                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT      United States Court of Appeals
                   _______________________________          Fifth Circuit

                                                                 FILED
                              NO. 04-30356                      May 17, 2005
                    _______________________________
                                                            Charles R. Fulbruge III
                               JOANN GRAHAM,                        Clerk
                                                         Plaintiff-Appellee;

                       UNITED STATES OF AMERICA,

                                           Intervenor Plaintiff-Appellee,

                                    versus

                    EVANGELINE PARISH SCHOOL BOARD,

                                                         Defendant-Appellee,

                                    versus

        EVANGELINE PARISH CHAPTER NATIONAL ASSOCIATION OF
   NEIGHBORHOOD SCHOOLS; JAMES KIRT GUILLORY; RANDY MCCAULLEY;
      ERIC KENT GUILLORY; GREG ARDOIN; JEFF LEBLANC; EDDIE
    DOUGLAS; GAIL MCDAVID; MATT MARCANTEL; JOYCIE MAE THOMAS;
        ODELIA A BOYKINS; STEVEN CRAIG THIBODEAUX; LEAH D
      DUPLECHAIN; LUCY JONES GREEN; JOSEPH EUGENE MCDAVID,

                                                         Movants-Appellants.



            Appeal from the United States District Court
                for the Western District of Louisiana
                        USDC No. 6:05-CV-11053


Before GARWOOD, JONES, and PRADO, Circuit Judges.

PER CURIAM:*



     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
           This appeal arises from the district court’s denial of

Appellants’     motion   to   intervene     in     a    forty-year-old       school

desegregation case.      Because Appellants have failed to demonstrate

their entitlement to intervene as of right or permissively under

Rule 24 of the Federal Rules of Civil Procedure, we AFFIRM the

district court’s denial and DISMISS the appeal.**

                                 BACKGROUND

           The entire history of this case is set forth at length by

the district court and need not be repeated here.                 See Graham v.

Evangeline Parish School Bd., 223 F.R.D. 407, 410-32 (W.D. La.

2004).    In sum, from the inception of the case in 1965 until well

into the 1990s, Evangeline Parish complied unenthusiastically and

half-heartedly with federal desegregation decrees.

           In    September    1996,   the   case       was   assigned   to   Judge

Tucker L. Melancon, who began a series of meetings with the parties

regarding persisting compliance problems cited in Department of

Justice (“DOJ”) reports.        Joint consent decrees were entered in

1997 and 1998.      By May 2001, the Government requested a status

conference    to   resolve    the   parties’     contentious      and   strained

relations.      With the permission of the School Board, its Acting

Superintendent, the school district’s central office staff, the

school district’s fourteen principals, and the United States, the

     **
           Judge Prado concurs in the judgment only.

                                      2
district    court     began    conducting     individual     meetings   with      the

parties    and   with    individual       School     Board   members    regarding

compliance    issues.         Another    joint   superseding     consent     decree

followed, mandating, inter alia: (1) racial diversification of the

school district’s supervisory personnel; (2) affirmative action-

based     faculty     hiring    and     assignment;    (3)    increased      school

desegregation; (4) attendance zone modifications; (5) restrained

transfer    requirements;       (6)     semiannual    reports;   (7)    quarterly

meetings; (8) amelioration of disparate facilities and resource

distribution; (9) establishment of a biracial committee to act in

furtherance      of   unitary     status;     and    (10)    development     of     a

constitutionally         compliant        desegregation        plan     by        the

Superintendent, his appointed committee, the DOJ, and existing

parties.    It seems, from the court’s own account, that many of the

provisions of the 2001 decree were included at its “insist[ence],”

and under the threat of even greater superintendence by the court.

See Graham, 223 F.R.D. at 429 (alluding to the decision of another

federal judge, years earlier, to significantly reduce the number of

schools within a neighboring parish several weeks before the school

term).

            At an open school board meeting in February 2003, a

school district representative publicly disclosed that a compliance

plan was in development.         In May 2003, James K. Guillory and others

                                          3
founded an Evangeline Parish chapter of the National Association

for Neighborhood Schools (“NANS”).                 NANS’s stated mission was to

end race-based     and    socioeconomic-based           school      assignments   and

restore the neighborhood school concept. In late 2003, the members

of   NANS became   aware       that   the     Superintendent        was   drafting   a

desegregation plan.       On September 18, 2003, NANS, in coordination

with the named Appellants (collectively “Appellants”), filed a

motion to intervene in this case.                    The United States opposed

Appellants’ motion, while the School Board did not take a position

other than to maintain that it could adequately represent the

interests of the school district.

          When Appellants served the school district with public

information   requests,        pursuant       to    LOUISIANA REV. STAT.    §   44:1,

et seq., for information related to the development of the plan,

they were refused.        Sometime after issuing the 2001 decree, the

district court had instituted a “gag order” that precluded the

school administrators who were formulating the reorganization plan

from publicly disclosing any information about the plan before its

presentation to the School Board.             This order was the basis for the

denial of Appellants’ requests.                    The administrators were even

forbidden to discuss the plan with School Board members.                        After

receiving information that a member of the committee was leaking

information   about      the   consolidation          plan,   the   district    court

                                          4
conducted     an    on-the-record      meeting    with        each   administrator

individually to address the leak and reiterate the seriousness and

consequences of breaching the gag order.                      The district court

invoked the possibility of perjury if false statements were made

during the meeting.

             In late 2003, the committee of school administrators

completed a draft compliance plan, which called for consolidation

and reorganization of the school district (“consolidation plan” or

“plan”), which serves approximately 6,300 students.                  The consoli-

dation plan involves, at the high school level, the closure of

three   of   the    seven   district    schools,       re-zoning     of    the   four

remaining schools, creation of a visual and performing arts academy

at Pine Prairie High, and creation of a medical science regents

program at Ville Platte High.           The plan’s consolidation and re-

zoning measures are intended to address facility and resource

distribution       problems,   and   broaden     the   curricular      and   extra-

curricular     opportunities     available       to     the     Parish’s     student

population.        The consolidation plan would result in only slight

changes in the racial composition of the four remaining high

schools, while diversity at the remaining schools would be enhanced

through strategically located arts and regents programs.                          The

consolidation plan is also designed to maintain the “cultural

integrity” of the Parish’s neighborhoods and the ability of most

                                        5
students to attend a school within a reasonable distance from their

homes.1

              In January 2004, the DOJ and Graham plaintiffs approved

the plan, and the Superintendent submitted the plan to the School

Board.       In less than two weeks, the School Board conducted six

public    meetings        to   introduce     the      consolidation     plan    to   the

community and invite public comment. Certain of the Appellants and

members of NANS attended each meeting.                    In February, the School

Board rejected the plan by a vote of seven-to-six.                      By order, the

district court asked the United States (as well as the other

parties) to submit another reorganization plan in a short period of

     1


  Pre-Consolidation Plan       Grade        White           Black       Other     Total
                                                                                Students

Basile High School             4-12    366 (81.32%)      76 (16.8%)      8        450

Bayou Chicot High School       4-12    386 (79.7%)       93 (19.2%)      5        484

Chataignier High School        4-12    177 (54%)         151 (46%)       0        328

Mamou High                     9-12    185 (62.5%)       110 (37.1%)     1        296

Pine Prairie High              1-12    757 (98%)         13 (1.7%)       4        774

Vidrine High School            1-12    488 (80%)         118 (19.3%)     3        609

Ville Platte High School       7-12    184 (26.5%)       503 (72.6%)     5        692


 Post-Consolidation Plan       Grade        White           Black       Other     Total
                                                                                Students

Basile High School             5-12    358 (81.74%)      73 (16.67%)     7        438

Mamou High                     5-12    537 (61.94%)      328 (37.83%)    2        867

Pine Prairie High              PK-4    650 (83.55%)      123 (15.81%)    5        778
                               9-12

Ville Platte High School       5-12    263 (29.09%)      635 (70.24%)    6        904



                                            6
time.   Before that could occur, the School Board voted, eight-to-

five, in favor of the proposed plan.         Two Board members, Bobby W.

Deshotel and John D. Landreneau, changed their votes from “no” to

“yes.” The School Board moved the district court for authorization

to implement the plan in time for the 2004-05 school year.

            At hearings conducted on March 15 and 16, 2004, the

district court considered Appellants’ motion to intervene.                 On

March 25, 2004, the district court authorized implementation of the

consolidation plan,2 and the next day denied Appellants’ motion to

intervene.    Appellants timely noticed their appeal.

                 STANDARDS OF REVIEW AND JURISDICTION

            We review de novo a district court’s denial of a Rule

24(a)(2) (intervention as of right) motion, applying the same

standards as the district court.          Saldano v. Roach, 363 F.3d 545,

550 (5th Cir. 2004).     We review a district court’s denial of a Rule

24(b)   (permissive     intervention)      motion   for   clear    abuse   of

discretion.    United States v. Tex. E. Transmission Corp., 923 F.2d

410, 416 (5th Cir. 1991).

            We have jurisdiction over the district court’s denial of

a motion to intervene as of right. Our appellate jurisdiction over

the district court’s denial of permissive intervention Trans Chem.



      2
            The court later denied Appellants’ motion to stay authorization of
the plan pending appeal.

                                      7
Ltd. v. China Nat’l Mach. Import and Export Corp., 332 F.3d 815,

821 (5th Cir. 2003)(citing Edwards v. City of Houston, 78 F.3d 983,

992 (5th cir. 1996)), is provisional.         Id. at 821-22.   If we affirm

the   district   court,   we   must   dismiss    this   case   for   want   of

jurisdiction because proper denial of a motion for permissive

intervention does not constitute a final, appealable decision. Id.

                                DISCUSSION

I.    Rule 24(a)(2) - Intervention as of Right

           Pursuant to Rule 24(a)(2), a movant may intervene as of

right when:   (1) the motion to intervene is timely; (2) the movant

has an interest related to the transaction that forms the basis of

the controversy in the case; (3) the disposition of the case has

the potential to impair or impede the movant’s ability to protect

its interest; and (4) the existing parties do not adequately

represent the movant’s interest.          Saldano, 363 F.3d at 551 (citing

Doe v. Glickman, 256 F.3d 371, 375 (5th Cir. 2001)).                  In the

absence of any of these elements, intervention as of right must be

denied.   United States v. Franklin Parish Sch. Bd., 47 F.3d 755,

758 (5th Cir. 1995).      This Circuit has held that an “interest” for

Rule 24(a)(2) purposes must be “direct, substantial, [and] legally

protectable . . . [,] one which the substantive law recognizes as

belonging to or being owned by the applicant.”           Saldano, 363 F.3d

at 551 (internal citations omitted).           As to the fourth prong, an

                                      8
intervenor need only show that “the representation of his interest

by the existing parties ‘may be’ inadequate.” Id. at 553 (internal

citations omitted).

           We affirm the district court’s denial of Appellants’

motion to intervene as of right. Appellants have failed to present

a legally cognizable interest that would be impeded or impaired by

the consolidation plan.3     According to their pleadings, Appellants

seek intervention in order to:

      oppose[] [] the “consolidation” of schools, the mandatory
      assignment of students . . . because of their race, . . .
      and [] the use of tax monies for that purpose when . . .
      such action is unnecessary and may be . . . in violation
      of the equal protection, due process and other rights of
      applicants and their children.

      preserve the rights of parents to enroll their children
      in . . . the public school nearest their home and to
      preserve the identity and traditions of their local
      communities, neighborhoods, towns and villages - the
      heart of which is the public school.

      establish that the Evangeline Parish School system is in
      law and in fact unitary (or at the very least, partially
      unitary) and that the school system is entitled to be
      released from . . . court supervision . . . .

The   district   court   correctly       held   that   “[a]n   interest    in

maintaining   local   community    schools,     without   a    showing    that

consolidation would hamper the avowed goal of eliminating the

vestiges of past discrimination, fails to constitute a legally



      3
           The parties do not appear to dispute the timeliness of Appellants’
motion.

                                     9
cognizable interest in a school desegregation case.”                     See Graham,

223 F.R.D. at 432 (citing Perry, 567 F.2d at 279-80) (concerns

about school location are “unrelated to desegregation and the

establishment    of    a    unitary     school       system”      for   purposes    of

intervention); see also Franklin Parish, 47 F.3d at 757, n.1

(noting that the parent group “sensibly abandoned its challenge to

. . . the school board’s determination of the number and location

of schools in the parish”).                Appellants’ neighborhood school

interest, while vital to them and their children personally, is not

legally cognizable for Rule 24(a)(2) purposes.                    As in Perry, the

instant Appellants         do   not   challenge      the   plan    as   a   deficient

implementation   of    the      standing     desegregation        orders    and   2001

decree.      Rather,   they      challenge      it    as   an     undesirable      and

unnecessary commitment of resources, given their view, discussed

infra, that the school system is unitary.                  However, Appellants’

policy views of a school board-approved plan are insufficient to

establish interest.        Perry, 567 F.2d at 279-80.

          Next, Appellants have failed to show that the pending

consolidation plan is an impediment to any of their other asserted

interests.   Contrary to Appellees’ contention, Appellants do have

a legally cognizable “interest in a desegregated school system,”

which necessarily encompasses their specifically asserted interest

in unitary status.          Perry, 567 F.2d at 279.                 Thus, although

                                        10
Appellants do not have a right to intervene to challenge school

board policy, they may have a basis to challenge the proposed plan

that adversely affects achievement of unitary status.

            Appellants contend that any further court-ordered plans

are constitutionally impermissible because the district is in fact

desegregated and should be declared unitary. Unlike the plaintiffs

in Franklin Parish, supra, Appellants here assert present “injury”

from court-ordered racial assignments of students pursuant to the

reorganization plan.      But their assertion overlooks the history of

the case, which, until the close of the last century, exhibited the

Parish’s insouciance, at best, toward desegregation orders.                See

also Davis, 721 F.2d at 1441 (rejecting intervention where “the

parents     are   not   seeking   to    challenge   deficiencies      in   the

implementation of desegregation orders . . . . [but] oppose such

implementation”).        Moreover,     the   consolidation   barely   affects

existing racial balances in the remaining schools, see n.1 supra,

but seeks to encourage further voluntary desegregation with magnet

programs.    Appellants have not shown how attending a school (Ville

Platte High) with a pre-consolidated population of 692 students and

a 27%/73% ratio of white to black students is more constitutionally

suspect than attending the post-consolidated Ville Platte High,

with 904 students and a 29%/70% white to black racial makeup.




                                       11
           Because we have concluded that Appellants’ interests are

legally insufficient under Rule 24(a)(2), we need not dwell on

whether the existing parties adequately represented Appellants’

interests.   Were we to do so, the record would be clouded by the

district court’s heavy-handed case management style.         This aspect

of the case is not controlled by Franklin Parish, where would-be

intervenors offered “no evidence” that the school board was not

representative of its constituency or had a motivation or interest

different from that of appellants.         47 F.3d at 758.     We do not

denigrate the School Board.          Appellants testified repeatedly,

however, and without objection or substantial contradiction, that

the Board members to whom they spoke (i.e., most of the members)

voiced serious doubts about the reorganization plan but felt

compelled to vote for it out of concern that failure to pass the

plan would evoke, as the district judge warned, a much more radical

plan from the DOJ.

           It might not be unreasonable for laymen to believe that

the Board Members’ concern about further court proceedings led to

a temptation to subservience before the court and perhaps even the

forfeiture of their independent judgment of the best direction for

the Parish’s schools.       The recent case history supports that

concern.     The   court   ordered   the   reorganization    plan   to   be

formulated by a select group of school administrators, while the

                                     12
Board members were not allowed to participate.            A strict gag order

cloaked the plan in secrecy. Negotiations among the committee, the

DOJ, and the Graham plaintiffs led to those groups’ agreement on

the plan before the Board was allowed to see it.           The Board was put

on the spot by being required to publicize and consider the plan,

which took seven months to formulate, in less than one month.               The

district judge spoke personally to the two critical Board members

between the time of their first negative votes and their later

affirmative votes for the plan.         At the intervention hearing, the

judge questioned those two Board members at some length to explain

the non-nefarious circumstances of the calls.4           The tone and length

of the court’s opinion on this intervention order, and the candid

recitation of the court’s repeated meetings with the parties,

suggest personal involvement in the case that approaches more of an

administrative than a judicial role.

              The test for adequacy of representation by existing

parties is whether the party exhibits “adversity of interest,

collusion, or non-feasance.”          Franklin Parish, 47 F.3d at 757.

While   the    adequacy   of   the   School    Board’s   representation      is

presumed, id., the burden of showing inadequacy is not stringent.

The record developed here could create a perception, whether


      4
            The court found, in a finding supported by the testimony, that these
Board members changed their votes for reasons not having anything to do with the
telephone calls with the judge.

                                      13
justified or not, that the Board forfeited its role to the district

court.   As previously stated, we need not decide the adequacy

question here.    We caution the court, however, to limit itself to

traditional judicial decisionmaking rather than school adminis-

tration, and to refrain from day-to-day management of its decrees.

II.   Rule 24(b) - Permissive Intervention

           Rule 24(b) provides for permissive intervention when:

(1) the motion is timely; (2) a statute of the United States

confers a conditional right to intervene; or (3) the movants’

“claim or defense and the main action have a question of law or

fact in common.”      FED. R. CIV. P. 24(b); Trans Chem. Ltd. at 822

(quoting FED. R. CIV. P. 24(b)(2)).     The district court’s Rule 24(b)

determination    is   “wholly   discretionary.”    Kneeland   v.   Nat’l

Collegiate Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir. 1987).

Thus, “even [where] there is common question of law or fact, or the

requirements of 24(b) are otherwise satisfied,” a district court

may deny permissive intervention if such would “unduly delay or

prejudice the adjudication of the rights of the original parties.”

Kneeland, 806 F.2d at 1289. Denials of permissive intervention are

only subject to reversal if extraordinary circumstances so require.

Trans Chem. Ltd., 332 F.3d at 822.           We see no extraordinary

circumstances here, so the court’s decision will be upheld.




                                   14
                           CONCLUSION

          For the foregoing reasons we AFFIRM the district court,

and DISMISS this case for want of jurisdiction.




                               15
