Delta Charter v. Sch Bd Concordia Prsh

Case: 23-30063 Document: 00516999676 Page: 1 Date Filed: 12/13/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED December 13, 2023 No. 23-30063 Lyle W. Cayce ____________ Clerk Vernon Smith, etc., Plaintiff, United States of America, Intervenor Plaintiff—Appellee, versus School Board of Concordia Parish, Defendant—Appellee, versus Delta Charter Group, Incorporated, Intervenor—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:65-CV-11577 ______________________________ Before Wiener, Willett, and Douglas, Circuit Judges.

Don R. Willett, Circuit Judge: Case: 23-30063 Document: 00516999676 Page: 2 Date Filed: 12/13/2023

No. 23-30063

Delta Charter Group, Inc., operates a public charter school within Concordia Parish in Louisiana. In 2018, Delta, the Concordia Parish School Board, and the United States jointly moved for entry of a consent order requiring Delta to implement a race-based enrollment process, consistent with an ongoing desegregation plan in Concordia. Four years later, Delta moved to discontinue the use of race in the 2018 Consent Order, arguing that it was unconstitutional. The district court declined to modify the order under Federal Rule of Civil Procedure 60(b)(5). Delta appealed. Because Delta forfeited any argument that the district court abused its discretion, we AFFIRM.

I This case begins in 1965, before two members of this panel were even born. In that year, plaintiffs—no longer active in this litigation—sued the Concordia Parish School Board for operating segregated schools in violation of the Fourteenth Amendment. The district court ultimately approved a desegregation plan. Some 50 years later, the Board has yet to achieve unitary status 1 and remains subject to the district court’s continued jurisdiction and supervision.

In 2012, Delta Charter Group, Inc., intervened in the Board’s ongoing desegregation case for approval to operate a public charter school within Concordia Parish. 2 The district court entered a consent order in 2013 that Case: 23-30063 Document: 00516999676 Page: 3 Date Filed: 12/13/2023

No. 23-30063 authorized Delta to open its school and obligated it to, among other things, comply with the Board’s desegregation decree and not hinder the Board’s own compliance. 3 About a year after Delta opened its doors, the Board alleged that Delta violated the 2013 Consent Order. The district court held a hearing in February 2017, following years of discovery and failed negotiations. Just three days before, Delta moved for relief from the race-based enrollment requirements in the 2013 Consent Order and, in the alternative, urged the district court to dismiss Concordia’s motion for relief. Delta argued in part that the 2013 Consent Order’s race-based policies were unconstitutional under the Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1.4 The district court declined to consider Delta’s eleventh-hour arguments, found that Delta had violated the Consent Order, and entered relief for the Board. Delta appealed, and we affirmed, making just one revision to the district court’s ordered relief. 5 Delta, the Board, and the United States (a Plaintiff–Intervenor) meanwhile jointly moved for entry of a second consent order to adjust Delta’s enrollment process. The district court entered the proposed order in 2018.

The 2018 Consent Order, still in effect, outlines an Enrollment Process by Case: 23-30063 Document: 00516999676 Page: 4 Date Filed: 12/13/2023

No. 23-30063 which Delta must give “the highest enrollment preference . . . to black students” and adhere to other race-based enrollment rules.

Four years later, Delta urged the district court to discontinue the race- based Enrollment Process, which it argued has always been unconstitutional under Parents Involved. The district court construed Delta’s motion as a request to modify the 2018 Consent Order under Rule 60(b)(5). It held that Delta did not carry its burden for modifying the 2018 Consent Order because Delta had not alleged any “change in factual or legal circumstances or [evidence] that the 2018 Consent Order is failing to achieve its intended result of effectively ensuring Delta’s operation of Delta Charter School does not undermine Concordia’s desegregation efforts.” “Delta’s reliance on a fifteen-year-old plurality opinion in [Parents Involved],” the district court explained, “certainly fails to rise to the kind of significant legal change the Supreme Court contemplated . . . .” In a footnote, the court rejected Delta’s constitutional argument on the merits. Delta appealed. 6 Before Delta filed its reply brief, the Supreme Court decided Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (“SFFA”). 7 We requested supplemental briefing from the parties to determine what effect, if any, SFFA had on this case.

Case: 23-30063 Document: 00516999676 Page: 5 Date Filed: 12/13/2023

No. 23-30063

II District courts can modify or dissolve a consent decree under Rule 60(b)(5) if “applying [the decree] prospectively is no longer equitable.” 8 But the party seeking modification must show “a significant change either in factual conditions or in law.” 9 It’s enough, for example, that (1) “changed factual conditions make compliance with the decree substantially more onerous,” (2) the “decree proves to be unworkable because of unforeseen obstacles,” or (3) “enforcement of the decree without modification would be detrimental to the public interest.” 10 A party seeking modification based on a significant change in facts must also “show that those [factual] changes affect compliance with, or the workability or enforcement of, the final judgment, and . . . that those changes occurred despite [their] reasonable efforts to comply with the judgment.” 11 After the movant satisfies its burden, the district court must then “consider whether the proposed modification is suitably tailored to the changed circumstance” 12 and “take a flexible approach to [modification].” 13

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No. 23-30063

“We review a district court’s decision to grant or deny relief pursuant to Rule 60(b) for abuse of discretion.” 14 And we review de novo any underlying questions of law. 15 III We begin, and end, this appeal by considering whether Delta has even preserved any argument that the district court abused its discretion in denying relief under Rule 60(b)(5). “A party forfeits an argument . . . by failing to adequately brief the argument [in its opening brief] on appeal.” 16 “To be adequate, a brief must address the district court’s analysis and explain how it erred.” 17 We have held that briefing was adequate, even if “sparse,” when it “include[d] the standard of review, discusse[d] applicable law, and explain[ed] how [the appellant] believe[d] the district court erred.” 18 By contrast, we have held that parties forfeited arguments by “not attempt[ing] to rebut” the district court’s conclusions 19 or by failing to cite Case: 23-30063 Document: 00516999676 Page: 7 Date Filed: 12/13/2023

No. 23-30063 the provisions at issue in the opening brief and “explain why the [district] court was wrong about what those provisions permit.” 20 Delta did not heed these admonitions and settled briefing requirements. Its opening brief barely “address[ed] the district court’s analysis” and wholly neglected to “explain how it erred.” 21 Delta referenced Rule 60(b)(5) only once, made zero mention of the applicable abuse-of- discretion standard of review, and summarized the district court’s analysis in two short paragraphs—only to never discuss it again. 22 Delta merely repeated the same argument it raised below: that the 2018 Consent Order’s Enrollment Process has always been unconstitutional under Parents Involved.

Nowhere did Delta explain how the district court erred in denying modification—that is, Delta failed to identify any facts or law raised to the district court that have changed significantly since 2018 and would thus justify relief. 23 Consider Delta’s stark lack of briefing on the two primary bases for Rule 60(b)(5) relief: changed facts and changed law. Delta did not argue in its opening brief that the district court failed to account for significantly changed facts that justify modification. To the extent Delta argued changed facts in its reply or supplemental briefs or at oral argument, it’s still forfeited. 24 Delta Case: 23-30063 Document: 00516999676 Page: 8 Date Filed: 12/13/2023

No. 23-30063 likewise forfeited any argument that the district court abused its discretion by failing to consider a significant change in the law. Delta has staunchly maintained—before the district court and on appeal—that the 2018 Enrollment Process is unconstitutional under the Supreme Court’s 2007 decision in Parents Involved. Because Parents Involved was decided before Delta sought entry of the 2018 Consent Order, it’s not a “significant [legal] change[] occurring during the life of the decree” 25—and therefore can’t justify modification under Rufo. Nor did Delta argue in its reply or supplemental briefs or at oral argument that the Supreme Court’s intervening decision in SFFA effected a “significant change . . . in law.” 26 Rather, counsel for Delta said plainly at oral argument that they are “not of the position that [SFFA] significantly changed the law” and that SFFA merely “clarifies” and adds “emphasis” to the law under Parents Involved.

That SFFA “clarifies” and adds “emphasis” doesn’t show a “significant” change in the law—or any change, for that matter. 27 Delta has thus forfeited any argument that the district court abused its discretion in holding that there was no significant change in the law. 28 There are a handful of related grounds for modification—but Delta has forfeited all of those, too. Delta does not argue that any party was mistaken as to the state of the law when it sought approval of the consent _____________________ See Rollins, 8 F.4th at 397 (“A party forfeits an argument by failing to raise it in the first instance in the district court . . . .”).

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No. 23-30063 decree in 2018. 29 Indeed, Delta raised a similar constitutional argument in 2017 against the 2013 Consent Order and thus undeniably knew of the law that it now attempts to wield against its 2018 obligations. Delta likewise doesn’t argue that the “decree [is] not meeting its intended purpose” or that the “initial remedy ha[s] failed.” 30 Delta has thus forfeited any argument that the district court abused its discretion in failing to modify the 2018 Consent Order on these alternative grounds.

Delta dismisses this forfeiture rule as “nothing more than technical sophistry,” urging us to review the constitutionality of the Enrollment Process without regard to the Rule 60(b)(5) standard. Our authority is not so freewheeling. Our rules governing forfeiture and standards of review are just that—rules—and they bind us and all parties alike. We cannot grant special absolutions, no matter our view of the underlying merits. 31 Overlooking Delta’s forfeiture would, in turn, require us to raise arguments on Delta’s behalf and carry Delta’s burden under Rufo. That is not our role.

IV In its effort to elude the Rule 60(b)(5) standard entirely, Delta takes one more swing—and misses. Delta also forfeited its argument that the district court should have instead applied Rule 54(b). Delta didn’t include this argument in its “Statement of the Issue” or in the body of its opening Case: 23-30063 Document: 00516999676 Page: 10 Date Filed: 12/13/2023

No. 23-30063 brief—rather, Delta relegated it to a footnote. We have repeatedly cautioned that arguments appearing only in footnotes are “insufficiently addressed in the body of the brief” and are thus forfeited. 32 Delta’s Rule 54(b) argument meets this predictable fate.

V We do not—indeed, cannot—offer any opinion on the underlying constitutional merits. Delta forfeited any available argument that the district court should have applied Rule 54(b) and that it abused its discretion in denying relief under Rule 60(b)(5). Accordingly, we AFFIRM.