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Smith v. Los Angeles Unified School District

United States Court of Appeals, Ninth Circuit

July 20, 2016

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,
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. 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,
v.
Los Angeles Unified School District, a California public entity, Defendant-Appellee.

          Argued and Submitted February 12, 2016 Pasadena, California

          Amended July 27, 2016

         Appeal 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

          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.

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, Circuit Judges.

         ORDER AND AMENDED OPINION

         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 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.

         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 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.

         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' 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 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 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 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, 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 enrollment in these centers accounted for a very small percentage of disabled student enrollment in LAUSD.[5]Based on Class ...


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