Virgie Lee Valley v. Rapides Prsh Sch Bd , 173 F.3d 944 ( 1998 )


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  •                      REVISED, July 16, 1998
    
                  IN THE UNITED STATES COURT OF APPEALS
    
                          FOR THE FIFTH CIRCUIT
                             _______________
    
                               No. 97-30323
                             _______________
    
    
    
                       VIRGIE LEE VALLEY, et al.,
    
                                                    Plaintiffs,
    
    
                        UNITED STATES OF AMERICA,
    
                                                    Intervenor-
                                                    Plaintiff-Appellee,
    
                                 VERSUS
    
                      RAPIDES PARISH SCHOOL BOARD,
    
                                                    Defendant-Appellee,
    
                            RICHARD P. IEYOUB,
               Attorney General of the State of Louisiana,
    
                                                    Appellant.
    
    
                        _________________________
    
              Appeal from the United States District Court
                  for the Western District of Louisiana
                        _________________________
    
                              June 26, 1998
    
    Before WISDOM, SMITH, and DeMOSS, Circuit Judges.
    
    JERRY E. SMITH, Circuit Judge:
    
    
    
         The Attorney General of Louisiana appeals a judgment striking
    a state constitutional amendment and invalidating implementing
    
    legislation designed to divide the Rapides Parish School District
    
    into two districts.             Finding this case not ripe for review, we
    
    vacate and remand.
    
    
    
                                               I.
    
                                               A.
    
            The      Rapides    Parish    School     Board    (“RPSB”)    operated     a
    
    constitutionally impermissible dual school systemSSone for whites
    
    and one for non-whitesSSat the time of Brown v. Board of Educ.,
    
    
    347 U.S. 483
       (1954)   (Brown   I).     In   light   of   Brown   and   its
    
    progenySSwhich directed that schools be desegregated “with all
    
    deliberate speed,” Brown v. Board of Educ., 
    349 U.S. 294
    , 301
    
    (1955) (Brown II)SSblack children in 1965 filed suit against the
    
    RPSB, seeking desegregation.
    
            In the intervening thirty-three years, the district court has
    
    imposed successive plans to achieve integration.                   None apparently
    
    has achieved unitary status or has brought the district court to
    
    the point of relinquishing its remedial powers over the RPSB.1
    
            At first, the district court settled upon a “free choice” plan
    
    that removed the barriers for blacks to go to white schools and
    
    vice versa, but stopped short of forced integration.                       When the
    
    
    
            1
                The district court recently extended its order through the 2005-06 school
    year.
    
                                                2
    Supreme Court struck down a similar program in Green v. County
    
    Sch. Bd., 
    391 U.S. 430
     (1968), this court directed the district
    
    court to be more aggressive in achieving integration, using the
    
    Green factors.   That was in 1969.       See generally Valley v. Rapides
    
    Parish Sch. Bd. (“Valley I”), 
    646 F.2d 925
    , 929-30 (describing the
    
    history of the litigation), modified, 
    653 F.2d 941
     (5th Cir. Unit A
    
    May 1981).
    
         Since    that   time,   the   district   court   has   given   careful
    
    attention to the racial ratios of the students, faculty, and
    
    administrators in each school.       The program continues to this day
    
    and involves extensive busing and other means to achieve racial
    
    parity.    The district court remains active in redrawing the lines
    
    of attendance at schoolsSSat regular intervalsSSin order to maintain
    
    racial balance and in managing other aspects of running the RPSB.
    
         At issue in this case are Wards 9, 10, and 11 of Rapides
    
    Parish (the “northern wards”), all north of the Red River.            These
    
    wards are primarily white, while the remaining wardsSSlocated in
    
    the city of Alexandria, south of the riverSSare more racially
    
    mixed.    The northern wards areSSand have beenSSpart of the RPSB.
    
         Throughout the litigation, the district court has made a
    
    continuing effort to maintain racial balance in the city schools of
    
    Alexandria.    Accordingly, the court has ordered the RPSB to bus
    
    white students from these suburbs to the city and to do the
    
    opposite with non-white students from the city. The district court
    
    
                                         3
    has been hindered in its quest for racial balance, however, by
    
    increases in white flight and in black enrollment.
    
         In 1995, the state legislature approved a ballot measure to
    
    change the state constitution to form a separate school district in
    
    the northern wards and to allow it to elect its own school board.
    
    The measure was approved by state voters and proclaimed part of the
    
    state constitution by the governor in November 1995.         See LA. CONST.
    
    art. VIII, § 13(D), and advisory notes.
    
         Contemporaneously,      the       legislature       passed     enabling
    
    legislationSSAct   973SSto   provide,    among   other    things,   for   the
    
    drawing of election districts for the members of the new district’s
    
    board.   See LA. REV. STAT. ANN. § 17:62.            Assuming the Justice
    
    Department’s approval of the voting districts under the Voting
    
    Rights Act, the election for the initial board members is to take
    
    place with the congressional elections in November 1998.             See id.
    
    § 17:62(C).
    
    
    
                                       B.
    
         The RPSB filed the instant declaratory judgment actionSSas
    
    part of its ongoing school desegregation litigationSSin October
    
    1996, praying for a declaration that Act 973 is unconstitutional as
    
    applied to the RPSB because it interferes with the RPSB's ability
    
    to conform to the desegregation order.           See Valley v. Rapides
    
    Parish Sch. Bd., 
    960 F. Supp. 96
    , 97 (W.D. La. 1997).                At the
    
    
                                       4
    district court’s request, the RPSB served notice on the state
    
    attorney general, who is the officer statutorily obliged to defend
    
    the state’s laws.
    
          The attorney general filed a response opposing the declaratory
    
    judgment but did not have the opportunity to introduce evidence in
    
    support of the law.2           Instead, he argued that a declaratory
    
    judgment was improper because the claim is not ripe for review.
    
    Even if it were ripe, he reasoned, the law does not unconstitution-
    
    ally infringe on the district court’s remedial authority.
    
          The district court found that there was a ripe case or
    
    controversy    needed    to   sustain    a   declaratory    judgment    action,
    
    because the school district faced substantial uncertainty and
    
    expense   if   subjected      to   the   possibility   of   adhering    to   two
    
    conflicting obligationsSSone imposed by the state constitution and
    
    the other by the federal court.              See id. at 98.      Reaching the
    
    merits, the court relied on the fact that without the northern
    
    wards, there would be fewer white children in the remaining school
    
    district. The resulting RPSB would become slightly more black than
    
    white, while the new district would be overwhelmingly white.3                The
    
    court held that because of this change in racial balance, Act 973
    
    impermissibly infringes on its remedial powers and thus offends the
    
    
    
          2
            The district court did not hold an evidentiary hearing before it entered
    its order.
          3
            The students residing in the remaining RPSB would be 60% black and 40%
    white, while those residing in the new district would be 87% white and 13% black.
    
                                             5
    federal Constitution.        See id. at 100-01.
    
          The state appeals this adverse judgment.               The RPSB, and the
    
    United States as plaintiff-intervenor, argue for affirmance.4
    
    
    
                                           II.
    
                                            A.
    
          Ripeness concerns subject matter jurisdiction, so we consider
    
    it de novo.5        Subject-matter jurisdiction can be raised at any
    
    time, even sua sponte.         See, e.g., Marathon Oil Co. v. Ruhrgas,
    
    
    1998 U.S. App. LEXIS 13358
    , at *12 (5th Cir. June 22, 1998)
    
    (en banc).
    
    
    
                                            B.
    
          With any declaratory judgment action, there is a concern that
    
    the legal issues will not be sufficiently developed for the court
    
    to make a decision on the merits.            Instead, the court may face a
    
    set of facts so contingent on other events that a decision would
    
    constitute no more than an advisory opinion on an abstract legal
    
    
          4
            Not participating in the appeal are the original minority plaintiffsSSthe
    parties ostensibly sued by the school district in its declaratory judgment
    action. The real adverse parties appear to be the proposed new school district
    and the state.
          5
            See Powder River Basin Resource Council v. Babbitt, 
    54 F.3d 1477
    , 1483 (10th
    Cir. 1995); Felmeister v. Office of Attorney Ethics, 
    856 F.2d 529
    , 535 n.8 (3d Cir.
    1988).       A decision to stay a declaratory judgment proceeding when there is a
    parallel state court proceeding is reviewed for abuse of discretion. See Wilton v.
    Seven Falls Co., 
    515 U.S. 277
    , 282-83 (1995). We decline to adopt the appellants'
    suggestion that Wilton addresses the district court’s finding of Article III
    subject-matter jurisdiction under the ripeness doctrine.
    
                                             6
    dispute.     Accordingly, before addressing the merits of the case,
    
    courts must be vigilant, in declaratory judgment suits, to make
    
    certain the action is ripe for review.
    
    
    
                                            1.
    
          “Ripeness is a function of an issue’s fitness for judicial
    
    resolution as well as the hardship imposed on the parties by
    
    delaying court consideration.”6 Thus, in considering a declaratory
    
    judgment    action’s     ripeness     for    review,    we    address    both    a
    
    constitutional requirement and prudential concerns.                 The Supreme
    
    Court most recently has reminded us of the importance of these
    
    considerations.      See Texas v. United States, 
    118 S. Ct. 1256
    , 1259-
    
    60 (1998); accord National Treasury Employees Union v. United
    
    States, 
    101 F.3d 1423
    , 1427 (D.C. Cir. 1996) (“NTEU”).
    
    
    
                                            a.
    
          A    federal   court     must   find    that     Article    III   standing
    
    requirements are met.           These include (1) “injury in factSSan
    
    invasion of a legally protected interest which is (a) concrete and
    
    particularized and (b) actual or imminent, not conjectural or
    
    hypothetical”; (2) causation, meaning that the injury is “fairly
    
    traceable to the challenged action of the defendant”; and (3)
    
    
    
          6
            Jobs, Training & Servs., Inc. v. East Tex. Council of Gov’ts, 
    50 F.3d 1318
    ,
    1325 (5th Cir. 1995); see, e.g., Abbott Lab. v. Gardner, 
    387 U.S. 136
    , 149 (1967).
    
                                            7
    redressability, meaning that “it must be likely, as opposed to
    
    merely    speculative,    that   the   injury    will   be   redressed    by   a
    
    favorable decision.” Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    ,
    
    560-61 (1992) (citations and internal quotation marks omitted); see
    
    NTEU, 101 F.3d at 1427.             The standing component that deals
    
    directly with ripeness is the requirement of “imminence.”                 In a
    
    declaratory action, the threatened injury must be “sufficiently
    
    'imminent' to establish standing.”          NTEU, 101 F.3d at 1428.
    
    
    
                                           b.
    
          Once the constitutional showing has been made, a court must
    
    satisfy prudential concerns by balancing the need to expend its
    
    resources on a case it may never need to decide against the expense
    
    and hardship to the parties of having a delayed adjudication.               The
    
    court must make sure that a sufficient factual basis, and necessity
    
    on the part of the parties, exist to justify the expenditure of
    
    judicial resources. “Prudentially, the ripeness doctrine exists to
    
    prevent the courts from wasting our resources by prematurely
    
    entangling ourselves in abstract disagreements . . . .”                  Id. at
    
    1431.7 These prudential concerns ensure that changing hypothetical
    
    circumstances or lack of party interest does not make resolution of
    
    
    
          7
            See also Ohio Forestry Ass'n, Inc. v. Sierra Club, 
    118 S. Ct. 1665
    , 1670
    (1998) (“[T]he ripeness requirement is designed 'to prevent the courts, through
    avoidance of premature adjudication, from entangling themselves in abstract
    disagreements . . . .'”) (quoting Abbott Lab., 387 U.S. at 148-49).
    
                                           8
    the legal issues unnecessary.   “Article III courts should not make
    
    decisions unless they have to.”       Id.
    
    
    
                                      2.
    
                                      a.
    
         This case is not ripe for adjudication, because it fails to
    
    satisfy the Article III “case or controversy” requirement.      Under
    
    the Article III analysis, there is no imminent threat of harm to
    
    the RPSB or to the desegregation decrees.       As the district court
    
    found, there is a potential threat of harm.            RPSB could be
    
    subjected to conflicting obligations of the federal court and the
    
    state constitution. The harm’s probability of occurrence, however,
    
    is sufficiently remoteSSgiven the myriad of contingencies necessary
    
    for it to developSSthat it fails to constitute the immediate harm
    
    necessary for Article III justiciability.
    
         In order for the RPSB to face an imminent risk of violation of
    
    the desegregation order, too many contingencies would have to
    
    occur.   There would have to be a new district in the northern wards
    
    with a proposed plan that would unconstitutionally interfere with
    
    the court’s remedial authority.        For that to occur, there would
    
    have to be a proposed plan about how the new district would operate
    
    in relation to the RPSB.   For that to occur, there would have to be
    
    an election of a new board.     And for that to occur, there would
    
    have to be Justice Department preclearance of the new voting
    
    
                                      9
    districts.    Because any one of these numerous links may not come to
    
    be,   the    string    of   contingencies      is    too   tenuous    to    support
    
    ripeness.8
    
    
    
                                            b.
    
          Even if these contingencies were to constitute an imminent
    
    injury, prudential concerns strongly dictate against the district
    
    court’s conclusion that this case is ripe for adjudication, for
    
    there is a substantial possibility that the actions of the new
    
    board will not violate the court’s orders.                 For example, the new
    
    board could adopt an inter-district busing and teacher reassignment
    
    plan with the RPSB to comply with the remedial order.                 Such a plan
    
    likely would moot the controversy.
    
          Essentially, the threat of noncompliance with the court's
    
    orders    will   not   occur   unless    the   new    board   seeks    to    become
    
    operational under Act 973 and then decides to take actions that,
    
    under the existing caselaw,9 would unconstitutionally interfere
    
    
          8
            See Texas v. United States, 118 S. Ct. at 1259 (“A claim is not ripe for
    adjudication if it rests upon “'contingent future events that may not occur as
    anticipated, or indeed may not occur at all.'”) (quoting Thomas v. Union Carbide
    Agric. Prods. Co., 
    473 U.S. 568
    , 581 (1985)). The existence of a law is not, by
    itself, necessarily sufficient to establish imminent injury. See, e.g., United
    Pub. Workers v. Mitchell, 
    330 U.S. 75
    , 90 (1947) (“A hypothetical threat is not
    enough.”); id. at 91 (“No threat of interference by the Commission with rights
    of these appellants appears beyond that implied in the existence of the law and
    the regulations.”) (citation omitted).
          9
            The Supreme Court addressed the constitutionality of “splinter school
    districts” in United States v. Scotland Neck City Bd. of Educ., 
    407 U.S. 484
    , 490
    (1972), and Wright v. Council of the City of Emporia, 
    407 U.S. 451
    , 464-66
    (1972), and this circuit thoroughly considered the issues in Ross v. Houston
                                                                     (continued...)
    
                                            10
    with the orders.     Although the RPSB need not wait until an actual
    
    disruption occurs in order to seek declaratory and injunctive
    
    relief, it should wait at least until there is a concrete threat.
    
    Here, that would mean that it must defer at least until the new
    
    board is in place and develops a plan for how it proposes to run
    
    the new district.
    
         Also important is the need to conserve judicial resources. As
    
    we have said, this dispute may end up being entirely academic, as
    
    no one can know what a not-yet-elected board will do.          The RPSB and
    
    the United States have imputed to this yet-to-exist body its worst-
    
    case parade of horribles.      Both have assumed that the new district
    
    will do everything it can to thwart the district court’s remedia-
    
    tion of the past de jure segregated school system.                 From the
    
    record, there is no basis for that fear.             The ripeness balance
    
    therefore weighs in favor of waiting to address this controversy.
    
         Our ripeness holding is underscored by our holding in Ross v.
    
    Houston Indep. Sch. Dist., 
    577 F.2d 937
    , 944-45 (5th Cir. 1977)
    
    (per curiam).      There, we made plain the proof needed by the
    
    proponent of the splinter district:
    
         WISD [the new school district] must, at the outset,
         establish what its operations will be. It cannot meet
         this requirement by simply reasserting the admission
         previously filed; rather, WISD must express its precise
         policy positions on each significant facet of school
         district operation. For example, it should state how it
    
    
         9
          (...continued)
    Indep. Sch. Dist., 
    559 F.2d 937
    , 943-44 (5th Cir. 1977) (per curiam).
    
                                         11
          plans to work with HISD regarding interdistrict pupil
          assignments,    including    transportation;    curriculum
          composition and control; teacher employment, discharge,
          assignment and transfer; financing and taxation; school
          building    construction,    utilization    and    closing
          procedures; special district-wide efforts such as the
          magnet school program; administration; and any other
          areas of public school operations or support which the
          district court may specify as pertinent to the
          accomplishment of its underlying desegregation order.
          Even after this definitive statement has been made, the
          burden   remains   on   WISD   to   establish   that   its
          implementation and operation will meet the tests outlined
          for permitting newly created districts to come into being
          for parts of districts already under an ongoing court
          desegregation order.
    
    Id. (citation omitted).        Given the facts of the instant case, as
    
    now   developed,      the    stateSSand      more   importantly,        the   new
    
    boardSSshould have an opportunity to offer such proof.
    
          Finally, there are fairness concerns.             The stateSSwhich has
    
    the burden of proving its own law’s constitutionality10SShas had no
    
    reasonable     opportunity    to   meet     its   burden,   as   most    of   the
    
    information it would have to present for this purpose simply does
    
    not   exist.
    
          The real adverse party in interest is the yet-to-be-formed
    
    school board.       Its actionsSSor inactionsSSare fundamental to a
    
    determination whether the RPSB has an injury of which to complain.
    
    We should not allow the forfeiture of its possible interests
    
    
          10
             In most civil litigation, the burden of proof is on the party seeking
    to invoke the court’s remedial authority. Therefore, the failure to introduce
    evidence necessary to meet the legal standard would be grounds to dismiss for
    failure to state a claim. School desegregation cases, however, are an exception.
    The party seeking to escape from the court’s remedial authority bears the burden
    of proving that its actions are not intended to re-establish de jure segregation.
    See Freeman v. Pitts, 
    503 U.S. 467
    , 494 (1992).
    
                                           12
    without the presentation of a defense.
    
    
    
                                         III.
    
          If and when this case becomes ripe for reviewSSand if and when
    
    the parties thereafter decide to reassert a request for reliefSSthe
    
    district court should apply the legal test outlined in Wright v.
    
    Council of the City of Emporia, 
    407 U.S. 451
    , 464-66 (1972), and
    
    elucidated in Ross.      Necessarily, the district court would have to
    
    hold an evidentiary hearing or otherwise provide an avenue for the
    
    parties to introduce evidence.11
    
          The judgment is VACATED, and this matter is REMANDED for
    
    further proceedings in accordance with this opinion.
    
    
    
    ENDRECORD
    
    
    
    
          11
             From Ross, the district court should realize that consideration of all
    the factors of the Wright test is necessary to inform the use of its remedial
    discretion when deciding whether to invalidate the instant state constitutional
    amendment and its implementing legislation. See Ross, 559 F.2d at 944 (“The
    right of WISD to implement and operate a new and separate school district partly
    within the geographic confines of HISD has never been tested by the criteria
    established in these precedents. We remand the case so that the district court
    can make the required assay.”).
    
                                          13
    WISDOM, Senior Circuit Judge, dissenting:
    
         I respectfully dissent.
    
         This case is so bursting with over-ripeness that it emits an
    
    unpleasant odor.
    
         Should this case be sent back to the district court, the
    
    district judge will find again the controlling fact already well
    
    known to the district judge, a life-long Alexandrian and a federal
    
    district   judge   since   his   appointment   in   October   1970.    The
    
    controlling fact, well known to Louisiana and to this Court, is
    
    that the area covered by the ninth, tenth, and eleventh wards of
    
    the eleven wards in Rapides Parish is clearly defined as the
    
    predominantly white section of Alexandria.             It is admittedly
    
    eighty-seven per cent white, and may be more.                 The proposed
    
    majority opinion is, therefore, a blatant attempt to establish a
    
    special public school district for whites in a limited area known
    
    as the white section of Alexandria.
    
         The notion expressed in the first sentence of the proposed
    
    majority opinion that the enabling legislation was “designed to
    
    divide the Rapides Parish School District into two districts”, is
    
    indeed an admission of the fact that the plan is an attempt to
    
    establish de jure segregation in Alexandria public schools -- at
    
    least for the time it will take to overcome stalling and for the
    
    case to be decided en banc or for it to reach the United States
    
    Supreme Court.
    
    
    
                                        14
         The enabling legislation is directly contrary to Brown,12 Brown
    
    II,13 and to Bolling v. Sharpe,14 and to the spirit of numerous
    
    decisions of this Court.
    
         The time to stop it is now.15
    
         It is incredible that half a century after Brown, one should
    
    have to ask for an en banc judgment to prevent the establishment of
    
    a school for whites in a public school system.    That is necessary
    
    in this case where ripeness “is a cape for unauthorized appellate
    
    
    
         12
              
    347 U.S. 483
     (1954).
         13
              
    349 U.S. 294
     (1955).
         14
              
    347 U.S. 497
     (1954).
         15
              The majority is willing to accept Wright v. City of
    Emporia, 
    407 U.S. 451
     (1972). Fine. The true “test” from Wright
    and the similar case of United States v. Scotland Neck City B. Of
    Educ.,
    407 U.S. 484
    , 490 (1972), is “whether [the splinter district
    plan] hinders or furthers the process of desegregation. If the
    proposal would impede the dismantling of a dual system, then a
    district court, in the exercise of its remedial discretion, may
    enjoin it from being carried out”. Ross v. Houston Ind. School Dist.,
    
    559 F.2d 937
    , 943 (5th Cir. 1977).
    
         Wright, like the Rapides case, involved a school district
    under court order to dismantle a dual educational system. 407 U.S.
    at 455-9. The Wright court’s chief concern with the creation of a
    splinter school district was that the division would impede the
    efforts to dismantle the dual system. The court held that “a new
    school district may not be created where its effect would be to
    impede the process of dismantling the dual system.” Id. at 470.
    This point is important. The obvious effect of the plan to divide
    the Rapides Parish School District is the creation of a
    predominately white school district north of the Red River and a
    predominately black school district south of the Red River. There
    is no justification for considering the current plan two or three
    years down the road, thanks to the appellate process. The court
    must now consider the racial makeup of the new district.
    
    
                                     15
    rule making”.16 Here, however, the cape has rubbed hard against the
    
    rock of controlling fact.    The cape is in tatters.
    
         The   majority’s   opinion,   not   the   first   submitted   on   the
    
    immediate issue, impels an en banc proceeding.
    
    
    
    
         16
            Marathon Oil Corp. V. Ruhrgas, No. 96-20361 (5th Cir. 1998)
    (en banc) (Higginbotham, J., dissenting).
    
                                       16
    

Document Info

DocketNumber: 97-30323

Citation Numbers: 173 F.3d 944

Filed Date: 7/17/1998

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (21)

Jobs, Training and Services , 50 F.3d 1318 ( 1995 )

Public Workers v. Mitchell , 330 U.S. 75 ( 1947 )

Brown v. Board of Education , 347 U.S. 483 ( 1954 )

Bolling v. Sharpe , 347 U.S. 497 ( 1954 )

Brown v. Board of Education , 349 U.S. 294 ( 1955 )

Abbott Laboratories v. Gardner , 387 U.S. 136 ( 1967 )

Green v. County School Board , 391 U.S. 430 ( 1968 )

Wright v. Council of Emporia , 407 U.S. 451 ( 1972 )

United States v. Scotland Neck City Bd. of Ed. , 407 U.S. 484 ( 1972 )

Thomas v. Union Carbide Agricultural Products Co. , 473 U.S. 568 ( 1985 )

Freeman v. Pitts , 503 U.S. 467 ( 1992 )

Lujan v. Defenders of Wildlife , 504 U.S. 555 ( 1992 )

Wilton v. Seven Falls Co. , 515 U.S. 277 ( 1995 )

Ohio Forestry Assn., Inc. v. Sierra Club , 523 U.S. 726 ( 1998 )

delores-ross-united-states-of-america-plaintiff-intervenor-v-houston , 559 F.2d 937 ( 1977 )

virgie-lee-valley-united-states-of-america-intervenor-appellee-v-rapides , 646 F.2d 925 ( 1981 )

Virgie Lee Valley, United States of America, Intervenor-... , 653 F.2d 941 ( 1981 )

robert-a-felmeister-hanan-m-isaacs-and-felmeister-isaacs-a , 856 F.2d 529 ( 1988 )

powder-river-basin-resource-council-v-bruce-babbitt-secretary-of-the , 54 F.3d 1477 ( 1995 )

National Treasury Employees Union v. United States , 101 F.3d 1423 ( 1996 )

View All Authorities »