On petition for writ of certiorari to the United States Court of
Appeals for the Eighth Circuit.
The petition for writ of certiorari is denied.
Justice REHNQUIST, dissenting.
Both the Court of Appeals and the District Court have treated
this as a school desegregation case, as indeed it is for
substantive purposes. But in my view both the Court of Appeals and
the District Court wholly failed to come to grips with the
requirement that there be an Art. III controversy between the
parties to the case before a federal court may either entertain it
in the first instance or entertain additional proceedings in a case
in which the requirements of Art. III at one time were met. It has
always been my understanding that Art. III requirements are as
important in desegregation
Page 454 U.S.
904 , 905
cases as they are in quiet title cases, Fair Labor Standards Act
cases, and any number of other types of cases where
federal-question jurisdiction may exist. I disagree with the
decision of the Court to deny certiorari in this case because,
whatever the merits of the dispute as to whether petitioners have
or have not achieved a "unitary" school system, litigation to prove
or disprove this fact must be conducted by parties who meet the
"case or controversy" test.
In Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S.
1, 32, 1284 (1971), the Court stated that "once the affirmative
duty to desegregate has been accomplished and racial discrimination
through official action is eliminated," there is no longer a
constitutional violation which would enable the district court to
entertain additional litigation in that particular case.
Admittedly, school desegregation cases are often long and seemingly
intractable; but as the Court said in Swann, supra:
"At some point, these school authorities and others like them
should have achieved full compliance with this Court's decision in
Brown I [Brown v. Board of Education,
347 U.S. 483 (1954)]."
Id., at 31.
There is no doubt that a district court is at liberty to treat
as a class action a suit filed for the purposes of attaining a
"unitary" school system, but it is conceded that no class was ever
certified in this case. As we said in Pasadena City Board of
Education v. Spangler,
427 U.S.
424, 430, 2702 (1976):
"Counsel for the individual named respondents, the original
student plaintiffs and their parents, argued that this litigation
was filed as a class action, that all the parties have until now
treated it as a class action, and that the failure to obtain the
class certification required under Rule 23 is merely the absence of
a meaningless 'verbal recital' which counsel insists should have no
effect on the facts of this case. But these arguments overlook the
fact that the named parties whom counsel originally un-
Page 454 U.S.
904 , 906
dertook to represent in this litigation no longer have any stake
in its outcome. As to them the case is clearly moot. And while
counsel may wish to represent a class of unnamed individuals still
attending the Pasadena public school who do have some substantial
interest in the outcome of this litigation, there has been no
certification of any such class which is or was represented by a
named party to this litigation."
We there concluded that it was only the presence of the United
States as a statutorily authorized intervenor on the side of the
original plaintiffs that prevented the case from becoming moot.
School desegregation cases are to the latter half of this
century what utility-rate cases were to the first half of it, and
what equity receivership cases were to the latter half of the 19th
century. Each of these groups of cases has the potential for
continued litigation which run- of-the-mine federal criminal cases
on direct appeal, and other types of federal civil litigation, do
not have. Perhaps because of this fact, there is a tendency on the
part of both the litigants and the courts to dispense with what may
be regarded as "meaningless 'verbal recital[s]' " which do not bear
directly on the substantive issues of the case. But it is worth
stating again, as it has been repeatedly stated before, that Art.
III courts are forums of limited jurisdiction, not courts of
general jurisdiction such as exist in most, if not all, of the
States.
Yet the Court of Appeals in this case devoted not a single word
to the conceded fact that there had been at the time of the most
recent hearing in the District Court no remaining plaintiff with a
stake in the outcome of the case, nor had there been any previous
certification of a class action. Nor, so far as the opinions of the
District Court attached to the petition as appendices reveal, did
the District Court address the issue. No doubt some, if not all, of
the confusion surrounding this case resulted from the appointment
of Judge
Page 454 U.S.
904 , 907
Henley to the Court of Appeals, the death of Judge Shell, and
the reassignment of the entire civil docket in the Eastern District
of Arkansas on September 1, 1978, in anticipation of the filling of
newly created judgeships. App. to Pet. for Cert. A-27.
But regrettable and unavoidable as this confusion may have been,
it does not and cannot explain the failure of any of the District
Court opinions or the opinion of the Court of Appeals to even
address the existence of a case or controversy. From reading those
opinions, one would gather that only such remedial issues as
faculty assignment, scope of busing, and the like were at issue
here. But I think the existence of a case or controversy sought to
be saved by an unexplained granting of a motion for intervention in
1977, and not even mentioned by the Court of Appeals, has
considerable significance for the federal judicial system over a
wide range of cases. I would therefore grant the petition for
certiorari limited to the following question, which I believe is
fairly subsumed under Question II in the petition:
"Is a District Court at liberty to grant a motion for
intervention in a case which has become moot, without any
principled explanation therefor, or any reasoned justification of
its action by the Court of Appeals, in order to continue its
supervision of the operation of a school district?"
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