165 F3d 311 Helms v. J Picard E Oh W

165 F.3d 311

Mary L. HELMS, individually and as next friend of Amy T.
Helms; Amy T. Helms, a minor; Marie L.
Schneider, Plaintiffs-Appellants-Cross-
Cecil J. PICARD, Louisiana Superintendent of Public
Education; Kenneth Duncan, Louisiana State Treasurer;
Louisiana State Board of Elementary and Secondary Education;
Jefferson Parish School Board System; Elton Lagasse,
Superintendent of the Jefferson Parish School System;
Laurie E. Rolling, President and member of the Jefferson
Parish School Board; Libby Moran, Vice President and member
of the Jefferson Parish School Board; Robert Wolfe, member
of the Jefferson Parish School Board; Barry Bordelon,
member of the Jefferson Parish School Board; O.H. Guidry,
member of the Jefferson Parish School Board; Cedric Floyd,
member of the Jefferson Parish School Board; Polly Thomas,
member of the Jefferson Parish School Board; Gene Katsanis,
member of the Jefferson Parish School Board; Martin Marino,
member of the Jefferson Parish School Board,
Defendants-Appellees-Cross- Appellants,
Richard W. Riley, Secretary of the United States Department
of Education; United States Department of
Education, Defendants-Appellees,
Special Education Services Corporation, Defendant-Appellant,
Guy Mitchell; Jan Mitchell; Claire Friedrichs, Eddie
Greer, Colleen Greer, Dennis Thornton, Darlene
Thornton, Intervenor
Defendants-Appellees-Cross- Appellants.

No. 97-30231.

United States Court of Appeals,
Fifth Circuit.

Jan. 13, 1999.

Lee Boothby, Boothby & Yingst, Washington, DC, for Mary and Amy Helms and Marie Schneider.

Patricia Ann Dean, Andrew Tanner Karron, Arnold & Porter, Washington, DC, William Thomas D'Zurilla, Gordon, Arata, McCollam & Duplantis, New Orleans, LA, for Guy and Jan Mitchell, Claire Friedrichs, Eddie and Colleen Greer and Dennis and Darlene Thornton.

Howard S. Scher, Drake Stephen Cutini, Matthew Miles Collette, U.S. Dept. of Justice, Civil Div., Appellate Staff, Washington, DC, for Richard Riley and U.S. Dept. of Educ.

Jack A. Grant, Andree Hunter Greenleaf, Grant & Barrow, Gretna, LA, for Lagasse, Rolling, Moran, Wolfe, Bordelon, Guidry, Floyd, Thomas, Katsanis, Marino and Jefferson Parish Sch. Bd. System.

David Glen Sanders, Asst. Atty. Gen., Division of Litigation, Baton Rouge, LA, for Picard, Duncan and Louisiana State Bd. of Elementary and Secondary Educ.

Marshall Beil, Catherine A. Rogers, Ross & Hardies, New York City, for National Committee for Public Educ. and Religious Liberty, Amicus Curiae.

Marjorie Ruth Esman, New Orleans, LA, Kenneth M. Dreifach, Morrison & Foerster, New York City, for The American Civil Liberties Union and Anti-Defamation League, Amicus Curiae.

Thomas A. Rayer, Sr., Denechaud & Denechaud, New Orleans, LA, for Special Educ. Services Corp.

Appeals from the United States District Court for the Eastern District of Louisiana; Marcel Livaudais, Jr., Judge.

Before DUHE, BENAVIDES and STEWART, Circuit Judges.1


(Opinion 8/17/98, 5 Cir., 97-30231,

151 F.3d 347)


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The Petitions for Rehearing are DENIED and the court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service not having voted in favor, (Fed. R.App. P and 5th Cir. R. 35) the Suggestions for Rehearing En Banc are also DENIED.


For clarity, we amend that part of the last sentence of the panel opinion following the number (2) to read as follows:


"... (2) we REVERSE the district court's grant of summary judgment in favor of Defendants and RENDER judgment in favor of Plaintiffs declaring that the Federal instructional materials program, 20 U.S.C. §§ 7301-7373, and its Louisiana counterpart, La.Rev.Stat.Ann. §§ 17:351-52, are unconstitutional as applied in Jefferson Parish, except as applied for the acquisition of textbooks which use is not challenged by this litigation; and (3)...."


Judges Wiener and Dennis did not participate in the consideration of the suggestion for rehearing en banc