Smith v. Los Angeles Unified School District ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHANDA SMITH; ELIZA
No. 14-55224
THOMPSON, Guardian ad Litem
for Chanda Smith, individually
& on behalf of all other persons D.C. No.
similarly situated; JAVIER MEJIA; 2:93-cv-07044-
GLORIA MEJIA; QUINN RSWL-GHK
SULLIVAN; MADO MOST,
Plaintiffs-Appellees,
v.
LOS ANGELES UNIFIED SCHOOL
DISTRICT, a California public
entity; ROY ROMER, in his
official capacity as
Superintendent of the LA
Unified School District,
Defendants-Appellees,
v.
APRIL MUNOZ; JULIA FLORES;
CHERYL AYAPANA; V. P.; A. F.;
M. H.; J. A.,
Movants-Appellants.
2 SMITH V. LAUSD
CHANDA SMITH; ELIZA No. 14-55256
THOMPSON, Guardian ad Litem
for Chanda Smith, individually D.C. No.
& on behalf of all other persons 2:93-cv-07044-
similarly situated; JAVIER RSWL-GHK
MEJIA; GLORIA MEJIA; QUINN
SULLIVAN; MADO MOST,
Plaintiffs-Appellees, ORDER AND
AMENDED OPINION
and
APRIL MUNOZ; JULIA FLORES;
CHERYL AYAPANA; V. P.; A. F.;
M. H.; J. A.,
Movants,
and
MINA LEE; FRANCES MORENO,
Movants-Appellants,
v.
LOS ANGELES UNIFIED SCHOOL
DISTRICT, a California public
entity,
Defendant-Appellee.
SMITH V. LAUSD 3
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Argued and Submitted February 12, 2016
Pasadena, California
Filed May 20, 2016
Amended July 27, 2016
Before: Jerome Farris, Richard R. Clifton,
and Carlos T. Bea, Circuit Judges.
Order;
Opinion by Judge Bea
SUMMARY *
Intervention
The panel reversed the district court’s denial of
appellants’ motion to intervene in a class action brought on
behalf of all disabled students in the Los Angeles Unified
School District.
Appellants are a sub-class of moderately to severely
disabled children. They sought to intervene to challenge a
new policy, adopted by LAUSD in 2012 as part of a
renegotiation of a settlement. The settlement requires a class
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 SMITH V. LAUSD
of LAUSD’s most severely disabled students to go to the
same schools as the district’s general, non-disabled student
body. Appellants want their children to be schooled
separately.
The panel held that the district court abused its discretion
in denying as untimely appellants’ motion to intervene as of
right under Fed. R. Civ. P. 24(a). The district court further
erred when it found intervention unnecessary to protect
appellants’ interest in ensuring the receipt of public
education consistent with their disabilities and federal law.
The panel reversed the district court’s denial of the motion
to intervene and remanded for further proceedings consistent
with its opinion.
COUNSEL
David Ward German (argued) and Robert Myers, Newman,
Aaronson & Vanaman, Sherman Oaks, California; Catherine
Blakemore, Melinda Bird, and Candis Watson Bowles,
Disability Rights California, Los Angeles, California; for
Plaintiffs-Appellees.
Barrett Green (argued) and Maggy Athanasious, Littler
Mendelson, P.C., Los Angeles, California; D. Deneen Cox,
Associate General Counsel, and Belinda D. Stith, Interim
Chief Education and Litigation Counsel, LAUSD Office of
General Counsel, Los Angeles, California; for Defendant-
Appellee Los Angeles Unified School District.
Suzanne Nancy Snowden (argued), SJM Law Group, LLP,
Los Angeles, California; Eric Scott Jacobson, Law Offices
of Eric S. Jacobson, Encino, California; for Movants-
Appellants Mina Lee, et al.
SMITH V. LAUSD 5
Seymour I. Amster (argued), Law Offices of Seymour I.
Amster; Angela Gilmartin, Law Offices of Angela
Gilmartin, Woodland Hills, California; for Movants-
Appellants April Munoz, et al.
ORDER
The opinion filed May 20, 2016 is amended as follows:
At Slip Op. 4: Change “Congress enacted the Individuals
with Disabilities Education Act (the ‘IDEA’)” to “Congress
enacted the Education for All Handicapped Children Act
(which has since been retitled as the Individuals with
Disabilities Education Act (the ‘IDEA’)).”
At Slip Op. 7: Change “Cal Ed. Code § 56361” to “Cal.
Educ. Code § 56361” and change “‘State special schools’—
also known as special education centers” to “‘State special
schools,’ see Cal. Educ. Code §§ 56361(f); 56367—a term
of art which includes ‘the California School for the Deaf,’
Cal. Educ. Code § 59020, and ‘the California School for the
Blind,’ id. § 59120.”
At Slip Op. 34: Change “—an action expressly prohibited
by both the MCD and the Consent Decree.” to “. Indeed, if
anything, statements that LAUSD was engaged in
‘discussions’ to achieve greater compliance with the MCD
would have only reinforced Appellants’ belief that LAUSD
planned to continue to offer special education centers as part
of the ‘full continuum’ of services available to disabled
students in LAUSD. LAUSD now takes the position that the
MCD does not require it to maintain any particular number
of special education centers, and therefore its actions violate
6 SMITH V. LAUSD
neither the MCD nor any governing law. LAUSD’s
argument misses the point. The question before us is
whether Appellants were reasonably on notice that their
interest in maintaining special education centers as
placement options for their children was not being
adequately represented by the existing parties to the Chanda
Smith litigation. We conclude that they were not on notice,
because Appellants reasonably construed the MCD as
ensuring the maintenance of the special education centers
their children attended. The district court therefore erred in
reaching a contrary conclusion.”
With these amendments, the panel has voted to deny
Appellees’ June 3, 2016 Petition for Rehearing and
Rehearing En Banc. We reiterate that we are not opining on
the merits of Appellants’ claims that LAUSD’s actions
violate state and federal law. Appellees’ Petition for
Rehearing En Banc was also circulated to the judges of this
court, and no judge requested a vote for en banc
consideration. Accordingly, the Petition for Rehearing and
Rehearing En Banc is DENIED.
Appellants’ June 23, 2016 Motion for an Interim
Injunction is likewise DENIED without prejudice to refiling
in the district court. Appellants have failed to “show that
moving first in the district court would be impracticable,”
given the very late stage of these appellate proceedings. Fed.
R. App. P. 8(a)(2)(A)(i). On remand, the district court is
directed promptly to enter an order granting Appellants’
motion to intervene. The district court shall also timely
consider and rule on any motion for injunctive relief.
SMITH V. LAUSD 7
Appellants’ July 11, 2016 Request for Judicial Notice is
likewise DENIED as moot.
No further filings shall be accepted in this case.
IT IS SO ORDERED.
OPINION
BEA, Circuit Judge:
Appellants are a sub-class of moderately to severely
disabled children who have moved to intervene in a class
action brought on behalf of all disabled students in the Los
Angeles Unified School District (“LAUSD”) against
LAUSD (“the Chanda Smith Litigation”). 1 Appellants seek
to intervene to challenge the legality of a new policy,
adopted by LAUSD in 2012 as part of a renegotiation of the
Chanda Smith parties’ settlement. That settlement requires
a class of LAUSD’s most severely disabled students to go to
the same schools as the district’s general, non-disabled
student body. LAUSD calls this “integration”; Appellants
want their children to be schooled separately. A district
court denied Appellants’ motion to intervene. We conclude
that the district court abused its discretion in denying
Appellants’ motion as untimely, and further erred when it
found intervention unnecessary to protect Appellants’
1
One group of proposed intervenors is led by Mina Lee and Frances
Moreno (the “Mina Lee Proposed Intervenors”), and the other by April
Munoz, Julia Flores, and Cheryl Ayapana (the “April Munoz Proposed
Intervenors”) (collectively, “Appellants,” or “Proposed Intervenors” and
each, individually, an “Appellant”).
8 SMITH V. LAUSD
interest in ensuring the receipt of public education consistent
with their disabilities and federal law.
I. SUMMARY OF FACTS
A. Relevant Statutory History and Landscape
We are called upon today to review only the district
court’s denial of Appellant’s motion to intervene, and
therefore do not opine on whether the actions of LAUSD that
prompted Appellants to file their motions violated federal or
state law. Nevertheless, we cannot ignore that at the core of
this case is a fundamental disagreement as to the proper
approach to education of a class of moderately-to-severely
disabled children. Thus the statutes upon which the present
motion rests provide the basis of our analysis.
Before 1975, children with disabilities were often
excluded from general public schools and required to attend
separate school campuses comprised wholly or primarily of
disabled children (termed “special education centers” by
LAUSD). 20 U.S.C. § 1400(c)(2)(B). Following claims that
this allocation violated due process, see, e.g., Mills v. Bd. Of
Educ. of the Dist. of Columbia, 348 F. Supp. 866, 869–70,
875 (D.D.C. 1972), Congress enacted the Education for All
Handicapped Children Act (which has since been retitled as
the Individuals with Disabilities Education Act (the
‘IDEA’)). See 20 U.S.C. § 1400, et seq.
The IDEA requires that a “free appropriate public
education” (a “FAPE”) be made available to every disabled
child; a FAPE must be fashioned so as to accommodate an
individual child’s disability. See id. §§ 1401, 1412(a), 1414.
To make an adequate FAPE, local education agencies must
develop an Individualized Education Program (an “IEP”) for
each disabled child. See id. § 1414(d). An IEP consists of a
SMITH V. LAUSD 9
written statement setting forth the special services and aids
the child needs to get a FAPE. See id. §§ 1401, 1414.
The IDEA also has a preference for integration of
disabled children in the general education schools. But such
integration must be beneficial to the disabled child, given the
nature and severity of his disability. This preference is found
in the IDEA’s “Least Restrictive Environment” (“LRE”)
requirement. It directs that a disabled child should attend
regular classes with nondisabled children “[t]o the maximum
extent appropriate.” Id. § 1412(a)(5); see also 34 C.F.R.
§ 300.114(a)(2)(i)–(ii); Cal. Ed. Code § 56364.2. At the
same time, however, the IDEA endorses the “removal of
children with disabilities from the regular educational
environment . . . when the nature or severity of the disability
. . . is such that education in regular classes with the use of
supplementary aids and services cannot be achieved
satisfactorily.” 20 U.S.C. § 1412(a)(5); see also Poolaw v.
Bishop, 67 F.3d 830, 834 (9th Cir. 1995) (“In some cases,
such as where the child’s handicap is particularly severe, it
will be impossible to provide any meaningful education to
the student in a mainstream environment.”).
Consistent with this framework, California law requires
educators to maintain a “continuum of [special education]
program options.” See Cal. Educ. Code § 56361. This
continuum “include[s], but [is] not . . . limited to” full-time
enrollment in “State special schools,” see Cal. Educ. Code
§§ 56361(f); 56367—a term of art which includes “the
California School for the Deaf,” Cal. Educ. Code § 59020,
and “the California School for the Blind,” id. § 59120.
B. The Chanda Smith Litigation and Outcome 7
Appellants seek to intervene in a class action lawsuit
initiated in 1993 in the United States District Court for the
10 SMITH V. LAUSD
Central District of California by Chanda Smith, a disabled
student then enrolled in LAUSD. The professed purpose of
that suit, brought on behalf of all similarly situated persons,
was “to bring the [LAUSD]’s special education program into
compliance with federal law.” The Chanda Smith plaintiffs
sought a number of improvements in the provision of special
education, including, to name a few: (1) the centralization
and computerization of all students’ records, (2) the
provision of regular training to administrators as to their
“legal and professional obligations to students with
disabilities,” (3) the “[r]ecruiting and hiring [of] more
credentialed special education personnel,” and (4) the
provision of “a full continuum of special education and
related services . . . [to] students with disabilities at sites as
close to the home of such students as possible.” That
“continuum” was to include “all of the following”:
(a) “General education classrooms with appropriate
supplemental supports and services”; (b) “A resource
specialist program”; (c) “Nonpublic, nonsectarian school
services”; and (d) “State special schools pursuant to
California Education Code Section 56367,” among other
options. This class action culminated in a 1996 Consent
Decree negotiated between Chanda Smith’s counsel (“Class
Counsel”) 2 and LAUSD. The Consent Decree was framed
in terms of general “recommendations” for improvements in
areas such as those listed above, but lacked any quantifiable
measurements by which to determine whether LAUSD
should be deemed in compliance with the parties’ settlement.
A few years later, Class Counsel sought and obtained
court approval of a plan that imposed more objectively
2
Class Counsel are legal organizations with a self-professed
ideological interest in advancing the rights of disabled children and their
families.
SMITH V. LAUSD 11
quantifiable targets on LAUSD (“Plan 12”). Among other
things, Plan 12 called for the effective elimination of special
education centers. 3 LAUSD appealed the district court’s
ruling approving Plan 12. In 2002 and while that appeal was
pending, parents of children then enrolled in special
education centers in LAUSD served Class Counsel with a
motion to intervene. The motion to intervene asserted that
Plan 12’s elimination of special education centers violated
the IDEA’s “full continuum” requirement by eliminating an
important placement option for disabled children.
Before that motion to intervene was filed with the district
court, however, Class Counsel, LAUSD, and the would-be
intervenors submitted their dispute to mediation. Class
Counsel agreed to withdraw Plan 12. This mediation also
led to the execution of a Modified Consent Decree (the
“MCD”) in 2003, which reaffirmed “[t]he parties[’]
agree[ment] that special education centers are part of the
continuum of program options for a full continuum of
special education and related services in the least restrictive
environment.” MCD ¶ 47. In lieu of eliminating special
education centers, the MCD set forth an “Outcome 7.”
Outcome 7 required the district to increase the percentage of
students with disabilities aged 6 to 22, and who are to be
placed in the general education setting for 40 percent or more
of the school day, from 29 percent to 52 percent by June 30,
3
Under Plan 12, disabled children could comprise no more than 15
percent of any school’s population. Because special education centers
are comprised heavily or wholly of disabled students, Plan 12’s 15
percent limitation would have effectively eliminated special education
centers. The LAUSD objected to the plan by moving to modify and/or
stay portions of the Consent Decree. The district court denied LAUSD’s
motion, which had the practical effect of approving Plan 12.
12 SMITH V. LAUSD
2006. 4 Outcome 7 also limited to 48 percent those disabled
students who were to spend more than 60 percent of the
instructional day in any of the following: (a) special
education classes at a general education facility, (b) a public
special education center, (c) a non-public school with a
contract to provide special education services to LAUSD
students (“Non-Public Schools”), or (d) a private residence
or hospital learning environment. The MCD also established
an “Independent Monitor” to oversee the LAUSD’s progress
in meeting this and other Outcomes.
Because Outcome 7 was directed to increasing the
integration of disabled students in all four of the groups
making up the 48 percent into LAUSD’s general education
classes, reduction of full-time enrollment of disabled
students in special education centers was but one of many
ways LAUSD could achieve compliance with the MCD.
Indeed, LAUSD necessarily had to look elsewhere than to
special education centers to comply with Outcome 7—not
only because the MCD acknowledged the special education
centers as an important part of the continuum of educational
services available to disabled children, but also because
4
Notably, Outcome 7 excluded students with Specific Learning
Disabilities (“SLD”) and “Speech and Language” Impediments (“SLI”),
the integration of whom was governed by Outcome 6 (which is not at
issue in the present litigation). The SLD classification encompasses
children with a “severe discrepancy between intellectual ability and
achievement” in a particular area (such as “basic reading” or
mathematics) due to “a disorder in one or more . . . basic psychological
process[],” such as “attention” or “visual processing.” The SLI
classification encompasses children with speech impediments or
language fluency issues not due to unfamiliarity with English. See IEP
Eligibility, L.A. UNIFIED SCH. DIST. (last visited Jan. 25, 2016),
http://achieve.lausd.net/Page/3346.
SMITH V. LAUSD 13
enrollment in these centers accounted for a very small
percentage of disabled student enrollment in LAUSD. 5
Based on Class Counsel’s abandonment of its plan to
eliminate special education centers and the language in the
MCD which specifically guaranteed their retention, the
parent group agreed not to intervene.
LAUSD initially made significant progress towards
Outcome 7. By September 2007, placement of disabled
children included in Outcome 7 in general education classes
for at least 40 percent of the school day had increased from
29 percent to 47 percent—though it turned out that this
reported progress was somewhat inflated. 6 Declaration of
5
In 1998 (several years before the adoption of the Consent Decree)
only 5,298 of the roughly 80,000 students in LAUSD who received
special education were enrolled in special education centers. By June
24, 2012, enrollment in special education centers had fallen to 2,190—
though enrollment in Non-Public Schools increased over the same time
period. Indeed, at least half the reduction in enrollment in special
education centers from 1998 to 2012 was offset by increased enrollment
in Non-Public Schools, enrollment in which increased 47 percent
between 1998 and 2012 (from 3,101 to 4,552).
6
A review of students’ actual class schedules revealed that
administrators were “overestimat[ing]” the time disabled students were
spending in general education classes in order to create the appearance
that these targets were being met. See, e.g., Independent Monitor’s
Annual Report for the 2008–2009 School Year. Indeed, the Independent
Monitor’s September 29, 2010 report noted three years of “increasing[]
overestimat[ion] [of] the number and percentage of students in the
general education setting for 40% or more of the day.” (The Independent
Monitor’s Annual Report for the 2009–2010 School Year explained: “As
noted in previous reports, a primary contributing factor to these
discrepancies is that schools appear to be entering a percent of time
below 60% in special education without regard or consideration of the
student’s [actual] class schedule.”). See also Independent Monitor’s
Annual Report for the 2010–2011 School Year (stating the same).
14 SMITH V. LAUSD
Frederick J. Weintraub (“Weintraub”), the Independent
Monitor, ¶ 7. But as the pool of disabled students included
in Outcome 7 who spent most or all of their day outside
general education classes and schools dwindled, it became
increasingly difficult for LAUSD to identify students for
whom greater integration was possible and beneficial.
Difficulties complying with Outcome 7 led to renewed
negotiations in September 2008 between Class Counsel, the
LAUSD, and the Independent Monitor, who ultimately
adopted a two-part modification to Outcome 7 (termed
“Outcome 7A” and “Outcome 7B,” or collectively,
“Modified Outcome 7”). Weintraub Decl. ¶¶ 8, 9. Modified
Outcome 7 reduced the integration targets imposed by
original Outcome 7 by exempting from compliance disabled
students aged 18 to 22 and significantly reducing the
percentage of students with orthopedic disabilities who were
required to attend general education classes.
LAUSD remained unable to meet Outcome 7, even as
modified. The Independent Monitor ultimately concluded in
its February 17, 2012 report that meeting Modified Outcome
7 “would require the arbitrary transfer of a significant
number of . . . students” from special education centers to
general education campuses, an approach the Independent
Monitor had never endorsed, see, e.g., Independent
Monitor’s Annual Report for the 2010–2011 School Year
(“As noted in past reports, . . . [efforts to integrate special
education students as required by Outcome 7] should be in
the best interest of the student and not solely motivated by
progress on this [integration] outcome.”).
Commencing in October 2011, yet another round of
negotiations between the parties and the Independent
Monitor ensued. This led to an amendment to the MCD
memorialized in a stipulation executed September 14, 2012
SMITH V. LAUSD 15
(“Renegotiated Outcome 7”). Renegotiated Outcome 7
provided that LAUSD would be deemed fully compliant
with Modified Outcome 7 if it accomplished two new goals:
(a) a flat 33 percent decrease in special education center
enrollment by June 2015; 7 and (b) integration of all
“[s]tudents with moderate to severe disabilities at co-located
schools” into “general education classes an average of 12%
of the instructional day and during lunch, breaks/recess and
school-wide activities.” 8 As described in detail below, the
implementation of Renegotiated Outcome 7 in the 2013–14
school year brought substantial changes to the educational
opportunities afforded children who attended (or sought to
attend) special education centers in 2012. By 2014, over 8
of LAUSD’s 18 special education centers had been closed to
7
This would represent a reduction of approximately 650 disabled
students from schooling in special education centers, based on June 2012
enrollment statistics.
8
We remain unable to decipher the precise meaning of “co-located”—
an amorphous term used by LAUSD in 2012 and 2013 to describe its
implementation of Renegotiated Outcome 7. At times, LAUSD used the
word “co-located” in lieu of “closed” to refer to a special education
center which has undergone the physical transfer of all its students and
resources from the special education center to a general education school
(e.g., with respect to the closure of Blend Special Education Center for
the Blind). At other times, “co-located” was used to describe special
education centers that shared a physical border with a general education
campus (e.g., in the case of Banneker Special Education Center). By
2014, LAUSD interpreted Renegotiated Outcome 7’s requirement that
students at “co-located schools” spend an average of 12 percent of their
day in general education classes as applying to disabled students at 13 of
LAUSD’s 18 special education centers. Sometimes this meant the
complete closure of a special education center; other times it meant the
transfer of disabled students to a general education school for some part
or all of the school day.
16 SMITH V. LAUSD
enrollment to disabled children under the age of 18. Parents
of affected students were not invited to participate in the
LAUSD/Class Counsel/Independent Monitor negotiations,
which commenced in October 2011, supra p.14, nor were
their viewpoints solicited in the negotiation, adoption, or
implementation phases of Renegotiated Outcome 7. 9
LAUSD did not start notifying parents of children
affected by Renegotiated Outcome 7, or provide any
information as to how it intended to accomplish
Renegotiated Outcome 7’s dual mandates, until Spring 2013.
As explained below, LAUSD’s notice varied significantly,
but bore certain common themes.
Appellants whose children had attended Blend Special
Education Center for the Blind (“Blend”) were generally told
during individual parent IEP meetings in Spring 2013 that
placement at Blend (or any other special education center)
was no longer an option for their child; the Blend faculty and
student body was being relocated in its entirety to a general
education school.
About the same time, parents of children attending
Banneker Special Education Center (“Banneker”) were told
that their school would be “co-located” with Avalon Gardens
Elementary (“Avalon Gardens”), a general education
campus, starting in the 2013–14 school year. At the
9
In fact, the Independent Monitor’s reports treated parental resistance
to increased placement of severely disabled students on general
education campuses as an obstacle to be overcome. See, e.g.,
Independent Monitor’s Annual Report for the 2010–2011 School Year
(instructing that “the District is encouraged to continue its work with
families to explore existing and new classes on general education
campuses. While families may resist, it is important they be exposed to
options available outside of special education centers”).
SMITH V. LAUSD 17
commencement of the 2013 school year, parents learned that
this meant that students enrolled in Banneker would be
transported to Avalon Gardens for an average of 12 percent
of their instructional day for “integration activities.” In
February 2014 (after the motion to intervene at issue in this
case was filed), Banneker parents learned that LAUSD
would be closing Banneker altogether and relocating its
student body to Avalon Gardens starting in the 2014–15
school year. See Mina Lee Request for Judicial Notice (“Lee
RJN”), Exh. A (Feb. 14, 2014 letter), Exh. E (March 21,
2014 letter from LAUSD explaining that Banneker, which,
among other things, had offered one of the district’s primary
“mentally retarded severe” (“MRS”) programs for school-
aged special education children, was being transitioned into
a Career Transition Center, a school that teaches vocational
and basic living skills to young adults aged 18 to 22). 10
10
Both sets of Appellants have requested this court take judicial notice
of various letters created and sent by the executive director of LAUSD
to Appellants, as well as annual reports issued by the Independent
Monitor. Both the letters and the reports summarize LAUSD’s progress
in implementing Renegotiated Outcome 7, and both post-date
Appellants’ motions to intervene, so it would have been impossible for
Appellants to have included such letters and reports in support of their
original motions. LAUSD does not dispute the authenticity or veracity
of any of these documents. Cf. Fed. R. Evid. 201 (courts may take
judicial notice of facts only if their veracity “cannot reasonably be
questioned”). Moreover, courts routinely take judicial notice of letters
published by the government (and here, the executive director of
LAUSD was a government employee), see, e.g., Cactus Corner, LLC v.
U.S. Dept. of Agriculture, 346 F.Supp.2d 1075 (E.D. Cal. 2004), as well
as “records and reports of administrative bodies,” see Interstate Natural
Gas Co. v. S. Cal. Gas. Co., 209 F.2d 380, 385 (9th Cir. 1953). We
therefore find Appellants’ documents can be judicially noticed and grant
Appellants’ motions for judicial notice.
18 SMITH V. LAUSD
Notice to parents of disabled children attending
Lanterman Special Education Center (“Lanterman”) took
the form of a field “trip slip” that was circulated to parents
in the Fall of 2013—about a year after the adoption of
Renegotiated Outcome 7. The “trip slip” purported to seek
temporary authorization to transport Lanterman students to
a general education school for an integration “test.”
Appellants have offered evidence that LAUSD used the field
trip slips to justify the permanent and daily transportation of
Lanterman students to general education classes.
Affidavits submitted by parents of children who were
previously enrolled full-time at Lull Special Education
Center, Lokrantz Special Education Center, and McBride
Special Education Center contain accounts similar to those
described by Blend and Banneker parents.
Aside from the different types of individualized notice
related above, Executive Director of Special Education in
LAUSD, Sharyn Howell, circulated a letter on May 21, 2013
to the “LAUSD Community” (the “Howell Letter”),
announcing that Modified Outcome 7 had been again
renegotiated on September 14, 2012 and that, as a result, a
“reduc[tion] [in] the number of students with moderate to
severe disabilities ages 6–18 at segregated special education
centers” would occur. The Howell Letter indicated that four
special education centers (Banneker, Blend, McBride, and
Miller) would be affected in the 2013–14 school year. The
letter further explained that all pre-school-aged special
education students would be sent to general education
schools, rather than to special education centers. See Aguilar
Decl. ¶ 7 (noting declining enrollment in several special
education centers as a result of the district’s new policy
against permitting new student enrollment); see also Berrios
Decl. ¶¶ 6–7 (stating the same).
SMITH V. LAUSD 19
As the Howell Letter indicated, 2013 was a year of great
changes. Even those Proposed Intervenors who received
notice through IEP meetings in Spring 2013 that their
children would receive “integration opportunities” in the
coming school year were left uncertain as to the actual
effects on them of Renegotiated Outcome 7. See, e.g., J.
Flores Decl. ¶ 9. Many parents, particularly those for whom
English is a second language, were incorrectly led to believe
that the services and curriculum offered their children would
remain the same despite the transfer to a new school. See,
e.g., J. Flores Decl. ¶ 12; A. Flores Decl. ¶ 4; Lee Decl. ¶ 6;
Chamu Decl. ¶¶ 4–5. Many parents claim simply not to have
appreciated the effects of the changes until their children
began coming home after school with bruises and other
injuries in late August and September of 2013—injuries
Appellants’ children suffered while in general education
schools. See, e.g., J. Flores Decl. ¶ 11; A. Flores Decl. ¶ 6;
Hernandez Decl. ¶¶ 3–4; Chamu Decl. ¶ 6; Hernandez Decl.,
Exh. E (photographs of injuries); J. Flores Decl., Exh. C
(photographs of injuries). Parents also discovered in Fall
2013 that the general education campuses to which their
children (and over 500 other moderately to severely disabled
children) were being transferred had not been adapted,
through tangible construction alterations, to provide a safe
and effective learning environment, as memorialized in the
Independent Monitor’s October 2014 Report. See Munoz
RJN, Exh. 1, p. 4.11
11
Much of the necessary alteration was not scheduled to start until the
summer of 2015. The Independent Monitor’s report following the 2013–
14 school year also noted a number of “questionable” planning decisions
that seemed unlikely to safeguard the health and safety of disabled
students even after renovations were completed. Id. For example, areas
designated for “[diaper] changing, feeding and health care protocols”
20 SMITH V. LAUSD
These discoveries came shortly after small group
meetings between Stephen Maseda (who became counsel to
the Mina Lee Proposed Intervenors), April Munoz (an
Appellant), unspecified LAUSD board members, Howell,
the Independent Monitor, and Class Counsel on August 2
and 5, 2013, respectively. Maseda Decl. ¶¶ 10–13; Munoz
Decl. Munoz and Maseda concluded that neither LAUSD
nor Class Counsel represented their interests or believed that
special education centers should be a part of the continuum
of special education opportunities available to disabled
children in LAUSD.
On October 15, 2013, and October 23, 2013, seventy-one
and seventy-nine days after concluding their interests were
not being represented by LAUSD or Class Counsel,
respectively, two groups of parents (the April Munoz
Proposed Intervenors and the Mina Lee Proposed
Intervenors) moved to intervene “individually and on behalf
of all other persons similarly situated” as a matter of right,
see Fed. R. Civ. Proc. 24(a), or, in the alternative, under Rule
24(b) (permissive intervention). Appellants’ cases were
consolidated, and the district court denied both motions on
January 16, 2014. The court rejected Appellants’ Rule 24(a)
motion to intervene as a matter of right as untimely or,
“were located inside classrooms that lacked running water and
drainage”; special education classrooms were placed “over 350 feet”
from bathrooms scheduled to be renovated to accommodate disabled
children; the placement of bus drop-offs and lunch areas required blind
children “to navigate slopes, uneven steps, tripping hazards and
protruding objects” to get to class; visually impaired children were also
placed in “an isolated part of the campus with inaccessible bathrooms.”
Id. Exh. 1, p. 4; Exh. 2, p. 3.
SMITH V. LAUSD 21
alternatively, as unnecessary to protect Appellants’
interests. 12
II. LEGAL ANALYSIS
A. Standard of Review
Appellants appeal the denial of their motion to intervene
as a matter of right pursuant to Rule 24(a)(2). An applicant
for intervention under Rule 24(a)(2) must establish four
elements: (1) that the prospective intervenor’s motion is
“timely”; (2) that the would-be intervenor has “a
‘significantly protectable’ interest relating to . . . the subject
of the action,” (3) that the intervenor is “so situated that the
disposition of the action may as a practical matter impair or
impede [the intervenor’s] ability to protect that interest”; and
(4) that such interest is “inadequately represented by the
parties to the action.” Freedom from Religion Found., Inc.
v. Geithner, 644 F.3d 836, 841 (9th Cir. 2011) [hereinafter
“FFRF”]. Though the applicant bears the burden of
establishing these elements, we have repeatedly instructed
that “the requirements for intervention are [to be] broadly
interpreted in favor of intervention.” United States v. Alisal
Water Corp., 370 F.3d 915, 919 (9th Cir. 2004); see also
Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1179
(9th Cir. 2011) (en banc) (noting that “[a] liberal policy in
favor of intervention serves both efficient resolution of
issues and broadened access to the courts” (quoting United
12
The court also rejected Appellant Rule 24(b) motion for permissive
intervention as untimely. In the alternative, it “exercise[d] its discretion
to deny” permission intervention on the grounds that it would prejudice
existing parties and “open the floodgates to additional proposed
intervenors.”
22 SMITH V. LAUSD
States v. City of Los Angeles, 288 F.3d 391, 397–98 (9th Cir.
2002) (alteration in original)).
A lower court’s denial of a motion to intervene is
reviewed de novo, except that its timeliness determination is
reviewed for abuse of discretion. Alisal, 370 F.3d at 918–
19. A court abuses its discretion if it fails to apply the correct
legal rule or standard. United States v. Hinkson, 585 F.3d
1247, 1262 (9th Cir. 2009) (en banc). And even “[i]f the trial
court identified the correct legal rule,” we may find an abuse
of discretion if the court’s application of that rule was
“(1) illogical, (2) implausible, or (3) without support in
inferences that may be drawn from the facts in the record.”
Id. (internal quotation marks omitted).
B. Timeliness
Timeliness is determined by the totality of the
circumstances facing would-be intervenors, with a focus on
three primary factors: “(1) the stage of the proceeding at
which an applicant seeks to intervene; (2) the prejudice to
other parties; and (3) the reason for and length of the delay.”
Alisal Water, 370 F.3d at 921. In analyzing these factors,
however, courts should bear in mind that “[t]he crucial date
for assessing the timeliness of a motion to intervene is when
proposed intervenors should have been aware that their
interests would not be adequately protected by the existing
parties.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999). As explained below, the district court’s analysis did
not follow this basic principle. We accordingly hold that the
court abused its discretion in finding Appellants’ motions
untimely under the totality of the circumstances of this case.
SMITH V. LAUSD 23
1. Stage of the Proceedings
It is true that Appellants seek to intervene in this action
approximately twenty years after its commencement, and
seventeen years after the adoption of the first Consent
Decree. However, in analyzing the “stage of the
proceedings” factor, the “[m]ere lapse of time alone is not
determinative.” United States v. State of Oregon, 745 F.2d
550, 552 (9th Cir. 1984). Where a change of circumstances
occurs, and that change is the “major reason” for the motion
to intervene, the stage of proceedings factor should be
analyzed by reference to the change in circumstances, and
not the commencement of the litigation. See id.We previously applied this rule in State of Oregon,
where the State of Idaho moved to intervene in litigation
between the States of Washington and Oregon and various
Indian Tribes, fifteen years after the commencement of that
action in 1968, and five years after a settlement had been
reached in 1977. Id. at 551–52. Notwithstanding the
substantial lapse in time, we held that the “stage of
proceedings” factor supported a finding of timeliness
because a “change of circumstance” had occurred in 1982—
two Indian tribes had given “notice of their intent to
withdraw from the [settlement] or to renegotiate it” which
created “the possibility of new and expanded negotiations.”
Id. at 552. We concluded that this change in circumstances
weighed in favor of a finding that the State of Idaho’s August
1983 motion to intervene was timely. Id. at 552–53 (holding
that the district court abused its discretion in denying the
motion to intervene as untimely).
Here, the district court’s conclusory determination that
Renegotiated Outcome 7 did not constitute a change in
circumstances because it “appears to be just another
24 SMITH V. LAUSD
modification to the MCD aimed at further integration,” was
contrary to any plausible interpretation of the record.
Perhaps viewed as a progression towards “integration,”
Renegotiated Outcome 7 represented only “another step” in
LAUSD’s march toward the goal of greater integration of
disabled children in LAUSD’s schools; attempts—some
successful, some not—toward integration had been
occurring since the adoption of the original Consent Decree.
But the record demonstrates that Renegotiated Outcome 7
caused a substantial change in the educational opportunities
afforded the group of disabled students of the LAUSD who
attended special education centers prior to 2013—namely,
the group now seeking to intervene.
From 1993 to 2012, LAUSD operated approximately 18
special education centers throughout the school district, and
it offered full-time placement at those schools for children
whose IEPs so recommended. During that time, the
placement of these students (including, at times, the transfer
of a student from a special education center to a general
education school) was conducted through case-by-case
assessments of individual students, by IEP teams and with
parental involvement and consent; indeed, parents retained
some influence over, and input into, their child’s placement,
including the opportunity to object during the IEP process to
their child’s removal from a special education center. 13 See,
13
For example, the Independent Monitor’s 2010-11 Report indicated
that, of the “95 children identified as potential students to transition”
from special education centers to general education campuses, only 27
were actually transferred. The Independent Monitor attributed the low
transfer rate to parental resistance to the removal of their children from
special education centers.
SMITH V. LAUSD 25
e.g., Efron Decl. ¶¶ 34–36; Gliona Decl. ¶¶ 6, 8, 10;
Ayapana Decl. ¶¶ 4–5.
Since Renegotiated Outcome 7, however, severely
disabled children have been transferred en masse to general
education campuses, over parental objections. At least 8 of
the 18 special education centers have been closed to
enrollment by Appellants and similarly situated disabled
students. 14 Appellants have offered evidence that parents
are not consulted in the development of their child’s IEP.
Rather, they are told that placement in a special education
center is no longer an option. If they disagree with a
predetermined placement, their only recourse is to file an
administrative appeal. See, e.g., Maseda Decl. ¶ 7; Lee Decl.
¶ 4; J. Flores Decl. ¶ 13; A. Flores Decl. ¶ 4; Gliona Decl.
14
As discussed above, Blend Special Education Center for the Blind
was the first special education center to close. LAUSD disputes that the
transfer of all students, teachers, assistants, and curriculum materials
from a special education center to a general education campus constitutes
the “closure” of a special education center. We reject this slight on the
meaning of words. For all practical purposes, the complete transfer of
students, teaching staff, and resources from a school is a closure of that
school, at least as to those students and that teaching staff. Moreover,
letters prepared by LAUSD demonstrate that at least seven more special
education centers have followed suit: A letter dated March 3, 2014 from
LAUSD to parents of students at Lull Special Education Center
explained that the school’s “teachers, assistants and classroom materials”
would be “relocated to Northridge Middle School,” a general education
school. Lee RJN, Exh. B. A letter dated March 21, 2014 (again, from
the school district) announced that at the commencement of the 2014–15
school year six more of LAUSD’s remaining special education centers
(Banneker, Salvin, Willenberg, Marlton, Leichman, and Perez) would be
converted into “Career Transition Centers.” Lee RJN, Exh. E (also
explaining that “[t]his transition means that our 7–11 graders will be
relocated to other campuses”). As noted, Career Transition Centers are
schools that teach children ages 18 to 22 basic job and independent living
skills.
26 SMITH V. LAUSD
¶¶ 8–9, 11, 15–17; Goldberg Decl. ¶ 4. Starting in 2013,
LAUSD began conducting individual student and parent IEP
meetings with an attorney present. See Gliona Decl. ¶ 8;
Gliona Decl. ¶ 7. Whereas the 2003 MCD had stated that
special education centers were an important part of the
“continuum” of educational opportunities available to
disabled children, LAUSD Executive Director of Special
Education, Sharyn Howell, has now taken the position that
special education centers are unnecessary because the
district can “provide all supports and services . . . at a general
education site.” Howell Decl. ¶ 4.
Additionally, the record indicates that most, if not all,
students formerly enrolled full-time in special education
centers (regardless of whether their schools have been
closed) are now required to spend an average of 12 percent
of their instructional day in general education classes—most
frequently physical education, music, theater, and art
classes. This curriculum change has been imposed on
students whose individual IEPs previously recommended
full-time placement in a special education center. 15
In short, if the “possibility” of negotiations constituted a
change of circumstances in State of Oregon, then LAUSD’s
15
For example, J.R.C. is blind, cannot communicate verbally, and is
severely developmentally delayed; yet starting in the 2013–14 school
year, he was required to attend “integrated” physical education classes
over his parents’ objection that such integration is not safe. Chamu Decl.
¶ 9; see also Gliona Decl. ¶ 5 (offering a comparison of J.R.C.’s IEP with
the State of California’s standards for the general education classes in
which J.R.C. is now enrolled, and asserting that general education
classes are incompatible with any reasonable reading of J.R.C.’s IEP).
To give another example, S.L., who is blind and deaf, is required to
attend general education music and physical education classes pursuant
to Renegotiated Outcome 7. Lee Decl. ¶ 5; see also Fazzi Decl. ¶ 7.
SMITH V. LAUSD 27
adoption of a flat quota requiring the reduction of special
education center enrollment by 33 percent, since it has led to
an overhaul of LAUSD’s approach to educating its
moderately to severely disabled students enrolled in special
education centers in LAUSD, is all the more so a “change in
circumstances,” at least as to Appellants.
As in State of Oregon, the adoption of Renegotiated
Outcome 7 in 2012 marked the commencement of a “new
stage” in the Chanda Smith Litigation. For purposes of the
“stage of proceedings” analysis, it is critical that Appellants
have moved to intervene to challenge only Renegotiated
Outcome 7 and the manner by which it has been
implemented—in other words, the most current stage of the
Chanda Smith Litigation. Appellants are not seeking to
reopen decades of litigation. Thus, it was error to measure
the timeliness of Appellants’ motions by reference to stages
of litigation pre-dating the change in circumstances that
motivated Appellants’ motion to intervene. See, e.g.,
Natural Resources Defense Council v. Costle, 561 F.2d 904,
907 (D.C. Cir. 1977) (cited with approval in State of Oregon,
745 F.2d at 552) (“[T]he amount of time which has elapsed
since the litigation began is not in itself the determinative
test of timeliness. Rather, the court should also look to the
related circumstances, including the purpose for which
intervention is sought . . . .” (first alteration in original)). 16
16
In Costle, the Natural Resources Defense Council sued the
Environmental Protection Agency (“EPA”) and successfully negotiated
a settlement whereby the EPA was required to establish regulations
governing water pollution. Id. at 906. Rubber and chemical companies
sought to intervene at the time of settlement to participate in the oversight
and implementation of the settlement agreement. Id. at 907. The
appellate court held that the district court had abused its discretion in
denying the companies’ Rule 24(a)(2) motion to intervene, because the
28 SMITH V. LAUSD
In failing to analyze timeliness in light of the change in
circumstances detailed above, the district court abused its
discretion by failing to apply the correct legal rule. See
Hinkson, 585 F.3d at 1262.
Our holding that Renegotiated Outcome 7 constituted a
“change in circumstances” is confined to the specific facts
of this case. The systematic change in circumstances that
occurred here, coupled with the fact that (as discussed
further below), Appellants moved to intervene as soon as
reasonably practicable following such change, serves to
distinguish the present case from the sole authority cited by
the district court, Delaware Valley Citizens’ Council for
Clean Air v. Commonwealth of Pennsylvania, 674 F.2d 970,
974–75 (3d Cir. 1982). 17
purpose of the intervenors’ motion related to the current stage of the
proceedings and was therefore timely, notwithstanding appellants’ three-
year delay in moving to intervene since the commencement of the
litigation. Id. at 906–08.
17
In Delaware Valley, a group of Pennsylvania state legislators sought
to intervene in a high-profile lawsuit against the State of Pennsylvania
and various state entities to compel the passage of legislation related to
automobile emissions pursuant to the Clean Air Act. Id. at 971–72. They
did so almost two years after the execution of a consent decree requiring
the passage of emissions legislation. Id. Though the Third Circuit did
not give precise dates, it reasoned that the legislators were or should have
been on notice of the suit, and the consent decree, well before they
moved to intervene. Id. at 974–75 (explaining that one prospective
intervenor had even proposed legislation pursuant to the consent decree).
The court found the sole justification offered for the legislators’ delay—
that they were “busy”—insufficient. Id. at 975. The court further
rejected the legislators’ argument that their motion was timely simply
because it was filed 45 days after the first modification to the consent
decree. Id. at 974. The court reasoned that the modification did not make
the motion timely because “none of the circumstances or facts upon
SMITH V. LAUSD 29
In sum, the stage of proceedings factor weighs in
Appellants’ favor.
2. Prejudice to Other Parties
We have previously held that prejudice to existing
parties is “the most important consideration in deciding
whether a motion for intervention is untimely.” State of
Oregon, 745 F.2d at 552. We have also recognized that
courts may find prejudice on the basis of non-monetary
factors: For example, if granting a belated motion to
intervene would threaten the delicate balance reached by
existing parties after protracted negotiations, this factor may
weigh against intervention. See, e.g., Cty. of Orange v. Air
Cal., 799 F.2d 535, 538 (9th Cir. 1986). However, we
emphasized in State of Oregon that the only “prejudice” that
is relevant under this factor is that which flows from a
prospective intervenor’s failure to intervene after he knew,
or reasonably should have known, that his interests were not
being adequately represented—and not from the fact that
including another party in the case might make resolution
more “difficult[].” 745 F.2d at 552–53; see also Stallworth
v. Monsanto Co., 558 F.2d 257, 267 (5th Cir. 1977) (“With
respect to the second factor, the district court again applied
an incorrect legal standard. For the purpose of determining
whether an application for intervention is timely, the
relevant issue is not how much prejudice would result from
which appellants base their claim for relief have changed since the
[unmodified] consent decree was entered.” Id. at 975. Moreover, the
proposed intervenors were not seeking to intervene to challenge the
modification, but rather sought to “scrap[]” the original consent decree
itself. Id. Under the totality of these circumstances, the Third Circuit
concluded, the district court had not abused its discretion in denying the
legislators’ motion to intervene as untimely. Id.30 SMITH V. LAUSD
allowing intervention, but rather how much prejudice would
result from the would-be intervenor’s failure to request
intervention as soon as he knew or should have known of his
interest in the case.”).
In State of Oregon, various Indian tribes and the States
of Washington and Oregon argued that permitting the State
of Idaho to intervene in litigation fifteen years after the
commencement of the litigation regarding the regulation of
fishing would jeopardize the existing parties’ negotiations.
745 F.2d at 552–53. We rejected this argument. We found
no prejudice because “the existing parties’ concerns have
little to do with timeliness. They do not suggest that their
problems are materially different now than they would have
been had Idaho sought to intervene a decade or more ago.”
Id. at 553. We therefore reversed the lower court’s denial of
the State of Idaho’s motion to intervene. Id.As in State of Oregon, the district court’s finding of
prejudice here was untethered to any prejudice which was
caused by Appellants’ delay. The district court reasoned that
permitting intervention “would prolong the litigation,”
because it would “upset the delicate balance the Parties and
the Independent Monitor have sought and achieved through
careful negotiation and research” in devising Renegotiated
Outcome 7 (chronicling the lengthy negotiations of
Renegotiated Outcome 7 between Class Counsel, the
Independent Monitor, and Dr. David Rostetter, a special
education expert, which culminated in Renegotiated
Outcome 7). But this is merely an argument that permitting
the parties who concluded they were detrimentally affected
in 2013 by Renegotiated Outcome 7 to participate in its
negotiation and implementation would make achieving
resolution more difficult, given the parties’ competing
interests. Because this would be true regardless of when the
SMITH V. LAUSD 31
intervention occurred, it is unrelated to timeliness, and
cannot support a finding of prejudice under State of Oregon.
The district court also cited LAUSD’s expenditure of
resources in transferring special education students,
programs, and resources to general education schools and
campuses. That would be relevant had Appellants failed to
act in the face of reasonable notice from LAUSD of its plans
to close special education centers en masse and had LAUSD
invested significant resources in reliance on that delay. Cf.
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“The
crucial date for assessing the timeliness of a motion to
intervene is when proposed intervenors should have been
aware that their interests would not be adequately protected
by the existing parties.”).
But that is not what happened here. LAUSD parents
were excluded from the negotiations that led to the adoption
of Renegotiated Outcome 7 in September 2012. And in the
year between the adoption of Renegotiated Outcome 7 and
its initial implementation in August 2013, Appellants were
consistently uninformed or misinformed as to the existence
and true effects of Renegotiated Outcome 7. 18 The Fifth
Circuit has recognized, and we agree, that existing parties
cannot complain about delay or prejudice caused by their
18
Some parents were told that the district was merely changing the
name of their child’s school. Others were more accurately told that their
child would be transferred to a general education school or campus, but
assured that their child’s curriculum would remain the same in all
respects. Of course, neither of these statements were accurate given the
new requirement that special education center students be “integrated”
in general education classes for lunch, recess, and 12 percent of the
instructional day. Nor did these statements reasonably put Appellants on
notice that LAUSD would be outright closing eight special education
centers by the end of 2014.
32 SMITH V. LAUSD
own efforts to thwart the provision of meaningful notice to
affected parties. See Stallworth, 558 F.2d at 267 (holding
that a district court abused its discretion in finding a motion
to intervene untimely where an existing party had previously
prevented notice to affected parties).
That principle has particular application here, where the
consequences of Renegotiated Outcome 7 were uniquely
within LAUSD’s knowledge and control, given that LAUSD
was its implementing party. Instead of clearly apprising
affected parents as to how LASUD intended to implement
the changes precipitated by Renegotiated Outcome 7,
LAUSD issued incomplete information throughout 2013.
As a result, the full extent of Renegotiated Outcome 7 was
not revealed until 2014 and 2015—well after Appellants’
filing in Fall 2013 of the supposedly untimely motion to
intervene at issue in this appeal. 19
19
To illustrate, the first district-wide notice of Renegotiated Outcome
7, the Howell Letter circulated on May 21, 2013, indicated that the
district would be developing “integration plans” to “co-locate[]” four
special education centers (Banneker, Blend, McBride, and Miller) with
four “general education pioneer counterparts (Avalon Gardens, Van
Ness, Grand View, and Cleveland SH, respectively).” It described in
glowing terms the district’s plans to offer integration “opportunit[ies]”
through “arts,” “physical education,” and “social activities . . . to
increase the integration of . . . students with disabilities.” Critically, it
promised that LAUSD would be “working with school site staff and
families to analyze the Individualized Education Programs (IEPs) of
students with disabilities to determine how to most effectively increase
the integration of students based on their individual needs.” (emphasis
added). Nowhere does the May 2013 letter indicate that, just one year
later, LAUSD would be closing approximately half of its special
education centers, without any prior “working with . . . families.”
SMITH V. LAUSD 33
When our inquiry is properly narrowed to the prejudice
attributable to Appellants’ delay in moving to intervene after
the time Appellants knew, or reasonably should have known,
that their interests were not being adequately represented by
existing parties, the prejudice to existing parties becomes
nominal at best. Indeed, neither the district court nor
LAUSD has pointed to any evidence whatsoever of
additional costs or other prejudice suffered between August
2013 and October 2013. The district court accordingly
abused its discretion in concluding that this factor weighed
against intervention.
3. Reason for and Length of the Intervenor’s Delay
For the reasons already explained above, the district
court erred to the extent it measured the length of
Appellants’ delay by reference to events pre-dating the time
at which Proposed Intervenors were reasonably on notice
The rhetoric used in the May 2013 letter can be sharply contrasted
with the notice provided to parents in 2014—notably, after the motion to
intervene at issue in this appeal was filed. Letters sent to parents of
students at various special education centers in February of 2014, for
example, state that all the “teachers, assistants and classroom materials
are expected to re-locate” from various special education centers to
general education campuses. See Lee RJN Exh. A (Letter to Banneker
parents); see also id. Exh. B (Letter to parents of students attending Lull
Special Education Center); Exh. C (Letter to parents of students
attending Perez Special Education Center); Exh. E (Letter to parents of
Banneker and Doyle special education centers, explaining that “[t]he
district . . . has decided to continue transitioning the Special Education
Schools to Career Transition Centers. For the 2014–2015 school year,
the Special Education Schools becoming Career Transition Centers are:
Banneker, Salvin, Willenberg, Marlton, Leichman, and Perez . . . . This
transition means that our 7–11 graders will be relocated to other
campuses.”). Whatever “co-location” was supposed to mean, see supra,
n.8 that term had served its purpose; by 2014, it disappeared.
34 SMITH V. LAUSD
that their interests were not being adequately represented,
see Smith, 194 F.3d at 1052—and certainly to the extent the
court relied on events predating the change in circumstances
that prompted Appellants’ current motion to intervene. In
State of Oregon, for example, the “changed circumstances”
giving rise to the motion to intervene occurred “in 1982
when two of the Tribes gave notice of their intent to
withdraw from the Plan or to renegotiate it.” State of
Oregon, 745 F.2d at 552. Yet the proposed intervenors did
not file until late August 1983. Id. Despite at least an eight-
month delay (the opinion is not clear as to when in 1982 the
tribes gave the notice referenced above nor when the State
of Idaho received that notice), we held that the “reason for
and length of delay” factor weighed in favor of intervention.
Id. Similarly here, Appellants moved to intervene
approximately one year after the change in circumstances
prompting their motion but, as discussed below, only weeks
after definitively learning that their interests were not
adequately represented by the existing parties.
Here, not only was the district court’s analysis contrary
to law, it was contrary to the record before the court. For
example, the district court concluded that Appellants
“arguably have been on notice from the very beginning of
this litigation.” But how can that be true when many of the
Proposed Intervenors’ children had not even been born at the
inception of the litigation, let alone been born disabled?
The district court alternatively suggested that Proposed
Intervenors have been on notice of this action since 2002,
when a group of parents served Class Counsel with an earlier
motion to intervene. The court’s conclusions are logically
fallacious because most of the Proposed Intervenors did not
even have children enrolled in LAUSD in 2002—much less
SMITH V. LAUSD 35
in 1993 when this litigation commenced. 20 Appellants could
not possibly have been on notice that their interests were not
adequately represented prior to having any interest in this
litigation at all. The district court’s analysis therefore
incorrectly conflated the knowledge of an entirely different
group of parents with Appellants’ knowledge.
Nor should the fact that “the inclusion of special
education students into the general education program has
been a primary issue from the beginning of this case” have
placed Appellants on notice that intervention was necessary
to protect their interests prior to 2013. Both the 1996
Consent Decree and the 2003 MCD specifically required
LAUSD to maintain special education centers throughout
the district as placement options for moderately to severely
disabled children. Consistent with this mandate, LAUSD
continued to operate approximately the same number of
special education centers throughout the district from 1993
to 2013. That LAUSD continued to offer placement in
special education centers despite decades of discussions
about greater integration of disabled children in the general
education environment only contradicts the lower court’s
conclusion that the same discussions should have placed
Appellants on notice that LAUSD planned to start closing
special education centers en masse in 2013 and 2014—an
20
Appellant Lee’s and Ayapana’s children were 14 years old in
October 2013, making them only 4 in 2003. Appellant Moreno’s
daughter and Appellant J. Flores’ son were 10 years old in October 2013,
meaning they were newborns in 2003. The only potential exception is
Linda Buschini (a member of the April Munoz Proposed Intervenors),
who was a member of the parent group who sought to intervene in 2002.
Even so, Buschini’s involvement in 2002 could not reasonably have
placed her on notice of the change in circumstances that occurred in
2012, given that the 2003 MCD specifically guaranteed the retention of
special education centers.
36 SMITH V. LAUSD
action expressly prohibited by both the MCD and the
Consent Decree. Indeed, if anything, statements that
LAUSD was engaged in “discussions” to achieve greater
compliance with the MCD would have only reinforced
Appellants’ belief that LAUSD planned to continue to offer
special education centers as part of the “full continuum” of
services available to disabled students in LAUSD. LAUSD
now takes the position that the MCD does not require it to
maintain any particular number of special education centers,
and therefore its actions violate neither the MCD nor any
governing law. LAUSD’s argument misses the point. The
question before us is whether Appellants were reasonably on
notice that their interest in maintaining special education
centers as placement options for their children was not being
adequately represented by the existing parties to the Chanda
Smith litigation. We conclude that they were not on notice,
because Appellants reasonably construed the MCD as
ensuring the maintenance of the special education centers
their children attended. The district court therefore erred in
reaching a contrary conclusion. 21
21
Specifically, the district court cited a statement in the Independent
Monitor’s October 5, 2011 Annual Report that meeting one aspect of
Modified Outcome 7 “would require the arbitrary transfer of a significant
number of [multiple disabilities orthopedic] students. The Parties are
currently engaged in discussions to find a solution to this problem.” But
in context, this statement undercuts the district court’s conclusion. The
Independent Monitor certainly was not advocating the “arbitrary”
transfer of students; indeed, that would be contrary to the IDEA’s IEP
requirement. Thus, the Independent Monitor’s statement could not
reasonably be construed as notice that LAUSD intended to start
“arbitrarily” transferring special education students to general education
schools and campuses. Moreover, the Independent Monitor’s
acknowledgement that LAUSD had again failed to meet Outcome 7 was
nothing new. LAUSD had never met any version of Outcome 7; this
SMITH V. LAUSD 37
In short, only the district court’s finding that Appellants
variously received some form of notice in April, May, or
June of 2013 is reasonably supported by the record. Even
so, as discussed above, Appellants had not been privy to the
negotiations that led to Renegotiated Outcome 7, and the
initial information promulgated by LAUSD as to the
practical effects of Renegotiated Outcome 7 was incomplete.
Appellants therefore convincingly urge that they did not
realize until the August 5, 2013 meeting with Class Counsel
that their interests were not being adequately represented by
the existing parties to the Chanda Smith Litigation. The
district court even conceded that this “could constitute a
proper explanation for [Appellants’] delay—at least until
August 5, 2013.” We have no reason to disturb the court’s
finding in this regard.
However, the district court then proceeded to find no
valid excuse for Appellants’ additional delays of 71 and 79
days, respectively, between the August 5, 2013 meeting and
the October 15 and 23, 2013 filing dates of the motions to
intervene. We again reject the district court’s analysis as
contrary to law and an abuse of discretion in light of the
record in this case. Where—as here—both the first and
second timeliness factors weigh in favor of intervention, we
have found motions to be timely even in the face of longer
delays than are present here. 22 See, e.g., State of Oregon,
745 F.2d at 552.
prolonged failure is what led to numerous renegotiations of that
Outcome.
22
The off-point and non-binding authorities cited by the district court
do not counsel otherwise; those cases merely found unexcused delays of
four and five months, respectively, to weigh against a finding of
38 SMITH V. LAUSD
More importantly, the totality of the circumstances here
demonstrates that Appellants’ delay in filing between
August and October of 2013 was justified. It bears noting,
first of all, that only one Appellant (Munoz) appears to have
been present at the August 2013 meetings. And in any event,
the record is replete with evidence that—perhaps in no small
part due to the rosy language in which the changes were
portrayed by LAUSD—Appellants reasonably did not
appreciate the full import of Renegotiated Outcome 7,
including the changes to their children’s curricula and
learning environments, until classes actually began in
August of 2013, see, e.g., Moreno Decl. ¶ 3; J. Flores Decl.
¶¶ 9, 11; Buschini Decl. ¶ 8; Aguilar Decl. ¶ 4; Pineda Decl.
(explaining that Pineda did not realize the safety risk the new
learning environment posed to Pineda’s autistic son, V.P.,
until V.P. was found “walking alone a mile from the school”
due to understaffing in V.P.’s classroom and the lack of
special safety features at V.P.’s new general education
campus), or until their children began coming home from
school with injuries, see, e.g., J. Flores Decl. ¶ 11, Exh. C
(photographs of injuries); A. Flores Decl. ¶ 6; Hernandez
Decl. ¶¶ 3–4, Exh. E (photographs of injuries); Chamu Decl.
¶ 6. Many parents initially attempted informal resolution of
their disagreement with LAUSD as to their child’s
placement. See, e.g., Chamu Decl. ¶¶ 6, 10; J. Flores Decl.
¶ 10; Buschini Decl. ¶ 13. Several parents attended a
meeting on September 9, 2013, at which they inquired about
the new placement of their children. Even after it became
clear that intervention was necessary to protect Appellants’
interests, it simply took time to organize and gather evidence
to support Appellants’ motions to intervene. Appellants are
timeliness. See Key Bank of Puget Sound v. Alaskan Harvester, 738 F.
Supp. 398, 405 (W.D. Wash. 1989); Consolidated Edison Co. of N.Y. v.
Breznay, 683 F. Supp. 832, 836 (D.D.C. 1987).
SMITH V. LAUSD 39
not a sophisticated or unified body, but rather a consortium
of parents of special education students. See Stallworth,
558 F.2d at 264 (explaining that the “size and sophistication
of the would-be intervenor”—in that case, the NAACP—
was a relevant factor in determining timeliness). At least one
Appellant required translation services to prepare the
declaration submitted in support of one of the motions to
intervene. See Chamu Decl., Translator’s Declaration.
Taken together, the district court’s conclusion that
Appellants had offered no valid excuse or explanation for
their delay was contrary to the record and clearly erroneous.
The district court therefore committed legal error in failing
to find that the third timeliness factor weighs in favor of
intervention.
Notwithstanding our holding today, we emphasize that
this factor cannot be distilled into a bright-line rule. That is,
a delay of 71 or 79 days might, under different
circumstances, weigh against timeliness. We merely hold
today that, in light of all the circumstances presented here,
the district court abused its discretion in failing to recognize
that Appellants have justified their failure to move to
intervene prior to mid-October 2013.
Because all three factors weigh in favor of timeliness,
Appellants have established the first element for intervention
as a matter of right.
C. Protectable Interest
Second, Appellants must show that they have a
protectable interest in the Chanda Smith Litigation. LAUSD
does not challenge the district court’s finding that Appellants
have a protectable interest in receiving a free appropriate
public education in conformity with their children’s IEPs.
40 SMITH V. LAUSD
See 20 U.S.C. § 1412(a)(1)(A); Cal. Ed. Code § 5600, et seq.
We agree that this is a protectable interest and find the
second element for Rule 24(a) intervention to be established.
D. Practical Impairment
Third, Appellants must show that they are so situated that
the disposition of the action without Appellants may as a
practical matter impair or impede their ability to safeguard
their protectable interest. As an alternative basis for denying
Appellants’ motion to intervene, the district court found that
Appellants would “not suffer a practical impairment of their
interest in receiving a FAPE in accordance with their IEPs
because the adoption of [Renegotiated] Outcome 7 does not
deprive [Appellants] of special education centers as
placement options or violate the IEP assessment process.”
As a preliminary matter, we note that this statement is at least
partly contradicted by the record: A number of LAUSD’s
former special education centers are no longer accepting
enrollment of Appellants’ children and similarly situated
disabled students ages 6 to 18.
More to the point, the district court reasoned that denying
intervention would not practically impair Appellants’
protectable interest, given the availability of individual,
administrative due process proceedings for parents who
disagree with LAUSD’s placement of their child. See Cal.
Ed. Code § 56501, et seq. 23 We review the district court’s
23
Notably, the MCD “preclu[des] . . . any class member [from]
bringing any class action claim . . . concerning the District’s compliance
with IDEA or . . . concerning the provision of a free appropriate public
school education.” The MCD carves out a few exceptions, including for
administrative proceedings “to review the District’s compliance with its
obligation to provide a free appropriate public education to any
SMITH V. LAUSD 41
finding of no practical impairment to the putative class
action intervenors because of the availability of individual
remedies de novo, FFRF, 644 F.3d at 840, and conclude that
the district court erred.
Courts have long recognized the benefits conferred by
the class action mechanism over numerous individual
actions. Class actions are used to “vindicate[e] . . . the rights
of groups of people who individually would be without
effective strength to bring their opponents into court at all.”
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617
(1997). Particularly where, as here, injunctive relief is
sought, “[e]conomic reality dictates” that many challenges
to LAUSD’s placement of disabled children must “proceed
as a class action or not at all.” Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 161 (1974). In fact, a determination that the
class action vehicle provides a superior mechanism for
litigating LAUSD’s district-wide policies regarding the
education of its disabled student population was already
made at the commencement of the Chanda Smith
Litigation—itself a class action. The denial of intervention
here permits the Chanda Smith plaintiffs to pursue their
education policy goals with the benefit of the class action
mechanism, while denying Appellants the same. This result
does—as a practical matter—impair Appellants’ ability to
safeguard the interests of a sub-class of LAUSD students
seeking retention of special education centers as placement
options vis-à-vis Class Counsel’s and LAUSD’s interest in
eliminating them. The impairment is especially perverse
given that Appellants currently have children enrolled in
individual student.” (emphasis added). However, as members of the
Chanda Smith class, Appellants are precluded by the MCD from
bringing a separate class action challenging the legality of Renegotiated
Outcome 7.
42 SMITH V. LAUSD
LAUSD, while the named Chanda Smith plaintiffs’ children
have long since left.
Not only are individual administrative challenges a
comparatively inefficient and ineffective means of achieving
system-wide relief, 24 but the administrative proceedings
permit Appellants to challenge only the effects of
Renegotiated Outcome 7 on individual students—not the
legality of Renegotiated Outcome 7 itself. See Cal. Educ.
Code § 56501 (due process hearings are available to resolve
disagreements as to the proper placement of an individual
child). A collateral challenge on Renegotiated Outcome 7 is
an inferior means of protecting the interests of LAUSD’s
special education center population. Even if Appellants and
every single special education student transferred to a
general education campus pursuant to Renegotiated
Outcome 7 to date were able successfully to challenge that
placement through the administrative process, and even to
secure a court order requiring LAUSD to reopen each child’s
special education center, Renegotiated Outcome 7 would
still mandate a 33 percent reduction in the opportunity for
enrollment in special education centers. Thus, it would still
require LAUSD to identify and transfer 33 percent of the
special education center student population to general
education schools, in effect creating a revolving door of
transfers between special and general education campuses.
Of course, it is unlikely that all parents will undertake the
time and monetary investment necessary to challenge
LAUSD’s placement of their child. But that fact, again,
24
Practical considerations, including the allocation of limited
resources such as teachers and curriculum materials, also favor direct
intervention in the litigation that has led to the adoption of an allegedly
unlawful policy, rather than piecemeal efforts to avoid its effects.
SMITH V. LAUSD 43
leads us to conclude that the interests of the sub-class
Appellants seek to represent would be practically impaired
if intervention is denied and parents of special education
students are limited to individual challenges to LAUSD’s
placement of their children. We accordingly hold that
Appellants’ interest in ensuring the availability of special
education centers to LAUSD students (to the extent
consistent with IEP and FAPE requirements) would, as a
practical matter, be impaired if intervention is denied and
Appellants are precluded from directly challenging the
legality of Renegotiated Outcome 7 in the Chanda Smith
Litigation. To the extent there is any doubt as to Appellants’
establishment of this factor, our resolution of it in favor of
intervention is consistent with the rule that “the requirements
for intervention are [to be] broadly interpreted in favor of
intervention.” Alisal Water Corp., 370 F.3d at 919.
E. Inadequate Representation
There is no dispute that Appellants’ interests are
inadequately represented by the parties to this action: The
current parties’ interest in transferring students and
resources from special education centers to general
education campuses is diametrically opposed to Appellants’
interest in retaining the system that was in place prior to
Renegotiated Outcome 7. We have no difficulty finding this
element met. Cf. Trbovich v. United Mine Workers of Am.,
404 U.S. 528, 538 n.10 (1972) (noting that the fourth
element of Rule 24(a) intervention requires only a “minimal”
showing that existing parties’ representation “may be”
inadequate).
44 SMITH V. LAUSD
III.
In sum, Appellants have established all four elements of
intervention as of right under Rule 24(a).
We accordingly REVERSE the district court’s denial of
Appellants’ motion to intervene and REMAND for further
proceedings consistent with this opinion.