Tallulah Morgan v. John J. McDonough Boston Home and School Association, Intervenor, 726 F.2d 11, 1st Cir. (1984)

726 F.
2d 11
16 Ed. Law Rep. 9
Tallulah MORGAN, et al., Plaintiffs, Appellees,

v.
John J. McDONOUGH, et al., Defendants, Appellees.
Boston Home and School Association, Intervenor, Appellant.
No. 83-1155.
United States Court of Appeals,

First Circuit.
Argued Nov. 8, 1983.
Decided Jan. 30, 1984.
Thayer Fremont-Smith, Boston, Mass., with whom Michael Loucks,

Choate, Hall & Stewart, Wm. Shaw McDermott, and McDermott &
Rizzo, Boston, Mass., were on brief, for intervenor-appellant.
Thomas I. Atkins, Boston, Mass., for Tallulah Morgan, et al.
Before CAMPBELL, Chief Judge, SWYGERT,* Senior Circuit Judge,
and BOWNES, Circuit Judge.
LEVIN H. CAMPBELL, Chief Judge.
Boston Home and School Association ("BHSA") appeals from the district
court's order dated December 23, 1982, dismissing it as an intervening party in
the continuing Boston school desegregation case. 554 F.Supp. 169, 174
(D.Mass.1982).
BHSA, a voluntary parent organization,1 was allowed to intervene in the case

late in 1974. The district court was then at work on the "remedy phase," having
already found that the Boston School Committee and co-defendants had
unconstitutionally segregated the city's public school system. Morgan v.
Hennigan, 379 F.Supp. 410 (D.Mass.), aff'd, Morgan v. Kerrigan, 509 F.2d 580
(1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975).
BHSA's 1974 motion to intervene came on the heels of a court order directing
the creation of new, so-called racial-ethnic parents councils and a Citywide
Parents Advisory Council ("CPAC") to coordinate them. In the motion, BHSA
relied both on clause (a), intervention of right, and clause (b), permissive
intervention, of Fed.R.Civ.P. 24. It contended that, without intervenor status, it
could not speak out properly on "matters of interest to tens of thousands of
Boston parents." BHSA concluded the statement which accompanied its motion
to intervene by saying that "the interests of the Association and its members
cannot possibly be, as a practical matter, 'adequately represented by existing
parties.' "
When it allowed BHSA's original motion, the court did not say whether it did
so of right or permissively. The court simply "granted" the motion and made
intervention "subject to the following conditions":
1. Intervention is granted only as to the issues related to desegregation of

students and the formulation of a student desegregation plan. The Association
may continue to participate as amicus curiae as to other issues.
2. The Association shall not reopen any question or issue which has been
decided previously by the court, including the findings of fact and conclusions
of law in the court's opinion of June 21, 1974.
3. The Association will not file counterclaims, impleaders or cross-claims, or

seek the joinder of additional parties or the dismissal of present parties, except
by leave of court.
4. As appropriate, the court retains the power to add to or modify the conditions
of intervention.
BHSA thereafter participated actively in the school case, frequently taking the
position that while desegregation was needed, the district court's remedies were
extreme.
10
On May 29, 1981, more than six years after it had intervened, BHSA joined
with the Boston School Committee in a motion requesting the district court to
end its jurisdiction over student assignments on the ground that maximum
practicable compliance with the court's desegregation orders had by then been
achieved. The court has not acted on that motion.
11
12
On December 23, 1982, following fruitless efforts to negotiate a consent decree

terminating or lessening court involvement, the district court issued the socalled Memorandum and Orders of Disengagement (the "disengagement
orders"). The court announced therein that substantive orders entered
throughout the life of the case, e.g., standards for student assignments and
transfers, the assignment of teachers and staff, student transportation and
discipline, and parent participation, among many others, were all to remain in
place. However, the court also announced that the state board of education was
to replace the court as a primary "mechanism of administration" for monitoring
compliance with these orders.
In the part of the disengagement orders that is the subject of the present appeal,
the district court dismissed BHSA from the case, stating as follows:
13
BHSA
is dismissed as an intervening party in this case, the school committee having
recognized the Citywide Parents Council (CPC) as the representative of "the
concerns of all parent groups" in this litigation. BHSA may continue to participate as
amicus curiae regarding modifications of outstanding orders pursuant to Sec. VI, and
particularly regarding beacon and linkage proposals "should they be introduced by
the defendants" or other principal parties. See Morgan v. McDonough, 689 F.2d 265
at p. 280. 3
314The court finds that BHSA has no remaining legal interest regarding
administration or modification of orders in this case. Indeed, the duration and extent
of BHSA's participation in this case have significantly exceeded the court's
intentions at the time BHSA was granted status as an intervening party. With respect
to the interests of parents and school personnel, its participation has become
redundant.
15
554 F.Supp. at 174 & n. 3. Of several intervenors, BHSA was the only one to
be dismissed altogether. However, other intervenors were limited as to the
issues on which their status as intervening parties would be recognized. The
Boston Teachers Union and Concerned Black Educators of Boston were limited
as intervenors to matters concerning teacher hiring, transfer and promotion; and
the Boston Association of School Administrators and Supervisors was limited
to the rights of headmasters, principals and other supervisory personnel. Only
El Comite de Padres Pro Defensa de la Education Bilingue ("El Comite")
continued to retain full party status under the disengagement orders.
16
BHSA argues that it had originally intervened of right under Rule 24(a), and
therefore the court lacked the power to dismiss it from the case. To intervene of
right under Fed.R.Civ.P. 24(a),
17
1. The applicant must claim an interest relating to the property or transaction

which is the subject of the action;
18
2. disposition of the action must threaten to impair or impede his ability to

protect that interest; and
19
3. the applicant's interest must not be adequately represented by existing

parties.
20
Courts have generally assumed that parent organizations seeking to intervene in

a desegregation case meet the first two requirements. The Seventh Circuit has
said,
21may be conceded for purposes of this appeal that "[a]ll students and parents,
It
whatever their race, have an interest in a sound educational system and in the
operation of that system in accordance with law." ... It may also be conceded that
this asserted interest might, as a practical matter, be impaired by the disposition of
this litigation.
22
United States v. Board of School Commissioners, 466 F.2d 573, 575 (7th
Cir.1972) (citations omitted), cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35
L.Ed.2d 271 (1973). See also Johnson v. San Francisco Unified School District,
500 F.2d 349, 353 (9th Cir.1974); Hatton v. Board of Education, 422 F.2d 457,
461 (6th Cir.1970).
23
Parent groups have usually foundered, however, with respect to the third
requirement--that the parents' interest in educational and desegregation matters
not be adequately represented by others. This third requirement is critical in a
school desegregation context, because it serves to prevent "a cluttering of
lawsuits with multitudinous useless intervenors." Kaplan,Continuing Work of
the Civil Committee: 1966 Amendments of the Federal Rules of Civil
Procedure, 81 Harv.L.Rev. 356, 403 (1967), quoted in C. Wright & A. Miller,
Federal Practice & Procedure: Civil Sec. 1909. When a party is charged by law
with representing the interest of the applicant, then adequate representation is
presumed. Id. at Sec. 1909. A school board is normally deemed to represent
adequately the interests of parents and children in the district. Cisneros v.
Corpus Christi Independent School District, 560 F.2d 190 (5th Cir.1977), cert.
denied, 434 U.S. 1075, 98 S.Ct. 1265, 55 L.Ed.2d 781 (1978); Spangler v.
Pasadena City Board of Education, 427 F.2d 1352 (9th Cir.1970), cert. denied,
402 U.S. 943, 91 S.Ct. 1607, 29 L.Ed.2d 111 (1971); Hatton v. Board of
Education, 422 F.2d 457 (6th Cir.1970). In this case the defendant Boston
School Committee is presumptively the adequate representative of the interests

of the parents of Boston's school children.
24
Despite the presumption, inadequacy of representation may be shown if there is

collusion between the school board and an opposing party, if the school board
has an interest adverse to the proposed intervenor, or if the school board fails to
fulfill its duty of representation. United States v. Board of School
Commissioners, 466 F.2d at 575. See also Delaware Valley Citizens' Council v.
Pennsylvania, 674 F.2d 970, 973 (3d Cir.1982); Martin v. Kelvar, 411 F.2d
552, 553 (5th Cir.1969).
25
BHSA moved to intervene in this suit at a time when the Boston School
Committee was refusing to participate in the adoption of a desegregation plan
and had been held in contempt of court. At that time, the district court might
arguably have found that the School Committee was failing to fulfill its duty to
represent Boston parents in the litigation. Cf. Smuck v. Hobson, 408 F.2d 175,
181 (D.C.Cir.1969) (en banc) (lame duck school board failed in its duty of
representation by not prosecuting an appeal from a desegregation order). The
district court did not expressly so find, however, and the conditions imposed
when the court allowed intervention suggest, if anything, that it regarded
BHSA's status as permissive rather than as of right.
26
Nonetheless, even if BHSA's intervention in 1974 were of right, a question we

do not decide, it would have gained no absolute entitlement to continue as a
party until termination of the suit. We agree with the Tenth Circuit that
27
proceedings
of this nature which continue over such an extended period of time are
unique in respect to the timing of the arrival and departure of parties ....
[I]ntervention and withdrawal should be freely granted so long as it does not
seriously interfere with the actual hearings.
28
Dowell v. Board of Education, 430 F.2d 865, 868 (10th Cir.1970). The district
court needs the power to dismiss in order to manage complicated drawn-out
proceedings efficiently. See Notes on Advisory Committee to Fed.R.Civ.P. 24
("An intervention of right ... may be subject to appropriate conditions or
restrictions responsive among other things to the requirements of efficient
conduct of the proceedings."); Shapiro, Some Thoughts on Intervention Before
Courts, Agencies and Arbitrators, 81 Harv.L.Rev. 721, 752-56 (1968).
29
The district court dismissed BHSA in 1982 because it found that "the duration
and extent of BHSA's participation in this case have significantly exceeded the
court's intentions at the time BHSA was granted status as an intervening party."
For us to reverse the dismissal, BHSA must at least demonstrate that it
currently continues to fulfill all three requirements for intervention of right. But
with respect to the third requirement--adequacy of representation--there is no
indication that the Boston School Committee today suffers from the infirmities
which, in 1974, may arguably have rendered it incapable of adequately
representing the parents. The School Committee long ago abandoned its
intransigent stance over desegregation; subsequently elected School
Committees have fully participated in the case. See Morgan v. McKiegue, 26
F.2d 33 (1st Cir. 1984) (current challenge by the School Committee to an order
of the district court relating to parents' councils). The district court found in the
disengagement orders, "With respect to the interests of parents and school
personnel, [BHSA's] participation has become redundant." BHSA has failed to
indicate any grounds for our concluding that the finding exceeded the court's
discretion, or for our rejecting the presumption of the School Committee's
adequate representation at this time. BHSA, therefore, enjoys no current right
to insist upon continuing as an intervenor in the action.
30
BHSA also argues that even absent a right to intervene, the dismissal must be
reversed under the "clear abuse of discretion" standard applicable to Rule 24(b)
permissive intervention. Allen Co. v. National Cash Register Co., 322 U.S. 137,
142, 64 S.Ct. 905, 907, 88 L.Ed. 1188 (1944); United States Postal Service v.
Brennan, 579 F.2d 188, 192 (2d Cir.1978). BHSA contends that the actual
reason for its dismissal was the district court's annoyance at BHSA's
participation in the still-pending 1981 motion for termination of jurisdiction,
and at its forthright insistence that the "maximum practicable compliance" has
been achieved.
31
While a strong showing of improper motive might lead us to reverse an

otherwise proper dismissal, BHSA has not, we think, made such a showing.
The School Committee was, after all, a party to the motion to terminate
jurisdiction. It remains fully involved, and has an interest in independence from
court supervision even greater than BHSA's. Since the School Committee is the
legal representative of the parents, its tactical choices rather than BHSA's
should control. United States v. Board of School Commissioners, 466 F.2d at
575; Bumgarner v. Ute Indian Tribe, 417 F.2d 1305, 1308 (10th Cir.1969).
32
To be sure, BHSA was the only intervenor dismissed, but three other
intervenors were sharply limited in the scope of their intervention. Only El
Comite was permitted to retain full party status, due, we suppose, to its
representation of a particular minority group distinct from the plaintiffs. See,
e.g., Johnson v. San Francisco Unified School District, 500 F.2d at 353-54
(district charged with representing all parents did not adequately represent
particular interests of students of Chinese ancestry). Thus we are unable to
conclude that the dismissal was improperly motivated.
33
BHSA quotes the following language from a recent appeal in this case:
34
[G]roups
such as the BHSA are entitled to press for specific and detailed findings on
issues such as whether or not good reason remains for the court's continued
jurisdiction over assignments.
35
Morgan v. McDonough, 689 F.2d 265, 280 (1st Cir.1982) (footnote omitted).
BHSA argues that this dicta constituted a ruling mandating its continued
participation. We do not agree. The above language makes clear our insistence
that after ten years or more of court intervention in the Boston schools the
parties to this litigation are entitled to secure, if they wish, a definitive ruling
concerning the district court's continuing jurisdiction and role. We did not
intend, however, to interfere with the district court's discretion with respect to
what groups are proper parties to the case.
36
We are unconvinced by BHSA's contention that the district court's dismissal

must be reversed because based on a faulty premise about the School
Committee's recognition of the Citywide Parents Council (CPC). When this
argument was made on a motion to modify the order, the district court
responded:
37
Motion
denied without hearing oral argument. School Committee's recognition of
CPC was not the only basis for Court's order dismissing H & S Assn. as a party. See
footnote 3 of 12/23/82 orders.
38
The district court considered the finding in footnote 3 on the redundancy of

BHSA's participation to be an adequate ground for dismissal and we are
constrained to agree under our above analysis.
39
Affirmed.
Of the Seventh Circuit, sitting by designation
In its brief, BHSA describes itself as a "citywide parent organization" founded

in 1908 "comprised of thousands of parents of all ethnic and racial groups in
scores of local Home and School Associations centered at various public
schools throughout the City of Boston." Membership is open to any school

parent; these parent members elect representatives to a central body that sets
policy by majority vote

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726 F.

Tallulah MORGAN, et al., Plaintiffs, Appellees,

United States Court of Appeals,

Thayer Fremont-Smith, Boston, Mass., with whom Michael Loucks,

BHSA, a voluntary parent organization,1 was allowed to intervene in the case

1. Intervention is granted only as to the issues related to desegregation of

3. The Association will not file counterclaims, impleaders or cross-claims, or

On December 23, 1982, following fruitless efforts to negotiate a consent decree

1. The applicant must claim an interest relating to the property or transaction

2. disposition of the action must threaten to impair or impede his ability to

3. the applicant's interest must not be adequately represented by existing

Courts have generally assumed that parent organizations seeking to intervene in

School Committee is presumptively the adequate representative of the interests

Despite the presumption, inadequacy of representation may be shown if there is

Nonetheless, even if BHSA's intervention in 1974 were of right, a question we

While a strong showing of improper motive might lead us to reverse an

We are unconvinced by BHSA's contention that the district court's dismissal

The district court considered the finding in footnote 3 on the redundancy of

Of the Seventh Circuit, sitting by designation

In its brief, BHSA describes itself as a "citywide parent organization" founded

schools throughout the City of Boston." Membership is open to any school

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