UNITED STATES of America, Plaintiff–Appellee,

v.

The STATE OF MISSISSIPPI, et al., Defendants.

The STATE OF MISSISSIPPI and the Newton County School District,

Defendants–Appellees,

v.

The HICKORY IMPROVEMENT ASSOCIATION, etc., et al., Appellants.

No. 91–1449.

United States Court of Appeals,

Fifth Circuit.

April 15, 1992.

Appeal from the United States Distri ct Court for the Southern

District of Mississippi.

Before THORNBERRY, KING, and DEMOSS, Circuit Judges.

THORNBERRY, Circuit Judge:

The Hickory Improvement Association (the "Association")

appeals the district court's denial of its motion to intervene in

this school desegregation case. The Association is a

racially-integrated group of parents an d guardians of children

affected by the Newton County, Mississippi School Board's plan to

reorganize the Newton County schools. The reorganization plan was

presented to the federal district court for approval because the

court retained jurisdiction over Mississippi's schools after

entering an order desegregating the scho ols in 1970. The

Association sought to intervene in the district court suit in order

to oppose the school board's reorganization plan. The district

court denied the Association's motion to intervene, and the

Association appeals.Background

In the fall of 1989, the Newton County School Board began

considering a plan to reorganize the district's schools to

alleviate financial pressures on the district. The plan was

discussed and debated at school board and PTA meetings that fall.

Among other things, the plan sought to consolidate the district's

three elementary schools at one scho ol in Decatur, Mississippi,

which is located near the geographic center of Newto n County.

Although the School Board was primarily interested in the increased

efficiency of consolidation, the reorganization would also produce

a unitary system completing the desegregation of the Newton County

schools. Members of the Association opposed consolidation because

they lived in outlying Hickory, Mississippi, and the reorganization

plan would increase the length of time their children would spend

on buses to and from school. Despite these objections, the School

Board approved the re organization plan at a school board meeting

held on January 22, 1990.

The school district, however, was subject to a federal court

order entered in 1970 desegregating the Mississippi schools. Prior

to implementing the reorganization, the School Board moved to

modif y the 1970 order to allow the reorganization. On July 5,

1990, the district court gr anted the School Board's motion to

modify the 1970 order according to a schedule submitted by the

School Board along with its motion. According to that schedule,

the reorganization would be phased in between the 1991 and 1995

school years, with the Hickory elementary school to be closed in1993. On December 14, 1990, the School Board elected to accelerate

the reorganization and began seeking bids for the construction of

the new elementary school in Decatur. According to the accelerated

schedule, the Hickory elementary scho ol would be closed in 1991.

In February 1991, the School Board sought modification of the

district court's July 5, 1990 order to allow acceleration of the

timetable for the reorganization.

Prior to the district court's receipt of the motion to

accelerate the schedule for reorganization, the Association moved

to intervene in the district court action in order to challenge the

court's July 5, 1990 order approving the reorganization plan and to

oppose the acceleration of the reorganization. The district court

held a hearing on the motion to intervene on February 27, 1991, and

entered an order denying intervention on April 2, 1991. The

Association appeals.

Discussion

The Association asserted three alternative bases for

intervention under Rule 24 of the Federal Rules of Civil Procedure:

first, that 20 U.S.C. § 1717 provides an unconditional right of

intervention under Fed.R.Civ.P. 24(a)(1); second, that

Fed.R.Civ.P. 24(a)(2) provides a right to intervention because the

Association's interest in the litigation is inadequately

represented by existing parties; and third, that the district

court erred by denying the Associ ation permissive intervention

under Fed.R.Civ.P. 24(b). We will address each claim in turn.A. Statutory Right of Intervention under Fed.R.Civ.P. 24(a)(1)

Rule 24(a)(1) of the Federal Rules of Civil Procedure

provides for mandatory intervention "when a statute of the United

States confers an unconditional right to intervene." Fed.R.Civ.P.

24(a)(1). In C isneros v. Corp us Christi Independent School

District, we held that 20 U.S.C. § 1717 creates merely a

conditional right of intervention, and therefore does not provide

proposed intervenors with an ab solute right to intervene under

Fed.R.C iv.P. 24(a)(1). C isneros v. Corpus Christi Independent

S chool District, 560 F.2d 190, 191 (5th Cir.1977), cert. deni ed,

434 U.S. 1075, 98 S.Ct. 1265, 55 L.Ed .2d 781 (1978). The

Association urges us to abandon Cisneros and grant the Association

mandatory intervention pursuant to an unconditional statutory right

under 20 U.S.C. § 1717. We decline the invitation to do so.

The court in Cisneros based its holding upon the statutory

language of 20 U.S.C. § 1717. Section 1717 provides that:

A parent or gu ardian of a child ... transported to a public

school in accordance with a court order

... may seek to reopen

or intervene in the further implementation of such court

order, currently in effect, if the time or distance of travel

is so great as to risk the he alth of the student or

significantly impinge on his or her educational process.

20 U.S.C. § 1717 (1990) (emphasis added). We agree with the prior

pan el that the legislature's use of the permissive language "may

seek to intervene" cre ates a conditional right of intervention,

taking the statute out of the purview of Fed.R.Civ.P. 24(a)(1). We

are unpersuaded by the Association's proposed a nalogy to U .S. v.

Metropolitan St. Louis Sewer District because the statute at issuethe re, 33 U.S.C. § 1365(b)(1)(B), differs significantly from 20

U.S.C. § 1717. S ee U.S. v. Metropolitan St. Louis Sewer District,

883 F.2d 54 (8th Cir.1989). 33 U.S.C. § 1365(b)(1)(B) provides

that "any citizen may intervene as a matter of right. " 33 U.S.C.

§ 1365(b)(1)(B) (1988) (emphasis added). This statutory language

clearly evinces the legislature's intent to provide for a mandatory

right of intervention. The contrast between the language of 33

U.S.C. § 1365(b)(1)(B) and the language of 20 U.S.C. § 1717

convinces us that Cisneros interpreted 20 U.S.C. § 1717 correctly.

We therefore affirm the district court's denial of intervention on

this ground.

B. Mandatory Intervention under Fed.R.Civ.P. 24(a)(2)

Our reaffirmance of Cisneros guides our analysis of the

Association's claim of a mandatory right of inter vention under

Fed.R.Civ.P. 24(a)(2). Rule 24(a)(2) grants a mandatory right of

intervention "when the applicant claims an interest relating to the

property or transaction which is the subject of the action and the

applicant is so situated that the disposition of the action may as

a practical matter impair or impede the applicant's ability to

protect tha t interest, unless the applicant's interest is

adequately represented by existing parties." Fed.R.Civ.P.

24(a)(2). To intervene under Rule 24(a)(2), the Association must

assert a "direct, substantial, legally protectable interest in the

proceedings." D iaz v. Southern Drilling Corp., 427 F.2d 1118, 1124

(5th Cir.), cert. denied sub nom., Trefina v. U.S., 400 U.S. 878,

91 S.Ct. 118, 27 L.Ed.2d 115 (1970). As set forth above, 20 U.S.C.1 The statute was, however, available to them at that time.

20 U.S.C. § 1717 was enacted in 1974, and the Perry County

decision was reached in 1978. § 1717 creates merely a permissive right of intervention, provided

for under Rule 24(b). Conversely, the interest recognized in §

1717 is not legally protectable by mandatory intervention.

We recognized this principle in our 1978 decision in U.S. v.

Perry County Board of Education, 56 7 F.2d 277 (5th Cir.1978).

Although the proposed intervenors in Perry County did not base

their right of intervention on 20 U.S.C. § 1717, 1 the nature of the

interest claimed was the same as the interest asserted here. The

proposed intervenors in Perry County opposed the construction of a

centralized consolidated high school at the school board's chosen

site, based on the intervenors' concern for the safety and welfare

of school children and the impact of the travel distance required

to attend school at the new location. See Perry County, 567 F.2d

at 279 & n. 3. The panel found that, because the intervenors'

opposition to the school board's decision was based on policy

reasons unrelated to desegregation, t h e interest asserted was

insufficient to trigger a mandatory right of intervention in a

school desegregation case under Rule 24(a)(2). We agree with the

Perry County panel that "[t]hese matters of policy are to be

determined by the Board of Education, not by the federal courts."

Id. at 280.

This reasoning relates as well to the requirement of

inadequate representation under Rule 24(a)(2). The Association hasnot shown that the School Board's interests are adverse to the

Association's interests or that the School Board has acted in bad

f aith. S ee U.S. v. Board of School Commissioners of the City of

Indianapolis, Indiana, 466 F.2d 573 ( 7th Cir.1972), c ert. denied

sub nom., Citizens of Ind ianapolis for Quality Schools, Inc. v.

U.S., 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973). The

School Board as a whole considered the Association's arguments in

opposition to consolidation at school board and PTA meetings, but

were pressured by financial hardship to consoli date in spite of

those concerns. C f. Hines v. Rapides Parish School Board, 479 F.2d

762, 765 (5th Cir.1973). The School Board's representative stated

a t the hearing on the motion to intervene that the Bo ard had

attempted to finance the maintena nce of community elementary

schools:

[W]e've had some five bond issues in Newto n County,

Mississippi to attempt to do that very thing but none of them

have passed and we're simply unable on the funds that we have

in a small county with some 19,000 people to fund four or five

schools.... In a county that small we simply could not

survive without consolidation on an economic basis. So the

only logical thing for us to do which we are attempting to do

is to provide a unitary desegregated school on an economic

basis to provide these children of this county with a better

education.

Hearing on Motion for Temporary Restr aining Order at 17. As we

stated in Perry County, "[a]ppellants are not entitled to

intervention of right simply because they would have voted

differently had they been members of these representative bodies."

Perry County, 567 F.2d at 280. Because the Association has not

rebutted the School Board's showing of adequate representation, the

district court properly denied intervention under Fed.R.Civ.P.24(a)(2).

C. Permissive Intervention under Fed.R.Civ.P. 24(b)

The Associatio n sought permissive intervention in the

district court pursuant to Fed.R.Civ.P. 24(b), which provides:

Upon timely application anyone may be permitted to intervene

in an action (1) when a statute of the United States confers

a conditional right to intervene.... In exercising its

discretion the court shall consider whether the intervention

will unduly delay or prejudice the adjudication of the rights

of the original parties.

Fed.R.Civ.P. 24(b). We review the district court's denial of the

Association's motion for permissive intervention under an abuse of

discretion standard. C isneros v. Corpus Christi Independent School

District, 560 F.2d 190, 191 (5th Cir.1977).

As we previously held in Cisneros, and reaffirmed in the

foregoing section, 20 U.S.C. § 1717 confers a conditional right of

int ervention. The statute sets forth the condition: The

Association mus t show that "the time or distance of travel is so

great as to risk the health of the student or significantly impinge

on his or her educational process." 20 U.S.C. § 1717 (1990). At

the district court's hearing on the motion to intervene, the

Association presented testimony regarding the health effects of the

increased travel. The School Board countered with testimony from

the Superintendent and the Transportation Director for the Newton

County School District. These witnesses testified that for any

child, the most that the travel distance would increase would be

10.6 miles, which is the distance from the Hickory elementaryschool to the site of the new elementary school in Decatu r. The

district court found that "[t]he Association's testimony failed to

show that such a short distance of travel would so seriously affect

the welfare, safety, health and educational achievement of the

students in question." Record at 376. After reviewing the record,

we cannot say that the district court abused its discretion in

denying permissive intervention based on this finding.

Our holding is further bolstered by the timeliness

requirement of Fed.R.Civ.P. 24(b). Although the Association argues

that it seeks intervention to challenge the acceleration of the

conso lidation, it is in actuality contesting the advisability of

the consolidation itself, which was approved by a court order

entered on July 5, 1990. Because the Association did not seek

intervention unti l February of 1991, its application for

intervention was properly denied as untimely. To the extent that

the Association seeks to challenge the acceleration, we agree with

the district court that the A ssociation failed to establish that

the acceleration presented a risk to the health or educational

development of the children of Hickory, who would be bused to

Decatur in any event under the district court's July 5, 1990 order.

We affirm the distr ict court's denial of intervention under

Fed.R.Civ.P. 24(b).

In its brief and at oral argument, the Association sought to

contest the validity of the district court's July 5, 1990 order.

Because the Association was prope rly denied party status in thisaction, it may not appeal the merits of the case. S ee Commonwealth

of Pennsylvania v. Rizzo, 530 F.2d 501, 507–08 (3d Cir.), cert.

denied sub nom., Fire Officers Union v. Pennsylvania, 426 U.S. 921,

96 S.Ct. 2628, 49 L.Ed.2d 375 (1976).

For the foregoing reasons, we AFFIRM the district court's

denial of intervention under Rules 24(a) and (b) of the Federal

Rules of Civil Procedure.