Jenkins by Jenkins v. State of Mo.

• Decision Date: 24 April 1996
• Docket Number: No. 95-1823,95-1823
• Citation: 78 F.3d 1270
• Parties: , 107 Ed. Law Rep. 598 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 Teachers, Local 691, 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 o
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1270

78 F.3d 1270

34 Fed.R.Serv.3d 834, 107 Ed. Law Rep. 598

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 Teachers, Local 691, 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 Directors; John W. Still, Member of the Board of Directors, Defendants--Appellees.

No. 95-1823.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 12, 1995.

Decided March 6, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied April

24, 1996.

Appeal from the United States District Court for the Western District of Missouri; Russell Clark, Judge.

Clinton Adams, Jr. of Kansas City, MO, argued (Edward L. Pendleton and Holly Winkler of Kansas City, on the brief), for appellants.

Arthur A. Benson of Kansas City, MO, argued (John R. Munich, Michael Fields, and Bart Matanic, Asst. Attys. Gen., Jefferson City, MO, on the brief), for appellees.

Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Hashina Webster and her proposed co-intervenors ¹ appeal from an order of the district court ² 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 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, 108 S.Ct. 70, 98 L.Ed.2d 34 (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, 110 S.Ct. 1651, 109 L.Ed.2d 31 (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. Jenkins, --- U.S. ----, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995); Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990); Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (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).

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, 93 S.Ct. 2591, 2602-03, 37 L.Ed.2d 648 (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, 93 S.Ct. at 2603.

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 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...