Blount–hill v. Zelman

• Citation: 636 F.3d 278
• Decision Date: 16 February 2011
• Docket Number: No. 09–3952.,09–3952.
• Parties: Beverly BLOUNT–HILL; Marcia D. Connors; Patricia Lynch, President, Dayton Education Association, OEA/NEA; Stacey Range; Kevin Range, Plaintiffs–Appellees,v.Susan Tave ZELMAN; State of Ohio, Board of Education; State of Ohio Department of Education, Defendants–Appellees,v.Hope Academy Northwest Campus; Sharonda Perkins; Jessica Velasquez; Anthony Robinson; Jennifer Robinson, Intervenors–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

636 F.3d 278
266 Ed. Law Rep. 23

Beverly BLOUNT–HILL; Marcia D. Connors; Patricia Lynch, President, Dayton Education Association, OEA/NEA; Stacey Range; Kevin Range, Plaintiffs–Appellees,
v.
Susan Tave ZELMAN; State of Ohio, Board of Education; State of Ohio Department of Education, Defendants–Appellees,
v.
Hope Academy Northwest Campus; Sharonda Perkins; Jessica Velasquez; Anthony Robinson; Jennifer Robinson, Intervenors–Appellants.

No. 09–3952.

United States Court of Appeals, Sixth Circuit.

Feb. 16, 2011.

[636 F.3d 279]

ON BRIEF: John B. Schomer, Donald W. Davis, Jr., Brennan, Manna & Diamond, LLC, Akron, Ohio, for Appellants. William J. Steele, Sue A. Salamido, Cloppert, Latanick, Sauter & Washburn, Columbus, Ohio, Todd R. Marti, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees.Before: KENNEDY, CLAY, and KETHLEDGE, Circuit Judges.CLAY, J., delivered the opinion of the court, in which KENNEDY, J., joined. KETHLEDGE, J. (pp. 288–89), delivered a separate dissenting opinion.

[636 F.3d 280]

OPINION

CLAY, Circuit Judge.

HOPE Academy Northwest Campus (“Hope Northwest”), a community school in Cleveland, Ohio; Sharonda Perkins, a social worker and mother of a student at HOPE Northwest; Jessica Z. Velasquez, the mother of a first grade student at HOPE Northwest; and Anthony and Jennifer Robinson, the parents of three students at HOPE Northwest (collectively, “proposed Intervenors”), appeal the district court's denial of their application to intervene as party defendants in the underlying action as a matter of right under Rule 24(a), and as a matter of discretion under Rule 24(b), of the Federal Rules of Civil Procedure. For the reasons set forth below, we AFFIRM the district court's decision.

BACKGROUND

This appeal arises from a challenge to the constitutionality of the Ohio Community Schools Act (“OCSA”), Ohio Rev.Code §§ 3314.01, et seq. , and “the funding mechanism for public schools as it relates to community schools and as implemented by Defendant.” (Third Am. Compl. ¶ 1.) The OCSA established a charter school system in Ohio comprised of “community schools,” which operate as public schools that are “independent of any school district,” O.R.C. § 3314.01, and exempt from many state laws. Id. § 3314.04. Although included in the “state's program of education,” id. § 3314.01, a community school is governed by a contract between its founder and a statutorily authorized “sponsor.” Id. § 3314.02(C)(1).

Authorized sponsors may include the state or local board of education, certain tax-exempt entities, the governing board of any educational service center, or authorities designated by a state university board. Id. Interested parties may establish a community school by converting an existing public school, or creating a new school in a “challenged school district,” so long as an authorized sponsor agrees to enter into a contract. Id. § 3314.02(C). The statute defines a “challenged school district” as “mean[ing] any of the following: (a) A school district that is part of the pilot project area; (b) A school district that is either in a state of academic emergency or in a state of academic watch under section 3302.03 of the Revised Code; [or] (c) A big eight school district,” which the statute defines as a district meeting certain numerical thresholds. See id. §§ 3314.02(A)(3)–(4).

Because start-up community schools must be established in a “challenged school district,” Plaintiffs argue that the OCSA disproportionately benefits minority students because, as Plaintiffs contend, challenged school districts are disproportionately populated by minority students. Plaintiffs also object to the manner in which community schools are funded. In contrast to public schools, community schools are almost wholly state-funded and receive no funding from local sources. Plaintiffs allege that this is unconstitutional because the state grants community schools more money per pupil than it grants to traditional public schools.

A. Related State Court Litigation

This case is one of at least three that have challenged the constitutionality of the OCSA. In May of 2001, various plaintiffs filed two actions in Franklin County state court challenging the OCSA under the Ohio Constitution.¹ The plaintiffs in each

[636 F.3d 281]

action were represented by, among others, David Latanick, an attorney retained by the Ohio Education Association (“OEA”). In June of 2004, Plaintiffs, also represented by Latanick, among others, filed the present action, challenging the OCSA under the U.S. Constitution. After the Ohio Supreme Court upheld the OCSA under the Ohio Constitution,² the state plaintiffs voluntarily dismissed the two state actions on December 13, 2006 and March 2, 2007. On March 23, 2007, another group of plaintiffs, also represented by Latanick, filed a third state action attacking the OCSA.

According to proposed Intervenors, shortly after filing the third state lawsuit, Hinton v. Ohio State Board of Education, attorneys for the OEA began negotiations with then-Ohio Attorney General Marc Dann in an effort to settle both Hinton and the present federal litigation. Proposed Intervenors claim that in early September of 2007, the OEA agreed to dismiss Hinton, and likely dismiss the present case, if the Attorney General would agree to pursue litigation to close certain “underperforming and poorly managed community schools,” which the parties defined as community schools that:

Are ranked in academic emergency or academic watch on Local Report Cards for two of the last three reported school years and whose Performance Index Scores on the most recent Local Report Cards are less than that of the school districts from which they draw the largest number of students.—OR—Have been reported by their sponsors to the Ohio Department of Education as being in non-compliance with their academic assessments and accountability plans or their finance plans as set forth in their contracts.—OR—Have been found by the Auditor of State to have unauditable records in the fiscal year most recently the subject of an audit.—OR—Have bad findings for recovery issued against them by the Auditor of State in two or more of the three most recently reported fiscal years covered by regular audits.—OR—Have failed to correct findings issued by the Auditor of State for two or more of the most recent fiscal years covered by regular audits.

It appears from the record that proposed Intervenor HOPE Northwest was identified by the parties to the settlement as a school that is “ripe for closing” under these guidelines.

Pursuant to the settlement agreement, the Hinton plaintiffs voluntarily dismissed their state action on September 14, 2007. That same day, Plaintiffs moved to stay the present federal case to permit settlement negotiations. For his part, Attorney General Dann commenced litigation against community schools that the Attorney General deemed to be failing and, despite public controversy, Dann's successors, then-interim Attorney General Nancy Rogers and then-Attorney General Richard Cordray, continued to support the litigation against “underperforming and poorly managed community schools.”

B. Pending Federal Litigation

The present federal litigation commenced on June 9, 2004. At that time, plaintiff education association members and parents of school-aged children in Ohio filed a Complaint in the district court pursuant to 42 U.S.C. § 1983 against the Ohio Department of Education, the Ohio Board of Education, and Ohio Superintendent of Public Instruction Susan Tave Zelman,

[636 F.3d 282]

challenging OCSA under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution. Defendants moved to dismiss on June 30, 2005. Plaintiffs thereafter voluntarily dismissed all defendants except Zelman on August 11, 2005,³ and filed an Amended Complaint on October 6, 2005. In a decision not issued until September 20, 2007, the district court denied the motion to dismiss as to all but one claim, which alleged a denial of the right to vote because the OCSA does not permit citizens to determine the “number or members and the organization of a public school board of education ... within a city, as guaranteed by the Ohio Constitution.”

On October 1, 2004, during the pendency of the motion to dismiss, White Hat Management, LLC (“White Hat”), a firm that “provides a full spectrum of services, from management to financial and curriculum assistance, for many community schools,” sought intervention as a matter of right and of discretion. (White Hat Mot. at 1, 3.) The district court denied White Hat's application on September 26, 2005, reasoning that as to intervention of right, White Hat had not demonstrated that the parties would not adequately represent White Hat's interests in this litigation. The court further held that permissive intervention was inappropriate because it would cause “undue and unnecessary delay” in the form of the duplication and expansion of the litigation, thus “requir[ing] the Plaintiffs and the Court to invest a significant amount of time and effort in response.” White Hat appealed.

On September 5, 2006, this Court affirmed the denial of White Hat's application to intervene. See Blount–Hill v. State of Ohio, 195 Fed.Appx. 482, 487. As to intervention of right, we affirmed on the alternative grounds that White Hat's economic interest in the continuation of its contracts with community schools was “insufficient to comprise a substantial legal interest for purposes of Rule 24(a) intervention.” Id. at 485. This was because White Hat's interest did “not concern the constitutional and statutory violations allegation in the litigation, but rather an interest in the economic component.” Id. at 488 (internal quotation marks and citations omitted). With regard to permissive intervention, we held that the district court did not abuse its discretion in finding that intervention would cause undue delay. The Supreme Court thereafter denied...