STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
95 CVS 1158
HOKE COUNTY BOARD OF EDUCATION;
et al.,
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)
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Plaintiffs,
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and
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CASSANDRA INGRAM, etc., et al.
)
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Plaintiff-Intervenors,
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and
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RAFAEL PENN; CLIFTON JONES, individually )
and as guardian ad litem of CLIFTON
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MATTHEW JONES; DONNA JENKINS
)
DAWSON, individually and as guardian ad litem )
)
of NEISHA SHEMAY DAWSON and TYLER
)
ANTHONY HOUGH-JENKINS,
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Plaintiff-Intervenors,
)
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against
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CHARLOTTE-MECKLENBURG BOARD OF
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EDUCATION,
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Plaintiff-Intervenor and Realigned
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Defendant,
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and
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STATE OF NORTH CAROLINA and the
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STATE BOARD OF EDUCATION,
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Defendants.
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PLAINTIFF-INTERVENORS'
MEMORANDUM OF LAW
PLAINTIFF-INTERVENORS’ MEMORANDUM OF LAW
IN SUPPORT OF THEIR MOTION FOR
LIMITED INTERVENTION
The plaintiff-intervenors (hereafter, “Charlotte students”) have moved the Court
for leave to intervene in this action, pursuant to N.C. Gen. Stat. § 1A-1, Rule 24. As
students in the Charlotte-Mecklenburg school system, their limited intervention is
necessary to protect their interests in receiving a sound basic education and their right to
receive the equal protection of the laws. They seek a limited intervention of right under
Rule 24(a), and alternatively, permissive intervention under Rule 24 (b).
I.
THE CHARLOTTE STUDENTS MEET ALL NECESSARY STANDARDS
FOR INTERVENTION OF RIGHT UNDER RULE 24 (a)
Rule 24(a) sets forth two alternative bases for intervention as of right. The first
exists “when a statute confers an unconditional right to intervene.” The Charlotte students
do not claim the protection of this provision. The second and more common basis for
intervention looks to whether
“the applicant claims an interest relating to the property or transaction which is
the subject of the action and he is so situated that the disposition of the action may
as a practical matter impair or impede his ability to protect that interest, unless the
applicant’s interest is adequately represented by existing parties
N.C. Gen. Stat. § 1A-1, Rule 24(a). As the commentators observe, this provision sets
forth a threefold test: (1) Does the applicant have an interest relating to the transaction
which is the subject of the action? (2) Will the disposition of the action, as a practical
matter, impair or impede the applicant’s interest? (3) Are the applicant’s interests
adequately represented by existing parties? Each of these criteria strongly supports the
Charlotte students’ motion to intervene.
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A.
The Charlotte Students Have a Strong Interest in the
Upcoming Litigation
The Charlotte students each have a constitutionally guaranteed right to a sound
basic education, N.C. Const. art. I, § 15 and art. IX, 2 (1), a right that is now judicially
well established by Leandro v. State, 346 N.C. 336 (1997), by Hoke County Board of
Education v. State, 358 N.C. 605 (2004), and by various prior orders and decisions of this
Court. The Charlotte students also invoke N.C. Const. art. I, § 19 which guarantees the
equal protection of the laws. The entire focus of the lawsuit has been to determine what
these Leandro rights mean, in practical terms, to students such as the Charlotte plaintiffs,
who attend North Carolina’s public schools.
The various school districts and their counsel have, to this point, simultaneously
represented both their own interests and the interests of North Carolina's school children.
During the liability phase of the lawsuit, with the State as chief adversary, they have done
an admirable job. In this new phase, however, the interests of students who attend various
schools within a school district and that of district officials themselves are beginning to
diverge. The need for separate representation of student interests has ripened and is now
evident.
B.
The Resolution of the Upcoming Litigation Could Directly
Impede or Impair the Educational Interests of the
Charlotte Students
The educational rights of the Charlotte students will be directly at stake in the
upcoming round of litigation. On November 10, 2004 and again on January 11, 2005, the
Court pointedly asked what administrative, educational, and/or fiscal practices adopted
by the Charlotte-Mecklenburg Board of Education (or the State), could suffice to explain
the dismally low performance levels in Charlotte high schools.
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The Charlotte students believe they have a partial answer to that question. It lies
in the Charlotte-Mecklenburg Board of Education's student assignment policies, first
adopted in 2000 and implemented in 2002-03, that deserve the Court’s closest scrutiny.
These assignment policies have led, within only a few short years since 1999, to a
dramatic concentration of Charlotte’s lower-income and at-risk children into highpoverty elementary, middle, and high schools, where all of the various factors that the
Court earlier found may dispose students to educational failure — poverty backgrounds,
underemployed or unemployed parents, single parent families, poor health, unsafe or
inadequate housing, limited English proficiency, minority parent status, and special
educational needs — are clustered in extraordinarily high proportions.
The interest inquiry under Rule 24(a) is highly fact-specific and the interest test is
“primarily a practical guide to disposing of lawsuits by involving as many apparently
concerned persons as is compatible with efficiency and due process.” See Utah Ass’n of
Counties v. Clinton, 255 F.3d 1246, 1251-1253 (10th Cir 2001) (finding that
environmental groups had a sufficient interest in a national monument to intervene in a
suit seeking to have the creation of the monument declared illegal); Coalition of
Arizona/New Mexico Counties for Stable Economic Growth v. Dep’t of Interior, 100 F.3d
837, 840-844 (10th Cir. 1996) (finding that a wildlife photographer had a sufficient
interest to intervene in a suit to protect the Mexican Spotted Owl). 1
When parties who seek to intervene represent a public interest, rather than merely
a private interest, their burden to establish a legal interest is often less onerous . This is
1
"With only minor exceptions, this [North Carolina] Rule and Rule 24 of the Federal Rules of Civil
Procedure are substantially the same; the, the holdings of the federal circuit courts are instructive." Virmani
v. Presbyterian Health Servs. Corp, 127 N.C. App. 629, aff'd in part and rev'd in part on other grounds,
350 N.C. 449 (1999).
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because once a public policy is at issue, the principal question is whether the interests of
justice are served by excluding from the adjudication the expertise and advocacy that an
interest group may bring to bear on the case. Automobile Workers v. Brock, 477 U.S.
274, 289 (1986).
In addition, courts have properly construed the zone of interests justifying
intervention of right very broadly when the interests are protected by constitutional
provisions or statutes of general application, as opposed to private interests. See, e.g.,
Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 132-136 (1967)
(broadly interpreting the interest requirement of Rule 24(a) to allow intervention by
parties who did not have a direct interest in the property at issue, but who had a practical
interest in the disposition of the matter).
Each of these considerations argues strongly for the inclusion of the Charlotte
students. During its January 11, 2005 hearing, the Court directed the current parties to
come forward with explanations for the extraordinarily low performances in many North
Carolina high schools, particularly those in Charlotte-Mecklenburg system. These are
public issues, not private issues, and they implicate the rights that the North Carolina
Constitution promises broadly under Leandro to every North Carolina child. They stem
from the text of the North Carolina Constitution. The Charlotte students, moreover,
attend the very high-poverty high schools that are the immediate object of the Court’s
attention. They are currently suffering long-term educational injuries from the
dysfunctional and unhealthy conditions in these schools. Any improper resolution of this
lawsuit could, therefore, “as a practical matter, impede or impair” their Leandro rights.
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Their request for relief, furthermore, could well affect the educational rights of
thousands of other Charlotte children who have likewise suffered educational injuries
from the Charlotte-Mecklenburg school board's current educational and administrative
practices, for they seek limited intervention to present evidence that the current studentassignment policies have worked to deprive all the students who attend these schools of
their opportunity for a sound basic education. “When litigation centers on public rights,
such as the right to desegregated schools or a clean environment, its resolution is likely to
affect outsiders to the same extent as the original parties. If the court’s interests also
favor intervention, then intervention may be consistent with Rule 24(a).” Cindy Vreeland,
Comment: Public Interest Groups, Public Law Litigation, and Federal Rule 24(a), 57 U.
Chi. L. Rev. 279, 305 (1990).
C.
The Charlotte Students’ Interests Are Not
Adequately Represented By Any Existing Party
No other party to the lawsuit will likely present the lay and expert evidence, or
pursue the challenge to Charlotte-Mecklenburg’s student assignment policies, that the
Charlotte students are prepared to put forward in this proposed intervention. The entity
historically most committed to Charlotte's present student assignment policies is the
plaintiff-intervenor and realigned defendant Charlotte-Mecklenburg Board of Education,
which has since 2000, chosen, implemented, refined, and defended these policies
publicly. That party, at least, is clearly inadequate to protect the Charlotte students’
interests.
Moreover, none of the other urban plaintiff-intervenor districts have shown any
disposition to fault Charlotte-Mecklenburg’s student assignment policies; indeed, several,
including Winston Salem/Forsyth, have adopted and implemented similar policies
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themselves. Nor do plaintiff low-wealth districts share any direct interest in challenging
the student assignments in large, multi-high school districts. They have no direct
authority over these separate school districts, and most have no principle at stake, nor any
extensive experience with this issue. The State and the State Board of Education might, in
theory, actively pursue this issue, but to the knowledge of the Charlotte students, the
State has never adopted a position questioning the establishment and maintenance, by
local school districts, of similar student assignment plans, even though the State Board
possesses "the authority, in its discretion, to alter the boundaries of city administrative
districts." N.C. Gen. Stat. § 115C-12(7).
The Charlotte students have shown, therefore, that the representation by existing
parties will be inadequate. Under prevailing doctrine, this showing by a petitioning
intervenor need not be made as a matter of certainty. Rather, an applicant has the
“minimal” burden of showing that reliance on existing parties to represent his interests
“may be inadequate.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n. 10
(1972). As the school desegregation cases teach us, intervention is especially justified to
raise a remedial issue ignored by the existing parties in school cases. See, e.g., Bradley v.
Pinellas County Sch. Bd., 961 F.2d 1554, 1557-1558 (11th Cir. 1992) (intervention
permitted because intervenors (1) allege deficiencies in implementation plan, (2)
articulate means by which existing parties are frustrating goal of unitary school system,
(3) raise issues not previously raised, and (4) demonstrate that existing parties are
unwilling to raise these issues.)
In sum, during the eleven years of this Leandro litigation, none of the parties has
ever questioned the adverse impact of school poverty levels on student achievement, and
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none are likely to do so now. The Charlotte students, by contrast, endure continuing
personal injury from this policy, and they urge the Court to allow them to intervene and
offer lay and expert testimony on its adverse impact on disadvantaged high schools
throughout the Charlotte-Mecklenburg school district.
D.
This Intervention Is Timely And Will Not
Cause Undue Delay
Rule 24 (a) begins with a provision that looks to timeliness: “Upon timely
application, anyone shall be permitted to intervene.” According to the North Carolina
Supreme Court, “[w]hether a motion to intervene is timely is an issue addressed to the
sound discretion of the trial court and its resolution will depend on the circumstances of
the case.” State Employees Credit Union, Inc. v. Gentry, 75 N.C. App. 260, 264 (1985):
In determining whether a motion to intervene is timely, the trial court will give
consideration to : (1) the status of the case; (2)the unfairness or prejudice to the
existing parties; (3) the reason for any delay in moving for intervention; (4) the
resulting prejudice to the applicant if the motion is denied; and (5) any unusual
circumstances.”
Id. Here, each of each of these factors demonstrates the appropriateness of this motion
(1)
The Charlotte Students’ Intervention Is Fully
Timely Because Of The Unique Course Of This
Litigation
The Charlotte students seek intervention after many major liability findings have
been upheld by the North Carolina Supreme Court. However, as the North Carolina
Supreme Court noted in 2004, “our consideration of the case is properly limited to the
issues relating solely to Hoke County as raised at trial.” Hoke County Bd. of Educ. v.
State, 358 N.C. 605, 613 & n. 5, 599 S.E. 2d 365, 375 & n.5 (2004). In short, while many
crucial legal issues have been resolved, the factual claims originally asserted by the
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plaintiff-intervenor urban districts, including those asserted by the CharlotteMecklenburg Board of Education, have never been addressed on their merits. The March,
2005 hearing will therefore be the first opportunity to scrutinize the Charlotte school
system in any way.
Moreover, courts have often allowed intervention even after all liability findings
have been rendered and a lawsuit has entered its remedial phase, especially when the aim
is to protection intervenors’ constitutional rights. See Stallworth v. Monsanto Co., 558
F.2d 257, 267 (5th Cir. 1977) (holding that a trial court abused its discretion by denying
nonunion white employees leave to intervene after the entry of a consent order because
the remedial provisions deprived the applicants of seniority rights); see also United States
v. City of Chicago, 870 F.2d 1256, 1263 (7th Cir 1989) (allowing intervention when a
final decree from discrimination suit would affect the intervenors’ chances of
promotion.). Even after a final judgment adjudicating the rights of the parties has been
rendered, while the action is still in the custody of the court, the court retains the
discretionary power to allow a person with an interest in the subject matter of the action
to intervene and assert his rights. Procter v. City of Raleigh Bd. of Adj., 133 N.C. App.
181, 514 S.E.2d 745 (1999); Carter v. Smith, 209 N.C. 788, 185 S.E. 15 (1935).
(2)
Intervention Will Not Prejudice Any Existing Parties
Since no evidence or claims involving urban schools have yet been heard or
adjudicated, no unfairness or prejudice will result to existing parties from allowing the
Charlotte students to intervene. The prejudice or unfairness that courts properly consider
on Rule 24 applications is not that which comes when a current party must address
additional claims, but prejudice from duplicative discovery, serious disadvantage to
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expert witnesses, or other administrative burdens that are not justifiable when weighed
against the injury to the intervening parties’ interests. Here, no such prejudice can arise,
since the factual issues are all new and have never been explored by the existing parties.
Moreover, the Charlotte students do not enter this litigation for all purposes, but
only to challenge Charlotte-Mecklenburg’s present student assignment policies and to
insist that ending high-poverty concentrations in their schools is one necessary step in
ending the educational deprivation from which they now suffer. This form of limited
intervention is not uncommon. Courts traditionally have been receptive to applicants
seeking limited intervention. See United States v. Duke Energy Corporation, 171 F.
Supp. 2d 560, 565 (M.D.N.C. 2001) (allowing intervention as of right by citizen
environmental groups while “impos[ing] reasonable limitations on Applicants’
participation to ensure the efficient adjudication of the litigation”); see also Stringfellow
v. Concerned Neighbors in Action, 480 U.S. 370, 383 (1987) (Brennan, J., concurring)
(noting that “[r]estrictions on participation may…be placed on an intervenor of right and
on an original party”); United States v. South Florida Water Mgmt. Dist., 922 F.2d 704,
710 (11th Cir. 1991) (authorizing intervention of right but remanding to the district court
“to condition…intervention in this case on such terms as will be consistent with the fair,
prompt conduct of this litigation”); see generally Fed R. Civ. P. 24 Advisory Committee
Notes to 1966 Amendments (“An intervention of right…may be subject to appropriate
conditions or restrictions responsive among other things to the requirements of efficient
conduct of proceedings.”).
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(3)
The Reason for ‘Delay’ In Moving To Intervene
Is That No Factual Issues Concerning The CharlotteMecklenburg System Have Ever Before Been Ripe For
Consideration
The Charlotte students have not delayed their motion to intervene in this action.
Lead counsel for the Charlotte students has closely followed the progress of the Leandro
litigation since its inception. Until this point, the lawsuit has focused either on facts
concerning the Hoke County School District or on general principles of North Carolina
constitutional law. No immediate interests of the Charlotte students have been brought
into issue. Now, however, since the Court has announced that it will entertain evidence
on low student performance in North Carolina high schools in general and CharlotteMecklenburg high schools in particular, the Charlotte students’ interests will be drawn
directly into play. Moreover, it is also clear that that no existing parties will raise the
Charlotte students’ particular claim by challenging the constitutionality of the CharlotteMecklenburg student assignment plan.
At this juncture, therefore, the Charlotte students must intervene if they are to
ensure that the record before the Court is factually complete—that it contains sufficient
evidence on the adverse educational experiences of students in Charlotte-Mecklenburg’s
high poverty schools, as well as the lay and expert evidence on the deleterious
educational effects of these assignment practices—so that the Court may judge for itself
the constitutionality of the continued use of this practice, which creates “winner” and
“loser” schools throughout Mecklenburg County.
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(4)
The Charlotte Students Will Be Irreparably Prejudiced
If Their Motion To Intervene Is Denied
The Charlotte students presently attend high poverty middle and high schools. If
their motion to intervene is denied, no one else will challenge Charlotte-Mecklenburg’s
student assignment system. This Court will never have the opportunity to consider the
claim that such assignment systems may themselves be a major, contributing factor to the
very low performance of students in Charlotte-Mecklenburg’s high poverty high schools.
The Charlotte students will continue to attend these schools for the rest of their school
careers. If such schools do, indeed, cause educational injury, the prejudice to the
Charlotte students will be real, ongoing, and irremediable.
(5)
The Unusual Circumstances That Surround This Case
Fully Justify This Intervention
Unusual circumstances abound in this case. First, the Leandro case is
unprecedented and far-reaching in its scope. The North Carolina Supreme Court has
acknowledged on more than one occasion the considerable undertaking this Court faces
as it to marshals the evidence, presides over complex and changing public interests, and
crafts appropriate remedies to ensure that the State is meeting its constitutional
obligations to its school children. Second, the suggestion by Justice Orr's opinion in
Hoke County Board of Education that each school district, or each district’s students,
must come forward in turn to prove their individual entitlement to relief means that at
various points, new interests need to be asserted for the first time. Third, the great variety
in size, complexity, and local economic and educational conditions among the 115 school
districts in North Carolina means that no single remedy will work for all school systems.
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This variety will require the Court to focus sequentially on individual problem districts
such as Charlotte-Mecklenburg.
All of these reasons combine to make especially appropriate the Charlotte
students' motion to allow their intervention at this time, so that their interests are
represented while the Court considers hears evidence on factors that have led to the very
low student performance in high schools in the Charlotte-Mecklenburg school system.
II.
THE CHARLOTTE STUDENTS ARE PLAINLY ENTITLED TO
PERMISSIVE INTERVENTION UNDER RULE 24 (b)
Rule 24 (b) set forth the bases for granting permissive intervention if intervention
of right is not mandatory. The Charlotte students do not rely on the first of these Rule
24(b) bases, which permits intervention if “a statute confers a conditional right to
intervene.” They do rely, however, on the second, which authorizes a court to grant
intervention “when an applicant’s claim or defense and the main action have a question
of law or fact in common.”
Here, the Court on November 10th wrote that its “review of the high school
composite performance uncovered an area of concern in CMS’s (Charlotte-Mecklenburg
Schools) performance for 2003-2004.” The Court specifically identified at least five high
schools with especially high poverty concentrations and added that “[t]he level of
performance . . . in these high schools is especially troubling in view of the amount of
local spending per pupil in Mecklenburg County.” The Court suggested that “[p]oor
performance in multiple schools when an LEA has plenty of funds . . . . would, initially at
least, tend to indicate a management problem in the LEA arising out of its allocation of
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the system’s human resources. . . .” The Court added, “IF more resources are required to
correct a problem, the present resources within the LEA must be examined and
reallocated to meet the basic Leandro requirements for all students.”
The evidentiary hearing that begins on March 7, 2005 will therefore necessarily
address why these schools have such low academic performance, whether “management
problems” exists in the Charlotte-Mecklenburg system, and whether human resources
have been properly allocated.
The Charlotte students will present facts that bear upon each of these outstanding
issues. They contend that ‘other students’ constitute a crucial human resource that is
inevitably allocated, one way or another, by any school system’s choice of a student
assignment plan. They contend that the other students who attend one's school have a
major impact on the education that each student receives there, and that student
assignment systems that concentrate students who are at risk of academic failure in a few
schools — whether deliberately or inadvertently — not only leads to low academic
performances by students, but also makes the recruitment and retention of high quality
teachers and administrators in these schools either impossible or prohibitively expensive.
The Charlotte students' assertions of fact bear directly upon the Court’s initial
inquiries about Charlotte-Mecklenburg. They will include evidence on subjects and
themes that will be common to the presentations of the existing parties. If proven, they
also bear crucially upon the appropriate remedy to be ordered in Charlotte-Mecklenburg
under the principles set forth in Leandro and Hoke County. Permissive intervention,
especially for this limited purpose, is therefore fully warranted.
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CONCLUSION
For the reasons stated above, the Charlotte students urge the Court to grant their
motion for limited intervention pursuant to Rule 24 (a) or, in the alternatively, Rule
24(b) of the North Carolina Rules of Civil Procedure.
This ___ day of February, 2005
______________________________________
Julius L. Chambers
North Carolina State Bar No. 679
_______________________________________
John Charles Boger
Member of the New York Bar
______________________________________
Anita Earls
North Carolina State Bar No. 15597
____________________________________
Ashley Osment
North Carolina State Bar No. 22238
The University of North Carolina School of Law
Center for Civil Rights
CB # 3380
University of North Carolina
Chapel Hill, NC 27599
(919) 843-9288
_____________________________________
Julius L. Chambers
North Carolina State Bar No. 679
Ferguson Stein Chambers Adkins Gresham
& Sumter, P.A.
741 Kenilworth Ave., Suite 300
Charlotte, NC 28204
(704) 375-8461
ATTORNEYS FOR PLAINTIFF-INTERVENORS
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CERTIFICATE OF SERVICE
A copy of the foregoing Memorandum of Law was this day placed in the United
States mail, postage prepaid and addressed to:
Grayson G. Kelley, Esquire
Thomas J. Ziko, Esquire
Laura Crumpler, Esquire
Office of the Attorney General
N.C. Department of Justice
114 W. Edenton Street
Raleigh, NC 27601
Counsel for Defendants
John Gresham, Esquire
S. Luke Largess, Esquire
Ferguson, Stein, Chambers,
Wallas, Adkins, Gresham
& Sumter, P.A.
P.O. Box 36486
Charlotte, NC 28636
Counsel for North Carolina
Association of Educators
Robert W. Spearman, Esquire
Melanie Black Dubis, Esquire
Parker Poe Adams & Bernstein, L.L.P.
P.O. Box 389
Raleigh, NC 27602
Counsel for Plaintiffs
Thomas M. Stern
P.O. Box 2206
Durham, NC 27702
Counsel for North Carolina
Association of Educators
H. Lawrence Armstrong, Jr., Esquire
Hux, Livermon & Armstrong
P.O. Box 217
Enfield, NC 27823
Counsel for Plaintiffs
Ann L. Majestic, Esquire
Tharrington, Smith L.L.P.
209 Fayetteville Street Mall
P.O. Box 1151
Raleigh, NC 27602
Counsel for Plaintiff-Intervenors
Audrey Anderson, Esquire
Hogan & Hartson, L.L.P.
555 13th Street NW
Washington, DC 20004
Counsel for PlaintiffIntervenors
Copies of this memorandum of law were also served on all counsel by email.
This, the ____ day of February, 2005
______________________________
John Charles Boger
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