Boudreaux et al v. St Mary Parish et al

Filing 105

RULING: IT IS ORDERED that the 95 Motion for Protective Order is DENIED and 99 Motion to Compel is GRANTED. The 104 Oral Motion to Stay Deadlines contained in the Fifth Amended Plan of Work (rec doc 88 ) is GRANTED, but with clarification th at only the discovery that is the subject matter of the instant ruling is STAYED pending a ruling by the district judge on Appeal. All scheduled depositions that are unrelated to the subject matter of the instant Ruling are permitted to go forward. I T IS ORDERED that for all discovery that has been ordered produced herein, the School Board shall supplement its responses to the plaintiffs' discovery requests within thirty (30) days of the date of the conference. Signed by Magistrate Judge Carol B Whitehurst on 2/9/2022. (crt,Chicola, C)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
CLAUDE BOUDREAUX, ET AL. CIVIL ACTION NO. 65-11351
VERSUS

JUDGE SUMMERHAYS

SCHOOL BD. OF ST. MARY
PARISH, ET AL.

MAGISTRATE JUDGE WHITEHURST

MINUTES OF ORAL ARGUMENT AND RULING
On February 7, 2022, the undersigned magistrate judge conducted oral
argument from 10:30 a.m. to 11:30 a.m.1 on two pending motions: (1) Motion for
Protective Order [Doc. 95] filed by the St. Mary Parish School Board, and (2) Motion
to Compel [Doc. 99] filed by the plaintiffs. The plaintiffs responded to the Motion
for Protective Order [Doc. 98], and the School Board responded to the Motion to
Compel [Doc. 101]. In response to both motions, the United States of America filed
a Position Statement regarding the dispute at issue. [Doc. 100]. Participating in the
argument were Gideon Carter III, Michaele Turnage Young, Anuja Thatte, and
Ashok Chandran for the plaintiffs; John Blanchard, Pamela Wescovich Dill, and
Timothy Riveria for the School Board; and Ceala Breen-Portnoy, Jerry Edwards,
and LeighAnn Rosenberg for the United States.

1

Statistical time: 1 hour.
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Having taken the matter under advisement at the conclusion of the conference,
the Court now makes the following findings.
A.

Legal Standards

Federal Rule of Civil Procedure 26(b)(1) allows a party to obtain discovery
“regarding any nonprivileged matter relevant to any party’s claim or defense,” as
follows:
(b) Discovery Scope and Limits
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense and proportional
to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to be
discoverable.
Fed. R. Civ. P. 26(b)(1). This Court has explained that “[i]n the discovery context,
‘relevancy is broadly construed and a request for discovery should be considered
relevant if there is any possibility that the information sought may be relevant to the
claim or defense of any party.’” Quality Constr. & Prod., LLC v. Collins, 2021 WL
3520626, at *2 (W.D. La. Aug. 10, 2021).
A party seeking a Rule 26(c) protective order prohibiting deposition testimony
and document production must establish good cause and a specific need for
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protection. Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125,
133 (E.D. Tex. 2003), citing Landry v. Air Line Pilots Ass'n, 901 F.2d 404, 435 (5th
Cir.1990). “Good cause” exists when justice requires the protection of “a party or
person from annoyance, embarrassment, oppression, or undue burden or expense.”
See Landry, 901 F.2d at 435, quoting Fed. R. Civ. P. 26(c). The burden is upon the
movant to prove the necessity of a protective order, “which contemplates a particular
and specific demonstration of fact as distinguished from stereotyped and conclusory
statements.” United States v. Garrett, 571 F.2d 1323, 1326 n. 3 (5th Cir.1978)
(citations omitted). If both of these requirements are proven, the court may “make
any order which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden and expense.” Fed R. Civ. P. 26(c). If
a district court denies a motion for a protective order in whole or in part, the court
may, “on such terms and conditions as are just, order that any party or other person
provide or permit discovery.” Id. In deciding whether to grant a motion for a
protective order, the court has significant discretion. Ferko, 218 F.R.D. at 133, citing
Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir.1985).
On May 18, 2021, plaintiffs served a Notice of Deposition Pursuant to Fed.
R. Civ. P. 30(b)(6) (“30(b)(6) Notice”) on the School Board. The School Board
provided a written response, which included objections and identification of topics
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to which it had no objection. Since that time, the parties have attempted to resolve
their disputes regarding the 30(b)(6) topics, however, as of this date, they have been
unable to resolve three main disputed topics. In its Motion for Protective Order, the
School Board seeks protection from the following: (1) topics related to special
education, which it contends are beyond the scope of this litigation; (2) topics that
are vague and overly broad by inclusion of language that topics “include but are not
limited” to certain areas of inquiry; and (3) a number of the 30(b)(6) topics, which
allegedly span an unknown period of time or seek information from the time period
when this case was initiated in 1965.
1. Special education classes
In considering whether the vestiges of de jure segregation have been
eliminated to the extent practicable, this Court must look “to every facet of school
operations” including student assignment, faculty, staff, transportation, facilities,
and extracurricular activities (known as the “Green” factors). Green v. County
School Bd. of New Kent County, Va., 391 U.S. 430, 435–37, 88 S.Ct. 1689, 20
L.Ed.2d 716 (1968). See also Freeman v. Pitts, 503 U.S. 467, 492, 112 S.Ct. 1430,
118 L.Ed.2d 108 (1992). The Supreme Court has made clear that the “Green factors”
are not intended to be a “rigid framework,” Freeman, 503 U.S. at 492–93, but are
among the most important indicia of a segregated system,” Swann v. Charlotte4

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Mecklenburg Bd. of Educ., 402 U.S. 1, 18 (1971), and they are often “intertwined or
synergistic in their relation, so that a constitutional violation in one area cannot be
eliminated [without remedies in another].” Freeman, 503 U.S. at 497.
In addition to the Green factors, federal courts may examine other factors,
such as “administration attitudes,” Keyes, 413 U.S. at 196, and quality of education,
including graduation rates, in-grade retention, and discipline, Freeman, 503 U.S. at
492–93. Importantly, in Johnson v. Jackson Par. Sch. Bd., 423 F.2d 1055, 1056 (5th
Cir. 1970), the Fifth Circuit made clear that the decisions of the Supreme Court and
this Court required the elimination of not only segregated schools, but also
segregated classes within the schools.
With those legal precepts in mind, the School Board seeks protection from
disclosure of discovery related to the general implementation of its special education
program, arguing that discovery related to special education is not within the scope
of this case and is outside the scope of Rule 26(b)(1). The School Board contends
that its general operation of special education has not been a matter of concern until
the plaintiff’s May 2021 discovery requests. The School Board argues against what
it views as an audit of the School Board’s compliance with the Individuals with
Disabilities Education Act (“IDEA”), enacted in 1975, and further argues that the
plaintiffs are attempting to conduct a top-down review of the School Board’s
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evaluation and provision of special education of services to all its students with
disabilities. The School Board contends that such a review is not appropriate at this
juncture, nearly a half century after the filing of this case.
The plaintiffs and the United States counter that the School District has a duty
to operate all areas of student assignment in a racially non-discriminatory manner,
that is, when identifying students as gifted; when assigning disciplinary
consequences that involve exclusion from classrooms; or when identifying students
as needing the provision of special services, including special education. The
plaintiffs argue that the topics outlined in the Rule 30(b)(6) deposition notice are
relevant to the Court’s analysis of the Green factors and will allow the Court to
determine whether all areas of student assignment – including special education
classes – are operated in a racially non-discriminatory manner.
The issue of the scope of unitary status appears to have been disputed by the
parties since the January 16, 2020 Status Conference conducted with the district
judge. At that conference, the district judge stated:
The Court: There was also some mention in the status report. It appears
to be a dispute over the scope of unitary status and whether the Court
should consider educational quality and discipline as additional areas
in which the Court has to make a determination of unitary status. Is that
correct?2

2

See Transcript of January 16, 20202 Status Conference, Doc. 55, at p. 19, ll. 15-19.
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After listening to the arguments of the parties – which are similar to the
arguments of the parties in the briefing herein, albeit in a more general way -- the
district judge discussed the need to swiftly resolve this case without opening areas
of inquiry that were not considered when the case was originally filed, as follows:
THE COURT: And I'm sure the district has a position on this, but my
view on this is that this case will be resolved by a determination of
unitary status based on the five Green factors, and if some of these other
issues may be relevant to a Green factor, if the parties don't reach an
agreement, you know, that's a different question than an independent
unitary determination on these two additional areas. I'm saying this
because I believe, based on my review of the historical pleadings in this
case, that those two areas were not considered by the Court as an
independent basis for a unitary status determination.
There was a 1975 order from Judge Putnam acknowledging the most
recent status report and indicating that the parties needed to object to
unitary status, and, in default, that he was going to declare the district
unitary, that it had achieved unitary status. No other further order was
issued from that. I think that's what led Judge James at one point -- and,
Heather, you can correct me if I'm wrong because you know the history
that much better. Based on that 1975 order, he had an original order
declaring the district unitary and then that was withdrawn.
I don't want to change the face of this case going forward. This is a 50year-old case and I think it is important that we reach a point where we
have, as the Supreme Court and the Constitution dictates, eliminated
the vestiges of segregation from the school district, but, you know, the
test also refers to as practicable.
You know, in a 50-year-old case, we need to get to an end here, and I
know Judge James -- this is not -- this work plan was formulated under
Judge James, and what I appreciate from that work plan is that it is very
aggressive. It puts us on a track to get this resolved swiftly. And that is
something that the parties had put together. I don't want to get in the
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way of that, but what I do want to do is make sure that we stay with that
plan moving forward.
So that's my ruling as far as what we're going to determine as far as
making a unitary status determination. We're going to stay with the five
Green factors because I believe that that's historically where this case
has focused. These other issues that were raised, to the extent that they
may be relevant to a Green factor, you know, the parties are free to
argue that, but the Court's ultimate determination will be the five Green
factors.3
In discussing these issues, the School Board pledged to cooperate in the
discovery process, barring any “unforeseen objection:”
John Blanchard for the School Board: And this may allay Mr. Ross's
concerns, that while the school board does have objections about these
two ancillary factors, we will cooperate in discovery. We will let them
propound whatever requests they have on discipline and quality of
education. Barring any unforeseen objection, we will fully cooperate in
discovery so that this issue may be fully presented to the Court at an
appropriate time.
Notwithstanding the Court’s adherence to the Green factors and the overall
interests of judicial efficiency, the district judge made clear that, for the purposes of
discovery, evidence not directly related to the Green factors – to the extent it is
relevant – would be allowed:
THE COURT: And I may have misunderstood the concern from the
plaintiffs. You know, even if this wouldn't be an independent Green
factor, it may be relevant to that, and the fact that it's relevant,
they're entitled to discovery.4
3 Id. at pp. 22-24.
4 Id. at pp. 28-29.

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After considering the arguments of the parties, and specifically considering
the posture of this case, the Court agrees that the topic of special education is relevant
to the analysis of the Green factors. The Court further finds that the School Board
has not shown good cause to limit the discovery, that is, the School Board has not
shown that the plaintiffs’ requests are annoying, embarrassing, oppressive, or unduly
burdensome. Indeed, considering that the St. Mary Parish school system has not
attained unitary status, any current displacement disparities in special education
classes entitles the plaintiffs to a presumption that the disparities are causally related
to prior segregation. The burden then shifts to the School Board to prove that such
disparities are not due to impermissible segregation. See Vaughns by Vaughns v.
Board of Educ. of Prince George’s County, 758 F.2d 983, 991 4th Cir. 1985), citing
Dayton Board of Education v. Brinkman, 443 U.S. 526, 537, 99 S.Ct. 2971, 2978,
61 L.Ed.2d 720 (1979) and United States v. Gadsden County School District, 572
F.2d 1049, 1050 (5th Cir.1978).
Because the Court must consider “every facet of school operations” the
composition of special education classes is relevant to the Court’s analysis of the
Green factors, which includes an examination of student assignments.

Thus,

regardless of whether such information is ultimately considered admissible for the
purpose of an examination of the Green factors, under Rule 26(b), the information
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regarding special education classes may be relevant to the plaintiffs’ claims.
Considering the foregoing, IT IS ORDERED that the Motion for Protective Order is
DENIED, and the plaintiffs’ Motion to Compel is GRANTED.
2. Topics that are vague and overly broad by inclusion of language
that topics “include but are not limited” to certain areas of
inquiry
The School Board objects to a number of the plaintiffs’ 30(b)(6) topics on
grounds they include language that makes it impossible for a deponent to be properly
prepared to testify on behalf of the School Board because they include language that
topics “include, but [are] not limited to” certain areas and/or other similar terms that
lack specificity.
The Court rejects the blanket objection of the School Board but nevertheless
finds that, with respect to the following topics, the requests are overly broad and/or
vague. Accordingly, IT IS ORDERED that the plaintiffs shall more specifically
tailor the following requests:
General Topic 1. The District’s policies, practices, efforts to comply
with, and actual compliance – or lack thereof – with state and federal
laws that prohibit racial discrimination, including but not limited to the
Civil Rights Act of 1964 and the Equal Protection Clause of the
Fourteenth Amendment of the U.S. Constitution.
General Topic 5. The District’s policies, practices, efforts to comply
with, and actual compliance - or lack thereof - with its desegregation
obligations, including, but not limited to, the orders of the court in this
lawsuit.
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Faculty and Staff Topic 16. Defendant’s efforts, including any
policies and practices, to ensure that employment procedures comply
with the Desegregation Order and its affirmative desegregation
obligations.
Faculty and Staff Topic 17. All facts and reasons that would support
an assertion by Defendant that it has complied with the Desegregation
Order and its affirmative desegregation obligations and eliminated the
vestiges of its past de jure discrimination to the extent practicable with
respect to faculty and staff assignment.
Faculty and Staff Topic 18. All other issues concerning faculty and
staff previously raised by the parties in their motions and
correspondence.
Facilities Topic 6. All facts, information, and documents that would
support an assertion by Defendant that it has complied with the
Desegregation Order since it was entered and that the Defendant has
eliminated the vestiges of its past de jure discrimination to the extent
practicable with respect to facilities.
3. Relevant Time Period
The parties dispute the scope and time length of requests from the plaintiffs.
Some include requests from 1965 forward, others seek information from the last
“five (5)” years, from more than three (3) years ago, or from an unspecified length
of time. The School Board has attempted to provide discovery responses from the
2018-19 school year forward, arguing that anything before that time period can only
be relevant for the purposes of comparing where the School Board was in the Reports
already filed into the record when it was on the cusp of unitary status in 1975. The
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School Board argues that the Fifth Circuit’s long-standing minimum of three years
of compliance is the relevant time period for any assessment of the Green factors,
and that, therefore, the reasonable time period for the discovery requests should be
three years. See, e.g., Flax v. Potts, 915 F.2d 155, 158 (5th Cir. 1990) (“A district
court in this circuit does not dismiss a school desegregation case until at least three
years after it has declared the system unitary.”), citing Youngblood v. Board of Pub.
Instruction, 448 F.2d 770, 771 (5th Cir.1971). See also Thomas v. Sch. Bd. St.
Martin Par., 544 F. Supp. 3d 651 (W.D. La. 2021) (“The Fifth Circuit has held that
a period of three years without circumstances adverse to desegregation is adequate
to show a reasonable period of time acting in good faith.”).
The plaintiff argues that if the School Board can raise, in its defense, time
periods that pre-date the 2018-19 school year, the plaintiffs should be permitted to
seek discovery into those time periods. The efforts of the parties to enter into a
stipulation regarding time periods have been unsuccessful.
After considering the arguments of the parties, the Court finds that the
discovery in this matter may include the exchange of information which allows for
a comparison between where the School Board was in 1975 and where it is now;
consequently, to that extent, the time period of the requests may exceed three years.
However, for all other requests, as a general rule, the discovery should only cover
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the time period from the 2018-19 school year going forward, unless any party can
show a particular relevancy not addressed herein with respect to an earlier time
period.
4. Stay
Indicating that it plans to appeal the instant Ruling, the School Board moved
to stay the deadlines contained in the Fifth Amended Plan of Work [Doc. 88] until
such time as the district judge has ruled on the appeal. The request for a stay was
GRANTED, but with the clarification that only the discovery that is the subject
matter of the instant ruling is STAYED pending a ruling by the district judge on
appeal. All scheduled depositions that are unrelated to the subject matter of the
instant Ruling are permitted to go forward.
IT IS ORDERED that for all discovery that has been ordered produced herein,
the School Board shall supplement its responses to the plaintiffs’ discovery requests
within thirty (30) days of the date of the conference.
THUS DONE AND SIGNED this 9th day of February, 2022.

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