___________ No. 95-1823

___________ 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 * Appeal from the United States Teachers, Local 691, * District Court for the
* Western District of Missouri. 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 *

### -2-

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 *

### The other proposed intervenors are Nia Webster, by he r 1 

### parents and next friends Elaine and Ajamu Webster; Alley Pope, by her parent and next friend Carol Coe; Kimberly Beasley, by he r parent s and next friends Arthur and Patricia Beasley; Arthu r Beasle y, by his parents and next friends Arthur and Patrici a Bea sley; Felicia Rhodes, by her parents and next friends Charle s and El izabeth Rhodes; Christina Gravley, by her parent and nex t friend Mona Hicks; Shara Kennedy, by her parent and next frien d Ernestine Kennedy; Cassandra Young, by her parent and next friend Bea Sanders; Ajamu Webster; Elaine Webster; Carol Coe; Patrici a Beasley; Mona Hicks; Ernestine Kennedy; and Bea Sanders. The Honorable Russell G. Clark, Senior Judge, United States 2 

### District Court for the Western District of Missouri.
-3- Directors; John W. Still, * Member of the Board of * Directors, * * Defendants - Appellees. *

___________ Submitted: September 12, 1995 Filed: March 6, 1996

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

___________ JOHN R. GIBSON, Circuit Judge.

Hashina Webster and her proposed co-intervenors ap peal from an order 1 of the d istrict court denying their motion to intervene as a matter o f 2 right in the ongoing Kansas City, Missouri School District desegregation lit igation. The Webster group argues that the district court correctl y deter mined that its motion to intervene was timely, but that the cour t
erre d in holding the group already had adequate means to protect it s interests without intervention. We affirm the order of the district court

.

The Kansas City school desegregation litigation began in 1977 whe n the KCMSD, the School Board, and the children of four board

### Jenkins v. Missouri , 23 F.3d 1297 (8th Cir. 1994) ( Jenkin s 3 

### XI ), vacated , 115 S. Ct. 2573 (1995); Jenkins v. Missouri , 13 F.3d 1170 (8t h Cir. 1993) ( Jenkins X ), rev'd , 115 S. Ct. 2038 (1995) ; Jenki ns v. Missouri , 11 F.3d 755 (8th Cir. 1993) (as amended o n denial of rehearing en banc) ( Jenkins IX ), reh'g en banc den ied , 19 F.3d 393 (8th Cir. 1994), rev'd , 115 S. Ct. 2038 (1995); Jen kins v. Missou ri , 967 F.2d 1245 (8th Cir.) ( Jenkins-Clark II ), cert
. denied , 113 S. Ct. 811 (1992); Jenkins v. Missouri , 962 F.2d 76 2 (8th Cir.) ( Jenkins-Clark I ), cert. denied , 113 S. Ct. 322 (1992); Jenkins v. Missouri , 949 F.2d 1052 (8th Cir. 1991) ( Jenkins VII ); Jenkins v. Missouri , 943 F.2d 840 (8th Cir. 1991) ( Jenkins VI ) ; Jenkins v. Missouri , 942 F.2d 487 (8th Cir. 1991) ( Jenkins V ) ; Jenkins v. Missouri , 931 F.2d 470 (8th Cir.) ( Jenkins IV ), cert
. denied , 502 U.S. 967 (1991); J enkins v. Missouri , 890 F.2d 65 (8th Cir. 1989) ( Jenkins III ); Jenkins v. Missouri , 855 F.2d 1295 (8th Cir. 1988) ( Jenkins II ), aff'din part and rev'd in part , 495 U.S. 33 (1990 ); Jenkins v. Missouri , 807 F.2d 657 (8th Cir. 1986) (e n banc) ( Jenkins I ), cert. denied , 484 U.S. 816 (1987). Jenkins v. Missouri , 38 F.3d 960 (8th Cir. 1994) ( Jenkin s 4 

### XII ); Jenkins v. Missouri , 981 F.2d 1009 (8th Cir. 1992) ( Jenkins VIII ); Jenkins v. Missouri , 96 5 F.2d 654 (8th Cir. 1992) ( JenkinsMissou ri City ); Jenkins v. Missouri , 904 F.2d 415 (8th Cir. ) ( Naylor ), cert. denied , 498 U.S. 940 (1990). Jenkins v. Missouri , 967 F.2d 1248 (8th Cir. 1992) ( Jenkins 5 

### Fees IV ); Jenkins v. Missouri , 931 F.2d 1273 (8th Cir.) ( Jenkin s Fees III ), cert. denied , 502 U .S. 925 (1991); Jenkins v. Missouri , 862 F.2d 677 (8th Cir. 1988) ( Jenkins Fees II ); Jenkins v

. Missouri , 838 F.2d 260 (8th Cir. 1988) ( Jenkins Fees I ), aff 'd , 491 U.S. 274 (1989).
-4- members f iled suit. The district court converted the suit into a clas s action, making a plaintiff class of all present and future students of the KCMSD. We affirmed the district court's finding of constitutiona l violations by the KCM SD 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 ( 1987). We later considered the district court's remedy for thes e constitutional violat ions 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 (1990). In all, this court has heard over twenty appeals , including twelve dealing with the remedy, four dealing with voluntary interdistrict transfe r 3 plans , and four dealing with attorneys' fees. The Supreme Court ha s

4 5 heard this case three times. Missouri v.

### -5-

Jenkins , 115 S. Ct. 2 038 (1995); Missouri v. Jenkins , 495 U.S. 33 (1990); Missouri v. Jenkins , 491 U.S. 274 (1989).

The Webster group sought to interven e in this litigation on December 1, 1994. The Webster group is comprised of Afri can-American children, who

are or might be in the future students in the KCMSD, and their parents

. In its mo tion to intervene, the Webster group stated that the KCMSD wa s fail ing to eliminate the segregated school system in Kansas City an d contributing to low achievement and a general attitude of inferiority amon g Africa n-Americanstudents. The Webster group also asserted that th e plaintiff Jenkins cla ss no longer adequately represented the interests of African-Americanstudents, 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, bu t denied the motion to intervene as a matter of right because there wer e sufficient avenues open for the group to protect its interests withou t intervention. Since the children in the Webster group were already member s of the Jenkins class, the court encouraged the members of the Webster group to express their concerns to the attorneys for the Jenkins class. Th e court pointed out that the Webster group could communicate its views to th e Desegregation Monitoring Committee, which in turn could present them to th e court. The court encouraged the Webster group to file amicus curiae brief s and seek permission to testify on any issue before the court. Finally, th e 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 motio n to intervene as a matter of right. See Fed. R. Civ. P. 24(a).

### -6- I.

The Je nkins class and the State of Missouri oppose the Webste r group 's motion to intervene and argue that the district court erred i n determining the motion was timely.

Adistrict court should consider all of the circumstances whe n determining the timeliness of a motion to intervene. NAACP v. New York , 413 U.S. 345, 365-66 (1973). In looking at all of the circumstances, the court should pay particular attention to: (1) ho w far the proceedings have progre ssed; (2) the proposed intervenor's reason for delay in seekin g intervention; and (3) the possible prejudice to the parties already in the proceedings if the co urt 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 discretio n. NAACP v. New York , 413 U.S. at 366.

The We bster group argues that its motion is timely because it s members only recently became aware of the need t o protect the interests of Afric an-Americanstudents. The group states that it was not until th e mid dle of 1994 that it became obvious the Jenkins class was no longe r protecting the intere sts of its African-American members. In April 1994, the Jenkins class supported the construction of a new magnet school , despite th e need to renovate traditional schools. The Webster grou p conten ds that renovation of the traditional schools would better serv e African-American students because these schools are dilapidated an d predominantly populated by minority students. I n the late summer of 1994, the Jenkins class argued against increasing the number of minority student s in the KCMSD's magnet schools. The Webster group contends that the magnet schools are the better schools in the KCMSD and increased minorit y enrollment in these s chools would benefit African-American students. The Webster group argues that these actions by the J enkins class show that the class is no longer

### -7-

represe nting the interests of African-American students. Until thes e actions o ccurred, the Webster group argues that it had no reason t o intervene.

The Jenkins class and the State argue that the Webster group's motion to intervene is not t imely because members of the group were aware of the issues raised in their motion to intervene long before they filed thei r motion. T he Jenkins class points out that Ajamu Webster testified o n Februa ry22, 1993, about the relationship between magnet schools an d traditional schools within the KCMSD. Webster t estified that there was an undue emphasis on mag net schools over traditional schools and that magnet schools overemphasized the importance of white students to the detriment of African-American students.

Web ster also described the Coalition for Education and Economi c Justice, which included two members of the Webster group and one of it s attor neys. The Coalition proposed a program to change the funding an d teaching of the seventeen traditional schools an d presented the program to the Desegregation Monitoring Committee. The Coalition had severa l discussions with the KCMSD administration and the Board of Education, and its relationship with them has been less than friendly on occasion.

The Jenki ns class points out that four members of the Webster group have be en members of school advisory committees, and that others hav e testified before the Desegregation Monitoring Committee and appeared befor e the KCMSD board. The State points out that from 1987 to 1990 the district court established the priorities for the improvement of the traditiona l schools.

Consid ering all of these factors, it is evident that the adul t members o f the Webster group knew of the issues they presented in thei r motion to intervene well before they filed their motion. This recor d demonstrates that the timeliness of the Webster group's

### -8-

motion to intervene is a close and troublesome question. We dispose o f this case on the basis of the district court's reasoning which makes i t unnecessaryfor us to decide the timeliness issue. If any group seek s interventionin the future, the district court should carefully consider the timeliness of the intervention efforts.

II.

The Webster group argues that it is entitled to intervene as a matter of r ight under Federal Rule of Civil Procedure 24(a)(2). Under Rul e 24(a)(2), intervention shall be permitted if: ( 1) the proposed intervenor claims an interest relating to the property or transaction which is th e subject of the action; (2) the disposition of the action may as a practica l matter impair or impe de the proposed intervenor's ability to protect that intere st; and (3) no existing party adequately represents the propose d intervenor's interest.

The dis trict court held that the Webster group was not entitled t o intervene as a matter of right because the "intervenors will not b e impaired or impeded in their ability to protect" their interests during th e disposition of the case. The Webster group argu es that the district court applie d an improper legal standard in so ruling, as all that it mus t demonstrat e is that the action "may as a practical matter" impair it s interests. Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No

. 1 , 738 F.2d 82, 84 (8th Cir. 1984) (per curiam). We reject this argument.

The district court's discussion of this issue does not demonstrat e that the court imposed a heavier burden on the W ebster group than the rule requires. In KPERS v. Reimer & Koger Assocs. , 60 F.3d 1304 (8th Cir

. 1995), decided after the briefs were filed in this case, we made clear tha t
a proposed intervenor does not bear the burden of establishing that it s interests will actually be

### -9-

impaired by the disposition of the case. Id. at 1307-08. In KPERS , the district court imposed such a burden, saying that the proposed intervenor' s stare decisis argument did not "necessitate a finding" that the intervenin g interests "will be practically impaired but for its involvement," and that it was unlikely that the proposed intervenor "wo uld be adversely affected" in a later proceeding by rulings in the KPERS ca se. Id. at 1306. We held that such a standard conflicted with the language of Rule 24(a)(2) an d holdings of this court. Id. at 1308.

In contra st, the district court in this case clearly stated th e proper standard, and then found that the "propos ed intervenors will not be impai red or impeded in their ability to protect" their interest. Thi s finding rules out the possibility that the Webster group could show that its interests may, as a practical matter, be impaired.

This is not a case where the impairment of the interest of th e applicant is conceded, assumed, or generally accepted. See Bradley v

. Milliken , 828 F.2d 1186, 1192 (6th Cir. 1987); Morgan v. McDonough , 72 6 F.2d 11, 13 (1st Cir. 1984); United States v. Board of Sch. Comm'rs , 466 F.2d 573 , 575 (7th Cir. 1972), cert. denied , 410 U.S. 909 (1973). Th e distr ict court squarely faced those issues and found that there was n o impairment of the interests of the Webster group because of the othe r avenues available to it. We are persuaded that the district court did not err in this ruling.

The district court's holding also rests on the alternative groun d that the Webster group's interests are adequately represented. Although the court stated that it need not reach the adequacy of representation, it discu ssed the avenues open to the Webster group to express the group' s position, either through the Desegregation Monitoring Committee, through

coun sel for the Jenkins class, by filing amicus curiae briefs, or b y requesting permission to testify in hearings. In this discussion, th e court actually

### -10-

deals with the adequacy of representation. Furt hermore, in its discussion of per missive intervention later in the opinion, the court explicitl y
con cluded that the Webster group's interests are being adequatel y represented.

Apa rty cannot intervene as of right if another party in th e litigation adequately represents its interests. Fed. R. Civ. P. 24(a)(2). There is a presumption of adequate representation when the person s attem pting to intervene are members of a class already involved in th e liti gationor are intervening only to protect the interests of clas s members. See Bradley , 828 F.2d 1186, 1192; cf. United States v. South Ben d Community Sch. Corp. , 692 F.2d 623, 628 (7th Cir . 1982). See generally7C Charles A. Wright et al., Federal Practice and Procedure § 1909, at 318-19 , 324-29 (1986). A difference of opinion concern ing litigation strategy or individual aspects of a remedy does not overcome the presumption o f adequate representation. See Bradley , 828 F.2d at 1192; Stadin v. Union Elec. Co. , 309 F.2d 912, 919 (8th Cir. 1962), cert. denied , 373 U.S. 915 (19 63); see also South Bend Community Sch. Corp. , 692 F.2d at 628 ; Pennsylvania v. Rizzo , 530 F.2d 501, 505 (3rd Cir.), cert. denied , 426 U.S

. 921 (1976); cf. Unite d States v. Perry County Bd. of Educ. , 567 F.2d 277, 280 (5th Cir. 1978). But see United States v. Oregon , 839 F.2d 635, 638 (9th Cir. 1988).

There is no dispute that the students in the Webster group ar e members of the Jenkins class. The parents in the Webster group seek t o intervene only to protect their children's interests. Thus, there is a presumption that the Jenkins class adequately represents the interests of the Webster group. See Bradley , 828 F.2d at 1192. See generally 7C Wrigh t et al., Federal Practice and Procedure § 1909, at 318-19, 324-29.

The Webst er group argues that the KCMSD has failed to implemen t programs designed to help African-American students who are still sufferin g from the harmful effects of past segregation.

### -11-

On numerous occasions in our earlier opinions we discussed the development of the programs designed to remedy the pervasive effects of pas t segregation, with particular attention to the victims. See Jenkins II , 85 5 F.2d at 1300-02 (citing Jenkins v. Missouri , 593 F. Supp. 1485, 1492 (W.D. Mo. 198 4) and Jenkins v. Missouri , 639 F. Supp. 19, 24 (W.D. Mo. 1985) , aff'd as mo dified by , 807 F.2d 657 (8th Cir. 1986) (en banc)). Th e district court and this Court have discussed in detail over the last ten years the development of the educational programs designed to remedy the effect s of segregation and the extensive construction and renovation o f facilities to serve as both magnet schools and traditional schools. The Web ster group's argument that KCMSD has failed to help develop program s designed to help the victims of unconstitutional segregation is contrary to the record in this case.

The rest of the Webster group's argument consists of assertions that the Jenkins class ought to support increased minority enrollment in th e magnet schools and have different priorities in the improvement of KCMSD schools. These arguments are disagreements over the details of the remedy and do not show inadequate representation. See Bradley , 828 F.2d at 1192.

The Webst er group cites Liddell v. Caldwell , 546 F.2d 768 (8th Cir. 1976), cert. denied , 433 U.S. 914 (1977), in support of its argument that the Jenkins class no longer adequately represents the interests of African

American students. L iddell found of great significance the fact that the dist rict court at the time of the intervention in question had "onl y partiallyapproved specific plans for desegregation." Id. at 771. This situati onis in stark contrast to that in the case before us, where th e desegregation program has been developed and partially implemented over th e last ten years, substantial efforts and funds expended, and, indeed, where the State is calling for a declaration of unitary status. The Webste r group does not argue that the Jenkins class has given

### -12-

up the goal of a unitary school system or that the Jenkins class canno t reach that goal on the path it has chosen. The group argues only that its members would prefer the Jenkins class take a di fferent path to that goal. Whil e the Jenkins class may not have completely satisfied all of it s members, there is no showing that its conduct has been so deficient as to render its representation inadequate.

We belie ve that the district court implicitly reached the issue o f ade quacyof representation, and that the district court's order is als o sustainable on this g round. Indeed, we have serious doubts as to whether the Webster group pre sented evidence that would have been sufficient as a matter of law to sustain a finding that the Webs ter group's interests were inadequately represented by existing parties and procedures.

If future developments in the ongoing litigation again present th e necessityto rule on intervention issues, there will be time enough fo r further development of the record in the district court at that point.

We affirm

the district court's denial of the Webster group's motion to intervene.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.