___________

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 her

1

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; 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 appeal from an order 1

of the district court denying their motion to intervene as a matter of

2

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

3

XI), vacated, 115 S. Ct. 2573 (1995); Jenkins v. Missouri, 13 F.3d

1170 (8th Cir. 1993) (Jenkins X), rev'd, 115 S. Ct. 2038 (1995);

Jenkins v. Missouri, 11 F.3d 755 (8th Cir. 1993) (as amended on

denial of rehearing en banc) (Jenkins IX), reh'g en banc denied, 19

F.3d 393 (8th Cir. 1994), rev'd, 115 S. Ct. 2038 (1995); Jenkins v.

Missouri, 967 F.2d 1245 (8th Cir.) (Jenkins-Clark II), cert.

denied, 113 S. Ct. 811 (1992); Jenkins v. Missouri, 962 F.2d 762

(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); Jenkins v. Missouri, 890 F.2d 65 (8th

Cir. 1989) (Jenkins III); 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); Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986) (en

banc) (Jenkins I), cert. denied, 484 U.S. 816 (1987).

 Jenkins v. Missouri, 38 F.3d 960 (8th Cir. 1994) (Jenkins

4

XII); Jenkins v. Missouri, 981 F.2d 1009 (8th Cir. 1992) (Jenkins

VIII); Jenkins v. Missouri, 965 F.2d 654 (8th Cir. 1992) (JenkinsMissouri 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.) (Jenkins

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 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 (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 (1990).

In all, this court has heard over twenty appeals, including twelve dealing

with the remedy, four dealing with voluntary interdistrict transfer

3

plans, and four dealing with attorneys' fees. The Supreme Court has

4 5

heard this case three times. Missouri v.
-5-

Jenkins, 115 S. Ct. 2038 (1995); Missouri v. Jenkins, 495 U.S. 33 (1990);

Missouri v. Jenkins, 491 U.S. 274 (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).
-6-

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 (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.

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
-7-

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 friendly on occasion.

The Jenkins class points out that four members of the Webster group

have been members of school advisory committees, and that others have

testified before the Desegregation Monitoring Committee and appeared before

the KCMSD board. The State points out that from 1987 to 1990 the district

court established the priorities for the improvement of the traditional

schools.

Considering all of these factors, it is evident that the adult

members of the Webster group knew of the issues they presented in their

motion to intervene well before they filed their motion. This record

demonstrates that the timeliness of the Webster group's
-8-

motion to intervene is a close and troublesome question. We dispose of

this case on the basis of the district court's reasoning which makes it

unnecessary for us to decide the timeliness issue. If any group seeks

intervention in 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 right under Federal Rule of Civil Procedure 24(a)(2). Under Rule

24(a)(2), intervention shall be permitted if: (1) the proposed intervenor

claims an interest relating to the property or transaction which is the

subject of the action; (2) the disposition of the action may as a practical

matter impair or impede the proposed intervenor's ability to protect that

interest; and (3) no existing party adequately represents the proposed

intervenor's interest. 

The district court held that the Webster group was not entitled to

intervene as a matter of right because the "intervenors will not be

impaired or impeded in their ability to protect" their interests during the

disposition of the case. The Webster group argues that the district court

applied an improper legal standard in so ruling, as all that it must

demonstrate is that the action "may as a practical matter" impair its

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 demonstrate

that the court imposed a heavier burden on the Webster 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 that

a proposed intervenor does not bear the burden of establishing that its

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 intervening

interests "will be practically impaired but for its involvement," and that

it was unlikely that the proposed intervenor "would be adversely affected"

in a later proceeding by rulings in the KPERS case. Id. at 1306. We held

that such a standard conflicted with the language of Rule 24(a)(2) and

holdings of this court. Id. at 1308.

In contrast, the district court in this case clearly stated the

proper standard, and then found that the "proposed intervenors will not be

impaired or impeded in their ability to protect" their interest. This

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 the

applicant is conceded, assumed, or generally accepted. See Bradley v.

Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987); Morgan v. McDonough, 726

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). The

district court squarely faced those issues and found that there was no

impairment of the interests of the Webster group because of the other

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 ground

that the Webster group's interests are adequately represented. Although

the court stated that it need not reach the adequacy of representation, it

discussed the avenues open to the Webster group to express the group's

position, either through the Desegregation Monitoring Committee, through

counsel for the Jenkins class, by filing amicus curiae briefs, or by

requesting permission to testify in hearings. In this discussion, the

court actually
-10-

deals with the adequacy of representation. Furthermore, in its discussion

of permissive intervention later in the opinion, the court explicitly

concluded that the Webster group's interests are being adequately

represented. 

A party cannot intervene as of right if another party in the

litigation adequately represents its interests. Fed. R. Civ. P. 24(a)(2).

There is a presumption of adequate representation when the persons

attempting to intervene are members of a class already involved in the

litigation or are intervening only to protect the interests of class

members. See Bradley, 828 F.2d 1186, 1192; cf. United States v. South Bend

Community Sch. Corp., 692 F.2d 623, 628 (7th Cir. 1982). See generally 7C

Charles A. Wright et al., Federal Practice and Procedure § 1909, at 318-19,

324-29 (1986). A difference of opinion concerning litigation strategy or

individual aspects of a remedy does not overcome the presumption of

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

(1963); 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. United 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 are

members of the Jenkins class. The parents in the Webster group seek to

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 Wright

et al., Federal Practice and Procedure § 1909, at 318-19, 324-29.

The Webster group argues that the KCMSD has failed to implement

programs designed to help African-American students who are still suffering

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 past

segregation, with particular attention to the victims. See Jenkins II, 855

F.2d at 1300-02 (citing Jenkins v. Missouri, 593 F. Supp. 1485, 1492 (W.D.

Mo. 1984) and Jenkins v. Missouri, 639 F. Supp. 19, 24 (W.D. Mo. 1985),

aff'd as modified by, 807 F.2d 657 (8th Cir. 1986) (en banc)). The

district court and this Court have discussed in detail over the last ten

years the development of the educational programs designed to remedy the

effects of segregation and the extensive construction and renovation of

facilities to serve as both magnet schools and traditional schools. The

Webster group's argument that KCMSD has failed to help develop programs

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 the

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 Webster 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 AfricanAmerican students. Liddell found of great significance the fact that the

district court at the time of the intervention in question had "only

partially approved specific plans for desegregation." Id. at 771. This

situation is in stark contrast to that in the case before us, where the

desegregation program has been developed and partially implemented over the

last ten years, substantial efforts and funds expended, and, indeed, where

the State is calling for a declaration of unitary status. The Webster

group does not argue that the Jenkins class has given
-12-

up the goal of a unitary school system or that the Jenkins class cannot

reach that goal on the path it has chosen. The group argues only that its

members would prefer the Jenkins class take a different path to that goal.

While the Jenkins class may not have completely satisfied all of its

members, there is no showing that its conduct has been so deficient as to

render its representation inadequate. 

We believe that the district court implicitly reached the issue of

adequacy of representation, and that the district court's order is also

sustainable on this ground. Indeed, we have serious doubts as to whether

the Webster group presented evidence that would have been sufficient as a

matter of law to sustain a finding that the Webster group's interests were

inadequately represented by existing parties and procedures. 

If future developments in the ongoing litigation again present the

necessity to rule on intervention issues, there will be time enough for

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.