Chanda Smith; Eliza Thompson, Guardian ad Litem for Chanda Smith, individually & on behalf of all other persons similarly situated; Javier Mejia; Gloria Mejia; Quinn Sullivan; Mado Most, Plaintiffs-Appellees,
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,
April Munoz; Julia Flores; Cheryl Ayapana; V.P.; A. F.; M. H.; J. A., Movants-Appellants. Chanda Smith; Eliza Thompson, Guardian ad Litem for Chanda Smith, individually & on behalf of all other persons similarly situated; Javier Mejia; Gloria Mejia; Quinn Sullivan; Mado Most, Plaintiffs-Appellees, and April Munoz; Julia Flores; Cheryl Ayapana; V.P.; A. F.; M. H.; J. A., Movants, and Mina Lee; Frances Moreno, Movants-Appellants,
Los Angeles Unified School District, a California public entity, Defendant-Appellee.
and Submitted February 12, 2016 Pasadena, California
Amended July 27, 2016
from the United States District Court Nos.
2:93-cv-07044-RSWL-GHK, D.C. No. 2:93-cv-07044-RSWL-GHK for
the Central District of California Ronald S.W. Lew, Senior
District Judge, Presiding
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
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.
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.
Before: Jerome Farris, Richard R. Clifton, and Carlos T. Bea,
AND AMENDED OPINION
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
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 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.
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.
opinion filed May 20, 2016 is amended as follows:
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
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.
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 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."
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
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.
July 11, 2016 Request for Judicial Notice is likewise DENIED
further filings shall be accepted in this case.
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"). 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'
interest in ensuring the receipt of public education
consistent with their disabilities and federal law.
SUMMARY OF FACTS
Relevant Statutory History and Landscape
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.
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
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 written statement setting forth the special
services and aids the child needs to get a FAPE. See
id. §§ 1401, 1414.
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.").
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.
Chanda Smith Litigation and Outcome 7
seek to intervene in a class action lawsuit initiated in 1993
in the United States District Court for the 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") 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.
years later, Class Counsel sought and obtained court approval
of a plan that imposed more objectively quantifiable targets
on LAUSD ("Plan 12"). Among other things, Plan 12
called for the effective elimination of special education
centers. 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
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, 2006. 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.
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 enrollment in these centers
accounted for a very small percentage of disabled student
enrollment in LAUSD.Based on Class