Motion For Leave To Intervene

Case 3:65-cv-11297-RGJ-KLH Document 121 Filed 01/29/16 Page 1 of 2 PageID #: 1773
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
JIMMY ANDREWS, ET AL
PLAINTIFF,
CIVIL ACTION NO. 3:65-cv-11297
UNITED STATES OF AMERICA,

PLAINTIFF-INTERVENOR,
VERSUS
JUDGE ROBERT G. JAMES
MONROE CITY SCHOOL BOARD, ET AL

DEFENDANTS
MAG. JUDGE KAREN L. HAYES
MOTION FOR LEAVE TO INTERVENE

NOW INTO COURT, through undersigned counsel, come Movers, the Neville
Alumni and Friends Association, Greg Jones, and Nici Hanks pursuant to Rule 24 of the
Federal Rules of Civil Procedure, who respectfully request that this Honorable Court
issue an order allowing them to intervene in this action, all for the reasons more fully set
forth in the Memorandum in Support filed herewith and adopted herein by reference.
Respectfully submitted,
BREITHAUPT, DUNN, DUBOS,
SHAFTO & WOLLESON, LLC
1811 Tower Drive, Suite D
P.O. Box 14106
Monroe, Louisiana 71207
Telephone: (318) 322-1202
Facsimile: (318) 322-1984
Email: [email protected]
[email protected]
BY: /s/P. Scott Wolleson.

P. Scott Wolleson (#22691) (T.A.)
Russell A. Woodard, Jr. (#34163)
Case 3:65-cv-11297-RGJ-KLH Document 121 Filed 01/29/16 Page 2 of 2 PageID #: 1774
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Movers Motion to for
Leave to Intervene has been served on all counsel of record by this Honorable Courts
CM/ECF system.
Monroe, Louisiana, this 29th day of January, 2016.
/s/ P. Scott Wolleson

P. Scott Wolleson
Case 3:65-cv-11297-RGJ-KLH Document 121-1 Filed 01/29/16 Page 1 of 14 PageID #:

1775

MONROE DIVISION
PLAINTIFF,

VERSUS

DEFENDANTS
MEMORANDUM IN SUPPORT OF MOTION

FOR LEAVE TO INTERVENE
P.O. Box 14106
Telephone: (318) 322-1202
Facsimile: (318) 322-1984
[email protected]


1776
TABLE OF AUTHORITIES
CASES
Adams v. Baldwin County Board of Education of Baldwin County, Georgia, 628 F.2d
895, 897 (5th Cir.1980)............................................................................................................. 10
Calhoun v. Cook, 487 F.2d 680, 684 (5th Cir.1973) .................................................................... 10
Dayton Bd. of Education v. Brinkman, 433 U.S. 406, 410, 97 S.Ct. 2766, 2770, 53
L.Ed.2d 851 (1977) ..................................................................................................................... 8
Doe v. Glickman, 256 F.3d 371, 375 (5th Cir.2001))Freeman v. Pitts, 503 U.S. 467, 490,
112 S. Ct. 1430, 1445, 118 L. Ed. 2d 108 (1992) ....................................................................... 7
Graham v. Evangeline Parish School Board, 132 F. App'x 507, 511 (5th Cir. 2005) .................... 7
Green v. Cty. Sch. Bd. of New Kent Cty., Va., 391 U.S. 430, 437-38, 88 S. Ct. 1689, 1694,
20 L. Ed. 2d 716 (1968) ............................................................................................................ 11
Guarjardo v. Estelle, 71-H-570 (S.D. Tex. 7/14/1983), 568 F.Supp. 1354, 1356 ......................... 9
Jones v. Caddo Parish School Board, 499 F.2d 914, 917 (5th Cir.1974) .................................... 10
Kneeland v. Nat'l Collegiate Athletic Ass'n., 806 F.2d 1285, 1288 (5th Cir.) ................................. 8
Kneeland v. Nat'l Collegiate Athletic Ass'n., cert. denied, 484 U.S. 817, 108 S. Ct. 72, 98
L. Ed.2d 35 (1987 ....................................................................................................................... 8
Lee v. Macon County Board of Education, 482 F.2d 1253, 1254 (5th Cir.1973) ......................... 10
Lister v. Commissioners Court, 566 F.2d 490, 493 (5th Cir. 1978) ................................................ 9
Saldano v. Roach, 363 F.3d 545, 551 (5th Cir.2004) ..................................................................... 7
United States v. CRUCIAL., 722 F.2d 1182, 1190 (5th Cir. 1983) .............................................. 10
United States v. Franklin Parish School Board., 47 F.3d 755, 757 (5th Cir. 1995) ................... 7,10
United States v. Perry County Board of Education, 567 F.2d 277, 280 (5th Cir.1978) ............... 10
Young v. Pierce, P-80-8-CA (E.D. La. 7/3/1986), 640 F.Supp. 1476, 1477 .................................. 9
OTHER AUTHORITIES
INDEPENDENT, Black's Law Dictionary (10th ed. 2014) ........................................................... 4
Manual of Complex Litigation, Fourth Ed., Sec. 11.52 .................................................................. 8

1777
MAY IT PLEASE THE COURT:

The Neville Alumni and Friends Association (NAFA), Greg Jones, and Nici
Hanks move to intervene in this action as a matter of right under Rule 24(a)(2) of the
Federal Rules of Civil Procedure for the following reasons:
I. Introduction
NAFA is a non-profit corporation formed in 1995 whose mission is to provide
supplemental funding for programs or projects to enhance the quality of instructional
delivery and student life, and to promote excellence in higher education at [Neville High
School].1 Dwanye Ludley serves on the executive board of NAFA.2 Greg Jones is the
father of a student at Neville High School.3 Nici Hanks is the mother of a student at Lee
Junior High School and of a student at Sallie Humble Elementary School.4
Movants have a direct and substantial interest in the implementation of the
consent decree throughout the District. Movants are interested in achieving good
educational outcomes for all students in the District which can only be achieved by good
faith cooperation and the assistance of competent, independent professionals. Movants
also have a direct interest in course offerings and assignment of principals, teachers, and
staff at schools throughout the District, including the above-mentioned schools.
Disposition of this case without this intervention will impair or impede the ability
of movants to protect their interests in returning the District to local control.
II. Movants Demonstrate an Adequate Factual Basis for Intervention
See http://neville.mcschools.net/alumni_news/neville_alumni_and_friends_association
Declaration of D. Ludley, attached as Exhibit 1.
3
Declaration of G. Jones, attached as Exhibit 2.
4
Declaration of N. Hanks, attached as Exhibit 3.
2

1778
Movants seek to intervene on an expedited basis in order to challenge the

deficient implementation of the December 2015 consent decree by the existing parties to
this action, the Monroe City School Board (MCSB) and the United States. While the
MCSB and the United States are presumed, as a matter of law, to adequately represent
the students in the Monroe City School District (the District), recent events related to
the nomination of a court monitor establish that movants are not adequately represented
by the existing parties.
The facts outlined in the declarations of MCSB members Bill Willson,5 Jennifer
Haneline,6 and Vickie Dayton,7 establish nonfeasance and bad faith on the part of the
MCSB and, potentially, collusion between certain MCSB members and the United States
with respect to the appointment of a court monitor. According to the declarations, the
MCSB president and vice president have thwarted the goal of unitary status by:
Discouraging certain MCSB members from attending the September 2015
hearing on Consideration of Unitary Status;
Failing to adequately inform all MCSB members of the September 2015
ruling on unitary status;
Refusing to include all MCSB members in the negotiation process leading
up to the adoption of the December 2015 Consent Decree;
Refusing to engage all MCSB members in the process to select the
Independent Court Monitor required under the December 2015 Consent
Decree;
Soliciting the votes of MCSB members Berry and Johnson to adopt a
resolution to appoint Educational Planning Group (EPG) as the Court
Monitor without any prior discussion of the group with other members;
Declaration of B. Willson, attached as Exhibit 4.

Declaration of J. Haneline, attached as Exhibit 5.
7
Declaration of V. Dayton, attached as Exhibit 6.
6

1779
Introducing EPG to the United States with neither notice to, nor input
from, other MCSB members, all prior to an MCSB vote to select the group
as the boards choice of court monitor;
Attempting to place on the agenda during the boards December 15, 2015
meeting a resolution selecting EPG as court monitor without providing
information about the group to all MCSB members; and
Failing to disclose the connection between M3A Architecture and EPG.
The United States was either complicit in the actions of the MSCB or, through
nonfeasance of duty, ignorant of MSCBs backroom tactics to select EPG as the
Independent Court Monitor.
Due to the well-publicized dispute between MCSB members emanating from the
above-referenced actions of MCSB, the existing parties failed to select a court monitor
within the time initially required by Section (V)(B) of the December 2015 consent
decree, thus necessitating an extension of time. Not until January 21, 2016 did the
existing parties file a Joint Status Report indicating MCSB had selected EPG as its
selection of court monitor. Apparently, the United States consents, but appears to hedge
by not affirmatively selecting any court monitor.8
Movants respectfully object to MCSBs nomination of EPG for two main reasons:
(i) EPG is inexperienced and unqualified; and (ii) EPG is biased and lacks the objectivity
required of an independent court monitor.
EPG is a Mississippi-based company which has never served as an independent
court monitor under any desegregation order. According to the Mississippi Secretary of
State Corporations Database, EPG had been dissolved until it was reactivated on
December 14, 2016, the day before the MCSB vice president moved to place their
8
There is legitimate doubt as to whether the existing parties have even made a selection. According to the
Joint Status Report, it appears that the United States simply deferred to the selection made by the school
board, which is indicative of collusion and nonfeasance.

1780
nomination on the agenda without notice. According the Louisiana Secretary of State
Corporations Database, EPG was not even authorized to conduct business in the State of
Louisiana until January 7, 2016.
Additionally, EPGs owner, William McElroy, is currently in a contractual, forprofit business relationship with MCSB through his architectural firm, M3A Architecture.
Specifically, William McElroy is an owner of M3A and is the architect in charge of
ongoing projects in the District in which his estimated fees will exceed $1.5 million.
Certainly, William McElroys vested business interest with MCSB puts EPG in a
place of questionable objectivity and neutrality vis--vis the parties in these proceedings.
Upon information and belief, McElroy and EPG may also have a personal relationship
with the MCSB vice president.
This court specifically ordered the nomination of an independent court monitor.
According to Blacks Law Dictionary, independent describes someone who is not
influenced or controlled by others in matters of opinion, conduct, orbusiness.9 Simply
stated, EPG lacks the requisite independence to serve as court monitor.
Through its nomination of EPG, MCSB is asking this court to appoint a court
monitor who is neither independent nor qualified. The failure to select a qualified and
independent court monitor will impair the implementation of the consent decree and
thereby impede the Districts path to unitary status.
Compounding these shortcomings with the nomination of EPG, the MCSB
president unilaterally appointed the board vice president as the sole liaison to the court
monitor, with the apparent consent of the United States. This unilateral appointment
violates Section (V)(B) of the consent decree by limiting the authority of other board
9
INDEPENDENT, Black's Law Dictionary (10th ed. 2014).

1781
members to assist the court monitor and to ensure that the [court monitor] has the
appropriate information needed to implement the consent decree. Movants have a direct
and substantial interest in maintaining the power of their representative MCSB board
members to participate in the implementation of the consent decree impartially and
appropriately throughout the District.
As a court appointed expert/special master, the court monitor should not be
subject to undue influence by a single board member. Also, by appointing the board vice
president as the liaison to the court monitor, MCSB has made the vice president the de
facto superintendent. This liaison position was not authorized by the consent decree and
improperly marginalizes the District Superintendent, which will further impede and
impair the implementation of the consent decree.10
Upon information and belief, the District Superintendent had already developed a
plan (the Superintendents Plan) with the assistance of Dr. William Gordon, a
consultant hired by MCSB, to rectify the deficiencies specified in the consent decree,
including, but not limited to the following: equal course offerings; teacher, principal and
staff assignment; medical magnet; gifted and talented programs; and related policy
implementations.
The Superintendents Plan also included an ideal partnership with the University
of Louisiana at Monroe to not only serve as court monitor (at a reduced cost to taxpayers)
but also to assist the District in implementing the consent decree and achieving unitary
status. This partnership with the university would provide a framework for collaboration
between the District and the university to provide equal course offerings and programs
10
Incidentally, the board vice president was a semifinalist for the superintendent position in 2013, losing to
the current superintendent. The vice president still desires the position.

1782
throughout the District. The university partnership would also provide teacher/aid support
on a continuing basis and avail the District of resources not available through EPG.11 The
University of Louisiana at Monroe has enormous resources, both tangible and intangible,
which could be incredibly beneficial to the District.
Unfortunately, with the apparent consent of the United States, MCSB members in
control of a majority vote have chosen EPG rather than the Superintendents Plan. It is
doubtful, at best, that EGP will assist the court in achieving a declaration of unitary status
in the District by the courts deadline of September 2017.
The recent events surrounding the nomination of EPG make crystal clear the
conclusion that the interests of movants may not be adequately represented by MCSB and
the United States. Accordingly, intervention is necessary and proper.
III. Movants Are Entitled to Intervene as of Right
The legal principles governing intervention in desegregation cases are wellsettled. [T]he proper procedural remedy for parental groups challenging deficiencies in
the implementation of desegregation orders is intervention.12
Pursuant to Rule 24(a)(2), a movant may intervene as of right when: (1) the
motion to intervene is timely; (2) the movant has an interest related to the transaction that
forms the basis of the controversy in the case; (3) the disposition of the case has the
potential to impair or impede the movant's ability to protect its interest; and (4) the
existing parties do not adequately represent the movant's interest.13
11
The University of Louisiana Monroe has already publicly declined to partner with EPG.
United States v. Franklin Par. Sch. Bd., 47 F.3d 755, 757 (5th Cir. 1995) (internal citations omitted).
13
Graham v. Evangeline Par. Sch. Bd., 132 F. App'x 507, 511 (5th Cir. 2005)(Emphasis added) citing
Saldano v. Roach, 363 F.3d 545, 551 (5th Cir.2004) and Doe v. Glickman, 256 F.3d 371, 375 (5th
Cir.2001)).
12

1783
The Fifth Circuit has held that an interest for Rule 24(a)(2) purposes must be
direct, substantial, [and] legally protectable ...[,] one which the substantive law
recognizes as belonging to or being owned by the applicant.14 [T]he parental interest
which justifies intervention [in a desegregation case] is an interest in achieving a
desegregated school system.15
As to the fourth prong, an intervenor need only show that the representation of
his interest by the existing parties may be inadequate.16 When the party seeking to
intervene has the same ultimate objective as a party to the suit, the existing party is
presumed to adequately represent the party seeking to intervene unless that party
demonstrates adversity of interest, collusion, or nonfeasance.17 18
Movants clearly have a direct, substantial, and legally protected interest in
immediately returning the Monroe City School system to local control. Local autonomy
of school districts is a vital national tradition. Freeman v. Pitts, 503 U.S. 467, 490, 112
S. Ct. 1430, 1445, 118 L. Ed. 2d 108 (1992), citing Dayton Bd. of Education v. Brinkman,
433 U.S. 406, 410, 97 S.Ct. 2766, 2770, 53 L.Ed.2d 851 (1977). The selection of EPG
impedes the path to local autonomy and, as such, interferes with movants protected
interest in returning the District to local control.
14
Saldano, 363 F.3d at 551 (internal citations omitted).

Id.
16
Id. at 553 (internal citations omitted). Graham v. Evangeline Par. Sch. Bd., 132 F. App'x 507, 511 (5th
Cir. 2005)(Emphasis added).
17
Kneeland v. Nat'l Collegiate Athletic Ass'n, 806 F.2d 1285, 1288 (5th Cir.), cert. denied, 484 U.S. 817,
108 S.Ct. 72, 98 L.Ed.2d 35 (1987).
18
The Fifth Circuit has recognized a presumption that a school board adequately represents its student's
interests absent a showing of gross negligence or bad faith. This court has recently held that [t]he United
States is presumed to adequately represent Movants unless they can demonstrate adversity of interest,
collusion, or nonfeasance.
15

1784
a. Selection of EPG Reveals Nonfeasance, Collusion, and Bad Faith

MSCBs actions surrounding the appointment of a court monitor have hampered,
not hastened, the progress toward local control of the District. As this matter currently
stands, there exists a strong likelihood of collusion and nonfeasance, making this
intervention both necessary and proper.
EPG is not the solution this court seeks with the court monitor appointment.
According to the Federal Judicial Centers Manual of Complex Litigation, Fourth Ed.,
Sec. 11.51, [w]hen the court is selecting an expert witness for appointment, the best
candidate is one whose fairness and expertise in the field cannot reasonably be
questioned. 19 EPG fails in this regard.
Rule 53(a)(2) of the Federal Rules of Civil Procedure, governing the appointment
of a special master, provides that someone in the position of an independent court
monitor must not have a relationship to the parties, counsel, action, or court that would
require disqualification of a judge under 28 U.S.C. Sec. 455. Similarly, a special master
has the duties and obligations of a judicial officer.20
Undoubtedly, a judicial officer would feel compelled to recuse if he had a direct,
for-profit relationship with a party to the proceedings. EPG should, therefore, not be
allowed to fill a role which a judicial officer would not.
Movants respectfully contend a business relationship with at least one of the
parties to these proceedings is not at all what this court contemplated when it ordered the
[T]he distinction between special masters under Federal Rule of Civil Procedure 53 and court-appointed
experts under Federal Rule of Evidence 706 has become blurred in the context of appointments to serve in
nonjury trial settings. Manual of Complex Litigation, Fourth Ed., Sec. 11.52.
20
Lister v. Commissioners Court, 566 F.2d 490, 493 (5th Cir. 1978).
19
10

1785
appointment of an independent court monitor. Indeed, EPG is neither qualified to serve

as court monitor, nor independent.
Other district courts in the Fifth Circuit have recognized the importance of
appointing an independent court monitor who had served in the same capacity in other
complex litigation or who had substantial experience organizing large amounts of
information and working with both plaintiffs and defendants to develop a consensual
approach to difficult problems.21 Here, there is no evidencebeyond an unsubstantiated
hope and prayerthat EPG possesses the skill or experience necessary to effectively
implement this courts order.
b. Movants are Entitled to an Evidentiary Hearing
When parents [or parental groups] move to intervene in school desegregation
cases, the important constitutional rights at stake demand a scrupulous regard for due
process considerations.22 [T]he Fifth Circuit has] repeatedly made it clear that the
district court's disposition of a proposed intervention must be supported by findings
based upon an adequate record.23
In general, to the extent that the putative intervenors raise issues properly
cognizable in a school case, and do so by submitting pleadings that conform to the
guidelines established in Hines, infra, an evidentiary hearing should be held by the
district court to aid its assessment of the proposed intervention.24 In Hines v. Rapides
21
Guarjardo v. Estelle, 71-H-570 (S.D. Tex. 7/14/1983), 568 F.Supp. 1354, 1356; and Young v. Pierce, P80-8-CA (E.D. La. 7/3/1986), 640 F.Supp. 1476, 1477.
22
Adams v. Baldwin County Board of Education of Baldwin County, Georgia, 628 F.2d 895, 897 (5th
Cir.1980).
23
Adams v. Baldwin County Board of Education, supra; see also United States v. Perry County Board of
Education, 567 F.2d 277, 280 (5th Cir.1978); Jones v. Caddo Parish School Board, 499 F.2d 914, 917 (5th
Cir.1974); Calhoun v. Cook, 487 F.2d 680, 684 (5th Cir.1973); Lee v. Macon County Board of Education,
482 F.2d 1253, 1254 (5th Cir.1973).
24
Adams v. Baldwin County Board of Education, supra.
11

1786
Parish School Board, 479 F.2d 762, 765 (5th Cir.1973), [the Fifth Circuit] held that a
petition for intervention in a school desegregation case should bring to the district court's
attention the precise issues that the putative intervenors seek to represent, and the manner
in which the challenged plan fails to realize the goal of a unitary system.25
The instant motion to intervene certainly brings to the district court's attention
the precise issues that the putative intervenors seek to represent, and the manner in which
the challenged plan fails to realize the goal of a unitary system.26 27 Movants are entitled
to a hearing to demonstrate to the court that the Superintendents Plan and the proposed
partnership with the University of Monroe, and not the appointment of EPG, is the proper
course to convert to a unitary system in which racial discrimination would be eliminated
root and branch.28
This courts sua sponte consideration of whether the District had achieved unitary
status resulted in a finding that MCSB failed to fully comply with the March 2010
consent decree. Implicit in the September 2015 ruling is the conclusion that the United
States, whether through collusion or nonfeasance, failed to take appropriate action to
force MCSB to comply with the 2010 Consent Order from 2010 through 2015. Recent
actions of the board continue to impede a declaration of unitary status, all with the
apparent consent of the United States.
25
United States v. CRUCIAL, 722 F.2d 1182, 1190 (5th Cir. 1983).
Hines, supra.
27
The court must then determine the extent to which these issues have already been raised and resolved,
and the extent to which such issues are known to the court and the original parties. If the court finds that the
issues have been resolved, or that the current parties are aware of and competent to represent the interests
of the putative intervenors, denial of intervention is proper. On the other hand, if the court determines that
the petitioner has a significant claim that it can best represent, intervention should be granted. Id.
28
Green v. Cty. Sch. Bd. of New Kent Cty., Va., 391 U.S. 430, 437-38, 88 S. Ct. 1689, 1694, 20 L. Ed. 2d
716 (1968).
26
12

1787
IV. Conclusion
Accordingly, pursuant to Rule 24, the Neville Alumni and Friends Association,
Greg Jones, and Nici Hanks are entitled to intervene in this action as a matter of right in
order to advocate their interests in a district partnership with the University of Louisiana
at Monroe and to enforce continuing compliance with the Consent Decree on the part of
the existing parties.
P.O. Box 14106
Telephone: (318) 322-1202
Facsimile: (318) 322-1984
[email protected]

13

1788
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Plaintiffs Memorandum
in Support of Motion for Leave to Intervene has been served on all counsel of record by
this Honorable Courts CM/ECF system.
Monroe, Louisiana, this 29th day of January, 2016.
/s/ P. Scott Wolleson

P. Scott Wolleson
14
Case 3:65-cv-11297-RGJ-KLH Document 121-2 Filed 01/29/16 Page 1 of 2 PageID #: 1789

MONROE DIVISION
PLAINTIFF,

VERSUS

DEFENDANTS
ORDER
CONSIDERING the Motion for Leave to Intervene filed by the Neville Alumni
and Friends Association, Greg Jones, and Nici Hanks:
IT IS HEREBY ORDERED that Neville Alumni and Friends Association, Greg
Jones, and Nici Hanks are permitted to intervene in this action as a matter of right
pursuant to pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure.
SIGNED in Monroe, Louisiana this ______ day of ________________, 2016
___________________________________
Judge, U.S. Western District of Louisiana

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Case 3:65-cv-11297-RGJ-KLH Document 121 Filed 01/29/16 Page 1 of 2 PageID #: 1773

UNITED STATES DISTRICT COURT

CIVIL ACTION NO. 3:65-cv-11297

UNITED STATES OF AMERICA,

JUDGE ROBERT G. JAMES

MONROE CITY SCHOOL BOARD, ET AL

MAG. JUDGE KAREN L. HAYES