its desegregation

order, the proposed plan is subject to approval by the district

court following agreement by both parties. As of this appeal,

negotiations between the United States and FPSB are ongoing and the

plan has not been submitted to the district court.

Several parents, residents and taxpayers of Franklin Parish,

who objected to the proposed consolidation because it would close

certain schoo ls and potentially raise taxes, banded together to

form Save Our Schools ( " SOS"). In July 1994, SOS moved to

intervene as of right in the school desegrega tion suit, claiming

that the school system was already unitary and seeking a temporary

restraining order against implementation of the proposed

consolidation plan. Both the United States and FPSB opposed the

motion. After a hearing, the district court denied the motion, and1 The memorandum accompanying the petition also alleged that

members of SOS were facing school closings, long-distance busing

and the potential for additional taxation as a result of the

proposed consolidation plan and requested that the district court

issue a temporary restraining order prohibiting enforcement of

that plan. SOS sensibly abandoned its challenge to the

consolidation plan in the hearing, conceding that it could not

intervene to challenge the school board's determination of the

number and location of schools in the parish. See, e.g., United

States v. State of Mississippi, 958 F.2d 112, 115 (5th Cir.1992)

(there is no right to intervene to challenge school board

3 SOS timely appealed.

DISCUSSION

SOS sought to intervene solely as a matter of right under

Federal Rule of Civil Procedure 24(a)(2). That rule imposes four

requireme nts: (1) the applicant must file a timely application;

(2) the applicant must claim an interest in the subject matter of

the action; (3) the applicant must show that disposition of the

action may impair or impede the applicant's ability to protect that

interest; and (4) the applicant's interest must not be adequately

represented by existing parties to the litigation. F E D .R.C IV .P.

24(a)(2). The district court found that SOS's motion to intervene

was timely, that SOS did not demonstrate an interest in the

lit i gation sufficient to support intervention, and that SOS's

purported interest was adequately represented by the United States

and FPSB.

SOS's Interest

SOS's petition for intervention contended that although the

sc hool system had achieved the desired unitary status, FPSB had

failed in its duty to seek orders terminating federal control of

t he school system. 1 SOS claims its members are directly affecteddecisions based on policy matters, except to the extent that a

proposed plan impacts whether the school board is operating a

unitary system); Pate v. Dade County Sch. Bd., 588 F.2d 501, 503

(5th Cir.1979) (groups are not entitled to intervene because they

would have voted differently had they been members of the school

board); United States v. Perry County Bd. of Educ., 567 F.2d

277, 279-80 (5th Cir.1978) (intervenor's concerns about travel

and the outlay of public funds are policy concerns not related to

desegregation which do not justify intervention in federal

desegregation suit).

4 by the loss o f control over their school system, that no other

forum allows redress of their complaint and that their interest in

having the school system declared unitary is not adequately

represented by either the United States of FPSB bec ause neither

party is currently asserting the position that the school system

has achieved the desired unitary status. The United States and

FPSB respond that they share SOS's interest in having the school

system declared unitary so that control can be returned to the

local authority and that SOS's disagreement as to the time required

to achieve that objective does not demonstrate the type of interest

required to justify intervention.

In Hines v. Rapides P arish School Board, 479 F.2d 762 (5th

Cir.1973) this Court recognized that the proper procedural remedy

for parental groups challenging deficiencies in the implementation

of desegregation orders is intervention. I d. at 765-66 (finding

that intervention rather than separate suit was the ap propriate

remedy, but nonetheless refusing to remand for possible

intervention). Subsequent cases clarified that the parental

interest which justifies intervention is an interest in achieving2 Dade County Sch. Bd., 588 F.2d at 503 (affirming denial of

motion to intervene based on school board's policy decision not

to appeal order entered in desegregation suit and rejecting

would-be intervenor's challenge to district court's jurisdiction

based on prior finding that school system was unitary); Perry

County Bd. of Educ., 567 F.2d at 279 (affirming denial of motion

to intervene based on board's policy decision because petitioners

failed to allege that school board action impeded achievement of

unitary school system).

5 a desegregated school system. 2 SOS maintains that because language

in Hines recognized that parent groups could intervene to show that

discrimination still existed, that this Court is now bound to

recognize SOS's right to intervene for the purpose of showing that

discrimination has been eliminated. However, intervention is not

appropriate if the would-be intervenors present issues that the

existing parties are aware of and st and competent to represent.

Hines, 479 F.2d at 765. Both the United States and FPSB share

SOS's interest in returning local control to the schools.

"In the context of public school desegregation, the re are

innumerable instances in which children, parents, and teachers may

be deprived of various "rights' without having had the opportunity

to participate directly in the judicial p roceedings which divest

them of those "rights.' " Perry County Bd. of Educ., 567 F.2d at

279. SOS is not entitled to intervene based merely on conclusory

allegations that their duly elected representatives on the school

board are not aggressively defending the suit. S ee Dade County

Sch. Bd., 588 F.2d at 503 (parent group disagreement with school

board decision not to appeal order issued in desegregation case did

not demonstrate sufficient interest to justify intervention).

Their remedy for that breach, if any, is embodied in their right to6

select new representati ves. Further, SOS did not allege that

continued federal control of the school system injured them in any

s pecific way. To the contrary, SOS wants to invoke the power of

the federal court to settle their dispute with the local school

board. We hold that SOS's stated interest in accelerating release

from federal control, without any articulation of pre sent or

potential injury from that control, is insufficient under the facts

of this case to warrant intervention pursuant to rule 24(a)(2).

Adequacy of Representation

Even assuming SOS's asserted interest in returning control to

local authorities was sufficient to justify intervention, that

interest is adequately represented by the existing parties. When

the "party seeking to intervene has the same ultimate objective as

a party to the suit, the existing party is presumed to adequately

rep resent the party seeking to intervene unless that party

demonstrates adversity of interest, collusion, or nonfeasance."

Kneeland v. Nat'l Collegiate Athletic Ass'n, 806 F.2d 128 5, 1288

(5th Cir.), cert. denied, 484 U.S. 817, 108 S.Ct. 72, 98 L.Ed.2d 35

(1987); s ee also United States v. South Bend Community School

Corp., 692 F.2d 623, 627 (7th Cir.1982); U nited States v. Board of

Sch. Comm'r, 466 F.2d 573, 575 (7th Cir.1972), cert. denied, 410

U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973) (both recognizing a

presumption that a school board adequately represents its student's

inter ests absent a showing of gross negligence or bad faith).

There was no evidence offered at the hearing that FPSB was

operating in bad faith or was in any way not representative of the3 SOS's reliance on Freeman v. Pitts, 503 U.S. 467, ---- - --

--, 112 S.Ct. 1430, 1443-45, 118 L.Ed.2d 108 (1992) is misplaced.

Freeman addressed the issue of whether a district court can

relinquish control over a school district in incremental stages

before full compliance with the court's order. As the district

court correctly noted, SOS cannot advance arguments related to

whether partial or complete withdrawal of federal control is

appropriate in this case unless and until it is granted the right

to intervene.

7 majority of its constituency. Likewise, there was no evidence that

FPSB had any motivation or interest that was different from that of

SOS. 3 SOS cites no authority for the proposition that they are

entitled to intervene because no other party is ass erting their

current p osition that a unitary school system has been achieved.

Certainly, after twenty-four years of federal control, FPSB is in

a better position to determine wh en it can successfully seek

release from federal court control. Finally, disposition of the

action, when there is a final determination that a unitary school

system has been achie ved, will advance rather than impair SOS's

interest in returning control to local authorities. S ee

F ED

. R.C IV .P. 24(a)(2). We hold that SOS's claimed interest in

having the school system declared unitary so that control can be

returned to the local authorities was adequ ately represented by

FPSB. Because absence of even one of the four factors required by

rule 24(a)(2) is sufficient to defeat intervention, it is not

necessary to review the district court's timeliness determination.

Conclusion

Our Court has only provisional jurisdiction to hear an appeal

from the denial of a motion to intervene as of right. See Woolen

v. Surtran Taxicabs, Inc., 684 F.2d 324, 330-31 (5 th Cir.1982).8

Once the Court determines that the motion to intervene as of right

is without merit, the appropriate remedy is to dismiss for lack of

appellate jurisdiction. I d. We have reviewed the district court's

decision de novo and conclude that SOS was not entitled to

intervene as of right pursuant to rule 24(a)(2). Accordingly, this

appeal is DISMISSED.