The opinion of the court was delivered by: HEEBE
Previously, on December 2, 1975, this Court issued an opinion holding that state assistance in Louisiana to private, racially segregated schools in the form of textbooks, class room materials and finances for transportation was unconstitutional. (at 405 F. Supp. 338) As a result, defendant Louisiana State Board of Elementary and Secondary Education was ordered by the three-judge court to initiate a certification procedure to determine the eligibility of all private schools in the state desirous of the continuation of such assistance in light of its decision. The defendant having complied with the order, this Court, sitting as a single judge, heard evidence regarding the eligibility of ten schools for assistance, nine which were challenged by plaintiffs and the government and one which was decertified by the state. These schools are Alexandria Country Day School, Caddo Community School, Prytania Private School, Glenbrook School of Minden, West End Academy, Grawood Christian School and the Plaquemine Parish Independent Schools, which is made up of the East Side School Association, Buras School Association, Belle Chasse School Association and Port Sulphur School Association.
At the outset, two of these schools -- Alexandria Country Day School and Grawood Christian School -- assert that the proceedings held by the Court are improper as to them. Alexandria Country Day takes the position that it was an indispensable party to the original suit, and since it was not joined, this Court now has no jurisdiction over it. Grawood Christian School approaches this issue by seeking, alternatively, intervention of right as an indispensable party under F.R.Civ.P. 24(a) or permissive intervention under F.R.Civ.P. 24(b). We turn first to the question of whether Alexandria Country Day and Grawood Christian were indispensable parties to the original action and whether they must be made a party now that their eligibility has been questioned. The court in American Civil Liberties U. of Md. v. Board of Public Wks., 357 F. Supp. 877 (D.Md.1972), faced a similar problem in the context of F.R.Civ.P. 19(a)(2) which deals with joinder of necessary parties at the early stages of an action challenging the constitutionality of a Maryland statute authorizing state aid to non-profit private colleges and universities. We agree with the court's conclusion in the ACLU case, supra at 884, stated under the applicability of Rule 19(a)(2):
"Rule 19(a)(2) provides that the nonparties should be joined in an action when the decree might be detrimental to them. But the Rule does not require a court to join all persons whose interests might conceivably be affected by the decision in the case. * * * The fact that all recipients of aid under a challenged statute have a financial interest in the continuation of that statute does not lead inevitably to a conclusion that all aid recipients must be joined as parties. (The nonparty aid recipients could move for intervention under Rule 24 if they are concerned that their interest in this case justify the burden that entering into the litigation would place upon them.)"
This conclusion leads us to the next question of whether or not Grawood should be permitted to intervene as of right or on a permissive basis. "Intervention of Right" under F.R.Civ.P. 24(a)(2) is couched in the same language as Rule 19(a)(2) and, therefore, our conclusion that the schools are not indispensable parties would likewise apply to Grawood's request to be allowed to intervene as of right, which we deny. With respect to permissive intervention, Rule 24(b) requires timely application. This requirement is considered a condition precedent and, as earlier noted, the decision in this case was rendered on December 2, 1975. The question of timeliness is one left to the judge's discretion and is to be determined from all the circumstances. Nevilles v. Equal Employment Opportunity Comm'n., 511 F.2d 303, 305 (8th Cir. 1975); see, also, Leech Lake A. Cit. Com. v. Leech Lake Band of Chippewa Ind., 486 F.2d 888, 889 (8th Cir. 1973). After serious consideration, this Court is of the opinion that the request to intervene is untimely. Although no schools are parties, the interest of all private schools was well represented by the state's attorneys. The legal issues were carefully considered by three judges. All individual schools which had a need for an opportunity to be heard on the question of their eligibility for state aid have been given that opportunity. No useful purpose could be served by permitting intervention at this time, and the request will be denied.
In addition to all of the foregoing, it does not appear to us that the Supreme Court contemplated any other kind of direct participation in the action by individual private schools other than in the manner which was followed by this Court. We quote from the Supreme Court's opinion in Norwood v. Harrison, 413 U.S. 455, 471, 93 S. Ct. 2804, 2813, 37 L. Ed. 2d 723 (1972), as follows:
"The proper injunctive relief can be granted without implying a finding that all the private schools alleged to be receiving textbook aid are in fact practicing restrictive admission policies. * * * The District Court can appropriately direct the appellees to submit for approval a certification procedure under which any school seeking textbooks for its pupils may apply for participation on behalf of pupils. * * * The State's certification of eligibility would, of course, be subject to judicial review." (emphasis added)
With respect to the merits of this matter, we agree with and rely on the approach taken by the court in Norwood v. Harrison, 382 F. Supp. 921 (N.D.Miss.1974), regarding eligibility hearings, as we previously relied on that court in adopting our certification procedure. The court in Norwood, supra at 924-925, set the standard for plaintiffs' satisfying their burden of establishing a prima facie case against each school as follows:
"The quantum of proof required to make out a prima facie case, which is of critical importance, is to be considered within the context of each case. However, for those private academies serving elementary and secondary grades, or both, which were established during the wake of massive desegregation orders of federal courts, we believe that a prima facie case of racial discrimination arises from proof (a) that the school's existence began close upon the heels of the massive desegregation of public schools within its locale, and (b) that no blacks are or have been in attendance as students and none is or has ever been employed as teacher or administrator at the private school. We do not, of course, intimate that plaintiffs initial burden cannot be carried by additional buttressing proof for those schools not established to provide a segregated alternative to public school desegregation. But, the critical time of a private school's formation or unusual enlargement must be a significant factor, though one not necessarily decisive, in determining whether it is racially discriminatory."
"The question next arising goes to the sufficiency and strength of rebuttal evidence offered by a school; if none is offered, an inference of discrimination becomes unassailable. At this point it is important to emphasize that the ultimate issue in administering Mississippi's textbook program to private schools is not whether black students are actually enrolled at the school, but whether their absence is because the school has restrictively denied their access; simply, does the school have a racially discriminatory admissions policy? Thus, concerning plaintiffs' proof that no blacks presently attend or have ever attended a particular school formed as an alternative to desegregated public schools in the community, rebuttal evidence may not be limited to mere denials of a purpose to discriminate; rather, to be effective, the evidence must clearly and convincingly reveal objective acts and declarations establishing that the absence of blacks was not proximately caused by such school's policies and practices. Once the inference is repelled, plaintiffs would be obliged to offer evidence of specific discrimination. School officials may, therefore, overcome a prima facie case against their school by proof of affirmative steps instituted by the school to insure the availability of all of its programs to blacks who may choose to participate. Illustrative steps of this type would certainly include proof of active and vigorous recruitment programs to secure black students or teachers, including student grants-in-aid, proof of continued, meaningful public advertisements stressing the school's open admissions policy, proof of communication to black groups and black leaders within the community of the school's nondiscriminatory practices, and similar evidence calculated to convince one that the doors of the private school are indeed open to students of both the black and white races upon the same standards of admission."
With these principles from Norwood, supra, as our guidelines, we will proceed to discuss the facts as we find them relative to each school. These findings are based on evidence introduced at the hearings and documents which have been lodged in the record, mainly from the individual school Certification and Background Information Form.
1. Alexandria Country Day School
The Alexandria Country Day School was opened in September 1969, which event coincided with the first integration of the Rapides Parish public schools under a district court order requiring other than freedom-of-choice. At that time, the school contained grades one through eight and enrolled 98 white students. On March 2, 1970, the Fifth Circuit Court of Appeals reversed the decision of the district court and remanded the case with instructions to implement one of the HEW plans calling for pairing of schools. Finally, on September 1, 1970, the district court ordered implementation of a modified HEW plan, and the school's enrollment climbed to 314 students. In subsequent years, the school added grades nine through twelve. Its enrollment as of September 1975 was 221 students. The faculty and student body of the school is presently, and always has been, all white. On this showing, the plaintiffs and the government have made out a prima facie case.
Beyond the prima facie case, additional evidence was presented. In 1970, the school was planning to purchase a school building owned by the Rapides Parish School Board, which it was leasing at the time. Suit was brought to prohibit the sale of the structure on the ground that Alexandria Country Day was racially segregated and that the sale of school board property to it would interfere with public school integration, and the School Board did drop their plans to sell the school. In addition, there was testimony that members of the black community believed the school had been created to allow affluent whites to flee integrated public schools and that it continued to maintain a racially discriminatory policy.
2. Prytania Private School
In September 1960, during the first year that the Orleans Parish Public Schools were operated under a freedom-of-choice order, Harry DeKay, a former public school teacher, opened Prytania Private School. He is very proud of the fact that the school enrolls Spanish students, foreign students and handicapped children, including a deaf boy. However, the school has never enrolled a black student or employed a black teacher. Prytania has never publicized a nondiscriminatory admissions policy in any way and has never applied for tax exempt status. Mr. DeKay has no explanation for this. One of the most damaging facts brought out at the hearing is that Prytania is a member of the Louisiana Independent School Association (LISA), an organization of private schools which publicly maintains a racist policy and has advised its members openly how to discourage black enrollment.
Mr. DeKay testified that he had an open admissions policy and that no applicant would be denied enrollment because of race. However, to date, there have been no efforts made to recruit black students or teachers to the school. Mr. DeKay's testimony totally failed to rebut the prima facie case against Prytania Private School.
3. Caddo Community School
Caddo Community School appears to be an example of how integration can be thwarted in a given area. The school is located in the small town of Ida in the extreme northeast corner of Caddo Parish which, in 1969, lost its public all-white elementary school. The public school was closed as part of the desegregation plan submitted to the district court by the Caddo Parish School Board. Caddo Community School was formed and began operation in September 1969 in the old public school as a reaction to this closing. In that year, the school enrolled 64 white students in grades one through eight. A ninth grade was added in January 1970. In February 1970, the district court issued the first desegregation order for Caddo Parish calling for something other than freedom-of-choice. Thereafter, in September 1970, Caddo Community's enrollment jumped to 320 students. The faculty and student body of ...