United States of America, Sheanda Bryant, Intervenors-Appellants, Cross-Appellees v. Lawrence County School District, Cross-Appellants

808 F.2d 1063, 1987 U.S. App. LEXIS 1992, 36 Educ. L. Rep. 1146

Opinions

HIGGINBOTHAM, Circuit Judge,

with whom GEE, GARWOOD, JOLLY, DAVIS, HILL, and JONES, Circuit Judges, join, dissenting:

I dissent from the denial of rehearing en banc for the reasons stated in my dissent to the panel opinion.

We are reminded of just how old this case is, and just how fragile its holding, by the related circumstances that Chief Judge Clark, the most senior active member of the court, is recused because he was counsel in the case, with the result that rehearing en banc was denied despite affirmative votes by a majority of the active judges not recused. Our rules require affirmative vote of a majority of the active members of the court in service. A recused judge remains in active service. I mention the rule, not to quarrel with it but, to aid those members of the bar who might otherwise wonder if we can count.