Brumfield v. Dodd
Filing
277
ORDER AND REASONS denying 271 Motion to Vacate. Signed by Judge Ivan L.R. Lemelle on 8/1/2014. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
OLESS BRUMFIELD, et al.,
CIVIL ACTION
and
UNITED STATES OF AMERICA
VERSUS
NO. 71-1316
WILLIAM J. DODD SUPERINTENDENT OF
PUBLIC EDUCATION, et al
SECTION "B"(2)
ORDER AND REASONS
Defendant-Intervenors filed a motion to vacate this
Court’s April 7, 2014 order under a 1985 consent decree
issued
in
the
above-captioned
case.
For
the
reasons
enumerated below, IT IS ORDERED that Defendant-Intervenors’
Motion to Vacate (Rec. Doc. No. 271) be DENIED.
Facts and Procedural History
On August 22, 2013 the United States filed a motion
for an injunction against the State of Louisiana pursuant
to a 1985 consent decree issued in this case. This Court
then requested briefs from the parties on two issues:
(1) Does the desegregation order issued in Brumfield
v. Dodd, 405 F. Supp.
338 (E.D. La 1975) apply to
the State of Louisiana’s Student Scholarships for
Educational Excellence Program (“Voucher Program”) so
1
as to require the State to obtain authorization from
the Court prior to implementation?
(2) If the desegregation order applies to the Program,
is there any need to amend existing orders to ensure a
process of review of the Voucher Program or similar
ones in the future?
(Rec. Doc. No. 212, September 18 Order)
The United States amended its filing on September 23,
2013, withdrawing its request for an immediate injunction
after receiving commitments from the State to share certain
information.
On
September
(“Intervenors”),
30,
a
2013,
the
of
parents
group
Defendant-Intervenors
representing
their
minor children, along with a non-profit organization, the
Louisiana Black Alliance for Educational Options, filed a
Motion to Intervene, in order to oppose the United States’
requested
injunction,
already
withdrawn,
against
the
Louisiana voucher program. On November 15, 2013 this Court
denied
the
Motion
Intervenors
to
file
Intervenors
appealed
to
a
the
Intervene,
brief
as
denial
but
permitted
the
curiae.
The
amicus
of
their
Motion
to
which
the
Intervene to the Fifth Circuit.
At
a
Intervenors
hearing
were
November
represented,
22,
2013,
this
Court
at
ruled
that
the
prior injunction and consent decree applies to the voucher
program in question, and requested proposals from each side
2
as
to
a
specific
information-sharing
process
that
would
satisfy the Brumfield requirements.
After receiving proposals from the parties, on April
7, 2014 this Court issued an order establishing a process
by which the State of Louisiana and the United States will
share
information
about
Louisiana’s
voucher
program.
The
method for sharing the information was largely agreed to by
both the United States and the State of Louisiana. Compare
(Rec. Doc. No. 261) with (Rec. Doc. No. 262). The primary
controversy
information
between
was
the
required
parties
to
be
was
over
submitted
to
when
the
the
United
States, i.e. how long before parents were notified that
they
had
been
information
to
selected
be
in
the
accessible
to
voucher
the
lottery
United
was
the
States.
The
Court resolved the controversy by making the information
due “ten calendar days prior to the day the State sends
award notifications to families. . . .” (Rec. Doc. No. 240
at ¶ 4). The Court chose this time period intentionally to
eliminate any possible disruption to the program. In the
preceding school year parents were not notified that they
were awarded a placement until at least ten days following
the lottery being conducted. See Affidavit of Laura Perry,
Rec. Doc. No. 206-1 at ¶ 7; see also Second Declaration of
John White, Rec. Doc. No. 251-1 at ¶¶ 9-10. By making the
3
information
date,
the
due
“ten
calendar
information-sharing
days
prior
schedule
to”
works
the
award
within
the
existing schedule for the program, and avoids any delay in
awarding vouchers.
The
Fifth
Circuit
reversed
this
Court’s
decision
denying the Intervenors’ Motion to Intervene on April 10,
2014, and ordered they be allowed to participate as parties
in the case.
On
May
5,
2014
the
Intervenors
filed
the
instant
Motion to Vacate.
Law and Analysis
In
their
Motion
to
Vacate,
Intervenors
state
three
purported grounds for relief: (1) Rule 60(b)(4) voids the
court’s order; (2) applying Brumfield orders to the voucher
program is no longer equitable under Rule 60(b)(5); and (3)
the Court should vacate its prior order under Rule 59(e).
Claim One
Intervenors’ first argument is not supported by Rule
60(b)(4). Under Rule 60(b), a “court may relieve a party or
its legal representatives from a final judgment” if “(4)
the
judgment
is
void.”
The
Intervenors
claim
that
this
Court lacks subject matter jurisdiction over the voucher
program,
which
renders
the
judgment
void.
This
Court
addressed at the November 22 hearing its jurisdiction over
4
the voucher program. 1 The Court finds no justification in
the instant motion to alter its prior opinion. The voucher
program
decree
clearly
in
this
falls
case,
under
the
granting
injunction
the
Court
and
consent
subject
matter
jurisdiction.
Claim Two
In Claim Two, Intervenors argue they are entitled to
relief because applying the order is “no longer equitable”
(Fed.
R.
Civ.
P.
60(b)(5))
and
there
has
been
“‘a
significant change either in factual conditions or in law’
[that] renders the continued enforcement ‘detrimental to
the public interest.’” Horne v. Flores, 557 U.S. 443, 447
(2009) (quoting Rufo v. Inmates of Suffolk County Jail, 502
U.S. 367, 384 (1992)).
Specifically
Intervenors
claim
Zelman
v.
Simmons-
Harris, 536 U.S. 639 (2002) precludes applying the 1985
Brumfield consent decree to the Louisiana voucher program.
In Zelman the Supreme Court found that a Cleveland City
School District voucher program that permitted the use of
vouchers at religious schools was not a violation of the
Establishment Clause, because the Cleveland program was one
1
“…[T]his particular case, in my opinion, as it relates to the voucher
program to private schools would still fall under the ambit of the
original consent decree and subsequent injunctive orders and amendments
to court orders in this case.” Hr’g Tr., Rec. Doc. No. 247 at 49:17-21,
Nov. 22, 2013.
5
of
“genuine
and
independent
private
choice”
which
“permit[ted] government aid to reach religious institutions
only
by
way
of
the
deliberate
choices
of
numerous
individual recipients.” 536 U.S. at 652. In the Cleveland
program
checks
from
the
school
district
“[we]re
made
payable to the parents who then endorse[d] the checks over
to the chosen school. § 3313.979.” Zelman, 536 U.S. at 646.
Parents also had a number of different schools, public and
private, secular and religious, to choose from in Zelman.
The
Court
finds
Zelman
does
not
qualify
as
“a
significant change either in factual conditions or in law”
rendering this Court’s judgment no longer equitable because
Zelman was issued in 2002, twelve years before this Court’s
April 7, 2014 order. The Court was able to consider that
ruling in its prior order. See Defendant-Intervenors’ Brief
as Amicus Curiae, Rec. Doc. No. 230-1 at 8 (arguing that
Zelman’s
focus
on
“true
private
choice”
applies
to
the
voucher program in this case). Even if the Court considered
Zelman applicable, as “a significant change. . . in law”
after the 1985 consent decree, Zelman is distinguishable
from the case at hand.
In
the
Louisiana
voucher
program
a
parent
may
preference a school in the initial scholarship application,
but does not directly choose the school his or her child
6
attends. Rather, the parents are allowed to indicate school
preferences
on
scholarship
selection
the
application
recipient
process
form,
[is]
through
and
placed
according
to
then
“[t]he
the
his
random
indicated
preferences,” by a lottery system that takes into account
those stated preferences. La. Rev. Stat. Ann. § 17:4015(4).
See also Affidavit of Lauren Perry, Chief of Staff of the
Office
of
Portfolio
for
the
Louisiana
Department
of
Education, Rec. Doc. No. 206-1.
After receiving notification of its scholarship award
and school placement, a family may accept the award and the
school, or reject the award and try for a different school
placement in the next round of scholarship placements. Id. 2
If a family accepts the placement at a given school, the
Louisiana
Department
of
Education
will
then
“[r]emit
scholarship payments to participating schools on behalf of
a scholarship recipient.” La. Rev. Stat. Ann. § 17:4015(5).
In
sum,
dissimilar
Supreme
the
to
Court
challenges
independent
in
program
the
Louisiana
found
the
private
in
Zelman
program.
critical
Cleveland
choice,”
2
to
substantially
The
fact
defeat
program,
does
is
the
constitutional
i.e.
not
that
“genuine
exist
in
and
the
The 2013-2014 Scholarship placement process had three rounds, and the
State indicated the 2014-2015 process would have two rounds. (Second
Declaration of John White, Rec. Doc. No. 251-1 at ¶3).
7
Louisiana program. Rather, the lottery system is used by
the State to randomly select and then “place[]” students in
available schools, albeit taking into account the families’
ranked
preferences.
voucher
program,
directly
from
Additionally,
Louisiana
the
State
unlike
parents
to
later
the
do
receive
not
spend
on
Cleveland
money
educational
options. Rather, once parents have accepted their child’s
placement, the State pays the scholarship money directly to
the private school. La. Rev. Stat. Ann. § 17:4015 (5).
Louisiana
parents
thus
do
not
exercise
“true
private
choice” in their selection of schools, as was the case with
the Zelman families.
Furthermore,
existing
lottery
even
if
system
the
to
State
award
did
not
students
use
with
its
school
placements, and families were allowed to choose schools for
their
children
independently,
the
parents
would
only
be
able to choose schools that were subject to the existing
orders
in
this
case
and
to
the
Fourteenth
Amendment’s
prohibition on state aid to racially segregated schools.
This
is
distinguishable
Constitutional
provision
from
was
Zelman,
the
where
the
Establishment
relevant
Clause.
There the Court specifically held that only a portion of
the voucher funds would be used for religious education,
which was the only type of school where funding would be
8
Constitutionally suspect. Zelman, 536 U.S. at 653. Here, in
contrast,
100%
of
the
voucher
funds
will
be
spent
on
private schools subject to the orders of this case – as all
private
schools
in
Louisiana
receiving
state
aid
are
subject to the 1985 consent decree prohibiting funding to
advance
segregation.
Further,
unlike
the
Establishment
Clause challenge in Zelman, all funding to private schools
(including non-religious ones) is subject to the Fourteenth
Amendment Equal Protection Clause. Norwood v. Harrison, 413
U.S. 455, 466 (1973) (“A State may not grant . . . tangible
financial aid . . . if that aid has a significant tendency
to
facilitate,
reinforce,
and
support
private
discrimination.”). Accordingly, relief is not valid under
60(b)(5).
Claim Three
Intervenors also request this Court consider their
Motion to Vacate under Rule 59(e), which allows a party to
move to “alter or amend a judgment.” Intervenors list no
substantive
claims
besides
the
claims
listed
in
their
60(b)(4) claim for relief, and this Court finds no reason
to vacate its previous order under 59(e).
Conclusion
For the reasons enumerated above, IT IS ORDERED that
9
Defendant-Intervenors’ Motion to Vacate be DENIED.
New Orleans, Louisiana, this 1st day of August, 2014.
_____________________________
UNITED STATES DISTRICT JUDGE
10
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