Chinyere Jenkins v. Hashina Webster

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No. 95-1823
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Chinyere Jenkins, by her next *
friend, Joi Jenkins; Nicholas *
Paul Winchester-Rabelier, by *
his next friend, Paula *
Winchester; Margo Vaughn-Bey, *
by her next friend, Franklin *
Vaughn-Bey; Nicholas C. Light, *
by his next friend, Marian *
Light; Stephon D. Jackson, by *
his next friend, B.J. Jones; *
Travis N. Peter, by his next *
friend, Debora Chadd-Peter; *
Leland Guess, by his next *
friend, Sharon Guess; *
*
Plaintiffs - Appellees, *
*
*
American Federation of * Appeal from the United States
Teachers, Local 691, * District Court for the
* Western District of Missouri.
Intervenor - Appellee *
*
Hashina Webster, by her parents *
and next friends Elaine and *
Ajamu Webster; Nia Webster, by *
her parents and next friends *
Elaine and Ajamu Webster; Alley *
Pope, by her parent and next *
friend Carol Coe; Kimberly *
Beasley, by her parents and *
next friends Arthur and *
Patricia Beasley; Arthur *
Beasley, by his parents and *
next friends Arthur and *
Patricia Beasley; Felicia *
Rhodes, by her parents and next *
friends Charles and Elizabeth *
Rhodes; Christina Gravley, by *
her parent and next friend Mona *
Hicks; Shara Kennedy, by her *
parent and next friend *
Ernestine Kennedy; Cassandra *
Young, by her parent and next *
friend Bea Sanders; Ajamu *
Webster; Elaine Webster; Carol *
Coe; Patricia Beasley; Mona *
Hicks; Ernestine Kennedy; Bea *
Sanders, as concerned parents, *
*
Intervenor - Plaintiffs - *
Appellants *
*
v. *
*
State of Missouri; Mel *
Carnahan, Governor of the State *
of Missouri; Bob Holden, *
Treasurer of the State of *
Missouri; Missouri State Board *
of Education; Peter Herschend, *
Member of the Missouri State *
Board of Education; Thomas R. *
Davis, Member of the Missouri *
State Board of Education; *
Robert E. Bartman, Commissioner *
of Education of the State of *
Missouri; Gary D. Cunningham, *
Member of the Missouri State *
Board of Education; Betty *
Preston, Member of the Missouri *
State Board of Education; *
Sharon M. Williams, Member of *
the Missouri State Board of *
Education; Russell Thompson, *
Member of the Missouri State *
Board of Education; Jacquelline *
Wellington, Member of the *
Missouri State Board of *
Education; School District of *
Kansas City; Paul V. Arena, *
Member of the Board of *
Directors; Walter L. Marks, *
Superintendent thereof; Dr. *
Julia H. Hill, Member of the *
Board of Directors; John A. *
Rios, Member of the Board of *
Directors; Darwin Curls, Member *
of the Board of Directors; *
Patricia Kurtz, Member of the *
Board of Directors; Edward J. *
Newsome, Member of the Board of *
Directors; Terry Hamilton- *
Poore, Member of the Board of *
Directors; Carol A. Shank, *
Member of the Board of *
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Directors; John W. Still, *
Member of the Board of *
Directors, *
*
Defendants - Appellees. *
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Submitted: September 12, 1995
Filed: March 6, 1996
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Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
Hashina Webster and her proposed co-intervenors1 appeal from an order
of the district court2 denying their motion to intervene as a matter of
right in the ongoing Kansas City, Missouri School District desegregation
litigation. The Webster group argues that the district court correctly
determined that its motion to intervene was timely, but that the court
erred in holding the group already had adequate means to protect its
interests without intervention. We affirm the order of the district court.
The Kansas City school desegregation litigation began in 1977 when
the KCMSD, the School Board, and the children of four board
1
The other proposed intervenors are Nia Webster, by her
parents and next friends Elaine and Ajamu Webster; Alley Pope, by
her parent and next friend Carol Coe; Kimberly Beasley, by her
parents and next friends Arthur and Patricia Beasley; Arthur
Beasley, by his parents and next friends Arthur and Patricia
Beasley; Felicia Rhodes, by her parents and next friends Charles
and Elizabeth Rhodes; Christina Gravley, by her parent and next
friend Mona Hicks; Shara Kennedy, by her parent and next friend
Ernestine Kennedy; Cassandra Young, by her parent and next friend
Bea Sanders; Ajamu Webster; Elaine Webster; Carol Coe; Patricia
Beasley; Mona Hicks; Ernestine Kennedy; and Bea Sanders.
2
The Honorable Russell G. Clark, Senior Judge, United States
District Court for the Western District of Missouri.
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members filed suit. The district court converted the suit into a class
action, making a plaintiff class of all present and future students of the
KCMSD. We affirmed the district court's finding of constitutional
violations by the KCMSD and the State of Missouri in Jenkins v. Missouri,
807 F.2d 657 (8th Cir. 1986) (en banc) (Jenkins I), cert. denied, 484 U.S.
816 (1987). We later considered the district court's remedy for these
constitutional violations in Jenkins v. Missouri, 855 F.2d 1295 (8th Cir.
1988) (Jenkins II), aff'd in part and rev'd in part, 495 U.S. 33 (1990).
In all, this court has heard over twenty appeals, including twelve dealing
with the remedy,3 four dealing with voluntary interdistrict transfer
plans,4 and four dealing with attorneys' fees.5 The Supreme Court has
heard this case three times. Missouri v.
3
Jenkins v. Missouri, 23 F.3d 1297 (8th Cir. 1994) (Jenkins
XI), vacated, 115 S. Ct. 2573 (1995); Jenkins v. Missouri, 13 F.3d
1170 (8th Cir. 1993) (Jenkins X), rev'd, 115 S. Ct. 2038 (1995);
Jenkins v. Missouri, 11 F.3d 755 (8th Cir. 1993) (as amended on
denial of rehearing en banc) (Jenkins IX), reh'g en banc denied, 19
F.3d 393 (8th Cir. 1994), rev'd, 115 S. Ct. 2038 (1995); Jenkins v.
Missouri, 967 F.2d 1245 (8th Cir.) (Jenkins-Clark II), cert.
denied, 113 S. Ct. 811 (1992); Jenkins v. Missouri, 962 F.2d 762
(8th Cir.) (Jenkins-Clark I), cert. denied, 113 S. Ct. 322 (1992);
Jenkins v. Missouri, 949 F.2d 1052 (8th Cir. 1991) (Jenkins VII);
Jenkins v. Missouri, 943 F.2d 840 (8th Cir. 1991) (Jenkins VI);
Jenkins v. Missouri, 942 F.2d 487 (8th Cir. 1991) (Jenkins V);
Jenkins v. Missouri, 931 F.2d 470 (8th Cir.) (Jenkins IV), cert.
denied, 502 U.S. 967 (1991); Jenkins v. Missouri, 890 F.2d 65 (8th
Cir. 1989) (Jenkins III); Jenkins v. Missouri, 855 F.2d 1295 (8th
Cir. 1988) (Jenkins II), aff'd in part and rev'd in part, 495 U.S.
33 (1990); Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986) (en
banc) (Jenkins I), cert. denied, 484 U.S. 816 (1987).
4
Jenkins v. Missouri, 38 F.3d 960 (8th Cir. 1994) (Jenkins
XII); Jenkins v. Missouri, 981 F.2d 1009 (8th Cir. 1992) (Jenkins
VIII); Jenkins v. Missouri, 965 F.2d 654 (8th Cir. 1992) (Jenkins-
Missouri City); Jenkins v. Missouri, 904 F.2d 415 (8th Cir.)
(Naylor), cert. denied, 498 U.S. 940 (1990).
5
Jenkins v. Missouri, 967 F.2d 1248 (8th Cir. 1992) (Jenkins
Fees IV); Jenkins v. Missouri, 931 F.2d 1273 (8th Cir.) (Jenkins
Fees III), cert. denied, 502 U.S. 925 (1991); Jenkins v. Missouri,
862 F.2d 677 (8th Cir. 1988) (Jenkins Fees II); Jenkins v.
Missouri, 838 F.2d 260 (8th Cir. 1988) (Jenkins Fees I), aff'd, 491
U.S. 274 (1989).
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Jenkins, 115 S. Ct. 2038 (1995); Missouri v. Jenkins, 495 U.S. 33 (1990);
Missouri v. Jenkins, 491 U.S. 274 (1989).
The Webster group sought to intervene in this litigation on December
1, 1994. The Webster group is comprised of African-American children, who
are or might be in the future students in the KCMSD, and their parents.
In its motion to intervene, the Webster group stated that the KCMSD was
failing to eliminate the segregated school system in Kansas City and
contributing to low achievement and a general attitude of inferiority among
African-American students. The Webster group also asserted that the
plaintiff Jenkins class no longer adequately represented the interests of
African-American students, even though all African-American students are
members of the Jenkins class. Consequently, the Webster group wanted to
intervene to represent the interests of African-American students.
The district court denied the Webster group's motion to intervene.
The court concluded that the Webster group timely filed its motion, but
denied the motion to intervene as a matter of right because there were
sufficient avenues open for the group to protect its interests without
intervention. Since the children in the Webster group were already members
of the Jenkins class, the court encouraged the members of the Webster group
to express their concerns to the attorneys for the Jenkins class. The
court pointed out that the Webster group could communicate its views to the
Desegregation Monitoring Committee, which in turn could present them to the
court. The court encouraged the Webster group to file amicus curiae briefs
and seek permission to testify on any issue before the court. Finally, the
court denied the group's motion for permissive intervention. See Fed. R.
Civ. P. 24(b). The Webster group now appeals only the denial of its motion
to intervene as a matter of right. See Fed. R. Civ. P. 24(a).
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I.
The Jenkins class and the State of Missouri oppose the Webster
group's motion to intervene and argue that the district court erred in
determining the motion was timely.
A district court should consider all of the circumstances when
determining the timeliness of a motion to intervene. NAACP v. New York,
413 U.S. 345, 365-66 (1973). In looking at all of the circumstances, the
court should pay particular attention to: (1) how far the proceedings have
progressed; (2) the proposed intervenor's reason for delay in seeking
intervention; and (3) the possible prejudice to the parties already in the
proceedings if the court allows intervention. Nevilles v. EEOC, 511 F.2d
303, 305 (8th Cir. 1975) (per curiam). We review the district court's
timeliness determinations for abuse of discretion. NAACP v. New York, 413
U.S. at 366.
The Webster group argues that its motion is timely because its
members only recently became aware of the need to protect the interests of
African-American students. The group states that it was not until the
middle of 1994 that it became obvious the Jenkins class was no longer
protecting the interests of its African-American members. In April 1994,
the Jenkins class supported the construction of a new magnet school,
despite the need to renovate traditional schools. The Webster group
contends that renovation of the traditional schools would better serve
African-American students because these schools are dilapidated and
predominantly populated by minority students. In the late summer of 1994,
the Jenkins class argued against increasing the number of minority students
in the KCMSD's magnet schools. The Webster group contends that the magnet
schools are the better schools in the KCMSD and increased minority
enrollment in these schools would benefit African-American students. The
Webster group argues that these actions by the Jenkins class show that the
class is no longer
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representing the interests of African-American students. Until these
actions occurred, the Webster group argues that it had no reason to
intervene.
The Jenkins class and the State argue that the Webster group's motion
to intervene is not timely because members of the group were aware of the
issues raised in their motion to intervene long before they filed their
motion. The Jenkins class points out that Ajamu Webster testified on
February 22, 1993, about the relationship between magnet schools and
traditional schools within the KCMSD. Webster testified that there was an
undue emphasis on magnet schools over traditional schools and that magnet
schools overemphasized the importance of white students to the detriment
of African-American students.
Webster also described the Coalition for Education and Economic
Justice, which included two members of the Webster group and one of its
attorneys. The Coalition proposed a program to change the funding and
teaching of the seventeen traditional schools and presented the program to
the Desegregation Monitoring Committee. The Coalition had several
discussions with the KCMSD administration and the Board of Education, and
its relationship with them has been less than friendly on occasion.
The Jenkins class points out that four members of the Webster group
have been members of school advisory committees, and that others have
testified before the Desegregation Monitoring Committee and appeared before
the KCMSD board. The State points out that from 1987 to 1990 the district
court established the priorities for the improvement of the traditional
schools.
Considering all of these factors, it is evident that the adult
members of the Webster group knew of the issues they presented in their
motion to intervene well before they filed their motion. This record
demonstrates that the timeliness of the Webster group's
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motion to intervene is a close and troublesome question. We dispose of
this case on the basis of the district court's reasoning which makes it
unnecessary for us to decide the timeliness issue. If any group seeks
intervention in the future, the district court should carefully consider
the timeliness of the intervention efforts.
II.
The Webster group argues that it is entitled to intervene as a matter
of right under Federal Rule of Civil Procedure 24(a)(2). Under Rule
24(a)(2), intervention shall be permitted if: (1) the proposed intervenor
claims an interest relating to the property or transaction which is the
subject of the action; (2) the disposition of the action may as a practical
matter impair or impede the proposed intervenor's ability to protect that
interest; and (3) no existing party adequately represents the proposed
intervenor's interest.
The district court held that the Webster group was not entitled to
intervene as a matter of right because the "intervenors will not be
impaired or impeded in their ability to protect" their interests during the
disposition of the case. The Webster group argues that the district court
applied an improper legal standard in so ruling, as all that it must
demonstrate is that the action "may as a practical matter" impair its
interests. Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No.
1, 738 F.2d 82, 84 (8th Cir. 1984) (per curiam). We reject this argument.
The district court's discussion of this issue does not demonstrate
that the court imposed a heavier burden on the Webster group than the rule
requires. In KPERS v. Reimer & Koger Assocs., 60 F.3d 1304 (8th Cir.
1995), decided after the briefs were filed in this case, we made clear that
a proposed intervenor does not bear the burden of establishing that its
interests will actually be
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impaired by the disposition of the case. Id. at 1307-08. In KPERS, the
district court imposed such a burden, saying that the proposed intervenor's
stare decisis argument did not "necessitate a finding" that the intervening
interests "will be practically impaired but for its involvement," and that
it was unlikely that the proposed intervenor "would be adversely affected"
in a later proceeding by rulings in the KPERS case. Id. at 1306. We held
that such a standard conflicted with the language of Rule 24(a)(2) and
holdings of this court. Id. at 1308.
In contrast, the district court in this case clearly stated the
proper standard, and then found that the "proposed intervenors will not be
impaired or impeded in their ability to protect" their interest. This
finding rules out the possibility that the Webster group could show that
its interests may, as a practical matter, be impaired.
This is not a case where the impairment of the interest of the
applicant is conceded, assumed, or generally accepted. See Bradley v.
Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987); Morgan v. McDonough, 726
F.2d 11, 13 (1st Cir. 1984); United States v. Board of Sch. Comm'rs, 466
F.2d 573, 575 (7th Cir. 1972), cert. denied, 410 U.S. 909 (1973). The
district court squarely faced those issues and found that there was no
impairment of the interests of the Webster group because of the other
avenues available to it. We are persuaded that the district court did not
err in this ruling.
The district court's holding also rests on the alternative ground
that the Webster group's interests are adequately represented. Although
the court stated that it need not reach the adequacy of representation, it
discussed the avenues open to the Webster group to express the group's
position, either through the Desegregation Monitoring Committee, through
counsel for the Jenkins class, by filing amicus curiae briefs, or by
requesting permission to testify in hearings. In this discussion, the
court actually
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deals with the adequacy of representation. Furthermore, in its discussion
of permissive intervention later in the opinion, the court explicitly
concluded that the Webster group's interests are being adequately
represented.
A party cannot intervene as of right if another party in the
litigation adequately represents its interests. Fed. R. Civ. P. 24(a)(2).
There is a presumption of adequate representation when the persons
attempting to intervene are members of a class already involved in the
litigation or are intervening only to protect the interests of class
members. See Bradley, 828 F.2d 1186, 1192; cf. United States v. South Bend
Community Sch. Corp., 692 F.2d 623, 628 (7th Cir. 1982). See generally 7C
Charles A. Wright et al., Federal Practice and Procedure § 1909, at 318-19,
324-29 (1986). A difference of opinion concerning litigation strategy or
individual aspects of a remedy does not overcome the presumption of
adequate representation. See Bradley, 828 F.2d at 1192; Stadin v. Union
Elec. Co., 309 F.2d 912, 919 (8th Cir. 1962), cert. denied, 373 U.S. 915
(1963); see also South Bend Community Sch. Corp., 692 F.2d at 628;
Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3rd Cir.), cert. denied, 426 U.S.
921 (1976); cf. United States v. Perry County Bd. of Educ., 567 F.2d 277,
280 (5th Cir. 1978). But see United States v. Oregon, 839 F.2d 635, 638
(9th Cir. 1988).
There is no dispute that the students in the Webster group are
members of the Jenkins class. The parents in the Webster group seek to
intervene only to protect their children's interests. Thus, there is a
presumption that the Jenkins class adequately represents the interests of
the Webster group. See Bradley, 828 F.2d at 1192. See generally 7C Wright
et al., Federal Practice and Procedure § 1909, at 318-19, 324-29.
The Webster group argues that the KCMSD has failed to implement
programs designed to help African-American students who are still suffering
from the harmful effects of past segregation.
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On numerous occasions in our earlier opinions we discussed the development
of the programs designed to remedy the pervasive effects of past
segregation, with particular attention to the victims. See Jenkins II, 855
F.2d at 1300-02 (citing Jenkins v. Missouri, 593 F. Supp. 1485, 1492 (W.D.
Mo. 1984) and Jenkins v. Missouri, 639 F. Supp. 19, 24 (W.D. Mo. 1985),
aff'd as modified by, 807 F.2d 657 (8th Cir. 1986) (en banc)). The
district court and this Court have discussed in detail over the last ten
years the development of the educational programs designed to remedy the
effects of segregation and the extensive construction and renovation of
facilities to serve as both magnet schools and traditional schools. The
Webster group's argument that KCMSD has failed to help develop programs
designed to help the victims of unconstitutional segregation is contrary
to the record in this case.
The rest of the Webster group's argument consists of assertions that
the Jenkins class ought to support increased minority enrollment in the
magnet schools and have different priorities in the improvement of KCMSD
schools. These arguments are disagreements over the details of the remedy
and do not show inadequate representation. See Bradley, 828 F.2d at 1192.
The Webster group cites Liddell v. Caldwell, 546 F.2d 768 (8th Cir.
1976), cert. denied, 433 U.S. 914 (1977), in support of its argument that
the Jenkins class no longer adequately represents the interests of African-
American students. Liddell found of great significance the fact that the
district court at the time of the intervention in question had "only
partially approved specific plans for desegregation." Id. at 771. This
situation is in stark contrast to that in the case before us, where the
desegregation program has been developed and partially implemented over the
last ten years, substantial efforts and funds expended, and, indeed, where
the State is calling for a declaration of unitary status. The Webster
group does not argue that the Jenkins class has given
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up the goal of a unitary school system or that the Jenkins class cannot
reach that goal on the path it has chosen. The group argues only that its
members would prefer the Jenkins class take a different path to that goal.
While the Jenkins class may not have completely satisfied all of its
members, there is no showing that its conduct has been so deficient as to
render its representation inadequate.
We believe that the district court implicitly reached the issue of
adequacy of representation, and that the district court's order is also
sustainable on this ground. Indeed, we have serious doubts as to whether
the Webster group presented evidence that would have been sufficient as a
matter of law to sustain a finding that the Webster group's interests were
inadequately represented by existing parties and procedures.
If future developments in the ongoing litigation again present the
necessity to rule on intervention issues, there will be time enough for
further development of the record in the district court at that point.
We affirm the district court's denial of the Webster group's motion
to intervene.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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