## Facts

- A federal district court found constitutional violations in the District of Columbia public school system and entered a detailed remedial decree addressing matters such as pupil assignment measures, busing, optional zones, faculty integration, and the track system.
- The District of Columbia Board of Education, the principal defendant, voted not to appeal the decree and directed the superintendent not to appeal.
- Despite the Board’s decision, the resigned superintendent (in his former official capacity and individually) and a single Board member filed notices of appeal.
- A group of parents of schoolchildren sought to intervene to register dissent from the remedial decree and to prosecute an appeal.
- The court of appeals remanded for the district court to rule on intervention; the district court granted intervention.
- The case returned to the court of appeals en banc to determine whether these non-Board appellants could intervene and pursue an appeal given the Board’s non-appeal decision, and if so, the permissible scope of any appeal.

## Issues

1. Whether a school superintendent and an individual school board member may intervene as of right under Federal Rule of Civil Procedure 24(a) to prosecute an appeal when the school board, as the institutional defendant, chooses not to appeal.
2. Whether parents of schoolchildren have a sufficient Rule 24(a) interest to intervene as of right to appeal a remedial decree governing public-school operations.
3. If parents may intervene, how far their appellate challenge may extend, particularly as to provisions that restrain a (newly constituted) school board’s future policy discretion.

## Decision

- The court held that the superintendent and the individual board member were not entitled to intervene as of right and therefore could not prosecute an appeal.
- The court held that the parents could intervene as of right, but only to challenge portions of the decree that materially affected their interest in their children’s education by restraining the Board’s ability to make certain future policy decisions.
- Applying that limited scope, the court largely affirmed the remedial provisions it reached, including measures related to busing, optional zones, and faculty integration, as permissible remedies for proven constitutional violations and not improper constraints on board discretion.

## Legal Principles

- Intervention as of right under Rule 24(a) requires: (1) a protectable interest relating to the subject matter of the action; (2) a showing that disposition may practically impair that interest; and (3) inadequate representation of that interest by existing parties.
- A Rule 24(a) “interest” need not be purely economic; it must concern a recognized, protectable stake affected by the litigation’s outcome.
- Where an institutional defendant deliberately declines to appeal, stakeholders whose interests diverge from that litigation choice may satisfy Rule 24(a)’s inadequate-representation requirement.
- A subordinate official lacks an independent right to intervene to override the litigation decision of the governmental body that controls the official’s authority.
- A single member of a collective governmental body generally cannot intervene as of right to appeal based solely on dissent from the body’s institutional decision.
- Parent intervenors may be limited to challenging decree provisions that significantly restrict the elected board’s future policymaking discretion, while courts may sustain remedial provisions closely tied to curing constitutional violations.

## Conclusion

The en banc court held that neither the superintendent nor an individual dissenting board member could intervene as of right to appeal after the school board chose not to appeal, but that parents could intervene under Rule 24(a) to contest only those remedial provisions that materially constrained the board’s future educational policy discretion, and it largely upheld the challenged remedies within that scope.


Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) (en banc)