United States Court of Appeals

For the Eighth Circuit

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No. 16-3437

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Deric James Liddell; Caldwell/NAACP,

lllllllllllllllllllllPlaintiffs - Appellees,

Ken Ross, Jr.; LeDiva Pierce,

lllllllllllllllllllllIntervenor Plaintiffs - Appellants,

United States of America,

lllllllllllllllllllllIntervenor Plaintiff - Appellee,

v.

SpecialAdministrativeBoard oftheTransitionalSchoolDistrict oftheCity ofSt.Louis,

lllllllllllllllllllllDefendant - Appellee,

Special School District,

lllllllllllllllllllllDefendant,

State of Missouri,

lllllllllllllllllllllDefendant - Appellee,

St. Louis County; City Board; Lindbergh School District,

lllllllllllllllllllllDefendants,

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Confluence Academy; City of St. Louis, Missouri,

lllllllllllllllllllllAmici on Behalf of Appellant(s).

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: September 20, 2017

Filed: July 5, 2018

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Before COLLOTON, BENTON, and KELLY, Circuit Judges.

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COLLOTON, Circuit Judge.

In April 2016, several parties to the decades-old St. Louis public school

desegregation litigation moved to enforce the 1999 Desegregation Settlement

Agreement. The moving parties were plaintiffs in the original case, known as the

Liddell andCaldwell-NAACP plaintiffs(the Plaintiffs), and the Special Administrative

Board of the Transitional School District of the City of St. Louis (the Special

AdministrativeBoard). ThePlaintiffs and theSpecial AdministrativeBoard (together

the Joint Movants) argued that the State, through the Missouri Department of

Elementary and Secondary Education, was reallocating certain tax proceeds to St.

Louis charter schools in violation of the Settlement Agreement. The Joint Movants

asked the court to order the State to comply with the 1999 Desegregation Settlement

Agreement by (1) discontinuing the practice of allocating the tax proceeds in question

to the charter schools, and (2) reimbursing the Special Administrative Board for past

wrongful allocations.

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On May 31, 2016, St. Louis charter school parents Ken Ross, Jr., and LeDiva

Pierce moved to intervene as plaintiffs as ofright under Federal Rule of Civil Procedure

24(a)(2). Alternatively, the charter school parentssought permissive intervention under

Rule 24(b). The charter school parents argue that the pending motion to enforce seeks

to decrease funding for charter schools and thereby threatens their interest in

“educationalfunding and educational opportunities” fortheir children. Ross and Pierce

seek to intervene on behalf of themselves and “all others similarly situated.”

The district court denied the charter parents’ motion to intervene on the grounds

that the parentslacked an injury in fact asrequired to establish standing to intervene. We

disagree and conclude that the charter parents have standing. We therefore reverse and

remand for the district court to determine in the first instance whetherthe charter parents

meet the requirements under Rule 24 for intervention as of right or for permissive

intervention.

I.

The charter parents seek to intervene as plaintiffs in litigation that has been

ongoing since 1972. To provide context, we begin with a brief history of this

litigation and the legislative backdrop.

In 1972, Minnie Liddell, on behalf of African American school children in St.

Louis and their parents, filed suit against the St. Louis Board of Education (the City

Board). Liddell alleged that the City Board and its administrators had perpetuated

racial segregation and discrimination in St. Louis public schools in violation of her

children’s constitutional rights. See Liddell v. Bd. of Educ., 469 F. Supp. 1304 (E.D.

Mo. 1979).

In 1973, the district court certified the Liddell plaintiff class. In 1976, another

group ofstudents and parents, together with the NAACP, intervened in the litigation.

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We refer to them as the Caldwell-NAACP plaintiffs. See Liddell v. Caldwell, 546

F.2d 768, 769 (8th Cir. 1976). In 1977, the State of Missouri, the Missouri State

Board ofEducation, and the StateCommissioner of Education were made defendants.

Liddell, 469 F. Supp. at 1312.

In 1983, the parties agreed on a comprehensive desegregation plan that

provided for a voluntary suburban transfer program, magnet schools, new education

programs, capital improvements, and improved vocational education in the school

district. Liddell v. Bd. of Educ., 567 F. Supp. 1037 (E.D. Mo. 1983). The State and

the City Board funded this plan.

In 1996, the State moved for a declaration that the City Board no longer

operated a segregated schoolsystem and for relief from its funding obligations under

the desegregation plan. After three years of negotiations, the partiesreached, and the

court approved, the 1999 Desegregation Settlement Agreement (the Agreement).

Under the Agreement, the parties agreed that the City Board would continue

variousremediation programs. In exchange, the St. Louis Public School District (the

District) would receive a minimum of $60 million in funding per year, consisting of

a combination ofstate aid and local tax revenue. Senate Bill 781, passed in 1998, set

forth a revised funding formula for calculating state aid to the District. The remainder

of the Agreement’s funding came from a “desegregation sales tax” that St. Louis

voters approved on February 2, 1999.

Senate Bill 781, in addition to providing state funding under the Settlement

Agreement, created St. Louis charter schools and provided for their funding. The

1998 law required the District to pay charter schools a per pupil portion of its state

aid for each resident student who chose to attend a charter school rather than a

District school. From 1999 until 2006, however, the District did not include any

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revenue raised from the desegregation sales tax in the funds that the District

transferred to the charter schools.

In 2006, the General Assembly passed Senate Bill 287, which revised the state

aid funding formula for public schools. See generally Mo. Rev. Stat. § 163.031

(2006). Senate Bill 287 allowed charter schools to be formed as “local educational

agencies,” meaning that St. Louis charterschools would receive aid directly from the

State instead of the District. Under the 2006 law, when a charter school declares

itself a local educational agency, the State must “reduce the payment made to the

school district by the amount specified in this subsection and pay directly to the

charter school the annual amount reduced from the school district’s payment.” Id.

§ 160.415.4. While Senate Bill 781 in 1998 had not required the District to pay any

portion of its local tax revenue to the charter schools, Senate Bill 287 in 2006

mandated that charter students receive a per pupil percentage of local tax revenues

received by the District. Id. § 160.415.2(1), 160.415.4.

The Joint Movants contend that since 2006, the Missouri Department of

Elementary and Secondary Education (theDepartment), applying the revised funding

formula, has reduced the funds it pays to the District and reallocated those funds to

the charter schools. According to the Joint Movants, the Department considers the

District’slocaltax revenue—including the desegregation tax revenue—in calculating

the amount of aid to reallocate from the District to the charter schools.

In their motion to enforce the Agreement, the Joint Movants argue that the

Agreement “mandates that the Desegregation Tax would be paid to the District only

for desegregation remediation purposes.” They argue that the Department, through

itsimplementation of Senate Bill 287’s funding formula, has violated the Agreement

by diverting more than $42 million dollarsin desegregation tax revenue to the charter

schools. The Joint Movants seek an order directing the State to reimburse the District

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for these revenues and to discontinue the practice of allocating desegregation tax

proceeds to the charter schools.

Ross and Pierce seek to intervene as of right under Federal Rule of Civil

Procedure 24(a)(2). In the alternative, they ask the court to grant them permission to

intervene under Rule 24(b). The district court denied the motion, concluding that the

charter parents had notsatisfied the injury-in-fact requirement of Article III standing.

II.

We generally review a district court’s determination on Article III standing de

novo. See Am. Civil Liberties Union of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d

1088, 1092 (8th Cir. 2011). The Joint Movants argue that we should review for clear

error in this case because the district court “relied on affidavits and exhibits in

conjunction with the motion to intervene.” To be sure, where a district court relies

on “its own determination of disputed factual issues” to resolve a motion to dismiss,

we review the findings of fact for clear error. Osborn v. United States, 918 F.2d 724,

730 (8th Cir. 1990). Here, however, the district court did not base its standing

determination on a resolution of disputed facts. While the charter parents did attach

several exhibits with their motion to intervene, the district court discussed only

allegations that appeared on the face of the motion. And even if the district court did

consider the exhibits, these were “materials necessarily embraced by the pleadings,”

so the court was free to consider them along with the face of the motion without

resolving any factual disputes. Kuhns v. Scottrade, Inc., 868 F.3d 711, 715 (8th Cir.

2017). Because the district court made no findings on disputed issues of fact and

ruled based on the pleadings, we review de novo whether the charter parents have

standing.

“An Article III case or controversy is one where all parties have standing, and

a would-be intervenor, because he seeks to participate as a party, must have standing

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as well.” Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th Cir. 1996); see Town of

Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017). A prospective

intervenor, then, must satisfy the familiar requirements of Article III standing. The

intervenor must have “(1) suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be redressed by a

favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

To establish an injury in fact, the intervenor must show he or she suffered “‘an

invasion of a legally protected interest’ that is ‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548 (quoting Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

We construe a motion to intervene in favor of the prospective intervenor,

accepting all material allegations as true. Tarek ibn Ziyad Acad., 643 F.3d at 1092. 

In evaluating whether the charter parents have standing, we accept as true the

movants’ allegations of injury, causation, and redressability, unless the pleading

reflects a “sham” or “frivolity.” Kozak v. Wells, 278 F.2d 104, 109 (8th Cir. 1960). 

This is the same standard that we apply in deciding a motion to dismiss. See United

States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 834 (8th Cir. 2009).

The Special Administrative Board contendsthat allegations by themselves are

insufficient, and that the movants must submit affidavits or other evidence to

demonstrate standing. But the principal authority cited in support of this argument

involved an assessment of standing after a final decision on the merits. See Wittman

v. Personhuballah, 136 S. Ct. 1732, 1735 (2016). It is well established that the

“manner and degree of evidence” required for a plaintiffto establish standing depends

on the stage the litigation has reached. Lujan, 504 U.S. at 561. On a motion to

intervene, the putative intervenors may establish the elements of Article III standing

based on well-pleaded allegations alone.

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The Special Administrative Board argues that the charter parents have not

established an injury in fact because they assert injuries that are “conjectural and

hypothetical.” It is true that “‘[a]llegations of possible future injury’ are not

sufficient” to satisfy the injury-in-fact requirement. Clapper v. Amnesty Int’l USA,

568 U.S. 398, 409 (2013) (alteration in original) (quoting Whitmore v. Arkansas, 495

U.S. 149, 158 (1990)). The motion to intervene, however, included allegations of

concrete harm that are definite and real. Specifically, the charter parents pleaded:

If the Special Administrative Board prevailsin its motion, Mr. Ross and

Ms. Pierce, and their children, would suffer a loss in educational

funding for teachers, facilities, and equipment necessary for their

children’s education. This would erode the quality and reputation of the

charter public schools that Mr. Ross’s and Ms. Pierce’s children attend.

Taking this well-pleaded allegation as true, the charter schools will suffer a loss of

funding and a decline in quality if the Joint Movants prevail. This alleged injury to

the Ross and Pierce families, resulting from the plaintiffs’ requested transfer of tens

of millions of dollars away from the schools that the Ross and Pierce children attend,

is neither conjectural nor hypothetical and is sufficiently imminent to constitute an

injury in fact.

The Joint Movants also complain that the charter parents allege injury only to

third parties, namely the charter schools, rather than to themselves and their children.

But the charter parents have alleged their own direct interest in the quality of the

charter schools. They pleaded that the educational funding that the charter schools

receive and have received—insofar asitsupportsteachers and funds school facilities

and equipment—is “necessary” for their children’s education. The charter parents do

not rest their claim solely on the economic interests of the charter schools, but allege

an injury to their children’s educational interests and opportunities. Parents have

standing to sue when practices and policies of a school threaten their rights and

interests and those of their children. See, e.g., Parents Involved in Cmty. Sch. v.

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Seattle Sch. Dist. No. 1, 551 U.S. 701, 718-19 (2007); Sch. Dist. of Abington Twp. v.

Schempp, 374 U.S. 203, 224 n. 9 (1963). The charter parents, therefore, adequately

pleaded imminent injury that threatens them and their children personally. We

conclude that the charter parents have satisfied the injury-in-fact requirement of

Article III standing.

To satisfy the traceability and redressability requirements of Article III

standing, the charter parents must establish that their injury is “fairly traceable to the

challenged conduct of the defendant”—here, the State of Missouri—and that their

injury is “likely to be redressed by a favorable decision.” Spokeo, 136 S. Ct. at 1547.

The charter parents pleaded that, if the Joint Movants prevail, the charter schools

would lose funding, and the quality of their children’s education would suffer as a

result. The motion to enforce the settlement agreement is aimed at the State and seeks

an order directing the State to reduce funding to charter schools. The State would

thus be compelled to cause the alleged injury if the motion to enforce succeeds, so the

alleged injury is fairly traceable to the State. See Tarek ibn Ziyad Acad., 643 F.3d at

1093. The alleged injury also would be redressed by a favorable decision: if the

Joint Movants do not prevail on their motion to enforce, the State will not be required

to reimburse the District for past allocations ofthe desegregation tax revenue, and the

State may continue to allocate a portion of the tax revenue to the charter schools. 

The Joint Movants argue that the charter parentslack standing because they do

not have a legally protectable interest under the Agreement. They draw our attention

to Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952 (8th Cir. 2002), where

this court concluded that “strangers to a consent decree generally do not have

standing to enforce a consent decree.” Id. at 958. Pure Country said that a third party

seeking to enforce a decree must show “that the parties to the consent decree not only

intended to confer a benefit upon that third party, but also intended to give that third

party a legally binding and enforceable right to that benefit.” Id. In this case,

however, the charter parents do not seek to enforce an agreement to which they are

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strangers. They contend, rather, that the Joint Movants are seeking to expand the

settlement agreement beyond its boundaries in a way that would harm non-parties to

the agreement. The rationale of Pure Country does not forbid a third party who

would be injured by a purported enforcement of a settlement agreement from

intervening to urge that the agreement be confined to what the putative intervenors

consider to be its proper scope.

III.

The district court denied the charter parents’ motion to intervene on standing

grounds alone and did not consider the merits of their motion. The parties have

argued the timeliness and the merits of the motion in this appeal, but we conclude that

the district court should consider those issues in the first instance, especially because

not all issues are purely legal questions subject to de novo review by this court. If the

district court concludes that the motion to intervene is timely, then it should proceed

to the merits and determine whether the motion meets the requirementsfor mandatory

intervention under Rule 24(a)(2), or whether the charter parents should be permitted

to intervene under Rule 24(b). The order dismissing the motion to intervene for lack

of standing is reversed, and the case is remanded for further proceedings.

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